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ELEMENTS 


ECCLESIASTICAL  LAW 

COMPILED   WITH   REFERENCE   TO 

THE  LATEST  DECISIONS  OF  THE  SACRED  CONGREGATIONS 
OF    CARDINALS. 


ADAPTED  ESPECIALLY  TO  THE  DISCIPLINE  OF  THE  CHURCH  IN  THE 

UNITED   STATES. 


REV.   S.   B.   SMITH,  D.D., 

FORMERLY   PROFESSOR   OF  CANON   LAW,   AUTHOR   OF   "NOTES   ON   THE   SECOND 

PLENARY  COUNCIL  OF  BALTIMORE,"  "COUNTER-POINTS  IN  CANON  LAW," 

"NEW  PROCEDURE  IN  CRIMINAL  AND  DISCIPLINARY  CAUSES  OF 

ECCLESIASTICS,"  "COMPENDIUM  JURIS  CANONICIi" 

"MARRIAGE  PROCESS,"  ETC.,  ETC. 


Vol.  I. 
ECCLESIASTICAL   PERSONg)(    |_|BRIS 

.    ST,   BASIL'S  SCHOLASTIC/ 


NINTH   F.nTTTO*Q 


.   ^7fl  5""L- 


CAREFULLY   REVISED   BY   THE  AUTHOR. 


NEW  YORK,  CINCINNATI,  CHICAGO  : 
ZIGER    BROTHERS, 

PRINTERS   TO   THE    HOLY   APOSTOLIC   SEE. 


Imprimaturs  to  the  Sixth  Edition. 


Nf#I  tftiatet. 

H.  GABRIELS,   S.T.D., 

Censor  Deputatut. 


MICHAEL   AUGUSTINUS, 

Arctiiepiscopus  Neo-Eboracensis. 


DATUM  NEO-EBORACI, 

DIE  14  JANUARII,  1887. 


*GULIELMUS    HENRICUS, 

Archiepiscopus  Cincinnatensis. 
DIE  17  JANUARII.  1887. 


DEC  "3  1954 


Copyrighted,  1887,  by  BENZIGER  BROTHERS. 


Imprimatur  to  Former  Editions. 


Xtfjil  (Dtistat. 

REV.  S.  G.  MESSMER,  S.T.P., 

Censor  Deputatus. 


IMPRIMATUR 

OF   HIS  EMINENCE  THE  CARDINAL  ARCHBISHOP  OF 

NEW  YORK. 


Jraprittmitm 

JOANNES  CARD.  McCLOSKEY, 

Archiepiscopus  Neo-Eboracensis. 

DATUM  NEO-EBORACI, 

DIE  25  MA&TII,  1877. 


to  former  ISMtions. 

ARCHBISHOP'S  HOUSE,  WESTMINSTER,  S.  W.,  Apr.  7,  1881. 
Rev.  and  dear  Father: — I  have  to  thank  you  for  sending  me  a  copy  of  your 
work  on  the  "  Elements  of  Ecclesiastical  Law."  On  receiving  it,  I  at  once 
examined  certain  parts  to  which  my  attention  has  been  lately  directed,  and  I 
found  the  treatment  of  them  singularly  full  and  precise.  The  book,  therefore, 
will  be,  I  believe,  of  much  use  in  Seminaries  and  to  the  Clergy.  And  I  will 
not  fail  to  make  it  known. 

The  new  Hierarchies  and  the  Churches  of  the  New  World  are  under  con' 
ditions  so  totally  unlike  the  old  countries  in  centuries  past,  that  we  need  a 
"  Novum  Jus  "  by  the  application  of  old  principles  to  a  new  state, 
every  blessing  prosper  your  labours. 

I  remain,  Rev.  and  dear  Father,  yours  faithfully  in  Xt., 

HENRY  E.,  CARD.-ARCHBISHOP. 

Of  Westminster. 


BIRMINGHAM,  March  19,  1881. 
DEAR  REV.  SIR  : 

On  receiving  your  "  Elements  of  Ecclesiastical  Law  "  I  put  2t  into  thr 
hands  of  the  Theological  Professor  of  one  of  our  Seminaries.  He  has  read  it 
for  me,  and,  1  am  glad  to  say,  confirms  the  prinia  facie  judgment  I  had  formed 
of  its  utility  for  ecclesiastical  students,  as  well  as  of  its  learning.  As  I  think 
you  will  like  to  see  his  letter,  I  inclose  it. 

Thanking  you  for  the  gift  of  the  volume,  I  am.  Rev.  Sir, 
Your  faithful  servant  in  Xt, 

JOHN  H.   CARD.   NEWMAN. 


{Letter  of  the  Theologian  appointed  by  His  Eminence,  Cardinal  Newman,  to  examine 

the  ELEMENTS.] 

I4th  March,  1881. 
MY  LORD   CARDINAL  : 

The  "  Elements  of  Ecclesiastical  Law,"  by  Dr.  Smith,  is  in  my  opinion  not 
only  a  very  interesting,  but  also  a  most  iiseful  book  for  Students  and  Priests 
here  as  well  as  in  America.  The  chief  good  points  of  the  book  I  take  to  be  : 

I.  The  selection  of  material,  i.  e.,  the  leaving  out  a  great  deal  of  archaic  infor 
mation  which  one  usually  meets  with  in  such  books,  and  giving  just  what  is 
necessary  for  our  times  and  circumstances. 

II.  His  method,  i.  e.,  ist,  the  order  in  which  he  puts  the  general  principles 
or  the  old  Common  law  of  the  Church  first,  and  then  the  special  Ecclesiastical 
law  of  America,  England,  or  Ireland,  makes   a  good  and  clear  picture  of  the 
American  Church  as  part  of  the  old  Mother  Church  and  still  on  the  other  hand 
as  a  new  creation  of  our  own  times      2d,  the  manner  in  which  he  proposes  the 
matter  in  questions  and  answers,  is  catechetical,  and  makes  things  very  concise 
and  clear.     One  sees  the  author  has  but  one  purpose  throughout,  i,  e  to  be 
useful  to  his  readers. 

III.  The  author  constantly  refers  to  the  best  authorities  for  his  statements 
and  conclusions,  and  the  book  has  been  examined  by  Cardinal  Simeoni's  Con- 
suitors,  whose  suggested  corrections  are  embodied  in  the  3d  edition,  a~nd  it 
bears  the  stamp  of  approbation  by  many  Bishops  and  is  consequently  on  mere 
external  grounds  a  very  reliable  book. 

IV.  What   makes  the  book  also  very  interesting  and  useful  is  the  many 
references  to  the  Schemata  Vaticani  Conci'/ii,  or  proposals  made  by  Bishops  to 
bring  about  a  change,  revision  of  the  Corpus  juris,  and  he  gives  many  instances. 

V.  With  a  few  more  additions  as  regards  England,  the  book  might  be  clas 
sical  for  this  country  ;   anyhow,   there  is  no  book  that  would  better  meet  our 
wants  at  present.     I  hope   it   is  a  little  spur  for  students  —  as  yet  there  is  no 
such  thing  as  Canon  law  in  our  seminaries,  and   I   believe  Priests  at  large  do 
not  care  for  it,  or  think  they  can  do  without  it.     Any  one  who  reads  Dr.  Smith 


on  Vicars  General,  Parish  Priests,  Chaplains  and  Confessors,  or  also  on  Bish 
cps,  will  find  out  his  mistake. 

As  Manuals  or  Handbooks  are  generally  tedious,  it  is  a  great  thing  to  say 
that  Dr.  Smith's  is  not  tedious.  I  shall  recommend  it  to  our  students  here  as 
that  book  which  fills  up  a  gap  in  our  theological  education,  and  will  be  very 
useful  on  the  mission.  I  have  the  honor  of  remaining 

Your  Eminence's  humble  servant, 

V.    T.    SCHOBEL. 

LONDON,  ONTARIO,  March  3d,  1881. 

Rev.  and  dear  Sir: — As  your  work  entitled  "Elements  of  Ecclesiastical 
Law,"  has  been  revised  at  Rome  and  approved  by  many  distinguished  Prelates, 
it  cannot  fail  to  command  general  confidence  as  to  its  accuracy  and  trustworthi 
ness.  It  affords  me  pleasure  to  add  my  Commendation  to  that  given  it  by  so 
many  learned  Bishops  and  Canonists. 

Believe  me  to  be,  Rev.  and  dear  Sir,  yours  sincerely, 

i*  JOHN   WALSH,  Bishop  of  London. 


TORONTO,  March  5,  1881. 

My  dear  Doctor  Smith  : — Many  thanks  for  your  excellent  treatise  on  the 
elements  of  Ecclesiastical  law.  It  is  a  work  which  was  a  long  time  needed, 
and  yet,  it  comes  in  good  time.  It  will  be  read  by  many  ecclesiastics  with 
much  profit,  and  will  save  the  Bishops  a  great  deal  of  trouble,  as  the  priests 
will  be  more  acquainted  with  the  duties  and  responsibilities  of  their  Bishops,  as 
well  as  their  own.  Besides  an  acquaintance  with  the  forms  of  procedure,  in 
cases  of  delinquency,  will  prevent  many  mishaps.  You  have  indeed  rendered 
a  great  service  to  the  Catholic  Church  in  America,  and  your  submitting  the 
work  to  the  Roman  Consultors  will  give  it  a  title  to  great  authority.  Receive, 
my  dear  Doctor,  the  expression  of  my  high  esteem  and  consideration. 
Yours  very  faithfully  in  Xt, 

t  JOHN   JOSEPH    LYNCH, 

Archbishop  of  Toronto. 

ST.  JOHN,  N.  B ,  March  2ist,  1881. 

Rev.  dear  Sir  :  —  I  have  to  thank  you  for  a  copy  of  your  work,  "  Elements 
of  Ecclesiastical  Law."  It  is  a  useful  and  valuable  work,  and  having  besides 
the  approbation  of  the  Propaganda,  must  prove  an  acceptable  addition  to  the 
ecclesiastical  library.  I  am,  dear  Sir, 

Faithfully  yours  in  Xt, 

•J-  J.  SWEENY, 

Bishop  of  St.  John. 
*-*> 

LOTJVAIN,  March  29,  1881. 

As  regards  a  recommendation,  Rev.  and  dear  Sir,  I  think  the  best  I  can 
give  is  to  say  that  I  have  adopted  the  book  as  a  text-book  for  my  students. 
J.  DE  NEVE,  DOM.  PRELATE, 

Rector  of  the  American  College,  Louvain. 


APPROBATION  OF  THE  AUTHOR'S  ORDINARY. 

DIOCESE  OF  NEWARK, 

NEWARK,  April  28,  1877. 
DEAR  DOCTOR  : 

I  have  heard  with  great  pleasure  that  you  have  finished  your  work  on 
Canon  Law,  and  that  it  has  obtained  the  "  Imprimatur"  of  his  Eminence  Car 
dinal  McCloskey. 

The  study  of  the  laws  of  the  Church,  in  which  the  wisdom  of  the  past  is 
embodied,  is  always  interesting  and  useful,  not  to  speak  of  the  growing  im 
portance  attached  to  such  knowledge  in  our  midst.  I  therefore  congratulate 
you  on  the  good  that  you  have  done  by  compiling  a  summary  of  Canon  Law, 
from  approved  sources,  and  I  sincerely  wish  you  all  the  success  which  your 
zeal  and  assiduity  deserve.  I  remain,  Rev.  Dear  Doctor, 

Very  truly,  yours  in  Christ, 
f  MICHAEL, 

Bishop  of  Newark. 

This  beautiful  volume  comes  in  proper  time. 

|F.  N.  BLANCHET, 
Archbishop  of  Oregon. 

As  the  "  Elements  of  Ecclesiastical  Law"  has  the  approbation  of  Cardi- 
•*al  McCloskey  and  of  the  Bishop  of  Newark,  I  cannot  refuse  to  tender  my 
approbation.  '  fJOHN  M.  HENNI, 

Archbishop  of  Milwaukee. 


The  voluminous  work  of  Dr.  Smith  cannot  fail  to  be  useful  to  many 
clergymen,  those  especially  who  do  not  possess  already  similar  works.  Yet 
I  do  not  pretend  hereby  to  give  a  judgment  or  approbation  of  all  parts  of  tho 
work  :  I  leave  that  to  more  competent  persons. 

|A.    M.   BLANCHET, 

Bishop  of  Nesqually. 

You  are  welcome  to  put  my  name  among  the  admirers  of  Dr.  Smith's 
"Elements  of  Ecclesiastical  Law."  I  would  not  commit  myself  to  approval 
of  all  its  positions ;  but  in  general  I  am  glad  to  see  such  a  work,  and  it 
seems  to  be  well  done.  I  think,  too,  in  this  case,  he  did  well  to  give  it  in 
English.  I  would  rather  students  should  study  their  Canon  Law  in  Latin. 
But  as  there  was  no  such  work  in  the  country  before,  it  is  well  that  this  an 
swers  both  for  students  and  for  other  readers. 

\  WILLIAM    HENRY    ELDER, 

Bishop  of  Natchez. 

I  have  carefully  looked  over  the  book  entitled  "  Elements  of  Ecclesiasti. 
cal  Law,"  and  I  cannot  but  regard  it  as  a  most  useful  and  timely  publication. 
The  numerous  references  to  standard  authorities  upon  almost  every  question 
of  which  it  treats  make  the  book  especially  valuable. 

f  THOMAS   L.  GRACE, 
T  Bishop  of  St.  Paul 


The    "Elements    of  Ecclesiastical    Law,"  by  Dr.   Smith,  I    find    to  be  a 

learned  and  useful  work I  hope  that  this  really  meritorious  and 

solid  work  will  have  a  wide  circulation.  f  JOHN    J.    HOGAN, 

Bishop  of  St.  Joseph, 


An  important  and  valuable  addition  to  our  Catholic  literature,  and  I 
hope  the  publishers'  enterprise  and  the  reverend  author's  learned  labors  will 
be  appreciated  by  the  Catholic  public.  I  sincerely  express  my  own  most 
hearty  appreciation  and  thanks  to  author  and  publishers. 

\  S.    V.   RYAN, 

Bishop  of  Buffalo. 


I  have  read  with  pleasure,  and  I  hope  with  fruit,  the  work  of  Dr.  Smith 
on  "The  Elements  of  Ecclesiastical  Law."  I  consider  it  the  best  elementary 
>eatise  on  the  subject  I  have  seen  ;  and  enriched  with  its  copious  references, 
directs  the  student  who  desires  a  more  extensive  course  of  reading.  Dr. 
Smith  has  shown  in  his  work  extensive,  judicious,  and  conscientious  study. 

\  P.    T.    O'REILLY, 

Bishop  if  Springfield.  ' 


It  is  indeed  a  most  useful  work  ;  clear,  plain,  and  learned.     It  supplies  a 
great  want.  \  JOSEPH    DWENGER, 

Bishop  of  Fort  Wayne, 


The  work  is  a  welcome  addition  to  our  libraries,  well  arranged,  interest 
ing  in  its  matter  and  manner ;  and  so  necessary  to  the  student  of  Theologj 
that  it  is  easy  to  predict  for  it  the  popularity  it  richly  deserves. 

|  THOMAS   F.    HENDRICKEN, 

Bishop  of  Providence. 


I  read  Dr.  Smith's  first  book  with  pleasure,  and  his  work  on  "  Elements 
of  Ecclesiastical  Law,"  published  with  the  approbation  of  his  Ordinary,  the 
Bishop  of  Newark,  and  the  "  Imprimatur"  of  the  Cardinal  Archbishop  of  New 
York,  with  even  greater  satisfaction.  f  E.  P.  WADHAMS, 

Bishop  of  Ogdensburg. 

I  find  the  book  very  good,  and  approve  of  it  quite  cneenuily. 

f  RUPERT  SEIDENBUSH,   O.S.B., 

Bishop  of  St.  Cloud. 


I  have  been  prevented  from  making  such  examination  of  Dr.  Smith's 
"  Elements  of  Ecclesiastical  Law"  as  would  make  my  opinion  satisfactory  to 
myself.  I  can  only  rejoice  with  you  that  the  commendations  already  received 
render  unnecessary  to  its  success  the  good  word.  It  has  already  the  best 
wishes  of  yours  sincerely,  f  JAMES  AUG.  HEALY, 

vj  Bishop  of  Portland. 


I  am  very  much  pleased  with  it.  J.   TUIGG, 

Bishop  of  Pittsburgh. 

An  admirable  work  of  its  kind.  It  is  a  clear,  concise,  and,  I  think,  an 
entirely  reliable  exposition  of  the  principles  and  leading  provisions  of  those 
parts  of  Canon  Law  of  which  it  treats.  It  gives  evidence  of  patient  and 
extended  research,  and  of  a  sound  and  judicious  criticism  on  the  part  of  its 
author,  and  it  has,  for  American  readers,  the  peculiar  merit  of  throwing  a 
great  deal  of  light  on  many  necessarily  unsettled  canonical  questions  that 
have  arisen  in  this  country.  If  I  am  not  mistaken,  it  will  be  welcomed  as  an 
excellent  and  much-needed  text-book  in  our  seminaries,  and  will  give  a 
fresh  impulse  to  canonical  studies  among  the  clergy  generally. 

Sincerely  yours  in  Dmo., 

fj.    O'CONNOR, 

Vic.  Ap.  Neb. 

REV.  DEAR  DOCTOR  : 

Having  examined  "  Elements  of  Ecclesiastical  Law,"  I  am  glad  to  say 
that  it  pleases  me  very  much. 

It  should  be  one  of  the  chief  objects  of  a  writer  on  Ecclesiastical  Law  to 
show  what  the  universal  Ecclesiastical  Law  is,  and  how  far  it  is  applied  or 
applicable  to  particular  nations  or  countries  ;  especially  should  he  faithfully 
adhere  to  the  letter  and  spirit  of  the  decisions  of  the  Holy  See.  In  these  re 
spects,  you  have,  so  far  as  I  can  judge,  succeeded  very  well.  While  setting 
forth  the  principles  of  the  common  law  of  the  Church,  you  have,  as  far  as  its 
applicability  to  this  country  is  concerned,  given  due  consideration  to  the  pe 
culiar  condition  of  the  Church  in  the  United  States.  Your  work,  therefore, 
is  very  practical,  opportune,  and  useful,  both  to  priests  on  the  mission  and  to  stu 
dents  in  seminaries.  The  clearness  and  excellence  of  its  method  will  ren 
der  its  perusal  not  only  instructive  but  also  agreeable.  Hence,  while  in  mat- 
ters  freely  controverted  among  canonists  and  theologians,  1  may  not  alwayj 
coincide  with  your  views,  /  sincerely  congratulate  you  on  the  excellence  of  your 
look  and  its  adaptability  to  this  country.  I  trust  it  will  meet  with  complete 
success.  Truly  yours, 

A.    KONINGS,  C.SS.R. 


The  present  work  is  an  accurate  summary  of  modern  Canon  Law  in  gen 
eral,  and  of  American  statutory  regulations  in  particular.  Nearly  all  available 
authorities  have  been  made  contributory  to  it,  and  the  result  is  much  like  a 
mosaic,  in  which  the  minute  pieces  of  hard  substances  of  various  colors  are 
Carefully  inlaid  and  harmoniously  cemented  together  with  a  master's  hand. 
Indeed,  this  your  mosaic  will  stand  the  test  of  ages. 
Yours  very  respectfully, 

F.   J.    PABISCH, 
President  of  Mount  St.  Mary's  of  the  West,  Cincinnati. 


vii 


PREFACE. 


WE  now  venture  to  publish,  though  not  without  great 
diffidence,  our  "  Elements  of  Ecclesiastical  Law."  These 
pages  have  been  written  especially  with  reference  to  the 
discipline  of  the  Church  in  this  country.  Hence,  through 
out  the  work,  the  particular  laws,  customs,  and  practices  of 
the  United  States,  and  of  countries  similarly  circumstanced 
— as  Ireland,  England,  and  Canada — are  explained  along 
with  the  general  or  common  law  of  the  Church.  This  we 
have  done  in  order  to  enable  the  reader  to  compare  our 
special  discipline  with  that  of  the  universal  Church,  and  to 
understand  the  one  better  by  comparison  with  the  other. 
A  slight  perusal  of  the  decrees  of  the  Second  Plenary  Coun 
cil  of  Baltimore  will  demonstrate  that  they  are  based  on, 
and,  as  far  as  the  condition  of  this  country  would  permit, 
modelled  after,  the  common  law,  especially  as  set  forth  by 
the  Council  of  Trent. 

The  volume  is  divided  into  three  parts.  The  first  treats 
of  the  nature,  division,  etc.,  of  ecclesiastical  law;  of  the 
sources  whence  it  emanates  ;  and  of  the  authorities  from 
which  it  derives  its  efficacy.  Next,  the  nature  and  force  of 
national  canon  law,  especially  with  reference  to  the  United 
States,  are  discussed.  The  second  part  discourses,  in  a 
general  manner,  on  ecclesiastics  as  vested  with  power  or 
jurisdiction  in  the  Church.  Hence,  it  shows  what  is  meant 


x  Preface. 

cy  ecclesiastical  jurisdiction,  how  it  is  acquired,  how  lost 
and  resigned.  It  therefore  treats  chiefly  of  the  election  of 
the  Sovereign  Pontiff,  of  the  creation  of  cardinals,  of  the  ap 
pointment,  dismissal,  and  transfer  of  bishops,  vicars-general, 
administrators  of  dioceses,  and  of  pastors,  particularly  in 
this  country.  The  third  part  treats,  in  particular,  of  the 
powers  and  prerogatives  of  ecclesiastics  as  clothed  with 
authority  in  the  Church.  Hence,  it  points  out  the  rights 
and  duties  chiefly  of  the  Roman  Pontiff,  of  the  Roman  Con 
gregations,  of  cardinals,  legates,  patriarchs,  primates,  metro 
politans,  bishops,  vicars-general,  administrators  of  dioceses, 
pastors,  and  confessors. 

It  has  been  our  endeavor  to  adapt  the  work  to,  and 
hence  we  frequently  quote  from,  the  "Syllabus"  of  1864: 
the  "Const.  Apostolicae  Sedis "  of  Pope  Pius  IX.,  pub 
lished  in  1869,  by  which  the  censures  "  latae  sententiae " 
were  limited  ;  the  latest  decisions  of  the  Roman  Congrega 
tions,  especially  those  bearing  on  this  country  ;  and,  finally, 
the  Vatican  Council.  Besides  quoting,  wherever  appropri 
ate,  the  definitions  of  the  Council  of  the  Vatican,  we  have, 
in  their  proper  places,  in  connection  with  the  subject-mat 
ter,  added  various  schemes  (schemata]  and  proposals  (postn- 
lata)  either  discussed  in  or  submitted  to  this  Council.  The 
former  are  drafts  of  decrees  prepared  before  the  assembling 
of  the  Council  by  a  special  commission,  appointed  by  Pope 
Pius  IX.  for  that  purpose,  and  consisting  of  the  most  distin 
guished  theologians  from  all  parts  of  Christendom;  the 
latter  are  motions  made  in  the  Council  by  bishops  from  dif 
ferent  countries.  We  quote  these  drafts  and  proposals,  not 
as  though  they  had  the  force  of  dogmas  or  laws,  but  to 
show  what  laws  would  likely  have  been,  or  will  be  (if  the 
Council  reassembles),  enacted  by  the  Council  of  the  Vati 
can.  For  both  the  schemes  and  proposals  we  are  indebted 


Preface.  xi 

to  the  excellent  work  of  Rt.  Rev.  Dr.  Martin    Bishop  of 
Paderborn,  entitled  "  Documenta  Concilii  Vaticani." 

The  method  observed  in  the  present  volume  is  that  of 
Craisson  in  his  celebrated  "  Manuale  Totius  Juris  Canonici," 
Pictavii,  1872,  ed.  sa— a  work  which  was  approved  at  Rome 
and  honored  by  a  congratulatory  letter  from  the  Holy 
Father.  It  seems  scarcely  necessary  to  state  the  motives 
that  induced  us  to  make  use  of  the  English  language  in  the 
publication  of  a  book  like  this.  Many,  if  not  most,  of  the 
recent  works  on  canon  law  are  written,  not  in  Latin,  but 
in  the  vernacular  of  the  writer.  Besides,  it  was  thought 
that  numerous  technical  and,  so  to  say,  traditional  phrases 
so  peculiar  to  works  of  this  kind  written  in  Latin  might  be 
difficult  of  understanding,  especially  in  a  country  like  ours, 
where  ecclesiastical  law  has  not  as  yet  come  to  be  universal 
ly  studied. 

To  cause  the  book  to  be  received  with  greater  con 
fidence,  and  to  make  sure  that  it  contained  nothing  contrary 
to  faith,  good  morals,  and  the  common  opinion  of  canonists, 
we  cheerfully  submitted  it  to  our  ecclesiastical  superiors. 
Upon  the  report  of  the  theologian  appointed  to  examine 
the  work  the  "  Imprimatur "  which  adorns  the  front  page 
was  graciously  granted  by  his  Eminence  the  Cardinal  Arch 
bishop  of  New  York. 

The  work,  though  of  itself  complete,  does  not  embrace 
the  entire  ecclesiastical  law.  We  shall,  please  God,  supple 
ment  it,  at  an  early  day,  by  two  more  volumes,  which,  togeth 
er  with  the  present  one,  will  form  a  complete  text-book  of 
canon  law  as  adapted  to  the  discipline  of  the  Church  in  the 
United  States.  An  appendix  is  added,  containing  the  "  C. 
Ap.  Sedis,"  the  "  Instructio  "  of  the  Propaganda  regarding 
public  schools  in  the  United  States  recently  sent  to  our 
bishops,  the  profession  of  faith  as  amended  by  Pope  Pius 


x"  Preface. 

IX.,  and  the  much-discussed  decision  of  the  Holy  See  as  to 
when  persons  excused  from  the  precept  of  fast  by  age  or 
labor  may  be  permitted  to  eat  meat  "  toties  quoties."  We 
humbly  and  unreservedly  submit  the  work  to  the  judgment 
of  the  Sovereign  Pontiff. 

S.  B.  S. 


PREFACE  TO  THE  SECOND  EDITION. 


WE  call  attention  to  the  principal  alterations  and  addi 
tions  made  in  the  present  edition.  For  the  sake  of  greater 
clearness  various  Latin  passages,  that  seemed  obscure'  as 
they  stood,  have  been  translated  into  English.  Besides 
other  changes  and  additions,  extracts  from  the  laws  of  the 
United  States  concerning  matters  under  discussion  have 
been  added.  Again,  since  the  publication  of  the  first 
edition,  the  decrees  of  the  Plenary  or  National  Synod  of 
the  Bishops  of  Ireland,  held  in  Maynooth  in  1875,  have 
been  published.  This  necessitated  several  important 
changes.  Finally,  a  number  of  supplementary  notes  have 
been  added  regarding  the  mode  of  quoting  from  the 
Corpus  juris,  the  Vatican  Council,  appeals,  sentences  ex 
informata  conscientia,  etc.,  etc.  We  take  this  opportunity 
to  respectfully  express  our  very  sincere  thanks  for  the  kind 
letters  of  approval  received  from  a  number  of  prelates. 
We  also  beg  to  acknowledge  the  very  valuable  assistance 
so  cordially  extended  to  us  by  several  eminent  theologians 
in  the  preparation  both  of  the  first  and  second  editions  of 
the  present  work.  Finally,  we  gratefully  appreciate  the 
liberal  patronage  bestowed  upon  the  work. 

o      r>      o 

JANUARY  r,  1878. 


PREFACE  TO  THE  THIRD  EDITION, 

REVISED.  AT  ROME. 


IN  presenting  this  third  edition  to  the  Reverend  Clergy 
and  to  Seminaries  it  seems  proper  that  we  should  say  some 
thing  in  relation  to  the  examination  to  which  the  "  Elements  " 
was  submitted  in  Rome.  The  attacks  made  upon  the  work 
from  various  quarters,  as  well  as  a  desire  to  ascertain  and 
conform  to  the  views  entertained  in  Rome  with  regard  to  cer 
tain  questions,  caused  us  to  send  a  copy  of  the  "  Elements  " 
to  His  Eminence  Cardinal  Simeoni,  Prefect  of  the  Propa 
ganda,  with  the  request  that  it  be  thoroughly  examined. 
His  Eminence  was  graciously  pleased  to  accede  to  our  peti 
tion,  and  accordingly  appointed  two  Consultors,  doctors  in 
canon  law,  to  examine  the  "  Elements  "  and  report  to  him. 
The  Consultors,  after  examining  the  book  for  several  months, 
made  each  a  lengthy  report  to  the  Cardinal-Prefect,  who 
kindly  transmitted  both  reports  to  us  with  a  recommenda 
tion  that  the  suggestions  of  the  Consultors  be  taken  into  con 
sideration  in  our  next  edition.  That  we  have  scrupulously 
conformed  to  His  Eminence's  .recommendation  will  be  seen 
from  the  corrections  made  in  numbers  6,  21-35,  ^9,  190,  191, 
196,  203,  337,  338,  455,  460,  482,  483,  503,  504,  505,  535,  53$ 
659,  and  on  page  433. 

One  of  the  reports  is  written  in  Latin,  the  other  in  Italian. 
The  former  gives  the  result  of  the  Consultor's  examination 


ziii 


xiv  Preface. 

of  the  book  itself;  the  latter  deals  with  the  criticisms  made 
upon  it  in  several  articles  of  the  Catholic  Universe  of  Cleve 
land,  O.*  Both  documents,  together  with  a  translation  of 
the  Italian,  follow  on  the  succeeding  pages. 

While  we  do  not  pretend  to  construe  these  document? 
into  a  positive  approbation  of  our  work  by  the  Sacred  Con 
gregation  of  the  Propaganda  or  its  illustrious  Cardinal-Pre 
fect,  no  one  will  deny  that  the  examination  and  report  of  the 
Roman  Consultors  constitute  a  strong  guarantee  of  the  cor 
rectness  of  our  work  and  its  conformity  to  sound  ecclesias 
tical  jurisprudence. 

Other  changes  of  considerable  interest  and  no  little  im 
portance  have  been  made  in  the  present  edition,  chiefly  in 
regard  to  the  status  of  Missionary  Rectors  and  parishes  in 
this  country,  especially  as  determined  by  the  instruction  of 
the  Propaganda  dated  July  28,  1878,  establishing  Commis 
sions  of  Investigation  with  us,  as  will  be  seen  by  a  reference 
to  numbers  256,  259,  260,  261,  266,  294,  395,407,412,417, 
418,  419,  420,  443,  645,  648. 

In  conclusion,  we  beg  to  apologize  for  the  delay  in  the 
publication  of  the  second  volume  of  the  "  Elements."  We 
hope  to  be  able  to  complete  it  in  a  year  from  now. 

S.  B.  S. 

ST.  JOSEPH'S  CHURCH,  PATERSON,  N.  J., 

Feast  of  the  Immaculate  Conception,  1880. 


*  These  articles  were  afterwards  published  in  pamphlet  form  under  the 
title  "  Points  in  Canon  Law,"  by  Rev.  P.  F.  Quigley,  D.D.  Our  reply  is  en 
titled  "  Counter- Points  in  Canon  Law." 


PREFACE  TO  THE  SIXTH  EDITION. 


SINCE  the  lact  (fifth)  edition  of  this  volume  was  pub 
lished,  a  very  important  event  has  taken  place.  We  allude 
to  the  holding  of  the  TJiird  Plenary  Council  of  Baltimore,  in 
1884.  This  Council  marks  a  new  era  in  the  history  of  the 
Church  in  the  United  States.  It  is  owing  to  the  celebration 
of  this  Council  that,  although  the  last  edition  of  this  volume 
has  been  exhausted  for  some  time  past,  we  have  delayed  the 
new  edition  till  after  the  publication  of  the  Third  Plenary 
Council,  so  that  we  might  be  able  to  embody  in  it  the  new 
decrees. 

The  Second  Plenary  Council  of  Baltimore  expresses,  in 
a  number  of  places,  the  desire  to  introduce  as  soon  as  possi 
ble  the  general  discipline  of  the  Church  also  here.  This 
desire  has  been,  in  a  measure,  fulfilled  by  the  Third  Plenary 
Council  of  Baltimore.  The  legislation  of  this  Council  is 
framed  on  the  lines  drawn  by  the  sacred  canons.  The  mis 
sionary  condition  of  the  Church  with  us  has,  to  a  great  ex 
tent,  passed  away,  except,  perhaps,  in  the  far  West  and 
extreme  South.  Consequently  the  peculiar  and  exceptional 
laws  which  obtained  formerly  and  which  were  adapted  to 
our  missionary  status  have  also,  in  a  measure,  passed  away, 
and  given  place  to  laws  which,  if  not  altogether  identical 
with,  are  nevertheless  similar  to  and  approximative  of  the 
laws  that  govern  the  entire  Church.  The  first  great  and 
decisive  step  in  the  direction  of  the  general  law  has  been 
taken.  The  second  and  perhaps  last  step  will  be  made  in 


xvi  Preface. 

the  next  Plenary  Council.  All  great,  important,  and  radical 
changes  are,  as  a  rule,  brought  about  gradually,  not  of  a 
sudden.  Under  the  wise  legislation  of  the  Third  Plenary 
Council,  the  Church  of  this  country  will  expand  and  flourish 
more  wonderfully  than  ever.  Hence,  when  the  next  Na 
tional  Council  meets,  it  will  find  itself  enabled  to  perfect 
and  crown  the  work  so  well  begun  by  its  predecessor. 

The  decrees  of  the  Third  Plenary  Council,  especially  those 
relating  to  the  election  of  bishops,  to  diocesan  consultors, 
the  irremovability  of  rectors,  the  appointment  of  irremovable 
rectors  bv  competitive  examinations,  diocesan  examiners, 
the  admission  into  a  diocese,  the  exeat,  regulars,  the  man 
agement  of  seminaries,  the  form  of  trial  in  criminal  and  dis 
ciplinary  causes  of  ecclesiastics,  derive  a  special  weight  and 
significance  from  the  fact  that  they  were  proposed  by  the 
Holy  See  itself,  in  the  Conferences  held  at  Rome  in  Novem 
ber,  1883,  between  the  cardinals  of  the  S.  C.  de  P.  F.  and 
our  prelates.  In  these  Conferences  the  framework  of  the 
legislation  of  the  Third  Plenary  Council  was  drawn  up. 
This  framework  formed  the  basis  of  the  Council's  delibera 
tions,  and  was,  with  some  modifications,  adopted  and  filled  up. 

The  present  volume  has  been  thoroughly  revised  in  accord 
ance  with  the  new  decrees  of  the  Third  Plenary  Council  of  Bal 
timore.  The  main  alterations  rendered  necessary  by  the  new 
decrees  refer  to  the  new  mode  of  electing  bishops,  to  the 
new  irremovable  rectors,  their  appointment  by  concur sus,  and 
their  dismissal  for  canonical  cause ;  to  the  present  status  of 
the  other  rectors,  who  are  not  irremovable,  the  admission 
into  a  diocese,  and  rights  and  duties  of  deputies  for  the 
management  of  seminaries.  All  these  questions  are  accu 
rately  explained.  To  facilitate  references,  the  principal 
places  where  these  questions  are  treated  are  marked  with 
an  index-hand. 

We  have  also  added,  at  the  end  of  the  book,  an  entirely 
-new  treatise,  of  great  practical  importance,  on  the  neiv  dioce- 


Preface.  xvii 

san  consultors  as  established  by  the  Third  Plenary  Council  of 
Baltimore. 

It  will  be  seen  from  the  front  page  that  this  work  was 
first  published  with  the  imprimatur  of  the  late  Cardinal 
McCloskey.  As  the  present  (sixth)  edition  has  been  com 
pletely  revised  and  contains  many  very  important  changes 
in  accordance  with  the  new  legislation  of  the  Third  Plenary 
Council  of  Baltimore,  we  have  submitted  it  to  His  Grace  the 
present  Archbishop  of  New  York,  in  whose  archdiocese  it 
is  published.  Upon  the  report  made  by  the  Very  Rev.  Dr. 
Gabriels,  President  of  St.  Joseph's  Provincial  Seminary, 
Troy,  N.  Y., — -the  censor  appointed  for  this  work, — the  im 
primatur  was  given  by  the  Most  Rev.  Archbishop. 

We  also  feel  greatly  honored  by  the  Imprimatur  of  His 
Grace  the  Most  Rev.  Archbishop  of  Cincinnati,  and  we 
gratefully  acknowledge  the  cordial  benevolence  and  gracious 
kindness  with  which  it  was  granted. 

In  a  few  months  we  expect  to  publish  the  new  edition  of 
the  second  volume  of  this  work.  It  will  be  completely  re 
vised,  in  accordance  with  the  new  form  of  trial  laid  down  in 
the  last  Instruction  of  the  S.  C.  de  P.  F.  Cum  Magnopere  of 
1884.  Besides,  we  intend  to  issue,  simultaneously  with  the 
second  volume,  a  special  and  separate  treatise  on  this  new 
form  of  trial.  The  third  and  last  volume  of  these  "  Elements" 
will  be  given  to  the  public  a  short  time  afterwards. 

PATERSON,  N.  J.,  Feb.  20,  1887. 


PREFACE  TO  THE  SEVENTH  EDITION. 


THE  unusual  favor  with  which  this  work  has  been  re 
ceived  both  here  and  abroad  has  stimulated  us  to  make  it 
still  more  worthy  of  this  patronage.  In  the  present  edition 
we  have  made  additions  and  alterations  which  will  make  the 
volume  even  more  accurate  and  reliable  than  the  former 
editions.  A  number  of  printer's  mistakes,  which  were  over 
looked  in  the  previous  editions,  have  been  corrected  in  this 
edition.  Among  other  important  matters,  we  have  added 
an  interesting  outline  of  the  manner  in  which  ourconsultors 
and  irremovable  rectors  proceed  in  electing  bishops,  as  set 
forth  in  the  Third  Plenary  Council  of  Baltimore,  and  we  show 
wherein  our  procedure  agrees  with  or  differs  from  that 
laid  down  by  the  general  law  of  the  Church. 

May  12,  1889. 


PREFACE  TO  THE  EIGHTH  EDITION. 


IN  this  new  edition  we  have  entirely  rewritten  the  article 
on  the  publication  of  ecclesiastical  laws,  especially  Papal,  em 
bodying  in  our  new  article  the  teaching  of  the  most  recent 
approved  canonists.  The  chapter  on  ecclesiastical  customs 
has  been  in  great  part  remodelled  and  improved.  We  have 
also  made  considerable  changes  in  the  chapter  treating  of 
the  division  of  parishes,  and  of  missionary  quasi-parishes 
with  us,  in  Ireland,,  England.  Scotland,  and  other  countries 


Preface.  xix 

similarly  circumstanced.  The  article  on  Papal  Consistories 
has  also  been  completely  rewritten,  and  we  have  added  im 
portant  explanations  on  the  manner  in  which  the  Sovereign 
Pontiffs  expedite  the  business  of  the  Catholic  world.  These 
new  features,  we  hope,  will  render  the  present  edition  even 
more  useful  than  the  former  ones. 
PATERSON,  March  19,  1891. 


PREFACE  TO  THE  NINTH  EDITION. 


SINCE  the  last  edition  of  this  work  was  published,  a  most 
important  event  has  taken  place  in  this  country.  We  allude 
to  the  establishment  of  the  Apostolic  Delegation,  in  our  midst, 
by  our  present  great  Pontiff,  Leo  XIII.  Hence  we  have 
thought  it  opportune  to  set  forth,  in  this  new  edition,  on 
page  297  sq.,  at  some  length,  and  with  as  much  accuracy  as 
possible,  the  origin  and  history  of  Apostolic  Delegations ;  their 
various  kinds  ;  their  powers  and  prerogatives,  whether  by  vir 
tue  of  their  general  or  special  commissions,  especially  at  the 
present  day;  their  support  or  maintenance ;  the  recall,  resigna 
tion,  etc.,  of  the  Apostolic  Delegates,  Auditors,  and  Secre 
taries  ;  the  office  of  the  auditor  and  of  the  secretary  of  the 
Apostolic  Delegation. 

We  have  also  added,  on  page  231,  a  very  important 
recent  decision  of  the  S.  C.  de  Prop.  Fide,  in  regard  to  eccle 
siastics  assigning  to  laics  pecuniary  claims  against  other  ecclesias 
tics,  for  the  purpose  of  bringing  suit  in  the  secular  court  for 
the  recovery  of  the  claim. 

Besides,  on  page  284,  we  have  more  accurately  defined 
the  powers  of  the  College  of  Cardinals  during  the  vacancy  of  the 
chair. 


xx  Preface. 

Again,  on  page  288,  we  have  completely  rewritten  the 
article  on  the  Roman  tribunals,  particularly  the  Apostolic 
Penitentiary,  Datary,  Chancery,  and  Secretariate  of  Briefs. 

Finally,  we  have  added  in  the  Appendix  the  Brief  of 
Pope  Leo  XIII.  establishing  the  Apostolic  Delegation  in 
this  country. 

These  changes  and  corrections,  we  trust,  will  make  this 
new  edition  even  more  interesting  than  the  former  ones. 

S.  B.  SMITH. 

PATERSON,  May  2,  1893. 


LETTER  OF  His  EMINENCE  CARDINAL  SIMEONI,  PREFECT  OF  THE 
S.  C.  -DE  PROP.  FIDK,  ROME,  ENCLOSING  THE  REPORTS  OF  THE 
ROMAN  CONSULTORS  WHICH  FOLLOW. 

N.   i.  RENDE    DOMINE. 

Hisce  adnexum  ad  Te  transmitto  folium  nonnullarum  animad- 
versionum,  quas  viri  juris  ecclesiastic!  periti  meo  rogatu  fecerunt 
in  Librum  a  Te  editum  cui  titulus  "  Elements  of  Ecclesiastical 
Law."  Bonum  esset  et  satis  ut  videtur  opportunum,  ut  de  iis 
rationem  in  nova  ejusdem  operis  editione  habeas. 

Intense  precor  Deum  ut  Tibi  bona  quaeque  largiatur. 
Romae  ex  aedibus  S.  Cofignis  de  Propda  Fide,  die  21  Aprilis, 
1879. 

D.  T.. 

Addictus, 
JOANNES  CARD.  SIMEONI,  Praefectus. 

REV°.  S.  B.  SMITH,  D.D. 

J.  B.  AGNOZZI,  Secret. 


XXI 


REPORT   AND    ANIMADVERSIONS 

Of  the  two  Roman  Consultors  appointed  by  His  Eminence  Cardinal 
Simeoni,  Prefect  of  the  Prop-iv<*nda,  to  examine  the  "Elements." 

I. 

ANIMADVERSIONES 

IN    LIBRUM     CV1,     TITULUS     "ELEMENTS     OF    ECCLESIASTICAL   LAW,"    BY    REV. 

DR.    SMITH. 

De  memo  plane  insigni  cl.  Auctoris  tam  rriulta  legi  possunt  testimonia  in 
fronte  operis,  ut  siquid  illis  addere  aut  demere  vellem,  temeritatis  notai-  non 
effugerem.  Quod  si  spiritum  ejusdem  Auctoris  cognoscere  cup:mus.  praeter 
alia  multn,  sufficit  inspicere  ea  quae  passim  disputat  de  auctoritate  Romani 
Pontificis  turn  in  genere,  turn  nominatim  in  materia  concordatorum  (n.  105,  p  ig. 
Si  sq.)  ubi  eidem  Romano  Pontifici  veram.  propriam  et  effectivam  deroganc'i 
po  estaiem  asserit,  quam  quidem  recentiores  immerito  ei  abjudicant.  Hue 
etiam  pertinent  quae  idem  auctor  libere  praedicat  dc  Dominio  Temporal;  vn. 
484,  p;ig.  230),  etc.  Occurruni  tamen  nonnulli  loquendi  modi,  qui  non  omni 
bus  aeque  placere  possunt  :  quos  proinde  (ut  Superiorum  desiderio  satisfa- 
ciam)  infra  excribarn,  adjectis  cum  opus  fuerit,  brevissimis  animadver- 
sionibus. 

I.  (N  189  p.  82.)  "  Hierarchia  ecclesiastica  nitione  potestatis  clericis  col- 
latae,  dividitur  in  hierarchiam  Magisterii,  hierarchiam  jitrisdictionis  et  hierar- 
chiam  otdinis ;  siquidem  ecciesiarticn  potestas  complectitur  :  i°,  potestatem 
docendi  ;  2°,  gubernandi  ;  3°,  obeundi  sacras  !unctiones,  idest  exercencli 
potestatem  ordinis  Quia  vero  hierarchia  magisterii  vtrtuafiter (sic) continetut 
in  hierarchia  jurisdictionis,  canonistae  plerique  omnes  unice  distinguunl 
hierarchiam  ordinis  et  jurisdictionis." 

(N.  191,  p.  84.)  '•  Ex  hac  parte  quidam  scriptores  peccant  excessu,  dum  affir- 
inant  potestatem  jurisdictionis  essentiality-  differre  a  potestate  ordinis  ;  quidam 
autem  defectu,  asserentes  ejusmodi  potestates  ne  accidentaliter  quidem  inter 
se  distingui  aut  separari  posse." 

"  Accurata  rei  notio  haec  esse  videtur  :  hieraichiam  ecclesiae  essentialiter 
unam  esse  ;  hierarchiam  vero  aut  potestatem  ordinis  et  jurisdictionis  inter  se 
differre  tantum  in  eo,  quod  sint  formae  aut  modi  (sic)  unius  ejusdemque 
hierarchiae.  Dum  itaque  binae  potestates  essentialiter  disjunctae,  separatae 
aut  distinctae  non  sunt,  nihilominus  separabiles  sunt,  adeoque  saltern,  acci 
dentaliter  ab  invicem  distinguuntur." 

(N.  176,  p.  87.)  "  Distinctio  ordinis  et  jurisdictionis  a  scholasticis  haec  as- 
signatur,  quod  potestas  ordinis  respicit  corpus  Christi  reale  in  SS.  Eucharis- 
tia,  potestas  jurisdictionis  corpus  mysticum — i.  e.,  fideles.  Quae  distinctio 

XXIII 


XXIV 


Consultors  Report. 


licet  quoad  substantiam  legitima  (though  correct  in  the  main),  minium  urgeu 
non  debet,  ac  si  radicalem  differential!!  utriusque  potestatis  innueret." 

"Nam  quemadmodum  in  SS.  Trinitate  adsunt  tres  personae  et  una  tantum 
substantia  ;  ita  tres  dantur  rami  seu  species  hierarchiarum,  idest  potestas  ma- 
gisterii,  potestas  ordinis  et  potestas  jurisdictionis  ;  et  nihilominus  nonnisi 
un*  dztur  centra/is  fotestas  (sic)  seu  hierarchia.  Igitur  hujusmodi  potestates 
accidentaliter  quidem,  (sic)  non  radicaliter  aut  fundamentaliter  ab  invicem 
distinguuntur."  Cf.  etiam,  si  placet  n.  536,  p.  272,  ubi  triplicem  hanc  distinc- 
tionem  ad  episcopalem  potestatem  translatam  videas. 

In  his  omnibus  (quae  a  recentiori  quodam  scriptore  eoque  laico  desumpta 
sunt)  Auctor  non  obscure  recedtt  a  communi  usu  atque  auctoritate  canonista- 
rum  et  scholasticorum.  Quaeres,  praeter  alia  incommoda,  non  parum  implicat 
atque  enervat  demonstrationem  catholicam  de  primatu  jurisdictionis  Petro 
collate,  ut  videre  est  apud  eumdem  D.  Smith,  n  460,  pag.  204  seq.  Cf.  Tar- 
quini,  Instit.  i.,  4,  in  nota. 

Attamen  haec  eadem  facile  reduci  possunt  ad  communem  doctrinam,  si 
cautiorem  loquendi  modum  adhibemus,  qualem  habet  prae  caeteris  Valen- 
tia,  De  Fide,  disput.  i.,  qu.  i°,  punct.  7,  §  25,  pag.  234  ibi :  ''Emmet,  et 
Ecclesiae  ordo  maxime  in  differentia  atque  varietate  vitae,  statuum  et  officio- 
rum  seu  administrationum  quae  in  ilia  continentur,"  .  .  .  Eoque  refert  Va- 
lentia  Dionysium  Areopagitum,  qui  actus  hierarchiae  tripartite  dividit  in 
lib.  de  Ecclesiastica  Hierarchia,  c.  5  et  6.  Docet  namque  ad  Ecclesiasticum 
Ministerium  tria  pertinere,  nempe purgare,  illuminare  zlperficere.  Et  quae  se- 
quuntur  plane  opportunissima.  Cf.  eod.  loc.  §  30,  ubi  idem  Valentia  prima- 
tum  Petri  probat  ex  Jo.  xxi.* 

II.  (N.  202,    pag.   89.)    "  Ecclesia  infligere  potest  saltern  leves  corporales 
punitiones,  ut  reclusio  in  monasterium,  incarceratio  et  similes,  non  tamen  poe- 
nam  mortis." 

Quod  ultlmutn  asserendum  non  esset,  sine  limitatione  aut  declaratione  de 
qua  Tarquini,  i.,  n.  47,  p.  48,  i)  ad  7am.f 

III.  (N.  455,  pag.  199.)  "  In  re  mere  temporal!  et  civili  dubitari  nequit  quin 
ab  ecclesiastico  tribunali  ad  civile  licite  appelletur"  (sic). 

Assertio  redditur  valde  difficilis,  nisi  forte  addatur  hypothesis,  quam  sub- 
oscure  innuit  Phillips  in  loco  heic  citato  ab  Auctore  :  nempe  quod  judex 
ecclesiasticus  ex  quadam  constitutione  locali  habeat  etiam  tribunal  quoddam 
mere  civile.:]: 

IV.  (N.  483,  p.  229.)  "  Meminisse  debemus  depositiones  principum  fuisse 
quidem  artus  Pontificis,  non  vero  infallibiles   definitiones,  quas  Catholicus  tan- 
quam  definitiones  de  fide  accsptare  debet,  " 

Quasi  vero  ab  auctoritate  Pontificis  nonnisi  definitiones  fidei,  Catholicus 
tcceptare  teneatur.§ 

V.  Quod  vero  ibidem  additur  "  mundum,  Catholicum  quin  etiam  christia- 
num    esse    desiisse,"   explicari    debet    ex    iis    quae    Auctor    praemiserat   (in 


*  See  corrections  under  n.  189,  191,  196.  t  See  corrections  under  n.  203,  204., 

$  See  correction  under  n.  455.  §  See  correction  under  n.  483. 


Consultors  Report.  xxv 

7>»aeced.  n.  482,  p  227).  quae  tamen  licet  a  quibusdam  rrcentioribus  fidentius 
praedicuntur,  minus  vera  sunt/  Nam  etsi  mundus  non  sit  amplius  catholicus 
et  christianus,  secundum  regimen  sociale  laicum,  attamen  formaliter  catholicus 
et  christianus  est  secundum  regimen  sociale  ecclesiasticum,  nihilque  prohibet 
quominus  Papa,  ut  antea,  benedicere  possit,  nedum  singulis  fidelibus  distri 
butive,  sed  etiam  Urbi  et  Orbi  collective.  Ceterum  ilia  assertio  eo  vel  mngis 
miranda  est  in  homine  qui  nostris  hisce  temporibus  tam  serio  recolit  exclusi- 
vam  principum  in  Conclavi  !  (n.  337,  p.  141).* 

VI  (N.  32,  pag.  22  )  "  Sententia  tenens  quasdam  leges  Pontificias  ad  disci- 
plinam  spectantes,  de  facto  non  obligare  antequam  acceptentur,  (sic)  modo  hoc 
tribuatur  liberae  voluntati  Pomificis,  licita  est,  et  sustinetur  a  multis  doctori- 
bus  Catholicis." 

Propositio  desumpta  est  ex  Bouix,  de  Principiis,  P.  ii.,sect.  2,  cap.  5,  §  I, 
p.  219.  Sed  revera  auctores  qui  pro  ea  allegantur,  vel  ad  rem  non  faciunt, 
vel  etiam  affumant  contrarium,  ut  egregie  ostendit  P.  Sanguineti.  Et  certe 
jautius  et  concinnius  loquendum  esset,  cujus  rei  specimen  proferri  potest 
ex  Zallin.  tit.  de  Constit.,  §  170.  Dico  igitur  potest,  si  lex  pontificia 
generalis  Romae  promulgata  in  provinciis  non  proinulgelur,  subditus  ab  ejus- 
dem  observatione  regulariter  excusari,  ex  praesumpta  voluntate  Summi  Ponti- 
ficis  non  urgentis  observaiionem  in  provinciis.  Haec  praesumptio  fundatur  in 
jure  (§  125),  et  quia  episcopi  non  pro  meris  executoribus  pontificiarum  legum, 
sed  pro  veris  pastoribus,  debita  potestate  praeditis  habendi  sunt,  a  qu'bus 
Deus  de  commissis  a  Se  ovibus  rationem  exiget.  Et  §  124:  "  Si  istiusmodi  leges 
(quae  ad  disciplinam  spectant)  in  diocesi  non  promulgentur,  praesumi  potesi 
Fontificem  nolle  obligare  diocesanos,  vel  ipsum  potius  Ordinanum  de  dilficultate 
leges  hoc  loco  promulgandae  aut  observandae  cum  Secle  Apostolica  egisse 
aut  agere,  ut  propterea  ejus  obligatio  interea  suspensa  maneat." 

Et  juxta  ejusmodi  observationem  corrigenda  t  .':ent  turn  ea  quae  idem  Dr. 
Smith  subjicit  in  cit.  n.  32  et  seq.,  turn  ea  quae  praemiserat  n.  26  (pag.  19)  ma- 
gis  universaliter  quam  Bouix.f 

VII.  (N.  4,  p.  10.)  Jus  canonicum  publicum  describitur  quod  sit  :  "  Legum 
systema  quibus  Ecclesiae  Constitutio  definitur." 

Observo  Emum  Tarquini  a  quo  desumpta  est  haec  definitio  (cit.  Instil.  \., 
n.  3)  non  dividere  jus  canonicum  in  publicum  et  privatum,  sed  jus  ecclesiasti- 
<um  in  publicum  (ut  supra)  et  privatum  seu  canonicum  proprie  dictum  (Tar 
quini,  n.  4,  p.  3)4 

II. 
EMINENZA    RMA. 

Ho  esaminato  secondo  li  venerati  ordini  di  Vostra  Eminenza  il  capo  de  ju- 
ribus  et  officio parochown  degli  Element!  di  Dritto  Ecclesiastico  del  Rudo  Dr. 
Smith,  opera  publicata  in  Nuova  York  coll  approvazione  del  Vescovo  di 
Newark,  a  cui  £  soggetto  1'Autore,  e  del  Card,  Arcivescovo  di  Nuova  York  ;  ed. 

*  See  corrections  under  n.  482,  483,  and  337.  f  See  corrections  under  n.  27-28. 

t  See  correction  under  n.  4. 


X  X  \  1 


Consul  tors  Report. 


ho  esaminato  secondo  1'  istesso  incarico  avuto  la  crltica  che  di  que'.  capo  e 
stata  fatta  in  sei  ietiere  publicate  in  un  giornale,  alcune  colla  firma  del  Rndo 
Dr  Ouiglev,  altre  coile  iniziale  T.  M.  Ed  avvegnache  siano  da  rilevare  parec- 
chie  inesattezze  c  purqualche  erronea  sentenza  (e  certo  non  facile,  scrivendo 
libri  di  tal  genere,  schivar  sempre  ogni  errore)  debbo  pur  dichiarare  secondo  il 
mio  debole  parere  che  quest'  opera  del  Rndo  Dr  Smith  e  di  gran  merito  e 
scritta  con  ispirito  eccellente  e  veramcnie  romano.  Per  il  che  merital'Autore 
ogni  encomio,  senHo  egli  certo  uno  de'  primi  che  io  mi  sappia  che  abbia  con 
gran  lena  e  diligcnza  intrapreso  a  scrivere  un'  opera  di  dritto  canonico  nelle 
parti  dell'  America  del  Nord,  essendo  assai  difficile  di  applicare.  csiendere  u 
restringere  i  principi  general!  per  quei  luoghi,  come  per  tuttei'altre  Mission! 
che  sono  ancor  fuori  per  molt!  capi  del  dritto  comune.  Se  ho  qualche  dispia- 
cere  di  quest'  opera,  si  e  che  sia  scritta  ri  lingua  inglese,  e  che  un  opera  del 
tutto  ecclesiastica  e  massimainente  indirizzata  agli  ecclesiastic!,  non  sia 
scritta  piu  tosto  nella  lingua  della  chiesa.  Or  v<  -ngo  senza  piu  a  discutere  il 
merito  della  critica  e  censura  fatta  al  libro  dell'  autore.  Or  questa  censura  e 
critica  e  intera  a  dimostrare  chel'Auiore  perduecapi  troppoo  mancoattribuis- 
ce  all'  autorita  de'  Parrochi  in  America.  Si  not!  che  la  Parrochi  propnam-  nte 
non  sono,  ma  Rettoii  di  chiese  e  di  Mission!.  L'Autore  li  chiama  Pastor,  atte 
nendosi  all'  uso  di  molii,  ma  un  tal  nome  sendo  comune  a'  protestanti  e  comu- 
nemente  attribuito  a  loro  pseudo  ministii  del  culto,  non  dovrebbe  certo  aver 
luogo  nel  linguaggio  preciso  d'un  canonista  cattolica.  Ma  la  e  questa  ques- 
tione  di  nomi  ;  venamio  alle  cose. 

La  prima  critica  che  si  fa  all'  A.  (Lette-a  prima  firmata  T.  M.)  si  e  ch' 
egli  ntenga  non  esser  confermati  dalla  S.  Sede  gli  atti  del  secondo  Con 
cilio  plenano  di  Baltimora.  Tutto  cio  mi  pare  che  abbia  tutte  le  ragioni 
1  Autore,  e  nessun  fondamento  la  critica.  Imperoche  Vostra  Eminenza 
sa  bemssimo  che  la  S.  Sede  non  e  solita  generalmente  confermare  verun 
concilio  nazionale  n  provinciale,  ma  sohanto  riconoscere  gli  atti,  e  pre- 
scnvere,  se  e  d'uopo,  certe  correzioni.  Nondimeno  in  quei  iuoghi  o  nelle 
missioiii,  che  come  ho  detto,  son  fuori  del  dritto  comune,  sendovi  bisogno  d'un 
dritto  qualunque,  1'a  la  S.  Sede  confermati  parecchie  volti,  e  cosi  confenno 
i  quattro  provincial!  d'Inghilterra,  il  primo  plenario  d'Irlanda,  e  il  primo  ple 
nano  di  Baltimora.  Ma  il  secondo  plenario  di  Baltimoia,  come  gia  il  secon 
do  panmente  plenario  d'Irlanda  non  venne  confermato  dalla  S  Sede  ma 
latte  le  opportune  correzioni  da  questa  S.  Congregazione,  fu  semplicemente 
nconosciuto  e  ordinato  che  si  publicasse  Pertanto  si  ha  il  decreto,  allora 
emanate  da  questa  S.  Congregazione  di  Propaganda,  e  sottoscritto  da  Vostra 
Eminenza  Rma,  allora  Segretario  ;  D^retum  dico,  recognitions,  m  n  gia  app  o- 
batioms,  ect.  II  cntico  igno.a  questa  distinzione,  o  confonde  insieme  due 
cosi  attato  distinte,  che  sono  la  ricognizione  e  I'approvazione 
T  »T\SeC|OI?da  censura  che  si  fa  al  libro  dell'  Autore  (Lettera  scconda  firmata 
1.  M.)  colpisce  una  sua  dottrina  o  sentenza  cosi  formulata  :  La  euirisdizione 
legata  puo  nvocarsi  senxauna  causa.  Ma  i  Pas-ori  son  delegati  e  nonver.- 
mente  Fanochi  ;  e  dunque  ponno  rivocarsi  senza  una  causa.  Ouesta  conclu- 
sione  non  ammette  il  censore,  e  la  reputa  uffensiva  a!  dritti  di  quali  1'airochi 
oRettondelle  chiese.  Ma  anche  qui  il  critico  o  censore  confonde  una  cosa 
A  '  1°  ,veramente  ignora  una  distinzione  ch'  e  necessario  fare.  L'Autore 
par  a  di  validita  d  una  tal  rivoca,  ed  ha  ragione.  Imperocche  se  i  quasi  Par- 
VP«ron°n  ST  parrochi  Propriamente,  e.  dunque  son  sempre  amoVibili  dal 
covo,  anche  senza  una  gius;a  ragione.  In  tal  caso  agira  il  Vescovo  in- 
justamente,  ma  non  sara  senza  effetto  il  suo  atto  di  revoca.  E  che  il  nostro 
A  ruenga  certo  illecito  una  tal  revoca,  abbenche  non  invalida,  si  par  chiaro 


™-oH,  rua       r°repaff   I79)11  ^decreto  Monetnus  del  secondo  Concilio 
Baltimora,  ove  viene  anche  ordinato  che  i  quasi  parrochi  si   dcb- 

^o-'vocareprevioprocesso.  e  che   il   rivocato  abbiafacolta  di  ricorrere  al 
o  U  peri  ore 

La  lerza  critica  (Lettera  torz2  firmata  Rndo  Dr.  Quigley)  ai  contrario  della 
prccedentc  va  a  fcri.e  il  nost.o   Autore  pcrmanco  anribuire  all    autor.ta  dtf 


Consultors*  Report.  xxvii 

Vescovi  sulla  stessa  questione  della  revoca  de'  quasi  Parrochi.  L'Autore  a  pag. 
381  propone  la  questione,  Come  ponno  esser  rimossi  i  Pastori  ratione  criminis? 
E  risponde  che  non  ponno  esser  rimossi  senza  un  giudizio  regulare  del  Ves- 
covo  e  di  due  preti  assunti  a  questo  officio.  In  conlerma  di  tale  risoluzione 
cita  il  Decreto  77  del  secondo  Concilio  plenario  di  Baltiuvora.  II  critico  rileva 
contra  il  nostro  A.  ch'  ei  deroghi  all  autorita  del  Vescovo,  supponendo  che 
non  possa  parimente  il  Vescovo  sospendere  il  parroco  ex  informata  conscientia. 

Ma  questa  deduzione  e  affatto  insussistente.  Si  legga  a  mo  d'esempio  il 
citato  Decreto  N.  77  del  Concilio  di  Baltimora,  e  si  ve  chiaro  che  qui  non 
si  parla  affatto  di  tale  sospensione  ex  infonnata  conscientia.  Potrebbe  percio 
dedurr'e  il  nostro  critico  che  la  si  excluda  parimente  in  questo  Decreto  ?  Che 
il  detto  Concilio  abbia  tigettato  una  regola  di  disciplina  cosi  rilevante,  san- 
cita  dal  sacro  Concilio  di  Trento?  Non  gia.  La  regola  dunque  sara  ancor 
questa  che  in  caso  di  sospensione  ex  informata  conscientia,  se  il  sospeso  si 
grava,  possa  ricorrere  alia  S.  Sede,  ma  non  appellare. 

La  quarta  critica  dell'  istesso  e  a  cio  che  deduce  1'Autore  a  pag.  no  e  nr. 
£  domanda  se  colla  sola  autorita  del  Vescovo  le  parrocchie  di  cui  sono  i  pastori 
amovibili  ad nutum  ponno  convertirsi  in  parrocchie  di  cui  non  sono  amovibili 
i  titolari,  e  vice  versa.  Risponde  che  de  jure  communi  cio  si  puo  far  solo 
coll'  autorita  della  S.  Sede  richiamandosi  al  decreto  del  Concilio  di  Balti 
mora.  Qui  si  noti  che  1'Autore  non  esclude  che  il  Vescovo  possa  formare  nuova 
parrochia,  anzi  a  pag.  109  lo  ammette  espressamente.  II  critico  confonde 
una  cosa  coll'  altra. 

La  quinta  critica  dell'  istesso  risguarda  il  valore  de'  decreti  dell"  Indice, 
che  1'Autore  discute  se  valga  in  quelle  parti  ;  in  cio  la  critica  e  fondata  e  1'A. 
si  scosta  alquanto  dall  insegnamento  romano. 

Dapo  aver  scritto  le  premesse  osservazioni,  rilevo  da  una  rivista  di  Ame 
rica,  che  gia  s'a  fatta,  e  s'a  ricevuta  con  gran  plauso  una  nuova  edizione  di 
quest'  opera.  Si  potrebbe  dunque  suggerire  che  per  un  altra  edizione  che 
forse  non  si  fara  aspettar  molto,  si  corregga  1'insegnamento  dell'  A.  rispetto 
n  decreti  dell'  Indice.* 

Ma  vi  e  un  errore  ancor  piu  notabile  da  corregere.  E'  dichiara  p.  391,  che 
il  Decreto  Tametsi  del  Concilio  di  Trento  sull'  impedimento  di  Clandestinita, 
non  obliga  i  protestanti,  ne  la  parte  Cattolica  che  contrae  con  un  protestante. 
Questo  e  errore  certamente  notabile  e  da  emendare  in  una  nuova  edizione.f 

TRANSLATION  OF  THE  CONSULTOR'S  REPORT  WRITTEN  IN 

ITALIAN. 

MOST  REV.  EMINENCE  :  In  accordance  with  the  venerated  commands  of 
Your  Eminence,  I  have  examined  the  chapter  de  juribus  et  officio  parochorum 
of  the  "  Elements  of  Ecclesiastical  Law,"  by  the  Rev.  Dr.  Smith,  a  work  pub 
lished  in  New  York,  with  the  approbation  of  the  Bishop  of  Newark,  to  whom 
the  author  is  subject,  and  of  the  Cardinal-Archbishop  of  New  York.  In  ac 
cordance  with  the  same  commands  I  have,  moreover,  examined  the  criticism 
which  haa  been  made  on  this  chapter  in  six  letters  or  communications  pub 
lished  in  a  certain  newspaper,  some  under  the  signature  of  the  Rev.  Dr. 
Quigley,  others  under  the  initials  T.  M.  Though  the  book  may  contain  some 
inaccuracies  and  even  erroneous  opinions  (and  certainly  it  is  not  an  easy  mat 
ter,  in  writing  books  of  this  kind,  to  entirely  avoid  errors),  yet  I  must  declare 
that,  in  my  humble  opinion,  the  work  of  the  Rev.  Dr.  Smith  is  possessed  oj  greai 
merit,  and  -written  in  an  excellent  and  truly  Roman  spirit.\  Hence  the  author  il 

*  See  correction  under  n.  503  sq.  t  See  correction  under  n.  391  and  on  page  433. 

*  The  italics  are  ours. 


xxviii  Consultors  Report. 

worthy  of  all  praise,  being  certainly,  as  far  as  I  know,  one  of  the  first  who  has, 
with  no  ordinary  labor  and  assiduity,  undertaken  to  write  a  work  on  Canon 
Law  for  the  United  States,  as  it  is  a  very  difficult  matter  to  apply,  extend,  and 
restrict  the  general  principles  of  ecclesiastical  law  as  well  in  those  parts  [the 
United  States]  as  in  all  missionary  countries,  which  in  many  respects  are  not 
under  the  general  law  of  the  Church.  If  I  have  any  fault  to  find  with  this 
work,  it  is  that  it  is  written  in  English,  and  that  a  work  altogether  ecclesias 
tical  in  character,  and  intended  chiefly  lor  ecclesiastics,  should  not  be  written 
rather  in  the  language  of  the  Church. 

I  now  proceed  without  delay  to  discuss  the  merits  of  the  criticism  or  cen- 
.sure  made  upon  the  author's  book.  This  criticism  or  censure  is  wholly  di 
rected  to  showing  that  the  author,  in  two  ways,  attributes  either  too  much  or 
too  little  to  the  authority  of  parish  priests  in  America.  Observe  that  in  the 
United  States  there  are  no  parish  priests  proper,  but  only  rectors  of  churches 
and  of  missions.  The  author,  in  accordance  with  the  usage  of  many,  calls 
them  pastors.  But  this  name,  being  common  among  Protestants,  and  gene 
rally  applied  to  their  pseudo-ministers  of  worship,  should  certainly  not  find  a 
place  in  the  concise  language  of  a  Catholic  canonist.  However,  this  is  a  ques 
tion  of  names  ;  let  us  come  to  things. 

The  first  criticism  which  is  made  against  the  author  (first  letter,  signed 
T.  M.)  is  that  he  holds  that  the  acts  of  the  Second  Plenary  Council  of  Balti 
more  are  not  confirmed  by  the  Holy  See.  Now,  it  seems  to  me  that  in  this 
question  the  author  is  perfectly  correct,  and  that  the  criticism  has  no  founda 
tion  whatever.  For  Your  Eminence  is  fully  aware  that  the  Holy  See  is  not 
accustomed  as  a  rule  to  confirm  any  council,  national  or  provincial,  but  that 
it  simply  revises  or  recognizes  the  acts,  and  prescribes,  if  need  be,  certain  cor 
rections.  Nevertheless  in  those  countries  or  in  missions  where,  as  I  have 
said,  the  common  law  of  the  Church  does  not  obtain,  there  being  need  of  some 
law,  the  Holy  See  has  sometimes  confirmed  those  councils.  Thus  it  con 
firmed  the  four  Provincial  Councils  of  England,  the  First  Plenary  Council  of 
Ireland  [Synod  of  Thurles],  and  the  First  Plenary  Council  of  Baltimore  But 
the  Second  Plenary  Council  of  Baltimore,  as  also  the  Second  Plenary  Coun- 
:il  of  Ireland  [Synod  of  Maynooth],  was  not  confirmed  by  the  Holy  See,  but 
simply  rev.sed  or  recognized,  and  ordered  to  be  published  after  the  opportune 
jrrections  had  been  made  by  this  Sacred  Congregation.  Hence  also  the  de 
cree  that  was  issued  at  the  time  by  this  Sacred  Congregation  of  the  Propa 
ganda  and  signed  by  Your  Most  Rev.  Eminence,  then  secretary,  was  a  decretum 
recognitions,  not  approbations,  etc.  The  critic  is  ignorant  of  this  distinction, 
and  confounds  two  things  altogether  distinct— namely,  revision  (or  recogni 
tion)  and  approbation. 

The  second  criticism  made  upon  the  author's  book  (second  letter,  signed 

T.  A. .)  is  against  a  doctrine  or  opinion  of  his  thus  formulated  :   Delegated  juris- 

• '  can  be  revoked  without  a  cause.     Now,  pastors  [in  the  United  States] 

are  delegates  and  not  parish  priests  in  the  proper  sense.       Hence  they  can  be 

recalled  without  cause.     The  critic  does  not  admit  this  conclusion,  and  consi- 

t  injurious  to  the  rights  of  the  parish  priests  or  rectors  of  churches  in 


Consultors1  Report.  xxix 


those  parts.*  But  herein  also  the  critic  or  censor  confounds  one  thin??  wi'h 
another,  or  rather  is  ignorant  of  a  distinction  which  it  is  necessary  to  make. 
The  author  speaks  of  the  validity  of  such  a  removal,  and  he  is  right.  For  ii 
those  parish  piiests  are  not  parish  priests  proper  they  can  always  be  removed 
by  the  bishop,  even  without  a  just  cause.  In  such  a  case  the  bishop  would 
act  unjustly,  but  his  action  in  removing  the  pastor  would  not  be  without  effect. 
That  our  author  holds  that  such  a  removal  would  certainly  be  illicit,  though  not 
invalid,  is  clearfrom  what  is  said  in  the  decree  Alonctnus  [No.  125]  of  the  Second 
Plenary  Council  of  Baltimore,  as  cited  by  the  author  (p.  179).  which  council 
[as  quoted  by  the  author],  moreover,  ordains  that  the  quasi-parish-priests  [of 
the  United  States]  should  not  be  removed,  save  upon  previous  trial,  and  that 
the  person  removed  has  the  right  to  have  recourse  to  the  superior. 

The  third  criticism  (third  letter,  signed  Rev.  Dr.  Ouigley),  contrary  to  the 
preceding  one,  is  made  against  our  author  for  attributing  too  little  to  the  au 
thority  of  bishops  on  the  same  question  of  the  removal  of  quasi-parish-priests. 
The  author,  on  page  381,  proposes  the  question  :  How  can  pastors  be  removed 
ratione  aimini?  He  answers  that  they  cannot  be  removed  without  a  regular 
trial  by  the  bishop  and  two  priests  appointed  to  that  effect.  In  proof  of  this  an 
swer  he  quotes  the  Decree  77  of  the  Second  Plenary  Council  of  Baltimore. 
Here  the  critic  objects  against  our  author  that  he  derogates  from  the  authority 
of  t^e  bishop,  as  ii  would  follow  from  his  teaching  that  in  like  manner  the 
bishop  cannot  even  suspend  parish  priests  ex  injormata  conscientia. 

But  this  inference  [of  the  critic]  is  destitute  of  any  foundation  whatever. 
Let  any  one  read,  for  example,  the  Decree  77  above  cited  of  the  Second  Plenary 
Council  of  Baltimore,  and  he  will  clearly  perceive  that  it  makes  no  mention 
whatever  of  suspensions  ex  informata  conscientia.  Could  our  critic,  on  that 
account,  infer  that  this  decree  likewise  repudiates  such  suspensions?  that 
the  above  council  has  rejected  so  important  a  disciplinary  measure,  sanctioned 
by  the  Council  of  Trent?  By  no  means.  The  rule,  therefore,  is,  that  in  case 
of  suspension  ex  informata  conscientia,  where  the  person  suspended  feels  him 
self  aggrieved,  he  can  have  recourse  to  the  Holy  See,  but  not  appeal. 

The  fourth  criticism  from  the  same  source  is  against  the  teaching  of  the 
author  on  pages  no  and  in.  There  the  latter  asks  whether,  by  the  sole  au 
thority  of  the  bishop,  parishes  whose  pastors  are  removable  ad  nutum  can  be 
changed  into  parishes  whose  titulars  are  not  removable,  and  vice  versa.  He 
answers  that,  dejure  communi,  this  can  be  done  only  by  authority  of  the  Holy 
See,  and,  in  proof  of  this,  points  to  the  Second  Plenary  Council  of  Baltimore. 
Observe  that  the  author  does  not  deny  that  the  bishop  can  form  new  parishes  ; 
on  the  contrary,  on  page  109  he  expressly  admits  this.  The  critic  confounds 
one  thing  with  another. 

*  That  the  Consultor's  exposition  of  our  doctrine  is  correct  will  be  clearly  seen  from  our 
"  Elements,"  No.  419,  etc.  When,  therefore,  the  critic  attacked  our  views  on  the  removal  of  our 
rectors,  by  placing  upon  the  word  "  invalid  "  a  construction  which,  as  we  show  in  our  '  *  Counter- 
Points,"  was  never  dreamt  of  by  us,  he  evidently  gave  the  Consultor  just  cause  for  attributing 
to  him  the  above  views.  If  the  critic's  position  was  perhaps  somewhat  misunderstood  by  the  Con- 
suitor,  he  has  nobody  to  blame  but  himself. 


xxx  Consultors*  Report. 

The  fi  th  criticism  of  the  same  critic  has  reference  to  the  force  of  the  de 
crees  of  the  Index,  whose  binding  force  in  the  United  States  is  questioned  by 
the  author.  On  this  head  the  criticism  has  a  foundation,  and  the  author  de- 
viaies  somewhat  from  the  Roman  teaching. 

After  having  written  the  foregoing  observations  I  learn  from  an  American 
review  that  anew  edition  of  this  work  has  already  been  published  and  re 
ceived  with  great  favor.  It  might,  therefore,  be  suggested  that  in  a  future  edi 
tion,  which  perhaps  will  soon  appear,  the  teaching  of  the  author  concerning 
the  decrees  of  the  Index  be  corrected. 

But  there  is  another  and  more  serious  error  which  should  be  conected. 
Ho  [the  author]  teaches  on  page  391  that  the  decree  Tametsi  of  the  Council  of 
Trent,  on  the  impediment  of  clandestinity,  does  not  bind  Protestants,  nor  a 
Catholic  contracting  with  a  Protestant.*  This  is  certainly  a  notable  error, 
and  should  be  corrected  in  a  new  edition. 


*  We  meant  that  this  was  the  case  where  the  Declaration  of  Benedict  XIV.  obtained.  But  we 
evidently  did  not  express  this  clearly,  and  thus  gave  the  Consultor  just  caus«  for  attributing  to  us 
the  above  erroneous  opinion. 


BOOK  I. 

ON    ECCLESIASTICAL    PERSONS. 


PART    I. 

ON    THE    PRINCIPLES    OF    CANON    LAW. 


CHAPTER   I. 

ON  THE  NAME,   DEFINITION,   AND    DIVISION  OF  CANON   LAW. 

ARTICLE    I. 
Various  Meanings  of  the  term,  Jus. 

1.  The  word  Jus  in  general  signifies :  I,  that  which  is  just 
and  equitable  or  in  harmony  with  the  natural,  divine,  and 
human  law  ; '  2,  the  right  of  doing  or  omitting  something,  as 
also  of  obliging  another  person  to  give,  perform,  or  omit  some 
thing;2  3,  the  science  of  law,  or  jurisprudence  ;  4,  finally,  it 
means  the  laws  themselves,  or  the  body  of  laws ;  thus  we  say, 
"  Corpus3  juris  canonici" — i.e.,  the  body  of  ecclesiastical  laws  ;* 
Corpus  juris  civilis — i.e.,  the  body  of  the  civil  or  Roman 
law.     In  this. latter  sense  chiefly  we  shall  use  the  word  Jus 
in  this  book. 

ART.  II. 
Division  of  Law  (Juris  in  varias  suas  species,  distributio). 

2.  Law  (jus)  is  divided,  i,  into  natural  (jus  naturale)  and 
positive.     The  jus  naturale,  according  to  Bouix,*  constat  iis 

1  Bouix,  De  Princip.  Jur.  Can.,  p.  5.     Paris,  editio  secunda. 
*  Craisson,  Man.,  n.  2.     Pictavii.  1872.  '  Bouix,  1.  c. 

4  Cf.  Salzano,  Lezioni  di  Diritto  Canonico,  vol.  i.,  p.  10.    Napoli,  1850. 
1  De  Princip.,  p.  6. 


£  On  the  Name,  Definition^  and 

'egibus  seu  obligationibus  quae  ita  necessario  fluunt  ex 
Dei  et  creaturarum  natura  ut.  rion  possint  non  existere. 
Positive  law  (jus  fositivuni)  is  made  up 6  of  laws  enacted  by 
the  free  will  either  of  God  or  of  men. 

3 2.  Positive  law  is  subdivided  into  divine  and  human, 

according  as  laws'  are  made  by  the  free  will  of  God  or 
of  men. 

4. 3.    Human  law  is  of  three   kinds :    ecclesiastical  01 

canon  law,  civil  law,  and  the  law  of  nations.  First,  the  law 
of  nations  (jus  gentium)  is  that  which  obtains  among  all,  or 
nearly  all,  nations.8  It  is  twofold :  primary  and  secondary. 
The  law  of3  nations,  in  the  proper  sense  of  the  term  (jus 
gentium  secundarium),  is  that  code  of  public  instruction 
which  defines  the  rights  and  prescribes  the  duties  of  nations 
in  their  intercourse  with  each  other.1"  In  this  sense,  the 
law  of  nations  bears  upon  the  rights  of  commerce,  of  am 
bassadors,  etc  ,"  and  is  now  called  international  law. 

Secondly,  civil  law  (jus  civile),  in  the  strict  sense  of  the 
term,  consists  of  positive  laws,  enacted  by  the  civil  authori 
ties  for I2  the  temporal  welfare  of  the  citizens  of  a  common 
wealth.  In  the  United  States,  laws  are  enacted:  I,  by  a 
Congress,13  consisting  of  a  Senate  and  House  of  Represen 
tatives — the  powers  of  Congress  extend  generally  to  all 
subjects  of  a  national  nature  ;  2,  by  the  legislatures  M  of  the 
various  States  ;  3,  by  the  city  councils.  Other  laws  in  force 
with  us  pertain  to  the  common  law,  some  to  the  statute 
law,  and  lf>  others,  finally,  to  the  Roman  or  civil  law. 

Thirdly,  ecclesiastical  law  (jus  canonicum)  is  the  third 
kind  of  human  law ;  of  this  law  we  shall  now  treat. 

•De  Princip.,  p.  6.  '  Bouix,  loc.  c.,  p.  7.  *  Bouix,  p.  7. 

"Cfr.  Reiff.,  Jus  Can.,  Prooem.,  n.  31.     Paris,  1864. 

10  Kent's  Comm.,  part  i.,  lect.  i.,  p.  i,  vol.  i.     New  York,  1832.     Cfr   Rei 
\.  c.,  n.  32.  "  Kent,  1.  c.,  p.  1-191.  12  Bouix,  1   c.,  p.  7. 

1S  Kent,  1.  c.,  vol.  i.,  part  ii.,  lect.  xi.,  p.  236. 
"  Kenrick,  Mor.  tract.  6,  n.  4.          15  Konings,  Mor.,  n.  177. 


Division  of  Canon  Law.  g 

ART.  III. 
What  is  Canon  Law  ? 

5.  Canon  law  (jus  canonicum,16  jus  ecclesiasticum,  jus  sa 
crum,  jus  divinum,  jus  pontificium)  is  so  named  because  it  is 
made  up  of  rules  or  canons,  which  the  Church  proposes  and 
establishes  in  order  to  direct  the  faithful  to  eternal  happi 
ness."  Canon  law,  in  the  strict  sense  of  the  term,  comprises 
those  laws  only  which  emanate  from  an  ecclesiastical  au 
thority  having  supreme  and  universal  jurisdiction,19  and  in 
this  sense  it  is  denned  :  Complexio  legum  auctoritate  Papae 
firmatarum,  quibus  fideles  ad  finem  Ecclesiae  proprium  diri- 
guntur.19  We  say,  auctoritate  Papae  firmatarum,  but  not 
constitutaruin  or  approbatarum  ;  because  in  canon  law  there 
are  many  laws  which  pertain  to  the  jus  divinum,  both  natu 
ral20  and  positive;  these  laws  were  neither  enacted  nor, 
properly  speaking,  approved  of  by  the  Supreme  Pontiff,  but 
merely  promulgated  by  him  in  a  special  manner.21  Canon 
law,  taken  in  a  broad  sense  of  the  term,  includes  not  only 
laws  made  by  the  Supreme  Pontiff,  but  also  laws  enacted  by 
legates,  councils,  whether  national  or  provincial,  etc.  Hence 
canon  law,  in  a  wide  sense,  is  denned :  Complexio  legum  a 
quocunque  potestatem  legislativam  possidente  in  bonum  fide- 
lium  firmatarum.22  Canon  law,  as  a  science,  is  termed  "  ec 
clesiastical  jurisprudence,"  which,  in  a  strict  sense,  is  de 
nned  :  The  science  of  ecclesiastical  laws,  as  made  by  the  au 
thority  of  the  Pope.  Ecclesiastical  jurisprudence,  in  a  wide 
sense,  means  the  science  not  only  of  the  Papal  ecclesiastical 
laws,23  but  of  all  ecclesiastical  laws. 

How  ecclesiastical  jurisprudence  differs  from  theology 
and  civil  jurisprudence  we  have  elsewhere  demonstrated.14 

18  Phillips,  Lehrb.,  |  3,  p.  3.    Regensburg,  1871. 

"  Bouix,  De  Princip.,  p.  54.  '"  Ib.,  p.  62.  w  Crarsson,  Man.,  n.  5. 

»  Bouix,  1.  c  .  p.  61.        21Ib..l.c.        M  Ib.,  p.  64,  65.        "Ib.,p.  65. 
*4  Notes  on  the  Second  PI.  C.  Bait.,  n.  3. 


io  Name,  Definition,  etc.,  of  Canon  Law. 

ART.  IV. 
Division  of  Canon  Law. 

6.  Canon  law  is  divided  : 

1.  By  reason  of  its  author,  into  divine,  or  that  which  is 
constituted    by    God,   and    into    human,    or    that    which    is 
enacted  by  man." 

2.  By  reason  of  the  manner  in  which  it  is  promulgated, 
into  written  and  unwritten."8 

3.  By  reason  of  those  whom   it   binds,  into  common  (jus 
commune),  that,  namely,  which  is  per  se  obligatory  on  all 
the  faithful;  and  into  particular  or  special  (jus  particulare), 
that,  namely,  which  is  binding'  on  some  of  them"7  only. 

4.  Into  public  and  private.   Craisson28  thus  defines  both: 
'" Publicum  exhibet   constitutionem   societatis  ecclesiasticae 
ipsius  regimen,  ordinem   personarum   ad   invicem    in   Eccle- 
sia,  jura   et   officia   earum,-  etc.'"'9      Privatum   versatur    circa 
obligationes  singulorum,  prout  distinguuntur  a  gubernatiohe 
ecclesiastica — v.g. ,  circa  sacramenta  recipienda. " 

5.  Into  the  jus  antiqiuun,  novum  et  novissimum. " 
According  to  some  canonists,  the  old  law  (jus  antiquum) 

is  that  which  was  enacted  or  existed  prior  to  the  Council  of 
Trent ; "  the  new  (jus  novum)  is  that  which  was  made  by 
that  Council ;  finally,  the  modern,  or  jus  novissimum,  is  that 
which  was  published  since  the  Council  of  Trent."  Others 
employ  these  terms  somewhat  differently. 

For  fuller  explanations  of  the  above  divisions,  we  refer  to 
our  Notes  on  the  Second  Plenary  Council  of  Baltimore." 

*  Tarquini,  Jus  Eccl.  Publ.  Instil.,  p.  131.        "  Ib.         r  Bouix,  1.  c,  p,  65. 
SBN.9.  ^  Ib. 

*  Cfr.  Notes  on  the  Second  PI.  C.  of  Bait,  n.  S,  p.  io 
M  Schmalzgrueber,  Jus  Eccl.,  torn,  i.,  a.  249,  250. 

*  Bouix.  De  Princip.,  p.  66.  "  Craisson,  1.  c..  n.  io.  M  §  J. 


CHAPTER   II. 

ON  THE  SOURCES  OF   CANON    LAW — DE  FONTIBUS  JURIS 

CANONICI. 

ART.  I. 


7.  A  source   or  fountain  is  that  from  which  something 
takes  its  origin.'     By  sources  of  canon  law  we  mean,  there 
fore,  the  legislative  authority  of  the  Church ;  ecclesiastical 
laws a  are  said  to  spring  from  their  proper  source  when  they 
are  enacted  or  promulgated  by  those  who  are  vested  with 
the  law-making  power  in  the  Church.3     In  a  broad  sense, 
however,   canonists   designate    as   sources   of    ecclesiastical 
jurisprudence  all  instruments  that  contain  the  law  itself.4 

8.  There  are   eight   sources   of  canon  law,  in  the  strict 
sense  of  the  term — that  is,  as  forming  the  common  and  riot 
the  particular  law  of  the   Church.     These  sources  are:  I, 
S.    Scripture ;    2,  divine    tradition ;    3,    laws    made   by    the 
Apostles;    4,  teachings  of  the  Fathers;  5,  decrees  of  sove 
reign  Pontiffs ;  6,  CEcumenical  councils ;  7,  Roman  Congre 
gations  of  cardinals ;  and  8,  custom.5 

9.  To   these,   some   add    "  civil    laws,"   which,    however, 
derive  all  their  force,  so  far  as  they  are  applicable  to  eccle 
siastical  matters,  soiely  from  the  authority  of  the  Church.' 
In   fact,   in   her    judicature,    the    Church    disdains    not  to 

1  Notes  on  the  Sec.  PI.  C.  Bait.,  n.  14.     Cfr.  Soglia,  vol.  i.,  p.  71. 
'  Craisson,  Man.,  n.  n.  *  Tarqu.,  1.  c.,  lib.  2,  n.  23,  p.  130. 

4  Soglia,  Inst.  Jur.  Publ.,  §  14,  p.  22,    ap.  Notes,  p.  14. 
*  Craisson,  1.  c.,  n.  16.  *  Kenrick,  Mor.  Tract,  iv.,  app.,  to.  I. 


1 2  On  the  Sources  of  Canon  Law. 

adopt,  at  times,  the  mode  of  proceedings  which  is  peculiar 
to  civil  courts.7 

10.  All  these  sources  may  ultimately  be  reduced  to  one 

the  authority  of  the  sovereign  Pontiff.  For  S.  Scripture 
and  divine  tradition  are  not,  properly  speaking,  sources  of 
canon  law,  save  when  their  prescriptions  are  promulgated 
by  the  Holy  See.  Again,  the  laws  established  by  the  Apos 
tles  and  the  teachings  of  the  Fathers  could  not  become 
binding  on  all  the  faithful  or  be  accounted  as  common  laws 
of  the  Church,  except  by  the  consent  and  authority  of  Peter 
and  his  successors.  In  like  manner,  councils  are  not  oecu 
menical  unless  confirmed  by  the  Pope.  The  Roman  Con 
gregations  but  exercise  powers  conferred  upon  them  by.  the 
Pope.  Neither  can  custom  obtain  the  force  of  universal 
law  save  by  at  least  the  tacit  sanction  of  the  Apostolic  See." 
Hence,  all  the  above  sources  may  appropriately  be  resolved 
into  one,  namely,  the  authority  of  the  Popes. 

ir.  Reiffenstuel,9  however,  aptly  observes  that  God  is 
the  primary  or  chief,  though  remote  and  mediate,  source 
of  canon  law,  publishing  laws  through  the  Roman  Pontiffs. 
The  proximate  and  immediate  source  of  ecclesiastical  law 
are  the  Apostles,  the  Sovereign  Pontiffs,  and  Councils.10 

12.  God   himself,    therefore,   is   the   primary   source    of 
ecclesiastical  law,  though  He  is  so  but  mediately,  exercising 
this  authority  through   the  Popes,  who  are  the  proximate 
and  immediate  source  of  canon  law. 
We  pass  on  to  the  several  sources. 

'  Soglia,  Inst.  Jur.  Publ.,  §  43,  p.  82.  *  Craisson,  1.  c.,  n.  19. 

*  Jus  Can.,  Prooem  ,  n.  52,  torn,  i.,  edit.  Paris,  1864.         "  Ib.,  n.  53. 


On  the  Sources  oj  Canon  Law.  13 

ART.  II. 
[.   Of  Sacred  Scripture  as  a  source  of  Canon  Law. 

13.  The   S.   Scriptures  are   divided   into   those    of   the 
Old  and  those  of  the  New  Testament.     The  Old  Testament 
contains  three   sorts   of    precepts:    moral,   ceremonial,  and 
judicial.     The  moral  code  of  the  Old  Testament  remains  in 
full  force  in  the    New    Dispensation ;    the    ceremonial   and 
judicial  laws  have  lapsed,  and  become  null  and  void." 

Yet  arguments  based  upon  the  ceremonial  and  judicial 
injunctions  of  the  Old  Testament  are  of  no  little  weight  in 
canon  law.  Thus,  St.  Leo  the  Great ia  points  to  the  dignity 
of  the  priesthood  of  the  old  law  in  order  to  show  the  excel 
lence  of  the  priesthood  of  the  new.  The  same  is  done  by 
St.  Jerome  13  in  regard  to  the  celibacy  of  the  clergy.  The 
influence  and  bearing  of  the  Old  Testament  upon  questions 
of  ecclesiastical  jurisprudence  are  thus  stated  by  Zallwein  : 
Si  quae  sunt  quaestiones  controversae  .  .  .  haud  in- 
epte,  licet  non  convincenter,  ex  Antiquo  ad  Novum  argu- 
mentaberis  Testamentum." 

14.  The  New  Testament  is  the  first  and  chief  source  of 
ecclesiastical  law,  both  public  and  private.     In  fact,  ques 
tions  pertaining  to  the  public  law  of  the  Church — those,  for 
instance,  which  refer  to  the  foundation  of  the  Church — are 
all  clearly  demonstrated  from  the  New  Testament ;  and,  as 
to  questions  relating  to  the  private  law  of  the  Church,  there 
is  scarcely  one  that  cannot  be  confirmed  by  the  Scriptures 
of  the  New  Testament." 

11  Soglia,  Inst.  Jur.  Publ.,  §  16.  "  Serm.,  8  Pass.,  Dom,  cap.  viii. 

"  Contr.  Jovin.,  lib.  i.,  n.  34.         "  Ap.  Soglia,  1.  c.,  §  16,  p.  25.        »  Ib.,  §  I?. 


14  On  the  Sources  of  Canon  Law. 

ART.  III. 

II.  Of  Divine  Tradition  as  a  Source  of  Canon  Law  (De  Diiina 

Traditions). 

15.  By  tradition  is  meant  a  doctrma  non  scripta,  sed  ver- 
bis  tradita.     It  is  named  doctrina  non  scripta,  not  because  it 
is  nowhere  found  in  writing,  but  because  it  was  not  consigned 
to  writing1'  by  its  first  author.     Traditions  are  divine  and 
human.    The  former  are  those  which  have  God  for  their  au 
thor,  and  which  the  Apostles  received  either  directly  from 
the  mouth  of  Christ  or  by  suggestion  of  the  Holy  Ghost.IT 
Human  traditions  are  those  which  emanated  from  the  Apos 
tles  or  their  successors.18     Human  traditions  are   apostolic 
when   they  originated  with  the  Apostles;  ecclesiastical;  if 
they  come  from  the  bishops.19 

16.  Divine  traditions  are  binding  on  all  the  faithful,  and 
hence  they  constitute,  though  only  in  a  broad  sense,  one  of 
the  sources  of  canon  law,  in  the  strict  sense  of  the  term,  or 
as  the  common  and  universal  law  of  the  Church.80     Human 
traditions,  on  the  other  hand,  regard  but  the  discipline  of 
the  Church,  and  are,  as  a  general  rule,  applicable  to  particu 
lar  localities  or  countries  only.21 

ART.  IV. 

(It.   The  Law  enacted  by  tJie  Apostles  as  a  Source  of  Canon  Law 
(de  Jure  ab  Apostolis  s  and  to). 

17.  The  following  enactments  are  attributed  to  the  Apos 
tles : 

i.  The  Apostolic  Creed — Symbolum  apostolorum.22  2. 
Abstinence  from  things  sacrificed  to  idols,  and  from  blood, 
*nd  from  things  strangled."  3.  The  substituting  of  Sun- 

1§  Ap.  Soglia,  p.  30,  31.  "  Cone.  Trid.,  Sess.  iv.,  Decret  de  S.  Script. 

18  Soglia,  1.  c.         19  Devoti.  Inst.  Can.,  Prolog .,  cap.  iv.,  §  48        *°  Ib.,  §  49, 
*J  Ib.        OT  Bouix,  De  Princip.,  p.  108.         '"  Acts.  xv.  29. 


On  the  Sources  of  Canon  Law.  15 

day  for  the  Sabbath  of  the  Jews,  and  the  hearing  of  Mass 
every  Sunday.24  4.  The  institution  of  the  principal  feasts — 
namely,  Easter,  Pentecost,  and  very  probably  also  Christ 
mas.1"  5.  The  fast  of  Lent,  and,  according  to  some,  the 
establishment  of  the  chair  of  St.  Peter  at  Rome.28 

1 8.  To   the   Apostles    some    writers    moreover    ascribe 
certain   canons  which    St.  Clement,    the   disciple   and  suc 
cessor  of  St.  Peter,  is  said  to  have  collected  and  grouped 
together  in  two  works ;  one  consisting  of  but  one  volume, 
and  entitled  Canones  Apostolorum  ;   the  other  being  made 
up  of  eight  books,  and  named  Constitutiones  Apostolicae." 

Writers  greatly  differ  as  to  the  authenticity  or  genuine 
ness  of  the  "  Constitutiones  Apostolicae." 

Biner  "8  thus  concludes  his  remarks  on  the  subject : 

a.  The  eight  books  of  Apostolical  constitutions  are  not 
handed  down  from  the  Apostles. 

b.  These   constitutions,    nevertheless,    are    very    ancient 
and  contain  many  salutary  things. 

c.  Though  originally  free  from   error,  they  were  subse 
quently,  in  some  parts,  corrupted  and  interpolated  by  here 
tics. 

The  same  holds  good  of  the  Canones  Apostolorum,4' 
at  least  this  seems  to  be  the  more  probable  opinion." 

19.  What    is  the  significance  and  weight   of  the  jus  ab 
apostolis  sancitum,  as  a  source  of  canon  law  ? 

Cardinal  Soglia  thus  answers:  The  precepts  or  laws 
promulgated  by  the  Apostles  as  divinely  inspired  should 
always  remain  in  force.  But  the  precepts  or  laws  made  by 
them  as  rectors  of  churches  can  be  changed  by  the  Sove^ 
reign  Pontiff.31 

M  Craisson  Man.,  n.  22.  "  Craisson,  1.  c.,  n.  22. 

M  Bouix,  De  Princip.,  p.  109.  "  Craisson,  1.  c.,  n.  23  (2). 
M  App.  Jur.  Can.,  p.  2,  c.  4,  ap.  Craiss.  1.  c. 

"  Bouix,  De  Princip.,  p.  120  30  Ib.  "  Inst.  Jur.  Publ.    p.  29,  §  *8 


i6  On  the  Sources  of  Canon  Law. 

But  how  are  we  to  know  the  difference  between  these 
two  characteristics  of  the  Apostles,  or  between  the  divine 
and  the  Apostolic  prescriptions? 

This  difference  is  conveyed  at  times  in  the  express  words 
of  the  sacred  writers/3  Thus,  St.  Paul  says  on  the  one 
hand:  Not  I,  but  the  Lord  commandeth ;"  on  the  other: 
I  speak,  not  the  Lord.34 

The  context  and  subject-matter  may  also  indicate  the 
distinction.36 

ART.  V. 

IV.    Teaching  of  the  Fathers  as  a  source  of  Canon  Law  (pi 
Senlentiis  Patrum). 

20.  On  this  head  we  quote  the  words  of  Reiffenstuel: 
"Dicta  sanctorum  Fatrum  sunt  doctfinalia,  sive  magis- 
terialia ;  non  vero  undequaque  authentica  seu  vim  legis  ha- 
bentia.30 " 

»3  Soglia,  1.  c.,  p.  29,  §  18.  3S  i  Cor.  vii.  10. 

•*  i  Cor.  vii.  12.  *5  Soglia,  1.  c.  *'  Jus  Can.,  Prooera.,  n.  77,  torn.  I 


CHAPTER  III. 

V.     DECREES    OF    SOVEREIGN     PONTIFFS    (DECRETA    SS.    PON- 
TIFICUM)   AS    A    SOURCE    OF   CANON    LAW. 

ART.  I. 
Of  the  Nature  of  the  Power  of  the  Roman  Pontiffs. 

21.  The  decrees  of  the   Roman   Pontiffs   constitute  the 
chief  source  of  canon  law;  nay,  more,  the  entire  canon  law, 
in  the  strict  sense  of  the  term,  is  based  upon  their  legisla 
tive  authority.      Hence  it  is  that  heretics  have  ever  sought 
to  destroy,  or  at  least  to   weaken,  this  legislative  power. 
The  following  are  the  chief  errors  on  this  head  : 

22.  i.  Luther  openly  maintained  that  no  legislative  au 
thority  whatever  was  vested  in  the  Pontiff. 

2.  Nicholas  de  Hontheim,  suffragan  of  the  Archbishop 
of  Treves,  having  in   1763  published  a  book  under  the  as 
sumed   name   of  Feb  ouius,  conceded  to  the   Pope  but  an 
accidental  power  to  enact  or  rather  propose  laws,1  namely, 
when  an  oecumenical  council  could  be  convened  only  with 
difficulty.      Laws   thus   formed    could   bind   only  when  ac 
cepted  by  the  consent  of  the  entire  Church.2 

3.  Many  inconsiderate  and  incautious  defenders  of  Gal- 
licanism  hold  that  the  laws  of  the  Sovereign  Pontiffs  are  not 
binding  on  the  faithful  unless  they  are  received  or  accepted 
at  least  by  the  bishops.1 

23.  To  proceed  methodically,  we  shall  show,  I,  that  the 
Roman  Pontiff  has  legislative  power  over  the  entire  Church  ; 
2,  that  the   Pontifical  laws  bind  both  de  jure  and  de  facto, 

'Bouix,  De  Princip.,  p.  Tf>7,  edit.  2d. 

*  Phillips.  Jus  Can.,  vol.  iii.,  §  136,  p   369,  edit.  1850. 

'Bouix,  1.  c  ,  p.  167  (3). 


1 8  Decrees  of  Sovereign  Pontiffs  as  a 

independently  of  their  acceptation  by  any  one,  even  bish 
ops ;  3,  how  Pontifical  laws  are  to  be  promulgated;  4, 
what  are  the  various  kinds  and  formalities  of  Papal  laws. 
Each  of  these  questions  will  be  separately  treated  in  the 
following  articles. 

ART.  II. 

The  Sovereign  Pontiff  Itas  received  directly  from  our  Lord  him 
self  Legislative  Power  over  tlie  entire  Church. 

24.  We    premise:    This    proposition    maintains,    I,   that 
legislative  power  over  the  entire  Church  is  vested  in  the 
Roman    Pontiff;   this   is  de  fide /'   2,  that  the    Pope  has  re 
ceived  this  power  immediately  or  directly  from  Christ  him 
self,  which  is,  at  present,  also  de  fide?     We  now  proceed  to 
prove  our  thesis      As  we  shall  see  farther  on   (infra,  n.  459- 
462),  the  Roman  Pontiffs   have  received  directly  from  our 
Lord  the  primacy  not  only  of  honor  but  also  of  jurisdiction 
over  the  whole  Church.      But  this  primacy  of  jurisdiction 
essentially  and  directly  contains  the  full  and  supreme  legis 
lative  authority  over  the  entire  Church."     Therefore,  etc.7 

25.  In    proof  or    the     major    we  shall,   at  present,    conj 
tent    ourselves    with    giving    the    definition    of  the    (Ecu 
menical     Council    of    the    Vatican :     (a)    "  Si     quis     igitur 
dixerit,   beatum   Petrum    apostolum      .      .     .      honoris    tan- 
turn,    non    autem    verae    propriaeque  jurisdictionis  prim  a-' 
turn  ab  eodem  Domino  Jesu  Christo  directe   et  immediate 
accepisse  ;  anathema  sit."  '     (#)  "  Si  quis  ergo  dixerit    .    .    . 
Romanum    Pontificem   non  esse  beati  Petri  in  eodem  pri- 
matu  successorem  ;  anath.  sit."1      (c)  "Si  quis  ergo  dixerit 
Romanum  Pontificem  habere  tantummodo  officium  inspec- 
tionis,  non  autem  plenam  et  supremam  potestatem  jurisdic 
tionis  in   universam  Ecclesiam     .     .     .     etiam   in  iis  quae 

4Ap.  Bouix,  De  Piincip.,  p.  168. 

8  Cone.  Vatican.,  sess.  iv.,  cap.  i.  Cf.  Craiss.,  28. 

*  Bouix,  1.  c.,  p.  193.  '  Ap.  ib..,  p.  185. 

Tonr.  Vatican.,  sess.  iv.,  cap.  i.  "Ib-,  cap.   ji. 


Source  of  Canon  Law.  19 

ad  disciplinam  et  regimen  Ecclesiae  .  .  .  pertinent; 
.  .  .  aut  hanc  ejus  potestatem  non  esse  ordinariam  et 
immediataiyj  .  .  .  anath.  sit." 10 

26.  We    now    come    to    the    minor:    Is   the    legislative 

O 

power  included  in  that  of  jurisdiction  and  inseparable  from 
it?  Most  certainly.  For  it  is  obvious  that  a  person  can 
enact  laws  for  those  who  are  his  subjects — that  is,  those 
over  whom  he  possesses  jurisdiction."  Therefore  the  prim 
acy  of  jurisdiction  vested  in  the  Sovereign  Pontiff  essenti 
ally  contains  the  power  to  make  laws  binding  on  the  entire 
Church." 

ART.  III. 
Of  the  Acceptance  of  Pontifical  Laws. 

27.  Are  Pontifical  laws  obligatory  on  the  faithful  or  the 
Church,  even  when  not  accepted   by  any   one?     We  reply 
in  the  affirmative.     The  proof  is  :   Papal   laws  are  binding, 
even  without  being  accepted  by  any  one,  if   Popes  (a]  have 
tiie  power  to  enact  laws  independently  ot  such  acceptation  ; 
(i>)  if,  de  facto,  they  wish   their  laws  to   be   binding  without 
such  acceptation.      But  this  is  the  case;   therefore,  etc.13 

28.  I.    The  Sovereign  Pontiff  can,  if  lie  chooses,  enact  laws 
obligatory  on  tJie  entire  Church  independently  of  any  acceptation. 
This  is  indubitable — nay,  according  to  Suarez,  de  fide."      It 
is  proved  from  the  preceding  thesis.     There  it  was  shown 
that  the  Roman  Pontiff  is  invested  with  a  legislative  power 
in  the  proper  sense  of  the  term.     Now,  if  the   Pope  could 
bind  those  persons  only  who  of  their  own  free-will  accepted 
his  laws,  he  would  evidently  be  possessed  of  no   power  to 
enact   laws.15     In  fact,  the    Pontiff,  in   such   an    hypothesis, 
would  have  no  greater  authority  than  any  simple  layman, 
or  even  woman,  to  whom   anybody  could  be  subject  if  he 
so  chose.18     He   could,  at   most,  propose   laws,  and    would 

10  Cone.  Vatican.,  sess.  iv.  "  Bouix,  1.  c.,  p.  160.         "Craiss.,  n.  29. 

13  Rciff,  lib.  i.,tit.  ii.,  n.  136.         M  Suarez,  De  Legg.,  1.  iv.,  c.  xvi.,  n.  2. 
15  Bouix,  De  Priricip  ,  p.  T()I.  JU  Craiss.,  2q. 


20  Decrees  of  Sovereign  Pontiffs  a:;  a 

therefore,  in  this  respect,  be  placed  on  a  level  with  the 
President  of  the  United  States."  The  latter  can  propose 
laws,  as  is  plain  from  Art.  II.  Sec.  3  of  the  Constitution  of 
the  United  States,  which  says:  "  He  "  (the  President)  "  shall 
from  time  to  time  give  to  the  Congress  information  of  the 
state  of  the  Union,  and  recommend  to  their  consideration 
such  measures  "  (laws)  "as  he  shall  judge  necessary  and 
expedient."  Yet  he  lias  no  legislative  power  whatever, 
as  is  apparent  from  Art.  I.  Sec.  i  of  the  Constitution  of 
the  United  States,  which  reads :  "  All  legislative  power 
herein  granted  shail  be  vested  in  a  Congress  of  the  United 
States,  which  shall  consist  of  a  Senate  and  House  of  Repre 
sentatives." 

29.  II.    The  Roman  Pontiff  de  facto  wishes  that  his  -laws 
should  bind  independently  of  their  acceptation  by  any  one.    This 
is  evident  from  the  fact  that  the  wording  of  the  Papal  laws, 
as   of  laws   in   general,  is   mandatory.2"     Now,  a  command 
given  absolutely  does  not  oblige  merely  on  condition  of  its 
being  accepted,  but  unconditionally  or  absolutely  ;21  other 
wise  the  supposed  law  or  command  would  be  no  law  at  all, 
but  merely  a  counsel.22 

30.  Again.  Pope  Gregory   IV.  says:    "  Praeceptis  apos- 
tolicis  non  dura  superbia  resistatur ;  sed  per  obedientiam, 
quae  a  sancta  Romana  Ecclesia  et  Apostolica  auctoritate 
jussa    sunt,    salutifere    impleantur.     ...     Si    quis    haec 
Apostolicae  Sedis  praecepta  non  observaverit,  percepti  ho 
noris    esse    hostis    non    dubitetur."         This    canon    plainly 
shows  that  Papal  laws  have  penal  sanctions  attached,  either 
expressly   or   impliedly.       Now,   from    this    very    fact  it  is 
clear   that   Popes,  bv  their  laws,  have  the  will  or  intention 
to  bind  the  faithful  absolutely,  and  not  merely  on  condition 
that  the   law  be   first  accepted.24     This,    in    fact,   seems  no 

17  Cf.  Soglia,  vol.  i..  p.  49.     Neanoli,  1864. 

18 Cf.  Kent's  Comm.,  vol.  i.,  p.  aSS.  IU  Cf.  iV,  p.  222. 

20Reifr,'l.  c  ,  n    nS-i.u.  "Ib.  "Can.  Quisquis  3,  c.  14,  q.  I. 

MOan.  Praeceptis  2,  dist.  12.  'J4Reiff.,l.  c. 


Source  of  Lan'jn  Law.  21 

no  longer  doubtful,  in  view  of  the  condemnation  by  Pope 
Alexander  VII.  of  the  following  proposition  :  "  Populus  non 
peccat,  etiamsi  absque  ulla  causa  non  recipiat  leg-em  a  prin- 
cipe  "  (Papa)  "  promulgatam."  "  For  subjects  would  not  sin 
by  refusing,  even  without  just  cause,  to  accept  a  Papal  law,  if 
the  latter,  so  far  as  its  binding  force  is  concerned,  depended 
on  the  acceptation  of  the  people,  or  were  enacted  with  the 
implied  condition  that  it  be  accepted  by  the  faithful.** 

31.  From  what  has  been  said   it  follows  that  the  Roman 
Pontiffs  have  both  the  power  and  the  will  to  make  laws  ob 
ligatory  on  the  entire  Church  independently  of  any  accep 
tation.     Our  thesis  is  therefore  established,  namely  :    Papal 
laws  bind  before  being  accepted  by  any  one.27     We  there 
fore    reject    the   following    opinion,  advanced    by    Bouix98 
and  Craisson,39  and  followed   by  us  in  the  first  and  second 
editions  of  this  work  (n.  22,  26,  32'):   The   opinion  of  those 
who  hold  that  it  is  the  will  of  the  Roman  Pontiffs  that  cer 
tain  Papal  laws  pertaining  to  discipline  should  not,  de  facto, 
bind  before  being  accepted,  is  lawful  and  sustained  by  many 
Catholic  doctors.      In  fact,  the  authors  alleged  by   Bouix 
and  Craisson  for  this  opinion  either  do  not   maintain  it  or 
sustain  the  very  opposite. 

32.  From  what  has  been  said   it  follows:   i.   Papal  laws 
are  obligatory  on  all   the   faithful  without   the  acceptation 
of  bishops.30      For   if  the    force    of  the    laws    in    question 
depended    on    the     acceptance    of  the    bishops,    it     would 
follow  that  the    Sovereign   Pontiff  could  not  really  make, 
but  merely  propose,  laws.31     Hence  bishops  cannot,  as  Fe- 
bronius  and  certain  Gallicans  contend,  refuse  to  accept  or 
promulgate  Pontifical  laws  in  their  diocese,  if  they  consider 
them  inopportune.33     All  they  can  do  is  to  communicate  to 
the  Pope  the  adverse  circumstances,  and  expose  the  reasons 
why  the  law  should  not  be  enforced  in  their  particular  dio- 

25  Ap.  ib.  56Ib. 

27  S  iprn.  n.  27,  seq.  **  De  Princ  ,  p   219  '*>  Man.,  n.  36. 

80  Traiss  ,  n.  30.  31  Sog'ia,  vol.  i  ,  p.  49  3"  Ib. 


22  Decrees  of  Sovereign  Pontiffs  as  a 

cases.     If  the  Sovereign  Pontiff  should,  nevertheless,  insist 
oh  his  law  being-  observed,  he  must  be  obeyed.33 

33.  If,  therefore,  a  general  law  of  the  Roman  Pontiff, 
though  promulgated  in  Rome,  is  not  promulgated  in  some 
particular  province  or  diocese,  the  faithful  of  such  place  are, 
as  a  rule,  excused  from  its  observance,  not,  indeed,  on  the 
ground  that  the  Pope  does  not  wish  such  law  not  to  be 
binding  before  being  accepted,  but  on  the  presumption, 
founded  in  law,  that  he  does  not  wish  to  urge  its  obser 
vance,  or  rather  because  it  can  be  presumed  that  the  Ordi 
nary  has  corresponded  or  is  corresponding  with  the  Holy 
See  in  regard  to  the  difficulty  ot  promulgating  or  observ 
ing  the  law,  and  that,  consequently,  the  obligation  of  ob 
serving  it  remains  meanwhile  suspended.34  Observe,  how 
ever,  that  this  has  reference  to  certain  matters  of  discipline 
only;  for  in  questions  pertaining  to  laith  and  morals  the 
judgment  of  the  Pontiff  is  irreformable.  We  say  certain 
matters  of  discipline  ;  for  in  those  matters  of  discipline  which 
relate  to  sacred  rites,  the  sacraments,  the  life  and  conduct 
of  the  clergy,  Papal  laws  are  not  as  a  rule  modified  at  the 
suggestions  of  bishops.30 

34.  2.  A  fortiori,  Pontifical  enactments,  in  order  to  be 
binding,  need  not  be  accepted  by  the  second  order  of  the 
clergy— namely,  the  priests.36  Pontifical  laws,  moreover, 
become  obligatory  without  being  accepted  or  confirmed  by 
secular  rulers."  The  contrary  opinion  is  thus  condemned 
by  the  Vatican  Council  :  "  Reprobamus  illorum  sentehtias, 
\\\\  hanc  Supremi  Cnpitis  cum  Pastoribus  et  gregibus  coth- 
municationem  licite  impediri  posse  dicunt,  aut  eandefh 
reddunt  saeculari  potestati  obnoxiam  ;  ita  tit  contendant, 
quae  ab  Apostolica  Sede  vel  ejus  auctoritate,  ad  regimes 
Ecclesiae  constituuntur,  vim  .  .  .  mm  habere 

33Bencd.  XIV.,  De  Syn.  Diocc  ,  lib.  ix.,  c.  viii.,  n.  4.   Prati,  1844. 
^ReifiF.,  1.  c.,  n.  143,  144.      "-"Bened.  XIV.,  1.  c.,  n.  3.       S6Craiss..  n.  32. 
37  Syllabus,  prop.  28,  29,  44. 


Source  of  Canon  Law.  23 

nisi  potestatis  saecularis  placito  confirmentur."  38  The  na 
ture  of  the  Placitum  regium  has  been  elsewhere  explained 
by  us.39  The  Government  of  the  United  States  has  never 
claimed  any  power  to  review  Pontifical  documents  or  for- 
bid  their  publication. 

ART.  IV. 
Of  the  Requisite  Promulgation  of  Pontifical  Laws. 

35.  Definition.— By  the  promulgation  of  a  law  is  meant  its 
being  made  publicly  known,  by  the  lawgiver,  to  the  com 
munity  in  such  a  manner  that  it  can  come  to  the  knowledge 
of  all  concerned.40  We  say  community.  Herein  promulga 
tion  is  distinguished  from  the  knowledge  of  the  law  which 
may  have  been  obtained  by  private  individuals.  The  pro 
mulgation  is  to  be  made  publicly,  that  is,  to  the  whole 
community,  because  a  law  binds  not  merely  one  or  two 
persons,  but  the  whole  community.  Hence,  until  it  has 
been  communicated  to  the  community,  it  does  not  bind, 
even  though  some  persons  may  have  acquired  a  knowledge 
of  it.  And  once  it  has  been  promulgated  to  the  community 
it  binds  all,  even  though  some  persons  do  not  know  it/1 
From  this  it  will  be  readily  seen  that  it  is  not  necessary,  nay, 
it  would  be  impossible,  to  make  a  separate  promulgation  to 
each  individual. 

36.   Q.  Is  the  promulgation  of   a    law  absolutely   neces 
sary  ? 

A.  Yes.     No  law  whatever  binds,  save  when  it  has  been 
sufficiently    promulgated.42      This    follows   from    the   very 

3S  Cone.  Vatican.,  sess.  iv.,  cap.  iii. 
89  Our  Notes,  n.  32. 

40  Bouix,  de  Princip. ,  p.  236. 

41  De  Angelis,  1.  i.,  t.  2,  n.  io. 
43  L.  9,  C.  de  Leg.  (i.  14). 


24  Decrees  of  Sovereign  Pontiffs  as  a 

nature  of  things.  For  it  is  plain  that  no  community  can  be 
bound  to  observe  a  law  which  has  not  been  properly  made 
known  to  it."  Consequently,  Papal  laws,  in  order  to  be 
binding,  must,  like  all  other  laws,  be  promulgated.  The 
same  holds  of  the  laws  of  the  secular  authorities.  Black- 
stone44  writes:  "  A  resolution  of  the  legislature  is  no  law  till 
this  resolution  be  notified." 

37.  Q.  How  should  the  promulgation  of  a  law  be  made  ? 
A.  A  law  may  be  promulgated    in  various  ways.     No 

special  form  or  mode  of  promulgation  is  required.  All  that  is 
necessary  is  that  the  law  be  made  publicly  known  in  such  a 
manner  that  it  can  come  to  the  knowledge  of  all  con- 
cerned.45 

38.  Q.  What  is  the  manner  in  which  Papal  laws,  made 
for  the  whole  Church,  are  to  be  promulgated  ? 

A.  i°.  Formerly  there  were  writers,  v.g.y  Natalis  Alex 
ander,  Tournely,  Cabassutius,  who  affirmed  that  the  laws  in 
question  were  not  binding  unless  they  had  been  formally 
promulgated  in  every  diocese  and  country  of  the  world.  In 
other  words,  they  held  that  no  Papal  law  was  obligatory  in 
a  particular  diocese  or  country  unless  it  had  been  separately 
promulgated  in  such  diocese  or  country.  Some  writers  went 
even  so  far  as  to  maintain  that  this  mode  of  promulgation 
was  required  by  the  law  of  nature.  De  Marca,  Van  Espen, 
Zallwein,  and  others  zealously  advocated  this  form  of  pro 
mulgation,  because  it  favored  the  view  that  bishops  had  the 
right  not  to  accept,  and  not  to  promulgate,  Pontifical  laws.48 
We  say  formerly  ;  for,  at  the  present  day,  there  is  scarcely  a 
Catholic  writer  who  holds  that  the  promulgation  in  every 
diocese  or  ecclesiastical  province  is  necessary. 

39.  2°.  At  the  present  day,  it  is  the  general  teaching  of 

43  Schmalzg.,  1.  i.,  t.  2,  n.  26. 

44  Com.,  Introd.,  sect,  ii.,  p.  8. 

45  Schulte,  K.  R.,  vol.  i.,  p.  81  sq. 

46  Bouix,  1.  c.,  pp.  197,  23-2  sq. 


Source  of  Canon  Law.  25 

canonists  and  theologians  that  the  promulgation  which  takes 
place  in  Rome  is  sufficient.  Now  the  manner  of  promulga 
tion  of  Papal  laws  at  Rome,  as  practised  for  several  hundred 
years  and  as  still  in  vogue,  is  to  post  them  at  the  doors  of  St. 
Peter's,  of  the  Lateran  basilica,  of  the  Apostolic  Chancery 
offices,  and  in  the  public  square  called  Flora.47  Nor  can 
be  said  that  this  mode  of  promulgation  is  insufficient.  Fo: 
that  promulgation  alone  is  requisite  by  which  the  knowledge 
of  the  law  will  easily  and  conveniently  reach  the  entire 
Church.  Now  such  is,  especially  at  present,  the  promulga 
tion  made  in  Rome.  For  with  our  modern  facilities  of  com 
munication,  with  our  cables  and  newspapers,  a  law  which  is 
enacted  and  promulgated  in  Rome  is  made  known  all  over 
the  world  in  a  very  short  time.  Hence  a  separate  and  for 
mal  promulgation  in  every  diocese  is  superfluous. 

It  is  therefore  admitted  by  all  at  the  present  day;  that 
the  promulgation  of  Pontifical  laws  enacted  for  the  whole 
Catholic  world  as  made  at  Rome,  in  the  manner  stated,  is 
sufficient  to  bind  all  the  Faithful.  There  is  only  one  excep 
tion  to  this  rule,  namely,  where  the  Roman  Pontiff  or  an 
oecumenical  council  expressly  prescribes  or  sanctions  a  dif 
ferent  or  more  local  and  particular  form  of  promulgation. 
An  example  of  this  exception  to  the  rule  is  given  by  the 
holy  Council  of  Trent,  sess.  xxiv.,  cap.  i.,  de  Ref.  Matr.  The 
Council,  in  the  place  quoted,  enjoins  that  marriages,  on  pain 
of  their  invalidity,  are  to  be  celebrated  "  in  the  presence  of 
the  parish  priest  and  two  or  three  witnesses.  But  it  also 
decrees  that  this  law  shall  be  published  in  every  parish  church 
of  each  diocese ;  and  that  it  shall  begin  to  be  of  force  in  each 
parish  at  the  expiration  of  thirty  days,  to  be  counted  from  the 
day  of  its  first  publication  made  in  said  parish."  Here,  then, 
the  binding  force  of  the  Tridentine  decree  in  a  particular 
parish  is  made  contingent  upon  its  publication  in  such  par- 

41  Santi,  Prael.  fur.  Can.  1    i.,  t.  2,  n.  23. 


26  Decrees  of  Sovereign  Pontiffs  as  a 

ish.     Hence  the  publication  of  this  law  merely  at  Rome  is 
not  sufficient. 

It  should  be  observed  that  in  more  recent  times  the 
Holy  See  has  been  accustomed  to  transmit  a  printed  copy  of 
the  law  to  all  nuncios,  archbishops,  and  bishops,  who,  upon 
its  receipt,  publish  it.  to  their  respective  subjects.  This  pub 
lication,  however,  is  not  promulgation. 

We  have  said  in  our  question,  for  the  whole  Church.  For, 
laws  made  for  particular  countries,  and  not  for  the  entire 
Church,  are  not  published  in  Rome,  but  are  simply  sent,  in 
printed  copies,  to  the  Primate,  or  also  to  each  archbishop 
and  bishop  of  the  respective  country.48 

40.  Q.  Are  Papal  laws  binding  all  over  the  Catholic 
world  as  soon  as  they  have  been  promulgated  in  Rome? 

A.  i°.  A  distinction  should  be  drawn  between  the  bind 
ing  force  of  a  law  in  actu  primo  and  in  actu  sccundo.  A  law 
binds  potentially  from  the  very  moment  it  has  been  promul 
gated.  But  its  binding  force  does  not  become  operative  in 
the  case  of  a  particular  country  until  it  has  come,  or  at 
least  could  have  come,  to  the  knowledge  of  the  latter.43 
Consequently,  although  a  general  Papal  law  binds  in  actu 
primo  all  over  the  Catholic  world,  from  the  moment  it  has 
been  promulgated  at  Rome,  yet  it  does  not  actually  bind 
the  faithful  in  a  particular  country  until  it  has  become 
known  to  them,  or  till  after  the  lapse  of  a  certain  period  of 
time  during  which  it  could  easily  have  come  to  their 
knowledge. 

Q.  Now  how  long  a  time  is  to  elapse  between  the  pro 
mulgation  of  the  law  at  Rome  and  its  binding  force  in  a 
particular  place  ? 

A.  There  are  two  opinions.  The  first  maintains  that  the 
law  becomes  obligatory  immediately  upon  those  who  reside 
in  the  curia  or  about  Rome,  but  upon  others  only  after  the 

46  Bouix.  1.  c.,  p.  270.  •"  Satiti,  1.  c.,  n.  24 


Source  of  Canon  Law,  260 

lapse  of  a  certain  time,  to  be  computed  according  to  the 
distance  of  place.  The  second,  which  is  termed  the  more 
probable  opinion  by  St.  Liguori,60  holds  that,  unless  the 
time  is  fixed  by  the  law  itself,  no  person  whatever  falls  under 
the  law  save  after  two  months  from  the  date  of  its  promulga 
tion  ;  but  that  after  that  period  it  binds  everywhere.  In 
fact,  no  one  can  doubt  that,  at  the  present  day,  a  law 
promulgated  in  Rome  can  be  easily  known  all  over  the 
world  in  two  months. 

41.  Q.  What  is  the  right  and  duty  of  bishops  in  regard 
to  making  known  and  observed  Papal  laws,  as  also  decrees 
and  instructions  of   the  Sacred  Congregations,  v.g.,  of  the 
Propaganda  ? 

A.  The  bishop  is  the  guardian  of  the  law,  general  and 
particular,  in  his  diocese.  Consequently  it  is  his  right  and 
duty,  on  receipt,  direct  or  indirect,  of  an  authentic  copy  of 
the  law,  decree  or  instruction,  from  Rome,  to  notify  or 
inform  the  clergy,  and  also  the  faithful — if  the  law  concerns 
them — under  his  charge,  of  it,  and  take  all  the  other  neces 
sary  steps  to  cause  it  to  be  observed/"  However,  this 
official  announcement  or  notification  is  not  promulgation, 
save  in  a  broad  sense.52 

42.  Q.  When  do  the  laws  enacted  by  the  secular  govern 
ment,  also  with  us,  generally  begin  to  bind  ? 

A.  In  France,  the  Code  Napoleon  declares  that  laws  are 
.binding  from  the  moment  their  promulgation  can  be  known.6* 
With  us,  "  a  statute  or  law  operates  from  the  very  day  it 
passes,  if  the  law  itself  does  not  establish  the  time."  51  In  fact, 
the  laws  enacted  by  our  State  legislatures  generally  state 
expressly  that  they  take  effect  immediately  after  their  pa& 

50  Si.  Liguori,  1.  i.,  n.  96  sq. 

51  Ib..  n.  g6. 

6-  Bouix,  1.  c.,  p.  242. 

BX  Kern.  Com.,  vol.  i.,  p.  458. 

54  II).,  p.  4?;. 


266  Decrees  of  Sovereign  Pontiffs  as  a 

sage.  Kent,  however,  very  justly  observes  "  that  it  would 
be  no  more  than  reasonable  and  just  that  the  statute  or  law 
should  not  be  deemed  to  operate  until  it  was  duly  promul 
gated."  "  Hence  the  New  York  Revised  Statutes  are  in 
harmony  with  justice  and  equity  when  they  declare  "that 
every  law,  unless  a  different  time  be  prescribed  therein,  takes 
effect  throughout  the  State  on,  and  not  before,  the  twentieth 
day  after  its  final  passage." 

43.  It  should  be  observed  here  that  secular  governments 
or  national  and  state  legislatures   have  nearly  everywhere 
discarded  the  practice  of  promulgating  their  laws  in  each 
province.     However,  they  cause  them  to  be  published  either 
in  an  official  newspaper,  or  in  various  newspapers  issued  in 
the  different  localities  affected  by  the  laws.     This  publica 
tion  is  intended  as  a  convenience  to  the  public,  rather  than 
as  a  formal  promulgation. 

ART.  V. 
Various  Kinds  of  Apostolic  Constitutions  or  Letters. 

44.  Apostolic  letters  or  constitutions  are  divided  : 

I.  By  reason  of  their  subject-matter  (quoad  materiam]  into, 
a,  common  ordinances  (ordinationes  communes),  which  enact 
or  establish  something  for  the  entire  Church,  or  at  least  for 
a  considerable  part  of  it;  b,  into  particular  ordinances  (ordi 
nationes  particulares),  which  lay  down  prescriptions  for  a 
private  person  only,  or  in  some  transient  affair." 

45.  i°.   Common  ordinances  are   made  up  of  constitutions, 
properly  so-called,  decrees,  decretal  epistles,  and  encyclicals." 

a.  Constitutions  (constitutiones),    properly    speaking,    are 

"  Kent,  Com.,  vol.  i.,  p.  458. 

"  Ib.,  p.  459. 

w  Boiiix,  De  Princip.,  pars  ii.,  sect,  ii.,  cap.  vii. 

MIb. 


Source  of  Canon  Law.  27 

tnose  Apostolic  letters  which  ordain,  in  a  permanent  man 
ner,  something  for  the  entire  Church,  or  part  of  it.63 

b.  By  decrees  (decreta)  are  meant  the  constitutions  just 
mentioned,  when  issued  by  the  Roman  Pontiff  not  in  reply 
to  questions   addressed    to  the   Holy  See,"  but  motu    pro- 
prio,   with    or  without  the  advice  of  the  cardinals.86     The 
term   "  decree  "  is,  however,  not  unfrequently  used  to  de 
note  Pontifical  laws  or  enactments  of  every  description.68 

c.  Decretal  epistles  (decretales  epistolae,  responsa)  differ 
from  decrees  only   in  that  they  are  dictated 6T  in  reply  to 
questions  of  bishops  or  other  persons.88    They  have  the  force 
of  general  laws,  being  framed  for  the  purpose  of  deciding  in 
similar  cases,  save   when    something   is  ordained   dispensa- 
tively  (dispensative)."9 

d.  Encyclicals  are   the  above-mentioned  constitutions  or 
decretals  when  addressed  to  the  bishops  of  the  whole  world 
or  of  some  country.     Encyclicals  are  generally  made  use  of 
by  Popes  in  order  to  determine  some  point  of  doctrine  o 
abolish  abuses,  as  also  to  introduce  uniformity  of  discipline.' 

46.  2°.    By  particiilar   ordinances   (ordinationes    partic* 
lares)  are  meant  those  letters  in  which  the  Roman  Pontf  f 
replies  to  persons  who  either  ask  for  some  favor  or  rep  -rt 
on  some  particular  affair,  or  request  directions  for  a  tr  an- 
sient  object  or  private  individual.     These  letters  are  na  ned 
rescripts  (rescripta).71 

47.  II.    Quoad  for  mam,  or  viewed  as  to  their  form,  Pon 
lineal  letters   or   constitutions  are   divided  into   Bulls  and 
Briefs.   For  the  Pontifical  letters  which  are  mentioned  above 
are  issued  in  the  form  either  of  a  bull  (bulla)  or  of  a  briei 
(breve);"  though,  at  present,  frequently  in  neither  of  these 
forms. 

48.  Bulls,  so-called  from  the  seal,  whether  of  gold,  silver 

63  Bouix,  De  Princip.,  p.  273,  pars,  ii.,  sect,  ii.,  cap.  vii.     Cfr.  Craisson,  Man. 
n.  47.  M  Ib.  65  Notes  on  the  Sec.  PI.  C.  Bait.,  p.  18. 

"  Bouix,  De  Princip.,  p.  274.     61  Notes  on  the  Sec.  PI.  C.  Bait.,  p.  18,  n.  21 
48  Bouix,  1.  c.,  p.  274.      t;9  Ib.      '°  Ib.  (4°)     "  Ib.,  p.  274.         «  Ib.,  p.  275. 


28  Decrees  of  Sovereign  Pontiffs  as  a 

or  lead,  which  is  appended  to  them,  begin  thus:"  Leo 
(or  the  name  of  the  reigning  Pontiff)  Episcopus,  Servus  ser- 
vorum  Dei"  Briefs  begin  with  a  superscription  having  the 
name  of  the  reigning  Pontiff,  thus:  Leo  PP.  XIII.  For 
merly  bulls  had  appended  on  a  silken  or  hempen  cord  a 
leaden  (sometimes  silver;  or  even  gold)  seal,  and  were  more 
over  written  upon  thick,  coarse,  and  somewhat  dark  parch 
ment,  in  old  or  Teutonic  letters,  and  without  any  punctua 
tion.  At  present,  according  to  a  motus  proprius  of  Pope 
Leo  XIIL,  now  happily  reigning,  issued  Dec.  29,  1878,  the 
wse  of  Teutonic  characters  is  entirely  abolished,  and  the 
ordinary  Latin  mode  of  writing  substituted  ;  the  use  of 
the  leaden  seal  is  restricted  to  the  more  important  bulls. 
The  other  bulls,  like  briefs,  have  a  red  seal  impressed, 
and  are  written  on  fine  white  parchment.75  The  new  red 
seal  of  bulls,  as  prescribed  by  Pope  Leo  XIIL,  bears  on 
its  face  the  images  of  St.  Peter  and  St.  Paul,  surrounded  by 
the  name  of  the  reigning  Pope.18 

ART.  VI. 

Of  Rescripts  (De  Rescriptis). 

49.  For  definition  of  rescripts,  see  n.  46.  See  also  Bizzarri, 
Collectan.,  p.  666,  for  the  latest  decisions  concerning  rescripts. 
What  force  have  resciipts?  Thev  have  the  force  of  law, 
inter  paries''' — that  is,  among  those  only  for  whom  they  were. 
given.7"  Thus,  a  rescript  conceded  to  a  plaintiff,  granting  a 
trial  wit/tout  appeal,  is  equally  beneficial  to  the  defendant,  who 
may  wish  to  bring  a  counter-action  against  the  plaintiff.79 

Ti  Bulls  are  generally  not  signed  or  subscribed  b,y  the  Pope,  but  only  by 
several  officials.  Consistorial  bulls  are  signed  by  the  Pope.  Phillips,  vol. 
iii.,  p.  646. 

t4  Placed  in  the  first  line,  and  not  in  the  shape  of  a  superscription,  title,  or 
heading.  Bulls  have  no  heading.  Cfr.  Phillips,  Jus.  Can.,  vol.  iii.,  sect.  154, 
p.  645.  Edit.  Ratisbon,  1850. 

75ActaS.  Sedis,  vol.  xi.,  1879,  p.  465.  "Bjuix,  De  Princip.,  p.  277. 

77  Reiffcnst.,  lib.  i.,  tit.  iii.,  n.  o. 

'•"See  our  Notes  on  Sec.  PI.  C  Bah.,  n.  23,  p.  19  Sse  al^o  Dcvoti  Pro- 
iegoin  .  §  xxxvi.  Edit.  Ivodii,  1860.  7'J  Reiffens!..  1.  c..  n.  10. 


Source  of  Canon  Law.  29 

50.  Though  rescripts  have  not  of  themselves  the  efficacy 
of  universal  laws,  yet  they  may  serve  as  precedents,  and  be 
applied  to  cases *"*  of  a  similar  kind,  and  hence  they  some 
times  acquire  indirectly  the  force  of  common  laws.     They 
have  the  same  force  when  inserted  in  the  Corpus  juris. 

51.  How  many  kinds  of  rescripts  are  there? 

We  answer,  i.  Some  rescripts  are  contra  legem,  others 
praeter  legem,  and  others  finally  secundum  legem.81 

2.  Rescripts  are  again  divided  into  rescripta  gratiae  and 
into  rescripta  justitiae.  The  latter,  termed  also  rescripta 
ad  lites,  are  those  in  which,  for  instance,  the  Pope,  in  causes 
devolved  upon  him,  constitutes  delegated  judges."  •  The 
former,  called  also  rescripta  ad  beneficia,  are  those  which 
bestow  benefices  or  other  similar  favors.83 

52.  How  are  rescripts  vitiated? 
We  answer:   In  a  threefold  manner. 

1.  By    defect    in   persons     (vitio     personarum) — that    is 
when  parties  are  incompetent  either  to  give  or  to  obtain 
rescripts.84 

2.  By   defect   in  petitions   (vitio    precum),    which    either 
suppress  and  conceal  the  truth  or  contain  a  falsehood — that 
is,  ere  either  surreptitious  or  obreptitious.85     In  canon  law, 
the  terms  subreptio  and  obreptio  are   interchangeable  and 
used  synonymously/8  so  far  as  concerns  the   matter  under 
discussion.37 

3.  By  defect   in   the  form    (vitio    formae),    rescripts    are 
finally  made  void  when,  namely,  the   rescript  was  not  pro 
perly  issued 88 — e.g.,  when  some  important  word  or  sentence 
is  erased,89  etc. 

53.  Rescripts,  at  least  of  justice,  are  vitiated  by  defect 
in    petitions,    when,    by    fraud    or    malice,    a   falsehood   is 

*"  See  our  Notes,  p.  19,  n.  23.      Cfr.  Reiffcnst.,  1.  c.,  n.  10,  12,  13,  14. 
"  Rciffenst.,  1.  c.,  n.  22.  M  Ib.,  n.  27,  28.  83  Ib.(  n.  29. 

114  Soglia,  Jus  Publ.,  §  29.  "5  Ib.,  §  30. 

""ReiiT-.lib   i.,tit.  iii.,  n.  155.    "  Cfr.  Soglia,!.  c  ,§30     ""Ib.^.    8"Ib.,§3r 


3O  Decrees  of  Sovereign  Pontiffs  as  a 

asserted  or  the  truth  suppressed;80  but  if  this  is  done 
through  ignorance'  or  simplicity,  and  the  latter  was  the 
cause  of  obtaining  merely  the  form  of  the  rescript,  it 
does  not  annul  the  substance  of  the  rescript."  Where, 
however,  the  Pope  would  have  absolutely  withheld  the 
rescript,  if  the  truth  had  been  stated,  the  rescript  is  com 
pletely  voided,  even  though  the  surreption  proceeded  from 
ignorance  or  simplicity." 

54.  The   execution   of  Papal    rescripts    is    usually    com 
mitted  to  ecclesiastical  dignitaries.93     At  present,  however, 
simple  confessors  are  frequently  entrusted  with  the  execu 
tion  of  rescripts,  at  least  of  the  5.  Poenitentiaria,  containing 
dispensations  from  impediments  of  marriage. 

It  is  incumbent  upon  the  officials  or  dignitaries  to 
whom  the  task  is  entrusted  of  executing  or  giving  effect  to 
rescripts  to  ascertain  whether  preces  veritate  nitantur ;  and 
in  case  the  facts  or  prayers  upon  which  the  rescript  is 
based  are  without  foundation,  these  officials  should  so  in 
form  the  Pope  before  giving  effect  to  the  Papal  letters.94 

55.  Q.   How  do  rescripts  lapse  ? 

A.  I.  Rescripta  justitiae  lapse  at  the  death,  resignation, 
translation,  or  deposition  of  the  person  conceding  them, 
if  at  the  time  the  cause  or  trial  had  not  yet  begun9*  (re 
adhuc  integra) ;  but  not  if  proceedings  had  already  com 
menced  in  the  case  (re  non  amplius  integra),  v.g.,  by  the 
citation  of  the  parties  to  the  suit,  made  before  the  demise 
of  the  person  who  granted  the  rescript.06 

2.  As  to  rescripta  gratiae,  we  must  distinguish  between 
the  rescripta  gratiae  that  contain  a  gratiam  factam  and 
those  containing  merely  a  gratiam  faciendam.97  a.  Rescripts 
containing  a  gratiam  jam  factam  do  not,  even  though  res  esf 

"•  Cfr.  Soglia,  1.  c.,  §  30.  C)  Ap.  Reiffenst ,  1.  c.,  n.  159.  w  Ib 

"  Infra,  n.  233.  M  Phillips,  Jus  Can.,  vol.  iii.,§  155.  p.  654 

*'  ReifTenst.,  lib.  i.,  Decret.  tit.  3.  n.  232,  235.  OT  Ib.   n.  238,  241. 

"  Craisson,  Man.,  n.  71. 


Source  of  Canon   Law.  31 

ad/nic  intcgra,  expire  with  the  decease  of  the  person  con 
ceding  them."  b.  Rescripts  that  confer  a  gratiam  faciendam 
or  a  gratiam  concessam  non  in  proprium  recipientis  litteras, 
sed  in  alterius"  duntaxat  favorem,  lapse  at  the  death  of  the 
person  giving  them,  si  res  est  adhuc  integra. 

56.  Now,  rescripts  contain  a  gratiam   factam  when,  v.g., 
power  is  given  in  them  to  an  individual  or  a  religious  com 
munity  to  10°  grant  dispensations,  to  absolve,  first,  either  per 
sons  in  general ;  or,  second,  persons  in  particular — i.e.,  deter 
minate  persons,  provided  the  person  ""  obtaining  the  rescript 
in  the  second  case  is  constituted  the  executor  necessarius — 
i.e.,  is  commanded,  v.g.,  to  grant  a  dispensation  to  Titius  if 
he  knows  the   petition   of  Titius  to  be  grounded   in   truth. 
Such  are  ordinarily  dispensations  for  marriages. 

57.  On  the  other  hand,  rescripts  contain  a  gratiam  primum 
faciendam    when    they    authorize    the    party    obtaining    the 
rescript  to  confer,  if  he  deems  it  proper  or  desirable,  a  favor 
(v.g.,  a  dispensation)  upon  a  determinate  person ;  v.g.,  if  the 
Apostolic  letters  say  :    Dispenses  cum   Titio,  conferas  Caio 
beneficium,  si  volueris,   si    expedire  judicaveris.102      In  this- 
case,  the  person  who  obtains  the  rescript  is  constituted  the 
executor  voluntarius,  and  the  gratia  contained  in  the  rescript 
is  not  jam  facta — i.e.,  completely  or  absolutely  103  bestowed 
by  the  Pope,  but  is  merely  gratia  facienda — i.e.,  to  be  im 
parted  conditionally,  namely,  if  the  executor  thinks  proper 
to  do  so. 

58.  3.  Rescripts,  in  general,  may  also  lapse,   by  being l04 
revoked  either   tacitly    or   expressly   (revocatione)   and    by 
being  renounced    or   refused  (renuntiatione)  by  those  per 
sons  in  whose  favor  they  were  made.10' 

*"  Reiff.,  1.  c.,  n.  250.  M  Ib.,  n.  251. 

100  Ib.,  n.  254.  101  Ib.,  256,  257.  10Mb.,n.  258. 

103  Leuren,  Forum  Eccl.,  lib.  i.,  Decret.  tit.  3,  Qaest.  363.     Augustue  Vin- 

delicorum,  1737.  JM  Ib.,  Qu.  361.  *•  Ib.,  Qu.  360. 


CHAPTER  IV. 

VI,  ON  THE  DECREES  OF  COUNCILS  AS  FORMING  A  SOURCE 
OF  CANON  LAW. 

ART.  I. 
Of  (Ecumenical  Councils. 

59.  Councils  in  general  are  defined  :  "  Coetus  auctoritate 
legitima  congregati   ad    tractanda   negotia  ecclesiastica,  de 
quibus  Episcopi  pronuntiant." ' 

It  is  a  mooted  question  whether  councils  are  of  divine  or 
ecclesiastical  institution.  CEcumenical  councils  are  not  abso 
lutely  necessary  to  the  Church,  though  they  are  very  useful.* 

Councils  are  divided  into  oecumenical,  national,  provin 
cial,  and  diocesan.3 

60.  What  are  the  essential  conditions  or  requisites  of  an 
oecumenical  or  general  council  ? 

We  answer : 4 

1.  An    oecumenical  council    must   be   convoked    by  the 
authority  of  the  Roman  Pontiff,  or,  at  least,  with  his  con 
sent,  and  be  presided  over  by  him  or  his  legates.6 

2.  All  the  Catholic  bishops  of  the  world  are  to  be  called 
or  invited,  though  it  is  not  indispensable  that  they  should 
all  be  present.6 

3.  The   acts   of  the  council   must  be  confirmed  or  ap 
proved  by  the  Pope.7 

1  Bouix,  ap.  Craisson,  Man.,  n.  77.          *  Craisson,  I.e.         s  Ib.,  n.  79. 

*  See  our  Notes  on  the  Sec.  PI   C.  Bait.,  n.  33,  p.  27. 

*  Devoti,  Inst.  Can.  Prolegom.,  §  xxxviii.    Leodii,  1860.         '  Ib          '  Ib 


On  the  Decrees  of  Councils.  33 

61.  Who  have  the  right  of  suffrage  at  general  councils? 
i.  Bishops  alone  are  jure  divino*  possessed  by  virtue  of  their 
office  of  the  right  of  decisive  vote.     2.  Cardinals  who  are  not 
bishops;  abbots-general  of  an  entire  order,  but  not  abbots 
of  single  monasteries  belonging  to  a  religious  community 
subject  to  a  general  abbot,    superiors-general   of  religious 
orders :  all  these  have  a  decisive  vote,  though  only  by  virtue 
of  privilege?     3.  Procurators  of  bishops  lawfully  absent  do 
not  possess,  according  to  the  general  law  of  the  church,  a  de 
cisive  vote.      1  hey  received,  however,  from   Pops  Pius  IV. 
the  right  to  cast  a  consnltive  vote  in  the  Council  of  Trent.'" 
Pope  Pius  IX.  decided  that  in  the  Vatican  Council  the  pro 
curators  of  absent    bishops   could    be    present    only   at   the 
public  sessions,  and  that  without  any  vote,  but  not  at  the 
private  sessions." 

62.  What   is  the    canonical   mode  or  method  to  be  ob 
served  in  the  celebration  of  oecumenical  councils?     I.  There 
must  be   freedom  of  discussion,  or  liberty  in  decisions  and 
judgments.     All  acts  extorted  by  fear  and  violence  are  (ipso 
jure)  null  and   void.     2.   No   fraud   or   deception    must   be 
practised  on  the   Fathers.     3.  There  must  be,  moreover,  a 
sufficient  examination  into  the  questions  submitted  to  the 
council.     Once,  however,  the  council  has  defined  a  question, 
no  doubt  can  any  longer  be  entertained  as  to  whether  the 
council  used  sufficient  care  and  deliberation  in  its  definitions. 

63.  What  is  the  authority  of  oecumenical  councils? 

We  answer:  The  decrees  of  general  councils  have  the 
efficacy  of  universal  laws,  and  constitute,  therefore,  one  of 
the  sources  of  canon  law,  in  the  strict  sense  of  the  term.12 

64.  Q.  Is  the   Council   of  Trent  received  in  the  United 
States  (quoad  disciplinani]  ? 


8  Soglia  Vecchiotti,  Inst.  Can.,  lib.  i.,  §  39.  '  Ib. 

*  Bened.  XIV.,  De  Syn..  1.  3,  c.  12,  n.  5.  "  Soglia- Vecchiotti,  1.  c. 

11  Craisson,  1.  c.,  n.  89 


34  On  the  Decrees  of  Councils 

A.  We  say  "quoad  disciplinam  " 18  since  no  one  will 
doubt  that,  in  matters  of  faith,  the  Council  of  Trent  fully 
obtains  with  us. 

We  now  give  a  direct  answer:  i.  The  disciplinary  law 
<>f  the  Council  of  Trent  is  not,  as  a  whole  or  in  its  entirety, 
in  force  with  us,  though  many  of  the  decrees  of  Trent  are 
made  obligatory  throughout  this  country  by  the  Fathers  of 
the  Second  and  Third  Plenary  Councils  of  Baltimore.19 

2.  Again,  the    Fathers   frequently  express   their  sincere 
desire  of  approaching  and  conforming  to  the  prescriptions 
of  the  general   law   of  the    Church,  and    therefore   of  the 
Council  of  Trent.20 

3.  Kenrick  writes  :  "  In  Conciliis  Baltimorensibus  passim 
allegantur  (Decreta  Concilii  Tridentini),  licet  universa  (de- 
creta)  non  sint  speciali  decreto  promulgata."  2I     We  observe 
that  even  the  disciplinary  decrees  of  the  Council  of  Trent 
do  not,  per  se,  require  any  promulgation  in  this  country,  in 
order  to  be  binding  with  us.23 

ART.  II. 

Of  Particular  Synods,  whether  National,  Provincial,  or 

Diocesan. 

65.  National  councils  are  those  to  which  the  Bishops  of 
a  whole  nation  are  summoned.23  These  councils  are  con 
voked  by  the  Patriarch,  Primate,  or  other  dignitary  having 
competent  authority.21 

The  Archbishop  of  Baltimore  cannot  convene  national 
or  plenary  councils  by  virtue  of  the  praerogativa  loci, 

"  Cfr.  Craisson,  1.  c.,  n.  93. 

19  See  Acta  et  Decreta,  n.  56,     Cfr.  Cone.  Trid.,  sess.  xxiv.,  cap.  2,  De  Ret 
10  Concil.  PI.  Bait.,  ii.  passim,  n.  59,  p.  47.  2I  Mor.  Tract  iv.,  n.  15. 

w  Ib.,  Tract  xviii.,  n.  144.  "  Craisson,  Man.,  n.  80. 

14  De-'oti,  Prolegom  ,  §  xli. 


as  Forming  a  Source  of  Cation  Law.  35 

attached  to  the  Sec  of  Baltimore.  As  a  matter  of  fact, 
however,  the  Holy  See  appointed  the  Archbishop  of  Balti 
more  Apostolic  Delegate  to  assemble  and  preside  over  the 
three  national  councils,  so  far,  held  in  this  country:  the  one 
in  1852,  the  other  in  1866,  and  the  third  in  1884. 

The  Roman  Pontiffs  were  wont  to  hold  national  synods 
of  Italy  down  to  the  seventh  or  eighth  century.  Such 
councils  were  also  customary  in  Africa.26 

66.  Councils  are  named  provincial  when  the  Bishops  ol 
a  province  are  called  together  by  the  Metropolitan,"  though 
it  is  not  essential  that  they  should  all  be   present  at  the 
council. 

67.  How  often  are  provincial  councils  to  be  held  ? 

We  answer :  I.  In  the  first  centuries  of  the  Church,  they 
were  celebrated  twice  a  year."  2.  The  Third  (Ecumenical 
Council  of  Constantinople  prescribed  that  these  councils 
should  take  place  once  a  year.  3.  Finally,  the  Fifth  Lateran 
Council,  as  well  as  that  of  Trent,29  ordained  that  they  should 
be  convened  once  every  three  years.30 

68.  It    may  be    observed    that    but    very   few  provincial 
councils  were  held  within  the  last  three  centuries  in  France, 
Germany,  Austria,  Spain,  and  even  in  Italy,  save  those  of 
Milan  under  St.  Charles  Borromeo.     Hence  it  would  appeal 
that  the  Holy  See  tacitly  consents  to  this  custom.31 

69.  In   the   United  States,    provincial  council0    and  dio 
cesan    synods   are    more    numerous.     This    is   owing  in  nc 
small  degree  to  the  fact  that  our   government   has  nevei 
thrown — in  fact,  could  not  throw — any  obstacles  in  the  way ; 
while  in  Europe  the  governments  but  too  frequently  inter 
fered  with  these  meetings."    The  law  enacted  by  the  Council 
of  Trent — to  wit,  provincial  councils  should  be  held  every 

**  Notes  on  the  Sec.  PI.  C.  Bait.,  n.  34,  p.  28. 

96  Soglia,  1.  c.,  torn,  i.,  §37.  *  Craiss.,  1.  c.,  n.  So.  M  Ib.,  n.  8r. 

™  Sess.  24,  cap.  2,  De  Ref.  30  Bouix,  Concil.  Provinc.,  p.  420-425. 

*'  Cmisson,  1.  c.,  n.  Si.  w  Cfr.  Phillips,  Jus  Can.    t.  ii.,  p.  274. 


36  Ou  the  Decrees  of  Councils 

three  years — should  be  accurately  observed  throughout  the 
United  States.33  In  parts  of  the  West  Indies,  these  councils 
are  held  once  every  four  years.31 

|3iP  70.  Q.  What  persons  should  be  called  to  provincial 
or  national  councils,  also  in  the  United  States? 

A.  i.  All  the  Bishops  of  the  province  or  nation.  They 
are  obliged  to  come  in  person,  unless  they  are  lawfully  hin 
dered.3"  If  they  are  lawfully  hindered,  they  are  bound  to 
send  procurators  to  represent  them.  2.  Apostolic  adminis 
trators  appointed  by  the  Holy  See  for  dioceses  whose 
bishops,  though  still  living,  are  either  unable  or  incapaci 
tated  to  govern  the  diocese.  3.  Vicars  capitular — with  us 
administrators  of  dioceses  sede  vacante™  4.  Vicars-apostolic, 
who  exercise  jurisdiction  in  districts  not  yet  erected  into 
bishoprics.37  (Cone.  PI.  Bait.  II.,  n.  60,  note  i.)  5.  Cathedral 
chapteis;  they  have  a  right  to  be  present  at  the  council 
through  their  delegates  or  representatives  chosen  by  them 
selves.  6.  Abbots  possessed  of  jurisdiction  not  only  over 
their  monasteries,  but  also  cf  quasi-episcopal  jurisdiction 
over  the  secular  clergy  and  laics  in  a  certain  part  of  the 
province  or  nation.30 

These  six  classes  alone  have  a  right  to  be  called  de  jure  to 
the  councils  in  question.33  For  they  alone  possess  episcopal 
or  quasi  episcopal  jurisdiction.  However,  by  custom,  also 
in  the  United  States,  the  following  persons  are  also  called 
to  the  councils:  i.  Coadjutor  and  auxiliary  bishops  of  the 
province  or  of  the  nation,  and  also  strange  bishops  who  may 
happen  to  be  in  the  province  or  country  at  the  time;1* 
2.  Provincials  of  regulars;  3.  Rectors  of  major  seminaries  , 
4.  Mitred  abbots  who  have  jurisdiction  merely  over  their 

a3  Cone.  PI.  Bait.  II.,  n.  56,  57.  3"  Coll.  Lac..  1.  c.,  p.  1103. 

35  Cone.  Trid.  sess.  24,  c.  2,  De  Ref.     a6  C.  PI.  Bah.  II.,  n.  60. 

"  Cf.  infra,  n.  524. 

18  There  are  no  abbots  in  the  U.  S.  who  have  such  quasi  episcopal  jurisdiction. 

39  Con.  PI.  Bait.  II..  n.  60.       «'  Bouix    De  Cone    Prov.,  p.  in  sq.;  ib.,  p.  122; 


as  Forming  a  Source  of  Canon  Law.  37 

monasteries,  and  not  over  seculars;  5.  Finally,  those 
persons  whose  services  the  bishops  wish  to  make  use  of41 
— v.g.,  those  priests  whom  bishops  usually  take  along  with 
them  to  the  council,  as  their  theologians  or  canonists."  Be 
sides,  all  priests  or  ecclesiastics  who  think  themselves  in, 
jured  may  present  their  grievances  to  the  council."  Lay. 
men  are  sometimes  invited  to  attend  some  of  the  sittings, 
either  to  act  as  notaries,  as  was  done  in  several  of  the  Prov." 
C.  of  Westminster,  England  ;  or  also-  in  order  to  explain  cer, 
tain  matters  :  thus,  several  eminent  lawyers  were  admitted 
to  one  of  the  public  sittings  of  the  First  Prov.  C.  of  Balti. 
more,  in  order  to  explain  certain  points  of  the  civil  law  in 
relation  to  Church  property.4' 

Not  all  persons,  however,  who  are  invited  to  the  councu 
have  a  right  to  a  decisive  vote.  For  to  cast  a  decisive  vote 
is  to  concur  in  making  laws  for  the  province  or  nation,  and 
is  therefore  an  act  of  episcopal  or  quasi-episcopal  jurisdic 
tion."  Hence,  by  the  general  law  of  the  Church,  only  those 
have  a  decisive  vote  who  exercise  episcopal  jurisdiction  in 
the  province  or  nation,  namely:  i.  The  bishops  of  the 
province  or  nation ;  2.  Apostolic  administrators  of  dio, 
ceses  ;  3.  Vicars-apostolic  of  districts  ;  4.  Vicars-capitular  or 
administrators  of  dioceses  sede  vac  ant  e  ;  5.  Abbots  possessed 
of  quasi-episcopal  jurisdiction  over  the  secular  clergy  and 
laity  in  a  certain  part  of  the  province  or  nation. 

The  following  have  only  a  consultive  vote,  by  the  gen 
eral  law:  i.  Auxiliary  and  coadjutor  bishops,  and  also 
other  titular  bishops  who  live  in  the  province  or  countrv, 
but  do  not  exercise  episcopal  jurisdiction  therein ,  also 
strange  bishops  who  may  happen  to  be  at  the  council  ; 
procurators  of  bishops  lawfully  absent.  All  these  may  re 
ceive  the  right  of  casting  a  decisive  vote,  if  the  council  con- 

41  Cone.  PI.  Bait.  II.,  n.  60.  «  Coll.  Lac.,  1.  c.,  p.  1415,  n.  20. 

43  Ferraris,  1.  c.,  n.  26.  «  Coll.  Lac.,  1.  c.,  pp.  974,  999,  1026,  1066 

45  Ib.,  p.  15.  "8  Ib.,  p.  114. 


3  8  On  the  Decrees  of  Councils 

sents.47  In  the  United  States  it  is  the  custom  for  all  of  these 
persons,  except  visiting  Bishops,  to  cast  a  decisive  vote. 
2.  Cathedral  chapters."  3.  Mitred  abbots  and  general  su 
periors  of  orders.  4.  Provincials  of  regulars,  rectors  of 
major  seminaries,  and  the  theologians  of  the  bishops. 

See  the  acts  of  the  Third  Plenary  Council  of  Baltimore,  p. 
Ixiii,  where  the  discussion  and  vote  of  the  Fathers  are  given 
on  the  admission  and  right  of  voting  of  abbots  and  superiors 
of  regulars.  After  mature  deliberation,  the  Council  decided 
to  give  the  right  of  decisive  vote  to  the  two  abbots  general  of 
their  orders,  who  were  present;  namely,  to  Rt.  Rev.  Wim- 
mer  and  Rt.  Rev.  Mundwiler;  and  also  to  Rt.  Rev.  Sorin, 
Superior-general  of  the  Congregation  of  the  Holy  Cross. 
The  motion  to  extend  the  same  privilege  to  all  the  other 
abbots  of  single  monasteries  was  rejected  by  the  Council. 

71.  In  provincial  councils  matters  are  settled  by  a  major 
ity  of  votes.     Metropolitans  have  no  preponderating  voice, 
even  when  there  is  a  tie.49 

72.  The  decrees  of  provincial  councils  must  be  submitted 
to  the   Holy  See  (in  the  U.  S.,  and  other  missionary  coun 
tries,  to  the  Propaganda ;  elsewhere,  to  the  S.  C.  C.)  before 
being  promulgated.50     This  is  done,  not  that  these  decrees 
should  be  confirmed  by  the  Holy  See,  but  that  whatever 
may  be  too  stricter  somewhat  inaccurate  may  be  corrected  ; 
though,  not  unfrequently,  they  have  been  not  merely  revised 
and,  if  necessary,  amended,  but  also  confirmed  by  apostolic 
letters  at  the  request  of  metropolitans/11 

It  is  lawful  to  appeal  from  these  councils  when  they 
are  not  approved  in  forma  specified™  since  it  sometimes  hap 
pens  that  these  councils,  even  after  being  corrected  by  the 

41  Bouix,  De  Cone.  Prov.,  pp.  1 19.  125.         48  Ferr.,  v.  Concilium,  art.  ii.,  n.  15. 
49  Craisson.  n.  85.  50  Sixtus  V.  Constit.  Immensae,  ap.  Craisson,  n.  86. 

*'  Bened.  XIV.  De  Syn.  Dioec.,  lib.  xiii.,  cap.  3  ,  n.  3,  4. 
M  Craiss.,  n.  87.      Bouix,  De  Episc.,  torn,  ii.,  p.  392. 


as  Forming  a  Source  of  Canon  Law.  39 

Holy  See,  yet  contain  certain  regulations  which  are  rather 
tolerated  than  approved  by  the  Sacred  Congregation." 
None  of  the  provincial  or  national  councils  of  the  U.  S. 
seems  to  be  approved  in  forma  specifica. 

73.  What  has  been  said  of  provincial  councils  is,  in  most 
respects,  applicable  to  national  councils.54.    Provincial  coun 
cils  are  convened  by  the  metropolitans  in  person,  or,  if  tuey 
be  lawfully  hindered,  by  the  oldest 55  suffragan  bishop.     Na 
tional  councils  in  the  U.  S.,  on  the  other  hand,  are  assem 
bled  by  express  direction  of  the  Sovereign  Pontiff,  who  ap 
points  a  representative  of  his  authority  in  the  apostolic  dele 
gate  he  commissions  6°  to  preside  over  them. 

74.  Each  bishop  may,  in  individual  cases,  relax  in  his 
diocese  the  decrees  of  prov.  or  national  councils,  unless  it  be 
said  that  they  are  approved  in  forma  specifica.57     Provincial 
councils,  as  was  seen,  are  called  by  the  metropolitan  ;  some 
times,    however,    the   convening    and    celebration   of  these 
councils    were   agreed    upon   in   a   special   meeting   of  the 
bishops  of  the  Province,  held  beforehand  for  that  purpose ; 
as,  for  instance,  in  the  case  of  the  Fourth  Prov.  C.  of  Quebec 
in  1868,  and  in  the  case  of  the  Second  Prov.  C.  of  Australia, 
held  in  the  city  of  Melbourne  in  i860.68     In  regard  to  dio 
cesan  synods,  see  our  "  Notes." 5" 

*3  Gousset,  ap.  Craiss.,  n.  87. 

M  Cfr.  Soglia,  vol.  i.,  p.  74.     Ferraris,  v.  Concilium,  art.  i.,  n.  5. 
"  Cone.  Trid.,  sess.  24,  cap.  2,  De  Ref.  M  Coll.  Lac.,  1.  c.,  p    '250. 

47  Kenrick,  Mor.  Tract.  4,  vol.  i.,  p.  118.      Cfr.  Notes  on  the  Sec.  PI.  C. 
Bait,  p.  438. 

**  Coll.  Lac.,  vol.  iii.,  p.  1057,  1058,  1415,  n.  14.  **  p.  30. 


CHAPTER   V. 

VII.    ON  THE   ROMAN  CONGREGATIONS  AS  A  SOURCE  OP 

CANON    LAW. 

ART.  I. 
Efficacy  of  the  Decisions  of  the  Sacred  Congregations. 

75.  Later  on  we  shall  treat  of  the  various  functions  and 
powers  of  each  of  these  congregations.     At  present,  we  shall 
merely  consider  the  force  of  the  decisions  or  declarations 
(declarationes)  of  the  Roman  congregations.     Congregations 
of  cardinals  (congregationcs  cardinalium,  congr.  Romanae) 
are  committees  or  commissions  '  composed  chiefly  of  cardi 
nals,  to  whom  the  Sovereign   Pontiff  refers  certain  matters 
that  relate  in  a  special  manner  to  the  Church. 

76.  There  are  two  kinds3  of  congregations :   I,  permanent 
or    standing    committees    or   congregations    (congregations 
ordinariae},    those,    namely,    which    are    permanently  estab 
lished  ;    2,    temporary    congregations    (congrcgationes    extra- 
or  dinar  iae],  or  those  which  are  convened  3  to  attend  to  some 
particular  or  transient  matter  only,  and  therefore  have  no 
permanent  existence.     We  shall  here  consider  the  decisions 
of  the  congregationes  ordinariae  only.     The  following  are  con 
gregationcs  ordinariae :  Congregatio  Sacri  Officii  or  Inquisi- 
tionis,  Congr.  Indicis,  Congr.  Consistorialis,  Congr.  Episco- 
porum  et  Regularium,  Congr.  Sacrorum  Rituum,  Congr.  de 
Propaganda  Fide,  and  several  others.4 

'Salzano,  1.  c.,  vol.  i.,  p.  76.  *Ib.,  p.  77. 

1  Phillips,  Kirchenr,  vol.  iv.j&'-joQ,  9.495,  Ratisbon,  1850       4  Phillips,  l.<r 


Source  of  Canon  Law.  41 

77.  The  question  therefore  comes  up :  Have  the  declara 
tions  of  these  congregations  the   force   of  universal   lawr 
The  question  is  asked  especially  in  reference  *  to  the  Congre- 
gatio  Concilii,  because  of  its  special  powers.     We  ask,  there 
fore  :  Are  the  decisions  of  the  Congr.  Cone,  binding  on  the 
entire  *  Church  ?     There  are  three  opinions :  The  first '  de 
nies  that  these  decisions  have  the  efficacy  of  common  law, 
i,  because  this  S.  Congr.  merely  uses  the  words  "  censuit, 
censcmus"   but   does   not   employ   any   imperative   or    pro 
hibitory  terms  in  its  declarations ;  2,  because  these  decisions 
are  issued  for  particular  cases  only.     For  other  reasons,  see 
Bouix.8     Hence,  say  the  defenders  of  this  opinion,  the  Pon 
tiff  speaks  through  this  congregation  only  as  its  president, 
and  not  as  head  and  doctor  of  the  Church." 

78.  The  second  opinion  affirms  that  these  decisions,  when 
authentic,  i.e.,  when  signed10  by  and  having  the  seal  of  the 
prefect  and  secretary  of  the  respective  congregation,  are  of 
the  same  authority  as  though  they  had  emanated  directly 
from    the   Pope,  and  are,  therefore,  binding  on  the  entire 
Church,  even  M  when  issued  for  a  particular  case  only. 

79.  The  third  distinguishes  thus :  These  declarations  are 
of  two  kinds:    I,  dcclarationcs   cxtcnsivae,   i.e.,  those  which 
extend,  as  it  were,12  or  stretch  the  meaning  of  words  beyond 
their  ordinary  signification,  and  grant  or  prohibit  something 
accordingly.     These    decisions,13  forming,  as    it    were,   new 
laws,  do  not  obtain  the  force  of  law  unless  they  are  issued 
by  the  special  order  of  the  Pope,  and  properly  u  promul- 

*  Craisson,  Man.,  n.  95. 

*  We  say  "entire  Church";  for  it  is  certain  that  these  decisions  have  the 
force  of  law  in  casibits  particularilnts,  pro  quibus  fiunt ;  but  are  they  binding 
also  in  casibus  similibus  ?     Here  there  are   three  opinions,   as   given   above 
(Cfr.  St.  Liguori,  lib   i.,  n.  106,  Quaer.  2°.     Mechliniae,  1852.) 

7  Sanchez,  Diana,  Bonac.,  Laym.,  ap.  Bouix,  De  Princip.,  p.  338.  *  Ib. 

*  Craisson,  1.  c.,  n.  98.  "  Phillips,  Lehrb.,  §  43,  p.  79. 
11  Bouix,  De  Princip.,  p.  341.  ia  Ib.,  p.  344. 

*  Cfr.  Phillips,  Lehrb.,  §  43,  p.  79.  "  Craiss.,  n.  100 


42  Source  of  Canon  Law. 

gated ;  2,  by  declarations  comprehensivae  we  mean  those 
which  do  not  depart  from  the  ordinary  sense  of  the  words 
of  the  law ;  which,  therefore,  are  mere  explanations  of,15  but 
not  additions  to,  the  law  ;  which  consequently  have  the  force 
of  universal  law,  and  are  retroactive. 

80.  Q.  What  is  the  practical  consequence  of  this  diver 
sity  of  opinions  ? 

A.  One  of  the  above  opinions  denies  that  the  decisions 
of  the  Congr.  Concilii  have  the  efficacy  of  law  ;  now,  the  Holy 
See  has  so  far  allowed  this  opinion  to  be  taught  in  Catholic 
schools  of  learning.16  Hence,  it  is  lawful  to  hold  that  the 
declarations  of  the  Congr.  Concilii  are  not  to  be  received  as  " 
universal  laws.  Nevertheless,  it  were  rash  to  assert  that 
these  declarations  can  be  practically  set  at  naught;'18  for 
they  are  made  by  authority  of  the  Holy  See,  and  therefore 
must,  at  least  ordinarily  speaking,  be  complied  with." 

Si.  Have  the  decrees  of  the  other  congregations,  v.g.t  of 
the  Congr.  Rituum,"  of  the  Sacra  Poenitentiaria,  etc.,  the 
force  of  law — that  is,  are  they  binding  on  the  entire  Church  ? 
The  three  opinions  above  given  also  exist  in  this  case. 
Hence,  what  has  been  said  of  the  Congr.  Concilii  applies  to 
all  other  congregations." 

"Bouix,  De  Princip.,  p.  344.  "  Bouix,  De  Princip.,  p.  345- 

17  Ib.,  1.  c..  p.  345-  I8  Ib.,  p.  347-  :"  Ib->  P-  346. 

20  The  sententia  communissima  holds  that  the  decrees  and  decisions  of  the 
Congr.  Rituuin  bind  in  casibus  similibus.     Gury,  vol.  i.,  n   130.    Romae,  1869. 
11  Ib.,  p.  347- 


CHAPTER   VI. 

VIII.    ON    CUSTOM    AS    A    SOURCE    OV    CANON    LAW. 

ART.  I. 
•       Nature  and  Division  of  Custom. 

82.  Q.  What  is  custom,  and  how  is  it  a  source  of  canon 
law? 

A.  i°.  Custom  may  be  considered  as  a/^c/and  as  a  laiv.1 
Regarded  as  a  fact  (consiietudo  facti\  it  means  the  repeated 
and  continuous  acts  of  a  community.  If  custom  be  viewed 
as  a  law  (consuetudo  juris),  as  we  take  it  here,  it  signifies  the 
effect  or  obligation  produced  by  the  above  continuous  acts.* 
Hence  custom  as  here  understood  is  denned  :  An  unwritten 
law  obliging  persons  to  do  or  omit  something,  introduced  by 
long-continued,  free  and  public  acts  of  a  community,  with 
the  approbation,  express,  tacit,  or  presumed,  of  its  law-giver.* 
We  say  law ;  for,  as  we  shall  see  below,  custom  has  the  same 
force  as  a  written  law,  and  differs  from  the  latter  merelv  in 
the  manner  in  which  it  begins.  We  say  introduced  by  con 
tinuous  acts,  etc.  ;  because  custom  does  not,  like  a  statutory 
law,  derive  its  binding  force  from  the  expressed  will  of  the 
law-giver  or  from  a  formal  promulgation,  but  simply  from 
the  long-continued  acts  of  a  community.  Hence  it  is  called 
an  unwritten  law."  We  say  community;  custom  has  the 
force  of  law,  and  therefore  binds  not  merely  certain  indi 
viduals,  but  the  whole  community  in  which  it  exists.  Con 
sequently  it  is  but  fair  that  custom  should  receive  this  bind 
ing  force  from  the  consent,  expressed  by  free  and  long- 
repeated  acts,  of  the  whole  community,  or  at  least  the  greater 
part  of  it.6  Hence  the  repeated  acts  of  an  individual  or  of  a 
family  can  never  constitute  custom.8  The  word  commun 
ity,  however,  is  here  taken  in  a  broad  sense,  and  compre- 

1  De  Angelis,  1.  i.,  t.  4,  n.  i.  *  Leur.  For.  Eccl.,  1.  i.,  t.  4,  q.  365. 

3  Schmalzg,  1.  i.,  t.  4,  n.   I.  4  De  Angelis,  1.  c.,  n.  2. 

5  Schmalzg.,  1.  c.,  n.  3.  '  Suarez,  de  leg.,  1.  7,  cap.  7,  n.  6. 

43 


44  OH   C^tstom  as  a 

hends,   v.g.,   cathedral    chapters,   the    clergy   or   laity   of    a 
diocese,  religious  communities,  etc.7 

83.  2°.  From  what  has  been  said,  it  is  evident  that  custom 
is  a  source  from  which  springs  ecclesiastical  law, .both  gen 
eral  and  particular.     For  custom,  properly  constituted,  pro 
duces  law,  general  or  particular,  binding   upon  the   respect 
ive  community,  just  as  strictly  and  fully  as  a  written  law.8 

84.  Q.   What  are  the  various  kinds  of  custom  ? 

A.  Custom  is  divided  as  follows:  i°.  According  to  its 
different  effects,  into  that  which  is  (a)  in  full  accord  with  the 
written  law  (secundum  legem);  (ft)  beside  or  beyond  it  (praeter 
legem);  v.g.,  where,  by  custom,  fast  is  kept  on  a  day  when 
the  law  does  not  require  it;  (c)  directly  opposed  to  it  (contra 
legem) ;  v.g.,  where  by  custom  fast  is  not  kept  on  a  day  on 
which  the  law  prescribes  it.  2°.  According  to  its  efficient 
cause,  into  (a)  universal,  or  that  which  obtains  throughout 
Christendom  ;  (b]  general,  which  prevails  in  an  entire  prov 
ince  or  state ;  (c)  particular,  which  exists  in  some  city  or 
town.9  3°.  According  to  its  formal  cause,  \\\\.o  judicial  and 
extrajudicial.  Judicial  custom  is  induced  by  several  similar 
judicial  decisions  in  the  same  kind  of  causes.  Two  such 
decisions  given  within  ten  years  suffice,  provided  no  con 
trary  decision  was  rendered  during  that  time.  Extrajudicial 
custom  is  established  by  long  usage  out  of  courts.10 

85.  Q.  What  are  the  main  differences  between  custom 
and  prescription  ? 

A.  i.  Prescription  may  be  introduced  by  private  or 
particular  persons,  while  custom  can  be  established  by  a 
community  only.11  .  2.  Prescription  tends  to  the  acquiring  of 
some  right  by  individuals  ;  lz  while  custom  establishes  a  law, 
and  therefore  affects  a  whole  community,  i.e.,  all  who  dwell  in 
the  locality  in  which  the  custom  prevails.13 

7  Schmalzg.,  1.  c.  8  Cap.  9,  n,  de  Consuet.  (i.,  4). 

9  Reiff.,  1.  i.,  t.  4,  n.  14  sq.  ">  Ib.,  n.  18. 

11  Craisson,  Man.,  in.       1S  Reiff.,  1.  c.,  n.  23,  24.      13  Bouix,  1.  c.,  p.  356. 


Source  oj  Canon  Law.  45 

\RT.  II. 
Of  the  Essential  Conditions  of  Custom. 

?£.  In  order  that  custom  may  have  the  force  of  law  cer 
tain  conditions  are  indispensable :  I,  on  the  part  of  the  com 
munity  ;  2,  of  t'.io  R  j<r\an  Pontiff;  3,  of  custom  itself;  4,  of 
the  duration  r»i  CJS'.OFI. 

87.  I.  On  llie  part  of  the  community  (ex  parte  communi- 
tatis),  it  is  requisite  that  custom  be  introduced  :  i,  by  a  com 
munity  ;  2,  by  the  greater  part  of  this  society ;  3,  with 
due  knowledge  or  consciousness;  4,  with  liberty;  5,  with 
the  intention  of  contracting  an  obligation,  if  there  is  ques 
tion  of  custom  praeter  legem  ;  6,  that  the  frequency  of  acts 
be  not  interrupted19  before  the  custom  is  completely  estab 
lished.  We  say,  i,  by  a  community — -that  is,  not  merely 
by  one  person  or  a  private  family,20  but  by  a  community  that 
can  make  its  own  laws,  v.g ,  a  city 21  or  State.  Thus,  an 
ecclesiastical  custom  relating  to  the  clergy  and  laity  can  be 
introduced  by  the  clergy  and  laity  of  a  diocese,  province, 
or  country ;  in  like  manner,  a  custom  pertaining  to  the 
clergy  only  may  be  established  by  the  clergy  of  a  diocese 
or  province.  The  same  holds  good  of  religious  orders  ""  and 
the  like.  We  say,  2,  by  tJie  greater  part  of  the  society.  For  Ji 
is  a  general  rule,  that  only  the  acts  of  a  majority  ~*  are  bind 
ing  on  a  community.  We  say,  3,  with  due  kncnvlcdge — that 
is,  not  through  ignorance  or  error.  This  condition  is  of  no/ 
ordinary  importance.  In  France,  for  instance,  and  perhaps 
also  in  the  United  States,  the  impression  seems  to  prevail 
that  rectors  of  parishes,  who  are  "  ad  nutum  episcopi  revo- 
cabiles,"  may  be  removed  by  the  bishop  in  such  manner  that, 

no  case  can  they  have  recourse  to  the  Holy  See.     Ye 

19  Bouix,  1.  c.,  p.  357.  20Ib  ,  p.  358. 

11  Suarez,  \)e  Leg.,  lib.  viik,  cap.  i\.,  n.  5,  pars,  a,  p.  294.     Neapoli,  1872. 

"B^uix,  1   c.,  p.  358.  3SCfr.  tamen  Suare?.,  1  c  .  n.  ro,  in  fine. 


46  On  Custom  as  a 

i 

it  is  the  general  opinion  of  canonists  that  these  pastors  have, 
"ex  jure  communi,"  the  right  of  recourse84  in  nil  cases.  It, 
therefore,  this  belief,  whether  on  the  part  of  the  bishops  or 
of  the  clergy,  is  based  upon  an  erroneous  impression,  which 
appears  certain,  no  right  of  custom  would  follow  from ** 
their  actions  in  this  respect.  4.  The  acts  must  be  free — i.e., 
not  extorted  by  violence  or  fear;  5,  public;20  6,  the  inten 
tion  of  contracting  an  obligation  is  the  next  requisite  of  cus 
tom.  This  applies  chiefly  to  customs  praeter  legem.  Hence, 
acts  of  devotion,  such  as  the  hearing  of  Mass  on  week 
days,27  going  to  confession  frequently  during  the  year,  and 
the  like,  do  not  produce  custom  having  the  force  of  law  ; 
7,  the  acts  must"8  not  be  interrupted,  even  by  a  single 
contrary  action,  before  the  complete  formation  of '  cus- 

88.  II.  On  the  part  of  custom  itself  (ex  parte  ipsius  consue- 
tudinis)  it  is  required  that  customs  should  be  good  and  rea 
sonable  ;  hence,  they  should  not  be  opposed  to  the  divine  or 
natural  law,"  nor  reprobated  by  canon  law,  nor  give  occa 
sion  to  sin;  neither  should  they  be  adverse  to  the  cor.mon 
interests  of  the  community,  or  subversive  of  ecclesiastical " 
discipline. 

89.  III.  Ex  parte  principis. — The  term  "princeps"  here 
means  the  supreme  lawgiver  of  a  society ;  the  Roman  Pon 
tiff  is  therefore  rightly  called  the  "  princeps  "  of  the  Church." 
Now,  is  the  consent  of  the  Pope  necessary  in  order  that  cus 
toms  may  have  the  force  of  law?     There  is  no  doubt  that 
this  consent  is,  in  some  sense,3"  indispensable.     For,  customs 
are  laws,  and  should  therefore,  whenever  there  is  question 

"Bouix,  De  Princip.,  p.  359,  360.         ^Cfr.  Reiff.,  lib  i.,  *U.  4  n   \th. 

**Sunrez,  De  Leg.,  lib.  vii.,  c.  ix.,  n.  4,  and  cap.  ix.,  n.  i,  2. 

"  Reiff.,  1.  c.,  n.  129. 

SBSt.  Liguori,  lib.  i.,  Tract,  de  Lege,  n.  107.     Mechliniae,  1854, 

MCraiss.,  n.  120.  30Bouix,  1.  c.,  p.  364  seq. 

•'Ib.,  p.  370.  32Ib.?  p.  360). 


Source  of  Canon  Law.  4.7 

of  common  ecclesiastical  laws,  emanate "  from  or  have  the 
sanction  of  the  Holy  See. 

90.  We  said :  The  consent  of  the  Pope  is,  in  some  sfnse 
indispensable.  Now,  what  kind  of  consent  is  essential  r 
The  Pontiff  may  give  his  consent  expressly,  tacitly,  and 
legally.34  i.  As  to  the  express  consent,  there  ran  be  no 
difficulty  ;  for  it  is  certain,  that  as  soon  as  tli'j  Pope  ex 
pressly  sanctions  a  custom,  whether  it  be  /-raster  or  con 
tra  jus,3*  such  custom  obtains  the  force  of  Jaw.  2.  The 
Sovereign  Pontiff  is  said  to  consent  tacitly,  when,  though 
aware  of  a88  custom,  he  does  not  oppose  it.  Is  this 
consent  sufficient  to  legalize"  customs,  whether  praetei 
or  contra  jus  ?  It  is,  provided  the  customs  in  question 
are  reasonable,  and  the  Pontiff  may  easily  protest  against 
them.  If,  however,  he  cannot38  prudently  protect  against 
customs,  contra  jus,  v.g.,  because  he  may,  by  his  disapproval, 
occasion  schism,  persecutions  on  the  part  of  the  civil  power, 
and  the  like,  such  customs  do  not  prescribe  against  the  law. 
3.  As  to  the  legal  consent,  we  cannot  do  better  than  describe 
it  in  the  words  of  Bouix:39  "  I.  Consensus  dicitur  legalis . 
quando  summus  Pontifex  ignorat  consuetudinem,  et  illi  non 
consentit  nisi  per  voluntatem  generalem,  qua  vult  omnei 
consuetudines  rationabilcs  et  Icgitime  pracscriptas  firmas  esse 
et  vim  legis  habere.  2.  Supponitur  autem  semper  in  sum- 
mo  Pontifice  voluntas  haec  generalis."  Now,  is  this  con 
sensus  legalis  sufficient  to  legalize  customs  ?  The  question  is 
controverted  ;  the  "  sententia  multo  communior  " 40  affirms 
that  this  consent  is  sufficient.41  Note,  i,  the  Pope  in  thus 
consenting  is  not  cognizant  of  the  custom  in  question  ; "  2,  a 
custom  cannot  be  approved  by  "  consensus  legalis  "  unless  it 

w  Craiss.,  n.  124.  M  Ib.,  n.  125.  "Bouix,  De  Princip.   p.  371 

**  Ib.,  p.  372,  373.  *  Craiss.,  n.  126.      8e  Bouix,  1.  c.,  p.  374 

"L.  c.,  p.  382.  40  Bouix,  1.  c.,  p.  382,  383. 

*' Suarez,  De  Leg.,  lib.  vii.,  cap  xiii.,  n.  6. 
*"St.  Liguori,  lib.  i.,  De  Lege,  n   107,  v. 


48  On  Custom  as  a 

is  rationabilis  and  legitirne  praescripta.  Now,  when  are  cus- 
toms  lawfully  prescribed  5  The  answer  is  contained  in  the 
following  paragraph. 

91.  IV.    Ex  parte  temporis  sen  diuturnitatis. — A  custom 
besides  being  good  must  be  legitirne "  praescripta.     Now, 
what  length  of  time  is  requisite  to  constitute  legitimate  pre 
scription  ?      Before    answering,    we   premise:     I.    Customs, 
which  are  intrinsically  evil,  can 44  never  obtain  the  force  of 
law  by  virtue  of  prescription ;  2,  if  the  Roman  Pontiff  con 
sents  to  a  custom  personally,  i.e.,  either  expressly  or  tacitly, 
there  is  no  need  of  prescription,  since  custom,  so  soon  as  it 
obtains  this  sanction,  acquires  the  force  of  law.45    3.  Prescrip 
tion,  therefore,  can  legalize  those  customs  only  of  which  the 
Pope  is  not  cognizant,  and  to  which  he  can,  in  consequence, 
give  but  a  legal  consent.46 

92.  We  now  answer  directly:  i,  With  regard  to  customs 
praeter  legem,  the  space  of  ten  years  is  sufficient.     This  is 
universally47  admitted;  2,  as  to  customs  contra  legem,  there 
are  three  opinions.48     The  first  holds  that  the  space  of  ten 
years   is   always   sufficient.      The    second  distinguishes  be 
tween  laws  once  received  and  those  never  received.49     The 
latter  may  be  abrogated  by  decennial  custom  to  the  con 
trary  ;  the  former,  only  by  one  of  forty  years.     The  third 
opinion   maintains  that  the  space  of  forty  years  is  always 
necessary.6" 

93.  What  follows  from  this  diversity  of  opinions  ?    i.  Ten 
years  are  certainly  required  ;  2,  forty  years  are  undoubtedly 
sufficient ;    3,  practically  speaking,  it  would  seem  that  no 
custom  can  abrogate  laws  unless  it  has  existed  forty  years.6' 
Is   good    faith    indispensable  to  prescription  against  laws? 
(contra  legem).     The  question  is  controverted.6'' 


41  Bouix,  1.  c.,  p.  357.  "  Ib.,  p.  385.          •»  Ib..  p.  386.        <e  Ib.,  p.  386. 

47  Reiff.,  lib.  i.,  tit.  4,  n.  91.     4H  Devoti,  vol.  i.,  p.  38.     Leodii,  1860. 

40  Bouix,  1.  c.,  p.  388.  "Craiss.n.  135.     51  Ib.,  0.136.         "Ib.,  n.  137 


Source  of  Canon  Law.  49 


ART.  III. 

What  are  the  Effects  of  Customs  ?     How  are  Customs  Abro 
gated  ? 

94.  Effects  of  Customs, — A   custom  having   the    requisite 
conditions  may,  I,  authentically63  interpret  laws;  2,  abrogate 
pre-existing  laws;  3,  introduce  new  obligations  or  laws;  4, 
invalidate  acts  contrary  to  it.54 

95.  How  are  customs  abrogated?     In  three  ways  : 

i°.  By  subsequent  laws.  Here  we  must  distinguish  be 
tween  (a)  general  and  particular  customs,  (b)  immemorial 
customs  (i.e.,  customs  that  have  existed  a  hundred  years), 
and  those  which  are  "within  the  memory  of  men.  i.  A 
subsequent  general  law  abolishes  all  general  customs  opposed 
to  it,  even  when  they  are  immemorial,  and  the  law  does" 
not  expressly  mention  them."  We  say:  general  customs  ;  for 
particular  immemorial  customs  are  not  thus  abolished,  un 
less  the  law  expressly  abrogates  every  68  custom,  etiam  im- 
memorabilis.  2.  Particular  customs,  not  immemorial,  are 
abolished  by  subsequent  laws  containing  the  clause,  nulla 
obstante  consuetudme™  3.  Bishops,  by  their  laws,  can  abro 
gate  any  particular  custom  whatever  in  their  dioceses.80 

96. — 2°.  By  previous  laws.  We  ask  :  Can  customs  prevail 
"against  anterior  laws,  prohibiting  all  customs  to  the  con 
trary  ?  The  question  is  controverted.61  The  "sententia  pro- 
babilior"  holds  that  customs  may  obtain  against  a  prior  law, 
when  the  latter  merely  prohibits,  but  does  not  reprobate,  cus 
toms"  to  the  contrary. 

97.   Q.  Are  these  principles  applicable  to  the  decrees  of 

"  Reiff.,  lib.  i.,  tit.  4,  n.  158-160.         MBouix,  1.  c.,  p.  390-393.        "  Ib. 

"Craiss.,  n.  139.  "Reiff.,  1.  c.,  n.  182.  ""Craiss.,  n.  140. 

19  Bouix,  1.  c.,  p   394.     60  St.  Liguori,  lib.  i.,  n.  109. 

"  Bouix,  I.e.,  p   396  seq.       ™  Suarez,  De  Leg.,   lib.  vii  ,  cap.  xix.,  n.  ig,  20 


v^o  On  Custom  as  a  Source  of  Canon  Law. 

the  Council  of  Trent — i.e.,  can  the  Tridentine  decrees  be 
abrogated  by  subsequent  customs  to  the  contrary  ? 

A.  There  are  two  opinions  :  The  first  seems  to  hold  that 
some  disciplinary  °3  decrees  may  be  abrogated  by  customs  to 
the  contrary.  There  is  no  doubt  that  in  France,  and  other 
countries  where  the  Council  of  Trent  is  promulgated,  somfe 
of  its  decrees  were  either  never  reduced  to  practice  or  have 
fallen  into  desuetude.  The  second  opinion  maintains  that  cus 
toms  can  in  no  case  abolish  any  of  the  "  Tridentine  decrees. 
In  fact,  Pius  IV.,  in  his  bull  confirming  the  Council,  ex 
pressly  declared  that  its  decrees  shall  have  force  against  any 
custom  whatever  that  may  afterwards  be  introduced.  It 
would  "5  seem  that  the  Holy  See,  in  its  decisions,  has  always 
adhered  to  this  opinion.06  The  Council  of  Trent  is  not,  in 
its  entirety,  published  in  the  United  States. 

98.  Q.  What  is  to  be  thought  of  some  ecclesiastical  cus 
toms  prevalent  in  the  United  States  ? 

A.  Kenrick07  replies:  "  Legibus  ecclesiasticis  in  hac 
regione  plura  solent  fieri  haud  consentanea,  quae  utrum  vim 
consuetudinis  assecuta  sint,  vix  audemus  dicere.  Vehemen- 
ter  commendandos  censemus,  qui  universalis  Ecclesiae  dis- 
ciplinam,  a  primo  Concilio  Baltimorensi  valde  commen- 
datam,  quatenus  rerum  adjuncta  patiuntur,  in  omnibus 
imitantur." 

99. — 3°.  By  customs  to  the  contrary.  For,  legitimate  cus-. 
toms  have  the  force  of  laws  ;  now,  a  prior  law  is  abrogated 
by  a  subsequent  law  of  an  opposite  ™  character.  Hence  also 
previous  customs  may  be  abolished  by  subsequent  customs 
to  the  contrary. 

MCfr.  Craiss.,  n.  144.  "Bouix,  1.  c,  p.  399-409. 

"Cfr.  Devoti,  Prolegom.,  n.  50.       ""  Cfr.  Bened.  XIV.,  Instil.  60,  n.  7. 

87  Mor  ,  Tract.  4,  pars  i.,  n.  42.          °"Bouix,  1.  c.,  p.  409 


CHAPTER   VII. 

ON   NATIONAL   CANON   LAW. 

ART.  I. 
Nature  and  Essential  Conditions  of  National  Canon  Law. 

100.  National  canon  law  (jus  canonicum  nationale)  is  de 
fined:    The   body  of  ecclesiastical  laws  peculiar  to  a  na 
tion.1     By  national  canon  law  we  do  not  mean  the  peculiar 
ecclesiastical  laws  of  a  country  or  nation  which  are  merely 
praeter  jus  commune,  but  those  which  are  at  variance  with 
it*  (contra  jus  commune).     Some  authors,  however,  include 
in  the  national  canon  law  those  laws  also  which  are  praeter 
jus  commune.* 

101.  National  canon  law  may  obtain  in  a  country,4  chiefly 
in  three  ways:    i.   It  may  be  national  or  exceptional  from 
the  very  beginning  ;  or  it  may  become  national,  in  that  the 
jus  commune,  having  everywhere  else  undergone  change, 
remains  unchanged   in  a  particular  nation/     2.  Again,  the 
ecclesiastical  law  governing  a  nation  may  be  exceptional  from 
the  very   beginning  in   two   ways :  a,   by  virtue  of  simple 
privilege,  whereby  the  general  lawgiver  exempts  a  nation 
from  the  universal  law ;  b,  or  by  virtue  of  some  onerous  con 
tract."     3.   Again,  the  privilege  of  exemption  from  the  com 
mon  law  may  be  acquired  by  a  nation,  either  by  the  express 
consent  of  the  general  superior  or  by  custom  having  his ' 
tacit  consent. 

'Craiss,  n.  146.         *  Boiiix,  De  Princip.,  p.  74.        'Craisson,  Man.,  n.  148. 
Mb.,  n.  146.  *Bouix,  1.  c,  p.  74.  Mb.  Mb.,  p    75 


52  On  National  Canon  Law, 

1 02.  We   ask :    Can  national   canon    law   be   considered 
legitimate  without  the  consent  or  authority  of  the  Roman 
Pontiff?      All    national   canon    law    is   more   or   less   a   de 
rogation  from    the    common  law  of   the  Church ;    hence  it 
cannot   become    lawful   unless    sanctioned8    by    the     Pope. 
Afe   say,  by   the  Pope  ;*  for  no  other   power,  whether  civil 

or  ecclesiastical,  can  dispense  from  or  repeal  in  part  the 
universal  law  of  the  Church.1"  Not  the  civil  power,  as 
is  evident ;  nor  an  ecclesiastical  power  inferior  to  the 
Pope,  such  as  councils,  whether  oecumenical,  national, 
or  provincial,  for  no  council  is  oecumenical  save  when 
approved  by  the  Sovereign  Pontiff.  National  councils, 
far  from  being  competent  to  alter  or  annul  in  part— 
i.e.,  in  some  particular  country — the  jus  commune  of  the 
Church,  are  themselves  bound  to  observe  it ;  this  holds, 
a  fortiori,  of  provincial  councils,  bishops,  and  other  ecclesi 
astical  superiors." 

103.  For  the  rest,  says  Bouix,  the  Church,  out  of  com 
passion  for  the  weak,  often  tolerates  in  different   parts   of 
the    Catholic    world,   customs    which    are   opposed    to    hrr 
general  law.1" 

104.  Q.    Can    the   Sovereign    Pontiff  annui   all    national 
canon  law  ? 

A.  We  reply  in  the  affirmative.  For,  national  canon  law, 
whether  originating  in  custom,13  statutes,  privileges,  or  con 
cordats,  depends  upon  the  express  or  tacit  sanction  of  the 
Pope.  Now,  as  it  is  in  the  power  of  the  Pontiff  to  give  his 
consent,  so  also  is w  he  at  liberty  to  withdraw  it,  and  thus 
abolish  the  "jus  canonicum  nationale  "  wherever  it  may 
exist. 

105.  It  may,  however,  be  asked  whether  national  canon 
law,  based  upon  concordats  or  solemn  agreements  between 

•  Bouix,  1 .  c  .  p.  75-        '  Cfr.  Craiss.,  n.  147.         )0  Bouix,  1.  c.,  p.  76.         "  Ib 
Mb.,  p.  76,  77.  13Cfr.  Phillips,  Kirchenr,  vol.  v.,  §  206,  p.  95. 

MCfr.  Bouix,  1.  c.,  p.  77. 


On  National  Canon  Law.  53 

the  Holy  See  and  civil  governments,  may  be  annulled  by 
the  Pope.  There  can  be  no  doubt  that  the  Holy  See  is 
bound,  as  a  general  rule,  to  observe  these  agreements.15  We 
say,  as  a  general  rule ;  for  it  is  commonly  held  by  canonists 
that  the  Pontiff  may  recede  from  concordats  when  there  are 
just  reasons  for  so  '"  doing.  In  fact,  it  is  controverted  whe 
ther  concordats  are  contracts  proper  or  mere  privileges. 
Again,  it  seems  to  be  commonly  admitted  that  in  all  agree 
ments  entered  into  by  the  "  Sov.  Pontiff  this  condition  is 
understood  :  Nisi  aliud  exigat  causa  gravis  et  extraordinaria 
propter  bonum  commune  ecclesiae. 

ART.  II. 

Of  American  Canon  La\v,  or  of  the  National  Canon  Law  of  the 

United  States. 

106.  Q.  What  is  meant  by  American  canon  law  ? 

A.  By  the  national  eccl.  law  of  this  country  we  under 
stand  the  various  derogations  from  the  "jus  commune,"  or 
the  different  customs  that  exist  among  the  churches  in  the 
United  States,  and  are  sanctioned  or  tolerated  by  the  Roman 
Pontiff.18  We  say,  "  are  sanctioned  or  tolerated  by  the  Roman 
Pontiff" ;  for,  as  was  seen,  no  national  law  can  become  legiti 
mate  except  by  at  least  the  tacit  or  legal "  consent  of  the  Pope. 
Again,  the  "jus  particulare "  of  a  nation  always  remains 
subject  to  the  authority  of  the  Holy  See  in  such  manner  as 
to  be  repealable ao  at  any  time  by  it.  Hence,  the  jus  nation- 
tie,  or  the  exceptional  ecclesiastical  laws  prevalent  in  the 

tt  Soglia,  vol.  i.,  p.  117. 

MCfr.  Bouix,  1.  c.,  p.  78,  seq.     Cfr.  S.  Liguori,  De  Priv.,  15. 

"Craisson,  n.  150. 

"  Bouix,  De  Princip.,  p.  84.     Cfr.  Craisson,  Man.,  n.  151. 

*Clr.  Craisson,  Man.,  n.  151.  ••  Bouix,  1.  c.f  p.  8«. 


54  On  National  Canon  Law. 

United  States,  may  be  abolished  at  any  time  by  the  Sovereign 
Pontiff. 

f^iP  107.  Peculiar  Features  of  our  National  Canon  Law.— 
The  o-eneral  character  of  the  national  canon  law  of  the  United 

O 

States,  as  contained  in  the  Plenary  Councils  of  Baltimore 
and  in  the  decrees  of  the  Provincial  and  Diocesan  Synods 
of  this  country,  is  that  of  a  missionary  country — i.e.,  of  a 
country  which  is  not  yet  converted  to  the  faith.  Now,  in 
missionary  countries  the  disciplinary  organization  or  regime 
of  dioceses  is  naturally  imperfect  and  inchoative  in  the  be 
ginning,  and  only  develops  itself  gradually,  in  proportion  as 
the  faith  spreads  and  the  Church  flourishes.  As  a  rule,  the 
S.  C.  de  P.  F.  at  first  appoints  for  such  a  country  a  priest  in 
the  capacity  of  Praefectus  Apostolicus.  Afterwards,  when  the 
diocesan  organization  is  more  advanced,  it  appoints  a  Vica- 
rins  Apostolicus,  who  is  made  a  titular  bishop,  i.e.,  a  bishop  in 
part.  inf.  Lastly,  when  the  diocesan  organization  has  pro 
gressed  farther,  bishops  with  residentiary  sees  are  appointed. 
Still,  even  these  bishops  and  their  dioceses  remain  under 
the  sole  direction  of  the  S.  Congr.  de  Prop.  Fide,  and  retain 
their  missionary  character  until  the  diocesan  regime  becomes 
perfected  to  such  a  degree  as  to  be  in  full  conformity  with 
the  sacred  canons. 

108.  The  organization  of  parishes  in  missionary  countries 
progresses  in  a  similar  gradual  manner.  At  first,  there  will 
be  simple  missionaries  travelling  from  place  to  place,  and 
gathering  together  small  and  scattered  congregations  which 
will  be  nothing  but  missions.  As  these  missions  or  congre 
gations  grow  and  prosper,  they  assume  the  character  of 
quasi-parishes  with  fixed  limits,  and  the  missionary  becomes 
a  resident  rector  or  quasi-parocJnis,  and  should  not  be  re 
moved  by  the  bishop  without  sufficient  cause.  Finally, 
when  the  quasi  parish  has  acquired  a  stable  existence  and 
become  possessed  of  sufficient  income  for  the  maintenance 
of  divine  worship,  whether  in  the  form  of  pew-rents,  collec- 


On  National  Canon  Law.  55 

tions,  etc.,  or  of  other  sources,  it  is  raised  to  the  dignity  of 
a  parish  in  the  full  and  canonical  sense  of  the  term,  and  its 
rector  becomes  a  canonical  parish  priest  proper.  The  de 
crees  of  the  respective  Plenary,  Provincial,  and  Diocesan 
Synods  regulating  this  peculiar  condition  of  things  consti 
tute  the  national  canon  law  of  a  missionary  country. 

When  a  diocese  and  its  parishes  have  thus  become  proper 
ty  organized,  it  is  transferred  by  the  Pope  from  the  control 
of  the  Propaganda  to  that  of  the  other  respective  Sacred 
Congregations,  especially  of  the  bishops  and  regulars  and  of 
the  Council,  and  thus  it  ceases  to  be  a  missionary  diocese 
and  falls  under  the  general  disciplinary  law  of  the  Church. 

109.  The  missionary  condition  of  the  Church  in  the 
United  States  is  fast  passing  away,  except  so  far  as  concerns 
some  few  dioceses  of  the  far  West  and  extreme  South.  In 
the  greater  portion  of  this  country,  magnificent  churches, 
capacious  schools,  and  fine  parochial  houses  have  sprung 
up  on  all  sides.  These  parishes  have,  as  a  rule,  an  abundant 
income  in  the  shape  of  pew-rents  and  collections  or  dona 
tions.  It  is  indeed  no  exaggeration  to  say  that  our  parishes 
are,  generally  speaking,  in  a  more  flourishing  condition  than 
in  the  Catholic  countries  of  Europe.  No  wonder,  then,  that 
our  wise  and  glorious  Pontiff,  Leo  XIII.,  happily  reigning, 
has.  through  the  Third  Plenary  Council  of  Baltimore,  caused 
such  laws  to  be  made,  especially  respecting  diocesan  con- 
suitors,  the  election  of  bishops,  the  appointment  and  re 
moval  of  a  number  of  rectors,  as  bring  us  nearer  to  the  gen 
eral  discipline  of  the  Church. 


CHAPTER   VIII. 

ON    PRIVILEGES   (DE   PRIVILEGIIS). 

ART.  I. 
Nature,  Division,  etc.,  of  Privileges. 

1 10.  A  privilege  is  defined :  "  Privata  lex  aliquid  speciale 
concedens  contra  vel  praeter  jus."       A  privilege  is,  i,  a  law 
(lex),  not  in  the  sense  that  those  who  receive  a  privilege  are 
also  bound  to  make  use  of  it,  but  because  others  are  pro 
hibited  from  placing  any  obstacles  in  the  way  of  the  use  or 
exercise  of  privileges."     2.  A  privilege  is  termed  a  private 
law  (lex  privata),  not  in  the  sense  that  a  favor  is  granted  to 
one  person  only,  but  because  by  privileges  a  special  right  or 
favor  is  by  a  particular  law  conferred,  either  upon  an  indi 
vidual  or  a  community.     This  special  right  may  be  either 
contra  or  praeter  jus  commune.3 

111.  Privileges  being  private  laws  are  of  force  without 
being    solemnly   promulgated.     Hence,   in   order   to   cause 
other  parties  to  respect  a  privilege,  it  is  sufficient  to  inform 
them  of  it  privately,  either  by  showing  them  the  rescript  or 
in  some  other  manner.4 

H2.  Privileges  must  be  made  known  to  ordinaries,  I, 
even  when  thi^  is  not  demanded  by  them,  if  the  privilege 
contains  the  clause  "  certioratis  locorum  ordinariis "  ;  also 
when  there  is  question  of  publishing  new  indulgences  ;  2t 

'Ferraris,  V.  Privilegium,  art.  i.,  n.  i. 

"Reiffenst.,  lib.  v.,  Decretal,  tit.  xxxiii.,  n.  3.     Edit.  Paris,  1869. 

"Suarez,  De  Leg.,   lib.  viii.   cap.  i.,  n   3,  4.  4  Craisson,  Man.,  a.  157 

56 


On  Privileges.  57 

on  demand  of  ordinaries  those  privileges  must  be  exhibited 
which  relate  to  the  exemptions  of  religious  institutes,  pro 
vided  these  exemptions  are  not  sufficiently  known. 

113.  A  privilege  differs  from  a  dispensation  in  this,  that 
the  latter,  being  merely  an  exemption  *  from  the  universal 
law,  or  a  suspension  of  it  in  a  particular  case,  is  not  a  law, 
not  even  a  "  lex  privata,"  *  and  is  therefore  not  necessarily 
permanent.7     A  privilege,  moreover,  is  distinguished  from  a 
mere  permission  (licentia);8  the  latter  being  given  only  for 
a  few  acts.' 

114.  Division. — Privileges  are  divided:   i,  into  privileges 
"  contra  jus  " — v.g.,  exemption  from  the  jurisdiction  of  the 
ordinary,  and  into  privileges  "  praeter  or  ultra  jus  " — v.g.,  the  " 
power  to  absolve  from  reserved  cases,  to  grant  dispensations, 
etc. ;  2,  privileges  are  real,  personal,  and  mixed.     A  "  privile- 
gium  reale  "  attaches  proximately  and  immediately  to  a  thing, 
place,  office,  or  dignity  ;  it  passes  to  the  successors  in  "  office. 
Kenrick  gives  an  instance  of  a  real  privilege  :  Sic  privile- 
gium  est  reale,  altaris  cujusdam,  quod   indulgentia  plenaria 
applicabilis   defunctis   a   cclebrante   in  eo  impetretur.1*     A 
"  privilegium  personale  "  is  one  that  is  conferred  directly  upon 
a  certain  person,  "  ratione  sui " — i.e.,  in  view  of  his  merits  ;" 
it  is  not  transmissible  if  attached  to  an  individual,  but  if  at 
tached  to  a  moral  person — i.e.,  a  community— it  continues14 
in   force,  per   se,  so  long  as  the   community  itself  exists. 
"  Privilegium  mixtum  "  is  partly  personal  and  partly  real." 

115. — 3.  Some  privileges  are  contained  in  the  body  of 
the  canon    law  (privilegia  in  corpore  juris  clausa) ;  others 


'Phillips,  Lehrb.,  §  92,  p.  176.         *  Ib.         T  Craisson,  1.  c.,  n.  159.          'Ib. 
"St.  Liguori,  De  Priv.,  n.  i. 

I  Ferraris,  V.  Privilegium,  art.  i.,  n.  3.     Genuac,  1768 

II  Rciff. ,  lib.  v.,  tit.  xxxiii.,  n.  12,  13.  "Mor. ,  Tract.  4,  pars,  i.,  n.  62. 
11  Su.trez,  De  Leg.,  lib.  viii.,  cap.  iii.,  n.  2.     Neapoli,  1872. 

"  Bouix,  De  Jure  Regular.,  torn,  ii.,  p   75.     Paris,  18^7. 
*R"ifT..  1.  c..  n.  u. 


5  8  On  1  yrivileges. 

are"  conferred  by  special  letters — v.g.,  bulls,  rescripts,  in- 
dults  (privilegia  extra  corpus  juris). 

116. — 4.  A  privilege  is  gratiosum  when  given,  not  in  view 
of  any  merits;  n  remunerativum,  when  bestowed  as  a  reward 
or  recompense  ;  cowuentionale,  or  purum,  according  as  it  is 
based  upon  an  agreement,  or  not  so 18  based. 

117. — 5.  Privileges  are  perpetual  if  given  without  limit 
of  time — i.e.,  for 13  an  indefinite  period ;  they  are  temporary 
when  bestowed  for"  a  certain  period — v.g.,  ten  years. 

uS. — 6.  Privileges  are  per  se  and  ad  instar.  Privilegia 
ad  instar  are21  those  which  are  granted  on  the  model  of 
other  privileges. 

119. — 7.  Privileges  are  named  communia  when  they  are 
bestowed  upon  communities ;  privata,  when  given  to  indi 
viduals.  A  person  may  renounce  his  own23  private  privi 
lege,  but  he  cannot  give  up  a  privilege  pertaining  to  a 
community  of  which  he  is  a  member.  Thus  a  clergyman  is 
not  at  liberty  to 23  disclaim  the  benefit  of  clergy  (privilegium 
fori)  where  it  is  in  force." 

1 20. — 8.  Privileges  are  usually  granted  by  the  Pope  in 
writing  (litteris) ;  sometimes  also  orally  (privilegia  vivae 
vocis  oraculo  concessa).  9.  Again,  the  Pope  bestows  privi 
leges  either  motu  proprio '"  or  ad  instantiam. 

121.   Q.  Who  can  bestow  privileges? 

A.  Only  those  who  have  the  power  to  enact a>  laws. 
Hence,  the  Pope  alone  may  everywhere  concede  privileges 
contra  jus.  Bishops  may  confer  privileges,  by  which  exemp 
tion  is  granted  from  "  statutes  made  by  themselves  or  their 
predecessors. 

"  Ferraris,  V.  Privileg.,  art.  i.,  n.  4.  "  Craisson,  Man.,  n.  160. 

18  Ib.     "  Reiflf.,  lib.  iv.,  tit.  xxxiii..  n.  18.      M  Phillips,  Lehrb.,  §  92,  p.  176. 

11  Reiff.,  1.  c.,  n.  20.  M  Bouix,  De  Jur.  Regular.,  torn,  ii.,  p.  75. 

"  Cfr.  Blackstone,  bk.  iv  ,  ch.  28. 

84  Cfr.  Kenrick.  tract  iv.,  pars,  i.,  n.  65. 

**  Phillips,  1.  c.  -°  Craisson,  1.  c.,  n.  161.  *  Reiff..  1.  c.,  n.  «6. 


On   Privileges,  59 

122.  Privileges   are   acquired,    i,  by    concession  of  the 
proper  superior;2"  2,  by  lawful  custom  when  there  is  ques 
tion  of  a  community  ;  by  prescription  in  the  case  of  private 
persons ;  "  3,  among  regulars,  by  communication." 

123.  As  a  rule,  privileges,  though  not  containing  a  de 
rogatory  clause,  may  nevertheless  derogate  from  the  com. 
mon  law  of  the  Church  ; 31  but  when  the)7  are  to  restrict  the 
jurisdiction  of  the  ordinary,  the  parties  interested  should  be 
heard  in  their  own32  behalf,  except  where  the  Pope  directs 
otherwise. 

124.  Privileges,  in  order  to  be  valid,  need  not,  ordinarily 
speaking,  be  given  in  writing™ 

125.  Does  a  privilege  properly  conceded  take  effect  as 
soon    as   it    is    conferred,   or    only  when    it    comes   to   the 
knowledge  of  the  privileged  person  ?     The  question  is  de 
bated.      The    more    probable   opinion    appears   to   be   that 
which   thus   distinguishes : 34    If  the   privilege   is  bestowed 
motu  proprio,  and  not  at  the  request  of  the  privileged  party, 
it  does  not  usually  take  effect  before  it  has  been  brought  to 
the  notice  of,  and  accepted  by,  the  privileged  person.30     If, 
however,  it  is  conceded  at  the  solicitation  of  the  privileged 
party  (ad  preces  privilegiati),  it  takes  effect  immediately  upon 
being    granted.36      Hence,    where    the    Tridentine    decree 
Tametsi  obtains,  a  priest  having  written  to  the  bishop  or 
parish  priest  for37  permission  to  bless  a  marriage  can  assist 
validly 8"  at  the  marriage,  even  before  receiving  an  answer, 
provided  the  permission  was 38  really  given  before  the  cere 
mony  took  place.     The  same  holds  true  of  all  cases  where 
dispensations  or  other  faculties  are  asked  from  the  bishop. 

**  Reiff.,  lib.  v.   tit.  xxxiii..  n.  38.  M  Craiss.,  n.  161. 

10  Suarez,  De  Leg.,  lib.  viii.,  cap.  vii.,  n.  4,  5.  "St.  Liguori,  De  Priv.,  n.  2. 
**  Craiss  ,  n.  162.  33  Ib.,  n.  163.  S4  Bouix,  De  Jure  Regular.,  vol.  ii.,  p.  76 
M  Cfr.  Reiff.,  1.  c.,  n.  42-46.  *  Ib.,  n.  46-48.  37  Ib.,  n.  48. 

**  We  say  validly  ;  for  he  cannot  do  so  tawfullv  except  for  sufficient  reasons 
(Cfr.  Reiff.,  1.  c.,  n.  48.)  M  Bouix,  1.  c.,  p.  76. 


60  On  Privileges. 

The  following  practical  rule  of  conduct,  observable  of 
course  also  in  the  United  States,  may  therefore  be  laid 
down  :  Wh'en  a  priest  has  written,  or  sent  a  messenger,  to 
the  bishop  or  chancellor  for  a  dispensation  or  for  faculties  to 
absolve  from  reserved  cases,  he  may,  upon  reasonable  cause, 
marry  the  parties  for  whom  he  asked  the  dispensation,  or 
impart  absolution  from  reservations,  even  before  he  receives 
the  answer  of  the  bishop  or  chancellor,  provided  he  has  rea 
son  to  believe  that  the  faculty  was  really  granted  at  the 
time.49 

126.  Confirmation  of  privileges. — The   renewal   (innovatio) 
•or  rather41  confirmation  (con fir  mat  id]  of  privileges  aliud  non 
est  quam  corroboratio  privilegii  legit  line  jam  habit 7."      Under 
certain    circumstances,    privileges   already    possessed    by    a 
person  must    be    renewed,    or,    rather   confirmed.43       They 
are  confirmed  in  two  ways:    i,  in    forma    communi  ;    2,   in 
forma    speciali — i.e.,    ex    certa    scientia.44      The    effects   of 
each    of  these   confirmations  are   given   in  detail  by   Reif- 
fenstuel." 

127.  The  use  of  privileges. — As  a  rule,  no  one  is  bound  to 
m  ike  use  of  his  privileges.46     We  say,  as  a  rule ;  for  there 
are  several  exceptions — v.g.,  if  the  privilege  redounds  to  the 
bonum  commune  ;  or  if  it  is  a  privilegium  reale — />,  attached 


40  We  must  not  be  misunderstood,      i.   We  do  not  affirm  that  it  is  allowed 
to  make  use  of  presumptive  dispensations.     For,  dispensations  are   presump 
tive  when  it  is  presumed  that  the  bishop,  if  applied  to,  would  readily  grant 
them,  but  not  when  he  is  actually  asked  for  them,  as  in  our  case.     2.  Nor  do 
we  hold  that  a  priest  can,  as  a  rule,  absolve  cum  jmisdictionc  dubin,  in  dubio 
facti — v.g.,  when  he  is  in  doubt  whether  the  bishop  has  given  him  faculties  in 
the  case  ;  for,  in  our  case,  the  petitioner,  though  not  officially  informed,  is  never 
theless  morally  certain  from  other  sources — ;/.*.,  because  he  knows  that  the  let 
ter  reached  the  bishop  or  chancellor  and  that  the  faculty  is  never  refused — thai 
the  bishop  has  granted  the  faculties.     (Cfr.  Gury.,  Edit.  Ballerini,  vol.  i.,  a 
Il8  ;  voi    ii.,  n.  549.) 

41  Cfr.  Phillips,  Lehrb.,  p.  176.       «  Reiff.,  1.  c.,  n  73.       43  Phillips,  1.  c. 

44  Boiii.x.  1.  c.,  p.  78.  *  L.  c.,  n.   77-82.  "  Craiss.,  n.  166- 


On  Privileges.  6  i 

io  a  place,  dignity,  or  state,  such  as  privileges  of  bishops  and 
regulars ;  in  these  and  several  other  cases,  privileged  per 
sons  cannot  renounce  their  47  privileges. 

128.  Q.  How  are  privileges  to  be  explained? 

A.  We  must  distinguish  between  extensive  and  com 
prehensive  interpretation.  The  former  is  that  by  which 
the  meaning  of  a  law  is  extended  to  other  cases  and 
persons,  beyond  the  wording  of  the  law,  and  at  the  same 
time  beyond,  though  not  against,  the  intention  of  the  law 
giver.  The  latter  is  that  by  which  the  meaning  of  a  law 
is  extended  beyond  its  words,  but  not  beyond  the  inten 
tion  of  the  lawgiver.4'  Again,  privileges  may  be  inter 
preted  by  the  law-maker  himself  (interpretatio  auctoritativa, 
definitiva)  or  by  private  doctors4'  (interpretatio  doctri- 
nalis). 

Having  premised  this,  we  now  answer  :  Privileges,  which 
are  "contra  jus  commune,"  and  prejudicial  to  other  par 
ties,60  must  be  strictly  construed;  except,  however,  i,  when 
they  are  in  the  Corpus  juris  ;  2,  or  given  "  motu  proprio  "  ;  or 
3,  bestowed  upon  religious  communities." 

129.  Q.  How  do  privileges  lapse? 

A.  \.  By  revocation  (revocatione).  The  Sovereign  Pon 
tiff  can,  where  the  good  of  religion  so  requires,  revoke  privi 
leges.  The  Council  of  Trent  revoked  many  privileges — 
their"  number  having  become  too  great.  Privileges  may  be 
validly  revoked  63  even  without  any  cause  ;  but  when  they 
were  conceded  as  a  recompense,  or  have  the  force  of"  con 
tract,  a  just  cause  is  required.  Revocation  may  be  express 
or  tacit.  Express  revocation  is  either  special  or  general. 
General  revocation  is  subdivided  5:'  into  ordinary  and  extra 
ordinary.  2.  The  Pope  is  especially  free  to  revoke  privi 
leges  when  they  are  granted  conditionally — i.e.,  subject  to 

4T  Craiss.,  n    166.  «•  Bouix.  1.  c  ,  p.  78.  4*  Reiff.,  1   c.,  n.  95,  96. 

M  Ferraris;,  V.  Privile^.,  art.  ii  ,  n.  27.         "  Phil  ips,  Lehrb.,  §  92,  p.  177. 
H  Ib.  M  Craisson,  Man.,  n.  '69.  4  Rciff.,  lib  v.,  tit.  xxxiii.,  n.  12* 

*  Bouix,  De  Jur.    Regular.,  vol.  ;L,  p.  80 


62  On  Privileges. 

revocation.  Privileges  thus  conditioned  lapse  at  the  de  ith 
of  the  L"  grantor,  when  they  are  given  "  usque  ad  beneplaci- 
turn  nostrum  "  ;  but  they  continue  to  be  of  force  even  after 
the  death  of  the  grantor,  if  they  are  bestowed  "  usque  ad 
apostolicae  sedis  51  beneplacitum,"  or  with  the  words,  "  donee 
revocavoro."  3.  Personal  privileges  lapse  with  the  death  of 
1  he  person"  privileged.  4.  Privileges  may  also  lapse,  by 
being  expressly  or  M  tacitly  given  up  or  renounced  (renun- 
tiatione).  5.  Privileges  are  lost,  and  that  sometimes  ipsc 
facto,  by 60  being  abused.  Clerics,  for  instance,  living  like 
laymen,  are  deprived  of  the  benefit  of  clergy." 

"  Phillips,  J.  c.  "  Ib.,  p.  177-  "  Ib. 

"  Ib.,  1.  r.,  p.  177.  M  Ib.  "  Reiff,  1.  c.,  n.  i76-l»o. 


CHAPTER  IX. 

ON  THE  HISTORY  OF  THE  COMMON  CANON  LAW  ;  OR  ON 
THE  HISTORY  OF  THE  CANON  LAW  OF  THE  ENTIRE 
CHURCH. 

ART.  1. 

Of  Collections  of  Canons  in  General  (De  Collectionibus  Canonum 

in  Geuere.) 

130.  Down  to  the  second,  and  perhaps  third,  centuries  of 
the  Church,  the  Sacred  Scriptures  and  the  "  Rules  laid  down 
by  the  Apostles,"  or  apostolic  '  men,  constituted  the  law  of 
the  Church  in  the  East  as  well  as  in  the  West. 

131.  Later  on,  however,  numerous  canons   were  framed 
by  councils.     The  canons  of  councils   and   the   decrees  of 
Sovereign  Pontiffs  were  at  various  times  collected  into  one 
code1  and  arranged  in  a  methodic  manner.     These  codes 
were  named  Collectiones  Canonum.      The  history  3  of  canon 
law,  therefore,  may4  be  appropriately  called  "  History  of  the 
Collections  of  the  Sacred  Canons,"  or  also  "  History  of  the 
Sources6  of  Canon  Law." 

132.  In  order  to  form  a  correct  idea  of  the  canons  of  the 
Church,  it  is  necessary  to  know  the  nature "  both  of  the  dif 
ferent  collections  and  of  the  canons  themselves.     We  shall 
therefore  say  a  few  words  on  each. 

1  Bouix.  De  Princip.,  p.  425.  "  Soglia,  vol.  i.,  p.  86. 

1  Cfr.  Devoti,  Prolegom.,  cap.  iv.,  §  51.     "Leodii,  1860. 
4  Walter,  Lehrb.,  §  61.  '  Phillips,  vol.  iv.,  §  167. 

*  Salzano,  Diritto  Can.,  vol.  i.,  p.  sq. 

63 


64  On  the  History  of  the 

133. — I.  Character  of  the  various  Collections. — The  great 
utility  of  these  collections  consisted '  in  this,  that  the  canons 
which  were  scattered  through  many  volumes  were  grouped 
together  and  exhibited  to  the  view  of  the  student  at  a 
glance.  Moreover,  these  collections,  when  made  by  public 
authority,  served"  to  distinguish  the  genuine  from  the 
spurious  canons.  A  few  observations  in  regard  to  these 
collections  in  general  will  suffice. 

I34. —  K  in  matters  of  faith  there  must  be  unity  through 
out  the  whole  Church.  For,  as  Tertuliian  says :  "  Regula 
fidei  una  omnino  est,  sola,  immobilis,  et  irreformabilis." 
But.  in  matters  of  discipline,9  different  practices  may  lawfully 
exist  in  the  various  parts  of  the  Church  ;  in  other  words, 
national  canon  law  may  lawfully  obtain  among  the  different 
nations  of  Christendom.  Hence,'"  some  churches — v.g.,  the 
Oriental,  the  African,  the  Spanish— had  their  collections, 
which  contained  not  only  the  canons  of  the  universal 
Church,  but  also  those  of  the  respective  particular  church. 

135. — 2.  The  mere  placing  together  of  canons  in  one  col 
lection  "  adds,  of  itself,  no  weight  to  the  canons  themselves. 
Hence,  canons  compiled  in  a  code  by  private  authority  have 
no  other  authority  than  what  they  would  have  "  out  of  the 
collection.  If  canons,  therefore,  are  to  have  any  authority 
'  ratione  collectionis,"  the  collection  itself  must  be  made,  or 
at  least  approved,  by  public  authority.  Collections,  there 
fore,  of  canons  when  made  or  received  ''  by  the  authority  of 
the  Holy  See  or  oecumenical  councils,  are  binding  on  all 
the  faithful ;  but  when  made  by  authority  of  the  bishops  of  a 
n;,tion  or  country,  on  the  faithful  only  of  such  country. 

^6. — 3.  Finally,  canons  or  collections  are  apocryphal  or 
•supposititious  M  when  not  ascribed  to  the  proper  author  or 
^  h  -n  interpolated  or  altogether  spurious. 

'  Soglia,  vol.  i.,  p-  36.      "  Salzano,  1.  c..  p.  58.  59.      '  Ap.  Soglia,  I.  c.,   p.  "6 
1(1  Tb.  "  Ib.,  p.  87  w  Salzano,  I.  c.,  p.  59. 

11  Soglia,  1    c.  '  Ib. 


Common   Canon  Law.  65 

137. — II.  Nature  of  the  Canons  themselves. — As  the  sub 
ject-matter  of  canon  law  is  threefold,  namely,  faith,  morals, 
and  discipline,  so  there  are  three  kinds  of  canons :  i,  canones 
fidei  or  canones  dogmatic!  ;  2,  canones  morum  ;  3,  canones 
disciplinae.1 

133,._i.  Canones  dogmatici  are  those  "in  quibus  aliquid 
credendum  proponitur."  Two  things  are  required  to  con 
stitute  a  dogmatic  canon  :  I,  that  the  truth  enunciated  in  the 
canon  be  revealed;  2,  that  it  be  proposed1"  by  the  Church. 
As  to  the  marks  by  which  canons  are  known  to  be  dogmatic, 
see  Soglia.17 

!3Q. — 2.  Canones  morum  relate  to  those  things  "  quae  in 
humanis  actibus,  propter  se,  honesta  sunt  vel  turpia,  adeoque 
vel  agenda  vel  omittenda."  I!  Many  canons  of  this  kind  are 
found  in  the  Decretum  Gratiani— v.g.,  in  regard  to  contracts, 
oaths,  adulteries,  thefts,  usuries,  and  the  like.  As  these 
canons  either  enjoin  what  is  intrinsically  good,  or  prohibit" 
what  is  intrinsically  evil,  they  can  never  be  abrogated. 

140. — 3.  Canones  disciplinares  are  those  "  qui  feruntur  ad 
puritatem  fidei,  honestatem  morum,  divinique  cultus  sancti- 
tatem  tuendam."  °  To  this  class  belong  those  canons:  i, 
which  decree  censures  and  other  ecclesiastical  penalties 
against  heretics,  adulterers,  etc. ;  2,  or  lay  down  the  precept 
of  paschal  communion  ;  3,  or  also  regulate  the  appointment 
to  ecclesiastical  offices;  4,  or  regard  the  administration  01 
the  sacraments,,  sacred  rites,  and  the  like.21  We  observe 
here  that  although  canons  may  be,  according  to  Cardinal 
Soglia,  divided  into  three  kinds,  as  was  just  seen,  they  are 
nevertheless  more  usually  divided  into  two  k'nds  only, 
namely,  into  dogmatic  and  disciplinary." 


"  Soglia,  1.  c.,  p  13  §  8.  ie  Ib.  §  9,  p.  16.  '"  Ib.,  p.  10. 

'•  Ib.,  vol.  i.,  p.  19.  "  Ib.,  P.  20,  §  12.  "Ib.,  §13.  P- 20. 

•  Ib.  p.  21  "Ib.,  p.  15  &8. 


66  On  the  History  of  the 


ART.  II. 

Of  the  State  of  Canon  Law  in  the  Oriental  Church — Eastern 

Collections. 

141.  The  chief  collections  of  canons  of  the  Eastern 
Church  are : 

I.  The  celebrated  and  very™  ancient  Collection  referred  to  in 
the  Council  of  Chalcedon  (451). — In  actione  4*2  and  \\a  of  this 
Council,  we  read  that  certain  canons  were  read,  by  order  of 
the  Council,24  out  of  a  code  or  book  of  canons.  There  is  no 
doubt,  therefore,  that  a  collection  existed  at  the  time  ;  its 
compiler,  however,  is  entirely  unknown.  It  contained  166 
canons,  enacted  respectively"  by  the  Councils  of  Nice, 
Ancyra,  Neo-Caesarea,  Gangra,  Antioch,  Laodicea,  and 
Constantinople.  Phillips  M  holds  that  this  collection  had  no 
official  character  and  was  not  recognized  by  the  Council  of 
Chalcedon  as  having  authority  in  the  entire  Church.  Sal- 
zano,"  however,  maintains  that,  although  the  collection 
comprised  the  canons  of  the  Eastern  Church  only,  it  was 
nevertheless  approved  by  the  entire  Church  in  the  Council 
of  Chalcedon. 

I42- — II-  The  Collection  of  John,  surnamed  Scliolasticus. — 
This  author  added  to  the  above  collection  the  canons  of  the 
Apostles,  of  the  Councils  of  Sardica,  Ephesus,  Chalcedon, 
also  68  canons  taken  from  the  Epistles  of  St.  Basil."  The 
collection  is  divided  into  fifty  titles,  treating  first  of  bishops, 
then  of  priests,  deacons,  etc.  After  John  was  made  Patri 
arch  of  Constantinople  (A.D.  564)  he  compiled  "  another  col 
lection,  in  which  were  grouped  together  not  only  the  canons 

w  Soglia,  vol.  i.,  p.  92.      S4  Cfr.  Bouix,  De  Princip.,  p.  415,  416. 

18  Soglia,  1.  c.,  p.  93.         M  Kirchenr.,  vol.  iv.,  §  169,  p.  20.     Ratisbon.  1851 

"  Diritto  Can.,  vol.  i.,  p.  61   o?.  »  Soglia,  1.  c.,  p.  93. 

19  Bouix,  De  Princip.,  p.  420,  H;i. 


Common   Canon  Law.  67 

of  the  Church,  but  also  the  laws  of  the  empire  which  had 
any  relation  to  the  laws  of  the  Church ;  this  collection  was 
consequently  termed  Norno-Canon.™ 

143. — III.  Collection  of  Phot  his,  Pseudo-Patriarch  of  Con 
stantinople  -  -Fhotius  compiled  his  Nomo-Canon  in  858,  and 
divided  it31  into  fourteen  titles.  It  contains  the  seeds  of 
the  Greek  schism. 

144. — IV.  Commentaries  on  the  Greek"  code  were  writ 
ten  by  the  monk  Zonaras  in  1120,  and  by  Theodore"  Balsa- 
mon  in  1 1 70. 

145. — V.  Synopses  or  Abridgments  of  the  code  were  made 
by  Simeon,  the  master  and  logothete,  by  Aristenus,  Arsenius 
(1255),  Harmenopulus  (1350),  and  others.34 

146. — VI.  State  of  Cation  Law  in  the  Greek  and  Russian 
Church  at  the  present  day. — The  collection  of  Photius,  the 
commentaries  of  Zonaras  and  Balsamon,  and,  finally,  the 
latest  enactments  of  the  various  patriarchs,  constitute,85  so  to 
say,  the  body  of  laws  by  which  the  Greek  Church  is  gov 
erned  at  present.  The  Russian  Church  is,  at  present,  ruled 
chiefly  by  the  decrees  of  the  so-called  "Holy  Synod"'* — 
a  permanent  senate  instituted  by  Peter  the  Great  in  1721. 

ART.  Ill 

History  of  Canon  Law  in  the   Latin    Church — Collections  of 
Dionysius  Exigmis,  of  Isidore  Mercator,  of  Gratian,  etc. 

147.  The  collection  or  code  of  canons  of  the  Councils  of 
Nice  and  Sardica,37  which  had  been  translated  into  Latin, 
was  for  a  long  time — i.e.,  down  to  the  sixth  century — the 
only  collection  publicly"  received  in  the  Western  or  Latin 

"  Salzano,  1.  c.,  p.  64.      "  Bouix,  De  Prin.,  p.  422.      "  Soglia,  vol.  i.,  p.  94. 
"  Walter,  Lehrb.,  $  73,  p.  125.  "4  Ib.,  §  74.     Cfr.  Salzanu,  vol.  i.,  p.  64. 

**  Tb  ""  Ib.  r  Devoti,  Prolegom.,  n.  57. 

"  Bouix,  De  Princip.,  p.  426. 


68  On  the  History  oj  the 

Church.  It  is  true  that  already  prior  to  the  sixth  century 
there  were  Latin  translations  of  the  entire  Greek  code  or 
collection  of  canons,  namely,  the  Isidoran  and  the  Prisca." 
But  neither  obtained  public  authority  before  the  period  in 

nuestion.40 

148.  The  chief  collections  of  .he  Latin  Church  are  the 
following : 

I.  Collection  of  Dionysius  Exiguus  in   the  Sixth  Century. 

Devoti41  says  of  Dionysius:  "  Fuit  hie  Dionysius  instituto 
monachus,  natione  Scytha,  moribus  et  domicilio  Romanus, 
doctrina  vero  et  vitae  integritate  praeclarus."  He  came  to 
Rome  after  the  death  of  Pope  Gelasius  (f  496)  and  died  in 
536"  or  540."  It  is  matter  of  controversy  whether  any  code 
Df  canons  of  the  Latin  Church  existed  previous  to  the  Diony- 
sian  collection.44 

149.  The    collection    of   Dionysius   is   divided    into   two 
parts :  one  contains  the  canons  of  councils ;  the  other,  the 
epistles  of  the  Roman   Pontiffs.46     The   first  part  embraces 
the  canons  of  the  Apostles,  the  canons  of  the  Councils  of 
Nice,  Ancyra,   Neo-Caesarea,    Gangra,    Antioch,  Laodicea, 
Constantinople,  Chalcedon,  and  of  the  Councils  of  Africa  ; " 
the  second,  the  decretal   epistles   of  the  Sovereign  Pontiffs 
from  Siricius  to  Anastasius  II.47 

150.  This  collection  attained  to  great  influence  through 
out  almost  the  entire  Church,  though  it  had  no  public  au 
thority  or  official  character.     It  was  afterwards,  however,4* 
to  a  certain  extent,  approved  by  the  Apostolic  See,  as  we 
learn  from  the  fact  that  Pope  Adrian  I.  presented  it,  with 
some   additions,   to  Charlemagne,   in    order   that   it    might 
serve  as  the  code  of  laws  for  the  churches  of  the  empire." 

"  Devoti,  1.  c.,  n.  58.  «  Cfr.  Bouix,  1.  c.,  p.  431.  «'  L.  c.,  n.  59. 

49  Phillips,  vol.  iv.,  p.  35.  «  Darras,  vol.  ii.,  p.  138. 

44  Soglia,  vol.  i.,  p.  95.  "  Craiss.,  n.  176. 

4)1  Bouix,  1.  c.,  p.  436.  «  Devoti,  1.  c.,  n.  60.  -  Ib.,  n.  61. 

48  Soglia,  vol.  i.,  p.  95. 


Common    Canon  Law.  69 

151.  Other  collections  of  less  note  are  :  I,  Collection  of 
St.  Martin,  Archbishop  of  Braca,  who  died  in  583;  2,  Bre- 
viatio  or  indiculum  of  canons  by  Ferrandus,  deacon  of  Car 
thage  (ann.  547) ;  3,  Breviarium  or  collection  of  Cresco- 
nius,  an  African  bishop,  who  flourished  in  697. 

152. — II.  Collection  of  Isidore  Mercator  in  the  Ninth  Cen 
tury. —  On  this  head  we  merely  sum  up  the  arguments  given 
in  our  "  Notes."  '  i.  This  collection  was  regarded  as  genu 
ine  by  all  canonists  and  theologians  for  seven  hundred  years 
—that  is,  from  the  ninth  to  the  fifteenth  century.51  2.  The 
celebrated  Cardinal  Nicholas  of  Cusa,  usually  called  Card. 
Cusanus  (f  1464),  was  the  first  who  questioned  its  authenticity. 
That  the  Isidoran  collection  is  spurious,52  at  least  in  part, 
there  can  be  no  doubt  at  the  present  day.53  3.  France  is  as 
signed  as  the  place  whence  probably  it  was  issued  ;  it  came 
into  use  between  the  years  829  and  857.  4.  It  wrought  no 
material  change  in  the  discipline  of  the  Church;"4  for  even 
those  documents  which  are  spurious  only  reflected  such  doc 
trines  as  were  universally  believed  at  that  period.65 

153.  Collections  of  less  importance"  are:  I,  Collection  oi 
Regino  in  906 ;  2,  collection  of  Burchard,  Bishop  of  Worms, 
which  appeared  between  the  years  1012  and  1023;  3,  collec 
tion  of  Anselm  of  Lucca  (f  1086);  4,  of  Cardinal  Deus- 
dedit,  which  was  dedicated  to  Pope  Victor  III.  (1086-1087)  ; 
5,  of  Yvo  of  Chartres  (f  1117);  6,  Liber  Diurnus,  which  is 
thus  described  by  Bouix  : "'  "  Romani  Diurni  nomine  appel- 
latur  codex  in  quo,  praeter  formulas  scribendi,  continentuj 
insupcr  ordinationes  Summi  Pontificis,  professiones  fidei 
privilegia,  praecepta,"  etc.  This  Liber  Diurnas  was  probablj 
compiled  soon  after  the  year  714,  and  served  as  a  chanoenf 
book." 

*•  Soglia,  vol.  i.,  p.  31-38.  M  Ib.,  p.  97.  "  Ciaiss.,  n.  177. 

11  Devoti,  Proleg.,  n.  68.  M  Phillips,  vol.  iv.,  p.  87,  88 

**  Bouix,  De  Princip.,  p.  456,  457.  **  Phillips,  1.  c.,  p.  128-132. 

H  L  c.,  p.  464.  *•  Walter,  p.  183.     Bonn,  1839. 


70  On  the  History  of  the 

154. — III.  Collection  of  Gratian  in  1151. — Gratia  a  was 
born  at  Chiusi,  in  Tuscany,  and  became  a  Benedictine  monk 
at"  Bologna,  where,  in  the  year  1151,  he  issued  his  cele 
brated  work,  now  commonly  known  as  the  Decretum  Gra- 
tiani.  It  is  not  simply  a  collection,  but  a  scientific  and 
practical  treatise  on  canon  law."0  The  chief  object  of  the 
work  seems  to  have  been  to  explain  and  reconcile  the 
various  seemingly  contradictory  canons  as  they  existed  in 
the  collections  of  that  period.81 

155.  The  Decretum  is  made  up  of  texts  from  the  Sacred 
Scriptures,  of  fifty  canons  of  the  Apostles,  of  canons  of  coun 
cils,  of  constitutions  of  Roman"  pontiffs,  etc.     It  is  divided 
into  three  parts :  "3  The  first  treats  of  ecclesiastical  persons 
and  offices,  and  consists  of  101  distinctioncs,  which  are  divided 
into  chapters  or  canons;  the  second,  of  ecclesiastical  judi 
cature,    and    is    composed   of  36   causae,   each   of  which  is 
divided  into  qitacstiones,  which   in  turn  are  subdivided  into 
canons  or  chapters;  the  third,  of  the  liturgy  of  the  Church, 
and  is  made  up  of  five  distinctiones.     More  than  a  hundred 
canons  are  named  Paleae,  a  title  probably  derived  from  the 
name  Pane  a  Palca,  who  was    a    disciple  of    Gratian,  and    is 
supposed  to  have  inserted  these  Paleae  into  the  Dccrctum" 

156.  Gratian's    collection  obtained  great  authority  and 
superseded  all  other  collections ;  yet  it  remained  a  private 
compilation,  was  never  clothed  with  an  official    character, 
or  approved  by  the  Holy  See.6'     Mistakes  abound  in  it,  the 
author  drawing  on  and  copying  from  the  collections  then 
extant   and   containing  inaccuracies,06      Corrections    of  the 
Decretum  were  made  by  order  of  Popes  Pius  \ .  and  Gre 
gory  XIII. 

Minor  collections  of  this  period  are:  That  of  Cardinal'1 

••  Devoti,  1.  c.,  n.  73.  60  Walter,  1.  c .,  p.  193.          61  Phillips,  1.  c.,  p.  142. 

•*  Craiss.,  n.  184.      "3  Cfr.  Phillips,  1.  c.,  p.  152-154.    Cfr.  Devoti,  1.  c.,  n.  74 
•*  Phillips,  1.  c.,  p.  161.  66  Devoti,  Prolegom.,  n.  79. 

"  Phillips,  1.  c  ,  p.  149  °7  Ib  .  P    174. 


Canon  Law.  71 

Laborans  (1182) ;  Collectio  Prima,  by  Bernard  of  Pavia,"  in 
1 190 ;  Collectio  Secunda,  by  Gilbert/*  an  English  writer 
(1203);  Collectio  Tertia,  Quarta,  and  Quinta.™ 

157. — IV.  Collection  of  Decretals  under  Gregory  IX. — Pope 
Gregory  IX.  ordered  a  code  to  be  published,  in  which  the 
corpus  of  the  entire  ecclesiastical  law  should  be  suitably 
arranged.  Whatever  was 71  useless  and  confused  or  ambigu 
ous  was  to  be  retrenched  or  corrected.  The  accomplishment 
of  this  task  was  entrusted  to  St.  Raymond  of  Pennafort,  who 
began  the  work  in  1230  and  finished  it  in  the  year  1233." 

158-  The  whole  work  is  divided  into  five  books.  The 
first  treats  of  ecclesiastical  judicature  or  of  prelates  ;  the 
second,  of  civil  lawsuits  ;  the  third,  of  ecclesiastical  matters 
brought  before  the  episcopal  forum,  in  causis  civilibus  ;  the 
fourth,  of  betrothals  and  marriages  ;  the  fifth,  of  judicial  pro 
ceedings  in  criminal  matters,  of  censures  and  the  like.  This 
collection  is  authentic,  and  has  the  force  of  law  in  every  " 
particular  ;  the  same  holds  of  the  Liber  Scxtus,  the  Clemen- 
tinae,  the  Extravagant cs,  both  communes  and  of  John  XXII." 

159.  Of  the  othei  collections  of  decretals,  we  may  men 
tion  :  i.  The  Liber  Scxtus,  or  Sextus  Decretalium,  which 
was  ™  published  in  1298  under  the  auspices  of  Pope  Boniface 
VIII.  2.  The  Clementinoe?*  or  collection  of  decretals  by  Pope 
Clement  V.  (1305-1314).  3.  The  Extravagantcs  of  John 
XXII.  (1316-1334),  and  the  Extravagantes  communes.  4. 
The  Bullary  of  Benedict  XIV.,  which  contains  the  constitu 
tions  of  that  Pope  and  is  of  public  authority.  5.  The  Bulla- 
riwn  magnum  Romanum"  This  collection  or  code,  made  up 
originally  of  fourteen  volumes,  the  last  of  which  was  pub- 

88  Phillips,  1  c.,  p.  211.  "  Ib.,  p.  223.  "Craies.,n.  185 

71  Bouix,  De  Princip.,  p.  484. 

n  The  Collection  begins  with  the  decretals  of  Alexander  III.,  thus 
forming  a  continuation  of  Gratian's  work,  which  was  only  carried  clown  to  thai 
period.  (Cfr.  Darras,  vol.  iii.,  p.  360.)  ™  Bouix.  De  Princip.,  p.  485,  406. 

T4Craiss.,n.  i%,  187.     ™  Phillips,  vol.  iv.,  p.  3^6.     7fl  Ib..  p.  387.     77Ib.,p.485. 


72  On  the  History  of  the 

lished  m  1744,  has  of  late  been  continued  in  Rome  (1839) 
Bouix  "  says  of  it :  "  Valde  imperfecta  est,  et  majori  adhuc 
negligent ia  hodie  Romae  continuatur."  It  is  merely  a  pri- 
vate  collection,  and  therefore  has  no  authority  as  a  collec 
tion — quatenus  collcctio. 

160. — V.  Corpus  Juris  Canonic i ;  its  component  par's  and 
authority  at  the  present  day. — The  term  corpus,  when  used  in 
reference  to  laws,  ecclesiastical  as  well  as  civil,  means  a  collec 
tion  of  laws  that  forms,  so  to  say,  a  whole.79  At  present  the 
Corpus  Juris  Canonici  consists  of,  I,  the  "  Decretum  Gra- 
tiani,"  to  which  are  annexed  the  Penitential  canons  and  the 
canons  of  the  Apostles  ;  2,  the  five  books  of  the  decretals  of 
Gregory  IX.;  3,  the  Liber  Sextus  of  Boniface  VIII.;  4,  the 
Constitutiones  Clementinae ;  5,  the  Extravagantes  of  John 
XXII. ;  6,  the  Extravagantes  Communes.  "  His  sex  partibus," 
says  Bouix,80  "  expletur  et  clauditur  Corpus  Juris  Canonici." 

161.  Authority  of  the  Corpus  Juris  Canonici  at  the  present 
day. — We  cannot  do  better  than  give  the  words  of  Bouix 8I 
on  this  point :  "  Codicem  autem  ilium  juris  canonici  dictum, 
prae  manibus  habeat,  perpetuoque,  nustris  cliam  temporibus 
evolvat    necesse    est,   quisquis    in   jurisprudentia    canonica, 
non  vult  penitus  caecutire.     Licet  enim  multa  immutaverint 
turn  Concilium  Tridentinum,  turn  novae  Constitutiones  Pon- 
tificiae,  innumcra  tamen  immota  prout  in  Corpore  Juris  Ca 
nonici  extant  remansere." 

162.  Q.  What  are  the  chief  matters  to  which  the  Corpus 
juris  canonici  applies  at  the  present  day  ? 

A.  i.  The  Corpus  still  has  the  force  of  law  in  matters 
relating  to  the  ecclesiastical  judicature,  to  divine  worship 
ecclesiastical"  doctrine,  and  discipline.  2.  It  is,  moreover 
the  code  used  at  present  in  the  schools  of  learning"3  and  in 
the  ecclesiastical  forum.  3.  Besides,  canonists  have  for 


1  Phillips,  1.  c..  p.  489.          7*  L.  c.,  p.  403,  404.  *°  L.  c.,  p.  489. 

Ib.,  p.  490.  ™  Ib.,  vol.  iv. ,  p.  412.         "  Devoti,  Prol.,  p.  19 


Common   Canon   Law.  73 

many  centuries  taken  their  arguments,  to  a  great  extent, 
from  the  Corpus  Juris  ;  these  arguments,  therefore,  can  be 
understood  fully  only  by  those  M  who  are  familiar  with  the 
Cor  pits  itself. 

163. — VI.  The  Jus  Novissimum. — Speaking  in  general,  the 
Jus  Novissimum  consists  of  laws  published  from  the  time  the 
Corpus  Juris  Canonici^  was  closed — i.e.,  since  the  extrava- 
gantes  were  inserted  down  to  the  present  day. 

164.  This  Jus,  speaking  in  particular,  is  principally  made 
up  of  these  parts  :  I .  The  constitutions  or  decretals  of  the  Roman 
Pontiffs.  No  authentic  collection  has  been  made  of  the  vari 
ous  constitutions  or  laws c6  made  by  the  Roman  Pontiffs  since 
the  close  of  Corpus  Juris.  The  only  exception  in  this  respect 
is  the  Bullary  of  Benedict  XIV.,  which  is  of  public  authority. 
Of  the  various  private  collections  that  are  extant,  the  Bulla- 
rium  Magnum  Romanum,  which,  however,  is  replete  with 
errors,  holds  the  foremost  rank.  2.  The  regulations  by 
which  the  Apostolic  chancery  is  governed  (regulae  cancel- 
lariae  Romanae].  3.  The  decisions  of  the  congregations  or 
committees  of  cardinals.  4.  The  decrees  of  the  Council  of 
Trent,  which,  in  fact,  form  the  chief  portion  of  the  Jus 
Novissimum.*''  5.  Finally,  the  decrees  of  the  Council  of  the 
Vatican.88 

84  Bouix,  1.  c.,  p.  490.  ""  Ib..  p.  495.  8B  Ib.,  p.  496.  "  Ib. 

"'  Proposals  were  made  at  the  Council  of  the  Vatican  by  a  number  of 
bishops  to  have  a  committee  appointed,  consisting  of  the  most  eminent 
canonists,  who  should  revise  the  Corpus  Juris  Canonici,  or  rather  prepare  a 
new  one,  omitting  whatever,  owing  to  our  changed  times,  was  no  longer 
applicable,  and  report  the  result  of  their  labors  to  the  Vatican  Council  or  the 
next  oecumenical  council.  (Martin,  Aibeiten,  p.  106  ;  id..  Doc.,  p.  ii.  sect,  ii  t 
<,  3.  4  5,  >4.) 


CHAPTER   X. 

HISTORY   OF   PARTICULAR    OR    NATIONAL    CANON    LAW — HIS- 
TORY   OF   CANON   LAW    IN   THE    UNITED    STATES. 

165.  So  far,  we  have  discoursed  on  the   history   of  the 
canon  law  of  the  entire   Church,  or  of  the  common  canon 
law.     We  now  come  to  the  historical  phase  of  canon  law  in 
the  United  States. 

1 66.  Decrees   of  provincial  and  national   councils   form 
one  of  the  sources  of  our  national    canon    law.     The   first 
council,  or  rather  diocesan  synod,  ever  held  in  the   United 
States  was  that  of  Baltimore  in  1791.     Its  acts  and  decrees 
were  republished  by  order  of  the  First   Provincial  Council 
of  Baltimore,  and  are  therefore  authentic  as  a  collection.' 
The    First   Provincial    Council    of    Baltimore    was   held   in 
1829,'  the  second  in    1 833,' the  third  in    1837,  the  fourth  in 
1840,  the  fifth  in  1843,  the  sixth  in  1846,  the  seventh  in  1849. 
To  these  councils  all  the  bishops  of  the  United  States  were 
called ;  in  this  respect,  therefore,  they  might  be  styled  na 
tional  or  plenary  councils.     They  are,  however,  usually,  and 
correctly  so,  named  provincial  councils,  since  but  one  eccle 
siastical  province  existed  at  the  time,  and  they  were  con 
vened    by  the    metropolitan  as  such    but   not   by   a    Papal 
delegate. 

167.  By  Apostolic  briefs  of  July  19,  1850,  the  Sees  of  Nev 
Orleans,  Cincinnati,  and  New  York  were  raised  to  the  dig 
nity  of  metropolitan  churches.  St.  Louis  had  been  erected 
into  an  Archiepiscopal  See,  July  20,  1847,  though  suffragans 

1  Cone.  Prov.  Bait.,  p.  5,  6.     Bait.,  1842.  *  Ib.,  p.  29. 

*Ib-(  p.  57,  9i,  92. 


History  of  Particular  or  National  Canon  Law.    75 

were  assigned  it  only  in  1850.  The  United  States  were 
thus  divided  into  six  ecclesiastical  provinces,  including  *  the 
Province  of  Oregon,  erected  July  12,  1846. 

168.  The  First  National  Council  of  the  United  States  was 
held  at  Baltimore  in  1852  under  the  *  presidency,  of  Arch 
bishop  Kenrick,  as  Papal  delegate.  Six  archbishops  and 
twenty-six  bishops  took  part  in  its  deliberations.  The  Pro 
paganda,8  by  letters  of  September  26,  1852,  approved  its 
decrees.  The  Second  National  or  Plenary  Council  of  Balti- 
nore  met  in  1866,  and  was  presided  over  by  Archbishop 
Spalding,  as  Papal  delegate.  Its  decrees  were7  revised 
by  letters  of  the  Propaganda,  dated  January  24,  1868. 

f^iP  169.  The  TJiird  Plenary  Council  of  Baltimore,  which 
is  perhaps  the  most  important  of  all  our  councils,  was  sol 
emnly  opened  on  the  9th  of  November,  1884,  and  closed 
December  7th  of  the  same  year.  It  was  attended  by  four 
teen  archbishops  and  sixty -two  bishops  or  their  procurators. 
It  was  revised  by  decree  of  the  S.  C.  de  Prop.  Fide,  dated 
Sept.  21,  1885,  and  was  promulgated  by  His  Eminence 
Card.  Gibbons,  Archbishop  of  Baltimore  and  Apostolic 
Delegate,  on  the  Feast  of  the  Epiphany,  1886.  Its  decrees 
became  obligatory  all  over  the  United  States,  on  and  from 
the  day  of  this  promulgation.8 

170.  Q.  What  is  meant  by  the  confirmation  of  councils 
in  forma  communi  and  in  forma  specifica? 

A.  i.  Suarez'  affirms  confirmation  in  forma  communi 
*o  be  that  which  is  given  "  cum  sola  cognitione  confusa 
privilegii  [or,  as  the  case  may  be,  councils]  sine  distinct liori 
notitia  illius."  Benedict  XIV.10  says  :  "  In  forma  comrnuni 
confirmari  dicuntur  statuta,  quae  non  singulatim  examinan- 
tur,  neque  approbantur  a  Pontifice  motu  proprio,  et  ex  certa 
scientia." 

2.  Confirmatio  in  forma  specifica  is  that  "quae  fit  cum 
perfecta  notitia  totius  negotii,  et  omnium  ll  ejus  circumstan- 

4  Cath  Ch.  in  U.  S.,  pp.  195,  196.       8  Ap.  Coll.  Lac.,  torn,  iii.,  p.  130  seq. 
•  Ib.,  p.  151.  '  Cone.  PL  Bait,  ii.,  p.  136. 

8  See  Cone.  PI.  Bah    111.,  pp.  xiii,  xiv,  and  p.  184. 

'  De  Leg.,  lib.  viiu.  cap  xviii..  n.  5.  Neapoli,  1872.  Cfr.  Reiff.,  lib.  u.,  tit.  30, 
0.7.  '°  De  Svn.  Dioec..  lib.  xiii.,  cap.  v  ,  n.  n.  "Reiff..  I.e. 


76  History  of  Particular  or 

tiarum."  Benedict  XIV.  explains  this  more  explicitly:11 
"  In  forma  specifica  fieri  (confirmatio)  dicitur,  cui  praemit- 
titur  causae  cognitio,  et  singula  statuta  diligenter  expendun- 
tur,  ac  deinde,  nulla  adjecta  conditione,  auctoritate  Apos- 
tolica  cum  clausula  motu  proprio,  atque  ex  certa  scientia, 
confirmatur." 

171.  Q.  How  can  it  be  known  that  a  provincial  or  na 
tional  council  is  approved  in  forma  specifica  and  not  merely 
in  forma  communi  ? 

A.  i.  When  the  tenor  or  contents  of  its  decrees  are 
inserted  in  the  instrument  of  confirmation.13  2.  When,  in 
the  absence  of  the  above,  these  phrases  are  used  :  ex  ccrta 
scientia;  proprio  motu;"  ex  plcnitudine  potcst  tis ;  non  ob- 
stantelb  legs  aut  consuetudine  in  contrarium,  or snpplentes omn cs 
juris  et™  facti  defectus.  3.  The  rccognitio  by  the  Sacred 
Congregation  is  not  sufficient ;  the  confirmation  must  be 
given  by  letters  Apostolic.1'1 

172.  In  case  of  doubt  whether  a  council  is  approved  in 
forma   specifica  or  only  in  forma  communi,  canonists  com- 
mon'y  hold  that  it  is  approved  merely  in  forma  communi. 

i? 3-  Q-  Can  bishops  in  particular  cases  relax  in  their  dio 
ceses  the  decrees  of  provincial  or  national  councils  ? 

A.  i.  They  cannot,  in  case  these  councils  are  confirmed 
in  forma  specifica;  for,  as  Benedict  XIV.,18  quoting  from 
Fagnanus,  says  :  "  Statuto  confirmato  in  forma  specifica,  cum 
-^aiuram  induerit  Icgis  Pontificiae,  nulli  inferiorum  fas  est  dero- 
gare."  2.  They  may  do  '"  so  if  these  councils  are  approved 
only  in  forma  communi,  excepting/0  however,  in  those  cases 
where  such  councils  reserve  to  themselves  the  2!  power  to 
fiispense  in  their  decrees. 

•"  De  Syn.  Dioec.,  1.  c.        "  Suarez,  DC  Leg.,  lib.  viii.,  cap.  xviii.,  n.  5. 
*4  Ib.,  n.  6.  "  Bened.  XIV.,  DC  Syn.,  lib.  xiii.,  cap.  v.,  n.  11. 

**  ReifF,  lib.  ii.,tit.  30,  n.  8.     "  Bouix,  DC  Episc.,  vol.  ii.,  p.  394. 
•'  L.  c.,  n.  n.         "  Ib.  *°  Supra,  n.  74. 

•*  Kenrick,  Mor.,  Tract  4.  pars,  i.,  n.  40. 


National  Canon  Law,  77 

174.  Q.  Is  the  Second  Plenary  Council  of  Baltimore  ap 
proved  in  forma  specifica  ? 

A.  i.  It  is  not;  for  the  Decretum  of  the  Propaganda, 
dated  January  24,  1868,  Pro  Rccognitione  Concilii  (PI.  Bait.  II.), 
has  none  of  the  marks  above  given  of  the  confirmatio  in  forma 
specifica.  This  appears  from  the  decree  itself,  which  reads  : 
"  Eadcm  S.  Congr.,  ejusdem  Concilii  (PI.  Bait.  II.)  acta  et 
decreta,  diligenti  inqui-sitione  adhibita,  expendit,  paucisque 
exceptis  correctionibus  et  animadversionibus,  eadem  ut  ab 
omnibus  ad  quos  spectant,  inviolabiliter  observentur,  liben- 
tissime  recognovit."  " 

2.  Moreover,  the  sole  revision  and  approbation  of  de 
crees  by  a  Sacred  Congregation  is  not  Papal  confirmation, 
at  least  in  forma  specifica.™  For  decrees  of  councils  are 
sanctioned  in  forma  specifica,  not  by  a  "  Decretum  S. 
Congr."  pro  recognitione  concilii,"  but  by  apostolic  letters  or 
briefs."  Now,  the  decrees  of  Baltimore  were  confirmed,  or 
rather  reviewed,  not  by  apostolic  letters,  but  by  the  "  De 
cretum  S.  C.  de  Prop.  Fide"  above  mentioned,  as  appears 
clearly  from  the  Holy  Father's  reply  to  the  fathers  of  Balti 
more,  September  2,  1867:  "Quod  attinet  ad  Acta  Concilii 
(PI.  Bait.  II.)  congruum  de  eisdem  Actis,  a  nostra  Congr 
Fidei  Prop.,  praeposita,  accipietis  responsum."  " 

175.  From  what  has  been  said  we  infer  that  it  is  allowed 
to  appeal  to  the  S.  C.  de  Prop.  Fide  from  the  decrees  of  the 
Second  Plenary  Council  of  Baltimore,  and  also  from  the  de 
crees  of  the  Third  Plenary  Council  of  Baltimore,  held  in  1884; 
for,  the  confirmatio'1''  in  forma  comimnii  does  not  remove  the 
defectus  juris  that  may  be  contained  in  their  enactments.'"  It 

M  Ap.  Cone.  PI.  Bait.  II.,  p.  cxxxvi 

53  Bouix,  De  Episc.,  vol.  ii.,  pp.  394,  395.      Paris,  1873 

••"Cfr.  Cone.  PI.  Bait.  II.,  p.  cxxxvi. 

45  Cfr.  Bened.  XIV.,  De  Syn.  Dloec.,  lib.  xiii..  cap.  iii.,  n.  4. 

28  Ap.  Cone.  PI.  Bait.,  p.  cxxxv.  41  Cfr.  Bouix,  1.  c.,  p.  395. 

*8  Craisson,  Man  ,  n.  87. 


78   History  of  Particular  or  National  Cation  Law. 

may  be  objected  that  it  can  scarcely  happen  that  a  defective 
decree  be  enacted  by  a  provincial  or  national  council  and 
yet  be  returned"  by  the  S.  Congr.  without  having  been 
corrected.  This  we  cheerfully  admit.  Yet  the  case  is  not 
impossible,  as  Bouix  shows.30 

176.  It  must  be  observed  here  that  the  confirmatio  in 
forma  specifica  merely  adds  authority  to  the  decrees  of  pro 
vincial  or  national  councils  but  does  not,  except  when  these 
decrees  are  inserted  in  the  Corpus  Juris  Communis,  extend 
their  binding  force  beyond  the  respective  province  or  nation, 
nor  upon  the  entire  Church.'1 

"  Bouix,  1.  c.,  p.  395,  396. 

80  A  careful  study  of  the  subject  would  seem  to  sh«w  that  the  Second 
Plenary  Council  of  Baltimore  was  not  confirmed  by  the  Holy  See  in  any  form, 
not  even  in  for>na  couimuiii,  but  merely  revised  and  corrected.  Thus,  the 
decree  of  the  Propaganda  (C.  PI.  Bait.  II.,  p.  cxxxvi.)  has  for  its  heading  the 
words  :  "  Decrctum  pro  Rccogniiionc  Concilii  "  ;  but  not  "  Decretum  pro 
approbatlonc  or  confirmati  ne  Concilii."  Nor  did  the  Fathers  of  the  council 
ask  for  a  confirmation  ;  they  simply  complied  with  the  prescription  of  Pope 
Sixtus  V.,  and  sent  the  "  Acts  and  Decrees  "  to  the  Holy  See,  not  for  the  sake 
of  having  them  confirmed,  but  merely  revised  and  corrected  (C.  PI.  Bait.  II.. 
p.  cxxxii.)  In  fart,  to  use  the  words  of  the  Roman  Consultor  who  examined 
our  work,  "  The  Holy  See  does  not,  as  a  rule,  confirm  any  national  or  provin 
cial  council,  but  simply  revises  its  acts,  and,  if  need  be,  prescribes  certain 
corrections.  Sometimes,  however,  in  those  places  or  missionary  countries 
where  the  common  law  of  the  Church  does  not  fully  obtain,  there  being  need 
of  some  law,  the  Holy  See  confirms  such  councils.  Thus  it  confirmed  the 
four  provincial  councils  of  England,  the  First  Plenary  of  Ireland  (Synod  of 
Thurles),  and  the  First  Plenary  of  Ba'timore.  But  the  Second  Plenary  of 
Baltimore,  as  also  the  Second  Plenary  of  Ireland  (Synod  of  Maynooth),  was 
not  confirmed  by  the  Holy  See,  but,  having  been  corrected  by  the  S.  C.  de 
Prop.  Fide,  simply  revised  and  ordered  to  be  promulgated." 

31  Bened.  XIV.,  De  Syn.,  lib.  xiii.,  cap.  3,  n.  5.  The  Third  Plenary  Council 
of  Baltimore,  held  in  1884,  like  the  Second,  was  not  approved,  but  merely  re 
vised  by  the  Holy  See.  (See  Decretum  S.  C.  de  P.  F.  21  Sept.  1885,  in  C.  PI. 
Bait  III.,  p.  xvi.) 


CHAPTER   XL 

RULES   FOR   THE   INTERPRETATION   OF  LAWS. 

177. — I.  Ex  part  e  causae  efficient  is,  there  are  four  sorts  of 
interpretations:  i,  interpretatio  principis,  or  that  which  is 
given  by  the  lawgiver  himself;  2,  that  which  is  established 
by  lawful  customs  (interpretatio  usualis)  ;  3,  or  given  by 
judges  (interpret  itio  judicis) ;  4,  or  by  learned  men  (interpre 
tatio  doctrinalis].  The  explanation  of  laws,  as  made  by  the 
lawgiver — i.e.,  by  the  Pope,  oecumenical  council,  and 
bishops — is  authoritative '  and  has  the  force  of  law  (interpre 
tatio  authentica,  necessaria]  ;  the  same  holds  true  of  the  inter 
pretatio  usualis.  The  construction  of  laws,  as  made  by 
judges  of  courts,  binds  only  the  actual  parties  to  the  suit, 
who  alone  are  obligated  to  abide  by  the  judge's  rulings  or 
explanations2  of  the  law.  The  explanation  which  is  given 
by  theologians  and 3  canonists,  though  always  deservedly 
held  in  high  esteem,  need  not,  as  a  rule,  be  adhered  to. 

178. — 11.  Ex  part  e  causae  formalis  or  ex  natura  ipsius  in- 
terpretationis*  the  construction  of  laws  is  :  i ,  declaratory  - 
i.e.,  explanatory  of  the  words  of  the  law  ;  2,  corrective — i.e., 
favorable ;  3,  restrictive — thus,'  penal  laws  must  be  con 
strued  strictly  ;  4,  extensible,  by  which  laws  are  extended  to 
similar  cases.' 

!79-  Q-  What  are  the  chief  rules  for  the  interpretation 
of  civil  laws  or  statutes  ? 


1  Our  Notes,  pp.  438,  439.  '  Craiss.,  n.  238. 

1  Reiff.,  lib.  i.,  tit.  2,  n.  362-306.  *  Ib.,  n.  365. 

'  Black  stone.  Introd.,  sect.  3,  p.  21.  '  Reiff.,  1.  c.,  n.  370-374. 

79 


8o  Rules  for  the  Interpretation  of  Laws. 

A.  i.  The  title  of  the  act  (or  statute)  and  the  preamble  to 
the  act  are,  strictly  speaking,  no  parts  of  it.7  2.  The'real  in 
tention  (of  the  lawgiver)  will  always  prevail  over  the  literal 
sense  of  terms.8  3.  The  words  of  a  statute  are  to  be  taken 
m  their  natural  and  ordinary  import  and  signification.' 
Other  rules  may  be  seen  in  Kent  and  Blackstone.10  These 
rules  may  be  applied  also  to  ecclesiastical  laws.11 

180.  It  may  not  be  amiss  here  to  add  that  Pope  Pius  IV., 
in  his  constitution  "  Benedict™  Deus,"  confirming  the  decrees 
of  the  Council  of  Trent,  enacted  very  severe  penalties 
against  all  "  qui  ausi  fuissent  ullos  commentaries,  glossas, 
adnotationes,  scholia,  ullumque  omnino  interpretation^ 
genus  super  ipsius  Concilii  (Tridentini)  decretis  quocumque 
modo  edere."  This  prohibition,  which  applies  to  no  other 
council,  extends  only  to  printed  "  ex  professo  "  interpreta 
tions,  but  not  to  incidental  explanations,  even  though 
printed,  of  individual  decrees  of  the  Council  of  Trent," 

7  Kent,  Cora.,  vol.  i.,  part  Hi.,  sect.  20,  p.  460-463.        •  Ib.,  p.  462.  Ib. 

"  Introduct.,  sect.  3,  p.  21. 

"  St.  Liguori,  lib.  i.,  n.  200.     ReiffensL,  1.  c.,  lib.  i.,  tit  2,  n.  382-447. 
Ap.  Soglia,  vol.  i.,  p.  ia,  §7.  » S|  Ljg    ,   ;    n  ,.,,o 


PART  II. 


OF  PERSON'S  PERTAINING  TO  THE  HIERARCHY 
OF  JURISDICTION  IN  GENERAL— i.e.,  OF  ECCLE 
SIASTICS,  AS  VESTED  WITH  JURISDICTIO  EC- 
CLESIASTICA  IN  GENERAL. 

CHAPTER   I 

DEFINITION     OF     THE     CHURCH — MEANING     OF     THE     WORD 
HIERARCHY   IN   GENERAL. 

181. — I.  The  Church  is  defined:  "  Societas  externa,  visi- 
bilis,  atque  ad  finem  mundi  duratura,  completa  et  indepen- 
dens,  distincta  quoque,  ac  pro  fine  habens,  omnibus  homini- 
bus  procurandi  media  ad  assequendam  vitam  aeternam.  "  ' 
Let  us  explain  this  definition. 

182. — i.  The  Church  is  a  society;  for  she  is  named  in 
Sacred  Scripture  a  kingdom,'  a  city  that  is  set  on  a  moun 
tain,'  etc.  These  symbols  clearly  imply  that  she  is 4  a 
society.  Theologians  also  prove  that  she  is  external,  visible, 
and  indefectible. 

183. — 2.  The  Church  is,  secondly,  a  perfect  and  indepen 
dent  society.  A  society  is  perfect  when  it  is  complete  in 
itself,  and  therefore  contains  within  itself  adequate  "  means  to 
attain  its  end.  That  our  Lord  has  given  his  Church  means 
sufficient  to  attain  her  end  is  evident  from  various  texts  of 

'  Craisson,  1.  c.,  n.  244.  *  Matt.  iv.  17.  "  Ib.,  v.  14. 

*  Bouix,  De  Princip.,  p.  499.  *  Tarqu.,  Jur.  Eccl.  Put!.  Inst.,  n.  6,  42. 


82  Definition  of  the   Church. 

Sacred  Scripture/  A  society  is  independent  when  it  is  not 
subject  to  the  authority  of  any  other  society.7  Now,  every 
person  in  the  world  is  bound  to  obey  the  Church  in  matters 
pertaining  to  the  sanctificatio  animarum?  But  if  no  indi 
vidual  is  exempt  from  the  authority  of  the  Church,  it  is  evi 
dent  that  no  body  of  individuals — i.e.,  no  society — is  de 
jure  exempt  from  it.  The  Church,  therefore,  is  not  subject 
to  civil  society,  but'  entirely  independent  of  it;  nay,  more, 
civil  society,  as  far  as  the  sanctificatio  animarum  is  concerned, 
is  subordinate  to  the  Church. 

!84. — 3.  The  Church,  thirdly,  is  distinct  though  not  sepa 
rate  from  civil  society.10 

185.  From  what  has  been  said  we  infer:   i.  The  Church 
is  not  merely  a  corporation  (collegium}  or  part  .of  civil  so 
ciety.     Hence,  the  maxim  "  is  false,  "  Ecclesia  est  in  statu," 
or,  the  Church  is  placed  under  the  power  of  the  state.     2. 
The  Church  is  rightly  named  a  Sovereign  State.     This  is 
proved  by  Soglia  13  in  these  words :  "  Ex  defmitione  Pufien- 
dorfii, Status  est  conjunctio  plurium  hominum,  quae  imperio 
per  homines  administrate,  sibi  proprio,  et  aliunde  non  depen- 
dente,  continetur.      Atqui  ex  institutione  Christi,   Ecclesia 
est   conjunctio    hominum,  quae   per   homines,  hoc   est,  per 
Petrum  et  Apostolos,   eorumque  successores  administratur 
cum    imperio   sibi   proprio,  nee  aliunde   dependente ;   ergo 
Ecclesia  est  Status." 

1 86.  The  members  of  the  Church  "  are  divided  into  two 
classes:    i.  Clerics  or  ecclesiastics   (clerici},  i.e.,  those  who 
belong  to  the  JiierarcJna  M  ordinis  ;  2,  Laics  (laid),  i.e.,  the  rest 
of  the  faithful.15 


•  Matt,  xviii.  18,  xxviii.  18,  19;  Luc.  x.  16 ;  Jo.  xxi.  15-18 

T  Craisson,  Man.,  n.  245. 

•  Matt,  xviii.  17.     Cfr.  Prop,  iq,  20  of  Syllab.  1864. 

9  Bouix,  De  Princip.,  p.  507.  I0  Salzano,  vol.  i.,  pp.  18,19. 

11  Bouix,  De  Princip.,  p.  509.     w  Vol.  i.,  p  137.     13  Tarqu.,  1.  c.,  p.  92. 
M  Soglia,  vol.  i.,  p.  144.  IB  Devoti,  lib.  i.   tit.  i,  §  I,  p.  72. 


Definition  of  the   C/iurc/i.  83 

187. — 11.  Meaning  of  the  term  Hierarchy  (Hierarchia}. — 
The  words  hierarchy,  sacred  power  (saccr  principatus],  or 
pre-eminence  (sacra  pracfcctura)  are  synonymous.10  The 
term  hierarchy,  taken  subjectively,  denotes  the  body  of  per 
sons  having  sacred  or  ecclesiastical  power ;  as  such,  it  is 
defined:  "The  body  of  persons  having  in  various  degrees 
sacred  power  or  pre-eminence  "  ;  "  taken  objectively,  ifsigni- 
fies  the  power  itself  in  sacred  things  ;  as  such,  it  is  defined  : 
"  Sacred  power  as  possessed  by  various  persons  in  different 
degrees."  "  Observe  here,  we  use  the  word  power  both  for 
the  potestas  ordinis  and  the  potestas  jurisdictionis. 

1 88.  The    word    hierarchy,    therefore,    comprises    three 
things:     i,  sacred    power   or   ecclesiastical   authority;  2,  a 
number   of  persons   possessing   it ;    3,  rank   and   gradation 
among  these  persons."    The  hierarchy,  therefore,  whether  of 
order   or  jurisdiction,  is  vested    in   an  organized    body  of 
ecclesiastics ;  the  Roman  Pontiff  is  the  head  of  this  organi 
zation. 

189.  Division  of  the  Hierarchy  of  I  lie  Church. —  I.  By  rea 
son  of  its  origin,  the  hierarchy  is  divided  into  divine — that, 
namely,  which  was  instituted  by  our  Lord,  and  consists  of 
bishops,  priests,  and  ministers ; ?0  and  into  ecclesiastical — or 
that  which  was  developed  by  ecclesiastical  authority,  v.g.,  the 
dignity  of  patriarchs,21  primates,  archbishops,  and  the  like. 
2.  By  reason  of  the  sacred  power  vested  in  ecclesiastics,  it 
is  divided  into,  I,  the  hierarchy  of  order  (hierarchia  ordinis) 
— that  is;  the  power  to  perform   sacred  acts   or   functions 
and  to  confer  sacraments ;  2,  the   hierarchy  of  jurisdiction 
(hierarchia  jurisdictionis} — that  is,  the  power  tu  teach,  define 
dogmas,  and  oblige  the  faithful  to  believe  in  them  ;  to  make 

ISBouix,l.  c.,  p.  5'3-  'Ib.p.  514.  "  Ih.  19Ib.,p.5i5. 

10  Cone.  Trid.,  sess.  23,  cap.  iv.,  can  6.  '"  Bouix,  I.  c.,  pp.  515,  516. 


84  Definition  of  the    Church. 

laws;  to  take  cognizance  ol,and  adjudicate  upon,  ecclesias 
tical  causes;  to  enforce  the  laws  of  the  Church,  and  there 
fore  to  inflict  suspension,  excommunication,  deposition, 
and  other  penalties;  to  convene  councils,  preside  over  and 
confirm  them  ;  to  erect  benefices  and  appoint  their  incum 
bents ;  to  dispose  of  ecclesiastical  property,  etc."  Some 
canonists  contend  that  this  division  is  inadequate,  since  it 
does  not  sufficiently  take  into  account  the  teaching  power  of 
the  Church  (potestas  magisterii).  Consequently,  they  divide 
the  hierarchy  into  the  power  (a)  of  order,  (/^jurisdiction, 
(c)  and  magisterii,  thus  adding  the  latter  to  the  two  for 
mer."  This,  however,  is  superfluous.  For,  as  Card.  Tar- 
quini  well  remarks,  if  this  magisterium  is  a  puruin  magiste- 
riuni,  or  simply  the  office  of  preaching  and  teaching,  it  is 
no  power,  and  therefore  cannot  be  called  u potestas  magis 
terii"  But  if  it  means  the  power  to  compel  the  faithful  to 
believe  in  the  doctrines  defined,  it  is  part  of,  and  therefore 
contained  in,  the  power  of  jurisdiction.  Hence  it  is  not 
necessary  to  recede  from  the  division  of  the  ecclesiasti 
cal  hierarchy  commonly  received  in  Catholic  schools24 — 
namely,  into  that  of  order  and  jurisdiction. 

190.  In  the  present  volume,  we  shall  discourse  merely 
on  the  hierarchia  jurisdictionis.  We  shall,  i,  give  a  correct 
idea  of  the  nature  of  the  jurisdictio  ecclesiastica ;  this  will 
form  the  Second  Part  of  this  book;  2,  show  of  what  per 
sons  the  hierarchia  jurisdictionis  is  composed — i.e.,  in  whom 
the  jurisdictio  ecclesiastica  is  vested  ;  this  will  make  up  the 
Third  Part  of  this  work. 

58  Bouix,  1.  r.,  pp.  521,  545.         23Cf.  Phillips,  Kirchenr.,  vol.  ii.,  pp.  138, 139. 
74  Card.  Tarq.,  i.,  p.  3,  nota. 


CHAPTER    II. 
NATURE  AND  OBJECT  OF  ECCLESIASTICAL  JURISDICTION. 

ART.  1. 
Difference  between  the  Poiver  of  Jurisdiction  and  that  of  Order. 

191.  There  are  those  who  erroneously  contend  that  the 
power  of  jurisdiction   is  not   separable  or  essentially   dis 
tinct    from    the    power    of    order;    that,    therefore,    since 
bishops    have   the  fulness    of  the  potestas  or  dints  or  sacer- 
dotii,  they  are  by  that  very  fact  possessed  of  the  plenitude 
of  the  potestas  jurisdictionis.1     If  this  theory  were  correct, 
bishops  would  have  the  same  jurisdiction  as  the  Pope,  and 
consequently  the  latter's  supreme  and  universal  jurisdiction 
would  be  destroyed.2       In  order  to  refute  this  most  grave 
error  we  lay  down  the  following  proposition  :  The  power  of 
jurisdiction  is  essentially,  and  not  merely  accidentally,  dis 
tinct  from  the  power  of  order,  provided  (a)  the   latter  can 
not  be  taken  away  from  nor  diminished  in  bishops,  while  the 
former  can  be  restricted  ;  (b)  provided  the  power  of  epis 
copal  order  can  exist  without  the  power  of  episcopal  juris 
diction,  and  vice  versa ;  but  this  is  the  case.     Therefore,  etc.3 
The  major  is  evident.4 

192.  We  therefore  come  to  the  minor,  namely,  \.\\e  potestas 
ordinis  episcopalis  cannot  be  taken  away  or  diminished,  while 
the  potestas  jurisdictions  episcopalis  can  be  restricted.5     The 
first  part  is  proved  from  these  words  of  the  Council  of  Trent :" 

1  Bouix,  de  Princ.,  p.  546.  "  Craiss.,  n.  250.  *  Ib. 

4  Bouix,  1.  c.,  p.  560.  *  Ib.,  p.  547,  seq.  '  Sess.  xxiii.,  cap.  iv. 


86  Nature  and  Object  of 

"  Forasmuch  as,  in  the  Sacrament  of  Order,  a  cnaracter  is 
imprinted  which  can  neither  be  effaced  nor  taken  away,  the 
holy  synod,  with  reason,  condemns  the  opinion  of  those  who 
assert  that  the  priests  of  the  New  Testament  have  only  a 
temporary  power,  and  that  those  who  have  once  been  rightly 
ordained  can  again  become  laymen."  The  potestas  ordinis, 
therefore,  is  inamissible,  cannot  be  restricted  cither  in  it- 
s*lf7  or  as  to  persons  and  places;  it  is,  moreover,  equal  and 
full  or  supreme  in  all  bishops  alike.8 

193.  On  the  other  hand,  the  potestas  jurisdictionis  episco~ 
palis  may  be  limited,  I,  as  to  place  or  countries:  thus  St. 
Peter  admonishes  bishops :  "  Feed  the  flock  of  God  which 
is  among  you  "  " — that  is,  not  the  entire  flock,  but  the  particular 
portion  assigned10  them.  St.  Cyprian"  expressly  writes: 
"  Singulis  pastoribus  portio  gregis  adscripta  est."  2.  As  to 
matters :  some  have  erroneously  asserted  that  every  bishop 
has  absolute  power12  in  his  diocese.  This  is  false:  I.  Be 
cause  oecumenical  councils  can  make  general  laws — i.e.,  laws 
binding  on  13  all  the  bishops  relative  to  ecclesiastical  matters 
or  discipline;  the  Roman  Pontiffs  have  the  same14  power; 
nay,  even  national  or  provincial  councils  have  power  to1* 
enact  disciplinary  laws  obligatory  on  the  bishops  and  metro 
politans  of  the  respective  provinces ;  now,  it  is  evident  that 
if  bishops  are  obliged,  in  the  government  of  their  dioceses, 
as  undoubtedly  they  are,  to  observe  these  laws,  their  power 
is  not  absolute  or  unbounded  as  to  matters.  3.  As  to  persons : 
thus,  members  of  religious  communities,  male  and  female, 
were  exempted  from  episcopal  authority  already  in  the 
first  ages18  of  the  Church.  The  Council  of  Carthage  (525) 
decreed :  "  Erunt  igit.ur  omnia  omnino  monasteria,  sicut 

7  Bouix,  1.  c.,  p.  547.  *  Ib. 

'  i  Petr.  v.  2  ;  cfr.  ad  Titura,  i.  5  ;  Act.  xx.  28. 

"  Bouix,  1.  c.,  p.  548.  n  Epist.  55  ad  Cornelium  Papam. 

"  Bouix,  1.  c.,  pp.  546  and  551.  1S  !b.,  p.  551.                 "  Ib.,  p.  552. 

»  Ib  "  Ib,  p.  554- 


Ecclesiastical  Jurisdiction,  87 

semper  fuerunt,  a  conditiorie   clericorum,  modis   omnibus 

libera."  " 

194.  The  potestas  ordinis  episcopalis  may  exist — in  fact, 
has  existed — without  any  jurisdiction,  and,  vice  versa, 
episcopal  jurisdiction  can  exist  without  the  episcopal  ordo. 
Thus  it  was  ordered  by  the  Council  of  Nice  (325)  that  Mele- 
tius:  Bishop  of  Thebaid,  should  be  deprived  of  all  powei 
and ' '  authority  {potestas  jurisdictionis)  but  yet  retain  the 
character,  dignity,  and  name  of  bishop  {potestas  ordinis}. 
Again,  some  of  the  ancient  chorepiscopi,  though  true  bishops, 
were  not  possessed  of  any  jurisdictio  ordinaria.  Finally 
honorary  bishops  were  formerly  created  to  whom  no  dio 
cese  was  assigned.  It  is  evident,  therefore,  that  a.  person 
may  have  the  potestas  ordinis  episcopalis  without  having  any 
jurisdictio.  On  the  other  hand,  it  is  certain  that  a  person 
n&yhavejurtsdtcfto  episcopalis  without  being  vested  with  the 
potestas  ordinis  episcopalis.  Thus  a  bishop  elect " — i.e.,  one 
appointed  already  by  the  Pope  though  not  yet  consecrated — 
may  govern  his  diocese  with  full  authority  as  soon  as  he  has 
received  the  bulls.  Chapters,  also,  or  rather  vicars-capitular — 
with  us,  administrators— govern  dioceses,20  though  not  vested 
with  the  potestas  ordinis  episcopalis.  We  observe  here, 
what  is  said  of  the  powers  of  order  and  jurisdiction,  as 
vested  in  bishops,  is  also  applicable  to  these  powers  as  vested 
in1  priests  and  sacred  ministers;  we  argued  from  the  episco 
pal  ordo  and  jurisdictio  merely,  for21  the  reason  that  the 
question  is  disputed  chiefly  as  regards  bishops. 

195.  To  show  more  clearly  the  distinction  between  the 
power  of  order  and  oi  jurisdiction  we  observe,  i.  The  po 
testas  ordinis  is  conferred  by  ordination  ;  the  potestas  jurisdic- 
tionis  by  legitimate 22  mission.  2.  The  former  is  alike  in  all 
that  have  the  same  ordo ;  the  latter  varies  in  degree,  even  in 

"  Labbe,  torn,  iv.,  col.  1649.  I8  Bouix,  1.  c.,  p.  555.  '*  lb  ,  p   559. 

**  Cfr.  Soglia,  vol.  ii.,  p.  9.  "  Bouix,  1    c.,  p.  546. 

"  Soglia,  1.  c.,  p.  g. 


88  Nature  and  Objcrt  of 

ministers  or  officials  of  the  same  rank.  3.  "£\\v  potestas  ordi 
nis  is  not,  properly  speaking,'"3  capable  of  delegation,  while 
\hejurisdictio  is. 

196.  Our  thesis  is  therefore  established — to  wit,  The 
power  of  order  and  the  power  of  jurisdiction  are  separable 
and  essentially  distinct  one  from  the  other.  This  distinc 
tion  is  thus  expressed  by  the  Council  of  Trent:  "Si  quis 
dixerit  .  .  .  eos,  qui  nee  ab  ecclesiastica  et  canonica 
potestate  rite  ordinati  nee  missi  sunt,  sed  aliunde  veniunt, 
leg;itimos  esse  verbi  et  sacramentorum  ministros,  anathema 

o 

sit."44  If  solely  by  virtue  of  their  ordination  bishops  and 
priests  were  possessed  of  sufficient  jurisdiction,  the  holy 
synod  would  not  have  added,  nee  missi  sunt™  It  is  scarcely 
necessary  to  observe  that,  while  the  two  powers  essentially 
differ  from  each  other  and  are  separable,  they  do  not  on 
that  account  necessarily  exclude  each  other.  Nay,  some 
times  both  powers  together  are  required  for  the  validity  ot 
an  act — v.g.,  for  the  validity  of  absolution." 

ART.  11. 

What  is  the  precise  extent  or  object,  \ ,  of  the  Potestas  Ordinis  ; 
2,  of  the  Potestas  Jurisdictions  f 

197. — I.  Potestas  Ordinis. — The  term  or<io  means  both  the 
act  of  ordination  and  the  state  of  the  sacred  ministry."  To 
what  objects  does  the  potestas  ordinis  extend?  CraissOn 
answers  by  this  proposition:  "Ad  potestatem  ordinis  refe 
renda  est  quaelibet  connciendi  vel  conferendi  sacramenta 
aut  sacramentalia  potestas,  quam  Christus  vel  Ecclesia 
alicui  ordinum  gradui  alligavit. "  ™ 

198.  The  proposition  just  given  embodies  this  principle  : 

w  Craiss.,  n.  256.  24  C.  Trid.,  sess.  xxiii.,  cap.  iv.,  can.  7. 

16  Bouix,  1.  c.,  p.  560.       -r  Craiss.,  n.  2^0.     '"  Ferraris,  V.  Ordo,  art.  i.,n.  i. 
v  Man.,  n.  257.     Cfr.  Soglia,  vol.  i.,  pp.  143,  144. 


Ecclesiastical  Jurisdiction.  89 

Sacramental  functions  are  annexed  to  a  determinate  or  do  in 
such  manner  as  to  be  performable  "9  only  by  a  person  in  the 
respective  order.  This  principle,  however,  admits  of  va 
rious  exceptions.  Thus,  the  bishop  is  the  proper  minister 
of  holy  orders  ;  yet  minor  orders  may  be  conferred  by  a 
priest.  Again,  the  administration  of  the  sacrament so  of  Con 
firmation,  though  attached  to  the  ordo  of  episcopacy,  may 
be  administered  by  a  priest  duly  authorized.  The  potestas  " 
ordinis  is  imparted  by  ordination. 

199. — II.  Potestas  Jurisdictions . — In  the  Roman  civil  law, 
jurisdictio  meant  simply  the  judicial  authority — i.e.,  the 
power  to  take  cognizance  of  causes  by  31  judicial  tribunals  or 
judges  of  courts.  In  canon  law,  the  term  jurisdictio  is  taken 
in  a  broader  sense ;  and  from  the  time  of  Gregory  the  Great 
it  has  been33  employed  chiefly  to  express  the  entire  legisla 
tive,  judicial,  and  executive  power  inherent  in  the  Church  ;  ** 
it  is  therefore  denned  :  "  Omnis  ea  imperii  potestas,  qua 
Ecclesia  regitur  et  gubernatur."  S5  We  say  :  Imperii  potestas — 
i.e.,  authority  which  consists  not  merely  in  teaching  and 
exhorting,  but  in  enacting  and  enforcing  laws.39  Jurisdiction 
is  also  named  potestas  publica,  in  contradistinction  to  the  pri 
vate  authority,  v.g.,  of  parents  over  children.37  Besides  the 
above,  jurisdiction  also  embraces  the  power  of  denning  arti 
cles  of  faith  (potestas  magisterii},  of  convoking  and  presiding 
over  councils  and  the  like.38 

200.  Jurisdiction  is  conferred  by  legitimate  mission, 
which  consists  in  what  is  termed  "  legit  ima  assignatio  subdi- 
torjim  39  or  deputatio  Icgitiuia  ad  exercendiim  munus  spirituals. 
Acts  of  jurisdiction  performed  by 40  persons  not  properly 
deputed  are  null  and  void. 

w  Cfr  Phillips,  Kircheni.,  vol.  ii ,  p.  141.  la  Ib.    p.  142. 

11  Soglia,  1.  c.,  p.  144.          w  Bouix,  1.  c.,  p.  545.        "  Phillips,  1.  c..  pp.  5,  6. 

84  Soglla,  vol.  i.,  p.  145  seq.  w  Ib.  "  Ib. 

"  Reiff.,  lib.  i.,  tit.  29,  n.  3.  w  Bouix,  1.  c.,  p.  545. 

"  Soglia,  1.  c.  <0  Cfr.  Conc.Trid.,  sess.  xxiii.,  can.  7,  8 


go  Nature  and  Object  of 

201.  Q,  Is  the  Church  possessed  of  jurisdiction  in  the 
proper  sense  of  the  term  ? 

A.  Protestants  contend  that  the  entire  power  of  the 
Church  consists  in  the  right  to  teach  and  exhort,  but  not  in 
the  right  to  command,  rule,  or  govern ;  whence  tb*5y  infer 
that  she  is  not  a  perfect  society41  or  sovereign  state.  This 
theory  is  false ;  for  the  Church,  as  was  seen,  is  vested  jure 
divino  with  power,  i,  to  make  laws;  2,  to  define  and  apply 
them  (potestas  judicialis) ;  3,  to  punish  those  who  violate  her 
laws  {potestas  coercitiva}.™ 

202.  The  punishments  inflicted  by  the  Church,  in  the  exer 
cise  of  her  coercive  authority,  are  chiefly  spiritual  (poenae 
spirituales],  v.g.,   excommunication,43  suspension,   and    inter 
dict.      We  say   chiefly  ;  for  the   Church  can  inflict44    tem 
poral   and   even    corporal   punishments.46 

203.  lias    the   Church    power    to  inflict  the  penalty  of 
death?4'     Card.  Tarquini   thus  answers:    I.    Inferior   eccle 
siastics  are  forbidden,  though  only  by  ecclesiastical   law,  to 
exercise  this  power  directly.47    2.  It  is  certain  that  the  Pope 
and  oecumenical  councils  have  this  power  at  least  mediately 
—that  is,  they  can,  if  the  necessity  of  the  Church  demands, 
require  a  Catholic  ruler   to  impose  this  penalty.48      3.  That 
they  cannot  directly  exercise  this  power  cannot  be  proved.4" 

204.  What  objects  or  things  fall  under  ecclesiastical  juris 
diction?     Some  things  come  directly  within   the    reach   or 
compass  of  the  Church's  authority,  others   but  indirectly.60 
i.  Now,  those  matters  and  acts  fall  directly  under  ecclesias 
tical  jurisdiction  which  are  essentially  spiritual.   But  how  are 
temporal  things  distinguished  from  spiritual  ?    Certainly  not 
because  the  former  are  corporeal,  visible,  or  external,  while 
the  latter  are  invisible  or  immaterial  ;  otherwise,  sacraments, 

41  Ap.  Soglia,  vol.  i.,  p.  145.  4i  Cfr.  ib  ,  p.  152.  "3  Ib  ,  p.  153. 

"  Cfr.  Syllabus,  Prop  24.  4'"  Stremler,  Femes  Eccl  ,  p.  13,  seq. 

46  Cf.  Reiff.,  lib.  i.,  lit.  29,  n.  25,  26.         "  Tarq.,  1.  i.,  n.  47,  ad  ~m.,  p.  48. 
«  Ib.  49  Ib.  :'°  Cfr.  Craisson,  Man.,  n.  263. 


Ecclesiastical  Jurisdiction.  91 

being  visible  signs,  would  have  to  be  accounted  M  temporal 
objects.  Spiritual  things,  therefore,  are  distinguished  from 
temporal  by  reason  of  their  respective  ends.  Hence,  those 
matters  are  spiritual52  which  have  an  exclusively  spiritual61 
end — namely,  the  salvation  of  the  soul — even  though  they  be 
of  a  corporal  structure.  2.  On  the  other  hand,  things  are 
temporal,  and  come  within  the  cognizance  of  the  civil  power, 
when,  even M  though  not  corporeal  or  visible,  their  imme 
diate  end  is  temporal  or  civil — i.e.,  when  they  are  ordained 
directly  for  the  welfare  of  civil  society.  3.  Temporal  things, 
however,  fall  directly  under  the  Church's  authority,  so  far 
as  they  are  capable  of  becoming  objects  of  supernatural  acts 
and  virtues  or  also  vices.  Suarez bh  writes :  "  Quia  fere  tota 
materia  temporalis  ad  spiritualem  finem  ordinari  potest,  et 
illi  subest,  sub  illo  respectu  inducit  quamdam  rationem  spi- 
ritualis  materiae,  et  ita  potest  ad  leges  canonicas  pertinere." 
205.  There  is  still  another  class  of  things,  those,  namely, 
which  pertain  at  the  same  time,  though  not  under  the  same 
respect,  to  both  powers — the  spiritual  and  the  temporal — and 
are  consequently  named  quaestiones  mixtae  or  mixti™  fori. 
Now,  things  may  fall  under  the  cognizance  of  both  powers, 
and  therefore  become  m:xti  fori  chiefly  in  three  ways: 
I.  When  they  have  two  ends — one  civil,  the  ot'^r  ecclesias 
tical  or  spiritual.  Marriage  is  a  case  in  point.57  All  ques 
tions  bearing  on  the  sacramental  character  of  matrimony, 
v.g.y  the  validity  of  marriages  or  betrothals,  fall  under  the 
Church's  jurisdiction.  Questions,  however,  respecting  the 
property  of  married  persons,68  inheritance,  and  the  like,  are 
within  the  competence  of  civil  courts.  2.  When,  for  the 
better  execution  of  laws,69  the  Church  and  state  assist 

"  Phillips,  vol.  ii.,  p   534.  M  Ib.,  p.  536.  M  Soglia,  vol.  L,  p.  320. 

M  Phillips,  1.  c.,  p.  536.  "  De  Leg.,  lib.  ii.,  cap.  n,  n.  9. 

"  Phillips,  1.  c.,  p.  542.  "  Ib.,  p.  545. 

68  Bened.  XIV  ,  De  Syn.,  lib  ix.,  cap.  ix.,  n.  3,4. 
19  Phillips,  1.  c.   p.  543. 


92  Ecclesiastical  Jurisdiction. 

one  another,  v.g.y  in  the  suppression  of  rebellion  or  heresy 
3.  By  historical  evolution.60 

206.  Things,  moreover,  may  come  within  the  jurisdiction 
of  the  Church  not  only  by  reason  of  their  nature "'  or  cha 
racter,  as  we  have  just  seen,  but  also  because  of  the  persons" 
to  which  they  refer.  Thus,  according  to  the  common  law 
of  the  Church,  ecclesiastics  are  not  amenable  to  the  jurisdic 
tion  of  civil  courts ;  the  bishop 63  is  the  only  competent 
judge  in  all  their  causes.  We  say,  according  to  the  com 
mon  law  of  the  Church ;  for,  at  present,  this  privilege  is 
almost  everywhere  greatly64  restricted.  Ecclesiastics  may 
also  implead  and  be  impleaded  in  many  instances  in  civil 
courts,  especially  in  non-Catholic  countries."5 

"  Phillips,  I.  c.,  p.  544.  "Cfr.  Benedict  XIV.,  I.e.,  n.  8.  ej  Ib. 

•»  Ib.,  n.  9.     Cfr.  Soglia,  vol.  i.,  §  58.  "  Bened.  XIV.,  1.  c.,  n.  II,  I*. 

••*  Infra,  n  415,  455, 


CHAPTER  III. 

DIVISION   OF  ECCLESIASTICAL  JURISDICTION. 

207.  Jurisdiction  in  general  is  distinguished  into  eccle 
siastical  and  civil  or  political.1  Ecclesiastical  jurisdiction,  of 
which  we  here  treat,  is  divided  : 

208. — i.  Intp  jurisdictio  fort  interni  et  fort  externi.  By 
forum  is  meant  either  the  place  of  trials  or  the  exercise* 
itself  of  judicial  authority.  I.  The  jurisdictio  fori  interni 
is  that  which  refers  primarily  and  directly  to  the  private 
utility  of  the  faithful 3  Liken  individually ;  it  is  exercised 
chiefly  in  the  administration4  of  the  sacraments.  The  juris 
dictio  fori  interni  is  subdivided  into  the  jurisdictio  fori poeni- 
tentialis,  or  that  which  is  exercised  only  in  the  tribunal  of 
penance,  and  into  the  jurisdictio  fori  interni  extrapoeniten- 
lialis — that,  namely,  which  is  exercised  out  of  the  confes 
sional."  2.  The  jurisdictio  fori  externi  is  that  which  relates 
primarily  and  directly  to  the  public  good  of  the  faithful 
taken  as  a  body."  To  make  laws,  decide  controversies  on 
faith,  morals,  or  discipline,  punish  criminals,  and  the  like  are 
acts  of  the  jurisdictio  fori  externi.  Hence,  a  person  may 
have  jurisdiction  in  foro  interno  but  not  in  foro  externo,  v.g., 
parish  priests ;  and,  vice  versa,  one  may  possess  jurisdiction 
in  foro  externo  without  having  any  in  foro  interno,  v.g.,  vicars- 
general  not  yet  in  sacred  orders  but  merely  in  clerical  ton 
sure.  Civil  society  has  no  jurisdictio  fori  interni.7 

209. — 2.   Into  universal  and  particular.     \$y  jurisdictio  unu 

1  Reiff.,  lib.  i  ,  tit.  29,  n.  7.       '  Craiss.,  n.  277.       "  Bouix,  De  Princ.,  p.  $6a 
*Craiss.,  n   277.  °  Bouix,  I.e.,  p.  561.  '  Ib.  '  Ib.,  p.  562 


94  Division  of  Ecclesiastical  Jurisdiction. 

versalis  we  mean  that  which  is  unlimited  as  to,  i,  persons  ;  2, 
places  or  countries ;  3,  matters  subject  to  the  authority  of 
the  Church.  Such  was  the  jurisdiction  of  the  Apostles 
sucli  is,  at  present,  that  of  the  Roman  Pontiffs  and  of  oecu- 
nenical  councils.8  By  jurisdictio  particular  is  we  mean  that 
which  is  restricted  either  as  to,  I,  persons;  2,  or  places;  3, 
or  things.  When  particular  jurisdiction  is  confined  to  a  cer 
tain  class  of  persons,  but  not9  to  any  particular  place,  it  may 
be  exercised  everywhere.  Thus,  prelates  of  regulars  can 
everywhere  exercise  jurisdiction  over  monks  subject  to 
them.10 

210. — 3.  Into  voluntary  and  contentious  jurisdiction."  Vol 
untary  jurisdiction  {jurisdictio  volunt aria— jurisdictio  extra- 
judicialis)  is  that  which  the  bishop  or  superior  can  exercise 
without  any  judicial  formalities  (absque  forma  judicii}.  The 
ordinary  can  exercise  it  everywhere,  even  when  he  is  not  in 
his  own  diocese.  Contentious  jurisdiction  (jurisdictio  conten- 
tiosa— jurisdictio  judicialis)  is  that  which  is  exercised  cum 
forma  judicii™ — i.e.,  according  to  the  forms  prescribed  for 
trials  or  judicial  acts.  A  prelate  cannot,  either  licitly  or 
validly,  exercise  contentious  jurisdiction  out  of  his  owm 
territory." 

211. — 4.   Into    ordinary  and     delegated  jurisdiction.       Bv 
jurisdictio  ordinaria™  we   mean  that    which  is,  by  law,  whe 
ther  divine  or  ecclesiastical,  or  by  custom  or  privilege,  per 
manently  I6  attached  to  an  ecclesiastical  office  or  dignity.1 
Hence,  a  juthx  ordina rins  is  one  who  exercires  jurisdiction 
by  virtue  of  his  office,  and  therefore  in  his  own  name  {jure 
proprio,j:ire  suo,  jure  officii  sui}.™ 

212.   The  title  ordinarius,  however,  is  not  applied  to  every 

•  Bouix,  1.  c.,  p.  562.  Mb.  10  Bouix,  De  Princip.,  p.  563 

u  Reiff,  lib.  i.,  tit.  29,  n.  8,  9.  w  Craisson,  Man.,  n.  281. 

11  Bouix,  De  Princip.,  p.  565.  "  Craisson,  1.  c. 

"  Phillips,  Kirchenr.,  vol.  ii.,  p.  146.  '"  Ib.,  vol.  vi.,  pp.  752,  7^1. 

17  Phillips,  Lehrb.,  p.  369.  '»  Soglia,  vol.  ii.,  p.  448. 


Division  of  Ecclesiastical  Jurisdiction.  95 

one    having  jurisdictio   ordinaria"  but   to   those    only  who 
have  jurisdictio  or  dinar  ia  in  foro  c.rterno,  v.g.<  bishops,  vicars  - 
general,  etc.     Parish  priests  have  jurisdictio 2J  ordinaria  only 
in  foro  intcrno,  but  not  in  foro  externo,  and  are  not,  conse 
quently,  ordinarii™ 

2\^.  As  the  jurisdictio  ordinaria  attaches  to  the  office  it 
self  (officiunt},  it  is  always  obtained  simultaneously  with  the 
office,  and  is  not  lost  until  the  office  is  either"  resigned  or 
lawfully  taken  away. 

2\^.  Jurisdictio  dclcgata  is  that  which  a  person  exercises, 
as  a  rule,  only  by  order  or  commission  23  of  some  one  having 
jurisdictio  ordinaria ;  a  dc'egatns,  therefore,  acts  not  by 
virtue  of  his  office  or  in"'  his  own  name,  but  in  the  name  of 
another.  We  say,  "  as  a  rule,"  ion  jurisdictio  delegate,  is  ex 
ceptionally  "  given  also  by  the  law  itself.  Such,  for  in 
stance,  is  the  power  which  the  Council  of  Trent  granted  to 
bishops  in  regard  to  exempted  regulars.  Hence,  dclegati 
have  jurisdiction  either  ab  Jwininc  or  a  jure — i.e.,  they  are 
commissioned  or  delegated  either  by  a  person  having  jnris- 
dictio  ordinaria  or  by  \\~\Q  jus  commune  and  custom.26  Bishops, 
for  example,  are  in  many  instances  empowered  by  the  jus 
commune,  v.g.,  by  the  Council  of  Trent,"  to  act  tanquam 
sedis  apostolicae 2S  dclegati. 

215.  Bishops  receive  jurisdictio -delegata  a  jure  when  the 
jus  commune28  uses  the  phrase  tanquam  sedis  apostolicae 
delcgati,  or  "  etiam  tamquam  sedis  apostolicae  delegati." 
When  bishops  proceed  simply  "tanquam  sedis  apostolicae 
delegati,"  it  is  allowed  to  appeal  from  them  to  the  Sove 
reign  30  Pontiff  only,  but  not  to  the  metropolitan  ;  but  if  they 

"*  Bouix,  De  Princip.,  p.  567.  *°  Craisson,   Man.,   n.    282. 

91  Cfr.  Cone.  Trid.,  sess.  xxiv.,  cap.  i.  M  Sojjlia,  1.  c.,  p.  449. 

M  Phillips,  Lehrb.,  p.  369.  !<  ReiflF.,  lib.  i  ,  tit.  29,  n.  12 

"  Phillips,  1.  c.  M  Craisson,  1.  c.,  n.  285. 

"  Sess.  v.,  cap.  i.  ;  sess.  vi  ,  c.  2  de  Ref.,  etc.  M  Bouix,  1.  c.,  p.  570. 

™  Craisson,  Man.,  n.  285.  *°  Reiff,  1.  c.,  n.  36. 


96  Division  of  Ecclesiastical  Jurisdiction. 

act  "  etiam  tamquam,"  etc.,31  an  appeal  lies  to  the  archbishop 
Observe,  whenever  bishops  are  authorized  to  proceed3' 
ctiam  tamquam,  etc.,  they  are  vested  both  with  jurisdictio 
ordinaria™  and  jurisdictio  delegata,  and  may  act  by  virtue  of 
either  power.34 

216. — 5.  Into  jurisdictio  inuntdiata  and  jurisdictio  medi- 
ata?*  Jurisdiction  is  immediate  when  it  can  be  exercised 
at  all  times,  not  merely  in  case  of  necessity  ;  such  is  the  au 
thority  of  the  Pope  throughout  the  entire  Church,  of  the 
bishop  in  his  diocese,  and  of  the  parish  priest  in  his  parish. 
On  the  other  hand,  mediate  jurisdiction  is  that  which  cannot 
be  exercised  save  in  certain  cases  determined  by  law  ;  such, 
for  instance,  is  the  authority  of  metropolitans  over  the  sub 
jects36  of  their  suffragans.  We  say  "subjects  of  suffra 
gans"™  for  over  the  suffragans  themselves  archbishops  have 
jurisdictio  ordinaria  and  immediata.n 

217.  Q.  What  is  the  nature  of  the  jurisdiction  vested  in 
the  Supreme  Court  of  the  United  States  ? 

A.  The  original  jurisdiction  of  the  Supreme  Court  is  con 
fined  to  those  cases39  which  affect  ambassadors,  other  public 
ministers,  and  consuls,  and  to  those  cases  in  which  a  State  is 
a  party.  The  appellate  jurisdiction  of  the  Supreme  Court 
exists  only  in  those  cases  in  which  it  is  affirmatively  given." 
Its  whole  appellate  jurisdiction  depends  upon  the  regula 
tions  of  Congress. 

11  Reiff ,  1.  c.,  n.  37.     Cfr.  Cone.  Trid.,  Sess.  xxii.,  cap.  x.,  d.  R.,  and  Sess. 
•vi.,  cap.  iv.      82  Craiss.,  n.  287.     33  Bouix,  De  Paroch.,  pp.  281,  282.     Paris,  1867 
84  Reiff.,  1.  c.,  n.  38.  3S  Craiss..  n.  288. 

88  Cfr.  Phillips,  Kirchenr.,  vol.  vi.,  p.  829  seq.     Ratisbon,  1864. 
"  Reiff.,  lib.  i.,  tit.  31,  n.  40.  3S  Ib.,  n.  35. 

19  Kent,  Com.  i.,  p.  314.  *•  Ib.,  p.  324. 


CHAPTER   IV. 

ON  THE  MODE  OF  ACQUIRING  ECCLESIASTICAL  JURISDICTION, 

IN  GENERAL. 

ART.  1. 
Of  the  Subject  of  Ecclesiastical  Jurisdiction. 

218.  The  subject  of  ecclesiastical  jurisdiction  is  twofold: 
active  and  passive.     By  the  passive  subject  we  mean  all  per 
sons  falling  under  the  authority  of  the  Church  ;  by  the  active 
subject,   those   who    are  vested   with    or   have  jurisdiction.1 
With  regard  to  the  passive  subject,  we  say  :    All  baptized 
persons  come  under  the  dominion  of  the  Church.     We  say 
"  baptized  persons"  ;  for  not  only  Catholics,  but  also  heretics, 
are,  at  least  per  sc?  subject  to  th-j  laws  of  the  Church  ;  infi 
dels  are  not  so  subject.3 

219.  As  to  the  active  subject*  we  merely  observe:  Those 
persons  only  are  vested  with  junsd'ctio  ecclesiastica  who 
have  obtained  it  in  a  canonical  manner,  either  by  having  re 
ceived  an  office  (officium),  or  by  having  been  delegated  by 
one  having  an   ofii:e.     In   the  following  chapters  we  shall 
therefore  show,  i    how  persons  receive  jurisdictio  delegata 
— i.e.,  are  delegated  by  those  holding  an  office  ;  2,  how  they 
obtain  jurisdictio  ordinaria — i.e.,  are  appointed   to  ecclesi 
astical  offLes.     In  the  next  article,  we  shall  premise  some 
observations  relative  to  the  proper  or  canonical  title  of  juris 
diction. 

1  Craiss.,  n.  289.  '  Tarquini,  p.  78,  n.  64.  '  Cfr.  i  Cor  T.  12. 

*  Tarqu.,  1.  c.,  p.  91. 


98  On  the  Mode  of  Acquiring 

ART.  II. 
Of  the  requisite  Title  to  Jurisdiction,  and  its  Necessity. 

220.  By  the  word   title   (Titulus],  in   general,   we   here 
mean  the  act  by  %vJiich  power  is  given  to  a  person  to  perform  ec 
clesiastical  functions* 

221.  Division. — Titles  are  true  or  false.     They  are  true 
or  legitimate  (Titulus  verus] — i.e.,  not  vitiated  or  defective, 
i ,  when  they  are  conceded  in  due  form  ;  2,  to  persons  pro 
perly  qualified;    3,   by  those    who   are  vested   with    libera 
potestas."     Titles  are  false  ( Titulus  falsus]  when  they  are  de 
fective  as   to   any  of  the  above   conditions.     A   false  title, 
when  deemed  legitimate   by  others,   is  also  called    Titulus 
putativus. 

222.  A  title  may  be  false  or  illegitimate  in  three  ways : T 
i.  When  it  has  in  no  way  been  granted  by  the  superior,  or 
not  for  the  case,  place,  time,  or  person  in  question.     Hence, 
the  false  title  in  this  case  is  named   Titulus  Jictus.     2.  When, 
though  given  by  the  proper  superior,  and  of  itself  capable 
of  conferring  jurisdiction,  it  is  nevertheless  rendered  void 
by  some  occult  defect,  either  (a)  in  the  grantor ;  thus,  if  the 
death  of  the  bishop  were  unknown,  his  vicar-general  would 
have  but  a  colored  title  ;  (U]  or  in  the  grantee,  v.g.,  by  oc 
cult  irregularity,  or  if  he  has  been  deprived  of  his  title,  and 
this  fact  is  unknown ;  (c]  or  in  the  concession  itself  of  the 
title,  v.g.,  if  secret  simony  intervened.     A  title  defective  in 
these    three    ways   is   termed    Titulus    coloratus.      3.    When 
conceded    by    a    superior    who    had    no    power    to   do    so, 
v.g.,    by    the    archbishop,    out    of    those    cases    where    he 
may  supply  the  negligence  of  suffragans ;    or   il    the   title 
is   indeed    given   by  a   competent   superior,    but    is   other- 

§  Craiss.,  n.  292  8  Ib.  T  Ib.,  n.  293. 


Ecclesiastical  Jurisdiction,  in   General.  99 

ivise  manifestly  defective.     Such  title  is  a  Titulus  simpliciter 
nullus. 

223.  Q.   Is   a   false    title   sometimes   sufficient   to   obtain 
jurisdiction? 

A.  Craisson"  answers  that  where  a  true  title  is  wanting, 
a  fakse  or  putative  one  is  sufficient  in  foro  interno  and  ex~ 
terno  for  the  valid  exercise  of  jurisdiction,  both  ordinary 
and  delegated  ;  provided,  I,  there  be  common  error;  2,  the 
defect  in  the  title  be  curable  by  the  Church  ;  3,  there  be  at 
least  a  colored  title. 

224.  The  third  condition,  tJiat  there  be  at  least  a  colored 
title,  is,  however,  not  considered    essential    by   all    canon 
ists  ;  for  it  is  a  mooted '  question  whether  a  titulns  coloratus 
is  absolutely  necessary.     Many  affirm  that  error  communis  is 
sufficient,  without  any  title  whatever.     St.  Liguori I0  thinks 
this   a   probable    opinion.     It    is  therefore  probable   that  a 
priest  can  absolve  validly  even  though  he  has,"  in  reality,  no 
jurisdiction,  provided  it  is  believed  by  "  error  communis " 
that  he  has  faculties.     Hence,  as  Sanchez '"  says,  a  confessor 
approved  for  one  year  can  validly  absolve,  even  after  the 
lapse  of  the  year,  if  it  is  commonly  believed  that  he  still 
possesses  faculties.    So,  also,  a  confessor  from  another  diocese 
can  absolve  validly  in  a  diocese  "  where  he  is  not  approved, 
if  by  "  error   communis "   he    is   considered  approbatus  ad 
confessiones. 

225.  We  say,  the  absolution  in  these  cases  is  probably 
valid:  is  it  also14  lazvful?     In  other  words:  Is  it  lawful  for 
a  confessor  to  administer  the  sacrament  ot  penance  with  the 
above  jurisdictio probabilis,  given  him  by  "  error  communis  "  ? 
There   are    three   opinions :    the    first   denies ;    the   second 
affirms;    the   third,    which    is    the    one    embraced    by    St. 

B  Craiss.,  1.  c.,  n.  294.          '  Bouix,  De  Judic.,  vol.  i.,  p.  134.     Paris,  1866. 

10  Lib.  vi.,  n.  572.  "  Notes,  p.  218.  "  Ap.  Craiss.,  Man.   n.  304, 

11  Cfr.  Bened.  XIV.,  Instil.  84,  n.  14-23.     Prati,  1844. 
14  Ih..  n.  16. 


ioo          Ecclesiastical  Jurisdiction,  in 


Liguori,"  holds  that  it  is  lawful  to  administer  the  sacra 
ment  of  penance  cum  jurisdiction*  tantum  probabili,  only 
when  there  is  causa  gravis  necessitatis  or  magnae  utili- 
tatis." 

u  Lib.  ri.,  a.  575.    Mechliniae,  1853.  "  Cfr.  Craiss.,  1.  c..  n.  906. 


CHAPTER  V. 

ON  THE  MANNER  OF  ACQUIRING  ECCLESIASTICAL  JURISDIC 
TION,  IN  PARTICULAR — MODE  OF  ACQUIRING  JURISDIC- 
TIO  DELEGATA. 

226.  By  a  delegate  (delegatus)  we  mean,  in  general,  a  per- 
son  empowered  to  act  or  exercise  jurisdiction  for  another.1 
Jurhdictio  delcgata,  as  was  seen,  emanates  either  a  jure  or  ab 
homine? 

227.  Q.    What   persons   have   power    to    delegate — z>., 
conkr  jurisdictio  dclegata  upon  others  ? 

A.  All  persons  vested  \v\t\\jiirlsdictio  ordinaria  can,'  as  a 
rule,  delegate  others.  But  neither  ordinary  superiors  nor 
delegati  ad  universitatem*  causarum  can,  without  the  consent 
of  the  Pope  (inconsulto  Principe],  commit  their  entire  au 
thority  in  perpetuum  6  to  others ;  the  reason  is,  as  Ferraris/ 
speaking  of  the  judex  ordinarius,  says  :  "  Quia  delegando 
alteri  totam  suam  jurisdictionem,  sen  totum  suum  officium 
ipsi  committendo,  non  tarn  censetur  delegare  quam  omnino 
abdicare  se  officio  suo  ordinario,  quod  nequit  fieri  sine  con- 
sensu  Principis." 

228.  Q.  Can  delegati — i.e.,  persons  who  themselves  have 
\z\i\.  jurisdictio  delegata — s?«b-dclegate  others  ? 

A.  Delegati  are  deputed  (a)  by  the  Pope  or  the  Sacred 
Congregations;  (If)  by  inferior  ordinaries.7 

I.  A  person  delegated  by  the  Pope  or  the  Sacred  Con- 

1  Cfr.  Ferraris,  V.  Delegatus,  n.  1-3.  '  Supra,  n.  214. 

*  Reiff.,  lib.  i.,  tit.  2q,  n.  55.     Cfr.  Regula  Juris  in  6. 

4  Craiss.,  1.  c.,  n.  312.  *  Bouix,  De  Judic.,  vol.  I.,  pp.  144,  145 

•  V.  Delegatus,  n.  15.  7  Craiss.,  1.  c.,  n.  308. 


IO2  On  the   Manner  of  Acquiring 

gregations '  can,  as  a  rule,  sub-delegate  others — i.e.,  authorize 
them  to  act  for  him.  We  say,  as  a  rule  ;  for  two  exceptions 
must  be  admitted:  I,  "Si  sit  electa  industria  personalis* 
delegati."  Now,  a  delegates  is  supposed  to  be  chosen  "ob 
industriam  persona'em "  when,  for  instance,  he  is  com 
manded  in  the  letters  of  delegation  to  attend  personally1* 
to  the  matter,  v.g.,  by  the  words,  "  per  teipsum,"  or  "  per- 
sonaliter  exequaris  "  ;  2,  if  the  power  delegated  is  simply 
ministerial,"  ?;.£•.,  the  execution  of  dispensations  of  marriages; 
yet,  even  in  this  case,  sub-delegates  may  be  employed,  i-.g.. 
to  collect  information  or  to  ascertain  whether  prcces  ver  \tatf 
nit  ant  ur" 

229. — II.  A  person  delegated  by  inferior  ordinaries,  v.g^ 
by  bishops,  cannot,  as  a  rule,  sub-delegate  others.13  We  say, 
as  a  rule ;  because  it  is  the  common  opinion14  that,  when 
such  person  is  delegated  ad  universiiatem  causarum,  in 
view  of  his  office  (tanquam  per  officiuui)  he  can  sub-delegate 
others.  Bouix,1*  however,  thinks  it  unsafe  even  for  a 
delegatus  ad  nniversitatem  causarum  to  sub-delegate  others, 
save  where  a  legitimate  custom  of  the  country  sanctions  it. 

230.  Rural  deans16  and  pastors  in  the  U.  S.  to  whom  a 
certain  kind  of  causes  or  matters  is  collectively  committed — 
v.g.,  the  power  to  grant,  in  a  certain  district,  dispensations 
from  one  or  two  of  the  proclamations  of  the  banns  of  mar 
riage — would  appear  to  be  accounted  delegati  ad  universita- 
tem  causarum"  and  would  seem,  therefore,  authorized  to  sub" 
delegate  others  with  regard  to  particular  cases. 

231.  Q.     To    what    persons    can    jurisdiction    be    dele 
gated  ? 

A.  Generally  speaking,  only  to    those  who,    I,  are    free 

•  Cfr.  Ferraris,  V.  Delegatus,  Novae  addit.  ex  ali<-na  manu,  n.  12, 

•  Bouix,  De  Judic.,  vol.  i.,  p.  145.          10  Cfr.  Reiff.,  1.  c.,  n.  60. 
11  Ferraris,  1.  c.,  n.  23,  24.  »  Craiss.,  1.  c.,  n.  308 

"  Bouix.  1.  c.,  pp.  145,  146.  M  Ib.,   p.  146.  '•  »*bk 

'"  Cfi    Cone   PI    B  It    II..  n.  74.  :T  Cr  is  .,  1    c.,  n.  311. 


Ecclesiastical  Jurisdiction,  in   Particular.        103 

from  defects  that  debar  a  person  from  jurisdiction,  and,  2, 
have  the  requisite  qualifications." 

232. — I.  Now,  the  defects  (uitia)  that  disqualify  a  person 
to  hold  ' '  jurisdictio  delegata  are,  I,  a  natura,  v.g.,  deafness, 
loss  of  speech,  insanity,  and  the  like ;  2,  a  lege,  v.g.,  "  excom- 
municatio  non  tolerata,"  infamy;  3,  a  moribus,  i e.,  custom — 
thus,  slaves  and  women  cannot  \>zjudices  delegati™ 

233. — II.  Of  the  necessary  qualifications  (dotes),  some  r;rc 
required  in  every  delegation ;  thus,  as  a  rule,  clerics  only, 
and"  not  laymen,  can  be  delegated  ;  others  are  required  in 
certain  cases  only.  Besides,  as  a  rule,  a  person,  in  order  to 
be  capable  of  being  delegated  by  the  Pope,  should  be  an 
ecclesiastical  dignitary,  or  a  canon  of  a  cathedral  chapter, 
or  a  vicar-general  of  a  bishop,  or  a  conventual  prior  or 
superior  of  regulars.  We  said,  "  as  a  rule  "  ;  for,  at  present, 
as  we  have  shown,"  ordinary  confessors  and  priests  are  not 
unfrequently  entrusted  with  the  execution  of  dispensations 
or  faculties  granted  by  the  Holy  See." 

234.  Q.  Can  an  ecclesiastical  or  at  least  a  civil  cause  of 
clerics  be  delegated  or  committed  to  a  layman  ? 

A.  —  i.  Bishops  and  other  prelates24  inferior  to  the  Pope 
cannot  delegate  to  laymen  either,  i ,  spiritual  (causae  mere  cc- 
ilesiasticae,  causae  spiritnales]  ;  2,  or  criminal  causes  (causae 
criminates]  of  ecclesiastics  ;  3,  neither  can  they,  according 
to  the  more  probable  opinion,"  assign  to  lay  judges  for 
judicial  cognizance  even  the  civil  causes  (causae  chiles, 
causae  tcmporales)  of  clerics.2' 

2.  The  Sovereign  Pontiff  may,  however,  commit  to  laics. 
r.g.,  to  kings,  not  only  civil  or  temporal,  but  also  a  certain 
number  of  ecclesiastical  or  spiritual  causes  of  clerics; C7  but 
he  cannot  subject  all  ecclesiastics  and  all  causes  of  ecclesia  - 

18  Craiss.,  1.  c.,  n.  313.  "  Ferraris,  V.  Delegntus,  n.  25,  20. 

"'  Cfr.  Reiff.,  1.  c.,  n.  66.  *'  Craiss.,  I.  c.,  n.  315.  B  Supra,  n.  54 

K  Ferraris,  V    Delegatus,  n.  31  "  Reiff.,  lib   i  ,  tit.  29,  n.  88. 

"I   ..  n.  SQ-Q:  M  Cfr.  Crais    ,  1          n    ;i6  Rein.    I   c.    a  qa. 


104  On  the  Manner  of  Acquiring 

tics  to  the  civil  tribunal  •  in  other  words,  he  has  no  power  to 

do  away  entirely  with  the  pnvil  ginm  fori?* 

235-    Q-   What  should  be  the  nature  of  the  act  of  delega 
tion  ab  kominc  ? 

A. —  i.  Delegated  faculties  are  essential  either  to  the 
validity  of  an  act,  v.g.,  approbation  for  confessions;  or  only 
to  the  licitness  of  an  act,  v.g.,  in  the  administration  of  sacra 
ments,  save  that  of  penance."9  In  thejfrj/  case,  the  dclegatio 
must  be  positive — that  is,  express,  or  at  least  presumptive, 
provided  the  presumption  rest  upon  signs  that  indicate 
actual  consent  (consensus  de  praesenti} ;  internal  consent  is 
not  sufficient80  for  approbation  to  hear  confessions,  nor  for 
assistance  at  marriages,  where  the  Tridentine  Decree  on 
clandestinity  is  published.  In  the  second  case — i.e.,  when 
there  is  question  merely  of  the  licitness  of  an  act,  the  licentia 
t  at  ionabi liter  pracsumpta  or  the  ratiJiabitio  rationabiliter  spe- 
rata31  is  sufficient ;  this  holds  true,  according  to  St.  Liguori,3* 
of  the  administration  of  baptism,  confirmation,  extreme 
unction,  and  the  holy  eucharist,  and  with  us  also  of  matri 
mony." 

236.  Priests  in  the  U.  S.  are  strictly  forbidden  to  baptize 
or  marry  parties  from  other  dioceses  who  can  easily  recur  to 
their  pastor  ; ni  nay,  the  statutes  of  the  various  dioceses  of  this 
country,  as  a  rule,  prohibit  priests  from  baptizing  or  marry 
ing,  not  only  those  who  belong  to  other  dioceses,  but  also 
those  who  belong  to  other  parishes  01  missionary  districts. 
Thus,  the  statutes  of  Boston  enact :  "  Prohibemus  sub  poena 
suspensions  nc  ullus  pastor,  fideles  ex  altero  (districtu)  ad- 
venientes  absque  proprii  eorum  pastoris  licentia  mat.rimonio 

M  Reiff.,  1.  c.,  n.  93.  29  Craiss.,  n.  320. 

M  St.  Liguori,  lib.  vi.,  n.  570.     Mechliniae,  1852.     Cfr.  our  Notes,  p.  269. 
*'  Craiss.,  n.  322.  ^  Lib.  vi.,  n.  n,  173,  255,  722. 

"  Cfr.  Reiff,  lib.  iv.,  tit.  3,  n.  83,  84. 
'  Cone.  F'l   "Ja1     II.,  n.  117,  227.     See  our  Notes,  p.  175. 


Ecclesiastical  Jurisdiction,  in  Particular.       105 

conjungat,  vel  infantes  baptizet."  "  The  statutes  of  Newark 
enjoin  the  same  38  S2ib  gravi. 

237. — 2.  The  delcgatio  should,  moreover,  be  made  known 
to  the  delegatus,  and  accepted,  at  least,  implicitly  by  him." 

238. — 3.  The  delcgatio  should  be  free  ;  hence,  if  a  superior 
gives  delegated  faculties  altogether  against  his  will,  the  act 
is  invalid.  We  say  altogether ;  for  if  he  did  so  even  out  of 
metus  gravis  et  injustus^  his  act  would  not,  on  that  account, 
be  invalid.38 

239. — 4.  It  need  not  be  in  writing,  save  in  cases  pre 
scribed  by  law.39 

240.  In  the  use  or  exercise  of  jiirisdictio  delegata,  the  dele 
gatus  must  state  that  he  acts  by  virtue  of  delegated  powers. 
Hence,  bishops  in  the  United  States,  when  conferring  upon 
their  priests  such  faculties  as  they  hold  from  the  Holy  See, 
as  also  in  dispensing  from  impediments  to  marriage,  use  this 
form :  "  Vigore  factiltatum  a  S.  D.  N.  Pio  IX.  (Leone 
XIII.)  nobis  collatnrurn,"  etc.,  or  similar  formulas.40 

88  Syn.  Boston.  IT.,  ami.  1868,  tit.  4,  n.  46.  "  Statuta  Novarc,  p.  12. 

"  Craiss.,  n.  323.  M  Ib.,  n.  324.  M  Ib.,  n.  325. 

40  However,  these  or  similar  formulas,  except  where  the  Papal  indult  re 
quires  it,  and  that  on  pain  of  nullity — v.g. ,  by  the  phrase  alias  nullae  sint — are 
no  longer  necessary  to  the  validity  of  the  above  dispensations  or  faculties. 
Hence,  these  dispensations  and  faculties,  when  granted  by  bishops  in  the  U.  S. 
informally — v.g.,  orally,  or  even  by  telegraph,  in  some  such  simple  words  as 
"the  dispensation  or  faculty  is  granted  " — are  valid,  and,  if  there  be  sufficient 
cause  for  this  mode  of  concession,  also  licit.  For  the  above  formulas  are  not, 
at  least  at  the  present  day,  prescribed  on  pain  of  nullity  in  the  faculties  given 
our  bishops  by  the  Holy  See  (Konings,  n.  1628,  q.  6). 


CHAPTER  VI. 

MANNER  OF  ACQUIRING  JURISDICTIO  ORDINARIA. 
ART.  I. 

Of  the  Institution  or  Establishment  (Const itutio)  of  Offices  to 
wliicli  Ecclesiastical  Jurisdiction  is  attached. 

241.  Q.  By  what  right  is  jurisdiction  attached  to  ecclesi 
astical  offices  ? 

A. — I.  As  to  the  Papal  dignity  or  office,  it  is  certain  that 
jurisdiction  over  the  entire  Church  is  immediately  and 
directly '  conferred  by  Christ  upon  the  one  who  is  elected 
Sovereign  Pontiff  For,  once  canonically  elected  by  the  car 
dinals,2  the  Pope,  without  any  further  institution,  confirma 
tion,  or  collation,  receives  universal  jurisdiction  from  Christ, 
and  not  from  the  cardinals,  who  have  themselves  no  such 
jurisdiction." 

242. — II.  Whether  bishops  hold  jurisdiction  in  their  respec 
tive  dioceses  immediately  of  God,  or  but  mediately,"  was 
much  debated  in  the  Council  of  Trent ;  no  decision  was  ar 
rived  at,  and  the  question  is  consequently  still  open.  What 
ever  opinion  we  may  choose  to  follow,  it  is  universally* 
admitted,  even  by  those  who  assert  that  bishops  receive 
jurisdiction  immediately  from  God  and  not  from  the  Pope, 
that  the  exercise  of  the  episcopal  jurisdiction  '  depends  upon 
the  Sovereign  Pontiff.' 

'Zallinger,  ap.  Sogha,  vol.  L,  p.  295. 

*  Notes  on  the  Second  PI.  C.  Bait.,  p.  77.       »  Craiss. ,  n.  327.       *  Ib.,  n. gaa 

•  Ib.,  n.  329.  «  Soglia,  vo!   ii.,  p.  '  Cfr.  Tarquini,  p.  94. 

106 


Manner  of  Acquiring  Jurisdictio   Ordinaria.    107 

243. — III.  The  "  Schola  Parisiensis "  maintained  that 
parish  priests  are  the  successors  of  the  seventy-two  disciples 
of  our  Lord,  and  receive  directly  from  Christ  the  power  to 
perform  hierarchical8  functions.  This  opinion,  however, 
was  long  ago  rejected  9  by  the  most  eminent  canonists  and 
theologians.  In  fact,  the  seventy-two  disciples  were  not 
parish  priests,  nor  even  simple  priests.  Parish  priests  them 
selves  were  altogether  unknown 10  in  the  first  centuries,  and 
did  not  come  into  existence  in  rural  districts  before  the 
fourth  century,  and,  in  cities  where  bishops  resided,  not  be 
fore  the  year  1000.  Rome  and  Alexandria,  perhaps,  form 
exceptions  in  this  respect." 

244. — IV.  Among  the  bishops  themselves  there  is,  jure 
divino,  no  gradation  or  superiority ;  for  Christ ia  constituted 
all  bishops  equals.  The  Pope  alone  is,  jure  divino,  superior 
to  bishops.  Hence,  only  the  Papal  and  Episcopal  offices  or 
dignities  are  of  divine  "  institution ;  the  other  offices  in  the 
Church,  or  grades  of  jurisdiction — v.g.,  the  dignity  of  patri 
archs,  metropolitans — are  undoubtedly  of  ecclesiastical "  ap 
pointment. 

245.  By  an  ecclesiastical   office  (pfficium  ecclesiasticum — 
Kirchenamt)  we  mean  the  right  possessed  by  a  cleric  to  ex 
ercise  ecclesiastical  jurisdiction  within  the  sphere  assigned 
him  by  ecclesiastical  authority.16    Ecclesiastical  offices,  there 
fore,  can  be  established  and  distributed  only  by  the  ecclesias 
tical,  but  not  by  18  the  secular,  authority.     We  shall  see  in 
the  following  question  what  persons  in  the  Church  are  en 
titled  to  establish  these  offices. 

246.  Q.  Who  can  establish  ecclesiastical  offices  in  the 
Church  ? 

•  Craiss.,  n.  330.  •  Soglia,  1.  c.,  p.  45. 

10  Craiss.,  n.  330.    Cfr.  Soglia,  vol.  H.,  p.  44. 

"  Bouix,  De  Paroch.,  pp.  23,  24.     Paris,  1867. 

11  Bouix,  De  Princip.,  pp.  530,  531.  "  Soglia  vol.  ii.,  p.  7. 
**  lb.,  p.  9.         '5  Phillips,  Lehrb.,  §  71,  p.  129.            w  Ib.,  p.  130. 


io8  Manner  of  Acquiring 

A. — I.  Erection  of  Episcopal  Sees, — In  the  beginning  of  the 
Church,  not  only  St.  Peter,  but  also  the  other  apostles," 
erected  episcopal  sees  ;  for  all  the  apostles;  without  excep 
tion,  received  from  our  Lord  jurisdictio  universalis™ — i.e., 
"jurisdictio  in  tolam  Ecclesiam  et  in  totum  orbcm"  ThisyV/rw- 
dictio  universalis  included  the  power  to  establish  bishoprics.18 
But,  as  Craisson 2n  remarks,  "  Potestas  universaiis  singulis 
apostolis  a  Christo  tributa,  transmissa  non  fiat  ad  eorum  in 
episcopatu  successores  ;  sed  sola  potestas  Petri,  utpote  ordi- 
naria,  ad  ipsius  successores  seu  summos  Pontinces,  debuit 
transire." 

247.  Hence,  upon  the  death 21  of  the  apostles,  no  bishop, 
rics  could  be  established  save  by  the  consent  ™  of  the  Pope. 
From  this  we  are  not,  however,  to  infer  that  in  the  first  cen 
turies  episcopal  sees  were  always  erected  by  the  immediate 
authority  of  the  Holy  See  ;  for  ecclesiastical  discipline  on 
this  head  suffered  change  at  three  different23  periods. 
The  first  period  extends  from  the  beginning  of  Christianity 
to  the  sixth  century.  During  this  epoch  episcopal  sees  were 
erected  chiefly  by  provincial  councils,  without  the  express 
sanction24  of  the  Holy  See.  We  say,  i,  chiefly  by  provincial 
councils ;  for  no  small  number  of  bishoprics  were,  even  dur 
ing25  this  time,  established  by  the  P  >pes.  We  say,  2,  wit /tout 
the  express  sanction  of  the  Holy  See  ;  because  provincial  coun 
cils,  in  erecting  episcopal  sees,  were  bound  to  observe  the 
la*vs  enacted  or  approved  by  the  Roman  Pontiffs  ;  2°  this  is 
evident  from  the  fact  that  when  the  African  bishops,  con 
trary  to  the  laws  of  the  Church  on  this  head,  instituted 
bishops  even  in  small  places,  they  were  reproved  "  by  Pope 
St.  Leo  for  so  doing.  In  the  Eastern  Church  bishoprics 

•"  Craiss.,  n.  332.  '"  Bouix,  De  Episc.,  torn,  i.,  pp.  45,  46. 

*"  Cfr.  Soglia,  vol.  i.,  pp.  207,  208.       *"  L.  c.,  n.  332. 

*J  Devoti,  lib.  i.,  tit.  5,  sect,  i,  n.  5,  p.  202.  m  Craiss.,  n.  332. 

*3  Soglia,  1.  c.,  p.  203.  "  Ib.,  p.  204.  vs  Ib.,  p.  205. 

**  Craiss.,  n   333.  "  Ib. 


Jurisdictio   Ordinaria.  109 

were  at  first  established  exclusively  by  the  patriarchs  ;  but 
after  ecclesiastical  provinces  had  been  formed,  this  power 
was  exercised  also  by  metropolitans  and  provincial  councils." 

248. — 2.  The  second  period  reaches  from  the  sixth  to  the 
eighth  century.  During  this  time  metropolitans  and  provin 
cial  councils  were  no29  longer  free  to  establish  bishoprics 
without  the  express30  consent  of  the  Roman  Pontiffs. 

249. — 3.  The  third  period  extends  from  the  eighth  cen 
tury  to  the  present  day.  During  this  period  the  power  to 
establish  episcopal  sees  reverted  exclusively,  though  gradu 
ally,31  to  the  Sovereign  Pontiffs,  by  whom  alone  it  is  exer 
cised  at  the  present  day — at  least,  so  far  as  the  Latin  Church 
is  concerned."  We  must,  therefore,  distinguish  in  this  mat 
ter  the  question  of  right™  from  that  of  fact.  The  right  or 
power  to  erect  bishoprics  is  and  always  has  been,  de  jure, 
vested  in  the  Popes  alone  ;  as  a  matter  of  fact,  however,  this 
power  was  exercised  also  by  34  others,  although  only  by  the 
express  or  tacit  permission  of  the  Holy  See. 

250. — II.  Chapters  can,  at  present,  be  established  only  by 
the  Pope,35  but  not  by  bishops.  This  applies  not  merely  to 
chapters  of  cathedrals,  but  also  to  those  of  collegiate*1 
churches. 

25 1  • — 111.  Parislies  or  parochial  churches  may  undoubtedly 
be  established  by  bishops,  provided  certain  conditions  be  ob 
served  by  them.37  The  nature  of  these  conditions  depend? 
upon  the  manner  in  which  parishes  are  established.  Now, 
parishes  are  established  chiefly  in  three  ways  :"  I,  per  via»> 
creationis ;  2,  per  viam  dismembratioms  ;  3,  per  viam  uniort? 
We  shall  briefly  treat  of  each  of  these  modes. 

"  Soglia,  I.  c.,  p.  205.  **  Ib.  30  Craiss.,  n.  334. 

"  Soglia,  1.  c.,  pp.  206,  207.  M  Craiss.,  n.  334. 

"  Soglia,  vol.  i.,  p.  203.  **  Cfr.  Ib.,  pp.  209,  210. 

**  Bouix,  De  Capitulis,  pp.  190,  191.     Paris,  1862. 

"  Cfr.  Phillips,  Kirchenr.,  vol.  vii.,  pp.  2Ss,  286.      Rati^bon,  iSfxj. 

"  Craiss.,  n.  336.  :i!t  It) 


iio  Manner  oj  Acquiring 

ART.   11. 
Erection  of  Parishes  "per  viam  creationist 

252.  The  erection  (erectio,  const  itutio)  of  benefices  in  gene- 
ral  is  thus  defined  :  "  Erectio  beneficiorum  est  actus  legiti- 
mus  quo  sacrum  aliquod  officium,  vel  ministeriurn  in  certa 
Ecclesia  vel  altari,   a  clerico    obeundum,  constituitur   cura 
perpetuo  reditu,  quem  clericus  jure  suo  percipiat  turn  ali- 
mentorum  et  stipendii  causa,  turn  ad  ferenda   onera   bene- 
ficii.39 

253.  New  parishes  are  erected  per  viam  creationis  when 
they  are  formed,  not  from  portions  of  parishes  already  in  ex 
istence,  but  from  people  or  territory  not  yet  assigned  to  any 
parish,40  as  happens  usually  in  partibus  infidelium."     In  the 
United  States  new  parishes  (quasi-parishes)  are  still  frequently 
established  in  this  manner.     In  Europe,  where  the  Catholic 
faith    has   ruled   for  centuries;   and   where   it  can   therefore 
scarcely  happen  that  there  should  be  Catholics  not  yet  ag 
gregated  to  some  parish,  the  erection  of  parishes  per  viam 
creationis  can  scarcely  occur.42 

254.  There  can  be  no  doubt  that  bishops,  by  virtue  of 
their  "  pot  est  as  ordinaria"  can  create  new  parishes — that  is, 
constitute  priests  who  shall  have  the  care  of  souls  in  their 
own  name  (nomine  propno)  and  by  virtue  of  their  office  (ex 
officio),  in  such  districts  and  over  such  people  as  are  not  yet 
aggregated  to  any  other  parish.43 

255.  In  establishing  new  parishes,  whether  "  per  viam 
creationis,"  or  "  per  viam  dismembrationis,"  or  "  per  viam 
unionis,"  or  otherwise,44  the  bishop  is,  de  jure  communi,  bound 
to  provide,  as  lar  as  possible,  for  the  suitable  maintenance  " 
of  the  pastor.     This  applies,  of  course,  also  to  the  United 

*  Soglia,  vol.  ii.,  p.  153.  «»  Bouix,  De  Paroch.,  p.  243. 

41  Craiss.,  n.  337.  *3  Bouix,  1.  c.,  p.  245.  °  Ib 

44  Ib.  «  Craiss.,  n.  338. 


Jurisdictio   Ordinaria.  ill 

States,  as  is  implied  in  these  words  of  the  Second  Plen.  C. 
of  Baltimore:"  "  Monemus  sacerdotes  ut  non  detrectent 
vacare  cuilibet  mission!  si  Episcopus  judicet  sufficient  ad  vi- 
tae  dccentem  siistentationem  subsidium  illic  habcri  posse." 

^O°  256.  According  to  the  general  law  of  the  Church, 
every  parish  should  have  ^perpetual,  that  is,  irremovable,  rec 
tor.  In  this  country  there  are  at  present,  according  to  the 
Third  Plenary  Council  of  Baltimore  (n.  33),  two  classes  of  mis 
sions  or  quasi-parishes :  those  which  have  irremovable  rec 
tors ;  others  which  have  ordinary  rectors.  Rectors  who  are 
irremovable  cannot  be  deprived  of  their  parishes,  save  upon 
trial,  as  outlined  in  the  instruction  Cum  Magnopcre  of  18^4 
(Cone.  PI.  Bait.  III.,  n.  38),  or  in  the  Instruction  of  1878,  where 
the  latter  still  obtains.  Our  ordinary  rectors  can  indeed  be 
transferred  for  grave  and  just  cause,47  but  not  absolutely 
dismissed,  in  punishment  of  crime,  without  the  above  trial.4' 

Regular  priests  having  charge  of  congregations  are  re 
moved  by  their  superior  or  by  the  bishop,  and  neither  is 
obliged  to  assign- to  the  other  a  cause  for  his  action.  But  ii 
the  regular  superior  removes  them  he  should  substitute  oth 
ers  with  the  consent  of  ihe  bishop.4" 

257.  In  France"0  and  other  parts  of  Europe  civil  govern 
ments  have  a  voice  in  the  formation  of  parishes."  In  this 
country  the  consent  of  the  civil  government  is  not  required 
for  the  formation  of  parishes,  so  far  as  purely  spiritual  effects 
are  concerned.  Congregations,  however,  in  the  United 
States,  Ireland,"  and  England,"3  can,  as  a  rule  hold  property 

4«  Cone.  PI.  Bait.  II.,  n.  108. 

41  S.  C.  de  P.  F.  ad  Dubia  circa  Instr.  20  Julii  1878. 

48  Instr.  S.  C.  de  P.  F.  20  Julii  1878  ;   Resp.  ad  Dubia. 

49  Bened.  XIV.,   Const.  Firmanctis,   §    u,  6   Nov.   1744;   C.  PI.  Bait.   II.,  n. 
406. 

40  Craiss.,  n.  339.  *'  Phillips,  vol.  vii..  p.  287. 

M  Syn.  Plen.  Episc.  H.bc-r.iiae,  ap.  Thurles,  1850,  Decree.  22.  n.  5,  ap.  Coll. 
Lac.,  torn,  iii.,  p.  794  ,  cfr.  Ib.,  p.  888  ;  Cone.  Tuam.  Ill  .  cap.  xvii.,  n.  3. 
83  Cfr.  Cone.  Prov.  Westmonast.  II.,  a.  1855,  Deer    S,  n.  19. 


1 1 2  Manner  of  Acquiring 

safely  only  by  conforming  to  the  civil  law  on  this  head. 
Thus,  congregations  in  the  United  States  can,  as  a  rule,  hold 
possessions  in  their  capacity  of  congregations  only  by  be 
coming  incorporated  according  to  law.51  And  as  the  civil 
laws  relative  to  corporations  are  not  unfrequently  opposed 
to  the  laws  of  the  Church  (v.g.,  by  vesting  the  title  to  the 
property  in  lay  trustees),  bishops  with  us  are  at  times  com 
pelled  to  hold  the  entire  Church  property  of  the  diocese 
absolutely  in  their  own  name — i.e.,  in  fee  simple  and  not 
merely  in  trust. 

l^if0  258.  Q.  Can  bishops,  by  virtue  of  their  ordinary 
power,  change  parishes  whose  rectors  are  removable  ad 
nutuin  into  parishes  whose  rectors  are  irremovable? 

A.  They  can.  For,  as  we  shall  show  farther  on,  the  gen 
eral  law  of  the  Church  not  only  authorizes  but  commands 
bishops  to  appoint  irremovable  rectors  for  all  parishes." 
Hence,  as  we  shall  see  later,  the  Holy  See  always  most 
earnestly  urges  bishops  in  whose  dioceses  there  are paroeciae 
amovibiles,  to  change  them  into  paroeciae  inamovibilcs.  In 
fact,  the  law  of  the  Church  presumes  that  the  care  of  souls 
will  be  much  better  exercised  by  a  rector  who  is  inamovibiles, 
and  who  is  therefore  regarded  as  the  father  of  his  parish 
ioners  and  the  sheplierd  of  his  flock,  than  by  a  removable  rec 
tor,  who,  because  of  his  movableness,  is  not  looked  upon  in 
law  as  a  shepherd,  in  the  full  sense  of  the  term.  (Cf.  De 
Angelis,  1.  3,  t.  29,  n.  3.)  /?,  p.  498. 

In  accordance  with  these  principles,  and  the  proposals 
made  by  the  S.  Congr.  de  Prop.  Fide,  in  the  Conferences 
held  at  Rome  in  1883,  the  Third  Plenary  Council  of  Balti 
more  ordains  that  in  every  diocese  the  bishop  shall,  with  the 
advice  of  his  consultors,  select  a  certain  number  of  our  mis- 


54  Nixon's  Digest,  p.  686,  edit.  1855  ;  cfr.  Cone.  PI.  Bait.  II.,  n.  200. 
K  Cone.  Trid.,  sess.  24,  c.  13,  De  Ref. 


Jurisdictio  Ordinaria.  1 1 3 

sions  (all  of  which  have  been  thus  far  missiones  amwibiles) 
and  make  them  missiones  inamovibiles,  in  such  number,  that 
at  least  one  rector  out  of  every  ten  will  be  in  future  irre 
movable."6  However,  the  Council  advises  the  bishops  not  to 
exceed  this  number,  except  for  good  reasons,  within  the  first 
twenty  years  after  the  promulgation  of  its  decrees.  The 
words  of  the  Third  Plenary  Council  (n.  35)  are:  "  Quae  pro- 
portio  (unus  inter  decem)  ne  inconsulte  excedatur  intra 
viginti  primos  annos  post  Concilium"  (Plen.  Bait.  III.)  "pro 
mulgatum."  The  proportion  of  one  out  of  every  ten  was 
agreed  upon  as  the  minimum  in  the  Conferences  held  at 
Rome  in  1883,  between  the  Cardinals  of  the  Propaganda  and 
our  prelates. 

Of  course,  in  this  whole  question  we  prescind  from  certain 
cases,  altogether  special  and  exceptional,  particularly  where 
the  rights  of  third  parties  are  involved.  Thus  the  Holy  See 
(S.  C.  C.)  has  decided  that  where  a  cathedral  chapter  has 
the  right  to  appoint  and  remove  at  its  will  the  rector  of  the 
cathedral,a  or  where  a  person  founding  a  parochial  church 
stipulates  in  the  act  of  foundation  that  the  rector  shall  be 
removable,  the  bishop  cannot  make  such  rector  irremovable. b 

tSif"  Q.  Can  bishops,  also  in  the  United  States,  change 
parishes  or  missions  whose  rectors  are  irremovable  into  par 
ishes  or  missions  whose  rectors  are  removable? 

A.  They  cannot.  For  they  cannot  derogate  from  or  dis 
pense  in  the  general  law  of  the  Church  which  forbids  rectors 
to  be  made  removable,  as  we  have  seen.  Hence  the  Pope 
alone  can  make  the  change  in  question.0  Besides,  it  is  a 
general  principle  of  law  that  while  bishops  can  ameliorate 
the  condition  of  churches,  and  therefore  change  removable 
rectors  into  irremovable,  they  have  no  power  to  deteriorate 

66  Cone.  PI.  Bait.  III.,  n.  33.  35. 

•  S.  C.  C.  29  Aug.  1857,  Apud  Lucidi,  vol.  iii.,  p.  243,  n.  8.  9;  ib.,  p.  248  so. 
b  Pyrr.  Corrad.,  Praxis  Benef. ,  lib.  i.  cap.  6,  n.  270.  Colon.     Agr.,  1697 
e  Corradus,  1    c.,  n.  288. 


114  Manner  of  Acquiring 

or  lower  their  status/  and  consequently  are  not  allowed  to 
change  parishes  or  missions  that  have  irremovable  rectors 
into  parishes  or  missions  which  have  removable  rectors.0 

That  this  axiom  of  law  holds  also  in  the  United  States  is 
expressly  recognized  by  the  Third  Plenary  Council  of  Bal 
timore  (n.  34)  when  it  enacts:  "  Missio  cujus  Rector  semel 
inamovibilis  est  constitutus,  in  posterum  semper  habebit 
Rectorem  inamovibilem." 

259.  What  are,  according  to  Schmalzgrueber,"  Reiffen- 
stuel,58  and  Ferraris,69  the  conditions  required  to  constitute 
a  canonical  parish  ?  i.  That  it  be  erected  by  authority 
of  the  Pope  or  bishop;"0  2,  that  it  have  a  district  circum 
scribed  by  certain  boundaries  fixed  by  the  bishop  ;  3,  that  it 
have  a  rector,"1  who  is  irremovable,63  and  has  the  care 
of  souls  and  the  power  of  the  forum  poenitentiale  in 
such  manner  that,  de  jure  ordinario,  he  alone  and  no 
one  else  is  possessed  of  them;  4,  that  the  parish  priest 
be  bound,  and  that  by  virtue  of  his  office,  to  adminis 
ter  the  sacraments  to  his  parishioners,  and  that  the  latter 
in  turn  be  obliged,  in  a  measure,  to  receive  them  from 
him  ;  5,  that  the  rector  exercise  the  cura  by  virtue  of  his 
office — that  is,  in  his  own  name,  and  not  merely  as  the  vicar 
of  another.  However,  canonical  parishes  may  be  adminis 
tered  by,  or  actually  in  charge  of,  rectors,  removable  or 
irremovable,  who  are  merely  the  vicars  of  the  parish  priest 
in  habitu.  De  Angelis  seems  to  maintain  that  this  is  the 
case  with  our  parishes  ;  the  bishop  having  the  cura  liabitualis, 
and  being  therefore  the  parish  priest  in  habitu  of  each  and 

d  According  to  the  axiom  :   "  Ut  ecclesiastica  beneficia  sine  diminutione  con- 
ferantur"  lib.  3,  Deer.  tit.   12. 

e  Arg.  C.  Trid.,  sess.  24,  c.  13,  De  Ref.  M  L.  iii.,  tit.  29. 

58  L.  iii.,  tit.  29,  n.  3;  cf.  infra,  n.  641.  *9  V.  Parochia,  n.  3. 

60  Can.  Nullus  n,  causa  16,  q    7. 
41  Can.  Sicut  4,  caus.  21,  q.  2.  «*  Reiff.,  1.  c.,  n.  7. 


Ordinaria.  115 

every  parish  in  the  diocese,  thus  retaining  the  titles  of  the 
parishes  and  giving  but  the  administration  or  cura  actualis 
to  our  rectors,  who  are  consequently  vicars  of  the  bishop." 

260.  Are   our  congregations  or  churches  canonical  pa 
rishes?      De  Angelis  seems  to  hold   the  affirmative.      His 
argument  is:   A  canonical  parish  is   a  church   set  apart  by 
the  bishop,  and  having  a  population    living  within  certain 
fixed  limits,  and  in  charge  of  a  priest  or  rector,  who  alone 
can  by  virtue  of  his  office  preach  and  administer  the  sacra 
ments  and  other  spiritual  offices  to  the  parishioners.    There 
fore,  when  the  bishop  has  designated  a  church  and  assigned 
it  people  living  within  certain  fixed   limits,  and,  moreover, 
appointed  a  rector  to   have  sole  charge,  he  has  erected  a 
canonical  parish.      Nor  is  it  necessary  that  the   bishop,  in 
erecting  a  canonical  parish,  should  expressly  mention  irre 
movability,   for    it   inheres   in   benefices  proper,  and  conse 
quently  also  in  canonical  parishes,  by  virtue  of  the  common 
law  of  the  Church. 

261.  Now, .continues  this  eminent  canonist,  in  the  United 
States  parishes  have  generally  been   assigned   fixed  limits, 
and  are  governed  each  by  one  rector,  who  has  sole  charge; 
therefore,   etc.94       However,  it   is    the    general    impression 
here  that  our  congregations,  except   perhaps  in  some  parts 
of  California,  are  not  canonical  parishes. 

ART.  111. 

Erection  of  Parishes  per  viam  dumcmbrationis — Division 
of  Parishes  also  in  the  United  States. 

262.  Definition. — Parishes  are  erected  per  viam  dismembra- 
tionis  or  division  is,  when  certain  portions  are  taken  away  from 
one  or  several  old  parishes  in  order  to  form  new  ones;  or 
simply  when  old  parishes  are  divided  in  order  to  form   new 

49  De  Angelis.  Pruel.,  lib.  i.,  tit.  2.S.  p.  54.  "4  Ib. 


is  6  Manner  oj  Acquiring 

ones."  It  is,  generally  speaking,"  forbidden  to  divide  bene 
fices  or  parishes.67  We  say  "generally  speaking"  for  bishops 
may,  under  certain  conditions,  divide  parishes,  even  against 
the  will  of  the  respective  pastors." 

13  °  263.  Now,  what  are  these  conditions?  In  other 
words,  when  and  how  can  a  bishop  divide  a  parish  ?  (i) 
Only  iw  just  and  reasonable  cause,  (2)  which  must  be  express 
ly  stated,  (3)  and  verified,  i.e.,  proved  to  exist  by  public  doc 
uments;  (4)  with  the  advice  of  the  rector  of  the  parish  which 
is  to  be  divided  ;  (5)  with  the  consent  of  the  cathedral  chap 
ter ;  (6)  the  limits  of  the  new  parish  must  be  fixed,  (7)  and  a 
competent  means  of  support  assigned  it;  (8)  the  parish  to  be 
divided  must  not  be  crippled  by  the  division.  Let  us  briefly 
explain  each  of  these  conditions. 

We  say,  first,  only  for  just  and  reasonable  cause.  But  what 
is  to  be  considered  a  just  cause  for  the  division  of  a  parish  ? 
The  Council  of  Trent""  thus  answers:  "As  regards  those 
churches  to  which,  on  account  of  the  distance  or  the  difficul 
ties  of  the  locality,  the  parishioners  cannot,  without  great 
inconvenience,  repair  to  receive  the  sacraments  and  to  hear 
the  divine  offices,  the  bishops  may,  even  against  the  will  of 
tfie  rectors,  establish  new  parishes."  Parishes,  therefore, 
maybe  divided  for  two  reasons:  i,  when  the  parishioners 
live  so  far  from  the  church  as  to  be  unable,70  without  great 
inconvenience,  to  repair  to  it,  in  order  to  assist  at  Mass  and 
receive  the  sacraments;  2,  when  parishioners,  though  living 
near  the  church,  cannot,  without  great  difficulty,  go  to  it  by 
reason  of  the  difficulties  of  the  locality,71  v.g.,  because  rivers, 
railroad-crossings,  and  the  like  intervene  between  a  certain 
number  of  the  parishioners  and  the  church.78  Now,  either 
of  these  causes  is  of  itself  a  sufficient  reason  for  the  di- 

65  Craiss.,  n.  337.  ee  Rejff.,  lib.  ijj.,  tit.  xii.,  n.  22,  23. 

61  Cfr.  Phillips,  Kirchenr.,  vol.  vii.,  p.  300.                              68  Craiss.,  n.  341. 

49  Sess.  xxi.,  c.  4,  de  Ref.  ™  philips,  Kirchenr.,  vol.  vii.,  p.  302. 

"  Bouix,  De  Paroch..  p.  254.  «  Cfr.  lh.,  p    2  =  9. 


Jurisdictio  Or  dinar  ia.  117 

vision  of  a  parish  and  the  formation  of  a  new  one."  Ob 
serve,  however,  that  the  distance  or  the  obstructions  of  the 
locality  must  be  such  as  to  make  it  very  difficult  for  parish 
ioners  to  reach  the  church  ;  in  a  word,  they  must  be  such  as 
to  cause  a  magnum  incommodum^  No  precise  rule,  how 
ever,75  can  be  laid  down  as  to  what  distance  or  difficulty  of 
access  to  the  church  is  required.  The  bishop  is  the  com 
petent  judge.76  A  distance  of  two  miles,  or  according  to 
some,  of  one  mile  and  a  half,  is  deemed  sufficient ;  even  a 
smaller  distance  may  suffice.77 

264.  It  is  not  lawful  to  divide  a  parish  merely  because  of 
the  great  number  ot  parishioners;  for  in  this  case  the  pastor 
can  only  be  compelled  by  the  bishop  to  take  as  many  assist- 
tant  priests  as  shall  be  needed  to  supply  the  wants  of  the 
parish.78 

IJjgr'  265.  We  say,  second,  which  must  be  expressly  stated ; 
in  other  words,  the  bishop  is  obliged  to  inform  both  the 
chapter  and  the  rector  of  the  parish  to  be  divided,  and  others 
interested,  of  the  specific  cause  on  account  of  which  he 
wishes  to  divide  the  parish,  so  that  it  may  be  seen  whether 
the  proposed  division  is  justified  by  sufficient  reasons,  and 
to  enable  the  rector  to  appeal,  if  he  wishes." 

We  say,  third,  verified ;  for,  as  Lotterus80  and  canonists 
in  general  say,  the  mere  assertion  of  the  bishop  that  there  is 
a  sufficient  cause  for  the  proposed  division  is  of  no  value. 
The  existence  of  the  cause  must  be  positively  proved  by  a  pre 
vious  investigation.  This  inquiry  is  to  be  conducted  in  a 
juridical,  though  summary,  not  formal,  manner.  Thus  it  is 

13  Bouix,  De  Paroch.,  p.  259.  '4  Ib.  pp.  250  and  258. 

16  Ferraris,  V.  Dismembratio,  Novae  additiones  ex  aliena  manu.,  n.  12. 

"  Ferraris  V.  Dismembratio,  Novae  additiones  ex  aliena  manu.,  n.  13. 

"  Bouix,  1.  c.,  pp.  264,  265. 

'8  Craiss.,  n.  344;  cfr.  Cone.  Trid.,  sess.  xxi.,  c.  4,  de  Ref. 

19  Lotterus,  De  Re  Benef.,  1.  i,  q.  28,  n.  24;  Leur.,  1.  c.,  q.  951. 

*°  L.  c.,  n.  33. 


iiS  Manner  of  Acquiring 

sufficient  for  the  bishop  to  go  to  and  inspect  the  place  or 
parish  to  be  divided.  But  the  entire  investigation  and  its 
results  must  be  written  down  and  put  on  public  record,  so 
that  there  will  be  legal  proof  of  the  existence  of  a  sufficient 
cause.  The  reason  is  that  the  division  of  a  parish  is  regard 
ed  as  a  true  alienation  of  ecclesiastical  property,  and  is  there 
fore  forbidden  by  law  except  where  there  is  sufficient  cause. 
Now,  when  the  law  forbids  a  thing  to  be  done  except  for 
sufficient  cause,  the  existence  of  such  cause  must  be  proved 
ex  actis,  i.e.,  from  the  authentic  and  public  records  of  the 
inquiry.81  It  will  be  seen  that  this  verification  is  made  in  a. 
simple  and  summary,  though  judicial,  manner;  that  conse 
quently  the  rector  is  to  be  cited  and  heard  juridically,  etc. 

We  say,  fourth,  with  the  advice  of  the  rector,  etc.  ;  'that  is, 
the  rector,  owing  to  the  loss  or  damage  he  is  about  to  sus 
tain  by  the  proposed  division,  and  because  it  is  of  public  in 
terest  that  churches  should  not  be  impoverished  or  crippled 
by  divisions,  must  be  summoned  in  order  that  he  may  give 
his  opinion  on  the  proposed  division,  and  in  general  explain 
his  reasons,  if  he  have  any,  for  being  opposed  to  the  division. 
This  summoning  of  the  rector  is  obligatory  on  pain  of  the 
nullity  of  the  division.  Yet  the  bishop,  though  bound,  on 
pain  of  nullity,  to  listen  to  the  rector's  objections,  and  to  ask 
his  opinion  or  advice,  is  not  obliged  to  follow  this  advice, 
and  therefore  may  decree  the  division,  even  against  the  will 
of  the  rector  and  notwithstanding  the  latter's  objections. 
But  if  the  bishop  does  so,  the  rector  has  a  right  to  appeal, 
though  only  in  dei'olutii'o,  either  to  the  Metropolitan  or 
the  Holy  See.  And  if,  upon  appeal  being  made,  the  bishop 
does  not  prove  the  existence  of  a  sufficient,  cause,  or  if  the 
appellant  shows  that  the  requisite  formalities  (solemnitates\ 
have  not  been  observed,  the  division  will  be  annulled,  li 
should  be  observed  that  not  only  the  rector,  but  also  the 

81  Leur.,  For.  Benef.,  p.  3,  q    951;  Card,  de  Luca,  De  Benef.,  disc.  45.  n.  6- 


Jurisdictio  Ordinaria.  119 

parishioners  of  the  parish  to  be  divided,  and  others  inter 
ested,  can  appeal  against  the  division  ;  for  their  interest  is  at 
stake,  and  therefore  thev  can  appeal. 

We  say,  fifth,  with  the  consent  of  the  cathedral  cliapter. 
This  will  be  more  fully  explained  further,  when  we  come  to 
treat  of  diocesan  consnltors. 

We  say,  sixth,  the  limits  of  the  new  parish  must  be  fixed ; 
in  other  words,  the  bishop  must  fix  the  limits  of  the  new 
parish,  either  by  assigning-  it  a  certain  district  or  at  least 
certain  families. 

We  say,  seventh,  a  competent  means  of  support  should  be 
assigned  the  new  parish!'1'  This  should  be  done  with  as  little 
prejudice  to  the  mother-church  as  possible.  Hence  the 
bishop  can,  and  should  if  need  be,  compel  the  parishioners 
of  the  new  church  to  contribute  as  much  as  is  necessary 
for  the  support  of  the  rector,  and  the  repairs  and  main 
tenance  of  the  church/3  He  may  also,  especially  where  the 
parishioners  of  the  new  church  are  poor  and  the  mother- 
church  is  very  rich,  assign  part  of  the  income  of  the  mother- 
church  to  the  new  parish/4 

We  say,  eighth,  the  parish  to  be  divided  must  not  be  crippled 
by  the  division.  Thus  Pope  Alexander  III.,  in  his  celebrated 
constitution  Ad  audientiam,  which  was  renewed  by  the  Coun 
cil  of  Trent,8'  distinctly  lays  down  the  law  that  a  parish  can 
be  divided  only  when  its  income  is  sufficiently  large  to  meet 
all  its  expenses,  without  the  help  of  the  portion  or  district 
which  is  to  be  taken  from  it  by  the  division/6  In  fact,  it  is 
an  axiom  of  law  that  it  is  not  lawful  to  uncover  one  altar  in 
order  to  cover  another — "  Non  licet  discooperire  nnum  altare, 
ut  alter  um  coopenatur"  (Reiff.  1.  iii.  t.  5.  n.  101.) 

**  Cap.  Ad audientiam,  cit.;  Cone.  Trid.,  sess.  xxi.,  c.  iv.,  De  Ref. 
83  Leuren.,  For.   Benef.,  p.  r,  q.  159,  n    i;  Card,  de  Luca,  De  Decim.,  disc. 
12,  n.  8.  84  Cone.  Trid.,  sess.  xxi..  c.  iv..  De  Ref.;  Leuren.,  1.  c.,  n.  i. 

85  Sess.  xxi.,  c.  iv. ,  De  Ref. 

86  Arg    Cap.  Vacante,  xxvi.,  De  praeb.  Ciii..  5),  Leuren.,  1    c.,  q.   158,  n.  5. 


I2O  Manner  of  Acquiring 

Ninth,  the  new  church  or  parish  must  consider  herself 
as  the  daughter— filia — and  the  old  church  as  the  mother- 
church — ccclcsia  matrix, — and  in  consequence  pay  her  annu 
ally  a  certain  sum  of  money  or  tribute,  to  be  fixed  by  the 
bishop  as  a  sign  of  respect  and  dependence." 

Tenth,  the  jus patronatns,  or  the  right  to  present  the  rec 
tor  of  the  new  parish,  must  be  reserved  to  the  rector  of  the 
mother-church,  as  a  sort  of  compensation  for  the  loss  sus 
tained  by  the  division.88  However,  according  to  some  canon 
ists,  v.g.,  Lotterus,  Corradus,  this  right  is  reserved  to  the 
mother-church  only  when  it  has  contributed  somethino- 

•^  & 

toward  the  endowment  or  support  of  the  new  parish,  but 
not  otherwise/9 

266.  It  would  seem  that,  strictly  speaking,  these  con 
ditions  and  formalities  must  be  observed,  on  pain  of  nul 
lity  of  the  division,  only  when  there  is  question  of  the  divi 
sion  of  canonical  parishes.  Now,  parishes  in  the  United 
States,  save,  perhaps,  certain  parishes  in  the  province  of 
San  Francisco,90  are  all  regarded  without  exception  as  mis 
sions  or  quasi-parishes,  and  not  as  canonical  parishes, 
even  where  their  rectors  are  irremovable.61  The  same  holds 
true  of  England,9'2  and,  in  general,  of  all  missionary  countries. 
Hence,  in  the  division  of  parishes,  or  rather  missions,  here 
and  in  England,  and  in  general  in  missionary  countries,  the 
bishop  may  laudably  indeed  comply  with  the  above  con 
ditions  and  formalities  as  far  as  practicable,  but  yet  he  is 
not  obliged  to  do  so,  under  pain  of  nullity,  save  in  so  far  as 
these  conditions  are  based  upon  equity  and  natural  justice,  or 
are  imposed  by  statutory  law,  that  is,  by  special  or  local  law. 

61  Cap.  Ad audientiam,  de  Eccl.  aedif.  (iii.  48);    Phillips,  Kirchenr.,  vol.  vii... 
p.  291;   Leur.,  1.  c.,  n.  7  ;  Lott.,  1.  c.,  n.  46. 

88  Cap.  Ad  audientiam.  cit. ;   Phillips,  Kirchenr..  vol.  vii.,  p.  291. 

89  Leuren.,  1.  c.,  q.  157,  n.  6  ;  Lotterus,  De  Re   Benef.,  1.  i,  q.  28,  n.  46. 

90  Infra,  n.  654  ;  Cone.  Prov.  S.  Francisci  I.,  Decret.  XVI. 

91  Cone.  PI.  Bait.  III.,  n.  24. 

92  Leo  XIII.,  Const.  Romanes  Pontiftces,  1881,  §  Prof'cto. 


Jurisdutio  Ordinaria.  1 2 1 

fl^jT"  267.  Application  of  the  Above  Principles  to  the  U.  S. — 
We  have  just  said,  save  when  these  conditions  are  imposed  by 
statutory  law.  Now,  what  is  our  statutory  law  in  this  mat 
ter?  The  TJiird  Plenary  Council  of  Baltimore,  recognized 
by  the  Holy  See,  Sept.  21,  1885,  enacts  that  when  parishes 
are  divided,  even  though  they  have  irremovable  rectors, 
the  new  parish  or  mission  will  be  independent  of  the  mother- 
church.93  Herein  our  statutory  law  differs  from  the  gen 
eral  law,  which,  as  we  have  seen,  preserve  a  certain  de 
pendence  of  the  daughter-church  upon  the  mother-church. 
Next,  the  TJiird  Plenary  Council  decrees  that  our  missions 
or  parishes,  whether  they  have  irremovable  or  only  simple 
rectors,  can  be  divided  only  with  the  advice  of  the  consul- 
tors,  and  also  with  the  advice  of  the  rector  of  the  mission 
which  is  to  be  divided.94  These  two  conditions  necessarily 
imply  nearly  all  the  formalities  required  for  the  division 
of  canonical  parishes  enumerated  above.  For  the  previous 
advice  of  the  consultors  and  rector  is  prescribed  in  law,  in 
order  that  it  may  be  seen  whether  there  is  a  cause  for  the 
division,  whether  it  is  sufficient,  whether  it  is  properly  es 
tablished,  whether  the  mother  church  is  not  unduly  crippled 
by  the  division,  etc. 

268.  Q.  Is  it  allowed  to  appeal  against  the  division  of 
canonical  parishes  ? 

A.  According  to  the  o^neral  law  of  the  Church,  as  in  full 
force  at  present  ail  Jver  the  world,  it  is  always  lawful 
for  the  parish  priest,  parishioners,  and  others  interested,  to 
appeal,  though  only  in  devolutivo,  against  the  action  of  the 
bishop  ordering  a  parish  to  be  divided,  and  that  whether  he 
proceeds  as  Ordinary  or  as  delegate  of  the  Holy  See.  This 
is  proved  from  the  Const.  Ad  Militantis  of  Pope  Benedict 
XIV.,  which  enumerates  among  the  cases  where  adevolutive 
appeal  is  permitted  the  following,  under  Article  XL  :  "  Item 

»;!  Cone.  PI.  Bait.  III.,  n.  34. 
M  Ib.  n.  20. 


122  Manner  of  Acquiring 

a  decretis  seu  mandatis  per  quae  Episcopi,  etiam  uti  Apos- 
tolicae  Sedis  Delegati  .  .  .  etiam  invitis  Rectoribus,  pro- 
cedant  ad  constitutionem  novarum  Parochiarum  .  .  .  ubi  ob 
locorum  distantiam,  sive  difficultatem,  Parochiani,  sine 
magno  incommode,  ad  percipienda  sacramenta,  et  divina 
officia  audienda  accedcre  non  possunt."  95 

Q.  Is  it  permitted  to  appeal  against  the  division  of  mis 
sions  or  quasi-canonical  parishes,  with  us,  in  England,  Scot 
land,  and  other  missionary  countries  ? 

A.  It  is,  and  that  whether  the  bishop  proceeds  as  Ordi 
nary  or  as  delegate  of  the  Holy  See.  This  is  evident  from 
the  fact  that  the  Const.  Ad  Militantis,  which  gives  the  right 
of  appeal  against  the  division  of  parishes,  as  we  have  just  seen, 
has  been  expressly  made  obligator}'  in  the  United  States,  by 
the  S.  C.  cle  Prop.  Fide,  in  its  Instr.  Cum  Magnopere,  art.  xxxvi. 
The  words  of  the  S.  C.  de  Prop.  Fide  are:  "  In  appellatione 
observentur  normae  expressae  in  Const.  Sa.  Me.  Benedict! 
XIV.  Ad  Militantis,  diei  30  Martii  1/42." 

It  is  also  proved  from  the  Const.  Romanes  Pontifices  of 
Pope  Leo  XIII.,  as  authenticallv  interpreted  by  the  S.  C.  de 
Prop.  Fide,  at  our  humble  request.  The  words  of  the  Su 
preme  Pontiff,  in  the  said  Const.  Romanos  Pontifices,  which  is 
now  obligatory  also  in  this  country,  are  :  "  Respondemus : 
licere  Episcopis  Missiones  dividere  .  .  .  Quo  melius  an  tern 
mission!  quae  dividenda  sit,  ejusque  administris  prospiciatur, 
volumus  ac  praecipimus  ut  sententia  quoque  rectoris  ex- 
quiratur,  quod  jam  accepimus  laudabiliter  esse  in  more 
positum  ;  quod  si  a  religiosis  sodalibus  missio  administre- 
tur,  Praefectus  Ordinis  audiatur  :  salvo  jure  appellandi,  si  res 
postulet,  a  decrcto  cpiscopali  ad  Sanctam  Sedcm  in  devolutivo 
t ant  um." 

It  is  certain,  therefore,  that  all  our  missionary  rectors, 
secular  and  regular,  movable  and  irremovable,  have  the 


95  Cf.  Bouix  de  Paroch.,  p.  280. 


Jurisdictio  Or  dinar  ia.  1220. 

right  to  appeal  in  devolutivo,  against  the  action  of  the  Ordi 
nary  dividing  their  missions  or  quasi-parishes. 

We  have  said,  in  devolutivo.  In  other  words,  the 
appeal  does  not  stay  or  suspend  the  bishop's  decree  or 
action  dividing  the  parish  or  mission,  but  merely  transfers 
the  whole  case  for  adjudication  to  the  judge  of  appeal, 
whose  right  and  duty  it  is  to  confirm,  modify,  or  revoke  the 
bishop's  decree.96 

U^if0  269.   Q.  To  whom  is  the  appeal  to  be  made  ? 

A.  1°.  A  distinction  is  to  be  drawn  between  the  division 
of  exempted  and  that  of  non-exempted  parishes  (with  us, 
missions  or  quasi-parishes).97  When  the  bishop  divides  ex 
empted  parishes  or  missions,  that  is,  parishes  or  missions 
which  are  under  the  control  of  regulars  who  enjoy  the 
privilege  of  exemption,  the  appeal  cannot  be  made  to  the 
metropolitan,  but  must  necessarily  be  made  directly  to  the 
Holy  See.a  The  reason  is  that  exempted  regulars  are  sub 
ject,  not  to  the  bishop,  but  directly  to  the  Holy  See.  Con 
sequently  the  bishop  can  divide  their  parishes  or  missions, 
not  bv  his  ordinary  power,  but  only  by  Papal  delegation,  as 
conferred  upon  him  by  law,  that  is,  by  the  Council  of  Trent6 
Now  it  is  a  principle  of  canon  law  that  an  appeal  must 
always  be  interposed  from  the  superior  delegated  to  the 
superior  delegating,  and  from  the  lower  to  the  higher  au 
thority,  but  not  from  the  higher  to  the  lower.  But  the 
bishop,  in  the  case,  acts  as  delegate  of  the  Pope,  and  is 
therefore,  as  such,  not  inferior  to  the  metropolitan. 

2°.  But  when  the  bishop  divides  non-exempted  parishes 
or  missions,  that  is,  parishes  or  missions  in  charge  of  secular 
Priests,  or  also  of  religious  communities  which  do  not  enjoy 
the  privilege  of  exemption,  the  appeal  can  be  interposed  to 

96  Bouix,  De  Paroch,  p.  280. 

97  Leur.  for.  Ben.,  p.  3.  q.  959. 

a  Fagnan.  ad  cap.  3  de  Eccl.  aedif.,  n.  45,  49. 
b  Cone.  Trid.,  sess.  21,  c.  4,  De  Ref. 


Manner  of  Acquiring 

the  metropolitan,  or  of  course  also  directly  to  the  Holy 
See,c  and  that  even  though  the  bishop  proceeds  as  delegate 
sedis  apostolicae*  For,  in  the  case,  the  bishop  can  proceed 
both  by  virtue  of  his  ordinary  jurisdiction  and  as  delegate 
of  the  Holy  See.  Now  in  all  cases  where  he  can  act  in 
virtue  of  this  twofold  authority,  the  Papal  delegation  or  the 
power  delegated  by  the  Holy  See  has  for  its  object  merely 
to  assist  and  to  strengthen  the  ordinary  jurisdiction  of  the 
bishop,  but  not  to  supersede  it,  or  to  impair  the  general  law 
of  the  Church,  either  in  regard  to  appeals  or  any  other 
matter.6  Here  it  may  be  observed  that  the  bishop  is  author- 
ized  by  law,  v.g.,  by  the  Council  of  Trent,  to  act  as  delegate 
of  the  Holy  See,  either  with  regard  to  the  (a)  secular  clergy 
or  also  non-exempted  religious,  (b)  or  exempted  regulars. 
In  the  latter  case,  he  can  act  solely  by  Papal  authority  ;  in 
the  former,  he  can  proceed  both  by  his  ordinary  and  also  by 
Papal  authority. 
\ 

ART.  IV. 

The  Erection  of  Parishes  per  viam  Unionis. 

270.  A  parish  is  established  per  viam  unionis  when  several 
parishes'"  are  united  into  one  so  as  to  form,  under  a  certain 
aspect,  a  new  parish.8  Now,  parishes  or  benefices  are  united 
chiefly  in  three  ways:  per  aeqiialitatem, per  subjectionem,  and 
per  confusionem.  I.  The  unio  per  aequalitatem  or  unto  aeque 
principalis™  effects  no  change  whatever  in  the  status  of  the 
parishes  thus  united,9"  save  that  they  are  governed  by  one 

c  S.  C.  EE.  et  RR.,  16  Oct.,  1600,  decretum  ad  tolle^das,  §  vii. 
d  Stremler,  Des  Peines  Eccl     p.  445 
e  De  Brab.,  vol.  ii.,  p.  440. 
'  Bouix,  1.  c.,  p.  244. 
*  Cfr.  Craiss.,  n.  337. 

98  Cfr.  Phillips,  Kirchenr.,  vol    vii.,  p.  320. 

99  Ferr.  V.  Unio  Benef.,  n.  i. 


Jurisdictio  Ordinaria.  123 

and  the  same  pastor.100  It  may,  in  a  certain  sense,  be  said 
that,  in  the  United  States,  churches  or  congregations  are 
not  unfrequently  united  in  this  manner  ;  for  there  are  many 
instances  where  two  or  three  congregations,  though  ad 
ministered  by  one  and  the  same  pastor,  are,  nevertheless,  in 
everything  else  independent  one  of  the  other  ;  hence,  too, 
the  accounts  of  each  of  these  parishes  are  kept  separate  by 
the  pastor. 

271. — 2.  The  "  unto  per  subject  ionem  "  (also  unio  accessoria, 
unio  plenaria "")  is  effected  "  quum  una  ecclesia  alteri  ec- 
clesiae  conjungitur,  eique  tanquam  accessorium  principali 
subjicitur."  loa  Churches  thus  united  lose  their  name  or  title, 
and  their  revenues  are  transferred  to  the  church  to  which 
they  are  annexed.103  Small  out-missions  in  the  United  States, 
where  churches  are  built,  may  in  a  measure  be  said  to  be 
thus  united  to  the  principal  church  where  the  pastor 
resides. 

272. — 3.  The  unio  per  confusionem  (imio  translativa,  unio 
txtinctiva 104)  occurs  "  quum  suppressis  titulis  duarum  aut 
plurium  ecclesiarum,  nova  inde  ecclesia  creatur,  ut  si  ex 
duabus  ecclesiis  parochialibus,  quorum  reditus  valde  tenues 
sint,  una  tertia  ecclesia  parochialis,  eaque  novo  titulo 
erigatur."  105 

273.  These  three  kinds  of  unions  can  be  made  use  of  only 
when  parishes  are  united  to  other  parishes  or  benefices  with 
the  care  of  souls,  but  not  when  parishes  are  to  be   united 
with  an  ecclesiastical  corporation,  v.g.,  a  chapter,  monastery, 
college,  and  the  like  ;  unions  in  the  latter  case  are  made  dif 
ferently.106 

274.  Q.     Who    has     power     to     unite     benefices     and 
churches? 

A. — i.    Only  the    Pope  can  unite   bishoprics.     He    can, 

100  Phillips,  Lehrb.,  p.  140.  'OI  Cfr.  Phillips,  Kirchenr.,  vol.  vii.,  p.  322. 

109  Soglia,  1.  c.,  p.  157.  »3  Ib.  104  Cfr.  Phillips,  1.  c.,  p.  323. 

m  Soslia,  1.  c.  '°8  Soglia,  1.  c.,  p.  158  :  efr.  Phill.,  Lehrb.    p.  141 


1 2 A.  Manner  of  Acquiring 

moreover,  unite  all"7  other  kinds  of  benefices.  2.  The 
bishop  can,  for  legitimate  causes,  unite  benefices  and 
churches  in  his  diocese.  An  archbishop,  however,108  cannot 
unite  benefices  in  the  dioceses  of  his  suffragans.  3.  The 
chapter,  sedc  109  vacante,  and  hence  the  capitular  vicar  (with 
us,  the  administrator),  can  unite  those  benefices  and 
churches  which  the  bishop  can  unite.  4.  The  vicar-general, 
however,  has110  no  power  to  unite  benefices,  save  when  spe 
cially  commissioned  to  that  effect  by  the  bishop. 

-75-  Q-  What  conditions  are  required  in  order  that 
parishes  may  be  lawfully  consolidated  or  united  by  the 
bishop  ? 

A.  According  to  the  common  opinion  of  canonists,  three 
conditions  are  essential  :  i,  a  just  cause,  v.g.,  if  the  parishes 
are  too  poor  to  support  separate1"  pastors;  2,  citation  or 
summoning  of  all  the  parties  interested,  as  explained  in  the 
caso  of  the  division  of  parishes;  3,  the  consent112  of  the 
cathedral  chapter  ;  the  consent  of  the  people  or  faithful  of 
the  parishes  to  be  united  is  not  required.113 

.t/6.  Q.  Has  the  power  of  uniting  parishes  and  bene- 
ficen,  vested  in  bishops  by  the  jus  commune,  been  restricted 
by  1he  Council  of  Trent  ? 

A.  We  said  above  that  bishops,  by  virtue  of  the  jus  com., 
have  power  to  unite  parishes  and  benefices  situate  in  their 
dioceses ;  they  can,  moreover,  according  to  the  Council 
of  Trent,  make  these  unions  not  only  in  their  capacity  of 
Ordinaries,  but  also  as  delcgati  S.  Sedis,  and  even  though  the 
parishes  to  be  united  are  reserved  to  the  Holy  See.114  This 
power  of  bishops  to  unite  parishes  is,  however,  not  without 
restrictions.115  Thus, 

107  Reiff.,  lib.  iii.,  tit.  12,  n.  53.  108  Craiss.,  n.  360.  **  lt> 

110  Ferraris,  V.  Unio  Bencf. ,  n.  13.  UI  Soglia,  vol.  ii.,  p.  159. 

m  Bouix,  De  Paroch.,  p.  285.  113  Reiff.,  1.  c.,  n.  76 

114  Bouix,  De  Paroch.,  pp.  286,  287. 

116  Cfr  Phillips,  Kirchenr  .  vol.  vii  ,  p.  325,  seq. 


Jurisdictio  Ordinaria.  125 

277.  — i.  A  bishop  can  unite  parishes  only  with  othei 
ft,arishes,  but  not11'  with  monasteries,  abbeys,  hospitals,1" 
colleges,  and  the  like. 

2-g. — 2.  A  parish  in  one  diocese  cannot  be  united  by  the 
bishop  to  a  parish  in  another  diocese,  lest  the  same  parish 
should  become  subject  to  two  different  bishops."9  In  the 
United  States  it  sometimes  happens — v.g.,  near  the  confines 
of  two  dioceses — that  a  church  or  congregation  in  one  dio 
cese  is  attended  by  a  priest  of  another  diocese  living  near 
the  confines  or  boundaries  of  the  two  dioceses,  and  having 
"faculties"  from  each  ol  the  respective  bisnops.  This  union 
of  congregations  belonging  to  two  different  dioceses  is  not. 
strictly  speaking,  unlawful  in  this  country,  because  our 
parishes  are  missions  rather  than  canonical  parishes  or  bene 
fices,  to  which  alone  the  above  Tridentine  restriction  applies. 
We  say,  strictly  speaking ;  because  these  unions,  unless  neces 
sary,  seem  to  be  opposed  to  the  spirit  of  the  Tridentine  decree. 

279. 3.  Again,  bishops  can  unite  parishes  only  perma 
nently,  but  not  temporarily,  v.g.,  for  the  lifetime"3  of  the  in 
cumbent.  To  understand  this  better,  we  must  remember 
that  the  union  of  parishes  is  of  two  kinds  :  one  is  permanent 
(unio  perpetua),  the  other  is  but  temporary  (unio  temporalis}. 
A  union  is  permanent  "  quando  exprimitur  ut  perpetuo 
iuret "  ;  that  union  is  temporary,  on  the  other  hand.  "  quae 
fit  ad  tempus,  v.g.,  ad  vitam  ejus  cui  conceditur." 

280.  We  sr.id  above  that  bishops  can  make  unioncs  pcr- 
petnas  only.  From  this  it  must  not  be  inferred,  however, 
that  when  parishes  are  once  united  by  bishops  they  cannot 
again  be  disunited  by  them.  For,  though  the  unio  of 
parishes,  as  made  by  a  bishop,  should  be  unio  perpetua,  it 
need  not  on  that  account  be  "  unio  indissolubilis' 

u<  Reiff.,  lib.  Hi.,  tit.  12,  n.  61. 

'"  Soglia,  vol.  ii.,  p.  iGo  ;  cfr.  Cone.  Trid.,  sess.  xxiv.,  c.  xiii.,  d.  R. 

118  Ib. ;  cfr.  Cone.  Trid.,  sess.  xiv.,  c.  ix.,  d.  R.  "9  Reiff.,  1.  c.,  n.  $a 

"°  Ib..  n    38,  37- 


126  yurisdictio  Ordinaria. 

i 

281.  This  brings  us  to  the  disjunct™ '"  beneficii  or  parochi- 
alts  ecclesiae.     Parishes  which  have  been  united  may  again, 
under  certain  conditions,   be  disunited  by  the  bishop,  and 
thus  reinstated  in  their  former  condition.1"     This  severance 
or  dissolution  of  the  unio  is  named  "  disjunciio  beneficii." 

282.  Q.    We   ask,   i,  for  what  causes;    2,  in  what  man 
ner  or  under  what  conditions  ;  3,  by  whom,  is  the  disjunctic 
made? 

A. — I.  Causes:  Parishes  that  have  been  united  may  be 
disunited  when  the  causes  for  which  they  were  consolidated 
have  ceased  to  exist,  v.g.,  if  the  number  of  parishioners  has 
grown  larger,  or  if  the  revenues  of  the  parish  have  in 
creased,  and  the  like.123 

2.  Conditions  :    The  formalities   or  conditions  to  be  ob 
served  in  the  disjunct io  are  the  same  as  those  required  for 
the  unio — namely,  i,  verification  of  the  cause  ;  2,  summoning 
of  all  persons  interested  in  the  disjunct 'io ;  3,  consent  of  the 
chapter.124 

3.  The   disjunctio   is   to   be    made   by   authority    of    the 
bishop.     Bishops  can  disunite  parishes — z>.,  dissolve  unions 
of  parishes — not  only  when  made  by  themselves,  but  also 
when  made    by   their   predecessors,  or  even  by  the    Holy 
See.1" 

By  whom  are  civil  offices  of  the  Federal  Government 
created  in  the  United  States?  The  President  of  the  United 
States  can  create  no  office,  because  the  Constitution  re 
quires  it  to  be  established  by  law.126 

121  Soglia,  vol.  ii.(  p.  162.  m  Ib.  m  Ib.  m  Ib.  •»  Ib. 

*•  Walker,  Introd.  to  American  Law,  p.  100. 


CHAPTER  VTI. 

ON    APPOINTMENTS    TO     ECCLESIASTICAL    OFFICES    OR    BENE. 
FICES   (DE   INSTITUTIONS   CANONICA). 

ART.  I. 

Of  Appointments  in   General  (de  institutions  canonica  in 

genere]. 

283.  By  the  conferring  of  an  ecclesiastical  office  (institu- 
tio,  concessio^  collatio,  provisio,  donatid)  we  here  mean  the  ap 
pointment  to  a  vacant    ecclesiastical  office    of  whatsoever 
kind,1  made  in  a  lawful  manner,  by  authority  of  the  proper 
ecclesiastical3  superior.     The  word  institutio  is,  in  a  broad 
sense,  usually  applied  to  any  canonical  appointment  what 
ever  ;  *  in  a  strict  sense,  only  to  appointments  where  the  per 
son  to  be  appointed  is  designated  by  the  patronus* — i.e.,  the 
person   vested   with  the  jus  patronatus — and   where,  conse 
quently,  the  ecclesiastical  superior  confers   the   office,  but 
does  not  designate  the  person  b  upon  whom  it  is  to  be  con 
ferred. 

284.  That  a  person,  in  order  to  hold  or  fill  an  ecclesiasti 
cal  office,  must  be  properly  or  canonically  appointed  to  it,  is 
proved  from  the  Sacred  Scriptures,'  the  Council  of  Trent,1 
and  canon  law.* 

285.  The  conferring  of  or  appointment  to  an  ecclesiasti 
cal  office,  being  an  act  by  which  ecclesiastical  rights  and 

'  Craiss.,  n.  370.  "  Phillips,  Lehrb.,  §  77,  p.  142. 

'  Craiss.,  n.  370.  4  Ib.  ;  cfr.  Devoti,  lib.  i.,  tit.  v.,  lect.  iv.,  §  47 

Phillips,  1.  c.,  p.  144.  6  Jo.  x.  i,  Epist.  ad  Hebr.  v.  4. 

Sess.  xxiii.,  can.  7.  *  Cfr.  Craiss.,  n   371. 


X28  On  Appointments  to 

offices  are  bestowed,  and  being  therefore  an  exercise  of 
spiritual  authority,  can  *  be  made  only  by  ecclesiastical  supe- 
"iors — i.e.,  the  prelates  of  the  Church — not  by  lay  persons. 
Kings,  it  is  true,  have  sometimes  been  empowered  by  Popes 
to  confer  ecclesiastical  benefices ;  but  this  was  only  by I0 
special  privilege.  Lay  persons  cannot,  as  such,  confer  eccle 
siastical  offices. 

286.  From  this  it  follows :  i.  Investitures  in  the  Middle 
Ages  were  deservedly  condemned  "  by  Popes  Gregory  VII. 
and  Callistus  II.  2.  In  like  manner,  Pope  Innocent  XI.  was 
very  justly  indignant  at  the  concession  made  by  the  French 
bishops  in  1681,  by  which  the  King  of  France  was  to  be  al 
lowed  "  to  confer  all  those  benefices  of  his  kingdom  to  which 
no  jurisdiction  was  attached.  3.  All  those  persons 'are  to  be 
looked  upon  as  intruders  who,  being  rejected,13  even  though 
unjustly,  by  the  proper  ecclesiastical  superior,  have  recourse 
to  the  secular  power  to  obtain,  or  rather  invade,  ecclesiasti 
cal  offices. 

fSir3  287.  Q.  Can  one  who  is  elected,  presented,  or 
nominated  to  a  prelacy  or  bishopric  enter  upon  its  admin 
istration  under  some  title  or  other  before  he  has  obtained 
and  properly  made  known  the  bulls  of  confirmation  from 
the  Holy  See  ? 

A.  We  premise:  It  is  necessarv  to  distinguish  between 
the  case  of  one  who  is  already  the  vicar-capitular  (with 
us,  administrator)  of  the  vacant  diocese,  at  the  time  he  is 
nominated,  presented,  or  recommended  to  the  Holy  See, 
and  one  who  is  not  the  vicar-capitular — with  us,  adminis 
trator — of  the  vacant  diocese,  at.  the  time  he  is  presented  to 
the  Holy  See  for  the  vacant  see. 

We  now  answer  :  I.  In  regard  to  the  second  case,  namely, 
of  one  who  is  not  already  vicar-capitular,  it  is  certain  that 

9  Sogha,  vol.  ii.,  p.  166.  10  Ib. 

11  Craiss .,  n.  372  l-  Ib.,  n.  373.  l3  Ib.,  n.  375. 


Ecclesiastical  Offices  or  Benefices.  129 

persons  who  are,  in  the  proper  sense  of  the  term,  elected  to 
episcopal  sees  can  neither  lawful!}7  nor  validly  engage  in  the 
administration  of  such  sees,  under  any  pretext  or  guise  what 
soever, — v.g.,  as  vicar-capitular, — before  they  have  obtained 
and  exhibited  their  apostolic  letters  ol  confirmation.  Thus 
the  decretal  Avaritiae  5  de  elect,  in  6\  issued  by  the  Oecu 
menical  Council  of  Lyons,  held  under  Gregory  X.  in  1274, 
enjoins :  "  Sancimus  ut  nullus  administrationem  dignitatis 
ad  quam  electus  est,  priusquam  celebrata  de  ipso  electio 
confirmetur,  sub  oeconomatus  vel  procurationis  nomine, 
aut  alio  de  novo  quaesito  colore,  in  spiritualibus  vel  tempo- 
ralibus,  per  se  vel  per  ahum,  pro  pane  vel  in  totum,  gerere 
vel  recipere,  aut  iili  se  immiscere  praesumat."  Those 
who  act  contrary  to  this  law  forfeit,  co  ipso,  all  rights  of 
their  election,  and  become  ineligible  to  any  prelature  what 
soever."  Again,  Pope  Boniface  VIII."  (1300)  enacts  that 
persons  qui  apud  Sedan  Apostolicam  promoventur,  besides 
receiving  their  bulls  or  letters  of  confirmation  from  the 
Holy  See,  must  also  show  them  to  the  proper  parties,  and 
that  "  nulli  eos  (electos)  absque  dictarum  litterarum  osten- 
sione,  recipiant,  aut  eis  pareant,  vel  intendant."  Whatever 
is  done  by  persons  who  enter  upon  the  government  of  a 
diocese  contrary  to  any  of  these  prescriptions,  is  ipso  jure 
null  and  void.19  Finally,  all  the  above  laws  were  confirmed 
and  strictly  inculcated  by  Pope  Pius  IX..  both  in  his  Const. 
Apostolicae  Scdis,  Susp.  I.,  and  in  his  Apostolic  Letters, 
Romanes  Pontifcx,  i873.2" 

From  what  has  been  said,  it  follows  that  a  person  elected 
as  above  cannot,  even  in  case  the  vicar-capitular — with  us, 
administrator — dies,  resigns,  or  is  removed,  be  chosen  by 
the  chapter  or  other  party  having  the  right  to  make  the 


17  Reiff.,   Mb.  i.,  tit.  6,  n.  40  sq.;    Bouix,  De  Episc.,  vol.  i.,  p.   249,  264  sq. 

18  Cap.  Injiinctne  i,  De  Elect,  inter  Extrav.  com.  (i.  3). 

19  Cap.  Injnnctae  cit.  20  Acta  P.  S**rlis.  vol.  vii..  pp.  401.  402  <=q. 


130  On  Appointments  to 

appointment,  as  the  vicar-capitular  or  administrator  of  the 
vacant  diocese.  Thus  Pope  Pius  IX.,  in  the  above  consti 
tution  Romanns  Pontifex,  expressly  decrees:  "  Decernimus 
ut  si  interea  vicarius-capitularis  decesserit.  aut  sponte  suo 
muneri  renuntiaverit,  aut  ex  alia  causa  officium  ipsum  le- 
gitime  vacaverit,  tune  capitulum,  vei  capitulo  deficiente, 
qui  potestatem  habet  deputandi  vacantis  ecclesiae  adminis- 
tratoreni,  novum  quidem  vicarium  vel  administratorem 
eliget,  nunquam  vero  election  in  episcopum  a  capitulis  aut  a 
laica  potcstate  nominatum,"  "'  etc. 

The  object  of  these  severe  laws  is  to  prevent  all  attempts, 
at  intrusion  of  bishops,  or  at  forestalling-  the  action  of  the 
Holy  See,  or  at  coercing,  so  to  say,  the  Holy  See  into  con 
firming  a  nominee  on  the  ground  that  once  in  posses'sion,  he 
should  not  be  disturbed,  but  confirmed,  in  order  to  avoid 
greater  evils.28 

288.  Whether  the  above  applies  not  only  to  fhose  who 
are   elected  by  chapters  or  nominated  by  civil  rulers,  but 
also    to   those   who   with    us    are    proposed23  to    the    Holy 
See,  in  the  manner  laid  down  by  the  Third  Plenary  Council 
of  Baltimore,  seems  controverted.     For,  on  the  one  hand,  it 
may  be  said  that  the  decretal  "  Injunctae"  speaks  not  merely 
of  such  as  are  elected,  but,  in  a  general  manner,  of  all  those 
qui  promoventur  apud  sedem  apostolicam;  that  candidates, 
with  us,  who  are  proposed  to  the  Holy  See,  evidently  belong 
to  the  class  of  those  qui  apud  apostolicam  promoventnr,  and  are 
consequently  included   in   the   above   law.24      On   the  other 
hand,  however,  it  may  be  argued   that  the  law  in  question 
does   not  expressly   include  our  candidates,  and    therefore 
should  not  be  extended  to  them,  since  odia  sunt  restringenda. 

289.  In  favor  of  this  latter  view  it  may  be  said  that  the 
decretal  Nihil  44.,  De  Electione,  issued  by  Pope  Innocent  III. 
in  the   Lateran    Council  (ann.    1215),   ordains    that   persons 

21  Ada  S    Sedis,  vol.  \  ii  ,  p.  404.  '-'-'  Reiff.,  1.  i.,  t.  6,  n.  37. 

23  See  our  Notes,  p.  93  sq.       "4  Cfr.  Bouix.  De  Episc.,  vol.  i.,  pp.  268,  269. 


Ecclesiastical  Offices  or  Benefices.  131 

elected  may  administer  the  diocese  to  which  they  were 
elected  even  prior  to  obtaining  the  bulls  of  confirmation,25  si 
si/it  extra  Italiam,  atque  id  dcposcat  dioecesis  necessities  aut 
utilitas^  However,  to  this  it  may  be  retorted  :  i.  It  is  a  con 
troverted  question  among  canonists  whether  the  decretal 
Nihil  was  not  entirely  revoked  by  the  subsequent  decretals 
Avaritiac  and  Injunctae.  and  whether  it  is  therefore  of  any 
force  at  present."7  2.  Even  though  we  admit  that  the  de 
cretal  Nihil  is  still  in  force,  yet  its  provisions  are  applicable 
to  those  appointees  only  who  are  outside  of  Italy  and  are 
unanimously  elected  by  chapters,'"  but  not  to  those  who  are 
nominated  or  proposed  by  temporal  rulers  or  presented  by 
the  clergy  and  bishops  in  the  United  States.  In  any  case, 
therefore,  the  decretal  Nihil  relates  merely  to  several  dio 
ceses  of  Germany,  where  alone  bishops  are  still  elected  by 
the  canons  of  cathedral  chapters.29  Whatever  may  be  said, 
it  is  certain  that  no  priest  in  the  United  States,  who  has  been 
presented  to  the  Holy  See  for  a  vacant  bishopric,  can  assume 
the  administration  of  such  diocese  as  bishop  elect,  before  he 
has  received  and  exhibited  —  vg.,  to  the  administrator  of  the 
vacant  see  —  the  Papal  brief  of  his  appointment. 

290.  II.  We  come  now  to  the  first  case  —  namely,  of 
the  person  who  is  already  vicar-capitular  or  administrator 
of  the  vacant  see  at  the  time  he  is  commended  or  presented 
to  the  Holy  See  for  such  diocese.  We  ask,  therefore:  Do 
the  above  laws  apply  also  to  this  first  case  ?  In  other  words  : 
Can  those  who  are  already  administrators  of  vacant  dioceses, 
also  in  the  United  States,  at  the  time  they  are  nominated  or 
presented  to  the  Holy  See  for  the  vacant  diocese,  continue 
to  administer  the  vacant  diocese  for  which  they  are  nomi- 


"5  Cfr.  Soglia,  vol   ii.,  p.  64,  28  Ap.  Bouix,  1.  c.,  p.  271  seq. 

'•"  Ap.  Bouix,  1.  c.,  p.  266.  28  Ib.,  pp.  271,  272  ;  cfr.  ib.  ,  p.  266. 

29  Bouix,  1.  c.,  p.  266. 


132  On  Appointments  to 

nated,  before  they  have  received  and  exhibited  their  bulls 
(with  us,  briefs  or  letters)  of  confirmation  from  Rome?30 
The  question  is  controverted.  De  Angelis,31  Santi,32  and 
others  hold  the  affirmative,  chiefly  on  the  ground  that  the 
above  decretals  ^z/drzVztfr  and  Injunctae,  as  confirmed  uy  Pope 
Pius  IX.,  speak  merely  of  those  who  attempt  to  enter  upon 
administration  of  the  vacant  see,  but  not  of  those  who  are 
already  in  possession  of  the  administration  of  the  riocese  at 
the  time  they  are  proposed  or  nominated  for  it,  and  conse 
quently  not  of  the  vicars-capitular  or  administrators  in  ques 
tion. 

291.  Reiffenstuela  and  others  maintain  the  negative,  prin 
cipally  because  the  above  decretals  do  not  expressly  make 
any  distinction  whatever  between   those  who  are   vicars-ca 
pitular  and  administrators  at  the  time  of  their  nomination, 
and  others  who  are  not,  but  decree  in  general  that  no  one 
who  is  presented  for  the  vacant  see  shall  engage  in  its  ad 
ministration  before   he  has  received  and  shown  the  apostolic 
letters  of  confirmation.1* 

292.  Whatever  may  be  said  respecting  the  controversy,  it 
seems  that  as  far  as  regards  this  country,  Ireland,  England, 
and  Canada,  the  affirmative  opinion  is  the   more  probable. 
For  the  presentation  of  candidates,  as  made  in  these  countries, 
is  not  an  electio,  nominatio,  wrpraescntatio  in  the  canonical  sense 

30  So  far  as  concerns  the  United  States,  the  brief  or  apostolic  letters  of  con 
firmation  are  usually  sent  by  the  Prefect  of  the  S.  C.  de  P.  F.  to  the  metro 
politan  of  the  province  comprising  the  vacant  see.  and  by  him  to  the  bishop 
elect.  3I  Prael.,  lib.  i.,  t.  5  and  6,  n.  13  ;  id.,  lib.  v..  tit.  28,  n.  23. 

8*  Lib.  i.,  t.  28,  n.  68.  a  Lib.  i.,  t.  6.  n.  43. 

b  The  Schema  de  Sed.  Ep.  vac.,  cap.  i.,  of  the  Vatican  Council  proposed 
to  decide  the  question  as  against  allowing  administrators  to  continue  the  ad 
ministration  after  their  nomination.  The  words  of  the  Schema  are  :  "Si  ipse 
vicarius  capitularius  certum  nuncium  habuerit  de  sua  electione,  nominatione 
seu  praesentatione  ad  praedictam  vacantem  ecclesiam,  eo  ipso  al>  officio  cesset,  et 
capitulum  ad  novi  Vicarii  ieputationem  dereniat."  Martin,  Doc.,  p.  133;  id.. 
Arbeiten.  etc.,  p.  88. 


Ecclesiastical  Offices  or  Benefices.  133 

of  the  term.  To  be  elected,  nominated,  or  presented,  in  the 
true  sense,  the  candidate  should  be  either  elected  by  the 
chapter  or  nominated  by  the  civil  authority,  not  on  a  list  of 
three  or  more,  but  all  alone.  In  the  countries  mentioned 
the  candidates  will  be  three  in  number,  none  of  whom  will 
know  whether  he  is  to  be  appointed  by  Rome.  Should  such 
an  uncertain  presentation  debar  the  administrator,  whose 
name  is  on  the  list,  from  continuing  in  office,  even  though 
he  knows  that  he  is  on  the  list  ?  Moreover,  according  to 
the  universal  practice  prevalent  here,  in  Ireland  and  Eng 
land,  administrators  who  are  put  on  the  list  continue  in  office. 
This  practice  is  known  at  Rome,  and  yet  has  never  been 
reprobated. 

H^IP  To  sum  up:  i.  It  is  certain  that  with  us,  as  else 
where,  no  one  who  has  been  presented  to  the  Holy  See  for 
a  vacant  diocese  can  enter  upon  its  a-,  1  ministration  us  bishop- 
elect,  or,  as  such,  perform  even  the  slightest  act  of  jurisdic' 
tion,  before  he  has  received  and  shown  the  apostolic  letters 
of  his  appointment.  2.  It  is  disputed  whether  candidates  in 
the  United  States,  who  are  not  already  administrators  of  the 
vacant  see  at  the  time  they  are  recommended  to  the  Holy 
See  for  it,  can  be  appointed  administrators  after  their  com 
mendation  ;  but  it  appears  more  probable  that  they  can  con 
tinue  to  act  as  administrators,  in  case  they  had  been  already 
appointed  as  such,  before  their  commendation. 

293.  Canonists,  however,  commonly  teach  that  these 
persons  may  assume  the  administration  of  the  diocese  even 
before  they  receive  confirmation  from  Rome,  especially  in 
two  cases,  i,  when53  this  is  done  by  special  consent  of  the 
Pope  ;  2,  or  by  virtue  of  privilege.34  Observe,  that  a  bishop 
elect  cannot  exercise  ar.y  act  wliatevcr**  of  episcopal  jurisdic 
tion — v.g.y  make  appointments,  etc. — before  he  has  received 
and  exhibited  the  bulls  of  his  appointment ;  on  the  other 
hand,  he  can  assume  the  administration  in  full  of  his  diocese 
as  soon  as vo  he  has  shown  the  bulls  of  his  appointment  (in 

33  R»iff..  1    i.,  tit.  6,  n.  46.  34  Ib.,  n.  47. 

35  Ib.,  n.  36.  36  Craiss.,  Man.  n.  385. 


134  OH  Appointments  to 

this  country,  v.g.,  to  the  bishop's  council),  even  before  he 
has  received  consecration  or  taken  possession  of  his  see 
(possessionis  assumptio,  inthromzatio*'}.  He  may  exhibit  the 
bulls  and  take  possession  of  his  see  either  personally  or  by 
proxy.3' 

294.  Q.  Should  appointments  to  ecclesiastical  offices 
be  made  in  writing? 

A.  The  appointment  (imtitutio  canonicd)  is  to  be  made 
either  by  the  Supreme  Pontiff  or  it  is  made  by  bishops.  In 
the  first  case,  it  should  be5i)  executed  and  given  the  ap 
pointee  in  writing — i.e.,  in  formal  and  canonical  letters  of 
appointment  (litter ac  provisionis,  litter ae  confirmations >  litterae 
institntionis) ;  in  the  second  case — namely,  when  persons  are 
appointed  by  bishops  (v.g.,  to  a  parish) — it  does  not  appear 
necessary40  for  the  validity  of  the  appointment  (ad valorem 
institutwuis]  that  it  should  be  in  writing.  When  we  say  "  in 
writing"  we  mean  not  an  ordinary,  even  though  official,  let 
ter  from  the  bishop  to  the  appointee,  but  a  formal  instru 
ment,41  properly — i.e.,  canonically — drawn  up,  signed,  sealed. 
and  delivered  (litterae  provisionis).  We  said  above,  "  for  the 
validity  of  the  appointment  "  ;  for  it  seems  that,  at  the  present 
day,  appointments  by  bishops,  in  order  to  be  lawful"  should 
be  in  writing  ;  this,  however,  holds,  at  least  strictly  speak 
ing,  only  of  appointments  to  canonically  established  offices  or 
parishes,  but  not,  at  least  in  the  strict  sense  of  the  word,  of 
appointments  in  countries  where  there  are  no  canonically 
established  offices  or  parishes.  Our  bishops  make  their 
appointments  to  parishes  and  the  like  either  verbally  or  by 
ordinary  letters,  but  not  by  formal  instruments. 

295.  Finally,  it  is  necessary  for  the  exercise  both  oi  juris- 
diaio  trdmaria  and  dclcgata  that  the  person  appointed  should 
at  least  implicitly  accept  the  appointment.43 

37  Phillips,  Lchrb.,  p.  146.  se  Craiss.,  n.  385. 

M  Craiss.,  n.  382.        40  Ib.,  n.  383.        41  Cfr.  Soglia,  Jus  Privat.  t.  ii.(  p.  190, 

a  Ib.,  p.  189.  4!  CraJss.,  n.  386. 


Ecclesiastical  Offices  or  Benefices.  135 


ART.  II. 

Of  Appointments  to  Ecclesiastical   Offices   in   Particular — Of 
Election,  Postulation^  Presentation,  and  Collation. 

296.  In  the  foregoing  paragraph  we   discoursed  on  ap 
pointments  in  general ;  in  the  present,  we  shall  briefly  treat 
of  the  various  ways  in  which  appointments  to  offices  in  the 
Church    are    made.      Ecclesiastical    offices    are    conferred 
chiefly  in  four  ways:   I,  by  election;  2,  postulation  ;  3,  pre 
sentation  ;  4,  collation.4'     We  shall  briefly  explain  each. 

§  I.  Election  (electio). 

297.  By  election  (electid)  in  a  general  sense  is  meant  any 
appointment  whatever  to  ecclesiastical  offices,  whether  it  be 
in  the  form  of  postulation,  presentation,  etc.45     By  election, 
in  a  strict  sense,  we  mean  a  distinctive  mode  of  filling  eccle 
siastical  offices,  or  of  making  appointments,  which  is  defined  : 
"  Electio  est  personae  idoneae  ad  vacantem  ecclesiam,  per 
eos  quibus  jus  eligendi  competit,  canonica  vocatio,  auctori- 
tate  superioris   confirmanda." 40     At   the  present  day  none 
out  the  following  persons  are,  properly  speaking,  elected  to 
offices  :  the  Roman  Pontiff,  regular  prelates,  capitular  vicars, 
and  bishops  in  some  parts  of  Germany.47 

298.  Elections  may  be  held  in  one  of  these  three  ways 
only:   I ,  per  quasi  inspirationem  ;  2,  per  compromissum  ;  3,  per 
scrutinium.     Let  us  explain  these  forms.4' 

299.  First,  an  election  is  held  in  the  form  of  quasi  inspira 
tion  (eleciio  per  quasi  inspirationeni),  when  all  those  who  are 
entitled  to  vote,  without  even  a  single49  exception,  and  with- 

44  Soglia,  vol.  ii.,  p.  165  ;  cfr.  Craiss..  n.  387.         4S  Reiff,  lib.  i.,  tit.  vi.,  n,  3. 
48  Reiff.,  1.  c.,  n.  4.  4r  Craiss.,  n.  388. 

48  Cap  Quia  propter  42,  De  Electionc,  issued  by  the  Fourth  Lateran  C.  in 
1275  ;  cfr.  Craiss,  n.  389.  "•  Phillips,  Kirchenr..  vol.  v.,  p.  852. 


On  Appointments  to 

out  any  special  previous  arrangement,  choose  by  acclama 
tion,  and,  so  to  say,  with ro  one  heart  and  mouth,  some 
person  to  fill  an  office.  We  say,  "  without  any  previous  ar 
rangement  "  (nullo  praecedente  tract atu} ;  for  the  electors  must, 
so  to  say,  at  the  mere  mention  of  the  name  of  the  candidate, 
unanimous!)  proclaim  him  as  their  choice  for  the  office  ; 
this  sort  of  election,  therefore,  must  be  spontaneous,  not 
preconcerted.  Any  previous  arrangement  as  to  the  person 
to  be  elected,  and  all  influence  brought  to  bear  in  his  favor, 
are  excluded  from  this  mode  of  election.61 

300.  Second,  an  election  takes  place  in  the  form  of  compro-. 
mise  (electio  per  coinpromissuvi],  "  quando  capitulares  prae- 
sentes  facultatem  eligendi  in  unum  vel  plures  idoneos  viros 
conferunt,  qui  vice  omnium  eligant."  '        The  persons   thus 
selected  to  perform  the  election  (compromissarii}  need  not 
be63    members   of  the   chapter;    they    must,    however,5'    be 
ecclesiastics.     The  consent  of  all  the  vocals  or  persons  en 
titled  to  vote   is  indispensable  to  an  absolute,  but  not  to  a 
limited,  compromise." 

301.  Third,  the  election  by  suffrage  (electio per  scrutinium} 
is  that  "  quae  praesentibus  omnibus,  qui  debent,  volunt,  et 
possunt   interesse,    fit   per   collectionem    suftragiorum  circa 
eum   in   quern    major  et  sanior    pars    capituli    consentit."  ** 
This  form  of  election,  ^herefore,  consists  in  this,  that  each  of 
the   voters  casts   his  vote   separately,  either  viva  voce  or 
secretly — namely,  by  ballot  or  ticket."     Elections  are  usu 
ally  held  in  this  manner  58 — i.e.,  by  ballot. 

302.  The  observance  of  one  or  the  other  of  these  three 
forms  of  election  is  obligatory  only  in  the  election  of  pre 
lates  pro  ecclesiis  vidnatis — that  is,  of  bishops  M  and  irremov- 

"  Phillips,  Kirchenr.,  vol.  v.,  p.  869.  61  Ib.  M  Reiff.,  1.  c.,  n.  68 

"  Ib.,  n.  69.  M  Ib.,  n.  70.  "  Ib.,  n  71-77.        M  Ib..  n.  108 

w  Phillips,   Kirchenr.,  vol.  v.,  p.  876;  cfr.   Bouix,  De  Capit,  p.  185;  DP- 
voti,  lib.  i.,  tit.  v.,  n.  18.  M  Phillips,  Lehrb.,  p.  206. 

**  Reiff.,  1,  c.,  n.  no. 


Ecclesiastical  Offices  or  Benefits.  137 

abie  abbots;6'1  in  the  election  of  inferior  persons,  v.g.,  of 
canons,  no  particular  manner  of  voting  is  "  prescribed  ;  all 
that  is  necessary  is  that  the  canons,  when  capitulariy  assem 
bled,  cast  a  majority  of  votes  for  the  person  to  be  chosen. 

3O3  Q-  Who  are  to  be  invited  to  take  part  in  the  elec 
tion  ? 

A.  All  those  who  have  the  right  of  suffrage  —  namely,  all 
those  qui  debent,  volunt,  ct  possunt  commode  interetse.  This 
holds  so  strictly  that  if  but  one  of  these  persons  is  not  in 
vited  he  may  demand  the  annulment  of  the  election,  though 
he  must  do  so  within  '  six  months.  We  said  above  that  all 
those  are  to  be  invited  "  qui  debent,  volunt,  ct  commode  possunt 
interessc.''  We  explain. 

304. —  i.  Qni  debent :  by  which  are  excluded  those  who 
by  law  are  deprived  of  the  right  of  suffrage,  such  as  those 
who  are  below  the  age  of  puberty  (impuberes],  or  persons 
not  having  the  full  use  of  reason,"  laymen,  etc.64 

305. — 2.  Qui  volunt :  because  no  account  is  to  be  made  of 
those  who  do  not  wish  to  be  present  at  the  election.651 
Hence,  in  case  all  who  are  entitled  by  law  to  vote  were  pro 
perly  summoned,  those  who  attend,  though  forming  but  a 
small  number  of  the  entire  body  of  electors,  may  yet  lawfully 
perform  capitulary  acts.  In  like  manner,  if,  during  the  elec 
tion,  some  electors  should  leave  the  place  of  election  and  re 
fuse  to  return,  the  rest  may  proceed  without  them,  provided, 
however,  the  majority  did  not  go  away.66 

306. — 3.  Qui  possunt  commode  inter esse :  since  those  who 
are  at  too  great  a  distance  need  not  necessarily  be  called.*7 
De  rigore  juris  communis,  those  only  are  to  be  summoned 
who  are  within  the  province."  The  custom,  however,  of  a 
p!ace  should  be  observed." 

*'  Reiff,  1.  c.,  n.  in.  •'  Ib.,  n.  112.  M  Craiss.,  n.  394. 

"  Ib.   n.  395.  M  Ib.  "  Reiffenst,  lib.  i.,  tit.  vi.,  n.  117. 

**  Craisson,  n.  396.  •'  Reiffenst.,  1.  c.,  n.  118. 

"•  Ib.,  lib.  i  ,  tit.  vi.,  n.  118  ;  Craisson,  n.  397,  398.  "  Ib.,  1.  C. 


On  Appointments  to 

307.  Voting  by  proxy  is  admissible  only  when  the  voter 
is  legitimately  absent71  and  when  this  practice  is  sanctioned 
by  custom  or  local  statute.71     Again,  sick  vocals  or  voters 
who,  though  in  the  city  or  place  where  the  election  is  held, 
are  yet  unable  to  assemble  in  the  place  of  election  by  reason 
of  infirmity,  may  cast  their  vote  either  by  proxy  or  person 
ally  in  their  residence,  when  waited  upon  by  those  who  are 
deputed  to  collect  the  votes."     Neither  sick  nor  absent  capi 
tulars,  however,  can  send  their  vote  in  writing,  there  being 
an   essential   difference    between    the    latter   and  voting  by 
proxy."      Some   authors,    however,    assert    the    contrary.74 
Blank  ballots  do  not  count.75 

308.  Q.    How  many  electors  must  be  present  in  order 
to  constitute  a  valid  election  ? 

A.  Two-thirds  are  required  of  those  vocals  or  electors 
only  qui  debent,  volunt,  et  possunt  commode  intcresse.  Hence,  in 
default  or  non-appearance  of  the  rest,  even  three,  or  two,  or 
one  capitular  may  perform  the  election,  making  the  nomina 
tion  before  a  notary  and  witnesses.7" 

309.  Q.  How  many  votes  are  requisite  to  a  valid  election 
or  capitulary  act  ? 

A.  Ordinarily,  it  is  not  essential  that  all  the  electors 
actually  present  should  consent ;  but  the  vote  of  the  majority 
of  those  who  are  present  is  sufficient,  provided  all  those  who 
have  a  right  to  be  present  were  canonically  called  or  in 
vited.77  Thus,  if  thirteen  took  part  in  the  election,  seven 
will  constitute  a  majority.7'  We  say  ordinarily,  for  in  cer 
tain  cases  a  majority  vote  is  insufficient.  Thus,  in  the  elec 
tion  of  Sovereign  Pontiff,  the  suffrage  of  two-thirds  of  the 

*•  Ceccoperius,  lib.   iv.,  tit.  iii.  ;  ap.  Bouix,  De  Capit.,  pp.  181,  182,  edit. 
1862.       n  Monacelli,  ap.  Bouix,  De  Capit.,  p.  182        72  Reiffenst.,  1.  c.,  n.  192. 
rs  Ib.,  n.  194  ;  cfr.  Bouix,  De  Cap.,  p.  182.         74  A  p.  Reiffenst.,  1.  c.,  n.  196. 
"  Reiffenst.,  1.  c.,  n.  203.  7S  Ceccoperius,  ap.  Bouix,  De  Capit.,  p.  166 

"  Bouix,  De  Capit.,  pp.  169,  168  ;  cfr.  Reiifenst-,  lib.  i  ,  tit.  vi.,  n.  145 
78  Reiffenst.,  1.  c.,  n.  189. 


Ecclesiastical  Offices  or  Benefices.  139 

cardinals  present  at  the  election  is  indispensable."      Other 
exceptions  may  be  seen  in  Bouix.80 

310.  According  to  canon  law,  the  vote  not  only  of  the 
pars  major,  but  also  that  of  the  pars  sanior,  is  requisite.      It 
is  commonly,  however,  held  that  the  majority,  or  the  pars 
major,   is    also    the    pars    sanior,    unless    the   contrary    be 
proven. M 

311.  Q.  What  else  is  prescribed  relative  to  elections? 

A. —  i.  The  election  should  take  place  within  three  months 
from  the  day  of  the  vacancy.  2.  It  must  be  free.  3.  No 
simony  should  intervene.  4.  The  votes,  as  cast,  should  be 
absolute  and  determinate,  not32  uncertain  or  conditioned. 
5.  Once  the  result  is  published — i.e.,  the  vote  announced 
(pubticato  scrutinid) — the"  voters  cannot,  as  a  rule,  change 
their  vote  (iwn  possunt  electores  amplius  variare).  We  say, 
"  as  a  rule" ;  for  there  are  several  exceptions.84  Among 
others,  a  peculiar  exception  is  made  in  favor  of  the  elections 
of  nuns :  when,  namely,  one  of  their  number  is  elected,  v.g., 
abbess,  by  a  majority,  but  not  by  a  two-thirds  vote,85  the 
nuns  composing  the  minority  may  go  over  (accessus)  to  the 
majority,  and  thus  change  their  vote,  even""  after  the  publi 
cation  of  the  votes.  6.  It  is  not  generally  prescribed, 
though  it  is  advisable,  that  the  votes  *'  should  be  cast 
secretly.  We  say,  "generally";  for,  in  the  election  of  supe 
riors  of  regulars,  and  of  superioresses  88  of  nuns,  nay,  in  the 
election  of  all  officials  whatever  of  religious  of  both  sexes, 
the  voting  must  be  secret,  otherwise  the  election  is  null,  even 
though  but  one  of  the  voters  should,  with  the  permission  of 
the  chapter,89  make  known  his  vote,  v.g.,  by  attempting  to 
vote  viva  voce,  or  by  telling  his  vote  to  another  capitular. 

"  Bouix,  De  Cap.,  p.  170.  80  L.  c.,  p.  170. 

§1  Reiffenst.,  1.  c.,  n.  143  ;  cfr.  Craisson,  n.  404.  M  Craiss.,  n.  406. 

83  Cap.  Publicato  58,  De  Elect.                    ~4  Reiflf.,  lib.  i.,  tit.  vi.,  n.  290-300. 

*  C.  Indcmnitatibus  43,  §  Sane,  De  Elect,  in  6.  ""  Reift.,  1.  c.,  n.  300 

*  Craiss.,  n.  409         S8  Reiff.,  1.  c.,  n.  328-351.  e9  Ib.,  n.  345. 


14°  On  Appointments  to 

The  Council  of  Trent  enacted  this  law  in  order  that  no  en- 
mities  might  be  occasioned00  among  the  religious  by  elec 
tions.  Hence,  the  religious  are  bound  to  preserve  secrecy 
as  to  their  vote,  even  after  the  election,  though  a  violation 
of  this  secrecy,  at  that  time,  does  not91  annul  the  election. 
7.  Elections  cannot  take  place  by  lot  (per  sort  em],  except, 
perhaps,  when  the  votes  are  equally  divided  between  two9* 
candidates,  after  the  second  or  third  ballot. 

312.  Q.    What  are  the  chief  things  to  be  done  after  the 
election  ? 

A. —  i.  When  the  election  is  over,  a  decree  is  drawn  up. 
and  signed  by  the  voters ;  then  all  power  to  change  the 
vote  is  cut  off.  2.  The  person  elected  should  be  notified  of 
his  election  within  eight  days,  and  his  consent  rhust  be 
given  within83  a  month.  3.  A  bishop  elect  must  receive 
consecration  within  three  months  from  the  day  on  which  he 
was  notified  of  his  confirmation.  No  regular  can  consent 
to  his  election  for  a  prelature  out  of  the  monastery  without 
permission  from  his  superior  ;  otherwise  the  election  is,  ipso 
facto,  null  and  void.94 

§  2.    Postulation  (postulatio). 

313.  Chapters  who  may  still  have  the  right  (v.g.,  in  some 
parts  of  Germany)  to  elect  bishops,  may  sometimes  wish  to 
choose   a   person    as   bishop  who,   though    otherwise   com 
petent,  is  nevertheless  ineligible  by  reason  of  some  canonical 
impediment,  v.g.,  for  want  of  the  requisite  age,95  or  if  he  is 
already  a  bishop.     In  this  case  the  canons  cannot,  strictly 
speaking,  elect  such  person,  but  merely  request  (postulatio 
solemnis,  petitio,  supplicatio)  the  Holy  See   that  he  be   ap 
pointed.      This   petition    (postulatio  solemnis}   must   be   ad 
dressed  to  the  Holy  See  in  a  canonical  manner.     Hence,  i, 
a  majority  of  the  chapter   should,  generally  by  vote  (per 

80  Reiff.,  1.  c.,  n.  343.        "  Craiss.,  n.  409.         w  Ib.,  n.  410.        •»  Ib.,  n.  411. 
M  Craiss.,  n.  413.  9B  Soglia,  vol.  ii.,  p.  65 


Ecclesiastical  Offices  or  Benefices.  141 

scrutiniuni),  concur  in  9B  the  request ;  2,  only  the  electors — 
i.e.,  those  who  have  the  right  of  suffrage97 — can  vote  for  the 
petition  to  be  addressed  to  the  Holy  See ;  3,  the  petition 
must  state  the  impediments"8  affecting  the  person  whose  ap 
pointment  is  requested  ;  4,  the  impediments  themselves 
must  be  dispensable."  Once  the  canons  have  signed  the 
petition  and  presented  it  to  the  Holy  See,  they  are  no  longer 
free100  to  change  the  request  or  postulation.  This  kind  of 
postulation  (postulatio  solemnis)  seems  to  have  gone  out  of 
use  ;  for,  as  Devoti  ""  says,  "  hodie  generatim  omnes,  quibus 
vel  aetas,  vel  quidvis  aliud  impedimento  est,  quominus  eligi 
possint,  a  sede  apostolica  veniam,  sive  indultum  eligibilitatis 
impetrare  solent." 

314.  Ecclesiastics  of  one  church  or  diocese  may  be 
elected  to  some  dignity  in  another  church  or  diocese,  with 
the  permission,  however,  of  their  superiors  {postulatio  sim 
plex}^ 

§  3.   Presentation,  Nomination  (praesentatio,  nominatio). 

315. — I.  Presentation  (praesentatid)  as  here  taken,  is  de 
fined  :  *'  Personae  ad  Episcopum  vel  alium  cui  competit  insti- 
tutio,  per  patronum  legitime  facta  exhibitio,  ut  ei  de  beneficio 
vacante  provideat."  '  Here  the  presentation  must  be  dis 
tinguished  from  the  appointment.  The  person  whom  the 
patronus  wishes  to  have  appointed  can  only  be  designated 
or  presented  by  him  ;  the  appointment  (collatio  non  libera,  in- 
stitutio)  itself  belongs  to  the  bishop,  though  it  cannot  be 
withheld  104  except  for  canonical  reasons.  No  jus  patronatus 
or  right  of  presentation  exists  in  the  United  States. 

316. — II.  Nomination  (nominatio  solemnis)  is  the  act  by 
which  two  or  more  worthy  persons  are  proposed  to  the 

*"  Ferraris,  V.  Postulatio,  n.  27.  "  Ib.,  n.  6.  "8  Ib.,  1.  c.,  n.  9. 

99  Ib.,  n.  8.  I0°  Ib.,  n.  17.  ""  Lib.  i.,  tit.  v.,  n.  27. 

188  Ferraris,  1.  c.,  n.  16.  1M  Reiff.,  lib.  i.,  tit.  vi.,  n.  18. 
M  Our  Notes,  p.  121. 


142  On  Appointments  to 

superior,  in  order  that  he  may  appoint  one  of  them  to  the 
vacant  office.105  When  a  bishopric  falls  vacant  in  the  United 
States,  three  candidates  are  proposed  to  the  Holy  See  by  the 
Consultors  and  the  irremovable  Rectors  of  the  vacant  dio 
cese  and  by  the  bishops  of  the  province.  This  presentation 
seems  to  partake  somewhat  of  the  character  of  nomination.106 

§  4.    Collation  or  Appointment  Proper  (collatio]. 

317.  Thus  far  we  have  used  the  word  appointment  (con- 
cessw,  collatio)  in  a  general  sense,  and  applied  it  to  ever}1  form 
or  mode  of  conferring  ecclesiastical  offices.      We  shall  now 
examine  what  is  meant  by  the  power  of  appointment  in  the 
strict  sense  of  the  term. 

318.  An   appointment    (collatio)   proper   differs   from  an 
election  (electio)  chiefly  in  these  two  ways:   I.  The  appoint 
ment  confers  upon  the  107  appointee  the  office  itself  (jus  in 
*re)  ;  an  election  gives  but  a  claim  to  the  office  (jus  ad  rein). 
A  person,  by  being  elected,  is  not  thereby  appointed,  but 
merely  receives  the  right  to  be  appointed  to  an  office.     An 
election,  therefore,  may  be  termed  an  inchoate  and  imperfect 
appointment.     The  same  difference  exists  between  appoint 
ments  and  presentations  or  nominations.     2.  Again,  an  ap 
pointment  proper   is   made  by   one  person  only  ;  while  an 
election   consists   essentially    of  the   votes  of  a  number   of 
persons.10" 

319.  From  the  above  it  will  be  seen  that,  by  an  appoint 
ment,    the   full   title   to  the  office  is  vested  in  the   person 
appointed,  who,  in  fact,  becomes,  so  to  say,  the  owner  of  the 
office.109 

320.  Now,  an  appointment  is  termed  collatio  libera  when 
the  collator  or  appointer  not  only  has  the  right  to  appoint 

1(*  Rciff.,  1.  c  ,  n.  10.  ««  Cfr.  Craiss.,  n.  416 

m  Reiff.,  lib.  i.,  tit.  vi.,  n.  25  ;  cfr.  Phillips,  vol.  vii.,  p.  489,  seq. 

K*  Devoti,  lib.  i.,  •  t.  v.   sect.  !ii.,  n.  28  '"9  Cfr.  Sog'ia.  torn,  ii  ,  p.  165. 


Ecclesiastical  Offices  or  Benefices.  143 

but  also  to  designate  ""  or  nominate  the  person  he  wishes  to 
appoint  ;  this  appointment  is  named  collatio  libera  because 
the  appointer  is  at  liberty  to  appoint111  any  person  he 
chooses.  On  the  other  hand,  an  appointment  is  called  colla 
tio  non  libera,  necessaria,  when  the  appointment  itself  be 
longs  11S  to  one  person,  and  the  designation  or  nomination 
of  the  party  to  be  appointed  to  another.  The  appointment 
in  this  case  is  termed  collatio  necessaria,  non  libera,  because 
the  appointer  cannot  refuse  to  appoint  the  person  designated 
or  presented  to  him  for  appointment  unless  canonical  ob 
stacles  forbid  the  appointment. 

321.  We  shall  subjoin  a  few  words  relative  to  the  mode 
of  appointment  of  bishops  at  the  present  day.     It  is  certain 
that  the  appointment — that  is,  not  only  the  confirmation,  but 
also  the  election  of  bishops — is  now  reserved  exclusively11 
to   the    Roman    Pontiff,    save   in   some    parts  of  Germany, 
where,  by  virtue  of  concordats,  bishops  are  still  elected  by 
chapters.114 

322.  The  manner  in  which  the  Holy  See  now  appoints 
bishops  is  this  : 

i.  The  appointment  is  made  by  the  Pope,  as  a  rule,  in 
ordinary  115  or  secret  consistory.  We  say,  as  a  rule  ;  for  the 
bishops  of  the  United  States,  and  of  missionary  countries  in 
general,  are  not  appointed  in  consistory,  but  by  papal  brief.116 

323. — 2.  The  appointment  itself  is  preceded  by  an 
investigation  ( proccssus  informationis,  processus  inquisitionis], 
which  is  instituted  in  order  to  ascertain  whether  the  person 
to 117  be  appointed  possesses  the  necessary  qualifications. 
When  the  candidate  lives  in  Italy  this118  process  of  investi- 

110  Reiff.,  i.  c.,  n.  24.  '"  Phillips,  Lehrb..  p.  142,  £  77. 

112  Ib.,  §  78,  p.  144  ;  cfr.  ib.,  Kirchenr.,  vol.  vii.,  p.  485. 

113  Bouix,  De  Episc.,  vol.  i.,  pp.  205,  206. 

114  Ferraris,  V.  Episcopus,  art.  ii.,  n.  15. 

115  Phillips,  vol.  vi.,  §  321,  pp.  579,  580. 

116  Ib.,  §  321,  p.  579,  and  §  330,  p.  670  ;  cfr.  Bouix,  De  Episc.,  vol.  i.,  p.  232. 

111  Phillips.  Lehrb.,  §  154,  p.  303.  m  Soglia,  vol.  ii.,  p.  63,  §  39. 


144  @n  Appointments  to 

gation  is  conducted  in  Rome  ;  if  he  resides  out  of  Italy,  it  is 
made  either  by  the  apostolic  nuncio  or  some  other  bishop 
specially  commissioned  "9  by  the  Roman  Pontiff  to  that 
effect.  The  result  of  this  investigation  is  then  sent  to  Rome 
and  submitted  to  a  committee  of  cardinals  (congregatio  con- 
sistorialis).  This  committee  then  examines  (processus  defini- 
tivui)  the  report  submitted  to  it,  and  then  decides  whet  he* 
the  Pontifical  confirmation  is  to  be  12°  given  or  refused. 

324. — 3.  The  confirmation,  as  given  by  the  Pope  in  con 
sistory,  is  couched  in  these  words  :  "  Auctoritate  Dei  omn? 
potentis,  Patris  et  Filii  et  Spiritus  Sancti,  et  Beatissimoruni 
Apostolorum  Petri  et  Pauli,  ac  Nostra,  Ecclesiam  W.     .     .     . 
de  persona  W.     .     .     .     providemus  ipsumque  illi  in  episco- 
pum   praeficimus  et  pastorem ;   curam  et  administrationem 
ipsius,  eidem  in  spiritualibus  et  temporalibus  plenarie  com- 
mittendo."  12' 

325.  In  the  United  States  the  bishops,  either  in  pro^in- 
cial  council  or  special  meeting,  discuss  the  qualifications 
(processus  informationis]  o'f  those  whom  the  consultors  and 
the  irremovable  rectors  have  proposed  or  whom  they  them 
selves  wish  to  propose  to  the  Holy  See  for  vacant  h'shop- 
rics:1"  a  statement  or  report  of  the  acts  of  the  mee:ing  is 
sent  to  the  Propaganda.123  The  bishops  of  the  United  States, 
and  of  missionary  countries  in  general,  are  appointed  by  the 
Pope  mainly  on  the  recommendation  of  the  Propaganda.124 

326. — 4.  After  the  promotion,  in  consistory  or  otherwise 
bulls  are  sent  to  the  bishop  elect,  to  the  consecrator,  metro 
politan,  clergy,  and  people  of  the  :"  appointee.'20  The  bishop 
elect  is  obliged  to  make  the  profession  of  faith,  and  to  take 
the  oath  of  obedience  and  fidelity  to  the  Roman  Pontiff:  ?f 

119  Cfr.  Bouix,  De  Episc.,  vol.  i.,  p.  215.  12°  Phillips,  1.  c. 

m  Ap.  Craiss.,  n.  420.  '"Cone.  PI.  Bait.  II.,  n.  106. 

m  Cfr.  our  Notes,  pp.  95,  99.  124  Phillips,  1.  c.  m  Craiss.,  n.  420. 

128  The  Propaganda,   in  appointing  bishops  for  the  United  States,  sends 
briefs,  not  to  the  clergy  or  people,  but  merely  to  the  bishop  elect,  and  that 
•through  the  metropolitan. 


Ecclesiastical  Offices  or  Benefices.  145 

out  of  Rome,  he  must  take  this  oath  in  the  hands  of  the  con 
•...-crator  '"7  (y,  p.  520). 

327.  In  regard  to  this  whole  matter,  Bouix  '  s  very  pro 
perly  remarks  that  modern  canonists  need  no  longer  weary 
themselves  with  the  study  ot  complex  and  involved  ques 
tions  as  to  the  election  and  postulation  of  bishops,  for  the 
simple  reason  that  the  Holy  See  has  almost  everywhere  de 
prived  cathedral  chapters  and  all  other  parties  of  the  right 
to  elect  bishops. 

ART.  III. 
On  the  Manner  of  Electing  the  Sovereign  Pontiff. 

328.  We  ask :  What  persons  have,  at  various  times,  exer 
cised  the  power  to  elect  the  Sovereign  Pontiff?     We  reply  : 
I.  At  first — i.e.,  from  the  time  of  St.  Peter  to  Pope  St.  Syl 
vester  I. — the  right  to  elect  the  Roman  Pontiff  was  vested 
in  the  Senate  of129  the  Church  of  the  city  of  Rome.     This 
Senate,  which  was  instituted  by  St.  Peter  himself,  was  com 
posed   of  twenty-four   priests   and   deacons.      2.    After  the 
pontificate   of  St.    Sylvester    I.   (f   335),   the  entire   Roman 
clergy  and  people  were  1;1°  also  admitted  to  the  election  of 
the  Pontiff.     3.    From  the    time    of  Pope    Simplicius   (ann. 
07)  to  that  of  Zachary  (ann.  741)  temporal  rulers  sought  to 
establish  the  custom  that  no  Pontiff  should  be  acknowledged 
as  such  IMI  without  their  confirmation.     4.  Pope  Nicholas  II. 
was  the  first  who  gave  the  chief  voice  in  the  election  of  the 
Roman  Pontiff  to  the  cardinals,  by  ordaining  that  the  elec 
tion  should  be  held  m  by  the  cardinal  bishops.     5.  Finally 

•Pope  Alexander  III.  (ann.  1178)  reserved  the  right  of  elect 
ing   the    Pontiff  exclusively    to    the    cardinals;    he    also" 
enacted  that  the   Pope    could    be  validly  elected    by    two- 
thirds   of  all    the    cardinals  present   without  any  "4   regard 

147  Craiss.,  n.  421.  '"8  De  Episc.,  vol.  i.,  pp.  207,  208. 

m  Ferraris,  V.  Papa,  art.  i.,  n.  13.  13°  !!>.,  n.  14.  "'  Craiss.,  n.  422. 

"*  Ferraris,  1.  c.,  n.  2<>,  36.  l33  Ib    n   21,  24,  36.  '31  Craiss  .  n.  423 


i  46  Gn  Appointments  to 

to  the  absent  members  of  the  Sacred  College.  These  enact 
ments  were  confirmed  I3G  by  Gregory  X.  (1274)  and  Clement 
V.  (1310),  and  are  in  force  at  the  present  day. 

329.  Q.   Can  the  Pope  elect  his  successor  ? 

A.  The  Pope  is  prohibited  from  electing  his  successor, 
not  only  by  ecclesiastical  but  also  by  divine  and  natural 
law  ;  and  such  election  would  be  null  and  void.136  Hence, 
the  Sovereign  Pontiff  could  not,  even  with  the  consent  of 
the  cardinals,  validly  issue  a  constitution  authorizing  a  Pope 
to  elect  or  appoint  his  successor  137  (infra,  n.  457). 

330.  Q.  What  should  precede  the  election  of  the  Roman 
Pontiff? 

A. — i.  Immediately  upon  the  death  of  a  Pope  the  cardi 
nals  are  to  be  convoked  ;  1Si  all  must  be  summoned,  even 
those  who  are  absent,  excommunicated,  suspended,  or  inter 
dicted  ;  also  cardinals  but  recently  created,  though  not  yet 
invested  with  the  insignia  of  the  cardinalate.  2.  The  cardinals 
present  must  ordinarily  139  wait  ten  days  for  the  arrival  of  those 
who  are  absent.  If,  however,  the  cardinals  present,  for  just 
reasons,  proceeded  to  elect  the  Pope  before  the  lapse  of  ten 
days  from  the  day  of  the  death  of  the  late  Pontiff,  this  elec 
tion  would  nevertheless  be  valid.140  3.  On  the  tenth  day,  or, 
according  to  Phillips,"1  on  the  eleventh,  the  cardinals  enter 
the  conclave  in  procession.  None  of  the  cardinals  then  in 
Rome  can,  except  in  case  of  sickness,  refuse  w  to  enter  the 
conclave  ;  those  who  arrive  later  must  also  be  admitted.14' 
Once  assembled  in  conclave,  they  are  not  at  liberty  to  leave 
it  before  the  election  144  is  over  ;  those  who  are  compelled  to 
go,  by  reason  of  sickness  or  other  just  cause,  do  not.  lose 
the  right 14tp  to  return,  as  Craisson 146  erroneously  asserts. 

'-  Ferraris,  1.  c.,  n.  22,  36.  136  Ib.,  V.  Papa,  art.  i.,  n.  i,  2. 

•"  Ib.,  1.  c.,  n.  12.  iat  Craisson,  n.  424.  J39  Ib.,  1.  c.,  n.  424. 

*•  l-'erra  is,  V.  Papa,  art.  i.,  n.  24.  "'  Lehrb.,  pp.  205,  206, 

*'  Ib.,  t,.  2rA  "3  Ib.  M4  Phillips,  Kirchenr.,  vol.  v    P-   860 

""  O>.,  v-  3C-2.  M6  N.  424- 


Ecclesiastical  Offices  or  Benefices.  147 

4,  If,  in  the  course  of  the  election,  a  considerable  numbe1-  o* 
Cardinals  should  withdraw  from  the  conclave,  refusing  to 
Darticipate  in  the  election,  the  right  of  electing  the  Pontiff 
would  devolve  on  the  remaining  cardinals,  even  though  but 
two ; 14T  nay,  even  in  case  but  one  were  left. 48 

331-  Q-  What  is  the  present  mode  of  electing  the  Sove 
reign  Pontiff? 

A. —  i.  The  election  must  be  held149  at  present  either  per 
scrutinium,  or  per  comproviissum,  or  per  quasi-inspirationem?** 
Though  any  of  these  three  modes  can  be  made  use  of,  the 
scrntinium  is  the  one  more  usually  adopted.151 

332. — 2.  The  elect  ion  per  formam  scrutini  consists  in  this 
that  each  of  the  voters  casts  his  vote,  as  a  rule,  by  ballot ; I5! 
in  the  election  of  the  Sovereign  Pontiff,  the  cardinals  are 
obliged  to  vote  by  sealed  ballot.153  The  candidate  who  re 
ceives  the  votes  of  two-thirds  of  all  the  cardinals  present  in 
the  conclave  '"  is  canonically  elected  Pope.  Before  the  bal 
loting,  three  cardinals  (scrutatores]  are  chosen  by  lot  to 
count  the  votes  and  announce  the  result.1'1 

333- — 3-  The  votes  are  cast  in  this  manner:  Each  cardi 
nal  writes  the  name  of  his  candidate  on  the  ballot  or  ticket 
of  election,  formulating1"  his  vote  thus :  "  Eligo  in  summum 
Pontificem  Reverendissimum  Dominum  meum  Dominum 
Cardinalem  N.  .  .  ."  This  ticket  is  then  folded  (compli- 
catio  schedularuni),  sealed  (pbsignatio  schedularuw},  and  de 
posited  by  16'  the  voter  in  a  chalice  (positio  schedulae  in 
caliceni)  placed  on  an  altar  for  that  purpose. 

334. — 4.  The  three  scrutatores^  meanwhile,168  stand  by 
the  chalice  and  superintend  the  voting.  When  all  the 

147  Ferraris,  V.  Papa,  art.  i.,  n.  40.  14a  Ib.,  n.  41, 

149  Phillips,  1.  c.,  p.  852  ;  cfr.  ib.,  Const.  Aeterni  Patris  of  Gregory  XV. 
'1621-1623).  16°  Ferraris,  V.  Papa,  art.  i.,  n.  55-58. 

161  Phillips,  Lehrb.,  §  107,  p.  206.  Supra,  n.  301. 

1M  Phillips,  Kirchenr.,  vol.  v.,  pp.  876,  877  M  Ib.  »•  Ib. 

*•  Ib.,  p.  877.        15e  Ib..  p.  878.        "'  Ib.,  p.  879.         "*  Ib.,  p.  880. 


148  On  Appointments  ti 

votes  have  been  cast,  the  scrutatorcs  at  once  begin  to  an 
nounce  the  votes  {publicatio  scmtimi}  in  this  manner:  the 
first  scrutator  takes  one  of  the  votes  out  ot  the  chalice,  an<J. 
simply  looks  at  or  ascertains  the  name  of  the  candidate  voted 
for ;  he  then  hands  the  vote  or  ticket  to  the  second- scrutator, 
who  likewise,  having  merely  seen  the  name  on  it,  passes  it 
to  the  third  scrutator,  by  whom  the  name  is  audibly  an 
nounced  to  the  cardinals.  All  the  tickets  are  thus  an 
nounced  one  by  one.16' 

335. — 5.  When  all  the  votes  have  been  counted  by  the 
scrutatores,  and  it  is  found  that  the  ballot  is  without  result, 
no  candidate  having  received  the  requisite  two-thirds  vote, 
the  accessus  must  immediately  begin."0  The  c,cccssus  consists 
in  this,  that  the  cardinals,  by  balloting  as  before,  go  over  to 
one  of  the  candidates  who  has  received  at  least  one  vote  in 
the  scrutinium  or  first  ballot.101  In  the  accessus,  as  the  word 
itself  indicates,  no  cardinal  can  vote  for  or  go  over  to  the 
one  for  whom  he  voted  in  the  scrutinium  ;  162  all,  however, 
are  obliged  to  vote,  though  they  are  free  to  go  over  to  lf" 
some  candidate  or  to  stand  by  their  first  choice.  A 
cardinal  who  goes  over  to  some  candidate  votes  thus:  Ac- 
cedo  N.  .  .  .  A  cardinal  who  does  not  wish  to  change 
his  vote  ballots  thus  :  Acccdo  nemini™ 

336. — 6.  When  the  accessus  is  over  the  votes  are  again 
counted  as  before  in  the  scrutinium,  and  if,  even  then,  it  is 
found  that  no  candidate  has  received  the  necessary  two- 
thirds  vote,  the  cardinals  must,  in  their  next  meeting,  unless 
they  prefer  to  elect  the  Pope  per  compromissum  or  qnasi- 
inspirationem,  proceed  to  a  second  165  ballot  or  scrutinium, 
and  continue  thus  to  ballot  twice  a  day  '"*— -namely,  in  the 
morning  and  afternoon — until  some  candidate  receives  two- 
thirds  of  all  the  votes,  and  is  thus  canonically  elected 

1W  Phillips,  1.  c.,  pp.  883,  884.  1M  Ib.,  p.  886  I81  Ib  ,  pp.  886,  887 

IM  Ib.,  p.  887.  1M  Ib.  1M  Ib.,  p.  887. 

"*  Ib.,  p.  888.  1M  Phillips,  Lehrb.,  p.  206. 


Ecclesiastical  Offices  or  Benefices.  149 

Pope.16'  The  person  thus  elected,  even  though  not  yet  in 
sacred  orders,  becomes  immediately,  upon  consenting  to  the 
election,  the  Vicar  of  Christ  on  earth.188  The  new  Pope,  as 
a  rule,  lays  aside  his  old  and  assumes  a  new  name.169 

(J3ir>  337.  Finally,  Pope  Pius  IX.,  of  blessed  memory,  on 
Dec.  4,  1869,  a  few  days  prior  to  the  solemn  opening  of  the 
Council  of  the  Vatican,  issued  the  constitution  Cum  Roma- 
nis  Pontificibus,  which  enacts  that  the  following  shall  hence 
forth  be  the  law  of  the  Church  17°  :  i.  If  the  Holy  See  be 
comes  vacant  during  the  holding  of  an  oecumenical  coun 
cil,171  the  election  of  the  new  pontiff  does  not  devolve  upon 
the  council,172  but  remains  wholly  and  exclusively  with 
the  cardinals.173 

338.  2.  Lest  any  trouble  or  dissensions  should  arise,  and 
in  order  that  the  cardinals  may  proceed  more  freely  and 
promptly  with  the  election,  the  council  itself,  in  whatever 
stage  it  may  be  at  the  time,  becomes  ipso  jure  immediately 
suspended  and  prorogued  until  a  new  pontiff  has  been 
canonically  elected  and  commands  its  continuance.  3. 
That  not  even  with  the  unanimous  consent  of  the  cardinals 
can  anything  be  done  contrary  to  these  regulations,  and 
that  all  such  attempts  should  be  null  and  void.174  Absent 
cardinals  cannot  vote  by  proxy.175 

ART.  IV. 

Appointments  to  Bishoprics — Mode  of  Appointment  in  the 
United  States. 

339-  Q- — !•  By  whom  and  how  were  bishops  appointed 
at  various  times? 

A.  The  history  of  appointments  to  episcopal  sees  maybe 
divided  chiefly  into  three  periods. 

167  Craiss.,  n.  426.  ir*  Ib.,  n.  427.  169  Phillips,  Lehrb.,  p.  207. 

170  Cf.  Ferraris.V  Papa,  i.,  n.  45         171Cf.  Al/og.  ed.  Pabisch,  vol.  ii.,  p.  853. 
"•  Ferr.,  1.  c.  17:i  Const.  Rom.  Pontif.  Pii  IX.,  1869,  §  Opportunum. 

174  Ib.,  §  Praesentes  autem.  rs  Devoti,  lib.  i.,  tit.  5,  Sect,  i  ,  §  3. 


150  On  Appointments  to 

I.  First  period. — Christ  himself "'  first  chose  his  apostles. 
The  apostles  in  turn  appointed  their  successors,  the  bish 
ops.17  The  clergy  and  people  not  unfrequently  took  part  in 
the  appointment  of  bishops,  as  made  by  the  apostles."1 
Afterwards,  appointments  to  bishoprics  were,  as  a  rule, 
made  conjointly  by  the  metropolitan,  the  bishops  of  the 
province,  the  clergy,  and  the  people  of  the  vacant 17(  diocese. 
The  elections  seem  to  have  been  held  usually  in  provincial 
synods.  According  to  some  canonists,180  the  people  merely 
gave  testimony  of  the  character  of  the  candidates ;  accord 
ing  to  others,  they  actually  exercised  the  elective  franchise.. 
It  is  certain  that  the  laity  are  not  jure  divino  possessed  of 
the  right  of  electing  bishops.181  Jn  some  instances,  especial 
ly  where  it  was  feared  that  these  elections  might  give  rise  to 
dissensions,  the  metropolitan  sent  some  bishop  (episcopus  tisi- 
tator)  to  superintend  the  election.1"2 

340.  Bouix  183  thus  describes  the  mode  of  election  of  this 
period  :  First,  the  suffrage  of  the  people  or  laity  was  neces 
sary  ;    second,  that  of  the  clergy  of  the  vacant  diocese  was 
also  required  ;  third,  the  consent  of  the  bishops  of  the  pro 
vince  was,  moreover,  indispensable  to  the  valid  election  of  a 
bishop. 

341.  Bishops,  however,  were  not  unfrequently  appointed, 
even  during  this  epoch,  directly  by  the  Holy  See  ;  especial 
ly  is  this  true  in  regard  to  the  West,  where  for  the  first  four 
centuries  bishops  were  directly  and  solely  appointed  by  the 
Holy  See.184 

342.  II.  Second  period. — In  the  twelfth  century  the  right 

"•  Luc,  vi.  13.  m  Tarquini,  Jur.  Eccl.  Publ.  lost.,  p.  121, 

"*  Phillips,  Lehrb.,  p.  294,  §  150.  "*  CVaiss.,  n.  429. 

180  See  Ferraris,  V.  Episcopus,  art.  ii.,  n.  i,  2.         1:I  Tarcju.,  1.  c.,  p.  119-130 
M  Devoti,  lib.  i.,  tit.  v.,  sect,  i.,  n.  8. 

181  De  Episcopo,  vol.  i.,  p.  179,  edit.  1873. 

**  Phillips,  Lehrb.,  §  98,  pp.  185,  i;6  ;  cfr.  Devoti,  1.  c.,  n.  5. 


Ecclesiastical  Offices  or  Benefices.  151 

of  electing  bishops  became  vested  solely  and  exclusively  in 
cathedral  chapters.185 

343.  III.   Third  period. — Owing  to  abuses  consequent  on 
elections  by  chapters,  the  Sovereign  Pontiffs  began,  in  the 
fourteenth   century,  to   reserve  to  themselves  the  appoint 
ment  of  bishops.     Clement  V.  took  the  first  step  in  this  mat 
ter  by  reserving  the  appointment  to  some  bishoprics  ;  John 
XXTI.    increased   the   number,   and    Pope    Benedict    XII. 
(1334)  finally  reserved  to  the  Holy   See   the   appointment 
(i.e.,  the  election  and  confirmation)  of  all  the  bishops  of  the 
Catholic  world.19"     Elections  by  chapters  were  consequently 
discontinued  everywhere.     Afterwards,  however,  the  right 
of  election   was  restored  to  cathedral  chapters  in  some  '"' 
parts  of  Germany,  so  that  '"*  in  these  parts  only  bishops  and 
archbishops   are  still,  as   of  old,   canonically  elected   by 18! 
their  cathedral  chapters. 

344.  Q.  Were  the  Roman  Pontiffs  guilty  of  usurpation  in 
reserving  to  themselves  the  appointment  of  bishops  ? 

A.  By  no  means;  for  the  Pope  alone  is,  by  virtue  of  his 
primacy,  vested  with  potestas  oidinaria,  not  only  to  confirm, 
but  also  to  elect,  bishops.190  Hence  it  was  only  by  the  con 
sent,  express  or  tacit,  of  the  Popes  that  others  ever  did  or 
could  validly  elect  bishops.19 

fSiF3  345.  Q.  How  are  bishops  appointed  in  the  United 
States  according  to  the  Third  Plenary  Council  of  Baltimore? 

A.  Prior  to  the  Third  Plenary  Council  of  Baltimore,  held  in 
1884,  the  candidates  for  a  vacant  diocese  were  presented  to 
the  S.  C.  cle  Prop.  Fide  by  the  bishops  of  the  province  to 
which  the  vacant  diocese  belonged.18"  The  priests  of  tne 

185  Ferraris,  V.  Episcopus,  art.  ii.,  n.  5;  cfr.  Tarqu.,  1.  c.,  p.  123. 

186  Phillips,  1.  c.,  p.  186.  ts"  Ib..  p.  187. 
188  Ib.,  Kirchenr.,  vol.  v.,  p.  401  seq. 

is»  Ferraris,  V.  Episcopus.  art.  ii.,  n.  6-10.  19°  Devoti,  1.  c.,  n.  5.  ro. 

sl  Bouix,  De  Episc. ,  vol.  L.  pp.  184,  194;  cfr.  Ccnc.  Trid.,  sess.  xxiii.,  can. 
-S;  sess.  xxiv. ,  cap.  i.,  De  Ref. 

191  Cone.  PI.  Bait.  II.,  n.  103  sq. 


152  On  Appointments  to 

vacant  diocese  had  no  share  or  voice  in  this  presentation  or 
nomination.  The  Third  Plenary  Council  of  Baltimore  amended 
this  mode  of  appointment  and  made  the  following  enact 
ments,  which  now  form  the  law  in  this  country  :lj;i 

346.  I.  When  a  diocese  falls  vacant,  whether  by  the  deatht 
resignation,  transfer,  or  removal  of  the  bishop,  and  when,  in 
consequence,  three  candidates  are  to  be  chosen  whose  names 
shall  be  proposed  or  recommended  to  the  Holy  See  for  the 
vacant  bishopric,  the  consultors  and  the  irremovable  rectors 
of  the  vacant  diocese  shall  be  called  together,  v.g.,  thirty  days 
after  the  vacancy  occurs.  It  will  be  the  right  and  duty  of. 
these  consultors  and  rectors,  thus  properly  assembled,  to 
select  three  candidates  for  the  vacant  see.  The  candidates 
1  bus  chosen  shall  be  submitted  to  the  bishops  of  the  province, 
whose  right  it  will  be  to  approve  or  disapprove  of  them. 

II.  The  meeting  of  the  consultors  and  irremovable  rectors 
is  called  and  presided  over  by  the  metropolitan  of  the  prov 
ince  to  which  the  vacant  diocese  belongs ;  or,  if  the  metro 
politan  is  lawfully  hindered,  by  one  of  the  suffragan  bishops 
of  the  same  province,  to  be  deputed   for  this  purpose  by  the 
metropolitan.      Where  there  is  question  of  choosing  three 
candidates  for  a  metropolitan  see  which  is  vacant,  the  meet 
ing  of  the  consultors  and  irremovable  rectors  of  the  vacant 
metropolitan  see  is  called  and  presided  over  by  the  senior 
suffragan  bishop,'"  or.  if  he  is  hindered,  by  another  bishop  to 
be  deputed  by  him. 

III.  Before  they  cast  their  votes,  the  aforesaid  consultors 
and  rectors  shall  swear  that  they  are  not  induced  to  cast 
their  votes  for  a  candidate  because  of  unworthy  motives,such 
as  that  of  expecting  favors  or  rewards.     They  shall  vote  by 
secret  ballot.     This  vote  is  merely  consultive,  i.e.,  it   is  simply 
equivalent  to  a  recommendation  that  one  of  the  candidates 
be  appointed  to  the  vacant  see. 

193  Cone.  PI.  Bait.  III.,  n.   15,  16. 

184  That  is,  by  the  suffragan  who  is  the  oldest  ratione  ordinationis. 


Ecclesiastical  Offices  or  Benefices.  153 

IV.  The  president  of  the  meeting  shall  cause  two  authen 
tic  copies  of  the  minutes  of  the  meeting  containing  an  accu 
rate  list  of  the  candidates  chosen,  to  be  drawn  up  and  signed 
bv  the  secretary.     He  shall  forward  one  copy  directly  to  the 
S.  C.  de  Prop.  Fide  ;  the  second  to  the  other  bishops  of  the 
province.     A  third  copy  may  also  be  drawn  up  and  kept  in 
the  diocesan  archives,  as  is  done  in  England.     For  the  man 
ner  in  which  these  minutes  are  written,  see  the  extract  from 
the  statutes  of  the  cathedral  chapters  in  England,  given  by 
us  below,  in  Appendix  VII. 

V.  Thereupon,  on  a  day  fixed  beforehand,  v.g.,  teri  days 
after  the  above  meeting  of  consultors  and  rectors,  the  bish 
ops  of  the  province  shall  meet  and  openly  discuss  among 
themselves  the  merits  of  the  candidates  selected  by  the  con- 
suitors  and   rectors,  or  of  others  to  be  selected   by  them 
selves.     Then  they  vote  by  secret  ballot,  and  make  up  the 
list  to  be  sent  to  Rome.196     From  this  it  will  be  seen  that  the 
bishops  have  a  right  to  approve  or  disapprove  of  the  candi 
dates  chosen  by  the  clergv.    But  if  they  disapprove  of  them, 
they  are  bound  to  give  the  reasons  upon  which  they  base 
their  disapproval  to  the  S.  C.  de  P.  F. 

VI.  In  everything  else  the  bishops  shall  observe  the  in 
struction  of  the  S.  C.  de  P.  F.  dated  Jan.  21,  1861,  and  given 
in  the  Second  Plenary  Council  of  Baltimore,  n.  106,  107.     In 
other  words,  the  bishops  shall  state  in  writing  the  qualifica 
tions  and  merits  of  the  various  candidates,  according  to  the 
questions  given  in  the  Second  Plenary  Council  of  Baltimore, 
n.  107.    The  minutes  of  the  meeting  of  the  bishops  shall  then 
be  sent  to  the  S.  C.  de  P.  F.  by  the  archbishop,  or  senior 
bishop  of  the  province. 

347.  VII.  When  there  is  question  of  appointing  a  coadju 
tor-bis/top  "  cum  jure  successionis,"  the  rules  laid  down  above 
under  Nos.  I.,  III.,  IV.,  V.,  and  VI.  shall  be  strictly  adhered 
to.  Rule  II.  will,  however,  be  changed  thus :  The  meeting  of 

195  Instr.  S.  C.  de  P.  F.,  Jan.  21,  1861,  §  v. 


On  Appointments  to 

the  consultors  and  irremovable  rectors  will  be  presided  over, 
not  by  the  archbishop  of  the  province,  or  his  deputy,  but  by 
the  archbishop  or  bishop  for  whom  the  coadjutor  is  to  be 
chosen,  or  where  he  is  hindered,  by  the  vicar-general,  or  other 
priest,  deputed  by  him.  Moreover,  in  this  case,  the  bishop 
for  whom  the  coadjutor  is  to  be  named  can,  if  he  desires, 
suggest  or  point  out  the  names  of  the  candidates  who  would 
be  most  acceptable  to  him  for  the  coacljutorship. 

348.  VIII.  When  there  is  question  of  electing  a  bishop  for 
a  diocese  newly  erected,  the  rules  given  above  under  Nos.  II., 
III.,  IV.,  V.,  and  VI.  shall  be  observed.  However,  Rule  I.. 
shall  be  changed  thus  :  When  there  is  question  of  proposing  to 
the  Holy  See  the  names  of  candidates  for  the  new  diocese,  the 
consultors  of  the  diocese,  or  dioceses,  from  which  the  new  see  has 
been  formed,  and  the  irremovable  rectors  of  the  newly-erected 
diocese,  shall  be  called  together,  and  it  will  be  their  right 
and  duty  to  select  three  candidates  for  the  new  bishopric. 
This  rule  is  based  on  the  fact  that  a  newlv-erected  see  will, 
of  course,  have  no  consultors  until  after  the  first  bishop,  hav 
ing  been  confirmed,  appoints  them.  Hence  the  consultors 
of  the  old  diocese  or  dioceses  properly  take  the  place  of  the 
future  consultors  of  the  new  diocese,  for  the  purpose  of 
naming  the  first  bishop. 

t^lP  349-  As  to  the  manner  of  holding  the  above  meetings 
of  the  consultors  and  irremovable  rectors,  and  of  voting  for 
the  three  candidates  to  be  presented  to  the  Holy  See,  we 
refer  the  reader  to  the  instruction  of  the  S.  C.  de  P.  F. 
dated  April  21,  1852,  for  England;  also  to  the  Statutes  of 
Cathedral  Chapters  in  England,  approved  by  the  First  Pro 
vincial  Council  of  Westminster,  held  July  7,  1852;  and  to 
the  decree  of  the  S.  C.  de  P.  F.  dated  June  I,  1829,  regu 
lating  the  mode  of  procedure  in  electing  bishops  in  Ireland. 
The  rules  and  mode  of  procedure  laid  down  in  these  docu 
ments,  which  we  give  below  in  Appendix  VIII.,  are  evi 
dently  well  adapted  to  our  mode  of  commendation. 


Ecclesiastical  Offices  or  Benefices. 

JgiF"'  It  is  very  important  to  have  these  meetings  con 
ducted  in  such  a  manner  that  the  voters  shall  have  full 
opportunity  to  cast  their  votes  with  perfect  freedom  and 
without  fear  or  undue  influence.  To  secure  liberty  of 
action,  the  general  law  of  the  Church  has  laid  down  clear 
and  precise  regulations,  which  must  be  observed  in  ecclesi 
astical  elections,  especially  to  vacant  bishoprics  (supra,  n. 
301  sq..and  331  sq.).  Although  the  commendation  as  made 
in  the  United  States,  Ireland,  and  England  is  not  an  election 
proper,  it  nevertheless  takes  the  place  of  an  election.  Hence 
the  Holy  See  has  carefully  laid  down,  in  accordance  with 
the  general  law  of  the  Church,  the  manner  in  which  the 
meetings  of  the  clergy  in  Ireland  and  England  are  to  be 
held  for  the  purpose  of  making  the  commendation,  as  we 
shall  presently  see.  So  far  as  concerns  the  United  States, 
the  mode  of  procedure  to  be  observed  in  the  above  meet 
ings  of  the  consultors  and  rectors  has  not  been  determined 
by  the  Holy  See  or  the  Third  Plenary  Council  of  Baltimore, 
save  in  a  very  general  way. 

Finally,  it  should  be  observed  that  the  above  presentation 
of  candidates  to  the  Holy  See,  both  as  made,  on  the  one 
hand,  by  the  consultors  and  irremovable  rectors,  and  on  the 
other  by  the  bishops  of  the  province,  is  to  be  considered, 
not  as  electio, postulatio,  or  nominatio™  but  merely  as  commen- 
datio,  which  imposes  upon  the  Holy  See  no  obligation  to  ap 
point  any  of  the  persons  recommended.1"  The  same  holds 
true  of  the  presentation  as  made  in  Ireland,  England,  Canada, 
and  Holland.198 

ISir3  As  a  matter  of  fact,  however,  the  Holy  See  nearly 
al \\avs  appoints  one  of  the  candidates — usually  the  one  who 
is  first  on  the  list. — recommended  or  presented  in  the  man 
ner  above  slated,  and  rarely  goes  outside  of  the  list  of  the 
candidates  presented  or  recommended  to  it  for  appointment. 

196  Instr.  S.  C.  de  P.   F.     18  Martii.   \^\.  Quod  pertinet. 

197  Cone.  PI.  Bait.  II.  n.  103.  I9*C<>!1.   Lac.,  vol.  iii  ,  p.  959. 


i  56  On  Appointments  to 


Q-  35O.  How  are  bishops  appointed  or  rather  desig 
nated  in  Canada,  Ireland,  and  England  ? 

A.  I.  In  Canada  the  method  of  recommending  to  the 
Holy  See  candidates  to  till  vacant  bishoprics'  is  substantially 
the  same  as  that  which  obtained  in  the  United  States  prior 
to  the  Third  Plenary  Council  of  Baltimore,  held  in  1884.  The 
presentation  is  made  solely  by  the  bisliops  of  the  province?™ 
The  priests  have  no  voice  in  it. 

U^p"  351.  II.  In  Ireland  this  mode  obtains:  Three  priests 
are  proposed  to  the  Holy  See  by  the  parish  priests  and  can 
ons,  if  any,  of  the  vacant  diocese,  properly  convened  for  that 
purpose.  The  meeting  is  called  and  presided  over  by  the 
archbishop,  who,  however,  has  no  vote.  The  manner  in 
which  the  meeting  is  to  be  held  and  the  balloting  take  place 
is  clearly  and  minutely  set  forth  in  the  decree  of  the  S.  C. 
de  P.  F.  dated  Oct.  17,  1829,  and  given  by  us  below  in 
Appendix  VII.  It  is  substantially  this:  i.  When  a  see 
falls  vacant  the  vicar-capitular  is  elected  by  the  cathedral 
chapter  of  the  vacant  diocese,  in  the  manner  prescribed  by 
the  sacred  canons,  within  eight  davs  after  the  vacancy.  2. 
The  metropolitan  of  the  province,  as  soon  as  he  has  been 
notified  of  the  vacancy  and  the  election  of  the  vicar-capitular, 
issues  a  mandate  to  the  latter  commanding  him  to  convene 
the  parish  priests  and  canons  on  the  twentieth  day  from  the 
date  of  the  mandate.  3.  As  soon  as  the  vicar-capitular  has 
received  this  mandate  he  writes  within  eight  days  to  each 
of  the  above  priests  entitled  to  vote,  summoning  him  to 
attend  the  meeting  on  the  day  and  at  the  place  designated 
by  the  archbishop. 

4.  The  parish  priests  and  canons,  being  assembled  at  the 
time  and  place  specified,  solemn  high  mass  "  de  spiritu 
sancto"  is  celebrated.  After  the  mass  the  president  ascends 

205  Cone.  Prov.  Quebec  III.,  a,  1863,  Deer.  v.  ;  cf.  Coll.  Lac.,  vol.  iii.,  pp. 
671.  684.  686,  688 


Ecclesiastical  Offices  or  Benefices.  157 

a  throne  or  platform  in  the  middle  of  the  church.  Those 
who  have  no  right  to  vote  are  then  requested  to  leave,  and 
the  doqrs  of  the  church  are  locked.  Next  the  roll  of  the 
voters  is  called.  Two  tellers  or  scrutatorcs  are  then  elected 
by  the  voters  present.  Whereupon  the  voters  all  simulta 
neously  affirm  before  God  that  they  will  be  influenced  by  no 
unworthy  motives  in  their  vote.  Then  each  voter  in  turn 
casts  his  ballot  into  the  ballot-box  and  returns  to  his  seat. 
The  three  candidates  are  voted  for  in  one  ballot.  Conse 
quently  each  voter  must  put  on  the  ticket  which  contains 
his  vote  the  names  of  all  the  three  candidates  for  whom  he 
wishes  to  vote,  thus  : 

1.  Rev.  —   — ,  dignissimus. 

2.  Rev.  -       — ,  dignior. 

3.  Rev.  -       — ,  dignus. 

5.  When  all  have  cast  their  votes,  the  votes  shall  be 
counted  by  the  tellers,  and  the  names  of  the  three  candi 
dates  who  have  obtained  a  majority  of  votes  shall  be  an 
nounced  in  a  loud,  clear  voice  by  the  two  tellers  to  the  arch 
bishop  or  president,  and  by  him  to  the  voters  present.  6. 
Afterwards  the  president  orders  an  authentic  record  of  the 
proceedings  to  be  drawn  up  in  writing  in  the  presence  of 
the  meeting.  Two  copies  of  these  minutes  are  then  made 
out  and  signed  by  himself,  by  the  secretary,  and  the  two 
tellers.  One  copy  is  given  to  the  vicar-capitular  and  trans 
mitted  by  him  to  the  Holy  See ;  the  other  to  the  president, 
and  submitted  by  him  to  the  other  bishops  of  the  province. 

7.  Thereupon  the  bishops  of  the  province  hold  their 
meeting  and  discuss  the  merits  of  the  candidates  chosen  by 
the  clergy.  Their  opinion  is  put  in  writing  and  signed  by 
each,  and  then  sent  to  the  S.  C.  de  Prop.  Fide.  They  can 
not,  even  in  case  they  disapprove  of  the  list  presented  by 
the  clergy,  make  out  a  list  of  their  own.206 

m  Syn.  PL  apud  Mayn.,  pp.  273-279. 


158  On  Appointments  to 

I^IT"  III.  In  England  this  method  is  observed:  When  a 
diocese  becomes  vacant  three  candidates  are  presented  or 
rather  recommended  to  the  Holy  See  by  the  catJiedral 
chapter  of  the  vacant  see.207  The  rectors  of  missions,  even 
those  who  are  irremovable,  have  no  voice  in  this  presenta 
tion.  The  meeting  of  the  canons,  to  be  held  for  the  purpose 
of  selecting  the  three  candidates,  must  be  held  within  a 
month  from  the  death  of  the  bishop.  It  is  called  and  pre 
sided  over  by  the  metropolitan;  or  if  he  is  hindered  from 
being  present,  as  also  when  the  archiepiscopal  see  itself  is 
to  be  filled,  by  the  senior  suffragan  bishop.  Neither  the 
archbishop  nor  the  senior  suffragan  can  take  part  in  thr 
voting.808  The  manner  in  which  the  meeting  is  to  be  con 
ducted  and  the  ballots  cast  is  accurately  laid  down  in  the 
instruction  of  the  S  C.  de  P.  F.,  April  21.  1852,  and  in  the 
"  Statutes  of  the  Cathedral  Chapters  in  England,"  which  we 
give  below  in  Appendix  VIII.  Its  main  features  are  as  fol 
lows  : !nil 

i.  When  a  see  falls  vacant  the  vicar-capitular  is  elected  by 
the  cathedral  chapter  within  eight  days  after  the  vacancy. 
2.  The  canons  then  assemble  at  the  time  and  place  specified 
by  the  archbishop,  as  stated.  When  they  are  assembled, 
solemn  high  mass  "  de  spiritu  sancto"  is  celebrated  by  one 
of  the  canons.  Next  the  canons  swear  that  they  will  keep 
the  proceedings  secret.  Then  they  elect  three  tellers  or 
scrutatores  to  receive,  count,  and  announce  the  vote.  There 
upon,  without  any  previous  discussion  on  the  merits  of  the 
candidates,  they  proceed  to  vote.  The  voting  is  by  secret 
ballot.  Separate  ballots  or  tickets  are  cast  for  each  of  the 
three  candidates. 

3.  In  the  first  ballot  the  canons  will  vote  for  the  candidate 
whom  they  regard  as  the  most  worthy  (dignissimus)  for  the 

201  Instr.  S.  C.  de  P.  F.,  Apr.  21,  1852. 

208  Cone.  Prov.  Westmon.  I.,  a.  1852,  Deer.  xii. 

'209  See  Coll.  Lac.,  vol.  Hi.,  pp.  924.  925,  950,  959,  1433. 


Ecclesiastical  Offices  or  Benefices.  159 

vacant  see.  Each  canon  writes  the  name  of  his  candidate 
on  one  side  of  a  slip  of  paper  and  his  own  name  on  the  other ; 
he  then  folds  and  seals  it  in  such  a  manner  that  his  own 
name  will  be  on  the  inside  and  that  of  his  candidate  on  the 
outside  of  the  paper.  When  all  the  canons  have  given  their 
vote,  the  tellers  count  the  vote  and  announce  to  the  meeting 
the  names  of  the  candidates  voted  for.  Afterwards  the  bal 
lots  are  burned.  4.  If  it  is  found  thai:  no  candidate  has  re 
ceived  a  majority  of  the  votes,  both  of  those  present  and  of 
those  lawfully  absent,  but  represented  by  procurators,  the 
balloting  must  be  continued  until  one  of  the  candidates  ob 
tains  the  requisite  majority.  5.  Next  the  candidates  will 
successively  vote,  on  separate  tickets,  for  the  second  candi 
date,  who  is  to  be  dignior,  and  for  the  third  who  is  to  be 
dignus,  and  that  in  the  same  manner  as  in  the  case  of  the 
first  candidate  who  is  to  be  dignissimtis.  6.  After  the  ba' lot- 
ing  is  over,  the  minutes  of  the  meeting  are  drawn  up,  read  to. 
and  approved  by  the  canons,  and  then  signed  by  the  Vei  VT 
Rev.  the  provost  of  the  chapter,  the  secretary,  and  the  three 
tellers.  Three  authentic  copies  of  these  minutes  are  made 
out:  one  to  be  kept  in  the  archives  of  the  chapter;  the  sec 
ond  to  be  submitted  by  the  archbishop  to  the  bishops  of  the 
province ;  the  third  to  be  sent  directly  to  the  S.  C.  de  Prop. 
Fide  by  the  archbishop. 

7.  As  soon  as  possible  after  the  abo^e  meeting  of  the 
canons  the  bishops  of  the  province  assemble  and  discuss  the 
merits  of  the  candidates  chosen  by  the  canons.  Their  views 
are  put  in  writing  and  sent  to  Rome.  Note. — The  bishops 
of  the  province  can  merely  discuss  the  names  chosen  by  the 
canons,  and  send  their  opinion  on  each  candidate  to  Rome. 
But  they  cannot  propose  a  new  list  of  their  own.210  The 
mode  of  commendation  in  Holland  is  substantially  the  same 
as  in  England. 

/ 

110  Cf.  Coll.  Lac.,  vol.  iii.,  pp.  950,  958. 


160  On  Appointments  te 

t31F~  Differences  between  the  Commendation  in  the  United 
States  on  the  one  hand,  and  that  in  Ireland  and  England  on  the 
other.— i.  In  Ireland  and  England  the  list  of  the  candidates 
chosen  by  the  clergy  must  be  submitted  to  the  bishops  of  the 
province,  as  in  the  United  States.  Consequently  it  is  the 
right  and  duty  of  the  bishops  in  Ireland  and  England  to 
meet  and  discuss  the  merits  of  the  names  selected  by  the 
clergy,  just  as  in  this  country.  But  they  cannot,  in  case 
they  disapprove  of  the  nominees  of  the  clergy,  present  a  lisf 
of  their  own,  whereas  our  bishops  have  a  right  to  make  a 
list  of  their  own.  2.  Again,  in  Ireland,  besides  the  canons, 
all  who  are  called  parish  priests—and  by  parish  priests  are 
meant  all  priests  whatever  who  have  charge  of  congregations 
as  pastors— have  a  vote.  In  the  United  States,  besides  the 
consultors,  only  those  rectors  have  a  vote  who  are  irremov 
able.  3.  In  England  the  canons  only  have  a  vote.  The 
rectors,  even  those  who  are  irremovable,  have  none  4.  In 
England  each  candidate  is  balloted  for  on  a  separate  ticket ; 
while  in  Ireland  the  names  of  the  three  candidates  a-?  voted 
for  on  the  same  ticket  or  ballot  • 


ART.  V. 

Of  Appointments  to  Non-Prelatical  Offices,  especially  to  Parishes 
—Appointments  to  Parislies  in  the  United  States. 

355.  Benefices  or  ecclesiastical  offices  are  distinguished, 
i,  into  major  (beneficia  major  a},  v.g.,  the  papacy,  the  cardi- 
nalate,  the  episcopal  office,  prelatures,  and  abbotships  with 
jurisdictio  quasi  episcopalis ;  2,  into  minor  (beneficia  minor  a\ 
v.g.,  the  office  of  a  parish  priest,  canon,  and  the  like.2"  In 
the  foregoing  pages  we  considered  the  mode  of  appointment 
to  the  higher  offices  (beneficia  major  a)  in  the  Church ;  in  the 

:"  Salzano,  vol.  Hi.,  p.  229. 


Ecclesiastical  Offices  or  Benefices.  161 

present  we  shall  briefly  discuss  the  mode  of  appointment  to 
the  lower  ecclesiastical  offices,  especially  parishes. 

356.  According  to  the  jus  commune  of  the   Church,  the 
power  of  appointment  to  these  offices  is  vested  in  the  Sove 
reign  Pontiff  jure  pie  nario  ;  in  bishops,  jure  ordinario  ;  and  in 
others,  jure  delegate™ 

357.  —  I.   Power  of  appointment,  as  vested  in  the  Roman  Pon- 
tlff_  —  The  Pope  has  full  and  supreme  power  (jus  plenum,  jus 
summum,  potestas  absolica  it  plenarui}  to  fill  all  ecclesiastical 
offices  or  benefices'1"  throughout  the  Catholic  world;  for  he 
is  the  episcopus  universalis?"  the  ordinarius  ordinariorum™  et 
totius  orbis,  and  has  potistas  plena  gubernandi  universalem  Ec- 


358.  The  Sovereign   Pontiff  may  exercise  this  power  of 
appointment   in   various    ways  —  namely,    i,  jure  concursus™ 
inasmuch    as    he    has    concurrent    power   with    inferior    ap- 
pointers  ;    2,  jure   devolutionis,    when,    for   instance,    bishops 
neglect  to   confer  or  fill  benefices  within  the   time  fixed2" 
by   law  ;    },  jure  pracventionis  —  namely,   when  the    Pope  en 
joins  that  offices  which  are  not  as  yet  vacant219  shall,  upon 
becoming  vacant,  be  given  to  a  certain  person  :    the  22°  jus 
prnevcntionis  can  be  exercised  by  22'  the   Pope  only  ;  4,  jure 
rcscrvationis,   when   the   Pope   reserves    to   himself  the    sole 
power  of  appointment  '"'  to  certain  benefices. 

359.  The   Holy  See  no  longer  makes  appointments  jure 
concursus  or  223  praeventionis  ;  but  it  still  reserves  to  itself  the 


212  Soglia,  vol.    ii.,  p.    i6C>  ;  cfr.  Ferraris,   V    Beneficium,  art.  iv.,  addit.  e* 
aliena  manu,  n.  i.  2I3  Phillips,  rol   v.,  p.  470. 

214  Cfr.  Leuren.  For.  Benef.,  part  ii.,  quaest.  512  and  513. 

215  Ferraris,  V.  Benef.,  art.  iv.,  n.  i.         SI6  Cfr.  Cone.  Vat ,  sess    iv.,  cap.  iii. 
17  Reiff.,  lib.  iii.,  tit.  v  ,  n.  154. 

'-'"  Bouix,  De  Parocli.,  p.  309,  edit.  1867.  '•""  ReifF.,  1.  c.,  n.  152. 

'•'-''  Ib.,  n.  153.  221  Cfr.  Cone.  Trid.,  sess   xxiv.,  cap.  xix.,  d.  R. 

4"  Leuren..  1.  c.,  quaest.  513. 
'•"'•  Bouix,  De  Paroch.,  p.  309  ;  cfr.  Sal/ano,  vol.  iii.,  p.  245. 


1 62  On  Appointments  to 

appointment  to  some  of  the  offices.'-'24  Now,  what  appoint- 
ments  are  at  present  chiefly  reserved  to  the  Holy  See  ? 
Some  of  them  are  contained  in  M6  the  corpus  juris  {rcserva- 
tioncs  in  corpore  juris  clausac] ;  thus  the  appointment  to  all 
benefices  "''  falling  vacant  apud  scdcin  apostoiicam  or  in  curia 
Romana,  is  reserved  to  the  Pope.  A  benefice  is  said  to 
become227  vacant  in  curia  when  its  incumbent  dies  either  in 
Rome  or  within  forty  Italian  miles  "8  of  it.  It  is  a  disputed 
question  whether  the  appointment  to  canonical  parishes 
becoming  thus  vacant  is  reserved  to  the  Pope.  The  affir 
mative  is  held  by  Bouixy"'  the  negative  by  Soglia.'2'"  It  is 
certain,  however,  that  parishes  presided  over  by  rectors 
amovibiles  ad  nutum "'' '  are  not  included  in  the  above  reserva 
tion.  Other  appointments,  still  reserved  to  the  Holy  See, 
are  extra  corpus"-  juris.  Thus,  for  instance,  if  an  appoint 
ment  to  a  canonical  parish  is  made  by  the  bishop,  no'n 
tcrvata  forma  concursiis,  the  right  of  appointment  in  the  case 
is  forfeited  by  him  and  devolves  on  the  Pope.  The  same 
holds  true  of  all  appointments  to  benefices  made  23'3  contrary 
to  the  prescriptions  of  the  Council  of  Trent. 

360.— II.  Right  of  appointment  as  vested  in  the  bishop  of  the 
diocese. — The  bishop  is,  according  to  the  jus  commune™ 
vested  with  the  full  and  free  ^  right  of  appointment  (col- 
latio  liber  a}  to  all  vacant  parishes  or  benefices2'6  in  his 
diocese. 

361. — III.  Cardinals  are  generally  possessed  jure  delegate 
of  ample  powers  of  making  appointments  to  benefices.'2" 


124  Soglia,  vol.  ii.,  p.  168.  ™  Salzano,  vol.  iii.,  p.  245. 

ae  Bouix,  1.  c.,  pp.  313,  314,  315.  -•"  Phillips,  vol.  v.,  p.  517. 

B"  Soglia,  1.  c.,  p.  169.  «•  L.  c.,  p.  315. 

130  L.  c  ,  p.  169.                  <31  Craiss.,  n.  445.              2:<2  Salzano,  vol.  iii.,  p.  245. 

33  Bouix,  De  Paroch.,  p.  317.  ™  Ib.,  p.  323. 
235  Phillips,  Lehrb,  p.  261. 

130  Devoti,  lib.  i.,  tit.  v.,  n.  29  ;  cfr.  Ferraris,  1.  c.,  n.  30-34. 
*"  Soglia,  1.  c  ,  p.  iSi. 


Ecclesiastical  Offices  or  Benefices.  163 

Where  chapters  are  canonically  established,  the  appoint 
ment  of  the  canons  of  cathedral  chapters  belongs,  as  a  rule, 
conjointly  (jus  collationis  simultancae)  to  the  bishop  and  to  the 
chapter.23*  Canons  of  collegiate  chapters  are  elected  by  the 
chapters  and  instituted  239  by  the  bishop. 

362. — IV.  Power  of  appointment,  as  vested  in  the  bisltops  of 
the  United  States. — Thus  far  we  have  spoken  of  the  right  of 
appointment  as  determined  by  the  jus  commune.  We  now 
examine  the  question  in  relation  to  the  present  exceptional 
status  of  the  Church  in  the  United  States.  We  ask:  To 
whom  belongs  the  power  of  appointment  to  parishes  in  the 
United  States?  To  our  bishops  solely  and  exclusively.240 
No  appointments  whatever  are  reserved  to  the  Sovereign 
Pontiff,  since,  with  us,  there  are  no  canonical  parishes  or 
benefices.  For  where  the  jits  commune,  whether  in  corpore 
or  extra  corpus  juris,  reserves  appointments  to  the  Holy  See, 
it  does  so  only  in  regard  to  canonical  parishes  or  offices. 
However,  according  to  the  Third  Plenary  Council  of  Baltimore, 
the  parochial  concursus  is  now  obligatory  with  us,  in  appoint 
ments  to  parishes  or  missions  whose  rectors  are  irremovable. 
Consequently,  where  the  bishop  appoints  an  irremovable 
rector  without  the  concursus,  the  appointment  will  be  null 
and  void,  and  devolve  upon  the  Holy  See.  In  the  appoint 
ment  of  removable  rectors  our  bishops  are  not  obliged  to 
have  a  concursus,  but  are  free  to  appoint  the  person  whom, 
in  their  conscientious  discretion,  they  consider  dignior™ 

363.  Exempted  nuns  (or,  rather,  their  regular  superiors) 
have242  the  right  to  nominate  their  chaplain.  As  there  are 
no  exempted  nuns  in  the  United  States,  the  chaplains  of 
convents  are  all  appointed  by  the  bishop.  We  sum  up :  As 
there  exists  no  canonical  jus  patronatus  in  this  country,  the 
collatio  libera — i.e. ,  not  only  the  appointment,  but  also  the 

238  Bouix,  De  Capit.,  pp.  201,  202,  207,  edit.  1862.  23U  Ib.,  p.  243. 

'•""  Cone.  Prov.  Bait.  I.,  n.  i,  2  ;  cfr.  Cone.  PI.  Bait.  II.,  n.  112,  123,  124,  125. 
541  Cone.  PI.  Bait.  II.,  n.  126.  'M  Ib.,  n.  460. 


164  On  Appointments  to 

designation,  of  the  person  to  be  appointed — is  in  all  cases 
vested  in  the  bishop.  The  Ordinary,  therefore,  with  us, 
designates  and  appoints  all  pastors,  professors,  chaplains, 
etc. 

364. — V.  When  appointments  arc  to  be  made. — Appoint 
ments  to  parishes  and  to  all  bencficia  minor  a  must  be  made 
within  six  months  "'  from  the  day  on  which  information  was 
received  of  their  vacancy.  The  appointment,  if  not  made 
by  the041  bishop  within  the  above  time,  devolves  on  the 
chapter,  and,  in  its  default,  on  the  metropolitan.  On  the 
other  hand,  bishops  or  other  persons  having245  the  right  to 
make  appointments  cannot  promise  to  confer  a  parish  or 
benefice  before  it  actually  becomes  vacant.  The  Pope  alone 
can  confer,  or  promise  to  confer,  benefices  not  yet  vacant.246 
Appointments  to  parishes  or  other  benefices,247  when  made 
by  bishops,  need  not248  be  in  writing. 

ART.  VI. 
Installation  (Institutio  Corporalis]. 

365.  Installation  (institutio  corporalis,  institutio  realis,  in- 
vestitura)  is  the  induction  into  the  actual  possession  of  a  2" 
parish  or  benefice.  Every  appointment  (provisio]  includes 
three  things :  i ,  the  selection  of  the  person  to  be  appointed 
(designatio  personae )  /  2,  the  appointment  proper  (institutio 
canonica,  collaiio) ;  3,  the  installation  (instnllatio,  institutto 
corporalis}  or  taking  possession  of  the  parish.2'0  Now,  an 
ecclesiastic,  though  appointed  to  a  parish  or  benefice,  can 
not  take  actual  possession  -'51  of  it  himself,  but  must  be  in- 

243  Phillips,  Kirchenr.,  vol.  vii.,  pp.  540,  541. 

344  Cfr.  Soglia,  vol.  ii.,  $  95,  p.  190.  J45  Ib.,  P-  '91' 

348  Cfr.  Phillips,  1.  c.,  pp.  525-536.  547  Bouix,  De  Paroch.,  p.  306. 

sit*  Craiss.,  n.  383.  249  Reiff.,  lib.  iii.,  tit.  vii.,  n.  S. 

250  Gerlach,  Lehrb.,  p.  252  ;  cfr.  ib.,  pp.  273,  274. 

261  Phillips.  1.  c.,  pp.  508,  509. 


Ecclesiastical  Offices  or  Benefices.  165 

stalled  by  the  bishop  or  other  person  deputed  by  him.  The 
bishop  generally  selects  some  priest  (v.g.,  the  vicar-general 
or  rural  dean)  to  discharge  this  duty. 

•566. — Q.  What  is  the  custom  in  the  United  States  rela 
tive  to  the  installation  of  pastors  ? 

A.  As  a  rule,  no  installation  whatever  takes  place. 
Clergymen  appointed  to  parishes  take  charge  of  them  with 
out  any  ceremonies  of  induction.  Nor  is  installation, 
strictly  speaking,  requisite,  since  with  us  there  are  no 
parish  priests,  in  the  canonical  sense  of  the  term. 

flow  and  by  whom  appointments  arc  made  to  the  chief 
civil  offices  in  the  United  States. — I.  Federal  offices.  I.  The 
President  and  Vice-President  are  chosen  not  directly  by 
the  people  at  large,  but  by  electors  chosen  for  that  express 
purpose.  2.  Federal  senators  and  representatives:  the 
former  are  usually  elected  by  joint  ballot  of  both  Houses 
of  the  Assembly  of  their  respective  State,  and  not  directly 
by  the  people ;  the  latter  directly  by  the  people,  voting  by 
districts.  3.  The  President  is  empowered  to  nominate 
and,  by  and  with  the  advice  and  consent  oi  the  Senate,  to 
appoint  the  supreme  and  district  judges  of  the  United 
States,  tl:e  members  of  his  cabinet,  ambassadors,  and  other 
public  ministers  and  consuls,  etc.  Other  inferior  officers 
are  appointed  by  the  President  alone,  or  by  the  heads  of 
departments.  II.  State  offices.  The  governor  and  lieu 
tenant-governor  are  generally  elected  directly  by  the  peo 
ple.  A  plurality  only  is  required  for  a  choice.  The  other 
State  officers,  as  distinguished  from  county  and  township 
officers,  are  a  secretary,  treasurer,  auditor,  and  attorney- 
general ;  they  are  usually  elected  by  the  people  for  a  cer 

tain  number  of  years."3 

i 

"'  Walker,  pp.  96,  100,  109,  no.     Boston,  1874. 


CHAPTER   VIII. 

OF  THE  QUALIFICATIONS  REQUIRED  IN  PERSONS  WHO  ARE 
TO  J<E  PROMOTED  OR  APPOINTED  TO  ECCLESIASTICAL 
DIGN3TXES  AND  OFFICES  (DE  QUALITATIBUS,  ETC.). 

ART.  I. 
Of  ihe  Requisite    Qualifications  in   General. 

367.  Three  qualifications  are  chiefly '  required  in  persons 
to  be  appointed  to  ecclesiastical  offices,2  especially  to  the 
episcopal,  to  wit :  The  requisite  age,  purity  of  morals,  and 
learning.3 

368. — I.  Requisite  age  (aetatis  maturitas]. — The  law  of  the 
Church  prescribes4  that  persons  to  be  promoted  to  the  epis 
copal  dignity  should  have  completed  the  thirtieth  year  of 
their  age  ;  those  who  are  to  be  appointed  to  parishes  should 
be  twenty-four  years  old/'  Persons  who  are  to  be  appointed 
to  these  or  other  ecclesiastical  offices  before  they  have  at 
tained  the  proper  age  must  in  all  cases6  obtain  a  dispensation 
from  the  Holy  See,  otherwise  the  appointment  is  null  and 
void,  even  though  but  an  hour  be  wanting  to  the  requisite 
age.7  What  has  been  said  thus  far  does  not,  so  far  as  ap 
pointments  to  parishes  are  concerned,  apply  to  the  United 
States,  since  our  parishes  are  not,  properly  speaking,  bene 
fices.  Hence,  a  priest  in  this  country,  if  ordained  at  the  age 

t 

1  Phillips,  vol.  vii  ,  pp.  545,  546.         2  Cap.  Cum  in  Cunctis  7,  §  i,  de  Elect 

3  Cone.  Trid  ,  sess.  vii.,  cap.  i  ,  de  Ref. 

4  Cfr.  Ferraris,  V.  Beneficium,  art.  v  ,  n.  7,  8.  5  Devoti,  tit.  vi.,  n.  6. 
9  Phillips,  Lehrb.,  p.  149-                                   7  Boirx,  de  Capit.,  p.  145    1862, 

1 66  - 


Ecclesiastical  Dignities  and  Offices.  167 

of  twenty-three,  may  also  be  appointed  to  a  parish  at  that 
age.8  No  precise  age  is  prescribed  for  the  Papal  dignity. 
It  is,  however,  but  proper  that  persons  who  are  to  be 
elected  Popes  should  be  at  least  thirty  years  old.9 

369. — II.  Purity  of  morals  (gravitas  morum). — The  ap 
pointment  of  persons  who  are,  i,  guilty  of  crimes,  especially 
of  luxuriousness,  drunkenness,10  and  the  like  ;  2,  or  who  arc 
irregular  es,  or  Binder  grave  censure — v.g.,  suspension  or  major 
excommunication  u — is,  ipso  jure,  invalid-12 

370. — III.  Learning  (litterarum  scientid). — A  person  may 
possess  learning  in  a  threefold  degree:  i,  in  an  eminent  de 
gree,  when,  without  the  aid  of  books,  he  can  readily" 
explain  even  difficult  questions ;  2,  in  a  middling  degree,  if, 
with  the  aid  of  books  and  upon  deliberation,  he  is  able  to 
clear  "  up  difficult  questions  ;  3,  finally,  in  a  sufficient  degree 
— i.e.,  in  a  manner  that  enables  him  to  discharge  the  duties 
of  his  office.15  Now,  it  is  a  general  principle  that  those  persons 
only  are  appointable  to  ecclesiastical  offices  who  have  suffi 
cient  knowledge  '"  to  enable  them  to  properly  discharge  the 
duties  of  the  respective  office.  Hence,  the  particular  degree 
of  learning  which  is  required  in  appointees  varies  according 
to  the  office  to  which  they  are  appointed.  Thus,  in  bishops, 
an  eminent "  degree  of  learning  (scientia  eminens)  is  very 
desirable,  though  a  mediocre  (scientia  mediocris],  nay,  even  a" 
sufficient  degree  (scientia  sufficient],  may  be  tolerated.  In 
order  to  insure  a  proper  degree  of  learning  in  certain  offi 
cials,  the  Church  requires  that,  where  it  is  possible,  bishops, 
archdeacons,  capitular  vicars,  vicars-general,  professors  of 
theology,  and  the  like,  should  be  licentiates  or  doctors  either 

•  Cfr.  Craiss.,  n.  467.  '  Phillips,  Lehrb.,  p.  148. 

10  Craiss.,  n.  469.  "  Reiff..  lib.  i.,  tit.  vi.,  n.  221, 

13  Phillips,  1.  c.,  p.  149.  13  Reiff,  1.  c.,  n.  205. 

14  Ib.  1B  Cfr.  Ferraris,  V.  Beneficium,  art.  v.,  n.  II,  li 
'•"  Reiff.,  1.  c..  n.  2c6.  "  Ib.,  n.  207. 

w  Cfr.  Cone.  Trid.,  sess.  xxii..  cap.  ii.,  d.  R. 


1 68  Qualifications  Required  for 

in  theology  or  canon  law.19  Parish  priests  and  others 
charged  with  the  cura  animarum  must  be  endowed  with  at 
.east  scientia  sufficient.™  The  Scripture  says:  "  Quia  tu  sci- 
entiam  repulisti,  repellam  te,  ne  sacerdotio  fungaris  mihi." "' 

371.  To  the  above  three  qualifications  two  others  are21 
added:   i.  That  the  person  to  be  appointed  to  any  ecclesi 
astical  office   whatever  should  be  born  of  lawful  marriage 
(thorns  Icgitinius,  natalcs  Icgitimi] ;    those  who   are  begotten 
out  of  lawful  matrimony — v.g.,  of  concubinage — cannot  re 
ceive  any  of  the  ordines  majores  or  be  appointed  to  any  office 
to  which  the  cura  animarum  is  annexed,  except  upon  receiv 
ing  the  necessary  dispensation  from  the  Holy  See,  or  upon 
being    legitimized     by     subsequent     marriage.33        Bishops, 
moreover,  should   be  born  of  Catholic  parents.24      2.   Only 
ecclesiastics— that  is,   those   who  have  at  least  the  clerical 
tonsure  and  are  therefore  in  statu  clericali — can  fill  ecclesi 
astical  offices.     Laymen,  therefore,    are   not"   appointablc. 
In  most  cases,  moreover,  the  appointee  should  be  in  sacred 
orders.28     In  some  parts  of  Europe — v.g.y  in  Austria,  Bavaria, 
etc. — the  person  to  be  appointed — v.g.,  to  a  parish  and  the 
like — should  be,  as  far  as  practicable,"  one  that  is  acceptable 
(persona  grata)  to  the  civil  government. 

ART.  II. 

Is  it  Necessary  to  Appoint  a  Persona  Dignior  in  Preference  to  a 
Persona  Digna  ? 

372.  Q.    What  is   meant  by  persona  indigna,  digna,  and 
dignior  ? 

A.    i.    By  persona  indigna   we   mean  one   who   is   desti- 

"  Phillips,  Lehrb.,  p.  149.  *•  Reiff.,  1.  c .,  u.  208.  ai  Osee  iv.  6. 

**  Craiss.,  n.  466.  23  Soglia,  vol.  ii.,  §  94,  pp.  185,  186. 

14  Const.  Onus  Apost.  Greg.  XIV.,  1590.  2°  Soglia,  1.  c.,  pp.  184,  185 

**  Phillips,  Lehrb.,  p.  150.  v  Ib.,  Kirchenr.,  vol.  vii.,  pp.  559,  560. 


Ecclesiastical  Dignities  and  Offices.  169 

lute"  of  at  least  one  of  the  qualifications  above  mentioned 
2.  Persona  digna  is  one  who  has  in  a  "Q  sufficient  degree  all 
the  requisite  capacities  for  the  office.  3.  The  persona  dig- 
nior 30  is  one  who  possesses  the  requisite  qualifications  in  a 
more  perfect  manner  than  the  persona  digna  >  and  who  there 
fore  is  better  fitted  for  the  office.31 

373.  Q.   Is  it  allowed  to  appoint  a  persona  digna  in  prefe 
rence  to  a  persona  dignior  ? 

A.  For  bishoprics37  and  parishes  it  is  necessary  to  select 
the  persona  dignior  33  in  preference  to  the  persona  digna,  and 
those  who  promote  persons  worthy  indeed,  yet  less  worthy 
than  others,  are  guilty  of  mortal  sin.34 

374.  Q.  How  far  is  this  applicable  to  the  United  States? 
A. — I.  Appointments  to  Episcopal  Sees. — I.   Bishops  in  the 

United  States  are  undoubtedly  obliged,  under  pain  of  mor 
tal  sin,  to  recommend  or  propose  to  the  Holy  See,  as  candi 
dates  for  bishoprics,  not  merely  those  who  are  worthy  and 
competent  (digni),  but  those  who  are  the  most  worthy  (dig- 
niores}™  2.  This  applies  not  only  to  bishops,  but  also  to 
the  consultors  and  irremovable  rectors  who,  according  to 
the  present  discipline,  inaugurated  by  the  Third  Plenary 
Council  of  Baltimore,  as  explained  above,  n.  345  sq.,  have  the 
right  and  duty  to  recommend  to  the  Holy  See  three  candi 
dates  for  a  vacant  diocese.  3.  Nay,  this  holds  true  even  with 
regard  to  laics,  male  or  female,  who  in  any  way  have  a  part  in 
the  appointment  of  bishops.36  The  Council  of  Trent "  clearly 

48  Craiss.,  n.  475.  S9  Reiff. ,  lib.  i.,  tit.  vi.,  n.  235,  236. 

*°  Ferraris,  V.  Beneficium,  art.  v. ,  n.  40,  42.  "  Phillips,  Lehrb.,  p.  152. 

32  Reiff.,  1.  c.,  n.  238-246. 

33  Phillips,  Kirchenr.,  vol.  vii..  p.  566;  cfr.  Ferraris,  1.  c.,  n.  17-27. 

34  St.  Liguor.,  lib.  iv.,  n.  91,  92;  cfr.  Cone.  Trid.,  sess.  xxiv.,  cap.  i.,  d.  R., 
and  ib. ,  cap.  xviii. 

36  Cfr.  Bouix,  De  Episcopo,  vol.  i.,  p.  312,  1873. 

36  Cfr.  Bouix,  1.  c.,  pp.  312.  313. 

11  Sess.  xxiv.,  cap.  i.,  d.  R.;  cfr.  Cone.  PI.  Bait.  II.,  n.  101,  107. 


i/o  Qualifications  Required  for 

conveys  this  inference  :  "  And  as  regards  all  an£  each  of 
those  who  have,  in  any  way,  any  right  from  the  Apostolic 
See,  or  who  otherwise  have  a  part  in  the  promotion  of  those 
to  be  set  over  the  churches  (i.e.,  dioceses),  they  sin  mortally 
unless  they  carefully  endeavor  that  those  be  promoted 
whom  they  themselves  judge  the  most  worthy  (digniores) 
•of,  and  useful  to,  the  Church." 

375. — II.  Appointments  to  Parishes  in  the  United  States. — 
in  like  manner,  bishops  with  us,  and  others — v.g.,  diocesan 
councillors — who  take  part  in  the  appointment  of  pastors, 
would  seem  to  commit  mortal  sin,  unless  they  select 41  not 
merely  a  worthy  {persona  digna],  but  the  most  worthy,  per 
son  (persona  dignior}  to  fill  a  vacancy.  For  the  very  law 
of  nature  demands 42  that  those  who  have  the  right  of  ap 
pointment  to  offices  or  charges,  to  which  the  care  of  souls 
is  attached,  shall  appoint  the  worthiest  from  among  the 
worthy.  This  obligation,  then,  devolves  upon  all  who  are 
vested  with  the  power  of  appointment  to  parishes  ;  it  mat 
ters  not  whether  parishes  are  canonically  established  or 
not. 

376.  Q.  Is  the  appointment  of  a  persona  digna  in  prefe 
rence  to  a.  persona  dignior  valid  ? 

A.  i.  Where  appointments  to  parishes  must  be  made 
servata  forma  concursus,  the  appointment  of  a  pastor  is,  ipso 
jure,  null  and  void,  unless  the  persona  dignior  be  appointed.41 
2.  In  regard  to  other  appointments — v.g.,  to  parishes  (bene- 
ficia  cur  at  d]  where  no  concursus  need  take  place — the  ques 
tion  is  disputed.'4  3.  The  appointment  of  a  persona  digna  tc 
beneficia  simplicia  is  admitted  by  all  to  be  valid.  4.  The  ap 
pointment,  however,  of  a  persona  indigna — v.g.,  of  one  undei 
censure,  of  bad  morals,  and  the  like— is  always  prohibited, 


41  Cfr.  Cone.  Trid.,  scss.  xxiv.,  cap.  xviii.,  d.  R. 

48  Ferraris,  V.  Beneficium,  art.  v.,  n.  27.  43  Phillips,  Lehrb.,  p,  152, 

44  Cfr.  Reiff ,  lib.  i.,  tit.  vi.,  n.  248,  249;  cfr.  Soglia,  vol.  ii.,  pp.  188,  189. 


Ecclesiastical  Dignities  and  Offices.  i  /  i 

nay,  as  a  rule,  ipso  jure  null45  and  void,  or  at  least  void 
able." 

377.  Q.  Is  it  allowed  to  transfer  priests  of  bad  morals 
from  one  parish  to  another,  instead  of  deposing  them  ? 

A.  If  the  character  of  such  priests  is  unknown  in. the 
new  parish,  and  if  there  is  a  reasonable  hope  that  by  the 
change  they  will  reform,  it  is  unquestionably  lawful  to 
transfer  them  to  another  parish.47 

Q.  What  qualifications  are  usually  required  for  the  chief 
civil  offices  in  the  United  Slates? 

A. — I.  Federal  offices.  I.  President  and  Vice-President  of 
the  United  States.  The  qualifications  for  President  and 
Vice-President  are  the  same.  The  candidate  must  be  (a)  a 
natural-born  citizen  of  the  United  States  ;  (£)  at  least  thirty 
years  of  age;  (c]  he  must  have  been  fourteen  years  a  resi 
dent  within  the  United  States.48  2.  United  States  senators 
and  representatives.  Their  qualifications  are  prescribed  by 
the  Federal  Constitution,  and  it  is  presumed  that  the  States 
are  precluded  from  adding  any  other.  A  Federal  repre 
sentative  must  be  twenty-five  years  of  age;  an  inhabitant 
of  the  State  which  he  represents;  and  for  seven  years  a 
citizen  of  the  United  States.  A  Federal  senator  must  be 
thirty  years  of  age;  an  inhabitant  of  the  State  which  he 
represents;  and  for  nine  years  a  citizen  of  the  United 
States.  II.  State  offices. — State  senators  and  representatives 
must,  as  a  rule,  have  resided  in  their  respective  counties  or 
districts  one  year  next  preceding  their  election.  No  per- 
son  can  be  either  a  Federal  or  State  senator  or  representa 
tive  who  holds  any  office  under  the  United  States.49 

4f  Reiff.,1.  c.,  0.248.  4"  Cfr.  Craiss.,  n.  476.  4T  Craiss.,  n.  488 

"  Walker,  p.  97.  «  Walker,  p.  83. 


CHAPTER  IX. 

HOW  A   PERSON   LOSES   DELEGATED  JURISDICTION. 

ISF0  378.  We  have  shown  above  (n.  226  sq.)  how  delegated 
jurisdiction,  voluntary  or  contentious,  is  acquired.  Let 
us  now  see  how  it  is  lost.  Delegated  jurisdiction  is  lost 
chiefly,  i,  by  the  death,  resignation,  transfer,  or  removal  of  the 
person  delegating.1  However,  it  is  necessary  to  distinguish 
between  delegated  jurisdiction  which  is  voluntary  or  extra- 
judicial,  and  that  which  is  contentious  or  judicial.  Now  dele 
gated  jurisdiction  which  is  judicial  lapses  at  the  death,  resig 
nation,  etc.,  of  the  delegans,  provided  the  trial  has  not  as  yet 
begun  by  the  issuing  of  the  citation  (re  adhuc  intcgra\  as  we 
explain  above  (n.  55)  in  the  case  of  rescripta  justitiae.  On 
the  other  hand,  delegated  jurisdiction  which  is  extrajudicial. 
like  a  rescript  of  grace  conferring  a  gratiam  jam  fact  am,  is 
not  lost  by  the  death,  resignation,  etc..  of  the  delegans,  even 
though  the  delegatns  has  made  no  use  whatever,  as  yet,  of  his 
delegated  power  (re  adhuc  intcgra],  as  we  show  above,  n.  56." 
From  this  it  will  be  seen  that  the  faculties  which  our 
bishops  receive  from  the  Holy  See  do  not  expire  with  the 
death  of  the  Pope  conferring  them.'  For  these  faculties  are 
rescripts  of  grace,  not  of  justice.  For  the  same  reason,  the 
faculties  which  rectors  and  assistant  priests  with  us  receive 
from  bishops  do  not  expire  with  the  death,  resignation, 
transfer,  or  removal  of  the  bishop.  2.  By  withdrawal.  When 
and  how  the  delegans  can  withdraw  delegated  jurisdiction, 
see  our  Counter-points,  n.  37  sq.  3.  By  the  death  of  the  person 
delegated,  provided  the  delegated  jurisdiction  was  given  to 
him  personally  (delcgatio  persona/is],  not  merely  on  account 
of  his  office  (delegatio  rcalis}.'  In  order  to  ascertain  when  .^i 
delegatio  is  personalia  or  realis,  it  is  necessary  to  examine 

'Reiff.,  1.  i..  tit.  xxix..  n.  125.  *  Konings.  comp.  n.  151  (6°). 

"  Konings,  Comm.  in  Vac.,  n.  21.  4  Phillips,  1.  c.,  p.  372. 


Losing  Jurisdictio  Dclcgata.  173 

the  formula  delegations:  If  the  instrument  of  delegation 
expresses  the  name  of  the  dclcgatus,  being  formulated,8 
v.g-.,  thus,  "  Tibi  Sempronio  delegamus  hanc  causam,"  the 
delcgatio  is,  as  a  rule,  personalis ;  if  it  mentions  the  office 
and  title  only,  reading,  v.g.,  thus,  "  Episcopo  Novar- 
censi  delegamus  hanc  causam,"  the9  delcgatio  is  generally 
rcalis,  and  passes  to  the  successor  in  office,  even  when  the 
causa  is  adhuc  intcgra.  We  said,  as  a  rule  ;  for  these  formulas 
do  not  always  determine  the10  nature  of  the  delegation.  In 
fact,  sometimes  the  instrument  of  delegation  leaves  it  doubt 
ful  whether  the  delcgatio  is  realis  or  personalis — v.g.,  if  it  men 
tions  not  only  the  name  of  the  dclegatus,  but  also  his  title  or 
dignity,  being  couched,  for  instance,  in  these  words,  "  Tibi 
Antonio  Episcopo  Frisingensi,"  etc.  In  this  case,  the  con 
text,  subject-matter,  etc.,  of  the  instrument  are  to  be  con 
sidered  in  order  to  determine  the  character  of  the  delcgatio. 
Should  no  decision  be  reached  in  this  manner,  the  delcgatio 
must  be  "  looked  upon  as  personalis. 

379.  The  facilitates,  both  ordinariae  and  extraordina- 
riae,  which  our  bishops  hold  from  the  Holy  See,  are 
delegated  to  them  personally,1'-'  and  are  therefore  dcle- 
gationes  personates,  not  rcalcs.  Hence,  these  faculties  lapse 
at  the  demise  of  the  ordinary,  and  do  not  pass  to  the 
successor13  in  office.  The  new  bishop,  therefore,  must  have 
his  faculties  renewed.  A  fortiori,  the  facilitates,  are  not  M 
exercisiblc  by  administrators  of  dioceses,  except  when  they 
are  specially  delegated  to  that  effect  by  the  Holy  See.  The 
facilitates  contained  in  the  Form.  I.  are  usually  delegated  to 
them  either  by  the  bishop,  while  yet  alive,  or  after  his  death 
by  the  metropolitan  or  senior  suffragan  bishop.15 

""Soglia,  vol.  ii.(  p.  450,  g  201.  8  Reiff.,  1.  c.,  n.  126. 

0  Reiff.,  n.  127.  10  Cfr.  Soglia,  1.  c.  "  Reiff,  1-  c.,  n.  I2& 

w  Clr.  Craiss.,  n.  494,  495. 

13  Cfr.  Bened.  XIV.,  De  Syn.  Dioec.,  lib.  ii.,  cap.  ix.,  n.  3. 

14  Cfr.  Cone.  Prov.  Bait.  X  ,  ap.  Coll.  Lac.  Hi.,  pp.  577,  S*4,  58$,  S96.  599- 
"•  Cfr.  Cone.  PI.  Bait.  II.,  n.  96,  97,  98. 


CHAPTER   X. 

HOW  A  PERSON  MAY  LOSE  AN  ECCLESIASTICAL  OFFICE  AND 
THEREFORE  JURISDICTIO  ORDINARIA  (DE  CESSATIONE 
JURISDICTIONS  ORDINARIAE  ET  VACATIONE  OFFICIORUM 
ECCLESIASTICORUM). 

380.  Jurisdictio  is  ordinaria  when  it  is  annexed  to  and 
exercised  by  virtue   of  an  office ;    hence,  a   person  who   is 
appointed  to  the  office  obtains,  ipso  facto,  jurisdictio  ordi 
naria  ;  on  the  other  hand,  one  who  loses  the  office  loses,  eo 
ipso,  jurisdictio  ordinaria.     The  loss  of  the  one,  therefore,  is 
equivalent  to  the  loss  of  the  other,  and  vice  versa.     Now, 
ecclesiastical  offices  may  be  lost,  and  thus  fall  vacant,  not 
only  by  the  death  of  the  incumbent,  but  also,  i,  by  resigna 
tion  ;   2,  translation  ;    3,  privation ;   4,  and  in    several  other 
ways,  as  we  shall  see.     Canonists,  therefore,  properly '  say 
that  a  person  may  lose  an  ecclesiastical  office  in  two  ways : 
either  voluntarily,  as  by  resignation,  or  compulsorily,  as  by 
removal." 

ART.  I. 

Uf  Resignations    (De  Dimissione  sen  Renuntiatione  Officiorun 

Ecclesiast  icoru  m) . 

381.  By  resignation   (renunciatio,  cessio,   resignatio,   spon- 
tanea  dimissio]  is  meant  the  act3  by  which  an  ecclesiastic,  of 

1  Devoti,  lib.  i.,  tit.  viii.,  n.  2.  '  Soglia,  vol.  ii.,  p   198. 

s  Salzano,  lib.  iii.,  p.  257. 

'74 


Losing  an  Ecclesiastical  Office.  175 

his  own  free  will,  gives  up  his  office  or  benefice  into  the 
hands — i.e.,  with  the  consent — of  the  proper  ecclesiastical 
superior.4 

382.  From  this  definition  it  will  be  seen  that  a  resigna 
tion,  in  order  to  be  valid,  must  be,  i,  voluntary — that  is, 
not  extorted  5  by  fear,  violence,  or  deceit  and 6  cunning : 
forced  resignations  are  rescindable.  A  person,  however, 
does  not  suffer7  violence,  properly  speaking,  who,  being 
guilty  of  some  crime,  resigns  his  office  for  fear  of  being  juri 
dically*  deprived  of  it.  2.  Resignations  must  be  wholly 
exempt  from  simoniacal 9  stipulations — i.e.,  bargains  or  con 
tracts  to  give  or  receive  monej^  or  any  other  temporal  thing 
for  the  resignation.  3.  Finally,  the  resignation  must  be  ac 
cepted  by  the  proper  ecclesiastical  superior ;  otherwise  it  is 
invalid  and  of  no  effect,  and  the  resigner  may  be  compelled 
to  reassume  10  his  office.  We  say,  I,  ecclesiastical  superior, 
hence  no  bishop  or  priest  can  resign  into  the  hands  "  or  on 
demand  of  secular  rulers  ;  we  say,  2,  proper  superior,  for  it  is 
a  general  rule  that  an  office  can  be  resigned  into  the  hands 
of  that  superior  only  who  is  1S  vested  with  the  power  of  ap 
pointment  to  such  office.  Thus,  bishops  can  tender  their 
resignations  to  the  Pope  only.  Parish  priests  and  others 
holding  of  the  ordinary  13  must,  as  a  rule,  resign  into  the 
hands  of  the  bishop  of  the  diocese,  and,  according  to  some,14 
into  the  hands  of  vicars  capitular  (administrators  in  the 
United  States)  sede  vacante.  Vicars-general  can  accept 
resignations  only  when  specially  empowered  by  the  bishop 
to  do  so.  We  said  above,  as  a  rule  ;  because  resignations 
which  are  tendered  by  parish  priests  and  the  like  condition- 

4  Phillips,  Lchrb.,  §  85,  p.  161.  *  Ib.,  note  vii. 

*  Soglia,  1.  c.,  p.  199.  '  Reiff.,  lib.  i .,  tit.  ix.,  n.  3. 

'  Craiss  ,  n.  502.  *  Reiff.,  1.  c.,  n.  75-82. 

"  Ib.,  n.  13.  "  Cfr.  Phillips,  Kirchenr.,  vol.  vii.,  p.  849. 

11  Phillips,  Lehrb.,  p.  162.  "  Ib.,  Kirchenr.,  1.  c.,  pp.  850,  851,  $52. 

"  Ib.,  pp.  850,  851  ;  cfr.  Craiss.,  n.  509 


i/6  How  a  Person  may  Lose  an 

ally,  not  absolutely,  can  be  accepted  by  the  Pope  only,  not 
by  bishops." 

383.  Q.  How  many  kinds  of  resignations  are  there  ? 

A.  i.  Resignations  are  tacit  and  express.  They  are  tacit 
(renunciatio  tacita)  when  offices  or  parishes  are  given  up,  not 
in  express  words,  but  by  an  action  which,  according  to  law, 
entails  the  loss  '"  of  the  office — v.g.,  if  a  cleric  in  minor  orders 
gets  married,  or  if  a  person  takes  solemn  vows  in  a  religious 
order  approved  by  the  "  Church.  A  resignation  is  express 
{renunciatio  expressd)  when  the  office  is  resigned  in  express 
words  or 1S  in  writing.  2.  Express  resignations  are  either 
absolute  (renunciatio  pura] — namely,  when  tendered  uncon 
ditionally — or  they  are  conditional  (renunciatio  conditional^} 
when,  for  instance,  persons  resign  their  office  for  the  sake  of 
exchanging  it  for  another  or  in  favor  of  a  third  party  (in 
favorem  tertii) — that  is,  on  condition  only  that  the  office  be 
bestowed,  v.g.y  on  Cains,  a  relative.19  3.  Finally,  we  dis 
tinguish  the  rcsignatio  loci  tantuin  from  the  resignatio  loci  et 
dignitatis.  Thus,  bishops  sometimes,  though  very  rarely,30 
resign  quoad  locum  et  dignitatem  simul,  and  then 2I  they  cannot 
lawfully  perform  any  episcopal  function,  even  with  the  con 
sent  of  the  ordinary.  Nevertheless,  orders  conferred  by 
them  are  valid,  since20  the  cliaracter  orainis  episcopalis  is  in 
delible  and  cannot  be  taken  away  by  man.  Ordinarily 
bishops  resign  in  this  manner,  only  in  order  to  embrace  the 
monastic  state  or  to  prevent  juridical  deposition.23  Bishops 
usually  resign  quoad  locum  tantum,  in  which  case  they  may 
exercise  episcopal  functions  wherever  they  may  be  request 
ed  to  do  so  by  the  Ordinarius  loci" 

11  Phillips,  Lehrb.,  p.  163  ;  cfr.  Soglia,  vol.  ii.,  p.  200. 

'*  Soglia,  1.  c.,  p.  198.  "  Reiff.,  1.  c.,  n.  9.  l-  Soglia,  1.  c.,  p.  iQQk 

"  Reiff.,  1.  c.,  n.  12.  M  Craiss.,  n.  500. 

81  Cfr.  Devoti,  lib.  i.,  tit.  viii.,  n.  7. 

"  Ferraris,  V.  Episcopus,  art.  Hi.,  n.  76-82.  M  Ferraris,  1.  c.,  n.  78. 

34  Ib,  n.  76.  77. 


Ecclesiastical   Office.  1/7 

384.  Q.   What  persons  can  resign  their  offices  ? 

A.  Generally  speaking,  any  ecclesiastic  may,  for  just 
cause,"5  resign  his  office.  We  say,  generally  speaking,  because 
there25  are  several  exceptions.  Thus,  i,  no  cleric,  whether 
sick  or  well  at  the  time,  can  resign  within  twenty  2T  days  of 
his  death  ;  2,  no  person  in  sacred  orders  can,  as  a  rule,28 
resign  his  office  or  benefice  unless  it  be  certain  that  he 

O 

can  live  comfortably  "3  from  other  sources.30  Thus,  priests 
in  the  United  States  cannot  obtain  their  exeat  unless  they 
are  to  be  received  into  another  diocese,  or  have  sufficient 
means  for  an  honest  livelihood,  or  enter  a  religious  com 
munity. 

385.  Conditional  resignations. — These  are  :    I.  Resignations 
tendered  for  the  purpose  of  exchanging  places.     Now,  two 
ecclesiastics  are  said   to  exchange  places  (permutatio  bene- 
ficiormii]  when  they  mutually  "  resign  on  condition  that  the 
office  or  position  of  the  one  be  given  to  the  other,  and  vice 
versa.32     Ecclesiastics  may,  for  just  reasons,  exchange  places 
with  each  other,33  provided  it  be  done  by  authority  of  the 
proper  superior.     Thus,  bishops  can  exchange  sees  with  one 
another  only  by  authority  cf  the  Sovereign  Pontiff;  priests 
can  exchange  places  (v.g.,  parishes)  with  each  other  only  by 
permission  of  the  bishop  in  whose  diocese  the  exchange  is 
to31    take   place.35      Ecclesiastics    exchanging    their    places 
without  the  consent  of  the  respective  superior  are  to  be 
deprived  of  their  positions36  or  offices;    nevertheless,  they 
may  lawfully  arrange  and  agree  S7  among  themselves  before 
hand  as  to  the  exchange  to   be  made  afterwards   with  the 
permission  of  the  bishop.3" 

ir>  Craiss.,  n.  501.  M  Reiff.,  lib.  i.,  tit   ix.,  n.  43.  *  Ib.,  n.  45. 

*"  Ib.,  n.  4f>,  47.  29  Cfr  Cone.  Trid.,  sess.  xxv.,  cap.  xvi.,  d.  R. 

*>  Geriach   p.  275.          3I  Soglia,  vol.  ii.,  p.  200.  w  Gerlach,  p.  275. 

13  Phillips,  Kirchenr  ,  vol.  vii.,  p.  869  seq.  ;  cfr.  ib.,  p.  861. 

14  Devoti.  lit.  i .,  tit  viii.,  n.  16.  **  Cfr.  Reiff.,  1.  c.,  n.  82-90, 
16  Sosjlia.  1.  c.,  pp.  200,  201.  "  Reiff,  1.  c.,  102,  103. 

*  Phillips.  1.  c.,  pp.  86q.  870. 


:  fS  How  a  Person  may  Lose  an 

386. — II.  Another  conditional  resignation  is  that  which 
is  made  in  favorem  tcrtii  or  prospectu  amid — namely,"  when 
an  ecclesiastic  resigns  his  place  only  on  the  express  con 
dition  that  it  shall  be  conferred  upon  a  person  designated  by 
himself.  It  is  commonly  held  that  resignations  of  this  kind 
can  take  place  only  by  explicit  Papal  dispensation,40  not  by 
permission  of  bishops.41  The  resigner  may,  however,  law 
fully  recommend  a  certain  person  to  the  bishop,  and  express 
his  desire  to  "2  see  him  appointed  to  the  office. 

387. — III.  A  third  kind  of  conditional  resignations  is  that 
which  is43  made  cum  reservations  pensionis— namely,  when  an 
ecclesiastic  resigns,44  on  condition  of  receiving  an  annuity  (pcn- 
sio)  from  the  income  of  the  benefice  given  up  by  him.  Gene 
rally  speaking,  resignations  of  this  kind  can  be  accepted  by 
the  Pope46  only,  not  by  bishops.  We  say,  generally  speak 
ing;  for  bishops  may  permit  these  resignations  in  certain 
cases — v.g.,  lest  an  ecclesiastic  who  resigns  his  parish  on  ac 
count  of  old  age 4r>  or  sickness  should  remain  without  suffi 
cient  means  of  support. 

388. — IV.  The  other  conditional  resignations  are  :  i. 
Resignatio  cum  conditionc  rcgressus — namely,  when  the  re- 
signer  gives  up  his  place  on  condition 47  of  being  reinstated 
in  it  at  the  death  of  the  resignee.  2.  Resignatio  cum  con- 
ditione  ingressus,  which  4S  consists  in  this,  that  the  person  ap 
pointed  to  a  place  is  obliged,  even  before  taking  possession 
of  it,  to  leave  it  to  another.  3.  Resignatio  cum  conditione 
aggressus™  by  which  an  office,  beirtg  destined  for  a  person 
under  age  at  the  time,  is  meanwhile  given  to  another,  who 
must  resign  it  when  the  minor  becomes  of  age.  The  jus 
aggressus  and  the  jus  regressus  are  expressly  prohibited  by 

w  Phillips,  1.  c.,  pp.  860,  861.  40  Ib.,  p.  863. 

41  Reiff ,  1.  c.,  106-100.  "  Ib.,  n.  112,  113. 

43  Phill'ps,  1.  c.,  p.  867.  44  Gerlach,  p.  274. 

46  Reiff,  lib.  Hi.,  tit.  xii.,  n.  86-89.  4"  Ib"  n-  89»  QO. 

"  Phillips,  1.  c.,  p  860.  *•  Ib.  *'  Ib. 


Ecclesiastical  Office.  179 

the  Council  of  Trent,60  and  can  be  permitted  by  the  "  Pope 
only. 

389.  Q.  When  do  resignations  take  effect — i.e.,  when  is  a 
resigner  obliged  to  discontinue  the  exercise  of  the  office  re 
signed  by  him  ? 

A.  The  general  rule  is  that M  absolute  resignations  take 
effect  as  soon  as  they  are  accepted  by  the  proper  superior ; 
conditional  resignations,  only  when  the  conditions  agreed 
upon  are  fulfilled.  Hence,  i,  the  resignation  of  a  bishop 
takes  effect — i.e.,  the  see  becomes  vacant — as  soon  as  the 
resignation  is  accepted  in  the  Papal  Consistory  ;  the  bishop 
may,  however,  continue  to  exercise  episcopal  functions  until 
properly  notified E3  of  the  action  of  the  Holy  See  ;  2,  a  parish 
priest  who  resigns  cannot,  once  the  resignation  is  accepted 
by  the  bishop,  exercise  parochial  functions  in  the  parish 
resigned,  except  by  special  permission  of  the  bishop.  Hence, 
the  bishop  should  appoint  a  vicar  or  administrator  to  take 
charge  of  the  parish  until  a  new  rector  is  appointed.64 

390.  Resignation  of  Rectors  in  the  United  States. — Canonical 
parish  priests  can  resign  their  parishes  conditionally  or  un 
conditionally  provided  there  be  just  cause  approved  by  the 
bishop.65     The  same  holds   true  of  removable  rectors,  and 
that  even  in  the  case  where  these  rectors  who  are  amovibiles 
are  regarded  as  the  vicars  of  the  bishop,  and  are  consequently 
vested  only  with  delegated  jurisdiction."      Our  rectors,  there 
fore,  removable  as  well  as   irremovable,  can   resign   in  the 
same  manner  as  canonical  rectors.     As,  however,  our  rectors 
are  generally  ordained  ad  titulum  missionis,  and  as  therefore 
an  unconditional  resignation  is  equivalent  to  giving  up  the 
means  of  support,  they  cannot  be  allowed  to  resign  uncondi 
tionally,  unless  they  prove  that  they  have  other  means  of 
support. 

50  Sess.  xxv..  cap.  vii.,  d.  R.  61  Phillips.  1.  c.,  pp.  871,  872. 

6i  Ib. ,  Lehrb.,  p.  165.  M  Craiss..  n.  511,  512. 

'M  Ib.,  n.  513.  MLeuren.,  For.  Benef.,  p.  3,  q.  279.  "Ib.,  q.  291. 


i8o 


ART.  II. 

Of  Transferring  Ecclesiastics  from  one  Place  to  Another  (Dt 

Trans  latione). 

391.  An  ecclesiastical  office  may  also  become  vacant,  as 
was  seen,   by  reason  of  its  incumbent  being-"  changed  or 
transferred  (translatid)  to  another  place."     Ecclesiastics  can 
not  be  transferred  except  by  authority  of  the  proper  supe 
rior.      Thus,  bishops  are  transferred    by  the   Holy   See  ; 68 
parish  priests  by  their  bishops.59     In  like  manner,  bishops 
cannot,    without   permission   from    the    Holy    See,    transfer 
their  sees  from  one  city  to  another  in  the  diocese,  nay,  not 
even  from  one  church  to  another  in  the  same  city.60 

392.  Cau'ses  that  render  changes  or  transfers  lawful. — It  is 
a  general  principle  that  ecclesiastics  should  not  be  trans 
ferred  from  one  place  to  another  without  sufficient  reasons" 
(causae  justae].     Now,  the  reasons  for  which  bishops,  parish 
priests,  and  the  like  may  be  changed  by  their  respective 
superiors  are  reducible62  chiefly  to  two:   i,  utilitas — v.g.,  if 
the  transfer  is  believed  to  be  conducive  to  the  good  either 
of  the   entire  Church  or  of  a  particular  church,   whether 
episcopal  or  parochial,  to  which  a  person  is  to63  be  trans 
ferred  ;   2,  necessitas — v.g.,  if  a  bishop  cannot  remain  in  his 
diocese,  or  a   parish   priest  in  his   parish,   on   account   of 
the  unwholesomeness  of  the  climate,  or  by  reason  of  perse 
cutions,  etc.64 

393.  Q.  Can  the  Pope  transfer  bishops  even  against  their 
will? 

A.  The  question  is  controverted."     According  to  some 

"  Phillips,  Lehrb.,  §  87,  p.  165.  "  Cfr.  Reiff ,  lib.  i.,  tit.  vii.,  n.  2 

"  Ib.,  n.  3.  6B  Phillips,  1.  c.,  p.  166. 

60  Salzano,  lib.  iii.,  p.  256.  61  Phillips,  1.  c. 

62  Cap.  5  (iii.  19).  63  Reiff.,  1.  c  ,  n.  ro. 

**  Craiss.,  Man.,  n.  522,  523.  **  Ib.,  n.  525.  . 


Ecclesiastical  Office.  181 

canonists,  the  Pope  may  do  so  ex  causa  justa,  but  not"  pr6 
libitu.  The  question  is  of  no  practical  consequence,  since,  at 
the  present  day,  bishops  are  not  transferred  against  their 
will."  Generally  speaking,  a  bishop  is  transferred  only 
from  an  inferior  to  a  greater  see."  We  say,  generally  speak 
ing ;  since,  in  case  special  reasons  so  demand,  a  prelate  may 
be  transferred  from  an  archiepiscopal  to  an  episcopal  see, 
nay,  from  a  bishopric  to  a  parish."9 

394.  Q.  Can  a  bishop  transfer  parish  priests  or  rectors, 
also  with  us,  against  their  will  from  one  parish  or  mission  to 
another? 

A.  There  is  question  either  of  rectors  who  are  inamovi- 
biles,  or  of  rectors  who  are  amovibiles.  I.  Irremovable  rectors, 
also  with  us,  cannot  be  validly  transferred,  except  upon 
these  three  conditions:  I.  There  must  be  a  cause  of  neces 
sity  or  evident  utility  which  is  both  very  grave  and  most 
urgent;7'  v.g.,  where  a  rector  by  violent  temper  and  the  like 
has  drawn  upon  himself  the  implacable  hatred  of  his  pa 
rishioners.  2.  These  causes  must  be  legitimately  established. 
3.  The  transfer  must  be  to  a  parish  which  is  better  than,  or  at 
least  equal  to,  the  former  parish,  both  as  regards  honor  and  in 
come."  For  the  general  law  of  the  Church,  in  common  with 
the  sentiment  of  all  mankind,  looks  upon  a  transfer  to  an  infe 
rior  or  smaller  place  as  reflecting  discredit  and  dishonor  both 
upon  the  better  office  or  place  itself  and  upon  the  person 
transferred.  Thus  in  1198  Pope  Innocent  III.,  in  a  decretal 
letter,  embodied  in  the  general  law  of  the  Church,  severely 
reproaches  the  Patriarch  of  Antioch  for  having  transferred 
an  ecclesiastic  to  an  inferior  or  minor  place,  and  thus  belittled 
and  disgraced  the  ecclesiastic  transferred  to  a  minor  place. 
His  words  are:  "  Miramur  quod  L.  transtulisti,  tt  novo 
quodam  mutationis  genere  parvificasti  majnrem,  et  magnum 

*6  Reiff..  1.  c..  n.  20-27.         67  Phillips,  Lehrb.,  p.  166.          68  Reiff.,  1.  c,,  n.  7, 

69  Ferraris    V.  Ep;        pu<v  ..rt.  iii..  n.  4^.  C;.p    5,  />e  •  •'e>:  Perm.      i.,  19). 

11  S    C.   C.     Dec.    IQ,  i.-sq;   Pr-el.   S.   Sulp.,  v.,1.   iii.,  n.  693,  Acta        Sedis, 
vol.  11.,  p    284. 


1 82  How  a  Person  may  Lose  an 

quodammodo  minorasti."  7"  This  Pontiff  reiterates  these  same 
sentiments,  in  as  strong  language  as  possible,  in  his  decretal 
letter  Licet  in  tantuin™  written  in  1199  to  tne  Bishop  01 
Mayence,  Germany. 

This  law  is  based  upon  and  consonant  with  the  sentiment 
and  natural  ieelings  of  all  mankind.  In  fact,  as  a  transfer  to- 
a  better  parish  or  place  is  considered  by  men  an  honor  and  a 
promotion,  so  inversely,  the  transfer  to  a  worse  one  is  re 
garded  by  them  as  a  humiliation  and  a  disgrace,  and  as  lower 
ing  the  transferee  in  the  estimation  of  others.  Men  will  gen 
erally  prefer  to  give  up  an  office  altogether  rather  than  be 
put  down  to  a  minor  grade  or  office.  Their  feeling  in  this 
matter  arises  from  the  fact  that  not  unfrcquently  it  is  con 
sidered  a  greater  disgrace  to  be  put  back  or  transferred  to 
a  minor  place  than  to  be  dismissed  altogether  74  Accord 
ingly,  canonists  all  agree,  as  we  shall  show  more  fully  in  the 
third  volume  of  this  work,  that  a  transfer  to  a  worse  or 
minor  place,  inflicting,  as  it  does,  dishonor  and  also  diminu 
tion  of  income,  is  a  punishment  <  and  is  placed  on  the  same 
footing  with  dismissal  proper  or  privatio™ 

It  is  on  tiiese  principles  that  the  Holy  See  always  re 
•juires  that  when  a  parish  priest  is  transferred  for  causes 
~>ther  than  criminal,  he  must  be  given  a  parish  better  than 
>r  at  least  equal  to  his  former  parish,  and  that  he  can  be 
i  ransferred  to  an  inferior  one  only  in  punishment  of  delin 
quencies.76 

395.  II.  Removable  rectors,  also  with  us,  can  be  transferred 
even  against  their  will,  for  cause?-  Jess  grave  and  imperative 
than  are  required  for  the  transfer  of  irremovable  rectors,  yet 

72  Cap.  I,  De  Transl.  (i.,  7).  «  Cap.  4.  De  Transl.  (i.,  7). 

14  Cfr.  Pierantonelli,  1.  c.,  p.  107  sq 

15  Walter,  §  s.yj;   Permaneder,  §§  274,  275,  Phillips,  §  188. 

16 3.  C.  C.  Eies'ett...  Sept  21.  1742;  S.  C.  C.  Limbur*.,  Dec.  19,  1857;  S.  C.  C., 
Dec.  ±2,  1860;  cf.  A.CU  S.  Sedis,  vol.  i.,  p.  519;  S.  C.  C.,  April  26,  1871;  cf. 
Analecta,  1875,  p.  "^79. 


Ecclesiastical  Office.  183 

not  without  grave  and  reasonable  cause,  proved  or  verified 
by  the  bishop,  at  least  by  an  extrajudicial  investigation. 
Thus  the  S.  C.  cle  P.  F.,  in  its  answer  Ad  Dubia  regarding  the 
Instruction  of  July  20.  1878,  speaking-  of  our  removable  rec 
tors,  decrees :  Episcopi  vero  curent  ne  sacerdotes  sine  grain  et 
ralionabili  causa  de  una  ad  a  Ham  missionem  invites  transfcrant. 
Likewise,  the  S.  C.  C.  in  Una  Cii'itatcn.,  Dec.  1585,  decided  in 
resrard  to  rectors  and  others  ainovibiks  ad  nutum,  as  follows: 

O 

Ne  ab  or  dinar  io  qitidem  vicarinm  cnratum  amoveri  posse,  nisi 
ex  causa  legitima  atque probata."  Hence  the  secretary  of  the 
S.  C.  C.,  in  his  folium  on  the  removal  or  transfer  of  a  re 
movable  rector  brought  before  the  Sacred  Congregation, 
Dec.  1 8,  1847,  says:  5.  Congregatio  earn  visa  cst  semper  retinere 
doctrinam,  ut  sine  causa  removeri  ncqucat  sive  capellanus  siiic 
incarius  curatus  [rector  amovibilis}  uti  luculentissime  constat  ex 
Spoletana  8  Julii  1713. a  Again  the  secretary  of  the  S.  C.  C., 
in  his  folium  on  the  transfer  of  a  succursal  rector  in  France, 
.amovibilis  ad  nutum  episcopi,  brought  before  the  Sacred  Con 
gregation  in  1870,  says:  "  Praeterea  illud  quoque  liaud 
praetereundum  puto,  quod  licet  rectores  ecciesiarum  succur- 
salium  amoveri  va leant  ad  beneplacitum  episcopi,  nequcunt 
tamen  amoveri  absque  rationabili  causa.  Unde  limitibus  cir- 
cumscripia  est  episcopalis  potestas.  Quas  limitationes,  eo 
quo  pollet  ingenio,  ingenii  acuniine  Card,  de  Luca  colli- 
git,  disc.  97,  de  Benef.  Man.,  n.  u,  12,  nempe  ne  remotio 
hat  ex  odio  et  malitia  superioris;  ne  ex  amotione  dedecus 
aut  infamia,  aut  alind  grave  praejudicium  amoto  causetur ; 
tinde  emit  ex  quadam  non  scripta  aequitate  competcrc  rccursum 
ad  superiorem,  et  quod  necessaria  sit  aliqua  saltern  sumiiiana 
cognitio  causae ;  unde  necessitas  erumpit  conficiendi  proces- 
sum  saltern  extrajudicialem  et  summarium?' 


11  Causae  Selectae,  Lingen  et  Reuss,  p.  853. 
•  Causae  Selectae,  I.  c. 
b  S.  C.  C.  22  Martii,  1873  ;  Analecta,  1875,  p.  607. 


184  How  a  I'crson  may  Lose  an 

We  have  said,  "at  least,  by  an  extrajudicial  investiga 
tion;''  for  there  are  some  canonists  who  maintain  that  a 
judicial  investigation  must  precede  all  compulsory  transfers 
even  of  removable  rectors,  no  less  than  their  absolute  dis 
missal.  See  Mgr.  Pierantonelli,  now  defensor  S.  Vinculi,  at 
Rome,  in  his  learned  work,  Praxis  Fori  Ecclesiastic!,  p.  107 
sq.,  Romse,  1883.  This  bc/ok  bears  the  Imprimatur  of  the 
Magister  S.  P.  A.,  and  also  of  the  archbishop-vicegerent  of 
Rome,  and  therefore  cannot  be  said  to  advance  an  opinion 
which  is  improbable. 

It  is  therefore  plain  that  the  power  to  transfer  ad  nutum 
does  not  mean  the  power  to  transfer  arbitrarily ;  for,  as 
Lotterus,"  De  Angelis,d  and  canonists  in  general  say,  when 
the  right  is  given  to  the  superior  to  act  or  transfer  ad  nu 
tum,  this  will  or  nutus  must  be  directed  by  reason  and 
natural  justice.  Besides,  where  a  person  is  transferred  for 
causes  other  than  criminal,  the  transfer  must  be  made  in  such 
a  manner  as  not  to  injure  his  reputation  or  inflict  disgrace 
or  any  other  grave  injury  upon  him.  (S.  C.  C..in  Ast.,  27 
Julii  1867,  et  in  Dinien.,  27  Martii  1886;  Acta  S.  Sedis,  vol. 
xix.,  pp.  53,  54.)  Hence  a  superior  or  bishop  who  transfers 
a  removable  rector  without  sufficient  cause,  acts  unjustly; 
Consequently,  the  ecclesiastic  thus  transferred  may  have  re 
course  to  the  superior.  De  Angelis  says  that,  as  a  matter  of 
fact,  when  the  superior  or  bishop  transferring  or  removing 
does  not  give  just  reasons,  or  gives  no  reasons  at  all  for  his 
action,  the  Holy  See,  to  whom  the  person  transferred  has 
recourse,  is  accustomed  to  annul  the  transfer,  and  reinstate 
the  rector  thus  transferred  or  removed.6  Hence  priests 
in  the  United  States  are  not  obliged  to  accept  of  any 
and  every  mission  offered  them  by  the  bishop/  though 

0  De  Re  benef.,  1.  i.,  q.  33,  n.  31  sq. 
d  Prael.,  1.  i.,  t.  28. 
e  Ib.,  n.  7. 

f  Cfr.  Instructio  S.  C.  de  Prop.  Fid.  16  Oct.  1830.  circa  Deer.  Cone.  Provx 
Bait.  I.  in  the  Collection  of  Cone.  Prov.  Bait.,  pp.  64.  6;.  B.ikirnori,  1851. 


Ecclesiastical  Office.  185 

they  are  admonished  "  ut  non  detrectent  vacare  cuilibet  mis 
sion!  ab  episcopo  designatae."  Of  course,  no  priest  can 
leave  his  mission  without  permission  from  his  bishop." 

396.  Effects  of  Translation. — The   office,   whether   it   be 
that  of  a  bishop  or  pastor,  from   which  a  person  is  trans 
ferred,  becomes  vacant,80  ipso  jure,  by  the  transfer  ;  hence  its 
income  no  longer  goes  to  the  person  transferred. 

397.  Q.   At  what  precise  time  does  a  person  tiansferred 
lose  jui  xsdiction  in  the  diocese  or  parish  from  which  he  is 
changed  ? 

A.  There  is  question  of  the  translation  either  of  a  bishop 
from  one  see  to  another,  or  of  an  ecclesiastic  from  an  in 
ferior  to  a.  higher  position — v.g.,  from  a  parish  to  a  bishopric 
— or,  finally,  of  an  ecclesiastic  to  a  non-prelatical  office — v.g., 
from  one  parish  to  another.81  i.  If  a  bishop  is  transferred 
at  his  own  request,83  or  with  his  knowledge  and  consent,  he 
loses  jurisdictio  ordinaria  in  the  diocese  from  which  he  is 
changed  83  the  moment  he  receives  certain  information  that 
his  translation  has  been  decreed  in  Papal  Consistory.  It 
matters  not  whether  the  information  comes  through  letters 
from  the  Secretary  of  the  Sacred  College,  or  in  any  other 
way,  provided  it  is  such  as  may  be  relied  upon.  Nay,  the 
very  moment  a  bishop  is  transferred  in  Consistory,  and  con 
sequently  before  he  is  informed  of  the  fact,  he  loses  the 
power  of  appointment  to  parishes  that  become  vacant  at 
the  time.84  If,  however,  a  bishop  is  transferred  without  his 
knowledge,  he  does  not,  as  a  rule,  lose  jurisdiction,  as  stated 
above,  except  on  giving  his  consent."  Practically  speaking, 
however,  this  supposition  is  of  no  consequence  ; 88  for,  as 
Benedict  XIV."  writes,  juxta  vigentem  disciplinam,  "  transla 

"  Cone.  PI.  Bait.  II.,  n.  108.  "  Cfr.  Instructio,  cit. 

*•  Phillips,  1.  c.,  p.  167.          "  Craiss.,  n.  528.  M  Reiff.,  1.  c.,  n.  35-41. 

M  Bouix,  De  Episc.,  vol.  i.,  pp.  390,  391.  **  Ib.,  vol.  i.,  p.  391. 

**  Ferraris,  V.  EpSscopus,  art.  iii  ,  n.  62.  "*  Bouix, I.e.,  pp.  390,  391 
"  De  Syn.  Dioec.,  lib.  xiii.,  cap.  xvi.,  n.  13. 


1 86  How  a  Person  may  Lose 


an 


tiones  nunc  minime  fiunt,  nisi  praevia  scientia  et  consensu 
episcopi,  qui  ab  una  ad  aliam  Ecclesiam  est  transferences." 
2.  In  the  second  case,  if,  for  instance,  a  pastor  is  elevated 
to 88  the  episcopate,  he  loses  his  parish,  ipso  facto.,  the  mo 
ment  he  is  consecrated  bishop,  or  when  the  time  for  the 
consecration  has  elapsed— to  wit,  three  months  after  being 
confirmed  by  the  Holy  See.*9  3.  A  parish  priest,  for  in 
stance,  who  is  transferred  from  one  parish  to  another,  loses 
the  old  as  soon  as  he  has,  or  could  have,  obtained  peaceable 
possession  of  the  new  parish.80 

398.  Q.  Until  what  time  can  a  person  receive  his  income 
or  salary  from  the  church  whence  he  is  transferred  ? 

A.  i.  A  bishop  who  is  transferred  from  one  see  to  an 
other,  with  his  own  consent,  can  draw  his  income  from  the 
diocese  which  he  leaves  only  up  to  the OI  moment  his  trans 
lation  is  pronounced  in  Papal  Consistory.  If,  however,  a 
bishop  is  transferred  without  his  knowledge,92  he  may  draw 
his  income  in  the  usual  manner  from  the  old  diocese  until  he 
gives  his  consent  to  the  translation.  2.  An  ecclesiastic  (v.g., 
a  pastor)  promoted  to  a  bishopric  has  the  right  to  draw  his 
salary  from  his93  parish  or  office  down  to  the  time  of  his 
consecration,  or  till  the  lapse  of  three  months  after  his  con 
firmation  as  bishop.  3.  Pastors,  for  instance,  who  are  trans 
ferred  from  one  parish  to  another,94  may  receive  the  income 
of  the  old  parish  until  they  have  possession  of  the  new  one. 
This  is  also  the  custom  of  this  country. 

399-  Q-  To  whom  belong  the  proceeds  of  an  office  dur 
ing  its  vacancy  ? 

A.  To  the  vacant  church.  Hence,  the  revenues  of  a 
vacant  bishopric  or  parish  should  be  used  to  defray  the 
necessary  expenditures  of  the  vacant  church  :  what  is  left 

88  Cfr.  Blackstone,  i  Com.,  ch.  xi  ""  Craiss.,  n.  529. 

"Cap.   Licet  Episc.  xxviii.,  De  Praebendis  in  6to. 
"  Bencd.  XIV.,  J.  c.,  n.  7.  «  Ib.,  n.  13. 

**  Craiss.,  n.  532.  «  Ib  _  n   $33 


Ecclesiastical  Office.  187 

goes,  as  a  rule,  to  the  successor  a6  in  office.  This,  it  would 
seem,  applies  also  to  the  cattiedraticum  received  by  bishops 
in  the  United  States. 

400.  Q.  How  are  the  fruits  or  products  of  a  benefice  to 
be  divided  between  the  one  who  is  transferred  or  has  re 
signed  and  his  successor  in  office  ? 

A.  This  question  has  refe/ence  9"  chiefly  to  the  produce, 
fruits,  or  crops  gathered  from  tracts  of  land  often  attached 
to  parishes  in  Europe,  and  sometimes  also  in  the  United 
States."7  The  question,  as  stated,  is  controverted.  Fer 
raris,9'  with  others,  holds  that  only  the  crops  which  are 
already  harvested  (fructus  percept i)  belong  to  the  predeces 
sor  "  or  first  titulary,  while  the  crop  not  yet  gathered  in,  or 
the  fruits  which  are  still  hanging  or  unplucked  (fructus  pen* 
dentcs  et  inexacti],  pertain  to  the  church  or  the  successor  in 
office.  Others,  however,  maintain  that  the  fructus  pendcntes 
also  belong  to  the  person  transferred,  pro  rat  a  u")  temporis. 
The  maintenance  of  bishops  in  the  United  States  is  derived 
from  the  cathedraticum ""  and  the  salary  of  the  cathedral. 
In  the  case  of  translation  or  death  of  a  bishop  with  us  it 
would  seem  that  the  cathedraticum,1"2  though  already  re 
ceived  by  the  transferred  or  deceased  bishop,  should  be 
divided,  pro  rata  temporis,  between  the  predecessor  or  his 
heirs  and  the  successor  in  office. 

ART.  III. 

How  Ecclesiastics   are   dismissed  from    Office,    also    in   the 

United  States. 

(Privatio.] 

401.  Having,  in  the  foregoing  article,  spoken  of  transfers, 
we  come  now  to  dismissals.     By  dismissal  (privatioj  is  meant 

95  Craiss.,  n.  534.  9*  Cfr.  Ferraris,  V.  Episcopus,  art.  iii.,  n.  65. 

81  Cfr.  Kenrick,  Mor.  Tract,  x.,  n.  36.         9S  L.  c..  n.  63-66. 
99  Cfr.  Craiss.,  n.  535.  I0°  Ap.  Ferraris,  1.  c.,  n.  66. 

101  Cfr.  our  Notes,  etc.,  pp.  86,  87.  loi  Cfr.  Cone.  PI.  Bait.  II.,  n.  ioa 


1 88  How  a  Person  may  Lose  an 

not  simply  a  transfer  from  one  office  or  parish  to  another, 
but  an  absolute  removal  from  office.  Dismissal  is  of  three 
kinds:  i.  Privatio,  by  which  an  ecclesiastic  is  merely  re 
moved  from  office  or  parish,  but  not  disqualified  from  hold 
ing  offices  in  future.103  2.  Depositio,  by  which  an  ecclesiastic 
is  not  merely  dismissed,  but  also  disqualified  forever  to  hold 
office  in  future,  or  to  exercise  ecclesiastical  functions.  3.  De- 
gradatio,  moreover,  causes  the  loss  of  ecclesiastical  privi 
leges,  especially  of  \\\e  privilegiiim  fori  et  canonist  We  shall 
at  present  speak  more  directly  oiprivatio,  or  simple  dismissal, 
rather  than  of  deposition  or  degradation.  However,  it  is 
plain  that  what  is  said  respecting  dismissal  applies  a  fortiori 
to  deposition  and  degradation.  For  deposition  or  degrada 
tion  is  nothing  else  than  dismissal  in  an  aggravated  form. 

402.  According  to  the  present  discipline  of  the  Church, 
clerics  holding  ecclesiastical  appointments  are  of  two  kinds: 
Some  are  appointed  for  life  and  are  irremovable;  others  are 
not  appointed  for  life,  but  ad  beneplacitum, — i.e.,  for  an  indefi 
nite  period, — and  are  removable.    Accordingly,  we  shall  point 
Out  under  separate  headings  how  both  these  kinds  of  eccle 
siastics  are  deprived  of  their  offices. 

§  i.  How  "  irremovable'"  incumbents  are  dismissed. 

403.  The  offices  whose  incumbents  are  inamovibiles  are 
chiefly  those  of  bishops,  canons,  and  canonical  parish  priests. 

404.  I.  Dismissal  of  Bis/tops  from  their  Office. — Jansenists 
and  no  small  number  of  Gallican  authors  assert  that,105  prior 
to   the   Council    of   Sardica  (anno  347),   the   right   to  pro 
nounce  definitively  sentence  of  deposition   against    bishops 
was  vested  exclusively   in  provincial  councils,  so  that  not 
even   the   right  of  appeal  to  the  Holy  See  was  allowed.105 

103  Phillips,  Lehrb..  §  1 88,  p.  396. 

104  Reiff..  1.  v  ,  t.  37.  n.  22  sq.  )06  Cfr.  Craiss.,  n.  540. 
106  Cfr.  Bouix.  De  Episc.,  vo!,  i..  pp.  318,  319. 


Ecclesiastical  Office.  189 

This  assertion,  it  need  scarcely  be  said,  is  witnout  even  a 
shadow  of  foundation.  Pope  Julius  I.  (a.  336-352),  for  in- 
stance,  in  his  letter  to  the  10S>  Arian  bishops,  by  whom  Atha- 
nasius  uo  had  been  deposed,  explicitly  1U  asserts  that,  accord 
ing  to  the  custom  or  discipline  then  prevalent  in  the  Church 
(namely,  in  the  fourth  century),  final  sentence  should  not  be 
pronounced  upon  bishops  by  provincial  councils,  except 
by  command  or  direction  of  the  Holy  See.  In  like  manner, 
Pope  Gelasius I1J  (492-496),  in  his  epistle  to  the  bishops  of 
Dardania,  distinctly  affirms  that  the  Holy  See,  in  accordance 
with  established  tisage  {more  major  um),  not  unfrequently  rein 
stated  bishops  who  had  been  deposed  by  provincial  councils. 
Hence,  we  may  safely  lay  down  the  following  proposition  : 
The  power  of  deposing  bishops  was  at  all  times  reserved  exclu 
sively  to  the  Roman  Pontiff"*  Bishops,  it  is  true,  were  not 
unfrequently,  down  to  the  Middle  Ages,  deposed  by  provin 
cial  councils ;  but  this  judgment  could  be  set  aside,  nay,  it 
would  seem  had  no  effect,  as  a  rule,  unless  affirmed  by  the 
Holy  See.  Provincial  councils,  therefore,  at  most,  were 
courts  of  the  first  instance  (in  prima  instantia),  at  least  in 
some  sense. 

405.  Discipline  of  the  Church  at  the  Present  Day  relative  to 
the  Dismissal  of  Bishops.  —  I.  The  causae  major es11*  criminales 
against  bishops — those,  namely,  which  merit  deposition  (de 
posit  to)  or  deprivation  (privatio) — can  be  decided,  even  in 
prima  instantia,  by  the  Sovereign  Pontiff  only.114  The  ex 
clusive  reservation  of  this  right  to  the  Pope  began  in  the 
Middle  Ages,116  and  was  confirmed  by  the  Council  of  Trent. 
The  right  itself  is  inherent  in  the  Primacy  ;  the  Pope,  as  the 

**  Craiss.,  n.  541.  no  Cfr.  Labbe,  Cone.,  torn,  ii.,  p.  494. 

111  Cfr.  Wouters,  Hist.  Eccl.,  vol.  i.,  p.  96. 

M  Cfr.  Darras.  Eccl.  Hist.,  vol.  ii.,  p.  46. 

111  Bouix,  De  Epis.,  vol.  i.,  p.  322.  m  Ib.,  p.  323 

114  Cone.  Trid.,  sess.  xxiv.,  cap.  v.,  d.  R. 

"•  Phillips,  Lehrb.,  §  90.  pp.  187,  188. 


IQO  How  a  Person  may  Lose  an 

chief  pastor,  is  the  judex  ordinanus  of  bishops.  2.  If  crimi 
nal  causes  of  bishops  are  tried  in  Rome,  the  Sovereign  Pon 
tiff  should  personally  take  cognizance  of  them  ;  m  de  jure 
extraordinario,  however,  he  may,  in  fact  does,  authorize 
others — v.g.,  committees  of  cardinals  "" — to  act  in  his  stead. 
Thus,  at  present,  the  .S.  C.  Episcoporum  takes  cognizance  of 
grave  charges  against  bishops,  and  even  pronounces  sen 
tence  of  deposition,  facto,  however,  verbo  cum  Sanctissimo 
(i.e.,  Papa)  per  secretarium.  Criminal  charges  against  bishops 
in  the  United  States,  and  missionary  countries  in  general, 
are  adjudicated  upon  by  the  Propaganda.  3.  If,  however, 
the  hearing  of  the  case  or  trial  must  take  place  m  on  the 
spot,  or  in  the  province  to  which  the  accused  bishop  be 
longs  (v.g.,  because  the  evidence  sent  to  Rome  does  riot  suf 
ficiently  establish  the  guilt  of  the  defendant),  the  Pope 
should,  as  a  rule,  appoint  none  but  archbishops  or  bishops  to 
investigate  the  case  and  report  the  facts  to  the  Holy  See, 
by  whom  alone,  even  in  this  instance,  judgment  is  to  be 
pronounced.  4.  The  less  criminal  causes  of  bishops  are  de 
termined  upon  by  provincial  councils.  5.  The  Roman  Pon 
tiff  cannot,120  at  least  lawfully,  depose  bishops  except  for 
legitimate  cause.  Nor  should  he,  as  a  rule,  depose  them 
without  trial.  We  say,  as  a  rule  ;  '"  for  all  Catholic  writers 
seem  to  agree  that,  under  certain  circumstances— when, 
namely,  the  welfare  of  the  Church  so  demands — bishops 
may  be  deposed  without  the  ordinary  forms  of  judicature, 
as  was  done  in  France  in  i8oi.122 

406. — II.  Canons,  and  the  greater  number  of  beneficiaries, 
are  also,  though  only  by  ecclesiastical  institution,  irremov 
able.  Hence,  they  are  not  deposable,  save  by  trial  and 
juridical  sentence.123 


117  Bouix,  1.  c.,  vol.  i.,  p.  324.  "•  Cfr.  ib.,  p.  329. 

119  Cone.  Trid.,  sess.  xxiv..  cap.  v.,  de  Ref.  Iao  Craiss.,  n.  549. 

ttl  Ib.,  n.  550.  1MIb.  mlb.,n.  551. 


Ecclesiastical  Office.  191 

407.  III.  Parish  Priests  proper  are  also,  according  to  the 
present  general  law  of  the  Church,  irremovable.''"     However, 
this  is  not  to  be  understood   in  the  sense  that  these  rectors 
can  in  no  case   be  removed,  but  simply  in  the  sense  that 
they  cannot  be  dismissed  from  their  parishes  save  for  certain 
sufficient  causes  and  by  certain  forms  of  law.     What,  then, 
are  these  causes  and  these  formalities?     We  shall  presently 
give  the  answer  under  the  subjoined  question.     We  observe 
with  Father  Konings  (comp.  n.  1693),  that  the  withdrawal  of 
faculties  (revocatio  facultatuiri)  with  us  is  equivalent  to,  and 
therefore  can  be  inflicted  only  in  the  same  manner  as,  priva 
tion  proper  {privatio parochiae).™ 

§  2.  Causes  and  Manner  of  Dismissal  of  irremovable  Rectors, 
also  in  the  United  States. 

408.  Q.  For  what  causes  and  in  what  manner  can  rectors 
who  are  canonical  parish  priests,  and  who  are  consequently 
irremovable,  be  dismissed  from  their  parishes? 

A.  i.  Only  for  crimes;™*  2,  which  are  very  grave;  3,  and 
expressly  stated  in  law  ;  4,  and  upon  a  regular — i.e.,  formal  or 
solemn — canonical  trial  (serv at o  juris  ordine).™  We  say,  only 
for  crimes;  now,  what  are  the  particular  crimes  for  which 
dismissal  can  be  inflicted  ?  We  shall  give  the  answer  in  the 
following  article.  \Ve  say  again,  upon  a  trial;  consequently 
privation  of  parish  or  dismissal  cannot,  be  inflicted  ex  in- 
formata  conscientia.  In  fact,  the  Council  of  Trent  empowers 
bishops  merely  to  inflict  suspension,  but  not  dismissal  ex  in- 
formata  conscientia  ™  We  say  also,  that,  the  trial  must  be  a 
formal  canonical  trial.  Hence  a  summary  canonical  trial  is 
not  sufficient.  However,  the  S.  C.  EE.  et  RR.,  by  its  In 
struction  of  June  1 1, 1880,  modified  this  prescription  of  canon 

1-24  Phillips.  Lehrb.,  p.  342.  §  168.  Ii5  Konings,  n.  1693. 

156  Can.  38.  c.  16,  q.  7;  cap.  Conquerente  7  (ii.  13). 

181  Bouix,  De  Par.,  p    365. 

128  Cone.  Trid.,  sess.  xiv. ,  c.  i.  De  Rcf. ;  Bouix,  De  Jud.,  vol.  ii.,  pp.  341,  354. 


IQ2  How  a  Persoji  may  Lose  an 

law  by  expressly  authorizing  Ordinaries  of  Catholic  coun 
tries  in  which  canon  law  obtains  to  make  use  of  the  sum 
mary  trial  laid  down  in  the  above  Instruction,  whenever  it 
was  impossible  or  inexpedient  to  observe  the  formalities  of 
the  regular  or  solemn  canonical  trial.  Of  course  the  proofs  of 
guilt  must  always  be  full  and  conclusive,  no  matter  whether 
the  trial  is  solemn  or  only  summary,  In  other  words,  dis 
missal  can  be  inflicted  only  when  the  guilt  is  fully  (probatio 
plena]  established  in  the  trial.  Half  proof  {probatio semiplend) 
is  never  sufficient  for  conviction.129 

fS|P  409.  Q.  How  are  irremovable  rectors  in  the  United 
States  dismissed  from  their  parishes  or  missions  ? 

A.  We  premise:  There  are  at  present  two  kinds  of 
rectors  with  us.  Some  are  irremovable;  others  are  not. 
We  now  answer  in  the  words  of  the  Third  Plenary  Council  of 
Baltimore:1''0  "Rector  missionarius  permanenter  institutus 
seu  inamovibilis,  a  sua  missione  definitive  removeri  non 
poterit,  nisi  ob  causam  canonicam,  et  tarn  in  remediis  praeven- 
tivis  quam  repressivis  servata  forma  procedendi  juxta  nor- 
mam  Instructionis  S.  Congregationis  de  Propaganda  Fide,  de 
cognoscendis  et  defmiendis  causis  criminalibus  et  discipli- 
naribus  clericorum,  quae  incipit  Cum  Magnopere  nuperrime 
ad  Episcopos  Foederatorum  Statuum  Americae  Septentrio- 
nalis  directae."  From  this  it  will  be  seen  that  our  irremov 
able  rectors  can  be  dismissed  only  for  crimes  expressly 
stated,  and  by  trial,  which,  however,  is  always  summary 
with  us,  and  never  solemn. 

§  3-   Offences  for  which  Irremovable  Rectors  may  be   deprived 
of  their  Parishes,  also  in  the  United  States. 

410.  We  have  said  (n.  408)  that  parish  priests  can  be  dis 
missed  only  for  crime.  Here  the  question  arises  :  What  are 
the  crimes  for  which  irremovable  rectors  also  in  the  United 

m  Bouix,  De  Par.,  p.  367.  13°  N.  38. 


Ecclesiastical  Office.  193 

States,  can  be  dismissed?  Speaking  in  general,  the  crime 
must  be  (a)  not  merely  grave,  but  very  grave  and  atrocious. 
For  dismissal  is  a  most  severe  punishment.  Now  there  must 
always  be  a  just  proportion  between  the  crime  and  its  pun 
ishment,  (b)  It  must  be  expressly  stated  \\\  law.1"  This  holds 
true  whether  the  dismissal  is  inflicted  ipso  jure  or  per  se nten^ 
tiam  judicis.™  The  law  gives  the  Ordinary  a  certain  amount 
of  discretionary  power  in  the  infliction  of  minor  punishments, 
but  does  not  allow  him  to  impose  those  which  are  severe, 
except  in  cases  expressly  stated.  Hence,  as  Reiffenstuel  (1.  c.) 
says,  dismissal  is  never  to  be  inflicted  save  in  the  cases  ex 
pressed  in  law.  Having  discussed  the  general  character  of 
the  crimes  requisite  for  dismissal,  we  shall  now  enumerate 
the  particular  offences  that  can  be  visited  with  dismissal. 

fSiT^n.  Q-  What  are  the  particular  crimes  for  which 
dismissal  can  be  inflicted  upon  irremovable  rectors,  also 
with  us? 

A.  We  premise;  According  to  law,  dismissal  is  inflicted 
in  two  ways:  I.  Ipso  Jure;  in  this  case  no  condemnatory  sen 
tence  is  required,  the  penalty  being  inflicted  by  the  law 
itself.133  As  a  rule,  however,  a  declaratory  sentence  is  neces 
sary,  and,  consequently,  parish  priests  are  not,  generally 
speaking,  bound  in  conscience  to  lay  down  their  office  before 
their  guilt  has  been  judicially  declared.™*  Nevertheless,  the 
sentence  in  this  case  is  retroactive — i.e.,  takes  effect  from 
the  time  the  crime  was  committed,  not  merely  from  the 
time  sentence  was  pronounced.135  2.  Per  sententiam;  in  this 
case  a  condemnatory  sentence  is  indispensable136 — i.e.,  the 
guilty  parish  priest  is  to  be  actually  sentenced  to  dismissal 
from  his  parish.  Such  sentence  takes  effect  only  from  the 
moment  it  is  pronounced.137 

181  Can.  Apostolus  i,  Dist.  Si.  I3i  Reiff.,  1.  iii.,  t.  5,  n.  368,  370. 

133  Reiff.,  1.  c.,  n.  368.  134  Ib. 

135  Bouix,  De  Paroch  ,  pp.  368,  369.  13S  Cniiss  ,  n.  557. 

131  Reiff.,  1    c..  n.  369. 


194  How  a  Person  may  Lose  an 

412.  We  now  answer  :  I.  The  offences  for  which  irremov 
able  rectors,  also  in  the  United  States,  are  ipso  jure  deprived 
of  their  parishes  or  missions  are  chiefly  : 13S  i.  Heresy.  2.  Fal 
sification  of  apostolic  letters.  3.  Assassination;  by  assas 
sins  we  here  mean  not  only  those  who  commit  the  deed, 
being  hired  to  do  so,  but  also  those  who  hire  them."''  4. 
Killing  or  striking  a  cardinal  or  bishop."0  5.  Procuring 
abortion.  6.  Sodomy.  7.  Simony;  the  penalty  of  dismissal 
from  parish  is  incurred  only  by  simonia  realis,  confidentialis, 
et  mixta,  not  by  simonia  ment  alls'"  8.  Duel,  even  when 
death  does  not  ensue.  9.  Usurpation  of  the  property  of  any  . 
church  or  locus  pins. '"  10.  If  a  parish  priest,  without  hav 
ing  leave  from  the  Holy  See,  alienates,  except  in  cases  per 
mitted  by  law,  property  belonging  to  his  parish.  1 1'.  If  he, 
having  been  improperly  promoted  to  sacred  orders — v.«.,per 
saltum,  without  a  canonical  titiilns,"*  or  without  letters  di- 
missory,  or  betore  the  legitimate  age — presumes  to  exercise 
the  orders  thus  received.  12.  For  omitting  to  receive 
orders  within  a  year.  Thus,  if  a  person  not  yet  ordained 
obtains  a  parish,  h?  is  bound,  under  pain  of  losing  his  parish 
ipso  jure,  to  receive  the  order  of  priesthood  within  one  year 
from  the  time  of  his  appointment.1"  This  penalty,  however, 
is  not  incurred  if  the  appointee  was  lawfully  hindered  from 
receiving  orders  within  the  prescribed  time— v.g.,  by  sick 
ness,  etc. 

413.— II.  The  offences  to  which  dismissal  from  parish  is 
annexed  only  post  judicissententiam  are  chiefly  :14D  i.  Neglect 

138  Cfr.  our  Notes,  p.  119.  '*>  Craiss.,  n.  558. 

140  Bouix,  De  Paroch.,  p.  374.  m  Ib.,  p.  374. 

142  Soglia,  vol.  ii.,  p.  204. 

143  Bouix,  1.  c..  p.  372.  '•»•»  Bouix.  De  Paroch.,  pp.  370,  371. 
146  A  number  of  bishops  from  Germany  proposed  at  the  Vatican  Council  that 

simplex  foinicatio  notoiia.  concubinatus  manifestus,  ebnetas  necnon  prodigalitai 
incorrigibilis  atque  scandalosa  should  also  constitute  legitimate  causes  for  dis 
missal  from  canonical  parishes.  (Martin,  1.  c.,  p.  173.) 


Ecclesiastical  Office.  195 

to  wear  a  becoming  clerical  dress.146  2.  Non-residence  in 
the  parish.147  3.  Usury,  drunkenness,  gambling,  murder, 
perjury,  theft,  and  the  like.  4.  Insordescentia  in  censura. — A 
parish  priest  who  falls  into  excommunication  or  suspension 
cannot  be  dismissed  simply  because  he  is  under  censure,14* 
but  only  when,  with  obdurate  heart,  he  remains  for  a  year 
under  censure,  and  thus,  so  to  say,  contemns  the  authority 
of  the  Church.  5.  If  a  parish  priest  has  become  irregular, 
because  of  having  committed  an  offence  punishable  with  dis 
missal.  149  Concubinage  and  simple  fornication.  It  is  a 
mooted  question  whether,  de  jure  commnni,  a  bishop  can 
without  previously  ivarning  or  suspending  the  guilty  parish 
priest,  proceed  immediately  to  inflict  dismissal  for  repeated 
acts  of  fornication,  or  even  for  one  act  only."0  We  say,  de 
jure  communi ;  for,  where  custom  sanctions  it,1&1  dismissal  in 
such  case  may  undoubtedly  be  inflicted  at  once.1'"''  Again, 
when  there  is  proof  merely  of  familiarity  with  a  woman  of 
bad  fame,  but  not  of  carnal  acts,153  the  bishop  cannot  proceed 
to  dismissal  except  after  he  has  previously  warned  or  sus 
pended  the  guilty  parish  priest.15' 

Jgir3  414.  To  these  crimes  for  which  dismissal  is  impos- 
able,  also  with  us,  "  per  sententiam  judicis,"  the  Third  Plen 
ary  Council  of  Baltimore  has  added  the  following  for  the  dis 
missal  of  our  irremovable  rectors:1"  i.  "  Inobedientia  per- 
tinax  in  re  magni  moment  i  regulis  ab  Ordinario  sive  pro  ad- 
ministratione  ipsarum  etiam  temporalium  rerum  suae  mis- 
sionis,  sive  pro  oneribus  dioecesanis  sublevanclis.  2.  Aperta 
detrectatio  mandatorum  Ordinarii  post  repetitas  admoni- 
tiones  ad  scholas  catholicas  sustentandas  cum  gravi  earum 

146  Cone.  Trid.,  sess.  xiv.,  cap.  vi.,  d.  R.  M1  Soglia,  vol.  ii.,  p.  204, 

148  Bouix,  1.  c.,  pp.  372,  373.  U9  Ib.,  p.  373- 

150  Ib  ,  pp.  375,  386.  1S1  Ib.,  p.  393- 

152  Cfr.  Cone.  Trid.,  sess.  xxv.,  cap.  xiv.,  d.  R.,  and  sess.  xxi.,  cap.  vi.,  d.  R, 

153  Bouix,  p.  386.  1M  Craiss.,  n.  559. 
165  Cone.  PI.  Bait.  III.,  n.  37. 


196  Hoiu  a  Person  may  Lose  an 

dimno,  vel  ad  novas  erigendas,  postquam  Ordinarius  re 
mature  ponderata  declaravit,  considerata  Missionis  condi- 
tione,  scholas  novas  erigi  posse  et  debere.  3.  Temeraria  et 
post  admonitionem  repetita  susceptio  aeris  alieni  pro  ecclesia 
seu  missione,  vei  pro  ipso  sacerdote,  sine  Ordinarii  licentia ; 
aut  inanifesta  inobedientia  in  solvendis  debitis  contractis. 
4.  Collusio  cum  aedituis  laicis  ad  dandum  nomen  ecclesiae 
(note)  in  acquisitionem  falsam  pecuniae  veluti  debitae  ipsi 
rectori.  5.  Fraudulenta  deceptio  Ordinarii  per  deliberatam 
falsitatem  in  annua  relatione  status  spiritualis  ac  temporalis 
missionis,  in  re  scilicet  magni  momenti  vergente  ad  grave 
detriraentum  missionis  ipsius.  6.  Publica  et  perdurans 
infamatio  quoad  mores  sacerdotales,  qua  cura  animarum 
grave  damnum  patiatur.  7.  Si  quis  rector  inamovibilis 
absque  sua  culpa  redditus  vel  compcrtus  est  notoria  ratione 
et  permanenter  inhabilis  ad  missionem  administrandam,  is 
inducendus  est,  ut  sponte  renuntiet.  Si  vero  id  recuset  et 
per  iuris  remedium,  constituendo  ei  scilicet  vicarium  cum 
<:ongrua  pensione  (Cone.  Trid.,  sess.  xxi.,  c.  6,  De  Ref.;  et 
Bened.  XIV.,  De  Syn.  dioec.,  1.  xiii.,  c.  9,  n.  21,  et  cap.  10,  n.  16) 
provided  nequeat,  Episcopus,  propter  speciales  missionum 
nostrarum  conditiones,  ex  gravissima  causa  legitime  demon- 
strata,  poterit  etiam  sic  irrationabiliter  invitum  amovere. 
Sive  autem  amoto  sive  sponte  renuntianti  procurabit  pen- 
sionem,  quae  ex  consultorum  consilio  congrua  censebitur, 
eique  titulum  rectoris  emeriti  conservabit." 

§  4.  Dismissal  (PRIVATIO)  of  Removable  Rectors,  also  in  the 
United  States. 

415.  According  to  the  general  law  of  the  Church,  as  en 
acted  already  by  Pope  Innocent  III.  in  the  General  Council 
of  the  Lateran  (I2i6),156  by  Pope  Boniface  VIII.  (1294-1303),'" 

156  Cap.  30,  De  Praeb.  et  Dign.  (iii.  5). 

157  Cap.  Unic.  de  Capell.  Mon.  in  6°  (iii.  18). 


Ecclesiastical  Office.  197 

and  confirmed  by  the  Council  of  Trent,15"  and  still  in  full 
force,  the  care  of  souls  or  the  office  of  rector  of  a  parish  is 
to  be  conferred  upon  the  incumbent  for  life,  so  that  he  can 
not  be  dismissed  except  for  certain  specified  crimes  and 
upon  a  formal  trial.  Consequently,  according  to  the  general 
law  of  the  Church,  irremovability  is  one  of  the  prerogatives 
of  a  rector  of  souls  or  parish  priest  in  the  true  and  canonical 
sense  of  the  word.  This  is  in  full  harmony  with  the  nature 
of  the  office  itself  and  of  the  duties  incumbent  upon  one  who 
is  in  charge  of  souls.  For  no  one  will  deny  that,  while  the 
duties  of  a  rector  of  souls  can  be,  absolutely  speaking,  dis 
charged  by  one  who  is  removable,  yet  they  will  be  performed 
much  better  and  with  greater  profit  to  souls  by  a  rector  who 
is  irremovable,  and  who  is  therefore  the  father,  the  spouse, 
and  the  true  shepherd  of  his  flock,  than  by  one  who  is  remov 
able  ad  nutum,  and  who  is,  in  consequence,  not  regarded  as 
a  true  shepherd,  in  the  full  sense  of  the  term.139 

416.  We  say,  by  the  general  law  ;  for,  exceptionally,  and  by 
special  fazv,  namely,  by  apostolic  indult  or  dispensation,  or  by 
prescription,  or  by  stipulation  inserted  in  the  act  or  instru 
ment  of  foundation,  or  also  by  reason  of  the  missionary 
status  of  a  country  which  makes  it  impossible  to  establish 
parishes,  the  Church  admits  of  a  derogation  from  the  com 
mon  law,  and  allows,  by  way  of  toleration  rather  than  ap 
proval,  the  care  ot  souls  to  be  sometimes  exercised  by  rectors 
who  are  removable. 

Accordingly  there  are  at  present,  especially  in  France, 
Belgium,  and  England,  two  kinds  of  rectors — removable  and 
irremovable.  This  discipline  prevails  now  also  in  this  coun 
try.  For,  according  to  the  Third  Plenary  Council  of  Balti 
more,  held  in  1884,  a  certain  number  of  rectors  in  each  dio 
cese  are  irremovable  ;  the  others  remain,  in  consequence, 
removable  as  under  the  Instruction  Qnamvis  of  July  20,  1878. 

158  Sess.  vii.,  cap.  7,  De  Ref. ;  sess.  xxiv.,  cap.  13,  De  Ref. 

'i?  S.   jo    x.  12. 


198  How  a  Person  may  Lose  an 

jJ3gf~  417.  Q.  For  what  cause  and  in  what  manner  can 
rectors  who  are  amovibilesad  nutum  be  dismissed  (i.e.,  deprived 
of,  not  merely  transferred  from)  from  their  parishes  or  mis 
sions,  also  in  the  United  States  ? 

A.  Before  answering,  it  is  necessary  to  explain  what  is 
meant  by  the  amovibilitas  ad  nutum,and  by  the  power  of  the 
ordinary  to  remove  ad  nutum.  The  Church,  to  use  the 
words  of  the  "learned  Santi,  Professor  of  Canon  Law  in  the 
Pontifical  Seminary  at  Rome,  in  his  Praelectiones,  issued  at 
Rome  in  1886,  abhors  all  arbitrariness  and  despotism,  in  its 
government,  and  requires  that  all  superiors  who  are  clothed 
with  authority  and  have  power  to  remove,  shall  exercise 
their  authority  according  to  right  reason,  natural  justice,  and 
equity. 1CU  Consequently  it  is  certain,  speaking  in  general, 
that  the  power  to  remove  as  they  say  ad  nutum  does  not 
mean  an  arbitrary  or  unrestricted  power  to  inflict  dismissal,161 
but  a  limited  power,  exercisable  according  to  right  reason, 
and  therefore  only  for  a  sufficient  cause,  proportionately 
greater  or  less,  according  to  the  higher  or  lower  grade  oif 
dignity  of  the  office  which  is  to  be  taken  away. 

This  principle,  while  it  applies  in  general  to  all  dismissals 
of  removable  incumbents,  applies  with  special  force  to  the 
dismissal  of  removable  ecclesiastics  who  are  appointed  not 
merely  to  perform  some  transient  or  passing  function  or 
ministry,  such  as  to  say  mass,  preach,  or  hear  confessions  on 
a  certain  day  or  clays,  but  to  an  office  which  necessarily  by  its 
very  nature  brings  with  it  continuous  and  constant  duties,  such 
as  the  care  of  souls,  and  which  therefore  has/rr  se  irremova 
bility  annexed  to  it.'62  It  is  beyond  doubt,  therefore,  that  the 
power  to  remove  ad  nutum,  especially  when  applied  to  rec 
tors  of  souls,  is  essentially  a  limited  power,  and  hence  a  power 
exercisable  only  for  cause. 

160  This  principle  is  clearly  laid  down  already  by   Pope  Gregory,  in  the  can. 
Jnventum  38,  c.  16,  q.  7;  can.  Satis peiversum  7,  dist.  56. 

161  Santi,  Prael. ,  lib.  i.,  tit.  xxviii.,  n.  12.  U'J  Santi,  i.  0. 


Ecclesiastical  Office.  199 

418.  Here,  then,  the  question   naturally  presents  itself: 
What  is  considered  a  sufficient  cause  in  law  for  the  dismissal 
of  a  removable  rector  ?    We  answer  :    The  law  of  the  Church, 
while  it  allows,  as  we  have  seen,  of  transfers  of  rectors,  even 
against  their  will,  not  merely  for  crime,  but  also  for  other 
causes  of  necessity  and  utility,  regards  crime  as  the  only  suffi 
cient  cause  for  dismissal,  even  of  removable  rectors.    For  it  is 
a  general  principle  of  canon  law,  laid  down  by  Pope  Gregory, 
that  an  ecclesiastic,  even  though  he   be  amovibilis,  shall  not 
be  deprived  of  his  office,  especially  when  the  care  of  souls 
is  annexed  to  it,  except  when  he  has  made  himself  unworthy  of 
it  by  crimed     This  principle  is  founded  upon  natural  justice. 
For  the  dismissal,  even  of  a  removable  rector,  inflicts  plainly 
both  disgrace  and  pecuniary  loss,  and  is  therefore  a  punish 
ment — nay,  a  punishment  of  the  gravest  kind.     Now  there 
can  be  no  punishment  where  there  is  no  crime,  according  to 
the  rule  of  law  :  "Sine  culpa,  nisi  subsit  causa,  non  est  ali- 
quis   puniendus."  1M     But  it  will  be  objected,  that  if  this  be 
true,  there  is  no  longer  any  difference  between   removable 
and   irremovable  rectors.     We  deny  the  inference.     For  in 
the  case  of  irremovable  rectors  the  bishop  or  superior  has  no 
discretionary  power   to   remove   for  any  crime  which  in  his 
judgment  is  sufficiently  grave.     He  can  remove  only  for  the 
crimes  expressly  stated  in  law,  and  only  by  a  canonical  trial. 
In  the  dismissal  of  removable  rectors,  on  the  other  hand,  the 
bishop  has  a  great  deal  of  discretionary  power :  that  is,  he  is 
not  tied  down  to  the  causes  or  crimes  and  the  many  formali 
ties  of  trial   prescribed   in   canon   law  for  the  dismissal  of 

163  The  words  of  Pope  Gregory  are:  "  Satis  perversum  et  contra  ecclesiasti- 
cam  probatur  esse  censmam  ut  .  .  .  suis  quis  privetur  officiis,  quem  sua  culpa 
vel  f acinus,  ab  officii  quo  fungitur  gradu  non  dejicit."  Can.  Satis  7,  d.  56,  et 
glossa  in  h.  c.  Again.  Pope  Gregory  decrees:  "  Quam  (ecclesiam)  si  juste  adep- 
tus  fuerit  (presbyter),  hanc  non  nisi  gravi  culpa  .  .  .  amittat."  Can.  Inventum 
38,  c.  16.  q.  7,  Glossa.  ib.  v.  nisi  gravi.  See,  especially,  Glossa  in  cap.  Unic. 
de  capell.  Monach.  in  6°,  v.  causa,  rationabili. 
164  Reg.  xxiii.  de  Reg.  Jur.  in  6'. 


2OO  How  a  Person  may  Lose  an 

parish  priests  proper,  but  he  is  free,  or  has  discretionary 
power,  to  impose  dismissal  (a)  only  for  crimes  indeed,  but 
yet  for  crimes  which  are  not  expressly  stated  in  law,  and 
which  are,  in  the  estimation  of  good  men,  sufficiently  grave 
to  make  the  rector  unworthy  of  his  position  ;  (b]  and  by  a 
trial  which  is  summary  and  therefore  less  formal  than  that 
required  for  the  dismissal  of  an  irremovable  rector. 

The  form  of  trial  which  is  at  present  necessary  in  the 
United  States  is,  in  dioceses  where  the  curia  is  established, 
that  which  is  outlined  in  the  Instruction  of  the  S.  C.  de  P.  F. 
of  1884;  and  in  dioceses  where  by  Papal  dispensation  the. 
curia  is  not  yet  constituted,  that  which  is  laid  down  in  the 
Instruction  of  July  20,  1878,  as  modified  in  article  xii.  of  the 
Instruction  of  1884. 

This  principle  is  fully  and  unequivocally  recognized  al 
ready  by  the  Second  Plenary  Council  of  Baltimore,  and  by 
the  Instruction  of  the  S.  C.  de  P.  F.  of  July  20,  1878.  For  both 
the  Second  Plenary  Council  and  the  Instruction,  while  stat 
ing  that  all  our  rectors  were  amovibiles  (C.  PI.  Bait.  II.,  n.  108, 
125  ;  Instr.  cit.  Ad  Dubia,  §  i),  yet  enacted  at  the  same  time 
that  they  could  not  be  dismissed  from  their  missions  save 
for  crime  and  by  trial.  (C.  PI.  Bait.  II.,  n.  77;  Instr.  cit. 
Resp.  Ad  Dubia,  §  I.)106 

419.  The  above  rule,  that  privation  of  mission  can  be  in 
flicted  upon  a  removable  rector,  only  for  crime,  is  the  ordi 
nary  rule.  In  other  words,  dismissal  (privatid)  fs  generally 
imposable  only  as  a  punishment  for  crimes  committed  by  the 
incumbent.  We  say,  generally;  for  there  are  certain  cases, 
indicated  in  law,  where  very  grave  and  urgent  causes  render 
it  necessary  to  inflict  privation  upon  a  rector,  even  though 
he  is,  technically  speaking,  guilty  of  no  crime.  For  in 
human  affairs  it  is  not  always  possible  to  exempt  innocent 
persons  from  punishment.  Grave  reasons  of  public  interest 

165  This  Instruction,  and  the  answer  Ad  Dubia  are  given  in  the  second  vol 
ume,  p.  415  sq. 


Ecclesiastical  Office.  201 

will  and  must,  at  times,  prevail  over  the  rights  and  privileges 
of  individuals,  just  as  the  welfare  of  a  whole  community 
must  be  preferred  to  the  welfare  of  this  or  that  member  of 
the  community. 

J  • 

It  is  on  this  principle  that  even  irremovable  rectors,  who, 
though  free  of  crime,  are  permanently  and  notoriously  disa 
bled,  v.g.,  by  chronic  disease,  from  administering  their  parish 
or  mission,  may  be  deprived  of  their  mission  if  they  refuse 
to  resign,  and  if,  moreover,  the  circumstances  are  such  that 
no  assistant  priest  can  be  assigned  them.168  Here  a  punish 
ment — namely,  privation — is  indeed  inflicted  without  crime, 
yet  not  without  grave  and  urgent  cause.  This  ism  harmony 
with  the  above  maxim  of  law  :  "  Sine  culpa,  nisi  subsit  causa, 
non  est  aliquis  puniendus." 

420.  In  these  cases  where  privation  is  inflicted,  not  indeed 
for  crime,  but  for  other  sufficient  causes  of  public  interest,  it  is 
not  required  that  the  trial  prescribed  by  the  Instruction  Cum 
Magnopere  (or  Quamvis  of  1878,  where  it  still  obtains)  should 
precede  the  privation  ;  but  it  is  necessary  and  sufficient  that 
a  very  careful  and  accurate  investigation  should  be  made 
into  the  causes  calling  for  the  privation.  This  investigation 
should  be  put  on  record,  so  that,  upon  appeal  being  made 
by  the  rector  removed,  it  may  appear  ex  actis  that  there  is 
legitimate  cause  for  the  privation.  Finally,  our  removable 
rectors  can  appeal  or  have  recourse  to  the  superior,  that  is, 
to  the  metropolitan,  and  ultimately  the  Holy  See,  against  the 
decree  or  sentence  of  dismissal.  This  is  expressly  set  forth 
in  the  Second  Plenary  Council  of  Baltimore,  n.  77,  and  in 
the  Instructions  Quamvis  of  1878  and  Cum  magnopereoi  1884. 
Has  this  appeal  or  recourse  a  suspensive  or  only  a  devolu- 
tive  effect?  We  shall  give  the  answer  in  the  third  volume 
of  this  work,  under  the  head  of  Dismissals. 

166  Cone.  PI.  Bait.  III.,  n.  38,  vii. 


CHAPTER   X. 

OF  RESTRICTIONS  UPON  JURISDICTION— EXEMPTIONS  OF  RE 
LIGIOUS  COMMUNITIES  FROM  THE  JURISDICTION  OF 
BISHOPS  AND  PARISH  PRIESTS  ALSO  IN  THE  U.  S. 

421.  Thejurisdictio  of  bishops,  parish  priests,  etc.,  may  be 
suspended  by  censures  and  irregularities.     Again,  it  may  be 
restricted  either  as  to  persons  or  matters :  as  to  persons,  it  is 
limited  by  exemptions ;  as  to  matters,  by  reservations.1     At 
present  we  shall  merely  dwell  upon  exemptions.     Exemption 
is  a  privilege?  by  ^i.vhicJi  a  person  or  a  place  is  withdrawn  from 
the  jurisdiction  of  the  bishop  and  placed  directly  under  the  juris 
diction  of  the  Pope.3     Various  Catholic  writers,4   hostile  to 
the  Holy  See,  have  written  in  opposition  to  the  exemptions 
granted  to  religious  communities.     Febronius,  who  followed 
in  the  wake  of  these  authors,  asserted  that  exemptions,  as 
vested  in  religious  communities,  were,  I,  prejudicial  to  the 
authority  of  bishops  ;  2,  injurious  to  the  observance  of  mo 
nastic  discipline ;  3,  nay,  even  detrimental  to  the  interests  of 
secular  rulers.    The  defenders  of  Gallicanism,  as  a  matter  of 
course,  chimed  in  with  this  outcry  against  exemptions.' 

422.  On  the  other  hand,  good  Catholic  writers — v.g.,  St. 
Francis  of  Sales,  St.  Bernard — complain  also,  not  indeed  of 
exemptions  themselves,"  but  of  the  various  abuses  occasioned 
by  them.     It  were,  in  fact,  vain  to  deny  that  no  small  num- 

1  Craiss.,  n   567.  a  Ferraris,  V.  Regulares,  art.  ii.,  n.  t 

'  Cfr.  Phillips,  Lehrb.,  §  149,  p.  292. 

*  Ap.  Bouix,  De  Jure  Regular.,  vol.  ii.,  p.  86.     Parisiis,  1867. 

*  Bouix,  1.  c.,  p.  86.  "  Craiss.,  n.  -/>g,  570,  571. 


Of  Restrictions  upon  Jurisdiction.  203 

her  of  evils  were  attendant  on  them  ;  they  had  become  too 
numerous  and  extensive,  and  were  consequently  modified 
and  reduced  in  number  by  the  Council  of  Trent7  and  by 
various  Pontiffs.9  Having  premised  this,  we  establish  the 
following  proposition :  Exemptions,  apart  from  abuses,  arc 
lawful,  nay,  very  useful  and  just . 

423. —  I.  Exemptions  arc  Lawful. — This  is  proved,  I,  from 
their  antiquity.9  Thus,  in  the  year  390,  St.  Epiphanius, 
Bishop  of  Salamina,  having  come  to  Jerusalem  on  a  pil 
grimage,  and  remaining  at  a  certain  monastery  in  Bethle 
hem,  conferred  the  order  of  priesthood  upon  Paulinus,  one 
of  the  monks.  When  John,  Bishop  of  Jerusalem,  com 
plained  of  this  act  as  an  infringement  of  his  authority,  St. 
Epiphanius  replied  :  "  Nihil  tibi  injuriae  fecimus  ;  in  monas- 
terio  ordinavimus,  et  non  in  paroccia  [dioecesi],10  quae  tibi 
subdita  sit.'"  Hence,  even  at  this  early  period,  the  monas- 
terv  in  question  was  exempted  from  the  authority  of  the 
ordinary.  In  the  Roman  council  held  in  the  year  601,  St. 
Gregory  the  Great  exempted  monasteries  in  general  from 
the  jurisdiction  of  bishops.  The  decree  reads  :  "  Quia  in  plu- 
ribus  monasteriis  multa  a  pracsulibus  praejudicia  monachos 
pertulisse  cognoscimus,  prohibemus  ut  nullus  episcoporum 
ultra  praesumat  de  rebus  monasteriorum  minuere ;  neque 
audeat  quamlibet  potestatem  habcre  imperandi,  nee  ali- 
quam  ordinationem  faciendi,  nisi  ab  abbate  loci  fuerit  roga- 
tus."  "  2.  Exemptions,  secondly,  are  lawful,  because  they 
emanate  from  the  legitimate  exercise  of  competent  authority 
vested  in  the  Roman  Pontiffs.  No  Catholic  can  doubt  for  a 
moment  that  Popes  can  exempt  certain  persons  from  the 
jurisdiction  of  inferior  prelates.12 

424. — II.  Exemptions,  moreover,  are  Useful  and  Just. — For 
religious  communities,  as  at  present  constituted,  are,  as  a 

7  Sess.  xxiv.,  cap.  xi.,  d.  R.,  et  alibi.  '  Soglia,  vol.  ii.,  p.  55, 

9  Craiss.,  n.  572.  10  Bouix,  De  Jure  Regular.,  vol.  ii.,  pp.  99,  100. 

11  Ib.  u  Craiss..  n.  573  ;  cfr.  Soglia,  vol.  i.,  p.  243. 


2O4  Of  Restrictions  upon  Jurisdiction. 

rule,  governed  each  by  a  general "  superior.  By  means  of 
this  unity  of  government  the  various  houses  of  a  congrega 
tion,  though  spread  through  different  dioceses  and  governed 
by  local  or  provincial  superiors,  ultimately  depend  upon  a 
general  chapter  or  superior ;  the  community  is  thus  pre 
vented  from  being  divided  into  innumerable,  insignificant 
houses  independent  one  of  another.  That  this  form  of  gov 
ernment  is  beneficial  to  religious  congregations,  and  con 
ducive  to  the  better  observance  of  the  monastic  dis 
cipline,  no  one  can  doubt.  Now,  this  unity  of  government 
could  not  obtain  in  case  religious  communities  were  sub 
ject  to  bishops ;  for  each  bishop  would  become,  so  to  say, 
the  supreme  and  independent  superior  of  the  communities 
of  his  diocese. 

There  is  some  doubt  as  to  the  origin  of  exemptions. 
According  to  some  writers,  they  are  coeval  with  monasti- 
cism  itself;14  according  to  others,  they  are  of  later  date,"  and 
were  not  possessed  by  any  religious  community  in  the  begin 
ning16  of  monasticism.17 

f^T"  425.  What  religious  communities  possess  at  present  the 
privilege  of  exemption  from  the  jurisdiction  of  bishops  ? — All 
regular  orders  whatever  enjoy,  by  the  common  law  of  the 
Church,  the  privilege  in  question.  For  their  houses  or 
monasteries,  though  situate  in  the  diocese,  are  nevertheless 
considered,  by  fiction  of  law,  as  a  separate  territory.  Thus, 
Pope  Leo  XIII.,  in  his  celebrated  constitution,  Romanes  Pon- 
tifices  (§Ad  regulariunt),  issued  in  1881  for  England  and  Scot 
land,  and  extended  to  the  United  States,  at  the  request  of 
th^  Third  Plenary  Council  of  Baltimore  (Cone.  PL  Bait.  III., 
p.  cv,  and  n.  86),  says :  "  Earum  (religiosarum  sodalitatum) 

13  Bouix,  1.  c.,  pp.  no,  113.  u  Ib  ,  p    103  seq. 

15  Thomassinus,  Vetus  et  Nova  Eccl.  Disciplma,  pars,  i.,  lib.  iii.,  cap.  xxvi., 
p.  696  seq.      Lucae.  1728. 

16  Bouvier.   De  Decal.,  cap.  ii.,  p.  267.  vol.  v.,  edit.  1844. 
"  Cfr.   Reiff.,  lib.  i.,  tit.  xxxi.,  n.  107. 


Of  Restrictions  upon   Jurisdiction.  205 

domus  habitae  fuennt  juris  fictione  quasi  territoria  qua  f  dam 
ab  ipsis  dioecesibns  avulsa."  ^Cf.  Tit.  de  privileg.  et  excess, 
priv.,  1.  v.,  t.  33  ;  in  6,  1.  v.,  t.  7  ;  in  Clem.,  1.  v.,  t.  '/  ;  Phillips, 
K.  R.,  vol.  vii.,  p.  903;  Sabetti,  comp.  n.  620.) 

We  say,  all  regular  orders  whatever ;  now,  by  regular 
orders  are  meant  only  those  which  have  solemn  vows.  Conse 
quently,  religious  congregations  of  priests  which  have  but 
simple  vows,  even  though  perpetual,  or  have  no  vows  at  all, 
do  not  possess  the  privilege  in  question  by  the  jus  commune; 
De  Angelis,  Prael.,  1.  3,  t.  36,  n.  4;  yet  by  special  concession  of 
the  Holy  See,  religious  institutes  which  have  no  solemn  vows 
may  obtain,  in  fact,  many  of  them,  v.g.,  the  Passionists,  Re- 
demptorists,  have  obtained  exemption  from  episcopal  juris 
diction,  just  like  regulars  with  solemn  vows.  According  to 
the  more  common  opinion,  this  privilege  is  not  acquired  by 
the  communicatio privilegiorum,  but  must  always  be  conferred 
directly  by  the  Holy  See  in  each  individual  case  (S.  C.  EE. 
et  RR.,  Sept.  16,  1864 ;  Lucidi,  De  Visit.,  vol.  ii.,  pp.  107,  1 10  ; 
Sanguineti,  Jur.  eccl.  Inst,  n.  393,  395,  Romae,  1884). 

426.  Nature  and  Extent  of  the  Exemptions  of  Religious 
Communities  from  the  Authority  of  Bts/tops. — Religious  at  the 
present  day  are  not,  by  virtue  of  their  exemptions,  released 
from  all  subjection  to  episcopal  jurisdiction.18  For  exemp 
tions,  as  was  seen,  were  considerably  diminished  by  the  Jus 
commune  previous  to  the  Council  of  Trent,  by  the  Council 
of  Trent  itself,  and  subsequently  by  various  Pontifical 
enactments.  Hence,  bishops  are  now  vested,  in  various 
cases,  with  jnrisdictio  ordinaria  or  delegata  over  religious 
orders.19  Thus,  regulars,  notwithstanding  their  exemptions, 
if  they  live  out  of  their  monastery™  even  though  it  is  with  the 
permission  of  their  superior,  and  commit  offences  or  crimes 

18  Craiss.,  n.  576,  577.  "  Ferraris,  V.  Regulares,  art.  ii.,  n.  2,  3. 

50  However,  those  religious  are  not  regarded  as  living  out  of  their  monas 
tery  who  are  out  of  it  for  two  or  three  months  for  the  purpose  of  preaching, 
giving  retreats,  or  for  recreation,  and  the  like.  (Craiss.,  n.  904.) 


206  Of  Restrictions  upon  Jurisdiction. 

while  thus  living  out  of  the  monastery,  can  be  punished  by 
the  ordinary  of  the  place  as  delegate  of  the  Apostolic  See. 
(Cone.  Trid.,  sess.  vi.,  c.  3,  De  Ret.)  Nay,  all  regulars  what 
ever,  who,  residing  in  their  monastery,  have,  out  of  that  en 
closure,  committed  offences  in  so  notorious  a  manner  as  to  be 
a  scandal  to  the  people,  shall,  at  the  instance  of  the  bishop, 
be  severely  punished  by  their  own  superiors,  within  such  time 
as  the  bishop  shall  appoint,  and  the  superior  shall  certify  to 
the  bishop  that  the  punishment  has  been  inflicted;  other 
wise  the  delinquents  may  be  punished  by  the  bishop  him 
self.  (Cone.  Trid.,  sess.  xxv.,  c.  14,  De  Regular.;  Soglia- 
Vecchiotti,  1.  ii.,  cap.  9;  Sanguineti,  n.  395,  a,  b) 

Agfain,  all  regulars  who   exercise   the  cura  animarum  are 

O  *  O  , 

subject  to  the  jurisdiction  and  correction  of  the  bishop  in 
all  those  matters  which  relate  to  the  care  of  souls  or  the 
duties  of  a  rector  and  the  administration  of  the  sacraments. 
(Bened.  XIV.,  Const.  Firmandis,  Nov.  6,  1/44.)  For  several 
other  cases  where  regulars,  notwithstanding  their  exemption, 
fall  under  the  jurisdiction  of  the  bishop,  see  Sogha  Vec- 
chiotti,  I.  ii.,  cap.  9. 

427.  The  chief  cases  in  which  religious  communities  do 
not  fall  under  the  authority  of  bishops"  are  thus  enumerated 
by  Cardinal  Soglia  :°~*  "  In  reliquis  autem  quae  ad  discipli- 
nam  domesticam,  observantiam  regularum  et  votorum,  mo- 
clum  vivendi,  officia,  promotiones,  coercitiones  religiosorum, 
pertinent,  nequit  episcopus  sese  immiscere," 

|£5|F"  428.  Are  religions  communities  in  the  United States  ex 
empted  from  the  authority  of  bishops  ?  They  are,  so  far  as  ex 
empt  orders  of  men  are  concerned  ;  v.g.,  the  Jesuits,  Do 
minicans,  Benedictines.  Capuchins,  Carthusians.2"  This  is 
beyond  doubt  at  present.  For  the  Const.  Romanes  Pontifices 
of  Pope  Leo  XIII.,  which  guarantees  the  privilege  of  exemp- 

21  Cfr    Phillips,  Kirchenr. ,  vol.  vii.,  pp.  903-1027.  2-  Vol.  ii.,  p.  5; 

23  Cfr.  Kenrick,  Mor.,  tract,  iv. ;  app.  ii.,  n.  i-io;  tract,  viii.,  n.  50  seq. 


Of  Restrictions  upon  Jurisdiction.  207 

tion  to  regular  orders  in  England  and  Scotland,  was,  at  the 
request  of  the  Third  Plenary  Council  of  Baltimore,  extended 
to  this  country  by  decree  of  the  S.  C.  de  Prop.  Fide,  dated 
Sept.  25,  1885  (see  decree  in  Cone.  PI.  Bait.  III.,  p.  cv).  Be 
sides,  it  was  already  clearly  implied  in  the  following  words 
of  the  Second  Plenary  Council  of  Baltimore:  "Dura  ab 
Episcopis  serventur  regularium  exemptiones  in  iis  quae  ad 
regimen  internum  communitatis  spectant!"' 

Nay,  regular  orders  of  men  in  the  United  States,  England, 
Scotland,  and  other  missionary  countries  enjoy  this  privilege 
of  exemption  from  the  jurisdiction  of  the  bishop  to  a  greater 
extent  than  in  non-missionary  countries  where  the  general 
law  of  the  Church  obtains.  For,  by  the  common  law  of  the 
Church,  all  those  small  convents  or  houses  of  regulars  where 
there  are  not  at  least  six  monks,  namely,  four  priests  and  two 
lay  brothers,  remain  entirely  subject  to  the  jurisdiction  of 
the  bishop  of  the  place  where  they  are  situate,  as  apostolic 
delegate,  and  that  not  only  in  matters  pertaining  to  ecclesi- 
tical  discipline,  but  also  in  those  relating  to  the  monastic 
discipline.  (Innoc.  X.,  const.  Instaurandae,  Oct.  15,  1652; 
const.  Ut  in  parvis,  Feb.  10,  1654;  Leo  XIII.,  const.  Roma 
nes  Pontifices,  May  8,  1881  ;  Ferraris,  v.  Conrcntus,  Art.  I.,  n. 
5  sq. ;  Lucidi,  De  Visit.,  vol.  ii.,  p.  32  sq.) 

Now  the  S.  C.  de  Prop.  Fide  has  frequently  declared 
that  this  general  law  requiring  as  a  condition  of  exemption 
that  at  least  six  regulars  shall  live  in  the  same  house  is  not 
to  be  understood  as  applying  to  regulars  who  live  and  exer 
cise  the  sacred  ministry  in  missionary  countries.  (Leo  XIII. , 
const.  Romanes  Pontifices  cit.)  Consequently  our  Holy 
Father  Pope  Leo  XIII.,  now  gloriously  reigning,  in  his 
celebrated  constitution  Romanes  Pontifices  (§  Quamobrem}tftrst 
issued  tor  England  and  Scotland,  and  now  extended  to  the 
United  States,  as  was  seen,  declares  that  regulars  in  the 

84  Cone.  Pi.  Bait.  II.,  n.  413;  cfr.  ib.  app.  21,  p.  322. 


208  Of  Restrictions  upon  Jurisdiction. 

aforesaid  missionary  countries,  who  live  in  houses  or  resi 
dences  attached  to  missions  or  congregations,  even  though  but 
three,  or  two,  or  one  live  in  sncli  Jiouscs,  are  exempt  from  the 
jurisdiction  of  bishops  in  the  same  manner  as  regulars  living 
in  monasteries  or  convents  having  more  than  six  regulars. 
For,  as  the  illustrious  Pontiff  well  says,  in  view  of  and  as  a 
reward  for  their  noble  missionary  labors,  they  are  regarded 
bv  fiction  of  law  as  living  intra  claustra,  although  as  a  matter 
of  fact  thev  live  extra  claustra. 

Of  course  these  regulars  living  in  missionary  residences, 
with  us,  as  elsewhere,  while  enjoying  the  privilege  of  ex 
emption,  remain  subject  to  the  jurisdiction  of  the  bishop, 
like  all  other  regulars,  in  all  that  pertains  to  the  care  of 
souls  and  the  administration  of  the  sacraments,  and  in  those 
other  matters  enumerated  above  (n.  426),  as  Pope  Leo  XIII. 
expressly  declares  in  the  above  constitution.  Consequently 
they  must  attend  diocesan  conferences  and  synods.  In  re 
gard  to  their  right  of  appealing  against  statutes  of  diocesan 
synods,  the  right  of  the  bishop  to  divide  their  missions  or 
quasi  parishes,  see  the  const.  Romanes  Pontificcs  of  Leo  XIII., 
given  in  its  entirety  in  the  Third  Plenary  Council  of  Balti 
more,  p.  212  sq.  These  regulars  are  also  bound  to  give  the 
bishop  annuallv  an  account  of  their  administration  of  all  the 
property,  real  and  personal,  given  them  intuit u  missionis,  but 
not  of  the  property  belonging  to  them  qua  regulares.  (Leo 
XIII.,  const,  cit.) 

IglP  What  has  been  said  concerning  the  exemption  of 
regulars  proper  in  the  United  States  applies,  of  course,  also 
to  those  religious  congregations  or  institutes  with  us  that 
have  indeed  but.  simple  vows,  but  yet  are  exempted  by 
special  concession  of  the  Holy  See,  v.g.,  the  Redemptorists. 
The  Third  Plenary  Council  of  Baltimore  (n.  91)  wisely  ordains 
that  whenever  any  controversy  should  arise  between  bishops 
and  exempted  religious  communities  respecting  exemptions, 


Of  Restrictions  upon  Jurisdiction.  209 

the  bishop  should  refer  the  matter  to  the  Cardinal  Prefect 
of  the  Propaganda. 

UjgP  Q.  In  what  manner  are  religious  communities,  male 
or  female,  in  the  United  States,  who  have  but  simple  vows, 
or  no  vows  at  all,  and  who  do  not  enjoy,  by  special  conces 
sion,  the  privilege  of  exemption,  subject  to  the  jurisdiction 
of  the  ordinary  ? 

A.  We  premise:  i.  We  must  distinguish  between  dio 
cesan  and  non-diocesan  institutes.  By  non-diocesan  institutes 
are  meant  those  w'hose  institute  and  constitutions  or  rules 
are  approved  by  the  Holy  See,  and  who  are  governed  by  a 
superior  or  superioress-general.  By  diocesan  institutes,  on 
the  other  hand,  we  understand  those  whose  institute  and  con 
stitutions  are  approved  onlv  by  the  ordinary.  2.  We  must 
also  distinguish  between  the  power  of  domestic  government 
(potcstas  dominativd)  and  the  power  of  jurisdiction  (potestas 
jurisdictionis).  The  former  relates  to  the  internal  or  domes 
tic  government  of  the  religious  institute,  and  empowers  the 
superior  or  superioress  to  see  that  the  rules  and  constitu 
tions  of  the  institute  are  observed.  The  latter,  i.e.,  fofestas 
jurisdictionis.  refers  to  the  power  of  the  keys,  and  consists  in 
the  power  of  binding  and  loosing,  inflicting  ecclesiastical  cen 
sures,  and  the  like.4'  3.  We  must  also  distinguish  between 
religious  congregations  of  males  and  those  of  females.  For, 
as  we  shall  see,  institutes  of  men  are  usually  granted  larger 
powers  of  government  than  those  of  women. 

fdgT'  We  now  answer  :  I.  Non-diocesan  institutes,  whether 
of  men  or  women,  are  exempted  from  the  authority  of  the 
Ordinary,  so  far  as  concerns  the  domestic  government,  but  not 
so  far  as  regards  the  power  of  jurisdiction  proper.  In  other 
words,  they  do  not  depend  upon  the  bishop  so  far  as  con 
cerns  their  constitutions  as  approved  by  the  Holy  See.  For, 
as  De  Angelis  (I.  iii.,  t.  36,  n.  4)  says,  once  the  Holy  See  has 

56  See  our  article  on  Religions  Communities  in   the  Am.  Cath.  Quart.  Review 
for  Apr.,  1878.  p.  250. 


2io  Of  Restrictions  upon   Jurisdiction, 

sanctioned  anything  or  taken  it  in  hand,  inferior  ordinaries 
can  no  longer  interfere  with  or  change  it.     Now,  as  a  mat 
ter  of  fact,  the  rules  of  these   institutes,  especially  of  men, 
place  the  entire  domestic  authority  in  the  hands,  not  of  the 
bishop,  but  of  their  own  superior  or  superioress.     But  the 
Holy  See,  in  approving   these  institutes,  generally  reserves 
the  potestas  jurisdictionis  over  them  to  the  bishop.     While, 
however,    these    institutes,     male    or    female,    are    exempt 
from  the   bishop  in   matters  of    domestic    government,  yet 
the  Holy  See,  as  a  rule,  vests  the  potestas  dominattva  more 
largely  in  institutes  of  men  than  in  those  of  women.     Thus, 
as  a  rule,  these  institutes  of  men,  as  approved  by  the  Holy 
See,   are  independent  of  the  ordinary,  not  only   in  regard 
to  the  internal  government  of    the   house,  but  also  in   re 
gard  to  the  election  of  their  superiors,  the  admission  or  dis 
mission  of   members  of   the  institutes,  the  administration  of 
their  property,  their  receipts  and  expenses  :  whereas,  by  the 
general  law   of   the    Church,  all   religious   communities   of 
women,26  even  though  they  have  solemn  vows  and  are  ex 
empted;  and  a  fortiori,  therefore,  those  which  have  but  simple 
vows  and  are  not  exempt,  <  a)  must  give  the  oidinary  of  the 
place  annually  a  financial  statement  of  their  receipts  and  ex 
penses,  (If)  and  allow  the  bishop  to  be  present  and  preside  at 
the  election  of  the  superioress,27  (c)  and  to  examine  candidates 
before   their  admission   and   profession.     (Cone.  Trid.,  sess. 
xxv.,  c.  17,  De  Reg.)     This  is  proper.     For  women  are  gen 
erally  less  capable  of  transacting  business   than  men.     The 
Third  Plenary  Council  of  Baltimore  (n.  92)  provides  that  when 
differences  arise  between   bishops  and   these  institutes,  the 
bishop  shall  have  recourse  to  the  Cardinal  Prefect  of  the 
Propaganda. 

II.  Diocesan  institutes  depend  entirely  upon  the  ordi- 


26  Craisson,  Des  Com.  Relig.  ,  n.  184  sq.;   Paris,  1869. 

21  Gregor.  XV.,  Const.  Inscrutabili,  §  5;  Ferr.,  V.  Regulares,  art.  ii.,  n.    5J 
De  Angelis,  1.  iii.,  t.  36,  n.  4. 


Of  Restrictions  upon  Jurisdiction,  2 1 1 

nary,  even  though  they  follow  the  rule  of  an  order  approved 
by  the  Holy  Sec.  Hence  they  are  not  exempt  from  the 
bishop,,  even  in  matters  of  domestic  government.28  If  these 
institutes  wish  to  found  in  other  dioceses  filial  houses  or 
branches  which  are  to  remain  subject  to  the  mother-house, 
an  agreement  should  first  be  made  between  the  bishop  of  the 
diocese  where  the  mother-house  is  situate,  and  the  bishop 
of  the  place  where  the  new  house  is  to  be  opened,  and  the 
superior  or  superioress  of  the  mother-house,  by  virtue  of 
which  (agreement)  the  branch  houses  shall  remain  subject 
to  the  superior  or  superioress  of  the  mother-house,  so 
far  as  regards  their  internal  or  domestic  regime,  but  also 
entirely  subject  to  the  potestas  jurisdictionis  of  the  ordi 
nary  of  the  place  where  they  are.  Hence  these  branch 
houses  are  exempted  from  the  potestas  dominatira,  but  not 
from  the  potestas  jurisdictionis  of  the  bishop  of  the  diocese 
where  they  are  located.29  As  a  matter  of  fact,  the  greater 
number  of  religious  communities  of  women  with  us  are 
diocesan  institutes.  Moreover,  they  have,  as  a  rule,30  but 
simple  vows;91  they  are  not,  in  consequence,  true  religious, 
at  least  strictly  speaking,  of  those  orders  whose  rules  they 
follow.  Hence  they  fall  under  the  jurisdiction  of  the  ordi 
nary32  in  the  sense  just  explained.33  This  applies  to  Bene 
dictine  and  Dominican  sisters  and  the  like,  and  also  to  sis 
ters  of  charity  and  similar  congregations. 

fSfP  The  authority  of  bishops  over  the  purely  diocesan 
institutes  in  question  is  thus  set  forth  in  the  Third  Plenary 
Council  of  Baltimore,  n.  93  :  "  Instituta  vero  dioecesana  quorum 
constitutiones  ab  Ordinario  tantum  approbatae  sunt,  depend 
ent  ab  Ordinario,  cujus  est  earegere,  corrigere  ac  reformare. 
salvo  semper  fine  ad  quern  hujusmodi  institnta  sunt  in  sua 

18  Cone.  PI.  Bait.  III.,  n.  93.  »  Cone.  PI.  Bait.  III.,  a.  9£ 

30  Deer.  S.  C.  Ep  ,  3  Sept.,  1864.  ad  Archiep.  Bait. 

11  Cone.  PI.  Rait.  II.,  n.  419.  420.  M  Craiss.,  Man.,  n    609. 

K  Bouix,   De  Jur    Reg.,  vol.  ii.,  p.  132. 


2  i  2  Of  Restrictions  upon  Jurisdiction. 

fmidatione  ordinal  a,  et  ad  quern  constitutionibus  ab  Or  dinar  io 
primitus  approbatis  diriguntur." 

429.  How  Religious  Communities  are  Exempted  from  the 
Autltority  of  Parish  Priests  in  whose  Parishes  Monasteries  or 
Convents  arc  situate. — Rule  I. — In  whatever  matters  religious 
communities  are  exempt  from  the  jurisdiction  of    bishops, 
they  are,  a  fortiori,  free  from  the  authority  of  parish  priests.34 

430.  Rule  II. — By  parochial   rights  (jura  parochialia),  as 
vested,  at  present,  in  canonical  parish  priests,  we  mean  chiefly 
the  right  of  administering  baptism,  Extreme  Unction,  and  the 
Viaticum  ;35  the  faithful,  moreover,  are  obliged  to  satisfy  the 
precept  of  paschal  communion  in  their  parish  church,  and  ta 
contract  marriage  cor  am  proprio  parocho™     Regulars,  there 
fore,  cannot  administer  any  of  these  sacraments  to  the  laity 
without  the  permission  of  the  parish  priest  or  bishop.37  Sev 
eral  particulars,  however,  are  to  be  noticed  in  regard  to  this 
point,     i.  Regulars  approved  for  the  confessions  of  seculars 
can  hear  (a)  lay  people  also  during  the  paschal  season  ;38  (b) 
the  sick  at  any  time;  but,  having  done  so,  they  must  inform, 
at  least  by  leaving  a  note  with  the  sick  person,  the  parish 
priest  of  the  fact,  so  as  to  enable  him  to  administer  the  Viati 
cum  and  Extreme  Unction.     2.  They  may/9  in  like  manner, 
distribute   Holy   Communion   in  their  churches,  except  on 
Easter  day  itself.     3.  Formerly  the  faithful  were  bound  to 
hear   Mass  on  Sundays  and    holidays  in  the  parish  church."* 
This  obligation  has  lapsed.     Bishops  and  pastors,  at  present, 
may  indeed  exhort,  but  cannot  compel,  the  faithful  to  attend 
the  parochial  Mass."1 

34  Bouvier,  Tract,  de  Decalogo,  vol.  v.,  p.  269.      Paris,  1844. 
^  Ferraris,  V.  Parochia,  n.  22.  zt  Ib. 

31  Bouix,  De  Paroch.,  p.  442  seq. 

38  Cfr.  Bened.  XIV.,  De  Syn.,  lib.  ix.,  c.  xvi.,  n.  3. 

39  Cfr.  Bouix,  1.  c.,  p.  448. 

40  Cfr.  Bouix,  De  Jur.  Regular.,  vol.  ii.,  p.  196. 

41  Cfr.  Ferraris,  V.  Parochia,  n.  23. 


Of  Restrictions  upon  Jurisdiction.  213 

|S|f~  431.  Rule  IIL — The  second  rule,  as  just  explained, 
refers,  among  other  things,  to  the  administration  of  certain  sac 
raments  on  the  part  of  exempted  regulars.  Rule  III.,  now 
under  consideration,  relates  chiefly  to  the  reception  of  certain 
sacraments  by  religious. '  Religious  communities,  both  male 
and  female,  which  enjoy  the  privilegium  exemptionis,  and  that 
whether  they  have  solemn  or  only  simple  vows,  are  by  that 
very  fact  also  exempted  from  the  authority  of  the  parish 
priest,  in  whose  parish  the  monastery  or  convent  is  situate. 
Consequently,  these  religious,  if  they  are  nuns  or  sisters,  can 
receive  the  above  sacraments,  namely,  the  paschal  com 
munion,  the  Viaticum,  and  Extreme  Unction  from  their  own 
chaplain.  For  the  chaplain  of  exempted  nuns  or  sisters  is 
vested  with  the  rights  and  duties  of  a  parish  priest,  in  regard 
to  the  sisters,  to  whom  he  is  chaplain.  (Ferraris,  v.  Capel- 
lanus  Monialium,  add.  ex  al.  Man.,  n.  i.) 

f^iP  We  say,  exempted  nuns ;  for.  sisters  or  nuns,  who 
are  not  exempted — and  no  sisters  in  the  United  States  are 
exempted — are  subject,  according  to  the  general  law  of  the 
Church,  to  the  parish  priest  of  the  place  where  the  convent 
is  located,  and  therefore  must  receive  the  above  sacraments 
from  him.  However,  where  the  contrary  custom  prevails, 
and  where  this  custom  to  the  contrary  is  lawfully  prescribed, 
the  bishop  may  appoint  even  for  nuns  or  sisters  who  are  not 
exempted,  chaplains,  who  shall  have  the  rights  and  duties 
of  parish  priests  in  relation  to  the  nuns  in  question  ;  and 
where  the  bishop  does  so,  the  chaplain  and  not  the  parish 
priest  has  the  right  to  administer  the  above  sacraments  to 
the  sisters.  (Ferraris,  1.  c.,  n.  2-5.) 

432-  fSIF"  What  has  just  been  said  of  sisters  applies, 
"a  fortiori,"  to  religious  communities  of  men.  In  other 
words,  exempted  regulars,  even  though  they  have  but  simple 
vows,  are  exempted  from  authority  of  the  parish  priests. 
Consequently  they  receive  the  above  sacraments,  not  from 
the  parish  priest,  but  from  priests  of  their  own  order.  This 


214  Of  Restrictions  upon  Jurisdiction. 

applies  not  only  to  professed  religious,  but  also  to  novices 
and  postulants,  who  are  also  exempt  from  the  authority  of 
parish  priests ;  nay,  by  the  Council  of  Trent,"  even  servants  of 
monasteries  may  receive  paschal  communion,  the  Viaticum, 
and  Extreme  Unction  in  the  community,  church,  or  chapel, 
provided  they  live43  in  the  monastery;  for  if  they  merely 
work  there  during  the  day,  going  out  at  night,  or  if  they 
live  in  houses44  situate  indeed  intra  ambit um  monasterii,  but 
detached  from  it,  they  must  receive  the  above  sacraments 
from  the  parish  priest.  Can  students  at  colleges  in  charge 
of  regulars,  and  girls  in  academies  conducted  by  nuns,  re 
ceive  the  paschal  communion,  Extreme  Unction,  and  the 
Viaticum  from  the  chaplain  of  the  respective  institution,  or 
are  they  bound  to  receive  these  sacraments  from  the  parish 
priest  of  the  place?  The  question  4"  is  controverted.  It  is 
certain,  however,  that  the  bishop  may,  by  special  enact 
ment,46  exempt  these  youths  and  girls  from  the  obligation  of 
receiving  these  sacraments  from  the  parish  priest  of  the  place 
where  the  college  or  academy  is  situate  ;  in  fact,  bishops 
generally  do  so  at  present,  not  only  with  regard  to47  boys 
and  girls  educated  respectively  by  regulars  and  nuns,  strictly 
speaking,  but  also  with  regard  to  students  brought  up  in 
colleges  conducted  by  secular  priests,  and  girls  educated  by 
nuns  or  sisters  having  but  simple  vows,  and  not  exempted. 

44  Sess.  xxiv.,  cap.  xi.,  d.  R.  43  Craiss.,  n.  611. 

44  Bouix,  1.  c.,  p.  200.  *  Ib.(  1.  c.,  pp.  204-209. 

*•  Craiss.,  n.  612.  «  Bouix,  1.  c.,  p.  209. 


CHAPTER   XII. 

ON    THE    RIGHTS  AND   DUTIES    OF   THOSE  WHO  ARE    VESTED 
WITH   ECCLESIASTICAL  JURISDICTION. 

433.  Those  who  have  jurisdictio  ecclesiastica  are  by  that 
very  fact  entitled  to  certain  rights  and  prerogatives — viz., 
to  reverence  and  obedience  from  those  under  their  charge. 
Now,    these   rights   have   corresponding   duties ;    of   these 
some  are  positive,  consisting  of  certain  actions  to  be  per 
formed — v.g.,  the  duty  of  residence  ;  others  negative,  having 
reference  to  the  avoiding  of  excesses.1     At  present  we  shall 
only  speak,    i,  of  the   rights   of  ecclesiastical  superiors  in 
general;  2,  of  their  negative  duties — i.e.,  of  the  excesses  to 
be  avoided  by  them  in  the  exercise  of  their  authority. 

ART.  I. 

Rights  of  Ecclesiastical  Superiors  in  General  (De  Obedientia 

et  Revcrcntid). 

434.  The  right  to  obedience  and  a  reverence  on  the  part 
of  subordinates  may  be  said  to  constitute  the  chief  preroga 
tive   of    ecclesiastical   superiors.      Ecclesiastical    obedience 
(obedient ia  canonicd)  in  general  consists  in  three  things  : ' 

435. — i.  In  this:  that  an  inferior  should  carry  out  the  di 
rections  of  his  superiors,  and,  therefore,4  submit  to  their 
authority  in  matters  pertaining  to  their  jurisdiction.  This 

1  Craiss.,  n.  621.  "  Ib.,  n.  622.  '  Reiff.,  lib.  i.,  tit.  xzxiii.,  n.  1$. 

4  Phillips,  Kirchenr.,  vol.  ii.,  p.  174.     Ratisbon,  1857. 

215 


2  i  6  Rights  and  Duties  of  these  Vested 

every  priest  promises  in  his  ordination/  Those,  moreover, 
who  are  canonically  appointed  parish  priests '  must  also 
take  the  oath  of  canonical  obedience.  Now,  we  ask :  Wha« 
is,  especially  in  the  United  States,  the  force  of  the  promise 
of  obedience  given  by  every  priest  in  his  ordination 
Chiefly  this:  I,  priests  are  bound  not  to  give  up  their  mis 
sions  or  congregations '  without  the  bishop's  permission  ;  2, 
they  are  exJwrtcd  "  ut  non  detrectent  vacare  cuilibet  mis- 
sioni  ab  episcopo  designatae."  '  Obedience  is  due  the  supe 
rior  even  when  it  is  doubtful  whether  his  orders  are  just; 
oecause  the  presumption  is  in  his  favor.  But  who  is  to  be 
obeyed  in  a  conflict  of  authorities — i.e.,  when  two  ecclesi 
astical  superiors,  in  matters  falling  under  their  jurisdiction, 
give  contrary  orders?  The  general  rule  is  that  obedience9 
is  due  to  the  higher  superior.  Nor  is  this  opposed  to  the 
principle  that  an  ecclesiastic  must  obey  his  bishop  rather 
;han  the  metropolitan ;  I0  for,  in  the  conflict  of  authority,  it 
js  taken  for  granted  that  each  of  the  superiors  in  question 
has  a  right  to  command.  Now,  the  metropolitan  has  no 
power  over  the  ecclesiastics  of  suffragans,  except  during  the 
visitation  and  on  appeal.11  On  the  same  principle,  a  monk 
must  obey  his  prelate  rathei  than  the  bishop  ;  in  like  man 
ner,  when  the  bishop  orders  something  which  is  contrary  to 
the  jus  commune  of  the  Church,  the  law  is  to  be  obeyed,  and 
not  the  bishop.12 

436. — 2.  Obedience  consists,  secondly,  in  the  submission 
of  the  inferior  to  the  judicial  authority  (jurisdictio  conten- 
tiosa)  of  his  superiors.13 

*  Craiss.,  n.  622  ;  cfr.  Pontificate  Rom.,  pars,  i.,  p.  77.     Mechlin.,  1862. 

*  Phillips,  1.  c.,  p.  200. 

*  Cfr.  Instructio  S.  C.  Prop.,  28  Junii,  1830,  ap.  Cone.  Bait.,  pp.  64,  65. 

8  This  whole  matter  is  well  explained  in  the  Instructio  of  the  Propaganda 
on  the  Decrees  of  the  First  Prov.  C.  of  Baltimore. 

"  Reiff.,  1.  c.,  n.  22.  I0  Phillips,  1.  c.,  p.  181.  "  Craiss.,  n.  623. 

15  Ib.,  n.  622.  13  Reiff,  I.e.,  n   20 


with  Ecclesiastical  Jurisdiction.  2  i  7 

437. — 3.  Obedience  consists,  thirdly,  in  the  reverence  due 
superiors.14  By  reverentia  we  mean  the  external  marks  of 
respect  which  inferiors  should  show  their  "  superiors — v.g.t 
by  rising  in  their  presence,  giving  them  the  first  place,  and 
the  like.  Of  this  reverentia  we  shall  speak  in  the  following 
article. 

ART.  II. 
Canonical  Precedence — Majoritas  and  Praecedentia. 

438.  The    respect    (reverentia)   due    superiors   is   shown 
chiefly  by  the  precedence  which  is  given  them,  especially  in 
processions,    funerals,   synods,  signing  documents,  and   the 
like.16 

439.  Rnles   of  Precedence. — Of  these   some   are   general, 
others  special.     I.  General  Rules  of  Precedence. —  Precedence 
in  general  is  regulated17  by  five  causes:   I.  Ex  praerogativa 
ordinis  ;  thus,  a  deacon,  even  though  younger  as  to  ordina 
tion,  ranks  higher  16  than  a  subdeacon  ;  a  priest  higher  than 
a   deacon.      2.    Praerogativa   cunsecrationis ;    thus,    a    conse 
crated  19  bishop  precedes  a  bishop  elect.     3.  Ratione  jurisdic- 
tionis   et   digmtatis ;    hence,"0    an   archbishop,    even    though 
younger  as  to  consecration,  takes  precedence  of  a  bishop. 
4.   Ratione  antiquitatis ;    thus,  precedence    among   bishops1" 
themselves  is  regulated  by  the  time  of  their  consecration ; 
among  priests,  by  the  time  of  their  ordination.     This  rule 
applies  only  to  ecclesiastics  in  the  same  ordo ;  it  admits  of 
exceptions.     5.  Praerogativa  ordinantis ;  thus,  an  ecclesiastic 
ordained   by  the   Pope"  precedes  others  of  the  same  ordo 
and  dignitas  with  himself,    even   though    he  was   ordained 
after  them. 

"  Reiff.,  1.  c.,  n.  16.  li  Cfr.  Phillips,  1.  c.,  p.  174 

"  Phillips,  1.  c.,  p.  155.  "  Reiff.,  1.  c.,  n.  3.      »  Ib.,  n.  4.  lf  Ib.,  n.  5 

w  Craiss.,  n.  626.  51  Phillips,  1.  c.,  pp.  158-163. 
n  Phillips,  1.  c.,  p.  159. 


218  Rights  and  Ditties  of  those  Vested 

440.  To  these  five  rules,  generally  given  by  canonists,  we 
may  add:  i.  "Ex  privilegio  insignium,"  mitred  abbots" 
take  precedence  over  others  not  entitled  to  wear  the  mitre. 
2.  In  sacred  functions  and  public  34  prayers  those  who  are  in 
sacred  vestments  precede  others  (even  though  they  be  supe 
rior  in  rank)  who  are  in  their  ordinary  dress.  3.  In  his  own 
diocese  a  bishop  takes  precedence  of  other  bishops,  nay, 
even  of  archbishops  ;  not,  however,  of  his  metropolitan." 
As  a  matter  of  courtesy,  however,  the  bishop  of  the  diocese 
may  give  precedence  to  strange  bishops  who  are  in  his  dio 
cese.  4.  "  Praerogativa  loci,"!(1  by  which  the  Archbishop 
of  Baltimore  takes  precedence  of  all  other  archbishops  in 
the  United  States  in  councils  "  and  the  like. 

441.— II.  Special  Rules  of  Precedence. — i.  Vicars-general, 
as  a  rule,  should  have  the  first  place  after  the  bishop,  and 
take  precedence  of  canons  and  dignitaries,  both  in  the  pre 
sence  and  absence  ™  of  the  bishop,  provided,  however,  they 
are  present  in  their  official  capacity — i.e.,  as  vicars-general." 
In  the  United  States  also  vicars-general  take  **  precedence 
of  all  other  priests  or  dignitaries  of  the  diocese.  The  vicar- 
general  of  the  metropolitan S1  takes  precedence  even  of  the 
bishops  of  the  province.  Administrators  of  dioceses,  sede 
<vacante,  in  this  country,  being  quasi-capitular  vicars,  precede 
in  rank  all "  the  other  clergymen  of  the  respective  dioceses. 
2.  Next  in  rank  are  rural  deans,  then  come  pastors,  and, 
finally/3  assistant  priests  and  other  ecclesiastics.  3.  Regu 
lars  come  last,  and  should  always,  even  in  their  own  *4 
churches,  give  precedence  to  the  secular  clergy.  Prece 
dence  among  priests  in  the  United  States  is  regulated  by 

'•»  Craiss.,  n.  626.  M  Ib.,  n.  627.  M  Phillips,  Lehrb.,  p.  290 

19  Cfr.  Cone.  PI.  Bait.  II.,  p.  343-  "  Infra.  n-  528. 

*8  Bened.  XIV.,  De  Syn.,  lib.  iii.,  cap.  x  ,  n.  I,  2. 

"  Ferraris,  V.  Vicar.-gen.  Novae  Addit.,  n.  2.       so  Cone.  PI.  Bait.  II.,  n  72 

•l  Phillips,  Kirchenr,  vol.  ii.,  p.  167.  M  Cfr.  Craiss.,  n.  630. 

3   Phillips,  1  c.,  p.  167.  M  Ferraris,  V.  Ptaecedentia    n   9 


with  Ecclesiastical  Jurisdiction.  2  n 

the  time  of  their  ordination  or  of  their  admission  into  the 
diocese. 

ART.  III. 

Of  Excesses  Committed  by  Bis/tops  or  Prelates  in  the  Exercise 

of  their  A  uthortty. — Of  Appeals, 

441.  CJiief  Abuses  of  Jurisdiction. — By  abuses  of  jurisdic 
tion  we  mean,  in  general,  the  improper  use  of  it.  At  pre 
sent  we  shall  speak  only  of  those  abuses  of  power  that 
violate,  at  least  to  some  extent,  the  rights  of  others."  A 
superior  may  abuse  his  authority  chiefly:  I.  By  usurping 
jurisdiction  over  persons  not  under  his  authority — v.g.,  over 
the  subjects  of38  another  bishop.  2.  By  extending  his  power 
ad  matcriam  alienam — v.g.,  if  a  parish  priest  should  attempt 
to  exercise  the  jurisdictio  fori  extend  even  over  his  own" 
parishioners.  3.  By  bringing  before  his  tribunal,  in  cases 
not  allowed  by  canon  law,  a  cause  which,  in  the  first  in 
stance,  should  have  been  tried  by  an  inferior  judge.  4.  By 
unjustly  and  without  cause  taking  away  or  restricting  the 
rights  of  subordinates.  5.  By  imposing  upon  inferiors  a 
new  burden  without  sufficient  reasons — v.g.,  by  not  observ 
ing  the  canonical  mode  of  procedure  in  inflicting38  censures, 
in  trials,  and  the  like.  6.  By  appointing  unworthy  persons  " 
to  parishes.  7.  By  unduly  restricting  the  privileges  of  ex 
empt  persons,  especially  of  regulars.40 

443.  Canonical  Remedies  by  which  Inferiors  may  protect 
themselves  against  Abuses  of  Authority  committed  by  Prelates 
— These  remedies  are  chiefly :  I .  Respectful  remonstrances 
(humilis  supplicatio)  addressed  to  the  superior  himself  who  is 
guilty 4!  of  excesses.  Thus,  the  Roman  laws  allowed  of  re 
course  "  a  principe  male  informato  ad  principem  melius  in 

"  Craiss.,  n.  643.       "  Ib.       "  Ib.       M  Ib.      "  Reiff.   lib.  v.,  tit  xxxi.,  n. 
**  Ib.,  n.  6,  10.  41  Craiss..  n.  644. 


220  Rights  and  Duties  of  tliosc  Vested 

formatum,"  or,  as  the  proverb  has  it,  "  ab  Alexandro  dor- 
tniente  ad  vigilantem."  St.  Bernard  tells  us  that  the  "  apos- 
tolica  sedes  hoc  habet  praecipuum  ut  non  pigeat  retractare 
quod  a  se  forte  deprehenderit  fraude  elicitum."  ™  2.  Appeals 
(appcllatio). — The  right  of  appeal — i.e.,  of  removing  a  cause 
from  an  inferior  to  a  superior  judge  or  court  for  re-examina 
tion — is  expressly  granted  by  innumerable  canons/3  and  is,  ac 
cording  to  canonists/4  founded  in  the  law  of  nature.  Appeals 
are  of  two  kinds,  judicial  and  extra-judicial,  according  as  they 
are  interposed  against  judicial  or  extra-judicial  grievances. 
Judicial  and  extra-judicial  appeals  have  this  in  common,  that 
both  alike  always  produce  a  devolutive  effect  (infra,  vol.  ii., 
n.  1242).  But  judicial  appeals  generally  produce,  besides  a 
devolutive,  also  a  suspensive  effect  (infra,  vol.  ii.,  n.  1243), 
while  extra-judicial  appeals  do  not  always  produce  a  suspen 
sive  effect.  3.  Recourse  to  tlie  Holy  See  (recur sus,  siipplicatio}. 
— In  cases  (a)  where  a  person  has  either  lost  the  right  of 
appealing  judicially  or  extra-judicially — v.g.,  where  he  has 
failed  to  interpose  his  appeal  within  ten  days;  (&}  or  where 
he  is  altogether  forbidden  by  the  law  to  appeal  even  in 
devolutivo,v.g.,  where  he  is  suspended  ex  informata  conscientia 
— he  is  allowed,  as  a  last  resort  and  by  way  of  equity,  to  lay 
his  case  before  the  Supreme  Pontiff  for  redress.  The  chief 
difference  between  appeals,  judicial  or  extra-judicial  on  the 
one  hand,  and  recourse  on  the  other,  is  this:  Appeals,  judi 
cial  and  extra-judicial,  can  be  made  to  the  metropolitan  ; 
recourse,  to  the  Holy  See  only. 

/I /1 4.  Q.  In  what  cases  can  appeals  be  made  ? 

A.  Generally  speaking,  it  is  allowed  to  appeal,  except 
where  canon  law  expressly  prohibits  it,  against  any  grava 
men,  whether  judicial  or  extra-judicial.45  It  is  even  lawful  to 
appeal  against  future  or  impending  extra-judicial  grievances, 
even  though  not  yet  threatened  ;  also  against  threatened 
judicial  injuries."  All  appeals,  whether  judicial  or  extra- 

*•  Epist.  clxx.  43  Crai?s.,  I.e.  **  Bouix,  De  Judic.,  vol.  ii.,  p.  247. 

45  Reiff..  lib.  ii..  tit    xxvi'i . ,  n.  32.  4S  Cfr.  Bouix,  1.  c.,  p.  252. 


with  Ecclesiastical  Jurisdiction.  221 

jud'cJai,  .Trust  be  made  within  ten  days"  from  the  moment 
^entence  is  "  pronounced,  when  the  parties  are  present ;  or 
from  the  time  notice  is  received  of  the  sentence  or  griev 
ance,  when  the  parties  are  absent." 

445.  Cases  which  admit  of  no  Appeal. — We  said  above, 
except  uhere  canon  law  expressly  prohibits  appeals.  Now, 
when  are  appeals  expressly  prohibited  by  canon  law? 
Chiefly  in  these  cases:  I.  There  is  no  appeal,  but  only  re 
course  to  Rome/5  against  sentences  ex  informata  conscientia™ 
that  is,  where  the  bishop,  extra-judicially  and  by  virtue  of 
the  c.  i.  d.  R.,  sess.  xiv.,  C.  Trid.,  forbids  a  person  to  re 
ceive  sacred  orders,  or  suspends  him  from  orders  already 
received  "  (<$,  p.  498). 

446. — 2.  The  censures  of  excommunication,  suspension, 
and  interdict,  when  inflicted  before  the  appeal  is  interposed, 
do  not  allow  of  appeals  quoad  effect um  suspensivum,  but  only 
quoad  effectum  devolutivum.  Now,  appeals  in  suspensivo  are 
those  which  cause  the  execution  of  the  censure  to  be  sus 
pended  or  deferred  until  the  superior  to  whom  the  case  is 
appealed  has  given  his  decision.  Appeals  in  devoluttvo  do 
not  suspend  censures  pending  the  appeal."8  If,  however, 
the  appeal  is  made  before  the  censure  is  imposed,  the  effect " 
of  the  censure  is  thereby  suspended.  Thus,  let  us  suppose 
a  bishop  to  inflict  a  censure  conditionally — v.g.,  bv  saying 
that  such  or  such  a  priest  will  be  suspended  unless  he  com 
plies  with  certain  injunctions ;  if  the  priest,  meanwhile,  ap 
peals,  and  refuses  to  obey,  the  bishop  cannot  proceed  to 
impose  the  censure,  his  power  being  suspended  by  the 
appeal. 

447. — 3.  in  causes  relative  to  visitation  and  correction 
of  morals,  an  appeal  h"es  against  the  extra-judicial  or 

'"'•  Cfr.  Bouix,  pp.  281-283.  M  Ferraris,  V.  Appellatio,  art  vii.,  n.  5. 

M  Soglia,  1.  c.,  p.  525.  '6  Craiss.,  n.  647. 

*"  Cii.  Cone.  Trid.,  sess.  xiv.,  cap.  i.,  d.  R.  *'  Bouix,  1.  c.,  p.  252 

**  IK,  p.  254.  "  lb.,  p.  25. 


222  Rights  and  Duties  of  those  Vested 

paternal  acts  and  sentences,  whether  final  or  only  q 
of  the  bishop,  though  only  "  in  devolutivo."  "  But  if  th« 
bishop  proceeds  judicially,  or  by  regular  trial,  or  imposes, 
even  though  extra-judicially,  not  merely  paternal  corrections 
but  regular  ecclesiastical  penalties,  such  as  perpetual  suspen 
sion,  dismissal  from  parish,  an  appeal  lies  to  the  metropolitan, 
even  "  in  suspensivo."  "  4.  An  appeal  against  a  law  is  inadmis 
sible,  unless  the  law  is  either,  I,  unjust,  as  may  be  the  case 
with  particular  laws,  as  statutes  of  dioceses,  decrees  of  pro 
vincial  and  national  councils ;  or,  2,  ceases  to  bind  by  reason, 
V'g">  °f  grave  inconvenience.  Appeals  against  diocesan 
statutes  have  but  an  effectum  devolutivum" 

448. — 5.  No  appeal  is  permitted  against  a  sentence  pro 
nounced  upon  a  person  guilty  of  notorious  crimes  {in  causis 
notoriis),  except  in  case*3  these  crimes  can  be  somewhat  de 
fended — v.g.,  if  a  person,  having  publicly  killed  another, 
alleges  self-defence  as  an  excuse."4  6.  Appeals  in  devolutivo 
only  lie  against  regulations  of  bishops  relative  to  the  cura 
animarum,  the  administration  of  the  sacraments,  divine  wor 
ship,  and  those  things  which  are  to  be  observed  or  avoided 
in  the  celebration  of  the85  Mass. 

449. — 7.  Appeals  are  allowed,  not  only  in  matters  of 
greater  importance  (in  causis  major  thus),  but  also  rn  those  of 
little  consequence  (in  causis  levioribus).  Hence,  if  a"  bishop, 
whether  judicially  or  extra-judicially,  inflicts  by  word  or 
action  an  injustice,  however  slight,  the  ecclesiastic  so 
wronged  may  appeal  to  the  metropolitan,  who  is  bound  to 
admit  the  appeal.  As  a  rule,  this  appeal  suspends  the  effect 
of  the  episcopal  injunction.  Bishops  cannot  proceed  "  ex  in- 
formata  conscientia "  save  in  the  two  cases  specified  by 
the  Council  of  Trent  (sess.  xiv..  c.  i.  d.  R.)  8.  The 

"  Infra,  n.  555.  81  Craiss.,  Elem.,  n.  325,  406. 

M  Bened.  XIV.,  De  Syn.,  lib.  xiii.,  cap.  v.,  n.  12. 

"  Bouix,  1.  c.,  p.  262.  M  Ferraris,  V.  Appellatio,  art.  iv.,  n.  57. 

**  Bened.  XIV.,  Bulla,  Ad  militantis  Ecclesiae,  §  8,  g. 

**  Bouix,  1   c ,  p.  262. 


with  Ecclesiastical  Jurisdiction.  223 

phrase,  ontni  appellatione  remota,  sometimes  used  when  T  the 
Pope  commits  a  case  to  some  one,  does  not  preclude  ap 
peals  in  devolutivo,  but  only  in  suspensive ;  &  fortiori,  this 
clause  does  not  prohibit  remonstrances  and  other  remedies. 

450. — Mode  of  Appealing. — Rule  I. — All  persons,  as  a 
rule,88  who  have  serious  reasons  for  believing  themselves 
injured  have  a  right  to  appeal  their  case.  Rule  II. — Gene 
rally  speaking,  it  is  allowed  to  appeal  from  any "  judge 
whatever.  We  say,  generally  speaking;  the  exceptions  are: 
i.  No  appeal  lies  from  the  sentence  of  the  Pope  even  to  an 
oecumenical  council,  nor  from  an  oecumenical  council ;  for 
both  of  these  tribunals  are  ultimate  and  supreme,  having  no 
superior.  Appellants  to  a  future  oecumenical  council  incur, 
ipso  facto,  excommunication,  reserved,  speciali  modo,  to  the 
Holy  See  even70  at  present.  2.  There  is  no  appeal  from  the 
decisions  of  the  entire  College  of  Cardinals  or  of  the  Con- 
gregationes  Romanae,71  nor  from  the  final  judgments  of  the7' 
Rota  Romana.  3.  Nor  from  the  decision  of  arbitrators 
(arbitri  compromissarii)  freely  chosen  by  the  contending 
parties." 

451.  Rule  III. — As  a  rule,  the  appellant  must  interpose 
his  appeal  in  the  presence"  of  the  judge  "  a  quo  appellatur  "  ; 
for  the  judge  a  quo  (appellatur)  must  be  notified  of  the  ap 
peal,  so  that  he  may  not  proceed  any  farther  in  the  case.76 

452.  Rule  IV. — Appeals,  judicial  or  extra-judicial,  except 
when  made  to  the  Pope,  must  be  made  from   the  inferior 
judge  to  the  immediate  superior.7'    Hence  appeals,  judicial  or 
extra-judicial,  I,  from  rural  deans,  or  other  judges  subject 
to  bishops,  must  be  made  to  the  bishop  or  his  vicar-general, 
sede  plena;  to  the  capitular"  vicar,  with  us  administrator, 
tfdf  vacante.     2.  From  the  bishop  or  his  vicar-general,  and, 

"  Bouix,  1.  c.,  p.  265.  M  Ib. ,  p.  248.  ~  Ib. ,  p.  267. 

"  Const.  Apost.  Sedis.  Tl  Craiss.,  n.  658.  "  Bouix,  1.  c.,  p.  268, 

"  Ib.  T4  Ib.  '*  Schmalzgr.  in  tit.  xxviii,,  lib.  ii.,  n.  4^. 

T*  Bouix,  1.  c.,  p.  270.  TT  Ib.,  p.  271. 


22/|  Rights  and  Diities  of  those  Vested 


sede  vacante,  from  the  chapter,  vicar-capitular,  or  admimstra- 
tor  to  the  archbishop.     3.  From  the  archbishop  successively 
to  the  primate,  patriarch,  and  Pope.     4.  No  appeal  lies  from 
the  vicar-general  to  the  bishop,  nor  from  the  Roman  Con 
gregations  to  the  Pontiff.     5.  Appeals  from  a  delegatus  must 
be  made  to  the  delegans™     We  said  above,  except  when  made 
to  the  Pope ;  for  not  only  bishops,  but  also  priests  and  infe 
rior  :9  ecclesiastics,  may  appeal  directly  to  the  Holy  See  ;  the 
reason  is  that  the  Pope  has  concurrent  jurisdiction  with  all 
inferior  ordinary  judges.80     This  right  of  appealing  directly 
to  the  Holy  See  is  thus  affirmed  by  the  Vatican  Council:81 
"  Declaramus  eum  [Rom.    Pontificcm]   esse  judicem  supre 
mum  fidelium,  et  in  omnibus  causis  ad  examen  ecclesiasti- 
cum  spectantibus,  ad  ipsius  posse  judicium  rccnrri ;  Sedis  vero 
Apostolicae,  cujus   auctoritate   major   non   est,  judicium  a 
nemine  fore   retractandum,   ncque   cuiquam   de   ejus   licere 
judicare  judicio.     Quare  a  recto  veritatis  tramite  aberrant, 
qui  affirmant,  licere  ab  judiciis   Romanorum   Pontificum  ad 
oecumenicum  concilium  tanquam  ad  auctoritatem  Romano 
Pontifice  superiorem  appellare."     Nay,  direct  appeals  to  the 
Holy  See  are  not  only  lawful,  but  prevail  over  and  take  pre 
cedence  of  all  other  appeals  to  inferior  tribunals.     Thus,  if, 
of  the  two  parties  to  a  suit,  one  appeals  to  the  Sovereign 
Pontiff,  the  other  to  the  immediate  superior — v.g.,  the  metro 
politan—the  suit  or  case  must  be  brought  before  the  Holy 
See,  provided  the  party  appealing  to  the  Pope  notifies  the 
immediate  superior  of  his  action.82 

453.  Rule  V. — Appeals  from  definitive  sentences,  if  inter 
posed    intmediately — i.e.,    when   the   judge   is   still   on"   the 
/  bench  (in  continenti,  stante  pede) — may  be  made  viva  voce  in 
i:he  words,  I  appeal,  or  the  like."     But  if  these  appeals  are 


Bouix,  1.  c.,  p.  271. 


Soglia,  vol.  i.,  p.  252. 


Leurenius,  Forum  Eccl.,  tit.  xxviii.,  lib.  ii.,  qu.  1063. 


81  Sess.  iv.,  c.  iii.,  in  fine. 

83  Bouix,  De  Judic.,  vol.  ii.,  p.  274. 


Craiss.,  n.  661. 
Soglia,  vol.  ii.,  p.  522. 


with   Ecclesiastical  Jurisdiction.  225 

/  intcrrallum—i.e.,  one,  two.  or  more  days  after  the  \ 
sentence    has    been    pronounced — they  must  be  in  writing. 
However,  instead  of  making  the  appeal  viva  voce,  or  in  writ 
ing,  as  just  explained,  the  appellant  may  begin  the  journey 
to  the  superior  for  the  sake  of  appealing.     Thus,  the  voyage  \ 
to  Rome  has,  of  itself,  the  effect  of  an  appeal,  if  undertaken 
within  ten  days  from  the  time  sentence  was  pronounced  or  •] 
the  grievance  inflicted,  and  provided  \\\z  judex  a  quo  be  noti- 
fie^d  of  the  proposed  journey/5    The  reason  why  the  journey 
to  Rome  has  the  same  effect  as  a  formal  and  express  appeal 
is  that  acts  express  a  person's  intentions  more  strongly  than 
words.    Consequently  Pope  Innocent  III.  expressly  decrees  : 
"Cum  sit  plus  ad  Sedem  Apostolicam  facto  (i.e.,  itinere]  pro- 
vocare,  quam  verbo"  (cap.  Dilccti  filii  52,  De  App.,  ii.,  28). 
Whenever,  therefore,  the  law  of  the   Church  authorizes  a\ 
person  to  appeal,  it  empowers  him,  by  that  very  fact,  to  go    } 
to  Rome  to  prosecute  his  appeal. 

f^iP  This  teaching  is  clearly  laid  down  in  the  law  of  the 
Church.  Thus  Pope  Nicholas  enacts  :  "  Revera  Justus  medi 
ator  (judex)  non  est,  qui  uno  litigante  et  altero  absente, 
amborum  emergentes  lites  decidere  non  formidat.  His  ita 
praemissis,  volumus  et  Apostolica  auctoritate  monemus,  ut  si_Pres- 
iytcr.  de  quo  agititr,  post  cxcominunicationem  suam,  Apostolicam 

Sedem  adire  voluerit,  nullus  iter  ejits  impedire  praesumat"  (can. 

^*~~— — •"""""""""'^'^  i  _  ""••»^fci__ i»n»»-^^jL_^_^^__^— ^"Hgmaaf 

12,  c.  iii.,  q.  9).  Pope  Innocent  III.  (1213)  decided  a  cele 
brated  case  on  the  same  principles.  The  case  was  this:  A 
controversy  had  arisen  between  the  Archbishop  of  Canter 
bury  and  certain  monks  of  his  diocese  in  regard  to  a  chapel. 
The  monks  sent  two  of  their  number — Jo.  and  H. — to  Rome 
to  prosecute  their  appeal  before  the  Holy  See.  These  two 
monks,  after  they  had  set  out  for  Rome,  were  excommuni 
cated  by  the  archbishop.  The  two  monks  submitted  this 
latter  act  to  the  Pope  as  an  additional  grievance  against  the 
archbishop.  Pope  Innocent  III.  decided  that  the  excommu- 

85  Craiss.,  n.  5981. 


226  Rights  and  Ditties  of  those  Vested 

nication  was  null  on  the  following  ground:  "Cum  autem 
plus  sit  ad  Sedem  Apostolicam  facto  provocare  quam  verbo, 
et  ipsis  [monachis]  propter  dictam  causam  ad  Romanam 
Sedem  venientibus  intelligatur  ad  Sedem  Apostolicam  pro- 
vocatum  ;  mandamus,  quatenus  si  est  ita,  dictos  Jo.  et  H. 
denuncietis  excomrnunicationis  vinculo  non  teneri "  (cap. 
Dilcctifilii  52,  De  App.,  ii.,  28).  See  also  Const.  Cordi  nobis, 
issued  by  Pope  Innocent  IV.  in  1245  (cap.  Cordi  nobis  i,  De 
App.  in  6°,  ii.  15). 

Rule  VI. — Letters  (libelli  dimisscrii,  apostoli,  from  anocr- 
roXoi,  missi]  from  \hejudex  a  quo  to  i\\cjudex  ad  quern,  certi 
fying  to  the  appeal,'8  are,  as  a  rule,87  necessary,  no  malfter 
whether  the  appeal  is  made  against  a  judicial  or  extra-judi 
cial  grievance.  We  say,  as  a  rule;  for,  if  the  jndcx  a- quo  re 
fuses  such  certificate,  the  appellant  may  nevertheless  prose 
cute  his  appeal.88 

Rule  VII. — The  time  fixed  by  canon  law  within  which  ap 
pellants  must  interpose  appeals,  ask  for  the  apostoli,  prose 
cute  and  terminate  their  appeal,  is  named  <^><-  fajalcs** 
fatalia.  \.  We  have  already  seen  u'hcn  appeals  should  be 
made.  2.  The  apostoli  should  be  solicited  by  the  appellant 
and  granted  by  \hejudex  a  quo  within  thirty  days.  3.  One 
X£ar,  and  for  just  reasons  l^ojjrears,  are  given  the  appellant 
to  prosecute  and  terminate  his  appeal,  from  extra-judicial  as 
well  as  judicial  grievances.80 

ART.  IV. 

On  Appeals  to  the  Civil  Power  against  Abuses  committed  by  Ex 
clesiastical  Superiors — De  appcllatione  tanquam  ab  abusu. 

454.  'Yheappellatio  ab  abusu  consists  in  having  recourse  or 
appealing  to  the  civil  power  for91  protection  against  abuses 
committed  by  ecclesiastical  superiors  in  the  exercise  of  their 
jurisdiction."  Now,  ecclesiastical  superiors  may  abuse 

*  Bouix,  1.  c.,  p.  276.     *'Ib.,p.  277.     88Ib.,p.  278      M  Soglia,  vol.  ii.,p.  525. 
90  Bouix,  1.  c.,  pp.  281-285.      "  Craiss.,  n.  666.      "»  Phillips,  Lehrb.,  p.  773. 


with  Ecclesiastical  Jurisdiction.  227 

their  authority  either  by  placing  a  false "  construction  upon 
laws  of  the  Church,  and  thus  giving  an  unjust  sentence  and 
inflicting  an  undeserved  penalty,  or  by  acting  contrary  9S  to 
ecclesiastical  law — v.g.,  by  imposing  censures  without  pro 
per  trial. 

455-  Q-  Is  it  allowed  to  appeal  to  the  civil  power  or  seek 
redress  in  the  civil  courts  against  wrongs  inflicted  by  ec 
clesiastical  superiors  ? 

A.  Such  appeals  are,  as  a  rule,  not  only  unlawful,  but  null 
and  void.  Thus  Pope  Symmachus  forbids  "  quibuslibet 
laicis  .  .  .  quolibet  modo  aliquid  decernere  de  faculta- 
tibus  ecclesiasticis."  The  very  title  of  this  canon  is: 
"  Quaecumque  a  principibus  .  .  .  in  ecclesiasticis  rebus 
decreta  inveniuntur,  nullius  auctoritatis  esse  noscuntur. " 9T 
For  the  Church,  being  a  perfect  and  supreme  society, 
is  necessarily  the  supreme  and,  therefore,  sole  and  ulti 
mate  judge  in  matters  pertaining  to  her  jurisdiction— 
i.e. ,  in  ecclesiastical  and  spiritual  things.98  The  civil 
power,"  so  far  from  having  any  authority  over  the 
Church  in  this  respect,  is  itself  subject  to  her.  Persons, 
therefore,  who  have  reason  to  believe  themselves  in  any  way 
unjustly  treated  by  their  ecclesiastical  superiors,  can  seek 
redress  only  in  the  Church  herself — namely,  by  appealing  to 
the  proper  ecclesiastical  superior,  and,  in  the  last  resort,  to 
the  Sovereign  Pontiff.  The  Holy  See  is  the  supreme  tri 
bunal  in  the  Church  ;  its  decisions  are  unappealable,  as  is 
thus  stated  by  the  Vatican  Council :  I0°  "  Docemus  .  .  . 
Sedis  Apostolicae  judicium  a  nemine  fore  retractandum, 
neque  cuiquan:  de  cjus  licere  judicare  judicio."  In  no  case, 
therefore,  is  it  allowed  to  appeal  to  civil  courts  from  the 
decisions  of  the  Holy  See.  But  can  it  become  lawful,  under 
certain  circumstances,  to  have  recourse  to  the  civil  courts 

84  Phillips,  Kirchenr.,  vol.  ii.,  p.  572.  95  Soglia,.  vol.  i.,  p.  342. 

"  Can.  Btne  quidem,  i,  dist   96.     "7  Cap.  Quaker,  17,  De  Judic.  (lib.  ii.  Deer.) 

98  Cfr.  Bouix,  De  Judic.,  vol.  i.,  p.  93  seq.        "  Craiss.,  n,  667. 

100  Sess.  iv.,  cap.  iii.  ;  cfr.  Syllab.,  prop.  xli. 


228  Rights  and  Duties  of  those  Vested 

against  irmrieL  inflicted  by  inferior  ecclesiastical  judges- 
T.g.j  by  bishops?  Soglia  101  grants  that  such  recourse  may, 
at  times,  become  lawful,102  when,  e.g.,  the  ecclesiastical  judge 
<of  appeal — v.g.,  metropolitan — is  unwilling  or  unable  to  af 
ford  relief,  and  when,  moreover,  it  is  morally  impossible  to 
recur  to  the  Holy  See  ;  the  case,  therefore,  is  speculative 
rather  than  practical. 

^HT"  456.  Q.  Can  priests  in  the  United  States  have  re 
course  to  the  civil  courts  for  redress  against  alleged  acts  of 
injustice  inflicted  on  them  by  bishops  or  against  other  ec 
clesiastics  ? 

A.  We  must  distinguish  between  those  matters  or  causes 
which  are  strictly  ecclesiastical,  and  those  which  are  tem 
poral  or  mixed.  By  matters  purely  ecclesiastical  (res  stricte 
ecclesiasticae)  are  meant  all  questions  or  matters  relating  (aj 
to  faith,  (b]  morals,  (c)  the  administration  of  the  sacraments, 
especially  of  matrimony,  (//),  the  sacred  functions  or  divine 
worship,  (e),  and  the  rights  and  duties  annexed  to  ecclesias 
tical  offices  and  dignities.103  All  other  matters,  such  as 
those  relating  to  debts,  wills,  rights  of  property  and  the  like, 
are  considered  res  temporales.™ 

We  now  answer :  They  cannot,  in  matters  strictly  ecclesi 
astical,  as  is  evident,  among  other  proofs,  from  the  Instruc- 

101  L.  c.(  p.  344. 

105  Of  course,  this  must  not  be  understood,  as  though,  even  in  the  case 
tinder  consideration,  it  were  allowed  to  carry  the  cause  itself  into  the  civil 
court;  for  canonists  unanimously  hold  that  the  civil  power  cannot,  save  by 
concession  of  the  Church,  take  any  cognizance  whatever  of  purely  ecclesiastical 
matters.  Hence,  even  in  the  case  referred  to,  it  is  lawful  to  have  recourse  to 
civil  tribunals  only  for  the  purpose  of  obtaining  a  new  ecclesiastical  trial  or  of 
being  enabled  to  appeal  to  the  higher  ecclesiastical  judge;  and  even  this  appeal 
can  take  place  only  where  the  ecclesiastical  superior  has  notoriously  abused 
his  power,  and  when  all  other  ecclesiastical  remedies  have  been  vainly  tried. 
Cfr.  Phillips,  Kirchenr.,  vol.  ii.,  pp.  571-579;  Nat.  Alexander,  saec.  iv.  pars, 
i  ,  pp.  23.  32,  pars,  ii.,  pp.  25-40.  Paris,  1679. 

103  Bened.  XIV.,  De  Syn.,  1.  9,  c.  9,  n.  2.  104  Ib.,  n.  7. 


with  Ecclesiastical  Jurisdiction.  229 

tion  of  the  S.  Congr.  de  Prop.  Fide,  Sept.  2,  1837,  on  the 
decrees  of  the  Third  Provincial  Council  of  Baltimore.1" 
We  say,  in  matters,  etc.  It  is  true  that  according  to  the  gen 
eral  law  of  the  Church,  as  formerly  in  force,  ecclesiastics 
were  not  allowed  to  have  recourse  to  secular  tribunals 
against  other  ecclesiastics,  even  in  temporal  matters.106  But 
this  general  law  no  longer  obtains,  having  been  modified  by 
concordats,  or  by  custom  to  the  contrary.  Hence,  as  the 
S.  C.  de  Prop.  Fide  in  the  above  Instruction  indicates,  ec 
clesiastics  or  religious  are  no  longer  forbidden  to  bring  be 
fore  the  civil  courts  causae  mixtae — i.e.,  those  causes  where 
the  personae  sunt  ecclesiasticae  sed  res  de  quibus  controversial 
est,  tcmporalcs  ant  fainiliares.  This  holds  especially,  as  the 
S.  Congregation  says,  in  the  above  Instruction,  in  non-Catho 
lic  countries,  where  redress  can  scarcely  be  obtained  outside 
of  civil  tribunals.  However,  according  to  the  declaration  of 
the  5.  Congr.  S.  Officii,  Jan.  23,  ^886,  approved  by  Pope  Leo 
XIII. ,  ecclesiastics  and  others  must  always  obtain  leave  from 
the  Hol^_See_ before  they  can  have  recourse  to  the  secular 
court  against  a  bishop,  even  though  it  be  in  teragura]  mat 
ters. 

J^gF"  Having  seen  how  it  is  forbidden  to  sue  bishops  in 
secular  courts,  we  may  be  permitted  to  digress  somewhat 
from  our  subject,  and  to  ask  :  Can  priests  and  ecclesiastical 
persons  in  general  sue  other  ecclesiastical  persons,  inferior 
to  bishops,  in  secular  courts  ?  We  answer:  I.  They  certainly 
cannot,  in  matters  strictly  ecclesiastical.  This  is  manifest 
from  what  has  been  said  above.  2.  They  can,  m  temporal 
matters  ;  but  before  doing  so,  they  must  obtain  permission  I 
from  the  bishop. 

fjgf0  This  whole  teaching  as  regards  suing  bishops  and 
inferior  ecclesiastics  in  secular  courts  is  given  in  the  fol 
lowing  Declaration  of  the  S.  Congr.  5.  Officii,  Jan.  23,  1886: 

105  See  this  Instruction  in  the  Cone.  Prov.  Bait.,  ab  an.  1829-1849,  p.  140. 

106  Supra,  n.  206. 


230  Rights  and  Duties  of  those  Vested 

"  Suprema  Congr.  S.  R.  et  U.  J.  non  semel  declaravit  caput 
cogentcs  (Const.  Apost.  Sedis  Pii  IX.)  non  afficere  nisi  legis 
lator  cs  et  alias  auctoritates  cogentes  sive  directe  sive  indi- 
recte  judices  laicos  ad  trahendum  ad  suum  tribunal  personas 
ecclesiasticas  praeter  canonicas  dispositiones.  Hanc  vcro 
declarationem  SS.  D.  N.  Leo  Papa  XIII.  probavit  et  con- 
rirmavit.  .  .  .  Ceterum  iis  in  locis,  in  quibus  fori  privi- 
legio  per  summos  Pontinces  derogatum  non  fuit,  si  in  eis 
non  datur  jura  sua  persequi,  nisi  apud  judices  laicos,  tenentur 
singuli  prius  a  proprio  ipsorum  Or  dinar  io  veniam  pet  ere  ut  cler- 
icos  in  forum  laicorum  convenire  possint ;  eamque  Ordi- 
narii  nunquamdcnegabunt,  turn  maxime,  cum  ipsicontroversiis 
inter  pa'rtes  conciliandis  frustra  operam  dederint.  Episcopos 
autem  in  id  forum  convenire  absque  venia  Sedis  Apostohcae 
non  licet.  Et  si  quis  ausus  fuerit  trahere  ad  judicem  seu 
judices  laicos  vel  clericum  sine  venia  Ordinarii,vel  Episcopum 
sine  venia  S.  Sedis,  in  potestate  eorundem  Ordinariorum  erit 
in  eum,  praesertim  si  fuerit  clericus,  animadverterc  poems  et  cen- 
suris  ferendae  sententiae  uti  violatorem  privilegii  fori,  si  id 
expedire  in  Domino  judicaverint" 

f^iP  In  accordance  with  this  declaration,  the  S.  Congr. 
de  Prop.  Fide,  in  a  general  meeting  held  May  17,  1886,  in 
answer  to  the  question  "  quinam  modus  tenendus  sit  cum 
sacerdotibus  qui  recurrant  ad  civilia  tribunalia,"  answered  as 
follows:  "  Declarat  S.  Congregatio  nunquam  sese  fore  admis- 
surum  recursum  vel  appellationem  sacerdotum  qui  ad  judices 
laicos  trahere  ausi  fuerint  vel  clericum  sine  venia  Ordinarn,  vel 
Episcopum  sine  venia  Apostolicae  Sedis,  sive  in  causa  ecclesias- 
tica  sive  non,  nisi  prius  recursum  ad  civile  tribunal  interpos- 
itum  deseruerint.  Episcopi  vero  juxta  declarationem  capitis 
cogentes  a  Suprema  Inquis.,  die  23  Januarii,  1886  editam,  pos- 
sunt  in  praedictum  clericum  animadvertere,  poenis  et 
censuris  ferendae  sententiae,  maxime  suspensions  a  divinis, 
servatis  tamen  servandis  et  pro  gravitate  causae,  si  id  ex 
pedire  in  Domino  judicaverint.  Quod  si  venia  convenient!! 


with  Ecclesiastical  Jurisdiction.  231 

in  forma  laicorum  ab  Ordinariis  petatur,  ipsi  nunquam  earn 
denegabunt  turn  maxime  cum  ipsi  controversiis  inter  partes 
conciliandis  frustra  operam  dederint."  107 

I3P"3  Furthermore,  to  the  above  answer,  the  S.  C.  de 
Prop.  Fide,  in  a  general  meeting  held  Sept.  6,  1886,  replying 
to  the  question,  "  Quomodo  agendum  cum  clericis,  qui  ce- 
dunt  laicis  jura  sua  erga  alios  clericos  vel  Episcopos,  ut  ipsi 
laici  loco  eorum  recurrant  ad  Tribunal  laicum,"  added  the 
following  declaration  :  "  Quod  volens  Ecclesiasticus  sua  jura 
cedere  laico  in  quaestione  aliqua  contra  clericum,  exposcere 
debet  prius  veniam  ab  Episcopo,  et  si  de  lite  agatur  contra 
Episcopum,  ab  Apostolica  Sede.  Quod  nisi  faciat  vel  obti- 
neat,  subjectus  censetur  praescriptionibus  emanatis  contra 
trahentes  clericos  vel  Episcopos  ad  forum  laicum  ;  censetur 
enim  agere  in  fraudem  legis."  109 

|5Jir"  The  Third  Plenary  Council  of  Baltimore  is  in  full  ac 
cord  with  this  legislation.  Thus  it  decrees  (n.  84) :  "  Dis- 
tricte  iisdem  (sacerdotibus)  prohibemus,ne  contra  sacerdotem 
vel  clericum  de  rebus  ctiani  temporalibus  coram  judice  civili 
litem  intentent,  sine  permissione  scripto  expressa  ipsius  Episcopi. 
...  In  rebus  vero  ecclesiasticis  .  .  .  judicium  non  pertinet, 
nisi  ad  jurisdictionem  ecclesiasticam  " 

For  fuller  information  on  this  whole  question  see  the 
learned  testimony  of  Cardinal  Cullen  in  the  O'Keeffe  trial, 
pp.  390,  391,  397.  See  especially  Pope  Benedict  XIV.,  De 
Syn.,  1.  9,  c.  9. 

The  Third  Plenary  Council  (n.  84)  further  adds:  "  Om- 
nino  vetamus,  ne  contra  laicum  de  pecunia  pro  sedium  loca- 
tione  vel  alia  de  causa  ecclesiae  debita  coram  tribunali 
civili  (sacerdotes)  agant,  nisi  accepta  prius  in  scriptis  episcopi 
ticentia." 

101  See   Mgr.  Zitelli,  Appar.  Jur.  Eccl.,  pp.  217,  218  ;    Romae,  1886, 
108  Apud  Zitelli,  Appar.,  p.  546. 


PART  III. 


OF  PERSONS  PERTAINING  TO  THE  HIERARCHY 
OF  JURISDICTION  IN  PARTICULAR  — i.e.,  OF 
ECCLESIASTICS  AS  VESTED  WITH  "  JURISDIC- 
TIO  ECCLESIASTICA  "  IN  PARTICULAR. 

CHAPTER   I. 

OF  THE   SOVEREIGN   PONTIFF. 

ART.  I. 
Of  the  Roman  Pontiff  in  General. 

457. — 1.  The  Sovereign  Pontiff  is  named  Pope  (Papa), 
which  means  father.1  This  name  is  at  present  applied  to 
the  Roman  Pontiff  only,  and  not,  as  formerly,  to  bishops, 
and  even  minor  ecclesiastics."  The  Supreme  Pontiff  is,  jure 
divino,  head  of  the  entire  Church  and  the  centre  of  its  unity, 
successor  of  St.  Peter,  vicar  of  Christ,  father  and  teacher  of 
all  the  faithful.8  II.  We  have  already  spoken  of  the  election 
of  the  Roman  Pontiff,  and  shall  here  add  only  a  few  words 
on  this  point.  The  Pope  cannot  elect  his  successor.4  Some 
Popes,  it  is  true,  pointed  out  those  whom  they  thought 
most  worthy  of  tne  Pontificate;  this,  however,  was  com- 
mendatio,  not  electio?  The  Pope  may  establish  the  form  to 
be  observed  in  the  election  of  the  Supreme  Pontiff,  for  no 
special  form  was  determined  by  Christ ;  but  he  cannot,  even 

1  Craiss.,  n.  671.  "  Devoti,  lib.  i.,  tit.  iii.,  n.  12.  '  Ib.,  n.  13. 

4  Ferraris,  V.  Papa   »rt.  i.,  n.  i.  '  Ib.,  n.  ra 

232 


Of  the  Sovereign  Pontiff.  233 

with  the  consent  of  the  cardinals,  issue  a  constitution  em 
powering  a  Pope  to  elect  his  successor."  Not  merely  cardi 
nals,  but  others,  even  laymen,  are  eligible  to  the  7  Pontifi 
cate,  though  since  the  time  of  Urban  VI.  cardinals  only  have 
been  elected.8  III.  The  Pope  always  wears  the  stole'  (ora- 
riuni) ;  he  also,  at  times,  wears  the  tiara — i.e.,  a  hat  or  mitre 
encircled  with  three  crowns,  as  an  emblem  of  his  supreme 
magisterial,  legislative,  and  judicial  authority.10  He  does 
not  make  use  of  the  crosier,  as  the  curved  staff  denotes  limi 
tation  of  power.11  Again,  "  solus  Romanus  Pontifex,  in  mis- 
sarum  solemniis  pallio  semper  utitur  et  ubique."™  Others 
entitled  to  the  pallium  can  wear  it  only  on  certain  days,  and 
in  their  churches,  but  not  out  of  them,  because  they  are 
called  only  in  partem  sollicitudinis,  non  in  plenitudinem  potesta- 
tis.  The  cross  is  borne  before13  the  Pope  wherever  he 
goes  ;  others,  even  patriarchs,  cannot  make  use  of  this  privi 
lege  in  Rome  or  where  the  Pope  may  be.  Moreover,  the 
Pope  usually  carries  the  Blessed  Sacrament  with"  him 
when  on  long  journeys.  In  the  following  articles  we  shall 
treat  of  the  primacy  and  the  rights  attached  to  it. 

ART.  II. 
On  the  Primacy  of  the  Sovereign  Pontiff. 

458.  Nature  of  the  Primacy  conferred  by  God  upon  the  Pope 
— Primacy  or  supremacy,  in  general,  is  of  two  kinds :  one  of 
honor,  the  other  of  jurisdiction.  The  primacy  of  honor 
(primatns  honoris)  is  that  by  which  a  person  holds  the  first 
place,  without  having  any  authority  over  others.  The  pri 
macy  of  jurisdiction  (primatns  jurisdictionis)  is  that  by  which 

•  Fenaris,  V.  Papa,  art.  i.,  n.  12.                                                 7  Ib.,  n  46-49, 

*  Phillips,  Lehrb.,  p.  206.     Ratisbon,  1871.             *  Craiss.,  n.  673.  10  Ib, 
11  Cap.  de  Sacr.  Unct.              ia  Cap.  ad  Honor,  de  Auctoritate  et  Usu  Pallii. 
'•  Walter,  Kirchenr,  §  124.     Bonn,  1839.               14  Craiss.,  n.  673. 


234  Of  the  Sovereign  Pontiff. 

a  person  not  only  takes  precedence  of  others,  but  has  au 
thority  over  them.13  The  primacy,  as  vested  jure  divino  in 
the  Roman  Pontiff,  is  the  pre-eminence  both  of  honor  and 
of  jurisdiction16  over  the  whole  visible  Church,  and  consists 
in  the  full  and  supreme  I7  ordinary  and  immediate  power  to 
rule  over  the  whole  Church — "  pascendi,  regendi  ac  guber- 
nandi  universalem  E,cc\esizim  plena  potestas"  l° 

459.  Institution  of  the   Primacy. — We    lay  down  the  fol 
lowing    proposition :    "  The    Roman    Pontiff    has    received 
from  VJ  God  (jure  divino)  not  only  the  primatns  honoris,  but 
also20  jurisdictionis   over   the  entire   Church."      This   is,  at 
present,  de  fide.™     The  proposition  has  two  parts  :  the  first 
•egards  the  institution  of  the  primacy,  and  asserts  that  the 
?ope   has,  jure  divino,   the  primacy  of  jurisdiction  ; 'this  is 
igainst   Richer   and    the    Jansenists,    who    maintain "    that 
Christ   first   and    directly   gave    jurisdiction   to   the    entire 
Church,23  or  the  body  of  the  faithful,  by  whom  it  is  dele 
gated  to  the  Pope  and  the  24  bishops.     The  second  has  refe 
rence  to  the  nature  of  the  primacy,  and  is  chiefly  against 
the  Greek  schismatics,  who  assert  that  the  Roman  Pontiff 
has  only  the  primatum  honoris,  and  is  but  the  first  among 
equals.      We   now  proceed   to   prove   simultaneously  both 
parts  of  the  above  proposition   as  follows  :    Peter  and   his 
successors  received  from  Christ  the   primacy,   not  only  of 
honor,  but  also  of  jurisdiction  over  the  whole  Church  ;  but 
the  Roman  Pontiff  is  the  successor  of  Peter,  therefore  the 
Roman  Pontiff  holds  from  Christ  the  primacy  not  only  of 
honor,  but  also  of  jurisdiction  over  the  universal  Church.*' 

460.  We  prove  the  major  as  follows  :  I.  Peter  received  thi 

14  Craiss.,  n.  674.  '*  Perrone,  De  Rom.  Pontif.,  cap.  i. 

17  Phillips,  Lehrb.,  p.  170.  w  Cone.  Vaticanum,  sess.  iv. ,  cap.  iii. 

18  Phillips,  1.  c.(  p.  170.  !0  Craiss.,  n.  675. 

21  Cone.  Vaticanum,  sess.  iv.,  cap.  iii.,  cfr.  Craiss.,  n.  676;  Craiss.,  Ele« 
menta,  n.  339.  w  Cfr.  our  Notes,  p.  39. 

"  Cfr.  Perrone,  1.  c.      *4  Sogha,  vol.  i.,  p   170.      "  Salzano,  1.  c.,  vol.  ii.,  p.  62. 


Of  the  Sovereign  Pontiff.  235 

primacy  from  our  Lord  Himself™  This  we  prove,  I,  from 
Sacred  Scripture.  Our  Lord  said  to  St.  Peter  :  "  Tu  es  Pe- 
trus,  et  super  hanc  petram  aedificabo  Ecclesiam  meam,  et 
portae  infer!  non  praevalebunt  adversus  earn." "  Here 
Christ  compares  his  Church  to  a  material  edifice  and  -Peter 
to  its  foundation.  Now.  the  foundation  is  to  the  house  what 
the  head  is  to  the  body.  Our  Lord,  therefore,  made  Peter  the 
head  of  his  Church — i.e. ,  conferred  upon  him  the  primacy 
of  jurisdiction  over  the  entire  Church.  For  the  head 
governs  the  body,  as  the  foundation  supports  the  building." 
Hence  Pope  Leo  I.  says  :  "  Ut  exortem  se  mysterii  intelli- 
geret  esse  divini,  qui  ausus  fuisset  a  Petri  soliditate  rece- 
dere.  Hunc  enim  .  .  id  quod  ipse  erat,  voluit  nominari, 
dicendo,  TuesPetrus,etc.,  utaeterni  aedificatio  templi  . 
in  Petri  soliditate  consisteret."  Again,  our  Lord  said  : 
"  Tibi  dabo  claves  regni  coelorum."1  Now,  among  nearly 
all  nations,  especially  the  Jewish,  the  giving  of  the  keys  of  a 
house  or  city  was  the  symbol  of  the  bestowal  of  full  control 
over  such  house  or  city.  Hence,  our  Lord,  by  these  words, 
promised  to  confer  upon  Peter  full — that  is,  supreme — 
power  over  the  kingdom  of  heaven — i.e.,  the  Church.31 
After  his  resurrection  our  Lord  fulfilled  this  promise  in 
these  words  addressed  to  St.  Peter:  "  Pasce  agnos  meos, 
pasce  oves  meas."  Exegetists  show  that  in  the 
ordinary  language  of  the  Sacred  Scriptures  the  word 
pascere  (rtoi^iaiveiv)  means  to  govern.33  Again,  to  feed  sheep 
is  to  lead  them  to  fertile  pastures,  guide,  watch  over,  and 
protect  them  ;  in  a  word,  to  have  complete  charge  of 
them.34  Our  Lord,  therefore,  in  charging  Peter  to  feed  his 
sheep — that  is,  the  entire  Church  conferred — upon  him  the 

M  First  part  of  the  major.  "7  Matth.  xvi  .  18. 

*  Perrone,  1.  c.,  prop.  i.  ™  Can.  Ita  Dominus,  7,  dist.  19. 

30  Matth.,  1.  c.  31  Perrone,  I.  c. ;    Craiss.,  n.  675. 

30  Jo.  xxi.,  15-18.  33  Phillips   Kirchenr.,  vol.  i.,  p.  114. 
34  S  ilzano   1.  c.,  vol.  ii  ,  p.  63. 


236  Of  the   Sovereign  Pontiff. 

supreme  teaching  and  governing  power  over  the  whole 
Church.35  Thus  St.  Bernard/6  addressing  Pope  Eugene  III., 
beautifully  writes:  "  Tibi  universi  crediti,  uni  unus ;  nee 
modo  ovium,  sed  et  pastorum  tu  unus  omnium  pastor."  " 
2.  From  the  Council  of  the  Vatican  : se  "  Si  quis  dixerit,  B.  Pe- 
trum  apostolum  a  Christo  Domino  constitutum  non  esse 
apostolorum  omnium  principem  et  totius  Ecclesiae  mili- 
tantis  visibile  caput ;  vel  eundem  honoris  tantum,  non  autem 
verae  propriaeque  jurisdictionis  primatum  ab  eodem  D.  N. 
Jesu  Christo  directe  et  immediate  accepisse ;  anathema 
sit."  II.  The  primacy  of  blessed  Peter™  is  jure  dwino  per 
petual,  and  must,  therefore,  pass  to  the  successors  of  St. 
Peter.  This  is  evident  from  the  fact40  that  the  primacy 
was  not  instituted  for  the  personal  benefit  of  Peter,  but  lor 
the  welfare  of  the  entire  Church — i.e.,  for  the  preservation 
of  her  unity  4i  both  in  faith  and  communion. 

461.  The  minor- — namely,  the  Roman  Pontiff  is  the  suc 
cessor  of  St.  Peter — is  thus  denned  by  the  Vatican  Coun 
cil  : 43  "  Si  quis  ergo  dixerit,  non  esse  ex  ipsius  Christi  Dm 
institutione,  seu  jure  divino,  ut  B.  Petrus  in  primatu  super 
universam  Ecclesiam  habeat  perpetuo  successores ;  aut  Ro- 
manum  Pontificem  non  esse  B.  Petri  in  eodem  primatu  suc- 
cessorem ;  anathema  sit."  Protestants  strain  every  nerve  to 
show  that  Peter  either  never  came  to  Rome,  or,  having 
been  there,  left  it  again,  as  he  did  Antioch  ;  that,  conse 
quently,  the  Roman  Pontiffs  are  not  the  successors  of  St. 
Peter.  A  brief  outline  of  Peter's  life  alter  our  Lord's  ascen 
sion  will  demonstrate  how  untenable  and  indefensible  are 
these  assertions.  Peter  remained  in  Judea  nearly  four  years 
after  his  Master's  ascension  ;  he  then  went  to  Antioch, 
which  he  governed  seven  years  as  bishop.  In  the  eleventh 
year  after  our  Lord's  Passion  he  repaired  to  Jerusalem,  wai» 

**  Cfr.  Soglia,  1.  c.,  vol.  i  ,  p.  141.  38  Lib  ii.,  c.  8. 

37  Cfr.  Phillips,  1.  c.,  p.  117.  3B  Sess.  iv.,  cap.  i. 

39  Second  part  of  the  major.  40  Cfr.  Cone.  Vatican.,  1.  c.,  cap.  ii.. 

41  Soglia,  1.  c.,  p   173.  "  Sess.  iv.,  cap.  ii. 


Of  the  Sovereign  Pontiff.  237 

there  imprisoned  by  Herod,  but  liberated  by  an  angel.  In 
the  same  year  he  went  to  Rome.  In  the  seventh  year  of  his 
sojourn  in  Rome  an  edict  was  published  by  the  Emperor 
Claudius  exiling  all  Jews  residing  in  Rome.  Consequently, 
Peter  returned  to  Jerusalem,  where  he  attended  the  Coun 
cil.  Upon  the  death  of  Claudius  the  apostle  returned  to 
Rome,  and  thej-e  suffered  martyrdom  in  the  fourteenth  year 
of  Nero's  reign,  after  having  governed  the  see  of  Rome 
twenty-five  years.43  The  fact  that  Peter  was  in  Rome  is  at 
tested  by  Papias,  a  disciple  of  the  apostles  ;  by  Tertullian  ; 
by  Hegesippus  in  the  second  century  ;  by  St.  Jerome,44  who 
explicitly  writes  that  Simon  Peter,  after  presiding  over  the 
See  of  Rome  for  twenty-five  years,  was  there  crucified 
"  capite  inverso,"  and  buried  "  juxta  viam  Triumphalem." 

462.  Union  of  the  Primacy  witJi  the  See  of  Rome. — It  is  a 
doctrine  "  of  divine  revelation  that  the  primatus  jurisdictions 
is  by  divine  appointment,  not  by  the  will  of  Peter  or  the 
Church,  inseparably  united  to  the  See  of  Rome.  We  say,  it 
is  a  doctrine  of  divine  revelation;  for,  though  formerly  an 
open  question,  at  least  according  to  some,  it  is  at  present 
undoubtedly  de  fide,  having  been  thus  defined  by  the  Vati 
can  Council : "  "  Docemus,  Ecclesiam  Romanam,  disponente 
Domino,  super  omnes  alias  [ecclesias],  ordinariae  potestatis 
obtmere  principatum."47  Pius  IX.  has  therefore  deservedly 
condemned  the  following  proposition :  "  Nothing  forbids 
that  the  Supreme  Pontificate  should  be  transferred  from  the 
Roman  bishop  and  city  to  another  bishop  and  another 
State."4"  But,  it  may  be  objected  :  The  primacy,  when  first 
instituted  by  Christ,  was  personal — i.e.,  attached  to  the  person 
of  Peter  ;  not  local — i.e.,  not  annexed  to  any  particular  place 
or  bishopric.4'  The  objection  does  not  hold  ;  for  the  pri- 

41  Salzano,  1.  c.,  lib.  ii.,  pp.  63,  64.  **  In  Catal.  Script.  Eccl.  in  Petro 

**  Our  Notes,  p.  41.  **  Sess.  iv..  cap.  iii. 

*T  Cfr.  Craiss.,  n.  677,  in  fine.  **  Syll.,  1864,  prop.  xxxv. 

**  Ferraris,  V.  Papa,  art.  ii.,  n.  74. 


238  Of  the  Sovereign  Pontiff. 

macv  was  indeed  personal — i.e..  attached  f.o  the  p';riOn  of 
Peter — "  non  tamen  ut  Petrus  erat  persona  prive.ta,  sed  ut 
fub^ica;™  et  ex  tune  fuit  [primatus]  jussu  Christ!  etiam 
iocalis,  seu  certo  loco,  Romanae  IVoi  nimirum  affixus ; 
adeoque  non  ex  voluntate  Petri,  sed  ex  voluntate  et  jussu 
Christi  fuit  primatus  Ecclesiae  annexus  Episcopatui  Ro 
mano."  ''  Nor  can  it  be  objected  that  the  Popes  may  trans 
fer  the  Papal  See  to  some  other  city,  as,  in  fact,  they  did 
transfer  it  to  Avignon  ;  for  nbi  Papa,  ibi  Roma — the  Pope, 
wherever  he  may  be,  is  and  remains  Bishop  of  Rome. 
Finally,  neither  will  it  avail  to  say :  The  city  of  Rome  may 
be  totally  destroyed  ;  lor  Rome,  as  a  city,  may  perhaps 
perish,  but  Rome,  as  a  see,  is  imperishable.62 

463.  Form  of  Government  of  tlic  LJnircJi. — The  principal 
forms  of  government  are  the  monarchical,  the  aristocratic, 
and  the  democratic  or  republican.63  I.  C/iief  errors  on  this 
point. —  i.  Luther  and  Calvin  assert  that  the  Church  has  a 
democratic  form  of  government,  her  supreme  power  being 
in  the04  hands  of  the  people  or  laity.  2.  The  Greek  schis 
matics,  and  the  body  of  Protestants  called  Presbyterians, 
maintain  that  the  Church  has  an  aristocratic"  form  of 
government,  the  supreme  power,  according  to  the  former, 
being  vested  in  the  bishops  ;  according  to  the  latter,  in  the 
presbytery.  3.  Bossuet  held  that  the  Roman  Pontiff  was  in 
ferior  M  to  an  oecumenical  council,  and  that  the  legislative 
power  in  the  Church  lay  conjointly  in  the  hands  of  the 
Pope  and  of  the  bishops.  This  opinion  is  at  present  hereti 
cal.  The  two  preceding  theories  are  also  heretical.  II. 
Correct  view. — I.  No  small "  number  of  Catholic  theologians, 
headed  by  the  illustrious  Cardinal  Bellarmine,  hold  that  the 
Church  is  a  monarchy,  tempered,6"  however,  by  aristocracy, 

"I.e.,  the  primacy  attached  to  Peter,  not  as  a.  private  bat  public  person. 
"  Ferraris,  1.  c  ,  n.  75  ;  cfr.  Soglia,  vol.  i.,  p.  178.  6i  Ib.,  n.  78-80,  8l 

"  Salzano,  1.  c.,  lib.  i.,  p.  22.  B1  Ib.,  p.  23.  66  Ib.,  p.  24. 

"'  Ib..  p.  26.  °7  Ib.  ""  Cfr.  Devoti,  Prolegom.,  n.  16-20. 


Of  the   Sovereign   Pontiff.  239 

in  the  sense,  namely,  that  bishops  rule  in  the  Church  jure 
proprio,  being  placed  to  rule  by  the  Holy  Ghost,  but  not  by 
the  Roman  Pontiff.  2.  Others  admit59  that  bishops  are 
placed  by  the  Holy  Ghost  to  rule  in  the  Church  ;  yet,  as 
they  are  placed  to  rule  Subordinately  to  the  Pope,  it  follows 
that  the  Church  is  an  absolute  monarchy.00  The  difference 
between  these  two  opinions  seems  to  be  verbal  rather  than 
real.  Both  admit  that  the  supreme  power  in  the  Church  is 
vested  in  a  single  ruler— the  Roman  Pontiff— and  that  there 
fore  the  Church  is  a  monarchy  as  to  the  form  of  govern 
ment ;  according  to  Craisson,01  this  is  dc  fide. 

464.  Q.  Are  all  the  actions  of  the  Pope  performed  by 
him  as  head  of  the  Church  ? 

A.  They  are  not.  For  the  Pontiff  may  sometimes  act, 
not  as  the  Vicar  of  Christ,  but  as  the  Patriarch  of  the  West, 
exercising  only  those  rights  which  appertain  to  other  patri 
archs.  Again,  he  may  act  only  as  the  Primate  of  Italy,  or 
Metropolitan  of  the  Roman  Province,  or  merely  as  Bishop 
of  the  city  of  Rome.0-'  Has  the  Sovereign  Pontiff  "jurisdictio 
immediata"  over  the  entire  Church?  We  premise:  i.  Ac 
cording  to  Febronius  and  many  Gallicans,  "  non  potest  S. 
Pontifex  ordinarie,  invitis  episcopis,  consueta  episcoporum 
munera  in  eorum  dioecesibus  exercere,  quia  non  est  pastor 
in  alienis  dioecesibus  immediatus,  sed  tantum  mediatam  habet 
in  iis  jurisdictionem."  M  According  to  these  writers, ///radfo- 
tio  mcdiata  is  that  which  can  be  exercised  only  in  certain M 
cases  determined  by  canon  law— v.g.,  when  bishops  neglect 
their  duties  ; 85  on  the  other  hand,  jurisdictio  immediata  is 
that  which  is  exercisible  by  the  Pope cs  or  his  delegates  not 
only  in  case  of  necessity,  but  constantly.  We  now  answer 
directly :  The  Roman  Pontiff  has  direct  or  immediate,  not 

"  Cfr.  Phillips,  Kirchenr.,  vol.  i.,  p.  251.  oc  Salzano,  1.  c.,  p.  27.      "  N.  675. 

"Bcned."  XIV.,  De  Syn.,  lib.  ii.,  cap.  i. ;  cfr.  Devoti,  lib.  i.,  lit.  iii.,  n.  21. 

91  Ap.  Craiss.,  n.  6So.  °4  Cfr.  Soglia,  vol.  i.,  p.  180 

"  Cir.  our  Notes,  pp.  41,  42.  "  Cfr-  Tarqu.,  p.  113. 


240 


Of  the   Sovereign   Pontiff. 


merely  mediate,  authority  over  the  whole  Church.  This  is 
de  fide"  being  thus  defined  by  the  Vatican  Council : ei  "  Si 
quis  dixerit,  Romanum  Pontificem  non  habere  plenam  et 
supremam  potestatem  jurisdictionis  in  universam  Ecclesiam, 
aut  hanc  ejus  potestatem  non  esse  ordinariam  et  immediatam 
sive  in  omnes  aut  singulas  ecclesias,  sive  in  omnes  et  singu- 
los  pastores  et  fideles,  anathema  sit." 

465.  Q.  Can  the  Pope  abdicate? 

A.  He  can ;  the  resignation  must  be  made  to  the  Colle^ 
of  Cardinals,  whose  exclusive  privilege  it  is  to  elect  the  suc 


cessor. 


466.  Q.  Is  a  Pope  who  falls  into  heresy  deprived,  ipso 
jure,  of  the  Pontificate  ? 

A. —  i.  There  are  two  opinions:  one  holds  that  h'  is, 
by  virtue  of  divine  appointment,  divested,  ipso  facto,  or  the 
Pontificate  ;  the  other,  that  he  is,  jure  divino,  only  remov 
able.  Both  opinions  agree 7C  that  he  must  at  least  be 
declared  guilty  of  heresy  by  the  Church — z>.,  by  an  oecu 
menical  council  or  the  College  of  Cardinals.  2.  The  ques 
tion  is  hypothetical  rather  than  practical."  For  although, 
according  to  the  more  probable  opinion,  the  Pope  may  fall 
into  heresy  and  err  in  matters  of  faith,  as  a  private  person," 
yet  it  is  also  universally  admitted  that  no  Pope  ever  r'id  fall 
into  heresy,"  even  as  a  private  doctor. 


47  Cfr.  Craiss .,  n.  680. 

69  Ferraris,  V.  Papa,  art.  ii.,  n.  36. 

ri  Phillips,  Kirchenr.,  vol.  i.,  pp.  277,  274. 

"  Fertaris,  1.  c.,  n.  62-66.     Genuae,  1768. 


M  Sess.  iv.,  cap  iii 
ro  Craiss.,  n.  68  «. 
n  Ib.,  p.  877. 


CHAPTER  II. 

ON  THE  RIGHTS  AND  PREROGATIVES  OF  THE  ROMAN  PONTIFF. 

SECTION    I. 
Rights  of  the  Roman  Pontiff  in  "  Spiritual  Matters? 

ART.  I. 

Rights  of  the  Roman  Pontiff  t  licit  flow  "immediately"  from  his 
Primacy  or  Supremacy  over  the  entire  Church  ;  his  Infalli 
bility  and  Supreme  Legislative  A  nthority, 

467.  Mode  of  Determining  tJie  RigJits  annexed  to  the  Pri 
macy  of  the  Pope. — I.  Nicholas  de  Hontheim  (Justinus  Fe- 
bronius) '  erroneously  divided  the  rights  contained  in  the 
supremacy  of  the  Roman  Pontiff  into  essential  (jura  essen- 
tialia,  primigenia] — those,  namely,  which  were  conferred 
upon  the  Roman  Pontiffs  by  our  Lord2  himself,  and  there 
fore  exercised  already  in  the  first  centuries  of  the  Church : 
and  into  accidental  (jura  accidcntalia,  advcntitia,  secundaria^ 
accessoria,  humana)* — i.e.,  those  which  originally,  i.e.,  in  the 
first  seven  centuries  of  the  Church,  were  exercised  by 
bishops  and  provincial  councils,  but  which  were  afterwards, 
chiefly  through  the  ambition  of  Popes,  and  by  means  of  the 
Isidoran  decretals,  annexed  to  the  primacy.  According  to 
Febronius  and  his  school,  the  primacy  may  exist — in  fact, 
has  existed — without  the  jura  accidentalia.  In  this  radically 
wrong  division  the  exercise  of  the  power  inherent  in  the 

1  Phillips,  Lehrb.,  pp.  171,  172,  n.  I.  *  Cfr.  Soglia,  vol.  i.,  p.  183 

*  Phillips,  Kirchenr.,  vol.  v.,  §  202,  pp.  21-34. 


242  On  the  Rights  and  Prerogative* 

Papal  supremacy  is  confounded  with  the  power4  itself.  The 
former,  it  is  true,  varies  according  to  circumstances ;  but  the 
latter  is,  and  always  has  been,  the  same.  II.  Some  Catholic 
canonists "  distinguish  between  the  various  rights  of  the 
primacy  according  to  the  threefold  power  which  Christ 
bestowed  upon  His  Vicar  on  earth— namely,  the  potcstas 
wagisterii,  ministerii,  et  jurisdictionis  or  imperil.  Others, 
whom  we  prefer  to  follow,  divide  the  rights  of  the  primacy 
into  those  which  flow  immediately  and  those  which  flow 
mediately  from  the  supreme  power  of  the  Pope.6  Now, 
what  rights  emanate  immediately  or  directly  from  the  pri 
macy  ?  Those  which  are  attached  to  or  contained  in  the 
primacy  in  such  manner  as  to  be  the  foundation  of  various 
other  rights,  which  latter,  being  based  upon  the  former,  are 
named  mediate  rights.  Now,  the  immediate  rights  of  the 
Papal  supremacy  are  these  two :  infallibility  and  supreme 
legislative  authority.  For  the  Pope  is  the '  centrum  necessa- 
rium  totius  communionis  CatJwlicae ;  this  is  de  fide."  Now, 
the  unity  of  the  Church  consists  chiefly,  I,  in  the  unity  of 
faith  (in  unit  ate  fide  i ),  inasmuch  as  all  the  faithful,  professing 
the  same  faith,  constitute  but9  one  Church;  2,  in  the  unity 
of  charity  (in  unitatc  caritatis,  communionis),  by  which  is 
meant  the  submission  of  the  faithful  to  their  bishops,  and  of 
the  bishops  and  people  to  the  Pope.10  Now,  if  the  Pope  be 
the  centrum  unit  at  is  fidei,  and  therefore  charged  with  the 
preservation  of  unity  in  matters  of  faith  and  morals,  he  must 
be  infallible  ;  if  he  is  the  centrum  unit  at  is  communionis,  and 
therefore  commissioned  to  enforce  unity  in  matters  of  disci 
pline,  he"  mast  have  legislative  authority,  supreme  and  uni 
versal.12 

4  Phillips,  Lehrb.,  p.  172.  Ib  ,  p.  171. 

6  Salzano.  lib.  ii.,  pp.  68-70.  ~  Craiss.,  n.  684. 

•  '  Cone.  Vaticanum,  sess.  iv.,  cap.  iii.,  iv.  ;  cfr.  Craiss.,  1.  c. 
*  Soglia,  vol.  i.,  p.  177.  10  Cfr  Cone.  Vaticanum,  1.  c  ,  cap.  iii 

u  Cfr.  Salzano,  1.  c.,  p.  69  seq  "  Our  Notes,  p.  41. 


of  the  Roman  Pontiff.  243 

468. — I.  Infallibility  of  the  Roman  Pontiff.—  That  the 
Sovereign  Pontiff  is  the  centrum  itnitatis  fidei,  and  therefore 
vested  with  infallibility,  is  amply  proved  in  dogmatic  theo 
logy  ;  the  proofs  are  taken  from  Sacred  Scripture "  and 
trad-.tion.  We  content  ourselves  here  by  giving  the  defini 
tion  of  the  Oecumenical  Council  of  the  Vatican  : M  "  Itaque 
nos  traditioni  a  fidci  Christianae  exordio  perceptae  fideliter 
inhaerendo,  ad  Dei  Salvatoris  nostri  gloriam,  religionis 
Christianae  exaltationem,  et  poputorum  Christianorum  salu- 
tem,  sacro  approbante  Concilio,  docemus  et  divinitus  reve- 
latum  dogma  esse  definimus  Romanum  Pontificem,  cum  ex 
cathedra  loquitur — id  est,  (a)  cum  omnium  Christianorum 
pastoris  et  doctoris  munere  fungens,  (b}  pro  suprcma  sua 
apostolica  auctoritate,  (c)  doctrinam  de  fide  vel  moribus  (d f 
ab  universa  Ecclesia  tenendam  definit,  per  assistentiam  di- 
vinam,  ipsi  m  B.  Petro  promissam,  ea  infallibilitate  pollere. 
qua  divinus  Redemptor  Ecclesiam  suam  in  definienda  doc- 
tnna  de  fide  vel  morum  instructam  esse  voluit ;  ideoquc 
ejusmodi  Romani  Pontificis  definitiones  ex  sese,  non  autem 
ex  consensu  Ecclesiae,  irreformabiles  esse.  Si  quis  autem 
huic  nostrae  definitioni  contradicere,  quod  Deus  avertat,  prae- 
sumpserit,  anathema  sit."  It  is  therefore  de  fide,  at  present," 
that  the  Roman  Pontiff,  when  speaking  ex  catJiedra,  is  in 
fallible. 

469.  Q.  When  does  the  Roman  Pontiff  speak  ex  ca 
thedra  ? 

A.  He  speaks  ex  cathedra,  and  is  infallible  of  himself — i.e., 
independently .  of  the  consent  of  the  Church — i,  when  ns 
Pastor  and  Head  of  the  Church,  and  by  virtue  of  his  supreme 
apostolical  authority,  2,  he  proposes  to  the  entire  Church, 
3,  any  doctrine  concerning  faith  and  morals,  4,  to  be 


u  Matth  xvi.  ;  Jo.  xxi.  ;  Luc.  xxii.  ;  cfr.  Salzano,  1.  c.,  p.  71. 

14  Sess.  iv.,  cap.  iv.,  in  fine  1&  Cfr.  Craiss.,  n.  686. 


244 


On  the.  Rights  and  Prerogatives 


believed  under  pain  of  heresy."  These  conditions  only 
are  required  for  the  validity  of  Pontifical  decisions  ex  cathe 
dra.  Others  are  requisite  for  the  licitness  of  such  defini 
tions  ;  thus,  the  Pope,  before  giving  an  ex  cathedra  definition, 
should  maturely  examine  into  the  question  to  be  defined  and 
consult  with  the  cardinals  ;  for  he  is  merely  assisted,  not  in 
spired,  by  the  Holy  Ghost  when  giving  a  definition  ex 
^cathedra."  Catholics  are  bound  to  assent  to  these  defini 
tions,  not  only  externally,  but  also  internally  or  mentally." 
Moreover,  the  primary  or  chief  proposition  of  a  definition 
must  be  distinguished  from  propositions  that  are  merely  in 
cidental,  such  as  the  arguments  alleged  by  the  Pope  in  sup 
port  of  the  definition.  The  Pope  is  infallible  only  in  the 
definition  proper,  not  in  the  proofs  alleged  incidentally.1 

470. — II.  Legislative  AutJiority  of  the  Pope. — We  now  come 
'to  the  second  prerogative  directly  annexed  to  the  primacy. 
The  Sovereign  Pontiff,  as  the  centrum  mutatis  communionu 
cxteniae,  is  vested,  as  we  have  seen,  with  supreme  legislative 
authority  over  the  whole  Church — i.e.,  he  has,  jure  divino, 
power  to  make  general  laws2"  respecting  the  discipline  of 
the  Church  ;  in  other  words,  he  can  enact  universal  laws 
relative  to  divine  worship,  sacred  rites  and  ceremonies,  the 
government  of  the  clergy,  the  proper  administration  of  the 
temporalities  of  the  Church,  and  the  like.21  Now,  this 
power  flows  directly  from  the  primacy  ;  for  the  Church  is  a 
visible  society,  has  external  forms  of  worship,  and  must 
therefore  be  regulated  by  disciplinary  laws,  to  be  enacted  by 
its  chief  ruler,  the  Sovereign  Pontiff.  Moreover,  the  Pope, 

"  Salzano,  1  c.,  p.  70.  Cardinal  Manning  expresses  the  same,  only  in  dif 
ferent  words.  He  says  :  "  The  Pope  speaks  ex  cathedra  when  he  speaks 
under  these  five  conditions  :  i,  as  Supreme  Teacher  ;  2,  to  the  whole  Church  ; 
3,  defining  a  doctrine  ;  4.  to  be  held  by  the  whole  Church;  £.  in  faith  and 
morals."— The  Vatican  Decrees,  p.  34.  New  York,  1875.  "  Ib 

18  Soglia,  1.  c.,  pp.  185,  186.  19  Salzano,  1.  c.,  p.  71  '"  Ifc-»  P   74- 

31  Cfr.  Craiss..  n.  688. 


of  the  Roman  Pontiff,  245 

as  was  seen,  can  make  laws  respecting  faith  and  morals ;  he 
may,  &  fortiori,  establish  uniformity  of  worship. 


ART.  II. 

Rights  of  the  Sovereign  Pontiff  flowing  Mediately  or  Indirectly 

from  his  Primacy. 

471.  We    here   observe  that   the    rights   of  the   Roman 
Pontiff,  whether  they  are  annexed  immediately  or  but  me 
diately  to  his  supremacy,  are  all  necessarily  contained  in  the 
primacy  ;  none2'  of  them  are  accidental  or  of  human  origin, 
as  Febronius  contends.     Having  premised  this,  we  proceed 
to   discuss    the    point    under   consideration.      The    Pontiff, 
viewed  in  his  relations  to  the  particular  churches   of  the 
world,  to  the  bishops,  or  to  the  entire  Church,  has  three 
sorts  of  rights — viz.,  i,  those  which  refer  to  the  various  dio 
ceses  of  the  Catholic  world  ;  2,  to  the  bishops  of  Christen 
dom  ;  3,  or  to  the  universal  Church.     We  shall  briefly  treat 
of  these  rights. 

§  I.  Rights  of  the  Sovereign  Pontiff  in  relation  to  the  various 
Dioceses  of  Christendom. 

472.  These  rights  are  reduced  chiefly  to  four:   I.  Right 
oj  demanding  an  account  of  the  state  of  each  diocese  tJirougli- 
out    the    world  (jus    relationuvi}. — The    Pope,   as    we    have 
shown,  has  supreme  and  unappealable  jurisdiction,  not  only 
in  matters  of  faith  and  morals,  but  also  of  discipline."     It  is 
the  duty  of  the  Sovereign  Pontiff  to  watch  over  the  disci 
pline  of  the  entire  Church.34     He  must  therefore  know  the 
condition   of  all   the   churches   or    dioceses   in   the    world. 
Hence  he  must  have  the  right  to  demand  from  bishops  an 

"  Cfr.  Phillips,  Lehrb.,  p.  172.  M  Salzano,  lib   ii.,  p.  74. 

*"  Phillips.  Kirchenrecht,  vol    v.,  §  203,  p.  34. 


246  On  the  Rights  and  Prerogatives 

account  of  the  state  of  their  dioceses25  {jus  relationum\ 
Bishops  are  therefore  obliged  to  visit  Rome  in  person 
(visit at io  liininiun  S.S.  apostoloruui]  at  certain  intervals, 
and  to  report  ihe  exact  state  of  their  dioceses  (rflatwne* 
status).  The  bishops  of  Italy  and  Greece  must  go  to  Rome 
once  every  three  years  ;  the  bishops  of  Germany,  France, 
Spain,  Portugal,  Belgium,  England,  Scotland,  once  every 
four  years;  the  bishops  of  Ireland  (77,  p.  5O2)<  °f  tne 
rest  of  Europe,  of  North  Africa,  once  every  five  years ; 
finally,  the  bishops  of  America,  once  every  ten  years." 
From  this  right  of  supreme  direction,  inherent  in  the  Pon 
tiff,27  there  follows  to  him  the  right,  in  the  exercise  of  this 
his  office,  of  freely  communicating  with  the  pastors  and 
flocks  of  the  whole  Church.28  II.  Power  to  punis-li  delin 
quents. — The  Roman  Pontiff,  as  we  have  shown,  is  vested 
with  the  supreme  law-making  power  in  the  Church.  Now, 
the  legislative  necessarily  includes  the  executive  or  coactive 
power  ;  for  laws  that  cannot  be  enforced  are  not,  properly 
speaking,  laws.29  III.  Power  to  grant  dispensations. — A  law, 
to  be  just,  should  be  binding  on  all  persons  within  its 
sphere  ;  yet  being  made  for  the  common  good — i.e.,  for 
general  purposes — it  is  not  always  useful  or  applicable  in 
particular  cases.  Hence,  laws  should  admit 30  of  reasonable 
exceptions  or  dispensations.  Now,  it  is  evident  that  only 
those  officials  can  suspend  the  force  of  a  law  in  special  cases, 
or  dispense  from  it,  who  can  make  the  law.  The  Roman 
Pontiff  is,  as  was  seen,  the  supreme  law-maker  in  the 
Church  ;  therefore  he  3I  can  dispense  from  the  laws  of  the 
Church,  even  those  enacted  by  oecumenical  councils.3*  But 
to  this  the  objection  is  made  that  the  Pontiffs  have  them 
selves  acknowledged  that  they  were  subject  to  the  canons, 

16  Phillips,  Lehrbuch,  p.  173.  **  Infra,  n.  556. 

w  Phillips,  Kirchenr.,  vol.  v.,  p.  38.     Regensburg,  1854. 

18  Cone   Vaticanum,  scss.  iv.,  cap.  iii.  OT  Salzano,  1.  c.,  p,  75 

"  Ib.,  p.  76.       "  Phillips,  Lehrb..  pp  175,  176, 178.        3a  Craiss.,  n.  692. 


Of  the  Roman  Pontiff.  247 

and  therefore  could  not  dispense  from  thc-in.  This  objection 
does  not  hold  ;  for  the  Popes  distinguish  between  two  kinds 
of  canons— those,  namely,  which  relate  to  themselves,  and 
those  which  refer  to  others.  They  acknowledge  themselves 
subject  to  those  laws  of  the  first  class  which  confirm  a  divine 
or  natural  law  ;  but  if  these  laws  are  merely  of  ecclesiastical 
origin,  they  bind  the  Roman  Pontiffs  only  quoad  vim  dirccti- 
vam,  not  quoad  vim  coactivam.  Laws  of  the  second  class— 
i.e.,  those  which  have  no  reference  to  the  Sovereign  Pon 
tiffs—should,  as  a  rule,  be  enforced  by  the  Popes.  We  say, 
as  a  rule ;  for  they  are  dispensable,  as  has  been  shown.33 
Dispensations  granted  by  the  Sovereign  Pontiffs,  without 
sufficient  reasons,  are  valid,  though  illicit.34  Though  Popes, 
as  we  have  just  seen,  cannot  dispense  in  rebus  juris  divini™ 
they  may  nevertheless  declare  that,  in  certain  contingencies, 
the  jus  divinum  ceases  to  bind.39  IV.  Right  of  receiving  ap 
peals  from  the  sentences  of  all  ecclesiastical  tribunals. — Man, 
even  in  his  judicial  decisions,  is  naturally  liable  to  error." 
The  remedy  of  appeal,  therefore,  from  an  inferior  to  a  supe 
rior  judge,  necessarily  exists  in  every  society.  The  Roman 
Pontiff",  therefore,  as  the  supreme  judge  in  the  Church,  can 
receive  appeals  from  all  parts  of  the  Catholic  world.  His 
sentence  alone  is  unappealable.38 

§  2.  Rig] its  of  the  Pope  respecting  Bishops. 

473.  Christ  conferred  upon  Peter  and  his  successors 
power  to  feed  and  govern,  not  only  his  lambs—/'.*.,  the 
faithful— but  also  the  shepherds— i.e.,  the  bishops.  The 
rights  of  the  Pontiff  relative  to  bishops  are  four:  1.  The 
Pope,  by  virtue  of  his  primacy,  can  create  bishops  and  transfer 
them  from  one  place  to  another"— The  Council  of  Trent** 

83  Salzano,  1  c.,  pp.  76,  77.  *  Phillips,  Lehrb.,  p.  i?9- 

"  Craiss.,   n.  693.  "  Salzano,  1.  c.,  p.  77-  "  Phillips,  1.  c.(  p.  180. 

*  S;.lzano.  1    c.,  p   85.  '"  Sess.  xxiii.,  cap.  iv.   can.  8. 


248  On  the  Rights  and  Prerogatives 

says :  "  If  any  one  saith  that  the  bishops,  who  are  assumed 
[i.e.,  appointed]  by  authority  of  the  Roman  Pontiff,  are  not 
legitimate  and  true  bishops,  but  are  a  human  figment,  let 
him  be  anathema."  Now,  if  the  Pope  alone  can  appoint 
bishops,  it  follows  that  he  alone  can  transfer  them  from  on° 
see  to  another/1  II.  Right  of  reserving  cases. — It  is  a  dis 
puted  question  whether  bishops  receive  jurisdiction  imme 
diately42  from  the  Pope  or  from  God.  One  thing,  however, 
is  certain— namely,  the  jurisdiction  of  bishops,  so  far  as  its 
exercise  is  concerned,  depends  43  upon  the  Sovereign  Pon 
tiff,  whose  privilege  it  is  to  assign  to  bishops  their  subjects. 
Hence,  the  Pope  may  restrict  the  authority  of  bishops,  and 
reserve  to  himself  the  absolution  from  the  more  grievous 
crimes.44  III.  The  Pontiff,  by  virtue  of  his  primacy,  'has  the 
right  to  depose  bishops  from  their  sees"  and  to  reinstate  them. 
This  follows  from  what  has  been  said.  IV.  Finally,  the  Pope 
has  the  right  to  convoke,  preside  over,  and  confirm  oecumenical 
councils.  This  proposition  needs  no  proof.  Bishops,  there 
fore,  are  obliged,  if  not  lawfully  48  hindered,  to  assist  at  these 
councils.  The  body  of  bishops,  when  separated  from  the 
Pontiff,  has  no  supreme  47  power  in  the  Church.  Hence,  it 
is  absurd  to  say  that  an  oecumenical  council 4S  is  superior  to 
the  Pope ;  for  no  council  is  oecumenical  except  when 
united49  to  the  Pope. 

§  3.  Rights  of  the  Pontiff  relative  to  the  Entire  Church,  or  tht 

Church  as  a    Whole. 

474.  The  rights  of  the  Roman  Pontiff,  falling  under  this 
head  and  emanating  mediately  from  his  primacy,  may  be  re 
duced  to  four,  discussed  under  the  following  heads :  I.  Di- 

41  Phillips,  1.  c.,  p.  188.  *  Cfr.  our  Notes,  p.  77 

43  Salzano,  1.  c..  p.  86  ;  cfr.  Craiss.,  n.  690,  868. 

44  Cone.  Tiid.,  sess.  xiv.,  cap  vii.  4*  Salzano,  1.  c.,  p.  87 
*•  Ib.                             *'  Craiss.,  n.  690.  *"  Ib.,  691. 

**  Salzano,  1.  c.,  p.  90  ;  cfr.  Cone.  Vaticanum,  sess.  iv.,  c.  iii. 


Of  the  Roman  Pontiff.  249 

vision  and  union  of  dioceses. —  I.  The  Pope  alone  can  divide 
a  diocese  into  two  or  more.  Dioceses  are  divided  for  va 
rious  reasons — v.g.,  when  they  are  vast.60  As  a  rule,  the 
bishop  of  the  diocese  to  be  divided  is  consulted  6I  as  to  the 
division ;  his  consent,  however,  is  not  essential.  2.  The 
Holy  See  alone  can  unite  two  or  more  dioceses  into  one. 
Dioceses  are  united  for  different  reasons — v.g.,  when  they 
are  small."  II.  Canonisation  of  saints  and  uniformity  of 
liturgy. — Both  these  are  of  interest  to  all  Christendom. 
Hence,  it  is  the  prerogative  of  the  Roman  Pontiff  to  enact 
laws  in  regard  to  the  canonization  of  saints ;  he  may  also 
correct  the  Roman  Missal  and  Breviary,  and,  in  general, 
ordain  all  that  pertains  to  the  sacred  liturgy.63  III.  Reli 
gious  orders. — These,  too,  have  a  certain  relation  to  the 
whole  Church  ;  hence,  they  are  instituted/4  approved,  and, 
if  need  be,  suppressed,  by  the  Pontiff.  IV.  Plenary  indul 
gences. — The  Roman  Pontiff,  as  head  of  the  Church,  is  the 
supreme  dispenser  of  her  treasures ;  he  alone,  therefore,  can 
grant  plenary  indulgences  for  the  entire  Church." 

475.  Rights  of  the  Sovereign  Pontiffs  relative  to  the  Causae 
Major es. — It  is  certain  that  all  causae  major es  are  reserved  to 
the  Holy  See.  Now,  by  causae  major  es  we  mean,  in  general, 
all  ecclesiastical  matters  of  more  than  ordinary  importance 
or  difficulty.  Such  matters  may  be  of  a  graver  character, 
either  intrinsically — i.e.,  by  their  very  nature,  v.g.,  questions 
of  faith  or  general  discipline  ;  or  extrinsically — i.e.,  because 
of  certain  circumstances,  v.g.,  difficulties  between  bishops 
and  the  civil  power. ""  Now,  all  matters  of  this  kind  are  to 
be  referred  by  bishops  to  the  Holy  See,  and  determined 
solely  by  it.  For  the  Pontiff,  as  we  have  shown,  has  juris- 
dictio  immediata  over  the  entire  Church :  hence,  he  can 
reserve — in  fact,  has  reserved — to  himself  the  power  to 


Salzano.  lib.  ii.,  p.  88.  "  Phillips,  Lehrb..  p.  185.  "  Ib 

Sal/.ano,  1.  c  .  p.  8q.         M  Ib.          "  Ib.  M  Phillip?,  I.  c.t  p.  180 


250 


On  the  RigJits  and  Prerogatives 


decide  all  matters  of  greater  moment.  Canonists  "  disagree 
as  to  what  matters  are  precisely  to  be  considered  causae  ma- 
Jores.  The  Potestas  Ordinaria  and  Extraordinaria  of  the 
Roman  Pontiff. — When  the  Roman  Pontiff  accommodates 
himself  in  his  proceedings  to  the  rules  established  by  his 
predecessors  or  to  the  decrees  of  oecumenical  councils,  he 
is  said  to  proceed  de  jure  ordinario™  de  potestate  ordinaria  ; 
but  when  he  does  not  observe  these  prescriptions,  he  acts 
dc  jure  ex traor dinar io.  In  derogating,  however,  from  the 
Council  of  Trent,  the  Pope  does  not  act  de  potestate  extra- 
ordinaiia;  for  this  Council  M  itself  says:  "All  things-which 
have  been  ordained  in  this  sacred  Council  have  been  so  de 
creed  as  that  the  authority  of  the  Apostolic  See  is  untouched 
thereby'1 

ART.  III. 

Rights  of  the  Pope  as  Bishop,  Metropolitan,  Primate,  and 

Patriarch. 

476.  The  city  of  Rome  and  the  surrounding  country 
within  a  circumference  of  forty  miles  forms  the  diocese"0  of 
the  Pope,  in  his  capacity  .of  bishop.  This  diocese  is  govern 
ed  by  the  Pontiff  in  the  same  manner  as  other  dioceses  are 
ruled  by  other  bishops.  The  Pope,  however,  does  not  per 
sonally  or  directly  administer  the  diocese  of  Rome,  but  ap 
points  one  of  the  cardinals  resident  in  Rome  to  take  direct 
charge  of  it,  and  act  in  his  stead  or  as  his  vicar.  This 
cardinal-vicar  is  assisted  in  the  administration  of  the  diocese 
by  a  coadjutor  or  suffragan  bishop  (yice-gerente],  who  in  turn 
is  aided  by  a  number  of  inferior  officials/'1  The  Pope  is 
also  metropolitan  of  ten  (civil)  suburbicarian  provinces,"  Pri 
mate  of  Italy,  and  Patriarch  of  the  West,"  and  therefore,  in 

51  Cfr.  Craiss.,  n.  694.  58  Ib.,  n.  695.  69  Sess.  xxv.,  cap.  21,  De  Ref. 

60  Phillips,  1.  c.,  pp.  201,  202.  *'  Ib.,  p.  203. 

62  Craiss.,  n.  679.  63  Bened.  XIV.,  De  Syn.,  lib.  ii.,  cap.  ii. 


Of  the  Roman  Pontiff.  2  5  i 

these  various  capacities,  exercises  the  prerogatives  attach 
ing'  to  these  several  dignities. 

SECTION   II. 
On  the  Rights  of  the  Supreme  Pontiffs  in  "  Temporal  Matters.'' 

ART.  I. 

Vai  ious  Opinions  on  this  Htad — Distinction  between  the  Direct 
and  Indirect  Power  of  Pontiffs  in  Temporal  Things. 

477. — I.  There  are  four  different  opinions 64  respecting 
the  power  of  the  Popes  in  temporal  things:  I.  The  first 
holds  that  the  Sovereign  Pontiff,  as  such,  has,  jure  divino, 
absolute  power  over  the  whole  world,  in  political  as  well  as 
ecclesiastical  affairs.  2.  The  second,  held  by  Calvinists  and 
other  heretics,  runs  rn  the  opposite  extreme,  and  pretends 
(a)  that  the  Sovereign  Pontiff  has  no  temporal  power  what 
ever  ;  (d)  that  neither  Popes  nor  bishops  had  any  right  to  ac 
cept  of  dominion  over  cities  or  states,  the  temporal  and  spiri 
tual  power  being.  Jure  divine,  not  unitable  in  the  same  person. 
3.  The  tJdrd,  advanced  by  Bellarmine  and  others,  maintains 
that  the  Pope  has,  jure  divino,  only  spiritual,  but  no  direct 
or  immediate  temporal,  power ;  that,  however,  by  virtue  of 
his  spiritual  authority,  he  is  possessed  of  power,  indirect  in 
deed,  but  nevertheless  supreme,  in  the  temporal  concerns  of 
Christian  rulers  and  peoples ;  that  he  may,  therefore,  depose 
Christian  sovereigns,  should  the  spiritual  welfare  of  a  nation 
so  demand.  Thus,  as  a  matter,  of  fact,  Pope  Innocent  IV., 
in  pronouncing  sentence  of  deposition  against  Frederic  II., 
explicitly  says  that  he  deposes  the  emperor  auctoritate  apos- 
tolica  ct  vi  claviunt.  4.  The  fourth  opinion  holds  that  the 
Sovereign  Pontiff  has  full  spiritual  authority  over  princes  no 

**  Bouvier,  Tract,  de  V-  ra  Ecclesia,  part  iii     p.  ^27   vol.  i.     Parisiis,  18-14. 


252  On  the  Rights  and  Prerogatives 

less  than  over  the  faithful ;  that  therefore  he  has  the  right  to 
teach  and  instruct  them  in  their  respective  duties,  to  correct 
and  inflict  spiritual  punishments  upon  both  rulers  and  peo 
pies  ;  but  that,  jure  divine,  he  has  no  power,  as  asserted  by  Bel 
larmine,  whether  direct  or  indirect,  in  the  temporal  affairs 
of  Catholic  sovereigns  or  peoples.  We  say,  as  asserted  bv 
Bellarmine  ;  for  the  advocates  of  this  opinion,  by  giving  the 
Pope  full  power  to  correct  princes  and  peoples,  necessarily 
attribute  to  him  an  indirect  power  in  temporal  things;  they 
deny,  however,  that  this  potcstcts  indirect  a  in  tempuralia  in 
cludes  the  deposing  power,  as  maintained  by  Bellarmine.  . 
II.  The  first  opinion  is  untenable,  and  is  refuted  by  Bellar 
mine  himself;  the  second  is  heretical  ;"  the  third  and  fourth 
seem  to  differ  chiefly  as  to  the  deposing  power  of  the'Popes, 
but  agree  in  granting  that  the  Roman  Pontiff  has  an  indirect 
power  in  temporal  things ;  both  may  be  lawfully  held. 
Before  we  proceed  to  explain  our  own  views  in  this  matter, 
and  to  show  the  relation  of  Church  and  state,  we  shall  point 
out,  for  the  better  understanding  of  the  subject  under  con 
sideration,  the  difference  between  the  direct  and  the  indirect 
power  in  temporal  things. 

478.    Q.    What  is  meant  by  direct  and  indirect  power  in 
temporal  affairs  ? 

A.  We  have  already  shown66  what  things  are  to  be  con 
sidered  temporal,  what  spiritual,  and  what  mixed  questions 
Now,  it  is  certain  that  temporal  things  are  not  so  exclusively 
adaptable  to  the  wants  of  this  life  6T  as  not  to  be  either  con 
ducive  or  injurious  to  the  salvation  of  the  soul.  But  it  i.' 
also  certain  that  the  Church,  in  order  to  fulfil  her  mission^ 
which  is  to  save  men,  must  have  power  to  remove  obstacles 
in  the  way  of  salvation.  The  Church,  therefore,  or  the 
Pope  has  authority  in  temporal  matters,  not  indeed  directly 
-re.,  not  in  temporal  matters,  as  such,  or  in  themselves  (po- 

'*  Cfr.  Traiss  .  n.  696.  "  Supra,  n.  204-207.  "  Craiss.   n   697. 


Of  the  Roman  Pontiff.  253 

testas  directa  ct  immediata  in  res  t^mporales) — but  indirectly — 
i.e.,  in  temporal  matters,  so  far  as  they  relate  to  the  salva 
tion  of  the  soul  (potcstas  indirccta  in  teuiporalid) ;  in  other 
words,  the  Pope  has  power  to  overrule,  correct,  or  set  aside 
those  temporal  means  which  hinder  men  from  attaining  to 
eternal  happiness.  Having  premised  this,  we  proceed  to 
our  thesis  proper. 

ART.  II. 
Relation  of  ChurcJi  and  State. 

479.  From  what  has  been  said  we  infer:   I.  In  all  things 
which  are  purely  temporal,  and  lie  extra  finem  Ecclesiae — out 
side  of  the  end  of  the  Church — it  (i.e.,  the  Church)  neither 
claims  nor  has  jurisdiction.     2.  In  all  things  which  promote 
or  hinder  the   eternal  happiness  of  men  the  Church  has  a 
power   to  judge   and    to   enforce."     We    now   apply  these 
principles  to  the  relations  of  the  spiritual  and  civil  powers— 
i.e.,  between  Church  and  state — by  laying  down  these  pro 
positions  : 

480.  Proposition  I. — In  tilings  temporal,  and  in  respect  to  the 
temporal  end  (of  government},  tJie  ChurcJi  has  no  power  over  the 
state.™ — The    proof  of    this    proposition    is    that   all    things 
merely  temporal  are  beside  (practer  fincni  Ecclesiae]  or  out 
side  of  the  end  of  the  Church.     Now,  it  is  a  general  rule 
that  no  society  has  power  in  those  things  which  are  out  of 
its  own  proper  end.     Hence,  the  civil  society  or  the  state, 
even  though  every  member  of  it  be  Catholic,70  is  not  subject 
to  the  Church,  but  plainly  independent  in  temporal  things 
which  regard  its  temporal  end." 

481.  Proposition  II. — In   whatsoever  tilings,   whether  essen 
tially  or  by  accident,  the  spiritual  end — that  is,  the  end  of  the 

88  Manning,  The  Vatican  Decrees,  p.  55. 

69  Card.  Tarqu.,  Jur.  Eccl.  Publ.  Inst.,  n.  54  pp.  55,  56.  w  Ib.,  p.  5& 

71  Cfr.  Manning,  1.  c.,  pp.  70,  71. 


254  On  the  Right*  and  Prerogatives 

Church — is  necessarily  involved,  in  those  tilings,  though  they  bt 
temporal,  the  Church  may  by  right  exert  its  poiver,  and  the  civil 
state  ought  to  yield.™ — In  this  proposition  is  contained  the  full 
explanation  of  the  indirect  spiritual  power  of  the  Church 
over  the  state.73  The  proposition  is  proved :  I.  From  rca- 
son.— Either  the  Church  has  an  indirect  power  over  the 
state,  or  the  state  has  an  indirect  power  over  the  Church. 
There,  is  no  alternative.  For,  as  experience  teaches,  con 
flicts  may  arise  between  Church  and  state.74  Now,  in  any 
question  as  to  the  competence  of  the  two  powers,75  either 
there  must  be  some  judge  to  decide  what  does  and  what 
does  not  fall  within  their  respective  spheres,  or  they  are  de 
livered  over  to  perpetual  doubt  and  to  perpetual  conflict. 
But  who  can  define  what  is  or  is  not  within  the  jurisdiction 
of  the  Church  in  faith  and  morals,  except  a  judge  who  knows 
what  the  sphere  of  faith  and  morals  contains  and  how  far  it 
extends?76  .It  is  clear  that  the  civil  power  cannot  define 
how  far  the  circumference  of  faith  and  morals  extends.  To 
do  this  it  must  know  the  whole  deposit  of  explicit  and  im 
plicit  faith.  Therefore,  the  Church  alone  can  fix  the  limits 
}f  its  jurisdiction  ;  and  if  the  Church  can  fix  the  limits  of  its 
own  jurisdiction,  it  can  fix  the  limits  of  all  other  jurisdic 
tion—at  least,  so  as  to  warn  it  off  its  own  domain.77  Hence, 
the  Church  is  supreme  in  matters  of  religion  and  con 
science  :  she  knows  the  limits  of  her  own  jurisdiction,  and, 
therefore,  also  the  limits  of  the  competence  of  the  civil 
power.  Again,  if  it  be  said  that  the  state  is  altogether  inde 
pendent  of  the  Church,  it  would  follow78  that  the  state 
would  also  be  independent  of  the  law  of  God  in  things  tem 
poral  ;  for  the  divine  law  must  be  promulgated  by  the 
Church.  It  is  unmeaning  to  say  that  princes  have  no  supe- 

"•  Card.  Tarqu.,  1.  c.,  lib.  i.,  p.  56,  n.  55.  7S  Manning,  1.  c.,  pp.  70,  7*. 

'*  Craiss.,  n.  698.  TS  Cfr.  Phillips,  Kirchenr.,  vol.  ii.,  pp.  546,  547 

"  Manning,  1.  c.,  pp.  54,  55-         "  cfr-  Syllab.  1864,  prop.  19,  20,  39,  42,  54- 

'"  Craiss..  n.  698. 


of  the  Roman  Pontiff.  255 

rior  but  the  law  of  God  ; 79  for  a  law  is  no  superior  without 
an  authority  to  judge  and  to  apply  it.  II.  We  next  prove 
our  thesis  from  authority.  We  refer  to  the  famous  bull 
Unam  Sanctam,  issued  by  Pope  Boniface  VIII.  in  1302. 
This  bull  declares  that  there  is  but  one  true  Church,80  and 
therefore  but  one  head  of  the  Church — the  Roman  Pontiff; 
that  there  are  two  swords — i.e.,  two  powers — the  spiritual 
and  the  temporal ;  the  latter  must  be  subject  to  the  former. 
The  bull  finally  winds  up  with  this  definition  :  "  And  this 
we  declare,  affirm,  define  (definimus),  and  pronounce,  that  it 
is  necessary  for  the  salvation  of  every  human  creature  that 
he  should  be  subject  to  the  Roman  Pontiff."  91  This  is  un 
doubtedly  a  de  fide  definition — i.e.,  an  utterance  ex  cathe 
dra.**  In  fact,  the  bull,  though  occasioned  by  and  published 
during  the  contest  between  Boniface  VIII.  and  Philip  the 
Fair,  King  of  France — who  held  that  he  was  in  no  sense  sub 
ject  to  the  Roman  Pontiff — had  for  its  object,  as  is  evident 
from  its  whole  tenor  and  wording,  this :  to  define  dogmati 
cally  the  relation  of  the  Church  to  the  state83  in  general 
that  is,  universally,  not  merely  the  relations  between  the 
Church  and  the  particular  state  or  nation — France.  Now, 
what  is  the  meaning  of  this  de  fide  definition  ?  There 
are  two  interpretations :  one,  given  by  the  enemies  of  the 
Papacy,  is  that  the  Pope,  in  this  bull,  claims,'4  not  mere 
ly  an  indirect,  but  a  direct  and  absolute,  power  over  the 
state,  thus  completely  subordinating  it  to  the  Church  ; 8£ 
that  is,  subjecting  it  to  the  Church,  even  in  purely  tem 
poral  tilings.  This  explanation,  given  formerly  by  the 
partisans  of  Philip  the  Fair,  by  the  Regalists  in  the 
reign  of  Louis  XIV.,  and  at  present  by  Janus,  Dr.  Schulte, 

78  Manning,  1.  c.,  p.  51. 

80  Phillips,  1.  c.,  vol.  iii.,  pp.  256,  257  ;  cfr.  Darras,  Hist.,  vol.  Hi.,  p.  454. 
*'  Fessler,  True  and  False  Infallibility,  p.  81.  w  Manning,  1.  c.,  p.  57 

"*  Phillips,  1.  c  ,  vol.  iii.,  pp.  255,  256.  **  Cfr.  ib.,  p.  206. 

"  Cfr.  Manning,  1.  c  ,  pp.  61-64. 


256  On  the  Rights  and  Prerogatives 

the  Old  Catholics,  and  the  opponents  of  the  Papal  infal 
libility  in  general,  is  designed  to  throw  odium  upon  the 
Holy  See  and  arouse  the  passions  of  men,  especially  of 
governments,  against  the  lawful  authority  of  the  Sovereign 
Pontiffs.  The  second  or  Catholic  interpretation  is  that  the 
Church,  and  therefore  the  Pope,  has  indirect  authority  over 
the  state ;  that  therefore  the  State  is  subject  to  the  Church  in 
temporal  things,  so  far  as  they  relate  to  eternal  salvation  or  in 
volve  sin.  Thus,  the  illustrious  Bishop  Fessler,86  Secretary 
to  the  Vatican  Council,  says  that  this  bull  affirms  merely 
that  Christian  rulers  are  subject  to  the  Pope,  as  head  of  tJie 
ChurcJi™  but  not  in  purely  temporal  things  ;  "  still  less," 
continues  Fessler,  "  does  it  [the  bull]  say  (as  Dr.  Schulte 
formulates  his  second  proposition)  that  the  temporal,  power 
must  act  unconditionally  in  subordination  to  the  spiritual." 
That  this  is  the  correct  interpretation  appears,  I,  from  the 
whole  tenor  of  the  bull  itself;  for  it  expressly  declares  that 
the  spiritual  and  temporal  powers  are  distinct  one  from  the 
other  ;  that  the  former  is  to  be  used  by  the  latter  for  the 
Church.  Again  it  says :  "  The  spiritual  power  (i.e.,  the 
Church)  has  to  instruct  and  judge  the  earthly  power,  if  it 
be  not  good.™  If,  therefore,  the  earthly  power  deviates  (from 
its  end),  it  will  be  judged  by  the  spiritual."  "  2.  Again,  be 
fore  issuing  the  bull  Unam  Sanctam,  Pope  Boniface  VIII. 
had  already  declared,  in  a  consistory90  held  in  1302,  that  he 
had  never  dreamt  of  usurping  upon  the  authority  of  the 
King  (of  France)91 — i.e.,  of  assuming  any  power  over  the 
state  in  purely  temporal  matters ;  but  that  he  had  declared, 
in  the  bull  Ausculta  Fill  (A.D.  1301),  the  King  (of  France)  to 
be,  like  any  other  Christian,  subject  to  him  only  in  regard  to 
mi.  It  is  therefore  de  fide  that  the  Church,  and  therefore 

"•  L.  c.,  p.  82. 

87  Cfr.  Phillips,  I.  c.,  p.  256  ;  cfr.  Walter,  Lehrb.,  §42,  p.  75,  note  (a).     Bonn, 
.839.  ""  Ap.  Manning,  1.  c.,  p.  60.  ""  Cfr.  Phillips,  1.  c.,  p.  25£ 

**  Ib. ,  p.  254.  'JI  Manning,  I.  c  ,  p.  62. 


of  the  Roman  Pontiff.  257 

llie  Pope,  has  indirect  power  over  the  state,  and  that  conse- 
quently  the  state,  in  temporal  things  that  involve  sin,  is  sub 
ject  to  the  Church. 

482.  From  what  has  been  said  we  infer:  i.  The  authority 
of  princes  and  the  allegiance  ot  subjects  in  the  civil  state  of 
nature  are  of  divine  ordinance  ;  and,  therefore,  so  long  as 
princes  and  their  laws  are  in  conformity  to  the  law  of  God, 
the  Church  has  no  jurisdiction  against  them  nor  over 
them.9"  2.  If  princes  and  their  laws  deviate  from  the  law 
of  God,  the  Church  has  authority  from  God  to  judge  of  that 
deviation,  and  to  oblige  to  its  correction.93  3.  This  au 
thority  of  the  Church  is  not  direct  in  its  incidence  on  tem 
poral  things,  but  only  indirect.  4.  This  indirect  power  of 
the  Church  over  the  state  is  inherent  in  the  divine  constitu 
tion  and  commission  of  the  Church  ;  but  its  exercise  in  the 
world  depends  on  certain  moral  and  material  conditions  by 
which  alone  its  exercise  is  rendered  either  possible  or  just." 
This  last  conclusion  is  carefully  to  be  borne  in  mind  ;  it 
shows  that,  until  a  Christian  world  and  Christian  rulers  ex 
isted,95  there  was  no  subject  or  matcria  apta  for  the  exercise 
of  the  supreme  judicial  authority  of  the  Church  in  temporal 
things.  So  much  for  the  relation  of  the  Church  to  the 
infidel  state.  When  a  Christian  world  came  into  existence, 
the  civil  society  of  man  became  subject  to  the  spiritual 
direction  of  the  Church.  So  long,  however,  as  individuals 
•only  subjected  themselves,  one  by  one,  to  its  authority,  the 
conditions  necessary  for  the  exercise  of  its  office  were  not 
fully  present.  The  Church  guided  men,  one  by  one,  to 
their  eternal  end  ;  but  as  yet  the  collective  society  of  nations 
ivas  not  subject  to  its  guidance.  It  is  only  when  nations 
and  kingdoms  become  socially  subject  to  the  supreme  doc 
trinal  and  judicial  authority  of  the  Church  that  the  con 
ditions  of  its  exercise  are  verified.  So  much  for  the  relation 

w  Manning,  1.  c.,  p.  56.  "  Ib.  M  Ib.  "5  Ib.,  p.  81. 


258  On  the  Rights  and  Prerogatives 

of  the  Church  to  the  Catholic  State.06  At.  present  the  world 
has  for  the  most  part  practically  withdrawn  itself  socially 
as  a  whole,97  and  in  the  public  life  of  nations,  from  the  unity 
and  the  jurisdiction  of  the  Church.  Now,  the  Church, 
it  is  true,  never  loses  its  jurisdiction  in  radice  over  the 
baptized  ;  but  unless  the  moral  conditions  justifying  its 
exercise  be  present,  it  never  puts  it  forth  in  regard  to 
heretics  or  the  heretical  state.  So  much  for  the  relation 
of  the  Church  to  the  heretical  state.  In  this  entire  question, 
therefore,  the  authority  itself  of  the  Church  must  be  distin 
guished  from  its  exercise. 

ART.  Ill, 

The  Deposing'  Power. 

483.  This  question  is  at  present  of  little  or  no  practical 
consequence ;  for,  according  to  all  canonists  and  theolo 
gians,88  Popes  can  depose  Catholic  princes  only — i.e.,  princes 
who  are  Catholics  not  only  as  individuals,  but  as  rulers  ;  in 
other  words,  only  those  princes  who  are  at  the  head  of 
Catholic  nations,  where  the  Catholic  religion  is  the  only  re 
ligion  recognized  by  law.  By  what  right  was  the  deposing 
power  exercised  by  the  Sovereign  Pontiffs  ?  There  are  two 
opinions  among  Catnolic  writers  :  one  holds  that  it  was  ex 
ercised  merely  by  virtue  ofthejuspublicum  of  the  mediaeval 
ages  ;  the  other,  that  the  deposing  power,  as  exercised  by 
Pope  Gregory  VII.  and  other  Pontiffs,  is  inherent  in  the 
primacy,  being  included  in  the  indirect  power  of  the  Pope 
in  temporal  things.89  This  opinion  is  thus  expressed  in  our 
article  on  Gregory  VII.,  published  in  Brownson's  Quarterly 
Review : ""  "  The  power  itself  [i.e.,  of  deposing  princes]  in 

••  Manning,  1.  c.,  p.  82.  »  Ib.,  p.  87. 

88  Bouvier,  Instit.  Theolog.,  vol.  i.,  pp.  432,  436,  437. 

*»  Cfr.  Manning,  1.  c..  p.  77.  '°°  April,  1875,  p.  211. 


of  tkc  Roman  Pontiff.  250 

radice,  we  hold,  is  inherent  in  the  Papacy  ;  the  power  in 
actu,  or  its  exercise,  depends  upon  external  circumstances." 
The  moral  conditions  which  justified  the  deposition  of 
princes,  when  the  world  was  Catholic,  have  practically 
ceased  to  exist,  now  that  the  world  has  practically,  accord 
ing  to  the  secular  social  regime,  ceased  to  be  Catholic,  and 
even  Christian.101  While,  therefore,  in  former  times,  the 
exercise  of  the  deposing  power  was  legitimate,102  it  would 
not  be  legitimate  at  present.'"  Not  one  of  the  Papal  bulls 
deposing  sovereigns  has  the  faintest  trace  ot  being  a  de  fide 
definition  ;  104  they  are  merely  penal  sentences.  Hence  it  is, 
as  Pope  Pius  IX.  himself,  in  one  of  his  discourses,105  says, 
"that  the  right  of  deposing  princes  has  nothing  to  do  with 
the  Pontifical  infallibility ;  neither  does  it  flow  from  the 
infallibility,  but  from  the  authority,  of  the  Pontiff."  Of 
course,  a  Catholic  is  bound  not  only  to  believe  what 
the  Pope  defines  ex  cathedra,  but  also  to  accept  and 
obey  what  he  otherwise  commands.  We  said  above 
that  the  world,  according  to  the  secular  social  regime, 

^5  O 

had  practically  ceased  to  be  Catholic,  or  even  Christian. 
For  according  to  the  ecclesiastical  social  re"<fime  it  is  still 

o  o 

formally  Catholic,  and  there  is  nothing  to  prevent  the  Pope 
from  blessing  as  formerly  the  faithful  not  merely  indivi 
dually,  but  the  whole  world  collectively  (urbi  et  orbi\ 
Hence  it  were  scarcely  correct  to  assert  absolutely  that  the 
world  has  now  ceased  to  be  Catholic,  or  even  Christian. 

ART.   IV. 
Of  the  Temporal  Principality  of  the  Roman  Pontiffs. 

484.   The  primacy  is  essentially  a  spiritual  office,  and  has 
not,   of  divine    right,  any  temporal    appendage  ; 10     yet  the 

101  Manrrn?,  1.  c.,  p.  87.  102  Ib.,  p.  84.  IOS  Fessler,  1.  c.,  pp.  85,  86. 

104  Ib.,  pp.  86,  87.  105  Discorsi  di  Pio  IX.,  July  20,  1871.     Rome,  1872. 

106  Cfr.  Manning,  1.  c.,  pp.  85,  86. 

107  Kenrick,  Primacy,  p.  218.     Philadelphia,  1845. 


26o 


On  tke  Rig  fits  and  Prerogatives 


Pope  is,  or  rather  was,  sovereign  of  a  small  principality  in 
Italy,  designated  the  Patrimony  of  St.  Peter  or  the  States 
of  the  Church.  Tnis  temporal  dominion,  it  is  true,  was 
not  bestowed  by  God  upon  the  Pope  in  the  beginning  ;  '"" 
ior,  even  toward  the  close  of  the  sixth  century,  the  Pontiffs 
were  not  as  yet  independent  rulers  ol  temporal  dominions.10' 
But  when  the  Roman  Empire  was  overthrown  and  divided 
into  several  kingdoms,110  then  it  was  that  the  Sovereign 
Pontiffs  obtained  their  temporal  principality,"1  divinae  pro- 
I'identiae  consilio,1™  This  civil  dominion  of  the  Pope,  whether 
acquired  by  the  munificence  of  princes  or  the  voluntary 
submission  of  peoples,113  though  not  essential  to  the  primacy, 
is  nevertheless  very  useful,  nay,  in  the  present  state  of 
things,114  in  a  measure  necessary,  to  the  free  exercise  of  the 
prerogatives  of  the  Pope  as  head  of  the  Church.11'  Princes, 
in  fact,  would  scarcely  be  willing  to  obey  a  Pontiff  placed 
under  the  civil  power  of  another  ruler.116  Napoleon  I.  said  : 
We  respect  the  spiritual  authority  of  the  Pontiff  precisely 
because  he  resides  neither  in  Madrid  nor  in  Vienna,  nor  in 
any  other  state,  but  in  Rome.  Pius  IX.117  himself  points 
out  how  fitting  it  is  in  every  respect  that  no  occasion  should 
exist  for  suspecting  that  the  Pope,  in  the  administration  of 
the  Church,118  may  sometimes  act  under  the  influence  of  the 
civil  power  or  of  political  parties.  Now,  such  suspicions 
would  be  unavoidable  should  the  Pontiff  be  the  subject  of 
some  civil  ruler.  The  temporal  principality  of  the  Popes 
has  existed  already  eleven  centuries,  and  thus  precedes  by 
a  long  lapse  of  time  every  existing  sovereignty.  There  is, 
it  is  true,  no  divine  guarantee  that  this  power  shall  conti- 


198  Cone.  PI.  Bait.  II.,  n.  47. 
110  Kenrick,  1.  c.,  p.  223. 
m  Ap.  Cone.  PI.  Bait.  II.,  n.  47- 
i:*  Cone.  PI   Bait.  II.,  n.  47. 

118  Soglia.  1.  c.,  p-  254. 

118  Cfr.  Kenrick,  1.  c.,  p.  228. 


100  Phillips,  Lehrb.,  pp.  199,200. 
111  Soglia,  vol.  i.,  pp.  254,  255. 
113  Craiss.,  n.  701. 
115  Cfr.  Syllab.,  prop.   75,  76- 
117  Litterae,  March  26,  1860, 


of  the  Roman  Pontiff.  261 

nue  ; '"  it  has  been  treacherously  wrested  from  the  present 
Pontiff  by  the  Italian  government.  That,  however,  it  will 
revert  to  the  Popes  we  have  no  doubt.  Napoleon  I.,  too, 
took  these  possessions  from  the  aged  Pius  Vli.  Yet  Napo 
leon's  empire  has  since  vanished  like  a  dream,  while  the 
patrimony  of  St.  Peter  passed  again  into  the  hands  of  the 
Pontiffs. 

485.  The  Council  of  Baltimore  iao  directs  that  an  annual 
collection  be  taken  up  for  the  Holy  Father  in  every  diocese 
of  the  country  on  the  Sunday  within  the  octave  of  the  Feast 
of  Saint  Peter  and  Saint  Paul,  or  such  other  Sunday  as  the 
ordinary  may  direct. 

U9  Cfr.  Kenrick,  1.  c.,  p.  228.  uo  PI.  II..  n.  48. 


CHAPTER    III. 

ON  THE  ASSISTANTS  OR  MINISTERS  OF  THE  SOVEREIGN  PON 
TIFF — THE   "  CURIA   ROMANA." 

486.  By  the  Curia  Romano,  we  mean,  in  a  strict  sense, 
only  those  officials '  whom  the  Sovereign  Pontiff  regularly 
makes  use  of  to  assist  him  in  the  government  of  the  univer 
sal  Church ; 2  in  a  broad  sense,  also  those  who  aid  the  Pope 
in  his  capacity  of  Bishop  of  Rome,  Metropolitan,  or  Pri 
mate.3  All  these  assistants  are  appointed  by  the  Pope.4 
The  persons  composing  the  Court  of  Rome  (Curia  Romano] 
are  divided  into  three  classes,  designated  respectively  Cardi 
nals  of  the  Holy  Roman  Church  (Cardinalcs  S.  R.  £.),  Pre 
lates  of  the  Holy  Roman  Church  (Praelatt  S.  R.  £."),  and 
curiales  in  the  strict  sense  of  the  term.  The  latter  (curiales] 
are  made  up  of  the  various  magistrates  not  in  prelatical  dig 
nity,  of  advocates  and  procurators,  solicitors  and  agents,  of 
notaries,  and  all  thosf*  who  form  the  cortege  of  the  Pope.6 
These  various  ministers  are  either  intra  curiain — v.g.,  cardi 
nals — or  extra  curiain — v.g.,  legates,  nuncios,  and  the  like  * 
We  shall,  therefore,  divide  this  chapter  into  two  sections; 
one  treating  of  the  Papal  assistants  intra  curiam,  the  othe 
of  those  extra  curiam. 


1  Phillips,  Lehrb.,  p.  208. 
'  Ib  Ib. 


2  Cfr.  Phillips,  Kirchenrecht,  vol.  vi.,  p.  • 
•  Ib.,  p.  10.  °  Craiss.,  n.  701,  704 

262 


Assistants  of  the   Sovereign  Pontiff.  263 

SECTION  I. 

Of  the  Assistants  of  the  Sovereign  Pontiff  "  intra  curiam." 

ART.  1. 
Of  Cardinals. 

§  I.    Origin,  Appointment,  and  Number  of  Cardinals. 

487.  Origin. — Cardinals  are  the  immediate 7  counsellors  or 
advisers  of  the  Pope,  and  form,  so  to  speak,  the  senate  of 
the   Roman    Church.8     Hence,  they  are    compared   to   the 
seventy  ancients  appointed  to  assist  Moses,  and  to  the  apos 
tles  chosen  to  aid  our  Lord.     The  College  of  Cardinals  is 
thus  defined  :  "  Clericorum  coetus  ad  auxiliandum  Romano 
Pontifici  in  Ecclesiae  regimine,  sede  plena,  et  ad  supplen 
dum  eundem,  sede  vacante,  institutus.'" 

488.  Q.  Are  cardinals  of  divine  or  human  institution  ? 

A.  The  question  is  controverted.'"  It  were  difficult  tc 
show  that  the  dignity  of  cardinals,  as  at  present  understood 
is  not  of  merely  ecclesiastical  institution.11  The  name  itself 
of  cardinal  does  not  seem  to  have  been  used  before  the  time 
of  Pope  St.  Sylvester.12  At  first  it  was  applied  to  all  ecclesi 
astics  permanently  in  charge  of  churches.13  Pope  Pius  V.  in 
1 567  ordained  that  it  should  henceforth  be  exclusively  ap 
plied  to  the  cardinals  of  the  Roman  Church.14  Yet  in 
Naples,  even  at  present,  fourteen  canons  are  named  cardi 
nals.16  In  several  other  dioceses,  also,  some  of  the  canons 
are  still  called  cardinals."  Cardinals  are  so  called  from  the 
word  car  do,  a  hinge  ;  for,  says  Pope  Eugenius  IV.,17  "  sicut 

'  Phillips,  Kirchenr.,  1.  c.,  p.  10.  "  Craiss.,  n.  702.  *  Ib 

"  Ib.,  n.  703.  "  Cfr.  Ferraris,  V.  Cardinalis,  art  i.,  n.  i,  2.  w  Ib.,  n.  3,  4. 
15  Soglia,  vol.  i.,  p.  257.  M  Ferraris,  1.  c.,  n.  6.  1S  Salzano,  lib.  ii.,  p.  9^ 
'*  Craiss.  n.  704.  "  Const.  Non  Med'ocri,  §  14. 


264  On  the  Assistants  or  Ministers 

super  cardinem  volvitur  ostium  domus,  ila  super  eus  \cardt 
nalcs\  sedis  apostolicae  ostium  quiescit."  The  cardinals  are 
so  to  say,  the  hinges  upon  which  the  government  of  the  en 
tire  Church  turns.18 

489.  Mode  of  Appointment  of  Cardinals. —  i.  The  manner 
of  creating  cardinals  underwent  change  from  time  to  time. 
Several  things  prescribed  in  the  Roman  ceremonial  are 
now  obsolete.  The  Sovereign  Pontiff  has  the  sole  and  free 
power  of  appointment  to  the  cardinalate ;  in  making  ap 
pointments  he  is  not  obliged  to  use  any  specific  formula, 
though  the  following  is  given  in  the  Roman  ceremonial : 
"  Auctoritate  Dei  Patris  .  .  .  assumimus  N.  in  presbyte- 
rum  vel  diaconum  S.  R.  Ecclesiae  cardinalem."  I9  2.  If  the 
newly-appointed  cardinal  is  in  Rome,  he  proceeds  to  the 
Apostolic  Palace,  where  one  of  the  old  cardinals  presents 
him  to  the  Holy  Father,  who  then  gives  him  the  red  cap 
(bir return  rubruui),  and,  in  a  subsequent  public  consistory, 
also  the  red  hat  (galerum  rubrum}.  The  ceremony  of 
closing  and  opening  the  mouth,''0  of  giving  the  ring  and  as 
signing  the  title,  takes  place  in  a  later  consistory.  3.  To 
cardinals  elect  not  living  in  Rome  21  the  red  cap  or  beretta 
only  is  sent,  and  they  must  promise  on  oath  to  visit  the 
Holy  Father  within  a  year,  so  that  the  other  ceremonies  of 
their  elevation  may  take  place.  4.  Cardinals,  at  present,  ob 
tain  all  the  rights  of  cardinals  the  moment  they  are  appoint 
ed  in  secret  consistory,  even  before  they  are  invested  with 
any  of  the  insignia  of  the  cardinalate.  Hence,  the  above 
ceremonies — namely,  the  imposing  of  the  red  cap  and  hat, 
etc. — are  not  absolutely  necessary." 

490.   Q.    What  qualifications  are  required  for  the  cardi- 
nalate  ? 

A.   i.  The  same  as  those  prescribed  by  the  Council  of 

18  Ferraris,  1.  c.,  n.  8.         '"  Ap.  ib.,  n.  9-13.       ™  Phillips,  Lehrb.,  p.  210, 
"*  Ib.  **  Ferraris,  1.  c.,  n.  20-24. 


of  fie   Sovereign  Pontiff.  265 

Trent2'  for  the  episcopal  dignity.  Hence,  only  those  should 
be  made  cardinals  who  have  the  purity  of  morals,  age, 
learning,  and  other  qualifications  required  by  the  Council  of 
Trent  for  bishops.  Only  such  persons  as  are  of  the  must 
exalted  merit  should  be  raised  to  the  cardinalate.  2.  The 
Pope  should,24  as  far  as  it  can  be  conveniently  done,  select 
the  cardinals  out  of  all  the  nations  of  Christendom.  3. 
Not  less  than  four  should  be  taken  from  the  regular  and 
mendicant  orders.35  For  the  other  qualifications,  see  Fer 
raris.28 

491.  Orders  of  Cardinals. — Cardinals  are  divided  into  the 
three  orders  of  bishops,  priests,  and  deacons."  The  origin 
of  this  classification  dates  far  back.  Thus,  i,  the  order  of 
cardinal-priests  seems  to  have  originated  in  this  manner: 
Pope  St.  Evaristus,  in  the  first  century  of  the  Church,  estab 
lished  seven  titles  or  churches,  which  were  entrusted  to  the 
care  of  seven  priests,  who  there  administered  the  sacra 
ments,  proprio  Jtire™  and  who  were  afterwards  called  cardi 
nal  priests.  2.  The  origin  of  cardinal-deacons  is  this:"  To 
he  seven  priests  just  mentioned  were  associated  seven  dea 
cons  (diaconi,  regionarii],  so  called30  because  they  presided 
over  the  seven  diqconiae — i.e.,  hospitals,  and  hospices  or 
houses,  situate  in  the  different  quarters  of  Rome,  where 
orphans,  widows,  and  the  poor  in  general  were  received 
and  supported  out  of  the  patrimony  of  the  Church.  The 
erection  of  these  diaconiae,  to  which  chapels  were  also  at 
tached,  is  ascribed  by  the  Liber  Pontificalis  to  Pope  Clement 
I.  (91-100).  These  deacons  were  afterwards  termed  cardi 
nal-deacons.  3.  The  order  of  cardinal-bishops  came  into 
existence  in  the  eighth  or,  according  to  some,31  in  the 
eleventh  century,  when  the  Sovereign  Pontiffs  appointed 

23  Sess.  xxiv.,  cap.  i.,  de  Ref.  M  Ib.  M  Sixtus  V.,  Const.  Postquam 

28  V.  Cardinalis,  art.  i.,  n   24-38.      *  Phillips,  Lehrb.,  p.  209. 

""  SalzanO;  lib.  ii.,  p.  100.  29  Ib. 

*°  Phillips.  Kirchenr.,  vol.  vi..  pp.  65-77.  "  Soglia,  vol.  i.,  p  257. 


266  On  the  Assistants  or  Ministers 

the  seven  suburban  bishops  of  Rome  as  their  assistants  in 
the  government  of  the  entire  Church. 

492.  Number  of  Cardinals. — The  number  of  cardinals  has, 
in  the  course  of  time,  suffered  frequent  changes.32  In  the 
time  of  Pope  Paschal  II.  there  were  ninety  cardinals.  Pope 
Sixtus  V.:a  ordained  that  their  number  should  not  exceed 
seventy.  Nor  have  any  Popes,  from  the  time  of  Sixtus  V. 
to  the  present  day,  departed  from  this  rule.34  Of  this  num 
ber  six  are  cardinal-bishops,  fifty  cardinal-priests,  and  four 
teen  cardinal-deacons.311  We  observe  here,  there  is  a  mate 
rial  difference  between  a  bishop  who  is  made  a  cardinal  and 
a  cardinal-bishop.  Only  the  six  bishops  of  the  suburbicary 
dioceses  (Ecclesiae  suburbicariac]  of  Rome  are  cardinal- 
bishops,36  or  bishops  of  the  Roman  Church.  All  other  car 
dinals,  even  though  bishops  by  consecration  and  in  charge 
of  dioceses,  are  but  cardinal-priests,  or,  as  the  case  may  be, 
cardinal-deacons  ;  they  are  bishops,  indeed,  of  their  respec 
tive  dioceses,  but  only  priests  or  deacons  of  the  Roman 
Church.37 

§  2.    Rights  and  Duties  of  Cardinals. 

493. — I.  Dignity  and  Rig/its  of  Cardinals. — The  cardinal- 
ate  is,  after  the  Papal,  the  highest  dignity  in  the  Church.31 
Being  the  electors  of  the  Sovereign  Pontiff  sede  vacante,  and 
his  counsellors39  sede  plena,  the  cardinals  take  precedence  of 
even  patriarchs,  metropolitans,  and  primates.48  The  reason 
is  that  priority  of  rank  is  regulated,  not  by  the  ordo,  but  by 
one's  office  and  jurisdiction  Now,  cardinals  have  greater 

31  Phillips,  Lehrb.,  p.  209.  33  Const.  Postquam  ;  cfr.  Craiss.,  n.  708. 

34  Ferraris,  1.  c.,  n.  40. 

14  Salzano,  1.  c.,  p.  100  ;  cfr.  De  Luise  Codex  Can.  Eccl.,  p.  14.     Neapoli, 
1873.  3'  Cfr.  Craiss.,  n.  708.  "  Salzano,  1.  c.,  p.  100. 

38  Ferraris,  V.  Cardinalis,  art.  ii.,  n.  T. 
**  Devoti,  Jib.  i.,  tit.  iii.,  sect,  ii.,  n.  22  seq. 
'•  Phillips,  Kirchenr.,  vol.  vi.,  pp.  236-263.  ''  Ferraris,  I.  c.,  n.  2-5- 


of  the   Sovereign  Pontiff.  267 

junsdiitio  than  bishops  ;  for,  together  with  the  Pope,  they 
have  charge,  not  of  one  diocese  each,  as  other  bishops,  biU 
of  all  the  dioceses  of  the  Catholic  world."  Cardinals  are, 
moreover,  Roman  princes" — nay,  arc  considered  princes  of 
the  blood.44 

494. — II.  Duties  of  Cardinal* .-  -Their  duties  regard  either 
their  own  churches  or  titles  (titnli)  or  the  entire  Church 
I.  Duties  of  Cardinals  relatii.j  to  their  Titles. —  I.  Cardinals 
have  ample  jurisdiction  m  all  matters  relating  to  the 
management  and  ecclesiastical  discipline  of  their  titular 
churches ; 45  but  they  are  no  longer,  as  formerly,  vested  with 
jurisdictio  quasi-episcopalis  4*  in  their  titles.  2.  All  cardinals 
not  having  dioceses  out  of  Rome  are  bound  to  reside  in 
their  titles — that  is,  in  Rome.47  Cardinals  who  are  bishops 
or  archbishops  of  dioceses  out  of  Rome  must  reside  in  their 
respective  sees."  The  suburbicary  cardinal-bishops,  how 
ever,4"  are  not  obliged  to  reside  in  their  dioceses.  3.  No 
cardinal  is  allowed  to  leave  Rome  without  permission  from 
the  Holy  Father  ; 50  this  applies  even  to  cardinals  who  are 
ordinaries  of  dioceses,  when  they  visit  Rome.61  2.  Duties  of 
Cardinals  relative  to  the  ivJwlc  CliurcJi. — I.  Sede  plena — i.e., 

42  Soglia,  vol.  L,  p.  259.         "  Phillips,  1.  c. .  p.  281.         "  Salzano,  I.e.,  p.  IO2. 

45  Hence,  cardinal  priests  and  deacons  can  visit  their  titles  and  see  that 
everything  is  done  in  accordance  with  the  discipline  of  the  Church — v.g.,  see 
that  the  rubrics  are  observed.  Moreover,  they  can,  in  their  titles,  make  use 
of  the  pontifical  insignia,  give  the  episcopal  blessing,  and  confer  tonsure  and 
minor  orders  upon  members  of  their  household  ( familiaribus).  We  have  said, 
cardinal  priests  and  deacons;  for  the  cardinal-bishops  of  the  six  suburban  sees 
near  Rome  have  no  titular  churches  in  Rome,  and  therefore  cannot  exercise 
the  above  rights  in  any  of  the  churches  of  Rome,  save  by  special  leave  from 
the  cardinal-vicar.  The  authority  of  cardinals  in  their  titles,  being  at  present 
restricted  to  matters  relating  to  the  sen>itinm  of  their  titles  and  the  observance 
of  ecclesiastical  discipline,  can  scarcely  be  called  jnrisdictio  quasi-episcopalis. 
Ferraris,  V.  Cardinalis,  art.  iii.,  Novae  Addit.,  n.  3. 

^Craiss.,  n.  710.  41  Phillips,  Lehrb.,  p.  211. 

48  Ferraris,  1.  c.,  art.  iii.,   n.  28.  29.  49  Ib.,  n.  33. 

M  Phillips,  Kirchenr.,  1.  c.,  p.  236.  51  Craiss.,  n.  710. 


268 


On  the  Assistants  01    Ministers 


during  the  lifetime  of  the  Pope — the  cardinals  iorm  the 
senate,"  chapter,  or  council  of  the  Pope,  and  upon  their  ad 
vice  to  the  most  holy  Roman  Pontiff  the  administration  of 
the  universal  Church  depends.53  II.  Sede  vacante — i.e.,  dur 
ing  the  vacancy  of  the  Pontifical  chair — i,  the  defence,  and, 
in  a  measure,  the  administration,  ad  interim,  of  the  Church, 
devolve  upon  them."  However,  the  jurisdiction  strictly  or 
properly  belonging  to  the  Pontiff,  being  attached  to  his  per 
son/6  does  not  pass  to  the  Sacred  College.58  Hence,  the 
cardinals  cannot,  sede  vacante,  enact  general  laws,"  appoint, 
confirm,  or  depose  bishops.'8  2.  The  faculties  of  the  con 
gregations  or  permanent  committees  of  cardinals,  being 
ordinary,  are  consequently  perpetual,69  and  do  not  lapse 
with  the  death  of  the  Pope  ;  they  should,  however,  Ije  dor 
mant  during  the  conclave  as  to  those  matters  which  are  of 
greater  importance,  and  which  are,  on  that  account,60  usual 
ly  attended  to  by  the  cardinals  personally,  not  merely  by 
their  secretaries.  3.  The  right  to  elect  the  new  Pope  be 
longs  exclusively  to  the  Sacred  College.  Cardinals  who  are 
ordinaries  of  dioceses  are  bound  to  proceed  to  the  conclave 
at  the  death  of  the  Pope  ;  they  must  return  to  their  dioceses 
two  months  after  the  election  and  consecration  of  the  Pon 
tiff." 

495. — III.  Insignia  of  Cardinals, — These  consist  chiefly,  I, 
of  the  red  hat  {galerns  rnbeus]  given  them  by  Pope  Innocent 
IV.  2.  The  red  cap  (birretum  rubruni)  bestowed  by  Paul 
IV.  3.  The  sacred  purple,  which  was  the  distinctive  dress  of 
the  emperors  :  it  came  to  be  worn  by  all  the  cardinals  from 
the  time  of  Boniface  VIII.82  Only  those  cardinals  who  are 
taken  from  religious  communities  retain  in  their  dress  the 
color  of  their  order.  Cardinals,  however,83  of  the  Society 

w  Soglia,  vol.  i.,  p.  259.  "  Cone.  Trid.,  sess.  xxv.,  cap.  i.,  d.  R 

M  Ferraris,  1.  c.,  art.  v.,  n.  23.  "  Ib.,  n.  30.  "  Soglia,  1.  c  ,  p.  261 

"  Ib.        M  Ferraris,  I.e.,  n.  24-27.       69  Ib.,  n.  43.  •"  Ib.,  n.  45-47. 

1  Ib.,  n.  4.  M  Phillips,  Lehrb.,  pp.  210,  211.  "  Craiss.,  n.  716 


of  the  Sovereign  Pontiff.  269 

of  Jesus  dress  like  secular  cardinals.  4.  Urban  VIII."  gave 
cardinals  the  title  eminentissimus^  eminent ia  vestra.  The  coat 
of  arms  of  cardinals  should  be  surmounted  by  a  cardinal's 
hat  and  fifteen  tassels  (fiocci\  but  not  by  a  secular  crown, 
even  though  they  are  members  of  royal  or  imperial  fami 
lies." 

§  3.    The  College  of  Cardinals  as  a   Corporation. 

496.  The  College  of  Cardinals,  like  other  cathedral  chap 
ters,  is  a  corporation,66  and,  as  such,  has  its  officers,  rights, 
and  duties.  Its  chief  officers  are:  I.  The  Decanus"  S.  Col- 
legii. — The  dean  is  the  head  or  president  of  the  College  of 
Cardinals.66  This  dignity,  upon  its  vacancy,  falls,  by  what 
is  styled  the///.y  optandi™  to  the  oldest  of  the  cardinals,  whe 
ther  he  resides  in  the  Curia  or  is  absent  from  it  ex  publica 
causa"  (z,  p.  503).  2.  The  Cardinalis  Camerarius  Sacri  Col- 
legii. — This  dignitary  administers  the  revenues  of  the  Sacred 
College.  He  is  assisted  in  his  duties  by  several  subordinate 
officials."  3.  The  Secretarius  S.  Collegii. — He  is  chosen  by 
vote,  and  should  be  an  Italian.  His  substitute  (clericus  na- 
tionalis)  should  be  alternately  selected  from  the  French, 
Spanish,  English,  and  German  nations."  The  Sacred  College, 
being  the  chapter  of  the  Roman  Church,  does  not  in  every  re 
spect  fall  under  the  laws  that  govern  other  chapters.  Thus,  it 
cannot  meet  without  the  permission  of  the  Pope,73  while  other 
chapters,  in  matters  relating  to  themselves  as  corporations,74 
are  convoked  by  their  dean  or  president  even  without  the 
consent  of  the  bishop."  Cardinals  living  in  Rome  should 
have  a  yearly  income  of  four  thousand  dollars  (scudi)™ 

84  Decretum  10  Jun.,  1630.  "Phillips,  Kirchenr.,  vol.  vi.,  p.  282. 

M  Ib.,  pp.  233,  238.  "7  Ib.,  pp.  237,  238. 

'"  Ib.,  p.  233.  '"  Ib..  p.  238  ;  cfr.  Phillips.  Lehrb.,  p.  3U 

*•  Craiss.,  n.  718.  "  Phillips,  Kirchenr.,  1.  c.,  p.  252. 

"  Ib.  "  Ib.,  p.  234.  74  Phillips,  Lehrb.,  pp.  313,  314. 

**  Our  Notes,  n.  66.  "  Phillips,  Kirchenr.,  1.  c.   p.  237. 


270  On  the  Assistants  or  Ministers 

§  4.   Consistories. 

497.   Q.  What  is  the  origin,  history  and  meaning-  of  coru 
sistories  ? 

A.  i°.  Formerly,  namely,  from  the  tenth  to  the  sixteenth 
century,  the  Roman  Pontiffs  were  wont  to  gather  about 
them  in  regular  weekly  meetings  all  the  cardinals,  and  to 
discuss  and  transact  with  them  the  entire  business  of  the 
Catholic  world.77  These  meetings  were  called  consistories, 
and  were  held  regularly  three  times  a  week  at  the  Papal 
palace,  and  under  the  immediate  presidency  of  the  Pope  him 
self.  At  these  consistories,  controverted  questions  on  faith, 
morals,  ecclesiastical  discipline  were  discussed  and  decided  ; 
criminal  and  disciplinary  and  other  contentious  causes  were 
heard  and  adjudicated  with  judicial  formalities,  the  litigants 
and  their  advocates  being  present.  The  Pope  himself 
always  gave  the  decision,  after  having  taken  the  advice  of 
the  cardinals.78  Besides  these  regular  consistories,  extraor 
dinary  ones  were  held  on  special  occasions.  Thus  Pope 
Clement  V.  held  an  extraordinary,  public  consistory  for  the 
purpose  of  ratifying  the  election  of  the  Emperor  Henry." 

2°.  Although  the  ordinary  consistories  were  held  three 
times  a  week,  yet  it  was  found  impossible  to  expedite  the 
constantly  increasing  business  of  the  Catholic  world  at 
them.80  Hence,  in  the  sixteenth  century,  the  cardinals  who 
had  up  to  that  time  discharged  the  affairs  of  the  Church 
only  in  these  general  meetings,  where  they  acted  as  a  com 
mittee  of  the  whole,  were  divided  up  into  various  special 
committees,  to  each  of  which  a  special  kind  of  business  or  a 
particular  sphere  of  action  was  assigned.  These  committees 
were,  and  are  still,  called  Congregations  of  Cardinals.  Con 
sequently  the  affairs  which  had  formerly  been  transacted  in 

17  Analecta,  Jur.  Pont.,  A.D.  1857,  p.  2236. 

78  Bangen,  the  Roman  Curia,  p.  75. 

79  Clem.,  i  de  Jurej.  (ii.  9). 

80  Analecta  Jur.  Pont.,  1.  c.,  p.  2239. 


of  the  Sovereign  Pontiff.  270^ 

consistories,  or  the  general  sessions  of  the  whole  college  of 
cardinals,  are  now  divided  up  and  expedited  by  the  various 
committees,  each  of  which  consists  of  a  certain  definite  num 
ber  of  cardinals,  officials,  and  consultors.  Hence  consistories, 
both  ordinary  and  extraordinary,  came  to  be  held  much 
more  rarely  than  in  former  times.  With  two  or  three  ex 
ceptions,  these  congregations  are  presided  over,  not  by  the 
Pope  himself,  but  by  one  of  the  cardinals,  who  is  called  the 
Prefect  of  the  Congregation.  From  what  has  been  said,  it 
will  be  seen  that  consistories  may  be  likened  to  our  National 
Congress  or  to  a  State  legislature,  sitting  as  a  whole  body; 
while  the  Sacred  Congregations  resemble  the  various  com 
mittees  appointed  by  each  Congress  or  State  legislature,  at 
the  beginning  of  the  session,  to  each  of  which  committees  a 
special  class  of  business  is  assigned. 

Q,  What  is  to  be  said  of  consistories  at  the  present  day  ? 

A.  The  establishment  of  the  various  commissions  of 
cardinals  has  not,  however,  done  away  altogether  with  con 
sistories.  The  latter  are  still  convened  from  time  to  time, 
as  occasion  requires,  and  are,  at  the  present  day,  of  two 
kinds:  i,  ordinary  or  secret,  at  which  only  cardinals  are 
present ;  2,  solemn  or  public,  to  which  the  cardinals  proceed 
in  great  pomp,  and  to  which  bishops,  prelates,  ambassadors, 
etc.,  are  also  admitted/1  What  matters  are  now  disposed  of 
in  ordinary  consistories?  Chiefly  these:  i.  The  appoint 
ment  of  new  cardinals.  Sometimes  the  Pope  announces  all 
the  names  of  those  whom  he  wishes  to  appoint.  Not  infre 
quently,  however,  he  keeps  the  names  of  some  of  them  secret. 
Cardinals  whose  names  are  thus  kept  secret  are  termed 
riservati  in  petto.  2.  The  appointment  of  bishops,  the  con 
ferring  of  the  pallium,  and  the  transfer  of  bishops;  the  erec 
tion,  union,  and  division  of  dioceses.  3.  Important  questions 
affecting  the  relations  of  the  Church  and  the  State.  How- 

81  Salzano,  lib.  i.,  pp.  77,  78. 


2  job 


On  the  Assistants  or  Ministers 


ever,  all  these  matters  are  fully  prepared  by  a  special  com, 
mittee,  called  congregatio  consistorialis,  before  they  are 
brought  up  in  the  consistory.  Ordinary  consistories  are 
now  held,  not  regularly,  but  only  at  the  pleasure  of  the  Pope, 
as  occasion  demands.  Sometimes  none  is  held  for  months." 
What  is  done  at  the  present  day  in  public  or  extraor 
dinary  consistories?  i.  The  imposing  of  the  red  hat  upon 
new  cardinals ;  2.  The  issuing  of  the  solemn  final  decree  or 
resolution  concerning  the  canonization  of  a  servant  of  God  ; 
3.  The  solemn  reception  of  temporal  rulers,  or  of  their  am 
bassadors.  These  solemn  consistories  are  held  at  present, 
like  the  ordinary  ones,  only  at  the  pleasure  of  the  Pope,  as 
occasion  may  require." 

ART.  II. 

Of  the  Congregations  of  Cardinals — Sacrae  Congregationes. 

|3gf°  498.  Q.  What  is  meant  by  the  Sacred  Congregations 
of  Cardinals? 

A.  We  have  just  seen  that  down  to  the  sixteenth  century 
the  cardinals  discharged  the  affairs  of  the  Church  in  general 
meetings,  where  they  acted  as  a  committee  of  the  whole ; 
that  in  the  sixteenth  century  they  were  divided  up  into 
various  committees,  to  each  of  which  a  particular  kind  of 
business  was  assigned.84  These  committees  were,  and  are 
still,  called  Congregations  of  Cardinals. 

Q.  How  many  kinds  of  Sacred  Congregations  are  there? 

A.  i°.  They  are  divided  into  (a)  permanent  committees, 
or  those  which  are  permanently  established,  (b)  and  tem 
porary,  or  those  which  are  specially  appointed  to  attend  to 
some  transient  matter  only. 

2°.  Both  the  permanent  and  temporary  Sacred  Congre 
gations  are  subdivided  into  those  which  expedite  affairs  per 
taining  to  the  Pope  (a)  as  Bishop  of  the  city  of  Rome  ;  (b)  as 
temporal  ruler  of  the  Papal  States ;  (c)  and  as  head  of  the 

82  Bangen,  1.  c.,  p.  76.  83  Ib. 

84  Analecta,  Jur.  Pont.,  A.n.  1857,  PP-  2264  sq. 


of  the  Sovereign  Pontiff.  271 

entire  Church."  r.  As  Bishop  of  Rome,  he  is  assisted  by 
the  S.  Congr.  Visitationis  Apostolicae,  \vhich  attends  to  all 
matters  pertaining  to  the  diocese  of  Rome.  2.  As  temporal 
sovereign  of  the  States  of  the  Church,  he  is  aided  by  the 
Congr.  Super  Consultatione  Negotiorum  Status  Ecclesiae,  which 
directs  both  the  internal  affairs  and  the  external  relations 
of  the  Pontifical  States.  3.  Finally,  as  head  of  the  entire 
Church,  he  is  assisted  by  twelve  standing  congregations,8'  of 
which  we  shall  now  speak. 

Q.   What  is  the  personnel  of  the  various  congregations? 

A.  Each  of  the  Sacred  Congregations  is  composed  of 
several  cardinals,  and  as  a  general  rule  has  a  cardinal- 
prefect  and  a  secretary,  both  of  whom  are  appointed 
for  life.  A  bishop  in  partibus?  or  other  prelate,  generally 
fills  the  office  of  secretary.  The  precise  number  of 
cardinals  attached  to  each  congregation  depends  at  pres 
ent  on  the  will  of  the  Pope.hB  The  Congregatio  Sancti 
Officii  alone  has  no  cardinal,  but  the  Pope,  as  its  pre 
fect.89  Moreover,  all  congregations,  save  the  Congr.  Concilii, 
have  their  counsellors  (consultores),  theologians,  and  canon 
ists,  who  are  appointed  bv  the  Holy  Father  for  life.90  The 
Congr.  Episc.  had  no  consultores  down  to  the  year  1834,  in 
which  year  some  were  also  attached  to  this  congregation.81 

§   i.    The  Congregatio  Consistorialis. 

499.  The  scope  of  this  congregation  is  to  fully  prepare 
all  matters  that  are  to  be  discussed  and  decided  in  consis 
tories.92  This  committee  was  established  by  Pope  Sixtus  V., 
has  from  eight  to  twelve  cardinals,  and  is  usually  presided 
over  by  the  Pope  himself.83 

86  Phillips,  K.  R.,  vol.  vi.,  p.  675.  88  Ib.,  p.  676. 

87  Ib.,  p.  567.  "  Ib.,  p.  565- 
"•  Ib.,  p.  566.  "  Ib.,  p.  567. 
91  Salzano,  lib.  i.,  p.  77.  w  Ib. 

93  Phillips,  Lehrb.,  p.  217,  and  Kirchenr.,  vol.  vi.,  p.  580. 


272 


On  the  Assistants  or  Ministers 


§  2.    The  Congr.  S.  Inquisitionis  or  S.  Officii. 

500. — I.  This  congregation  is  charged  with  the  investi 
gation  and  suppression  of  current  heresies.  At  first  this 
congregation,  as  established  by  Pope  Paul  III.  (1542),  was 
but  a  temporary  committee;  its  present  form,94  as  a  standing 
congregation,  was  given  it  by  Sixtus  V.95  II.  The  powers 
of  the  S.  Inquisition  (sanctum  officinni],  as  determined  by 
Pope  Sixtus  V.,96  are  chiefly:  i.  "  Inquirendi,  citandi,  pro- 
cedendi,  sententiandi  et  definiendi  in  omnibus  causis,  tarn 
haeresim  manifestam  quam  schismata,  apostasiam  a  fide,  ma- 
giam,  sortilegia,  sacramentorum  abusus  concernentibus  "  ;  2, 
"  non  solum  in  urbe  [zV.,  Roma]  et  statu  temporali  S.  Sedi 
subdito,  sed  etiam  in  universo  terrarum  orbe,  super  omnes 
patriarchas,  archiepiscopos  et  alios  inferiores  ac  inquisi- 
tores."  "  III.  This  committee  is  made  up  of  a  number  of 
cardinals ;  of  a  commissar ius  sancti  officii™  who  presides  at 
trials  as  ordinary  judge  ;  of  an  assessor  sancti  officii,  who  re 
ports  cases  under  consideration  to  the  full  committee  ;  of 
counsellors99  (consuttores),  chosen  by  the  Pope  himself  from 
among  the  most  learned  canonists  and  theologians  ;  of  the 
promoter  fiscalis — i.e.,  the  prosecuting  attorney  ; 10I)  of  the  ad- 
vocatus  reorum,  or  defendants' counsel.  The  General  of  the 
Dominicans,  the  magister  sacri  palatii,  also  a  Dominican,  and 
a  theologian  of  the  Order  of  Conventuals,  are  its  counsel 
lors  by  virtue  of  their  position  (consultores  nati}.  IV.  Two 
preparatory  sittings  or  congregations  are  held  weekly  :  one 
on  Monday,  the  other  on  Wednesday.10'  The  principal  con 
gregation  or  meeting  of  the  full  committee,  where  final  de 
cisions  in  matters  under  discussion  are  announced,  takes 
place  every  Thursday  in  the  presence  of  the  Pope,  who  is 


M  Phillips,  Lehrb.,  p.  217. 

**  Const.  Immensa. 

*"  Walter,  p.  263. 

101  Craiss..  n.  725   726. 


85  Walter,  pp.  262,  263  ;  cfr.  Salz.    1.  c.,  p.  791 
07  Ap.  Craiss.,  n.  724.  98  Salzano,  1.  C 

100  Phillips,  Kirchenr,  1.  c.,  pp.  590-592. 


of  the   Sovereign  Pontiff.  2/3 

the  prefect  of  this  congregation.10'  V.  Formerly  there  ex 
isted  also,  in  the  various  parts  of  the  Catholic  world,  local 
tribunals  or  courts  of  inquisition,103  subject  to  that  of  Rome, 
as  also  local  inquisitors  ;  but  at  present 104  these  local  tri 
bunals  are  everywhere  abolished,  even  in  Spain.105  The 
S,  Officunn,  however,  of  Rome,  or  the  Universal  Inquisition, 
has  not  lost  in  importance,  and  still  has  charge  of  all  that 
relates  more  directly  to  religion  or  the  purity  of  faith  ;  from 
it  emanate  censures  of  propositions  and  the  like.10" 

§  3.     Tlie  Congr.    Indicts — The  "Imprimatur"   in   the   United 

States. 

501.  The  task  of  examining   books  and    making   a   list 
(index}  of  those  which,  upon   examination,   had   been  pro 
hibited,  was  at  first  entrusted  to  the  5.  Congr.  Lnquisitionis.™ 
As,  however,  this  committee,  owing  to  its  other  duties,  was 
unable  to  properly  attend  to  this  matter,  Pope  Pius  V.,  in 
1571,""   established    the    Congr.   Indicts,    whose   special   and 
almost   sole   duty   was  to   examine  books  that  were  to  be 
either  proscribed,  emended,  or  permitted.109     Books  against 
faith  and  morals  are  at  present  examined  and  condemned 
almost  exclusively  by  this  congregation.110     It  is  composed 
of  several  cardinals,  one  of  whom  is  prefect ;  of  the  magister 
sacri  palatii,  the  permanent  assistant  of  the  prefect;  of  coun 
sellors  and  relators.111 

502.  Rules  of  the  Index  (Regulae  Indicts]. — According  to 
the  ten   rules  of  the   Index  drawn  up   by  a  committee  of 
the  Fathers  of  the  Council   of  Trent,  and    approved    and 
published    by    order    of   Pope    Pius    IV.112  and   later    Pon 
tiffs,"3  some  books  are  prohibited  absohitely  ;  others  but  con- 

102  Phillips,  1.  c.,  p.  592.  103  Ib.,  p.  585.  IM  Craiss.,  n.  723. 

106  Salzano,  1.  c.,  p.  79.      .  109  Ib.  107  Craiss.,  n.  727. 

Me  Phillips,  Kirchcnr  ,  vo<,  vi.,  p.  612.  I09  Ib.,  Lehrb.,  p.  219. 

110  Our  Notes,  n.  402.  nl  Phillips    Kirchenr.,  1.  c.,  p.  6ri 

m  Const.  Domitiiri  A.D.  1564.  us  Cfr.  Re'ff,  lib.  v.,  tit.  vii.,  n.  117 


274 


On  the  Assistants  or  Ministers 


ditionally  or  sub  clausiilis.  I.  These  are  absolutely  forbid 
den  :  i.  All  books  which  were  already  prohibited  prior  to  the 
year  1515  by  Popes  and  oecumenical  councils."4  2.  All  the 
writings  of  heresiarchs,  and  those  books  of  other  heretics 
which  treat  ex profcsso  of  religion."5  3.  Also  obscene  books.1'' 
and  those  which  treat  of  astrology,1"  sortilegy,  and  the  like, 
4.  Finally,  all  books  placed  on  the  Index,  without  any  obser 
vations.  II.  The  following  books  are  prohibited  condition- 
filly  (sub  clausulis) — i.e.,  until  examined  and  approved  in  the 
proper  manner  (donee  approbati  fucrint]  :  "6  i.  Those  books 
and  writings  of  heretics  which  do  not  treat  ex  professo  of  re 
ligion."9  2.  Bibles  published  in  the  vernacular  without  the 
approbation  of  the  Holy  See,120  or  without  annotations  taken 
from  the  holy  fathers  121  or  from  learned  Catholic  writers.1''1 
For  other  rules,  see  Phillips.1"  The  prohibition  of  books  by 
the  5.  Congr,  Indicis  124  includes  the  reading  and  keeping,  the 
defending  and  publishing,  of  such  works.'"  III.  The  law  of 
the  Index 128  furthermore  enacts  that  no  book  or  writing  of 
any  kind  shall  be  published  without  the  approbation  of  the 
ordinary  of  the  diocese  where  the  book  is  published.  From 
this  we  infer:  I.  The  approbation  is  to  be  given,  not  by  the 
ordinary  of  the  autlior,  but  of  the  place  where  the  book  is 
published.1"  2.  The  law  of  the  Index  is  more  sweeping  in 
its  restrictions  than  the  Council  of  Trent.1"8  The  latter  re 
quires  the  approbation  of  the  ordinary  only  for  books  treat 
ing  de  rebus  sacris ;  the  former  for  all  books  or  publica 
tions.129  Tin's  law  of  the  Index,  however,  so  far  as  its 
unlimited  application  is  concerned,  seems  at  present  to  be 
universally  in  abeyance ;  for,  even  in  Catholic  countries, 

114  Regula  I.,  ap.  Reiff .,  1.  c.,  n.  in.  ns  Regula  II.  ""  Regula  VII. 

117  Regula  IX.  1W  Phillips,  1.  c.,  pp.  613,  614.  »"  Regula  II. 

140  Regula  IV.  121  Craiss .,  n.  737.         ra  Cfr.  Cone.  PI.  Bait   II.,  n.  16. 

123  L.  c.  I24  ReifF,  lib.  v  ,  tit.  vii.,  n.  3;,  7-  I25  Konings,  n.  1702 

139  Regula  X.  m  Craiss.,  n.  743.         I28  Sess.  iv..  de  Edit.  libr. 

Bouix,  DC  Jure  Regular.,  vol.  ii.,  pp.  146,  14?. 


of  Ike  Sovereign  Pontiff. 


175 


where  the  Rules  of  the  Index  are  in  force,  only  such  books  at 
most  as  treat  dc  rebus  sacris  are  submitted  to  ordinaries  be 
fore  publication.  We  say,  at  most ;  for  not  only  through 
out  the  United  States,  but  also  in  Catholic  countries,"0  such 
books  as  treat  de  rebus  sacris  are  now  often  published  with 
out  the  approbation  of  ordinaries.  Note,  it  is  important  to 
know  the  Rules  of  the  Index ;  m  for  the  5.  Congr.  Indie  is  ex 
amines  and  passes  judgment  on  books  according  to  these 
rules.132 

503.  Q.  Are  the  Rules  of  the  Index  and  the  decrees  of  the 
5.  Congr.  Indicis  obligatory  sub  gravi  throughout  the  entire 
Church  ? 

A.  They  are  ;  for  various  Roman  Pontiffs  have  time  and 
again  declared  the  law  of  the  Index  to  be  binding  on  all  the 
faithful.  Thus,  Benedict  XIV.133  enacts:  "  Indicem  ab  om 
nibus  et  singnlis  ptrsonis,  ubicunqne  loconun  existent  ib  us,  invio- 
labiliter  et  inconcusse  observari  praecipimus. "  There 
are  some,  indeed,  who  affirm  that  the  Index  is  not  binding, 
at  least  in  part,  where  it  has  not  been  received,  or  where  it 
has  been  abrogated  by  custom  to  the  contrary.13"  Reiffen- 
stuel  and  Phillips  "6  answer  very  properly  that  just  laws, 
such  as  those  of  the  Index,  in  order  to  be  binding,  need  not 
be  accepted  ;  nay,  that  subjects  commit  sin  by  refusing,  with 
out  a  sufficient  cause,  to  accept  a  just  law.1"  As  to  cus 
toms  abrogating  the  law  of  the  Index,  Reiffenstuel  13fl  very 
justly  points  to  the  fact  that,  so  far  from  being  tolerated  by 
the  Roman  Pontiffs,  these  customs  have  been  expressly  and 
repeatedly  condemned  by  them,  and  are  therefore  abuses. 
Thus  Benedict  XIV.,  after  having,  as  we  have  seen,  de 
clared  that  the  Index  binds  everywhere,  expressly  adds : 

180  Cfr.  Craiss.,  n.  764.  131  Cfr.  Phillips,  1.  c.,  p.  612. 

132  Reiff.,  1.  c.,  n.  1)9-110.  133  Const.  Quae  ad  Catholicae,  arm.  1757. 

134  Ap.  Phillips,  1.  c.,  p.  6iS,  note  34.         m  Reiff.,  lib.  v.,  tit.  vii.,  n.  113. 

'°6  Kirchenr. ,  vol.  vi.,  p.  GiS.  I3T  Cfr.  Supra,  n.  30.     138  L.  c.,  n.  117;  cfr.  n.  90. 


276  On  the  Assistants  or  Ministers 

"  Non  obstantibus  usibus,  stylis  et  consuetudinibus  etiain 
immemorabilibus,  caeterisque  in  contrarium  facientibus 
quibuscunque."  In  all  subsequent  editions  of  the  Index 
issued  by  Papal  authority  down  to  the  year  1841  the  brief 
of  Benedict  XIV.  containing  this  clause  was  retained. 13S 
Pope  Leo  XII.,  in  his  mandate  of  March  26,  1825,  urges 
upon  bishops  the  obligation  of  enforcing  the  rules  of  the 
Index.  Lastly,  Pope  Gregory  XVI.,  in  his  encyclical 
letters  of  March  6,  1844,  ordains:  "  Standum  esse  generali- 
bus  regu'is  et  d.cretis  quae  Indici  librorum  prohibitorura 
praeposita  habentur." 

504.  From  what  has  been  said  it   follows  that  the  Rules 
of  the   Index   and   the  decrees  of  the  5.   Congr.  Indicis  are 
per  se  obligatory   everywhere,  and    therefore   also    in   the 
United  States.141     We  say,  perse;  for,  considering  the   fact 
that  not  only  with  us,  but  even  in  European  countries — v.g., 
Germany  and  France — these  rules  are  not,  and,  owing  to  the 
times  in  which  we  live,  cannot,  perhaps,  be  observed  in  all 
their  rigor,  it  may  perhaps  be  presumed  that  the  Sovereign 
Pontiff  does  not  wish  to  urge  their  full  observance,  and  that 
consequently  the  faithful   are   excused   from  the    more   rig 
orous  observance  of  each  and  every  Rule  ot  the   Index.1" 

505.  The  Second  Plenary  Council  of  Baltimore  thus  calls 
attention  to  the  general  law  of  the  Church  : 14ft  "Jam    vero 
Ecclesiae  lege,  libri  ad  religionem  et  Dei  cultum  spectantes 
sine  Ordinarii  approbatione  praelo  committi  vetantur  ;  quod 
si,  Episcopo  inconsulto  aut  invito,  in  lucem  prodierint,  eorum 
lectione    est  abstinendum.      Quod    omnibus   in   memoriam 
hoc  decreto  revocavit  C.  Bait.  I.  :  14B  Quoniam  multa  incom- 
moda  jam  orta  sunt,  et  in  posterum  oritura  videntur,  ex  eo 
quod  in  diversis  hujus  provinciae  (Regionis)  dioecesibus  di- 

""Craiss,  n.  731.  i40  Prael.  S.  Sulpit.,  torn,  i.,  p    175.     Parisiis,  1875. 

141  As  to  the  faculties  of  our  bishops  in    this   matter,  see   Facult,  form   i., 
n.  21  ;  Fao.  Extr.  f\,  n.  2.  ""  Prael.  S.  Sulpitii,  1.  c.,  p.  174. 

148  Cfr   Konings.  n.  1707,  q.  2.  149  Prov.  i.,  n.  33. 


of  the   Sovereign    Pontiff.  277 

versi  catechismi  et  libri prccum  adhibeantur,  privata  auctori- 
tate  editi,  .  .  moneant  (Episcopi)  fideles  tit  a  precum 
libellis,  qui  sine  Ordinarii  approbation  .  .  in  lucena 
editi  circuraferuntur,  abstineant."  1&0  Again  it  enacts  :  "  Ut" 
(Episcopi,  in  quorum  dioecesibus  sint  praela  aut  typogra- 
phea  Catholica)  "in  suis  quisque  dioecesibus  unum  aut 
plures  sacerdotes151  .  .  .  designent,  qui  examini  subji- 
ciant  libros precum,  aut  aliter  ad  rdigiunem  pertinentes,  prius- 
quam  ab  Ordinario  .  .  .  approbatione  fidelibus  com- 
mendentur."  1M  As  to  the  censures  incurred  for  violating 
the  Rules  of  the  Index,  see  Craisson153  and  the  Constitution 
Apostolicae  Sedis  of  i869.154 

§  4.    T/n'  Congregatio  Concilli. 

506. — I.  The  Council  of  Trent  left  to  the  Sovereign  Pon 
tiff  the  care  of  enforcing  and  interpreting  its  enactments I5i 
wherever  anything  should  be  met  with  requiring  explana 
tion  or  definition.156  For  this  purpose  Pope  Pius  IV.  (1564) 
established  the  Congr.  Cardinalium  Concilii  Tridentini  Inter 
pret  tun™  II.  This  committee  had,  in  the  beginning,  only 
power  to  see  to  the  execution  or  observance  of  the  Triden- 
tine  disciplinary  laws — i.e.,  decrees  on  reform.1"  It  was 
empowered  by  Pope  Pius  V.  to  interpret  definitively  the 
Council  of  Trent  in  all  cases  where  the  congregation  was 
not  in  doubt  as  to  the  meaning  of  the  Council.159  Finally, 
Sixtus  V.  gave  this  committee  general  powers  to  interpret 
the  Tridentine  decrees  on  reformation.  Now,  the  decrees 
of  Trent  include,  so  to  say,  the  entire  code  of  ecclesiastical 
jurisprudence.  Hence,  this  congregation  has  power  to  ex 
plain  authoritatively  all  canon  law  ;  moreover,  in  matters  of 
discipline,  it  has  not  only  judicial  but  legislative  authority 

150  C.  PI.  Bait.  II.,  n.  502.  I51  C.  PI.  Bait.  I.,  n.  8. 

152  C.  PI.  Bait.  II.,  n.  503.  '"  N.  760. 

104  N.  2  ;  Craiss.,  n.  1641.  156  Sal/.ano,  lib.  i.,  p.  85. 

16r'C.  Trid.,se-s.  xxv.,  c.  xxi.,  d.  R.       167  Phillips,  Lehrb.,  p.  219. 

"*  Cfr.  ib  ,  p.  220.  159  Cfr.  i1...  Kirchenr.,  1.  c.,pp.  625-636, 


278  On  the  Assistants  or  Ministers 

over  the  entire  Church,160  being  empowered  to  make  such 
laws  as  are  deemed  opportune."1  We  said  above,  Tridentine 
decrees  on  reformation  ;  for  the  interpretation  of  the  Triden 
tine  decrees  in  matters  of  faith  is  reserved  to  the  Pope.16'' 
III.  Personnel  of  t/tis  Congregation. — It  has  a  greater  number 
of  cardinals  than  the  other  congregations.  A  prelate,  gene 
rally  an  archbishop  in  partibus,  is  its  secretary."3  This  com 
mittee  has  these  three  sub-committees:  i.  The  Congr.  Visita- 
tionis  liminum,  which  receives  the  reports  on  the  state  of  dio 
ceses,  both  as  sent  to  Rome  or  as  made  personally  by  bishops 
when  visiting  Rome."4  2.  The  Congr.  particulars  super  re- 
visione  synodoruin  proinnciaiiurn.  A  number  of  consultors  arc 
attached  to  this  special  committee  ;  though,  as  we  have  said, 
no  consultors  are  attached  to  the  S.  C.  Concilii  itself.  Both 
these  sub-committees  are  presided  over  by  the  cardinal- 
prefect  of  the  full  committee  (Congr.  Concilii),  and  have  the 
secretary  also  of  the  latter.165  3.  TJic  Congr.  particularis  super 
residcntia  Episcoponnn. 

§  5.    The  Congr  cgatio  de  Propaganda  Fide,    its  re /at  ions  to  t/u 

United  States. 

507.  This  congregation  was  established  by  Gregory 
XV.16'  and  consists  of  a  number  of  cardinals,  one  of  whom 
acts  as  prelect;  ol  a  secretary,  who  is  always  one  of  the 
most  esteemed  prelates:  of  the  assessor  sancfi  officii ;  of 
twenty -four  counsellors  and  many  subaltern  officials.11' 
This  congregation  has  entire  and  exclusive  charge  of  the 
ecclesiastical  affairs  of  missionary  countries.  New  missions 
are  established  and  districted  by  it.  As  a  rule,168  a  mission 
is  first  entrusted  to  a  simple  priest,  as  praefectns  apostolicns. 
When  the  mission  is  farther  advanced,  a  vicarius  apostolicus 
is  appointed  ;  he  is  made  bishop  or  archbishop  in  partibus 

100  Phillips,  1.  c.,  pp.  634,  635.  "'  Craiss.,  n.  769 

16V  Ib.,  n.  760.       >"  Analecta,  J.  P.,  A.D.  1857,  p.  2387.        1C4  Ib.,    p.  638. 
1Bt  Ib.  "'*  Const.  Inscrutabili,  22  Jan.,  1622. 

187  Phillips,  vol.  vi.,  p   668  ""•  It>.,  pp.  669.  670  ;  cfr.  Craiss.,  n.  ?8<x 


of  the  Sovereign  Pontiff,  2  79 

Sometimes  a  fixed  place  of  residence  is  assigned  him  ;  yet  a 
diocesan  organization,  canonicallv  complete,  is  not  thereby 
effected.  Hence,  such  a  bishop  remains  an  auxiliary  bishop 
of  the  Pope.  For  that  reason,  also,  missionary  bishops  are 
not  appointed  in  consistory,  but  on  the  nomination  of  the 
Propaganda.16'  With  us,  the  consultors  and  irremovable 
rectors  on  the  one  hand,  and  the  bishops  of  the  province  on 
the  other,  recommend  to  the  Propaganda  three  candidates 
when  a  bishopric  becomes  vacant.170  Countries  are  con 
sidered  missionary  and  remain  under  the  Propaganda  m  so 
long  as  the  organization  of  their  dioceses  is  incomplete  "'' 
/>.,  not  in  every  respect  conformable  to  canon  law — v.g.,  if 
chapters  do  not  exist;1'1  in  other  words,  until  canon  law 
fully  obtains  in  them. 

508.  Powers  of  the  Propaganda. — Dioceses  may  be  incom 
plete  as  to  their  organization  chiefly  in  two  ways:  i,  some 
dioceses  are  as  yet  in  the  course  of  organization  "*—v.g.,  dio 
ceses  in  the  United  States  ;  2,  others  which,  though  once 
fully  organized,  became  disintegrated  by  the  inroads  of 
schism  or  heresy  in  countries  once  Catholic.  Wherever  the 
organization  or  form  of  government  of  a  diocese  is  not  and 
cannot  be  made  entirely  conformable  to  canon  law,175  its  ad 
ministration  devolves  directly  on  the  Pope,  who  has  juris- 
dictio  ordmaria  in  every  diocese. J7li  Now,  the  Sovereign 
Pontiff"  manages  the  affairs  of  missionary  countries  through 
the  Congr.  Prop.  Fidei.  Hence,  this  committee  has  exclu 
sively  the  direction  of  ecclesiastical  affairs  respecting  mis 
sionary  countries.  We  say,  exclusively ;  that  is,  the  Propa 
ganda  is  for  missionary  countries  what  all  the  other  congre 
gations  combined  are  for  countries  where  dioceses  are 
perfectly  organized,  having  chapters,  etc.  While,  there 
fore,  ecclesiastical  matters  from  canonically -organized  die- 

""  Phillips,  vol.  vi.,  p.  670.  "°  Cone.  PI.  Bait.  II.,  n.  106. 

•'  Phillips,  Lehrb.,  p.  223.  m  Cfr.  ib.,  §  126,  p.  235. 

173  Cfr.  Phillips,  Kirchenr.,  1.  c.,  p.  663.  174  Ib.,  Lehrb.,  p.  235. 

'">  Ib. .  cfr.  ib.,  p.  223.  17'  Cfr.  ib..  Kirchenr.,  1.  c  ,  p.  665 


•>8o  On  the  Assistants  or  Ministers 

ceses  must  be  referred  to  the  respective  congregations 
having  charge  of  the  specific  affair,  those  from  missionary 
countries  must  be  referred  exclusively  to,  and  are  arranged 
solely  by,  the  Propaganda.  Hence,  of  this  congregation  it  is 
said:  C act  eras  tongregation.es  Jiabet  in  venire"1 — i.e.,  for  mis 
sionary  countries  the  Propaganda  is  the  sole  congregation, 
combines  in  itself  the  powers  and  discharges  the  duties  or 
functions  not  merely  of  several,  but  of  all  the  other  congre 
gations  ;  so  that  while  the  priests  and  bishops  of  countries 
where  canon  law  obtains  must  refer  matters  to  the  respec 
tive  congregations,  the  priests  and  bishops  of  missionary 
countries  must,  in  all  cases,  address  themselves  to  the  Propa 
ganda,  but  to  no  other  congregation.  Thus,  this  committee 
is  for  missionaries  the  exclusive  court  of  appeal  in  all  cases 
of  dispute  ;  it  alone  solves  questions  proposed  to  the  Holy 
See  by  missionaries.  Observation. — From  what  has  been 
said  we  infer:  All  priests  or  bishops  in  the  United  States 
having  recourse  to  Rome,  whether  for  the  sake  of  appeal 
ing — v.g.,  from  alleged  acts  of  injustice  on  the  part  of 
bishops — or  by  way  of  asking  for  faculties  or  decisions  in 
controverted  matters — in  a  word,  in  all  cases — must  address 
themselves  to  the  Propaganda,  and  to  no  other  congrega 
tion  (H,  p.  503). 

509.  In  the  seminary  attached  to  the  Propaganda"" 
young  men  of  every  nationality  are  educated  for  the  va 
rious  missions  of  the  world.  In  the  printing-office  attached 
to  the  Propaganda  books  are  published  in  every  language 
for  the  use  of  missions.  The  full  committee  (Congr.  genera- 
Us)  meets  once  a  month,179  on  a  Monday.  The  meeting  is 
generally  held  in  the  Propaganda ;  sometimes  in  the  pre 
sence  of  the  Pope.  The  sub-committee,  composed  of  the 
cardinal-prefect,  secretary,'  and  several  subaltern  officials, 

17T  Phillips,  1.  c.,  p.  663. 

78  This  seminary  is  named  Collegium  Urba num,  after  Pope  Urban  VIII.,  whc 
established  it.  Craiss.,  n.  781.  "•  Phillips,  1.  c.,  vol.  vi.,  p  666. 


of  the  Sovereign  Pontiff.  281 

meets  once  a  week  in  the  house  of  the  cardinal- prefect ;  it 
attends  to  matters  of  minor  importance,  reserving  those  of  a 
graver  character  to  the  full  committee.1™  Pius  IX.181  divided 
the  Propaganda  into  two  parts  :  one,  pro  ntu  latino ;  the 
other,  pro  ritii  oriental i.l*'~ 

§  6.    Tlie  Other  Congregations. 

510. — I.  The  Congr.  super  Negotiis  Episcoporiun  et  Regula- 
rium. — I.  Though  originally  two  distinct  congregations,18" 
the  Congr.  Episcoporum  and  the  Congr.  Rcgularium  were  soon 
united  into  one,  probably  lfl4  already  by  Sixtus  V.186  II. 
Powers  of  t/iis  Congregation.  —  It  has  charge  of  all  matters 
whatever  relating  to  bishops  (omnia  negotia  episcoponun) 
or  religious  communities  (negotia  rcgulariuni)  ;  it  settles 
disputes  between  bishops  and  their  subjects,  as  also  be 
tween  bishops  and  religious  communities.18"  It  has,  in 
fact,  jurisdiction  in  all  matters,  save  those  which  relate  to 
dogmas  or  require  the  interpretation  of  the  Council  of 
Trent ; !87  hence  it  is  termed  congrc^atio  universalis.  Its  per 
sonnel  is  similar  to  that  of  other  congregations.  III.  Mode 
of  procedure. — In  deciding  cases  referred  to  it1"8  this  commit 
tee  proceeds  either  judicially,  though  summarily,  or  extra- 
judicially,  according  as  the  matter  is  of  a  contentious  or  vol 
untary  character. 1M  When  a  question  of  dispute — v.g.,  between 
a  bishop  and  a  parish  priest  — is  brought  before  this  commit  tee, 
its  usual  course  is  to  write  to  the  bishop  against  whom  the  com 
plaint  is  lodged,  or,  if  he  fails  to  furnish  a  satisfactory  report,  to 
the  metropolitan,  to  a  neighboring  bishop,  or  also  to  other 
trustworthy  persons,  for  a  statement  of  the  case.  Upon  re 
ceipt  of  such  statement  the  committee  proceeds  to  discuss 

100  Phillips,  vol.  vi.,  p.  668.  ""  In  iSt:2,  Jan.  6. 

lwi  Craiss.,  n.  782.  "*  Ib.,  n.  770. 

1M  Phillips,  vol.  vi.,  p.  642.  1BS  Const  Immensa  Aeterni,  A.D.  1587. 

'**  Phillips,  1.  c.,  pp.  645,  646.  ""  Ib. ,  pp.  640,  643.  "**  Ib.,  p.  644. 

189  Salzano,  lib.  i.,  p.  86;  Santi,  Prael.  1.   i,  t.  31,  n.  59,  86. 


282  On  the  Assistants  or  Ministers 

and  settle  the  case.ls°  The  decision  reached  is  communi 
cated  to  the  bishop,191  either  directly  or  through  some  neigh 
boring  prelate.  In  matters  relating  to  religious  communi 
ties  the  procurator-general  of  the  respective  religious  order 
is  applied  to  for  information  as  to  the  case. 

511. — II.  Tlie  Congr.  'Sacrorniii  Rituuin. — This  committee, 
which  was  established  by  Sixtus  V.,1!"  is  empowered:  i.  To 
prevent  anything  superstitious  from  getting  into  the  cere 
monies  or  liturgy  of  the  Church.  2.  To  bring  about  uni 
formity  of  worship  by  enforcing  the  ordinance  of  Pius  V. 
—to  wit:  That  the  ceremonial  of  the  Roman  Church,'" 
especially  as  regards  the  Masr,  the  office,  and  the  ad 
ministration  of  the  sacraments,  should  be  observed  by  all 
the  other  churches  of  Christendom.  3.  Hence,  to  correct 
the  missal,  breviary,  pontifical,  ritual,191  and  ceremonial.  4. 
To  conduct  the  proceedings  respecting  the  canonization  ol 
saints.101' 

512.  Q.  What  is  the  force  of  the  decrees  and  decisions  of 
the  Congr.  S.  Rituum  ? 

A.  There  are  two  kinds  of  decrees  :  some,  and  by  far  the 
greater  number,  are  particular,  being  in  the  form  of  answers 
to  individuals  or  particular  churches  ;  others  are  general, 
either  expressly  —  v-g;  when  addressed  nrbi  et  orbi™'  —or 
aequivalenter — v.g.,  when  explanatory  of  general  rubrics :  e.g., 
those  in  the  beginning  of  the  Missal  or  Breviary.11"  Now, 
all  decrees  which  are  expressly  general  are  obligatory  every 
where;  decrees  which  are  general  aequivalenter  also  bind  uni 
versally,  provided  they  are  dcclarationes  comprehensivae.™*  As 
to  particular  decrees,  it  is  certain  that  they  have  the  force 

JBO  Sahano,  lib.  i.,  p.  86.  m  Phillips,  1.  c.,  pp.  646,  647. 

IW  Bulla  hnmensa  Aftetni ;  cfr.  Bened.  XIV.,  De  Sen'oruin  Dei  flfa'if,  etc. 
cap.  xvi.-xix.  lfl3  Salzano,  1.  c.,  p.  87. 

""  Phillips,  1.  c.,  p.  654.  106  Ib. 

m  Traiss.,  n.  775  ;  cfr.  supra,  n.  77,  78,  81.  1P7  O'Kanc   Notes,  n.  29. 

Jl*  Cfr.  supra,  n.  70 


of  the  Sovereign  Pontiff.  283 

of  law  for  those  for  whom  they  were  given  ;  but  are  they 
also  binding  on  all— i.e.,  are  they  obligatory  also  in  casibus 
limilibus  ?  Here  a  distinction  must  be  made  between  those 
particular  decrees  which,  though  particular  in  form,  are 
nevertheless1"9  general  and  applicable  everywhere,  in  sub 
stance  and  intent,  and  those  which  are  particular,  in  an  ex 
clusive  manner — i.e.,  not  only  in  form,  but  also  in  intent : 
v.g.,  those  that  imply  a  dispensation  or  privilege,  or  are 
given  on  account  of  special  local  circumstances.  Now,  it  is 
certain  that  the  latter  are  binding  20°  only  in  the  particular 
cases  for  which  they  are  made  ;  whether  the  former  are 
universally  binding  is  a  disputed  question.  St.  Liguori 2C 
seems  inclined  to  the  opinion  that  they  are  not  ;  but  he 
afterwards  modifies  this  opinion  by  adding  that,  when  such 
decrees  are  universally  known,  and  are  thus,  in  tact,  pro 
mulgated  by  long  usage  and  the  constant,  reference  of 
authors  to  them,  they  are  binding  on  all.203  Note,  how 
ever,  it  is  certain  that,  when  particular  decrees  are  solemnly 
promulgated  to  the  entire  Church,  they  become  binding 

on  all. 

5! 3. HI.  The  Congr.  Indulgentiarum  et  Reliquiarum  was 

made  a  standing  congregation  by  Clement  IX.203  Its  duty 
consists,  i,  in  preventing  abuses  in  the  matter  of  indul 
gences,  etc. ;  2,  in  authenticating  relics,  especially  those 
taken  from  the  Catacombs  of  Rome.204  For  the  remaining 
congregations,  see  Craisson.205 

514.  The  Congregations  in  general. — In  conclusion,  we  add 
a  few  words  on  the  rights,  etc.,  common  to  all  the  congre 
gations.  I.  All  congregations  have  jurtsdictio  ordinarin™  in 
their  respective  spheres— ?>.,  in  matters  entrusted  to  their 

199  Cfr.  O'Kane,  1.  c.,  n.  29.  20C  Cfr.  Konings,  n.  173,  quaer.  4. 

201  Lib.  i.,  n.  106,  quaer.  2.  2oa  O'Kane.  1.  c.,  n.  35. 

203  Const.  In  Ipsis,  1669  (B.  M.,  torn,  vi.,  p.  283). 

204  Phillips,  1.  c.,  p.  661.  M6  L.  c.,  n.  783  seq. 
"•Phillips,  1.  c.,  p.  569- 


284  On  the  Assistants  or  Ministers 

cognizance — by  their  mandates  or  commissions;  nay,  they 
constitute  one  and  the  same  tribunal  with  the  Sovereign 
Pontiff ;  hence,  there  is  no  appeal  from  them  to  the  Pope.4" 
They  resemble,  in  their  powers,  the  vicar-general  of  a 
diocese.  They  are  in  fact  the  vicars-general  of  His  Holiness 
for  the  entire  Church,  just  as  the  Cardinal  Vicar  of  Rome 
is  the  Pope's  vicar-general  for  the  diocese  of  Rome.  Their 
jurisdiction  does  not  lapse  with  the  death  of  the  Pope ;  yet 
it  should,  so  to  say,  lie  dormant  during  the  vacancy  of  the 
Papal  chair.'08  For  the;  cardinals  should,  during  such 
vacancy,  apply  themselves  chiefly  and  almost  exclusively 
and  without  any  delay  to  the  election  of  a  new  Pope. 
Hence  they  should  not  do  anything  else,  although  they  can 
provide  for  urgent  cases  brooking  no  delay.  Consequently 
they  have  not  the  powers  of  a  cathedral  chapter  or  of  a 
diocesan  administrator,  sede  vacante™ 

Thus  Pope  Innocent  III.  (1243-1254)  decrees:  "  lidem 
quoque  cardinales  accelerandae  provision!  (election!  S. 
Pontificis)  sic  vacent  attentius,  quod  se  nequaquam  de  alio 
negotio  intromittant,  nisi  forsan  necessitas  adeo  urgens  in- 
cideret,  quod  eos  oporteret  de  terra  ipsius  ecclesiae  defen- 
denda  vel  ejus  parte  aliqua  providere,  vel  nisi  aliquod  tarn 
grande  et  tarn  evidens  periculum  immineret,  quod  omnibus 
et  singulis  cardinalibus  praesentibus  concorditer  videretur 
illi  celeriter  occurrendum." '' 

Pope  Clement  V.  (1305-1314)  confirms  the  above  and 
annuls  all  acts  of  the  cardinals  done  to  the  contrary.  His 
words  are:  "  Irritum  et  inane  decernentes,  quidquid  potes- 
tatis  aut  jurisdictionis  ad  Romanum,  dum  vivit,  Pontificem 
pertinentis  (nisi  quatenus  in  constitutione  praedicta— i.e.  cap. 
i  de  elect,  in  6°,  permittitur),  coetus  ipse  (Cardinalium) 
-cluxerit,  eadem  vacante  ecclesia  (Romana)  exercendum."*11 

'•""  Craiss.,  n.  785.  *°8  Phillips,    K.  R.,  vol.  vi.,  p.  570. 

5119  Schulte,  K.  R.(  vol.  i.,  p.  102.        2I°  Cap.  T  de  elect,  in  6°  (i.  6). 
*"  Clern.  cap.  2,  de  Elect,  (i.  3). 


of  the  Sovereign  Pontiff.  285 

II.  Forms  used  by  the  various  Sacred  Congregations  in  de 
ciding  matters.— The  Sacred  Congregations,  being  the  su 
preme  tribunals  of  the  Church,  do  not,  in  giving  a  decision, 
set  forth  the  reasons  upon  which  it  is  based.  They  render 
their  decisions  sometimes  in  one  word,  such  as  affirmative, 
and  sometimes  in  short  phrases.  We  shall  now  briefly  ex 
plain  these  words  and  clauses. 

Some  of  the  resolutions  of  the  Sacred  Congregations  are 
such  as  put  off  the  decision  for  further  examination  ;  others 
are  such  as  contain  the  decision  rendered.  The  former  are 
given  in  the  following  forms  :  i.  Non  proposita  ;  that  is,  the 
matter  could  not  be  decided  in  the  session,  owing  to  the  fact 
that  the  session  was  finished  before  it  was  reached.  Such 
deferred  matters  are  usually  the  ones  first  taken  up  in  the 
next  session.  2.  Iterum  proponatur ;  that  is,  the  matter  or 
case  was  indeed  discussed  in  the  meeting  of  the  Sacred 
Congregation,  but,  the  opinions  of  the  cardinals  being  di 
vided  and  the  matter  not  being  altogether  clear,  no  de 
cision  was  arrived  at,  and  the  matter  is  therefore  to  be 
brought  up  again  at  the  next  session.  3.  Dilata,  which 
means  that  the  matter  was  indeed  discussed,  but  that  a  sub 
stantial  act  or  proof  is  missing  or  wanting,  and  that  the  case 
is  therefore  put  off  to  a  future  session.  Sometimes  the  de 
cision  is  dilata  et  coadjuventur  probationes. 

The  resolutions  which  contain  a  decisive  answer  are  usu 
ally  given  in  these  forms  :  i.  Affirmative  or  negative  ;  that  is, 
the  case  is  decided  affirmatively  or  negatively  and  unfavor 
ably.  2.  Sometimes  to  these  words  is  added  the  clause  et  am- 
plius,  which  means  that  the  case  or  matter  has  been  fully  and 
completely  discussed  and  decided  unanimously,  and  there 
fore  will  not  be  reconsidered  by  the  Sacred  Congregation, 
nor  the  favor  of  a  new  hearing  granted,  except  by  special  con 
cession  of  the  Holy  Father  or  of  the  Sacred  Congregation. 
Here  we  observe  that  when  the  decision  is  simply  affirma 
tive  or  negative  a  new  \\e?*.v\v\g(beneficium  novae  audientiae]  be- 


286  On  the  Assistants  or  Ministers 

fore  the  same  Congregation  which  gave  the  decision  is 
granted,  as  a  matter  of  course,  upon  the  application  of  the 
losing  party,  made  within  ten  days  after  the  decision  was 
rendered.21''  3.  Non  expedire,  which  is  a  mild  way  of  refusing 
a  request.  4.  Lectum  or  relatnm  ;  that  is,  the  request  was 
read  in  the  meeting,  but  was  not  admitted.  5.  Reponatur ; 
that  is,  no  answer  is  given,  but  yet  the  papers  or  the  re 
quests  are  to  be  placed  in  the  archives  of  the  Sacred  Con 
gregation.  6.  In  decretis  or  in  decisis,  which  means  that  a 
previous  decision  rendered  in  a  case  by  the  Sacred  Congre 
gation,  against  which  a  new  hearing  or  reopening  of  the 
case  has  been  granted,  is  reaffirmed.  When,  in  the  new 
hearing,  the  Sacred  Congregation  reverses  its  first  decision, 
it  does  so  in  these  words:  recedendum  a  decisis,  etc.  7.  Some 
times  to  the  decision  are  added  the  words  ad  mentem, 
which  signify  that  the  Sacred  Congregation  modifies  the 
decision  in  accordance  with  the  principles  of  equity.  At 
times  this  mens  is  explained  with  the  decision  in  the  words 
mens  est,  etc.  At  other  times  the  mens  is  not  thus  explained 
and  published  by  the  Sacred  Congregation,  but  is  merely 
sent  to  the  ordinary  who  is  charged  with  carrying  out  the 
decision. 

III.  General  manner  in  which  the  Sacred  Congregations  dis 
pose  of  ecclesiastical  affairs. — Before  all  else,  it  should  be 
borne  in  mind  that  the  Sacred  Congregations  are  tribunals 
of  the  Holy  See  for  the  external  government  of  the  Church, 
and  consequently  only  for  matters  which  pertain  to  the  ex 
ternal  forum.  Hence  when  applications  are  made  to  them 
the  real  names  and  surnames  of  the  parties  are  always  to 
be  stated.  All  matters  which  belong  to  the  forum  internum 
should  be  brought  before  the  Sacred  Penitentiary  ;  here  the 
fictitious,  not  the  real,  names  of  the  parties  for  whom  some 
thing  is  asked  are  given. 

Next  we  must  distinguish  between  extrajudicial  or  non- 
contentious  i\\-\<\  judicial  or  contentious  affairs  With  regard 

*"  S.  C.  EK.  et   RR..   1835.  art.  14;  1834,  art.  13  ;   Bangen,  1.  c.,  p.175- 


of  the  Sovereign  Pontiff.  287 

to  extrajudicial  matters,  or  those  about  which  there  is  no 
contention  between  parties,  they  are  either  of  considerable 
importance  or  not.  The  less  important  non  -  contentious 
matters — v.g.,  indults  which  do  not  affect  the  rights  of  third 
parties — may  be  and  are  usually  expedited  by  the  cardinal 
prefect  and  secretary,  or  by  the  secretary  alone,  of  the 
respective  Congregation.  But  all  non-contentious  matters 
of  importance,  v.g.,  the  approval  of  the  rules  of  a  new  re 
ligious  community,  belong  to  the  full  Congregation,  and 
cannot,  therefore,  be  transacted  by  the  prefect  or  secretary. 

So  far  as  concerns  judicial  or  contentious  matters,  v.g., 
an  appeal  from  the  decision  of  a  bishop,  they  cannot  be  ter 
minated  by  the  cardinal  prefect  and  the  secretary,  but 
must  be  brought  before  the  full  Congregation,  and  adjudi 
cated  in  a  judicial  though  summary  manner,  in  a  plenary 
meeting  of  the  respective  Sacred  Congregation,  held  gen 
erally  once  every  month.  We  sa.\ ,  judicial  manner  ;  that  is, 
the  parties  agree  upon  the  dnbia  which  form  the  lit  is  contes- 
tatio  ;  present  their  arguments  in  writing,  etc. 

As  a  rule,  in  the  full  monthly  meetings  of  the  various 
Sacred  Congregations,  the  secretary  of  the  respective  Con 
gregation  reports  on  the  cases  or  matters  to  be  decided  ; 
that  is,  he  presents  to  the  assembled  cardinals  an  impartial 
summary  statement  of  each  case  (restr ictus  facti  et  juris], 
together  with  the  arguments  pro  and  contra  ;  reads  extracts 
from  the  documents  submitted  by  the  parties,  etc.  We  say, 
as  a  rule ;  for  in  some  of  the  Sacred  Congregations,  v.g.,  in 
that  of  bishops  and  regulars,  a  cardinal  is  always  ap 
pointed  in  contentious  non-criminal  causes,  ut  videat  et  refe- 
rat ;  that  is,  to  prepare  the  case  beforehand,  and  to  report 
on  it  in  the  full  monthly  meeting  of  the  Sacred  Congre 
gation,"3 

In  regard  to  applications  addressed  to  any  of  the  Congre 
gations,  the  rule  is  that  letters  should  not  be  sent  directly 
bv  mail,  but  must  be  presented  in  the  office  of  the  secretary 

*n  Bangen.  Rom.  Curia,  pp.   173,  igO  ;    Phillips.  K.  R..  vol.  v-i..  p.  573. 


288  On  the  Assistants  or  Ministers 

of  the  respective  Congregation  by  an  agent  (agens)  or  other 
person,  who  will  also  call  for  the  answer.  We  say,  the 
rule  is ;  because,  especially  at  present,  letters  may  be  and 
often  are  sent  to  and  answered  by  the  Sacred  Congre 
gations  directly  by  mail. 

ART.  III. 
Of  the  Roman  Tribunals. 

515.  By  Roman  tribunals  we  here  mean  certain  bureaus 
or  boards,  which  are  distinct  from  the  Sacred  Congrega 
tions  of  Cardinals,  and  through  which  the  Pope  transacts 
certain  affairs  of  the  Church.     These  departments  are  com 
posed  mainly  of  prelates  and  ecclesiastics  who  are  not  car 
dinals,  though,  as  a  rule,  they  are  presided  over  by  one  of 
the  cardinals,  as  their  chairman    or    president.     Since  the 
establishment   and    development  of   the  Sacred   Congrega 
tions  of  Cardinals  these  boards — or  at  least  some  of  them— 
have  gradually  lost  the  greater  part  of  the  power  they  for 
merly   possessed.     For  a  considerable  share  of  their  former 
authority   is  now  exercised   by  the  Sacred  Congregations, 
which  are  commissions  entirely  composed  of  Cardinals. 

516.  The    tribunals   of   the   Roman  Curia    are  of   three 
kinds:   i,  tribunals  or  courts  of  justice,  for  the  adjudication 
of   contentions   matters  (tribunalia  justitiae) ;    2,  tribunals   or 
departments  for  the  granting  of  favors  and  the  arranging  of 
non-contentious  affairs  (tribunalia  gratiae] ;    3,  tribunals  for 
the  expedition  of  Papal  letters  and   documents  (tribunalia 
exfeditionalia) . 

§i.  Roman   Tribunals  of  Justice. 

517.  Q.  Which    are   the  Roman  Pontifical   tribunals   of 
justice  ? 

A.  These:  I.  The  Roman  Rota  (Rota  Romano),  so  named 
because  its  twelve  judges  (auditores  rotae]  sit  in  a  circle  (rota) 
and  vote  by  rotation  (rotatio]  or  turns,  four  only  at  a  time.214 

914  Phillips,  K.  R..  vol.  vi.,  pp.  484,  495. 


of  the  Sovereign  Pontiff.  289 

Its  origin  dates  back  to  the  earliest  ages  of  the  Church. 
From  the  earliest  days,  Popes  referred  causes  brought 
before  them  to  referees  or  auditors  for  examination  and 
report.  These  auditors  gradually  formed  a  college  or  as 
sociation,  and  began  to  decide  cases  as  a  collective  judicial 
body,  called  the  Rota.  The  latter  existed  already  prior  to 
1326,  as  a  college  of  judges,  with  full  Papal  authority.2" 

Its  jurisdiction  as  regards  the  universal  Church  is  at 
present  greatly  restricted,  being  confined  to  those  matters 
which  are  specially  committed  to  it  by  the  Pope.316  This 
restriction  of  its  powers  is  due  mainly  to  the  establishment 
of  the  Sacred  Congregations,  which  now  decide  nearly  all 
those  contentious  matters  which  were  formerly  adjudicated 
by  the  Rota. 

518.  II.  The  Apostohc  Treasury  Department  (Rev.  Camera 
Apostolica),  which  might  be  compared  to  the  treasury  and 
interior  departments  of  the  United  States,  dates  back  to  the 
eleventh  century  (1044),  and  has  charge  of  the  Papal  finan 
ces,  and  exercises  contentious  jurisdiction  in  financial  mat 
ters.21'  Formerly  it  possessed  jurisdiction  even  in  criminal 
matters  ovef  the  entire  Church.  Its  jurisdiction  in  the  latter 
respect  has  now  passed  to  the  Sacred  Congregations.  The 
Camera  Apostolica  is  composed  (a)  of  a  cardinal,  as  its  head — 
who  is,  on  that  account,  called  Camerarius — Camerlengo  di 
Sunct a  Romana  Chiesa — or  chamberlain  and  treasurer  of  the 
Holy  See  ;  (b)  of  a  substitute,  or  assistant  treasurer  ;  (c)  of  an 
auditor  (Auditor  C.  Apostohcae] ;  (d]  of  a  number  of  prelates. 

The  powers  of  the  cardinal  chamberlain  do  not  expire 
with  the  death  of  the  Roman  Pontiff,  but,  on  the  contrary, 
become  very  extensive  during  the  vacancy  of  the  Holy  See. 
For  as  soon  as  the  Pope  dies,  he  at  once  takes  possession  of 

815  Bangen,  1.  c  ,  p.  297. 

*'*  Phillips,  Lehrb.,  p.  224  ;  Craiss.,  Man.,  n.  798. 

'•"1  Bangen,  1.  c.,  pp.  346.  347. 


2 go  On  the  Assistants  or  Ministers 

the  Papal  palace,  and  obtains  complete  charge  of  the  Papal 
household.  He  conducts  all  the  arrangements  for  the 
funeral  of  the  deceased  Pontiff.  Moreover,  he  has  full 
charge  of  the  conclave  for  the  election  of  the  new  Pope.218 
In  a  word,  during  the  vacancy  he  represents  the  Holy  See, 
and  together  with  three  other  cardinals,  namely,  the  oldest 
cardinal  bishop,  the  oldest  cardinal  priest,  and  the  oldest 
cardinal  deacon,  stands  at  the  head  of  the  government  of 
the  entire  Church.  When  he  appears  in  public,  he  is  accom 
panied  by  the  Papal  Swiss  Guards.219 

519.  III.  The Signatura  Papalis  Justitiae,  so  termed  because 
•of  the  Papal  signature  (signature?)  affixed  to  its  acts  or  deci- 
.sions,  elates  back  to  the  earliest  ages  of  the  Church.  Its 
referees  (Consiliarii,  referendarit]  are  mentioned  already  in 
590.  In  1484,  the  signature/,,  which  down  to  that  time  had 
decided  both  contentious  and  non-contentious  matters,  was 
divided  by  Pope  Innocent  VIII.  into  two  distinct  branches, 
one  for  contentious,  the  other  for  non-contentious,  affairs.220 
The  former  was  called  signatur a  Justitiae,  the  latter  signatura 
gratiae.  Formerly  the  signatura  justitiae  was  possessed,  by 
virtue  of  its  general  commission,  of  jurisdiction  in  all  matters 
which  were  of  a  contentious  character,  and  which  were 
brought  before  the  Holy  See  from  the  various  parts  of  the 
entire  Church.  But  at  present,  owing  to  the  establishment 
of  the  Sacred  Congregations  of  Cardinals,  which  exercise  full 
jurisdiction  in  contentious  matters,  the  signatura  justitiae  has 
almost  entirely  ceased  to  exercise  the  jurisdiction  formerly 
vested  in  it.  It  consists  of  a  cardinal,  as  prefect ;  of  thirty  or 
more  prelates,  as  referees,  of  whom,  however,  only  twelve 
have  a  vote,  and  are  therefore  called  praelati  votantes™ 

8)8 Clem.  XII.,  Const.  Ad  Perpetttam,  1732;  Bangen,  Rom.  Curia,  pp-349.  353- 

™  Phillips,  K.  R.,  vol.  v.,  p.  728;  vol.  vi.,  pp.  407,  416. 

250  Bangen,  1.  c.,  p.  374.  "'  Phillips,  Lehrb.,  p.  225. 


of  the  Sovereign  Pontiff.  291 


§  2.    Tribunals  of  Grace. 

520.  Q.    Which   are    the    Papal    tribunals   of    grace   or 
favors  ? 

A.  The  following:  I.  The  Datary  (Dataria],  which  is  so 
called  from  the  fact  that  Papal  concessions  or  favors — such 
as  appointments  to  parishes — were  carefully  dated,  and  the 
date  registered  by  an  official  of  the  Pontifical  court,  in  order 
to  prevent  litigation  among  the  parties.  Its  origin  dates  back 
to  the  thirteenth  century."'  It  is  the  organ  or  department 
through  which  the  Pope  grants  dispensations  from  public 
impediments  of  marriage,  and  therefore  pro  for o  externo,  and 
also  makes  appointments  to  parishes  reserved  to  the  Holy 
See,  or  grants  pensions,  etc.  A  cardinal  is  generally  at  the 
head  of  this  tribunal  ;  he  is  named  Pro-datamus,  because  the 
datary  is  not  properly  a  cardinal's  office.2"  He  has  under 
him  an  assistant  pro-datarius,  and  a  number  of  other  minor 
officials — such  as  secretaries,  copyists,  etc.  All  the  letters 
and  documents  containing  the  favors  accorded  by  the  da 
tary  are  made  out  and  expedited  either  by  the  apostolic 
chancery  or  through  the  office  of  the  secretary  of  apostolic 
briefs,  according  as  they  are  to  be  made  out  in  the  form  of 
a  bull  or  of  a  brief.  The  datary  does  not  itself  directly 
send  or  expedite  the  dispensations  or  favors  granted  by 
it.334 

521.  II.    The    Sacred  Penitentiary    (Sacra    Poenitenttaria\ 
which  dates  back  to  the  seventh  century,  is  the  organ  qr 
tribunal  which  grants,  in  the  name  of  the  Pope,  spiritual 
favors,  such  as  absolutions,  dispensations, — as  a  rule,  only 
.pro  foro   internal — and  also  directly  expedites   the  favors 
granted  by  it.     We  say  favors  ;  in  other  words,  this  tribunal 

^"2  Bangen,  1.  c.,  p.  398.  s<:!  Stremler,  Des  Peines  Eccl . ,  p.  620. 

*-'  Ib.,  p.  621.  *"  Baiigen,  1.  c.,  p.  419,  420. 


292 


On  the  Assistants  or  Ministers 


has  power  to  dispense  in  occult  irregularities  ;  to  render 
marriages  valid  which  are  invalid  because  of  an  occult  im 
pediment  ;  to  absolve  from  censures  reserved  to  the  Pope 
or  to  the  bishop,  etc.  We  say  also,  only  pro  foro  interno™ 
This  is  the  general  rule  ;  for  in  certain  cases,  specified  in 
law,  the  Sacred  Penitentiary  can  grant  favors  also  pro  foro 
externo.  Thus  it  can  grant  dispensations  from  impediments 
of  marriage  in  favor  of  poor  persons  who  cannot  pay  the 
fees  required  by  the  datary."7 

This  tribunal  is  presided  over  by  a  cardinal,  called 
Poenitentiarius  major,  who  has  extensive  Papal  powers,  and 
whose  jurisdiction  as  to  the  forum  internum  does  not  lapse 
with  the  death  of  the  Pope.""  He  is  assisted  by  a  theo 
logian,  a  canonist,  and  other  officials,  whose  duty  it  is  to 
receive,  examine,  etc.,  and  expedite  the  requests  addressed 
to  this  tribunal.  To  him  are  also  subject  the  poenitentiarii 
minores,  or  the  confessors  selected  from  the  various  relig 
ious  orders  to  hear  confessions  at  the  three  patriarchal 
churches  in  Rome,  namely,  St.  Peter's,  St.  John  Lateran, 
and  St.  Mary  Major.229 

Petitions  for  dispensations,  absolutions,  etc.,  pro  foro  in- 
terno,  should  be  addressed  to  this  tribunal.  Both  the  peni 
tent  and  the  confessor  may  apply  directly  and  by  mail  to 
the  major  penitentiary.  Letters  may  be  written  in  the 
vernacular.28" 

522.  III.  The  Signatura  Grattae—the  signature  for  favors 
—is  the  board  or  bureau  of  the  Pope  for  non-contentious 
matters,  that  is,  for  favors  and  privileges  other  than  those 
which  are  granted  by  him  through  the  datary  or  the 
Sacred  Penitentiary.  It  consists  of  a  board  of  auditors  or 
referees,  to  whom  formerly  petitions  for  favors  addressed 

126  Bened.  XIV.,  Const.  Pastor  Bonn*.  *"  Stremler,  1.  c.  ,  p.  616. 


Ib.,  p.  617. 


2;* 


*i>0  Craiss.,  Man.,  n.  795. 


of  the  Sovereign  Pontiff.  293 

to  the  Pope  were  referred  for  examination  and  report."1 
We  say  formerly  ;  for  at  present,  owing  to  the  fact  that  the 
various  sacred  commissions  of  cardinals  attend  to  nearly  all 
such  matters,  this  tribunal  has  lost  the  greater  part  ot  its 
former  powers. 


§  3.    Tribunals  of  the  Roman  Curia  for  the  Expedition  of  Papal 
Letters  or  Documents. 

523.  As  their  name  indicates,  these  bureaus  or  boards 
have  charge  mainly  of  the  official  epistolary  correspondence 
of  the  Roman  Pontiff  or  of  the  tribunals  through  which  the 
Pope  grants  favors  or  renders  decisions.  We  say  mainly ; 
for  besides  being,  so  to  say,  the  medium  of  communication, 
they  are  also  empowered  to  grant  certain  favors  and  render 
certain  decisions.  Hence  their  duties  are  not  restricted  to 
making  out  and  sending  letters  containing  favors  or  decis 
ions  given  by  other  Roman  tribunals,  v.g.,  by  the  datary,  the 
Rota,  or  by  the  Sacred  Congregations.  It  is  to  be  noted 
also  that  at  present  the  Sacred  Congregations  very  often 
communicate  their  decrees,  decisions,  and  answers  direct 
ly  to  the  parties,  and  not  through  any  of  the  expediting 
tribunals. 

Q.  Which  are  the  Roman  Pontifical  expediting  tribunals 
or  bureaus  ? 

A.  These:  I.  The  Apostolic  Chancery  (Cancellaria  Apostolica). 
— This  is  the  oldest  expediting  tribunal  of  the  Holy  See, 
some  authors  dating  its  origin  back  to  St.  Peter  himself.  It 
expedites  at  present  only  those  Pontifical  letters  which  are 
made  out  in  the  form  of  bulls.  The  following  are  the  chief 
affairs  expedited  in  the  form  of  bulls  :  (a)  All  matters  dis 
cussed  and  arranged  in  the  Papal  consistories,  of  which  the 
chancery  is,  so  to  say,  the  secretariate.  The  affairs  ar- 

*"  Eiangen,  1.  c.,  p    391  sq. 


^.y^.  On  the  Assistants  or  Ministers 

ranged  in  the  consistories  are  chiefly  the  appointments  of 
archbishops,  bishops,  abbots,  and  certain  other  dignitaries ; 
the  conferring  of  the  pallium  ;  the  erection,  union,  division, 
and  extinction  of  bishoprics.  (U)  All  Pontifical  constitutions, 
decrees,  laws,  and  other  acts  which  require  the  solemnities 
of  bulls,  (c)  Finally,  favors,  etc.,  granted  by  the  apostolic 
datary  when  they  require  the  form  of  bulls.233 

This  tribunal  is  always  presided  over  by  the  cardinal  of 
the  church  of  Saw  Lorenzo  in  Damaso,  which  is  enclosed  in 
the  palace  itself  of  the  chancery,  where  also  this  cardinal 
has  his  residence.  He  is  assisted  by  a  director  of  chancery 
(regens  cancellariae],  by  secretaries  or  copyists,  etc.,  and  by  a 
board  of  prelates,  which  is  called  Collegia  de  Prelatt 'A  bbrevi- 
atori  deV  Parco  Maggiore,  and  which  constitutes,  a  sort  of 
tribunal  where  doubts  and  difficulties  that  may  arise  rel 
ative  to  the  formulas  and  clauses  of  decrees  and  bulls  are 
discussed  and  decided.233 

The  cardinal-chancellor  is  called  vice-chancellor,  proba 
bly  because  the  chancellorship  was  not  formerly  a  cardinal's 
office.  His  jurisdiction  lapses  with  the  death  of  the  Popev 
when  also  the  seal  of  the  apostolic  chancery  is  broken  in 
the  presence  of  the  cardinals.234  The  tribunal  proceeds 
strictly  in  accordance  with  the  seventy  Regulae  Cancel- 
lariae""  Bulls  are  generally  signed  by  the  cardinal  vice- 
chancellor  and  by  the  chancery  regent.  Only  consistorial 
bulls  of  great  importance  are  signed  by  the  Pope  himself. 

II.  The  Secretariate  of  Brief s  {Secret aria  Breviuiri]  is  the 
bureau  or  department  through  which  the  Holy  Father  de 
spatches  Papal  letters  or  documents  which  are  made  out  in 
the  form  of  briefs.  This  tribunal  dates  back  to  the  middle 
ages.  Briefs,  which  we  have  already  described  (supra,  n.  47, 
48),  are  so  named  in  contradistinction  to  bulls.  The  latter 

832  Stremler,  1.  c.,  p.  623.  83'  Ib.,  p.  622. 

834  Craiss.,  Man.,  n.  789.  336  Phillips,  Lehrb.,  p.  227. 


of  the  Sovereign  Pontiff.  295 

are  Papal  letters  drawn  up  with  great  length  and  with  many 
formalities  and  technical  clauses.  Briefs,  on  the  contrary, 
contain  in  an  abbreviated  form  (in  brc-ci  forma],  and  without, 
many  technical  phrases,  what  bulls  state  at  greater  length 
and  with  more  formality.536  Briefs  are  signed,  not  by  the 
Pope,  but  by  the  cardinal  secretary  of  briefs  and  by  his 
assistant  secretary.  They  are  stamped  with  the  red  seal  of 
the  Fisherman's  ring.  This  ring,  or  rather  its  seal,  repre 
sents  St.  Peter  sitting  in  a  bark  and  holding  in  his  hand  a 
fishing  rod  or  net.237  They  are  dated  thus:  "Given  at 
Rome,  in  St.  Peter's,  under  the  Fisherman's  ring,"  etc. 

The  secretariate  of  briefs  expedites  by  Papal  briefs  per 
mission  to  alienate  ecclesiastical  property,  dispensations 
from  want  of  age  when  there  is  question  of  promotion  to 
sacred  orders,  indults  to  have  a  private  oratory  with  the 
Blessed  Sacrament,  etc.  Through  this  office  are  also  de 
spatched  the  greater  number  of  favors,  etc.,  accorded  by  the 
apostolic  datary.  For,  as  we  have  seen,  the  datary  merely 
receives,  examines,  and  grants  the  requests  of  parties,  and 
then  remits  the  matter,  for  the  issuing  of  the  rescript  to  the 
parties,  to  the  apostolic  chancery  or  to  the  secretariate  of 
apostolic  briefs.  The  more  important  papers  are  issued 
from  the  chancery  in  the  form  of  bulls ;  the  less  important 
ones,  from  the  secretariate  of  briefs  in  the  form  of  briefs."" 

This  secretariate  sometimes  also  issues  in  the  form  of 
briefs  letters  containing  favors,  decisions,  decrees,  etc., 
which  emanate  from  the  Sacred  Congregations.  We  say 
sometimes;  for,  in  most  cases,  the  Sacred  Congregations 
now  themselves  expedite  directly  their  resolutions,  decrees, 
indults. 

This  secretariate  is  presided  over  by  a  cardinal  who  is 
termed  Pontifical  Secretary  of  Briefs  (Secrctarius  Breviuui). 

MS  Bangen,  1.  c.,  p.  427.  *31  Stremler,  1.  c.,  p.  624. 

838  Ib.,  p.  624. 


296  On  the  Assistants  or  Ministers 

He  is  assisted  by  a  prelate,  who  is  assistant  secretary  ;  by  an 
assessor,  by  several  subsecretaries,  and  by  a  bookkeeper. 
The  rule  is  that  the  cardinal  secretary  of  briefs  cannot 
grant  favors,  but  merely  expedites  those  granted  by  the 
Sacred  Congregations,  etc.  We  say,  the  rule  is ;  for  he  has 
power  to  accord  certain  favors  even  without  asking  the 
Pope/39 

III.  The  Secretariate  of  State  (Segreteria  di  Stalo),  which  is 
located  in  the  Vatican  palace  itself,  is  the  ministry  of  exte 
rior  of  the  states  of  the  Church.     It  is  also  the  tribunal  or 
department  through  which  the  Pope  treats  of  ecclesiastical 
affairs  with  the  civil  powers.210     At  its  head  stands  a  cardinal, 
who  is  called  secretary  of  state.     Under  him  are  a  prelate, 
as  assistant  secretary  ;  several  subsecretaries,  called  minu- 
tanti ;  and  other  officials. 

IV.  The    Secretariate   of  Memorials  (Secretaria  Memoria- 
lium],  which  has  its  offices  in  the  palace  of  the  apostolic 
chancery,  is  the  bureau  of  the  Pope  which  receives,  exam 
ines,  and  answers  all  requests  for  favors,  etc.,  addressed  to 
the  Pope  more  directly  as  a  temporal  sovereign.     It  is  pre 
sided  over  by  a  cardinal  as  secretary.     He  is  assisted  by  a. 
prelate,  as  assistant  secretary  ;  by  several  minutanti,  etc. 

SECTION   II. 
Ministers  of  the  Sovereign  Pontiff  "  Extra  Curiam" 

Legates,  nuncios,  delegates,  vicars,  and  prefects  apostolic 
are,  as  we  have  seen,341  pontifical  ministers  or  assistants  extra 
curiam  Romanam,  or  outside  of  the  Papal  court. 

™  Stremler,  1.  c.,  p.  625.  24°  Phillips,  Lehrb.,  p.  228. 

341  Supra,  n.  486. 


oj  the  Sovereign  Pontiff.  297 

ART.  I. 

Apostolic  Legates,  Nuncios,  and  Delegates. 

Apostolic  legates,  nuncios,  and  delegates  (legati,  nuntii, 
delegati  apostolici],  speaking  in  general,  are  persons  appointed 
or  sent  by  the  Holy  See  to  the  different  countries  or  parts 
of  Christendom  for  the  purpose  of  representing  and  acting 
for  the  Supreme  Pontiff  either  in  the  exercise  of  Papal  juris 
diction  or  in  a  non-jurisdictional  capacity."' 

We  say,  either  in  the  exercise,  etc.  For  there  are,  also  at 
the  present  day,  two  kinds  of  apostolic  envoys:  i.  Those 
who  have  no  real  ecclesiastical  jurisdiction  in  the  country 
to  which  they  are  sent.  Such  are,  for  instance,  those  who 
are  sent  by  the  Pope  to  represent  him,  at  the  courts  of 
princes,  in  a  purely  diplomatic  capacity,  or  to  present  the 
Pontiff's  congratulations  to  rulers,  or  to  represent  him  at 
some  great  state  or  church  ceremony,  or  to  bring  the  car- 
dinalitial  beretta  to  a  new  cardinal  living  outside  of  Rome. 
These  are  called  delegati  legati  non  judices  or  ablegati. 

2.  Those  who  are  clothed  with  Papal  power  or  jurisdic 
tion,  more  or  less  extended,  to  be  exercised  by  them  in  the 
country  or  district,  called  their  province,  to  which  they  are 
sent.  These  ambassadors,  therefore,  are  the  representatives 
of  the  Roman  Pontiff  in  the  exercise  of  the  supreme,  ordi 
nary,  and  immediate  jurisdiction  vested  in  him  over  the 
whole  Christian  world.  Of  these  only  shall  we  speak  in  the 
present  article.  For  it  is  evidently  unnecessary  to  dwell 
further  on  Papal  envoys  who  are  sent  without  any  juris 
diction. 

We  shall  therefore  inquire  with  regard  to  Papal  envoys 
who  are  vested  with  Pontifical  jurisdiction  :  (a)  what  right 

544  Schmalzg  ,  1.  i.,  t    30,  n.  r. 


298  On  the  Assistants  or  Ministers 

the  Pope  has  to  send  them  to  different  countries ;  (b)  what 
has  been  the  practice  of  the  Holy  See,  at  various  times,  in 
regard  to  sending  them;  (c)  how  many  kinds  there  are; 
(d]  what  are  their  functions  and  powers. 

§  i .  Right  of  the  Holy  See  to  Send  Envoys. 

The  Vatican  Council  has  dogmatically  defined  that  the 
Roman  Pontiff  possesses  supreme  jurisdiction  over  the  entire 
Church,  that  is,  over  the  laity,  clergy,  and  episcopate  all 
over  the  world  ;  that  this  power  is  truly  episcopal,  ordi 
nary,  and  direct  or  immediate ;  that  consequently  the  Pope 
can  at  all  times  and  on  all  occasions  intervene,  with  his 
authority,  in  all  the  ecclesiastical  affairs  of  each  particular 
diocese  of  the  whole  world,  and  that  in  the  event  Of  such 
intervention  the  laity,  clergy,  and  episcopate  are  bound  to 
obey  the  Pontiff.243 

As  a  consequence  of  this  teaching  the  Vatican  Council 
declares  that  the  Roman  Pontiff  can  communicate  directly 
and  immediately  with  all  the  faithful  and  clergy  of  each  and 
every  diocese  and  part  of  Christendom,  and  that  it  is  unlaw 
ful  for  any  one  to  hinder  this  free,  direct,  and  immediate 
communication.  It  follows,  moreover,  from  this  supreme 
jurisdiction,  that  in  the  government  of  their  dioceses  bishops 
are  at  all  times  bound  to  conform  fully  and  strictly  to  the 
rules  and  prescriptions  of  the  Sovereign  Pontiff,  and  that 
they  cannot  act  contrary  to  them.244 

If,  therefore,  the  Pontiff  has  full  and  supreme  power  over 
the  entire  Church,  and  if  he  can  exercise  this  power  in  a 
direct  and  immediate  manner  and  not  merely  upon  appeal  to 
him  or  in  extraordinary  cases,  it  is  also  plain  that  he  has 
the  right  to  send  his  envoys  and  representatives  wherever 

743  Cone.  Vat.,  sess.  iv.,  cap.  iii. 

244  Letter  of  Card.  Jacobin!,  Pontifical  Secretary  of  State,  to  the  nuncio  at 
Madrid,  Apr.  15,  1885,  in  the  Moniteur  de  Rome,  May  3,  1885. 


of  the  Sovereign  Pontiff.  299 

he  pieases,  and  to  confide  to  them  the  exercise  of  his  own 
poiver  in  the  measure  which  seems  to  him  proper.246  Hence 
to  deny  the  right  of  the  Pontiff  to  send  legates,  delegates, 
or  nuncios  to  any  part  of  the  world,  with  power  to  act  in  his 
own  name  and  to  exercise  his  own  supreme,  ordinary,  and 
immediate  jurisdiction  over  laics,  priests,  and  bishops,  would 
be  the  same  as  to  deny  the  primacy  of  the  Pontiff  himself, 
and  would  therefore  be  heresy.  The  utility  of  sending  such 
ambassadors  will  appear  further  on. 


§  2.  Practice  of  the  Holy  See  witJi  Regard  to  Sending  Envoys. 

The  Roman  Pontiffs  have  from  the  earliest  ages  of  the 
Church  down  to  the  present  day  exercised  the  right  of 
sending  deputies  or  envoys  to  different  parts  of  Christendom 
whenever  they  deemed  it  opportune.  Sometimes  they  sent 
them  without  any  jurisdiction  and  merely  to  arrange  some 
diplomatic  affair,  or  to  defend  the  rights  of  the  Holy  See  at 
the  courts  of  rulers.  At  other  times  the}'  sent  them  with 
full  power  to  decide  causes,  etc.,  and  that  either  temporarily 
and  for  a  short  time,  or  permanently  and  for  an  indefinite 
period. 

Examples  of  permanently  established  apostolic  delega 
tions  or  nunciatures  with  Papal  jurisdiction  occur  already 
in  the  early  ages  ot  the  Church.  Thus  Leo  the  Great  (440- 
461)  sent  the  Bishop  Julian  to  Constantinople  to  reside  as 
his  permanent  envoy  there,  and  confided  to  him  his  own 
Pontifical  authority  to  be  exercised  in  the  East.246  Likewise 
Pope  Gregory  the  Great  (590-604),  following  the  example 
of  his  predecessors,  sent  permanent  legates  to  Sicily,  and 
conferred  upon  them  ample  jurisdiction  over  the  faithful, 
clergy,  and  episcopate,  in  order,  as  he  says,  that  where  he 

*4S  Letter  of  Card.  Jacobim  cited  above. 

446  Leo  M.,  ep.  in;   Phillips,  K.  R.,  vol.  vi.,  p.  961. 


300  On  the  Assistants  or  Ministers  ' 

could  not  be  personally  present  his  antJwrity  might  be  repre 
sented  and  exercised  by  his  envoys™  The  ambassadors  of  the 
Pope  whose  legateship  was  permanent  had  full  authority  to 
watch  over  the  diocesan  administration  of  bishops,  to  see 
that  the  disciplinary  laws  of  the  Church  were  carried  out, 
etc."3  The  permanent  envoys,  besides  being  clothed  with 
Papal  jurisdiction,  acted  also  in  a  diplomatic  capacity  for 
the  Holy  See. 

Thus  we  see  that  already  in  the  fourth  and  fifth  and  sixth 
centuries  of  the  Church  there  were  three  kinds  of  apostolic 
ambassadors  :  (a)  Those  who  were  sent  for  some  particular 
and  temporary  affair,  with  or  without  jurisdiction.  Their 
legateship  was  transient,  (b)  Those  whose  legateship  was 
permanent,  and  who  acted  in  both  a  jurisdictional  and  a  dip 
lomatic  capacity.  They  were  called  apocrisiarii  or  responsales. 
(c)  Vicars  apostolic,  that  is,  bishops  of  countries  selected  by 
the  Pope  to  act  as  his  legates  in  their  respective  districts."49 

It  is  well  known  that  later  on  the  Roman  Pontiffs  con 
tinued  to  appoint  and  send  their  envoys  to  various  parts  of 
Christendom.  Pope  Innocent  III.  (i  198-1216),  in  sending  his 
legate,  wrote  thus  to  the  Greek  emperor : a&0  "  Our  Lord  has 
appointed  the  Holy  See  to  be  the  head  and  teacher  of  all 
Christendom.  As  the  Roman  Pontiff,  being  overwhelmed 
with  innumerable  cares,  cannot  personally  attend  to  every 
thing,  he  is  naturally  obliged  to  appoint  assistants  and  repre 
sentatives,  and  to  perform  throtigh  them  what  he  cannot  do  in 
person.  For  that  purpose  he  confides  his  poivers  to  others,  so 
that  what  is  done  by  them  is  to  be  regarded  as  done  by  him 
self.  As  the  condition  of  the  Church  at  Constantinople  re 
quires  the  sending  of  a  legate  a  latcre,  we  have  determined 
to  send  Pelagius,  bishop  of  Albano,  and  have  appointed  him 

947  Greg.  M.,  1.  i.,  ep.  i;  Phillips,  1.  c.,  pp.  693,  699. 

848  Phillips,  1.  c.,  p.  693. 

*49   Phillips,  K.  R.,  vol.  vi.,  p.  901.  SM)   Ep.    104.     - 


of  the  Sovereign  Pontiff.  301 

in  our  stead,  to  eradicate  and  destroy,  to  build  up  and  to 
plant,  what  he  deems  proper,  in  the  Lord."  As  will  be 
seen  in  this  celebrated  letter,  Pope  Innocent  111.  points  out 
the  Pontiff's  right  to  send  envoys  with  the  power  of  the 
Pope  himself ;  that  is,  in  such  a  manner  that  they  take  the 
place  of  the  Pope  and  act  in  his  stead. 

The  present  practice  of  the  Holy  See  is  too  well  known 
to  need  explanation.  The  Holy  See  has,  at  present,  its  nun 
cios  at  Paris,  Vienna,  Madrid,  Lisbon,  Munich,  etc.  There 
are  also  in  a  number  of  missionary  countries,  v.g.t  at  Con 
stantinople,  in  Egypt,  in  Greece,  etc.,  apostolic  delegations  or 
legateships  permanently  established,  and  depending  upon 
the  Sacred  Congregation  of  Propaganda."2  Recently,  by  a 
Brief  of  Pope  Leo  XIII.  issued  on  the  24th  of  January,  1893, 
a  permanent  apostolic  delegation  has  been  established  in 
the  United  States,  with  the  learned  and  able  Archbishop 
Satolli  as  its  first  incumbent. 

Apostolic  delegations,  or  nunciatures,  are  composed,  as  a 
rule,  each,  of  the  nuncio  or  delegate,  of  an  auditor,  and  of  a 
secretary,  all  appointed  either  by  the  Pope  himself,  through 
his  cardinal  secretary  of  state,  or  by  the  Sacred  Congrega 
tion,  upon  which  they  depend.  Hence  the  auditor  and  the 
secretary  are  not  appointed  or  removed  by  the  nuncio  or 
delegate,  but.  by  the  Pope,  or  by  the  Sacred  Congregation. 
The  nomination  of  these  officials  is  to  the  apostolic  delega 
tion,  not  to  the  person  of  the  apostolic  delegate.  Their 
tenure  of  office  does  not  depend  on  a  change  of  the  incum 
bent  of  the  delegation  or  nunciature,  but  continues  till  re 
voked  by  the  Holy  See.  The  auditor  prepares  all  the  cases- 
and  matters  brought  before  the  delegate,  and  is  his  adviser 
on  all  points  connected  with  the  delegation.  The  secretary 
has  charge  of  the  delegate's  correspondence."6 

SS1    Phillips,   1.  c.,  vol.  vi.,  p.  686. 

"»  Gerarchia  Cath.  di    Roma,  anno  1892,  p.  365. 

863  Cf.  Phillips,  K.  R.,  vol.  vi.,  p.  74°. 


302  On  the  Assistants  or  Ministers 


§  3.    Various  Kinds  of  Apostolic  Envoys. 

We  observe  here  again  that  we  speak,  in  the  present 
treatise,  only  of  those  apostolic  delegates  or  envoys  who 
are  vested  with  ecclesiastical  jurisdiction  to  be  exercised  in 
the  name  and  stead  of  the  Pope  himself.  Popes,  as  we  have 
seen,  were  wont,  in  former  times,  to  send  their  envoys  or 
representatives  sometimes  on  temporary  and  transient  mis 
sions,  sometimes  on  permanent  delegations.  In  the  latter 
case,  when  one  delegate  or  envoy  was  recalled,  resigned,  or 
died,  another  was  sent  by  the  Pontiff  to  succeed  him.  It  is 
still  the  custom  of  the  Holy  See  to  send  temporary  and  per 
manent  delegates  or  ambassadors.  Hence  apostolic  legate- 
ships  or  delegations  are,  at  present,  either  temporary  or 
permanent. 

Again,  in  former  times  the  Pontiffs  selected  as  their 
envoys  sometimes  subdeacons  and  deacons,  oftener  bishops, 
and  in  matters  of  great  importance  even  cardinals.  Pope 
Gregory  VII.  usually  selected  cardinals  to  act  as  his  envovs 
in  his  great  work  of  reforming  the  laity,  clergy,  and  episco 
pate  of  his  times.  At  the  present  day  the  Pontiffs  gener 
ally  appoint  titular  archbishops,  and  sometimes,  though 
rarely,  and  only  for  exceptionally  grave  matters,  cardinals 
to  act  as  their  ambassadors. 

When  cardinals  are  chosen  to  act  as  Pontifical  envoys, 
they  are,  owing  to  their  exalted  dignity,  vested  with  the 
fullest  powers  to  act  in  the  stead  and  name  of  the  Holy  See. 
When  titular  bishops  or  archbishops  are  sent,  they  are 
clothed  with  ample  powers  indeed,  but  yet  not  with  those 
full  powers  which  are  confided  to  cardinals  who  are 
legates. 

From  what  has  been  said,  it  will  be  seen  that  there  are, 
at  present,  three  kinds  of  apostolic  envoys  or  ambassadors: 


of  the  Sovereign  Pontiff.  303 

1.  Legati  a   lature,  that    is,    envoys    who    are    cardinals. 
They  are  legates  of  the  first  rank,  and  are  called  legates  a 
latere  because,  owing  to  their  close  relations  with  the  Sover 
eign  Pontiff,  they  are  said  to  be  sent  from   his  side  (a  latere). 

2.  Legati  missi,  or  Papal  envoys  who  are  titular  bishops 
or    archbishops.     They  are    legates    of    the    second    rank. 
Thev   are    called    nuncios   (nuntii  apostolici)   when  they  are 
sent  to  reside  permanently  at  the  courts  of  sovereign  rulers; 
internuncios   (internuntii)   if   they   reside    elsewhere   or  act 
only  provisionally.     A   nuncio,  acting   as    such,  even   after 
being  elevated  to  the  cardinalate,  is  named  pronuncio  (pro- 
nuntius).     Nuncios,  according  to  the  present  discipline,  rep 
resent  the   Holy  See  in  a  diplomatic  capacity,  and  are  also 
clothed    with   ample   Pontifical  jurisdiction  over  the  laity, 
clergy,  and    episcopate    of  the  countries    where    they    re 
side.      When  the  Icgati  missi   of    which   we    speak    in    the 
present  paragraph  are  sent  either  to  the  courts  of  temporal 
rulers  outside  of  Europe  or  to  missionary  countries,  they 
are  termed  Apostolic  Delegates  (Delegati  Apostolici). 

3.  Legati  nati  (legates  born),  called  thus  in  contradistinc 
tion  to  the  legati  missi  (legates  sent),  are  those  to  whose  see 
or   ecclesiastical    dignity  the   office   of   Papal   legate  is  at 
tached.     The  Archbishops  of  Canterbury  and  York  in  Eng 
land,  the  Archbishop  of  Rheims  in  France,  etc.,  were  legati 
nati.     Since  the  fifteenth   century,  however,  the  powers  of 
the  legati  nati  have  become  entirely  extinct."4     At  present 
they  retain  but  the  name  or  title  ;  the  office  itself  no  longer 
exists. a>5     Consequently  it   is    unnecessary   to    dwell    upon 
them  further  in  this  work.     In  Sicily  the  king  himself  was 
legatus  natus  of   the    Holy  See   and  exercised   his  legatine 
rights  through  a  special  tribunal."'     This  tribunal,  named 
Monarchia  Sicula,  was  abolished  by  Pope  Pius  IX.  in  1867."' 

9MSanti,  1.  i.,  t.  30,  n.  5.  J56  Phillips,  Lchrb.,  p.  235. 

S66Salzano,  1.  ii.,  pp.  no,  in  ;  1.  i.,  p.  no.  ™  Walter,  p.  270. 


304  Oil  Ike  Assistants  or  Ministers 


|  4.  Powers  of  Apostolic  Envoys. 

The  legati  nati  are  extinct  at  the  present  day,  except  as 
to  their  name.  Hence  there  are  now  only  two  classes  of 
apostolic  envoys  or  representatives :  (a)  legates  a  latere  ; 
(ft)  apostolic  delegates  and  nuncios.  We  shall  therefore 
speak  first  of  the  powers  of  legates  a  latere  ;  next  of  those  of 
apostolic  delegates  and  nuncios. 


I. 

Powers  of  Legates  "  a  latere." 

Legates  a  latere,  or  those  apostolic  envoys  who  are  car 
dinals,  are,  owing  to  their  cardinalitial  dignity,  the  rep 
resentatives  of  the  Holy  See  in  the  highest  and  fullest 
sense  of  the  term,  and  are  therefore,  by  their  very  appoint 
ment  as  apostolic  envoys,  vested  with  the  most  extensive 
Papal  jurisdiction  over  the  country  to  which  they  are  sent. 
Their  powers  are  consequently  more  ample  than  those  of 
apostolic  nuncios  and  delegates.  They  enjoy  certain  pre 
rogatives  of  honor.  When  they  are  present,  archbishops 
and  bishops  should  not  perform  certain  ecclesiastical  func 
tions,  such  as  blessing  the  people,  .which  it  would  be  unbe 
coming  for  them  to  perform  if  the  Pope  himself  were 
present.  Nay,  even  other  apostolic  envoys  should  not,  in 
their  presence,  make  use  of  their  insignia.  Any  dishonor 
or  disrespect  exhibited  to  them  is  regarded  as  shown  to 
the  Holy  Father  himself."8 

Q.  What  are  the  peculiar  powers  of  legates  a  latere  ? 

A.  I.  These  legates  have,  by  virtue  of  their  appointment 

»**  Phillips,  K.  R.,  tbl.  vi.,  pp.  726,  727. 


of  the  Sovereign  Pontiff.  305 

as  apostolic  envoys,  full  and  ample  power  to  exercise,  in  the 
name  and  in  the  stead  of  the  Pope  himself,  ordinary  ecclesi 
astical  jurisdiction  over  the  laity,  clergy,  and  episcopate  of 
the  country  to  which  they  are  sent.  We  say,  in  the  name  of 
the  Pope  himself.  For,  as  we  have  seen,  Papal  envoys  act 
for  the  Pontiff  himself — take  his  place  and  represent  his 
person  and  powers — and  have  therefore,  in  principle,  the 
same  jurisdiction  as  the  Pope  himself.  Consequently  their 
jurisdiction  is,  like  that  of  the  Pope  himself,  immediate,  not 
merely  appellate,  except  in  the  causes  specified  by  the 
Council  of  Trent."8 

II.  In  consequence  of  their  supreme,  ordinary,  and  im 
mediate  Papal  jurisdiction,  legates  a  latere,  besides  being 
vested  with  the  powers  which  are  conferred  upon  apostolic 
nuncios  and  delegates,  as  we  shall  see  below,  possess  the 
following  exclusive  rights,  which  are  not,  as  a  rule,  con 
fided  to  apostolic  nuncios  and  delegates  : 

1.  Wherever  a  legate  a  latere  is  present  the  jurisdiction 
of  all  other  apostolic  legates  or  envoys  is  suspended  for  the 
time  being.260 

2.  He  has  ordinary  jurisdiction  over  regulars  who  are 
exempted  from  the  authority  of  bishops.     Consequently  he 
can  hear  and  adjudicate  all  causes  of  exempted  regulars — 
correct  and  punish  them,  if  need  be.261 

3.  He  can  confirm  the  election  of  archbishops,  bishops, 
and  of  exempted  prelates  of  regulars,268  save  where  this  has 
been  specially  reserved  to  the  Pontiff  himself.     But  he  can 
not,  except  by  a  special   Papal   mandate,  unite  or  divide 


K*  Sess.  24,  cap.  20,  de  Ref. 

560  Gregor.  IX..  cap.  9,  de  off.  leg.  (i.,  30);  Glossa,  ib.,  v.  de  latere  nostro. 

*61  Glossa  in  cap.  i,  de  off.  leg.,  v.  universas;  Schmalzg.,  1.  i.,  t.  30,  n.  4. 

*M  Cap.  Si  Abbatem  36,  de  elect,  in  6°  (i.  6).  Legates  other  than  those  a 
latere  cannot  do  this  except  when  they  receive  a  special  mandate  from  the  Holy 
See  to  that  effect  (cap.  36  cit.). 


306  On  the  Assistants  or  Ministers 

bishoprics,  nor  transfer  bishops   from  one   see   to  another, 
nor  depose  bishops."65 

4.  With  regard  to  (a)  granting  dispensations,  v.g.,  from 
the  impediments  of  marriage  ;    (b)  giving  absolutions,  v.g., 
from  censures  and  irregularities  ;  (c)  solemnizing  or  assist 
ing  at  marriages  in  the  place  of  parish  priests,284  the  legate 
a  latcre  has  concurrent  jurisdiction  with  every  bishop  of  his 
district  or  province.2" 

5.  He  has  ordinary  and   concurrent  power  with  every 
bishop  of  his  province  to  appoint  to  any  and  all  parishes, 
benefices,  or  ecclesiastical  offices  situate  in  the  country  to. 
which  he  is  sent.36" 

6.  Both  in  matters  relating  to  parishes  and  other  eccle 
siastical   offices,  and    in   all   other  matters    whatsoever,  he 
can  do  in    every    diocese   of    his    province    whatever   each 
bishop  can  do  in  his  own  diocese,  nay,  more  than  the  bishop 
can  do,  excepting  only  those  things  which  are  expressly  and 
specially  withheld  from  him  by  the  Pope  or  forbidden  by 
the  law  of  the  Church,  v.g.,  in  the  Council  of  Trent,  sess.  24, 
cap.  20,  de  Ref.267 

7.  Finally,  he  has,  of  course,  also  all  the  powers  of  other 
Papal  envoys  who  are  not  cardinals.     The  latters'  powers 
will  now  be  explained. 

II. 

Powers  of  Apostolic  Nuncios  and  Delegates. 

Cardinals  are  at  present  sent  very  rarely  as  Papal  en 
voys.  As  a  rule,  titular  archbishops  or  bishops  are  now 
selected  and  sent  from  Rome  to  act  as  envoys  of  the  Holy 

263  Cap.  3,  4,  de  off.  leg.  M4  Schmalzg.,  1.  i.,  t.  30,  n.  4. 

265  Phillips,  K.  R.,  vol.  vi.,  p.  734. 

216  Innoc.  IV.,  cap.  i,  de  off.  leg.  in  6';  cap.  31,  de  praeb.  in  6°. 
267  Schmalzg.,  1.  c. 


of  the  Sovereign  Pontiff.  307 

See.  Thus  our  Delegate  Apostolic  is  a  titular  archbishop. 
It  is  therefore  very  important  to  explain  the  powers  of 
these  envoys,  who  are  called  apostolic  nuncios  and  dele 
gates.  They  are,  as  we  have  seen,  apostolic  envoys  or  rep 
resentatives  of  the  second  rank,  and  as  a  rule  possess,  even 
when  appointed  cum  potestate  legati  a  latere,  Papal  jurisdic 
tion  in  a  manner  less  extended  than  is  vested  in  cardinal 
legates.  Hence,  unless  they  are  expressly  and  specially 
commissioned  to  that  effect,  they  do  not  possess  the  powers 
enumerated  above  as  belonging  to  legates  a  latere. 

Yet  apostolic  nuncios  and  delegates  are  true  represen 
tatives  of  the  Holy  See.  They  act  in  the  name  of  the  Pope,, 
and  have  in  principle,  like  legates  a  latere,  the  same  power 
as  the  Pope  himself. 

Q.  What,  then,  are  the  powers  of  Papal  nuncios  and 
delegates  ? 

A.  I.  According  to  the  law  and  discipline  of  the  Church 
as  now  in  force,  these  apostolic  envoys  have,  by  virtue  of 
their  appointment  as  apostolic  nuncios  or  delegates,  the 
right  to  exercise,  in  the  name  and  in  the  stead  of  the  Pope 
himself,  ordinary  ecclesiastical  jurisdiction  over  the  laity, 
clergy,  and  episcopate  of  the  country  to  which  they  are 
sent.26"  The  country  to  which  they  are  sent  is  called  their 
province,  because  they  resemble  the  old  Roman  governors 
and  proconsuls.  For  as  the  latter  were  sent  by  the  Roman 
emperor  to  govern  the  various  provinces  of  the  empire  in 
his  name  and  with  his  authority,  so  apostolic  delegates 
and  nuncios  are  sent  by  the  Pope  to  govern  in  his  name, 
spiritually  and  ecclesiastically,  certain  countries  of  Christen 
dom."' 

We  say,  in  the  name  of  the  Pope  himself.  For  these 
apostolic  envoys  take  the  place  of  the  Roman  Pontiff  himself, 
represent  his  powers  and  his  person,  and  have  therefore  in 

""Clemens  IV..  cap.  2,  de  off.  leg.  in  6°  (i.  15);  Schmalzg,  I.  i.(  t.  30,  n.  2. 
-69  Clemens  IV.,  cap.  2  cit. 


308  On  the  Assistants  or  Ministers 

principle  the  same  jurisdiction  as  the  Pope  himself.  They 
are  sent  by  the  Roman  Pontiff,  with  his  own  power,  in 
order  to  act  in  his  stead  and  in  his  name,  in  all  matters 
falling  under  his  jurisdiction  as  the  head  of  the  Church. 
Consequently  their  jurisdiction  is,  like  that  of  the  Pope 
himself,  immediate,  not  merely  appellate,  save  with  regard 
to  the  causes  specified  by  the  Council  of  Trent.270 

We  say  also,  over  the  laity,  clergy,  and  episcopate,  etc. ;  for 
as  the  Pope  possesses  supreme  and  immediate  ordinary  juris 
diction,  not  only  over  the  laity  and  clergy,  but  also  over 
bishops  and  archbishops,  so  apostolic  nuncios  and  delegates, 
representing  him  as  they  do,  have  supreme  papal  jurisdic 
tion,  not  only  over  the  laics,  but  also  over  the  priests  and 
bishops  of  their  district  or  province.171 

II.  In  virtue  of  their  supreme,  ordinary,  and  immediate 
Papal  jurisdiction,  apostolic  delegates  and  nuncios  possess 
the  following  powers: 

i.  They  have  the  power  of  supreme  inspection  and  direc 
tion  in  regard  to  the  ecclesiastical  affairs  of  their  province.'7* 
For  it  is  their  duty  to  eradicate  and  punish  crimes,  and  to 
plant  and  build  up  virtues.51'  Consequently,  as  Cardinal 
Jacobini,  Papal  secretary  of  state,  writes,  in  the  letter  al 
ready  quoted,  if  the  authority  of  bishops  should  always  and 
in  all  matters  be  subject  to  that  of  the  Pope,  and  if  they 
cannot  exercise  their  power  against  his  will  and  against  the 
rules  laid  down  by  him,  so  likewise  should  the  jurisdiction 
ot  bishops  never  be  exercised  against  the  prescriptions  of 
the  apostolic  nuncio  or  delegate.  Hence  the  actions  of 
bishops,  taken  individually  or  collectively,  is  always  subject 
to  the  Pontiff's  representative. 

2.,  Every  apostolic  nuncio  or  delegate  can  and  should,  if 
need  be,  reform  the  conduct  and  correct  or  punish,  v.g.,  by 

970  Sess.  24,  cap  20,  de  Ref.  *"  Schmalzg.,  1.  i.,  t.  30,  n.  2. 

*"  Arg.  cap.  2,  de  off.  leg.  in  6°.  ""  Reiff.,  1.  i.,  t.  30,  n.  14. 


of  the  Sovereign  Pontiff.  309 

ecclesiastical  censures,  the  excesses,  not  merely  of  the  laity 
and  the  clergy,  but  also  of  the  bishops  and  archbishops  of 
his  province  or  of  the  country  to  which  he  is  sent.  For  he 
is  their  judge,  their  ordinary,  and  their  superior,"4  and  it  is 
his  right  and  duty  to  extirpate  and  destroy  whatever  is  evil 
and  contrary  to  the  law  of  the  Church,  and  to  build  up  and 
to  plant  whatever  is  good  and  proper."5 

3.  Apostolic  delegates  and   nuncios  can  enact  for  their 
entire  province  permanent  statutes,  i.e.,  such  as  will  remain 
in  force  even  after  their  legateship  has  expired,"'  v.g.,  by 
their  recall  or  resignation. 

4.  They   can    and    should    preserve,  in   their    province, 
loyalty  and  fidelity  to  the  Holy  See,  and  particularly  enforce 
therein  the  laws  of  the  Church.9" 

5.  They  can,  with  regard  to  the  appointment  of  bishops, 
inquire  into  the  merits  of  the  various  candidates,87'  and  send 
the    information  obtained  by  them  to  the  Holy  Father.*1 
Hence  the  Apostolic  Delegate  in  the  United  States  can  de 
mand  that  the  lists  of  the  candidates  for  vacant  sees,  selected 
by  the  irremovable  rectors  and  the  diocesan  consultors  on 
the  one  hand,  and  by  the  bishops  of  the  province  on  the 
other,  shall  be  sent  to  him,  so  that  he  may  inquire  into  the 
merits  of   the   candidates  and   forward   his   information  to 
Rome. 

6.  As  we  have  shown,  apostolic  envoys,  whether  they 
are  nuncios  or  delegates,  can  exercise  their  supreme  Papal 
jurisdiction  in  a  direct  manner  and  not  merely  on  appeal. 

Hence,  prior  to  the  Council  of  Trent,  they  could  and  did 
hear  and  decide,  even  in  the  first  instance,  all  contentious 
causes  whatever,  whether  relating  to  marriages  or  parishes 
and  ecclesiastical  offices,  and  other  civil  affairs,  or  criminal 

574  Schmalzg.,  1.  i.,  t.  30,  n.  2.      However,  he  cannot  depose  bishops. 

"7i  Clem.  IV.,  cap.  2,  de  off.  leg.  in  6°.  "*  Cap.  x.,  de  off.  leg.  (i.  30). 

177  Schmalzg.,  1.  c.  *18  Ib.  m   Ex  cap.  4,  de  off.  leg. 


1O 


On  the  Assistants  or  Ministers 


and  disciplinary  matters.2™  But  owing  to  the  danger  of 
misunderstandings  and  conflicts  of  authority,  the  Council  of 
Trent  modified  the  immediate  contentious  jurisdiction  of  all 
Papal  envoys,  even  of  those  a  latere,  and  made  it  appellate, 
in  the  above  causes.'"1  Accordingly,  at  present,  apostolic 
delegates  and  nuncios  can  as  a  rule  hear  and  decide  such 
causes  only  on  appeal  from  a  definitive  or  a  quasi-definitive 
sentence,  or  from  a  decision  which,  though  not  final  in  form, 
is  yet,  in  reality  and  in  its  effect,  tantamount  to  a  final  deci 
sion,  or  on  appeal  from  a  grievance  which  cannot  be  re 
paired  or  undone  by  a  final  sentence.262 

We  have  said,  as  a  rule.  For  they  can  hear  and  decide 
the  above  causes,  also  in  the  first  instance,  (a)  where  the 
ordinary  has  neglected  to  terminate  them  within  two  years 
from  the  beginning  of  the  litigation  ;  (b)  when  they  are 
specially  and  expressly  authorized  by  the  Holy  Father;1"3 
(c]  when  both  the  bishop  and  the  parties  consent.284 

We  have  said  that  apostolic  delegates  and  nuncios  can,  at 
present,  hear  and  decide  contentious  causes,  not  in  the  first 
instance,  but  only  on  appeal.  Can  they  decide  such  causes 
also  when  the  right  of  appeal  has  lapsed  or  is  denied  by  the 
general  law  of  the  Church  ?  We  will  suppose  a  practical 
case.  A  bishop  has  decided  a  case,  judiciallv  or  extrajudi- 
cially.  The  party  who  feels  aggrieved  by  the  decision 
neglects  to  appeal  within  ten  days,  and  thus  loses  the  right 
of  appeal.  Can  he  nevertheless  bring  his  case  before  the 
apostolic  delegate,  by  way  of  simple  recourse — per  viam  re- 
cursus  f  Yes."6  Why  ?  Because  the  Pope,  in  whose  name 
and  by  whose  supreme  authority  the  delegate  acts,  can  re- 


"""  Cap.  i,  de  off.  leg.  (i.  30).  2fl  Cone.  Tnd.,  sess.  24,  cap.   20,  de  Ref. 

'•""'  Cf.  Cone.  Trid.,  sess.  22,  c.  7,  de  Ref.,    cap.  3,  de  app.  in  6C  (li.  15). 

283  Cone.  Trid.,  sess.  24,  eap.  22,  de  Ref. 

1184  S.  C.  C.,  4  Aug.  1691  ;  Can.  et  deer.  C    Tnd.,  Schulte  et  Richter,  p.  389. 

286  Cap.  i,  de  off.  leg.  (i.  36;. 


of  the  Sovereign  Pontiff.  3 1 1 

v 

ceive  and  decide  complaints,  by  way  of  recourse,  even  after 
the  term  granted  for  appealing  has  elapsed. 

Of  course,  the  apostolic  delegate  or  nuncio,  being  pos 
sessed  of  ordinary  Papal  jurisdiction  over  the  entire  laity, 
clergy,  and  episcopate  of  his'  province,  can,  like  any  other 
ordinary,  hear  and  decide  causes,  either  in  person,  or  through 
other  ecclesiastics  delegated  by  him.  The  jurisdiction  of 
the  person  delegated  by  the  apostolic  delegate  or  nuncio 
continues  even  after  the  apostolic  nuncio's  or  delegate's 
jurisdiction  has  expired,  v.g.,  by  his  recall,  death,  etc.,  pro 
vided  the  citation  of  the  parties  has  taken  place  before  the 
lapse  of  the  apostolic  legate's  jurisdiction.2" 

7.  One  of    the   principal   rights  and   duties  of  apostolic 
nuncios  and  delegates  is  the  visitation  of  the  country  or  dis 
trict  to  which  they  are  sent.3"     The  object  of  this  visitation 
by  the  apostolic  envoys  is  to  eradicate  and  destroy  what  is 
opposed  to  the  law  of  the  Church,  and  to  build  up  and  to 
plant  what  is  in  harmony  with  it.SM     Hence,  on  occasion  of 
their  visitation,  they  can,2'9   in  the  same  manner  as  bishops, 
demand  the  procuratio  or  travelling  expenses  from  all   the 
churches  and  ecclesiastical  institutes  visited  by  them.260 

8.  Moreover,  apostolic  delegates    and    nuncios  can,  by 
virtue    of  their  general   mandate  and  without  any  special 
authorization  from  the  Pope,  convene  and  preside  over  pro 
vincial  and  even  plenary  or  national  councils.291     We  say,  over 
provincial  councils.     For  these  Papal  envoys  possess,  in  every 
province  of  their  district,  the  same  jurisdiction  which  each 
metropolitan  has  in   his  province.     Now  the  metropolitan 
can,  by  his  ordinary  authority,  convoke  and    preside  over 
provincial   councils.     We  say  also,  and  even  plenary  or  na- 

9M  Cap.  10,  de  off.  leg.  (i.  30)  ;  Schmalzg.,  1.  i.,  t.  30,  n.  3. 

««  Cap.  2,  de  off.  leg.  in  6C  (i.  15).         288  Phillips,  K.  R.,  vol.  vi.,  p.  733- 

"'Cap.  17,  de  Cens.  (iii.  39)  ;  cap.  n,  de  praescr.  (ii.  26). 

2>0  Cap.  21,  de  Cens.  (iii.  39).  a"  Bouix,  de  Cone.  Prov.,  p.  75. 


312  On  the  Assistants  or  Ministers 

* 

tional  councils.  For,  as  we  have  seen,  apostolic  delegates 
are  vested  with  the  supreme,  ordinary,  and  immediate  juris 
diction  of  the  Pope  himself  a92  over  the  entire  country  com 
mitted  to  their  care,  and  therefore  can,  like  the  Pope 
himself,  convene  and  preside  over  plenary  or  national 
synods. 

9.  Finally,  apostolic  delegates  and  nuncios  can,  speaking 
in  general,  perform  in  the  country  assigned  to  them  not 
only  what  a  bishop  can  do  in  his  diocese  and  an  archbishop 
in  his  province,  but  also  what  the  Pope  himself  can  do,288 
excepting  those  things  only  which  are  reserved  as  special 
prerogatives  to  the  Supreme  Pontiff.294  Now  some  matters 
are  reserved  to  the  Pope  by  the  general  law  of  the  Church, 
v.g.,  the  causae  majores  ;29B  others  by  the  Pontiff  himself, 
when  he  establishes  an  apostolic  delegation  or  appoints 
the  apostolic  delegate.  For  it  is  plain  that  the  Pope  is  at 
liberty  to  confide  to  his  envoys  or  representatives,  whether 
they  be  called  apostolic  delegates  or  nuncios,  the  exercise  of 
his  own  supreme  jurisdiction  in  the  measure  which  seems  to 
him  proper.296 

Q.  What  powers  are  not  possessed  by  apostolic  dele 
gates  or  nuncios  by  virtue  of  their  general  mandate,  or  by 
their  very  appointment? 

A.  We  have  seen  above  that  apostolic  delegates  possess 
the  supreme  power  of  the  Pope  delegating,  in  ail  things 
save  those  which  are  reserved  to  the  Pope  either  by  the 


58S  Pope  Pius  VI.,  in  his  celebrated  Brief  de  Nuntiaturis,  writes:  "  Ro- 
manus  Pontifex  .  .  .  suo  fungitur  apostolico  munere  per  ecclesiasticos  viros, 
sive  stabiles,  sive  ad  tempus,  veluti  magis  expedite  censuerit,  delegates  in  iis 
dissitis  locis  ubi  ipse  interesse  non  potest;  praecipiens  eisdem,  ut  ibi  suas  -vices 
obeant,  eamqite  jurisdictionem  exerccant,  quam  is  per  se  si  adesset,  exerceret."  Cf. 
Bouix,  de  Cone.  Prov.,  p.  80. 

293  Arg.  cap.  2,  de  off.  leg.  in  6°.  "*  Schmalzg,  1.  i.,  t.  30,  o.  2. 

"8  Cap.  4,  de  off.  leg.  (i.  30). 

*••  Letter  of  Card.  Jacobin!,  Apr.  15,  1885,  above  quoted. 


of  the  Sovereign  Pontiff.  3 1 3 

Pope  himself  or  by  the  general  law  of  the  Church.  We 
shall  now  enumerate  the  chief  matters  thus  reserved  and 
.therefore  not  within  the  competence  of  apostolic  delegates. 

Accordingly,  i.  Apostolic  delegates  cannot  hear  and  de 
cide  the  causae  major es,  such  as  the  transfer  or  removal  of 
bishops,  the  union  or  division  of  dioceses,  etc.2"  2.  They 
cannot  interfere  in  a  cause  which  has  been  delegated 
to  another  ecclesiastic  by  special  mandate  of  the  Pope  or  of 
.a  Sacred  Congregation.298  3.  Likewise,  they  cannot  receive 
an  appeal  from  the  sentence  or  decision  of  an  ecclesiastical 
judge  delegated  by  the  Pope  or  by  a  Sacred  Congrega 
tion  to  adjudicate  a  cause.2"8  4.  Nor  can  they  do  anything 
in  a  cause  which  has  been  referred  to  the  Holy  See.800 
5.  Again,  the  jurisdiction  of  apostolic  delegates  or  nuncios 
does  not  extend  to  exempted  regulars.30  6.  They  cannot 
appoint  rectors  of  parishes  (with  us,  quasi  parishes).808 
7.  Their  jurisdiction  is  restricted  as  to  place  ;  that  is,  it  is 
confined  (a)  to  the  limits  of  their  province,  and  (£)  to  the 
persons  living  therein.  Hence,  when  a  delegate  apostolic 
is  outside  his  province,  he  gannot  exercise  contentious  juris- 
•diction,  such  as  to  absolve  from  censures,  even  with  regard 
to  those  who  live  in  his  province.30 

We  have  said  in  the  question,  by  virtue  of  their  general 
mandate  or  by  their  very  appointment.  For  apostolic  dele 
gates  and  nuncios  may  and  frequently  do  receive  from  the 
Pope,  by  special  mandate  or  authorization,  the  power  to 
arrange  and  decide  the  above  affairs  and  all  other  matters 
reserved  exclusively  to  the  Pope. 

From  the  above  it  will  be  seen  that  the  powers  of  an 
apostolic  delegate  are  determined,  (a)  as  to  their  ordinary 

297  Cap.  4,  de  off.  leg.  (i.  30).  "'  Cap.  2,  de  off.  leg. 

""  Arg.,  cap.  ii,  de  off.  jud.  deleg.  (i.  29). 

s°8  Cap.  5.  de  off.  leg.;  Schmalzg.,  1.  i.,  t.  30,  n.  3. 

301  Cap    36,  de  elect,  in  6°  (i.  6);  Schmalzg.,  1.  c.,  n.  6. 

'"  Cap.  i.  de  off.  leg.  in  6°.  303  Cap    9,  de  off.  U-g.  (1.30). 


314  On  the  Assistants  or  Ministers 

and  general  extent,  by  his  very  appointment  or  bv  his  gen 
eral  mandate ;  301  (b)  as  to  their  exceptional  nature  and 
extent,  by  his  special  letters  of  authorization  from  the  Pope. 
Lastly,  in  his  capacity  of  representative  of  the  Holy 
Father,  the  apostolic  delegate  is  responsible  for  his  acts 
only  to  the  Supreme  Pontiff  or  the  Sacred  Congregation 
upon  which  he  depends,  and  not  to  the  laity,  clergy,  or  epis 
copate  of  the  country  where  he  resides.  Hence  his  acts 
should  not  be  publicly  criticised  by  the  laity,  clergy,  or 
episcopate,  who,  however,  as  the  cardinal  secretary  says  in 
the  letter  quoted,3"  have  the  right  to  have  recourse  to 
Rome  when  they  have  reason  to  believe  that  the  apostolic 
delegate  or  nuncio  has  gone  beyond  the  limits  of  his  mis 
sion  or  abused  his  powers. 

§  5 .  Support  of  Apostolic  Delegates  and  Nuncios. 

Apostolic  delegates  and  nuncios  are  sometimes  sup 
ported  by  the  Holy  See  itself,  when  it  has  the  means  to  do 
so.308  This  is  the  case  at  present  with  the  Apostolic  Dele 
gate  in  this  country,  who  receives  annually  $6000  from  the  S. 
Congr.  de  Prop.  Fide.  At  times,  however,  their  means  of  sup 
port  comes  from  contributions  of  the  laity,  clergy,  and  episco 
pate  of  the  country  to  which  they  are  sent.  In  fact  these 
Papal  envoys  labor  for  the  spiritual  welfare  of  the  faithful, 
the  clergy,  and  the  episcopate  of  the  country  committed  to 
them.307  Hence  the  words  of  St.  Paul  apply  to  them  : 3U8  "  If 

304  The  Roman  law  says:  ''  Cui  jurisdictio  data  est,  ea  quoque  concessa  esse 
videntur,  sine  quibus  jurisdictio  explicari  non  potest,"  1.  2  ff.,  de  jurisd.  (ii.  i). 
Pope  Alexander  III.  enacts:  "Ex  eo  quod  causa  (Delegatio  Apostolical  sibi 
(Delegate  Apostolico)  committitur,  super  omnibus,  quae  ad  causam  (Delega- 
tionem)  ipsam  spectare  noscuntur  plenariam  recipit  potestatem."  Cap.  5,  de 
off.  jud.  del.  (i.  29). 

300  The  letter  is  printed  in  the  Moniteur  de  Home.  May  3,  1885. 

aoe  Phillips,  K.  R.,  vol.  vi.,  p.  732.     M1  Cf.  cap.  n,  de  praescr.  (ii.  26). 

308  I.  Cor.  ix.  ii. 


of 'the  Sovereign  Pontiff.  515 

we  have  sown  unto  you  spiritual  things,  is  it  a  great  matter 
if  we  reap  your  carnal  things?"  There  is  no  doubt  that, 
should  occasion  offer,  v.g.,  if  the  Holy  See  should  lack  the 
means,  the  laity,  the  clergy,  and  the  episcopate  of  this 
country  would  cheerfully  supply  the  Apostolic  Delegate 
with  a  generous  and  ample  support.  The  movement  now 
on  foot  to  provide  him  with  an  official  residence  at  Wash 
ington  is  sufficient  proof  of  this. 


§  6.   How  the  Powers  of  Papal  Envoys  Expire. 

Q.  In  how  many  ways  does  the  jurisdiction  of  apostolic 
legates,  nuncios,  and  delegates  lapse  ? 

A.  It  is  necessary  to  distinguish  between  apostolic  dele 
gations  which  are  temporary  and  those  which  are  perma 
nent.  Where  the  apostolic  delegation  is  merely  temporary 
or  for  a  determinate  affair  only,  the  delegate's  jurisdiction 
expires  with  the  lapse  of  the  time  for  which  he  was 
appointed,309  or  when  the  affair  for  which  he  was  sent  is 
terminated. 

In  the  second  case,  namely,  where  the  apostolic  delega 
tion  is  permanently  established,  as  is  the  case  in  this  country, 
the  apostolic  delegate's  jurisdiction  expires  in  the  following 
ways:  i.  When  he  has  referred  a  matter  or  cause  to  the 
Pope  his  jurisdiction  expires,  so  far  as  concerns  the  cause 
or  matter  referred  to  the  Pope  by  him.310 

2.  Where  of  his  own  accord  he  leaves  the  country 
assigned  to  him.  Here,  however,  we  must  distinguish:  If 
he  leaves  his  province  with  the  intention  of  not  returning  to 
it,  which  he  cannot  do  without  leave  from  the  Pope,  his 
power  and  jurisdiction  cease  completely  the  moment  he  has 
gone  away.3"  If  he  leaves  only  temporarily,  with  the  inten- 

So'  Cap.  4,  de  off.  jud.  del.  (i.  29).  »>*  Cap.  5.  de  off.  leg.  (i.  30). 

811  L.  3  ff.,  de  off.  praes.  (i.  18). 


316  On  tJie  Assistants  or  Ministers 

tion  of  returning  soon,  his  contentious  jurisdiction  is  sus 
pended  during  such  absence.313  We  say  contentious ;  for  he 
retains  and  can  exercise  his  voluntary  jurisdiction  during 
such  absence.313 

3.  When    he   is   recalled    by    the    Pope,  and  the   recall 
becomes  legitimately  known  to  him.     Until  the  revocation 
comes  to  his  knowledge,  the  acts  performed   by   him   are 
valid,  even  though  done  after  his  recall.314     Nay,  it  would 
appear  that  even  after  the  recall  becomes  known  to  him  he 
retains  jurisdiction  until  he  has  actually  left  his  province.316 

4.  By  the  death  of  the  apostolic  delegate.     Of  course, 
as  far  as  the  dead  delegate  himself  is  concerned  death  takes 
from  him  all  power.     But  the  question  is,  Do  the  powers  of 
the  apostolic  delegate  lapse  with  his  death  in  such  a,  manner 
that  they  do  not  pass  to  his  successor  except  by  a  new  grant 
from  the  Holy  See?     Here  we  must  again  distinguish  be 
tween  the  ordinary  and  the  extraordinary  powers  vested  in 
him.    Whatever  extraordinary  jurisdiction  is  conferred  upon 
him  is  to  be  looked  upon  as  personal  and  not  as  annexed  to 
the  office  or  the  apostolic  delegation.     Therefore  it  lapses 
with  the  death  (also  with  the  recall,  resignation,  etc.)  of  the 
apostolic  delegate. 

With  regard  to  the  powers  ordinarily  vested  in  the 
apostolic  delegate  there  are  two  opinions.  One  looks  upon 
them  as  personal  rather  than  as  annexed  to  the  office  or  the 
apostolic  delegation,  and  in  consequence  contends  that  they 
expire  with  the  incumbent's  death  and  are  to  be  renewed 
with  regard  to  the  successor.316  The  other  opinion  holds 
that  they  are  annexed  to  the  office  itself  or  the  apostolic 
delegation,  and  therefore  do  not  lapse  with  the  death  of  the 
apostolic  delegate,  but  pass  to  his  successor  without  any 
new  grant  or  indult  from  the  Holy  See.317 

918  Schmalzg.,  1.  i.,  t.  30,  n.  10.  31f  L.  2  ff.,  de  off.  Proc.  et  leg.  (i.  16). 

314  Cap.  4,  de  rest    spol.  (ii.  13).  3IB  Schmalzg.,  1.  c.,  p.  5. 

3"  Schmalz".,  1.  i.,  t.  30,  n.  ro.  s"  Cf.  Reift,  1.  i.,  t.  30,  n.  44. 


of  the  Sovereign  Pontiff.  3 1  7 

Of  course,  all  depends  upon  the  mind  of  the  Holy  See. 
If  the  Roman  Pontiff  intends  the  powers  in  question  to  be 
attached  to  the  delegation  itself  and  not  merely  to  the  person 
of  the  delegate,  they  do  not  lapse  with  the  death,  recall,  or 
resignation  of  the  apostolic  delegate;  otherwise  they  do. 
Now  in  establishing  a  permanent  apostolic  delegation  it  is 
plainly  the  mind  of  the  Holy  See  that  the  powers  spoken  of 
shall  be  annexed  to  the  office  or  delegation  itself,  and  not 
merely  vested  in  the  person  of  the  delegate. 

5.  Does  the  jurisdiction  of  apostolic  delegates,  nuncios, 
or  legates  expire  with  the  death  of  the  delegating  Pope? 
It  does  if  the  apostolic  delegate  is  appointed  with  the  clause 
ad  beneplacitum  legantis,  i.e.,  of  the  Pope.  For  the  pleasure 
or  will  of  the  Pope  (beneplacitum  Pontificis)  expires  with  his 
death,  and  consequently  also  the  power  made  contingent  on 
such  will  or  pleasure."8 

But  when  the  apostolic  delegate  is  appointed  either  with 
out  the  above  clause  or  with  the  clause  ad  beneplacitum  nos 
trum  (Pontificis)  et  hujus  S.  Sedis — which  is  the  clause  employed 
by  Pope  Leo  XIII.  in  appointing  the  apostolic  delegate  for 
the  United  States — his  jurisdiction  does  not  lapse  with  the 
death  of  the  delegating  Pontiff.  For  the  supreme  Papal 
power  of  apostolic  delegates  is  ordinary  and  therefore  does 
not  expire  with  the  death  of  the  Pope  appointing  or  dele 
gating.31*  Moreover,  the  Holy  See  does  not  die,  and  conse 
quently  neither  the  power  conferred  ad  beneplacitum  S.  Sedis. 
Hence  also  Papal  envoys  are  called  apostolic  delegates, 
nuncios  ;  or  delegates,  nuncios,  and  legates  of  the  Holy  See. 

The  above  holds  even  where  the  Pope  dies  before  the 
apostolic  delegate  has  reached  the  country  assigned  to  him, 
or  where  as  yet  he  has  not  exercised  a  single  act  of  his 
apostolic  delegation.320 

From  all  this  it  will  be  seen  that  when  a  Pope  dies,  apos- 

118  Schmalzg.,  1.  i.,  t.  30,  n.  n. 

119  Clem.  IV.,  cap.  2,  de  off.  leg.  in  6°  (i.  15).  "°  Schmalzg.,  1.  c. 


*8  On  the  Assistants  or  Ministers 


tolic  delegates  appointed  ad  beneplacitum  S. 
always  the  case  where  the  apostolic  delegation  is  perma 
nently  established  —  remain  apostolic  delegates  and  retain 
all  their  supreme  jurisdiction  until  they  are  recalled  by  the 
successor  of  the  dead  Pontiff,  or  sede  papali  vacant  e  by  the 
Sacred  College  of  Cardinals.  However,  pending  the  vacancy 
of  the  Papal  chair,  the  Sacred  College  of  Cardinals  cannot, 
as  a  rule,  recall  apostolic  delegates  except  for  grave  and 
urgent  cause.  The  reason  is  that  the  Sacred  College  can 
not,  pending  the  vacancy  of  the  Papal  chair,  exercise  full 
Papal  jurisdiction,  but  merely  expedite  certain  matters 
which  do  not  admit  of  delay. 

522.  Q.     What  are  the  laws  of  the  United  States  in  rela 
tion  to  ambassadors  ? 

A.  —  i.  Ambassadors  are  exempted  absolutely  from  all 
allegiance  and  responsibility  to  the  laws  of  the  country  to 
which  they  are  deputed.321  2.  Their  persons  are  deemed  in 
violable.  3.  An  ambassador,  while  he  resides  in  the  for 
eign  state,  is  considered  as  a  member  of  his  own  country; 
and  the  government  he  represents  has  exclusive  cognizance 
of  his  conduct  and  control  of  his  person.3"  4.  The  attend 
ants  of  the  ambassador  and  the  effects  in  his  use  are  equally 
exempt  from  foreign  jurisdiction.  5.  A  person  who  offers 
violence  to  ambassadors,  or  is  concerned  in  prosecuting  and 
arresting  them,  is  liable  to  imprisonment  for  three  years 
and  to  a  fine  at  the  discretion  of  the  court.1123 

523.  Q.  Are  these  laws  applicable  to  Papal  legates? 

A.  A  Papal  legate  may  be  sent  to  represent  the  Holy  See, 
either  in  a  diplomatic  capacity  only  or  in  matters  purely 
ecclesiastical.  In  the  latter  case  he  would  be  considered  as 
an  ordinary  resident  of  the  country;  in  the  former  he 
would  rank  with  other  ambassadors,  and  be  entitled  to 
equal  rights  with  them. 

321  Kent,  vol.  i.,  p.  38.  "•  Ib.,  p.  39.  IM  Ib.,  p.   182. 


of  the    Sovereign   Pontiff.  319 

ART.  II. 

Of  Apostolic  Vicars  Prefects,  Commissaries,  and  Prothonotaries. 

524.  Vicars  and  Prefects  Apostolic. — There  is  a  material 
difference  between  the  vicars-apostolic  of  antiquity  and 
those  of  the  present  day.324  The  former  corresponded  to  the 
iegati  nati  of  later  times  ;  the  latter  are  those  who  are  de 
puted  by  the  Pontiff  to  exercise  the  pastoral  care  in  certain 
churches  or  districts,  not  in  tJieir  own  name,  but  that  of  the 
Pope?"1*  The  appointment  of  apostolic  vicars  is  based  on  the 
principle  that  the  Pope,  as  bishop  of  the  whole  world,  or  as 
ordmarius  of  the  entire  Church,  has  the  direct  ecclesiastical 
management  of  all  those  places  and  dioceses  where  the 
ecclesiastical  regime  is  not  organized  in  perfect  conformity 
with  canon  law.3™  Hence,  vicars-apostolic  are  appointed,  I, 
for  missionary  countries  where  as  yet  dioceses  are  merely 
in  the  course  of  formation— v.g.,  in  the  United  States  ;  2,  for 
the  Catholic  portion  of  the  community  in  countries  that 
have  fallen  from  the  faith."7  We  said  above,  in  perfect  con- 
fonnitv  wit  It  canon  law ;  for  the  Holy  See — i.e.,  the  Propa 
ganda,  which  is,  in  this  respect,  the  representative  of  the 
Pope-  -retains  the  direct  management  of  these  places,  not 
only  until  dioceses  are  simply  formed  (as  in  the  United 
States)  or  re-established,  but  until  they  are  all,  without  ex 
ception,  perfectly  organized— i.e.,  placed  on  an  entirely  ca 
nonical  footing,  having  chapters,  etc.  ;  in  other  words,  un*:l 
canon  law  fully  obtains.  So  long,  therefore,  as  the  orgam 
zation  of  a  diocese  is  in  any  way  abnormal— i.e.,  not  con 
formable  to  canon  law — the  Propaganda  has  direct  charge 
of  it.3'"  3.  Besides,  vicars-apostolic  are  also  appointed,  in 

M4  Craiss.,  n.  8i  =  .  ™  Ib..  n.  815. 

:!-5  Phillips,  Lehrb  ,  §  126  ;  cfr.  Walter,  §  132.  3M  Phillips,  l.c 

ai6  Ib. 


320  On  the  Assistants  or  Ministers 

urgent  cases,'  where  the  administration  of  a  diocese  fully 
organized  becomes  temporarily  disordered — v  g.,  by  the 
absence,  captivity,  sickness,  and  the  like  of  its  bishop."" 
As  the  Propaganda  has  the  immediate  control  of  all  places 
having  diocesan  organizations,  incomplete  or  abnormal,  or 
disordered,  it  is  placed  over  all  vicars-apostolic,  whether 
they  be  simple  priests  under  the  title  of  prefects,  or  bishops 
in  partibus,  or  ordinary  bishops  in  the  capacity  of  apostolic 
delegates.  Hence,  also,  the  bishops  of  the  United  States 
and  of  Ireland  are  not  preconized  in  consistory,  but  pro 
posed  to  the  Pope  by  the  Propaganda.830 

525.  Apostolic  Commissaries  (commissarii  apostolici,  delegati 
Papae]. — They  are  those  persons  whom  the  Holy  See  com 
missions  to  take  cognizance  of  and  arrange  certain  matters 
—v.g.,  vicars-general,  to  whom  the  execution  of  matrimonial 
dispensations  is  committed  by  the  Holy  See.3"     The  Holy 
See,  as  a  rule,  selects  as  agents  or  commissaries  only  ecclesi 
astical  dignitaries — canons,  vicars-general,  and  superiors  of 
religious  communities.     Note. — Apostolic  delegates  are  ap 
pointed  either  directly  by  the  Holy  See  (delegati  ab  /tomine) 
or  by  the  jus  commune — v.g:,  by  the  Council  of  Trent  (dele 
gati  a  jure}?**     As  is  evident,  the  commissaries  of  which  we 
here  speak  are  delegati  ab  ho  mine,  not  a  jure. 

526.  Apostolic    Protlibnotaries    (protonotarii    apostolici}. — 
These  are  of  three  kinds:   \.  Protonotarii  participates  or  de 
collegia;  these  alone  have  the  full  rights  of  the  prothonotary- 
ship.       2.    Protonotarii  supernumerarii  or    ad  instar  partici- 
pantium ;  they  have  nearly  all  the  rights,  so  far  as  honors 
are  concerned  (jura  lionorificd],  of  the  participant es.     Hence, 
they  may  wear  the  dress  of  prelates  (habitus  praelatitius) 
— i.e.,  the  cassock  (subtand)   and    mantle    (mantellettum)  of 
violet,  and  the  rochet :  they  may  also  celebrate  pontifically, 

"9  Phillips,  I.e.,  p.  236. 

330  Ib.,  1.  c.  ;  cfr.  ib.,  Kirchenr. ,  vol.  vi. ,  pp.  746,  748. 

331  Crais5..  n   817.  ™>  ReiflF.,  lib.  i.,  tit.  xxix.,  n.  33,  34 


of  the  Sovereign  Pontiff.  521 

though  only  with  the  consent  of  the  ordinary.  Prothonota 
ries  participates  may  celebrate  private  Masses,  like  prelates, 
both  in  and  out  of  Rome.  But  prothonotaries  ad  instar  can 
not,  in  celebrating  private  Masses,  distinguish  themselves 
from  simple  priests.  This  is  certain  at  present,  as  is  evident 
from  the  following  words  of  the  Const.  Ap.  Scdis  Officium, 
issued  by  Pope  Pius  IX.  in  1872,  regarding  prothonotaries 
ad  instar  :  "  In  Missis  privatis  quoad  indumenta,  caeremonias, 
ministros,  altaris  ornatum,  cereorum  lucentium  numerum, 
protonotarii  ad  instar  a  simplici  sacerdote  non  differant, 
adeoque  nullum  prorsus  ex  ornamentis  Pontificalibus  pro 
Missa  solemni  tantum  sibi  indultis  adhibeant,  atque  ab  omni 
bus  et  singulis  ritibus  in  ipsa  Missa  solemni  sibi  vetitis  peni- 
tus  abstineant  "  (Const,  cit,  §  18,  ap.  De  Herdt,  Praxis  Pontif., 
torn,  iii.,  p.  509).  3.  Protonotarii  honorarii  are  of  a  grade  in- 
ferior  to  the  foregoing.'" 

***  CcaiM.,  B.  8:8. 


CHAPTER   IV. 

OF   PATRIARCHS,    PRIMATES,   AND    METROPOLITANS. 

ART.  I. 
Patriarchs. 

527.  Patriarchs  (patriarcliae]  are  bishops  who  preside 
not  merely  over  one  diocese  or  province,  but  over  several 
provinces  or  districts.1  The  dignity  itself  of  patriarchs 
dates  back  to  the  apostles.;  the  name  came  into  use  only 
from  the  time  of  the  Council  of  Chalcedon."  Rights  formerly 
possessed  by  Patriarchs. — They  had  power  chiefly,  i,  to  con 
secrate  metropolitans  and  give  them  the  pallium  ;  2,  to  as 
semble  and  preside  at  patriarchal  or  national 3  councils  ;  3, 
to  receive  appeals  from  the  sentence  of  metropolitans. 
These  rights  may  be  summed  up  thus:  The  jurisdiction  ex 
ercised  by  patriarchs  over  metropolitans  was  similar  to  that 
exercised  in  turn  by  metropolitans  over  their  suffragan 
bishops.1  The  four  great  patriarchates  of  the  Eastern 
Church — namely,  of  Alexandria,  Antioch,  Constantinople, 
and  Jerusalem— having  fallen  into  schism  and  heresy,  have 
long  ago  become  extinct.6  The  Holy  See,  however,  in 
order  to  preserve  the  memory  of  these  patriarchates,  still 
creates  titular  patriarchs  of  these  sees,6  who  reside  in  Rome  ; 
they  have  only  the  title  of  patriarchs,  but  no  jurisdiction, 
excepting,  however,  the  Patriarch  of  Jerusalem,  who  was 
sent  to  his  see  by  Pope  Pius  IX.,  and  occupies  it  at  present. 

1  Craiss.,  n.  820.  a  Soglia,  vol.  i.,  pp.  267,  268.  '  Ib.,  p.  273. 

4  Craiss.,  n.  822.  *  Phillips,  Lehrb.,  p.  239.  '  Ib.,  p.  240 

'  Craiss.,  n.  821. 


Of  Patriarchs,  Primates,  and  Metropolitans,      323 

Besides  these,  there  are  still  in  the  Oriental  Church  several 
actual  patriarchs  in  communion  with  the  Holy  See.  Thus, 
the  Chaldeans,  Melchites,  Maronites,  Syrians,  and  Arme 
nians,  who  are  united  with  the  Catholic  Church/  have  their 
patriarchs,  to  whom  the  Holy  See  usually  grants  faculties 
similar  to  those  enjoyed  by  the  patriarchs  of  old.9  The 
Roman  Pontiff  is  the  patriarch  of  the  Western  or  Latin 
Church.  Besides,  there  are  in  the  Latin  Church  the  patri 
archs  of  Lisbon,  Venice,  and  the  West  Indies ;  they  are 
called  patriarchae  minores.  and  have  only  the  title,  not  the 
jurisdiction,  of  patriarchs.10  The  patriarchate  itself  is  not  of 
divine  but  of  ecclesiastical  institution.11 

ART.  II. 

Primates. 

528.  By  primates  (termed  primates  in  the  Latin,  exarchi 
in  the  Greek  Church)  are  meant  at  present  those  who  are 
placed  over  several  metropolitans."  Primates  formerly  had 
the  right  to  convene  national  councils  and  receive  appeals 
from  the  sentence  of  metropolitans.13  These  privileges  have 
lapsed,  and,  where  primates  still  exist,  they  merely  retain 
the  name  or  title,14  not  the  jurisdiction  formerly  attached  to 
the  primateship.16  Salzano,  however,  observes  that  even 
at  the  present  day  primatial  jurisdiction  is  vested  in  the 
Primate  of  Hungary  and  in  the  Archbishops  of  Toledo  and 
Armagh.  In  the  United  States,  the  Archbishop  of  Balti 
more,  by  virtue  of  the  praerogativa  loci,16  affixed  to  his  see, 
occupies  the  first  seat  in  all  councils,  meetings,  and  the 
like.  This  privilege,  as  is  evident,  is  simply  one  of  honor, 

'  Walter,  pp.  303,  304.          *  Soglia,  1.  c.,  p.  27^.          10  Walter,  pp.  303,  304. 

11  Soglia,  1.  c.,  p.  272.  "  Craiss.,  Man.,  n.  826  ;  cfr.  Craiss.,  Elem.,  0.392. 

"  Phillips,  1.  c.,  p.  240.         M  Soglia,  1.  c.,  p.  275. 

16  Salzano,  lib.  ii.,  pp.  126,  127  ;  cfr.  Walter,  p.  304. 

"  Deer  ,  Aug.  15,  1858,    ap.  Cone.  PI.  Bait.  II.,  app.  xxx  ,  p.  343, 


324      Of  Patriarchs^  Primates,  and  Metropolitans. 

not  of  jurisdiction,  and  includes  no  primatial  rights  what 
ever.17 

ART.  III. 

Metropolitans. 

529.  A    metropolitan   (inetropolitanus^    metropolita,    archi- 
episcopus)   is  the   bishop  of  a  metropolis  or  chief  city   of  a 
province,  who  presides  over  an  entire  province.19     Metro 
politans    are    also    named    archbishops,    although,    strictly 
speaking,  the  former  are  those  who  have  suffragan  bishops, 
while  the  latter  may  not  have  any.19     Every  metropolitan, 
therefore,   is  rightly   called  an  archbishop ;    but  not  every 
archbishop  is  a  metropolitan/0     The  dignity  of  metropoli 
tans,  though  not  of  divine  institution,  is  nevertheless  very 
ancient,  and,  according  to  a  highly  probable  opinion,  dates 
back  to  the  apostles  themselves.21      Thus,   many  canonists 
hold  that  Titus  and  Timothy  were  created  metropolitans  b} 
St.  Paul ;  the  former  of  Crete,  the  latter  of  Asia.22     Powers 
and  Riglits  of  Metropolitans.  —  I.  Formerly  the  jurisdiction  oi 
metropolitans  was  very  extensive.23     Suffragan  bishops  could 
do  nothing  of  importance  without  their  consent.     They  had 
the  chief  voice  or  part  in  the  election  of  the  bishops  of  their 
provinces,2'  etc.     These  ample  powers  came  to  be  greatly 
restricted   in  later  times.      2.  At  present  the  metropolitical 
jurisdiction,   speaking  in  general,  extends    (a)   over  suffra 
gans,  (I)]  over  the  subjects  or  dioceseners  of  suffragans.     We 
say,  speaking  in  general ;  what  these  rights  are  in  particular 
we  shall  now  examine.25 

530.  Q.  What  are,  at  present,  the  rights  of  metropolitans 
over  their  suffragan  bishops  f 

"  Our  Notes,  n.  34.  "*  Soglia,  1.  c.,  p.  276  ;  our  Notes,  n.  78,  79. 

'*  Salzano,  1.  c.,  p.  127.  M  Ferraris,  V.  Archiep.,  art.  i.,  n.  3-5. 

"  Craiss.,  n.  831.  '"  Cfr.  Cone.  PI.  Bah.  II.,  n.  78.  M  Ib  ,  79-81 

"*  Craiss.,  n.  832.  "*  Phillips,  Kirchenr.,  vol.  vi.,  p.  821. 


Of  Patriarchs,  Primates,  and  Metropolitans.       325 

A.  Chiefly  these  : "  I.  To  convoke  provincial  councils 
every  third  year."  2.  To  make  the  visitation  of  their  pro 
vinces  ;  but  at  present  they  can  do  so  only  when  authorized 
by  provincial  councils.  As  provincial  councils  are  but 
rarely  held,28  these  visitations  also  have  come  to  be  discon 
tinued.  3.  To  urge  suffragans  to  comply  with  their  episco 
pal  duties,  especially  that  of  residence.  4.  Their  judicial 
power  was  restricted  by  the  Council  of  Trent,29  so  that  at 
present  the  more  grave  criminal  charges  against  bishops 
(causae  criminates  majores)  can  be  decided  by  the  Sovereign 
Pontiff  only;  the  less30  (causae  criminates  minorcs},  in  pro 
vincial  councils.  Metropolitans  therefore  can,  at  most,  take 
cognizance  of  £«>// causes  of  suffragans.81 

531.  Q.  What  are,  at  present,  the  rights  of  metropoli 
tans  in  relation  to  the  subjects  of  their  suffragans  ? 

A.  Metropolitans  have  jurisdiction  over  the  subjects  of 
their  suffragans  chiefly  in  three  cases:"  on  appeal,  during 
visitation,  and  by  devolution.33  I.  On  Appeal  (in  appella- 
tione). — Thus,  the  subjects  of  suffragans  may  appeal  to  the 
archbishop  in  all  grievances  whatever — i.e.,  not  only  from  a 
juridical  sentence  of  the  bishop,  but  also  from  all  gravamina 
or  abuses  of  episcopal  authority,  and  consequently  from 
extra-judicial  acts.34  II.  During  Visitation  (in  sacra  visita- 
tione). — When  visiting  his  province,  the  metropolitan  may 
exercise  jurisdiction,  i,  in  foro  inferno,  by  hearing  the  con 
fessions  of,  and  absolving,  either  personally  or  through 
others,  all  the  subjects  of  suffragans  ;  he  may  also  absolve 
from  cases  reserved  to  the  suffragan ;  2,  in  foro  externo,  by 
proceeding  against  notorious  criminals,  also  against  those 

"  Cfr.  Cone.  PI.  Bait.  II.,  n.  Si.  **  Our  Notes,  n.  79. 

*  Phillips,  1.  c.,  p.  826;  cfr.  Cone.  Trid.,  sess.  xxi«r.,  cap.  Hi.,  d.  R. 
"  Sess.  xxiv.,  cap.  v.,  d.  R.  so  Soglia,  vol.  i.,  pp.  276,  277 

"  Phillips,  Lehrb.,  p.  243.  "  Ib.  "  Soglia,  1.  c..  p.  277. 

M  Craiss,   n    839  ;  cfr.  Cone.  Trid.,  sess.  xiii.,  cap.  i.,  d.  R.  ;  sess.  xxiv 
cap.  x.   d.  R. 


326      Of  Patriarchs,  Primates,  and  Metropolitans. 

who  hinder  him  from  exercising  his  jurisdiction,  etc/6  111. 
By  Devolution  (jure  dt-volutioins]. — When  the  suffragan,  ' 
whether  in  the  exercise  of  voluntary  or  contentious  jurisdic 
tion/7  neglects  to  comply  with  the  duties  of  his  office,  the 
metropolitan  acquires  jurisdiction  over  the  diocese  of  his 
suffragan,  and  may  remedy  (jus  supplcndi )  the  negligence  ot 
such  suffragan.3*  It  is  a  controverted  question  whether 
this  rcniidial  jurisdiction  devolves  upon  the  metropolitan 
universally  39 — i.e.,  in  all  cases  of  negligence  of  suffragans — or 
only  in  those  particular  cases  which  are  specified  by  the 
canons  of  the  Church.  According  to  the  more  probable 
opinion,  which  also  corresponds  to  the  present  discipline  of 
the  Church,  it  is  limited  to  cases  expressly  laid  down  by 
law.40  Of  these  cases,  determined  in  canon  law,  the  follow 
ing  are  some  of  the  more  important,  and  therefore  deserve 
special  mention:  i.  If  a  suffragan  bishop  refuses  to  grant  a 
dispensation,  grantable  by  h\m  jure profrio,  which,  consider 
ing  the  person,  place,  age,  or  the  good  of  religion,  should 
be  given,  the  metropolitan  has  the  right  to  concede  it.  2. 
Metropolitans  may  appoint  to  parishes,  offices,  and  the  like, 
of  comprovincial  dioceses,41  where  appointments  are  not 
made  within  the  time  prefixed  by  canon  law."  3.  Capitu 
lar  vicars,  if  not  elected  by  the  chapter  within  eight  days 
from  the  vacancy  of  the  see,  are  appointed  by  the  metropo 
litan.4'  In  the  United  States  the  temporary  administrator 
is  designated  either  by  the  bishop,  while  alive,44  or,  in  his 
default,  bv  the  metropolitan  or  senior  suffragan.  The  per 
manent  administrator  is  appointed  by  the  Holy  See. 

532.     Specific   character   or   nature   of  the  jurisdiction   oj 
metropolitans,  i,  over  their  stiff ragans ;  2,  over  the  subjects  of 

K  Phillips,  1.  c.  *•  Soglia,  1.  c.  "  Reiff.,  lib.  i.,  tit.  x.,  n.  6.  ^ 

**  Ib.,  tit.  xxxi.,  n.  48.  '"  Ib.,  tit.  x.,  n.  9,  10. 

40  Phillips,  Kirchenr.,  vol.  vi.,  pp.  832,  833.         4I  Craiss.,  n.  842. 

41  Cfr.  Devoti,  lib.  i.,  tit.  iii..  n.  40.  43  Soglia,  1.  c.,  p.  277. 
44  Our  Notes,  n.  70-73  ;  cfr.  Cone.  PI.  Bait.  II.,  n.  96.  97. 


Of  Patriarchs,  Primates,  and  Metropolitans.       327 

suffragans.  —  \.  In  general  it  seems  to  be  admitted  that  the 
metropolitical  jurisdiction  over  suffragans,  as  well  as  over 
the  subjects  of  suffragans,4'  is  not  universal,  but  is  to  be 
limited  to  cases  expressly  stated  in  canon  law  II.  Never 
theless,  the  jurisdictio  metropolitana  is  not  exercisible  in  the 
same  manner  towards  suffragans  as  towards  the  subjects 
of  suffragans.  For,  I,  so  far  as  it  rekr.es  to  suffragans,4' 
this  jurisdiction  is  direct,  immediate,  and  also  ordinary. 
The  metropolitan,  therefore,  is  the  ordinarius^  and  imme 
diate  superior  of  his  suffragans.4"  2.  So  far,  however,  as  the 
authority  of  metropolitans  extends  towards  the  subjects  of 
suffragans,  it  is  only  mediate 49 — i.e.,  exercisible  only  on  ap 
peal,  etc.,  as  was  seen. 

533.  The  Pallium. — It  is  denned  the  chief  ornament  of 
patriarchs  and  archbishops,  and  the  symbol  of  the  plenitude 
of  the  pastoral  jurisdiction  conferred  upon  them  by  the 
Holy  See.60  Its  form  is  that  of  a  stole  or  band  of  white 
wool,  having  a  width  of  about  three  fingers  ;  it  is  worn  over 
the  shoulders,  forming  a  circle  around  the  neck,  and  is  em 
broidered  with  four  or  six  black  or  purple  crosses.51  Moral 
ly,  the  pallium  signifies  the  lost  sheep  carried  back  to  the 
right  path  on  the  shoulders  of  the  loving  shepherd.  We 
ask:  Where  and  when  can  the  pallium  be  worn  by  arch 
bishops?  i.  At  solemn  or  High  Mass  only;"  2,  inside 
every  church,  even  though  exempt,  of  the  •  province ; M  it 
cannot  be  used  outside  the  church  or  in  the  open  air — v.g.,  in 
outdoor  processions.64  3.  Only  on  the  more  solemn  feasts, 
such  as  Christmas,  the  feast  of  St.  Stephen,  St.  John,  Cir- 


44  Craiss.,  n.  836.  45  Ib.,  n.  837.  «'  Phillips,  Kir.benr.,  1.  c.,  p.  821 

48  ReifF.,  lib.  i.,  tit.  xxxi.,  n.  35.  *'  Craiss.,  n.  83-3. 

10  Ib.,  n.  846  ;  cfr.  Phillips,  Lehrb.,  §  130;  Reiff.,  lib.  i.,  tit.  viii.,  n.  2,  3. 
61  Salzano,  lib.  ii.,  pp.  130,  131.  w  Ib.  ;  cfr.  Phillips,  Lehrb.,  p  245, 

M  Archbishops  cannot,  aside  from  a  special  privilege,   wear  the   pallium 
vutsiJe  of  their  provinces.     Cfr.  Reiff.,  1.  c.,  n.  13  ;  cfr.  Cone.  PI.  Bait.  II.,  n.  81. 
•*  Reiff.,  1.  c.,  n.  12-16. 


328      Of  Patriarchs,  Primates,  and  Metropolitans. 

cumcision,  Epiphany,  Palm  Sunday,  Easier,  etc.  ;  also  on  the 
opening  day  of  the  provincial  council.  Titular  patriarchs 
and  archbishops  (i.e.,  those  in  partibus)  do  not  receive  the 
pallium,  since  they  never  reside  in  their  provinces. 

Q.    What  are  archb-'shor-s  forbidden  to. do  before  they 
receive  the  pallium? 

A.  We  must  distinguish  between  the  functions  or 
powers  of  episcopal  jurisdiction  and  those  of  episcopal 
order.  i.  Archbishops-elect,  like  bishops-elect,"  even 
though  not  yet  consecrated  bishops,  can  exercise  full 
jurisdiction  as  Ordinaries  of  their  respective  dioceses  as 
soon  as  they  have  received  and  properly  exhibited  the 
bulls  of  their  appointment."  But  they  cannot,  before  re 
ceiving  the  pallium,  exercise  any  jurisdiction  over  the  pro 
vince,  such  as  convoking  provincial  councils,  receiving 
appeals.  2.  They  can  perform  those  episcopal  functions  of 
order  where  they  vest,  not  in  pontificals,  but  merely,  v.g., 
in  stole,  like  simple  priests,  such  as  consecrating  chalices, 
vestments,  etc.  But  they  cannot,  even  though  already  con 
secrated  bishops,  perform  those  episcopal  functions  of  order 
which  require  the  use  of  pontificals,  such  as  dedicating 
churches  or  conferring  orders.67  Finally,  they  cannot  be 
styled  archbishops  until  they  have  received  the  pallium." 
Observe  that,  at  the  death  of  an  archbishop,  his  perpetual 
coadjutor,  if  he  has  any,  succeeds  ipso  jure—  that  is,  without 
any  new  appointment  from  Rome  or  other  formality — and 
hence  becomes  at  once  the  Ordinary  of  the  diocese,  though 
before  receiving  the  pallium  he  is  under  the  disabilities 
above  mentioned.  However,  the  Holy  See,  when  applied 
to,  easily  allows  archbishops-elect  in  this  country  to  exercise 
all  the  powers  of  archbishops,  even  before  they  receive  the 
pallium. 

*5  Supra,  11.  293.  56  Infra,  n.  616. 

*'  Ferr.,  v.  Archiep.,  art.  iii.,  n.  14.      68  Phillips,  Kirehenr.,  vol.  vi.,  p.  844. 


CHAPTER   V. 

OF   BISHOPS. 

SECTION    I. 
Of  the  Office  anA    Power  of  Bishops  in  General. 

ART.  I. 
Gem*nl  Powers  of  Bishops. 

534.  A  bishop '  (c.piscopus,  pontifex,  summus  sacerdos,  an- 
tistes,  pastor,  angetut,  praesul]  is  defined  :  one  who  has  re 
ceived  the  plenitade  of  the  priesthood  as  instituted  by 
Christ  for  the  government  of  the  Church.*  As  a  portion  of 
the  flock  of  Ch  rst  is  usually  assigned  to  a  bishop,  so  also  a 
special  churc'i  named  cathedral,  is  set  apart  for  him,  where 
he  may,  as  it  urere,  in  his  own  seat  or  cathedra,  exercise  pon 
tifical  funct>  ns.1  The  Pope  alone  can  erect  a  church  into  a 
cathedral  rr  designate  the  limits  of  a  diocese.4  Cathedral 
or  epiv  'pal  sees  should  be  situate  in  the  larger  cities 
only.' 

$35-  Nature  of  the  Episcopal  Power  in  general.— The  power 
ot  bishops,  speaking  in  general,  is  twofold  .  (a)  the  power 
of  order  and  (b)  of  jurisdiction.  Whether  bishops  receive 
their  jurisdiction  immediately  from  God  or  the  Pope  we 
shall  presently  discuss  ( n.  540).  Suffice  it  here  to  say  with 

Phillips,  Lehrb.,  p.  246  ;  cfr.  Ferraris,  V.  Episcopus,  art.  i  ,  n.  1-14. 
'Craiss.,  Elem.,  n.  397.  3  Craiss.,   Man.,  n.  856. 

-Ib  ,  v  t>57  '  Phillips,  I.e.,  p.  248. 

329 


330  Of  Bishops. 

Schmalzgrueber  :*  "  Sed  tenenda  est  tanquam  verissima  sen- 
tentia,  quae  cum  commuui  TT.  et  canonistarum  ait,  potesta- 
tcm  jurisdictionis,  quam  habent  episcopi,  iisdem  dari  im 
mediate  ab  Ecclesia  seu  Romano  Pontifice." 7  Whatever 
opinion  may  be  held,  it  is  certain  that  bishops  cannot 
validly  exercise  any  episcopal  jurisdiction  without'  having 
been  appointed  by  the  Sovereign  Pontiff  to  some  see." 

536.  What  is  meant  in  general,  i,by  the  potcstas  o^Jinis  ; 
2,  the  potestas  jurisdictionis  of  bishops  ?  \.  'T\\e  potcstas  ordi- 
nts,  which  bishops  receive  in  their  consecration  directly  from 
God,'  consists  chiefly  in  the  power  of  administering  the  sa 
craments  of  confirmation  (as  ordinary  ministers)  and  holy 
orders,10  and  of  performing  pontifical  consecrations  and 
blessings.  These  rights  or  powers,  belonging  exclusively 
to  bishops,  are  named  jura  propria."  Powers  which 
priests  hold  in  common  with  bishops  are  called  jura  connnu- 
nia — v.g.,  the  administration  of  baptism,  penance,  and  the 
like.13  2.  The  potestas  jurisdictionis,  which  makes  the  bishop 
the  pastor  and  judge  of  his  diocese,13  includes  the  power  to 
govern  the  whole  diocese ;  the  right  of  visitation  ;  the  legis 
lative,  judicial,  and  executive  authority  ;  the  right  to  erect 
and  confer  parishes,  to  receive  the  customary  revenues, 
to  correct  abuses,  and  decide  causes  ;  14  the  office  of 
preaching;  of  maintaining  the  purity  of  faith  through 
out  the  diocese;  of  providing  lor  the  religious  instruc 
tion  of  the  faithful  in  schools,  colleges,  and  the  like. 
Hence,  wherever  the  civil  government,  either  entirely  or 
even  but  partially,  excludes  the  influence  of  the  Church  from 
schools,  colleges,  etc.,  it  becomes  the  duty  of  bishops  to  en 
deavor,  by  all  means  in  their  power,  to  establish  schools  in 
which  secular  teaching  is  not  opposed  to  the  principles  of 
faith.16 

8  Lib.  i.,  tit.  xxxi.,  n.  26. 

7  Cfr.  Can.  Omnes  18,  dist.  22  ;  Can.  Loquitur  i,  c.  xxiv.,  q.  I. 

*  Bouix   De  Episc.,  vol.  i.,  p.  32.  •  Re  iff.,  1.  c.,  n.  68.  M  Ib.,  n.  6j 

11  Phillips,  Kirchenr.,  vol.  vii.,  p.  51.      "Walter,  p.  273.      "Reiff.,  1.  c.,  n  66. 

14  Phillips,  Lehrb.,  p.  253.  I5  Phillips,  Kirchenr..  vol.  vii.,  pp   44-47. 


Of  Bishops.  33 1 

537.  Q.   Are  bishops  superior  to  priests  ? 

A.  Affirmatively.  This  is  de  fide,  being  thus  defined  by 
the  Council  of  Trent:"  "  If  any  one  s;«i:h  ih  .t  bishops  are 
not  superior  to  priests,  let  him  be  anathema."  It  is  true  that 
in  the  primitive  ages  of  the  Church  bishops  were  not,  in  name 
(quoad  nomeii),  distinguished  from  priests.17  This,  however, 
was  not  owing  to  a  belief  that  priests  were  of  the  same  dig 
nity  with  bishops;  for,  as  to  the  power  or  dignity  (quoad 
reni),  a  distinction  was  always  recognized  between  the  two, 
even  from  the  very  beginning  of  the  Church  and  in  the  time 
of  the  apostles.18 

538.  Q.  In  what  respect  are  bishops,  jure  divino,  superior 
to  priests  ? 

A. — i.  In  the  potestas  ordinis ;  "  for  bishops  can  adminis 
ter  certain  sacraments — v.g.,  orders  and  confirmation — which 
priests  cannot  validly  administer.20  2.  In  \hepotestasjuris- 
dictionis ;  for  Christ  willed  that  dioceses,  and,  therefore,81 
not  only  laics,  but  also  priests  and  ecclesiastics  in  general, 
should,  as  a  rule,  be  governed  by  bishops  as  ordinary 
Dastors. 


ART.  II. 

Are  Bishops  the  Successors  of  the  Apostles  ? — From  whom  do 

Bishops  hold? 

539-  Q-  1°  what  sense  are  bishops  the  successors  of  the 
apostles  ? 

A.— I.  It  is  certain  that,"  in  some  sense,  bishops  are  the 
successors  of  the  apostles ;  but  in  what  sense  ?  Before  an- 

w  Sess.  xxiii.,  can.  vii. ;  ib  ,  cap.  iv. 

"Ferraris,  V.  Episcopus,  art.  i.,  n.  28-32. 

"  Dionysius,  De  Eccl.  Hierarch.,  cap.  iv.,   ap.  Ferraris,  1.  c.,  n.  30. 

w  Craiss.,  n.  861.  w  Bouix,  1.  c.,  pp.  34-4*.  "Th-.  P-  IO* 

9  Cone.  Trid.,  sess.  xxiii.,  cap.  iv. 


33 2  Of  Bishops. 

swering  we  premise :  Three  powers  must  be  distinguished  " 
in  the  apostles:    I,  the  potestas  sacerdotii,  or  the   power  to 
consecrate   the   body  and  blood  of  our    Lord   and  forgive 
sins  ; "'  2,  the  potestas  ordinis  cpiscopalis,  or  the  plenitude  of 
the  priesthood — i.e.,  the  power  to  ordain   priests,  confirm, 
etc  ;    3,  the  potestas  apostolatus — i.e.,  the   power  to  forgive 
sins  everywhere,  appoint  bishops  all  over  the  world,  etc. ; 
in  a  word,  the  power  to  exercise,  subordinately  to  Peter 
jurisdiction  without  any  limit  as  to  place,  persons,  or  mat 
ters   (jurisdictio    univer sails}.™      These    three    powers    were 
given  the  apostles  by  Christ  himself.     II.   Having  premised 
this,  we  reply :   i .  Bishops  are,  as  a  body,  not  as  individuals, 
the  successors  of  the  apostles ;  in  other  words,  the  collegium 
fpiscoporum  succeeded  the   collegium   apostolomm™   •  Hence, 
with  the  exception  of  the  Roman  Pontiff  and  perhaps  the 
Bishop  of  Jerusalem,  no  individual  bishop  can  claim  to  be 
the  successor  of  the  apostles  in  the  sense  that  the  see  occu 
pied  by  him  had  one  of  the  apostles  for  its  first  bishop."     It 
cannot  be  said,  therefore,  that  this  or  that  bishop  is  the  suc 
cessor,  v.g.t  of  Andrew  or  John.      2.   Bishops  are  the  suc 
cessors   of  the   apostles,    as   to  the  potestas  ordinis?*      For 
bishops   have,    by    virtue    of  their   consecration,    the   same 
character  episcopates™  with  the  apostles,  and  hence  the  same 
power  of  order.     3.   Bishops,  moreover,  are  the  successors 
of  the   apostles,  quoad  potestatem  jurisdictionis,   though    not 
quoad  aequalitatem,    but    only    quoad  similitudinem  jurisdic 
tionis.™     We  say,  only  quoad  similitudinem  jurisdictionis,  for 
the  jurisdiction  of  the  apostles,  as  we  have  shown,  was  uni 
versal ;  as  such  it  was  extraordinary,  personal,  and  there 
fore  lapsed  with  the  apostles.     The  jurisdiction  of  bishops, 

**  Suarez,  De  Fide,  part  i.,  disp.  x.,  sect,  i,  2. 

81  Cfr.  Bouix,  1.  c.,  pp.  46,  47.  M  Soglia.  vol.  i.,  p.  265. 

"  Phillips.  Kirchenr.,  vol.  i.,  pp.  176,  177.  *  Bouix,  1.  c.,  p.  48. 

M  Ib.,  p.  53  ;  cfr.  Soglia,  I.e.,  p.  266.  "  Phillips,  1.  c.,  pp.  173,  174. 

*  Reiff. ,  1.  c  ,  n.  76  ;  cfr.  Bouix,  I.e.,  p.  53. 


Of  Bishops.  333 

on  the  other  hand,  is  particular ;  what  the  apostles  could  do 
all  the  world  over  bishops  can  do  only  in  their  respective 
dioceses.31  Hence,  the  authority  of  bishops,  as  we  nave 
said,  is  similar,  but  not  equal,  to  that  of  the  apostles. 

540.  Q.  Do  bishops  receive  jurisdiction32  immediately 
from  God  or  from  the  Pope  ? 

A.  There  are  two  opinions.33  The  first  holds  that  the 
jurisdiction  itself  of  bishops  is  communicated  to  them 
directly  by  God,  and  that  in  their  consecration ;  but  that 
the  exercise  of  jurisdiction  depends  upon  the  authority  of 
the  Roman  Pontiff.  Hence,  according  to  this  opinion,  the 
entire  jurisdictio  episcopalis  is  conferred  upon  bishops  imme 
diately  by  God  ; "  the  assigning  of  territory  and  subjects 
for  the  exercise  of  jurisdiction  belongs  to  the  Pope.35  The 
second  affirms  that  bishops  receive  jurisdiction  itself,  as  well 
as  the  right  to  exercise  it,  immediately  or  directly  from  the 
Pope,  and  that  by  their  appointment  or  preconization.3' 
Observations. — I.  This  question  is  not  one  of  mere  words, 
but  of  very  practical  bearing.  For,  if  the  second  opinion 
be  admitted,  it  follows  that  the  jurisdiction  of  bishops  may 
be  validly  (though  not  licitly)  restricted,  or  even  entirely 
withdrawn,  by  the  Pope  without  a  causa  justa  ;  "  while,  ac 
cording  to  the  first,  such  action  of  the  Pope  would  be  in 
valid  as  well  as  illicit.  2.  It  does  not,  however,  follow  from 
the  second  opinion  that  bishops  are  but  vicars  of  the  Pope  ; 
for  it  involves  no  repugnance  to  say  Christ  willed  that 
bishops  should  hold  directly  of  the  Pope,  and  at  the  same 

81  Phillips,  1.  c.,  pp.  174,  189. 

w  We  say,  jurisdiction ;  for  it  is  certain  that  bishops  receive  the  potestas 
ordinis  directly  from  God,  and  that  in  their  consecration.  (Salz.,  lib.  ii., 

P   I34-) 

33  We   speak   nere  of  jurisdiction  as  vested   in  bishops  individually,  pre 
scinding  from  the  question  as  to  how  jurisdiction  is  conferred  upon  bishops 
as  a  body.     (Craiss.,  n.  868.)  M  Cfr.  supra,  n.  242. 

35  Bouix,  1.  c.,  pp.  55,  56.  "  Cfr.  Salzano,  lib.  ii.,  pp.  134-13? 

"  Bouix,  1.  c.,  pp.  60,  61. 


334  Of  Bishops. 

time  that  the  Pope  should  ordinarily  appoint  bishops  not 
merely  as  vicars  ad  nutum  revocabiles?*  but  as  pastors  who 
should  govern  their  dioceses  proprio  nomine  and  be  irre 
movable  except  for  cause.  3.  Our  Lord,  in  fact,  willed 
that,  as  a  general  rule,  dioceses  should  be  committed  to 
bishops  to  be  governed  by  them  as  ordinary  pastors.  We 
say,  as  a  general  rule  ;™  for,  in  extraordinary  cases — i.e.,  ex 
ceptionally  and  for  just  cause— the  Pope  may  entrust  the 
government  of  this  or  that  diocese  to  a  priest,  vicar-apos 
tolic,  or  chapter ; 40  but  he  cannot  simultaneously  depose  all 
the  bishops  of  the  world,  and  rule  all  the  dioceses  of  Chris 
tendom  by  vicars  or  delegates.41 

541.  Q.  Have  bishops  immediate  or  but  mediate  jurisdic 
tion  over  the  members  of  their  dioceses  ? 

A.  Some  writers  erroneously  assert  that  parish  priests, 
not  bishops,  have,  jure  divino,  the  direct  charge  or  care  of 
the  faithful ;  that  bishops,  in  consequence,  are  merely  to  see 
that  parish  priests  fulfil  their  parochial  duties,  and,  if  need 
be,  to  remedy  the  negligence  of  pastors."  That  this  is  false 
appears,  i,  from  the  fact  that  parish  priests  are  of  ecclesiasti 
cal  institution  only,  did  not  exist  prior  to  the  fourth  century, 
and  therefore  have  not,  jure  divino,  the  immediate  care  of 
souls.  Bishops  alone,  in  the  first  ages  of  the  Church,  either 
personally  or  through  others,  exercised  the  cur  a  animarum. 
2.  Again,  it  is  admitted  that  a  bishop  may,  even  without  the 
consent  of  the  pastor,  either  personally  or  through  others, 
perform  parochial  functions — v.g.,  preach,43  baptize,  hear 
confessions,  celebrate  marriages,  etc.,  in  every  church  and 
parish  of  his  diocese.  3.  Nay,  he  may  order,  even  against 
the  wish  of  the  parish  priest,  extraordinary  exercises  to  be 
held  in  a  parish,  such  as  retreats,  missions,  and  the  like.44 


Bouix,  1.  c.,  pp.  76,  77.  »  Ib.  ;  cfr.  Cone.  Trid.,  sess.  xxiii.,  cap.  Ir. 

Ib •»  1   c.,  p.  82.  41  Ib.,  p.  109;  Craiss.,  n.  880. 

Cra-V--..  n.  873.  "  Ib.  **  Ib.,  n.  874- 


Of  Bishops.  335 

Now,  all  this  necessarily  supposes  that  he  has  immediate 
jurisdiction  throughout  his  diocese.  What  has  been  said 
applies,  a  fortiori,  to  the  United  States.  As  a  rule,  two 
bishops  cannot  be  placed  over  the  same  diocese.  We  say, 
as  a  ride ;  the  exceptions  are:  I.  Where  the  faithful  are  of 
different  rites  or  have  different  languages.45  Where  the 
faithful  are  merely  of  different  nationalities,  the  bishop 
should  appoint  a  special  vicar-general  or  secretary  for  those 
of  a  different  nationality.  2.  Where  a  coadjutor  is  given  to 
a  bishop  who  is  sick  or  otherwise  disabled. 

542.  Q.  What  constitutes  the  essence  of  the  episcopate? 

A.— i.  It  is  of  faith  that  the  sacerdotium  pertains  to  the 
essence  of  the  episcopal  office.46  No  one  but  a  priest  can  be 
a  bishop.  Hence,  no  layman,  or  even  deacon,  elected  as 
bishop,  was  ever  regarded  as  a  true  bishop  except  after 
being  ordained  a  priest.  2.  Not  only  the  sacerdotium,  but 
the  plenitude  sacerdotii,  is  essential.  For  bishops,  as  we  have 
seen,  are,  jure  divino,  superior  to  priests,  potestate  ordinis. 
The  sacerdotium  of  bishops,  therefore,  is  fuller  and  more  per 
fect  than  the  sacerdotium  of  priests,  and  is  properly  termed 
the  fulness  or  complement  of  the  priesthood  (plenitude 
sacerdotii').*''  3.  The  plenitude  sacerdotii  essential  to  the  epis 
copate  is  the  plenitude  sacerdotii  not  merely  as  directed  to 
the  exercise  of  the  potestas  ordinis"  but  as  ordered  to  the 
exercise  of  the  potestas  jurisdictions  or  the  government  of 
the  Church.  4.  Hence,  the  episcopal  dignity  is  correctly 
denned  :  The  plenitude  of  the  priesthood,  as  instituted  by 
Christ  for  the  government  of  the  Church.49  The  above  re 
marks  will  also  explain  the  definition  of  a  bishop  given 
by  us.00 

"  Craiss.,  n.  878,  879.  48  Bouix,  I.  c.,  p.  8q. 

47  Cfr.  Cone.  PI.  Bait.  II.,  n.  82.  *"  Bouix,  1.  c.,  pp.  89,  go, 

4»Ib.,p.  91.  «•  Supra,  n.  534. 


336 


Of  Bishops. 


SECTION   II. 
Of  the  Rights  and  Duties  of  Bishops  in  Particular. 

543.  Some  of  these  rights  and  duties  emanate  from  the 
potestas  ordinis,  and  are  divided  into  jura  ordinis  communia— 
v.g.,  the  administration  of  penance,  the  care  of  souls,  and 
into  jura  ordinis  reservata  or  propria — v.g.,  the  conferring  of 
orders;  others  from  the  potestas  jurisdictions  —  v.g.,  the 
legislative,  judicial,  and  executive  authority.51  We  pass  to 
the  several  duties. 


ART.  I. 
Duty  of  Residence — De  Obligations  Residendi. 

544.  In  order  that  bishops  may  be  able  to  properly  dis 
charge  their  duties,  they  are,  even  though  they  be  cardinals, 
bound,  at  least B2  jure  ecclesiastico,  to  reside  in  their  dioceses. 
The  residence  to  which  they  are  obligated  is  therefore  not 
merely  a  material  and  otiose,  but  a  formal  and  laborious, 
residence" — i.e.,  they  are  bound   not  only  to   live  in  their 
dioceses,  but  also  to  discharge  their  duties  therein."     The 
bishop  fulfils  the  precept  of  residence  by  residing  in  any  part 
of  his  diocese  ; "  he  is  not  obliged  to  live  in  his  episcopal 
city,  though  he  should  not  remove  from  it  his  vicar-general 
or  tribunal." 

545.  How   long  and  for  what   causes  Bishops  may  absent 
themselves   from   their   dioceses. — 1.    Bishops    may,    for    just 
causes,  and  when  it  can  be  done  without  detriment  to  their 
flocks,   be  absent   from  their  dioceses  three  months  every 

61  Gerlach,  Lehrb.,  pp.  312-320.  M  Craiss.,  n.  882 

68  Bouix,  De  Episc. .  vol.  ii.,  p.  5. 
M  Cfr.  Cone.  Trid.,  sess.  xxiii.,  cap.  i.,  d.  R. 

**  Thus,  the  Council  of  Trent  says  that  bishops  are  bound  to  personal  resi 
dence  "  in  sua  erclesia  -r/  ciiot-cesi  "  (1.  c.)  •*  Rouix,  1.  c.,  pp.  5,  6. 


Of  Bis  hops.  337 

year,  either  continuously  or  interruptedly,"  and  without 
any  permission  whatever,  whether  from  the  Holy  See  or 
the  metropolitan.68  We  said  above,  for  just  causes.  Some 
canonists '""  consider  the  need  of  mental  relaxation  a  suffi 
cient  cause  for  an  absence  of  three  months ;  others  for  but 
one  month.  This  absence  should  not  occur  during  Advent 
or  Lent,  or  on  Christmas,  Easter,  Pentecost,  and  Corpus 
Christi.60  II.  At  times  bishops  may,  for  certain  causes,6'  be 
absent  more  than  three  months  in  the  year.  Now,  what  are 
these  causes?  I.  Christian  charity  ^Christiana  caritas]— v.g., 
to  convert  heretics,  establish  peace  "  among  Christian  rulers. 
2.  Urgent  necessity  (iirgcns  ncccssitas) — v.g. ,  if  a  bishop  is 
persecuted  or  obliged  by  reason  of  ill  health  to  change  cli 
mate."  3.  Obedience  due  others  (pbedientia  dcbitd] — v.g.,  if 
a  bishop  is  called  away  by  his  lawful  superior,"  v.g.,  by  the 
Pope.  4.  The  evident  utility  (evident  utilitas)  of  the  Church 
or  the  commonwealth — v.g.,  the  attending  general  or  pro 
vincial  councils,  or  even  civil  diets,86  such  as  Parliament, 
Congress,  etc.  The  Pope's  permission  in  writing  is,  as  a 
rule,  requisite  in  all.  these  cases."  III.  They  may,  however, 
without  the  express  permission  of  the  Holy  See,  be  absent 
nore  than  three  months  in  the  year  for  the  following  causes : 
I.  In  order  to  pay  their  prescribed  visit  to  the  Apostolic 
See  (ad  visit anda  sacra  limina).  If  their  diocese  is  in  Italy, 
they  may  be  absent  four  months ;  if  out  of  Italy,  seven 
months.  2.  To  be  present  at  oecumenical  or  provincial 
councils.  3.  To  assist  at  the  conclave"  (in  case  they  are 
cardinals).  We  said  above,  without  the  express  permission; 
for  it  is  evident  that  the  implicit  permission  is  contained  in 

*"  Cone.  Tnd.,  sess.  xxiii.,  cap.  i.,  d.  R.  **  Craiss.,  n.  887. 

**  Ferraris,  V.  Episcopus,  art.  iii.,  n.  29. 

*  Bouix,  I.  c.,  p.  8  ;  cfr.  Cone.  Trid.,  1.  c  "  Cone.  Trid.,  1.  c. 
n  Salzano,  lib.  H.,  pp.  147,  148. 

M  Phillips,  Lehrb.,  pp.  155,  156,  n.  18-23.  **  Ferraris,  1.  c.,  a.  & 

•  Ib.,  n.  7,  8.  "  Craiss.,  n.  800.  "  Jb. 


Of  Bishops. 

the  very  cause  of  the  absence.     These  three  cases  may  also 
be  said  to  be  included  in  the  debita  obcdicntia." 

546.  Q.  Is  a  bishop  excused  from  the  duty  of  residence 
on  account  of  the  danger  of  contracting  a  contagious  dis 
ease  ? 

A.  He  is  not,  even  though  he  has  a  coadjutor.  Although 
he  cannot  leave  his  diocese  during  a  pestilence  or  other 
contagious  disease  (tempore  pestis}?*  yet  he  may  remain  in 
those  parts  of  the  diocese  which  are  safer  and  less  exposed 
to  the  contagion.70 

547-  Q.  Within  what  time  are  newly-appointed  bishops 
bound  to  proceed  to  and  take  up  their  residence  in  their 
diocese  ? 

A.  Those  who  are  at  the  Roman  court  must  do  so  with- 
in  a  month  from  the  day  of  their  promotion  ; "  those  who 
live  in  Italy,  but  out  of  Rome,"  within  two  months;  others, 
finally,  who  dwell  out  of  Italy,  within  four  months." 

548.  Q.  What  penalties  are  incurred  by  bishops  who  vio 
late  the  law  of  residence  ? 

A.  Besides  committing  a  mortal  sin,  they  forfeit  the 
fruits  of  their  benefice74  (with  us,  their  income  as  bishops— 
*>.,  their  salary)  in  proportion  to  the  time  of  their  ab 
sence;76  hence,  they  cannot  retain  such  income  or  salary, 
but  are  bound,  or  in  their  default  their  ecclesiastical  supe- 
rior  (i.e.,  the  metropolitan76)  for  them,  to  apply  them  (i.e., 
fruits,  salary)  to  the  fabric  of  the  churches  or  to  the  poor  of 
the  place— />.,  of  the  diocese.77  This  penalty  is  latae  senten- 
But  if  a  bishop  is  unlawfully  absent  more  than  a  year, 
the  metropolitan  must  denounce  him  to  the  Roman  Pontiff' 

"  Ferraris,  1.  c.,  n.  7,  8.  9  ;  cfr.  Salzano,  1.  c.,  p.  148. 

-  Ferraris,  1   c.,  art.  iii.,  n.  12,  13.        «  Bouix,  DC  Episc.,  vol.  ii,  pp.  16,  17. 
1  Ib.,  pp.  17,  18.  »  Cfr  Craiss..  n.  893.  »  Cfr.  Ferraris,  I.  c.,  n   r3. 

Izano,  I.  c.,  p.  149.  «  Phillips,  Lehrb'.,  p.  156.  «  Ib. 

Cone.  Trid.,  sess.  xxiii.,  cap.  i.,  d.  Ref.  ;  cfr.  ib.,  sess.  vi.,  cap.  i.,  d.  Ref. 
**  Salzano   1.  c.,  p.  149. 


Of  Bishops.  339 

either  by  letter  or  messenger,79  within  the  space  of  three 
months,  so  that  the  Pope  may  proceed  against  the  said  non 
resident  prelate,  and  even  depose  him.5"1  If  the  metropolitan 
himself  be  thus  absent,  he  must  be  denounced  by  the  oldest 
resident  suffragan  bishop.  The  precept  of  residence  is  un 
doubtedly  also  obligatory  on  the  bishops  of  the  United 
States.81 

549.  Q.  Can  bishops  in  the  United  States  absent  them 
selves  from  their  dioceses  more  than  three  months  in  the 
year  with  the  permission  merely  of  the  metropolitan,  or,  in 
his  absence,  of  the  oldest  resident  suffragan  bishop,  but 
without  that  of  the  Pope  ? 

A.  They  cannot.  The  Council  of  Trent,52  it  is  true,  en- 
icted  that  the  permission  of  the  Pope  or  metropolitan  was 
required  ;  but  herein  the  council  was  amended  by  Pope 
Urban  VIII.,83  who  decreed  that  the  Roman  Pontiffs  alone 
could  give  the  requisite  permission.84  Father  Konings/' 
however,  maintains  the  contrary  ;  the  distinguished  moralist 
quotes,  in  favor  of  his  opinion,  decree  91  of  the  Second 
Plenary  Council  of  Baltimore,  which  simply  contains  or 
gives  the  Tridentine  decree  on  residence,  without  the 
emendation  of  Urban  VIII. 


ART.    II. 

Duty  of  Visiting  the  Diocese  ("  De  Episcopali  Dioecesis  Visit  a- 

tione."} 

550.    Definition   and    Object   of   Episcopal    Visitations. — A 
bishop,  in  order  to  be  able  to  properly  govern  his  diocese, 

"  Phillips,  1.  c.  "°  Ferraris,  V.  Episcopus,  art  iii.,  n.  35,  36 

"  Cone.  PI.  Bait.  II.,  n.  191  ;  cfr.  Cone.  PI.  Bait.  I.,  n.  5. 

"*  Sess.  xxiii.,  cap    i.,  d.  R. 

"'  Cpnst.  Simla  Syn  ,   1634  ;  cfr.  Craiss.,   n.  889. 

81  Bouix,  1.  c  ,  p.  1 6.  "5  TheoL  Mor,  n.  1134  (4') 


340  Of  Bishops. 

and  report  correctly  to  the  Holy  See  80  when  he  pays  his 
visit  ad  sacra  limina,  should  be  well  informed  of  the  state  of 
his  diocese.  Now,  he  can  best  inform  himself  on  this  head 
by  travelling  over,  his  diocese,  and  thus  personally  inspecting 
the  condition  of  its  various  churches  (visit atio  cpiscopalis). 
In  the  East,  bishops  from  the  earliest  times  deputed  priests 
(visitatorcs]  to  make  the  visitation  ;  while  in  the  West  bi 
shops  were  already,  in  the  sixth  century,  obligated  to  per 
sonally  traverse  or  visit  their  dioceses.  These  visitations, 
which  had,  to  some  extent,87  fallen  into  desuetude,  were  re 
established  by  the  Council  of  Trent,88  and  made  obligatory 
on  bishops  and  others  having  the  right  to  make  visitations. 
The  object  of  visitations  is  chiefly  to  maintain  sound  doc 
trine  and  preserve  good  morals,  correct  abuses,  etc.  . 

551.  Q.  Who  have  the  right  to  make  visitations? 

A.  All  ecclesiastical  prelates  who  have  jurisdictio  ordi- 
naria  over  persons/'  The  vicar-capitular,  sede  vacante,  also 
has  this  right.90  The  vicar-general,  however,  has  no  such 
right,"  except  when  specially  commissioned  to  that  effect  by 
the  bishop.  Bishops  are  obligated  to  visit  their  dioceses 
personally,"  unless  they  are  lawfully  hindered  from  doing 
so — v.g.,  by  sickness.  How  often  is  a  bishop  bound  to  visit 
his  diocese?  A  bishop  not  only  can,  but  is  obligated,  either 
personally  or  through  others,  whether  priests  or  deacons,  to 
visit  once  every  year,  or,  if  his  diocese  be  very  large,  once 
every  two  years,  his  entire  diocese  and  its  churches.93 

552.  Q.  Are  bishops  in  the  United  States  bound  to  visit 
their  dioceses?     How  often? 

A. — i.  They  are :  "  Meminerint  episcopi  se  dioeceses  suas 
visitare  districte  teneri,  non  solum  ut  confirmations  sacra- 
rnentum  administrent,  verum  etiam  ut  gregem  sibi  creditum 

"  Phillips,  Lehrb.,  p.  255,  §  135.  "  Ib.,  pp.  256,  257. 

*  Sess.  xxiv.,  cap.  iii.,  d.  Ref.  **  Ferraris,  V.  Visitare,  n.  I,  2 

*•  Ib.,  n.  9.  *'  Ib.,  n.  19.  M  Soglia,  vol.  ii.,  p.  16. 

•*  Ferraris,  1.  c.,  18 


Of  Bishops.  34 i 

bene  cognoscant."94  2.  They  are  bound,  according  to  the 
Third  Plenary  Council  of  Baltimore"  to  visit  their  whole  dio 
cese  at  least  once  every  three  years.  Where  the  common  law 
of  the  Church  obtains  on  this  point — that  is,  the  c.  3,  C. 
Trid.,  sess.  xxiv. — bishops  are  bound  to  visit  their  entire 
diocese  at  least  once  Gy£Lg_£ui&ji£azs^ 

553-  Q-  What  persons  and  places  are,  in  general,  visit 
able  by  the  bishop  ? 

A.  Visitations  are  of  two  kinds,  personal  and  local.  The 
first  (yisitatio  personalis]  is  an  examination  into  the  conduct 
of  persons,  etc.  ;  the  second  (yisitatio  realis  or  localis],  into 
the  condition  of  churches,  into  the  administration  of  church 
property,  etc.97  Having-  premised  this,  we  answer :  I.  The 
following  persons  are  subject  to  personal  visitations  :  all  the 
faithful,  but  especially  the  entire  secular  clergy  of  the  dio 
cese  ; 9S  also  regulars,  in  matters  pertaining  to  the  care  of 
souls.  Hence,  regulars  who  have  charge  of  congregations 
may  be  corrected  by  the  bishop,  if  they  neglect  any  of  their 
parochial  duties.  II.  The  following  places  are,  as  a  rule, 
subject  to  local  visitations  :  i .  All  church  edifices  within  the 
diocese.99  2.  All  other  ecclesiastical  institutions — v.g.,  hospi 
tals,  asylums,  protectories.100  3.  As  to  exempt  places— v.g., 
monasteries  where  the  monastic  discipline  is  transgressed— 
the  bishop  can  only  urge  the  regular  superior  to  correct 
such  abuses  and  cause  the  rules  of  the  institute  to  be  ob 
served  ; ""  and  if,  within  six  months,  the  regular  superior 
fails  to  visit  and  correct  his  delinquent  subjects,  the  bishop 
can  do  so,  if  the  monastery  is  snh  commenda™  4.  Regulars  liv 
ing  permanently  out  of  their  monasteries  are  visitable  by  the 
bishop.103  5.  Convents  of  non-exempt  nuns  are  in  every  re- 

"  Cone.  PI.  Bait.  II.,  n.  86.  "  C.  PL  Bait.  III.,  n.  18. 

96  Bouhc,  1.  c.,  p.  25  ;  cfr.  Craiss.,  n.  900,  901.         97  Soglia,  1.  c.,  p.  17. 
>*  Ib.;  cfr.  Salzano,  lib.  ii.,  p.  149.  W  Phillips,  1.  c.,  p.  257. 

100  Soglia,  I.  c  ,  pp.  17,  18.  '"  Phillips,  1.  c.,  pp   257,  258. 

HJ  Cone.  Trid.,  sess.  xxi.,  cap.  viii.,  d.  R.  ""  Craiss.,  n  903. 


342  Qf  Bishops. 

spect  subject  to  the  episcopal  visitation  ; I04    this  applies  to 
all  female  religious  communities  in  the  United  States. 

554-  Q-  What  are  the  various  things  to  be  inspected  or 
enquired  into  during  the  episcopal  visitation  ? 

A.— i.  Ecclesiastical  places  (loca)—v.g.,  church  edifices; 
2,  ecclesiastical  things  (res)—v.g.,  tabernacles,  baptismal 
fonts,  missals,  vestments,  and  the  like,  in  churches  ;  3,  the 
official  conduct  of  clergymen  in  charge  of  congregations. 
The  bishop  should,  therefore,  see  whether  pastors  and  assis 
tants  properly  discharge  their  functions  (munerd)  as  regards 
the  administration  of  the  sacraments,  of  church  property, 
and  the  like;  4,  the  private  conduct  or  the  morals  of  the" 
;  clergy  and  laity  (pcrsonac)™* 

555.  Q.  Is  an  appeal  admissible  against  the  acts  and  de 
crees  of  the  bishop  on  visitation  ?  What  is  to  be  done  after 
the  visitation  is  finished  ? 

A.— i.  The  episcopal  visitation  should  be  a  paternal  ex 
amination  into  the  state  of  parishes  and  other  ecclesiastical 
institutions  of  the  diocese  ; I06  hence,  he  should  dispense  with 
formal  trials  and  judicial  penalties.  But,  it  he  proceeds 
judicially,  or  inflicts  regular  penalties,  as  dismissal  from 
parish,107  an  appeal  lies,  even  in  suspensive;  otherwise, 
only  in  devolutivo™  2.  After  the  visitation,  an  authentic  ac 
count  of  it  should  be  drawn  up,108  to  enable  the  bishop,  in  his 
visitatio  sacrorum  liminum,  to  give  the  Pope  an  accurate  re 
port  of  the  state  of  the  diocese.110  3.  The  bishop-,  cannot 
receive  anything  for  the  visitation,  save  food  or  hospitality1" 
(procuratio,  victualing  ;  and  in  places  where  it  is  the  custom 

*"  Bouix,  1.  c.,  p.  31.         106  Phillips,  Lehrb.,  p.  258  ;  cfr.  Salzano,  I.  c.,p.  149. 

108  Phillips.  1    c.  1OT  Bouix,  de  Episc.,  t.  2.  p.  35.         I08  Supra,  n.  447. 

109  Craiss.,  n.  914.  "«  C.  PI.  Bait.  III.,  n.  18;  Phillips,  1.  c.,  p.  255. 

11  Or  its  equivalent  in  money,  where  those  who  are  visited  prefer  giving 
money  rather  than  hospitality.      (Soglia,  1.   c.,  p.   '9;   cfr  Cone.  Trid.,  ses*. 
ir.,  cap.  iii.,  d.  R.) 


Of  Bishops.  343 

that  nothing  whatever  be  received  by   him,  such  custom 
should  be  observed.     (See  C.  PL  Bait  III.,  n.  18.) 

ART.  III. 
Of  the  Obligation  Incumbent  on  Bishops  to  Visit  the  Holy  See. 

556.  The  duty  resting-  on  bishops   to  make  the  visitatio 
liminum  consists  chiefly,1"  i.  in  the  visit  itself,  or  journey  to 
the  Holy  See;  2,  in  their  submitting  to  the  Pope  an  accu 
rate  statement  of  the  condition  of  their  dioceses  (rclatio  status 
Ecclesiae}.     By  the   limina   apostolorum  we    mean    the  place 
where  the  Pope  resides.  n      What  persons   are  obliged    to 
make  the  visit  ad  limina  ?     It  is  certain  that,  at  the  present 
dav,  patriarchs,   primates,   archbishops,  and    bishops,   even 
though  they   be  cardinals,1"  are  bound,  sub  gravi,  to  make 
the  visitatio  sacrorum  liminum  at  stated  times.      The  bish 
ops  of  the  United  States  are  obliged  to  make  this  visitatio 
every  ten  years,  as  was  seen.     These  ten  years  must,  in  all 
cases,  be  computed  from  the  day  on  which  the  Const.  Ro- 
manus  Pontifex  of   Sixtus   V.  was  published,  namely,  from 
December  20,    1585.     Again,  the   visitation   need    be   made 
but  once  within  every  given  space  of  ten  years  from  Decem 
ber  20,  1585.     For  the  principal  object  of  the  visitation  is  to 
make  a  full  report  to  the  Holy  See  once  every  ten  years  of 
the  state  of  the  diocese.     Consequently  once  this  decennial 
report  has  been  made  during  the  respective  decennial  term, 
•v.g.,  during    the    term   beginning  with   December  20,   1885, 
and  ending  with  December  20,   1895,  it  need  not  be  made 
over   again  during   the  same  decennary.1" 

ART.  IV. 

Duties  of  Bishops  in  regard  to  the  Management  of  Ecclesiastical 
Seminaries — Of  Seminaries  in  thi  United  States. 

557.  The  supervision  of   seminaries  is  one  of   the  chief 
duties  of   bishops.     The  history  of  episcopal  seminaries  is 
divided  chiefly  into  two  periods :  one  prior,  the  other  sub- 

ns  Ferraris,  V.  Limina  Apostolorum,  n.  9.      m  Ib.,  n.  29.     m  Ib.,  n.  5,  30. 
116  Inst.  S.  C.  de  Prop.  Fide,  June  i.  1877:  Cone.  PI.  Bait.  III.,  n.  13.  17. 


344  Of  Bishops. 

sequent,  to  the  Council  of  Trent."8  I.  Episcopal  Seminaries 
before  the  Council  of  Trent. — Seminaries — i.e.,  houses  set 
apart  for  the  education  of  youths  wishing  to  embrace  the 
ecclesiastical  state — are  traced  by  some  canonists119  to  the 
very  beginning  of  the  Church ;  by  others  to  the  Council  of 
Nice  (A.D.  325)  ;  and  by  several  to  St.  Augustine,  who,  ac 
cording  to  Phillips,12"  had  set  apart  a  place  in  his  episcopal 
residence,  where  youths  were  brought  up  for  the  priest 
hood.  That  seminaries  existed  already  in  the  sixth  century 
is  indisputable.121  Thus,  the  Second  Council  of  Toledo,'"  in 
Spain,  ordained  that  boys  dedicated  by  their  parents  to  th< 
service  of  the  Church  should  be  brought  up  under  the 
tuition  of  a  director,  in  a  house  belonging  to  the  cathedral, 
and  under  the  eye  or  supervision  of  the  bishop.1"  Nay,  it  is 
certain  that,  in  the  sixth  century,  youths  destined  for  the 
sacred  ministry  were  educated  for  the  priesthood  not  only 
in  episcopal  colleges  or  seminaries,  but  in  every  parish 
priest's  house.  This  was  the  custom  throughout  almost  the 
entire  Latin  Church.124  Episcopal  seminaries,  which  had, 
since  the  eighth  century,  come  to  be  superseded  by  univer 
sities,125  were  re-established  and  placed  on  a  more  solid  foot 
ing  by  the  Council  of  Trent.  II.  Seminaries  after  the  Coun 
cil  of  Trent. — By  seminaries  we  mean,  at  present,  schools  or 
colleges126  where  youths  destined  for  the  priesthood  are 
maintained,  educated  religiously,  and  trained  in  ecclesiasti 
cal  discipline.1" 

118  Phillips,  K.  R  ,  vol.  vii. ,  p.  90;  cfr.  our  Notes,  n.  148-155. 

119  Salzano,  lib.  iii.,  p.  186.  "°  L.  c.,  p.  95. 
131  Craiss.,  n.  924  ;  cfr.  Devoti,  lib.  ii.,  tit.  xi.,  n.  i,  note  3. 

m  Cone.  Tolet.  II.,  AD.  531  ;  cfr.  Cone.  Tolet.  IV.,  A.D.  633  ;  cfr.  Thomas- 
sinus,  Vetus  et  Nova  Ecclesiae  Disciplina,  part  i..  lib.  iii.,  cap.  v.;  part  ii.,  lib. 
i.,  cap.  cii.  Lucae,  1728. 

IS3  Phillips,  1.  c.,  pp.  95,  96.  The  words  of  the  Council  are  :  Debt-ant  [i.e., 
the  boys]  erudiri  in  domo  Eccl,:siae,  sub  episcopali  praesentia  a  pratposito.  (Cfr. 
Craiss..  1  c.)  m  Salzano,  1.  c.,  p.  186  ;  cfr.  Cone.  Vasense  II.,  A.D  529. 

'"Bouix.l  c.,  p.68.         IMIb.       I37  Cone.  Trld..  sess.  xxiii  , cap  xviii  ,  d.  Re- 


Of  Bishops. 

558.  Q.  What  are  the  principal  enactments  of  the  Coun 
cil  of  Trent  in  regard  to  seminaries  ? 

A.— i.  A  bishop  may  have  several  seminaries;  but  he  is 
bound  to  have  at  least  one,  unless  the  poverty  of  the  diocese 
makes  it  impossible.  2.  A  common  seminary  should  be 
established  by  the  provincial  council  for  those  dioceses 
which,  on  account  of  poverty,  cannot  have  their  own.  3. 
Those  only  should  be  received  into  seminaries  whose  char 
acter  and  inclination  afford  a  hope  that  they  will  always 
serve  in  the  ecclesiastical  ministry.  Hence,  colleges  where 
ecclesiastical  students  are  educated  promiscuously  with 
secular  students  are  not  seminaries  in  the  Tridentine  sense 
of  the  term.  4.  Not  only  students  of  theology,  but  also  ol 
classics,  should  be  admitted.  5.  Youths  to  be  received 
should  be  at  least  twelve  years  old  and  should  at  once  wear 
the  clerical  dress.1''" 

559.  Management  of  Seminaries. — Three  committees  are 
to  be  appointed  :  one  for  the  spiritual,  two  for  the  temporal 
administration.1''9      i.  The  committee  on  the  spiritual  direc 
tion  of  the  seminary  consists  of  two  canons  of  the  cathedral 
chapter,  chosen  by  the  bishop.     The  bishop  is  obliged  I3I>  to 
hear  the  advice  of  this  committee  or  commission,  in  regard 
to  the  following  matters  chiefly  :  The  laying  down   of  the 
general   rules  for  the  seminary  ;   the  admission  of  alumni ; 
the  choice  or  selection  of  the  books  to  be  used  ;  the  punish 
ment  of  delinquents  ;  the  appointment  and  removal  of  pro 
fessors,  confessors,  and  the   like.131     2.   The   first  committee 
on  temporal  management  of  the  seminary  is  composed  of 
four    members— namely,    of  two    canons,    one    of  whom    is 
chosen  by  the  bishop,  the  other  by  the  chapter  ; l32  and  of 
two  clergymen  of  the  city,  one  of  whom  is  selected  by  the 

""  Cone.  Trid.,  1.  c.  ;  cfr.  Bouix,  1.  c.,  pp.  69,  70,  71. 

"'  Bouix,  De  Capitulis,  p.  424      Paris,  1862.  "°  Craiss.,  n.  929. 

'"  Bouix,  1.  c.,  pp.  430,  431.  I:'2  Ib .,  p.  433  seq. 


346  Of  Bishops. 

bishop,  the  other  by  the  clergy  of  the  who*e  diocese.  The 
bishop  is  bound  to  hear  the  advice  of  this  committee,  chiefly 
on  these  matters :  '3  The  contributions  or  assessments  to  be 
made  for  the  support  of  the  seminary ;  the  daily  or  current 
expenses  of  the  seminary ;  the  administration  of  the  entire 
property  and  income  of  the  seminary  ,  in  a  word,  the  whole 
temporal  management.134  The  second  committee  on  tempo 
ral  management  is  also  made  up  of  four  members,  two  of 
whom  are  selected  by  the  chapter  and  two  by  the  clergy  of 
the  city.  It  is  a  sort  of  auditing  committee,  and  should  be 
present  when  the  administrators  of  the  seminary  hand  in 
their  annual  financial  statement  to  the  bishop."6  Observa 
tion. —  i.  The  bishop  is  obliged,  even  for  the  validity  of  his 
acts,  to  hear  the  advice  of  these  committees  ;  but  he  is  not 
bound  to  follow  it.  2.  The  members  of  the  first  and  second 
committees  are  irremovable  except  for  cause. 13e 

560.  Q.  Can  bishops  place  religious  communities  in 
charge  of  seminaries  ? 

A.  They  can,  under  certain  conditions.  We  say,  under 
certain  conditions;'"'''  for  religious  congregations  do  not,  as  a 
rule,  undertake  the  direction  of  seminaries,  save  on  con 
dition  I3"  that  their  superior-general  shall  have  the  right  to 
appoint  the  rector  and  the  professors  ;  that  they  shall  be 
allowed  to  manage  the  seminary  without  any  of  the  above 
committees  ;  finally,  that  the  government  of  the  seminary 
cannot  be  taken  from  them  except  for  cause.  Now,  all 
these  conditions  are  evidently  contrary  m  to  the  above-men 
tioned  enactments  of  the  Council  of  Trent.  As  bishops 
have  no  power  to  derogate  from  the  jus  commune — i.e.,  the 
Tridentine  decrees — it  follows  that  seminaries  can  be  given 

133  Bouix,  p.  438  ;  cfr.  ib.,  De  Episc.,  vol.  ii.,  pp.  71.  72. 

134  Craiss  ,  n.  930;  cfr.  Soglia,  vol.  ii.,  pp.  282-284. 

*"  Tone.  Trid  ,  sess.  xxiii.,  cap.  xviii.,  d.  Ref.  m  Craiss.,  n.  933,  935. 

137  Ib.,  n.  935.  '•*  Bouix,  De  Capitulis,  p.  443  seq. 

'**  Bouix,  DC-  Episc..  vol.  ii.,  p.  73. 


Of  Bishops..  -4- 

over  to  religious  congregations  only  by  authority  of  the 
Holy  See.  When,  therefore,  a  bishop  wishes  to  entrust  the 
direction  of  a  seminary  to  a  religious  body,1'"  he  should 
enter  into  an  agreement  with  the  regular  prelate  of  the 
order  or  the  superior  of  the  congregation  ;  the  articles  of 
agreement  should  then  be  sent  to  the  5.  Congr.  Concilii  (with 
us,  to  the  Propaganda);  and,  when  approved  by  this  tri 
bunal,  they  become  permanent  law,  from  which  neither  the 
bishop  nor  his  successors  can  recede.141 

|3!F°  561.  Q.  What  are  the  chief  enactments  of  the  Third 
Plenary  Council  of  Baltimore  respecting  seminaries  in  the 
United  States?  « 

A.  We  premise  :  With  us  there  are  two  kinds  of  semina 
ries — namely,  major  and  minor.  In  the  former  philosophy 
and  theology,  in  the  latter  classics  are  taught.1"  As  a  mat 
ter  of  fact,  but  few  preparatory  or  small  seminaries  exist,  the 
classics  being  frequently  learned  by  youths  studying  for  the 
priesthood,  in  colleges  or  institutions,  which,  though  under 
the  direct  control  of  bishops  and  priests,  serve  chiefly  for 
the  education  of  secular  students.  Again,  prior  to  the  Third 
Plenary  Council  of  Baltimore  there  were  no  committees ;  the 
bishop,  rector,  or  procurator  conducted  the  temporal  as  well 
as  the  spiritual  administration. 

562.  We  now  answer:  i.  Every  diocese  should,  ii  possi 
ble,  have  its  own  major  and  minor  seminarv  set  apart  exclu 
sively  for  the  education  of  ecclesiastical  students.  Where 
this  is  impossible,  one  higher  and  one  preparatory  seminarv 
should  be  established  in  each  province.1'3  However,  the  Third 
Plenary  Council  allows  young  men  studying  for  the  priest 
hood  to  study  their  classics  at  secular  colleges,  wherever, 
owing  to  want  of  means,  small  or  preparatory  seminaries, 
which  are  exclusively  for  ecclesiastical  students,  cannot  as 
yet  be  erected.144  2.  In  the  preparatory  seminaries  (where 
they  exist),  the  course  of  studies  shall  not  be  less  than  six 

110  Cfr.  Cone.  PI.  Balr.  II.,  n.  408.  141  Crai*s..  n.  935. 

142  C.  PI,  Bait.  II.,  n.  175,  176,  177.  143  C.  PI.  Bait.  III.,  n.  139   155. 

144  Cone.  PI.  Bait.  III.,  n.  153. 


543  Of  Bishops. 

years,  and  comprise  the  vernacular  (English,  and  in  some 
instances,  also  the  German,  Polish,  French,  and  Italian  lan 
guages);146  in  the  major  seminaries,  the  course  of  studies 
shall  also  be  six  years,  two  for  philosophy,  and  four  for  the 
ology.146  3.  For  each  seminary,  major  or  minor,  diocesan  or 
provincial,  two  committees  must  be  appointed;  each  com 
mittee  to  consist  of  at  least  one  priest.  In  the  case  of  dio 
cesan  seminaries,  the  members  of  these  committees  are 
appointed  by  the  bishop  with  the  advice  of  the  diocesan 
consultors ;  in  the  case  of  provincial  seminaries,  by  the 
bishops  of  the  province,  without  the  advice  of  the  con- 
suitors.  One  ^>f  these  committees  has  the  right  and  duty 
of  advising  the  bishop  in  all  that  concerns  the  spiritual 
government  of  the  seminary,  as  explained  above  (n.  559);  the 
other,  in  all  that  regards  the  temporal  management,  as  out 
lined  above,  n.  559.  We  said  above,  n.  559,  that  the  advice 
of  the  committee  on  temporal  management  is  necessary  in 
regard  to  the  contributions  or  assessments  to  be  made  for 
the  support  of  the  seminary.  This  needs  explanation.  The 
bishop  is  bound  to  take  the  advice  of  this  committee 
in  imposing  the  tax,  and  that  both  as  regards  the  gross 
amount  to  be  raised,  and  the  rate  at  which  each  church  is  to 
be  assessed.  But  once  he  has  thus  fixed  the  amount  and  the 
rate,  he  can  collect  it  without  the  advice  of  the  deputies.14' 
Bishops,  with  us,  are  indeed  obliged  to  take  the  advice  of 
these  committees  under  pain  of  having  their  acts  annulled; 
but  they  are  not  bound  to  follow  it.  4.  Seminarians  are 
allowed  to  go  home  during  the  vacations.  But  while  on 
vacation  they  are  placed  under  the  supervision  of  their  par 
ish  priest,  to  whom  they  must  present  themselves,  at  the 
beginning  of  the  vacation,  and  by  whom  they  may  be  em 
ployed  in  teaching  catechism,  serving  at  the  altar,  etc.  At 
the  end  of  the  vacation,  the  parish  priest  is  obliged  to  inform 
the  bishop,  or  the  superior  of  the  seminary,  by  sealed  letter, 
of  the  conduct,  etc.,  of  the  seminarian.  (C.  PI.  Bait.  III.,n.  177.) 

us  Cone.  IM.  Bait.  III.,  n.  147.  146  Bouix.  De  Cap.,  p.  439. 


Of  Bishops.  349 


ART.  V. 

Rights  and  Duties  of  Bis /tops  as  regards  the  holding  of  Diocesan 
Synods  (De  Officio  et  Potestate  Episcopi  quoad  Synodum 
Dioeccsanam). 

563.  Definition.— Those    meeting's  159  are  called   diocesan 
synods  (sy  nodus  dioecesand)  where  the  bishop  assembles  the 
clergy  of  his  diocese  in  order  to  treat  of  matters  that  relate 
to  the  pastoral  charge  or  the  care  of  souls.154     The  word 
council  is  at  present  applicable  only  to  oecumenical,  national, 
and    provincial   synods,   but   not   to   diocesan   assemblies.161 
The  enactments  of  diocesan  synods  are  named  statutes  (sta- 
tutd),  decrees    (decretd),    constitutions   (constitutiones).      The 
term   canons  is   at   present  applied    to    those   decrees  only 
which    are    binding  on   the    entire    Church — v.g.,   those   of 
oecumenical  councils.158 

564.  Q.  How  often  are  diocesan  synods  to  be  held  in  the 
United  States  ? 

A. ~i.  Once  every  year,1"  wherever  this  is  feasible.  2. 
"  Quoad  si,  ob  locorum  distantiam  aliaque  peculiaria  rerum 
adjuncta,  magno  foret  incommodo  synodum  quotahm's  cele- 
brare,  curent  episcopi,  ut  saltern  post  habitum  ac  a  Sancta  Sede 
recognitui/i  concilium  provincial  sive  plenarium,  quam  levissima 
mterposita  mora,  synodum  convoccnt  dioeccsanam,  in  quo  sta- 
tuta  provincialia  seu  plenaria  omnibus  promulgentur,  atque 
executioni  dentur."  Again,  we  ask,  Is  the  Tridentine  de 
cree  enjoining  the  annual  celebration  of  diocesan  synods 

163  See  our  article  on  Dioc.  Syn.  in  Brownson's  Quarterly  Review,  July,  1875, 
p.  314  seq.  !M  Craiss.,  n.  80 ;  cfr.  our  Notes,  n.  37. 

'"Bouix,  1.  c.,  pp.  348,  349.         156  Bened.  XIV.,  De  Syn.,  lib.  i.,  cap.iii.,n.  3. 

157  Bishops  neglecting  to  hold  synods  annually  incur  suspensio  ab  officio^ 
which  penalty  is  ferendae,  not  latae  sententiae  (Bened.  XIV.,  1.  c.,  cap.  vi., 
n.  5  ;  cfr.  Cone.  Trid.,  sess  xxiv.,  c.  ii.,  d.  R.) 

168  Cone.  PI.  Bait.  II..  n.  67  ;  cfr.  ib.,  n.  63. 


3  so  Of  Bishops. 

obligatory,  sub  gravi,  even  at  the  present  day  ?  It  is,  wher 
ever  the  holding1  of  synods  is  practicable,  and  especially 
where,  as  in  the  United  States,  no  hindrances  of  a  political 
nature  stand  in  the  way.  Some  j^anonists^  however,  hold 
the  negatiyej^asserting^tiiat  synods  have  almost  everywhere 
fallen  into  desuetude.109  Again,  what  persons  have~power  to 
convene  diocesan  synods?  i.  Bishops,  as  soon  as  they  are 
confirmed,  and  even  before  the}^  are  consecrated  ; 16"  they 
may  depute  vicars-general  or  other  persons  to  convoke  and 
preside  over  synods  in  their  stead.1"1  2.  Vicars- capitular, 
sede  vacant  e,  and  in  the  United  States,  by  analogy,  adminis 
trators  of  dioceses. 

565.  Q.  What  persons  in  the  United  States  are  obliged 
to  attend  diocesan  synods  ? 

A. —  i.  "  Praeter  sacerdotes  "3  curam  animarum  haben- 
tes,163  sive  sint  saeculares  sive  regulares,  omnes  etiam  in 
dignitatibus  quibuscunque  constituti,  rectores  etiam  semi- 
nariorum,  hujusmodi  synodis  interesse  debent."  2.  Also  all 
superiors  of  monasteries  situate  in  the  diocese  and  not 
governed  by  a  general  chapter.104  Observe,  the  bishop  is 
the  sole  law-giver  in  these  assemblies,  and  therefore  he 
alone  has  a  decisive  vote  ;  the  other  members  have  but  a 
consultative  voice.185 

566.  Officials  of  Synods. — -There  are  two  kinds  of  synodi- 
cal  officials  :  ""  I.  The  officiates  synodi — i.e.,  those  who  per 
form  certain  functions  in  and  during  the  synod  itself.     These 

m  Cfr.  Boui*,  1.  c.,  pp.  351,  352.         16°  Phillips,  Kirchenr.,  vol.  vii.,  p.  204. 

181  Ferraris,  V.  Synodus  Dioec.,  n.  13.  '"-  Cone.  PI.  Bait.  II.,  n.  66. 

168  By  virtue  of  universal  custom  only  pastors,  not  their  assistants,  are 
bound,  as  a  rule,  to  attend.  We  say,  as  a  rule ;  for,  if  a  general  reformation 
of  the  clergy  is  to  be  treated  of,  all  ecclesiastics  must  attend.  Cfr.  Phillips, 
Lehrb.,  p.  354. 

164  C.  Trid.  sess.  24,  c.  2.  de  Ref.;  Bened.  XIV.,  De  Syn.,  1.  3,  c.  i.  n.  8. 

IBS  Ferraris,  1.  c.,  n.  42,  43. 

166  Gavantus,  Praxis  Exactissirna  Syn.  Dioec.,  pars,  i.,  cap.  xviii.,  n.  i,  2  ; 
cap.  xxx.,  n.  7  ;  cap.  xxxi.,  n.  i.  Venetiis.  1668. 


Of  Bishops.  35! 

are,  at  present,  chiefly  the  notary,  secretary,  promoter,  and 
master  of  ceremonies  ;  they  are,  as  a  rule,  appointed  in  the 
preliminary  meetings  (congregations  praesynodales),  usually 
held  some  time  prior  to  the  day  fixed  for  the  synod.  II. 
The  officiates  clcri  are  those  functionaries  who  are  elected 
indeed  in  the  synod,  but  whose  duties  begin  only  at  its  end 
and  last  till  the  next  synod™  They  are  chiefly:  i.  Synodi- 
cal  judges  (judices  synodales,jitdices  in  partibus,  judices  pro- 
synodales  IC9),  to  whom  all  cases  of  appeal  from  the  decisions 
of  ordinaries  are  committed  by  the  Holy  See  ;  they  are 
Papal  delegates,  and  must  not  be  confounded  with  our  com 
missions  of  investigation,  where  the  latter  still  exist.169  2. 
Sy nodical  examiners  (examinatores  synodalcs),  whose  duty  it 
is  to  conduct  the  examinations  for  appointments  to  parishes 
in  forma  concursns.™  Where  no  synod  is  held,  the  bishop 
may,  with  the  consent  of  his  chapter— in  the  United  States, 

with  the  advice  of  the  consult ors  (Cone.  PI.  Bait.  III.,  n.  25) 

appoint  the  synodical  examiners  out  of  synod,1"  provided  he 
has  previously  obtained  the  permission  of  the  Holy  See.173 
3.  The  Third  Plenary  Council  of  Baltimore  counsels  bishops 
to  make  use  of  the  synodal  examiners  also  for  the  examina 
tion  of  the  ordinandi,  of  those  who  are  to  be  approved  for 
confessions,  of  the  junior  priests,  and  of  the  alumni  who 
wish  to  be  admitted  into  major  seminaries. 

Appeals  against  Statutes  of  Diocesan  Synods.— It  is  allowed 
to  appeal  to  the  Holy  See  (according  to  Ferraris,  not  to  the 
metropolitan)  against  statutes  of  diocesan  synods;173  such 
appeal,  however,  has  only  an  effectum  devolutivum,  not  sus- 
pensivum,  and  does  not,  therefore,  suspend  the  obligation  of 
complying  with  the  statutes  pending  the  appeal.174 

167  Gavant,  1.  c. ,  cap.  xxx.,  n    7. 

168  Cfr.  Cone.  Tricl.,  sess.  xxv.,  cap.   x.,  d.  R  ;  cfr.    Phillips,  Kirchenr.,  vol. 
vi"  P-  "69-  169  Cfr.  Instr.  S.  C.  P.  F.,  1878. 

10  Cfr.  Cone.  Trid.,  sess.  xxiv.,  cap.  xviii.,  d.  R.  '•'  Salz..  lib.  i.,  p.  46. 

I7i  Cone.  PI.   Bait.  III.,  n.  25.  '"  Ferr.  V.  Svn.,  n.  44. 

""*  Leo  XIII.,  Const.  Romanos  Pontifices,   iSSi,    Bened.  XIV.,  De  Syn.,  lib 
xiii.,  cap.  v  ,  n    12.  13. 


352  Of  Bishops. 

567.  Theological  Conferences. — These  serve  to  remedy,  in  a 
measure,  the  rarer  celebration  of  diocesan  synods.  Accord 
ing-  to  the  Third  Plenary  Council  of  Baltimore  (n.  191,  192,  193), 
i,  these  conferences  (cottationes  de  rebus  tlteologicis)  should  be 
held  four  times  a  year  in  cities,  twice  a  year  in  rural  dis 
tricts  ;  2,  all  priests,  whether  secular  or  regular,  having  the 
care  of  souls,  should  attend  them  ;  3,  the  bishop  lays  down 
the  method  to  be  observed,  proposes  the  matters  or  ques 
tions  to  be  discussed,  and  the  like.176 

ART.  VI. 

Of  the  Legislative,    Judicial,  Executive,   and   Teaching  Powtr 

of  Bishops. 

568. — I.  Legislative  Power.— \.  The  bishop  has  power  not 
only  to  publish  in  his  diocese  Papal  constitutions  and  the  de 
crees  of  oecumenical,177  national,  and  provincial  councils,  but 
also,  both  in  and  out  of  synod,. to  enact  laws  for  his  clergy  and 
people,176  provided,  however,  his  regulations  be  not  opposed 
to  the  universal  laws  of  the  Church.17"  Constitutions  enact 
ed  by  the  bishop  in  synod  are  permanent  (statuta  pcrpetud], 
though  not  immutable — i.e.,  they  do  not  cease  to  be  of  force 
at  the  death  of  the  bishop,  though  they  may  be  changed  by 
the  successor.180  Are  statutes  made  by  the  bishop  out  cf 
synod  also  perpetual  ?  The  question  is  controverted.181  2. 
The  bishop,  not  the  civil  authority,  can  order  public  prayers 
for  the  necessities  of  the  Church,  or  because  of  other  just 
reasons;  prohibit  abuses  that  may  have  introduced  them 
selves  in  the  administration  of  the  sacraments,  in  the  cele 
bration  of  the  Mass,  and  the  like.  He  may,  in  general, 
ordain  whatever  tends  to  suppress  vice,  preserve  virtue,  and 
maintain  true  faith  and  ecclesiastical  discipline.  Can  the 

116  Leo  XIII.,  Const.  Romanes  Pontifices,  §  Praecipuam,  1881. 

117  Gerlach,  1.  c.,  p.  317,  '«  Our  Notes,  n.  82,  83. 
179  Bouix,  De  Episc.,  vol.  ii.,  p    80.                  :8°  Soglia.  vr>l    i..  p.  287. 

161  Hened    XIV      De  Svn  .   lib    xiii  .  cap    v.     n     i    and  lit)    "  .  c..:a.  iv..  n.  3. 


Of  Bishops. 


353 


bishop  make  synodal  statutes  without  the  consent  or  advice 
ol  the  chapter?  We  premise:  i.  By  synodal  statutes  we 
mean  those  which  are  at  least  promulgated  in  synod. 18J  2. 
We  said  chapter,  because  it  is  certain  that  neither  the  assent 
nor  the  advice  of  the  other  priests  is  requisite.183  We  now 
answer:  i.  As  a  general  rule,  statutes  may  be  issued  in 
synod  witJiout  the  consent  of  the  chapter;  except,  however, 
(a)  when  this  consent  is  expressly  required  by  law — v.g.,  in 
the  erection  of  a  new  parish ;  (b)  where  custom  favors  such 
consent.'"4  2.  However,  synodal  constitutions  are  not  valid  if 
made  without  the  advice  of  the  chapter.166  Though  the  bishop 
is  bound  to  take  this  advice,  he  need  not  follow  it.186  3.  So 
far  as  concerns  the  U.  S.,  the  Third  Plenary  Council  of  Balti 
more  enacts:  "Consilium  consultorum  exquiret  episcopus 
pro  synodo  dioecesnna  indicenda  et  publicanda."  187  Conse 
quently  synodal  statutes,  with  us,  are  voidable,  if  made  with 
out  the  advice  of  the  diocesan  consultors. 

569. — II.  Judicial  Power. — Suffice  it  to  say  here  that  all 
causes  belonging  in  any  way  whatever  to  the  ecclesiastical 
forum,  even  though  they  be  causac  beneficiales,  matrimonialest 
or  criminals,  are  to  be  taken  cognizance  of,  in  the  first  in 
stance,  by  the  ordinaries  of  places.1'8  III.  Executive  or  Co- 
active  Power. — The  bishop,  in  his  diocese,  may  enforce, 
under  penalties  and  censures — v.g.,  even  under  pain  of  ex 
communication,  to  be  incurred  ipso  facto — the  laws  enacted 
by  himself  and  those  of  the  entire  Church.189  IV.  Teaching 
Power. — Bv  virtue  of  his  potestas  magistcrii,  the  bishop  is 
teacher  and  doctor  in  his  diocese  ;  out  of  general  councils, 
however,  he  cannot  define  questions  of  faith  or  morals  ;  fur 
thermore,  he  cannot  undertake  to  settle  points  freely  dis- 

1M  Craiss.,  n.  949.  "3  Bouix,  1.  c.,  p.  390.  1M  Craiss.,  n.  950,  95$. 

188  Ib.,  n.  952.  Ifl6  Phillips,  Lehrb.,  pp.  258,  259. 

187  Jonc.  PI.  Bait.    III.,  n.  20. 

""  Soglia,  1.  c.,  p.  288  ;  cfr.  Cone.  Trid.,  sess.  xxiv  .  c    xx  ,  d.  R. 

**  Bouix,  1.  c.,  p.  80. 


354  Of  Bishops, 

puted  among  theologians.100  He  can  and  should  watch  over 
schools,  colleges,  seminaries,  and  the  like,  and  see  that  no 
thing  is  there  taught  contrary  to  faith,  morals,  and  dis- 
crpline."1 

ART.  VII. 
Of  the  Powers  of  Bishops  to  grant  Dispensations. 

570.  A  dispensation  is  the  relaxation  of  a  law  in  some 
particular  case  where  it  would  otherwise  bind."J  Dispen 
sations  can  be  granted  by  the  proper  superior  only.  Bishops 
can  dispense  from  all  laws  made  by  themselves  or  their  pre 
decessors,  whether  in  or  out  of  synod ;  but  not  from  enact 
ments  of  popes  or  oecumenical  councils,  nor,  in  general,  from 
the  common  law  of  the  Church."11  We  say,  in  general ;  for 
bishops  may  dispense  even  from  the  jus  commune  I!M  in  the 
following  cases:  I.  Ex  jure  id  permittente—i.c.,  where  the  law 
itself,  whether  as  enacted  by  the  Sovereign  Pontiffs19'  or 
'Oecumenical  councils,  either  expressly,  or  at  least  tacitly  196-- 
v.g.,  by  saying  posse  dispensari— gives  bishops  power  to  grant 
dispensations.  Thus,  the  Council  of  Trent 197  expressly  per 
mits  bishops  to  dispense  from  the  interstices  to  intervene 
between  the  reception  of  the  various  orders,  whether  minor 
or  major ;  also  to  grant  dispensations  from  the  publication 
of  the  banns  of  matrimony.198  2.  By  virtue  of  legitimate  cus 
tom.  Thus,  bishops  dispense  from  the  precept  of  fast,  the 
observance  of  holidays,  and  the  like.  This  custom,  to  be 
'awful,  must  be  immemorial— i.e.,  a  hundred  years  old,  and 
not  subversive  of  ecclesiastical  discipline.  3.  Ex  pracsumpta 
ft  interprctativa  Pontificis  delegation?™  Thus,  the  Pope  may 

190  Craiss.,  n.  954.  ""  Ib  -  n   955-  '"  Ib--  n  957 

103  Ferraris,  V.  Dispensatio,  n.  23.         194  Soglia.  vol.  i.,  p.  290. 

198  Bouix,  1.  c.,  p.  92.  I98  Ferraris,  1.  c.,  n.  26. 

197  Sess.  xxiii.,  c.  xi..  d.  R.  ""  Ib.,  sess.  xxiv.,  c.  i.,  d.  Ref.  Matr 

199  Ferraris,  1.  c.,  n.  27. 


Of  Bishops.  355 

reasonably  be  presumed  to  authorize  bishops  to  grant  dis 
pensations  in  urgent  cases  which  admit  of  no  delay.  Thus, 
a  bishop  may,  under  certain  conditions,  relax  an  occult  im 
pediment  annulling  a  marriage  already  publicly  contracted. 
Again,  bishops,  by  virtue  of  the  presumptive  consent  of  the 
Holy  See,  may  dispense  in  matters  of  less  importance  and  of 
frequent  occurrence.200  4.  By  virtue  of  special  delegation — i.e., 
of  special  faculties  given  to  bishops  by  the  Holy  See *" — v.g., 
foe  facilitates  given  to  bishops  in  the  United  States,  for  five 
or  ten  years,  or  only  for  a  certain  number  of  cases.208  5.  In 
cases  where  it  is  doubtful  'whether  a  dispensation  is  needed.  In 
cases  of  this  kind  bishops  may  either  grant  a  dispensation  for 
the  sake  of  greater  safety  (ad  cautelam},  or  simply  declare 
that  no  dispensation  is  required.203  We  observe  :  r.  Bishops, 
in  cases  n.  i,  2,  3,  5,  can  dispense  from  the  jus  commune  (<?)  for 
just  reasons  only,  (U]  and  not  universally — i.e.,  not  for  an 
entire  diocese,  city,  or  community,  but  only  for  individu 
als.204  2.  The  power  of  dispensing  in  cases  n.  1,2,  3,  5,  as 
vested  in  bishops,  is  a  potestas  ordinaria,  and  therefore,  sede 
vacantc,  passes  to  the  chapter  ;  for  the  same  reason  it  may 
be  delegated  to  others.20' 

571.  Can  bishops,  without  having  special  faculties  from 
the  Holy  See,  grant  dispensations  from  the  law  of  fast,  of 
abstinence  from  flesh-meat  and  white  meats  (ova  et  lacticinid), 
and  from  the  precept  of  abstaining  from  servile  labor  on  fes 
tivals  of  obligation  ?  i.  They  can  grant  these  dispensations 
to  particular  persons,  and  that  by  virtue  of  universal  custom, 
sanctioned  by  the  Holy  See ;  for  it  were  morally  impossible 
to  recur  to  Rome  for  a  dispensation  in  every  particular 
case.2"8  2.  Bishops  cannot,  however,  dispense  from  the 

M0  Craiss.,  n.  966. 

"01  Phillips.  Lehrb.,  p.  178;  cfr.  Gerlach,  Lehrb.,  pp.  176,  293,  294. 

10  Cfr.  our  Notes,  pp.  463-476.  -03  Ferraris,  I.  c.,  n.  23. 

144  Soglia,  1.  c.,  p.  290.  ™5  Ferraris,  I.  c.,  n.  10 

*"  Bouix,  1.  c..  p.  96. 


356  Of  Bishops. 

above  laws  in  a  general  manner  *  — i.e.,  for  a  whole  diocese, 
city,  or  community— except  by  virtue  of  special  faculties 
from  Rome.  3.  The  bishops  of  the  United  States  have  facul 
ties  from  the  Holy  See  dispensandi  super  csu  carniuni,  ovoruin 
et  lacticiniorum  tcmpore  jijuniorum  et  Quadragesimae ;™  they 
may  consequently,  and  in  reality  do,  dispense,  in  their  "  Regu 
lations  for  Lent,"  universally — i.e.,  for  the  whole  diocese."0 

572.  Are  dispensations  valid  when  conceded  by  a  bishop 
without  sufficient  cause  ?  A  bishop  can  dispense  validly, 
without  just  or  sufficient  cause,  I,  from  his  own  laws  or 
those  of  his  inferiors ;  2,  also  from  the  laws  of  his  superiors, 
when  there  is  doubt  either  as  to  the  existence  or  the  suffi 
ciency  of  a  cause  for  dispensation  ;  "10  3,  it  is  certain  that  if 
he  knowingly  dispenses  from  the  laws  of  his  superiors — T '  g., 
from  impediments — without  sufficient  cause,  the  dispensa 
tion  is  always  invalid?''1  It  is,  however,  very  probable  that 
if  a  just  cause  really  exists,  the  dispensation  is  valid,  even 
though  the  bishop  or  chancellor,  when  giving  it,  thought 
there  was  no  cause.212  For  the  validity  of  dispensations  de 
pends  not  upon  the  knowledge,  but  the  existence,  of  suffi 
cient  causes.  Dispensations  granted  without  sufficient  rea 
sons  are  always  unlawful ;  and  both  the  person  asking  for 
and  the  one  granting  such  dispensations  commit  sin.  Hence, 
the  statutes  of  the  various  dioceses'"3  in  the  United  States 
usually  prescribe  that  dispensations,  especially  from  the 
publication  of  the  banns  and  from  the  impediments  of 
marriage,  be  asked  in  writing,  and  that  canonical  rea- 

*"  Craiss.,  n.  973-9^0.  M8  Fac.,  form.  i.r  n.  27. 

2U'J  KenricL-,  Mor.  Tr.  IV.,  pars  ii.,  n.  48.  21°  Craiss.,  n.  968. 

1Ji:  Ib.,  n.  970. 

aM  The  following  passage  of  Rohlings  seems  noteworthy  :  "  Inveniuntur  in 
terdum,  qui  episcopis  petitionem  oretenus  aut  in  scriptis  offerunt,  quin  ullam 
prorsus  dispensandi  causam  proponant.  Scire  deben',  dispensationem  ita  for.'t 
ab  epl-copo  concessam  omn.no  nullain  csie"  (Medulla,  p.  426). 

*"  Cfr.  Stat.  Dioec.  Nov.,  pp.  10,  51;  cfr.  Srat  Dioec.  Albanensis.  1869, 
p.  15. 


Of  Bishops 


sons  bft  assigned  by  the  petitioner."4  It  would  seem  that, 
so  far  as  the  validity  is  concerned,  dispensations  may  be 
asked  for  orally,  since  they  may  valid ly  be  granted  orally 
by  bishops.'1' 


ART.  VIII. 

On  the  Power  of  Bishops  in  regard  to  various  matters  relative  to 
the  Liturgy  of  the  Church. 

573-  We  shall  here  only  touch  on  several  points.  I.  It 
is  an  error  to  attribute  to  bishops  legislative  power  respect 
ing  the  liturgy  of  the  Church,  independently  of  the  Roman 
Pontiff"2"  2.  The  bishop,  if  absent  from  his  cathedral,  may 
consecrate  the  olea  catechumenorum  et  infirmorum  in  some 
other  church.2'7  He  may  also,  in  case  of  necessity,  bless  the 
holy  oils  with  a  less  number  of  ministers  than  is  prescribed 
by  the  Pontifical,  and,  in  the  United  States,  also  extra 
diem  coenae  Domini™  We  ask :  Can  the  Blessed  Sacra 
ment  be  kept  in  public  chapels  without  special  permission 
from  the  Holy  See?  i.  As  a  rule,  the  Blessed  Sacrament 
cannot  be  kept  outside  of  parochial  churches,  except  by  per 
mission  from  the  Holy  See.'19  2.  From  this  rule  are  except- 
ed  the  churches  or  chapels  of  regulars,  and  of  nuns  having 
solemn  vows  and  living  in  enclosure.220  3.  By  special  indult 
from  the  Holy  See,  Sisters  of  Charity  and  other  religious 
communities  of  women,  though  not  solemnly  professed,  may 
keep  the  Blessed  Sacrament  in  their  chapels  ; "''  the  key  of 
the  tabernacle  should  be  kept  by  the  priest. 

574.  Can  bishops  de  jure  commum  permit  the  temporary 
celebration  of  Mass  in  private  houses  ?  We  say,  temporary 

""  Cone.  PI.  Bait.  II.,  n.  332,  333,  385,  386.         a"  Konings,  n.  1628,  q.  6. 

516  Cfr.  Bouix,  De  Episc.,  vol.  ii.,  p.  115.  3"  Craiss.,  n.  982 

"°  Facult. ,  form,  i.,  n.  12  ;  ap.  our  Notes,  p  464. 

*w  Bouix,  1.  c.,  pp.  121,  122.  "*  Ib.,  p.  123. 

*"  Kenrick,  tr.  xvii..  n.  140,  S.  C.  de  P.  F.,  i  Aug.  1886. 


358  Of  Bishops. 

celebration;  for  it  is  certain  that  they  can  no  longer  allow 
priests  to  celebrate  permanently  in  private  houses.  We  now 
answer  :  According  to  St.  Liguori, "•"  it  is  commonly  held 
that  they  may  still  give  such  temporary  permission.  Bouix 
il.  c.,  p.  127)  and  Craisson  (n.  3568),  however,  assert  that  this 
opinion  has  no  solid  basis.  In  fact,  according  to  two  recent 
decisions  ''one  given  in  1847,  the  other  in  1856)  of  the  Holy 
See,  bishops,  it  would  seem,  cannot  grant  such  temporary 
permission,  except  si  inagnae  et  urgent es  adsmt  causae,  and  even 
then  only  per  modum  aclus  transenntis™  What  are  the  special 
powers  of  our  bishops  respecting  the  place  of  celebrating 
Mass  ?  "  Celebrandi  sub  dio  et  sub  terra,  in  loco  tamen  decenti 
.  .  .  si  aliter  celebrari  non  possit."  This  power,  which 
may,  in  fact  is  usually,  communicated  to  priests,",  was  re 
stricted  by  the  Second  Plenary  Council  of  Baltimore;22  so 
that,  at  present,  "  nulli  sacerdoti  liceat  Missam  celebrare  in 
aedibus  privatis,  nisi  in  stationibus,  et  in  iis  aedibus  quas  or- 
dinarius  designaverit ;  aut  dum  actu  missionis  excrcitiis,  pro- 
cul  ab  aliqua  ecclesia,  dat  operam."  Hence,  priests  cannot 
make  use  of  the  above  faculty  of  celebrating  in  quocunqnc  loco 
decenti  in  cities  or  places  where  there  are  churches.227  Can  our 
bishops,  for  grave  cause — v.g.,  when,  on  account  of  the  cold  in 
winter,  it  is  difficult  to  say  Mass  in  the  church — allow  priests 
to  say  Mass  in  their  houses,  even  when  the  church  is  near 
by  ?  Kenrick  228  seems  to  imply  that  they  may  do  so. 

575.  Can  a  bishop  exercise  pontifical  functions  in  the  d  o- 
cese  of  another  bishop  ?  i.  He  cannot,  save  by  the  express 
permission  of  the  ordinary  of  the  place.229  2.  Formerly  mis 
sionary  bishops,  or  those  placed  under  the  Propaganda  (v.g., 
the  bishops  of  the  United  States),  were  forbidden  to  exercise 
pontifical  functions  in  any  other  but  their  own  diocese,  even 

m  Lib.  vi.,  n.  358  ;  cfr.  Cone.  Trid.,  sess.  xxii.,  Deer,  de  observ.  et  evit.  in 
Celebr.  Miss.     2S3  Konings,  n.  1328.    *"  Fac.,  form,  i  ,  n.  23  ;  ap.  our  Notes,  p.  467. 
225  Konings,  n.  1329,  quaer.  3.  226  N.  362.  "27  Kenrick,  1.  c.  n.  87. 

"•  Ib.  '•""  Cone.  Trid.,  sess.  ri.,  cap.v.,  d  R- 


Of  Bishops.  359 

with  the  permission  of  the  ordinary  of  the  place.™  The  rigor  ot 
this  law  was  modified  by  Pope  Pius  VII.,"1  so  that,  at  present, 
"quando  rationabili  causa,  episcopi  seu  vicarii  apostolici  ad 
alienas  dioeceses  vel  vicariatus  se  conferunt,  possint  sibi  in- 
cicera  communicare  facultatem  pontificalia  exercendi." 

ART.  IX. 

Of  the  Rights  and  Duties  of  Bishops  in  regard  to  thj  Sacrament 

of  Confirmation. 

576. — I.  Minister  of  Confirmation.  —  The  bishop  is  the 
minister  ordinarius  of  confirmation.  According  to  the  com 
mon  opinion  of  theologians,  it  pertains  to  the  essence 
of  this  sacrament,  I,  that  the  forehead  be  anointed;  2,  in 
the  form  of  a  cross ;  3,  by  the  hand  of  the  bishop,  not  with 
any  instrument.333  The  bishop  is  obliged,  according  to 
some,  even  sub  gravi,  to  use  the  thumb  of  his  right  hand  in 
anointing  the  forehead  ;  yet  confirmation,  given  with  any 
finger,  whether  of  the  right  or  left  hand,  is  valid — nay,  licit — 
if  the  thumb  ol  the  right  hand  cannot  be  used.234  A  bishop 
administering  confirmation  in  the  diocese  of  another  bishop, 
even  though  it  be  to  his  own  subjects,  without  the  permis 
sion  of  the  ordinary  of  the  place,  incurs  suspensio  a  Pontifica- 
libus  ipso  facto."'  He  may,  however,  where  it  is  customary 
— v.g.,  in  the  United  States"6 — confirm  strangers  in  his  own 
diocese.237  By  reason  of  universal  custom,  it  is  not  at  pre 
sent  obligatory,  though  advisable,  that  the  confirmator  and 
the  person  to  be  confirmed  be  fasting ;  for  it  has  become  cus 
tomary  to  give  confirmation  even  in  the  afternoon.238  It 
seems  forbidden,  at  least  sub  levi,  to  administer  confirmation 

a30  Decretum  Innocentii  X.,  28  Mart.,  1651.        M1  Aug.  8,  1819. 
""Cone.  PI.  Bait.  II.,  n.  404.  2is  Craiss.,  n.  987. 

134  Kcnrick,  tr.  xvi.,  n.  2.  "*"  St.  Liguori.lib.  vi.,n.  171 

""  Kenrick,  1.  c.,  n.  6.  2S?  Bouix,  De  Episc.,  vol.  ii.,  pp.  212,  213 

138  St.  Liguori,  i.  c..  n.  174. 


360  Of  Bishops. 

outside  the  church,  except  for  reasonable  cause ;  it  is  certain, 
however,  that  a  bishop  may  give  this  sacrament  in  his  do 
mestic  chapel.  In  the  cathedral,  it  is  usually  administered 
during  the  time  of  Pentecost  ;  in  the  other  churches  of  the 
diocese,  during  the  episcopal  visitation.239  The  bishop  is  en 
tirely  free  to  give  it  on  non-  festal  days.  We  ask  :  What  sin 
does  a  bishop  commit  by  neglecting  to  administer  confirma 
tion  ?  It  is  admitted  by  all  that  a  bishop,  except  he  is  sick 
or  too  old,240  commits  a  mortal  sin  by  neglecting  for  a  long 
time — v.g.,  for  eight  or  ten  years — to  traverse  his  diocese,  or 
at  least  its  principal  parts,  in  order  to  give  confirmation.  It 
is  no  sin,  however,  for  just  reasons,  to  defer  giving  this 
sacrament  for  three  years  or  more.241  Does  a  bishop  sin 
mortally  by  refusing  to  confirm  persons  at  the  point  of  death 
who  ask  for  this  sacrament?  The  question  is  disputed.  It 
is  probable  that  he  does  not  sin  even  venially.2" 

577. — II.  The  Subject  of  Confirmation. —  I.  All  baptized 
persons  may  validly  receive  this  sacrament.  2.  At  present 
however,  it  is  not  allowed  in  the  Latin  Church  to  confirm 
children  before  the  age  of  seven,'243  except  (a)  for  grave  rea 
sons — v.g.,  in  danger  of  death  ; 244  (//)  where  it  is  customary, 
;as  in  Spain.  Insane  persons  may  also  be  confirmed.  The 
fathers  of  Baltimore245  ordain  that  when  confirmation  is 
given  to  many  persons,  tickets  (schedulae  confirmationis}™ 
on  which  are  written  the  Christian  and  family  names,  should 
be  given  by  the  pastor  to  each  person  to  be  confirmed. 
This  ticket  will  answer  the  double  purpose  of  suggesting 
the  Christian  name  to  the  bishop,  and  of  recording  it,  to 
gether  with  the  family  name,  in  the  register ; 24  it  will, 
moreover,  serve  as  a  testimonial  that  the  bearer  is  sufficient- 

338  Phillips,  Lehrb.,  p.  542.  54°  Kenrick,  1.  c.,  n.  ^. 

*41  Bouix,  1.  c.,  p.  213.            242  Craiss.,  n.  991.  !43  Walter,  p.  538. 

244  Cfr.  Cone.  PI.  Bait.  II.,  n.  252.             245  Ib.  246  Cfr.  Craiss.,  n.  993. 

347  Cfr.  Ceremonial  for  the  United  States,  p.  486.  Baltimore,   1865.     Cfr 
our  Notes,  n.  227. 


Of  Bishops.  361 

ly  prepared  to  receive  this  sacrament.  Formerly  a  linen 
or  silken  band,  with  a  cross  on  it,  was  tied  around  the  fore 
head  of  the  person  confirmed,  and  worn  in  this  manner  one, 
three,  or  seven  days,  according  to  custom."48  At  present 
the  forehead  is  immediately  wiped  with  cotton,  no  band 
being  used.  This  is  the  custom  also  of  this  country."9 

578. — III.  Sponsors  or  Godfathers  and  Godmothers  (Patrini 
et  Matrinae  Confirmationis).  —  i.  According  to  St.  Liguori86' 
and  others,  the  obligation  of  having  a  sponsor  in  confirma 
tion  binds  sub  g>avi.  When  it  is  impossible,  however,  to 
procure  sponsors,  confirmation  may  be  lawfully  given  with 
out  them.  2.  Only  one  sponsor  is  allowed  for  each  person. 
5.  The  sponsor  should  be  confirmed,  4,  and  be  different 
from  the  one  in  baptism,2"1  5,  and  of  the  same  sex  with  the 
person  to  be  confirmed,  6.  It  is  sufficient  for  the  sponsor  to 
place  the  right  hand  on  the  shoulder  of  the  person  to  be 
confirmed,  as  is  customary  in  the  United  States."5  The 
fathers  of  Baltimore  ordain  :  "  Confirmati  vero  habebunt  pa- 
trinos  singuli  singulos,  nee  tamen  foeminis  mares  nee  mari- 
bus  foeminae  patrini  oflficium  praestabunt.  Quod  si  hoc 
fieri  omnino  nequeat,  saltern  duo  pro  pueris  patrini,  et  duae 
pro  puellis  matrinae  adhibeantur." 

ART.  X. 

Rights  and  Duties  of  Bishops  respecting  Causes  or  Matters 

of  Heresy. 

579.  The  proper  judges  in  regard  to  the  crime  of  heresy 
are:  i.  The  Supreme  Pontiff,  all  over  the  world.  2.  Bi 
shops,  in  regard  to  all  their  subjects.  3.  Those  Papal  dele 
gates  who  are  named  inquisitors  (inquisitores  fidei}™  Lay- 

2<B  St.  Liguori,  1.  c.,  n.  188.         ™  Kenrick,  1.  c.,  n.  12.         55°  L.  c.,  n.  185. 
461  Bouix.  1.  c  ,  p.  215.  ™  Kenrick,  1.  c.,  n.  10. 

•'"  Cone.  PI    Bait.  II.,  n. 253.       2"  Bouix,  i.  c.,  p.  216. 


362  Of  Bishops. 

men  are  not  competent  judges  in  matters  of  heresy,  even  as 
to  mere  questions  of  fact.255  In  a  diocese  where  there  exists 
an  inquisitor — i.e.,  a  judge  deputed  by  the  Holy  See — the 
power  to  examine  and  punish  heretics  resides  cumulatively 
in  him,  and,  at  the  same  time,  in  the  bishop.""  At  present, 
however,  the  tribunal  of  the  Sacred  Inquisition  (Sanctum 
Officiuiri)  exists,  perhaps,  nowhere  else  except  in  Rome2*' 
Hence,  bishops,  almost  everywhere,  exclusively  possess  all 
the  authority  which  was  ordinarily  vested  in  inquisitors  ot 
the  Holy  See.968  (Supra,  n.  500.) 

580.  Q.  Can  bishops  absolve  from  heresy  ? 

A. — I.  We  premise:  i.  Formal  heresy,  of  which  alone 
we  here  speak,  is  either  internal — i.e.,  not  manifested  exter 
nally  by  any  word  or  action;  or  external — i.e.,  outwardly 
expressed,  in  a  sufficient  manner,2'''8  by  words  or  actions.  2. 
External  heresy  is  subdivided  into  (a)  occult — namely,  that 
which  is  externally  manifested,  but  known  to  no  one,  or 
only  to  a  few — v.g.,  five  or  six  persons'00 — and  which,  more 
over,  is  not  yet  brought  before  the  judicial  or  external 
forum  ;  (b)  into  public  or  notorious — that,  namely,  which  is 
judicially  established 261  (Jtaercsis  notoria  notorietate  juris, 
liaercsis  notoria  et  ad  forum  judicial?  deduct  a)  or  known  to 
nearly  all  persons,  or  at  least  to  the  greater  portion  of  a 
town,  neighborhood,  parish,  college,  or  monastery283  (Jiaeresis 
notoria  notorietate  facti,  haercsis  notoria  ct  ad  forum  judicial^ 
non  deduct  a).  3.  It  is  certain  "R3  that  all  persons  who  are  for 
mal  heretics,  and  outwardly  show  their  heresy  by  any 
grievously  sinful  act,284  incur,  ipso  facto,  major  excommunica- 

***  Reiff.,  lib.  v.,  tit.  vii.,  n.  431.  2&6  Bouix,  1.  c.,  pp.  217,  218. 

M'  Ib.,  De  Judic.,  vol.  ii.,  pp.  377,  378.     Parisiis,  1866. 

^  Reiff.,  1.  c.,  n.  448,  449.         25S  Ib.,  n  15.        26°  St.  Liguon,  lib.  vii.,  n.  76. 
861  Either  because  the  guilty  person  was  judicially  convicted  of  heresy  o» 
confessed  his  heresy  in  foro  externo  (Bouix,  De  Ep.,  t.  ii.,  p.  219). 

'•""  Bouix,  De  Episc.,  vol.  ii.,  p.  219.  "'"  Reiff.,  1.  c.,  n.  238-247. 

'•"*  Avanzmi,  Com.  in  C.  Apost.  Sedis,  p.  68.     Romae,  1872. 


Of  Bishops.  363 

tion,  row  reserved,  speciali  inodo.  to  the  Pope,'"  in  tfic  Const, 
Apost.  Sedis  of  Pope  Pius  IX.  II.  We  now  answer:  I. 
No  excommunication  whatever  atta  hes  to  purely  mental 
heresy,  neither  is  this  sort  of  heresy  reserved  to  the  Roman 
Pontiff;  hence,  it  is  absolvable,  not  only  by  the  bishop,  but 
by  any  approved  confessor.21"  2.  Bishops  may,  either  per 
sonally  or  through  others,  grant  absolution,  both  in  foro  in- 
terno  and  in  foro  externo,  from  heresy  which  is  notorious  and 
brought  before  their  external  forum.367  We  say,  either  per 
sonally  or  througli  others;  for  this  power  is  ordinary,  and 
therefore  may  be  delegated  to  others.86*  Hence,  Protestants 
Arho  wish  to  abjure  their  heresy  may  be  absolved  by  the 
bishop  or  his  delegate,  and  it  is  not  necessary  to  recur  to 
Rome  ; 2C*  because,  by  the  very  fact  that  Protestants  ask  to 
be  received  into  the  Catholic  Church,  their  heresy  is 
brought  before  the  forum  extcrnnm  of  the  bishop.  3.  The 
Pope  alone  can  absolve  from  heresy  which  is  notoria  et  uon 
deducta  ad  forum  judicialc.  4.  It  is  certain  that  bishops,  at 
present,  cannot  absolve  from  occult  heresy.  The  Council 
of  Trent.270  it  is  true,  gave  bishops  power  to  absolve  pro  foro 
conscientiae  from  all  occult  crimes  reserved  to  the  Pope,  and 
also  from  occult  heresy?"  But  this  power,  so  far  as  regard.4 
occult  heresy,  was  subsequently  revoked  "a  by,  and  exclu. 
sively  reserved  to,  the  Holy  See,  both  in  the  Bulla  Coena 
Domini™  as  published  several  times  after  the  Council  of 
Trent,  and  in  the  recent.  Constitution,  Apostolicae  Sedis,  .of 
Pius  IX.27' 

*"*  Phillips,  Lehrb.,  p.  402.  *"*  Bouix,  1.  c.,  p.  220. 

487  Craiss.,  n.  1167-1170.        a°8  Reiff.,  1.  c.,n.  369.        269  Bouix,  1.  c.,  p.  222. 

870  Sess.  xxiv.,  cap.  vi.,  d.  R.      2"  Reiff.,  1.  c.,  n.  350.      ™  Bouix,  1.  c.,  p.  223  seq 

3)1  So  named  because  annually  published  in  Die  Coenae  Dni. — i.e.,  on  Holy 
Thursday  (Salz.,  lib.  Hi.,  p.  44). 

874  According  to  the  constitution  Apost.  Sedis,  persons  guilty  of  occult  as 
well  as  of  notorious  heresy  incur  excommunicatio  latar  scntcntiae  speciali  mod« 
Ponrifici  Rom.  reservata.  C.  Ap.  Sedis,  n.  i.  ;  cfr.  Craiss.,  n.  998;  Avanzini, 
Com.  in  C  Ap.  Sedis,  pp.  14  and  68,  69. 


364  Of  Bishops. 

581.  Q.  Can  the  bishops  of  the  United  States  absolve 
from  occult  heresy  ? 

A.  They  can,  by  virtue  of  apostolical  indult.  For  our 
bishops  have  faculties  from  the  Holy  See,  i,  absolvendi  ab 
Jiaercsi  .  .  .  quoscunque.™  ...  2.  Again,  they  have 
power  absolvendi  ab  omnibus  censuris  in  Const.  Apostolicae 
Sedis  (d.  12,  Oct.,  1869)  Romano  Pont  i  fid  ctiam  speciali  modo> 
reservatis,  excepta  absolutione  complicis  in  peccato  turpi ;  "* 
hence,  they  can,  as  a  rule,  absolve  from  occult  heresy.  We 
say,  as  a  rule  ;  for,  generally  speaking,  they  cannot  absolve, 
i,  those  heretics277  who  have  come  from  places  where  (v.g., 
in  Rome)  inquisitorial  tribunals  are  still  in  existence  ;  2,  nor 
those  who  relapse  into  heresy  after  having  judicially  (i.e., 
before  an  inquisitor,  bishop,  or  his  delegate)  abjured  it.278 
Our  bishops,  therefore,  can,  either  personally  or  through 
worthy  priests  of  their  dioceses,  absolve  pro  utroque  fora 
from  every  kind  of  lieresy,  whether  notorious  or  occult,2"  ex 
cept  in  the  two  cases  just  given. 

ART.  XL 
On  the  Power  of  Bishops  to  Reserve  Cases. 

582. — I.  Although  bishops  may  undoubtedly  reserve 
cases  to  themselves,280  it  is  fitting  that  they  should  do  so 
rat.her  in  than  out  of  synod,  chiefly  because  reservations 

275  Facult.,  form,  i.,  n.  15.  ™  Ib.,  n.  16. 

377  However,  if  these  heretics  have  become  guilty  of  heresy  in  missionary 
countries  where  haereses  impune  grassantur,  they  may  be  absolved  by  our 
bishops  or  their  delegates  (Facult.,  1.  c.,  n.  15). 

a7B  But  if  these  heretics  are  born  in  places  ubi  impune  grassantur  haeteses, 
and,  after  having  judicially  abjured,  relapse,  upon  returning  to  these  places 
they  may  be  absolved  by  our  bishops  or  by  priests  authorized  by  them> 
but  only  in  foro  conscientiae  (Facult .,  1.  c.) 

*"  Cfr.  Reiff.,  1.  c.,  n.  369,  370  ;  et  lib.  iv.,  App.,  facult.  i.,  x.,  vol.  v.,  pp.  547 
"48.  !b°  Bouix,  De  Episc  ,  vol.  ii.,  p.  242 


Of  Bishops.  365 

made  in  synod  are,  according  to  all,  perpetual,2"1  tfhile  those 
made  out  of  synod  are  considered  by  many  as  temporary. 
Cases  reserved  to  bishops  are  of  two  kinds.282     Some  are  re 
served  by  bishops  (named  a  nobis — i.e.,  casus  rcscrvati  a  nobis), 
whether  in  or  out  of  synod  ;    others  to  bishops  (nobis — i.e., 
casus  rest-rvati  nobis),  but  not  by  them  :  v.g.,  all  those  cases 
which,  though  reserved  to  the  Pope,  are,  nevertheless — v.g., 
because  they  are  occult— absolvable  by  bishops;   also  the 
three  cases  reserved  to  ordinaries  in  the  C.  Ap.  Scdis.    II.  The 
5.  Congr.  Episc.™  has  repeatedly  admonished  bishops  to  re 
serve,  i,  but  few  cases;  2,  only  the  more  atrocious  and  more 
heinous  crimes ;  3,  it  has  forbidden  them  to  reserve  sins  or 
cases  already   reserved  to  the   Sovereign  Pontiff,  so  as  to 
avoid  superfluous  reservations.284     What  particular  cases  or 
crimes  it  may  be  expedient  for  a  bishop  to  reserve  in  his 
diocese  cannot  be  determined  by  any  fixed  rule,  but  must 
depend  upon  circumstances.     III.  Bishops  generally  reserve 
certain  grievous  sins  which  are  more  frequently  committed 
in  their  respective  dioceses.    Bouix,  1.  c.,  thinks  that  in  France 
bishops  should  not,  as  a  rule,  reserve  more  than  two,  or  at 
most  three,  cases.     Our  bishops  do  not.  generally  speaking, 
go  beyond  this  number. 

|3|P  The  Third  Plenary  Council  of  Baltimore  (n.  127)  makes 
the  following  reservation  for  the  whole  United   States:    I. 

o 

"  Decernimus  catholicos,  qui  coram  ministro  cujuscunque  sectae 
acatholicac  matrimonium  contraxerint  vel  attentaverint,  extra 
propriam  dioeccsim,  in  quolibet  statu  vel  territorio  sub  ditione 
praesulum  qui  huic  concilio  adsunt  vel  adesse  debent,  excom- 
municationem  incurrcre  episcopo  reservatam,  a  qua  tamen 
quilibet  dictorum  ordinariorum  sive  per  se  sive  per  sacer- 
dotem  ad  hoc  delegatum  absolvere  poterit.  2.  Quod  si  in 
propria  dioccesi  ita  deliquerint,  statuimus  eos  ipso  facto  iu- 
nodatos  esse  excommunicatione.  quae  nisi  absque  fraude 
leg-is  aliiim  episcopum  adeant,  eorum  ordinnrio  reservatur." 

^  Bened.  XIV.,  De  Syn..  lib.  v..  cap.  iv.,  n.  3.  i8i  Salz.,  lib.  iii.,  p.  45. 

383  Jan.  g,  1601,  and  Nov.  26,  1602.  W4  Bouix,  1.  c.,  p.  243. 


366  Of  Bishops. 

IV.  When  the  Pope  gives  any  one  power  to  absolve  from 
pontifical  reservations,  he  does  not  thereby  confer  power  to 
absolve  from  cases  reserved  by  bishops.2'0  Hence,  not  even 
regulars  can  absolve  from  diocesan  or  episcopal  reserva 
tions.21"  If  a  penitent,  who  has  committed  a  sin  reserved  by 
his  bishop,  confesses  in  another  diocese,  where  the  sin  is  not 
reserved,  he  may  there  be  absolved  by  any  simple  confessor, 
provided  he  did  not  go  chiefly  in  fraudem  legist  When  a 
case  is  reserved  in  a  provincial  council,  the  power  to  absolve 
from  it  is  not  taken  from  the  several  bishops  of  the  province.9" 

ART.  XII. 

Of  the  Power  of  Bishops  relative  to  Ecclesiastics. 
583.  Ecclesiastics  are  either  diocesan  or  extraneous. 
§  I .  Power  of  Bishops  over  the  Diocesan  Clergy. 

584. — I.  According  to  the  ancient  discipline  of  the 
Church,294  no  person  was  promoted  to  any  or  do,  whether 
major  or  minor,  without  being,  at  the  same  time,  attached  to 
some  church  or  pious  place,  where,  even  prior  to  being  or 
dained  a  priest,295  he  exercised  permanently  the  duties  of 
whatever  order  he  had  received.  Nor  was  he  allowed  to 
depart  from  the  church  for  which  he  was  ordained  without 
the  permission  of  the  bishop.296  This  discipline  had  become 
obsolete  many  centuries  before  the  Council  of  Trent.2" 
Clerics  were  promoted  even  to  the  priesthood  ad  titulum 
patrimonii  or  pensionis — i.e.,  absolute — and  without  being  as 
signed  to  any  church  or  receiving  any  ecclesiastical  appoint 
ment.298  Ecclesiastics  thus  ordained  were  at  liberty  either 
to  leave  their  dioceses  entirely  or  live  out  of  them.  Hence, 
many  clerics  were  continually  roving  from  place  to  place, 

M0  Kenrick,  tr.  xvrii.,  n.  159,  176.  i21  Phillips,  Lehrb.,  pp.  563,  564 

192  Bouix,  1.  c.,  p.  243.  '*>3  Ib.,  p.  244. 

394  Phillips,  Kirchenr ,  vol.  i.,  p.  608.  ™  Ib.,  pp.  612-617,  620. 

w  Ib.,  p.  610.        !97  Bouix,  I.e.,  p.  269.  "*  Phillips,  1.  c.,  pp.  608,  6ti. 


Of  Bishops.  367 

and  were  in  consequence  scarcely  amenable  to  any  bishop. 
II.  To  remedy  this  state  of  things  the  Council  of  Trent'9' 
restored  the  above  ancient  discipline,  so  far  as  major  or 
sacred  orders  are  concerned,  ordaining  that  no  one  should 
be  promoted  to  sacred  orders""  without  being  attached  to 
some  determinate  church,  and  that  a  person  thus  attached 
should  not  quit  his  place  without  permission  from  the 
bishop.  This  Tridentine  law,  however,  seems  at  present  to 
have  almost  universally  fallen  into  desuetude."  '  It  is  not 
observed  in  the  United  States.  In  fact,  it  were  imprac 
ticable,  as  things  are  at  present,  to  attach  seminarians,  when 
ordained  subdeacons  or  deacons,  to  any  particular  church, 
that  they  might  act  as  such  ;  for  they  remain  most  of  the  time, 
before  their  ordination  to  the  priesthood,  in  the  seminary, 
and  could  therefore  be  of  little  use  to  pastors.302  Moreover, 
from  certain  declarations  of  the  5.  Congr.  Cone.,  it  may  be  in 
ferred  that  the  Tridentine  law  on  this  head  no  longer  obtains 
strictly.3"3  Benedict  XIV.,304  however,  holds  the  contrary. 

585.  Q.  Can  ecclesiastics  leave  their  dioceses  without  the 
permission  of  the  bishop  ? 

A.  We  premise:  A  distinction  must  be  drawn  between 
ecclesiastics  who  are  attached  to  some  special  church,  in  the 
Tridentine  sense,  or  have  a  benefice  requiring  personal  resi 
dence,  and  those  who  are  not  so  attached  or  have  no  such 
benefice.  We  now  answer:  I.  It  is  certain  that  ecclesiastics 
of  the  first  class  cannot  abandon  their  church  or  give  up 
their  benefice — v.g.,  parish,  canonship — and  go  to  another 
diocese  without  permission  from  the  bishop.305  This  is  evi 
dent  from  the  Council  of  Trent,'"18  and  also  inferable  from 
the  promise  of  obedience  given  in  ordination.  We  say, 
without  permission  from  the  bisliop  ;  for,  although  the  fathers 

™  Sess.  xxiii..  cap.  xvi.,  d.  R.  M0  Phillips,  1.  c  ,  pp.  619,  620. 

101  Bouix,  1   c  ,  p.  172.  *"  Craiss.,  n.  1003,  1004.  10J  Ib.,  n.  1005. 

104  De  Syn..  lib.  xi.,  cap  ii.,  n.  13.  M5  Bouix,  I.  c  .   pp.  270-274. 

**  Sess.  xxiii.,  cap.  xvi.,  d.  R. 


368  Of  Bishops. 

cA  Trent  merely  say  "  without  consulting  the  bishop'  (incon* 
sulto  episcopo),  this  phrase  is  commonly  explained  by  canon 
ists  as  meaning,  "  without  the  permission  of  the  frshop  " 
(invito  cpiscopo}™  2.  As  to  the  second  class  of  ecclesiastics, 
the  question  is  controverted.  The  affirmative— namely ,  that 
they  can  leave,  etc.  —is  the  sententia  communior  of  canonists. 
This  was  also,  until  of  late,  the  view  of  the  S.  Congr.  Concilii. 
We  say,  until  of  late ;  for  the  more  recent  declarations  of 
this  congregation  seem  to  favor  the  negative™  Hence,  as 
Craisson  infers,  these  ecclesiastics  cannot,  at  present,  with 
draw  entirely  from  their  dioceses  except  by  permission  of. 
the  bishop.  The  reason  seems  to  be  that  these  ecclesiastics, 
though  not  ordained  for  any  particular  church,  are  ordained, 
at  least,  for  the  service  of  the  diocese™ 

tilT  586.  Can  priests  in  the  United  States  entirely  with 
draw  from  their  dioceses  without  the  permission  of  the 
bishop?  They  cannot.  For  the  Second  Plenary  Council 
of  Baltimore  (109)  declares  that  all  priests  in  this  country 
who  are  either  ordained  for  a  diocese  or  properly  admitted 
into  it  are  obliged  to  remain  in  the  same  diocese  until  they 
are  canonically  dismissed  from  it310  Nay,  those  priests,  with 
us,  who  are  ordained  ad  titnlum  missionis,  and  who,  conse 
quently,  before  being  ordained,  must  swear  that  they  will 
remain  perpetually  in  the  diocese  for  which  thev  are  or 
dained,  cannot  leave  these  dioceses,  even  with  the  permission 
of  their  bishop.  For.  at.  present,  according  to  the  Instruc 
tion  of  the  S.  C.  de  P.  F.  de  Titulo  Ordinationis,  dated  April 
27,  1871,  they  can  be  released  from  their  missionary  oath 
binding  them  to  their  diocese  only  by  the  Holy  See,  and  not 
by  the  bishop.  Hence  the  bishop  cannot  give  such  a  priest 
an  exeat  except  after  the  release  or  dispensation  from  the 
oath  has  been  granted  by  Rome.  However,  by  special 
indult  of  the  S.  C.  de  P.  F.,  dated  Nov.  30,  1885,  granted  at 

"'  Uouix.  1.  c..  p.  270  :»*  Ib..  pp.  277.  278.  ™  Craiss.,  n.  1008 

3111  Cone.    PI.    B;,lt     II..   n.   109. 


Of  Bishops.  369 

the  request  of  the  TJiird  Plenary  Council  of  Baltimore,  our 
bishops  may  now  give  exeats  without  the  above  papal  dis 
pensation  to  priests  ordained  ad  titulum  missionis,  who  wish 
to  pass  from  one  diocese  to  another  of  t/ie  same  province,  as 
we  shall  explain  a  little  later  on. 

587.  Letters  Dimissory,   Testimonial,  and  Commendatory. — 

1.  Letters  dimissory  (litter ae  dimissoriae,  revercndac,  licentiates) 
are  those  given  by  a  bishop  to  his  subjects  in  order  that  they 
may  be  ordained  by  another  bishop  ;  or  also  those  by  which 
ecclesiastics  are  freed  from  the  jurisdiction  of  their  bishop. 
In   the  latter  sense,  however,  letters  dimissory  are  with  us 
called  exeats  (litter ae   excorporationis,    formerly    litterae  for- 
matae].     Priests  cannot  be  forced  to  take  their  exeat;  in  fact, 
bishops  should   not   give   exeats,  except   at    the    request   of 
clergymen   wishing  to   leave    the    diocese.      Moreover,    no 
priest,  even  in  the  United  States,   should  receive   his  exeat 
unless  it   be  certain  that    he   will  be  received   by  another 
bishop.        At  present,  a  priest   in  the  United  States  is  re 
ceived  into  another  diocese  in  two  ways,  namely,  formally 
and  presumptively.     As  to  the  manner  in  which  both  the 
formal  and   the  presumptive   admission    take    place,  see  the 

Third  Plenary    Council  of  Baltimore,   n.  62-69 1    It).,  p.   civ. 

2.  Letters  testimonial  (litterae  testimonials)  testify  to  the  orders 
received  and  to  the  absence  of  any  canonical  impediment 
prohibiting  a  priest  from  saying  Mass.     3.  Letters  commenda 
tory  (litterae  commendatitiae)  bear  witness,  moreover,  to  the 
morals  and  learning  of  ecclesiastics,  and  are  given  to  them 
when  about  to  travel.        The  S.  C.  de  Prop.  Fide,  by  letters 
of  its   cardinal    prefect,   dated    April   20,    1873,   commands 
bishops,  vicars,  and  prefects-apostolic  of    missionary  coun 
tries,  not  to  receive  any  strange  ecclesiastics  and  priests  into 
their  dioceses,  or  allow  them  to  say  Mass,  unless  they  bring 
with  them  commendatory  letters  from  their  bishops. 

§  2.  Rights  of  Bis/tops  in  regard  to  extraneous  Ecclesiastics. 

588.  A  bishop    not    only  can,  but   should,  forbid    priests 
who  are  strangers  and   have  no  letters  commendatory  from 


370 


Of  Bishops. 


their  ordinaries,  from  being  allowed  to  say  Mass  in  his  dio 
cese."°  He  miy,  moreover,  if  he  chooses,  ordain  that 
strange  priests  should  show  their  letters  either  to  himself  or 
his  vicar-general,  and  that  they  be  prohibited  from  saying 
Mass  without  a  written  permission  from  himself  or  his  vicar- 
general."1  We  say,  lie  may,  not  he  sJiould ;  for  he  can  allow 
them  to  say  Mass,  provided  they  exhibit  their  letters  com 
mendatory  to  the  rector  of  the  church  where  they  wish  to 
celebrate.  The  bishop  may  also  command  exempt  regulars 
not  to  permit  strangers,  whether  they  be  secular  priests  or 
regulars  of  a  different  order,  to  say  Mass,  even  in  their 
exempt  churches,  without  permission  from  him  or  his  vicar- 
general.  We  say,  regulars  of  a  different  order ;  for  regulars 
of  the  same  order  can  say  Mass  in  the  houses  of  their  order 
everywhere  without  having  permission  from  the  bishop."2 
A  priest  who  is  a  stranger,  even  though  he  has  no  letters 
commendatory — v.g.,  if  he  has  lost  them  on  his  journey— can 
and  should  be  permitted  by  the  bishop  to  say  Mass,  pro 
vided  he  can  sufficiently  prove  by  witnesses,  or  in  some 
other  way,  that  he  is  a  worthy  priest  ;323  nay,  he  may,  even 
if  unable  to  show  his  good  standing,  and  if,  in  consequence, 
not  allowed  to  say  Mass,  celebrate  privately,  provided  it  can 
be  done  without  scandal.3"  The  obligation  incumbent  on 
bishops — not  to  allow  Mass  to  be  said  by  outside  priests 
who  are  unprovided  with  letters  commendatory  from  their 
ordinaries325 — is  to  be  understood  of  extraneous  clergymen 
who  are  unknown,  but  not  of  those  who  are  eitner  wen 
known  or  at  least  known  to  one  or  several  trustworthy  per 
sons  in  the  diocese."6  Thus,  in  the  United  States,  and 
almost  everywhere,  priests  coming  from  neighboring  dio- 

'20  Cone.  Trid.,  sess.  xxiii.,  cap.  xvi.,  d.  R.;  and  sess.  xxii.,  Deer,  de  ob- 
•erv.  ct  evit.  in  Celebr.  Missae.  s"  Bouix,  1.  c.,  pp.  292,  293. 

*"  Ib. ;  cfr.  Craiss.,  n.  1015.  323  Bouix,  1.  c.,  p.  294. 

124  Ib.  3"6  Ib.,  p.  295  ;  cfr.  ib.,  De  Jure  Regular.,  vol.  ii.,  pp.  188,  iSo 

c*  Cfr.  Craiss.,  n.  1012   1016. 


Of  Bishops.  371 

jeses  are  allowed,  at  least  for  the  first  eight  or  ten  days,  tn 
say  Mass  without  having  or  showing  any  letters  commenda- 
tory.  A  bishop  cannot  forbid  outside  priests  to  say  Mass 
solely  because  they  are  strangers.327  Nay,  extraneous 
priests,  even  though  unprovided  with  letters  commenda 
tory,  cannot,  without  just  cause,  be  compelled  by  the 
bishop  to  leave  the  diocese,  if  they  do  not  wish  to  cele 
brate,  but  merely  to  reside  there.328 

589.  Q.  What  are  the  rights  of  bishops  in  the  United 
States  as  regards  extraneous  clergymen  ? 

A.  We  premise:  These  clergymen  are  of  two  kinds:  I. 
Some  travel  or  make  short  trips  out  of  their  dioceses  for  the 
sake  of  recreation,  the  good  of  their  health,  or  to  make 
collections.  2.  Others  leave  their  dioceses  in  order  to 
seek  admission  into  other  dioceses.  We  now  answer:  i. 
The  first  class  falls  under  the  above  rules  in  regard  to  say 
ing  Mass.  Priests,  with  us,  are  forbidden,  under  pain  of 
suspensio  ferendae  sententiae™  from  making  collections  in  a 
strange  diocese  without  the  permission  of  the  ordinary  of 
the  place. 

II.  As  to  the  second  class,  bishops  are  exhorted  not  to 
give  them  permission  to  say  Mass,  or  administer  the  sacra 
ments,  and,  a  fortiori,  not  to  receive  them  into  their  dioceses, 
I,  if  they  have  no  letters  commendatory  from  the  ordinarv 
to  whom  they  last  belonged  ;  2,  if  they  have  neglected  to 
select  another  ordinary  within  six  months.330  Extraneous 
priests  coming  from  Europe  should  not  be  admitted  into  a 
diocese  nisi  littcris  suorum  episcoporum  prius  missis,  consensum 
fpiscopi  in  cujus  dioeccsiin  transirc  desiderant,  obtinuerint?^ 

\£ij~  III.  At  present,  according  to  the  Third  Plenary 
Council  of  Baltimore,  secular  priests  applying  for  admission 
into  a  diocese  cannot,  as  a  rule,  be  forthwith  adopted  per- 

521  Bouix,  De  Episc.,  1.  c.,  p.  297.  ;W8  Ib.,  p.  300. 

3i9  Cone.  PL  Bait.  II.,  n.  119.         :i::o  Ib..  n.  no.  331  Ib.,  n.  121. 


372  Of  Bishops. 

manently,  but  must  be  first  received  on  probation  for  a  term 
of  three  or  five  years.  We  say,  as  a  rule  :  for,  by  the  consent  of 
the  bishop  receiving-,  and  of  the  bishop  dismissing,  and  of  the 
priest  to  be  received,  this  probatory  term  can  be  omitted.  " 

IV.  Besides,  when  there  is  question  of  a  priest  ordained 
for  or  received  into  a  diocese  ad  titulum  missionis,  the  bishop 
who  is  about  to  receive  him  should,  six  months  before  adopt 
ing  him   absolutely,  write  to  the   S.  C.  de  Prop.  Fide  for  a 
dispensation  from  the  missionary  oath.     For,  all  priests  who 
are  ordained  ad  titulum  missionis  must  take  the  oath  to  re 
main  perpetually  in  the  diocese  or  vicariate  for  which  they 
are  ordained.     This  oath  binds  so  strictly  that  the  Holy  See 
alone  can  grant  a  release  from  it.     When  the  bishop  has  ob 
tained  this  release  or  dispensation,  lie  must  administer  the 
missionary  oath  anew  to  the  priest  whom  he  is  about  to  ad 
mit  into  his  diocese.     (Cone.  PI.  Bait.  III.,  n.  64 .) " 

V.  What  has  just  been  said  respecting  the  dispensation 
from  and  renewal  of  the  missionary  oath   does  not,  at  pres 
ent,  apply  to  priests  ordained  "ad  titulum  missionis"  who 
wish  to  pass  from  one  diocese  into  another  within  the  same 
ecclesiastical  province.      For,   by   special  indult  of    the   Holy 
See,  dated  Nov.  30,  1885,  the  missionary  oath  taken  by  priests 
ordained  ad  titulum  missionis,  binds,  in  future,  or  holds  good 
for  the  entire  province,  and  not  merely,  as  was  the  case  for 
merly,  for  the  single  diocese  for  which  it  was  taken.     Con 
sequently,    priests  ordained  ad  titulum   can  now,    with  the 

332  Cone.  PI.  Bait.  III.,  n.  63;  Instr.  S.  C.  de  P.  F.  1871,  n.  n,  12;  cf.  De 
Angelis,  1.  i.,  t.  xxii.,  n.  4. 

*  The  S.  C.  de  P.  F. ,  Ad  Dubia  circa  ordinatos  Tit.  Miss.,  decided,  on  Feb.  4, 
1873:  Q.  4.  Utrum  explicatius  declarandum  sit,  sacerdotem  a  dioecesi  cui 
juramento  ligatur  ad  aliam  transeuntem  debere  in  hac  altera  novum  juramen- 
tum  emittere;  neque  hoc  facere  posse  absque  venia  S.  Congregationis. 

Q.  5.  Utrum  necessario  requiratur  venia  S.  Congregationis  ut  ordinatus 
titulo  missionis  quin  praestiterit  juramentuni.  posMt  a  dioecesi  pro  qua  ordi 
natus  fuit,  ad  aliam  transire.  The  S.  C.  de  P.  F.  replied:  Ad  4™  affirmative  ad 
vtrumque.  Ad  5m  affirmative.  (See  Cone.  PI.  Bait.  III.,  pp.  2IO,  211.) 


Of  Bishops.  373 

consent  of  the  bishop  dismissing,  and  of  the  bishop  receiving 
them,  pass  from  one  diocese  into  another,  within  the  same 
province,  without  obtaining  any  papal  dispensation  releas 
ing  them  from  their  former  oath,  and  without,  taking  the 
oath  anew  for  the  cliocese  into  which  they  are  to  be  received. 
(Sec  Cone.  PL  Bait.  III.,  p.  civ.) 

VI.  As  to  the  admission  of  priests  who   leave  religious 
communities  having  solemn  or  only  simple  vows,  the  Third 
Plenary  Council  of  Baltimore,  n.  65,  enacts :  "  Quod  vero  per- 
tinet  ad  sacerdotes  religiosos,  qui  vota  solemnia  nuncuparunt, 
atquc  ex  apostolica  indulgentia  in  saeculo  vivere  permittun- 
tur;  vcl  qui  ediderunt  vota  simplicia  et  a  suis  congregatio- 
nibus  cgressi  sunt,  si  ad  episcopum  accedant  petuntque  in  ejus 
dioecesim  adscribi,  primo  quidem  tantum  ad  missae  celebra- 
tionem,   dummodo   literas  saecularizationis  ac  commendan- 
tias  Ordinarii   loci    a   quo   discesserunt   exhibeant,  admitti 
possunt,  nondum  vero  ad  triennale  experiment um  in  ministerio 
pastoral!.     Volumus   enim,    ut   ad    hanc    probationer!!    sub- 
eundam  non  admittantur,  antequam  episcopus,  exquisitis  ab 
ordinis  vel  Instituti  superioribus  et  episcopo  commendante 
secretis  informationibus,  iisque  ad  S.  Congregationem  remissis, 
hujus  veniam  sciscitatus  sit ;  qua  obtenta,  peractoque  experi- 
mento,   ii  qui  non  ad  tempus,  sed  in  perpctmtm  S.  Congrega- 
tionis   Episcoporum   et    Regularium   rescripto  saecularizati 
sunt,  clero  dioecesano  incardinari  possunt,  dummodo  priusde 
titulo  canonico  sibi  providerint.     Quod  si  assumunt  titulum 
missionis,  simul  juramentum  dioecesi    perpetuo  inserviendi 
praestarc  tenentur  (Instr.  S.  C.  cle  P.  F.,  17  Apr.  1871,  n.  12)." 

VII.  Finally,  the  Third  Plenary  Council  of  Baltimore  (n.  67) 
decrees  that  no  bishop  shall  give  an  exeat  to  any  of  his  priests 
unless  it  is  certain  that  such  priest  will  be  received  into  an 
other  cliocese;  that  where  a   priest   has   received   his  exeat 
before  he  has  been  received  into  another  diocese,  such  exeat 
shall  not  take  effect,  and  such  priest  shall  not  be  considered  as 
dismissed  from  the  diocese,  until  he  has  been  either  formally 


374  Of  Bishops. 

or  presumptively  received  into  another  diocese,  and  until 
(when  there  is  question  of  the  formal  admission)  his  bishop 
has  been  authentically  notified  of  the  admission. 

ART.  XIII. 
Of  the  Powers  of  Bishops  concerning  Indulgences. 

590.  Q.  What  are  the  indulgences  which  bishops  can  at 
present  grant  by  virtue  of  the/?*.?  commune  f 

A. — i.  An  indulgence  of  one  year,333  in  the  consecration, 
not  mere  blessing,834  of  a  church  ;  2,  of  forty  days  only  in 
other  cases.  We  observe:  i.  These  indulgences  may  be 
granted  also  by  bishops-elect ;  because  the  giving  of  an  in 
dulgence  is  an  act  of  jurisdiction,  not  of  order.836  2.  They 
can  be  granted  for  the  living  only,  not  for  the  dead.  3. 
Bishops  can  grant  them  only  to  their  subjects  ;  an  indul 
gence,  however,  attached  by  the  bishop  to  some  pious  place 
— v.g.,  to  the  visiting  of  and  praying  in  some  church  or 
chapel338  (indulgentia  localis] — may  be  gained  by  strangers 
who  comply  with  the  conditions  prescribed.337  4.  Arch 
bishops  can  grant  them,  not  only  in  their  own  dioceses,  but 
in  all  the  dioceses  of  their  provinces,  and  that  even  out  of 
the  visitation.338  5.  Bishops  may  delegate  the  power  of 
granting  them  not  only  to  priests,  but  also  to  inferior  eccle 
siastics.  6.  Neither  coadjutor  nor  titular  (i.e.,  in  partibus) 
bishops  nor  vicars-general  have  power  to  concede  indul 
gences,  unless  they  are  specially  empowered  to  do  so  by  the 
ordinaries  of  places.  Neither  can  vicars-capitular,  scde  va 
cant  e,  grant  indulgences.339 

591.  Q.  What  indulgences  can  the  bishops  of  the  United 
States  grant  by  virtue  of  the  jus  speciale  or  particular  e — i.i\, 
by  virtue  of  the  faculties  given  them  by  the  Holy  See  ?     In 

*"  Ferraris,  V.  Indulgentia,  art.  i.,  n.  5  ;  cfr.  Konings,  n.  1778. 

334  Our  Notes,  n.  251.  335  Bouix,  1.  c.,  pp.  301,  302. 

sst>  Ferraris,  1.  c.,  n.  18.  337  Bouvier,  Inst.  Theol.,  vol.  Hi.,  p.  5261 

138  Cfr.  Phillips,  Lehrb.,  p.  571.        339  Ib. 


Of  Bishops.  375 

other  words :    What   special  indulgences  are  grantable  by 
our  bishops  ? 

A.  A  plenary  indulgence,  i,  to  all  the  faithful  of  their 
dioceses  three  times  a  year ;  34°  2,  to  all  persons  when  first  con 
verted  from  heresy  ; 341  3,  to  each  of  the  faithful,  in  articulo 
mortis;  4,  in  the  Forty  Hours'  Devotion;3"  5,  our  bishops 
may  also  impart,  four  times  a  year,  the  Papal  benediction, 
with  a  plenary  indulgence,  to  be  gained  by  those  present.3" 
They  can  also  declare  an  altar  privileged  in  every  church  of 
their  dioceses  ; 344  bless  rosaries,  crucifixes,  sacred  images,3" 
erect  certain  confraternities,  the  Way  of  the  Cross,  with  all 
the  customary  Papal  indulgences,  etc.346  Publication  of  In 
dulgences  granted  by  the  Pope. — To  guard  against  imposition 
and  prevent  abuses  in  this  matter,  Papal  indulgences  can,  as 
a  rule,  be  published  in  a  diocese  only  with  the  permission  of 
the  bishop.347  Hence,  Pontifical  briefs  granting  new  indul 
gences,  even  though  it  be  to  churches  of  regulars,348  are  to  be 
submitted  to  the  bishop  before  being  published.349  However, 
as  Konings,  n.  1778,  says,  indulgences  conceded  by  the  Pope 
to  the  entire  Church  in  rescripts  already  published  and 
quoted  by  approved  authors — v.g.,  by  Ferraris— or  contained 
in  the  Raccolta,  or  Prinzivalli's  Collection,  do  not  require 
the  episcopal  promulgation. 

ART.  XIV. 
Rights  and  Duties  of  Bishops  in  regard  to  Relics. 

592.  By  the  relics  of  saints  (reliquiae  sanctorum}  are 
understood  not  only  their  bodies,  in  whole  or  in  part,  but 
also  their  garments,  instruments  of  penance,  and  the  like.36" 
Relics  which  are  newly  discovered,  or  produced  for  the  first 

M0  Facult.,  form,  i.,  n.  14.  3"  Ib.,  n.  17. 

M2  Ib.,  n.  1 8  ;  cfr.  ib.,  n.  19,  20.  S43  Facult.  Extraord.  C.,  n.  7. 

144  Ib.,  n.  8.        S45  Ib.,  n.  9.        34*  Ib.,  n.  10,    ap.  our  Notes,  pp.  463,  470  seq 

847  Phillips,  1.  c.,  p.  572  ;  cfr.  Cone.  Trid.,  sess.  xxi.,  cap.  ix  ,  i.  R. 

'"  Supra,  n.  112  ;  cfr.  Craiss.,  n.  1022.  349  Ferraris,  I.e..  art.iv.,  n.  31. 

160  Ferraris,  V.  Veneratio  Sanctorum,  n.  52  ;  cfr.  Reiff.,  lib.  iii.,  tit.  xlv.,  n.  24. 


3/6  Of  Bishops. 

time  cannot  be  exposed  for  public  veneration  (cultus  publicus) 
until  they  have  been  properly  authenticated  and  approved.31" 
Old  relics,  however,  even  though  their  authentications  are 
lost,  should  be  held  in  the  same  veneration  as  before.'5" 
I.  Authentication  of  Relics. — By  whom  are  relics  to  be  ex 
amined  and  approved  before  being  exposed  for  public  vene 
ration?  We  premise:  We  here  speak  of  newly-discovered 
or  newly-produced  relics.  We  now  answer:  i.  The  relics 
of  those  who  are  already  canonized  or  beatified  may  be  au 
thenticated  and  approved  in  order  to  public  veneration, 
not  only  by  the  Roman  Pontiff,  but  also  by  bishops ;  nay, 
these  relics,  even  though  already  approved  by  the  Pope, 
should,  nevertheless,  be  again  examined  by  bishops  before 
being  exposed  in  dioceses,  for  the  purpose  of  ascertaining 
whether  they  were  in  reality  authenticated  in  Rome.353 
Relics,  therefore,  cannot  be  exposed  in  a  diocese  for  public 
veneration,  even  in  the  churches  of  regulars,364  without  the 
permission  of  the  bishop."5  Should,  however,  any  grave 
question  arise  touching  these  matters,  the  bishop  should  not 
proceed  without  having  first  consulted  the  Pope.3"6  2.  The 
relics  of  persons  deceased  in  the  odor  of  sanctity,  but  not  yet 
beatified,  can  be  approved,  for  public  veneration,  by  the  Pope 
only,  not  by  bishops.357  At  present,  however,  these  relics  are 
not  thus  approved  by  the  Pope ;  for  this  approbation  would 
be  equivalent  to  beatification,  which  now  precedes  the  public 
veneration  of  relics.  It  is  allowed,  however,  to  honor  pri 
vately  (cultus privatus)  all  relics,  new  as  well  as  old,  not  only 
of  those  who  are  canonized  or  beatified,  but  also  of  those  who 
died  in  the  odor  of  sanctity,  even  when  such  relics  have  not 
been  approved  by  any  one.358  II.  Transfer  of  Relics  (transla- 
tiones  reliquiarum). — Can  bishops  transfer  the  bodies  or  really 

161  Cone.  Trid.,  sess.  xxv.,  De  Invocat.,  etc  ;  cfr.  Reiff.,  1.  c  ,  n.  2t>. 

"*  Ferraris,  1.  c.,  n.  61.  353  Reiff.,  1.  c.,  n.  27. 

JM  Ferraris,  1.  c,,  n.  55,  56.  3;'5  Phillips,  1.  c  ,  pp.  724,  723. 

**•  Cone.  Trid.,  1    c.,  in  fine.  -57  Reiff,  I.  c.,  n.  28.            3M  Ib.,  n.  20,  30 


Of  Bishops,  377 

principal  relics  (reliquiae  insignes]  of  saints  from  one  church  to 
another  without  the  permission  of  the  Holy  See  ?  There  are 
two  opinions.  The  negative— namely,  that  they  cannot,  etc. 
—held  by  Benedict  XIV.359  and  others,  seems  at  present  the 
more  probable  opinion.  Relics  cannot  be  sold.36 

ART.  XV. 

Rights  and  Duties  of  Bishops  respecting,  I,  Stipends  of  Masses, 
2,  the  Reduction  of  the  Number  of  Founded  Masses ;  3, 
other  Pious  Legacies. 

593. — I.  Stipends  of  Masses. — I.  It  is  certain  that  the 
bishop  has  a  right  to  determine  what  sum  of  money  shall 
constitute  a  just  honorary  for  Masses  or  intentions ;  arid  even 
regulars  are  bound  to  abide  by  the  rule  laid  down  by  him.8" 
It  is  commonly  held  by  canonists  that  the  alms,  as  fixed  by 
the  bishop  or  custom,  is  to  be  considered  a  just  stipend  ;  " 
it  need  not,  however,  constitute  the  support  of  a  priest  for  a 
whole  day.363  In  the  United  States  the  honorary  is  general 
ly  one  dollar  ($i).3"  2.  It  is  certain  that  priests  cannot 
demand,  though  they  may  accept  if  spontaneously  offered,  a 
stipend  larger  than  that  fixed  by  custom  or  episcopal  enact 
ment.385  3.  According  to  the  more  probable  opinion,  the 
bishop  can  ordain  that  priests  shall  not  accept  less  than  the 
honorary  established  by  custom  or  law.  In  the  United 
States  priests  should  not,  as  a  rule,  accept  less  than  the 
amount  fixed  by  the  bishop.368 

594.  What  is  to  be  said  of  churches— v.g.,  cathedrals  or 
larger  parishes — where  a  great  number  of  stipends  is  received? 
i.  It  is  not  allowed,367  except  with  the  consent  of  those  giving 

868  DC  Beatif.  et  Canoniz.,  lib.  iv.,  part,  ii.,  cap.  xxii.,  n.  11-20. 

890  Reiff.,  1.  c.,  n.  31.        S61  Bouix,  1.  c.,  pp.  302,  393-          3M  Craiss.,  n.  1039. 

188  Phillips,  1.  c.,  p.  551  ;  cfr.  Cone.  PI.  Bait.  II.,  n.  369,  note  2. 

"*  Our  Notes,  n.  331.  *"  Cone.  PI.  Bait.  II.,  n.  369.  *•*  Ib. 

**  Craiss.,  n.  1042. 


3/8  Of  Bishops. 

the  stipends,  to  accept  these  honoraries  in  such  quantities  as 
to  render  it  impossible  to  celebrate  all  the  corresponding 
Masses  in  due  time.363  In  the  United  States,  as  elsewhere,  it 
is  customary  to  send  intentions,  when  too  numerously  re 
ceived,  to  other  priests  less  favored.  Care,  however,  must 
be  taken  that  the  Masses  are  said  in  due  time.  A  delay  ex 
ceeding  three  months  is,  generally  speaking,  a  mortal  sin ; 
nay,  as  regards  Masses  for  recently-deceased  persons,  a 
delay  of  one  month  constitutes,  according  to  many,  a  mortal 
sin."9  2.  Bishops  should  see  that  rectors  of  these  churches 
do  not  retain  for  themselves,  or  even  for  their  churches,  any 
portion,  however  insignificant,  of  the  stipends ;  only,  in 
case  S7°  they  are  too  poor  to  bear  the  necessary  expense  at 
tendant  on  the  celebration  of  the  Masses,8"  it  is  allowed  to 
keep  merely  as  much  as  will  cover  these  outlays. 

595. — II.  Foundations  for  Masses. — Mere  stipends  (eleemo- 
synae  missarum,  eleemosynae  manuales,  honoraria,  stipendia  S7a) 
differ  from  foundations  for  Masses  (fundationes  Missarum, 
Missae  fundatae] ;  the  latter  S7S  are  endowments  made  to  en 
sure  the  permanent  celebration  of  Masses  ; s"  the  former  are 
given  for  the  celebration  of  Masses  in  this  or  that  case  only. 
We  observe:  i.  Secular  priests,  even  in  the  United  States,87* 
cannot  accept  foundations  of  Masses  without  the  written 
permission  of  the  bishop.378  2.  Regulars  must  have  the  con 
sent  of  their  superiors-general  or  provincials.  We  ask :  Can 
bishops  at  the  present  day  reduce  the  number  of  founded  87T 

868  Bouix,  De  Capitulis,  p.  273.  s69  Konings,  n.  1324,  q.  2,  3. 

879  Bouix,  1.  c.,  pp.  273,  274. 

171  These  expenses — v.g.,  for  altar  wine,  candles — are  defrayed,  with  us, 
from  the  income  of  the  church.  3r"  Phillips,  1.  c.,  p.  549.  S73  Ib.,  p.  552. 

874  I.e.,  either  for  a  given  number  of  years  or  perpetually  (Cone.  PI.  Bait 
II.,  n.  370).  *»  Cone.  PI.  Bait.  II.,  n.  370. 

378  Bouix,  De  Episc.,  vol.  ii.,  p.  304. 

77  We  say,  founded  Masses;  because  no  reduction  can  take  place  in  regard 
to  ordinary  intentions  or  Missae  manuales  (Bened.  XIV,  De  Syn.,  lib.  xiii., 
cap.  ult.,  n.  29). 


Of  Bishops.  379 

Masses  ?  They  cannot,  except  with  the  permission  of  the 
Holy  See.878  The  Council  of  Trent,  it  is  true,  gave  bishops 
the  power  to  do  so  in  certain  cases.  But  this  power,  except 
where  the  instrument  of  foundation  itself  authorizes  the 
bishop  to  make  a  reduction,  was  reserved  exclusively  to  the 
Holy  See  by  Pope  Urban  VIII.379  The  reasons  for  which 
the  Holy  See,  if  applied  to,  usually  grants  a  reduction  of 
the  number  of  Masses  to  be  said  (reductio  Missaruni),  are,  for 
instance/'0  I,  the  scarcity  of  priests,  making  it  impossible  to 
say  the  Masses;  2,  depreciation  of  the  fund$  or  capital;  3, 
total  loss  of  the  fund.  If,  however,  the  fund  is  lost  without 
any  fault  on  the  part  of  the  ecclesiastical  authorities,  the 
obligation  to  celebrate  lapses  ipso  facto**'1'  We  observe  here, 
bishops  not  unfrequently  receive  faculties  (v.g.,  for  five  or 
ten  years,  or  longer)  from  the  Holy  See  to  reduce  the  num 
ber  of  Masses  where  it  is  necessary  to  do  so. 

596.  What  does  the  Second  PI.  Council  of  Baltimore  counsel 
in  regard  to  foundations  of  Masses,  whether  perpetual  or  tem 
porary,  in  the  U.  S.?  I.  No  general  rule  as  to  the  requisite 
amount  of  the  fund  can  be  laid  down  for  the  whole  country  ; 
each  ordinary  is  free  to  fix  the  sum  for  his  diocese.382 
Nevertheless,  the  fathers  seem  to  recommend  that,  especial 
ly  as  regards  perpetual  Masses,  the  fourtfi  decree  of  the 
Second  Provincial  Council  of  Cincinnati  be  followed— to 
wit :  That  the  fund  or  endowment  for  an  annual  Low  Mass 
be  at  least  $50;  for  a  High  Mass  (Missa  Cantata],  $ioo.SPS  3. 
Great  circumspection  should  be  used  in  accepting  founda 
tions,  especially  of  perpetual  Masses.384  It  were  advisable, 
therefore,  to  accept  foundations  only  on  the  following  condi 
tions  :  i .  That  the  obligation  to  celebrate  shall  cease  if  the  fund, 

*"  This  holds  true  also  of  bishops  in  the  United  States.  (Cfr.  Cone.  PI. 
Bait.  II.,  p.  319). 

""Bened.  XIV.,  1.  c.,  n.  19,  20;  cfr.  Const.  Cum  Saepe  of  Urban  VIII., 
Jan.  21,  1625.  SBOBouix,  1.  c.,  p.  304-  M1  Phillips,  1.  c.,  p.  554. 

••»  Cone,  PI  Bait.  II.,  n.  370.         s"  Ib.,  Append.,  p.  319-         ""* Ib-»  n-  3?o- 


3 So  Of  Bishops. 

no  matter  from  what  cause,  be  either  entirely  lost  or  yield  no 
income  ;  2,  that  the  ordinary  shall  have  power  to  reduce  the 
number  of  Masses  if  the  interest  on  the  capital,  no  matter  for 
what  reasons,  becomes  insufficient  to  make  up  the  stipend 
hxed  by  the  founder ;  3,  that  if,  for  whatever  cause,  the 
church  in  which  the  Masses  are  to  be  said  is  destroyed  or 
deprived  of  a  priest,  the  Masses  can  be  said  in  any  church 
to  be  designated  by  the  ordinary.386 

597.  What  is  decreed  by  the  Second  Plenary  Council 
of  Baltimore  concerning  the  record  to  be  kept  of  Masses, 
whether  ordinary  or  founded?  i.  In  all  churches,  regular 
as  well  as  secular,  there  should  be  a  tablet  or  plate  (catalogus, 
tabella  onerum),  on  which  should  be  inscribed  all  founded 
Masses,  whether  temporary  or  perpetual.386  2.  In  every 
sacristy  there  should  be  two  registers :  one  in  which  a  re 
cord  is  to  be  kept  of  all  founded  Masses  ;  another  where  the 
ordinary  intentions  are  to  be  noted  down.  The  fulfilment 
of  the  obligation — i.e.,  the  celebration  of  the  Masses — should 
also  be  carefully  recorded  in  these  books  respectively.387 
Bishops  not  only  can,  but  should,  enforce  those  regulations, 
especially  in  churches  where  a  large  number  of  Masses  are 
celebrated.38" 

598. — III.  Devises  and  Legacies  for  Pious  or  Charitable 
Uses  (testamenta  ad  causas  pias,  legata  pid). — By  test  amenta  ad 
causas  pias  are  understood  those  last  wills  in  which  the  testa 
tor  leaves ""  his  (real']  estate,  i ,  to  a  church  ;  2,  or  to  a  charitable 
institution — v.g.,  to  an  asylum,  hospital,  protectory  ;  3fl°  or,  3,  to 
some  religious  or  charitable  society/'1"  Legata  pia  or  ad  pias 
causas  are  legacies  (i.e.,  personal  property  given  by  wills)  left 
for  religious  or  charitable  uses.""  We  now  ask :  Can  bishops, 

*"*  Konings,  n.  1325,  qu.  18.  8b6  Cone.  PI.  Bait.  II.,  n.  371.  m  Ib. 

*88  Bouix,  De  Capitulis,  p.  274.     Paris,  1862. 

189  Of  course,  for  religious  or  charitable  purposes. 

"°  Cfr   Soglia,  vol.  ii.,  p.  264.  W1  Ib.,  p.  263. 

i%w  Ib  ,  p.  265  ;  cfr.  Konings,  n.  915. 


Of  Bishops.  381 

even  for  just  reasons,  alter  these  last  wills  or  legacies  ?  In 
other  words,  can  they  use  the  money  or  real  estate  thus  de 
vised  for  other  purposes  than  those  specified  in  the  will  ? 
The  question  is  controverted.  According  to  St.  Liguori,*" 
the  negative — namely,  that  they  cannot — is  the  scntentia 
probabilior.  The  Pope  alone  can,  for  just  cause,  change 
these  wills.  However,  the  following  is  certain:  I.  Where, 
by  reason  of  custom  (v.g.,  in  France),  bishops  alter  such 
wills  without  the  permission  of  the  Holy  See,  it  is  safe  to 
abide  by  the  decision  of  the  bishop.384  2.  Bishops  are,  ac 
cording  to  canon  law,  executors  of  all  pious  dispositions 
\lcgata  pia,  dispositions*  piac\  whether  made  by  last  will  or 
between  the  living ;  they  should  consequently  see  to  the 
exact  performance  of  what  is  enjoined  in  these  legacies. 
This  holds  true  even  though  the  testator  expressly  excludes 
the  bishop  from  the  executorship."95  3.  The  testator  may, 
however,  appoint  any  other  suitable  executor ;  in  this  case 
the  bishop  cannot  directly  interfere  ;  but,  if  the  executor 
neglects  to  carry  out  the  provisions  of  the  will,  the  execu 
tion  devolves  on  the  bishop  ;  this  holds  also  of  bequests 
inter  vivos.w  We  observe :  Property  in  the  United  States 
cannot  be  legally  devised  to  a  corporation  (v.g.,  to  a  church, 
when  incorporated),  unless  such  corporation  is  authorized 
by  its  charter  to  receive  bequests  by  will.597  We  say,  legally; 
for  devises  for  religious  and  charitable  uses  are  valid  and 
binding,  in  foro  conscientiae,  even  though  null  according 
to  law, 

"•  Lib.  iv.,  n.  931,  qu.  2.  m  Craiss.,  n.  1048- 

"•  Ferraris,  V.  Episcopus,  art.  vi.,  n.  171,  172.  *"  Ferraris,  1.  c.,  n.  17* 

m  Wells,  p.  94  ;  cfr.  Kent,  vol.  iv.,  n.  507. 


Ooz 


Of  Bishops 


ART.  XVI. 

Rights  and  Duties  of  Bishops  concerning  tJie   Taxes  of  tht 
Episcopal  Chancery. 

599.  By  authority    of  Pope    Innocent    XL,  a   decree,**" 
written  in    Italian,  was  issued  in   1678*™  fixing  the  emolu 
ments  that  can  be  asked  or  received  for  the  various  acts, 
instruments,  or  writings  of  the  episcopal  chancery.400     The 
object   of   this    decree,    usually    named     Taxa    Innocentiana, 
was  to  introduce,  as  far  as  possible,  a  uniform  rate  of  taxa 
tion  into  all  episcopal  chanceries  throughout  the  world.401 

600.  Q.  What  are  the  chief  regulations  contained  in  the 
decree  of  Innocent  XI.  ? 

A. — I.  Neither  bishops  nor  their  vicars-general  or  other 
officials  can  ask  or  receive  anything,402  even  though  it  be 
voluntarily  offered,  i,  for  the  conferring  of  orders  or  for 
other  acts  pertaining  to  ordination — v.g.,  for  permission  to 
receive  orders  from  some  other  bishop  ;  2,  for  appointments 
(collatio)  to  benefices  or  parishes  ;  3,  for  dispensations  from 
impediments  of  marriage  or  from  the  publication  of  the 
banns  and  the  like.403  Though  bishops,  in  granting  matri 
monial  dispensations,  cannot  accept  any  honorary,  they  are, 
as  a  rule,  allowed  to  receive  a  suitable  alms,  to  be  applied 
for  charitable  uses.404  We  say,  alms;  now,  "  eleemosynae 
nomine  intelligi  non  potest  fixa  quaedam  summa  a  quovis 
eroganda,  sed  ea,  quam  quisque,  ratione  habita  suarum  facul- 
tatum,  commode  dare  potest."  405  Hence,  they  cannot  estab 
lish  or  demand  a  fixed  tax  or  sum  of  money  for  dispensa- 

m  Ferraris,  V.  Taxa.  *"  Phillips,  Lehrb.,  p.  290. 

***  Bouix,  De  Episc.,  vol.  ii.,  pp.  307,  308.  401  Ferraris,  1.  c.,  n.  r,  2. 

402  Except  the  candle  offered  by  the  person  ordained,  according  to  the  Pon 
tifical.  403  Ferraris,  1.  c.,  vol.  viii.,  col.  ii.,  p.  216.  404  Craiss.,  n.  1057. 
40S  Cone.  PI.  Bilt    II..  n.  iSfi.  note  i  ;  cfr   our  Notes,  n.  353. 


Of  Bishops.  383 

dons ; <08  they  may,  however,  suggest  the  amount  of  alms,  to 
vary  according  to  the  means  of  the  petitioners.  In  this 
sense,  it  seems  to  us,  the  taxes  for  dispensations,  as  estab 
lished  in  the  United  States,  must  be  understood.  II.  How 
ever,  the  chancellor  of  the  bishop  may  receive  a  moderate 
fee  for  his  labor  in  drawing  up  the  requisite  papers  in  the 
above  cases.407  Thus,  according  to  the  Taxa  Innocentiana,  he 
may  receive  for  letters  dimissory,  testimonial,  and  the  like, 
a  Roman  giulio  (10  cents)  ;  for  letters  of  appointment  to 
benefices  or  parishes,  a  Roman  scudo  ($i  in  gold) ;  for  writing 
dispensations,  three  Roman  giulios  (30  cents).  As  a  rule,  the 
chancellor's  fe^  for  each  instrument  should  not  exceed,  at 
the  highest  calculation,  a  Roman  scudo  ($i).  But  he  cannot 
receive  any  fee  for  letters  giving  permission  to  say  Mass, 
administer  the  sacraments,  preach,  and  the  like.408 

601.  Can  bishops  dispose  of  the  emoluments  or  receipts 
of  their  chanceries,  and  in  what  manner  ?  We  premise  : 
These  receipts  are  of  two  kinds  :  i ,  chancery  fees  proper — 
i.e.,  the  perquisites  for  drawing  up  letters  of  dispensation, 
and  the  like;  2,  alms  for  dispensations.  We  now  answer: 
i.  The  chancellor  should  have  a  fixed  salary.  The  emolu 
ments  of  the  first  kind — i.e.,  the  chancery  fees  proper — may 
go  to  make  up  this  salary  and  to  defray  the  other  expenses 
of  the  chancery  office ; 409  the  balance  must  be  distributed 
for  pious  uses,  although  the  5.  C.  C.  has  sometimes  allowed 
it  to  be  used  by  bishops  for  their  own  wants.410  Bishops 
therefore  cannot,  except  by  permission  from  the  Holy  See, 
appropriate  any  part  of  these  receipts  to  themselves.  Where 
the  chancellor  has  no  fixed  salary  these  emoluments,  it 

400  This  applies  also  to  bishops  in  the  United  States:  "  Quum  facilitates 
extraordinariae  episcopis  [in  U.  S.]  a  Sancta  Sede  collatae,  sine  ulla  mercede 
exercendae  sint,  nulla  exigenda  est  taxa  pro  dispensationibus  ab  impedimentis 
matrimonii  .  .  .  iis  tantum  exceptiscasibus,  in  quibus  Ap.  Sedes  eleemosy 
nam  oratoribus  injungendarn  monet "  (Cone.  PI.  Bait.  II.,  n.  386;  cfr.  ib.,p 
-cxliii;  C.  PI.  B;ilt.  III.,  n.  134).  407  Craiss.,  n.  1054.  *°8  Ib.,  n.  1056. 

409  Bouix,  1.  c,,  pp.  313,  314.  4Ul  Ferraris,  V.  Cancellaria,  n.  12. 


384  Of  Bishops 

would  seern,  belong  entirely  to  him.  '  2.  The  receipts  of 
the  second  kind — i.e.,  the  alms  for  dispensations — must  be 
applied  exclusively  for  pious  uses,  and  cannot  go  even  to 
wards  making  up  the  chancellor's  salary.413 

602.  Is  the   Taxa  Innocentiana — i.e.,  the  decree  of  Inno 
cent  XI.  concerning  the  taxes  of  episcopal  chanceries — at 
present  obligatory  all  over  the  world,  and  even  in  the  United 
States  ?      It  is  ;  for  the  .V.  C.  C.4J3  ordered  that  this  decree 
should    be   transmitted    to  all  ordinaries   of  places ;    that  it 
should  be  kept  in  a  conspicuous  place  of  the  episcopal  chan 
cery,  and  be  accurately  observed?"     Hence,  i,  bishops  cannot 
demand  or  receive  anything  for  dispensations  and  the  like 
where  this  is  forbidden  by  the    Taxa  Innocentiana ;  2,  they 
can,  indeed,  fix  the  taxes  of   their   chanceries  ; 4I6  but  they 
should  do  so  according  to  the  rate  established  by  Innocent 
XL,  making  due  allowance,  however,  for  the  difference  in 
the  value  of  money,  both  as  to  place  and  time.41"      For  what 
was  formerly  purchasable  for  a  Roman  scudo  costs  at  pre 
sent   twice   as   much.      This    holds    true   especially    of  the 
United  States.     Hence,  in  several  dioceses  of  this  country,417 
the  chancellor's  fee  for  dispensations  is,  and  justly  so,  $r, 
where  the  Taxa  Innocentiana  allows  but  30  cents. 

603.  Regulations  and  Customs  in  the   United  States  respect 
ing  the  Taxes  of  Episcopal  Chanceries. —  I.  As  a  general  rule, 
a  tax — i.e.,  a  determinate  sum — is  prescribed  for  dispensa 
tions  from  the  publication  of  the  banns ; 4I8  this  tax  usually 
ranges  between  five  and  ten  dollars  for  a  dispensation  from 
all  the  proclamations.     Is  this  tax,  though  undoubtedly  pro 
hibited    by  the   Taxa  Innocentiana,  nevertheless    legitimate 
by  reason  of  custom?     Some  say,  yes;  others,  no.419 

4U  Cone.  Trid.,  sess.  xxi.,  c.  i.,  d.  R.       41S  Craissl,  n.  1057.      41>  Oct.  8, 1678 

414  Bouix,  1.  c.,  p.  311.        4I6  Ferraris,  V.  Taxa,  n.  12.        4ia  Craiss.,  n.  1052 
417  Cfr.  Syn.  Alban.,  ii.,  p.  15,  an.  1869;  Syn.  Boston.,  ii.,  p.  35,  an.  1868. 

415  Cfr.  Stat.  Dioec.  Novar.,  p.  94  ;  Stat.  Dioec.  Boston.,  p.  34 ;  Stat.  Dioec. 
AJban.,  p.  15.  41*  Cfr.  Bouix,  1.  c.,  p.  313 


Of  Bishops.  385 

t.  For  dispensations  from  impediments,  which  are  relaxed 
by  virtue  of  the  facilitates  D.  and  E.,  a  suitable  alms  should 
be  enjoined.420  3.  For  dispensations  from  the  other  impedi 
ments  no  alms  is  or  can  be  required.  4.  Besides  the  alms, 
a  suitable  chancery  fee  may  be  demanded  ;  with  us  it  is 
usually  $i  for  each  instrument  or  paper,  no  matter  of  what 
kind,  issued  in  the  chancery.  In  most  dioceses,  however, 
no  such  fee  is  given  or  demanded.  This  custom  is  laud 
able,431  and  is,  no  doubt,  owing  to  the  fact  that  chancellors 
are,  in  many  cases,  also  pastors  of  congregations,  receive 
the  pastor's  salary,  and  are  thus  enabled  to  give  their 
services  as  chancellors  gratuitously.  Note. — The  Taxa  In- 
nocentiana  was  never,  at  least  in  its  entirety,  received  in 
the  United  States. 

ART.  XVII. 

Right  of  Bishops  to  Constitute  Assistant  Priests  and  assign 
them  a  sufficient  Maintenance — Division  of  Perquisites  in 
the  United  States. 

604.  Can  the  bishop  compel  a  parish  .priest  to  take  one  or 
more  assistant  priests  ?  Whenever,  owing  to  the  number  of 
parishioners,422  one  rector  is  not  sufficient,  the  bishop  not 
only  can,  but  should,  oblige  the  parish  priest  to  associate  to 
himself  as  many  assistants  as  are  required.423  Moreover,  the 
bishop,  not  the  parish  priest,  is  the  judge  whether  or  not, 
and  how  many,  assistants  are  necessary.  The  bishop  can 

"°  Konings,  p.  74. — The  statutes  of  the  diocese  of  Newark  say:  When  a 
dispensation  from  the  impediments  mixtae  religionis,  disparitntis  cultus,  i""-  out 
zdi.  gradus  affinitatis,  zdi-  g>adus  consaiiguinitatis,  or  in  radue  is  required,  ap 
plication  will  be  made  to  the  bishop,  giving  the  names  of  the  parties,  and 
stating  whether  they  be  poor,  or  in  moderate  circumstances,  or  well  to  do  in 
the  world,  and  he  will  fix  the  amount  of  alms,  to  be  remitted  to  him  for  pious 
uses  (Stat.,  p.  95).  4ai  Cone.  Trid.,  sess.  xxi. ,  c.  i.,  d.  R 

•M  Ib.,  c.  iv.,  d.  R.  4M  Bouix,  1.  c.,  pp.  554,  555. 


386  Of  Bishops. 

assign    assistant   priests   a   proper  salary,  to    be  taken  out 
of  the  revenues  of  the  parish.424 

605 .  Can  tJie  bis/top  ordain  that  a  portion  of  the  offerings  re 
ceived  in  the  administration  of  the  sacraments  (baptism  and 
marriage]  shall  .go  to  make  up  the  income  or  salary  of  assistant 
priests  ?  In  other  words,  can  the  bishop  divide  the  per 
quisites  between  the  pastor  and  his  assistants  ?  The  question 
is  controverted.  I.  Those  who  hold  the  negative  argue 
thus  :  It  is  certain  that  these  honoraries  (cmolumenta  stolae) 
belong,  jure  communi,  to  the  parish  priest  exclusively.444 
Moreover,  according  to  the  far  more  probable  opinion  of 
canonists,  these  perquisites  are  not  to  be  accounted  fructus 
beneficii  parochialis  or  r  edit  us  Ecclesiae — i.e. ,  revenues  of  the 
parish.  Now,  the  law  of  the  Church  does  not  seem  to  give 
the  bishop  power  to  set  apart  a  suitable  livelihood  (portio 
congrua,  sustentatio  congrua,  or  simply  congrua™}  for  assist 
ants,  except  out  of  the  income  or  receipts  of  the  parish.  It 
is  therefore  doubtful  whether  the  bishop  can  assign  assist 
ants  a  share  of  the  perquisites.  2.  The  affirmative  is  thus 
maintained  :  Bishops,  according  to  the  Council  of  Trent,4" 
may  assign  assistants  a  part  of  the  revenues  of  the  parish  for 
their  salary  or  sufficient  maintenance,  or  provide  for  them  in 
some  other  manner.™  Hence,  bishops  may  assign  them  part 
of  the  perquisites.  As  this  is  a  probable  opinion,  it  follows 
that  if  the  bishop  should  decide  that  part  of  the  perquisites 
should  be  given  to  the  assistants,  his  decision  must  be  com 
plied  with.428  This  whole  question  was  agitated  on  occasion 
of  a  decree  of  Monseigneur  Affre,  Archbishop  of  Paris,  en 
joining  that  out  of  the  perquisites  of  each  parish  a  common 
fund  should  be  made,  to  be  divided  between  the  pastor  and 
his  assistants.  From  this  decision  the  parish  priests  of  Paris 


4"  Bouix,  De  Episc.,  1.  c.,  p.  328.  ™  Ib.,  p.  329. 

4M  Phillips,  Lehrb.,  p.  456.  '"  Sess.  xxi.,  c   vi.,  d.  R. 

™  Bouix.  1.  c.,  p.  332.  4"  Craiss.,  n.  1061,  1062. 


Of  Bishops.  387 

appealed  to  Rome  in  1848.  The  decision  of  the  S.  C.  C.  was 
not  published. 

606.  Division  of  the  Perquisites  of  Baptisms  and  Marriages 
in  the  United  States. — Bishops  in  this  country  are  exhorted 
to  establish,  with  the  advice  of  their  priests,"0  an  equitable 
way  of  apportioning  these  offerings  among-  the  priests  re 
siding  in  the  same  house,  taking  into  consideration  the  chief 
claim  as  well  as  the  graver  duties  of  the  pastor. 

I^IP  The  honorary  usually  given  is  at  least  $3.00  for  a 
baptism,  and  $5.00  for  a  marriage.  The  Third  Plenary  Coun 
cil  of  Baltimore  (n.  294)  says:  '•  Itaque  quod  spectat  ad  jura 
stolae  et  taxam  pro  ministeriis  ecclesiasticis  determinandam, 
unusquisque  episcopus  agat  in  synodo  dioecesana,  vel  extra 
synodum  audit  is  consultoribus  eas  leges  ferat,  quae  clero  ac 
populo  suo  magis  convenire  videantur.  Meminerint  autem 
(idque  expresse  in  synodo  commemoretur)  ministeria  eccle- 
siastica  pauperibus  esse  gratis  praestanda.  Taxam  quoque, 
si  qua  in  synodo  constituatur,  Romam  mittat,  ut  Sanctae  Sedis 
approbation i  subjiciatur. ' ' 

ART.  XVIII. 
Rights  and  Duties  of  Bishops  relative  to  Preaching,  etc. 

607. — I.  Preaching. — Bishops,  according  to  the  Council  of 
Trent/31  are,  jure  divino,  bound,  sub  gravi,™  to  preach  person 
ally  ;  if  lawfully  hindered,  they  should  appoint  fit  persons  to 
discharge  wholesomely  this  office  of  preaching.433  Universal 
custom,  however,  has  modified  this  duty.  At  present  bishops 
are  indeed  bound  to  preach  from  time  to  time  (aliquando),  but 
not  regularly,  nor  as  often  as  parish  priests.434  The  bishop 
alone  has  the  right  to  give  permission  to  preach,  and  no  person 

4SOC.  PI.  Bait.  II.,  n.  94. 

431  Sess.  v.,  c.  ii. ;  sess.  xxiii.,  c.  i.,  d.  R. ;  sess.  xxiv.,  c.  iv..  d.  R. 

439  St.  Lig.,  lib.  iii.,  n.  269.  433  Cfr.  C.  PI.  Bait.  II.,  n.  127. 

***  Bouix,  1.  c.,  p.  343;  St.  Lie-.,  lib.  iv.,  n.  127. 


388 


Of  Bishops, 


can  preach  against  his  will.  Regulars  cannot  preach,  even 
in  churches  of  their  own  order,  in  opposition  to  the  will  of 
the  bishop.  II.  Celebration  of  the  Mass.— Bishops  are  obli 
gated  to  offer  up/'7  on  Sundays  and  holidays,  the  sacrifice 
of  the  Mass  for  the  entire  diocese''"  They  should,  unless  law 
fully  hindered,  celebrate  solemn  Mass  at  Easter,  Christmas, 
Epiphany,  Ascension,  Pentecost,  Eeast  of  SS.  Peter  and 
Paul,  All  Saints,  etc.""  111.  Administration  of  Chnreh  Pro 
perty. — The  bishop  is  the  administrator,  or  rather  guardian, 
of  the  temporalities  of  the  churches  or  parishes  of  his  dio 
cese.140  lie  is  obliged  to  leave  to  his  cathedral  all  sacred 
vessels,  ornaments,  and  the  like  which  were  purchased  with 
church  moneys.  Hence,  he  should  make  an  authentic  and 
accurate  inventory  "'  of  all  things  used  for  divine  worship 
and  purchased  by  him,  after  his  appointment  to  the  seet 
with  church  moneys  or  ecclesiastical  revenues.  Sacred 
things  thus  bought  belong  to  the  cathedral.44' 


ART.   XIX. 

» 

Right  of  Taxation  as  Vested  in  Bishops — Contributions  to  be 
given  Bishops — Collections  ordered  by  Bishops  in  the  United 
States — "  De  Juribus  [Uilibus  Episcoporum." 

608. -—I.    Contributions   dcniandable   by  Bishops   in  general. 

—The    faithful    are   obliged   to  contribute    for  the  general 

wants  of  the  Church,  and  especially  of  their  own  diocese. 

The  bishop,  therefore,  can  ask  for  contributions  from  all  his 

dioceseners,  and  especially  from  his  clergy,  for  the  needs  of 

the  diocese/43     These  offerings,  whether  of  the  faithful  or 

\clergy,  should,  however,  as  far  as  possible,  assume  the  form 

437  St.  Lig.,  H.  Ap.,  tr.  vii.,  n.  65  ;  Cone.  PI.  Bait.  II.,  n.  366. 

"*  Konings,  n.  1135,  1322.  <3!)  Craiss.,  n.  1066. 

440  Cfr.  Cone.  PI.  Bait.  II.,  n.  182-205.  "'  fb--  "•  l88- 

444  Craiss.,  n.  1069.  1070.  443  Phillips,  Lehrb.,  p.  289, 


Of  Bishops.  589 

of  voluntary  contributions,  not  of  taxes  or  assessments,  in  the/ 
strict  sense  of  the  term."4 

609. —  II.  Contributions  in  particular. — Of  the  contributions 
made  to  bishops  some  are  ordinary — those,  namely,  which 
are  given  every  year,  or  at  least  at  stated  times;  others 
extraordinary — to  wit,  those  given  only  in  special  cases  or 
emergencies.  I.  The  following,  chiefly,  are  the  ordinary  or 
regular  contributions :  I.  The  catkedraticum  (also  synodaticum, 
pensio  paschalis),  which  means  a  fixed  sum  ot  money  to  be 
annually  given  the  ordinary  out  of  the  income  of  the 
churches  in  the  diocese."5  It  must  be  given  by  all  churches 
in  charge  of  secular  priests,  but  not  by  those  of  regulars, 
save  when  they  have  the  care  of  souls  attached.  In  most 
Catholic  countries  the  cathedraticum  has  gone  out  of  use, 
bishops  there  being  supported  by  salaries  Irom  the  govern^ 
merit  or  from  other  sources:"8  it  still  exists,  in  England,  in 
the  Greek  Church,  in  the  United  States,  etc."7  In  this 
country  it  is,  in  fact,  the  main  support  of  bishops,  as  well  as 
the  chief  means  to  defray  the  expenses  incident  to  the  dis 
charge  of  the  various  episcopal  duties.  It  is  made  up  from 
the  income  of  congregations,  not  out  of  the  salary  of  pastors 
or  assistants."8  The  amgunt  should  be  determined  by  the 
bishop,  with  the  advice  of  his  clergy.449  2.  Procuratio  (also 
circada,  comcstio,  aibergarid] — i.e.,  the  hospitalitv  to  be  ex 
tended  to  the  bishop  when  he  canonically  visits  the  diocese. 
3.  Contributions  for  the  support  of  the  seminary  (scminaris- 
ticum,  alumnaticuni).  4.  Fees  of  the  episcopal  chancery  (Jus 
sigilli}.'™  5.  The  share  falling  to  bishops  from  legacies  lelt 
to  a  church  (quarta  mortuana,  canonical  portio,  quarta  cpisco- 
^alis.^  6.  The  fourth  part  of  tithes  (quarta  decimationuin}^ 
Vhe  two  last  named  are  abolished  at  present.  They  were 

<t4  Walter,  Lehrb..  §  190.  4«  Reiff.,  lib.  iii.,  tit.  xxxix  ,  n.  10-18- 

<16  Cfr.  Craiss..  n.  1072.  44T  Walter,  '.  c. 

""  Cone.  PI.  Bait.  II.,  n.  100.  «»  Ib  «">  Phillips,  1.  c..  p.  290 

51  Soglia,  vol.  ii:,  p.  20.  45->  Phillips,  Kirchenr.,  vol.  vii.,  p.  874 


390  Of  Bishops. 

based  on  the  division  of  ecclesiastical  revenues  as  made  in 
ancient  times,  by  which  the  bishop  received  one-fourth  of 
all  ecclesiastical  revenues. 

HgUr3  The  ordinary  taxes  are  subdivided  into  new  and  old. 
An  old  or  ancient  tax  (taxa  antiqua,  census  antiquus]  is  one 
which  is  expressly  authorized  by  the  general  law  of  the 
Church.  The  cathedraticum,  the  seminary  contribution, 
and  the  hospitality  extended  to  the  bishop  when  he  makes 
the  visitation  of  the  parish,  are,  at  present,  the  only  ancient 
ordinary  taxes  due  to  the  bishop.  A  new  ordinary  tax 
(taxa  nova)  is  one  which  is  not  expressly  authorized  by  the 
general  law.4"3 

HSUr"  Now,  the  sacred  canons  prescribe  that  the  bishop 
cannot  impose  a  new  ordinary  tax — at  least,  not  a  perpetual 
one — nor  increase  the  old  ones,  except  by  leave  from  the  Holy 
See.  Thus  the  Council  of  Lateran  (an.  1179)  decrees:  "  Pro- 
hibemus  insuper  ne  ab  Episcopis  vel  aliis  Praelatis  novi 
census  imponantur  ecclesiis,  ncc  veteres  augeantur.  .  .  Si  quis 
vero  aliter  fecerit,  irritum  quod  egerit,  habeatur."  4M 

|3P=>  II.  Extraordinary  taxes  or  contributions  (Subsidia 
charitativa,  exactiones  extraordinariae]. — By  these  taxes  we 
mean  those  which  the  bishop,  for  manifest  and  sufficient 
cause,  demands  in  special  cases  of  necessity.455  Now,  what 
are  the  conditions  uncler  which  the  general  law  of  the  Church 
or  the  sacred  canons  allows  the  bishop  to  ask  for  an  extra 
ordinary  tax  or  collection?  I.  There  must  be  a  sufficient 
cause  ;  such  as  (a)  to  defray  the  expenses  of  the  bishop's 
consecration;  (b)  of  his  visit  ad  limina  ;  (c]  or  attendance  at 
an  oecumenical  council.456  2.  The  cause  must  be  clearly  and 
manifestly  sufficient.  For  the  law  expressly  requires  not 
merely  that  the  causa  be  rationabilis,  but  also  that  it  be  manu 
fcsta.  In  case  of  doubt,  whether  the  cause  is  sufficient  or 
whether  the  tax  is  exorbitant,  the  matter  should  be  settled 

453  De  Angelis,  1.  iii.,  t.  39,  n.  I.  4«  Cap.  7,  De  Cens.  (iii.  39). 

465  Reiff.,  1.  c.,  n.  19.  «*  Reiff.,  1.  c.,  n.  30. 


Of  Bishops.  391 

by  recourse  to  the  superior  or  by  arbitrators  selected  by 
consent  of  both  parties.4"  3.  The  tax  or  contribution  asked 
must  always  be  moderate,  and  never  oppressive  or  burden 
some.458  4.  The  bishop  can  insist__irrjon_  an  extraordinary 
contribution  only  when  his  other  revenues  are  insufficient  to  meet 
the  special  emergency.  5.  The  consent,  or,  at  least,  the  advice 
of  the  cathedral  chapter  is  requisite.  6.  Where  the  Taxa 
Innoc.  obtains,  the  leave  of  the  Holy  Sec  is  also  necessary,  ex 
cept  in  one  case,  namely,  where  a  bishop,  in  a  diocese  in 
which  it  has  been  the  custom  to  do  so,  asks  for  a  contribu 
tion  to  defray  the  expenses  of  his  consecration.  7.  Finally, 
the  tax  should  be  asked  cum  charitate,  as  the  law  expressly 
says.a  In  other  words,  the  bishop  should  ask  for  it  as  a  vol 
untary  offering  rather  than  as  tax  in  the  strict  sense  of  the 
term.  Canonists  generally  remark  that  at  the  present  day 
extraordinary  contributions,  at  least  in  the  form  of  taxation, 
have  gone  out  of  use  in  most  countries. 

I^IP  610.  111.  Contributions  <givcn  Bishops  in  the  United 
States. — The  Third  Plenary  Council  of  Baltimore  (n.  20,  in  fine) 
decrees:  "  \\£,\\\,  prachabito  Consilio  Consultorum,  necessarius 
erit  recursus  ad  S.  Scdem  in  singulis  casibus,  in  quibus  agatur 
de  imponenda  nova  taxa  pro  Episcopo  quae  excedat  limites  a 
canonibus  constitutes."  In  other  words,  wherever  there  is 
question  of  imposing  a  new  tax,  collection,  or  contribution 
for  the  bishop,  which  goes  beyond  the  rules  laid  down  by 
the  sacred  canons,  the  bishop  is  obliged,  (a)  first  to  take  the 
advice  of  his  diocesan  consultors,  (b)  and  then  also  obtain 
leave  from  the  Holy  See,  and  that  in  each  individual  case. 

|3|F°  What,  then,  are  the  rules  enacted  by  the  sacred 
canons  in  regard  to  new  taxes  for  the  bishop  ?  We  have 
seen  that  the  canons  forbid  the  bishop  (a)  to  impose  a  new 
ordinary  tax,  that  is,  any  ordinary  tax  other  than  the  cathe- 
draticum,  seminary  dues,  and  the  hospitality  given  at  the 
episcopal  visitation ;  (b)  to  increase  any  of  these  old  taxes ; 

*"  Reiff.,  1.  c.,  n.  36.          468  Cap.   Cum  Apostolus  6,  De  Cens.  (iii.  39). 
•  Cap.  Cum  Apostolus  6,  cit.;  Craiss.,  n.  1072;  Walter,  §  191. 


392  Of  Bishops. 

(c)  to  impose  an  extraordinary  tax,  except  in  the  manner  and 
under  the  conditions  already  explained  above.  These  con 
ditions  are  given  by  the  cap.  6,  De  Cens.;  the  S.  C.  C.  in 
Gerund.  Feb.  17,  1663  ;  the  Taxa  Innoc.  Oct.  8,  1678. 

ART.  XX. 

Prerogatives   of  Honor   of  Bishops  —  DC    Junbus    Honorificis 

.Rpiscoporum. 

611. — 1.  Precedence  among  bishops  themselves  is  regu 
lated  by  the  time  of  their  consecration  ;  so  that  a  bishop 
who  is  first  consecrated  precedes  all  other  bishops  conse 
crated  after  him.1"  Bishops  take  precedence  of  apostolic 
prothonotaries.  In  his  own  diocese  a  bishop  takes 'prece 
dence  even  of  archbishops,  save  his  own  metropolitan;  how 
ever,  as  a  matter  of  courtesy,  the  5.  C.  C.  recommends  that 
the  diocesan  should  give  the  preference  to  all  strange 
bishops  and  archbishops.460  When  the  bishop  visits  a  churcl 
in  his  diocese  he  should  be  received  solemnly  by  the  clergy  ; 
and,  if  he  performs  or  assists  at  sacred  functions  in  any  part 
of  his  diocese,  an  elevated  seat  (thronus)  should  be  prepared 
ior  him  at  the  Gospel  side  of  the  sanctuary;  the  throne 
should  be  decorated,  though  iiot^Lu-^ed,  and  surmounted  by 
a  canopy  or  baldachin.4"1  II.  The  insignia  of  bishops,  be 
sides  their  pontifical  robes  in  general,  are  chiefly  :  I,  the 
mitre  (initra,  cidara  bicornis,  infula}  ;  2,  the  crosier  (bacillus 
pastor alis,  peduiri),  or  pastoral  staff,  which  terminates  in  a 
curve,  and  is  the  symbol  of  his  office  of  shepherd  of  souls;  3, 
the  ring,  the  emblem  of  his  union  with  his  diocese  ;  4,  the 
golden  pectoral  cross  ( pcctoralc],  which  bishops  wear  con 
stantly  on  their  breasts/"  III.  Privileges  of  Bishops.— 
Among  others,  bishops,  i,  can  take  with  them  on  journeys 
a  .portable  altar  (altare  viaticum,  portatile],  in  order  that  they 
may  be  able  to  say  Mass  everywhere,  even  outside  of 

""  Phillips,  1    c.,  p.  890.  ""  Ib.,  p.  891.  *"  Ib.,  p.  892. 

*"  Phillips,  Lehrb.,  pp.  290,  2<ji. 


O/  Bishops. 

churches.  2.  When  out  of  uteir  own  dioceses  they  may 
everywhere  go  to  confession  to,  and  be  absolved  by,  their 
own  priests,  as  also  by  approved  confessors  of  other  dio 
ceses^  venjnitjjf  the  diocese  for  which  these  confessors  are 
approved/"  3.  Bishops,  moreover,  do  not,  unless  expressly 
mentioned,  incur  censures,  whether  imposed  ipso  jure  or  by 
judicial  sentence  (lib  homine).  4.  A  bishop  is  addressed  by 
the  Pope  as  Venerabilis  l:rater  or  Fratcrnitas  Tua  ;  by  others 
as  Revendissime  ct  illustrissime  Domine.™*  In  his  solemn  or 
official  acts—  v.g.,  dispensations,  ordinances,  and  the  like — he 
uses  the  formula:"5  Ego  N.  Dei  et  Apostolicae  Sedts  gratia  (or 
misericordia,  miseratione]  Episcopus  ...  In  this  formula 
he  omits  his  family  name  and  makes  use  of  his  baptismal 
name  only.466  5.  He  may  celebrate  Mass  and  perform 
sacred  functions  in  pontificalibus  in  all,  even  the  exempt  and 
privileged,  churches  of  his  diocese.4" 

483  Phillips,  Kirchenr.,  1.  c.,  pp.  898,  899.  484  Ib.,  p.  900. 

484  Ib.,  p.  901.  **•  Gerlach,  I.  c.,  §  220.  *"  Craiss.,  n.  1078 


CHAPTER   VI. 

VARIOUS    KINDS     OF     BISHOPS    AND     OF     PRELATES     HAVING 
QUASI-EPISCOPAL    JURISDICTION. 

6 1 2.  There  are  two  kinds  of  assistants  or  vicegerents  of 
bishops:     Some  assist  the  bishop  in  the  performance  of  the 
functions  of  the    episcopal  order — v.g.,  in    conferring   sacred- 
orders  ; '    others    in   the   exercise    of    episcopal  jurisdiction. 
Auxiliary  bishops  belong  to  the  former,  coadjutor  bishops 
to  tne  Batter  class.3 

ART.  1. 
Of  Auxiliary  Bishops. 

613.  Auxiliary  bishops'  (episcopi suffraganei,  vicarii  in  pon- 
tificalibus)  are  titular  bishops  appointed  by  the  Holy  See  to 
assist  ordinary  bishops,  not  in  the  exercise  of  their  jurisdic- 
tio*  but  merely  of  the  or  do  episcopalis — v.g.,  to  give  confirma 
tion.     We  say,  I,  titular  bishops  (episcopi  titulares,  episcopi  in 
partibus  infidelium,  episcopi  annulares) ;  for  they  are  conse 
crated   with  the  title  of  some  diocese  in  the  hands  of  the 
infidels.6     We  say,  2,  appointed  by  the  Holy  See.6     Now,  they 

1  Walter,  1.  c.,  p.  285.          '  Ib.,  pp.  287,  288.         3  In  German,  Weihbischofe. 

4  They  may,  however,  be  appointed  vicars-general,  and  thus  assist  the 
bishop  in  the  exercise  of  his  jurisdiction  (Soglia,  vol.  ii.,  p.  28  ;  cfr.  Bened. 
XIV.,  De  Syn.,  lib.  xiii..  cap.  xiv.,  n.4\ 

*  According  to  the  present  discipline  of  the  Church,  every  bishop  is  placed 
over  some  diocese,  governed    by  him  either   actually  or  at  least  potentially 
(Bened.  XIV.,  1.  c.,  cap.  viii.,  n.  12). 

•  Usually  at  the  request  of  those  bishops  who  stand  in  need  of  them  (Phil 

lips,  Lehrb.,  p.  325). 

394 


Quasi-Episcopal  Jurisdiction.  395 

are  appointed  only,  I,  when  they  are  really  needed ;  2, 
where  it  is  customary  to  have  them ;  3,  on  condition  that  a 
proper  salary  (congrud)  be  assigned  them.  The  reasons  for 
which  they  are  usually  appointed  are,  I,  where  a  bishop 
does  not  reside  in  his  see  ;  2.  or  cannot  perform  the  episco 
pal  functions  of  order  on  account  of  old  age,  infirmity,  or 
the  great  extent  of  his  diocese.  Auxiliary  bishops  are  not 
bound  to  make  the  visit  ad  limina.  Their  office  lapses  so 
soon  as  the  bishop  whom  they  assist  dies  or  in  some  other 
way  relinquishes  his  see.7  They  exist,  at  present,  chiefly  in 
Prussia,  Austria,  Spain,  etc.  The  Pope  makes  use  of  titular 
bishops  in  the  discharge  of  his  apostolic  duties.8 


ART.  II. 
Of  Coadjutor  Bishops. 

614,  By  coadjutors  (coadjutores]  we  mean  those  who  are 
appointed  by  the  proper  superior  to  assist  bishops  in  the  ad 
ministration  of  the  diocese.9  Coadjutors,  therefore,  must  be 
distinguished  from  auxiliary  bishops.  The  latter  assist  bi 
shops  in  the  discharge  of  the  functions  of  the  episcopal 
or  do ;  10  the  former  in  the  exercise  of  the  episcopal  jurisdic- 
tio.11  How  many  kinds  of  coadjutors  are  there  at  present  ?  I. 
By  reason  of  their  duties  (ratione  materiae]  coadjutors  are 
divided  into  temporal  (coadjutores  in  temporatibus  tantuwi)  and 
spiritual  (coadjutores  in  spiritualibus,  coadjutores  in  spiritualibus 
simul  et  temporalibus}™  The  latter  are  appointed  to  assist  the 
bishop  in  the  performance  of  his  spiritual  duties,  whether  of 
order  or  jurisdiction,  and  not  unfrequently  also  in  the  man- 

7  Soglia,  1.  c.,  p.  29.  *  Craiss.,  n.  1083. 

*  Bouix,  De  Episc.,  vol.  i.,  p.  498  ;  Thomassin.,  p.  ii.,  1.  ii.,  c.  1v.  seq. 
10  Walter,  p.  286.  "  Phillips,  1.  c.,  §  163. 

:1  Leurenius  Forum  Benef.,  Tr.  de  Coadjutoriis,   qu.  308.     Coloniae  Ag. 
gripp.,  1739. 


396  Bishops  and  Prelates  having 

agement  of  Church  property.  In  order  to  be  able  to  exer- 
cise  pontificalia,  they  are  consecrated  a  titular  bishop;  the 
former  only  in  the  administration  of  the  temporalities  of  the 
diocese,  and  consequently  they  need  not  be  consecrated 
bishops.13  2.  Again,  by  reason  of  their  tenure  of  office 
(rationc  tcmporis  et  formac),  they  are  divided  into  such  as 
hold  office  temporarily  (coadjutorcs  temporarily  temporales] — 
i.e.,  until  the  bishop's  death  or  recovery — and  such  as  hold 
office  permanently  (coadjutores  cum  futura  successione,  cum 
jure  succcssionis,  perpetui} — that  is,  those  who  are  appointed 
with  the  right  of  succession  at  the  death  of  the  bishop.14 
We  ask  :  Are  coadjtitorships  cum  jure  prohibited  at  present? 
They  are,  generally  speaking. l'°  The  reasons  are  :  i.  They 
carry  with  them  the  appearance  of  hereditary  succession18 — 
a  thing  forbidden  by  the  sacred  canons.  2.  Because  they 
contain  an  expectancy.17  We  said  above,  generally  speaking; 
for,  in  certain  cases — namely,  where  the  urgent  necessity  or 
evident  utility  of  the  diocese  so  demands — perpetual  coadju 
tors  may  be  appointed  by  the  Holy  See. 

615.  Appointment  of  Coadjutors. — 1.  To  whom  belongs  the 
right  of  appointment  /  To  the  Holy  See  solely."  In  certain 
cases,  however — v.g.,  if  the  diocese  is  at  a  great  distance 
from  the  Holy  See — a  bishop  who,  by  reason  of  age  or  in 
firmity,  is  unable  to  discharge  his  duties,  may  himself,  by 
virtue  of  Papal  authority,  select  a  temporary 19  coadjutor, 
with  the  advice  ai  1  consent,  however,  of  his  chapter.  Nay, 
in  case  the  bishop  is  insane,  the  chapter  itself,  provided  two- 

"  Bouix,  1.  c.,  p.  498.  "  Leuren.,  1.  c.,  n.  2.  '6  Salz.,  vol.  ii.,  p.  170. 

16  Cone.  Trid.,  sess.  xxv.,  c.  vii.,  d.  R. 

17  Namely,  in  this  :  that  they  confer  upon  coadjutors  the  right  to  succeed, 
ipso  jure,  at  the  death  of  the  bishop.     As  such  an  expectancy  may  occasion  in 
others  a  desire  for  the  death  of  the  bishop,  it  is  detrimental  to  ecclesiastical 
discipline.     Cfr.  Phillips,  Lehrb.,  §  163  ;  Leuren.,  1.  c.,  qu.  309. 

18  Craiss.,  n.  1099,  noo. 

19  Pe:pe  'fid/  coadjutors  must  in  all  rusts  be  appointed  by  the  Holy  See.     Cfr. 
Bouix,  1.  c.,  p.  500. 


Quasi-Episcopal  Jurisdiction.  397 

thirds  of  the  canons  consent,  may  appoint  such  coadjutor  ;  a 
report  of  the  whole  case  should  be  sent  to  Rome  as  soon  as 
possible.  II.  For  ^vhat  causes  may  coadjutors  be  appointed? 
For  these  chiefly:  i.  Chronic  or  incurable  bodily  disease 
of  such  nature  as  to  make  it  impossible  for  the  bishop  to  per 
form  his  duties — v.g.,  loss  of  speech,  blindness,  paralysis,  and 
the  like  ;  2,  old  age— v.g.,  age  of  60  or  70  ;  3,  insanity;2"  4, 
great  negligence  on  the  part  of  the  bishop  in  the  discharge 
of  his  duties.21  Both  perpetual  and  temporary  coadjutors 
are  appointable  for  the  reasons  just  given.  Where  a  tem 
porary  coadjutor  is  all  that  is  needed  a  perpetual  one  should 
not  be  appointed.  Although  the  Holy  See  does  not 
usually  assign  a  perpetual,  or  even  a  temporary,  coadjutor 
to  a  bishop  against  his  will,  yet  it  mav  do  so — in  fact,  has 
done  so— for  just  cause.22  III.  Mode  of  Appointment  in  the 
United  States. — The  mode  which  obtained  formerly  and  is 
described  in  the  previous  editions  of  this  work,  has  been 
changed  by  the  Third  Plenary  Council  of  Baltimore,  as  follows: 
When  there  is  question  of  appointing  a  coadjutor  to  a  bishop 
or  archbishop  cum  jure  successionis,  the  law  laid  down  above 
under  Nos.  345  sq.  must  be  observed.  Where,  however,  a 
coadjutor  bishop  or  archbishop  is  to  be  appointed  who  shall 
not  have  the  right  of  succession,  it  is  sufficient  for  the  bishop 
who  wishes  to  have  such  coadjutor  to  present  to  the  Holy 
See  the  person  whom  he  wishes  to  have  appointed. 

616.  Rights  of  Coadjutors.— -I.  The  nature  of  these  rights 
depends  chiefly  upon  the  teno;- of  the  apostolic  letters-patent 
by  which  coadjutors  are  appointed.'3  If.  however,  the  apos 
tolic-  letters  are  not  sufficient.lv  explicit,21  the  powers  in 
question  must  be  determined  by  the  reason  which  caused 
the  appointment.'"  Thus,  I.  a  coadjutor,  whether  temporary 
or  permanent,  assigned  to  an  insane  bishop,  obtains  complete 
administration  of  the  diocese  in  temporal  as  well  as  in 
Spiritual  matters;'"  in  fact,  such  coadjutor  has  llu-  same 

so  Leuren.,  ].  c.,  qu.  339.  340,  341.  342  *'  Bouix.  1.  c.,  p.  506. 

w  Ib..  p.  507.  2B  Leuren.,  1.  c.,  qu.  397.  M  Ib.  (5") 

Si  Sojjlia.  vol    ii.,  p    30  *'  Craiss  ,  n.   1103. 


398  Bishops  and  Prelates  having 

power  as  though  he  were  the  actual  bishop  of  the  diocese 
he  cannot,  however,  alienate  ecclesiastical  goods.28      2.   On 
Ihe  other  hand,  a  coadjutor  given  to  a  bishop  who  is  merely 
infirm  or  old  can  only  perform  those  duties  which  the  bishop 
is  unable  or  unwilling  to  discharge,  but  not  those  which  the 
bishop  has  reserved  to  himself.     Hence,  it  may  be  said  that, 
as  a  rule,  the  coadjutor  in  this  case  should  undertake  nothing 
without  the  advice  and  consent  of  the  bishop.2'     But,  if  the 
Sr.ishop  objects  unreasonably  to  the  exercise  of  powers  by 
i  he  coadjutor,  the  latter  can  proceed  against  the  will  of  the 
former ;  the  more  prudent  course,  however,  is  to  refer  the 
matter  to  the  Holy  See.50     II.   Salary  of  Coadjutors. — Coad 
jutors  are  entitled  to  a  competent  salary  (congrua,  sustentatio 
congrua}.     All  agree  that  if  the  ecclesiastical  income  of  the 
bishop  is  large  enough  to  support  himself  as  well  as  his  co 
adjutor,  the  latter  should    receive   his  salary  from  such  in 
come.31     The  difficulty  is  :  What  is  to  be  done  in  case  the 
above  income  is  insufficient  for  both?     Should  it  go  to  the 
bishop  or  to  the  coadjutor  in  such  case  ?     The  question  is 
disputed.32      Practically  speaking,  however,  this  difficulty  is 
of  no  consequence.     For  the  Holy  See,  before  appointing  a 
coadjator,  usually  determines  the  amount  of  salary,  as  well 
as  tht  source  whence  it  is  to  be  derived.     If  possible,  the 
coadjuuv:-  should  have  suitable    lodgings   in    the   episcopal 
residence.33     III.  Plow  do  tJie  po^tvers  of  coadjutors  lapse?     I. 
Those  of  temporary  coadjutors  lapse  with  the  death,  deposi 
tion,    or   resignation    of    the  -bishop.34      2.    Coadjutors   cum 
futura  succession?  succeed  ipso  jure,   and   without  any  new 
election,  so  soon36  as  the  bishopric  falls  vacant.36     Bishops  in 
the  United  States,  who  hold  the  Church  property  of  the  dio- 

"*  Bouix,  '.  c.,  k->.  509.       29  Salz.,  1.  c.,  p.  170.        ^  Bouix,  1.  c.,  pp.  510-51:1. 
S1  Ib.,  p.  516.  M  Cfr.  Ferraris,  V.  Coadjutor,  n.  31-42. 

33  Bouix,  1.  c.  34  Craiss.,  n.  1112. 

11  Then,  also,  th  $y  lay  aside  the  title  of  their  see  in  partibus,  and  assume 
•that  of  their  actual  iliocese.  3G  Soglla,  vol.  i.,  p.  220. 


Quasi-Episcopal  Jurisdiction.  399 

cese  in  their  own  name,  should,  in  their  testament,  name 
their  coadjutor — if  they  have  one — their  heir."  With  coad 
jutors  may  be  classed  vicars-apostolic  who  are  appointed  by 
the  Holy  See  to  govern  a  diocese  whose  bishop  is  suspend 
ed  from  the  exercise  of  jurisdiction  for  having  abused  his 
power." 

ART.  III. 
Of  Regular  Bishops. 

617. — I.  Regulars  may  be — in  fact,  are  sometimes — raised 
to  the  episcopal  dignity ;  the  permission,  however,  of  their 
superior  is  requisite.39  A  regular  bishop  is,  from  the  day  of 
his  promotion  in  Papal  Consistory,  released  merely  from  the 
obligation  of  observing  those  rules  of  his  order  which  are  in 
compatible  with  the  episcopal  office  and  dignity ;  but  not 
from  any  of  the  essential  vows.40  Still,  he  is  exempt  as  to 
some  of  the  effects  of  the  vows  of  obedience  and  poverty. 
Thus,  he  is  no  longer  bound  to  obey  the  prelate  of  his 
order,  but  only  the  Sovereign  Pontiff.  Again,  he  remains, 
it  is  true,  incapable  of  acquiring  property  for  himself,  but  he 
may  freely  use  temporal  goods  to  support  himself  in  a  man 
ner  befitting  his  exalted  station.41  II.  A  regular  bishop, 
moreover,  is  obligated  to  wear  the  habit  of  his  order  as  to 
its  color ;  the  sJiape  of  his  cassock,  however,  is  the  same  as 
that  of  secular  bishops.42  He  must,  as  a  rule,  recite  the 
office  or  breviary  of  his  diocese,  not  of  his  order.43  If  he 
should  resign  his  episcopal  see,  or  be  removed  from  it,  he  is 
bound  to  return  to  his  monastery,  unless  he  obtains  permis 
sion  from  the  Pope  to  remain  out  of  it.*4 

"  Cone.  PI.  Bait  II.,  n.  189.  "  Salz.,  1.  c.,  p.  171. 

"  Bouix,  1.  c.,  p.  496  **  Ferraris,  V.  Episcopus,  art.  vii.,  n.  i,  2. 

"Ib.,  n.  2.  "Ib.,n.  4,  5-  4tlb.,n.  7, 

44  Ib.,  n.  20. 


4°°  Quasi- Episcopal  Jurisdiction. 

ART.  IV. 

Of  Inferior  Prelates. 

618.  Of  pi  elates  inferior  to  bishops  (praelati  inferiores) — • 
i.e.,  those  who,  though  not  clothed  with  the  episcopal  char 
acter  or  or  do,  are  nevertheless  vested  by  the  Holy  See  with 
greater  or  less  episcopal  r^hts45 — there  are  three  classes: 
the  lowest,  the  middle,  and  the  highest.  1.  The  lowest  class 
consists  of  those  who  preside  only  over  such  persons,  both 
lay  and  ecclesiastical,  as  are  attached  or  belong  to  a  cer 
tain  church  or  monastery.4'  General  superiors  of  religions 
orders,  provincials,  and  abbots  immediately  subject  to  the 
Holy  See,  are  prelates  of  this  kind.47  Regular  prelates  of 
this  class  cannot  hear  or  confer  upon  others  faculties  to  hear 
the  confessions  of  seculars.48  We  say,  seculars ;  for  regular 
confessors  hold  immediately  of  their  superiors,4'  not  of  bi 
shops,  faculties  to  absolve  not  only  professed  (male)  mem 
bers  of  their  own  order,  but  also  novices  and  secular  domes 
tics  living  in  the  monastery.  II.  The  middle  or  second  class  is 
made  up  of  those  who  exercise  jurisdiction  over  the  inhabi 
tants — i.e.,  over  the  clergy  as  well  as  laitv — of  a  certain  dis 
trict  or  territory  which  is  situate  in  and  entirely  surrounded  by 
the  diocese  of  anotlier  bishop.  Hence  they  are  named  praelati 
in  dioecesi.  III.  The  highest  or  third  kind  is  composed  ot 
those  who  exercise  jurisdiction  in  a  district  (i.e.,  in  one  or 
several  cities  or  places)  which  is  altogether  separate  from  and 
outside  of  any  diocese  whatever.  They  are  consequently 
termed  praelati  nullius — i.e.,  dioeceseos.  They  have  all  the 
rights  of  ordinary  bishops,  save  those  which  require  the 
exercise  of  the  or  do  episcopalis.™ 

46  Bouix,  1.  c..  p    532.  "  Phillips,  Lehrb.,  §.  149 

47  Soglia,  vol.  ii.,  £  18.         <e  Bouix,  1.  c.,  p.  543  ;   De  Jur.  Reg.,  t.  ii.,  p.  220, 
**  Komngs   n    1305.  60  Our  Noles,  p.  348.          * 


CHAPTER  VII 

OF  THE  BISHOP'S  ASSISTANTS   OR  VICEGERENTS    IN   THE    EX 
ERCISE   OF   EPISCOPAL  JURISDICTION. 

619.  Under  this  head  we  shall  briefly  treat,  I,  of  vicars- 
general  ;    2,  of  archdeacons  and  arch-priests  ;   3,  of  vicars- 
forane  or  rural  deans. 

ART.  I. 

Of  Vicars-General. 
§  I.    What  is  meant  by  a   Vicar-General? 

620.  By  a   vicar-general    (vicarius  gcncralis,   vicarius   in 
spiritualibus,  officialis)  we  mean  one  who  is  legitimately  ap 
pointed  to  exercise,  in  a  general  way,  episcopal  jurisdiction 
in  the  bishop's  stead,  and  in  such  manner  that  his  acts  are 
considered  the  acts  of  the  bishop  himself.1     We  say,  i,  who 
is  legitimately  appointed.     Now,  vicars-general  may  be  ap 
pointed  not  only  by  bishops,  but  also  by  the  Pope.2     We 
say,   2,  to  exercise  jurisdiction;    for  vicars-general    do    not 
necessarily  act  as  vicegerents  of  bishops  in  regard  to  the 
functions  of  the  ordo  episcopalis?      We  say,   3,  in  a  general 
way  ;  for  the  jurisdiction  of  vicars-general  should  be  general, 
at  least  morally  speaking.4     For  it  were  a  contradiction  in 

1  Bouix,  De  Judic.,  vol.  i.,  p.  358. 

3  Leuren.,  For.  Benef.Tr.  de  Vicar  Gen.,  cap.  i.,  qu.  26.         *  Craiss.,  n.  1120. 

4  We  say,  morally  speaking.     Hence,   the  jurisdiction  of  V.  G.  may  be — in 
tact,  is — in  various  matters  restricted,  both  by  the  jus  commune  (a /«•?)  and  Dy 
bishops  (ab  homine).     It  cannot,  however,  be  restricted  to  such  an  extent  as  to 
make  it  cease  to  be  morally  universal  (Bouix,  1.  c.,  pp.  352-358). 

-401 


402  Of  the  Bishop's  Assistants  in  the 

terms  to  say  that  a  person  is  the  general  vicegerent  of  an 
'other,  unless  he  can,  at  least  in  some  sense,  universally  take 
the  place  of  the  person  for  whom  he  acts.  Hence,  a  vicar 
appointed  by  the  bishop  for  a  certain  district  only,  but  not 
for  the  whole  diocese,  would  not  be,  even  though  he  re~ 
ceived  general  powers  for  such  district,  canonically  speak 
ing,  a  vicarius  generalis,  but  merely  a  delegatus,  and  conse 
quently  appeals  from  him  would  have  to  be  made  to  the 
bishop,  not  to  the  metropolitan.  Now,  the  jurisdiction  of 
vicars-general  is  morally  universal  (a)  as  to  territory — i.e.,  it 
extends  to  all  persons  in  the  diocese  ;  (b)  as  to  matters.  We 
say,  4,  in  the  bishop's  stead;  hence,  the  jiirisdictio  of  vicars-, 
general,  though  or  dinar  ia,  not  delegata?  is  rightly  named 
jiirisdictio  vicar  tali  s  or  ministerialist  We  say,  5,  in  such  man 
ner  that  his  acts,  etc. ;  that  is,  these  acts  have  the  same  effect 
in  law  as  if  done  by  the  bishop  himself.  The  vicar-general 
should  reside  in  the  episcopal  city.7 

621.  Is  the  vicar-general  necessarily  vested  with  jurisdic 
tion  in  temporalibus  as  well  as  in  spiritualibus  f  We  premise  : 
By  a  vicarius  generalis  in  temporalibus  we  mean  one  whom 
the  bishop  selects  to  manage  the  Church  property  of  the 
diocese,  as  also  his  own  income  as  bishop ;  by  a  vicarius 
generalis  in  spiritualibus,  one  who  is  deputed  to  exercise  ec 
clesiastical  jurisdiction  relative  to  other  matters.8  We  now 
answer :  The  question  is  controverted.  The  affirmative,  as 
held  by  Ferraris f  and  others,  maintains  that  a  vicar-general, 
clothed  with  jurisdiction  in  spiritualibus  only,  but  not  in  tem 
poralibus,  is  not,  rigorously  speaking,  the  general  vicegerent 
of  the  bishop,  and,  therefore,  no  vicar-general.  The  negative, 

»  Cfr.  tamen  De  Camillis,  Inst.  Jur.  Can.,  vol.  i.,  p.  224.     Paris,  1868. 

•  Phillips,  Lehrb.,  p.  333- 

'  If  there  are  two  vicars-general,  b.oth  should  reside  in  the  episcopal  citt 
(in  eodcm  loco,  in  quo  episcopus  stdem  habef).  Ferraris,  V.  Vicarius  Gen.,  art 
I.,  n.  I,  8,  9  ;  cfr,  Reiff.,  lib.  i.,  tit.  xxviii  ,  n.  16,  17. 

•  Bouix,  1.  c.,  p.  353  *  v-  Vicarius  Gen.,  art.  ii  ,  n.  i 


^L   of  Episcopal  Jurisdiction.  403 

however,  which  holds  that  vicars  general  need  only  be 
vested  with  power  in  spiritualibus,  seems  more  conformable 
to  the  Council  of  Trent.10  It  is  universally  admitted  that  a 
vicariits  gen.  in  temp,  tantnm  cannot  be  properly  called  vicar- 
general,  but  rather  procurator  (procurator,  oeconomus)"  The 
Second  PI.  C.  of  Bait,  recommends  that  such  procurators,  dis 
tinct  from  vicars-general  proper,  be  appointed :  "  Valde  in 
episcopi  solatium  verteret,  si  etiam  oeconomum  seu  in  tem- 
poralibus  rebus  gerendis  procuratorem,  laicum  sive  clericum 
(episcopus)  nominaret,  cujus  foret  muneris,  domus  episco- 
palis  curam  in  temporalibus  habere,  necnon  et  ecclesiarum 
bonorumque  ecclesiasticorum  ad  nutum  episcopi  tempora- 
lem  gerere  administrationem."  12 

622.  Does  the  vicar-general  receive  jurisdiction  from  the 
law  or  from  the  bishop  ?     The  more  common  opinion  is  that, 
although  the  vicar-general  is  ordinarily  appointed  by  the  bi 
shop,  he  nevertheless  holds  from  the  common  law  (alege,  a  jure, 
ratione  officii  sni],  and  not  from  the  bishop  (non  ab  episcopo}" 
For  a  person  is  said  to  have  jurisdiction  from  the  ',aw  when, 
by  virtue  of  the  jus  commune,  his    powers    are  determined 
certo  et  fixo  inodo,  quern  episcopus  mutare  nequit"     Now,  the 
jurisdiction  of  vicars-general  is  so  determined  ;  for,  as  was 
seen,  his  jurisdiction,  whether  the  bishop  wills  it  or  not,  ex 
tends,  by  virtue  of  the  common  law,  morally  to  all  matters 
and  over  the  entire  diocese,  and  is  in  this  respect  not  depen 
dent  on  or  alterable  by  the  bishop.15     Nor  can  it  be  objected 
that  the  vicar-general  receives  jurisdiction  through  the  epis 
copal  appointment.     For  this  appointment  is  but  the  .means 
by  which  the  law  confers  jurisdiction  upon  him.18 

623.  Is  the  jurisdictio  of  the  vicar-general  or  dinar  ia  or 
only  dclegata  ?     It  \&  jurisdictio  ordinaria.     This  is  certain  at 

"  Craiss.,  n.  1124.  n  Leuren.,  I.  c.(  qu.  8,  n  a. 

"  C.  PI.  Bait.  II.,  n.  75  ;  ib.,  footnote  4.  "  Leuren.,  1.  c.(  qu.  72. 

'4  Bouix,  1.  c.,  p.  3bo.  «>  Ib.,  p.  361. 

M  Our  Notes,  pp.  70  71 


404  Of  the  Bishop's  Assistants  in  the 

present.17  In  fact,  his  jurisdiction  is  one  and  the  same  with 
that  of  the  bishop  himself;  for  the  tribunal  (consistorium^ 
auditorium}  of  the  vicar-general  is  considered  in  ecclesiasti 
cal  law  the  tribunal  of  the  bishop  ;  the  person  of  the  vicar- 
general,  the  person  of  the  bishop ;  and  the  sentence  pro 
nounced  by  the  vicar-general,  the  sentence  of  the  bishop. 
This  holds  so  strictly  that  no  appeal  lies  from  the  vicar- 
general  to  the  bishop,  because  it  would  be  appealing  from 
the  same  person  to  the  same  person.18  Now,  the  jurisdic 
tion  of  the  bishop  is  ordinary  ;  hence,  that  of  the  vicar- 
general  is  likewise  ordinary.19  But  it  may  be  objected  :. 
Ordinary  jurisdiction  is  essentially  perpetual ;  now,  that  of 
the  vicar-general  is  revocable  ad  nutuni  episcopi ;  hence,  etc. 
We  deny  the  major.  Ordinary  jurisdiction  is  that  which  is 
annexed  to  some  office,  but  not  that  which  is  annexed  to  it 
irrevocably.  Thus,  Papal  legates  have  ordinary,  though 
not  irrevocable,  jurisdiction.20 

624.  How  is  the  principle  to  be  understood :  A  sentcntia 
vicarii  generalis  11011  datnr  ad  episcopum  appcllatio  ?  This 
principle,  being  unanimously  admitted  by  canonists,  is  in 
controvertible.21  Hence,  I,  no  custom  to  the  contrary  can 
obtain ;  it  holds,  2,  even  though  the  parties  interested  should 
consent  to  an  appeal  to  the  bishop ;  3,  of  extra-judicial  as 
well  as  judicial  appeals;  4,  even  of  cases  or  matters  for  which 
the  vicar- general  needs  a  special  commission,  provided  such 
matters  are  committed  to  him  simultaneously  with  his  ap 
pointment  as  vicar-general.  We  say,  simultaneously,  etc. ; 
for  the  principle  in  question  does  not — at  least,  according  to 
some — extend  to  matters  specially  delegated  to  him  after  his 
appointment  to  the  vicar-generalship  (extra  coinmissionem 
generalem  vicariatus)  ;  because  in  this  case  the  V.  G.  pro- 

17  Formerly  the  question  was  controverted.     Bouix,  1.  c. 

18  Bouix,  1.  c.,  pp.  363,  364. 

19  The  V.  G.  is  therefore  properly  named  ordinarius.     Ferraris,  1.  c.,  art.  i., 
a.  41-43.  20  Craiss.,  n.  1127.  "  Bouix,  1.  c.,  pp.  3?2-37&. 


Exercise  of  Episcopal  Jurisdiction.  405 

ceeds  as  dclegatus,  not  as  ordinaries,  and  hence  an  appeal  lies 
from  him  to  the  bishop.''2  Observe,  that  even  in  cases  where 
no  appeal  lies  from  the  vicar-general  to  the  bishop,  a  peti 
tion  can  always  be  addressed  to  him  for  the  remission  of  the 
penalty  imposed  by  his  vicar-general.23  The  terms  vicar ius 
gcneralis  and  officialis  are,  "  de  jure  communi,"  synonymous. 
In  fact,  in  Italy  both  these  terms  are  applied  to  one  and  the 
same  person  vested  with  voluntary  and  contentious  jurisdic 
tion.  But  in  France  and  some  other  countries  the  officialis 
is  one  who  exercises  contentious,  the  vicarius  generalis  one 
who  has  but  voluntary  jurisdiction.24  Though,  de  facto, 
both  the  jurisdictio  voluntaria  and  the  jurisdictio  contentiosa 
may  be — in  fact,  are  sometimes — exercised  by  two  different 
officials,  yet,  de  jure,  both  are  essentially  exercisable  by  one 
and  the  same  vicar-general.25 

§  2.  Appointment  of  the   Vicar-General. 

62$.  We  shall  explain,  I,  the  qualifications  requisite  in  a 
vicar-general ;  2,  by  whom  he  is  to  be  appointed  ;  3,  whe 
ther  the  bishop  is  obligated  to  appoint  a  vicar-general,  and 
whether  he  can  have  several ;  4,  in  what  manner  the  ap 
pointment  is  to  be  made.  I.  Qualifications  required  in  a 
Vicar-General. —  i.  The  vicar-general  should  be  an  ecclesias 
tic — that  is,  he  should  be,  at  least,  tonsured — though  he  need 
not  be  in  major  or  even  minor  orders.28  2.  No  ecclesiastic,27 
while  actually  married,  can  be  appointed  vicar-general.  3. 

58  Cfr.  Leuren.,  1.  c.,  qu.  74.  M  Bouix,  1.  c.,  p.  376. 

14  Craiss.,  n.  1134.  In  the  United  States  the  term  officialis  is  almost  un 
known,  and  that  of  vicar-general  is  the  only  one  used. 

26  Bened.  XIV.,  De  Syn.,  1.  iii.,  c.  iii.,  n.  2. 

M  The  schema  of  the  Vatican  Council,  "de  vicario  general!,"  says  :  Expedit 
etiam  ut  vicarii  generales  sacerdotali  sint  characters  insigniti  (Martin,  Docum. 
Cone.  Vatic.,  p.  128). 

"  We  here  speak,  of  course,  only  of  those  ecclesiastics  who  are  not  yet  in 
major  orders,  and  who,  consequently,  are  allowed  to  marry  (Bouix.  De  Jud., 
t.  i.,  pp.  388,  389'. 


^06  Of  the  Bishop's  Assistants  in  the 

A  vicar-general  should  be  twenty  five  years  of  age/''  born  in 
lawful  wedlock  ;  he  should,  moreover,  be  a  doctor  in  theo 
logy  or  a  licentiate  in  canon  law.  We  ask :  Can  a  religious 
be  made  vicar-general  ?  It  is  certain  that  he  cannot  with 
out  the  permission  of  his  superior.  But  is  the  consent  of  the 
Holy  See  also  required  ?  Speaking  in  general,  the  question 
is  disputed.  The  affirmative,  which  seems  the  more  proba 
ble  opinion,  is  based  on  the  argument  that  no  regular  can 
reside  out  of  his  monastery  (extra  clanstrd)  without  permis 
sion  from  the  Holy  See.4'  Bouix  adds  that,  at  the  present 
day,  it  is  not  unfrequently  expedient  to  select  the  vicar-- 
general  from  some  religious  community.  Can  a  bishop, 
parish  priest,  rector  of  a  seminary,  or  relative  of  the  bishop 
be  named  vicar-general?  I.  A  bishop  not  actually  in 'charge 
of  a  diocese  may  undoubtedly  become  the  vicar-general  of 
another  bishop,  both  in pontificalibus  and  in  aliis  spiritiialibus. 
12.  No  parish  priest,  and,  in  general,30  no  clergyman  having 
Vhe  care  of  souls,  especially  if  it  b~  outside  the  episcopal 
pity,  can  be  vicar-general.  The  , eason  is  that  the  duties 
respectively  of  a  vicar-general  'ind  pastor  are  so  grave  that, 
as  a  rule,  they  cannot  be  '  ^.ultaneously  fulfilled  in  a  proper 
manner  by  the  same  per1  _,n.31  Hence,  they  are  officia  incoin- 
patibilia.  Nevertheless,  the  appointment  of  a  pastor  as  • 
near-general,  though  illicit,  would  not  seem  to  be  invalid. 
3.  Rectors  of  seminaries  should  not  be  made  vicars-genera!, 

**  The  above  schema  of  the  Vatican  Council  enjoins  "  ut  illud  [i.e.,  vicarii 
fen.  officium]  ecclesiasticis  viris  deferatur  twn  minoribus  annis  triginta,  et  in 
jure  saltern  canonico  doctoribus,  vel  alias  quantum  fieri  poterit.  idoneis 
'Martin,  1.  c.)  a8  Clem,  ad  prioratus  (i.e.,  tit.  ix.  lib.  Hi.) 

110  The  schema  above  quoted  of  the  Vatican  Council  proposes  :  "  Et  quia 
nccesse  est  ut  a  fori  interni  ministerio  omnis  pellatur  suspicio  quod  ad  e\- 
tt-rni  fori  possit  adhiberi  negotio,  nee  permittendum  sit  ut  a  suo  munere  quis- 
piam  abducatur,  in  quod  incumbere  totus  debet,  propterea  episcopi  canoni-is 
pocnitentiariis,  parockis,  ceterisque  curam  animation  habentibus,  itemque  obtiec. 
tatio.iis  vitandae  causa,  suis  fratribus  attt  nep  'tihus,  vicari*  genei-atis  m units  uon 
tommittnnt"  ^Majtin.  1.  c.)  !1  Ferraris  V.  \  i.arius  Gvneralis,  art.  i..  n.  27 


Exercise  of  Episcopal  Jurisdiction.  407 

because  it  is  ordinarily  impossible  for  them  to  properly  dis 
charge  their  duties  toward  the  seminary  without  neglecting 
those  of  the  vicar-generalship.  4.  Nor  should  relatives 
(v.g.,  uncle,  nephew,  brother)  of  the  bishop  be  named  vicars- 
general.32  Can  natives  of  the  episcopal  city  or  of  the  diocese 
be  made  vicars-general  ?  According  to  Cardinal  de  Luca, 
the  bishop  is  bound  to  name  as  his  vicar-general  a  stranger 
(extents] — that  is,  one  who  neither  belongs  to  the  clergy  of 
his  diocese  nor  is  a  citizen  of  the  episcopal  city.  Bouix 
goes  so  far  as  to  say  that,  de  jure  communi,  it  is  unlawful  for 
/a  bishop  to  appoint  an  ecclesiastic  of  his  own  diocese  to  the 
I  vicar-generalship,  save  by  Papal  dispensation.33  The  jus 
commune  in  this  respect  still  obtains,  and  should  consequent 
ly  be  observed,  except,  perhaps,  in  some  countries  where  it 
may  have  been  abrogated  by  contrary  custom  lawfully  pre 
scribed.34  However,  the  appointment  of  a  diocesan  ecclesi 
astic,  though  illicit,  is  valid.  Customs  in  the  United  States. — 
Generally  pastors,  especially  those  of  cathedrals,  and  some 
times  rectors  of  seminaries,  owing  chiefly  to  the  scarcity  of 
priests,  are  appointed  vicars-general.  As  a  rule,  the  vicar- 
general  is  selected  from  among  the  diocesan  clergy. 

626. — II.  Who  lias  the  power  of  appointment  ?  I.  Every 
bishop,  no  matter  whether  his  diocese  be  large  or  small,  can 
appoint  a  vicar-general,  and  that,  at  present,  without  the 
consent  or  even  advice  of  his  chapter."  2.  The  administra 
tor  of  a  vacant  diocese,  as  also  the  administrator  of  a  dio 
cese  whose  bishop  is  still  living,  may  appoint  a  vicar-general 
for  himself,  because  he  is  possessed  of  the  ordinary  jurisdic 
tion  of  the  bishop.30  3.  The  Holy  See  may — in  fact,  some 
times  does — appoint  a  vicar-general — v.g.,  where  the  bishop, 
though  unable  alone  to  govern  hrs  diocese,  because  of  its  ex 
tent  and  the  like,  nevertheless  neglects  to  name  a  vicar- 

"  Craiss.,  n.  1143.  Cf.  S.  Thorn.,  2,  2,  q.  63  art.  2,  ad.  i. 

18  Cfr.  Leuren.,  For.  Benef.  Tr.  de  Vicario  Gen.  Episcopi,  c.  i.,  qu.  47. 

**  Ferraris,  1.  c.,  n.  34.  30  Leuren.,  1.  c..  qu.  20,  21.  "  Ib.,  qu.  24 


408  Of  the  Bishop's  Assistants  in  t?ir 

general.      4.    In  no  case  can  the  metropolitan   aptimn*    ..m 
.  vicar-general  of  a  suffragan."     A  bishop  elect 38  cannot  ~p- 
/  point  a  vicar-general  before  he  has  taken  possession  of  his 
I  see  ;   he  may,  however,  make  the  appointment  prior  to  his 
consecration,  provided  he  has  taken  possession  of  his  see- 
that  is,  provided  he  has  actually  exhibited  the  bulls  of  his 

elevation.      III.   Obligation  of  appointing  a  Vicar-General. Is 

a  bishop  obligated  to  have  a  vicar-general  ?  The  question 
is  controverted.  According  to  Bouix  and  others,  a  bishop,39 
if  he  resides  in  his  diocese,  is  not  bound  to  appoint  a  vicar- 
general  unless  the  Holy  See  commands  him  to  do  so.  We 
say,  if  he  resides  in  his  diocese;  for  if  he  were  absent  from 
his  see,  he  would  be  obliged  to  name  a  vicar-general,  in 
order  to  ensure  unity  of  government  during  his  absence. 
Can  the  bishop  have  several  vicars-general?  i.  It  is  cer 
tain  that  no  bishop,  however  extensive  his  diocese  may  be, 
is  obliged  to  have  two  or  more  vicars-general.40  The  only 
exception  occurs  in  dioceses  where  the  diocesans  are  of  dif 
ferent  languages  and  rites— v.g.,  Greek  and  Latin  rites;41 
for,  in  this  case,  the  bishop  is  bound  to  appoint  a  vicar- 
general,  and  that  a  bishop,  for  those  of  a  different  rite.42  2. 
lit  is  even  controverted  whether  a  bishop  can,  as  a  rule,  name 
jseveral  vicars-general.  The  affirmative— to  wit,  that  seve- 
»-al  vicars-general,43  each  having  jurisdiction  in  solidum,  may 

87  Bouix,  1.  c.,  p.  405. 

38  Even  though  he  has  already  received  the  bulls  (Ferraris,  1.  c.,  n.  17). 

89  Especially  if  he  is  a  canonist  and  has  a  small  diocese  (Phillips,  Lehrb., 
P-  333)- 

40  The  schema,  above  quoted,  of  the  Vatican  Council  says  :  "  Quibus  vero  in 
dioecesibus  plures  vicarii  generales  deputao  solent,  hi  numerum  duorum  i<el 
ttium  non  excedant,  omnesque  in  solidum  teu  aeque principaliter  constituantur,  ne 
forte  quae  ab  eorum  singulis  provisa  gestaque  fuerint,  viribus  careant.  Vica- 
riorum  autem  generalium,  quos  honorarios  vocant,  nomen  et  usus  prorsus 
aboleatur"  (Martin,  1.  c.)  41  Supra,  n.  541.  «  Craiss.,  n.  1156. 

43  In  case  several  are  named,  all  of  them  must  reside  in  the  episcopal  citv. 
Ferraris,  1.  c  ,  n.  y. 


Exercise  of  Episcopal  Jiinsdiction.  409 

be  appointed — is  the  more  probable  opinion.  3.  We  said,  as 
a  rule ;  for  it  is  certain  that  a  bishop  can  constitute  several 
vicars-general,  i,  where  it  is  customary  to  do  so;  2,  where 
two  dioceses,  having  been  united  into  one  (dioeceses  princi- 
paliter  unitae),  are  governed  by  the  same  bishop.44  In  the 
latter  case,  the  bishop  may  have  a  vicar-general  in  each  dio 
cese  ,  nay,  if  the  two  dioceses  arc  at  a  considerable  distance 
from  each  other,  he  is  bound  to  have  one  in  the  diocese 
where  he  does  not  reside.  IV.  Mode  of  Appointment. — The 
vicar-general  may  be  validly  constituted  orally,  and  it  is  not 
absolutely  necessary  that  his  appointment  should  be  made 
in  writing.  We  say,  not  absolutely ;  because  letters  of  ap 
pointment  are  required  in  order  to  prove  the  authority  of 
the  vicar-general,  if  called  in  question.  Hence,  it  is  ad 
visable  that  he  be  always  appointed  by  letters-patent  (scrip, 
tura  publica  et  solemnis) — that  is,  by  an  official  instrument 
not  merely  by  private  letters.4" 

§  3.  Powers  of  the  Vicar-General. 

627.  The  vicar-general,  by  virtue  of  his  appointment  (et 
ipso  quod  constituatur  V.  G.},  can,  as  a  rule,46  do  what  the 
bishop  himself  can  do  de  jure  or  dinar  io.^  For,  as  was  seen 
his  jurisdiction  is  the  same  as  that  of  the  bishop  ;  per  se, 
therefore  it  is  in  every  respect  as  great,  as  unlimited,  and  as 
universal  as  is  the  ordinary  jurisdiction  of  the  bishop  him 
self."  We  say,/^r  se;  that  is,  unless  restricted,  i,  by  eccle 
siastical  law  ;  2,  or  by  the  bishop.  Hence,  in  order  to 
ascertain  the  extent  of  the  powers  vested  in  the  vicar-gene 
ral  by  his  very  appointment,  the  question  is  not  so  much 
what  powers  has  he  as  what  powers  has  he  not.  Once  we 
have  learned  what  restrictions  have  been  placed  on  his 
jurisdiction,  either  by  canon  law  or  by  the  bishop,  and,  con- 

44  Leuren.,  1.  c.,  qu.  31.  46  Ib.,  qu.  35.  4*  Ferraris,  1.  c.,  art.  ii.,  n.  3. 

47  Leuren.,  1.  c.,  c.  iii.,  qu.  96,  98.         <s  Bouix,  De  Judic.  Eccl.,  tr.  i.,  p  414. 


4io  Of  the  Bishop 's  Assistants  in  the 

sequently,  what  he  cannot  do,  we  know  by  inference  what 
he  can  do — to  wit :  He  can  do  generally  what  the  bishop 
himself  can  do.  Hence  we  ask  :  In  what  things  or  how  far 
has  canon  law  restricted  the  jurisdiction  vested  in  the  vicar- 
general  by  virtue  of  his  appointment  (vi  officii  sibi  generaiiter 
comnnssi™)!  Chiefly  thus:  I,  by  prohibiting  him  from  act 
ing  validly  in  certain  cases  without  a  special  mandate  from 
the  bishop  ;  2,  by  enacting  that  he  cannot  proceed  in  some 
things  even  with  a  special  mandate  from  the  bishop.  I. 
Chief  Cases  where  the  Vicar-General  cannot  act  validly  save  by 
a  Special  Mandate  from  the  Bishop. —  i.  The  vicar-general,. 
even  though  he  be  a  bishop,  cannot  perform  actions  of  the 
ordo  episcopal  is — v.g.,  blessing  holy  oils,  giving  confirmation, 
consecrating  churches  or  conferring  orders.  Nor'  can  he 
grant  letters  dimissory  for  the  reception  of  orders,  except 
when  the  bishop  is  in  remotis  regionibus  and  will  not  return 
for  a  long  time.  2.  ///  materia  beneficiali ;  he  cannot  confer 
benefices,  although,  according  to  some,  he  can  appoint  to 
parishes  those  who,  having  made  the  concursns,  are  found  to 
be  the  personae  digniores.™  In  the  United  States,  however, 
according  to  Kenrick,61  vicars-general  (except  the  bishop 
disposes  otherwise)  can  give  priests  faculties,  together  with 
the  care  of  souls,  as  also  revoke  them  for  just  reasons.02  He 
cannot  erect,  unite,  or  divide  benefices  or  parishes,63  nor  can 
he  give  another  bishop  permission  to  exercise  pontificalia  in 
the  diocese.  3.  In  regard  to  the  jnrisdictio  contcntiosa,  he 
cannot  take  cognizance  of  the  graver  causes  or  crimes  of 
ecclesiastics,  and  consequently  he  cannot  depose  them  ab 
ordinc  or  a  bencficio  (v.g.,  parish).  4.  Nor  can  he  absolve 
from  suspensions  incurred  ex  dclicto  occidto,  nor  from  other 
cases  reserved  to  the  Holy  See  ;  nor  from  sins  reserved  to 
the  bishop  solely?*  either  by  the  bishop  himself  or  by  ecclesi- 

49  Ferraris,  1.  c.,  n.  3.  *"  Cfr.  Craiss.,  n.  1162.  "  Tr.  viii    n.  4* 

63  Konings,  n.  1146  (z/.  "  i-errans,  I.  c.,  n.  29,  34,  28. 

M  Leuren.,  1.  c  ,  qu.  130,  131. 


Exercise  of  Episcopal  Jurisdiction.  41 1 

astical  law  "  (v.g.,  in  the  C.  Ap.  Sedis  of  Pope  Pius  IX.  or  in 
the  Council  of  Trent,  sess.  xxiv.,  c.  vi.,  d.  R.)  5.  General 
ly  speaking,  he  cannot  dispose  of  matters  of  a  grave  charac 
ter  (causae  arduae,  res  graves}.™  6.  Nor  can  he  do  those 
things  which  fall  under  the  bishop's  jurisdiction,  not  de  jure 
communi  or  de  jure  ordinario,  but  by  virtue  of  the  jus  speciale. 
Thus,  vicars-general  in  the  United  States  can  exercise  the 
ordinary,  but  not,  except  by  special  mandate,  the  extraordi 
nary,  faculties  of  our  bishops.  II.  Chief  Cases  where  the 
Vicar-General  cannot  proceed  validly,  even  with  a  Special  Man 
date  from  the  Bishop. — i.  The  bishop  cannot  confer  upon  his 
vicar-general  power  to  absolve  from  occult  heresy.  Pro 
testants,  however,  who  apply  for  admission  into  the  Church, 
may  be  absolved  by  the  bishop  or  his  delegatus  ;  "  the  reason 
is  that,  by  applying  for  admission  into  the  Church,  their 
haeresis  becomes  deducta  ad  forum  episcopi,  and  thus  ceases  to 
be  occult."  2.  The  bishop  cannot  empower  his  vicar-gene 
ral  (unless  he  be  a  bishop)  to  perform  those  actions  for 
which,  jure  divino,  the  or  do  episcopalis  is  required — v.g.,  the 
conferring  of  major  orders  ;  neither  can  he,  except  by  leave 
from  Rome,  authorize  his  vicar-general  (who  is  not  a  bishop) 
to  do  those  things  for  which  the  ordo  episcopalis  is  necessary 
only  jure  ecclesiastico — v.g.,  to  perform  the  blessing  of  ab 
bots  and  blessings  in  general,  where  the  holy  oils  are 
used."  Bishops  in  the  United  States  have  power  from 
the  Holy  See  to  authorize  not  only  vicars-general,  but 
also  other  priests,  to  consecrate  chalices  and  altar-stones, 
to  bless  bells,*'  sacred  vestments,  to  absolve  from  occult 
heresy.  Moreover,  the  facilitates  extr.  D.  and  E.  may  be 
delegated 81  by  our  bishops  to  two  or  three  worthy  priests 
in  remotioribus  locis  dioecesis,  as  also  to  vicars  -  general 

16  Konings,  n.  1146  (6).          M  Phillips,  Lehrb.,  p.  335.          w  Supra,  n.  580 
11  Craiss.,  n.  1168.  M  Leuren.,  1.  c.,  qu.  113. 

**  Fac.  Extr.  C.,  n.  6,  12;  Fac.  form,  i.,  n.  i?. 
w  "  Pro  aliquo  tamen  numero  casuum  ur 


412  Of  tJic  Bishop's  Assistants  211  the 

in  case  bishops  are  to  be  absent  more  than  a  day  from  then 
residence.82 

628. — I.  To  what  matters  does  the  ordinary  jurisdiction 
of  vicars-general  chiefly  extend  without  any  special  mandate 
from  the  bishop  ?  We  premise  :  The  jurisdiction  of  vicars- 
general  is  not  so  extensive  as  that  of  vicars-capitular,  sede 
vacant e  (with  us,  administrators) ;  for  the  latter  can  do  many 
things  which  the  former  cannot,  save  by  special  mandate." 
We  now  answer:  I.  The  vicar  general  has  the  right  to  con 
cur  cumulatively  with  all  the  pastors  of  the  diocese  in  the 
administration  of  the  sacraments  and  in  preaching.04  2.  He 
may,  by  virtue  of  his  appointment,  hear  sacramental  confes 
sions  and  also  give  other  priests  faculties  to  do  so.65  3.  He 
can  appoint  in  his  stead  a  delcgatus  for  one  or  several  mat 
ters,  but  not64  quoad  universitatem  causarum.  4.  He  can 
compel  pastors  to  take  as  many  assistants  as  are  necessarv 
for  the  parish.  5.  He  may  dispense  from  all  the  proclama 
tions  of  the  banns.67  II.  Is  the  vicar-generalship  an  ecclesi 
astical  dignity  ?  By  a  dignitas,  in  the  strict  sense,  is  not 
meant  every  office  to  which  precedence  and  jurisdiction  are 
attached,  but  only  an  office  that  is  permanently  vested  in  a 
person,  and  to  which  precedence  and  jurisdiction  are  an 
nexed.  In  a  broad  sense,  a  dignitas  is  an  office  ad  nutum  re- 
vocabile,  having  jurisdiction  and  precedence  attached.  As 
the  vicar-general  is  removable  ad  nut  inn  cpiscopi,  he  is  an 
ecclesiastical  dignitary  only  in  a  broad  sense.6"  Yicurs- 
^cncral  arc  also  accounted  by  some //v?r/ ,•/«;'  minorcs. 

629.  How  does  the  vicar-general's  jurisdiction  expire  ? 
Chiefly  in  three  ways  :69  I.  By  will  of  the  bishop — namely,  by 
his  removing  the  vicar-general.  A  vicar-general  being  re- 

M  Fac.  Extr.  D.,  n.  8  ;  Fac.  Extr.  E.,  n.  4,   ap.  our  Notes,  pp.  473,  475. 

41  Leuren.,  1.  c.,  qu.  97.  '*  Ib.,  qu    ill, 

•'  Ferraris,  1.  c.,  art.  ii.,  n.  n,  12,  13. 

**  Except  by  special  mandate  (cfr.  Craiss. ,  n.  1176). 

*T  Leuren.,  1.  c.,  qu.  161.         '"  Bouix,  1.  c.,  p.  440.          "  Soglia,  t.  ii.,  p.  27 


Exercise  of  Episcopal  Jurisdiction.  413 

vocabilis  ad  nutum  episcopi  may  -be  validly  removed  without 
cause,  but  nol  licitly,  except  ex  gravi  et  justa  causa ;  and  if 
removed:  without  such  cause,  he  may  be  reinstated  by  the 
Holy  See.70  II.  By  will  of  the  vicar-general  himself — that  is, 
by  his  express  or  tacit  resignation.  He  resigns  tacitly  by 
leaving  the  diocese  with  the  intention  of  not  returning.  III. 
By  the  lapse  of  the  bishop's  jurisdiction.  Now,  the  bishop  loses 
jurisdiction,  i,  by  death.  We  observe,  however,  the  vicar- 
general's  jurisdiction  expires  at  the  bishop's  death  only  in 
regard  to  matters  delegated  71  to  him  under  his  official  title 
only — v.g.,  thus  :  "  Committimus  hanc  causam  vicario  gcnerali 
Neo-Eboracensi,"  .  .  .  but  not  in  regard  to  matters  com 
mitted  to  him  personally  or  under  his  baptismal  or  family 
name — v.g.,  thus :  "  Committimus  hanc  causam  Jacobo  Mur 
phy,  vicario  general!  Neo-Eboracensi."  For,  respecting  the 
latter  cases,  he  retains  jurisdiction  even  after  the  bishop's 
death,  or  after  being  removed  from  the  vicar-generalship." 
The  bishop  loses  jurisdiction,  2,  by  resigning  his  see  ;  3,  by 
being  transferred  to  another  bishopric  ;  4,  when  taken  cap 
tive  (namely,  by  pagans,  heretics,  and  schismatics) ;  5,  by 
being  excommunicated,  suspended,  or  interdicted ;  6,  by 
being  deposed.  In  whatever  manner,  therefore,  the  bi 
shop's  jurisdiction  lapses,  that  of  the  vicar-general— except, 
as  stated,  in  cases  delegated  to  him  personally — also  expires, 
and  that  even  in  regard  to  matters  already  taken  in  hand  (re 
non  amp lius  Integra)  by  him.73  Herein  a  vicar-general  differs 
from  a  mere  delcgatus ;  for  the  latter's  jurisdiction  expires  at 
the  death  of  the  persona  delegans,  only  in  regard  to  matters 
not  yet  engaged  in  (re  adliuc  Integra),  but  not  in  respect  to 
things  already  undertaken. 

630.-  -I.    By  whom  is  the  salary  of  the  vicar-general  to 
be  paid  ?     I.  De  jure  communi,  by  the  bishop,  out  of  his  own 

7*  Ferraris,  1.  c.,  art.  iii.,  n.  29. 

"  Whether  by  the  bishop  or  the  Holy  See.     Crais?.,  n.  1181. 

n  Leuren.,  1.  c.,  qu.  2g8.  7S  Soglia,  1.  c.,  p.  3* 


4[4  Of  the  Bishop's  Assistants  in  t/ic 

income  (e*  sua  camera].1*     The  salary  clue  the  vicar-general 
ai  the  time  of  the  bishop's  death  should  be  paid  him  by  the 
vicar-capitular  out  of  the  revenues  of  the  vacant  see.     2.    In 
France  and  some  other  countries  he  is  paid  by  the  govern 
ment.     3.    In  the   United  States  vicars-general  are  usually 
also  pastors,  and  do  not,  as  a  rule,  receive  a  special  salary 
for  the  discharge  of  their  duties  as  vicars- general.     II.  When 
are  the  excesses  and  the  ignorance  of  a  vicar  general  im- 
putable  to  the  bishop?     i.   The  bishop  is  not  responsible  foj 
delinquencies  of  which  his  vicar-general  is  guilty  extra  offi- 
cium  suum — that   is,   as  a  private  person.76     2.   Excesses  ot 
mistakes  committed  by  the  vicar-general  in  his  official  capa 
city — i.e.,  in  the  exercise  of  his  authority — are  to  be    im 
puted  to  the  bishop  if  he  appoints  or  retains  in  office 'a  vicar- 
general   whose  bad   character  or  ignorance  is  or  should  be 
known  to  him ;  nay,  a  bishop,  in  this  case,  is  even  bound  to 
make  restitution  for  injuries  caused  by  unjust  and  uncanoni- 
cal  acts  of  his  vicar-general.76     For  he  is  bound  to  appoint 
a  virtuous  as  well  as  a  learned  and  experienced  vicar-gene 
ral.     III.    By  whom  is  the  vicar-general  punishable  for  his 
offences  ?     His  offences  relate  either  to  his  private  or  official 
conduct.     I.  If  he  commits  crimes  as  a  private  person,  he  is 
punishable,  like  others,  by  his  bishop,  not  by  the  metropoli 
tan,  save  on  appeal.77     2.  But  if  he  is  delinquent  in  the  dis 
charge  of  his  duties  as  vicar-general  (in  officio  ct  jurisdictione] 
he  is  to  be  punished,  according  to  some,  by  the  metropoli 
tan,  not  by  his  bishop ; 78  according  to  others,  by  the  bishop, 
unless  the  latter  is  an  accomplice  of  the  vicar-general. 

74  Craiss.,  n.  1183.  "  Leuren.,  1.  c.,  qu.  301. 

7e  Bouix,  1.  c.,  pp.  445,  448.  n  Leuren.,  1.  c.,  qu.  300,  n.  j,  a,  j, 

n  Bouix,  1.  c.,  p.  453. 


Exercise  of  Episcopal  Jurisdiction.  415 


ART.  II. 

Of  Archdeacons  and  Arch-Priests. 

631.   As  both  these  dignities  have  substantially  ceased 
to  exist,  we  shall  but  briefly  refer  to  them.     I.  Archdeacons. 

1.  Their  office  in  former  times. — Archdeacons  (archidiaconi) 
were  formerly  those  who  assisted  the  bishop  in  the  exercise 
of  his  external  jurisdiction  and  in  the  administration  of  the 
diocese.79     Their  power  was  similar  to  that  of  vicars-general 
at  the  present  day,  by  whom  they  were  superseded.     Their 
jurisdiction  was  ordinary,  and,  though  inferior,  to,  was  yet 
independent  of  and  distinct  from,  that  of  the  bishop.80     They 
were  not  removable  ad  nutum  episcopi.     Down  to  the  thir 
teenth  century  their  authority  steadily  increased.     Not  un- 
frequently,  however,  they  abused  their  power,  which  was,  in 
consequence,  greatly  diminished  by  the  Council  of  Trent.81 

2.  Rights  of  Archdeacons  at  present. — Their  office  is  almost 
entirely  abolished,  being  reduced  to  assisting  the  bishop  at 
ordinations  and   presenting   the  ordinandi.      Hence,   where 
archdeacons  still  exist,  they  retain  merely  the  name,  not  the 
power   formerly  attached   to    their   office.      Vicars-general 
now  take  their  place.      II.  Arch-Priests. — I.   Their  office  or 
power  in  former  times. — The  arch-priest  (archi-presbyter)  oc 
cupied  the  chief  place  among  priests.     It  was  his  duty  to 
assist  the  bishop  in  those  things  which  related  to  the  sacra 
ministeria  (i.e.,  the  administration  of  the  sacraments)  and  the 
forum  internum.      The  chief  difference,  therefore,  between 
arch-priests   and   archdeacons   was   this :    The   former  had 
jurisdiction  in  foro  inter  no  only ;  the  latter  in  foro  externo. 
There  were  two  kinds  of  arch-priests :  namely,  the  archi- 
presbyteri  urbani — that  is,  those  who  lived  in  the  episcopal 

"  Soglia   t  'i.,  pp.  22,  23.  '  "Phillips,  Lehrb.,  p.  329. 

§1  Sess.  XXK.,  c.  v.,  xii..  xx.,  d   R 


4i 6  Of  the  Bishop's  Assistants  in  the 

city  or  at  the  cathedral ;  and  the  archi-presbyteri  ruralcs — 
namely,  those  who  were  appointed  for  country  districts." 
2.  Rights  of  Arch-Priests  at  present. — Their  powers  met  with 
the  same  fate  as  those  of  archdeacons.  Hence,  the  rights 
formerly  possessed  by  arch-priests  are  now  almost  every 
where  extinct.  The  archi-presbyteri  urbani  have  been  super 
seded  by  the  auxiliary  bishops  of  the  present  day ;  the  arcJii- 
presbyteri  rurales  by  the  present  vicarii  foranei  or  rural 
deans/8 

ART.  III. 
Rural  Deans. 

632.  By  rural  deans  (decani  rtirales,  vicarii  foranei}  we 
mean  those  pastors  who  are  permanently  deputed  by  the 
bishop  to  expedite  matters  of  minor  importance  in  certain 
districts  of  the  diocese.84  We  say,  permanent!)' ;  thus,  we 
distinguish  them  from  those  delegati  who  are  delegated 
either  for  a  particular  case  only,  or  but  temporarily  for  a 
certain  kind  of  matters.  Rural  deans  are  also  named  vicarii 
foranei  because  they  are  appointed  for  districts  situate  extra 
fores — I.e.,  outside  the  city  in  which  the  bishop  resides.85 
They  may  be  chosen  by  the  pastors  of  their  district  or  deca- 
nia;™  this  election  is,  of  course,  subject  to  the  approval  of 
the  bishop.  Their  chief  duties,  especially  in  the  United 
States,  are  :  To  take  care  of  sick  and  attend  to  the  burial  of 
deceased  priests  in  their  district ;  to  preside  in  theological 
conferences,  settle  minor  disputes,  and,  in  general,  to  inform 
the  bishop  once  a  year,  or  oftener,  of  all  important  ecclesias 
tical  affairs  relating  to  their  district.87  The  jurisdiction  of 

w  Devoti,  lib.  i.,  tit.  iii.,  n.  75.  "3  Soglia,  1.  c. ,  p.  23. 

84  Phillips,  1.  c.,  p.  340.  es  Leuren.,  1.  c..  qu.  n,  is. 

**  Except  where  custom  has  reserved  this  right  to  the  bishop  (Phillips,  I.e.. 
p.  341).  "7  Cone.  PI.  Bait.  II.,  n.  74. 


Exercise  of  Episcopal  Jurisdiction.  417 

rural  deans  is  delegated ;  though  it  can  scarcely  be  said 
that,  at  present,  they  have  any  real  jurisdiction  at  all.  It 
is  allowed  to  appeal  from  them  to  the  bishop,  or,  sede 
vacante,  to  the  capitular  vicar  or  administrator.88  Finally, 
they  are  removable  ad  nutum  either  by  the  bishop  or  vicar- 
capitular. 

See  also  the  Third  Plenary  Council  of  Baltimore  (n.  27)  in 
regard  to  the  appointment  and  duties  of  Rural  deans  in  the 
United  States. 

88  Ferraris,  V.  Vicar.  Gen.,  art.  iv.,  n.  19,  20. 


CHAPTER  VIII. 

ADMINISTRATION    OF   VACANT    DIOCESES—"  DE    ADMINISTRA- 
TIONE   DIOECESIS,   SEDE   VACANTE." 

633.  We  shall  treat,  i,  of  the  government  of  a  diocese, 
sede  vacante,  as  laid  down  by  the  jus  commune,  and  as  existing 
in  countries  where  dioceses  are  fully  organized,  and  where, 
consequently,  there  are  chapters.  2.  Next  we  shall  discuss 
the  manner  in  which  vacant  dioceses  are  governed  in  the 
United  States. 

ART.  I. 

Administration  of  Vacant  Dioceses  in  Countries  where  the  "  Jus 
Commune  "  obtains. 

§  I.   Upon  whom  the  Government  of  a  Diocese,  " sede  vacante" 

devolves. 

634.  In  how  many  ways  may  an  episcopal  see  fall  vacant  ? 
In  three  :  Proprie,  quasi,  and  interpretative.1  I.  A  see  falls 
vacant,  in  the  proper  or  strict  sense  of  the  term  (sedes  vacat 
proprie,  sede  proprie  vacante],  \,  when  the  bishop  dies;  2,  or 
is  transferred  to  another  see ;  3,  when  he  resigns  ;  4,  or  is 
deposed  ;  5,  or  has  become  notoric  haereticus.  II.  A  see  bo 
comes  quasi-vacant  (sedcs  quasi  vacat,  sede  impeditd]  when,  by 
reason  of  some  hindrance,  its  bishop  is  prevented  from  ad 
ministering  it.  A  diocese  is  said  to  be  quasi-vacant,  i,  if 
the  bishop  is  made  captive,  or,  rather,  reduced  to  slavery  b^ 

1  Craiss.,  n.  1216 

418 


Administration  of  Vacant  Dioceses.  419 

pagans  and  schismatics.2  Two  exceptions,  however,  are  to 
be  admitted :  (a)  if  the  bishop,  notwithstanding  his  permar 
nent  captivity  or  slavery,  is  able  to  communicate  by  letter 
with  his  chapter ;  (<£)  if  he  has  left  a  vicar-general  in  the  dio 
cese.  We  said,  by  pagans  and  schismatics  ;  for  if  a  bishop  is 
imprisoned  or  banished  by  the  civil  government  to  which  he 
is  subject,  his  see  does  not  become  even  quasi-vacant,3  but  is 
to  be  governed  during  his  absence  by  the  vicar-general.  In 
lact,  to  declare  a  see  vacant  whose  bishop  is  exiled  or  im 
prisoned  for  defending  the  rights  of  the  Church  would  be, 
as  Pope  Gregory  XVI.  wrote  to  the  chapter  of  Cologne,  to 
connive  at  the  unjust  measures  of  the  civil  power.  2.  A  see, 
moreover,  becomes  quasi-vacant  if  the  bishop  is  far  from  his 
diocese  (in  remotis),  and  his  vicar-general  meanwhile  dies  or 
leaves  the  diocese,  is  ejected  by  the  civil  government,  or  is 
in  some  other  way  prevented  from  acting  as  vicar-general ; 
if,  however,  the  bishop  has  provided  for  these  contingencies, 
the  see  does  not  fall  vacant.4  III.  A  see  falls  vacant  inter 
pretative  when  its  bishop  becomes  excommunicated,  sus 
pended,  or  in/tabilis. 

3  V.g.,  Turks  and  Saracens  (Craiss.,  n.  1217) ;  also  heretics.  Cfr.  Ferraris,  V 
Capitulum,  art.  iii.,  n.  32. 

3  Thus  the  Holy  See,  in  1838,  decided,  in  th*  case  of  Droste  de  Vischering 
Archbishop  of  Cologne,  who  had  been  imprisoned  by  the  Prussian  Govern 
ment  in  1837 ;  as  also  in  the  case  of  the  Neapolitan  bishops  driven  from  their 
sees  by  the  Sardinian  Government.  See  Decretum  S.  C.  Episc.  et  Regul.,  May 
3,  1862,  de  Nullitate  Electionis  Vicarii  Capit.  Vivente  Episcopo  (ap.  Phillips, 
Lehrb.,  p.  322).  This  decree  was  sent  to  «//the  chapters,  to  serve  as  a  rule  of 
action  for  the  future  in  all  similar  cases.  The  schema  of  the  Vatican  Council, 
De  Sed.  Ep.  Vac.,  proposes  to  confirm  this  decree  in  these  words  :  Sede  vero 
per  episcopi  captivitatem  vel  relegationem  aut  exilium  impedita,  illius  regimen 
penes  episcopi  virarium  (generaZem),  vel  quemlibet  alium  virmn  eccltsiastitum  ab 
episcopo  delegatum  remaneaf,  donee  aliter  ab  hac  Sede  Apostolica  provideatirr. 
lis  autem  deficientibus  vel  impeditis,  capitulares  vicarium  constituent,  totiusque 
rei  eventum  quamprimum  ad  ejusdem  S.  Sed  is  notitiam  deferent,  reccpturi 
humiliter,  et  efficaciter  impleturi  quod  per  ipsam  contigerit  ordinari  (Martin, 
Docum.  p  134).  4  Leuren.,  1.  c.,  qu.  447  n.  3. 


420  Administration  of  Vacant  Dioceses. 

635. — I.  To  whom  belongs,  de  jure  communi,  the  adminis 
tration  of  a  diocese,  sede  vacant e  ?  1.  If  a  diocese  is  vacant 
in  the  strict  sense  of  the  term  (sede  proprie  vacant  e\  it  is  cer 
tain  that  its  administration,  for  the  whole  time  of  the  va 
cancy,6  belongs  de  jure  communi,  not  merely  by  privilege  or 
delegation,  to  the  cathedral  chapter.  2.  If  it  falls  quasi- 
vacant  (sede  quasi  vacant  e\  it  is  controverted  whether  or  not 
its  administration  devolves  upon  the  chapter.  According  to 
some,  it  does  in  all  cases  of  quasi-vacancy.6  According  to 
others,  a  distinction  must  be  made,  as  follows  :  If  a  diocese 
becomes  quasi-vacant  by  reason  of  its  bishop  being  made  a 
captive  or  slave  by  pagans  or  schismatics,  the  administration 
belongs  to  the  chapter,  though  only  provisionally — that  is, 
until  the  Holy  See,  having  been  duly  informed  by  the  chap 
ter,  either  confirms  the  vicarius  appointed  by  the  chapter  or 
names  a  vicarius  apostolicus.  In  all  other  cases  of  quasi- 
vacancy,  Phillips7  contends,  the  duty  of  the  chapter  con 
sists  merely  in  reporting  without  delay  the  state  of  affairs  to 
the  Holy  See,  by  whom  extraordinary  provisions,  if  neces 
sary,  are  to  be  made.  3.  It  is  certain  that  if  a  see  falls 
vacant  interpretative,  its  administration  does  not  devolve 
upon  the  chapter,  but  recourse  must  be  had  to  the  Holy 
See.  II.  Can  the  chapter  itself — i.e.,  in  a  body  or  collec 
tively — administer  a  diocese  during  its  vacancy?  At  pre 
sent8  it  cannot,  but  is  bound,  v/ithin  eight  days  after  it  is 
informed  of  the  vacancy,  to  elect  a  vicar  (vicarius  capitularis, 
vicarius  capituli),  who  administers  the  diocese  in  the  name  of 
the  chapter.  Should  it  neglect  doing  so,  this  duty  will  de- 

6  Bouix,  De  Capit.,  p.  482. 

8  Leuren.,  1.  c.,  qu.  447.  This  opinion  seems  untenable  at  present,  as  is 
evident  from  the  above  decree  of  the  S.  C.  Episc.,  issued  in  1862  (cfr.  schema 
"  De  Sed.  Ep.  Vac.,"  c.  ii.,  of  the  Vatican  Council). 

'  L.  c.,  §  161  ;  cfr.  Ferraris,  i.  c.,  n.  tf. 

1  Formerly  it  could  do  so  (Leuren.,  1.  c.,  qu.  467). 


Administration  of  Vacant  Dioceses.  421 

volve  on  the  metropolitan.9  The  administration,  therefore, 
ot  a  vacant  diocese  belongs  no  longer,  as  formerly — except 
for  the  first  eight  days  of  the  vacancy — to  the  entire  chapter, 
but  is  to  be  committed  to  one  person,  the  vicarius  capituli. 
We  say,  except  for  the  first  eight  days ;  for,  during  this  time, 
the  administration  still  belongs  to  the  whole  chapter  in 
solidum — i.e.,  collectively — but  not  to  the  prima  digmtas." 
Besides  choosing  a  vicar-capitular  for  the  exercise  of  the 
jurisdictio  ordinaria  episcopalis — i.e.,  for  the  administration 
proper11 — the  chapter  is  bound  to  appoint  one  or  more  pro 
curators  (peconomus),  whose  duty  it  is  to  take  care  of  the 
property  and  revenues  of  the  vacant  diocese.  In  the  United 
States  no  such  procurators  or  administrators  of  the  tempo 
ralities  of  vacant  dioceses  are  appointed.  Vacant  sees  are 
usually  governed,  with  us,  both  in  teinporalibus  and  spiritnali- 
biis,  by  one  and  the  same  administrator.  III.  Can  the  chap 
ter  appoint  several  vicars-capitular  ?  At  the  present  day  but 
one  capitular  vicar  can  be  chosen.12  Nevertheless,  the  cus 
tom,  if  legitimately  prescribed,  of  electing  two  or  more,  may 
be  tolerated.  Only  a  competent  person  (idoneus)  should  be 
appointed  vicar-capitular ;  he  should,  if  possible,  be  a  doctor 
in  canon  law,  not  merely  in  theology.18  He  cannot  be  ap 
pointed  by  the  chapter,  only  for  a  limited  time — v.g.,  for 
three  months  ;  for,  once  appointed,  he  remains  in  office  so 
long  as  the  vacancy  lasts.14  Nor  is  he  removable  by  the 
chapter.  He  should,  if  practicable,  be  selected  from  among 
the  canons  of  the  cathedral  chapter.  Moreover,  he  should 
be  elected  by  the  chapter  when  capitularly  assembled ; " 
secret  suffrage  is  not  essential,  though  advisable.  A  majori 
ty  vote  is  requisite  to  elect  the  vicar ;  a  mere  plurality  of 
votes  is  insufficient.  He  could,  however,  be  validly  elected 

'  Cone.  Trid.,  sess.  xxiv.,  c.  xvi.,  d.  R.  10  Ferraris,  1.  c.,  n.  30. 

11  Phillips,  1.  c.,  p.  317.  ia  Leuren.,  1.  c.,  qu.  547,  n.  3. 

"  Craiss.,  n.  1232.  "  Bouix,  1.  c.,  p.  510. 

15  Ferraris,  1.  c.,  n.  39. 


422  Administration  of  Vacant  Diocese*. 

by  several  canons — nay,  even  by  one — in  case  the  rest,  -v.g., 
had  died  or  become  disqualified  to  vote.1' 

§  2.   Of  the  Powers   Vested  in  the  Chapter  or   Vicar-Capitular, 

"  Sede  Vacante" 

636. — I.  Rights  of  CJiapters  and  Vicars-Capitular  in  gen 
eral. — i.  The  entire  government  of  the  diocese,  and  the 
vj\\Q>\QJurisdictio  or  dinar  ia  of  the  bishop,  both  in  temporalibus 
and  in  spiritualibus,  pass  to  the  chapter,  sede  vacante,  and  may 
be  exercised  by  it,  save  in  regard  to  matters  excepted  by  the 
Jus  commune  or  specially  withheld  by  the  Roman  Pontiff.17 
Now,  i\\\sjurisdictio  ordinaria  episcopalis,  as  exercised  by  the 
chapter  for  the  first  eight  days  of  the  vacancy,  passes  en 
tirely  18  to  the  vicar-capitular  as  soon  as  he  is  properly 
chosen.  We  say,  entirely ;  for  it  becomes,  at  least  as  far  as 
its  exercise  is  concerned,  vested  solely  and  exclusively  in  the 
vicar-capitular,19  not  jointly  in  him  and  the  chapter.  Hence, 
it  is  not  necessary  that  we  should,  as  some  canonists  do, 
treat  separately  of  the  rights  of  the  chapter  and  those  of  the 
vicar-capitular ;  for  whatever  is  said  of  the  one  is  equally 
applicable  to  the  other.  2.  Again,  jurisdiction  is  divided,  I, 
into  contentious  and  voluntary;  2,  into  jurisdiction  ex  jure 
communi  and  ex  jure  speciali ;  3,  into  jurisdiction  ex  jure  and 
ex  consuetudine  ;  4,  into  ordinary  and  delegated  ;  5,  into  juris 
diction  respecting  matters  that  do  or  do  not  require  the 
ordo  cpiscopalis™  Now,  the  chapter  or  vicar-capitular,  speak 
ing  in  general,  succeeds,  i,  to  the  entire  contentious,  and 
probably  also  voluntary,  jurisdiction  ;  2,  to  all  those  rights 

18  Craiss.,  n.  1248.  "  Leuren.,  1.  c.,  qu.  457. 

18  Bouix,  1.  c.,  p.  550.     The  schema  of  the  Vatican  Council,  "  De  Sed.  Ep. 
Vac.,  c.  i.,"  also  expresses  this :  "  In  vicario  autem  constituendo  nullam  sibi 
jurisdictianis  partem  capitulum   retinere  quomodocunque  possil"   (Martin,    1.  c., 

P-  I3-P- 

19  He  becomes,  therefore,  so  to  say,  the  bishop  of  the  diocese  for  the  time 
being  (Phillips,  1.  c.,  p.  318).  20  Bouix,  1.  c.,  p.  556 


Administration  of  Vacant  Dioceses.  423 

which  are,  either  by  privilege  or  custom,  permanently  at 
tached,  not  to  the  person  of  the  bishop,  but  to  the  see ;  3,  to 
the  jurisdictio  delegata  of  the  bishop,  in  those  cases  where  the 
bishop  is  authorized  by  the  Council  of  Trent  to  act  "  ctiam 
tanquam  Sedis  Apostolicae  delegatus,"  but  not  where  he 
acts  simply  tanquam,  etc. ;  4,  finally,  neither  chapters  nor 
vicars-capitular  can  perform  acts  of  the  ordo  cpiscopalis — i.e., 
functions  for  which  the  ordo  episcopalis  is  required — although 
they  may  authorize  or  invite  othei  bishops  to  do  so  in  the 
vacant  diocese. 

637. — II.  Rights  of  Chapters  and  Vicars-Capitular  in  par- 
tici4lar. — I.  Vicars-capitular  can,  i,  enact  statutes  for  the 
entire  diocese  and  enforce  them  by  penalties  ; 2>  2,  inflict  all 
the  censures  which  the  deceased  bishop  could  inflict ; !a 
hence,  they  can  excommunicate,  suspend  ab  officio  and  a 
beneficio  ;  3,  absolve  from  all  censures  from  which  the  bishop 
himself  could  absolve  ; "  hence,  they  can  absolve  from  txcom- 
munications,  whether  imposed  a  jure  (provided  they  are  not 
reserved  to  the  Holy  See) — £'.£•.,  for  striking  an  ecclesiastic — 
or  ab  homine — v.g.,  by  the  deceased  bishop  or  his  vicar-gen 
eral  ;  4,  as  a  matter  of  course,  they  can  absolve  from  censures 
inflicted  by  themselves  or  by  chapters  ;  5,  they  can  absolve  in 
foro  conscientiae  from  all  occult  cases  reserved  simpliciter  to 
the  Holy  See — nay,  from  all  censures  whatever  in  the  case 
of  those  who  cannot  recur  to  the  Holy  See  for  absolution  ;  M 
6,  the)'  can  also  absolve  from  all  cases  reserved  to  the 
bishop  ;  /,  and  give  faculties  to  hear  confessions.25  I.I.  What 
are  the  chief  things  the  chapter  or  vicar-capitular  cannot  do, 
sede  vacant e  ?  It  is  a  general  rule  that,  sede  vacante,  no  inno 
vations  should  be  made  which  would  in  any  way  be  pre 
judicial  to  the  rights  of  the  future  bishop.28  In  fact,  the 
very  nature  of  an  interregnum  demands  that  those  who 

51  Leuren.,  l.  c.,  qu.  470.  OT  Ib.,  qu.  475.  "3  Ib  ,  qu.  476. 

14  Ib.,  qu.  476,  477.  M  Ib.,  qu.  483.  M  Phillips.  1   c.,  p.  319. 


424  Administration  of  Vacant  Dioceses. 

govern  during  the  vacancy  should  make  no  innovations 
whatever,  but  merely  expedite  such  matters  as  do  not  admit 
of  delay.  Hence,  vicars-capitular,  i,  cannot  appoint  to  va 
cant  parishes,27  though  they  can  hold  the  concur  sus,  select  the 
persona  dignior  and  present  him  to  the  Pope,  to  whom  alone 
the  appointment  belongs  during  the  vacancy  of  the  see  ; 28  2, 
nor  can  they,  during  the  first  year  of  the  vacancy,  give  litte- 
ras  dimissorias  ad  ordines  (i.e.,  letters  dimissory  enabling  ec 
clesiastics  to  receive  orders  from  bishops  of  other  dioceses), 
except  to  ecclesiastics  who  are  obliged29  to  receive  orders 
(clericis  arctatis}.  When  the  see  has  been  vacant  one  year, 
letters  dimissory  may  be  given  to  all  ecclesiastics.30  3. 
They  may,  however,  according  to  the  more  common 
opinion,  give  exeats  (litter  ye  pycnrporationis]  at  any  time 
during  the  vacancy,  provided  there  be  a  causa  gravis?1 

27  The  schema,  above  quoted  (c.  ii.),  of  the  Vatican  Council  proposed : 
"  Cum  experientia  doceat,  quosdam  vicarii  munus  adeptos  ambitiosa  sollici- 
tudine  multa  properanter  disponere,  futuri  episcopi  consilia  ac  regimen  prae- 
occupantes,  quandoque  etiamhujus  Ap.  Sedis  jura  invadentes,  nos,  sacro  ap- 
probante  concilio,  vicarii  cap.  facultates,  intra  sacrorum  canonum  limites 
omnino  contineri  jubemus.  Quapropter  invectam  quibusdam  in  locis  con- 
suetudinem  ut  liberae  collationis  beneficia  a  vicario  conferantur,  tolerandam  hand 
esst  declaranius.  Quod  si  beneficia  hujusmodi  animarum  curam  adnexam 
habeant,  vicarii  erit,  deputato  statim  oeconomo,  concursum  indicere,  et  illiua 
acta  ad  hanc  Apost.  Sedem  transmittere,  ad  quam  collatio  seu  provisio  perti- 
net,  nisi  aliter  ab  eadem  pro  locorum,  temporum,  ac  personarum  adjunctis 
provisum  fuerit"  (Martin,  1.  c.)  28  Leuren.,  1.  c.,  qu.  529,  530. 

29  Namely,  on  account  of  a  benefice  or  parish  to  which  they  have  been  or  are 
to  be  appointed  (Soglia,  1.  c.,  p.  38). 

80  The  above  schema  of  the  Vatican  Council  proposed   that  this  should  be 
done  only  with  the  consent  of  the  chapter.     It  says:  "In  dimissoriis  ad  or 
dines  a  vicario  post  annum  vacationis  concedendis  capituli  semper  consensus  pet 
secreta  suffragia  requiratur  et  accedat ;  Us  vero  qui  a  proptio  episcopo  rejccti  fuennt 
nunqnam  concedantur"  (Martin,  1.  c.) 

81  Craiss.,  n.  1270.     The  above  schema  of  the  Vatican   Council  proposed  to 
revoke  this  right.     It  says:  "  Alienum  clericum  clero  dioecesis  adscribere. 
vel  proprium  ex  eo  dimittere  vicarius  nequeat,  nisi  ab  hac  Sede  Apost.  faculta 
tem  obtinuerit"  (Martin,  1.  c.) 


Administration  of  Vacant  Dioceses.  425 

Vicars-capitular  are  entitled  to  a  competent  salary  for  their 
services  as  vicars-capitular,  even  though  they  have  an  in 
come  from  other  sources — v.g.,  from  canonships.  This 
salary  may  be  made  up,  v.g.,  from  chancery  fees  (ex  sigillo] 
and,  in  general,  from  all  revenues,  no  matter  of  what  kind, 
which  would  belong  to  the  bishop  if  the  see  were  not 
vacant."  If  not  paid  by  the  chapter,  it  must  be  paid  by  the 
bishop-elect  out  of  the  episcopal  income  which  accrued 
during  the  vacancy.  At  the  present  day  the  jurisdiction  of 
vicars-capitular  lapses  as  soon  as  the  bishop-elect  has  ex 
hibited  the  bulls  of  his  appointmen  " 

ART.  II. 
Administration  of  Vacant  Dioceses  in  the  United  States. 

^H"  638. — I.  Appointment  of  Administrators  in  the  United 
States. — The  Third  Plenary  Council  of  Baltimore,  though  it 
has  changed  the  mode  of  electing  our  bishops,  has  not 
modified  the  manner  of  appointing  the  administrator,  as 
laid  down  by  the  Second  Plenary  Council  of  Baltimore. 
Hence  the  following  is  the  mode  of  appointing  adminis 
trators :  i.  If  the  vacancy  is  caused  by  the  death  of  the 
bishop,  the  administrator  may  be  appointed  by  the  bishop 

19  Leuren.,  1.  c.,  qu.  613,  614,  615. 

13  In  regard  to  the  exhibition  of  the  Papal  letters  of  his  appointment  by  the 
bishop-elect,  Pope  Pius  IX.  (C.  Ap.  Sedis,  1869)  enacted  :  "  Suspensionem  ipso 
facto  incurrunt  a  suorum  beneficiorum  perceptione,  ad  beneplacitum  S.  Sedis, 
capitula  et  conventus  ecclesiarum  et  monasteriorum,  aliique  omnes  qui  ad 
illarum  seu  illorum  regimen  et  administrationem  recipiunt  episcopos  aliosve 
praelatos  de  praedictis  ecclesiis  seu  monasteriis  apud  eandem  S.  Sedem  quo- 
vis  modo  provisos,  anteqnam  ipsi  exhilnierint  litteias  apostolicas  de  sua  promo- 
tione."  Pope  Pius  IX.  also  renewed  (C.  Rom.  Pontifex,  1873)  the/wj  commune 
forbidding  those  who  are  nominated  or  presented  for  bishoprics  to  administer 
such  dioceses,  even  as  vicars-capitular  or  administrators,  before  they  have  ex 
hibited  the  bulls  of  their  appointment.  The  schema  D.  Ep.  S.  Vac.  of  ihe  Vatican 
Council  proposed  to  confirm  the  same,  adding  that,  if  the  one  who  was 
vicar-capitular  at  the  time  happened  to  be  nominated  or  presented,  he 
should,  eo  ipso,  on  being  informed  of  this,  cease  to  administer  the  diocese 
for  which  he  was  nominated  (Phillips,  Comp.,  §  160,  note  12,  ed.  Vering 
Ratisb.,  1875;. 


426  Administration  of  Vacant  Dioceses. 

himself  before  his  death/4  Should  this  have  been  omitted, 
the  metropolitan,"  or,  in  case  of  his  not  doii.g  so,  the  senior 
suffragan,  will  designate  the  administrator.30  The  senior 
suffragan  also  appoints  the  administrator  of  a  vacant  metro 
politan  see,  if  no  priest  was  appointed  by  the  archbishop  be 
fore  his  demise.  2.  If  a  see  becomes  vacant  in  any  other 
manner  than  by  the  death  of  its  bishop — v.g.,  by  his  resigna 
tion,  translation,  etc. — then  the  metropolitan,  or,  in  his 
default,  as  also  when  the  metropolitan  see  itself  falls  thus 
vacant,  the  senior  suffragan,  will  designate  a  competent  ec 
clesiastic  to  govern  the  diocese  ad  interim.  3.  In  all  these, 
cases  the  appointment  is  merely  provisional,  the  Holy  See 
having  reserved  the  right  of  either  confirming  or  altering  it. 

34  Cone.  PI.  Bait.  IT.,  n.  96.  35  Ib.,  n.  97. 

36  The  third  chapter  of  the  above  schema  of  the  Vatican  Council  proposes  to 
renew,  in  regard  to  the  administration  of  dioceses  falling  vacant  by  the  death 
of  the  bishop  in  countries  situate  far  from  Europe,  the  regulations  of  Benedict 
XIV.,  Const.  Quam  ex  Sublimi,  August  8,  1755.  The  schema  says:  Atten- 
dentes  imprimis  in  remotisejusmodi  regionibus  aliquos  archiepiscopos  et  epis- 
copos  locorum  ordinaries  ct  residentialcs  capitulum  canonicorum  habere, 
alios  vero  eo  esse  destitutes,  mandamus  ut,  eveniente  cujuslibet  antistitis 
obitu,  statim  procedatur  ad  electionem  vicarii  capitularis  juxta  morem,  usum. 
et  consuetudinem  hactenus  legitime  servatam  ;  nimirum,  i,  ubi  capitulum  ex- 
istit,  vel  a  canonicis  duntaxat,  si  ita  in  more  jam  sit  positum,  vel  a  canonicis 
una  cum  aliis  ecclesiasticis  viris,  quos  in  casibus  hujusmodi  semper  inter- 
venisse  et  suffragium  suum  in  ea  clectione  tulisse  constat.  2.  Ubi  autem 
capitulum  canonicorum  non  habetur,  ibi  parochi,  sive  soli,  sive  cum  aliis  ec- 
ciesiasticis  viris  juxta  niodum  itidem,  usum  et  consuetudinem  de  praeterito 
servatam,  ad  vicarii  capitularis  electionem  habendam  accedant  In  ceteris 
omnibus  autem  servari  mandamus  Trid.  C.  de  vicarii  cap.  electione  constitu- 
tiones.  3.  In  iis  vero  locis  in  quibus  antistites  ordinarii  eorundem  locorum 
residentiales  neque  capitulum  canonicorum,  neque  parochos  in  suis  civitatibus 
et  dioecesibus  habent,  sed  duntaxat  sacerdotes  aliquot  et  missionarios  per 
terras  et  oppida  disperses,  ita  ut,  antistite  decedente,  una  simul  convenire 
baud  valeant,  vicarius  generalis  jam  a  defuncto  antistite  constitutus,  licet  doc- 
toris  gradu  in  jure  canonico  auctus  non  sit,  ipso  facto  jntelligatur  et  habeatur 
tanquam  vicarius  capilularis  cum  omnibus  facultatibus  de  jure  ad  ejusmodi 
munus  spectantibus,  illudque  exerceat  quousque  novus  antistes  ab  Ap.  hac 
Sede  des'snatus  illuc  advenerit,  ac  susceperit,  vel  aiiter  ab  eadem  fuerit  ordi- 


Administration  of  Vacant  Dioceses.  427 

II.  Powers  of  Administrators  in  the  United  States.  —  I.  The 
facilitates  of  our  bishops  contained  in  the  form.  /.,  except 
ing  those  which  require  the  or  do  episcopalis  or  the  use  of  the 
holy  oils,37  can  be  conferred  upon  administrators  by  the 
bishop,  or,  as  the  case  may  be,  by  the  archbishop  or  senior 
suffragan.  2.  As  to  the  other  facilitates,  the  Second  Plenary 
Council  of  Baltimore  38  requested  the  Holy  See,  "  ut  episco- 
pus,  aut,  prout  casus  feret,  metropolita  vel  senior  episcopus 
possit  presbytero  sedis  vacantis  administratori  tribuere  eas, 
omnes  facilitates  tarn  ordinarias  quam  extra-ordinarias,  quibus 
gaudent  episcopi  ex  Sanctae  Sedis  concessioner  No  answer  was 
returned  by  Rome.  The  same  request  was  afterward  re 
newed  by  the  Tenth  Provincial  Council  of  Baltimore  (an. 
1869),  and  was  provisionally  granted  by  the  Holy  See  in 
these  words :  "  Sanctitas  sua,  licet  ea  super  re  nil  pro  nunc 
decern^ndum  expresserit,  voluit  tamen,  ut  si  quam  interim 


natum.  4.  Omnibus  autem  vicariis  apostolicis,  sive  titulo  et  dignitate  episco 
pal!  praeditis,  sive  sacerdotali  tantum  charactere  insignitis,  sed  neque 
coadjmorem  cum  futura  successione  neque  vicarium  generalem  habentibus 
praeciplmus,  ut  unusquisque  eorum  teneatur  deputare  vicarium  ex  clero  sive 
saeculari  sive  regular!,  habilem  tamen  atque  idoneum.  Is  vero  post  vicarii 
apostolici  obitiim  tamquam  hujus  S.  Sedis  delegatus  assumet  regimen  vicaria- 
tus,  et  in  ejusmodi  munere  permanebit,  donee  novus  Ap.  vicarius  ab  eadem  S. 
Sede  designatus  ipsius  vicariatus  possessionem  et  regamen  adierit,  vel  usque 
ad  quamcunque  aliam  ab  ipsa  ineundam  ordinationem  ;  idemque  pariter  alte- 
rum  statim  deputabit  ecclesiasticum  virum,  qui  ei,  si  forte  interim  obierit,  in 
munere  succedere  debeat.  Volumus  autem  pro-vicarios  hujusmodi,  non 
aolum  iis  omnibus  et  singulis  uti  posse  facultatibus,  quae  cujusvis  ecclesiae 
cathedralis  vicario  capitulari  de  jure  competere  dignoscuntur,  verum  etiam 
iisdem  frui  facultatibus,  quibus  defunctus  vicarius  apostolicus  pollebat,  iis 
Juntaxat  exceptis,  quae  requirunt  characterem  episcopalem,  vel  non  sin* 
sacrorum  oleorum  usu  exercentur ;  eidem  tamen  potestatem  facimus  ut 
quandocunque  necessitas  urgeat,  possit  consecr.ire  calices,  patenas,  et  altaria 
ponabilia.  cum  sacris  oleis  ab  Episcopo  benedictis  (Martin,  1.  c. ,  pp.  135,  136  , 
cfr.  Ferraris,  V.  Vicar.  Cap.,  art.  ii  ,  n.  101). 

15  Fac.,  form,  i.,  n.  28  ;  C.  PI.  B.  II.,  n.  97.  "  N.  98. 


4-8  Administration  of  Vacant  Dioceses. 

ex  tuae  provinciae39  dioecesibus  vacare  contigerit,  adminis 
trator,  sede  vacante,  donetur  facultatibus  extraordinariis 
contentis  sub  formulis  C.  D.  E  ,  exceptis  iis,  quae  charac- 
terem  episcopalem  requirunt."  48 

Q.  How  are  administrators  or  vicars-capitular  appointed 
in  other  missionary  countries? 

A.  We  premise:  All  vicars-apostolic  of  missionary 
countries,  whether  they  be  simple  priests  or  bishops,  but 
without  coadjutors  cum  successione,  must  appoint  vicars- 
general.  We  now  answer: 

1.  The  general  rule  is  that  upon  the  death   of  the  vicar- 
apostolic  (whether  he  be  a  bishop  or  merely  a  priest)  his 
vicar-general  becomes    ipso  facto,   by    Pontifical    authority, 
vicar-capitular,   and   retains  this   office    until  a  new  vicar- 
apostolic  has  been  appointed  by  the  Holy  See  and    taken 
possession  of  the  vicariate. 

2.  In    missionary   countries  where    there    are    ordinary 
bishops,  vicars-capitular,  where  such  has  been  the  custom, 
should  be  elected  immediately  upon  the  death  of  the  bishop 
by  chapters,  if  any,  or  by  the  parish  priests.     And   where 
there  are  no  chapters,  and  the  parish   priests  are  too  few 
or  too  much  scattered   to  meet  for  an  election,  the  vicar- 
general  of  the  deceased  bishop  becomes  ipso  facto  the  vicar- 
capitular.41 

In  Ireland  and  England  vicars-capitular  are  elected  by 
chapters  within  eight  days  after  the  see  becomes  vacant. 

39  Hence,  this  concession  was  given  for  the  province  of  Baltimore  only,  not 
for  the  whole  United  States.     As  the  province  of  Baltimore,  at  the  time  this 
concession  was  granted,   namely,  in  1869,  comprised  the  present  province  of 
Philadelphia,  it  follows  that  this  rescript  extends  to  all  the  dioceses  now  com 
prising  the  province  of  Philadelphia,   which  was  erected  into  an  archdiocese 
and  separate  province  in  1875.     (Cf.  Konings,  fac.  n.  115.) 

40  Ap.  Coll.  Lac.,  torn,  iii.,  p.  599:  cfr.  ib.,  pp    577,  584,  585,  596,  599. 

41  Bened.  XIV.,  C.  Quam  ex  Sublimi,  Aug.  8,  1755;  Coll.  Lac.,  iii.,  p.  1114. 


CHAPTER  IX. 

OF  PARISH  PRIESTS — THEIR  RIGHTS  AND  DUTIES. 

ART.  I. 

Nature  of  the  Office  of  Parish  Priests  as  at  present  understood— 
Mode  of  Appointment,  etc. 

§  I .  Errors  respecting  the  institution  of  Parish  Priests. 

639.  Gerson,  chancellor  of  the  Sorbonne,  was  the  first 
who,  in  the  beginning  of  the  fifteenth  century,  maintained 
that  parish  priests  were  instituted  by  Christ  himself.1  This 
is  erroneous;  for,  i,  in  the  first  three  centuries  of  the 
Church  there  were  no  parishes  or  parish  priests  in  any  part 
of  the  world.  There  was,  in  fact,  but  one  church  in  the 
principal  city  of  the  diocese — i.e.,  in  the  city  where  the 
bishop  resided.  To  this  church  all  the  faithful,  not  merely 
of  the  city  itself,  but  also  of  the  neighboring  villages,  went 
on  Sundays  to  assist  at  Mass  and  receive  the  sacraments.2 
To  the  absent  holy  communion  was  brought  by  the  deacons. 
When  the  faithful  became  more  numerous,  other  churches 
were  indeed  built,  even  in  the  episcopal  city  ;  but  services 
were  performed  there  by  priests  from  the  cathedral,  not  by 
parish  priests — i.e.,  not  by  priests  permanently  appointed  (per 
modiun  stabilis  officii']  to  exercise  the  cura  animarum  over  de 
terminate  congregations.3  Hence,  there  was  but  one  parish 
in  each  diocese — namely,  the  cathedral.  The  bishop  was,  so 
to  say,  the  parish  priest  of,  and  exercised  the  cura  through- 

1  Bouix,  De  Paroch.,  p.  82.    Paris,  1867.        *  Devoti,  1.  i.,  tit.  id.,  n.  87,  88. 

'  Bouix,  1.  c.,  pp.  13,  22. 

429 


43O  The  Rights  and  Duties 

out,  the  whole  diocese,  either  personally  or,  when  impeded, 
through  ITS  priests."  2.  It  was  only  after  the  third  century 
that  parishes  came  to  be  established,  and  that,  at  first,  in 
rural  districts  only/  and,  later  on  (i.e.,  after  the  year  1000), 
also  in  cities.8  3.  Hence,  parish  priests  are  merely  of  eccle 
siastical,  not  of  divine,  institution.  Nor  is  the  contrary 
provable  from  Sacred  Scripture.  For  the  word  presbytcri, 
as  mentioned  in  the  texts  quoted  by  our  opponents,  does 
not  necessarily  refer  to  parish  priests,  since,  in  the  first  ages, 
bishops  were  also  called  presbyteri? 

§  2.  Correct  View  of  the  Nature  of  the  Office  of  Parish  Priests — 
Irremovability — Status  of  Pastors  in  the  United  States. 

640.  We  shall  here  show,  i,  what  are  the  chief  errors 
on  this  head  ;  2,  what  is  essentially  required  to  constitute  a 
parish  priest  in  the  canonical  sense  of  the  term.  Chief  Er 
roneous  Systems  respecting  the  Rights  of  Parish  Priests. — I. 
Presbyterianism  proper,  so  called  because  it  makes  priests 
presbyters)  the  equals  of  bishops,  and  asserts  that  bishops 
have,  jure  divino,  no  powers  that  are  not  equally  possessed 
by  priests.  This  heretical  system,  broached  by  Aerius  in 
the  fourth  century,  was  renewed  by  Wiclef,  Huss,  Luther, 
Calvin,  etc.  II.  Again,  there  are  those  who  do  not — at 
least  openly — deny  that  bishops  are,  jure  divino,  superior  to 
priests,  but  who  attribute  to  parish  priests  many  undue 
parochial  rights.  They  are  styled  parochistae,  and  their 
system  parochismus*  Now,  the  principal  errors  of  the  pa 
rochistae  are :  i .  Those  of  Richer,  whose  tenets  may  be 
summed  up  thus  : '  The  Holy  See  can  exercise  no  act  of 
jurisdiction  in  the  dioceses  of  bishops  without  the  consent 

4  Ferraris,  V.  Parochia.,  n.  7. 

6  That  is,  in  villages  whose  inhabitants  could  not  conveniently  go  to  tha 
thurch  in  the  episcopal  city.  *  Supra,  n.  243.  7  Craiss.,  n.  1205. 

"  Not  improperly  also  Presbyterianism  us  '.Bouix,  1.  c.,  p    80). 
*  Salz.,  t.  ii.,  p.  188. 


of  Parish  Priests. 

of  the  bishops  themselves  ;  bishops,  in  turn,  cannot  interfere 
in  the  management  of  parishes,  except  by  consent  of  the 
parish  priests.  That  these  assertions  are  utterly  false  is 
provable  from  their  logical  consequences.  For  if  it  were 
true  that  bishops  and  Popes  have  but  jurisdictio  mediata,  not 
immediata,  over  the  faithful,  it  would  follow  that,  except  in 
case  of  necessity,  no  bishop — nay,  not  even  the  Pope  himself 
—could  anywhere,  either  personally  or  through  others,  per 
form  any  sacred  function,  such  as  preaching,  hearing  confes 
sions,  without  the  consent  of  parish  priests — which  is  mani 
festly  erroneous  and  absurd.10  2.  Those  of  Gerson  and 
others,  who  maintain  that  parish  priests  have,  by  virtue  of 
their  office,  power  to  excommunicate,  and,  in  general,  juris 
diction  in  foro  externo ;  that  they  are  judices  fidei,  and  have 
a  definitive  vote  in  councils.  We  shall  not  attempt  here  to 
confute  these  errors  in  detail.  Suffice  it  to  say  n  that  parish 
priests  do  not  at  present,  and  probably  never  did,  possess 
any  jurisdiction  -'«  foro  externo;™  cannot  excommunicate 
by  virtue  of  their  office,  and  have  no  decisive  voice  in 
councils. 

641 .  What  is  meant  by  a  Parish  Priest  in  the  canonical  sense  of 
the  term. — Definition. — A  parish  priest  (parochus,  rector,  cura- 
tus)  is  a  person  lawfully  and  irremovably  (n.  259)  appointed  to 
exercise,  in  his  own  name  and  exobligatione,  the  cura  animarum 
— that  is,  to  preach  the  word  of  God  and  administer  the 
sacraments  to  a  determinate  number  of  the  faithful  of  a  dio 
cese,  who  in  turn  are,  in  a  measure,  bound  to  receive  the 
sacraments  from  him.13  As  this  definition  includes  all  the 
conditions  essentially  requisite  to  constitute  a  parish  priest, 
in  the  canonical  sense  of  the  term,  we  shall  briefly  explain 

10  Craiss.,  n.  1292.  "  Cfr.  Bouix,  1.  c.,  pp.  120,  132,  142. 

111  Hence,  they  are  not  even  praelati  minor  es,  nor  dignitate s ;  nor  can  they  be 
called  pastors  (pastores)  in  the  strict  sense;  though,  at  present,  they  are  not  un- 
frequently  called  pastors— namely,  of  the  second  order,  and  in  a  broad  sense 
(Craiss.,  n.  1305  "  Bouix,  1.  c.,  p.  175. 


4.32  The  Rights  and  Duties 

its  terms:  I.  We  say,  the  cura  anunarum ;  now,  this  cut  a 
consists  chiefly  in  the  preaching  of  the  word  of  God  and  the 
administration  of  the  sacraments.14  As  the  administration 
of  the  sacraments  necessarily  includes  the  power  to  impart 
sacramental  absolution,  it  is  evident  that  one  who  is  ap 
pointed  parish  priest  has,  eo  ipso,  jurisdiction  in  foro  poenitenti- 
alt,  and  may,  if  he  is  a  priest,  hear  confessions  without  any  fur 
ther  approbation.  2.  We  say,  in  Jiis  ozvn  name  (nomine  propric, 
jure  proprio) ;  that  is,  by  virtue  of  his  office,  and  not  merely 
as  the  vicar  or  in  the  name  of  another — v.g.,  the  bishop.14 
Hence,  assistant  priests,  though  they  exercise  the  cura,  are 
not  on  that  account  parish  priests ;  for  they  exercise  the 
rura  merely  for,  or  in  the  stead  of,  others — namely,  pastors. 
Parish  priests,  therefore,  are  vested  wi\h  jurisdictio  ordinaria, 
not  merely  delcgata ;  once  appointed,  they,  like  vicars-gen 
eral,  have,  in  a  measure,  jurisdiction  a  lege  ccclesiastica.  3. 
We  say,  and  ex  obligatione ;  that  is,  the  parish  priest  is 
obliged  to  administer  the  sacraments  to  the  faithful  under  his 
charge.16  4.  We  say,  to  a  determinate  number ,  etc.;  hence,  par 
ishes  must  in  all  cases  have  accurately-defined  limits.  There 
fore,  where  there  are  distinct  parishes  and  parish  priests 
proper  (parochi  in  titulum — i.e.,  in  beneficium  perpetuum}, 
the  bishop,17  though  having  pre-eminently  the  cura  animarum 
throughout  the  diocese,  is  not,  strictly  speaking,  the  parish 
priestofthe  whole  diocese.18  In  places,  however,  where  there 
are  no  separate  parishes  and  no  parish  priests,  in  the  canoni 
cal  sense  of  the  term — as  was  formerly  the  case  nearly  all  over 
Spain,  and  those  places  referred  to  by  theC.  of  Trent  (sess. 
xxiv.,  c.  xiii.,  d.  R.) — the  whole  diocese  is  considered  but  one 
parish,  of  which  the  bishop  is  the  rector  or  universal  parish 

14  Bouix,  1.  c.,  p.  171  ;  cfr.  Ferraris,  1.  c.,  n.  18. 

16  Leuren.,  For.  Ben.,  p.  i.,  qu  146.  lt  Ib.,  qa.  1461 

17  He  is,  however,  the  parish  priest  proper  of  his  cathedral  (ib.,  qu.  143). 

'*  Even  in  this  case  cpiscopus  jus  habet,  ut  se  ingerere  possit  in  cura  cujuslibct 
parochiae,  et  in  ea  pro  libitu  se  occupaie  (Ib.) 


Of  ParisJi  Priests.  433 

priest.19  5.  We  say,  wJio  in  turn  are,  in  a  measure,  bound,  etc.; 
hence,  a  pastor  whose  parishioners  are  altogether  free  to 
receive  the  sacraments  outside  of  their  own  parish  is  not, 
canonically  speaking,  a  parish  priest.20  For  the  Council  of 
Trent  (sess.  xxiv.,  c.  xiii.,  De  Ref.)  "enjoins  on  bishops  that, 
having  divided  the  people  into  fixed  and  proper  parishes, 
they  shall  assign  to  each  parish  its  own  perpetual  (i.e., 
irremovable)  parish  priest,  who  may  know  his  parishioners, 
and  from  whom  alone  they  may  licit  ly  receive  the  sacraments" 
Parishes,  as  a  rule,  are  distinguished  from  each  other,  and 
the  number  of  people  belonging  to  each  parish  is  usually 
determined  by  territorial  circumscription  or  boundaries."1 
We  say,  as  a  rule ;  for  it  is  not  repugnant  to  canon  law  that 
a  parish,  in  the  canonical  sense  of  the  word,  should  consist 
of  certain  families,  even  though  living  in  the  districts  of 
other  parishes.23  In  the  United  States  German  congrega 
tions  are  usually  established  in  this  manner — that  is,  thev 
are  made  up  of  the  German  Catholics  of  a  place,  no  matter 
whether  they  live  in  the  confines  of  English-speaking  con 
gregations. 

642.-— I.  How  many  kinds  of  "  cura  animarum  "  are  there  ? 
These:  I.  The  cura  plena  and  partialis.  The  cura  plena  ii 
that  which  includes  jurisdiction  in  for o  externo  and  the  potes- 
tas  judicialis  ;  the  Sovereign  Pontiff  exercises  it  all  over  th* 
world  ;  bishops  in  their  respective  dioceses.  The  cura  par 
tialis  is  that  which  is  restricted  to  matters  pertaining  to  the 
forum  internum."^  2.  The  cura  Jiabitualis  and  actualis.  A 
person  is  said  to  have  the  cura  Jiabitualis  when  he  neither 
does  nor  can,  de  facto,  exercise  it,  though  he  can  and  should 
see  that  it  is  exercised  by  another  person.  On  the  other 
hand,  a  person  who,  de  facto,  has  the  right  to  exercise  the 
cura  is  said  to  have  the  cura  actualis.  Thus,  a  cathedral 

"  Bouix,  1.  c.,  p.  173.  20  Leuren.,  1.  c.,  qu.  146. 

M  (b.,  qu.  160  ;  Bouix,  1.  c.,  p.  269.  »'  Ferraris,  1.  c.   n.  17 

*  Bouix,  1.  c.,  p.  178. 


434  The  RigJits  and  Duties 

chapter  to  which  the  c ura  is  attached  has  the  euro,  habitualis 
only — is  parochus  Jiabitu — while  the  vicar  appointed  by  it  to 
exercise  the  cura  has  the  euro,  actualis,  and  is,  properly 
speaking,  the  parochus.  II.  What  "cura"  is  essential  to  the 
office  of  parish  priest  ?  The  cura  partialis.  We  observe, 
when  we  speak  simply  of  the  cura  animarum,  we  mean  the 
cura  as  exercised  by  parish  priests — i.e.,  the  cura  partialis. 
2.  The  cura  habitualis  is  not  sufficient.  A  parochus  Jiabitu, 
therefore,  is  not,  strictly  speaking,  a  parish  priest.  The 
cura  actualis,  however,  is'  sufficient,  even  without  the  cura 
habitualis.  Thus,  the  parochial  vicar  (vicarius  capituli  cur  at  us) . 
appointed  by  a  chapter  having  the  cura  habitualis  is  a  true 
parish  priest.  In  the  United  States  no  cura  habitualis  is 
vested  in  any  person  or  ecclesiastical  corporation.  HI.  Can 
tJiere  be  several  parish  priests  in  one  and  the  same  parisfi  ?  \ . 
The  question  is  controverted.  The  negative 25  holds  that  a 
parish  priest  is  essentially  one  who  exercises  the  cura  solely 
and  exclusively™  in  his  parish,  so  that  if  two  or  more  were 
placed  in  charge  of  the  same  parish  none  of  them  would  be 
parish  priest.  2.  It  is  admitted  by  all  that,  as  a  rule,  it  is 
more  expedient  that  but  one  parish  priest  should  be  placed 
over  a  parish.  3.  Congregations  in  the  United  States 
should  be  governed  each  by  one  priest  only  as  pastor,  not 
by  several  ev  aequo" 

ISgT3  643.  Q.  Is  the  amovibilitas  of  rectors  contrary  to  the 
o-eneral  law  of  the  Church  ?  In  other  words,  does  the  gen- 

O 

eral  law  of  the  Church,  as  still  in  force,  forbid  the  care  of 
souls  to  be  exercised  by  rectors  who  are  amovibiles? 

A.  We  premise  :  In  our  question  we  say  the  general  law  ; 
for.  as  we  have  already  shown  above  (n.  417),  the  Church 
sometimes  and  exceptionally  allows,  by  special  law,  v.g.,  by 

25  It  is  the  sententia  multo  communior  (Bouix,  1.  c.,  p.  182). 

26  We  prescind,  of  course,  from  the  bishop's  rights. 
81  Cone.  PI.  Bait.  II.,  n.  in. 


of  Parish  Priests.  435 

apostolic  dispensation,  the  care  of  souls  to  be  exercised  by 
rectors  who  are  removable. 

We  now  answer:  The  law  of  the  Church,  as  still  in  full 
force,  is  that  the  care  of  souls  shall  be  exercised  by  rectors 
who  are  irremovable.  In  other  words,  as  the  Secretary  of 
the  S.  C.  C.,  in  the  cause  Portnen.  et  S.  Ruf.,  i4th  February, 
1846,  says,  the  Church  not  only  exhorts,  but  commands  that 
rectors  and  all  others  having  the  "  cura  animarum"  shall  be 
irremovable.  This  law  of  the  Church,  already  clearly  laid 
down  by  Pope  Innocent  III.  in  the  General  Council  of  the 
Lateran  (i2i6),2fc  and  by  Pope  Boniface  VIII."  (f  1303),  was 
renewed  and  strictly  inculcated  by  the  Council  of  Trent,30  es 
pecially  in  session  xxiv.,  chap.  13,  De  Ref.,  where  it  "enjoins 
on  bishops,  that  for  the  greater  security  of  the  salvation  of 
souls,  .  .  .  they  shall  assign  to  each  parish  its  own  perpetual 
parish  priest,  who  may  know  his  own  parishioners."  Accord 
ingly,  as  the  above  Secretary  continues,  it  has  been  the  un 
varying  custom  of  the  Sacred  Congregation  of  the  Council, 
which  is  the  authentic  expounder  and  interpreter  of  the  true 
meaning  of  the  Council  of  Trent,  always  to  declare  that 
rectors  appointed  to  exercise  the  care  of  souls  shall  invaria 
bly,  and  notwithstanding  any  custom  to  the  contrary,  be 
inamombiles  and  not  amovibiles.*1  Consequently,  writes  the 
Secretary,  it  is  also  the  constant  practice  of  the  S.  C.  C. 
most  earnestly  to  exhort  bishops  in  whose  dioceses  there  are 
paroeciae  or  missiones  amovibiles  to  change  these  parishes  or 
missions  into  parocliiae perpetuae  or  inamovibiles,  that  is,  into 
parishes  whose  rectors  are  irremovable.32 

644.  This  law  is  in  harmony  with  the  very  nature  of  the 

48  Cap.  Extirpandae  30,  §  veto,  de  praeb.  (iii.,  5). 
is  Cap.  Unic.  de  Capell.  Mon.  in  6°  (III.  18). 

30  Sess.  vii..  cap.  vii.,  De  Ref. ;  sess.  xxiv.,  cap.  xiii  ,  De  Ref. 

31  Cf.    S.  C.   C.   in    Baren.   Cura   Anim.   Aug.   29,  1857-,     Lucidi,    De  Visit. 
SS.  LL.,  vol.  iii.,  p.  243  sq. 

i2  Lingen  et  Reus,  Causae  selectae  S.  C.  C..  n.  826. 


436  Tke  Rights  and  Duties 

office  and  of  the  duties  of  one  charged  with  the  care  of 
souls.  For  these  duties  consist  principally  in  preaching  the 
word  of  God  and  administering  the  sacraments  to  the  par 
ishioners,  and  in  attending  to  all  their  spiritual  wants.  Hence 
the  pastor  is  the  father  and  the  sheplierd  of  his  flock.  The 
souls  of  the  parishioners  are  entrusted  to  his  keeping.  It  is 
his  duty  to  watch  constantly  over  the  faithful  committed  to 
his  care.  Now,  no  one  will  deny  that  while  these  duties 
can,  absolutely  speaking,  be  discharged  sufficiently  well  by 
a  rector  who  is  removable,  and  who  is  therefore  not  looked 
upon,  by  the  law,  as  a  shepherd  in  the  true  sense,  yet  they 
will  be  discharged  better  and  with  greater  profit  to  souls, 
by  a  rector  who  is  irremovable,  and  who  is  consequently 
regarded  as  the  spouse,  the  sJiepJierd  and  the  spiritual* fat  her 
of  the  flock,  to  whom  he  is  wedded  by  a  spiritual  wedlock 
stronger  than  the  carnal.  These  reasons  are  clearly  recog 
nized  by  the  Council  of  Trent  (sess.  xxiv.,  c.  13,  De  Ref.), 
where  it  commands  bishops  to  appoint  irremovable  rectors 
over  churches,  for  the  greater  security  of  the  salvation  of  souls, 
and  that  the  rector  may  know  his  own  parishioners. 

The  general  opinion  of  canonists  confirms  the  above 
teaching.  For  nearly  all  of  them,  with  an  odd  exception 
here  and  there,  teach  that  the  law  of  the  Church  requires 
rectors  or  parish  priests  to  be  irremovable;33  that  conse 
quently  irremovability  is  one  of  the  requisite  prerogatives  of 
a  true  parish  priest ;  and  that  therefore  rectors  who  are  re 
movable  are  not  canonical  parish  priests  in  the  true  sense  of 
the  term.34 

If,  therefore,  irremovability  is  prescribed  by  the  gen 
eral  law,  it  follows  clearly  that  removability  is  opposed 
to  this. general  law.  In  other  words,  the  general  law  pre 
scribes  that  the  care  of  souls  shall  be  exercised  by  rectors 

33  Lucidi,  de  Visit.  SS.  LL.,  vol.  i.,  p.  396,   n.  292. 

34  See  our  Counter-Points,  p.  70  sq.,  where  we  give  the  words  of  Leurenius, 
Soglia,  Ferraris,  and  others. 


of  Parish  Priests.  437 

who  are  irremovable  ;  therefore  it  forbids  that  this  care  of 
souls  shall  be  exercised  by  removable  rectors.  However, 
as  we  have  seen,  by  special  laiv,  v.g.,  by  papal  dispensation, 
the  Church  sometimes  derogates  from  this  general  law,  and 
tolerates  removability  for  exceptional  reasons. 

While  therefore  we  agree  with  Bouix,36  that  the  irre 
movability  of  rectors  is  not  absolutely  required  by  the  nature 
of  the  duties  incumbent  upon  a  pastor,  we  differ  from  him 
when  he  teaches  that  the  general  law  is  not  opposed  to  the 
care  of  souls  being  exercised  by  rectors  removable  at  the 
will  of  the  bishop.5"  This  view  is,  as  we  have  seen,  directly 
opposed  to  the  clear  letter  of  the  law  and  to  the  general 
teaching  of  canonists.  In  fact,  in  advocating  it,  Bouix  stands 
almost  alone  among  canonists.  But  let  us  briefly  state  and 
ans\ver  his  arguments. 

He  contends  that  removability  at  the  will  of  the  bishop 
is  not  contrary  (a)  to  the  early  discipline  of  the  Church  (£), 
nor  to  t"he  general  law  as  it  stood  prior  to  the  Council  of 
Trent  (c],  nor  to  the  latter  council.  We  have  already  seen 
that  the  Council  of  Trent  is  opposed  to  the  removability  in 
question.  As  to  the  general  law  of  the  Church  prior  to  the 
Council  of  Trent,  we  have  also  shown  that  Popes  Innocent 
III.  and  Boniface  VIII.  clearly  enact  that  the  rectors  of 
souls  shall  be  irremovable.  Thus  Pope  Boniface  VIII.  (1298) 
decrees  :  "  Presbyteri,  qui  ad  curam  populi  .  .  praesentantur 
episcopis,  cum  debcant  esse  perpetui,  consuetudine  vel  statuto 
quovis  contrario  non  obstante,  ab  eisdem  nequeunt  ecclesiis 
.  .  .  amoveri." 37  It  only  remains,  therefore,  to  examine 
the  early  discipline  of  the  Church.  Now  the  history  of  the 
early  ages  of  the  Church  will  show  that  the  assertion  of 
Bouix  is  incorrect.  For,  as  Avanzini  shows  in  the  Acta 
S.  Sedis,  vol.  iii.,  p.  506  sq.,  it  is  well  known  that  in  the  first 


35  De  Paroch.,  p.  193  sq.  3t  Ib.,  p.  201  sq. 

31  Cap.  un.  de  Cap.  Mon.  in  6  (iii.,  18). 


438  7* he  Rights  and  Duties 

ages  of  the  Church,  when  the  number  of  the  faithful  had  in 
creased,  various  offices  and  grades  of  dignity  were  estab 
lished  and  conferred  upon  ecclesiastics.  These  offices  or 
positions  were  most  closely  interlinked  with  the  ordination  it 
self,  so  that,  as  we  say  above  (n.  584),  no  person  was  promoted 
to  any  ordo,  whether  major  or  minor,  without  being  at  the 
same  time  perpetually  or  irremovably  attached  to  some  church 
or  pious  place,38  where  he  exercised  permanently  the  duties 
of  whatever  ordo  he  had  received.30  Hence  those  who  were 
removed  from  their  office  or  charge  were  not  unfrequently 
said  to  be  also  deprived  of  the  priesthood.  Likewise  their 
ordination  was  often  called  invalid  which  was  not  accom 
panied  by  an  appointment  to  an  ecclesiastical  office  or  posi 
tion.40 

fSIP  645.  This  discipline  prevailed  at  a  time  when  ecclesi 
astical  offices  were  known,  but  when  as  yet  benefices  were 
entirely  unknown.  For  benefices,  especially  parochial,  were 
not  at  least  universally  established  until  after  the  year  1000 
(supra,  n.  639).  In  fact,  in  the  early  ages  of  the  Church  the 
offerings  of  the  faithful  and  the  income  of  all  the  churches  of 
the  whole  diocese  were  put  into  a  common  fund,  which  was 
under  the  control  of  the  bishop,  and  divided  into  four  por 
tions  :  one  for  the  bishop  ;  another  for  the  ecclesiastics  of 
the  diocese,  each  one  receiving  a  share  proportionate  to  his 
office  or  grade;  the  third,  for  the  poor  and  strangers;  the 
fourth,  for  the  maintenance  and  repairs  of  the  churches.41 
The  fund  was  distributed  by  priests  or  deacons. 

In  the  course  of  time,  each  church  was  allowed  to  retain 
and  administer  its  own  income  for  its  own  wants,  and  thus 
benefices  were  established.  For  a  benefice,  objectively 

3*  Thus  Pope  Urban  II.  in  the   Can   Sanctorum   2,  dist.  70,  says:   "  In  qua 
ecclesia  quilibet  titulatus  est,  in  ea  perpttuo  perseveret" 

39  Cf.  Acta  S.  Sedis,  vol.  iii.,  p.  508. 

40  Can.  6,  Cone.  Chalced.,  cf.  Can.  r,  2,  3,  4.  dist.  76. 

41  Const,  of  Pope  Gelasius,  Causa  12,  q.  2,  Can.  Vobis  23. 


of  Parish  Priests.  439 

speaking,  is  nothing  else  than  the  revenues  attached  to  a  de- 
terminate  ecclesiastical  office.  Now,  as  the  incumbent  was 
appointed  permanently  to  the  office  or  church,  so  also  did  he 
receive,  as  soon  as  the  common  fund  disappeared,  and  the 
revenues  of  his  office  or  church  remained  with  the  latter, 
the  perpetual  right  to  administer  and  receive  the  revenues 
or  income  of  his  church.a  From  this  it  will  be  seen  th:  • 
irremovability  does  not  owe  its  origin  to  the  establishment 
of  benefices  ;  that  it  existed  before  as  well  as  after  they 
were  introduced.  Benefices  merely  added  to  the  incumbent's 
right  to  hold  the  office  permanently,  the  right  to  administer 
and  receive  its  income  permanently.  Hence  the  amovibilitas 
of  rectors  is  opposed  to  the  early  discipline  of  the  Church. 

fS^"  From  the  above  it  will  be  seen  that  a  church  may 
be  a  canonical  parish  and  have  a  canonical  parish  priest,  even 
though  it  is  not  a  benefice.  It  should  indeed  have  a  suf 
ficient  revenue.  But  it  matters  not  whether  this  income  is 
derived  from  pew-rents,  collections,  etc.,  as  in  the  U.  S.,  or 
from  real  estate.  Hence,  on  this  score,  there  is  no  obstacle 
in  the  way  of  our  missions  becoming  canonical  parishes.b 
§  3.  On  the  Canonical  Formation  and  Suppression  of  Parishes. 

646.  We  sufficiently  described  the  formation  of  parishes 
when  we  spoke  of  the  erection  of  benefices  or  parishes. 
We  shall  here  subjoin  only  a  few  words,  i,  on  the  formation 
of  parishes  cum  jure  patronatus ;  2,  on  the  alteration  and 
suppression  of  parishes  in  general.  I.  Formation  of  Parishes 
"  cum  jure  patronatus" — The  jus  patronatus  consists  chiefly  in 

a  Acta  S.  Sedis,  vol.  iii.  p.  510. 

b  In  the  conferences  held  at  Rome  in  1883  between  the  Cardinals  of  the  S.  C. 
de  P.  F.  and  the  American  Prelates,  the  Cardinals  proposed  to  establish  in  the 
United  States  canonical  parishes  proper,  whose  rectors  should  be  canonical 
parish  priests  proper,  possessed  of  irremovability,  ordinary  jurisdiction,  and  all 
the  other  rights  and  duties  of  canonical  parish  priests.  To  this  our  Prelates 
objected.  The  matter  was  finally  compromised  and  decided  by  the  Cardinals 
as  follows  :  "  Utrum  in  America  debeant  constitui  veri  parochi  in  sensu 
canonico  vel  tantum  rectores  inamovibiles  sicut  in  Anglia  cum  sola  dote  in- 
amovibilitatis  et  absque  juribus  ac  privilegiis  verorum  Parochorum-?  Erhi 
dixerunt,  propositam  quaestionem  esse  definiendam  ita  :  Pro  nunc  esse  consii 
tuendos  rectores  inamovibiles  sicut  in  Anglia." 


The  Rights  and  Duties 

this :  that  when  a  benefice  or  parish  becomes  vacant,  the  pa- 
tronus  can  present  the  new  rector  to  the  bishop  for  appoint 
ment.'"  The  rector  thus  presented  acquires  a  jus  ad  rem,  and 
must  be  appointed  to  the  vacant  place,  unless  some  canoni 
cal  obstacle  stands  in  the  way.43  How  is  the  "  jus  patronatus  " 
acquired?  i.  Extraordinarily  (de  jure  singular  i}  by  prescrip. 
tion,  custom,  and  privilege.  2.  Ordinarily  (de  jure  communi} 
a  person  acquires  the  jus  patronatus  in  three  ways:  i,  by 
giving  the  land  upon  which  the  church  is  to  be  built  (funda- 
tione,  conccssione  fundi} ;  2,  by  defraying  the  expenses  of  the 
building  of  the  church  (aedificatione,  constrnctwnc] ;  3,  by  en 
dowing  the  church  (dotatione).  It  is  sufficient  for  a  person 
to  perform  one  of  these  three  things,  and  it  is  not  necessary 
for  him  to  perform  all  three."  Thus,  a  person  acquires  the 
jus  patronatus,  i,  by  donating  the  ground  (though  only  after 
the  church  has  been  built  upon  it  and  endowed) ; 45  2,  or  by 
building  a  church  at  his  own  expense  ;  3,  or  by  endowing  it.4' 
The  endowment  must  be  sufficient— i.e.,  sufficient  revenues 
must  be  assigned  the  church  for  the  support  of  the  clergy 
men,  for  the  maintenance  of  divine  worship,  for  candles,  and 
the  like.  No  jus  patronatus  arises  from  an  insufficient  en 
dowment.  Moreover,  simple  donations,  legacies,  or  contri 
butions  do  not  confer  the  jus  patronatus,  even  though  they 
constitute  a  dos  sufficiens."  A  person,  therefore,  not  assign 
ing  an  endowment  proper,  but  merely  contributing,  even 
though  generously,  to  a  church,  does  not  become  an  en- 
dower  (dotator),  but  merely  a  benefactor  (benefactor}.  Hence, 
as  Kenrick48  says,  no  jus  patronatus  exists  in  the  United 

"  Craiss.,  n.  1322.  A  postulatum,  made  by  a  number  of  German  bishops  al 
the  Vatican  Council,  proposed  to  restrict  the  right  of  presentation,  so  that  lay 
patrons  should  be  obliged  to  present  one  of  three  persons  to  be  designated  by 
the  ordinary  (Martin,  1.  c.,  p.  172).  «  Supra,  n.  320. 

44  Leuren.,  1.  c  ,  p.  ii.,  qu.  30.  «  Ib.,  qu.  39. 

46  Ferraris,  V.  Jus  Patronatus,  art.  i.,  n.  20,  26.  "  Leuren.   1.  c.,  qu.  43 

48  Tr.  12,  n.  96;  cfr.  Cone.  PI.  Bait.  II.,  n.  184. 


of  Park's h  Priests.  441 

States,  because  our  churches  are  maintained  simply  by  con 
tributions  from  the  faithful.     From  what  has  been  said,  it 
follows  that  the  same  church  may  have  several  patroni — v.g,^ 
if  one  gives  the  land,  another  builds  the  church,  and  a  third 
endows  it ;  in  this  case  all  three  are  patroni  in  solidum — z>., 
have  equal  rights,  each  having  a  vote  in  the  nomination  of 
the  pastor.49     Again,  if  a  number  of  persons  concur  in  per 
forming  one  of  the  three  above  actions — i.e.,  if  they  together 
either  buy  the  land,  etc. — ajl  of  them  become  patroni™     The 
consent  of  the  ordinary  is  indispensable  for  the  acquisition 
of  the  jus  patronatus ;  it  need  not,  however,  be  necessarily 
given  before  or  diLring  the  building  of  the  church.     Thus,  if  a 
church   were  built  without  the  consent  of  the  bishop,  but 
afterwards  accepted  by  him,  this  acceptance  would  be  suffi 
cient  consent.61     We  need  not  here  say  that  the  jus  patrona 
tus  does  not  mean  the  right  to  actually  appoint  the  pastor, 
but  merely  to  present  him  for  appointment.     Finally,  we  ob 
serve,  the  Church  has  instituted  the  Jus  patronatus  in  order 
to  encourage  the  faithful  to   build  and  generously  endow 
churches      II.  Alteration  and  Suppression  of  Parishes  in  gen 
eral. — The  bishop  may,  by  virtue  of  his  potestas  ordinaria™ 
change  a  church  not  having  the  care  of  souls  annexed  (eccle- 
ria  simplex)  into  one  with  the  care  of  souls  (ecclesia  curata), 
but  not  vice  versa.     He  may  also,  by  virtue  of  his  potestas 
ordinaria,  change  a  parish  whose  rector  is  amovibilis  into  one 
whose  rector  is  inamovibilis,  but  not  vice  versa,™  as  we  have 
•  shown   above."     The   bishop   may  suppress  parishes  in  all 
cases  where  he  can  unite  them  aocessorily  to  other  churches. 

49  Leuren.,  1.  c.,  qu.  31.  60  Ferraris,  1.  c.,  n.  27. 

61  Leuren.,  1.  c.,  qu.  36,  n.  I,  2.  s2  Bouix,  De  Paroch.,  p.  297. 

•*3  Leuren.,  For.  Benef.,  p.  iii.,  q.  964,  n.  5.      M  Supra,  n.  258. 


4.42  The  Rights  and  Duties 

§  4.  Manner  of  Appointing  Irremovable   Rectors,    also   in   the 
United  States — The  Concur sus. 

l^gF"  647.  The  Council  of  Trent,  desirous  that  parishes 
should  be  provided  with  worthy  and  competent  parish 
priests,  enacted  that  appointments  to  parishes  must  be  made 
by  concursus,  or  competitive  examination.  Hence  it  ordained 
that  when  a  parish  falls  vacant,  the  bishop  shall  fix  a  day  for 
the  competitive  examination.  On  the  day  appointed,  all 
those  whose  names  have  been  entered  for  the  examination 
shall  be  examined  by  the  bishop,  or  his  vicar-general,  and  by 
at  least  three  synodal  examiners.  The  vacant  parish  can  be  . 
conferred  by  the  bishop  only  on  one  of  those  who  have  suc 
cessfully  passed  the  examination.  Nay,  if  several  have  been 
approved  or  passed  by  the  examiners,  the  bishop  must  con 
fer  the  parish  on  the  one  who  is  the  dignior  or  most  worthy 
among-  them.  All  appointments  made  contrary  to  these 
prescriptions  are  surreptitious,  i.e.,  null  and  void.55 

Notwithstanding  these  clear  enactments  of  the  Council 
of  1  rent,  it  was  found  that  in  a  number  of  dioceses  the 
bishop's  curia  held  both  in  theory  and  practice,  either  that 
the  concursus  was  binding  only  on  pain  of  the  illicitness,  but 
not  of  the  nullity  of  the  appointment,  or  that  the  Council  of 
Trent  obliged  the  bishop  to  appoint  from  among  those  who 
had  successfully  passed  the  examination  merely  the  dignus, 
but  not  the  dignior.  Against  these  erroneous  opinions  Pope 
Pius  V.  issued  his  constitution  In  confercndis  (May  16,  1567), 
in  which  he  ordains  chiefly:  I.  That  all  appointments  to" 
parishes  made  without  the  concursus,  as  prescribed  by  the 
Council  of  Trent,  are  null  and  void,  not  merely  illicit ;  2,  that 
the  bishop  is  bound  to  appoint  the  dignior,  and  that  he  cannot 
select  one  who  is  merely  dignus  ;™  3,  that,  therefore,  those  who 

55  Cone.  Trid.,  sess.  xxiv.,  c.  xviii.,  De  Ref. 

56  The  opinion  that  the  bishop  is  not  bound  to  appoint  the  dignior,  but  can 
select  one  who  is  merely  dignus,  was  also  condemned  by  Pope  Innocent  XI. 
(1676-1679).     See  Bouix,  De  Par.,  p.  337. 


of  Parish  Priests.  443 

have  made  the  examination,  but  are  not  appointed,  have  the 
right  to  appeal,  though  onlym  dcvolutivo,to  the  metropolitan 
(or,  where  the  metropolitan  himself  was  the  appointer,  to 
the  nearest  ordinary,  as  delegate  of  the  Holy  See),  or  to  the 
Holy  See ;  4,  that  thereupon  a  new  examination  must  take 
place  before  the  metropolitan  and  his  synodal  examiners, 
and  the  parish  must  be  conferred  upon  him  who,  in  this 
second  examination,  is  found  by  the  metropolitan  to  be  dig- 
nior?''  i.e.,  the  most  worthy. 

However,  these  excellent  regulations,  like  all  that  is 
good,  were,  as  Benedict  XIV.  says,  abused  by  the  malice 
of  men.  Let  us  explain.  As  we  have  just  seen,  according 
to  the  regulations  of  Pope  Pius  V.,  the  concursus  had  to 
be  made  over  again  before  the  judge  of  appeal,  whenever 
an  unsuccessful  candidate  appealed  against  the  appointment 
made  by  the  ordinary. 

Now,  the  Council  of  Trent  did  not  determine  the  manner 
in  which  the  examination  should  be  held — whether  it  should 
be  written  or  oral.  In  consequence,  various  modes  of  holding 
the  examination  began  to  prevail.  In  some  places  it  was 
oral ;  in  others,  in  writing.  Again,  in  some  dioceses  the  same 
questions  were  put  to  the  different  candidates ;  in  others, 
each  candidate  was  examined  on  a  different  subject.58  Hence 
it  frequently  happened  that  no  written  records  or  acts  of  the 
examination  were  extant.  Consequently,  when  an  appeal 
was  made,  the  metropolitan  found  it  necessary  to  admit  the 
appeal  and  order  a  new  examination,  on  the  mere  allegation  or 
statement  of  the  appellant,  even  where  he  showed  no  probable 
cause  of  complaint.59  Owing  to  this  state  of  things,  it  natu 
rally  occurred  very  often  that  competitors  who  were  not 
appointed  to  the  vacant  parish  would,  without  any  legiti 
mate  or  sufficient  reasons,  appeal  to  the  metropolitan  ;60  that 

51  See  Const.  In  conferendis,  in  Pyrr.  Corradus,  Praxis  benef.,  lib.  Hi.,  cap. 
iii.,  n.  4  sq. 

58  Bened.  XIV.,  Const.  Cum  illud,  1742,  §  7.  »  Ib.,  §  5.         «°  Ib.,  §  3. 


444  The  Rights  and  Duties 


<*•> ' 


their  appeal  was  forthwith  entertained  ;  and  that  the  one 
appointed  by  the  bishop  was  thus  obliged  to  travel  a  distance 
away  from  his  parish  and  undergo  a  new  examination  before 
the  metropolitan,  and  that  before  the  appellant  had  shown 
that  his  complaint  was  based  upon  any  foundation  what 
ever.61 

|31P  To  remedy  these  evils,  Pope  Clement  XL,  by  ;i 
decree,62  issued  by  the  S.  C.  C.,  Jan.  18,  1721,  enacted:  I 
That  the  examinations  must  be  in  -writing,  and  that  con 
sequently  the  candidates  must  give  vuritten  answers;  2, 
that  the  same  questions  must  be  given  to  all  the  candidates  ;- 
3,  that  the  appeal  against  the  unfair  report  of  the  examiners. 
or  the  unreasonable  appointment  made  by  the  bishop  must 
be  made  within  ten  days  from  the  day  of  the  appointment  to 
the  parish;  4,  that  a  new  concursus  shall  not  be  ordered  by 
the  judge  of  appeal,  unless  it  appears  Irom  the  acts  of  the  pre 
vious  concursus — namely,  from  the  written  answers  of  the  com 
petitors — that  in  point  of  learning,  the  appellant  has  been 
wronged  by  the  report  of  the  examiners,  or  the  appointment 
made  by  the  bishop. 

From  this  it  will  be  seen  that  the  decree  of  Pope  Clement 
XI.  did  not  do  away  with  the  necessity  of  making  the  con- 
£ursus  over  again  before  the  metropolitan.  On  this  score, 
numerous  complaints  were  made  to  the  Holy  See.  It  was 
s:id  that  this  repetition  of  the  concursus  had  this  dis 
advantage,  that  the  appellant  competitor,  though  inferior  to 
his  rival,  in  point  of  learning,  at  the  time  of  the  first  concur 
sus,  might  prepare  better  for  the  second  examination,  and 
thus  defeat  his  competitor  the  second  time."  Again,  it  was 
complained  that  as  the  decree  of  Clement  XI.  allowed  appel 
lants  to  present  to  the  judge  ad  quern  new  and  additional 
testimonials  of  character,  it  happened  not  unfrequent.lv  that 

61  Bened.  XIV.,  Const.  Cum  illud,  §  3. 

62  This  decree  is  embodied  in  the  Const.  Cum  illud,  §  7,  of  Bened    XIV. 
™  Bened.  XIV.,  Const.  Cum  illud,  §  4. 


of  Parish  Priests.  445 

those  appellants  would,  after  the  first  concursus,  collect  all 
sorts  of  new  testimonials,  attesting  their  good  character,  fit 
ness  for  the  parish,  etc.,  etc.,  and  submit  them  to  the  judge 
ad  quern,  who  would  revoke  the  appointment  of  the  ordinary 
and  appoint  the  appellant  to  the  parish,  mainly  on  the 
strength  of  these  new  testimonials.61  Finally,  in  a  number  of 
dioceses,  the  synodal  examiners,  contrary  to  the  clear  enact 
ment  of  the  Council  of  Trent  (sess.  xxiv.,  c.  18,  De  Ref.),  in 
approving  competitors,  took  into  account  solely  their  learn 
ing,  and  not  also  other  prescribed  qualifications.65 

I51F0  To  remedy  these  complaints,  and  thus  to  give  the 
finishing  touch  to  the  law  of  the  Church  on  the  concursus, 
Benedict  XIV.,  on  the  I4th  of  December,  1742,  issued  the 
Const.  Cum  illud,  in  which,  after  confirming  the  enactments 
of  Pope  Pius  V.  concerning  the  obligation  of  appointing  the 
dignior,  or  the  most  worthy,  and  the  right  to  appeal  against 
the  report  of  the  examiners,  or  the  appointment  of  the 
bishop,  and  also  the  law  of  Pope  Clement  XL  concerning 
the  necessity  of  making  the  concursus  'in  writing,  he  adds  the 
following  regulations:  i.  When  a  parish  falls  vacant,  the 
bishop  shall,  by  a  public  edict,  fix  a  suitable  day  for  the  hold 
ing  of  the  competitive  examination,  notifying  at  the  same  time 
all  who  wish  to  make  the  concursus  that  they  must,  within 
this  time  and  before  the  day  set  apart  for  the  concursus,  file 
with  the  diocesan  chancellor  all  testimonials,  judicial  or  ex 
tra-judicial,  of  their  fitness,  merits,  qualifications,  etc.  After 
the  expiration  of  this  time  no  testimonial  or  document  of  any 
kind  can  be  received.68  2.  The  chancellor  must  make  out  a 
written  summary  or  synopsis  of  all  the  documents  or  testi 
monials  presented  by  the  various  candidates  ;  a  copy  of  this 
synopsis  will  be  given  to  the  bishop,  and  to  each  of  the  ex 
aminers,67  who,  in  approving  candidates,  after  the  examina 
tion,  must  take  into  account,  not  merely  their  learning,  but 

64  Bened.  XIV.,  Const.  Cum  illud,  §  13.  65  Ib.,  £§  10,  n. 

66  Ib.,  §  16,  ii.  61  Ib.,  §  16,  iii. 


44^  The  Rights  and  DiUics 

also  their  other  merits  and  qualifications.68  3.  In  case  a  com 
petitor  who  is  rejected  appeals  either  a  mala  relations  exami 
natorum,  orab  irrationabili  judicio  episcopi,  he  must  produce  be 
fore  the  judge  of  appeal  all  the  acts  or  records  of  the  examina 
tion  held  in  the  first  instance,  which  must  be  given  him  for 
that  purpose  by  the  chancellor.  The  judge  ad  quern  must 
pronounce  his  decision  solely  and  exclusively  on  the  strength 
of  the  records  or  acts  of  the  first  concursus.  Hence  ke 
cannot  order  any  new  concursus,  nor  receive  any  documents 
or  testimonials  other  than  those  contained  in  the  acts  of  the 
first  instance."  4.  Finally,  when  the  judge  ad  quern  pro 
nounces  sentence  in  entire  conformity  with  the  appointment, 
of  the  ordinary, — that  is,  in  every  respect,  against  the  appel 
lant  and  in  favor  of  the  competitor  appointed  bv  the'  bishop, 
—no  further  appeal  is  allowed,  and  the  controversy  becomes 
resjudicata.  But  if  he  reverses  the  action  or  appointment  of 
the  ordinary,  the  competitor  appointed  by  the  bishop  can 
appeal  to  the  higher  judge,  whose  sentence  shall  be  final  and 
unappealable.70 

f^iP  From  what  has  been  said  thus  far,  it  will  be  seen  that 
the  general  law  of  the  Church,  as  in  full  force  at  the  present 
day,  may  be  summed  up  thus:  I.  That  all  appointments  to 
parihses  must  be  made  by  concursus,  on  pain  of  nullity  of  the 
appointment;  2,  that  the  concursus  must  be  in  writing;  3, 
that  the  bishop  is  obliged  to  appoint  from  among  those  who 
are  approved  by  the  examiners,  the  digm'or,nnd  cannot  select 
one  who  is  merely  dignus  (supra,  n.  376);  4,  that  the  exam 
iners  must  take  into  account  not  merely  the  learning  of  the 
competitors,  but  also  their  other  qualifications  (supra,  n.  367 
sq.);  5,  that  the  competitors,  who  are  not  appointed,  can 
appeal,  in  dcvolutivo ;  6,  that  the  judge  to  whom  the  appeal 
is  made  must  decide  the  case  solely  from  the  acts  of  the  con 
cursus  already  made,  and  cannot,  therefore,  order  a  new  con 
cursus,  or  admit  additional  testimonials. 

6S  Const    Cum  Hind,  £  16.  iv.  69  Ih.,  §  16,  vi.  "°  Ib.,  §  17. 


of  Parish  Priests.  447 

We  have  said  that  appointments  made  without  the  con- 
cursus  are  null  and  void.  This  is  the  general  rule.  For 
there  are  some  exceptions,  partly  indicated  already  by  the 
Council  of  Trent  itself,  partly  introduced  by  custom,  and 
partly  sanctioned  expressly  by  the  Holy  See.  Thus,  no  con- 
cursus  is  required,  I,  in  the  appointment  of  rectors  or  par 
ish  priests  ad  nutum  amovibiles  -11  for  the  Council  of  Trent 
speaks  merely  of  beneficia  curata  which  are  perpetua,  i.e., 
those  parishes  which  have  irremovable  rectors;72  2,  nor  in 
appointments  to  parishes  which  possess  so  slight  revenues  as 
not  to  allow  of  the  trouble  of  such  examination  ;  3,  nor  in  case 
grievous  quarrels  and  tumults  might  result  from  the  concur- 
sus ;"  4,  nor  (except  in  Rome74)  in  the  appointment  of  vicars 
(vicarii  curati)  of  parishes  united  (parochiae  ttnitae]  to  monas 
teries,  chapters,  and  the  like — namely,  where  the  air  a  habitu- 
alis  is  vested  in  \he  parochus  principalis  (i.e.,  the  chapter,  etc.), 
and  the  cura  actualis  in  the  vicarius.  For  other  cases,  see 
Bouix.75 

fjiF0  648.  Q.  What  is  the  manner  of  appointing  rectors  in 
the  United  States? 

A.  We  premise:  Up  to  the  Third  Plenary  Council  of  Bal 
timore  held  in  1884,  all  our  rectors  were  amovibiles.  The 
aforesaid  council  decreed  that  in  future  one  rector  out  of 
ever}'-  ten  should  be  irremovable.11  Hence  we  have  at  pres 
ent  two  kinds  of  rectors,  removable  and  irremovable. 

We  now  answer:  I.  Our  rectors  who  are  amovibiles  are 
appointed  in  the  manner  laid  down  by  the  Second  Plenary 
Council  of  Baltimore,  n.  126.  II.  As  to  our  irremovable  rec 
tors,  the  Third  Plenary  Council  of  Baltimore  enacts:  I.  The 
creation  of  missioncs  inamovibiles  and  the  appointment  of  the 
irremovable  rectors  must  take  place  within  three  years  from 

11  S.  C.  C.,  Jan.  12,  1619.  12  Bouix,  De  Par.,  p.  348. 

'"•However,  in  these  cases  the  ordinary  must  have  before  his  eyes  what  the 
Council  of  Trent  says  in  cap.  xviii.,  sess.  xxiv.,  De  Ref. ,  in  fine. 

14  Craiss.,  n.  1330.     '5  De  Paroch.,  p.  347  sq.       *  Cone.  PI.  Bait.  III.,  n.  40. 


448  The  Rights  and  Duties 

the  promulgation  of  the  council,  i.e.,  from  January  6,  i886.b 

2.  The  bishop  can  appoint  the  irremovable  rectors,  for  the 
first  time,   without  the  concursus,   though    not   without  the 
advice  of  his  consultors  ;°  after  that,  only  by  concursus?-  and 
that  on  pain  of  nullity  of  the  appointment.     However,  even 
after  the  first  appointments,  though  only  in  a  particular  case, 
the  bishop  may,  without  the  concursus,  though  not  without 
the  advice  of  the  synodal  or  pro-synodal  examiners,  appoint 
an  ecclesiastic  to  an  irremovable  parish,  whose  learning  is 
abundantly  attested  either  by  the  office  which  he  holds,  v.g., 
if  he  is  a  synodal  examiner,  or  by  his  dignity,  or  also  bv  the. 
long  labors  with  which  he  has  laudably  served  the  Church.6 

3.  The  concursus  is  made  in  the  same  manner  as  that  laid 
down   in    the   general    law   of   the    Church    and   described 
above;  in  other  words,  it  is  made  before  bishop  or  vicar- 
general  and  three  synodal  or  pro-synodal  examiners  in  writ 
ing,  etc/    4.  Only  those  priests  can  be  admitted  to  the  con 
cursus  who  have  laudably  exercised  the  sacred  ministry  for 
at  least  ten  years,  in  the  diocese,  and  have  within  that  time 
given  proof  of  their  ability  to  govern  the  parish  spiritually 
and  temporally,  either  in  the  capacity  of  simple  rectors,  or 
in  some  other  way.8    5.  The  mission  must  be  conferred  on  the 
dignior,  i.e.,  the  most  worthy  among  those  who  passed  the  ex 
amination,  and  cannot  be  conferred  on  one  who  is  merely  dig- 
nus.     6.  The  examiners  can  and  should  approve  all  who  are 
worthy  or  digni.     The  bishop  alone  has  the  right  to  deter 
mine  which  one  among  the  approved  is  the  most  worthy,  or 
dignior.     However,  the  bishop  may  laudably,  before  making 
the  appointment,  ask  the  advice  of  the  examiners  as  to  whom 

b  Cone.  PI.  Bait.  III.,  n.  35.  c  Ib.,  n.  37.  d  Ib.,  n.  36,  57. 

c  Cone.  PI.  Bait.  III.,  n.  57  ;  cf.  Ib.,  p.  204,  Instr.  S.  C.  de  P.  F.,  Oct.  ID, 
1884,  De  Concursu. 

f  Cf.  Cone.  PL  Bait.  III.,  n.  41  sq.,  where  the  manner  in  which  the  concur* 
sus  must  be  made  is  carefully  described. 

*  Cone.  PI.  Bait.  III.,  n.  36,  43. 


of  Parish  Priests.  449 

they  regard  as  the  dignior  or  most  worthy.11  7.  Competitors 
who  are  not  appointed  have  a  right  to  appeal  "  in  devolu- 
tivo"  to  the  metropolitan  or  Holy  See  against  the  appoint 
ment  made  by  the  bishop,  and  also  against  the  unfair  report 
of  the  examiners,  as  provided  in  the  Const.  Cum  illud  of 
Pope  Benedict  XIV.1  8.  The  judge  to  whom  the  appeal  is 
made  must  decide  the  case  solely  and  exclusively  from  the 
acts  of  the  concursus  already  made.  Hence  he  cannot  order 
the  concursus  to  be  made  over  before  him  and  his  synodal  ex 
aminers  ;  nor  can  he  receive  any  new  testimonials  whatever 
as  to  the  fitness,  etc.,  of  the  appellants.  9.  Finally,  where 
on  account  of  the  vast  extent  of  the  diocese  and  the  distance 
of  places,  v.g.,  in  some  of  the  Western  and  Southern  dioceses, 
or  other  peculiar  obstacles,  a  special  concursus  can  be  held 
only  with  difficulty,  every  time  an  irremovable  parish  falls 
Vacant,  it  is  allowed  to  separate  the  concursus,  by  which  the 
learning  of  the  candidates  is  ascertained,  from  that  by  which 
the  other  canonical  qualifications  are  determined,  in  such 
manner  that  a  general  examination  will  be  held  once  a  year, 
in  the  manner  above  explained,  for  the  purpose  of  finding 
out  the  learning  of  the  competitors;  that  the  other  requisite 
qualifications  will  be  passed  on  by  the  examiners  each  time 
a  parish  falls  vacant.j  Those  who  have  once  passed  the  an 
nual  examination  will  be  regarded  as  worthy,  so  far  as  their 
learning  is  concerned,  of  being  appointed  to  any  irremovable 
parish  that  may  fall  vacant  within  six  years  after  their  ap 
proval.  On  the  lapse  of  six  years,  however,  they  must  un- 

h  Cone.  PI.  Bait.  III.,  n.  36,  52  ;  Bened.  XIV.,  De  Syn.,  1.  iv.,  c.  viii.,  n.  6. 

1  Cone.  PI.  Bait.  III.,  n.  36. 

'  At  the  Vatican  Council  the  German  bishops  made  this  proposal:  "  Decre- 
tum  S.  C.  Trid.  de  concursu pro parochiis  speciali  instituendo  in  multis  ampliori- 
bus  dioecesibus  nunquam  in  usum  pervenit,  in  multis  aliis  autem  jam  approbante 
S.  Sede  Ap.  ejusdem  loco  hodie  concursus  generalis  habetur.  Propterca  petimus 
ut  illud  S.  C.  Trid.  decretum  revision!  submittatur,  et  ea  examinis  sive  concur 
sus  norma  praescribatur,  quae  ubique  valeat  ac  debeat  observari"  (Martin,  Doc., 
p.  172  ;  cfr.  ib.,  pp.  144,  174). 


450  The'  Rights  and  Duties 

dergo  the  examination  again,  if  they  wish  to  be  appointed 
to  an  irremovable  parish.1' 

Irremovable  rectors  in  Ireland  are  appointed  without 
the  concursus.  Thus  the  Plenary  Synod  of  Maynooth  says:1 
"Cum  per  circumstantias  hujus  regionis  concursus  quamvis 
optandus,  vix  introduci  possit,  episcopi  diligenter  caveant 
ne  paroeciae  conferantur  nisi  iis,  qui  a  synodalibus  exami- 
natoribus,  si  adsint,  sin  vero,  a  theologis  ab  episcopo  delectis 
approbati  fuerint,  quique  moribus  ac  scientia  caeteris  prae- 
sterit."  Likewise,  the  irremovable  rectors  in  England  are 
appointed  without  the  concursus.  However,  it  seems  certain 
that  in  the  near  future  the  concursus  will  be  prescribed  for 
the  appointment  of  irremovable  rectors  in  both  these  coun 
tries. 

ART.    II. 
Rights  of  Parish  Priests,  and  of  Rectors,  in  the  United  States. 

§  i.  General  Remarks. 

E^iT"  649.  The  following  remarks,  though  applying  chiefly 
to  parish  priests  proper,  are  nevertheless,  in  a  measure,  also 
applicable  to  our  rectors.  For  all  our  rectors,  even  those 
who  are  not  irremovable,  possess  parochial  or  quasi-parochial 
rights'"  which  are  laid  down  partly  in  the  Second  Plenary 
Council  of  Baltimore,  Nos.  in,  112,  117,  227,  and  also  in  the 
statutes  of  provincial  and  diocesan  synods."  These  rigJits 
of  our  rectors  necessarily  imply  corresponding  duties  on  the 
part  of  their  congregations,  and  other  rectors.  Thus,  for 
instance,  a  rector  with  us  has  the  right  to  administer  bap 
tism,  marriage,  the  viaticum,  and  extreme  unction  to  his  pa 
rishioners.  Consequently,  the  parishioners  cannot  lawfully 
receive  the  sacraments  from  other  rectors,  nor  can  the  rec 
tors  themselves  lawfully  administer  them  to  non-parishioners. 

k  Cone.  PI.  Bait.  III.,  n.  58;  see  the  Instr.  S.   C.  de  P.  F.,   Oct.    10,   1884, 
on  this  general  concursus  (Cone.  PI.  Bait.  III.,  p.  203). 

1  Syn.  PI.  Maynut.,  n.  183.  m  Konings,  n.  1138. 

n  Cone.  PJ.  Bait.  II.,  n.  124. 


of  Parish  Priests.  451 

The  rights  of  parish  priests  relate  chiefly  to  the  administra 
tion  of  the  sacraments  of  baptism,  penance,  the  Blessed 
Eucharist,  matrimony,  and  Extreme  Unction ;  to  funerals, 
parochial  functions,  etc. 

§  2.  Rights  of  Parish  Priests  relative  to  the  Sacraments. 

650.  We  premise  :  Every  parish,  as  was  shown,  must  have 
certain  fixed  limits.  By  parishioners  are  meant,  as  a  rule,  the 
faithful  who  live  within  the  boundaries  of  the  parish.76  Now, 
of  these,  I,  some  have  a  domicilium  proprie  dictum — those, 
namely,  who  have  come  into  the  parish  with  the  intention 
(manifested)  of  living  there  permanently,  if  nothing  should  call 
them  away  ;  2,  others  have  but  a  quasi-domiciliitm — i.e.,  dwell 
in  the  parish  for  a  considerable  part  of  the  year,"  or  at  least 
with  the  intention  of  remaining  so  long — v.g.,  students  in  col 
leges,  servant-girls  ; 7"  3,  a  third  class,  finally,  live  in  the  parish 
but  temporarily :  they  are  named  strangers  (peregrini)  ;  if 
they  travel  from  place  to  place,  having  nowhere  a  domicile 
or  quasi-domicile,  they  are  called  wanderers  (vagi).  We 
shall  now  pass  to  the  several  sacraments.  I.  Rights  of  Parish 
Priests  relative  to  Baptisms. — Parishioners — that  is,  not  only 
the  faithful  who  have  a  domicile,  but  also  those  who  have 
but  a  quasi-domicile,  in  the  parish — are  bound,  as  a  rule,  to 
bring  their  children  to  their  parish  church  for  baptism  ; " 
and  they  sin  mortally  by  having  their  children  baptized  in 
another  parish  without  the  permission  of  their  parish  priest. 
Persons  who  have  nowhere  a  domicile  or  quasi-domicile 
can  have  their  children  baptized  wherever  they  wish.  A 
priest  who,  except  in  case  of  necessity,  should  presume  to 
baptize  children  belonging  to  another  parish,  without  the 

76  Phillips,  1.  c.,  p.  343.  77  Bouix,  De  Judic.  Eccl.,  vol.  i.,  pp.  267,  275 

78  Hence,  a  person  may  have  a  domicile  proper  in  one  place,  and  at  the 

•ame  time  a  ouasi-domicile  in  another — v.g.,  persons  living  in  the  city  during 

winter  and  in  *he  country  during  summer.  **  Bouix,  De  Paroch.    p.  441. 


452  The  Rights  and  Duties 

permission — at  least,  presumptive — of  the  respective  pastor, 
would  commit  a  mortal  sin.  This  prohibition  is  applied  to 
the  United  States  in  the  following  modified  manner:  "  Gra- 
vissima  reprehensione  digni  sunt  sacerdotes,  qui  infantes  ab 
aliena  sive  paroecia  sive  dioecesi,  sibi  oblatos  temere  bapti- 
zant,  cum  facile  a  proprio  pastore  baptizari  possunt.  Abu 
sum  hunc  iterum  damnamus  ac  prohibemus." 

651. — II.  Rights  of  Parish  Priests  respecting  the  Sacrament 
of  Penance. — A  parish  priest,  by  virtue  of  his  office,  hasjurts- 
dictio  ordinaria  in  foro  interno  in  his  parish.  We  say,  in  his 
parish ;  for  a  parish  priest,  as  such,  cannot  hear  (except  his 
parishioners)  in  the  whole  diocese,  but  only  in  the  confines 
of  his  own  parish.  In  order  to  avoid  difficulties,  therefore 
it  were  advisable,  according  to  Bouix,"  that  each  'bishop 
should  expressly  give  all  his  parish  priests  faculties  to  hear 
in  the  whole  diocese.  In  many  places  parish  priests  are 
understood  by  custom  to  have  jurisdiction  in  every  part  of 
the  diocese.  Formerly  parish  priests  possessed  exclusively 
the  right  to  hear  their  parishioners.  This  prerogative  has 
lapsed.  At  present  the  faithful  may,  without  the  permission 
of  their  parish  priest,  confess,  even  in  paschal  time  or  when 
in  danger  of  death,  to  any  priest,  secular  or  regular,  who  is 
approved  by  the  bishop.82  Has  the  parish  priest  a  right  to 
demand  from  his  parishioners  presenting  themselves  for  holy 
communion  in  paschal  time  a  certificate  as  to  their  having 
made  their  confession  to  an  approved  priest  ?  We  answer  : 
i .  Wherever  this  is  not  prescribed  by  the  ordinary  a  parish 
priest  cannot  exact  such  certificate,  except  from  those 
parishioners  whom  he  may,  for  grave  reasons,  suspect  of  not 
having  gone  to  confession,  even  though  they  assert  the  con 
trary.  In  giving  this  certificate  the  confessor  should  merely 
state  the  fact  of  the  confession  having  been  made,  but  not 

*°  Cone.  PI.  Bait.  II.,  n.  227  ;  our  Notes,  n.  202-205.  81  L.  c.,  p.  44$ 

"  Phillips,  1.  c.,  p.  346. 


of  Par  is  k  Priests.  453 

whether  absolution  was  given.83  2.  The  above,  as  is  evi 
dent,  applies  to  countries  only  where  there  are  canonical 
parish  priests,  and  where,  consequently,  the  faithful  are 
bound  to  receive  their  paschal  communion  in  their  parish 
church,  but  not  to  the  United  States,  where  the  faithful  can 
make  their  Easter  communion  everywhere. 

652.  Confessors  in  the  United  States. — i.  As  our  rec 
tors,  even  those  who  are  irremovable,  are  not  canonical 
parish  priests,  it  would  seem  that  they  cannot  hear  their 
parishioners  outside  the  diocese.84  2.  Formerly,  according 
to  an  agreement  among  our  bishops  in  1810,  a  priest  ap 
proved  for  one  diocese  could  hear  confessions  all  over  the 
United  States.85  This  agreement'  no  longer  exists.  Hence, 
at  present,  no  priest  can  hear  out  of  the  diocese  for  which 
he  is  approved/'  3.  All  our  priests — i.e.,  assistants  no  less 
than  pastors — are,  as  a  rule,  approved  for  the  whole 
diocese. 

653. — III.  Rights  of  Parish  Priests  in  regard  fj  the  Ad 
ministration  of  the  Blessed  EucJiarist. — I.  Whf/e  there  are 
canonically -established  parishes  the  faithful  are  bound  to  re 
ceive  the  paschal  communion  in  their  parish  church  /  87  if  they 
communicate  elsewhere  without  the  permission  of  their 
parish  priest,  they  do  not  fulfil  the  precept  of  the  Church. 
From  the  obligation  of  receiving  the  paschal  communion  in 
the  parish  church  are  exempted  chiefly :  i.  Strangers  (pere- 
grini,  advenae)  who  cannot  conveniently  go  to  the  place 
of  their  domicile.  2.  Wanderers  or  tramps  (vagi}.66  These 
two  classes  are  not  even  bound  to  receive  their  paschal 
communion  in  the  parish  where  they  are,  but  can  satisfy  the 
precept  by  communicating  in  the  churches  of  religious.*1 
3.  Seculars  employed  as  servants  in  monasteries  and  reli 
gious  houses,  provided  they  be  in  actual  service,  residing  in 

M  Bouix,  1.  c.,  p.  447.  M  Kenr.,  tr.  xviii.,  n.  133. 

*  Cone.  PL  Bait.  II.,  n.  118.  **  Konings,  n.  1394.        "  Supra,  n.  430. 

*  Craiss.,  n.  1358.  "  O'Kane,  n.  759 


454  The  Rights  and  Duties 

the  houses  of  the  religious,  and  living  under  obedience  to 
the  regular  prelate.  We  say,  living  under  obedience,  etc. ;  by 
this  we  do  not  mean  the  obedience  due  by  religious  profes 
sion,90  but  simply  the  obedience  due  ratione  famulatus — i.e., 
the  obedience  which  servants,  as  such,  owe  to  their  masters.91 
Whether  seculars  who  reside  permanently  in  religious  houses, 
as  in  places  of  retreat,  can  fulfil  the  paschal  precept  in  those 
houses  without  the  permission  of  the  parish  priest  is  ques 
tioned  by  some.  As  to  students  in  colleges  conducted  by 
religious,  see  n.  431.  At  present  the  faithful,  with  the  excep 
tion  of  their  Easter  communion,  can  receive  the  Blessed  Sac 
rament  in  any  church  or  public  chapel.  Hence,  regulars  can 
distribute  holy  communion  in  their  churches  to  seculars  dur 
ing  the  whole  year,  even  during  paschal  time,  except  Easter 
Sunday  alone — nay,  in  the  United  States,  even  on  Easter 
Sunday.  For,  with  us,  the  faithful  almost  everywhere  can 
make  their  paschal  communion  where  they  please. 

654.  Observation. — We  just  said,  almost  everywhere  ;  that 
is,  except  in  certain  parishes  of  California.  For  in  this 
State  the  faithful  and  rectors  of  those  parishes  which  are 
regarded  as  canonical  parishes  (though  the  rectors  in  charge 
of  them  are  not  canonical  parish  priests)  are  mutually  bound 
by  all  the  duties  of  parishioners  and  parish  priests  proper,  as 
laid  down  by  the  jus  commune.  Hence,  the  former  must  re 
ceive  their  paschal  communion  in  their  parish  church.  This 
is  evident  from  these  words  of  the  fathers  of  the  First  Pro 
vincial  Council  of  San  Francisco  :  Declaramus  rectores  earum 
paroeciarum,  quae  habentur  uti  paroeciae  proprie  dictae,  teneri 
ad  omnia  munia  parochorum  erga  fideles  intra  limit es  suarutn 
ecdesiarum  constitutes  adimplenda  ;  fideles  autemjus  Jiabere  ad 
subsidia  spiritualia  ab  illis  ecu  a  propriis  animarum  rectoribus 
vecipiendum>  ac  specialiter  teneri  ad  ipsos  recurrere  pro  commu- 
tioi  e  paschali,  baptismo,  viatico.  extrema  unctione,  et  matrtmo- 

nipra,  n.  431.  "  Bouix,  De  Jure  Reg.,  vol.  ii.,  p.  201 


of  Parish  Priests.  455 

nio.  From  these  words  it  would  seem  to  follow  that  the 
above  pastors  are  obliged  to  offer  up  Mass  for  their  people 
on  Sundays  and  holidays,  and  that  they  can  validly  and  law 
fully  hear  their  confessions  everywhere.02 

655. — II.  Sacrifice  of  the  Mass. — According  to  the  pre 
sent  discipline  of  the  Church,  the  faithful  are  not  bound, 
though  they  should  be  strenuously  exhorted,  to  hear  Mass 
on  Sundays  and  holidays  of  obligation  in  their  parisJi  cliurch™ 
Parishioners,  therefore,  can  satisfy  the  precept  of  the 
Church  by  hearing  Mass  in  any  church,  public  chapel,  or 
even  in  the  private  chapels  of  regulars,  but  not  in  the  pri 
vate  or  domestic  chapels  of  seculars.1'4  In  the  United 
States  the  faithful  fulfil  the  precept  by  assisting  at  the  Holy 
Sacrifice  anywhere** 

656.  Q.  Can  a  parish  priest  celebrate  two  Masses  on  the 
same  day  (binatio,  bin  are}  ? 

A. — I.  Universal  Discipline  of  the  Church  or  Provisions  of 
the  Jus  Commune  on  this  head. — Formerly  priests  were  al 
lowed  to  celebrate  several  times  a  day.  But,  at  present, 
this  is  prohibited,  except  (a)  on  Christmas  (b)  and  in  the 
case  of  necessity.  Now,  what  can  be  regarded  as  cases  of 
necessity  ?  We  answer  by  the  following  propositions : 
Prop.  I.  Many  cases  whicli  were  formerly  considered  by  canon 
ists  as  cases  of  necessity  cannot  be  considered  as  such  at  tJie  pre 
sent  day. — Thus,  canonists  formerly  held  that  a  priest  could 
say  a  second  Mass  on  the  same  day — v.g.,  for  the  accommo 
dation  of  strangers,  princes,  or  bishops  arriving  too  late  for 
the  first  Mass.  This  opinion  is  no  longer  tenable.98  Prop. 
II.  Prescinding  from  extraordinary  occurrences,  tJiere  is  at  the 
present  day  only  one  practical  case  of  necessity  authorizing  the 
"  binatio  " — namely,  (a)  when  either  an  entire  congregation,  or 
(#)  a  large  portion  of  a  congregation,  is  debarred  from  Jiearing 

M  Konings,  vol.  i.,  p.  471,  edit.  za.  "  Supra,  n.  430. 

M  Bouix,  1.  c.,  p.  196.  9S  Kenr.,  tr.  iv.,  p.  ii  ,  n.  14.. 

**  Bouix,  De  Par.,  p.  451. 


45 6  The  Rights  and  Duties 

Mass  on  Sundays  and  holidays  tmlcss  the  pastor  says  two  Masses 
on  the  same  day. — We  say,  I,  an  entire  congregation;  hence,  a 
pastor  who  has  two  parishes  at  so  great  a  distance  from 
each  other  that  the  people  in  one  of  the  places  cannot  con 
veniently  go  to  the  other  place  for  Mass  can  say  two  Masses 
a  day,  one  in  each  parish.97  We  say,  2,  or  a  large  portion,  etc.; 
hence,  a  pastor  can  say  two  Masses  a  day  in  the  same  church, 
if,  v.g.,  three  hundred  parishioners  are  otherwise  deprived 
of  Mass — v.g.,  because  the  church  is  too  small  to  hold  the 
entire  congregation  at  the  same  time.  We  say,  3,  on  Sun 
days  and  holidays;  that  is,  the  necessity  for  saying  two 
Masses  can  occur  on  those  days  only  on  which  the  faithful 
are  bound  to  hear  Mass,  but  not  on  week-days,  nor  on  Holy 
Thursday  or  Good  Friday.  Observe  that,  as  a  rule,  the 
permission  of  the  bishop  is  required  for  the  binaiio  even  in 
the  above  circumstances.  But  is  the  bishop's  permission 
sufficient,  or  is  that  of  the  Holy  See  necessary,  at  least  when 
the  two  Masses  are  to  be  said  in  the  same  church  ?  Bouix  " 
holds  against  the  Analecta  J.  P.  that  no  Papal  permission  is 
requisite.  For  the  binatio,  in  the  case  of  necessity,  is  per 
mitted  by  the  jus  commune  itself." 

657. — II.  Particular  Discipline  {jus  speciale,  particular  e],  in 
this  matter,  of  the  Church  in  the  United  States  and  Countries 
similarly  circumstanced. — So  far  we  have  shown  in  what 
cases  canonical  pastors  can  celebrate  twice  a  day  by  virtue 
of  the  jus  commune,  and  therefore  without  a  Papal  indult. 
Now,  can  rectors  or  priests  in  the  United  States  celebrate 
twice  a  day  under  conditions  less  stringent  than  those  pre 
scribed  by  the/zAJ  commune  ?  They  can;  for  bishops  in  the 
United  States,100  Ireland,101  England,109  and,  in  fact,  almost 

97  Bouix,  De  Par.,  p.  453.  9"  L.  c.,  p.  456. 

**  Namely,  by  the  decretal  Consuluisti  (issued  by  Pope  Innocent  III.  in 
1212),  which  still  has  the  force  of  common  law,  as  it  was  never  revoked  by 
any  subsequent  pontifical  decree. 

100  Fac.,  form,  i.,  n.  23.  101  Syn.  PI.  Thurles.,  ap.  Coll.  Lac.,  ni.,  p.  781 

'"  Cone   Prov.  Westmon.  I.,  A.D.  1852  ;  ap.  Coll.  Lac.,  Hi.,  p.  933. 


of  Parish  Priests.  457 

everywhere,  have  special  faculties  from  Rome  to  allow  of 
binatio.  Now,  it  is  evident  that,  by  these  faculties,  the  above 
bishops  have  fuller  powers  on  this  head  than  they  have  by  the 
jus  commune ;  otherwise,  such  faculties  were  useless,  since 
they  would  confer  upon  bishops  no  powers  not  already  vested 
in  them  by  the  jus  communed  Hence,  the  above  bishops  can 
allow  binatio  in  cases  where  it  is  not  permitted  by  the  com 
mon  law.  Thus,  priests  in  the  United  States  and  the  above 
countries,  by  episcopal  permission,  can  say  two  Masses  a 
day — v.g.,  not  only  when  a  great  (v*g-,  three  hundred  per 
sons),  but  when  a  considerable,  number  of  persons  (v.g:,  thirty) 
would  otherwise  be  deprived  of  Mass  on  Sundays  and  holi 
days — v.g.,  because  they  live  too  far  from  church,  or  be 
cause  some  must  stay  at  home  while  the  others  go  to  Mass. 
Observation. — A  parish  priest  proper — i.e.,  one  who  is  bound 
to  offer  up  Mass  for  his  people  on  Sundays  and  holidays — 
cannot  receive  a  stipend  for  any  of  the  Masses  when  he  cele 
brates  twice  a  day.104  We  say,  I,  parish  priest ;  because 
other  priests,  not  in  charge  of  souls  (v.g.,  assistants),  can  un 
doubtedly  accept  of  a  stipend  for  one  Mass  on  Sundays  as 
well  as  on  week-days.  We  say,  2,  parish  priest  proper ; 
hence,  rectors  in  the  United  States,105  not  being  canonical 
parish  priests,  are  exempt  from  the  obligation  of  celebrating 
for  their  congregations,  and  therefore  can  accept  of  a  sti 
pend  for  one  Mass  on  Sundays  and  holidays ;  nay,  at  present, 
according  to  Konings  (n.  1327,  q.  7,  ed.  3ia),  by  Papal  in- 
dult,  all  bishops  of  missionary  countries  can,  for  grave  and 
just  cause,  allow  priests,  when  they  say  two  Masses  a  day, 
to  receive  a  stipend  for  each  Mass.  (C.  PI.  Bait.  III.,n.  105.) 
658. — IV.  Rights  of  Parish  Priests  in  regard  to  the  Sacra 
ment  of  Matrimony — Rig  Ms  of  Parish  Priests  proper  in  places 

101  Cfr.  Instr.  S.  C.  Prop.,  May  24,  1870,  n.  n  seq  ,    ap.  Konings,  p.  Ivi. 
""  Bouix,  1.  c.,  p.  459.     He  can,  however,  accept  of  an  honorary  in  compen- 
tationem  la'-on's  of  the  second  Mass  (Bouix,  1.  c.) 
'"  As  to  California,  see  supra,  n.  654. 


458  The  Rights  and  Duties 

where  the  Tridentine  Decree  "Tamrtsi"  is  in  force. — Wher 
ever  the  decree  Tametsi™  is  published  marriages,  in  order 
to  be  valid,  must  be  contracted  in  presence  of  the  parochm 
proprius  of  the  contracting  parties.10'  Now,  by  the  parochus 
proprius  is  meant :  I.  The  parochus  domicilii — i.e.,  the  one  in- 
whose  parish  the  parties  have  their  domicile,  but  not  the 
parochus  originis,  or  the  one  in  whose  parish  they  were 
born.  Hence,  if  the  parties  belong  to  two  different  parishes, 
they  may  be  married  by  the  parish  priest  of  either  parish 
The  same  holds  true  if  one  of  the  parties  has  two  places  ot 
domicile.  It  is  more  becoming  that  the  marriage  be  solemn 
ized  by  the  pastor  of  the  place  to  which  the  bride  belongs. 
2.  The  parochus  quasi-domicilii  ;  hence,  public  or  government 
officials,  professors,  and  students,  who  have  a  quasi-domicile  in 
a  certa;n  place,  may  validly  contract  before  the  pastor  of  such 
place.  The  same  holds  of  soldiers,  servants,  boys  and  girls 
in  asylums.108  Youths  in  colleges  and  girls  educated  in  con 
vents  may  contract  before  the  pastor  in  whose  parish  the 
college  or  convent  is  situate,  though  the  proper  course  is 
to  send  them  home,  so  that  they  may  marry  where  their 
parents  reside.109  Vagi— i.e.,  those  who  have  nowhere  a 
fixed  domicile — can  contract  in  presence  of  the  parish  priest 
of  the  place  where  they  are  for  the  time  being ;  this  holds 
even  though  but  one  of  the  parties  is  a  vagus.™  3.  The 
bishop,  vicar-general,  and  vicar-capitular ;  these  dignitaries 
can  assist  validly  at  marriages  throughout  the  whole  dio 
cese.  The  chief  rights  of  the  parochus  proprius  are  :  (a)  To 
publish  the  banns  of  matrimony.  This  law  is  in  force  also 

106  Cone.  Trid.,  sess.  xxiv.,  c.  i.,  d.  R.  M.itr. 

w  Cfr.  Feiie,  De  Imp.  et  Disp.  Matr.  Lovanii,  1874 — In  the  Council  of  the 
Vatican  a  proposal  was  made  by  a  number  of  French  bishops  to  the  effect  that 
the  inipedimentum  clandestinitat'.s  be  somewhat  modified,  so  that  in  future  the 
presence  of  the  parochus  proprius  would  be  required  merely  for  the  lawfulness, 
r»ot  .ie  validity,  of  marriages,  and  that  marriages  contracted  before  any  priest 
•'ft  d  be  valid  ^Martin,  Arbeiten,  p.  103  ;  Doc.,  p.  157). 

Philips,  Lehrb.,  p.  618.  ]09  Feije,  1.  c.,  n.  232.  ll°  Ib.,  -a   23* 


of  Parish  Priests.  459 

in  the  United  States.111  If  the  parties  belong  to  two  dif 
ferent  parishes,  the  proclamations  must  be  made  in  both.  A 
pastor  with  us,  therefore,  who  omits  the  proclamations  with 
out  grave  reasons,  is  guilty  of  mortal  sin.  (b)  To  bless  (bene- 
dictio  mtptialis)  and  assist  at  the  marriage,  (c]  To  receive 
the  offering  usually  made  by  those  who  are  married,  even 
though  another  priest  has  been  deputed  by  him  to  solem 
nize  the  marriage.112 

659.  Rights  and  Duties  of  Rectors  in  the  United  States  re 
specting  Marriages.— It  is  certain  that  the  Tridentine  decree 
Tametsi  is  not  promulgated  or  observed  in  most  of  the  dio 
ceses  throughout  this  country  ;113  wherefore  marriages  with 
us,  except,  of  course,  where  the  decree  Tametsi  obtains,  con 
tracted  by  the  sole  consent  of  the  parties,  without  the  pres 
ence  of  the  rector  or  any  other  priest  or  witnesses,  are 
valid,  though  illicit.  The  right  to  assist  at  marriages 
and  to  impart  the  benedictio  nuptialis  belongs  always  to  the 
rector  of  the  contracting  'parties.  Hence  rectors  with  us 
are  strictly  forbidden  to  unite  in  marriage  parties  belonging 
to  another  diocese  or  parish.'14  And  if  a  pastor,  in  case  of 
necessity,  marries  outside  parties,  he  should  remit  the  per 
quisites  to  the  respective  pastor  of  the  parties.  Acco-rding 
to  the  Boston  statutes,  this  is  to  be  done  ex  titnlo  justitiae. 

\£J~  Q.  In  what  parts  of  the  United  States  does  the 
decree  Tametsi  obtain  ? 

A.  We  premise:  The  decree  Tametsi  may  become  obli 
gatory  in  a  place  in  two  ways — namely,  either  by  a  formal 
or  by  a  virtual  promulgation.  By  the  formal  promulgation 
is  understood  that  which  is  laid  down  in  the  Council  of 
Trent  (sess.  xxiv.,  c.  i.,  De  Ref.).  By  virtual  promulgation 
is  meant  the  very  fact  of  the  observance  of  the  decree  in  a 
place  where  it  has  not  been  actually  published.  Conse- 

111  Cone.  PI.  Bait.  II.,  n.  332,  333.  "*  Bouix.  1.  c..  p.  464. 

118  Cone.  PL  Bait.  IL,  n.  340.  m  Cone.  PL  Bait.  II.,  n.  117. 


460  The  Rights  and  Duties 

quently  the  decree  becomes  binding  not  only  where  it  has 
been  formally  published,  but  also  where  it  is  being  observed, 
without  having  been  promulgated  (cf.  Konings,  n.  1605  J 
Sabetti,  n.  911). 

We  now  answer:  We  have  said  that  the  decree  in  ques 
tion  is  not  in  force  in  most  of  our  dioceses  ;  for  in  some  it  is 
in  force.  Prior  to  the  Third  Plenary  Council  of  Baltimore, 
held  in  November,  1884,  there  was  considerable  doubt  and 
uncertainty  as  to  where  the  decree  did  and  where  it  did  not 
obtain.  The  Third  Plenary  Council,  at  the  request  of  the 
Holy  See,  carefully  investigated  the  whole  matter,  and  came 
to  the  following  conclusion  : 

I.  The  decree  Tametsi  (C.  Trid.,  sess.  xxiv.,  c.  i.,  De  Ref.) 
does  not  obtain  in  the  following  ecclesiastical  provinces:    i, 
Baltimore  ;    2.  Philadelphia ;    3.   New  York ;   4.   Boston  ;    5. 
Oregon;  6.  Milwaukee;  7.  Cincinnati,  save  in  the  diocese  of 
Vincennes ;  8.  St.  Louis,  except  in  the  city  of  St.  Louis  itself 
and  several   other   places   of   the  same   archdiocese   given 
below;  9.  Chicago,  except  in  some  places  of  the  diocese  of 
Alton  to  be  mentioned  presently. 

II.  The  decree  Tametsi  is  considered  as  being  in  force  in 
the  rest  of  the  United  States — namely,  i,  in  the  entire  prov 
ince  of  New  Orleans;  2,  in  the  province  of  San  Francisco, 
together  with  the  Territory  of  Utah,  save  that  part  of  the 
Territory  of  Utah  which  lies  east  of  the  Colorado  River;   i 

-'  "  !_/     ' 

in  the  province  of  Santa  Fe,  save  the  northern  part  of  Colo 
rado ;  4,  in  the  diocese  of  Vincennes;  5,  in  the  following 
places  of  the  archdiocese  of  St.  Louis — in  the  city  of  St. 
Louis,  and  in  the  places  called  St.  Gene vieve,  Florissant,  and 
St.  Charles;  6,  in  the  places  called  Kaskaskia,  Cahokia, 
French  Village,  and  Prairie  du  Rocher,  all  four  in  the  dio 
cese  of  Alton.  See  the  Third  Plenary  Council  of  Baltimore, 
p.  cvii,  which  also  enumerates  the  places,  with  us,  to  which 
the  Declaratio  of  Pope  Benedict  XIV.,  issued  for  Holland,  in 
1/41,  has  been  extended. 


of  Parish  Priests.  461 

660.  How  should  pastors,  especially  in  the  United  States, 
proceed  when  strangers  (peregrini}  and  wanderers  (vagi)  pre 
sent  themselves  for  marriage?  I.  Where  the  universal  law  of 
the  Church  on  this  head  can  be  observed,  a  certificate  de 
statu  libero  of  the  parties  wishing  to  get  married  should  be 
procured  from  the  ordinary  to  whose  diocese  they  formerly 
belonged.  This  certificate  should  be  attested  both  by  the 
above  ordinary  and  the  ordinary  of  the  pastor  before  whom 
the  parties  wish  to  get  married.1*  A  pastor,  therefore,  to 
whom  vagrants  or  strangers  present  themselves  for  marriage 
must  refer  the  matter  to  his  bishop,  whose  duty  it  is  to  pro 
cure  the  necessary  certificate.1-'  A  neglect  of  these  pre 
cautionary  measures  would  not,  however,  annul  the  mar 
riage.  2.  In  the  United  States  the  law  prescribing  the 
above  mode  of  procedure  is,  per  se,  binding.117  Hence,  it 
should,  wherever  feasible,  be  carried  into  effect.  In  most 
cases,  however,  it  can  scarcely  be  observed ;  for,  with  us,  no 
small  number  of  strangers  presenting  themselves  for  mar 
riage  have  come  from  nearly  all  parts  of  the  globe,  even  the 
most  distant,  or  are  constantly  moving  from  one  State  to 
another,  thus  making  it  almost  impossible  to  procure  from 
their  former  ordinary  the  above  certificate  based  upon  the 
testimony  of  competent  witnesses.118  Hence,  there  are 
scarcely  any  other  means,  with  us,  of  ascertaining  the  status 
liber  (i.e.,  the  absence  of  any  annulling  impediment,  especial 
ly  of  the  impedimentum  ligaminis}  of  strangers  than,  I,  their 
own  sworn  affirmation  ;  2,  the  testimony  of  others  who  know 
them,  or  of  their  former  pastor  in  another  (i.e.,  neighboring) 
diocese.119  A  pastor,  therefore,  with  us,  before  solemnizing 
the  marriage  of  such  parties,  should  assure  himself  that  they 
are  in  statu  libero — i.e.,  not  actually  married  or  under  any  an- 

116  Instr.  S.  Off.  in  1670  and  1827.  "•  Feije,  1.  c.,  n.  254,  25$ 

117  Cfr.  Feije,  1.  c.,  n.  258. 

118  Kenr.,  tr.  xxi.,  n.  193  ;  cfr.  Heiss,  p.  181.    Monach.,  1861. 
u"  Cfr.  Feije,  1.  c.,  n.  261. 


;62  The  Rights  and  Duties 

nulling1  impediment"*— either  by  making  the  parties  them 
selves  take  an  oath  to  that  effect,  or  by  enquiring  of  parties 
who  know  them,  or  by  writing  for  information  to  their 
former  pastor,  according  as  the  case  or  circumstances 
admit  of  one  or  more,  of  this  or  that  one,  of  these  evi 
dences.  Where  any  doubt  still  remains,  the  bishop  should 
be  consulted.  Kenrick  1S3  holds  that  a  priest,  in  the  United 
States  who  marries  parties  actually  belonging  to  other 
parishes  is,  ipso  jure,  suspended  (ab  officio  only,  not  a  bene- 
ficio™},  and  remains  so  until  absolved  by  the  ordinary  of 
that  pastor  who  ought  to  have  been  present  at  the  marriage. 
According  to  Feije,'"  however,  the  suspensio  just  mentioned 
is  incurred  only  in  places  where  the  decree  Tametsi  is  pro 
mulgated,  and  therefore  not — at  least,  de  jure  commune — in 
most  dioceses  of  this  country.  The  right  to  administer  Ex 
treme  Unction  and  the  Viaticum  to  parishioners  is  reserved 
to  the  parish  priest  in  such  manner  that  other  priests  can 
not,  except  in  case  of  necessity,  licitiy  confer  these  sacra 
ments  without  the  pastor's  or  bishop's  permission.  Strangers 
may  receive  both  these  sacraments  from  the  priests  of  the 
place  where  they  lie  ill. 

|  3.  Rights  of  Parish  Priests  relative  to  Funerals — Customs  in 
the  United  States. 

661.  The  rights  on  this  head  may  be  reduced  chiefly  to  two 
—namely,  the  right,  i ,  to  bury  or  have  a  burying-ground  (jus 
fepeliendi] ;  2,  to  receive  certain  emoluments  or  burial  dues 
'Jura  funerarid).  I.  Right  to  Perform  the  Burial.  —  The 
parish  priest  has,  de  jure  commune,  the  right  to  demand  that, 
is  a  rule,  his  parishioners  be  buried  in  the  parish  ceme 
tery.1"  We  say,  as  a  rule ;  for  the  following  persons  can  be 
buried  out  of  their  parish  cemetery:  i.  Those  who  have  se 
lected  their  place  of  burial  elsewher"  Now,  all  persons, 

•"  Cfr.  Feije,  1.  c.,  n.  256,  259. 

"'  L.  c.  1M  Ib.,  1.  c.,  n.  283.  w  L  c.  »  Phillips,  i.  c.,  p.  725 


of  Parish  Priests.  463 

except  impuberes  and  religious,1"  are  perfectly  at  liberty  to 
choose  their  place  of  interment  in  any  Catholic  cemetery™ — 
i.e.,  not  only  in  cemeteries  attached  to  parochial  churches, 
but  also  in  such  as  are  annexed  to  non-parochial  churches,  col 
leges,  and  other  institutions.  For,  although  parish  churches 
alone  can,  de  jure  or  dinar  to,  have  cemeteries,  yet  any  non- 
parochial  church,  college,  etc.,  may  be  authorized  by  the 
bishop  to  have  a  cemetery.  Religious  communities  are  em 
powered  by  the  jus  com.  to  have  cemeteries.  2.  Those  who 
have  a  family  lot  (sepulcrum  gentilitium,  sepulcrum  majorum)  in 
another  Catholic  cemetery  ;  m  these  not  only  can,  but  should, 
be  buried  in  such  lot.  In  the  United  States  Catholics  may 
sometimes  be  buried  in  their  family  lots,  even  though  situate 
in  sectarian  or  profane  cemeteries.  Thus,  a  deceased  con 
vert  may  be  interred  in  a  lot  owned  by  his  non- Catholic 
relatives  and  situate  in  a  sectarian  or  profane  cemetery. 
The  same  applies  to  those  deceased  persons  whose  relatives, 
though  Catholic,  (a)  have,  in  good  faith,  purchased  a  lot  in  a 
non-Catholic  cemetery,  or  (b)  own  one  in  such  cemetery 
from  the  year  i853.n8  The  Third  Plenary  Council  of  Balti 
more  (n.  317,  318)  enacts  that  in  all  these  cases,  where 
the  burial  takes  place  in  a  non-Catholic  cemetery  (a),  the 
funeral  services  of  the  Church  can  be  performed  by  the  rector, 
and  that  either  in  the  church  or  at  the  house,  unless  the 
bishop  orders  the  contrary  ;  (b]  and  that  the  grave,  in  the 
case,  should  be  blessed. 

662. — II.  Right  of  Receiving  Emoluments. — Funeral  dues 
are  of  two  kinds,  according  as  they  are  given  to  pastors 
(a)  for  performing  the  funeral  rites,  or  (b)  for  the  grave  or 
lot  (locus  sepulturae,  sepultura,  fundus}.  I.  Dues  for  Funeral 
Services. — It  is  certain  that  nothing  can  be  demanded  from 
the  poor,  nor,  as  a  rule,  even  from  others,  except  for  extraor 
dinary  funeral  services,  such  as  High  Mass  de  requiem.  We 

125  Religious  should  be  buried  in  the  community  graveyard. 

126  Laics,  however,  cannot  select  their  place  of  burial  in  the  cemeteries  of 
nuns,  except  by  special  leave  from  Rome  (Craiss.,  n.  1396). 

121  Walter,  §  320.  lis  Cone.  PI.  Bait.  II.,  n.  392. 


464  The  RigJits  and  Duties 

say,  as  a  rule ;  for  where  it  is  customary,  pastors  may  re 
ceive — nay,  even  demand,  from  persons  able  to  pay — the 
usual  dues,  even  for  performing  the  ordinary  funeral  ser 
vices,  as  given  in  the  Ritual — i.e.,  without  a  Mass,  etc.131  In 
the  United  States  pastors  do  not,  as  a  rule,  receive  anything 
for  reciting  the  ordinary  funeral  services  of  the  Ritual ;  they 
are,  however,  liberally  compensated  for  "  extraordinarv  fune 
ral  services,"  such  as  solemn  Masses  for  the  dead.  2.  Dues 
for  Place  of  Interment.  —  According  to  the  jus  commune,  it  is 
forbidden,  as  a  rule,  to  charge,  or  even  receive,132  anything 
for  graves,  except  where  the  cemetery  is  not  yet  blessed. 
We  say,  as  a  rule ;  for  when  graves  are  located  in  a  more 
desirable  part  of  the  cemetery,  it  is  allowed  to  charge  some 
thing  for  them,  though  only  on  account  of  their  choice  loca 
tion  (ratione  Jionorabilioris  situs,  scu  dignioris  loci).  From  this 
it  is  evident  that  the  practice  in  the  United  States  of  making 
the  faithful  pay  for  single  graves,133  no  matter  in  what  part 
of  the  cemetery  they  may  be  located,  is  scarcely  in  harmony 
with  the  universal  law  of  the  Church.  The  necessity  of  pay 
ing  for  cemeteries  and  keeping  them  in  a  proper  condition 
would  seem  to  somewhat  justify  the  custom.  According  to 
Konings,134  all  difficulty  will  be  obviated  either  by  asking  for 
payment  of  the  grave  only  after  the  interment,  or,  what 
seems  better  (as  people  seldom  pay  after  the  interment),  by 
setting  apart  in  rach  cemetery  a  special  place  for  the  poor 
and  those  who  do  not  wish  to  pay  ;  thus,  the  remainder  of 
the  cemetery  becomes  at  once  a  more  eligible  site  for  graves, 
which,  consequently,  can  be  lawfully  sold,  though  not  abso 
lutely.135  Where  deceased  persons  in  the  United  States  are 

131  Craiss.,  n.  1426;  cf.  Bouix,  1.  c.,  p.  486. 

132  Except  where  money  is  -voluntarily  given.     Ferraris,  1.  c.,  n.  156. 

"3  We  say,  single  graves :   for  it  would   seem  that,   practically  speaking, 
«gular  charges  can  be  made  for  family  lots  (sepulcra  gentilitia) 
134  N.  356,  (4)  ;  cf.  Kenr.,  tr.  xii.,  n.  69. 

m  The  faithful,  by  purchasing  graves  or  family  lots,   obtain  merely  the 
right  to  be  buried  there,  to  the  exclusion  of  other  parties  iFerr.,  1.  c  ,  n.  147,  148). 


of  Parish  Priests.  465 

buried  either  outside  their  parish  or  in  a  different  place  from 
that  where  they  died,  the  funeral  services  are  sometimes 
held  in  both  places — i.e.,  in  the  place  of  death  and  also  in 
the  place  or  church  of  interment.  This  is  not  unlawful, 
though  it  is  sufficient  to  hold  these  services  in  the  church 
whence  the  burial  takes  place.138 

§  4.    Rights  of  Parish  Priests  respecting  Parochial  Function* 
and  Dispensations. 

663. — I.  Parochial  Functions. — Besides  the  administration 
of  certain  sacraments,  there  are  other  ecclesiastical  functions 
performable  by  pastors  only  or  with  their  consent.  They  are 
called  jura  parochi  privativa,  functiones  mere  parochiales,  in 
contradistinction  to  the  jura  parochi  cumulativa,  functiones 
mere  parochiales,  or  those  functions  which  rectors,  as  such, 
have  indeed  the  right  to  perform,  but  not  to  the  exclusion 
of  other  persons.  The  churching  of  women,  for  instance,  is 
an  exclusive  right  of  the  rector,  where  custom  or  diocesan 
statutes  so  ordain,  while  the  celebration  of  solemn  Mass  on 
Holy  Thursday  belongs  also  to  others.137  II.  Power  of  grant 
ing  Dispensations. — It  is  the  common  opinion  that,  by  virtue 
of  general  custom,  parish  priests  can,  for  just  cause  dispense 
their  parishioners  individually,  though  not  collectively,  from 
the  precept  of  fast.138  They  can  also  give  them  permission, 
though  only  for  a  time  and  for  particular  cases,  to  perform 
servile  labor  on  holidays  of  obligation.  As  a  rule,  persons 
obliged  to  work  publicly  on  holidays,  even  when  there  arc 
undoubted  reasons  for  so  doing,  should  first  obtain  permis- 

""  Craiss.,  n.  1414,  1430.  m  Bouix,  1.  c.,  p.  490  ;  Phillips,  I.  c.,  p.  345. 

188  In  the  Vatican  Council  a  proposal  was  made  by  a  number  of  French 
bishops,  the  import  of  which  was  that  the  present  ecclesiastical  laws  respect 
ing  fasts  and  abstinence  (the  observance  of  which,  it  was  alleged,  was  at  pre 
sent  so  different  not  only  in  different  countries,  but  also  in  different  provinces 
— nay,  in  the  several  dioceses  of  the  same  province)  be  made  more  uniform  ind 
us  lenient  as  possible  (Martin,  Arb.,  p.  ro8  ;  Doc.,  p  161}. 


466  The  Rights  and  Duties 

sion  from  the  pastor  or  bishop."8  Observations. — i.  Our 
bishops  may — in  fact,  usually  do — by  virtue  of  pontifical  in- 
dult,  give  their  priests  power  dispensandi  quando  expedire 
videbitur,  su^er  esu  carnium,  ovorum  et  lacticiniorum  tempore 
jejuniorum  et  quadragesimae.1™  2.  The  faithful  with  us,  whet 
compelled  to  labor  on  holidays,  or  even  on  Sundays,  do  not, 
as  a  rule,  ask  permission  from  the  priest,  though  they  should 
be  admonished  to  do  so. 


ART.  III. 
Duties  of  Rectors,  especially  in  the  United  States. 

664. — I.  Profession  of  Faith. — Irremovable  parish  priests 
are  bound,141  within  two  months  at  the  latest  from  the  day 
of  their  obtaining  possession  of  their  parishes,  to  make  a 
public  profession  of  their  faith  (profcssio  jidei]  in  the  pre 
sence  of  the  bishop,  and  to  take  the  oath  of  obedience  to 
the  Roman  Pontiff,  according  to  the  formula  laid  down  by 
Pius  IV.142  We  said,  irremovable  parish  priests.  Now,  accord 
ing  to  some  canonists,  removable  parish  priests  are  also,  jure 
com.,  obliged  to  make  this  profession ; u3  according  to  others 
they  are  not.144  It  seems  certain,  therefore,  that  those  rectors, 
at  least  in  the  United  States,  who  are  irremovable,  are  bound 
to  make  the  above  profession  of  faith. 

665. — II.  Duty  of  Residence. — I.  Parish  priests  are  bound 
—at  least,  jure  ecclesiastico,  and  that  sub  gravi — to  reside  in 
their  parishes.  We  say,  at  least,  etc.  ;  for  whether  they  are 
obligated  also  jure  divino  is  a  disputed  question.  II.  What 
parish  priests  are  obliged  to  residence  ?  i.  Both  removable 
and  irremovable  pastors  ;  2,  administrators  of  parishes — that 
is,  priests  placed  in  charge  of  vacant  parishes  until  new  pas- 

139  Craiss.,  n.  1437.  14°  Fac.,  form,  i.,  n.  27. 

141  Cone.  Trid.,  sess.  xxiv.,  c.  xii.,  d.  R.  14a  Bouix,  1.  c.,  p.  513 

141  De  Camillis,  Inst.  T-  C.,  t.  iii.,  p.  248.  144  Craiss.,  n.  1446. 


of  Parish  Priests.  4g- 

tors  are  appointed ;  3,  assistants  (coadjutor es)  given  to  pastors 
who  are  unable,  by  reason  of  sickness  or  old  age,  to  dis 
charge  their  duties ;  4,  other  assistants  are  not  bound  by  the 
law  of  residence,  though  they  should  not  be  absent  without 
the  permission  of  the  pastor  or  bishop.  III.  For  certain 
causes  rectors  may,  at  times,  be  absent  from  their  parishes. 
Now,  what  are  these  causes?  i.  For  an  absence  of  more 
than  two  months  a  causa  gravis  is  required,  such  as  ill-health, 
Christiana  cantas^  etc.  2.  For  an  absence  of  only  two 
months,  whether  continuous  or  interrupted,  any  reasonable 
cause  {causa  aequd] — v.g.\  the  need  of  recreation— is  suffi 
cient.  IV.  Besides  a  legitimate  cause,  the  permission  of 
the  bishop,  in  writing,  is  necessary,  and  that  even  for  an  ab 
sence  of  one  week.  If,  however,  a  pastor  is  obliged  to 
absent  himself  without  having  time  to  ask  for  permission,  he 
may  go  away,  provided  he  leave  some  approved  priest  in 
his  place  or  request  a  neighboring  pastor  to  attend  to  sick- 
calls  and  the  like,  and  inform  the  bishop,  as  soon  as  possible, 
of  his  absence.145  V.  According  to  St.  Liguori,  parish 
priests  teaching  theology,  Sacred  Scripture,  or  canon  law  in 
public  institutions — v.g.,  in  diocesan  seminaries — may  proba 
bly  be  excused  from  the  law  of  residence,  as  such  teaching 
redounds  to  the  good  of  the  whole  diocese— nay,  of  the  en 
tire  Church.  The  duty  of  residence,  which  is  particularly 
urgent  during  contagious  diseases,  comprises  not  only  the 
obligation  of  physically  dwelling  in  the  parish,  but  also  that 
of  laboring  for  its  good.  Hence,  a  pastor  cannot  leave  all 
the  parochial  duties  in  the  hands  of  his  assistants,  but  must 
personally,  unless  lawfully  hindered,  perform  some,  especial 
ly,  of  the  more  important  ones,  such  as  preaching,  adminis 
tering  the  sacraments.147  He  may,  however,  require  his  as- 

"  Supra,  n.  545.  What  has  been  said  (supra,  n.  544-549)  concerning  the 
residence  of  bishops  applies  in  most  particulars  also  to  the  residence  of"  pas. 
tors  (Bouix,  1.  c.,  p.  518).  '«•  Craiss.,  n.  1461,  1462. 

147  Bouix,  1.  c.,  p.  542. 


468  The  Rights  and  Duties 

sistants  to  attend  to  the  more  arduous  duties,  such  as  sick, 
calls  at  night,  attending  to  out-missions.  As  a  rule,  pasters 
should  reside  within  the  limits  of  their  parishes — nay,  in  the 
parochial  house,  if  there  be  one.  VI.  Penalties  of  Unlawful 
Absence. — Pastors  absent  more  than  two  months  in  the  year 
without  sufficient  cause  forfeit,  ipso  facto,"*  their  salary,  in 
proportion  to  the  time  of  their  absence.  According  to  St. 
Liguori,  however,  they  forfeit  only  a  part,  not  the  whole,  of 
their  salary  for  the  time  they  were  unlawfully  absent ;  for 
they  receive  their  income  not  merely  for  residing,  but  also 
for  saying  the  office  and  performing  other  duties.  VII. 
Residence  of  Rectors  in  the  United  States. — The  law  of  resi 
dence,  as  was  seen,  binds  not  only  irremovable  pastors,  but. 
in  general,  all  priests  having  charge  of  souls,  and  hence  also 
our  rectors.149  Diocesan  statutes,  with  us,  usually  require  that 
rectors  should,  if  possible,  obtain  the  bishop's  leave  when 
ever  they  are  to  be  absent  for  an  entire  week  at  a  time.160 

666. — III.  Obligation  of  offering  up  Mass  for  the  People  ;  of 
Preaching;  of  Catechising  the  Children;  and  of  taking  care  of 
the  Parochial  Schools. — I.  Obligation  of  Saying  Mass  for  the 
Parishioners. — Canonical  parish  priests  (secular  or  regular), 
even  though  amovibiles  ad  nutum,  vicars  (vicar  ii  cur  at  i}  of 
parochi  principals,  and  priests  (vicarii  temporales)  placed  in 
charge  of  vacant  canonical  parishes  until  a  new  rector  is  ap 
pointed,  are  bound  on  Sundays  and  holidays  of  obligation  to 
gratuitously  offer  up  the  sacrifice  of  the  Mass  for  their  peo 
ple.  This  obligation  attaches,  generally  speaking,  also  to 
parish  priests  in  Ireland  and  Canada,161  but  not  (except  in 
some  parts  of  California)  to  rectors  in  the  United  States.1" 

148  Hence,  they  cannot  in  conscience  draw  or  retain  such  salary,  but  mutt 
apply  it  to  the  church  or  the  poor  of  the  place. 

M*  Cone.  PI.  Bait.  II.,  n.  114  ;  Kenr.,  tr.  viii.,  n.  43. 

"*  Stat.  Dioec.  Nov.,  p.  13  ;  Dioec.  Boston.,  n.  217. 

Ul  C   Prov.  Quebec.  II.,  an.  1854;  ap.  Coll.  Lac.,  iii.,  p.  654. 

"*  Supra,  n.  654,  657. 


of  Parish  Priests.  469 

In  Ireland,  however,  bishops,  by  virtue  of  faculties  granted 
them  by  the  Holy  See,  Aug.  6,  1876,  for  ten  years,  can 
dispense  parish  priests  from  the  obligation  of  saying  Mass 
for  their  people  on  suppressed  holidays,  or  those  on  which  the 
faithful  are  no  longer  bound  to  hear  Mass.1"  We  may  here 
add  that  bishops  cannot  compel,  though  they  may  exhort, 
pastors  to  furnish  priests  wishing  to  say  Mass  in  their 
churches  with  those  things  which  are  necessary  for  the  cele 
bration,  such  as  altar-wine  and  the  like.164  II.  Duty  of 
Preaching. — Rectors,  even  when  they  are  not  canonically 
irremovable,  are  bound,  on  Sundays  and  solemn  feasts, 
either  personally  or,  if  lawfully  hindered,  by  others,  to 
preach  to  their  people.155  Sermons  should  be  brief  and 
plain — i.e.,  adapted  to  the  capacity  of  the  parishioners.  It  is 
the  common  opinion  that  rectors  who  do  not,  either  person 
ally  or  through  others,  preach  for  one  continuous  month,  or 
for  three  non-continuous  months,  in  the  year,  sin  grievous 
ly.158  Sometimes,  however,  rectors  may  omit  sermons  in 
order  to  make  up  for  them  at  a  more  opportune  time. 
Thus,  it  is  the  custom  in  some  parts  of  the  United  States  to 
discontinue  preaching  for  about  two  months  every  summer 
— namely,  in  July  and  August.  Whether  the  excessive  heat 
of  these  months  can  justify  the  above  practice  we  leave  to 
others  to  decide.  III.  Duty  of  Catechising  the  Children. — 
Pastors  should  also,  on  Sundays  and  festivals,  instruct  the 
children  in  the  rudiments  of  the  faith  (dactrina  Christiana}, 
or,  as  it  is  called  with  us,  in  the  catechism.  In  the  United 
States,  as  elsewhere,  this  is  done  usually  in  Sunday-schools 
(scholae  doctrinae  Christianae],  held,  as  a  rule,  every  Sunday 
afternoon  in  the  church  or  school-house.157  The  pastor,  if 
lor  just  cause  hindered  from  personally  holding  Sunday. 
school,  may  appoint  competent  persons  to  take  his  place. 

188  Syn.  PI.  Maynutiana.  n.  69,  187  ;  ib.  in  App.,  p.  300.       ***  Supra,  594  (2). 
"•  C.  Trid.,  sess.  v.,  c.  ii.,  d.  R.  «  Craiss.,  n.  1500. 

•"  Phillips,  1.  c.,  p.  347. 


470  The  Rights  and  Duties. 

in  this  country,  as  a  rule,  lay  persons,  male  and  female,  act 
as  Sunday-school  teachers.  Yet,  owing  to  the  difficulty  of 
obtaining  competent  and  painstaking  lay  teachers,  our  rec 
tors  are  exhorted  to  personally  hold,  or  at  least  superintend, 
Sunday-schools.  This  holds  true  especially  where  there  are 
no  parochial  day-schools.15'  Moreover,  children,  with  us, 
that  have  not  yet  made  their  first  holy  communion  should, 
at  stated  times  during  the  year  (v.g.y  during  the  Ember 
days),  be  instructed  by  the  pastor,  and  thus  prepared  either 
for  confession  or  for  their  first  holy  communion.11'9  IV. 
Duty  relative  to  Catholic  Day-ScJiools. — Experience  teaches 
that  the  public  or  comnion  schools  in  the  United  States, 
owing  to  their  very  system,  the  text-books  used,  and  the 
class  of  children  frequenting  them,  in  most  cases  endanger 
both  the  faith  and  morals  of  Catholic  children  sent  to 
them.160  If  possible,  therefore,  a  Catholic  parochial  day- 
school,  where  not  merely  secular  knowledge,  but  also  reli 
gious  instruction,  is  imparted  to  the  children,  should  be 


168  Cone.  PI.  Bait.  II.,  n.  435,  438  159  Cone.  PI.  Bait.  IL,  n.  442 

180  Ib.,  n.  426-430  ;  cfr.  Syll.,  prop.  48.  The  schema  (c.  xv.)  of  the  Council  of 
the  Vatican  "  De  Ecclesia"  proposed:  "Inter  sanctissimorum  jurium  viola- 
tiones,  quae  nostra  aetate  .  .  .  perpetrantur,  ilia  est  vel  maxi  ne  perniciosa 
qua  fraudulent!  homines  contendunt,  sc/iolas  omnes  directioni  at  urbitric  solius. 
potestaiis  laicae  subjiciendas  esse.  .  .  .  Quin  eo  usque  progress!  sunt,  ut  Ipsam 
Catlwiicam  religionem  a  publica  educatione  ar^ere,  atque  univtrsim  sikolas  nulliu* 
professionis  religiosae  \v.g.,  the  public  schools  in  the  United  States],  sed litte? et 
nas  tantummodo  esse  debere  dicant.  Contra  hujusmodi  sanae  doctrinae  morum- 
que  corruptelas,  ex  ipso  fine  Ecclesiae  ...  ah  omnibus  agnosccndum  est 
jus  et  officium,  quo  ipsa  (Ecclesia)  pervigilat,  ut  juventus  Catholica  in  primis 
vera  fide  et  sanctis  moribus  rite  instituatur.  .  .  .  Quare  declaramus  et  doce- 
mus,  jura  praedicta  atque  officia  ad  Ecclesiam  pertinere  "...  (Martin,  Doc., 
p.  47).  In  connection  with  this  schema  a  proposal  (postulatuni)  was  made  in 
the  Vati  an  Council  that  all  mixed  s^liools  (called  common  or  public  sch  oh  ID 
the  United  States),  without  exception,  should  be  declared  pernicious  and 
condemnable  by  the  Vatican  Council  (Martin,  Arb.,  p.  76;  Doc.,  p.  QO> 
Cfr.  Instructio  De  Schol.  Publ.  in  Feeder.  Stat.  Americae  Septentr.,  Nov.  2<* 
1875,  in  Append.,  p.  432. 


of  Parish  Priests.  471 

established  in  every  congregation.  The  pastor  should  fre 
quently  visit  it  and  see  that  it  is  efficiently  managed.161 

667. — IV.  Rig/tts  of  Rectors  respecting  the  Administration 
of  the  Temporalities  of  their  Congregations, — Church  property 
is,  both  by  ecclesiastical  and  divine  right,  exempt  from  the 
jurisdiction  of  the  civil  government.  Hence,  i,  laws  enact 
ed,  v.g.,  by  legislatures  in  the  United  States,  incapacitating 
Church  corporations  from  acquiring  more  than  a  certain 
specified  amount  of  property,  are  null  and  void.102  2. 
Church  property  should,  as  a  rule,  be  exempt  from  taxa 
tion.163  3.  Rulers  confiscating  such  property  as  belongs  to 
ecclesiastics  by  reason  of  their  churches  or  benefices  incur, 
ipso  facto,  excommunication,  reserved  at  present,  spcciali 
modo,  to  the  Pope,  according  to  the  C.  Ap.  Scdis  of  Pius 
IX.164  Civil  governments  may,  however,  obtain,  by  conces 
sion  of  the  Holy  See — v.g.,  by  concordats — a  certain  share 
tn  the  administration  of  Church  property. 

668.  What  can  or  should  a  rector  do  in  regard  to  tlie 
management  of  the  temporalities  of  his  congregation  ?  I.  He 
should  make  an  inventory  of  all  goods  belonging  to  the 
Church,  a  copy  of  which  should  be  sent  to  the  bishop  to  be 
filed  in  the  episcopal  archives ;  another  should  be  preserved 
among  the  records  of  the  parish.  According  to  the  C.  Ap. 
Sedis  of  Pius  IX.,  it  is,  generally  speaking,  forbidden,  under 
pain  of  excommunication  latae  sententiae™  to  alienate  (i.e.,  to 
sell,  mortgage,  lease  for  more  than  three  years,  etc.)  Church 
property,  movable  or  immovable 166 — or,  as  others  express  it, 
ecclesiastical  immovables  (bona  eccl.  immobilia)  and  valuable 
movables  (mobilia  pretiosd) I6:  —without  permission  from  the 
Holy  See.  We  say,  (a)  generally  speaking ;  for  ecclesiastical 

161  Cone.  PI.  Bait.  II.,  n.  431.  ">3  Cfr.  Konings,  n.  620,  621. 

141  Phillips,  1.  c.,  p.  431.  1M  Com.,  n.  64,  65  ;  Avanz.  (n),  pp.  82,  83. 

'"  Com  ,  n.  129, 130.    This  excommunication,  not  being  reserved,  is  absolv- 
by  any  ccnfessor.  169  Phillips,  1.  c.,  p.  481. 

Ferraris,  V.  Alienare,  art.  i.,  n.  3. 


472  The  Rights  and  Duties 

things  may  be  alienated  without  Papal  leave—  v.g.,  if  thev 
are  of  little  or  no  use,  if  recourse  to  Rome  is  difficult,  etc. 
We  say,  (b~)  of  considerable  value;  for  things,  both  movable 
and  immovable,  worth,  v.g.t  only  $25,  or,  according  to  some, 
$100,  may  be  alienated  by  leave  from  the  bishop.168    Whether 
the  above  law,  requiring  the  pontifical    permission  for  the 
alienation  of  Church  property,  has,  by  virtue  of  custom  to 
the  contrary,  ceased  to  be  obligatory  outside  of  Italy,  seems 
a  disputed  question. v>9     Does  it  obtain  in  the  United  States 
It  does,  with  regard  to  all  alienations  involving  a  sum  greater 
than  $5000."°    As,  however,  it.  would  be  difficult,  considering 
our  peculiar  circumstances,  to  have  recourse  to  the  Holy 
See  every  time  an  alienation  involving  more  than  $5000  were 
to  take  place,  the  Holy  See,  by  decree  dated  Sept.  25;  1885, 
granted  to  all  our  bishops,  for  ten  years  from  the  day  of  the 
promulgation  of  the   Third  Plenary  Council  of  Baltimore,  a 
dispensation  from  the  obligation  of  obtaining  the  Papal  per 
mission.     (Cone.  PI.  Bait.  Ill,,  p.  ciii.)     3.  Apart  from  these 
restrictions,  the  pastor  is  the  administrator  ex  officio  (admin 
istr.  natus)  of  the  property  of  his  congregation.     His  rights, 
however,  in  this  matter  are  always  subordinate  to  the  au 
thority  of  the  bishop,  to  whom  belongs,  as  the  Third  Plenary 
Council  of  Baltimore  (n.  272)  says,  the  "  tutela  et  superior  ad- 
ministratio  bonorum  dioecesanorum,"  and  whose  duty,  there 
fore,  it  is  to  see  that  in  each  church  and  ecclesiastical  or  pious 
establishment  of  his  diocese,  the  church  property  shall  be 
wisely  administered.     The  rector  must,  therefore,  give  in  a 
financial  statement  when  required  to  do  so,  and,  in  general^ 
observe  the  regulations  of  his  ordinary  concerning  the  ad 
ministration  of  Church  property,  so  long  as  they  do  not 
conflict  with  the  general  laws  of  the  Church  or  the  enact 
ments  of  the  Popes.171     The  Third  Plenary  Council  of  Balti. 
more  (n.  272)  enacts  that  all  rectors  in  the  United  States  shall 

168  Craiss.,  n.  1507,  2915.  J69  Craiss.,  n.  2922-2925. 

»°  C.  PI.  Bait.  III.,  n.  20.  wi  Bouix,  1.  c.,  p.  600. 


Rights  and  Duties  of  Parish  Priests.  473 

give  the  bishop  a  financial  statement  every  year.  II.  Can  the 
management  of  the  temporalities  of  parishes  be  committed  to  lay 
men — v.g.,  to  trustees,  as  in  tJie  United  States?  It  can,  pro 
vided  these  men  are  appointed  by  ecclesiastical  authority. 
Rectors  in  the  United  States  should  not  appoint  their  lay 
trustees  without  the  consent  of  the  bishop.172  Again,  apart 
from  the  ordinary  expenditures,  trustees  (aeditui,  matricu- 
larii,  procurator es,  magistri  fabricae],  with  us,  cannot,  for  any 
special  object,  make  outlays  exceeding-  $300  without  the 
written  permission  of  the  bishop.173  Moreover,  lay  trustees 
and  others,  with  us,  appropriating  Church  moneys  or  prop 
erty  to  their  own  uses174  incur,  ipso  facto,  excommunication 
simpliciter  reserved  to  the  Pope  according  to  the  C.  Ap. 
Sedis  of  Pius  IX. m  For  other  rights  and  duties  of  lay 
trustees ;  the  mode  of  their  appointment ;  their  qualifications, 
meetings,  etc.,  see  the  excellent  regulations  made  by  the 
Third  Plenary  Council  of  Baltimore,  n.  284-287. 

669. — V.  Several  otJicr  Duties  and  Rights  of  Rectors. — i.  The 
Council  of  Trent  requires  them  to  keep  two  registers:  one 
of  baptisms  (liber  baptismoruni),  the  other  of  marriages  (liber 
matrimonioruni)™  In  the  United  States,  as  in  most  other 
countries,  they  are  obliged,  moreover,  to  keep  a  record  of 
persons  confirmed,  and  of  interments  ; 177  the  Roman  Ritual 
also  exhorts  pastors  to  keep  a  liber  status  animarum — i.e.,  a 
register  containing  the  name  and  condition  of  each  parish 
ioner.  Moreover,  in  some  of  our  dioceses  bishops  require 
rectors  to  have  a  register  of  first  communicants.  2.  The 
Third  Plenary  Council  of  Baltimore  (n.  275)  also  obliges  our 
rectors  to  have  a  Day  Book  or  Journal  in  which  the  receipts 
and  expenses  of  the  mission  are  carefully  recorded  and  the 
assets  and  liabilities  accurately  noted. 

"»  Cone.  PI.  Bait.  II.,  n.  198.  "»  Ib.(  n.  201.  "4  Ib    n    IQ7 

"•  Avanz.  (34);  Konings,  n.  1740;  Com.,  n.  65  (20). 

«•  Phillips,  1.  c.,  p.  347.  »'  Cone.  PI.  Bait.  II.,  n.  222. 


CHAPTER  X. 

"  >T  ASSISTANT  PRIESTS,   CHAPLAINS,   AND   CONFESSORS. 

ART.  I. 
Of  Assistants  of  Rectors,  and  of  Chaplains. 

670. — I.  Assistants  or  vicegerents  (vicar  li,  cur  at  i,  cooper  a* 
tores,  coadjutores,  adjutores]  of  rectors  are  chiefly  of  four 
kinds:  i.  Those  who  are  deputed  to  take  charge  of 'vacant 
parishes  until  a  new  rector  is  appointed.  They  are  usually 
styled  oeconomi  or  administrator es.  A  parish,  upon  falling 
vacant,  whether  by  the  death,  removal,  or  resignation  of  its 
pastor,  should,  pending  the  appointment  of  a  new  rector,  be 
placed,  as  soon  as  possible,  in  charge  of  a  vicar.1  In  the 
United  States,  as  elsewhere,  the  appointment  of  these  vicars 
belongs  to  the  bishop.  2.  Those  who  have  charge  of  a 
parish  during  the  absence  of  its  rector  ;  with  us,  as  else 
where,  they  are  usually  chosen  by  the  pastor  (before  he 
goes  away),  with  the  consent  of  the  bishop.  Their  salary 
is  determined  by  the  bishop.  3.  Assistant  priests  proper 
(vicar ii  parocJiialcs],  or  those  priests  who  are  appointed 
to  assist  those  pastors  who  (a]  actually  reside  and  exercise 
the  cnra  in  their  parishes,  and  (U]  whose  parishes  are  too 
large  to  be  attended  to  by  one  priest.  These  alone  can, 
strictly  speaking,  be  called  assistants,  the  two  foregoing 
kinds  being  rather  vicegerents  than  assistants.  DC  jure 
communi,  the  appointment  of  these  assistants  belongs  to  pas 
tors,  not  to  bishops.2  We  say,  de  jure  communi ;  for  in 

'  Bouix,  De  Paroch.,  p.  630.  "  Ib.,  p.  434. 

474 


On  Assistant  Priests,  Chaplains,  and  Confessors.    475 

many  countries — v.g.,  in  Canada,3  Ireland,4  the  United  States, 
etc. — they  are  now  appointed  by  the  bishops,  though  fre 
quently  at  the  suggestion  of  the  rector  to  whom  they  are 
assigned.  The  bishop  also  determines  their  salary  and 
changes  them.  Assistants  have,  by  their  very  appointment 
as  assistants,  power  to  administer  all  the  sacraments  (excepv, 
of  course,  those  of  confirmation  and  order),  unless  their  facul 
ties  are  expressly  limited.6  4.  Those  assistants  (coadjutores) 
whom  the  bishop  associates  with  rectors  who,  though  other 
wise  of  irreproachable  character,  are  incapable  of  properly 
governing  their  parishes,  either  because  they  are  too  illite 
rate  or  afflicted  with  continual  infirmity,  bodily  or  mental. 
In  this  case  the  appointment  of  the  assistants  pertains,  jure 
covi.,  to  the  bishop,  not  to  the  rector.6 

671. — II.  CJiaplains  (capellani}  are  priests  attached  to 
hospitals,  prisons,  and  the  like  for  the  purpose  of  exercising 
the  sacred  ministry.7  Their  peculiar  rights  and  duties  are 
usually  determined  by  the  ordinary  according  to  the  re 
quirements  of  the  institutions  or  places  with  which  they  are 
connected.  There  are  various  kinds  of  chaplains — namely, 
chaplains  (a)  of  nuns  or  convents,  (£)  of  colleges  or  other 
similar  institutions,  (c]  of  hospitals,  asylums,  protectories, 
prisons,  and  the  like,  (d)  of  soldiers,  etc.  The  Provincial 
Council  of  Dublin  requires  chaplains  of  soldiers,  prisons, 
and  other  public  institutions,  at  stated  times,  to  inform  the 
bishop  of  the  moral  and  religious  condition  of  these  institu 
tions.8  I.  Chaplains  of  nuns  or  sisters  (capcllani  monialium) 
should  be  of  mature  age — i.e.,  about  forty  years  of  age.  II. 

3  C.  Queb.  II.,  an.  1854  ;  ap.  Coll.  Lac.,  iii.,  657. 

*  Syn.  PI.  apud  Maynooth,  arm.  1875,  n.  217.  6  Craiss.,  n.  1519. 

"  A  number  of  German  bishops  proposed,  at  the  Vatican  Council,  that,  in  re 
gard  to  pastors  incapable  of  governing  their  parishes,  bishops  might  be 
allowed  not  only  to  give  them  assistants  with  powers  of  administration,  but 
also  to  transfer  them  against  their  will  or  retire  them  upon  a  suitable  pension 
(Martin,  Doc.,  p.  172).  T  Devoti,  1.  i.,  tit.  iii.,  n.  93. 

1  C.  Prov.  Dublin.,  an.  1853,  ap.  Coll.  Lac.,  iii.,  p   805. 


476  On  Assistant  Priests, 

Military  chaplains  (capellani  milituni),  in  order  to  be  able  to 
administer  the  sacraments  of  penance,  Holy  Eucharist,  and 
Extreme  Unction  to  soldiers  in  garrison  or  stationary  camps 
(v.g-,  to  soldiers  in  the  United  States  stationed  in  forts),  must, 
as  a  rule,  be  approved  by  the  bishop  of  the  place  where  the 
quarters  are  situate,  unless  they  have  special  faculties  from 
the  Holy  See.9  We  say,  in  garrison ;  for  chaplains  of  sol 
diers  mobilized  or  actually  engaged  in  military  expeditions 
can  administer  the  above  sacraments,10  and  also — at  least, 
where  the  Tridentine  decree  Tametsi  is  not  published — the 
sacrament  of  matrimony,  without  the  approbation  of  the. 
bishops  of  the  places  where  they  may  be.  If  soldiers  in 
stationary  camps  have  no  military  chaplain,  they  are  to  be 
considered  vagi,  and,  consequently,  fall  under  the  authority 
of  the  pastor  of  the  place  where  they  are.  III.  As  regards 
chaplains  of  ships  (capellani  navimit),  we  subjoin  the  following 
decision11  of  the  Holy  See!  Dubinin:  "An  sacerdotes  iter 
transmarinum  suscepturi,  facultate  ob  ordinario  loci  unde 
naves  solvunt,  donari  possunt,  ad  excipiendas  fidelium  con- 
fessiones,  tempore  navigations  ?  "  Responsum  :  "  Posse  sacer 
dotes  iter  arripientes  ab  ordinariis  locorum,  unde  naves 
solvunt  adprobari,  ita  ut  itinere  perdurante,  fidelium,  secum 
navigantium  confessiones  valide  ac  licite  excipere  valeant, 
usque  dum  perveniant  ad  locum,  ubi  alius  superior  ecclesi- 
asticus  jurisdictione  pollens  constitutus  sit.'"  From  this 
decision  it  follows :  I.  It  is  certain,  at  present,  that  priests — 
for  instance,  in  the  United  States — embarking  for  Europe 
may  be  approved  for  confessions  by  the  ordinary  of  the  port 
whence  the  vessel  starts  or  weighs  anchor,  and  that,  by 
virtue  of  this  approbation,  they  may,  even  out  of  the  case  of 
necessity,  administer  the  sacrament  of  penance  to  their 

*  Craiss.,  n.  1544. 

10  Konings,  n.  1394,  q.  15  ;  cfr.  Brief  of  Pius  IX.,  July  6,  1875,  ap.  Analecta 
f.  P.,  p.  1136  (14  ser.) 

11  C.  S.  O.,  Marcn  17,  1869.  "  Ap.  Past.  Blatt.  Si.  Louis,  Sept.,  1876. 


Chaplains,  and  Confessors.  477 

fellow-passengers  during  the  voyage — i.e.,  until  they  land  at 
a  port  where  another  ordinary  resides.13  2.  Where  a  vessel 
or  ocean  steamer  puts  to  sea  from  several  ports — v.g.,  first 
from  New  York,  then  from  Boston — priests  going  aboard  at 
New  York  may  be  approved  by  the  ordinary  of  New  York, 
and  priests  embarking  in  the  same  vessel  at  Boston  by  the 
ordinary  of  Boston. 

ART.  II. 
Of  Confessors. 

§  i.    Of  Confessors  who  are  neither  Canonical  Parish  Priests, 
nor  Vicars-General,  nor  Regulars. 

672. — I.  Necessity  of  Approbation,— Not  only  the  potestas, 
ordinis,  but  also  \he  pstestas  jurisdictionis,  is  required  in  order 
that  one  may  valiclly  impart  sacramental  absolution.  Hence, 
the  minister  of  the  sacrament  of  penance  must  (a)  be  a  priest, 
(&)  and  have  permission  to  hear  confessions.14  Canonical 
parish  priests  receive  this  jurisdiction  by  their  very  appoint 
ment  as  pastors ;  other  priests  must  have  the  permission  or 
approbation  of  the  bishop.  Strictly  speaking,  approbation 
(approbatio)  differs  from  the  giving  of  faculties'  (collatio  juris- 
dictionis) ;  the  former  is  merely  an  authentic  declaration  by 
the  ordinary  that  a  priest  is  qualified  to  hear  confessions  ; 
the  latter  confers  the  power  itself  in  actn  to  do  so.  Still,  as 
at  present  both  are  usually  given  simultaneously  to  secular 
priests,  the  two  terms  have  come  to  be  used  synonymously. 
II.  By  whom  is  the  approbation  or  faculty  to  hear  confessions  to 
be  given  f  By  the  bishop  of  the  place  where  the  confessions 
are  heard.  Hence,  priests  approved  for  one  diocese  cannot 
hear  in  another  by  whose  bishop  they  are  not  approved.  The 
same  holds  of  regular  confessors,  so  far  as  their  hearing  secular 
persons  (lay  or  clerical)  is  concerned.  By  the  bishop  we  here 

11  Cfr.  Craiss.,  n.  15  JQ.  M  Supra,  n    224. 


4.-s  On  Assistant  Priests, 

mean  also  vicars-general,  chapters,  vicars-capitular  (with  us, 
administrators),  and  prelates  having  jurisdictio  episcopalis. 
The  bishop,  even  while  out  of  his  diocese,  may  give  priests 
permission  to  hear  in  his  diocese.  III.  Withdrawal,  etc.,  of 
Parities. — I.  The  bishop  cannot  lawfully  (a)  refuse,  (£)  or 
give  but  limited  faculties,  (r)  or  withdraw  them,  whether 
limited  or  unlimited,  except  for  just  cause.  We  said,  law 
fully;  for  the  bishop  may,  even  without  cause,  validly  re 
fuse,  restrict,  or  withdraw  faculties.16  2.  Faculties  conceded 
by  the  bishop  without  limit  of  tii,.«--^.^-.,  those  granted 
usque  ad  revocationem— though  revocable  at  any  time,  do  not/ 
however,  of  themselves  lapse  by  the  death  or  removal  of 
the  bishop  by  whom  they  were  given.  '  This,  however,  does 
not  hold  of  faculties  conceded  by  bishops  ad  beneplacitum  nos 
trum  or  ad  arbitrium  nostrum." 

§  2.  Of  Confessors  who  are  Vicars-General  and  Canonical 
Parish  Priests. 

673.— I.  Vicars-general  do  not  require  an  approbation  01 
faculties  from  the  bishop  for  confessions.  For  they  have,  by 
their  very  appointment  to  the  vicar-generalship,  jurisdictio 
ordinaria  throughout  the  diocese.18  II.  Canonical  parish 
priests,  in  like  manner,  do  not  need  any  approbation  to  hear 
their  own  parishioners,19  even  out  of  their  parish  or  diocese. 
They  cannot,  however,  out  of  their  parishes,  hear  non- 
parishioners,  unless  they  are  expressly  or  tacitly  approved 
by  the  bishop  for  this  purpose.  Rectors  in  the  United 
States,20  not  being  canonical  parish  priests,  cannot  hear  con 
fessions  by  virtue  of  their  appointment  as  rectors,  but  must 

16  Konings,  n.  1392,  q.  4°,  5°,  6°. 

"  Ferraris,  V.  Approbatio,  art.  i.,  n.  ro ;  Bouix,  De  Episc  ,  t.  ii.,  p.  246. 

v  Konings,  1393.  >8  Supra>  n 

"  Or  others  coming  to  them  in  their  parishes. 

10  As  to  California,  see  supra,  n.  654. 


Chaplains,   and  Confessors.  479 

be  approved  by  the  bishop.    Rectors  and  assistants,  with  us, 
are,  as  a  rule,  approved  for  the  whole  diocese. 

§  3.  Of  Confessors  who  are  Regulars. 

674. — I.  Regulars,  unless  they  are  canonical  parish  priests, 
to  be  able  to  hear  seculars,  must,  like  secular  priests,  be  ap 
proved  by  the  bishop  of  the  place  where  they  hear  the  confes 
sions.  We  say,  seculars  ;  for,  so  far  as  concerns  their  hearing 
(male)  members  of  their  own  order,  they  are  approved,  not 
by  the  bishop,  but  by  their  own  superiors.21  It  is,  however, 
the  common  opinion  that  although  they  must  be  approved 
by  the  bishop  or  their  prelate,  they  nevertheless  receive  juris 
diction  directly  from  the  Pope.  II.  The  bishop  cannot,  with 
out  just  cause,  lawfully,  though  he  may  validly,  refuse  regu 
lars  faculties  to  hear  seculars  (lay  or  clerical).  He  may  limit 
such  faculties  as  to  time,  place,  or  persons — at  least,  in  the 
case  of  regulars  who  might  be  somewhat  more  competent. 
We  say,  at  least ;  for,  according  to  Bouix,22  a  bishop,  upon 
examining  regulars  prior  to  approving  them  for  seculars, 
and  finding  them  entire \y  qualified  (generaliter  idoneos)  to 
hear  confessions,  must  give  them  unlimited  faculties.  Bene 
dict  XIV.,  however,  according  to  Bouix,  holds  the  contrary. 
Again,  the  bishop  may,  as  a  rule,  withdraw  from  individual 
regulars  faculties  to  hear  lay  persons.  We  say,  i,  as  a  rule  ; 
for  if  he  himself  has,  upon  previous  examination,  given  them 
unlimited  faculties,  he  cannot  himself  deprive  them  of,  or 
even  restrict,  their  faculties,  save  "  ex  nova  superveniente 
causa  confessioncs  concernente"  '  We  say,  2,  from  individual, 
etc. ;  for  he  cannot,  without  the  consent  of  the  Holy  See,  with 
draw  faculties  from  all  the  members  of  a  religious  community  . 
except  in  countries  faraway  from  the  Holy  See,  and  then  only 
ex  gravissima  causa.  III.  Can  regulars  sometimes  confess  A 
priests  not  belonging  to  their  order  ?  Professed  members  of  re 

*l  Supra,  n.  618.        M  De  Jur.  Reg.,  t.  ii.,  p.  230.        2S  Bouix,  1.  c.,  p,  243. 


480  On  Assistant  Priests, 

ligious  orders  should,  as  a  rule,  confess  to  confessors  of  their 
own  order.  We  say,  first,  professed,  etc. ;  for  novices  and  lay 
servants  living  in  the  monastery  can  go  both  to  the  religious 
confessors  of  the  monastery  who  are  not  approved  by  the 
bishop  to  hear  seculars,  and  to  extraneous  priests  having  facul 
ties  from  the  bishop  to  hear  seculars.  We  say,  secondly,  as  a 
rule ;  for,  i,  in  time  of  jubilee  they  can,  without  permission 
from  their  superiors,  confess  to  any  priest  approved  by  the 
bishop,  and  be  absolved  by  him,  even,  as  a  rule,  from  censures- 
inflicted  by  the  regular  superior.'24  2.  In  case  of  necessity— 
!/.§-.,  if,  while  travelling  or  out  of  the  monastery,  in  order  to 
preach,  give  missions,  and  the  like,25  they  have  no  confessor 
of  their  own  order  within  reach — they  may,  by  the  presump 
tive  permission  of  their  superior,  confess  to  any  competent 
priest,  regular  or  secular,  even  though  not  at  all  approved 
for  confessions.2"  Observe,  by  regulars  we  here  mean  only 
professed  members  of  orders  approved  by  the  Holy  See — nay,, 
only  such  as  are  exempt  from  episcopal  authority. 

§  4.  Confessors  of  Nuns,  especially  in  the  United  States. 

675.  Dejure  communi,  a  special  approbation  is  required  to 
validly  hear  nuns  proper — that  is,  nuns  having  solemn  vows 
and  observing  Papal  (or  canonical)  enclosure.  We  say,  a 
special  approbation ;  hence,  (a)  priests,  secular  or  regular,  ap 
proved  by  bishops  in  the  ordinary  manner  only,  (b)  and 
even  canonical  parish  priests,  cannot,  unless  specially  ap 
proved  for  nuns,  hear  them."  By  whom  is  this  special  ap 
probation  to  be  given  ?  By  the  bishop  of  the  place  where 
the  nuns  are  heard.  Observe,  however,  that  if  the  nuns  are 
subject  to  regular  prelates,  the  designation  of  their  confessor 
belongs  to  the  regular  prelate,  the  approbation  proper  to  the 

M  Varc.,  p.  195.  26  Ferraris,  1.  c.(  art.  ii  ,  n.  9-15. 

"  Bouix,  1.  c.,  p.  252.     Capuchins,  however,  can,  in  the  above  case,  confes* 
»0  priests  only  who  are  approved  by  the  bishop  of  the  place. 
97  Ferraris.  1.  c.,  art.  Hi.,  n.  i-d. 


Chaplains,  and  Confessors.  481 

cishop ;  if  they  are  subject  to  bishops  or  directly  tc  the 
Holy  See,  the  appointment  in  full — that  is,  the  designation 
as  well  as  the  approbation — pertains  to  the  bishop.  As  a 
rule,  but  one  confessor  should  be  appointed  for  a  convent. 
The  ordinary  confessor,  even  of  nuns,  having  but  simple 
vows,  can  be  appointed  neither  for  a  longer  nor  a  shorter 
period  than  three  years.  But  in  the  United  States  and 
other  places  where  it  is  customary  to  appoint  them  without 
limit  of  time,  their  approbation  is  valid  until  withdrawn  by 
word  or  deed.29  A  confessor  appointed  for  one  convent 
cannot,  unless  he  is  approved  for  nuns  in  general,  validly 
hear  nuns  in  another  convent.  Extraordinary  confessors 
should  be  given  nuns  two  or  three  times  a  year.  A  confes 
sor  appointed  to  act  once  only  as  extraordinarius  cannot  do  so 
a  second  time,  unless  he  is  reappointed.29 

6/6.  Confessors  of  Nuns  or  Sisters  in  the  United  States. — 
What  has  been  thus  far  said  applies  chiefly  to  nuns  bound 
by  solemn  vows.  We  therefore  ask  :  Is  a  special  approba 
tion  necessary  to  hear  the  confessions  of  sisters  or  nuns  in 
the  United  States  ?  We  premise  :  All  our  sisters,  with  the 
exception  of  those  of  several  houses  of  the  Visitation,  or 
where  a  special  Papal  rescript  has  been  obtained,  have  but 
simple  vows.  We  now  answer  :  i.  It  is  certain  that,  de  jure 
particulari,  a  special  approbation  may  be  needed.  In  other 
words,  our  bishops  may  ordain  that  pastors  and  confessors 
in  general  cannot  validly  hear  sisters  without  a  special  appro 
bation.  2.  But  is  such  special  approbation  requisite  with 
us,  de  jure  communi?  There  are  two  opinions.  Kenrick" 
holds  the  affirmative.  Others,  who  maintain  the  negative, 
contend  that  everything  depends  upon  the  will  of  the 
bishop ;  that,  nevertheless,  it  is  the  desire  of  the  Holy  See 
that  special  confessors  be  appointed  for  nuns  having  but 
simple  vows.*1 

28  Kenr.,  tr.  xviii.,  139;  Gury.,  t.  ii.,  n.  565. 

29  Bouix,  1.  c..  p.  258;  Ferr.,  1.  c.,  n.  8,  9. 

30  L.  c.,  n.  142;  Bouix,  De  Episc.,  t.  ii.,  p.  255.         31  Konings,  n.  1399,  q.  2. 


482  On  Assistant  Priests, 

f^lf0  As  a  matter  of  fact,  prior  to  the  Third  Plenary  Coun 
cil  of  Baltimore  (Nov.  1884),  in  some  of  our  dioceses  a  special 
approbation  was  required  ;  in  others,  not.  The  Third  Plen 
ary  Council  of  Baltimore  (n.  96,  97),  wishing  to  introduce  uni 
formity  of  discipline  in  this  matter,  lays  down  the  following 
regulations  to  be  observed  for  the  future  all  over  the  United 
States : 

1.  "  Neque  negligant  episcopi,  pro  sororibus  etiam  sim- 
plicium  votorum,  sequi  praescriptionem  ecclesiae  quae  vult 
ut  pro  sanctimonialibus  ab  ordinario  vel  aliis  superioribus 
turn  confessarius  ordinarius  constituatur  turn  aliquoties  per 
annum  extraordinarius  deputetur."     (Cf.  Cone.  PI.  Bait.  II., 
n.  417.) 

2.  "  Confessarius  ordinarius  nisi  aliter  necessitas  su'adeat, 
ultra  tres  annos  pro  eadem  communitate  mnnerc  suo  nonfungatur™ 
Facultates  necessarias  ad  confirmationem  confessarii,  ratione 
nostrarum   condition  urn,  impetrabunt  episcopi  a  S.  Congre- 
gatione.     Extraordinarius  saltern  bis  vel  ter  in  anno  ad  con- 
fessiones  omnium  excipiendas  sese  praesentabit ;  ast  etiam 
aliquando  particularibus  monialibus  saepius  eum  postulanti- 
bus  non  denegetur." 

These  regulations,  so  far  as  regards  the  ordinary  con 
fessor,  apply  chiefly  to  sisters  living  in  tJieir  convent  or  mother- 
house.  For,  where  sisters  or  nuns  with  us  teach  in  parochial 
schools,  and  consequently  live  near  the  school  and  out  of 
their  convent,  the  rector  of  the  church  to  which  they  are 
attached  is  generally  regarded  by  virtue  of  his  office  as  their 
ordinary  confessor.  In  this  case,  the  rule  that  the  ordinary 
confessor  should  be  changed  every  three  years  (now  six 
years)  does  not  hold,  at  least  with  regard  to  sisters,  whose 
rule  allows  them  to  go  outside  to  any  priest,  as  sisters  of 
charity.  Nor  is  it  necessary  that  it  should  hold.  For,  these 
sisters  attached  to  parochial  schools  are  generally  changed 
every  two  or  three  years,  and  are  thus  given  a  new  ordinary 

M  The  Holy  See  has  recently  extended  this  space  of  three  years  to  six  years. 


Chaplains,  and  Confessors. 

confessor  in  the  person  of  the  rector  of  the  new  place  to 
which  they  are  transferred. 

Again,  as  all  sisters,33  with  us  (since  there  is  no  special 
Papal  rescript  exempting  any  of  them),  are  subject  to  the 
bishops  of  the  dioceses  where  they  are,  their  confessors, 
ordinary  and  extraordinary,  are  designated  as  well  as  ap 
proved  solely  by  the  bishop  of  the  place  where  the  confes 
sions  are  heard.  Hence,  the  regular  prelates  (i.e.,  abbots, 
generals,  provincials)  of  the  Benedictine,  Dominican,  and 
Franciscan  orders  in  the  United  States  cannot  present 
to  bishops  the  confessors  respectively  of  Benedictine,  Do 
minican,  and  Franciscan  sisters  in  this  country  ;  a  fortiori, 
neither  can  these  superiors 34  themselves  hear  such  nuns 
without  episcopal  approbation. 

§  5.  Of  Confessors  in  relation  to  Reserved  Cases — Of  Reserva 
tions  and  Censures,  as  in  force  at  present,  according  to 
'•'Const.  Ap.  Sedis"  of  Pope  Pius  IX.,  issued  Oct.  12,  1869 
— Special  Powers  of  Bishops  in  the  United  States  respecting 
these  Reservations. 

677.  Definition. — By  reserved  cases  (casus  reservati]  are 
meant  certain  more  grievous  sins  from  which  ordinary  or 
inferior  confessors  cannot  absolve  without  a  special  approba- 

81  Konings,  n.  1399,  q.  2. 

M  In  the  diocese  of  Boston  no  special  approbation  is  needed  to  hear  Sisters 
of  Charity  ;  nor  in  the  archdiocese  of  Bahimore. 

33  As  Sisters  of  the  orders  of  SS.  Benedict,  Dominic,  etc.,  with  us,  have 
but  simple  vows,  they  ate  subject  not  to  the  regular  prelates  of  the  above 
orders  respectively,  but  to  bishops.  The  sixteenth  ch.  of  the  schema  (relative 
to  religious)  of  the  Vatican  Council  proposed  that  all  sisters  with  but  simple 
vows,  even  though  under  a  superioress-general,  should  be  entirely  subject  to 
bishops,  except  in  regard  to  their  constitution  as  approved  by  Rome  (Mart., 
Arb.,  p.  127).  Again,  the  above  nuns  are  not  bound  by  the  law  of  Pap;il  en 
closure.  But  the  c.  vi.  of  the  schema  "de  clausura"  of  the  Vatican  Council 
proposed  to  enjoin  enclosure  in  a  moderate  form  on  all  nuns  having  but  simple 
vows  (Mart.,  Doc.,  p.  238). 

84  Whether  regular  prelates  can,  without  episcopal  approbation,*hear  nuns, 
subject  to  themselves,  is  a  disputed  question  (Bouix,  De  Jur.  Reg.,  t.  ii.,  p.  257). 
No  nuns  in  the  United  States  are  subject  to  regular  prelates. 


484  On  Assistant  Priests, 

tion.     1.   Conditions  of  Reservations.— As  a  rule,  no  sin  is  re 
served  unless  it  is  (a)  mortal,  (b)  external,  (c)  certain,  (J } 
complete,  (e)  committed  by  adults.35     We  say,  i,  mortal;  for, 
according  to  the  Council  of  Trent,  only  atrodora  quaedam  ct 
graviora  crimina  should  be  reserved.     The  sin  should    be 
mortal,  not  only  internally  but  also  externally.    2.  External, 
the  Church  sometimes  reserves  occult?  but  never  merely  in 
ternal,  sins.     3.    Certain;   hence,  no  reservation  is  incurred 
where  it  is  doubtful  (a)  whether  the  sin  was  committed  or 
whether  it  is  mortal  internally  and  externally  (dubium  facti ) ; 
(b)  whether  it  is  reserved  (dubium  juris).     4.  Complete  ;  thus, 
where    murder    is    reserved,    a    person    merely    inflicting 
wounds,    even   though   serious,  does   not   incur   the   reser 
vation,  unless  the  contrary  is  expressly  stated.     5.  Commit 
ted  by  adults;  hence,  boys  under  fourteen  and  girls  under 
twelve  years  of  age  do  not,  except  where  the  contrary  is 
stated,  incur   reservations.     This   fifth   condition,   however, 
is  not  admitted  by  all.      II.    Who  can  reserve  cases?      The 
prelates  of  the  Church  only— that  is,  those  who  have  juris 
diction  both  in  foro  intcrno  and  externo ;  in  other  words,  the 
Pope  for  the  entire  Church,  the  bishop  for  his  diocese,  supe 
riors  of  religious  communities  for  such  communities.     Ac 
cordingly,  reserved  cases  are  divided  into  Papal,  episcopal, 
and  regular.      Regular  prelates,   however,  in  order  to  be 
able  to  reserve  more  than  the  eleven  cases  permitted  by  the 
jus  commune,  must  have  the  consent  of  the  general  chapter 
of  the  whole  order  if  the  reservation  is  to  extend  over  the 
entire  order,  and  of  the  provincial  chapter  if  only  over  the 
province.37     Note.— Not  only  professed    members  (whether 
priests   or   lay-brothers)   of  exempt   orders,  but  also   their 
novices,  candidates  from  the  time  they  are  accepted  for  the 
order,  and  servants  living  in  the  monastery,  are,  as  a  rule, 
exempt  from  episcopal  reservations. 

678.— HI.  Does  ignorance  of  the  censure  or  reservation  pre- 
»  Craiss  .  n.  1596-1601.          "  Cfr.  supra,  n.  580.         37  Varc..  pp.  739,  743- 


Chaplains,   and  Confessors.  485 

vent  its  being  incurred?  As  to  censures,  it  does.  As  to 
reservations,  we  distinguish :  The  sin  is  reserved,  either 
with  or  without  censure.  If  it  is  reserved  without  censure, 
the  question  is  controverted.  If  with  censure,  we  must 
again  distinguish  :  The  case  is  reserved  either  to  the  Pope38 
or  to  bishops.  It  is  certain  that  ignorance  exempts  from  the 
former.  Does  it  also  exempt  from  the  latter  ?  The  question 
is  disputed.  According  to  Varceno  3fl  and  others,  it  does,  if 
the  case  is  reserved  to  bishops  by  the  jus  commune—  v.g. ,  the 
three  excommunications  reserved  to  bishops  in  the  Const. 
Ap.  Scdis  of  Pope  Pius  IX.  ;  but  if  the  sin  is  reserved  by  the 
bishop  himself,  whether  in  or  out  of  synod,  ignorance  ex 
cuses  merely  from  the  censure,  not  from  the  reservation, 
Others,  however,  hold  that  ignorance  excuses  from  all  reser 
vations,  whether  Papal  or  episcopal,  whether  with  or  with 
out  censure,  chiefly  because  reservations  are  always  penal.40 
679.'  Who  can  absolve  from  reserved 'cases  ?  i.  The  person 
reserving;  2,  his  superior  or  successor;  3,  those  delegated 
by  the  persons  just  mentioned ;  4,  sometimes  inferiors. 
It  is  certain,41  according  to  the  C.  Ap.  Sedis  of  Pius  IX., 
that  regulars  can  no  longer  absolve  from  cases  reserved 
to  bishops  by  the  jus  commune  (v.g.,  by  the  C.  Ap.  Sedis}" 
I.  Can  a  person  who  has  incurred  a  reservation  in  his  own  dio 
cese  or  place  of  domicile  confess  in  another  diocese  where  the  sin 
is  not  reserved,  and  there  be  absolved  by  any  ordinary  confessor  ? 
There  is  question  of  cases  reserved,  either  with  or  without 
censure.  As  to  the  latter,  we  reply  in  the  affirmative,  with 
the  proviso  already  mentioned.43  As  to  the  former  (i.e.,  cases 
with  censure),  we  distinguish:  The  censures  are  reserved 
either  ab  Jiomine,  and  that  per  sententiam  particularem,  or  a 
jure.  As  to  the  first,  we  reply  negatively,  such  censures 
being  absolvable  by  the  person  only  who  inflicted  them,  or 

"  See  infra,  n.  63i.  »  P.  744.  <°  Bailer,  ad  Gury.,  t.  ii.,  n.  711 

"  Cfr.  Craiss.,  n.  1630.  «  Cfr.  supra,  n.  582.  "  Supra   n.  582. 


486  On  Assistant  Priests, 

by  his  successor,  superior,  or  one  delegated  by  thei.i.  As  to 
the  second,  the  question  is  disputed.  Practically,  the  affir 
mative  may,  by  reason  of  custom,  be  acted  upon,  provided 
the  penitent  does  not  act  chiefly  in  fraudem  legist  II.  Can 
an  ordinary  confessor,  out  of  the  above  case,  sometimes  absolve 
from  reservations  ?  He  can,  in  two  cases:  I.  In  articulo  or 
periculo  mortis.  In  this  case  he  can  absolve  not-  only  from 
reserved  sins,  but  also  from  reserved  censures,  arid  that 
even  though  the  superior  or  confessor  having  the  requisite 
special  faculties  be  present  or  within  reach.45  Nay,  in  de 
fault  of  an  approved  priest,  any  priest  can  so  absolve.  Now, 
is  a  penitent  thus  absolved  obliged,  in  case  he  survives,  to 
present  himself,  as  soon  as  convenient  after  his  convales 
cence,  to  the  superior  or  confessor  having  the  requisite 
special  faculties?  If  the  case  is  reserved  without  censure, 
he  is  not ;  if  with  censure,  he  is,  though  at  present,  accord 
ing  to  Varceno,  only  in  case  he  has  incurred  one  of  the 
tourteen  censures  reserved,  speciali  modo,  to  the  Roman  Pon 
tiff  by  our  Holy  Father  Pius  IX.  2.  In  case  of  necessity ; 
thus,  if  it  is  impossible,  even  by  letter,  to  recur  to  the  supe 
rior,  and  there  is  a  pressing  cause — v.g.,  clanger  of  scandal  or 
loss  of  good  name,  arising,  v.g.,  out  of  a  priest's  omitting  to 
say  Mass — any  ordinary  confessor  can  absolve  indirectly  from 
cases  reserved  to  the  bishop,  or  even  to  the  Pope  if  the 
bishop  cannot  be  applied  to."  We  say,  indirectly ;  hence, 
the  penitent  must  afterwards  present  himself,  when  able  to 
do  so,  to  a  confessor  having  power  to  absolve  from  the  reser 
vation  (practically,  to  the  same  confessor,  after  the  latter  has 
obtained  the  necessary  faculties  from  the  bishop).*7 

680.  In  how  many  ways  can  cases  be  reserved  ?  In  two : 
i.  Ratione  sui  tantum — that  is,  without  censure,  and  merely 
because  of  the  sin.  2.  Ratione  censi  rae — that  is,  with  and  on 

**  Craiss.,  1612  ;  Varc.,  p.  746.  46  Varc.,  p.  748. 

**  Craiss.,  1618.  "  Konings,  n.  1403. 


Chaplains,  and  Confessors.  487 

account  of  censures.  Observe,  most  episcopal  cases  are 
reserved  without  censure ;  nearly  all  Papal  cases,  with 
censure. 

68 1.  Censures  reserved  at  present  to  the  Sovereign  Pontiff.'1'9 — 

1.  Hoiv  many  cases  are  now  reserved  to  the  Pope  witJwut  cen 
sure  ?     These  two:    i.   If  any  one  (male  or  female),  either 
personally  or  through    others,  falsely  accures  an    innocent 
priest  of  the  crimen  sollicitationis  before  ecclesiastical  judges  ; 

2,  if  a  person  accepts  from  religious  proper  of  either  sex  gifts 
worth  more  than  ten  Roman  scudi  (dollars).     Ferraris,  how 
ever,    holds   that   this   case    is    not   reserved    to   the    Pope. 
Moreover,  a  decision  of  the  S.  Poenit.,  March   15,   1861,  as 
sumes  it  to  be  reserved  merely  to  bishops."     Observe,  not 
the  religious  who  makes,  but  the  person  who  accepts,  the 
presents  incurs  the  reservation.     Again,  religious  proper  of 
both  sexes  may,  with  leave  from  their  superiors,  make  dona 
tions  for  various  reasons — v.g.,  in  token  of  benevolence,  to 
assist  needy  relatives ;  and  persons  accepting  gifts  thus  prof 
fered  do  not  incur  the  reservation.50     II.  How  many  cases  are 
at  present  reserved  to  the  Pcpe  with  censure  (ratione  ccnsurae]  1 
We  premise  :  At  the  present  day,  according  to  the  C.  Ap. 
Sedis  of  Pius  IX.,  by  which  the  ecclesiastical  censures  latae 
sentcntiae  were  limited,  the  cases  reserved  to  the  Sovereign 
Pontiff,  with  censure  (namely,  excommunication),  are  of  two 
kinds:   i.  Some  are  reserved  speciali  modo — that  is,  in  such 
manner  as  to  be  absolvable  neither  by  bishops  (unless  they 
obtain,  like  bishops  in  the  United  States,  special  and  express 
faculties    from    Rome  to  do  so),   nor  by  others  howsoever 

4S  A  number  of  French  and  German  bishops  submitted  proposals  at  the 
Vatican  Council  requesting  that  the  cases  reserved  to  the  Pope,  with  or  without 
censure,  be  reduced  to  as  small  a  number  as  possible,  if  not  altogether  abol 
ished,  and  that  each  new  Pontiff,  in  the  beginning  of  his  pontificate,  should 
deign  to  publish  to  the  entire  Church  a  list  of  cases  he  intended  to  reserve  to 
himself,  with  the  provision  that  all  reservations  of  former  Popes  not  contained 
m  this  list  should  I  r  considered  as.  eo  ipso,  abrogated  (Murtin,  Arb.,  p.  106  ; 
Doc.,  pp.  155,  171).  49  Craiss.,  n.  1603.  6l)  Varc.,  p.  740 


488  On  Assistant  Priests, 

otherwise  privileged.51  2.  Others  are  reserved  simpliciter— 
that  is,  in  such  manner  that  bishops  as  Papal  delegates  in  oc- 
cultis,  where  the  Council  of  Trent  is  received,  and  others  "au 
thorized  in  a  general  manner  to  absolve  from  Papal  cases,  may 
absolve  from  them."  We  now  answer :  At  present  only  four 
teen  cases  are  reserved  to  the  Pope,53  speciali  modo  (namely, 
twelve  in  the  C.  Ap.  Sedis,  Oct.  12,  1869,  and  two  respective. 
ly  by  the  C.  Romanus  Pont  if  ex,  Aug.  28,  1873,  and  decree  5. 
Pocnit.,  Aug.  4,  1876),  and  twenty  simpliciter  (namely,  eighteen 
in  the  C.  Ap.  Sedis  and  two  respectively  by  decree  C.  S.  O., 
Dec.  4,  1872,  and  EncycL  of  Pope  Pius  IX.,  Nov.  i,  1870)." 

682.  Cases  reserved  to  BisJwps  at  present. — They  are,  as  we 
have  shown/6  of  two  kinds :  Some  are  reserved  by  bishops 
themselves  ;  others  by  or  in  the  jus  commune — v.g.,  in  the  C. 
Ap.  Sedis.  Now,  t\\ejus  commune  reserves  cases  to  bishops 
(<?)  either  in  a  general  manner,  (U]  or  specifically — i.e.,  by 
name.  I.  What  cases  are  at  present  reserved  in  a  general  way 
to  bishops  by  the  jus  commune  ?  i.  All  cases  to  which  an  ex 
communication  simpliciter  reserved  to  the  Pope  is  attached 
in  the  C.  Ap.  Sedis  of  Pius  IX.,  whenever  they  are  occult." 
We  say,  simpliciter  reserved,  etc. ;  for  bishops  cannot,  by  vir- 
tue  of  the  jus  commune,  absolve  from  any  of  the  above  four 
teen  cases  reserved,  speciali  modo,  to  the  Pope,  even  when 
they  are  occult.  2.  All  cases  whatever  reserved  to  the 
Sovereign  Pontiff,  even  though  speciali  modo  in  and  out 
of  the  C.  Ap.  Sedis  of  Pius  IX.,  and  even  though  public  or 
notorious,  when  the  delinquent  is  canonically  hindered  from 
presenting  himself  in  person  to  the  Holy  See.  We  say,  in 
person ;  for  he  is  not  obliged  to  recur  to  the  Holy  See  by 
letter  or  proxy."  Now,  what  persons  are  considered  as 
canonically  unable  to  go  to  Rome  ?  The  inability  is  either 
permanent  or  temporary.  It  is  permanent  when  it  lasts  ten, 

61  C.  Ap.  Sedis,  §  A  quibus  ;  Com.  Ed.  Mauri,  n.  '172. 

M  Varc.,  pp.  741,  940.        63  Konings,  n.  1717,  ed.  3«*.  M  Ih.,  n.  1732. 

**  Supra,  n.  582.  5G  Crai'ss. ,  n.  1649.  "  Varc  ,  p.  122 


Chaplains^  and  Confessors.  489 

or,  according  to  some,  five,  years  ;  it  is  temporary  when  it 
continues  less  than  ten  or  five  years  (though  not  if  it  lasts 
less  than  six  months).  The  following  persons  are  said  to  be 
permanently  hindered  from  going  to  Rome  :  Women,  ex 
cept  where  they  are  expressly  marked  with  censure,  as  nuns 
violating  enclosure  ;  sexagenarians ;  servants  ;  those  who  are 
poor,  labor  under  chronic  and  serious  diseases,  or  are  con 
demned  to  perpetual  imprisonment;  those  who  are  obliged 
to  support  a  family  or  administer  its  property ;  those  who 
fill  a  public  position  which  they  cannot  relinquish  without 
grave  or  public  detriment ;  religious  ;  boys  under  the  age  of 
puberty,  even  though  they  ask  for  absolution  after  they  at 
tain  to  the  age  of  puberty ;  sons  under  the  control  of  their 
parents ;  seminarians,  soldiers,  etc. ;  finally,  all  others  who 
cannot  go  to  Rome  without  grave  loss,  temporal  or  spiri 
tual.  Note.— Those  who  are  permanently  unable  to  present 
themselves  to  the  Holy  See  can  be  absolved  absolutely  (so 
that  they  need  not  afterwards,  even  when  they  become  able, 
go  to  Rome)  by  the  bishop  or  his  delegate ;  those,  on  the 
other  hand,  who  are  but  temporarily  unable,  can  be  absolved 
by  the  bishop  or  confessor  authorized  by  him,  even  out  of 
the  case  of  necessity,  though  only  conditionally  or  ad  rcinci- 
dentiam,  so  that  if  they  do  not,  when  able,  present  themselves 
to  the  Holy  See,  they,  ipso  facto,  reincur  the  censure." 
Again,  as  bishops  can,  dejure  communi,  absolve  from  the  above 
Papal  cases,  they  can  also  empower  their  priests  to  do  so. 

683. — II.  What  cases  are  at  present  specifically — i.e.,  by 
name — reserved  to  bishops  in  the  jus  commune  ?  The  jus  com 
mune — i.e.,  for  the  purposes  concerned,  the  C.  Ap.  Sedis  of 
Pope  Pius  IX. — declares  the  following  persons  subject  to  ex 
communication  latae  scntentiae  reserved  to  bishops  or  ordi 
naries :  "  i.  Clericos  in  sacris  constitutes,  vel  regulares  aut 
moniales  post  votum  solemne  castitatis,  matrimonium  con- 

68  Com.  Ed.  Mauri,  n.  167,  168,  173. 


490  On  Assistant  Priests, 

trahere  praesumentes ;  necnon  omnes  cum  aliqua  ex  prae- 
dictis  personis  matrimonium  contrahere  praesumentes.  2. 
Procurantes  abortum,  effectu  secuto.  3.  Litteris  apostolicis 
falsis  scienter  utentes,  vel  crimini  ea  in  re  cooperantes." 
These  three  cases  only  are  at  present  reserved  by  name  to 
bishops  in  the  jus  commune.™ 

684.  Wliat  special  poivers  of  absolving  from  Papal  cases  have 
bishops  in  the  United  States  by  virtue  of  tJieir  faculties  fr-om  the 
Holy  See?M  They  have  the  power  "  absolvendi  ab  omnibus 
censitris  in  C.  Ap.  Scdis,  dd.  12  Oct.,  1869,  Romano  Pontifici 
etiam  speciali  modo  reservatis,  cxccpta  absolutions  coinplicis  in 
pcccato  turpi." 61  This  Papal  indult  includes  all  cases  whatever 
reserved  to  the  Sovereign  Pontiff  in  the  C.  Ap.  Sedis,  except 
the  faculty  of  absolving,  I,  one's  accomplice  in  pcccato  titrpi ; 
2,  a  confessor  who  dares  to  absolve  his  partner  in  peccato 
turpi™  and  that  even  though  the  case  be  occult;  3,  a  person, 

63  Craiss.,  n.  1653. 

60  In  the  Vatican  Council  several  proposals  were  made  by  a  number  of  Ger 
man  and  French  bishops  to  the  effect  that  the  faculties  of  absolving  from 
Papal  reservations,  dispensing  from  impediments,  etc.,  which  the  Holy  See 
usually  communicates  to  bishops  only  for  a  certain  time— v.g .,  for  three,  five, 
or  ten  years — or  only  for  a  determinate  number  of  cases,  be  henceforward  dele 
gated  to  them  for  the  whole  term  of  their  episcopate  (Martin,  Arbeiten,  p.  95  ; 
Doc.,  pp.  149,  171).  61  Fac->  form-  *  >  "•  l6- 

62  However.  Pope  Pius  IX.,  by  decree  of  the  S.  C.  Prop.  Fid.,  Jan  24, 
1868,  granted  this  faculty  (namely,  absolvendi  a  censuris  et  poems  ecclesiast'cis- 
sacerdolcs,  qui  personae  cottiplicis  in  pcccato  twpi  confesswnts  excipere,  camqite  ab 
solve,  e  ausi  fuerint,  et  cum  iisdet/i  super  irregularitaie  a  molalione  dictarum  censn- 
rarum  quomodocunque  cont/acta  dispensandi)  to  every  archbishop,  bishop,  and 
vicar  apostolic  of  the  United  States,  i,  but  only  for  fifteen  cases  ;  2,  and  exer- 
cisable  by  each  in  his  diocese  or  vicariate,  either  personally  or  through  his 
vicar-genera',  or  through  worthy  confessors  ;  3,  to  be  deputed  by  himself  or  his 
vicar-general  specially  for  this  purpose;  4,  and  with  the  express  mention  of 
the  Papal  authorization;  5,  in  favor  only  of  such  priests  as  cannot,  without 
evident  danger  of  causing  scandal  among  the  faithiuf,  observe  the  censures 
which  they  incurred  by  absolving  their  accomplices  ;  6,  on  condition  (a)  that 
the  priests  thus  absolved  and  dispensed  with  shall,  within  two  months,  o: 
»ome  othei  suitable  time,  to  be  fixed  bv  the  dispenser,  either  directly  or 


Chaplains,  and  Confessors.  491 

male  or  female,  who  falsely  accuses  a  priest  of  sollicitatio  in 
confession ;  4,  from  heresy,  apostasy  from  the  faith,  and 
schism  in  the  cases  already  mentioned."3  Observe,  Pope 
Pius  IX.,  by  decrees  of  the  S.  U.  Inq.,  respectively  dated 
June  17,  1866,  and  April  4,  1871,  ordained  that  in  all  Papal 
concessions  whatever,  empowering  bishops  (even  of  the 
United  States)  to  absolve  from  cases  reserved  to  the  Holy 
See  even  modo  speciali,  the  power  to  absolve  from  the  cases 
under  n.  2  and  3  should  always  be  excepted,  and  that  even 
expressly  as  to  case  n.  2.  Hence,  the  latter  case  is  said  to 
be  reserved  to  the  Pope  modo  specialissimo"  From  what  has 
oeen  said,  it  is  evident  that  our  bishops  can,  except  in  the 
four  cases  given,  absolve  absolutely  (so  that  the  penitent 
need  never  afterward  present  himself  to  the  Holy  See)  from 
all  cases  or  excommunications  whatever,  whether  reserved 
simpliciter  or  modo  speciali  to  the  Pope  in  or  out  of  the  C.  Ap. 
Sedi's,  even  when  they  are  notorious — nay,  even  where  the  de 
linquent  can  go  to  Rome.  They  can — in  fact,  usually  do — 
communicate  these  faculties  to  their  priests.65  Later  on  (in 
a  future  work),  when  we  come  to  treat  of  censures,  we  shall 
explain  in  detail  the  C.  Ap.  Sedis  of  Pius  IX. 

through  their  confessors,  and  without  mentioning  the  names,  recur  to  the 
S.  C.  Prop.  Fid.  and  state  the  number  of  their  accomplices  and  how  often  they 
absolved  from  the  sin  of  complicity  ;  (/>)  and  that  they  be  bound  to  obey  the 
orders  of  the  aforesaid  S.  C.  in  this  matter,  on  pain  of  otherwise  reincurring 
the  same  censures  and  penalties;  7,  they  should  also  receive  a  suitable  penance, 
and  be  commanded  to  abstain  altogether  from  hearing  the  confessions  of  their 
accomplices  ;  finally,  all  else,  as  required  by  law,  should  be  enjoined  (Ko- 
nings,  p.  Ixxi.;  Cone.  PI.  Bait.  II.,  p.  146,  deer,  i.) 

83  Supra,  n.  581  (notes  277,278).        64  Avanz.,  p.  18.         "  ?ac.,  I.  c.,  n.  28 


PART  IV. 


THE  NEW  DIOCESAN  CONSULTORSIN  THE  UNITED 
STA  TES,  ACCORDING  TO  THE  "  THIRD  PLENARY 
COUNCIL  OF  BALTIMORE."  * 

HAVING  spoken  of  the  rights  and  duties  of  bishops,  priests, 
and  other  ecclesiastics,  it  but  remains  to  treat  briefly  -of  the 
rights  and  duties  of  those  ecclesiastics  who  are  the  official 
and  legally  constituted  advisers  of  the  bishop  in  the  govern 
ment  of  the  diocese,  also  in  the  United  States.  According 
to  the  general  law  of  the  Church,  as  still  in  full  force,  every 
diocese  must  have  a  cathedral  chapter.  This  chapter  is 
constituted  by  law  the  cabinet  or  advisory  board  of  the 
bishop.  In  the  United  States  there  are  as  yet  no  cathedral 
chapters.  However,  the  Third  Plenary  Council  of  Baltimore 
decreed  that  in  every  diocese  a  certain  number  of  diocesan 
consultors  should  be  appointed,  who  should  be  the  official 
advisers  of  the  bishop,  and  who  should  therefore  take  the 
place  of  cathedral  chapters,  until  the  latter  could  be  properly 
established.  We  shall  here  inquire  (a)  into  the  origin  and 
history  of  bishops'  councils,  both  here  and  elsewhere ;  (ff) 
their  nature  and  organization  ;  (c)  their  rights  and  duties. 

*  This  treatise  is  entirely  new  matter,  written  for  the  sixth  edition  of  this 
work. 

492 


CHAPTER  I. 

HISTORY,   ORGANIZATION,   ETC.,   OF    CHAPTERS    OR    BISHOPS* 
COUNCILS,   ALSO   IN  THE   U.  S. 

ART.  I. 
Origin  and  History  of  Bishops'  Councils,  also  in  the  United  States. 

I.  General  History  of  Bishops'  Councils, — Bishops,   even 
when  the  apostles  were  as  yet  living,  associated  with  them 
selves  ecclesiastics  to  assist  them  in  their  sacred  duties.     In 
the  first  three  centuries  of  the  Church,  twelve  priests  and 
seven  deacons  formed  the  superior  clergy  in  each  diocese, 
and  were  entitled  to  be  consulted  by  the  bishop  in  the  govern 
ment  of  the  diocese  and  to  administer  it  when  vacant.     They 
made  up  the  council  and  senate  of  the  bishop,  and  together 
with  him  governed  the  diocese.     Bishops'  councils,  then,  are 
of  apostolic  institution.     For,  as  Nardi  sa}Ts,  these  Episcopal 
councils  or  senates  were  instituted  in  the  time  of  the  apostles, 
have  existed  uninterruptedly  down  to  our  own  day,  and  will  exist 
to  the  end  of  time,  bearing  as  they  do  the  seal  of  apostolicity,  so 
dear  to  the  Church.1     Formerly  they  were  styled  Presbyteria, 
Coronae,    Consessus,    Concilia,    and    Senatus ;    now    they    are 
called  cathedral  chapters."1 

II.  History  of  Bishops'  Councils  in  the  United  States. — The 
Second  Plenary  Council  of  Baltimore,  held  in   1866,  exhorted 
bishops  to  appoint  priests  who  should  be  the  advisers  of  the 
bishop  in  the  government  of  the  diocese,3  and  commended  ti\t 

1  See  our   article   on    Cathedral    Chapters   in  the  A.  C.  Q.  R.,  Oct.  1878,  p. 
710  sq.  *  Bouix,  De  Capit.,  p.  7.  3  Cone.  PI.  Bait.  II.,  n.  70,  71. 

493 


494  History,  Organization,  etc., 

practice  of  calling  them  together  once  every  month,  on  a 
stated  day."  Accordingly,  in  nearly  every  diocese,  bishops' 
councils  were  established.  However,  owing  perhaps  to  the 
fact  tnat  the  Second  Plenary  Council  merely  advised  \\\z  estab 
lishment  of  these  bodies,  and  that  it  did  not  define  their  par- 
ticular  duties,  they  were  bishops'  councils,  as  a  rule,  only  in 
name.5  To  remedy  this  inconvenience,  the  Third  Plenary 
Council  of  Baltimore  decreed  and  commanded  that  in  every 
diocese  a  certain  number  of  worthy  and  learned  priests 
should  be  appointed  diocesan  consultors,  whose  advice  the 
bishop  should  be  bound  to  take  in  certain  cases  expressly 
enumerated.' 

ART.  II. 

Nature  and  Organization  of  Cathedral  Chapters,  and  of  Bishops' 
Councils  in  the  United  States. 

I.  Definition. — Cathedral  chapters  (capitula  catkedralia),  in 
the  canonical  sense  of  the  term,  are  bodies  of  ecclesiastics 
forming  ecclesiastical  corporations  (collegia),  subject  indeed 
to  the  jurisdiction  of  the  bishop,  but  nevertheless  constitut 
ing  a  separate  body  or  association,  under  the  direction  of 
their  own  president  or  dean,  enjoying  special  privileges,  and 
established  for  the  purpose  of  assisting  the  bishop,  while  alive, 
in  the  government  of  the  diocese,  and  of  taking  his  place  and 

4  Cone.  PI.  Bait.  II.,  n.  71. 

6  In  order  to  introduce  gradually  among  us  the  general  law  of  the  Church 
respecting  cathedral  chapters  proper,  the  Propaganda,  in  the  conferences  held  at 
Rome,  in  1883,  with  our  archbishops,  proposed  to  establish  cathedral  chapters 
in  the  United  States,  not,  indeed,  in  the  full  canonical  sense  of  the  term,  but 
yet  in  the  manner  in  which  they  exist  in  England,  Ireland,  and  Holland,  namely, 
as  corporate  bodies,  etc.  To  this  proposal  our  prelates  objected.  The  matter  was 
finally  arranged  thus:  The  Cardinals  of  the  Propaganda  decided  that  in  the 
Third  Plenary  Council  the  establishment  of  cathedral  chapters  should  not  be 
excluded;  and  that  meanwhile  Episcopal  consultors  should  be  appointed,  with 
certain  defined  rights  and  duties.  See  C.  P.  Bait.  III.,  n.  17,  18. 

*  C.  Pi.  Bait.  III.,  n.  17,  18,  19,  20. 


of  Bishops   Councils,  also  in  the  United  States.    495 

governing  the  diocese  when  the  see  is  vacant?  This  definition 
expresses  in  general  the  nature  and  organization,  as  well  as 
the  rights  and  duties,  of  cathedral  chapters.  In  the  present 
article  we  shall  speak  of  the  former  ;  in  the  next,  of  the 
latter. 

II.  Organization  of  Cathedral  Chapters. — Cathedral  chap 
ters,  as  constituted  in  accordance  with  the  general  law  of  the 
Church,  are  moral  bodies  or  ecclesiastical  corporations.  This  is 
expressed  in  our  definition.  Now  every  association  or  moral 
body  must  have  a  head,  i.e.,  one  who  presides  over  it.  Ca 
thedral  chapters  have,  so  to  say,  a  twofold  corporate  exist 
ence  :  one  as  the  senate  of  the  bishop  ;  the  other,  as  a  cor 
porate  body  of  its  own.  In  its  capacity  of  senate  and  council 
of  the  bishop,  the  chapter  forms  a  moral  body  which  is  one 
with  the  bishop,  and  of  which  therefore  the  bishop  is  the  head 
and  noblest  member.8  Hence,  in  all  matters  relating  to  the 
government  of  the  diocese"  the  bishop  acts  as  the  president 
of  the  chapter,  and  therefore  convenes  it  and  presides  over 
its  meetings.10 

But  in  its  capacity  as  a  body  of  its  own,  it  is  distinct  from 
though  not  independent  of  the  bishop,  and  has,  like  every 
other  society  or  ecclesiastical  corporation,  the  right  to  make 
its  own  rules  and  regulations,  and  be  presided  over  by  its 
own  officers,  in  all  matters  relating  to  its  own  internal  regime 
and  not  to  diocesan  affairs.  Consequently,  of  the  chapter, 
viewed  under  this  aspect,  the  bishop  is  not  the  head,  nay, 
not  even  a  member.  Hence  he  has  no  decisive  vote  in 
purely  capitular  matters.  Moreover,  the  chapter  has  (in  its 
second  capacity)  its  own  presiding  officer  or  head,  who  is 
usually  called  dean  or  provost.11  When  the  latter  dies  or  is 
absent,  the  older  canon,  as  a  rule,  becomes  the  head  or  presi* 
dent  of  the  chapter  for  the  time  being. 

7  Cf.  Ferraris,  v.  Capitulum,  art.  i.,  Nov.  Add.,  n.  I. 

8  Bouix,  De  Capit.,  p.  60.  9  Ib.,  p.  174. 

10  Cone.  Trid.,  sess.  xxv.,  c.  6,  De  Ref.  n  Bouix,  1.  c.,  p.  60. 


496  History,  Organization,  etc., 

III.  Organization  of  Diocesan  Consult  or s  in  the  United  States. 
— Our  bishops'  councils,  as  established  by  the  Third  Plenary 
Council  of  Baltimore  (n.  17,  18)  have  no  corporate  existence, 
that  is,  they  have  no  organization  as  a  separate  body,  and 
hence  no  presiding  officer  or  other  officials  of  their  own. 
The  bishop  is  their  sole  head,  and  convenes  them  four  times 
a  year,  or,  where  this  cannot  be  done,  at  least  twice  a  year,  at 
stated  periods,12  and  always  presides  at  their  meetings.  Ex 
traordinary  meetings  are  held  as  often  as  occasion  requires. 

ART.  III. 

Appointment  and  Removal  of  Canons  and  of  Diocesan  Consultors 
in  the  United  States. 

I.  Appointment. — Cathedral  chapters,  in  the  full  canoni 
cal  sense  of  the  term,  can  be  erected  only  by  the  Holy  See. 
The  Pope  always  proceeds   to  the  establishment  of  these 
chapters  simultaneously  with  the  creation  of  the  bishopric, 
or  as  soon  thereafter  as  the  state  of  dioceses  admits  of  them.13 
By  the  common  law  of  the  Church,  as  at  present  construed, 
the  appointment  of   canons  of   cathedral  chapters  belongs 
jointly  or  simultaneously  to  the  bishop  and  the  chapter.14 
However,  as  in  practice  this  mode  of  appointment  is  sur 
rounded  by  difficulties,  it  has  become  customary  in  various 
dioceses  for  the  bishop  and  the  chapter  to  make  the  appoint 
ment  by  turns  or  alternately,  so  that  each  in  turn  makes  the 
appointment  independently  upon  the  other. 

II.  Appointment  of  Consultors  in  the   United  States. — The 
Third  Plenary  Council  of  Baltimore  ordains  that  each  diocese 
shall  have  six,  or  at  least  four,  Consultors ;  that  where  this 
number  can  in  no  wise  be  had,  there  shall  be  at  least  two" 
As  to  the  mode  of  their  appointment,  this  Council  enacts 

12  Cone.  PI.  Bait.  III.,  n.  21.  13  Prael.  S.  Sulp.,  n.  384. 

14  This  joint  right  of  appointment  is  called  jus  collationis  simultaneae. 

15  C.  PI.  Bait.  III.,  n.  18. 


of  Bishops  Councils,  also  in  the  United  States.    497 

that  one  half  of  the  above  number  shall  be  appointed  solely 
by  the  bishop  ;  the  other  half  also  by  the  bishop,  though 
only  on  the  nomination  made  by  the  entire  clergy,  in  the 
manner  laid  down  by  the  Council.™  The  diocesan  consultors, 
thus  properly  appointed,  hold  their  position  for  three  years, 
after  which  they  must  be  either  reappointed  or  others 
chosen  in  their  stead  in  the  same  manner  as  just  described.17 
If,  however,  this  term  of  three  years  expires  during  the 
time  when  the  episcopal  see  is  vacant,  the  consultors  will 
remain  in  office  until  the  accession  of  the  new  bishop,  who 
will  be  bound  to  proceed  within  six  months  from  the  day  of 
his  consecration  to  the  new  appointment  of  the  consultors 
in  the  manner  above  stated.28  Finally,  where,  during  the 
above  term  of  three  years,  a  con  suitor  either  dies,  or  resigns, 
or  is  removed,  the  bishop  has  the  right  and  duty  to  appoint 
another  one,  though  only  with  the  advice  of  the  other  con- 
suitors.19  As  will  be  seen,  the  mode  of  appointment  of  our 
diocesan  consultors  resembles  somewhat  that  of  canons  of 
cathedral  chapters,  as  above  set  forth. 

III.  Removal  of  Canons,  and  of  our  Consnltors. — Canons 
proper  of  cathedral  chapters  hold  their  position  for  life,  and 
are  therefore  canonically  irremovable  (inamovibiles,'pcrpetui). 
Consequently  they  cannot  be  deprived  of  their  office  of  can 
ons,  save  for  crime,  specified  in  law  and  by  canonical  trial.20 

Our  diocesan  consultors,  as  we  have  seen,  are  appointed 
only  for  three  years.  During  this  term  of  office  they  cannot 
be  removed,  against  their  will,  except  for  legitimate  and  just 
cause,  and  by  the  advice  of  the  other  consultors.  What 
constitutes  a  legitimate  and  just  cause  for  removal?  The 
answer  is  given  by  the  Third  Plenary  Council  of  Baltimore,  n. 
21.  From  this  it  will  be  seen  that  they  can  be  removed  from 
the  office  of  consultor  also  for  causes  other  than  crimes,  and 
without  a  trial  in  the  proper  sense  of  the  term,  though  not. 
without  a  previous  investigation. 

16  C.  PI.  Bait.  III.,  n.  19.  17  Ib.,  n.  21.         "18  C.  PI.  Bait.  III.,  n.  21 

19  Ib.  i0  Prael.  S.  Sulp.,  vol.  ii.,  p.  169,  n.  419. 


CHAPTER  II. 

RIGHTS  AND   DUTIES   OF    OUR  DIOCESAN   CONSULTORS,   SEDE 

PLENA. 

I.  Where  there  are  cathedral  chapters  in  the  canonical 
sense  of  the  term,  the  bishop  is  bound,  by  the  general  law  of 
the  Church,  to  proceed  in  some  matters  with  the  advice,  and 
in  others  with  t/ic  consent,  of  the  cathedral  chapter  ;  and  if  he 
fails  to  act  with  this  advice  or  consent,  where  the  law  pre 
scribes  it,  his  acts  are  null  and  void.    All  this  follows  from  the 
very  nature  of  cathedral  chapters.     For,  as  was  shown,  they 
constitute  the  senate  and  council  of  the  bishop  in  the  adminis 
tration  of  the  diocese.     He  is  the  head,  they  are  the  mem 
bers,  of  the  diocesan  governing  body.    Now  it  is  unbecoming 
for  the  head  to  act  without  the  members.1 

II.  Our  diocesan   councils,   as   established    by   the    Third 
Plenary  Council  of  Baltimore,  are,  like  cathedral  chapters,  the 
official  and  legal  senate  and  council  of  the  bishop  in  relation 
to  the  government  of  the  diocese.     They  are  to  take  the 
place  of  cathedral  chapters  until  the  latter  can  be  properly 
established.     Wherefore    the    Third  Plenary   Council  enacts 
that  the  bishop  shall  be  bound  to  take  the  advice  of  his  con- 
suitors  in  a  number  of  cases  expressly  stated  by  it.     We 
say  advice ;  for  the  council  does  not  oblige  the  bishop  to  act 
with  the  consent  of  his  consultors  in  any  case  whatever. 

Observe,  however,  that  the  bishop  is  indeed  bound  to 
ask  this  advice  in  the  cases  enumerated  by  the  Third  Plenary 
Council  of  Baltimore  (n.  20,  33,  37,  38,  vii.;  273,  294),  under 

1  Alexander  III.,  cap.  4,  5,  De  his,  quaefiunt  (Hi.,  10). 

498 


Rights  and  Duties  of  our  Diocesan  Consultors.     499 

pain  of  invalidity  of  his  acts ;  yet  he  is  not  bound  to  follow 
it.  For,  when  the  law  obliges  the  bishop  merely  to  act 
with  the  advice  of  his  council  or  chapter,  it  binds  him, 
it  is  true,  to  ask  this  advice,  and  makes  his  acts  void  if  he 
fails  to  do  so  ;  but  it  does  not  require  him  to  follow  the 
advice  except  when  the  contrary  is  expressly  stated.2  Thus 
Reiffenstuel  teaches  :  "  Unde  quae  peragenda  sunt  cum  con- 
silio  capituli  secundum  praescriptum  juris,  non  obstante, 
quod  ejus  consilium  praelatus  sequi  non  teneatur,  tamen  si 
tale  consilium  is  non  adhibeat,  irrita  erunt  act  a  cjus."  3 

We  shall  now  proceed  to  explain  briefly  the  cases  where 
our  bishops  are  bound,  according  to  the  Third  Plenary  Coun 
cil  of  Baltimore,  to  proceed  with  the  advice  of  their  diocesan 
council.  They  relate  to  the  diocesan  statutes,  the  division 
of  parishes,  the  placing  of  missions  in  charge  of  religious, 
the  appointing  of  the  deputies  for  the  seminary,  of  new  con- 
suitors  and  of  synodal  examiners,  the  alienation  of  ecclesias 
tical  property,  and  the  imposing  of  a  new  tax  or  assessment 
by  the  bishop.  We  shall  now  discuss  each  of  these  cases 
separately. 

ART.  I. 

The  Bishop  is  bound  to  ask  the  Advice  of  the  Consultors  in  con 
voking  and  promulgating  the  Diocesan  Synod. 

I.  The  Third  Plenary  Council  of  Baltimore  decrees  :  "  Con 
silium  consultorum  exquiret  episcopus/r^  synodo  dioecesana 
indicenda  et  publicanda"  To  understand  this  law  correctly, 
it  should  be  borne  in  mind  that,  according  to  the  general 
law  of  the  Church,  as  now  in  force,  it  is  certain  that  the 
bishop  can  announce  and  convene  the  synod  without  consent 
or  even  advice  of  the  cathedral  chapter.  2.  That  the  synodal 

9  Alex.  III.,  cap.  4.  5  (iii  ,  10).  3  Reiff.,  1.  Hi.,  t.  10,  n.  10. 

4C.  PI.  Bait.  III.,  n.  20. 


500     Rights  and  Duties  of  our  Diocesan  Consnltors 

statutes,  however,  must,  under  pain  of  nullity,  be  made  with 
the  advice  of  the  chapter,  any  custom  to  the  contrary  not 
withstanding.  Thus  already  in  1180  Pope  Alexander  III., 
writing  to  the  Patriarch  of  Jerusalem,  says  :  "  Mandamus 
quatenus  in  ...  ecclesiae  tuae  negotiis  ...  cum  eorum 
(canonicorum)  consilio  .  .  .  quae  statuenda  sunt,  statuas."  * 
This  has  also  been  confirmed  by  many  decisions  of  the  Holy 
See  down  to  the  present  day.  Consequently  they  must, 
on  pain  of  nullity,  be  submitted  to  the  chapter,  and  its  opin 
ion  asked  on  them,  before  they  are  published  in  synod.6  The 
chapter  must  naturally  be  allowed  a  sufficient  space  of  time 
to  examine  the  statutes  submitted  to  it,  so  that  it  may  be  able 
to  give  an  intelligent  opinion  on  them.  Consequently,  while 
it  is  true  that  the  bishop  can  convoke  the  synod  without  the 
advice  of  the  chapter,  it  is  also  true  that  he  cannot  fix  the 
date  for  the  holding  of  the  synod  so  earl)7  as  to  render  it 
impossible  for  the  chapter  to  examine  and  give  their  opinion 
on  the  proposed  statutes,  before  the  date  fixed  for  the  cele 
bration  of  the  synod.  In  this  sense  the  bishop  is  indeed 
bound  on  pain  of  nullity  to  ask  the  advice  of  the  chapter,  also 
in  indiccnda,  and  not  only  in  publicanda  synodal 

II.  We  say,  on  pain  of  nullity ;   for,  as   Benedict   XIV. 
says,  if  the  bishop  makes  laws  or  constitutions,  and  promul 
gates  them  in  synod,  without  having  beforehand  asked  the 
advice  of  the  chapter,  these  statutes  will  have  no  force,  con 
sidering  that  they  have  been  made  in  a  manner  prohibited 
by  law.     However,  continues  this  great  Pontiff,  they  can, 
when  there  are  just  and  sufficient  reasons,  be  healed   and 
rendered  valid  by  the  Holy  See.8 

III.  From  what  has  been  said,  it  follows  that  the  above 

5  Cap.  Quanto  5,  De  His.  (iii.  10). 

*  Benedictus  XIV.,  De  Syn.,  1.  xiii.,  c.  i,  n.  15,  16. 

7  S.  C.  C.  in   Hispal.,  26  Nov.,  1689;  Ferraris,  v.  Capitulum,  art.  ii.,  n.  21- 
26;  Bouix,  De  Cap.,  pp.  347,  401. 

8  Bened.  XIV.,  De  Syn.,  1.  xiii.,  c.  16. 


while  tJic  Sec  is  Filled.  501 

Baltimore  decree  can  scarcely  mean  that  the  bishop  cannot  con 
voke  the  diocesan  synod  without  the  advice  of  the  consul  tors, 
since  he  is  obliged  by  the  lav:  itself,  both  general  and  statu 
tory  (supra,  n.  564),  to  convene  synods  at  stated  times.  The 
meaning,  therefore,  of  the  Baltimore  decree  is:  The  bishop, 
in  the  United  States,  is  bound,  before  he  holds  the  diocesan 
synod  and  publishes  its  decrees,  to  lay  before  his  consultors, 
properly  assembled,  all  the  decrees  and  regulations  which 
he  intends  to  make  and  publish  in  the  synod,  and  to  ask  their 
opinion  or  advice  in  regard  to  them. 

IV.  Besides  the  above  consultation  with  the  chapter  or 
our  consultors,  which  is  obligatory,  it  is  also  customary  and 
advisable  for  the  bishop,  some  time  prior  to  the  synod,  and 
prior  to  the  consultation  with  the  consultors,  to  select  sev 
eral  learned  and  experienced  priests  in  order  to  draft  the 
statutes,  which  are  to  be  laid  before  the  consultors.9  This 
action  must  not,  however,  be  confounded  with  the  consulta 
tion  to  be  held  with  the  consultors.  The  latter  is  obligatory  ; 
the  former  is  merely  advisable. 


ART.  II. 

The  Bishop  is  obliged  to  ask  the  Advice  of  the  Consultors  in  di 
viding  Missions  or  Parishes. 

I.  The  second  case  in  which  bishops  with  us  are  bound 
to  ask  the  advice  of  the  consultors,  is  thus  stated  by  the 
Prelates  of  the  Third  Plenary  Council  of  Baltimore  :l*  "Si  con- 
tingat  ut  missio  seu  parochia  aliqua  sit  dismembranda,  exqui- 
rendum  erit  consilium  consultorum,  necnon  et  rectoris  dis- 
membrandae  missionis."  By  missio  or  parochia  are  here 
meant  all  our  congregations  or  missions,  and  consequently  not 

9  Ferraris,  v.  Capitulum,  Art.  2,  n.  21,  22;  Bouix,  De  Cap.,  p.  347. 

10  N.  20. 


502     RigJits  and  Duties  of  our  Diocesan  Consultors 

only  those  which  have  irremovable  rectors,  but  also  those 
which  have  simple  or  removable  rectors.  This  is  evident 
from  the  fact  that  the  above  Baltimore  decree  makes  no  dis 
tinction  or  exception  whatever,  and  therefore  includes  all 
our  missions  or  parishes. 

II.  The    Third  Plenary  Council  adds  that  the  advice  or 
opinion  of  the  rector  of  the  mission  which   is  to  be   divided 
must  also  be  asked.     Here  again  the  Council  speaks  of  all 
our  missions    without  exception.     Consequently,  the  opin 
ion  or  advice  of  the  rector  of  the  mission  or  parish  which 
is  to  be  divided  must  be  asked  beforehand,  not  only  when 
such  mission  or  parish   has  an   irremovable  rector,  but  also 
when  it  has  a  rector  who  is  not  irremovable.     This  is  also  in 
harmony  with  the  constitution  of  our  present  Holy  Father, 
Pope  Leo  XIII. ,  Romanos  Pontifices,  issued  in  May,  1881,  for 
England  and  Scotland,  and  are  also  extended  to  the  United 
States,  as  we  have  seen.     For  the  great  Pontiff  describes,  in 
this  celebrated  constitution,  that  in  dividing  missions  which 
are  not  canonical  parishes  the  bishop  is  bound  to  ask  not 
only  the  advice  of  the  chapter,  but  also  of  the  rector  of  the 
mission  to  be  divided,  whether  it  has  a  removable  or  an  irre 
movable  rector." 

The  meaning,  therefore,  of  the  above  Baltimore  decree  is, 
that  in  dividing  missions  or  parishes,  whether  they  have  re 
movable  or  irremovable  rectors,  the  bishop  is  bound  to  ask 
the  advice  of  the  consultors  and  also  of  the  rector  of  the  par 
ish  which  is  to  be  divided.  The  bishop  is  indeed  bound,  on 
pain  of  the  invalidity  of  the  division,  to  ask  this  advice.  But 
he  is  not  obliged  to  follow  it. 

III.  Let  Us  now  compare  this  regulation  with  the  pre 
scriptions  of  the  general  law  of  the  Church  concerning  divi 
sions  of  parishes.     By  the  jus  commune,  as  still  in  full  force, 
the  bishop  is  bound  to  proceed  with  the  consent,  not  merely 

11  Leo  XIII.,  Const.  Romanos  Pontifices,  §  Profecto. 


while  the  See  is  Filled.  503 

advice,  of  the  cathedral  chapter  in  dividing  or  dismembering 
parishes.12  For  such  division,  consisting,  as  it  does,  in  the 
taking  from  a  parish  a  part  of  its  territory  or  people  and  in 
come,  is  considered  in  the  eyes  of  the  law  a  real  and  true 
alienation  of  ecclesiastical  property  (alienatio  rerum  ecclesiae), 
2nd  is  consequently  placed  on  the  same  footing  with  the 
alienatio  rerum  ecclesiae,  in  the  proper  and  literal  sense  of  the 
word.  Hence,  like  alienations  proper,  it  can  be  made  only 
with  the  consent  of  the  chapter.13  This  consent  is  essential, 
whether  the  bishop  proceeds  in  virtue  of  M\s  jurisdictio  ordi- 
naria,  or  as  delegatus  Apostolicae  Sedis,  except  when  he  acts  as 
delegatus  Apostolicae  Sedis  in  regard  to  exempted  parishes. 

IV.  From  this  it  will  be  seen  that  our  Baltimore  decree 
differs  from  the  general  law  in  this,  that  the  former  requires 
merely  the  advice  of  the  consultors,  the  latter  the  consent  of 
the  chapter.     In  fact,  as  Pope  Leo  XIII.  expressly  states  in 
his  constitution  Romanos  Pontificcs"  for  England   and  Scot 
land,  the  general  law  applies  only  to  canonical  parishes,  or 
to   parishes   having   all   the    conditions    prescribed    by  the 
general  law,  but  not  to  missions  not  yet  erected  into  canoni 
cal  parishes. 

V.  The  consent  of  the  chapter,  or,  with  us,  the  advice  of 
the  consultors,  in  the  case  must  be  preceded  by  a  full  discus 
sion  of  the  cause  calling  for  the  division,  or  praecedente  trac- 
tatu,  as  canonists  say.     In  other  words,  the  chapter  should 
give  its  consent,  or  our  consultors  their  advice,  only  after 
having  fully  discussed  with  the  bishop  the  causes  calling  for 
the  division,  their  existence,  their  sufficiency,  and   in  fact 

12  Pope  Clement  V.  (1312)  in  Clem.  Si  una  2,  De  Reb.  Eccl.  Al.  (iii.  4);  Card, 
de  Luca,  De    Benef.,  disc.  45,   n.  4;  Letter.,  De  Re   Benef.,  1.    i.,  q.  28,   n.   60; 
Bouix,  De  Paroch.,  p.  270. 

13  Can.    Sine   exceptione  52,  c.  12,  q.    2;   Leur.,   For.    Benef.,    p.    3,    q.    954, 
n.  7. 

14  Cap.  Dudum,  De  Reb.  Eccl.  non  Al.  in  6"  (iii.  9);  Letter.,  De  Re  Benef., 
1.  i.,  q.  28,  n.  4,  152;  Leur.,  1.  c.,  q.  954,  n.  8. 


504     Rights  and  Duties  of  our  Diocesan  Consultors 

everything  relating  to  the  proposed  division,  just  as  ir-  tut- 
case  of  the  alienation  of  ecclesiastical  property." 

Besides  the  consent  of  the  chapter  (with  us,  the  advice 
of  the  consultors),  various  other  conditions  or   formalities 
.  are  requisite  in  the  division  of  a  parish,  as  we  show  above, 
n.  265. 

ART.  III. 

The  Bishop  is  bound  to  ask  the  Advice  of  the  Consultors  when 
there  is  question  of  giving  a  Mission  or  Parish  over  to  a 
Religious  Community. 

I.  The  third  case  in  which  our  bishops  are  obliged   to 
ask  the  advice  of  the  diocesan  consultors  is  thus  given  by 
the    Prelates    of   the    Third   Plenary    Council  of  Baltimore: 
"Consultorum  item  requiretur  consilium,  quando  id  agetur, 
ut   missio   sen  parochia   tradatur    alicui  familiae  religiosae: 
quo  in  casu  necessaria  erit  etiam  venia  S.  Sedis."  '"     Accord 
ing  to  the  general  law  of  the  Church  as  now  in  force,  the 
bishop  cannot  give  a  parish  over  to  regulars  except  with  the 
consent  of  the  chapter.1-'     The  reason  is,  that  the  giving  over  of 
parishes  to  religious  communities  is  considered  a  species  of 
perpetual  alienation  of  ecclesiastical  property,  that  is,  a  taking 
of  ecclesiastical  property  from  the  secular  clergy  and  giving 
it  to  the  regulars.18      For  parishes  are,  by  their  nature,  secu 
lar  benefices  or  offices.     Now  it  is  an  axiom  of  canon  law 
that   secular   offices   or   benefices    belong   of  right   to,  and 
should  therefore   be  conferred  upon,  the  secular   clergy— 
beneficia  (parochiae]  saecularia    saecularibus  sunt  conferenda ; 
regular ia  vero  regular  ibus.™ 

II.  The  above  Baltimore  decree  ordains  that  the  bishop 

15  §  Profecto  in  C.  PI.  Bait.  III.,  p.  2IQ.         it  Conc.  PL  Bait.  III.,  „.  20. 
r  Innoc.  III.,  cap    Pastoralis  7,  De  Donat.  (iii.,  24)  :  Bouix,  DeAp.',  p.  359. 

18  Leuren.,  For.  Eccl.,  lib.  iii.,  q.  113,  n.  2. 

19  Cf.  Bouix,  De  Jure  Reg.,  vol.  ii.,  p.  45. 


while  the  See  is  Filled.  505 

cannot  place  a  religious  community  in  charge  of  a  parish  or 
mission,  without  having  previously  taken  the  advice  of  the 
.consultors.  Our  statutory  law,  therefore,  differs  from  the 
general  law  in  this,  that  the  latter  requires  the  consent  of  the 
chapter,  the  former  merely  the  advice  of  the  consultors. 

III.  The  Third  Plenary  Council  of  Baltimore  (n.  20)  enacts 
furthermore  that  besides  the  advice  of  the  consultors,  the 
permission    of  the  Holy  See  is  also    required,  before    a    mis 
sion  or  a  parish  can  be  given  over  to  a  religious  community. 
Herein  our  statutory  law  agrees  fully  with  the  general  law 
of  the  Church,  as  in  force  at  the  present  day.     For  it  is  cer 
tain  that  at  present,  according  to  the  general  law,  parishes 
cannot  be  committed  to  a  religious  community  without  leave 
from  the   Holy  See.     This  has  been   decided  a  number  of 
times  by  the  S.  C.  C.20 

IV.  The  chief  reason  is  that  regulars,  though  not  abso 
lutely  speaking  debarred  from  the  charge  of  parishes  by  the 
nature  of  the  religious  state,21  are  yet  intended  by  their  state 
of  life  not  to  mingle  with  seculars  as  much  as  a  parish  priest 
should,  in  order  to  discharge  his  duties  properly.     Hence 
the  Holy  See  reserves  to  itself  the  right  to  decide  in  every 
case,  whether  it  is  expedient  or  not,  to  allow  regulars  to  be 
placed  over  parishes. 

V.  Bouix   (1.   c.,  p.  51)  says  that  religious  communities 
which  have  no  solemn  vows  do  not  seem  comprised  in  the 
above  law  making  the  pontifical  permission  necessary.    This 
opinion  appears  to  us  untenable.     For  the  giving  over  of  a 
parish  to  a  religious   community  is  a  species  of  alienation, 
no  matter  whether  the   community  in  question  has  solemn 
vows  or  not.     Now  such  alienation  requires  not  merely  the 
consent  of  the  chapter  (with  us,  advice  of  consultors),,  but 
also  the  dispensation  of  the  Holy  See. 

VI.  Whatever  may  be  said  on  this  head,  it  is  certain  that 

20  Bouix,  De  Jure  Reg.,  vol.  ii.,  p   46.     21  Bouix,  De  Jure  Reg.,  vol.  ii.,  p.  9. 


506     Rights  and  Duties  of  our  Diocesan  Consultors 

with  us  the  law  requiring  both  the  advice  of  the  consultors 
and  the  papal  consent  before  a  bishop  can  give  a  parish 
over  to  a  religious  community  applies  to  all  religious  com 
munities,  whether  they  have  solemn  vows  or  only  simple. 
This  was  expressly  declared  by  the  Cardinals  of  the  Propa 
ganda  in  the  conferences  held  at  Rome  in  1883,  between  our 
archbishops  and  a  committee  of  the  Cardinals  of  the  S.  C.  de 
P.  F. 

ART.  IV. 

The  Bishop  is  obliged  to  ask  the  Advice  of  the  Consultors  in 
appointing  the  Deputies  for  the  Diocesan  Seminary. 

I.  The    Third  Plenary   Council  of  Baltimore,  n.   20,  thus 
states  the  fourth   case    in  which  our   bishops  are    obliged 
to    act    with    the    advice    of    their    consultors :    "  Consul- 
torum    consilium    exquiretur   in    constituendis    deputatis  pro 
seminariis  dioecesanis."     In  order  to  carry  out  as  nearly  as 
possible    the    prescriptions    laid    down    by    the    Council    of 
Trent,22  and  explained  above  (n.  5  59), -the  Third  Plenary  Coun 
cil  decrees  that  for  every  seminary,  whether  minor  or  major, 
whether  diocesan  or  provincial,  two  committees  shall  be  ap 
pointed — one  for  the  spiritual  or  internal,  the  other  for  the 
temporal,  management  of  the  seminary.     Each  of  these  com 
mittees  is  composed  of  at  least  one  ecclesiastic.     For  the  dio 
cesan  seminary,  the  members  of  both  these  committees  are 
chosen  by  the  bishop  with  the  advice  of  the  consultors ;  for 
the  provincial  seminary  they  are  appointed   absolutely  by 
the  bishops  of  the  province  collectively  without  the  advice 
of  diocesan  consultors.23     This  mode  of  appointment  differs 
considerably  from  that  prescribed  by  the  Council  of  Trent," 
and  explained  above  (n.  559). 

II.  According  to  De   Brabandere,™  the  professors  and 

2-2  Sess.  xxiii.,  c.  18,  De  Ref.  23  Cone.  PL  Bait.  III.,  n.  179. 

24  Cess,  xxiii.,  c.  18,  De  Ref.  95  Vol.  ii.  p.  152. 


while  the  See  is  Filled.  507 

directors  of  seminaries  are  not  eligible  as  deputies  or  mem 
bers  of  these  committees,  lest  they  should  be  at  the  same 
time  both  judges  and  interested  parties. 

III.  Removal  of  these  Deputies. — By  the  general  law  of  the 
Church,  the  members  of  both  the  committees  on  the  man 
agement  of  seminaries  are  irremovable  or  perpetui,  inamovi- 
biles  (supra,  n.  559).26  The  deputies  for  our  seminaries  pos 
sess  all  the  rights  and  privileges  given  to  committees  on 
seminaries  by  the  general  law  of  the  Church  and  the  Coun 
cil  of  Trent,  except  where  the  contrary  is  expressly  stated 
by  the  Third  Plenary  Council  of  Baltimore.  Now  this  Council 
does  not  say  that  our  deputies  are  removable ;  in  fact,  it 
says  nothing  at  all  on  this  point.  The  inevitable  conclusion, 
therefore,  seems  to  be  that  they  are  irremovable.  However, 
there  is  a  difference  between  the  irremovability  of  these 
deputies  and  that  of  irremovable  parish  priests.  The  latter 
can  be  removed  only  for  crime,  while  the  former  can  be  re 
moved  also  because  of  old  age,  sickness,  and  the  like,  by 
which  they  become  incapable  of  discharging  their  duties  as 
deputies." 

ART.  V. 

Our  Bishops  are  bound  to  ask  the  Advice  of  the  Diocesan  Con- 
suitors  in  appointing  a  New  Diocesan  Consultor,  and  also  in 
appointing  Synodal  or  Pro-synodal  Examiners. 

I.  The  fifth  case  in  which  the  bishop,  with  us,  is  obliged 
to  ask  the  advice  of  the  consultors  is  thus  set  forth  by  the 
Prelates  of  the  Third  Plenary  Council  of  Baltimore :  "  "  Item 
consultorum  consilium  necessarium  erit  in  eligendo  novo  con- 
sultore,  et  in  eligendis  e.raminatoribus  qui  sint  loco  synodalium." 

26  S.  C.  C.  in  Papiens.,  7  Julii,  1591;  in  Tricaric.,  24  Martii,  1736;  Bouix,  De 
Cap.,  pp.  428,  436. 

21  Bouix,  De  Cap.,  p.  436.  «  jj.  20. 


5o8     Rights  and  Duties  of  our  Diocesan  Consultors 

II.  Appointment   of  New    Consultors. — We    have   already 
sufficiently  explained  above  how  consultors  are  chosen,  and 
when  the  advice  of  the  other  consultors  is  necessary  in  the 
appointment  of  a  new  consultor.     We  shall  therefore  pass 
to  the  appointment  of  our  synodal  or  pro-synodal  examiners. 

III.  Necessity  of  the  Consultors'  Advice  in  the  Appointment  of 
Synodal  Examiners. — There  are  three  kinds  of  examiners :  (a) 
examiners  for  orders— that  is,  those  who  examine  persons 
who  are  about  to  be  promoted  to  holy  orders;29  (b)  examin 
ers  for  confessions — that  is,  those  who  examine  priests  wish- 
5n  g  to  be  approved  for  confessions;50    (c)  finally,  examiners 
who  conduct  the  competitive  examinations  for  vacant  par 
ishes.31     The  latter  are  called  examinatores  synodales  because 
they  are  appointed  in  diocesan  synod.     Of  these  alone  we 
shall  here  speak ;  for  they  alone  must  be  appointed  by  the 
bishop  with  the  consent  of  the  chapter  (in  the  United  States, 
with  the  advice  of  the  consultors)  when  the  synod  cannot  be 
held  every  year. 

IV.  The  Council  of  Trent  enacts  that  appointments  to 
vacant  parishes  shall  be  made  only  by  "  concursus"  or  com 
petitive  examinations ;  that  these  examinations  shall  be  CDn- 
ducted   by  examiners    chosen    in    diocesan   synod;    that   at 
least  six  examiners  be  chosen  by  the  synod ;  that  whenever 
a  parish  falls  vacant,  the  bishop  shall  select  at  least  three 
out  of  these  six  in  order  to  conduct  the  examinations  before 
him  or  his  vicar-general.     The  concursus  or  competitive  ex 
aminations  must  on  pain  of  nullity  of  the  appointment  be 
conducted  by  the  synodal  examiners.     The   case  is  different 
with  regard  to  the  examinations  to  be  undergone  by  those 
who  desire  to  be  ordained  or  approved  for  confession  ;  for 
the  bishop  can  select  any  priests  he  pleases  to  conduct  these 
examinations.3" 

-9  Cone.  Trid..  sess.  xxiii.,  c.  7,  De  Ref.        30  Ib.,  sess.  xxiii.,  c.  15,  De  Ref 

31  Ib.,  sess.  xxiv.,  c.  18,  De  Ref.;  Brabandere,  vol.  ii.,  n.  921. 

32  Bened.  XIV.,  De  Syn.,  1.  iv.,  c.  7,   n.  2;   Brabandere,  1.  c.,  n.  923. 


while  the  See  is  Filled.  509 

V.  According  to  the  Council  of  Trent,  the  synodal  ex 
aminers   must  be  appointed  in  diocesan  synod.     The  manner 
in  wnich  they  are  appointed  is  this :  They  are  proposed  or 
nominated  by  the  bishop  in  diocesan  synod,  and  must  be  ap 
proved  by  said  synod.     In  other  words,  they  are  appointed 
by  the    bishop  with  the  advice  and    consent  of  the  synod.33 
The  examiners  thus  appointed  in  synod  remain  in  office  till 
the  next  diocesan  synod,  which  should   be  held  within  the 
space  of  a  year  from  time  of  the  last  synod.     In  the  new 
synod  the    old    examiners    may    be  either   reappointed    or 
others  chosen  in  their  stead.34     If,  however,  during  the  course 
of   the  year  which  intervenes  between  the  old  and  the  new 
synod  the  number  of  the  examiners  chosen  in  synod  is  re 
duced,  v.g.,  by  death,  resignation,  or  other  cause,  to  less  than 
six,  t  he  bishop  can  appoint  others,  out  of  synod  indeed,  though 
not  without  the  consent  of  the  chapter.     But  if  the  number  is 
not  decreased  below  six,  the  bishop  cannot  substitute  others 
extras  Y  nodical  ly.35 

VI.  This  refers,  however,  only  to  the  year  which  follows 
immediately  on  the  celebration  of  the   last  diocesan  synod. 
Now,  what  is  to  be  done  if  no  new  synod  is  held   after  the 
lapse  of  a  year  from  the  time  the  last  synod  was  held?     It  is 
certain  that  as  soon  as  the  year  has   expired,  the  office  of 
those  examiners  expires  at  once,  who  were  appointed  extra- 
synodically,  as  above,  during  the  course  of  the  year,  with  the 
consent  of  the  chapter.3'  As  to  the  other  examiners  who  were 
elected  in  the  last  diocesan  synod,  it  is  also  certain  that  they 
hold  over  till  the  next  diocesan  synod,  no  matter  how  long 
it  is  deferred,  provided  there  remain  six  of  those  examiners. 
But  as  soon  as  one  of  these  six  dies  or  resigns,  or  in  some 
other  way  ceases  to  be  an  examiner,  so  that  the  number  of 
those  chosen  in  the  last  synod  is  reduced  to  less  than  six,  the 

33  Cone.  Trid.,  sess.  xxiv.,  c.  18,  De  Ref.  34  Cone.  Trid.,  1.  c. 

35  Bened.  XIV.,  De  Syn.,  1.  iv.,  c.  7,  n.  7. 

36  Bened.  XIV.,  De  Syn.,  1.  iv.,  c.  7,  n.  8. 


510    Rights  and  Duties  of  our  Diocesan  Consul  tors 

office  of  ail  the  others  expires  by  that  very  fact  ;  and  the 
bishop  cannot,  after  the  lapse  of  one  year  from  the  time  the 
last  synod  was  held,  substitute  any  examiners  extrasynodi- 
cally  in  the  place  of  those  who  ceased  to  be  examiners/17 

VII.  Therefore,  if  after  the  lapse  of  one  year  from  the 
time  the  last  synod  was  held,  or  any  time  thereafter,  there 
remain  less  than  six  examiners,  chosen  in  synod,  the  bishop 
must  either  convene  another  synod  or  apply  to  the  Holy  See 
for  permission  to  appoint  examiners  out  of  synod.  For  if  the 
bishop  held  a  concursus  with  examiners  appointed  out  of 
synod,  a  year  after  the  last  synod,  without  having  obtained 
leave  from  the  Holy  See,  the  concursus  would  be  null  and 
void.38  The  Holy  See  always  grants  this  permission,  though 
only  on  condition  that  the  examiners  .be  proposed  by  the 
bishop  to  the  chapter  and  approved^  it;  hence  the  consent 
of  the  chapter  is  requisite.  Brabandere  says  the  Holy  See, 
at  present,  grants  this  permission  usually  for  three  years. 
The  examiners  appointed  out  of  synod  are  called  examinatores 
prn-synodales.  From  what  has  been  said,  it  will  be  seen  that 
synodal  examiners  when  appointed  in  synods  must  be  ap 
pointed  with  the  consent  of  the  synod  ;  when  appointed  out 
of  synod,  with  the  consent  of  the  chapter. 

Q,  What  is  the  manner  of  appointing  synodal  or  pro-syn 
odal  examiners  in  the  United  States  ? 

A.  We  premise:  I.  Thus  far  we  have  explained  the  pro 
visions  of  the  Council  of  Trent,  or  of  the  general  law.  Let 
us  now  see  how  far  those  provisions  have  been  adopted  and 
enjoined  by  the  Third  Plenary  Council  of  Baltimore.  2.  This 
Council  has  enacted,  as  we  have  shown  above,  n.  648,  that 
appointments  to  missions  or  parishes  which  have  irremova 
ble  rectors  shall  be  made  by  concursus,  to  be  conducted  by 
the  bishop  or  his  vicar-general  and  the  synodal  examiners, 
in  the  manner  laid  down  by  the  Council  of  Trent.39  For  this 

E1  Bened.  XIV..  1.  c.,  n.  8.         ™  Ib.  n.,  9.         39  Sess    xxiv  _  c    l8     De  Ref 


while  the  See  is  Filled.  5 1 1 

purpose,  at  least  six  examiners,  if  possible,  shall  be  appointed 
in  every  diocese.  When  a  mission  which  has  an  irremovable 
rector  falls  vacant,  the  bishop  shall  select  out  of  these  six  at 
least  three  to  conduct  the  examination.  The  bishop  cannot 
select  less  than  three,  except  where  it  is  impossible  to  have  so 
many,  on  account  of  the  small  number  of  priests  in  a  dio 
cese.40 

We  now  answer:  i.  Our  synodal  or  rather  pro-synodal 
examiners  may  be  appointed  either  in  or  out  of  synod.41 
When  they  are  appointed  in  synod,  the  advice  of  the  synod 
is  necessary  to  the  validity  of  the  election.  But  the  consent 
of  the  synod  does  not  appear  to  be  required.  Of  course,  in 
this  case,  the  advice  of  the  consultors  is  not  needed.  When 
the  bishop  wishes  to  appoint  them  out  of  synod,  he  must  ask 
leave  from  the  Holy  See  (the  S.  C.  de  P.  F.)  to  do  so.  Hav 
ing  obtained  this  permission,  he  can  appoint  them  out  of 
synod,  though  only  with  the  advice  of  the  consultors**  From 
this  it  will  be  seen  that  while  our  examiners  have  the  same 
rights  and  duties  as  synodal  examiners  proper,  yet  they  differ 
from  them  so  far  as  concerns  the  mode  of  appointment. 
Synodal  examiners  proper,  as  we  have  seen,  must  be  ap 
pointed  in  and  with  the  consent  of  the  synod,  while  our  ex 
aminers  need  not.  Consequently  they  are  not,  in  the  proper 
sense  of  the  word,  synodal  or  pro-synodal  examiners,  but  ex 
aminers  who  take  the  place  of  synodal  or  pro-synodal  examin 
ers.  This  peculiar  characteristic  or  mode  of  appointment  of 
our  quasi-or  vice  synodal  examiners  seems  to  have  been  per 
mitted  by  the  Holy  See,  in  view  of  the  fact  that  our  mis 
sions,  even  though  having  irremovable  rectors,  are  not  ca 
nonical  parishes,  in  the  full  sense  of  the  term.43 

2.  It  would  seem  that  our  vice-synodal  examiners, 
whether  appointed  in  or  out  of  synod,  remain  in  office  per 
manently,  and  not  merely  till  the  next  diocesan  synod.44 

40  Cone.  PL  Rait.  III.,  n.  41.       41  Ib.,  n.  25.       «  Cone.  PI.  Bait.  III.,  n.  25. 
43  Cf.  C.  PL  Bait.  III.,  n.  24.  «  Ib.,  n.  25. 


512     Rights  and  Ditties  of  our  Diocesan  Consultors 

3.  Finally,  whenever  the  number  of  our  examiners  is 
reduced  to  less  than  the  prescribed  number  (at  least  six,  if 
possible),  whether  by  death,  resignation,  or  other  cause,  the 
bishop  can  and  should  substitute  others  with  the  advice  of 
the  consultors.45 

From  all  this  it  will  be  seen  that  our  vice-synodal  exam 
iners  differ  from  synodal  examiners  proper  as  to  the  mode  of 
appointment,  as  to  the  time  they  remain  in  office,  and  also 
as  to  the  requisite  number.  We  say  requisite  number ;  for 
the  Council  of  Trent  prescribes  that  at  least  six  examiners 
must  invariably  be  appointed  in  diocesan  synod,  and  that  at 
least  three  of  them  must  always  be  present  at  the  conairsus ;  4K 
whereas,  in  our  case,  at  least  six  should  be  appointed,  wliere 
this  is  possible,"''  and  at  least  three  of  them  should  attend 
every  concursus,  unless  three  cannot  be  Jiad.^ 

VI.  Rights  and  Duties  of  Synodal  Examiners  also  in  the 
United  States. — The  rights  and  duties  of  these  examiners,  also 
with  us,  in  relation  to  the  manner  of  conducting  the  exami 
nation,  are  clearly  set  forth  by  the  Third  Plenary  Council  of 
Baltimore,  n.  44  sq.,  to  which  we  refer  the  reader.    After  the 
examination  or  concursus  is  over,  the   examiners   have   the 
right  and  duty  to  determine  what  candidates  have  passed  the 
examinations,  and  are  consequently  worthy  to  be  appointed 
to  the  vacant  parish  or  mission.     Those  whom  they  find  un 
worthy  they   must  reject ;  those   whom   they  find  worthy,, 
they  must  report  to  the   bishop   as  worthy.     From  among 
those  whom  the  examiners  report  as  worthy,  it  is  the  bishop's 
exclusive  right  and  duty  to  select  him  whom  before  God  he 
considers  the  most  worthy  (dignior)** 

VII.  Right  of  Appeal. — Candidates  who  have  been  exam 
ined,  and  who  are  not  appointed   to  the   vacant   parish  or 
mission,  have  also  in  the  United  States,  as  we  have  shown 

46  Cf.  C.  PI.  Bait.  III.,  n.  25.  46  Cone.  Trid.,  sess.  xxiv.,  c.  18,  De  Ref 

41  C.  PI.  Bait.  III.,  n.  25.  «  ib-)  n    4I>  4g 

49  Bened.  XIV.,  Const.  Cum  illud,  §  n. 


while  the  See  is  Filled.  513 

above,  a  right  to  appeal  a  mala  relatione  examinatorum  et  ab 
irrationabili  judicio  cpiscopi — that  is,50  against  the  unfair  re 
port  made  to  the  bishop  by  the  examiners,  and  also  against 
the  wrong  action  of  the  bishop  in  appointing  as  the  dignior 
one  who  is  not  dignior.  In  order  to  make  this  more  clear, 
we  observe :  A  candidate  may  either  fail  to  pass  the  exam 
ination  successfully,  and  consequently  be  rejected  by  the  ex 
aminers  or  reported  by  them  to  the  bishop  as  indignus ;  or 
he  may  indeed  pass  and  be  reported  to  the  bishop  as  dignus, 
and  yet  not  be  appointed.  In  the  first  case  he  can  appeal 
against  the  report  of  the  examiners  as  being  unfair  and  un 
warranted,  by  the  result  of  the  examination  ;  in  the  second 
case  he  has  the  right  to  appeal  against  the  appointment  made 
by  the  bishop,  on  the  ground  that  the  one  whom  the  bishop 
considers  the  dignior,  and  whom  consequently  he  has  appoint 
ed  to  the  vacant  parish  or  mission,  is  in  reality  not  the  dig 
nior,  but  only  dignus.  If  the  appellant  can  prove  before 
the  judex  ad  quern  that  the  one  whom  the  bishop  has  ap 
pointed  is  not  the  dignior,  but  that  he — the  appellant — is  the 
dignior,  then  the  appointment  of  the  bishop  must  be  re 
voked,  and  the  parish  or  mission,  also  with  us,  conferred  on 
the  appellant.  In  both  cases,  however,  the  appeal  is  merely 
devotutive,  not  suspensive,  as  we  have  already  noted.  How 
ever,  candidates  who  appeal  must  prove  their  allegations, 
and  that  exclusively  from  the  acts  and  documents  of  the 
concur sus,  a  copy  of  which  must  be  given  them  for  that  pur 
pose. 

ART.  VI. 

Necessity  of  the  Advice  of  the  Consult  or s  in  the  Alienation  of 
Ecclesiastical  Property. 

I.  The  sixth  case  or  matter  in  which  the  bishop  is  bound 
to  ask   the   advice  of  the  diocesan  corisultors  is  thus  ex- 

50  Bened.  XIV.,  Const.  Cum  illud,  1742,  §  16  (VI.). 


514      Rights  and  Duties  of  our  Diocesan  Consultors. 

pressed  by  the  Tliird  Plenary  Council:™  Quando  agitur  de 
bcnis  et  fundis  dioccesis  vel  Missionum  permutandis  aliisqne 
agendis,  qnac  speciem  alienationis  prae  se  fcrunt,  ubi  sumnia 
pecuniae  non  excedat  valorem  quinque  millium  scutatorum 
($5000),  episcopi  liberi  erunt ;  ubi  vero  negotium  earn  sum- 
mam  superaj.  tune  requiritur  consilium  consult  orum,  eoque 
praeriabito,  necessaria  est  S,  Sedis  permission  In  order  to 
understand  this  law  better,  it  will  be  necessary  to  explain 
briefly  the  general  law  of  the  Church  respecting  the  alien- 
ation  of  ecclesiastical  property. 

Q.  When  and  how  is  it  allowed,  according  to  the  general 
law  of  the  Church,  as  now  in  force,  to  alienate  ecclesiastical 
property  ? 

A.  We  premise:  I.  By  ecclesiastical  property  (res  ecclesiae} 
is  here  meant,  not  merely  all  property,  real  or  personal,  be 
longing  to  churches,  chapels,  or  oratories,  used  for  religious 
worship,  but  also  that  which  belongs  to  charitable  and  pious 
institutions  established  by  ecclesiastical  authority,  such  as 
hospitals,  asylums,  monasteries,  convents,  etc.  However,  only 
that  property,  real  or  personal,  of  these  churches  or  institu 
tions  is  here  meant  which  is  of  considerable  value,  that  is, 
which  is  worth  more  than  $25,  or  according  to  some  $50,"  or 
according  to  others,  $100.  Property,  real  or  personal,  of  less 
value  than  this  may  be  freely  alienated. 

2.  The  word  alienation  is  here  taken  in  its  widest  sense, 
and  therefore  means  not  merely  every  act  or  transaction  by 
which  the  ownership  is  transferred,  such  as  (a)  donations,  (&) 
sales,  (c)  exchanges  or  purchase  of  new  property,  but  also  all 
acts  or  transactions  by  which  the  use  of  the  property,  or  Jus 
in  re  or  ad  rem,  is  transferred  to  another,  namely,  (a)  all  mort 
gages  or  other  incumbrances  put  upon  the  property;  (b)  all 
leases  for  a  term  longer  than  three  years  ; "  (c)  the  imposing 

51  N.  20.  52  Santi,  Prael.,  1.  iii.,  t.  13,  n.  6. 

53  Cap.  Nulli  5,  De  reb.  eccl.  (iii.,  13);  Clem,  i,  2,  De  reb.  eccl.  (iii.,  4). 


while  the  See  is  Filled.  5 1 5 

of  new  taxes,  assessments,  or  contributions  by  the  bishop  or 
others;  (d]  the  giving  up  of  a  lawsuit,  when  this  giving  up 
of  the  suit  involves  the  loss  of  the  contested  property  ;  (e) 
finally,  any  transaction,  agreement,  or  compromise,  by  which 
a  burden,  v.g.y  a  pension,  is  imposed  upon  the  ecclesiastical 
property,  even  though  neither  the  ownership  nor  the  use  of 
the  property  is  transferred.54  It  will  be  seen,  therefore,  that 
by  alienation  is  here  understood  not  merely  alienation  in  the 
strict  sense,  but  everything  else  that  has  the  semblance  of  it, 
or  whatever  is  a  species  alienationis.™ 

Having  premised  this,  we  now  answer:  The  rule  is  that 
ecclesiastical  property  cannot  be  alienated  except  (a)  for 
grave  and  sufficient  reasons  of  urgent  necessity  or  evident 
utility,  (b)  and  with  the  formalities  prescribed  by  law ;  other 
wise  the  alienation  is  ipso  jure  null  and  void,  and,  moreover, 
both  the  person  alienating  and  the  person  presuming  to  re 
ceive  ecclesiastical  property,  thus  unlawfully  alienated,  in 
cur,06  among  other  penalties,  excommunication  ipso  facto, 
reserved,  however,  at  present,  according  to  the  constitution 
Apostolicae  Sedis  of  Pope  Pius  IX.,  to  no  one." 

We  say,  first,  except  for  grave  and  sufficient  cause.  Now, 
what  are  considered  by  the  law  grave  and  sufficient  causes? 
These  two:  I.  Urgent  necessity,  v.g.,  where  a  church  has  a 
heavy  debt  and  cannot  pay  it,  except  by  alienating  property, 
or  also  where  a  property  has  become  useless. Gs  2.  Evident 
utility ;  thus  it  is  allowed  to  alienate  property  for  the  pur 
pose  of  acquiring  another  property  which  is  better  and  more 
useful/9 

We  say,  second,  with  the  formalities  prescribed  by  law. 
Now,  what  are  these  formalities?  These  two  :  i.  The  con- 

64  Can.  Non  liceat  20,  c.  12,  q.  2;  Schmalzg.,  1.  Hi.,  t.  13,  n.  10. 

"  Cf.  Schmalzg.,  1.  in.,  t.  13,  n.  6  sq;  Brabandere,  Jur.  Can.  comp.  n.  949. 

66  Reirf..  1.  iii.,  t.  13,  n.  4.        "  Const.  Ap.  Sedis,  1869,  Excom.  nem.  res.  iii. 

58Reiff.,  i.  c.,  n.  18. 

59  Can.  Sine  exceptione  52,  c.  12,  q.  2;  cap.  8,  De  reb.  eccl.  (iii.,  13). 


516     Rig/its  and  Duties  of  our  Diocesan  Consultors 

sent  of  the  chapter  or  others  interested.60  When  there  is 
questio-n  of  alienating  the  property  of  the  cathedral,  or  of  the 
mensa  episcopi,  or  of  the  diocese,  as  such,  the  consent  of  the 
cathedral  chapter  is  required.  But  when  there  is  question 
of  alienating  the  property  of  the  other  churches  of  the  dio 
ceses,  i.e.,  of  the  parishes  of  the  diocese,  the  consent  of  the 
cathedral  chapter  is  necessary  only  when  the  bishop  himself 
wishes  to  make  the  alienation,  but  not  when  the  rector  or 
parish  priest  of  the  respective  church  desires  to  make  it.61  In 
the  latter  ease  it  is  sufficient  that  the  rector  wishing  to  make 
the  alienation  should  obtain  the  consent  of  the  bishop.63  It 
should  be  observed  here,  that  the  chapter  can  give  its  con 
sent  to  the  alienation  only  after  it  has  fully  discussed  (praece- 
dente  tractatii)  the  causes  of  necessity  or  utility  calling  for 
the  alienation.63 

2.  Besides  the  consent  of  the  chapter,  the  permission  of  the 
Holy  See  is  also  required,  and  that  on  pain  of  excommunica 
tion  incurred  ipso  facto,  as  enacted  first  by  Pope  Paul  II.,64  and 
re-enacted  by  Pope  Pius  IX."  Pope  Paul  II.,  in  his  Const. 
Ambitiosae  decreed  that  bishops  alienating  ecclesiastical  prop 
erty,  without  leave  from  Holy  See,  should  incur  ipso  facto 
the  interdict  ab  ingrcssu  in  ecclesiam.  This  punishment  is  not 
mentioned  in  the  Const.  Apostolicae  Sedis  of  Pius  IX.,  and 
therefore  is  abolished.66  The  prohibition  to  alienate  ecclesi 
astical  property  applies  not  merely  when  there  is  question  of 
alienating  ecclesiastical  property  from  a  church  or  religious 
institute  to  laics,  but  also  from  one  cJinrch  to  another  church.'''' 
With  these  explanations,  it  will  now  be  easy  for  us  to  under 
stand  when  and  how  the  bishop,  with  us,  is  bound  to  act 

60  Cap.  8,  De  his.  (iii.,  10);  Schmalzg.,  1.  c.,  n.  78. 

61  Schmalzg.,  1.  iii.,  t.  10,  n.  2.  62  Santi,  1.  iii.,  t.  13,  n.  10. 
63  Reiff.,  1.  iii.,  t.  13,  n.  23. 

"  Cap.  Ambitiosae,  De  Reb.  Eccl.  Al.  vel  non,  Extr.  Com.  (iii.,  4),  A.D.  1468. 

66  Const.  Ap.  Sedis  1869,  1.  c.  66  Santi,  1.  iii.,  t.  13,  n.  15, 

67  Cap.  i.  De  Reb.  Eccl.  Al.  vel  non,  (iii.,  13);  Santi,  1.  c.,  n.  12. 


while  the  See  is  Filled.  517 

with  the  advice  of  the  consultors  in  alienating1  ecclesiastical 
property,  as  we  shall  presently  explain. 

$3Hr"Q-  When  and  how  can  bishops  in  the  United  States 
alienate  ecclesiastical  property  ? 

A.  We  premise:  What  \ve  have  said  above  concerning 
the  meaning  of  the  words  alienation  and  ecclesiastical  property 
holds  fully  true,  also,  with  us.  This  is  clear  from  n.  20  (6°) 
of  the  Third  Plenary  Council  of  Baltimore,  and  the  decree  of 
the  S.  C.  de  P.  F.  dated  Sept.  25,  1885.  For  both  these  docu 
ments  expressly  mention  not  merely  alienation,  but  also 
whatever  has  the  semblance  or  species  of  alienation.  However, 
with  us  the  amount  involved  in  the  alienation  must  exceed 
$5000 ;  otherwise  the  bishop  is  free  to  make  the  alienation 
without  the  prescribed  formalities. 

We  now  answer :  Our  bishops  cannot  alienate  ecclesias 
tical  property  where  the  sum  involved  exceeds  $5000,  ex 
cept  (a)  for  grave  and  sufficient  cause,  as  explained  above  ;  (b) 
with  the  advice  (not  consent)  of  the  consultors.  This  advice  is 
necessary  not  only  when  there  is  question  of  alienating  the 
ecclesiastical  property  of  the  cathedral  or  of  the  bishop's 
mensa,  or  of  the  diocese  at  large,  but  also  when  there  is 
question  of  alienating  the  property  of  any  of  the  other  par 
ishes  or  missions  of  the  diocese,  and  that  even  where  the 
respective  rector,  and  not  the  bishop,  wishes  to  make  the 
alienation.  The  advice  of  the  consultors  must  be  preceded 
by  a  full  discussion  of  the  causes  calling  for  the  alienation. 
(c)  Finally,  the  permission  of  the  Holy  See  is  also  necessary. 
However,  owing  to  our  peculiar  circumstances,  Pope  Leo 
XIII.,  at  the  request  of  the  Third  Plenary  Council  of  Balti 
more,™  has  dispensed  all  our  bishops,  for  ten  years  from  the 
date  of  the  promulgation  of  the  Third  Plenary  Council,  from 
the  obligation  of  obtaining  the  permission  of  the  Holy  See, 
in  every  particular  case.69 

88  Cone.  PI.  Bait.  III.,  n.  20.  "  Cf.  Cone.  PI.  Bait.  III.,  p.  ciii. 


518    Rights  and  Duties  of  our  Diocesan  Consiiltors 


ART.  VII. 

Necessity  of  the  Consult  or s   Advice  for  the   Imposing  of  new 
Taxes  for  the  Bishop. 

I.  The  seventh  case  in  which  the  bishop  is  bound  to  take 
the  advice  of  the  diocesan  consultors  is  thus  stated  by  the 
Third  Plenary  Council  of  Baltimore  (n.  20).-  "  \\.zv&,  praehabito 
consilio  consultorum,  necessarius  erit  rccursus  ad  S.  Sedan  in 
singulis  casibus,  in  quibus  agatur  de  imponcnda  nova  taxa  pro 
episcopo,  quae  excedat  limites  a  canonibns  constitutos."     In  other 
words:  In  all  cases  where  there  is  question  of  imposing  a 
new  tax,   collection   or  contribution   for  the   bishop,  which 
goes  beyond  the  rules  laid  down  by  the  sacred  canons,  the 
bishop  is  bound  to  take  the  advice  of  the  consultors;  and 
after  this  advice  has  been  taken,  it  is  also  necessary  to  have 
recourse  to  the  Holy  See,  and  that  in  each  individual  case. 

II.  Here  two  questions  arise  :  What  is  meant  by  taxa 
nova  pro  episcopo  ?  and   by  the   clause  quae  excedat  limites  a 
canonibus  constitutes?     We  reserve  the  answer  for  a  future 
edition  of  this  work.     Suffice  it  here  to  say  that,  owing  to 
the  general  terms  in  which  these  phrases  are  couched,  and 
the  consequent  difference  of  opinions  as  to  their  meaning,  it 
is  desirable  that  an  authentic  explanation  of  them  be  given 
by  the  Holy  See  ;  especially  as  the  phrases  were  inserted  by 
the  Holy  See  itself,  when  the  acts  and  decrees  of  the  Third 
Plenary  Council  of  Baltimore  were  submitted  to  the  S.  C.  de 
Prop.  Fide  for  revision.     Until  such  an  authentic  explanation 
is  given  it  would  appear  unsafe,  or,  at  least,  unsatisfactory, 
to  attempt  to  give   any  private    or   doctrinal   explanation, 
that  would  commend  itself  to  the  approval  of  others. 


while  the  Sec  is  Filled.  519 


ART.  VIII. 

Several  other  Cases  in  which    the  Bishop  is  bound  to  ask  the 
Advice  of  the  Diocesan  Consultors. 

Besides  the  above  seven  cases,  there  are  several  other 
matters  where  our  bishops  are  expressly  obliged  by  the 
Third  Plenary  Council  of  Baltimore  to  act  with  the  advice  of 
the  diocesan  consultors.  Thus  he  is  bound  to  ask  this  advice, 
i,  in  determining  what  missions  shall  be  made  parishes  with 
irremovable  rectors;70  2,  in  appointing  the  first  irremovable 
rectors;71  3,  in  fixing  the  amount  of  the  pension  (pensio 
congrud)  to  be  accorded  to  an  irremovable  rector  who  resigns 
or  is  removed  because  of  inculpable  inability  to  discharge 
his  parochial  duties ; '*  4,  in  determining  out  of  synod  what 
shall  be  the  salary  of  rectors,  and  in  settling  certain  other 
questions  connected  therewith;73  5,  in  making  laws  and 
regulations,  out  of  synod,  respecting  the  jura  stolae  and  the 
taxes  to  be  given  to  rectors,  on  occasion  of  the  administration 
of  the  Sacraments  and  other  acts  of  the  sacred  ministry.74 
The  rate  of  these  jura  stolae  as  fixed  in  synod  must  also  be 
sent  to  Rome  for  approval. 


ART.  IX. 
Meetings  of  the  Consultors. 

Thus  it  will  be  seen  that  there  are  altogether  twelve 
cases  where  the  bishop  is  expressly  obliged  by  the  Third 
Plenary  Council  of  Baltimore  to  act  with  the  advice  of  the 
diocesan  consultors,  and  where  consequently  his  acts  are 
ipso  jure  invalid  if  he  fails  to  take  the  advice  in  question. 

70  C.  PL  Bait.  III.,  n.  33.  7I  Ib.,  n.  37. 

72  Ib.,  n.  38,  vii.  13  Ib.,  n.  273.  74  Ib.,  n.  2Q4. 


52O    Rights  and  Duties  of  our  Diocesan  Consultors. 

The  consultors  must  in  all  these  cases  give  their  opinion  cr 
advice  collectively,  that  is,  in  a  body,  like  chapters  proper,7"  or 
like  every  corporation  or  moral  body.  In  other  words,  they 
must  be  properly  convened  in  council  meeting,  and  when 
thus  assembled,  give  their  opinion  by  vote,  after  having 
duly  discussed  the  matter  on  which  their  advice  is  asked. 
They  may  vote  by  secret  ballot  as  often  as  they  deem  it 
proper.  The  ordinary  meetings  of  the  consultors  must  be 
held  four  times  every  year,  at  stated  times,  or,  where  this 
cannot  be  done,  at  least  twice  a  year.  The  extraordinary 
meetings  must  take  place  as  often  as  it  is  necessary  for  the 
bishop  to  do  something,  where,  as  stated  above,  he  must  take 
the  advice  of  the  consultors.76  Both  the  ordinary  and  extra 
ordinary  meetings  are  called  and  presided  over  by  the 
bishop.77 


Cf.  Reiff.,  1.  iii.,  t.  xi.,  n.  11-22.          «  C.  PL  Bait.  III.,  n.  ai. 


Ib, 


CHAPTER  III. 

RIGHTS  AND  DUTIES  OF    OUR  DIOCESAN  CONSULTORS 
DURING  THE  VACANCY  OF  THE  SEE. 

ART.  I. 
Appointment  of  the  Administrator. 

I.  Hitherto   we   have  discussed   the  rights  and    duties 
which  our  consultors  possess,  during-  the  time  the  see  is  filled 
— sede plena.     But  what  are  their  rights  and  duties  when  the 
bishopric  falls  vacant?     These  rights  and  duties  refer  chiefly 
to  the  power  to  govern  the  vacant  diocese  ad  interim,  and 
to  the  choice  of  the  new  bishop.    We  shall  first  explain  upon 
whom  devolve  the  administration  of  the  vacant  diocese  and 
the  choice  of  the  new   bishop,  by   the  general  law  of  the 
Church,  and  then  see  whether  and  how  far  the  powers  con 
ferred  by  this  general  law  upon  chapters  are  vested  in  our 
consultors. 

II.  When  a  see  falls  vacant,  whether  by  the  death,  resig. 
nation,  transfer,  or  removal  of  the  bishop,  its  administration 
and  government,  for  the  whole  time  of  the  vacancy,  belong, 
by  the  general  law  of  the  Church,1  as  a  matter  of  right,  not 
merely   of  privilege,   favor,  or  delegation,  to  the  cathedral 
chapter  of  the  vacant  diocese,3  as  we  show  above,  n.  635. 
However,  at  present,  the  chapter  cannot  govern  the  vacant 

1  Cap.  3,  4,  De  Suppl.  Neg.  in  6°  (i.  8),  by  Pope  Boniface  VIII.  (1299);  Cone. 
Trid.,  sess.  vii.,  c.  10.  De  Ref. 

'2  Canonists  usually  discuss  the  rights  and  duties  of  chapters,  while  the 
see  is  vacant,  under  the  heading  We  sede  vacante  aliquid  innovetur,  under  which 
title  the  decretals  also  touch  upon  these  matters. 

521 


522     Rights  and  Duties  of  our  Diocesan  Consultors 

diocese  collectively  or  in  a  body,  but  is  bound,  within  eight 
days  after  it  is  informed  of  vacancy,  to  appoint  or  rather 
elect  a  vicar  or  vice  gerent,  or  administrator,  whose  right 
and  duty  it  is  to  govern  and  administer  the  diocese  in  the 
name  of  the  chapter,  and  as  its  vicar,  agent,  or  representa 
tive.  This  administrator  is  consequently  Vicarius  Capitularis, 
or  vicar  of  the  chapter. 

III.  These  rights  are  also  vested  in  and  exercised  at  pres 
ent  by  chapters  in  Ireland3  and  England."  They  are  not 
vested  in  our  diocesan  consultors.  For  diocesan  councils, 
as  established  by  the  Third  Plenary  Council  of  Baltimore,  are 
not  cathedral  chapters,  and  therefore  cannot  be  said  to  be 
possessed  of  rights  which  the  law  confers  on  cathedral  chap 
ters  proper,  unless  the  contrary  is  expressly  stated.  Now 
the  TJiird  Plenary  Coiincil  of  Baltimore  makes  no  mention 
whatever  of  any  of  the  above  rights  being  vested  in  diocesan 
councils.  Wherefore  the  administration  of  a  vacant  diocese 
does  not  devolve  upon  our  consultors,  and  consequently  the 
appointment  of  the  administrator  remains  now,  as  before  the 
Third  Plenary  Council,  in  the  hands  of  the  bishop,  or  metro 
politan  or  senior  suffragan  bishop,  as  explained  above,  n. 
638. 

ART.  II. 

When  the  Administrator  must  take  the  Advice  of  the  Consultors. 

However,  as  the  administrator  or  rather  vicar-capitular 
appointed  by  the  cathedral  chapter  must  act  with  the  advice 
and  consent  of  the  chapter,  in  all  cases  where  the  bishop  him 
self  is  obliged  to  do  it,  so,  likewise,  are  administrators  with 
us,  though  not  appointed  by  the  consultors,  bound  to  take 
the  advice  of  these  consultors  in  all  matters  where  the  bishop, 
himself  is  obliged  to  take  this  advice.5 

3  C.  PI.  Hiberniae,  apud  Maynut.,  p.  273  sq. 

4  Cone.  Prov.  Westmon.  I.,  n.  xii.  i;  Coll.  Lac.,  vol.  iii.,  p.  924. 
6  C.  PI.  Bait.  III.,  n.  22. 


during  the  Vacancy  of  t lie  See.  523; 

ART.  III. 
Rights  of  the  Consultors  in  the  Election  of  the  new  Bishop, 

I.  The  second  right  and  duty  which  the  cathedral  chap, 
ter  has  by  the  general  law  of  the  Church  is  to  elect  the  new 
bishop  of  the  vacant  diocese.  The  reason  of  this  law  is  thus 
stated  by  Schmalzgrueber : 6  "  Jus  eligendi  episcopum  con- 
cessum  fuit  capitulo  cujusque  ecclesiae.  Et  merito,  nam 
illi,  qui  sunt  de  corpora  ecclesiae,  melius  censentur  informati 
esse  de  necessitatibus  et  commodis  ecclesiae,  quam  alii  ex- 
tranei.  Igitur  quando  agitur  de  provisione  capitis,  per  quod 
praecipue  gubernari  debet  ecclesia  (dioecesis),  ad  ipsa  mem 
bra  ecclesiae  spectare  decet  electionem  potius  quam  ad  alios 
non  ita  informatos." 

However,  at  the  present  day,  in  all  parts  of  the  world 
save  in  some  dioceses  of  Germany,  the  Roman  Pontiffs  have 
reserved  to  themselves  the  right  of  election  proper,  leaving 
to  chapters  and  others  merely  the  right  of  nominating  or 
rather  commending  the  candidates  for  the  vacant  see.  See 
above,  n.  297  sq.,  and  n.  343. 

This  right  of  recommending  to  the  Holy  See  candidates 
for  the  vacant  diocese  is  vested  in  parish  priests  and  chap 
ters  in  Ireland,  in  chapters  in  England,  and  at  present,  ac 
cording  to  the  discipline  introduced  by  the  Third  Plenary 
Council  of  Baltimore,  also  in  our  diocesan  consultors  and 
irremovable  rectors,  as  explained  above,  n.  345  sq. 

6  Lib.  i.,  tit.  6,  n.  3. 


SUPPLEMENTARY 


NOTES. 


MODE    OF    QUOTING  FROM  THE   "CORPUS  JURIS." 
(a)  n.  l6l. 

Q.  What  is  the  mode  of  quoting  from  the  "  Corpus  Juris 
Canonici "  ? 

A.  I.  From  the  "  Decretum  "  of  Gratian. — Quotations 
from  the  first  part  of  the  "  Decree  "  are  usually  made  thus : 
C.  Regula,  2,  d.  3 — that  is,  canon  the  second,  beginning  with 
the  word  "  Regula,"  distinction  third.  Some  authors  omit 
the  first  word  of  the  canon  and  quote  thus:  C.  2,  d.  3. 
Others  omit  the  number  of  the  canon,  quoting  thus:  C. 
Rcgula,  d.  3.  Quotations  from  the  second  part  of  the  "  De 
cree  "  are  generally  thus  made :  C.  Omnes,  4,  c.  6,  q.  i — that 
is,  the  fourth  canon,  whose  first  word  is  "  Omnes,"  of  the 
first  question  under  the  sixth  cause.  Some  authors  omit 
the  first  word  of  the  canon  ;  others  its  number.  The  third 
question  of  the  thirty-third  cause  is  a  treatise  on  penance, 
divided  into  seven  special  distinctions,  and  usually  quoted 
as  follows:  C.  Qualitas,  2,  d.  5,  d.  Poenit.—tt\z.t  is,  the  second 
canon,  whose  first  word  is  "  Qualitas,"  of  the  fifth  distinc 
tion  in  the  treatise  on  penance.1  Quotations  from  the  third 
part  of  the  "  Decree  "  are  generally  made  thus  :  C.  Ut  osteu- 
deret,  123,  d.  4,  de  Consecr. — that  is,  the  I23d  canon,  beginning 
with  the  words  "  Ut  ostenderet,"  of  the  fourth  distinction 
in  the  treatise  on  consecration.  To  Gratian's  "  Decree  " 

'  Phillips,  Kirchenr ,  vol.  iv.,  p.  154. 

524 


Supplementary   Notes.  525 

are  annexed  "  Canones  Apostolorum  "  and  "  Canones  poeni- 
tentiales."  The  latter  are  quoted  :  C.  Poenit.  14 — that  is,  the 
fourteenth  penitential  canon ;  the  former  :  C.  Apost.  15 — that 
is,  the  fifteenth  apostolic  canon. 

II.  From  the  Decretals  of  Pope   Gregory  IX. — In  quoting 
from  the  books  of  the  decretals,  the  first  word  of  the  chap 
ter  is  usually  given ;  then  the  title  of  the  book ;  next  the 
letter  X,  which  stands  for  extra,  showing  that  the  citation 
is  not  from  Gratian's  "  Decree."     Here  is  a  specimen  quo 
tation  :  Cap.  Quotiens  X,  de  Pactis — that  is,  the  chapter  be 
ginning  with  the  word  "  Quotiens,"  under  the  title  "  de  Pac 
tis,"  in  the  decretals.     The  easiest  way  to  find  the  text  of  this 
quotation  is  to  run  over  the  alphabetical  index  attached  to 
the  decretals,  find  the  letter  P,  where  it  will  be  seen  that 
the  title  "  de  Pactis  "  is  the  thirty-fifth  title  of  the  first  book 
of  the  decretals.     Quotations  from  the  sixth  and  seventh 
books  of  the  decretals  are  found  in  a  similar  manner. 

III.  The  sixth  and  seventh  books  of  the  decretals  are 
quoted  like  the  five  just  mentioned,  with  the  addition,  re 
spectively,  in  6°  and  in  7°,  which   means   in  the  sixth  or 
seventh  book  of  the  decretals. 

IV.  The  "  Clementinae  "  are  thus  quoted  :  Clem.  Multo- 
rum,  de  Poenis — that  is,  in  the  "  Clementinae  "  (collection  of 
decretals  by  Pope  Clement  V.),  the  chapter  beginning  with 
the  word  Multorum,  under  the  title  "  de  Poenis."     To  find 
this  place,  the  title  "  de  Poenis  "  should  be  looked  for  in  the 
index  appended  to  the  "  Clementinae,"  and  it  will  be  seen 
that  this  is  the  eighth  title  of  the  fifth  book  of  the  "  Clemen 
tinae." 

V.  Quotations  from  the  "  Extravagantes  "  of  Pope  John 
XXII.  are  as  a  rule  thus  made  :  Extrav.  Ecclesiae,  de  Major, 
et  Obed.  — that  is,  the  chapter  whose  first  word  is  Ecclesiae, 
under  the  title  "  de  Majoritate  et  Obedientia,"  in  the  "  Ex 
travagantes  "  of  John  XXII. 

VI.  Quotations  from  the  "Extravagantes  Communes" 


526 


Supplementary   Notes. 


are  thus  made:  Extrav.  Comm.  Etsi,  de  Praeb.  et  Dignti.— 
that  is,  the  chapter  beginning  with  the  word  Etsi,  under  the 
title  "  de  Praebendis  et  Dignitatibus,"  in  the  "  Extra va 
gantes  Communes."  This  title,  if  looked  for  in  the  index, 
will  be  found  to  be  the  second  title  of  the  third  book  of  the 
"  Extravagantes  Communes."3 

IRREMOVABLE  RECTORS  IN  THE  UNITED  STATES. 

(ft)  n.  260. 

Can  Bishops  in  the  United  States  make  more  than  one  of 
every  ten  rectors  irremovable,  ivithin  the  first  twenty  years  after 
the  promulgation  of  the  Third  Plenary  Council  of  Baltimore  ? 
They  can,  if  they  consider  it  prudent.  For  the  Third 'Plen 
ary  Council  of  Baltimore  (n.  35)  merely  advises  bishops  not 
to  exceed  the  above  number,  inconsulte,  i.e.,  without  good 
reasons. 

SENTENCES   EX  INFORMATA  CONSCIENTIA. 

(tf)  n.  445- 

What  do  we  mean  by  sentences  ex  informata  conscientia  f 
Is  every  extrajudicial  act  or  sentence  of  the  bishop  an  act  or 
sentence  ex  informata  conscientia  simply  because  it  is  extra- 
judicial?  In  other  words,  are  the  terms  "extrajudicial" 
and  "  ex  informata  conscientia  "  always  synonymous  ?  By  no 
means.  For  by  sentences  "  ex  informata  conscientia  "  we  un 
derstand  only  two  kinds  of  extrajudicial  sentences — namely, 
where  the  bishop,  by  virtue  of  C.  i.,  d.  R.,  sess.  xiv.  C.  Trid., 
extrajudicially,  I,  either  forbids  a  person  to  receive  sacred 
orders,  2,  or  suspends  him  from  orders  already  received. 
In  these  two  cases  only,  there  is  no  appeal  or  recourse  to 
the  metropolitan,  but  only  to  the  Holy  See.  From  other 


1  Craiss.,  Man.,  n.  194,  sq. ;  Bouix,  de  Princ.,  p.  490. 


Supplementary   Notes.  527 

cxtrajudicial  acts  or  sentences  of  bishops  an  appeal  can  gene 
rally  be  made  to  the  metropolitan,  since  they  are  not  acts  or 
sentences  "ex  informata  conscientia,"  though  extrajudicial.' 
Observe,  also,  that  dismissal  from  parish,  even  in  the  United 
States,  not  being  per  se  suspension,  cannot  be  inflicted  "  ex 
informata  conscientia/'  and  therefore  allows  of  appeal  to  the 
metropolitan.4 

A.POSTOLI,  OR  CERTIFICATE  OF  APPEAL  FROM  THE   SUPERIOF 
"A  QUO"   TO  THE   SUPERIOR  "AD  QUEM." 

(e)  n.  453. 

According  to  Cardinal  Soglia,6  these  "  apostoli,"  or  let 
ters  from  the  superior  "  a  quo  "  to  the  superior  "  ad  quern," 
certifying  to  the  appeal,  are  no  longer,  at  least  universally, 
in  use  ;  and  in  their  stead  the  appellant  is  given  a  copy  both 
of  the  sentence  or  decree  from  which  he  appeals  and  of  the 
appeal  itself,  as  authenticated  by  ihejiidex  a  quo*  This  copy 
or  certificate  of  appeal  (apostoli},  where  given,  is  presented 
by  the  appellant  to  the  superior  ad  quern  ;  and  the  latter,  if 
he  admits  the  appeal  only  "  in  devolutivo,"  gives  the  appel 
lant  mandatory  letters,  commanding  the  superior  "  a  quo  ' 
to  forward  to  him,  within  a  stated  time,  the  acts  in  the  case  ; 
but  if  he  receives  the  appeal  "  in  suspensive,"  he,  moreover, 
issues  letters  (litterae  inhibitoriales]  commanding  the  superior 
"  a  quo  "  not  to  proceed  an}^  further  in  the  case/ 


EFFECTS  OF  APPEALS. 

(C)  ».  453- 

We  premise  :  By  the  judex  a  quo  is  meant  the  superior 
{v.g.  ,  bishop)  from  or  against  whose  decision  the  appeal  is 

1  Bouix,  de  Episc.,  t.  i.,  p.  474.  *  Id.,  de  Judic.,  t.  ii.,  p.  252. 

*  Tom.  ii.,  p.  525.  *  Devot',  lib.  iii.,  tit.  xv.,  n.  n. 

*  Soglia,  1.  c.,  D.  526. 


528  Supplementary   Notes. 

made  :  by  the  judex  ad  quern,  the  superior  (v.g.>  metropoli 
tan  or  pope)  to  whom  the  appeal  is  directed. 

I.  Effects  of  Appeals  on  the  Superior  "a  quo" — I.  He  if 
bound  to  defer  to  any  appeal  interposed  for  just  cause. 
Now,  in  order  that  the  cause  of  the  appeal  should  be  con 
sidered  just,  it  is  not  necessary  that  its  existence  should  be 
actually  verified,  but  merely  that  it  be  of  such  nature  that, 
if  its  existence  were  proved,  it  would  be  considered  legiti 
mate.  2.  If  the  superior  a  quo  does  not  defer  to  a  lawful  ap 
peal,  he  becomes  liable  to  deposition  (at  least  when  there  is 
question  of  appeals  to  the  Holy  See)  or  other  penalty  at  the 
discretion  of  the  proper  superior;  and  the  appellant  may, 
notwithstanding,  continue  his  appeal.  3.  In  case  of  doubt 
whether  there  is  just  cause  for  appealing,  he  should  defer  to 
the  appeal,  especially  when  made  from  a  final  sentence. 
4.  In  cases  where  appeals  are  forbidden  by  canon  law 
(supra,  n.  445,  sq.),  or  where  interposed  frivolously,  he  (the 
superior  a  quo)  need  not,  nay,  should  not,  defer  to  them, 
and  may,  notwithstanding  the  appeal,  proceed  in  the  case 
without  rendering  himself  liable  to  punishment.  5.  But 
even  where  he  lawfully  refuses  to  consent  or  defer  to  the 
appeal  he  should,  nevertheless,  give  the  appellant  letters 
certifying  to  the  appeal  (apostoli),  or  an  authentic  copy 
of  the  sentence  and  of  the  appeal  as  made  known  to  him. 
Bouix8  holds  that  the  authentic  copy  or  apostoli  are  always 
to  be  given. 

II.  Effects  upon  the  Superior  "  ad  quern" — What  is  the  duty 
of  the  superior  ad  quern  with  regard  to  appeals  brought  to 
his  tribunal?  i.  He  should  first  of  all  determine  whether 
the  appeal  was  properly  interposed.  Before  doing  so  he  can 
not  take  cognizance  of  the  cause  itself,  nor  remit  it  to  the 
superior  a  quo.  2.  If  he  decides  that  the  appeal  has  been  prop 
erly  interposed,  the  whole  case  devolves  co  ipso  upon  him  for 

8  Supra,  n.  453.     Cf.  Bouix,  de  Judic.,  t.  ii.,  p.  286. 


Supplementary   Notes.  529 

adjudication,  no  matter  whether  the  appeal  was  from  a  final 
or  interlocutory,  judicial  or  extrajudicial,  sentence.  Hence 
it  is  his  duty  to  try  the  whole  case,  and  he  can  send  for  per 
sons  and  papers,  and  demand  an  authentic  copy  of  the  min 
utes  or  acts  of  the  court  or  superior  from  whom  the  appeal 
is  made.  He  can  pronounce  final  sentence,  and  also  enforce 
it,  unless  an  appeal  is  also  made  from  his  decision.  3.  When 
he  has  been  notified  of  an  appeal  made  to  him  with  the 
requisite  formalities— that  is,  within  the  proper  time,  au 
thenticated  by  the  superior  a  quo,  etc.— he  can  at  once— that 
is,  as  soon  as  he  begins  to  consider  the  admissibility  of  the 
appeal — forbid  the  superior  a  quo  to  execute  his  sentences 
if  final :  but  if  the  sentence  be  not  final  he  can  do  so  only 
after  it  has  been  shown  that  the  appeal  is  admissible,  ac 
cording  to  the  canons,  and  that  in  the  presence  of  the  parties. 
This  brings  us  to  another  very  important  effect  of  ap 
peals,  which  is  thus  expressed  :  Whatever  ulterior  steps  are 
taken  in  the  case  by  the  superior  a  quo,  after  the  appeal  has 
been  interposed  and  pending  the  appeal,  are  to  be  considered 
as  vain  and  futile  attempts  (attentata),  which  are  of  no 
effect  and  should  be  rescinded.  Now,  what  in  particular 
are  to  be  looked  upon  as  attempts  of  this  kind  ?  We  an 
swer:  All  such  steps  as  are  taken  by  the  superior  a  quo 
against  the  appellant  either  after  the  appeal  from  a  final  or 
quasi-final  sentence  (judicial  or  extrajudicial)  was  interposed, 
or  even  during  the  time  intervening  between  the  pronounc 
ing  of  the  sentence  and  the  making  of  the  appeal.  Now, 
how  are  these  attempts  to  be  reversed?  i.  The  superior 
ad  quern  can  annul  them  both  cx-officio,  and  at  the  request  of 
the  appellant.  2.  They  can,  nay,  should,  if  the  appellant  so 
asks,  be  revoked,  even  before  it  is  shown  that  there  was  a 
just  cause  for  appealing,  and  before  the  hearing  of  the 
cause  itself  takes  place  ;  and  this  holds  true  not  only  with 
regard  to  appeals  from  final  or  interlocutory  sentences  hav- 


530 


Supplementary   Notes* 


ing  the  force  of  final  sentences,  but   also  with  regard  to 
appeals  from  extra] udicial  acts.9 

THE  VISIT  AD  "  SS.    LIMINA "   BY  THE  BISHOPS  OF  IRELAND. 

(1?)  n.  472. 

Q.   How  often  are  the  bishops  of  Ireland  at  present  to 
make  their  visit  ad  limina  ? 

A.  At  first  (Const.  Romanns  Pontifex  ann.  1585)  they  were 
bound  to  make  the  visit  every  four  years;  afterwards— 
namely,  from  1631 — only  every  ten  years.  But  at  present, 
according  to  the  decree  of  the  Propaganda,  dated  September 
i,  1876,  they  are  obliged  to  make  the  visit  ad  limina- once 
every  five  years.  (Apud  Cone.  PI.  apud  Maynooth,  A.D 
1875,  p.  281.) 

HOW  THE  TERMS,  WHETHER  OF  THREE,  FOUR,  FIVE,  OR  TEN 
YEARS,  FOR  THE  EPISCOPAL  VISIT  "AD  LIMINA  SACRA" 
ARE  TO  BE  COUNTED. 

(8)  n.  472,  556. 

IJOir  From  what  has  been  said  above  (n.  556),  it  follows  that 
if,  for  instance,  the  visitation  for  the  decennium  beginning 
with  December  20,  1885,  and  ending  with  December  20,  1895, 
has  been  made  by  the  bishop  or  his  procurator,  at  any  time 
during  said  period,  the  successor  of  such  bishop,  even  though 
he  is  appointed  several  years  before  the  expiration  of  De 
cember  20,  1895,  need  not  make  the  visitation  during  the 
period  of  1885-1895.  On  the  other  hand,  if  a  bishop  who  is 
appointed  even  but  a  few  months  before  December  20,  1895, 
finds  that  none  of  his  predecessors  has  made  the  visit  within 
1885  and  1895,  he  is  bound  to  make  it  before  December  20, 
1895,  unless  he  obtains  a  dispensation  from  Rome.  Likewise, 
where  a  new  diocese  is  established  with  us,  for  instance  in 
9  Bouix,  de  Judic.,  vol.  ii.,  pp.  285-293;  Craiss..  a.  5990,  sq. 


Supplementary  Notes.  531 

1887,  the  decennial  term  within  which  the  first  bishop  is 
obliged  to  make  his  first  visit  ad  limina,  does  not  begin  from 
the  time  the  new  diocese  was  formed — 1887,  but  from  De 
cember  20,  1885,  and  ends  December  20,  1895. 10 

THE   RIGHT   OF   OPTION   VESTED   IN   CARDINALS, 
(z)  n.  496. 

Q.  What  is  the  right  of  option  (jus  optandi)  of  cardi 

nals? 

A.  It  consists  substantially  in  this,  that  when  a  subur 
bicary  bishopric,  or  a  title,  or  a  diaconate  becomes  vacant , 
the  next  oldest  cardinal  (by  creation)  of  the  respective 
order  has  a  right  to  give  up  his  own  title  and  choose  the 
vacant  one.  Thus,  if  the  see  or  title  of  a  cardinal-bishop 
becomes  vacant,  the  next  oldest  cardinal-bishop  can  select 
it ;  if  the  title  or  church  of  a  cardinal-priest  falls  vacant,  the 
next  oldest  cardinal-priest  can  choose  it.11  Nay,  sometimes 
a  cardinal  of  one  order  may  select  the  title  of  another  order. 
Thus,  the  oldest  cardinal-priest  can  choose  the  title,  when 
vacant,  of  the  youngest  cardinal-bishop ;  and  the  oldest 
cardinal-deacon  that  of  the  youngest  cardinal-priest.  More 
over,  a  deacon,  when  ten  years  a  member  of  the  Sacred  Col 
lege,  precedes  in  the  exercise  of  the  right  of  option  cardi 
nal-priests  created  after  him.  This  right  of  option  belongs 
only  to  cardinals  resident  in  Rome  or  absent  temporarily 
for  a  public  cause." 

THE   PROPAGANDA  AND   MISSIONARY   COUNTRIES. 
(*)  n.  508. 

In  order  not  to  be  misunderstood  in  regard  to  what  we 
say  under  n.  508,  we  here  observe  that  affairs  or  questions 

10  Cone.  PI.  Bait.  III.,  n.  13;  Instr.  S.  C.  de  P.   F.  June  i,  1877,  in  C.  PI 
Bait.  III.,  p.  197. 

11  Phillips,  Kirchenr..  vol.  vi.,  p.  238.          n  Id.,  Comp.,  ed  Vering,  §  no. 


532 


Supplementary   Notes. 


from  missionary  countries  are  sometimes  referred  by  the 
Propaganda  to,  and  decided  by,  one  of  the  other  congrega 
tions  charged  with  the  specific  matter.  But,  in  all  cases, 
the  Propaganda  is  the  organ  of  communication.  Hence, 
no  matter  whether  the  Propaganda  itself  solves  the  ques 
tions  or  merely  causes  them  to  be  solved  by  one  of  the 
other  congregations,  the  petitions  or  questions  must  always 
be  addressed  to,  and  the  answers  or  dispensations  are  always 
returned  by,  the  Propaganda.  Therefore  all  affairs  of  m«s- 
sionary  countries  are  arranged  solely  by  the  Propaganda, 
at  least  as  the  organ  of  communication. 


RECENT  DECISION  OF  THE  HOLY  SEE  CONCERNING  THE 
CUSTOM  PREVALENT  IN  SOME  PARTS  OF  THE  UNITED 
STATES  OF  RECEIVING  A  NUMBER  OF  ALMS  OR  STIPENDS 
FOR  THE  MASS  ON  ALL  SOULS'  DAY. 

(A)  n.  593. 

The  following  case  was  submitted  to  the  Propaganda  by 
one  of  the  bishops  in  the  United  States  : 

Compendium  facti. — Reverendissimus  Episcopus  R.  in 
America  ad  Emum.  Praefectum  S.  Congr.  de  Prop.  Fid. 
epistolam  misit  sequentis  tenoris : 

"  In  pluribus  Foederatorum  Statuum  Americae  Septen- 
trionalis  dioecesibus,  et  etiam  in  hac  mea  R.  invaluit  con- 
suetudo  ut  pro  unica  Missa  quae  in  die  commemorationis  om 
nium  fidelium  defunctorum  cantatur,  fideles  contribuant  pe- 
cuniam.  Summa  autem  pecuniae  sic  collecta  ordinarie  tanta 
est,  ut  plurium  centenarum  Missarum  eleemosynas  facile 
exaequet.  Inter  eos  qui  pecuniam  hoc  modo  contribuunt, 
plurimi  sunt  de  quibus  dubitari  merito  possit,  utrum  earn 
hoc  modo  collaturi  forent,  si  rite  edocerentur  animabus 
purgatorii,  quas  sic  juvare  intendunt,  melius  provisum  iri, 
si  tot  Missae  pro  iis,  licet  extra  diem  commemorationis 


Supplementary   Notes.  533 

omnium  fidelrum  defunctorum,  celebrarentur,  quot  juxta 
taxam  dioecesanam  continentur  stipendia  in  summa  totali 
sic  contributa. 

"  Ut  erroneae  fidelium  opinioni  occurratur,  in  quibusdam 
dioecesibus  Statute  Synodali  cautum  est,  ut,  nisi  singulis 
annis  praevia  diligens  totius  rei  explicatio  populo  fiat, 
missionariis  earn  fidelium  pecuniam  pro  unica  ilia  Missa 
accipere  non  liceat. 

"  Quare  Eminentiam  Vestram  enixe  achumillimeprecor, 
ut  pro  pace  conscientiae  meae,  ad  dubia  sequentia  respon- 
dere  dignetur: 

"  i.  Utrum  praedicta  consuetude  absolut*  prohibenda  sit  ? 
Quod  si  negative  : 

"2.  Utrum  tolerari  possit  casu  quo  quotannis  praevia 
ilia  diligens  totius  rei  explicatio  populo  fiat?  Quod  si 
affirmative  : 

"  3.  Utrum,  si  timor  sit  ne  vel  missionarii  praeviam 
illam  diligentem  eamque  plenam  totius  rei  explicationem 
populo  praebeant,  vel  populus  earn  satis  intelligat,  ordina- 
rius  istam  consuetudinem  prohibere  possit,  et  missionariis 
injungere,  ut  pro  tota  summa  contributa,  intra  ipsum  men 
sem  Novembris  tot  legantur  vel  cantentur  Missae,  quot  in 
ea  continentur  stipendia,  pro  Missis  sive  lectis,  sive  canta- 
tis  ?  Quod  si  affirmative  : 

"  4.  Utrum  ob  rationem,  quod  Missae  illae  intra  ipsum 
mensem  Novembris  legendae  vel  cantandae  sint,  ordina- 
rius  consuetum  Missarum  sive  legendarum  sive  cantandarum 
stipendium,  pro  aequo  suo  arbitrio  pro  illis  Missis  possit 
augere  ?  " 

On  January  27,  1877,  the  S.  C,  Concilii,  to  whom  the 
case  had  been  referred  by  the  Cardinal- Prefect  of  the  Propa 
ganda,  gave  the  following  answer  : 

Responsum :  "  Nihil  innovetur ;  tantum  apponatur  ta- 
bella  in  ecclesia,  qua  fideles  doceantur,  quod  illis  ipsis  elee- 


534 


Supplementary   Notes. 


mosynis  una  canitur  Missa  in  die  commemorationis  omnium 
fidelium  defunctorum." 

THE   RECENT    PLENARY   SYNOD    OF    MAYNOOTH   ON    THE 
REMOVAL  OF  PARISH   PRIESTS. 

O)  n.  648. 

Q.  How  are  parish  priests  removed  in  Ireland,  according 
to  the  Plenary  Council  of  Maynooth,  held  in  1875  ? 

A.  We  premise  :  In  Ireland  parish  priests  are  appointed 
for  life,  and  they  were  not  made  removable  at  pleasure  by 
the  Synod  of  Maynooth.  We  now  answer :  The  Synod  of 
Maynooth  insinuates  that  in  the  dismissal  of  parish  priests 
the  forms  of  regular  canonical  trials  cannot  be  observed  in 
every  particular,  and  seems  to  leave  the  determination  of  the 
particular  mode  of  conducting  trials  to  the  provincial  councils 
of  the  respective  provinces.  However,  it  refers  to  the  mode 
adopted  in  England,  and  would,  therefore,  seem  to  recom 
mend  that  parish  priests  in  Ireland  be  finally  dismissed  upon 
trial  to  be  conducted  by  the  committee  of  investigation  of 
the  diocese,  composed  of  five  priests.18 


DIFFERENCE   BETWEEN   THE    CELEBRATION  AND    BLESSING 
OF  A   MARRIAGE. 

(v]  n.  659. 

We  distinguish,  as  will  be  observed  (n.  659),  between 
"  assisting  at "  and  "  blessing  "  a  marriage.  For  by  the 
blessing  of  the  marriage  is  not  meant  the  celebration  of  the 
marriage  itself  or  the  act  of  uniting  in  marriage,  nor  the 
verses  Confirma  hoc,  etc.,  with  the  prayer  Respice,  which  are 
always  said  after  the  blessing  and  the  giving  of  the  nuptial 

"  Syn.  PI.  Mayn.,  n-  261  ;  cf.  ib  ,  p.  248. 


Supplementary  Notes.  535 

ring,  but  those  prayers  which  the  missal  prescribes  in  the 
Mass  "  pro  sponso  et  sponsa."  This  blessing  (benedictio  nup- 
tialis]  or  the  one  that  takes  its  place  on  days  impeded  by  the 
Rubrics,  can  be  given  only  in  the  Mass  "  pro  sponso  et 
sponsa";  it  is  distinct  and  separable  from  the  celebration 
of  the  marriage.  Thus,  the  marriage  itself  may  be  performed 
by  one  priest,  and  the  nuptial  blessing  given  by  another. 

CAN    NON-CATHOLICS   BE    SOMETIMES    BURIED    IN   CATHOLIC 

CEMETERIES  ? 

(£)  n.  66 1. 

In  the  United  States  Catholics  having  family  lots  in  Ca 
tholic  cemeteries  sometimes  wish  to  have  non-Catholic  rela 
tives  or  members  of  the  family  buried  in  such  lots.  Can  it 
be  allowed?  Some  say  yes,  in  view  of  the  words  of  the 
Fathers  of  the  Second  Plenary  Council  of  Baltimore:14 
"  Ex  mente  Sedis  Apostolicae  toleratur,  ut  in  sepulchris 
gentilitiis  {family  lots),  quae  videlicet  privata  et  peculiaria 
pro  Catholicis  laicorum  familiis  aedificantur,  cognatorum  et 
affinium  etiam  Acatholicorum  corpora  tumulentur."  Others 
maintain  the  negative,  except  in  regard  to  family  vaults 
or  vaulted  sepulchres  for  families. 

(o)  n.  659. 

Father  Perrone  demonstrates  that  the  true  teaching  (doc- 
trina  vera)  is  that  both  mixed  marriages  and  the  marriages  of 
Protestants  among  themselves,  in  places  where  the  decree  Ta- 
metsi  obtains,  when  solemnized  contrary  to  the  prescriptions 
of  this  decree,  are  invalid,15  unless,  by  a  special  and  express  in- 
dultofthe  Holy  See,  the  declaration  of  Benedict  XIV.  regard 
ing  marriages  in  Holland  and  Belgium  has  been  extended  to 
such  places.10  So  far  as  the  U.  S.  are  concerned,  it  seems  that 
the  declaration  of  Pope  Benedict  XIV.  has  been  extended  to 
nearly  all,  if  not  all,  places  where  the  decree  Tame t si  obtains. 

"  N.  389.     15  Perrone,  De  Matr.  Christ.,  vol.  ii.,  p.  230.     16  Ib.,  pp.  209-239. 


APPENDIX. 


i. 

CONSTITUTIO  SS.  D.  N.  PIT  PP.  IX.,  QUA  NUMERUS  CEN- 

SURARUM  LATAE  SENTENTIAE  RESTRINGITUR. 

D.  12.  OCT.,  1869. 

PIUS   EPISCOPUS    SERVUS   SERVORUM  DEI  AD  PERPETUAM 
REI    MEMORIAM. 

Apostolicae  Sedis  moderation!  convenit,  quae  salubriter  veterum  canonum 
auctoritate  constituta  sunt,  sic  retinere,  ut,  si  temporum  rerumque  mutatio 
quidpiam  esse  temperandum  prudenti  dispensatione  suadeat,  eadem  Apos- 
tolica  Sedes  congruum  supremae  suae  potestatis  remedium  ac  providentiam 
impendat.  Quamobrem  cunvanimo  nostro  jampridem  revolveremus,  ecclesi- 
asticas  censuras,  quae  per  modum  latae  sententiae  ipsoque  facto  incurrendae 
ad  incolumitatem  ac  disciplinam  ipsius  Ecclesiae  tutandam,  effrenemque  im- 
proborum  licentiam  coercendam  et  emendandam  sancte  per  singulas  aetates 
indictae  ac  promulgatae  sunt,  magnum  ad  numerum  sensim  excrcvisse  ;  quas- 
dam  etiam,  temporibus  moribusque  mutatis,  a  fine  atque  causis,  ob  quas  im- 
positae  fuerant,  vel  a  pristina  utilitate  atque  opportunitate  excidisse  ;  eamque 
ob  rem  non  infrequentes  oriri  sive  in  iis,  quibus  animarum  cura  commissa  est, 
sive  in  ipsis  fidelibus  dubietates,  anxietates  angoresque  conscientiae  ;  nos 
ejusmodi  incommodis  occurrere  volentes,  plenam  earumdem  recensionem  fieri 
nobisque  proponi  jussimus,  ut,  diligenti  adhibita  consideratione,  statueremus, 
quasnam  ex  illis  servare  ac  retinere  oporteret,  quas  vero  moderari  aut  abro- 
gare  congrueret.  Ea  igitur  recensione  peracta,  ac  venerabilibus  fratribus 
nostris  S.  R.  E.  cardinalibus  in  negotiis  fidei  generalibus  inquisitoribus  per 
universam  Christianam  rempublicam  deputatis  in  consilium  adscitis,  reque 
diu  ac  mature  perpensa,  motu  proprio,  certa  scientia,  matura  deliberatione 
nostra,  deque  apostolicae  nostrae  potestatis  plenitudine  hac  perpetuo  vali- 
tura  Constitutione  decernimus,  ut  ex  quibuscumque  censuris.  sive  excommu- 
nirationis,  sive  suspensionis,  sive  interdict!,  quae  per  modum  latae  sententiae 
ipsoque  facto  incurrendae  hactenus  impositae  sunt,  nonnisi  illae,  quas  in  hac 

536 


Appendix.  537 

ipsa  Constitutione  inserimus,  eoque  modo,  quo  inserimus,  robur  exinde  habe- 
ant  ;  simul  declarantes,  easdem  non  modo  ex  veterum  canonum  auctoritate, 
quatenus  cum  hac  nostra  Constitutione  conveniunt,  verum  etiam  ex  hac  ipsa 
Constitutione  nostra,  non  secus  ac  si  primum  editae  ab  ea  fuerint,  vim  suam 
prorsus  accipere  debere. 

Excommunicationes  Latae  Sententiae  Speciali  Modo  Romano  Pontifici 

Reservatae. 

Itaque  excommunicationi  latae  sententiae  speciali  modo  Romano  Pontifici 
reservatae  subjacere  declaramus: 

I.  Omnes  a  Christiana  fide  apostatas,   et  omnes  ac  singulos  haeteticos, 
quocumque  nomine  censeantur,  et  cujuscumque  sectae  existant,  eisque  cre- 
dentes,   eorumque  receptores,    fautores,  ac  generaliter  quoslibet  illorum  de- 
fensores. 

II.  Omnes  et  singulos  scienter  legentes  sine  auctoritate  Sedis  Apostolicac 
libros  eorumdem  apostatarum  et  haereticorum  haereshn  propugnantes,  necnon 
libros  cujusvis  auctoris  per  Apostolicas  iitteras  nominatiin  prohibitos,  eosdem- 
que  libros  retinentes,  imprimentes  et  quomodolibet  defendentes. 

III.  Schismaticos  et  eos,  qui  a  Roman!  Pontificis  pro  tempore  existentis 
obedientia  pertinaciter  se  subtiahunt  vel  recedunt. 

IV.  Omnes  et  singulos,  cujuscumque  status,  gradus  seu  conditionis  fue 
rint,  ab  ordinationibus  seu  mandatis  Romanorum    Pontificum   pro   tempore 
existentium  ad  universale  futurum  concilium  appellantes,  necnon  eos,  quorum 
auxilio,  consilio  vel  favore  appellatum  fuerit. 

V.  Omnes  interficientes,  mutilantes,  percutientes,  capientes,  carcerantes, 
detinentes,  vel  hostiliter  insequentes  S.  R.  E.  cardinales,  patriarchas,  archi- 
episcopos,    episcopos,   Sedisque  Apostolicae   legates,   vel    nuncios,   aut   eos 
a    suis    dioecesibus,  territoriis,    terris,    seu   dominiis   ejicientes,    necnon   ea 
mandantes,  vel  rata  habentes,  seu  praestantes  in  eis  auxilium,  consilium  vel 
favorem. 

VI.  Impedientes  directe  vel  indirecte  exercitium  jurisdictionis  ecclesiasti- 
cae  sive  interni  sive  extern!  fori,  et  ad  hoc  recurrentes  ad  forum  saeculare 
ejusque  mandata  procurantes,  edentes,  aut  auxilium,  consilium  vel  favorern 
praestantes. 

VII.  Cogentes,   sive  directe  sive  indirecte,  judices  laicos  ad  trahendum 
ad   suum  tribunal    personas   ecclesiasticas   praeter   canonicas   dispositiones: 
item  edentes  leges  vel  decreta  contra  libertatem  aut  jura  Ecclesiae. 

VIII.  Recurrentes  ad  laicam  potestatem  ad  impediendas  Iitteras  vel  acta 
quaelibet  a  Sede  Apostolica,  vel   ab  ejusdem   legatis  aut  delegatis  quibus- 
cumque   profecta   eorumque    promulgationem   vel   executionem    directe   vel 
indirecte  prohibentes,  aut  eorum  causa  sive  ipsas  partes,  sive  alios  laedentes. 
vel  perterrefacientes. 


538  Appendix. 


iX.  Omnes  falsarios  litterarum  apostolicarum,  etiam  in  forma  brevis  ac 
supplicationum  gratiam  vel  justitiam  concernentium  per  Romanum  Ponti- 
ficem,  vel  S.  R.  E.  vice-cancellarios  seu  gerentes  vices  eorum  aut  de  mandato 
ejusdem  Romani  Pontificis  signatarum :  necnon  falso  publicantes  litteras 
apostoHcas,  etiam  in  forma  brevis,  et  etiam  falso  signantes  supplicationes 
hujusmodi  sub  nomine  Romani  Pontificis,  SRU  vice-cancellarii  aut  gerentis 
vices  praedictorum. 

X.  Absolventes  complicem  in  peccato  turpi  etiam  in  mortis  articulo,  si 
alius  sacerdos  licet  non  adprobatus  ad  confessiones,  sine  gravi  aliqua  exori- 
tura  infamia  et  scandalo,  possit  excipere  morientis  confessionem. 

XL  Usurpantes  aut  sequestrantes  jurisdictionem,  bona,  reditus  ad  per- 
sonas  ecclesiasticas  ratione  suarum  Ecclesiarum  aut  beneficiorum  perti- 
nentes. 

XII.  Invadentes,  destruentes,  detinentes  per  se  vel  per  alios  civitates, 
terras,  loca  aut  jura  ad  Ecclesiam  Romanam  pertinentia  ;  vel  usurpantes,  per- 
tuibantes,  retinentes  supremam  jurisdictionem  in  eis ;  necnon  ad  singula 
praedicta  auxilium,  consilium,  favorem  praebentes.1 

A  quibus  omnibus  excommunicationibus  hue  usque  rcc^nsitis  absolu- 
tionem  Romano  Pontifici  pro  tempore  speciali  modo  reservatam  esse  et  reser- 
vari ;  et  pro  ea  generalem  concessionem  absolvendi  a  casibus  et  censuris  sive 
excommunicationibus  Romano  Pontiftci  reservatis  nullo  pacto  sufficere  decla 
ramus,  revocatis  insuper  earumdem  respectu  quibuscumque  induhis  concessis 
sub  quavis  forma  et  quibusvis  personis  etiam  regularibus  cujuscumque 
ordinis,  congregationis.  societatis  et  instituti,  etiam  speciali  mentione  dignis 
et  in  quavis  dignitate  constitutis.  Absolvere  autem  praesumentes  sine  debita 
facultate,  etiam  quovis  praetextu,  excommunicationis  vinculo  Romano  Ponti 
fici  reservatae  innodatos  se  sciant,  dummodo  non  agatur  de  mortis  articulo,  in 
quo  tamen  firma  sit  quoad  absolutos  obligatio  standi  mandatis  Ecclesiae,  si 
convaluerint. 

1  To  the  above  twelve  cases  Pius  IX.,  in  his  C.  Romanus  Pontifex,  Aug.  28,  1873,  added  a 
thirteenth,  which  the  following  persons  incur :  i.  Canonici  ac  dignitates  cathedralium  ecclesiarum 
vacantium,  qui  ausi  fuerint  concedere  et  transferre  ecclesiae  vacantis  curam.  regimen  et  adminis- 
trationem,  sub  quovis  titulo,  nomine,  quaesito  colore  .  in  nominatum  et  praesentatum  i 

laica  potestate  ex  S.  Sedis  concessione  seu  privilegio,  vel,  ubi  consuetude  viget,  a  capitularibus 
ipsis  electum  ad  eandem  ecclesiam  vacantem.  2  Nominati  et  praesentati  vel  ut  supra  electi,  ad 
tracantes  ecclesias,  qui  earum  curam,  regimen  et  administrationem  suscipere  audent.  ...  3. 
15  omnes,  qui  praemissis  paruerint,  vel  auxilium,  consilium  aut  favorem  praestiterint.  cujus- 
cuiique  status,  conditionis,  praeeminentiae  et  dignitatis  fuerint  (supra,  n.  287-294  and  n.  637,  ne'e 
33  ;  Konings,  n.  1717).  A  fourteenth,  which  was  added  by  decision  of  ftie  S.  Poenit  ,  Aug.  4,  1876, 
is  against  the  members,  propagators,  adherents,  and  favorers  (in  any  manner)  of  the  "  Societa  Cat- 
tolica  Italiana  per  la  rivendicazione  dei  diritti  spettanti  al  popolo  christiano  ed  in  ispecie  a'  popolo 
romano" — a  society  recently  established  in  Italy  for  the  purpose  of  giving  the  Roman  people  a 
voice  in  the  election  of  the  Sovereign  Pontiff,  by  means  of  popular  suffrage  (Nouv.  Rev.  Theol.,  p. 
462  seq  ,  livr.  se.,  1876).  Hence,  as  we  said  (supra,  n.  681),  there  are  at  present  fourteen  excommu 
nications  reserved,  speciali  modo,  to  the  Roman  Pontiff. 


Appendix.  539 

Excommunicationes   Latae    Sententiae  Romano   Pontifici    (simpliciter) 

Reservatae. 

Excommunicationi  latae  sententiae  Romano  Pontifici  reservatae  subjacere 
declaramus : 

I.  Docentes  vel   defendentes  sive  publice,  sive  privatim  propositiones  ab 
Apostolica  Sede  damnatas  sub  excommunicationis  poena  latae   sententiae  ; 
item  docentes  vel  defendentes  tamquam  licitam  praxim  inquirendi  a  poeni- 
tente   nomen    complicis   prouti   damnata   est   a   Benedicto    XIV.    in   Const. 
Suprema,  7  Julii,  1744  ;    Ubi primum,   2  Junii,   1746  ;  Ad  eradicandum,  28   Sep- 
ternbris,  1746. 

II.  Violentas  manus,  suadente  diabolo,  injicientes  in  clericos,  velutriusque 
sexus  monachos,  exceptis  quoad  reservationem  casibus  et  personis,  de  quibus 
jure  vel  privilegio  permittitur,  ut  episcopus  aut  alius  absolvat. 

III.  Duellum  perpetrantes,  aut  simpliciter  ad  illud  provocantes,  vel  ipsum 
acceptantes,  et  quoslibet  complices,  vel  qualemcumque  operam  aut  favorem 
praebentes,  necnon  de  industria  spectantes,  illudque  permittentes,  vel  quan 
tum  in  illis  est,  non  prohibentes,  cujuscumque  dignitatis  sint,  etiam  regalis 
vel  imperialis. 

IV.  Nomen   dantes  sectae  Massonicae,   aut  Carfamatiae,   aut  aliis  ejusdem 
generis  sectis,  qua  contra  Ecclesiam  vel  legitimas  potesiates  seu  palam  seu 
clandestine    machinantur,     necnon    iisdem    sectis     favorem     qualemcumque 
praestantes,  earumve  occultos  coryphaeos  ac  duces  non  denunciantes,  donee 
denunciaverint. 

V.  Immunitatem  asyli  ecclesiastici  violare  jubentes,   aut  ausu  temerario 
violantes. 

VI.  Violantes  clausuram  monialium,  cujuscumque  generis  aut  conditionis, 
sexus  vel    aetatis   fuerint,  in   earum  monasteria  absque  legitima  licentia  in- 
grediendo  ;   pariterque  eos  introducentes  vel   admittentes  ;  itemque  moniales 
ab  ilia  exeuntes  extra  casus  ac  formam  a  S.  Pio  V.  in  Constit.  Decori  prae- 
scriptam. 

VII.  Mulieres   violantes    regularium   virorum    clausuram,   et    superiores 
aliosve  eas  admittentes. 

VIII.  Reos  simoniae  realis  in  beneficiis  quibuscumque,  eorumque  com 
plices. 

IX.  Reos   simoniae  confidentialis  in  beneficiis  quibuslibet,  cujuscumque 

sint  dignitatis. 

X.  Reos  simoniae  realis  ob  ingressum  in  religionem. 

XI.  Omnes,  qui  quaestum  facientes  ex  indulgentiis  aliisque  gratiis  spiri- 
tualibus,   excommunicationis    censura    plectuntur    Corstitutione    S.    Pii   V. 
Quam  plenum,  2  Januarii,  1554- 

XII.  Colligentes  eleemosynas  majoris  pretii  pro  missis,  et  ex  iis  lucrum 


54Q  Appendix. 

captantes,  faciendo   eas  celebrari  in  locis,  ubi   missarum    stipendia  minoris 
pretii  esse  solent. 

XIII.  Omnes,  qui   excommunicatione  mulctantur  in    Constitutionibus   S. 
Pii  V.,   Admonet  nos,  quarto  kalendas  Aprilis,  1567;  Innocentii  IX.,  Quae  ab 
hac  Sede,  pridie   nonas  Novembris,    1591  ;  dementis  VIII.,  Ad  Romani  Pon- 
tificis  cti'd/ii,   26  Junii,  1592;  ct  Alexandri  VII..  Jntir  ceteras,  nono  kalendas 
Novembris,  1660,  alienationem  et  infeudationem  civitatum  et  locorum  S.  R  E. 
respicientibus. 

XIV.  Religiosos  praesumentes  clericis  aut  laicis  extra  casum  necessitatis 
sacramentum    Extremae  Unctionis  aut  Eucharisiiae  per  viaticum  ministrare 
absquc  parochi  licentia. 

XV.  Extrahentes   absque    legitima  venia   reliquias  ex  sacris  coemet<  riis 
sive  catacumbis  urbis  Romae  ejusque  territorii,  eisque  auxilium  vel  favorem 
praebentcs. 

XVI.  Communicantes  cum  excommunicato  nominatim  a  Papa  in  crimine 
criminoso,  ei  scilicet  impendendo  auxilium  vel  favorem. 

XVII.  Cleiicos    scienter    et    sponte   communicantes  in  divinis  cum  per- 
sonis    a   Romano    Pontifice   nominatim   excommunicatis    et   ipsos    in    officiis 
recipientes.1 

Excommunicatfoncs   Latae    Sententiae    Episcopis    sive    Ordinariis 

Reservatae. 

Excommunicationi    latae    sententiae   episcopis   sive    ordinariis   reservatae 
subjacerc  declaramus  : 

I.  Clericos  in   sacris  constitutes  vel    regulares  aut  moniales  post  votum 
solemne  castitatis  matrimonium  contrahere  praesumentes  ;  necnon  omnes  cum 
aliqua  ex  praedictis  personis  matrimonium  contrahere  praesumentes. 

II.  Procurantes  abortum,  effectu  sequuto. 

III.  Litteris  apostolicis  falsis  scienter   utentes,   vel  crimini   ea  in   re    co- 
operantes. 

Excommunicationes  Latae  Sententiae  Nemini  Reservatae. 

Excommunicationi    latae    sententiae    nemini    reservatae    subjacere    decla 
ramus  : 

1  To  the  above  seventeen  cases  must  he  added  three  additional  excommunications— namely, 
against,  i,  absolvere  praesumentes  sine  dehita  facultate.  etiam  quovis  praetextu,  excommunica- 
tionis  vinculo  specialiter  reservatae  innodatos  (supra,  excomm.  special!  moco  R  P.  rwervatae,  xii., 
§  A  quibus  .  .  .)  2.  Kcclesiasticos  et  missionaries  in  Indiis  orientalibus  mercaturae  operam 
dantes  (C.  S.  O.,  Dec.  4,  1879).  3.  Against  those  who  adhere  to,  i.e.,  formally  approve  internally 
and  externally,  those  crimes  which  are  punished  with  the  twelfth  excommunication  reserved 
speciali  nicdo,  tc  the  Pope  (Encycl.  Pii  PP.  IX.,  Nov.  i,  1870,  ap.  Konings,  n.  1732).  Altogether 
therefore,  there  are  now,  as  we  have  elsewhere  (supra,  n.  681)  said,  twenty  excommunications 
reserved  simpliciter  to  the  Holy  See. 


Appendix.  54 r 

I.  Mandantes  sen  cogentes  tiadi  ecclesiasticae  sepulturae  haeieticos  noto- 
rios  aut  nominatim  excommunicates  vel  interdictos. 

II  Laedentes  aut  perterrefacientts  inquisitores,  denuntiantes,  testes, 
aliosve  ministros  S.  Officii,  ejusve  sacri  tribunalis  scripturas  diripientes, 
aut  comburentes,  vel  praedictis  quibuslibet  auxilium,  consilium,  lavurem 
praestantes. 

III.  Alienantes  et  recipere  pracsumentes  bona  ecclesiastica  absque  bene- 
placito   apostolico,   ad   formam   extravagantis  Ambitiosae,   De  Reb.   Ecc.  non 
alienandis. 

IV.  Negligentes    sive    culpabiliter  omittentes   denunciare  infra  mensem 
confessarios  sive  sacerdotes,  a  quibus  sollicitati  fuerint  ad  turpia  in  quibus- 
Ubet  casibus  expressis  a  Praedecess.  Nostris  Gregorio  XV.  Constit.  Universi, 
20  Augusti,    1622,  et  Benedicto    XIV.    Constit.    Sacramentum  p.enitentiac,   i 
Junii,  1741. 

Praeter  hos  hactenus  recensitos,  eos  quoque,  quos  sacrosanctum  Con 
cilium  Tridentinum,  sive  reservata  Summo  Pontitici  aut  ordinariis  abso- 
lutione,  sive  absque  ulla  reservatione  excommunicavit,  nos  pariter  excom- 
municatos  csse  declaramus  ;  excepta  anathematis  poena  in  Decreto  sess.  iv. 
De  editione  et  usu  Sacronim  Librorum  constituta,  cui  illos  tantum  subjacere 
volumus,  qui  libros  de  rebus  sacris  tractantes  sine  ordinarii  approbatione 
itnprimunt,  aut  imprimi  faciunt. 

Suspensiones  Latae  Sententiae  Summo  Pontifici  Reservatae. 

I.  Suspensionem  ipso  facto  incurrunt  a  suorum  beneficiorum  perceptione 
ad  beneplacitum  S.  Sedis  capitula  et  conventus  ecclesiarum  et  monasteriorum 
aliique   omnes,    qui    ad    illarum    scu    illorum    regimen    et    administrationem 
recipiunt  episcopos  aliosve  praelatos  de  praedictis  ecclesiis  seu  monasteriis 
apud   eamJem   S.  Sedem   quovis  modo  provisos,  antequam    ipsi  exhibuerint 
litteias  apostolicas  de  sua  promotione. 

II.  Suspensionem  per  triennium  a  collatione  ordinum  ipso  jure  incurrunt 
aliquem  ordinantes  absque  titulo  beneficii  vel  patrimonii  cum  pacto,  ut  ordi- 
natus  non  petat  ab  ipsis  alimenta. 

III.  Suspensionem    per    annum    ab    ordinum    administratione   ipso    jure 
incurrunt  ordinantes  alienum   subditum  etiam  sub  praetextu  beneficii  statim 
conferendi,    aut    jam    collati,    scd    minime  sufficientis,  absque   ejus   episcopi 
litteris  dimissorialibus,  vel  etiam  subditum  proprium,  qui  alibi  tanto  tempore 
moratus    s:t,    ut    canonicum    impedimentum    contrahere   ibi  potuerit,  absque 
ordin;irii  ejus  loci  litteris  testimonialibus. 

IV.  Suspensionem  per  annum  a  collatione  ordinum  ipso  jure  iucurrit,  qui 
excento    casu    legitimi    privilegii,    ordinem    sacrum    contulerit  absque   titulo 
benefi -ii  vel  patrimonii  clerico  in  aliqua  congregatione  viventi.  in  quasolemnis 
professio  non  emittitur,  vel  etiam  religioso  nondum  professo. 


542  Appendix, 

V.  Suspensionem    perpetuam    ab   exercitio   ordinum    ipso   jure  ir.currunt 
religiosi  ejecti,  extra  religionem  degentes. 

VI.  Suspensionem  ab  ordine  suscepto  ipso  jure  incurrunt,  qui  eumdem 
ordinera  recipere  praesumpserunt  ab  excommunicate  vel  suspense,  vel   inter- 
dicto  nominatim  denunciatis,  aut  ab  haeretico  vel  schismatico  notono  :  eum 
vero,   qui   buna  fide   a  quopiam  eorum  est  ordinatus,  exercitium  non  habere 
ordinis  sic  suscepti,  donee  di-pcnsetur.  declaramus 

VII.  Clerici  saecularcs  exteri  ultra  quatuor  menses  in  urhe  commorantes, 
ordinati    ab  alio   quam    ab   ipso    sue  ordinario  absque   licentia    Card.    Urbis 
Vicarii,   vel    absque    praevio    examine    coram    eodem    peracto    vel    etiam    a 
proprio  ordinario,  posteaquam  in  praedicto  examine  rejecti  fuerint ;  necm.n 
clerici  pertinentes  ad  aliquem  e  sex  episcopatibus  suburbicariis,  si  ordinentur 
extra  suam  dioecesim,  dimissorialibus  sui  ordinarii  ad   alium  directis  quam 
ad   Card.   Urbis   Vicarium  ;   vel    non    praemissis  ante   ordinem  sacrum   sus- 
cipiendum   exercitiis    spiritualibus  per    decem    dies    in    domo   urbana  sacer- 
dotum  a  missione  nuncupatorum,  Suspensionem  ab  ordinibus  sic    susceptis 
ad    beneplacitum   S.    Sedis  ipso  jure  incurrunt,  episcopi   vero  ordinantes  ab 

.  usu  Pontificalium  per  annum. 

Inter  dicta  Latae  Sententiae  Reservata. 

I.  Interdictum  Romano  Pontifici  special!  modo  reservatum  ipso  jure  incur 
runt  universitates,  collegia  et  capitula,  quocumque  nomine  nuncupentur,  ab 
ordinationibus  seu  mandatis  ejusdem  Romani  Pontificis  pro  tempore  existen- 
tis  ad  universale  futurum  concilium  appellantia. 

II.  Scienter  celebrantes  vel  celebrari  facientes  divina  in  locis  ab  ordinario, 
vel  delegate  judice,  vel  a  jure  interdictis,  aut   nominatim  excommunicatos  ad 
divina  officia,  seu  ecclesiastica  sacramcnta,  vel  ecclesiasticam  sepulturam  acl- 
mittentes,   interdictum   ab  ingressu   Ecclesiae   ipso  jure   incurrunt,  donee  ad 
arbitrium  ejus,  cujus  sententiam  contempserunt,  competenter  satisfecerint. 

Denique  quoscumque  alios  sacrosanctum  Concilium  Tridentinum  suspen 
ses  aut  interdictos  ipso  jure  esse  decrevit,  nos  pari  modo  suspension;  vel  in- 
terdicto  eosdem  obnoxios  esse  volumus  et  declaramus. 

Quae  vero  ccnsurae  sive  excommunicationis,  sive  suspensions,  sive  inter 
dict!  nostrh  aut  praedecessorum  nostrorum  constitutionibus,  aut  sacris  canoni- 
bus  praeter  eas,  quas  recensuimus,  latae  sunt,  atque  hactenus  in  suo  vigore 
perstiterunt  sive  pro  R.  Pontificis  electione,  sive  pro  interno  regimine 
quorumcumque  ordinum  et  institutorum  regulariurn,  necnon  quorumcumque 
collegiorum,  congregationum,  coetuum  locorumque  piorum  cujuscumque 
nominis  aut  generis  sint,  eas  omnes  firmas  esse,  et  in  suo  robore  perma- 
nere  volumus  et  declaramus. 

Cetmim  d^rpmirrnis  ;n  novis  r-uibuscumque  concessionibns  ac  privi- 
legiis,  quae  ab  Apostolica  Sede  concedi  cuivis  contigerit  nullo  modo  ac 


Appendix.  543 

ratione  intelligi  unquam  debere,  aut  posse  comprehend}  facultatem  ab- 
solvendi  a  casibus  et  censuris  quibuslibet  Romano  Poniifici  reseivatis,  nisi 
de  iis  formalis,  explicita  ac  individuu  mentio  fact.i  fuent  :  quae  vero  privilegia 
aut  facultates,  sive  a  praedecessoribus  nosiris,  sive  etiam  a  nobis  cuilibet 
coetui,  ordini,  congregation!,  societati  et  institute,  etiam  regulari  cujusvis 
speciei,  etsi  titulo  peculiar!  praedito,  atque  etiarr.  special!  mentione  digno  a 
quovis  unquam  tempore  hue  usque  concessae  fuerint,  ea  omnia,  casque 
omnes  nostm  constitutione  revocatas,  suppressas,  et  abolitas  esse  volumus, 
prout  reapse  revocamus,  supprimimus  et  abolemus,  minime  rcfragantibus 
aut  o'istantibus  privilegiis  quibuscumque,  etiam  specialibus  comprehensis, 
vjl  non  in  corpore  juris,  aut  apostolicis  constitutionibus,  et  quavis  confirma- 
tione  apostolica,  vel  immemorabili  etiam  omsuetudine,  aut  alia  quacumque 
rirmitate  roboratis,  quibuslibet  etiam  iormis  ac  tenoribus,  et  cum  qui- 
busvii  derogatoriarum  derogatoriis,  aliisque  efficacioribus  et  insolitis  clau- 
sulis,  quibus  omnibus,  quatenus  opus  sit,  derogare  intendimus,  et  dero- 
gamus. 

Firmam  tamen  esse  volumus  a'>solvendi  facultatem  a  Tridentina  Synodo 
episcopis  concessam,  sess.  xxiv.,  cap.  vi.,  De  J\\'/o>m.,  in  quibuscumque 
censuris  Apostolicae  Sedi  hac  nostra  Constitutione  reservatis,  iis  tantum 
exceptis,  quas  eisdem  Apostolicae  Sedi  speciali  modo  reservatas  decla- 
ravimus. 

Decernentes  has  litteras,  atque  omnia  et  singula,  quae  in  eis  constituta  ac 
decreta  sunt  omnesque  et  singulas,  quae  in  eisdem  factae  sunt  ex  anterioribus 
constitutionibus  praedecessorum  nostrorum,  atque  etiam  r.ostris,  aut  ex  aliis 
sacris  canonibus  quibuscumque,  etiam  Conciliorum  Generalium,  et  ipsius 
Tridentini  mutationes,  derogationes,  suppressiones  atque  abrogationes  ratas  et 
firmas,  ac  respective  rata  atque  firma  esse  et  fore,  suosque  plenarios  et  in- 
tegros  effectus  obtinere  debere,  ac  reapse  obtinere  ;  sicque  et  non  aliter  in 
praemissis  per  quoscumque  judices  ordinaries,  et  delegates,  etiam  causarum 
Palatii  Apostolici  auditores,  ac  S.  R.  E.  cardinales,  etiam  de  latere  legates,  ac 
Apostolicae  Sedis  nuntios,  ac  quovis  alios  quacumque  praeeminentia  ac  potes- 
tate  fungentes,  et  functuros,  sublata  eis,  et  eorum  cuilibet  quavis  aliter  judi- 
candi  et  interpretandi  facilitate  et  auctoritate,  juclicari  ac  definiri  debere  ;  et 
irritum  atque  inane  esse  ac  fore  quidquid  super  his  a  quoquam  quavis  auctori 
tate,  etiam  praetextu  cujuslibet  privilegii,  aut  consuetudinis  inductae  vel 
inducendae,  quam  abusum  esse  declaramus,  scienter  vel  ignoranter  contigerit 
attentari. 

Non  obstantibus  praemissis,  aliisque  quibuslibet  ordinationibus,  con 
stitutionibus,  privilegiis,  etiam  speciali  et  individua  mentione  dignis,  necncn 
consuetudinibus  quibusvis,  etiam  immemorabilibus,  ceterisque  contrariis 
quibuscumque. 

Nulli  ergo  omnino  hominum  liceat  hanc  paginam  nostrae  constitutionis, 
ordinationis,  limitationis,  suppressionis,  derogationis,  voluntatis  infringere, 


544  Appendix. 

vel  ei  ausu  temerario  contraire.  Si  quis  uutem  hoc  attentare  praesumpserit, 
indignationem  Omnipotentis  Dei  et  Beatorum  .Petri  et  Pauli,  apostolorum 
ejus,  se  noverit  incursurum. 

Datum  Romae  apud  S.  Petrum  anno  incarnationis  Dominicae  millesimo- 
octingentesimo  sexagesimo  nono,  quarto  idus  Octobris,  Pontificatus  nostri 
anno  vigesimo  quarto. 

MAKIUS  CARD.  MATTEI,  Pro-Datarius. 

N.  CARD.   PARACCIAM  CLARELLI. 

Visa  de  Curia  :  DOMINICUS  BRUTI. 
Loco  -j-  Plumbi.  J.  CUGNONI. 


II. 
DECISIO  S.  POENITENTIARIAE  CIRCA  JEJUNIUM. 

EMINENTISSIMK  PRINCKPS  :  Quidam  sacerdotes  regnorum  Belgii  et  Hol- 
landiae,  ad  tranquillitatem  conscientiae  suae  et  ad  certam  fidelium  directionem, 
instanter  petunt  ab  Eminentia  Vestra  solutionem  sequentium  dubiorum  : 

Gur}-,  Scavini  et  alii  referunt  tanquam  responsa  S.  Poenitdntiariae  data  die 
16  Jan.,  1834  : 

"  Posse  personis  quae  sunt  in  potestate  patrisfamilias,  cui  facta  est  legitima 
facultas  edi-ndi  carnes,  permitti  uti  cibis  patrifamilias  indultis,  abjecta  con- 
ditione  de  non  perniiscendis  licitis  atque  interdictis  epulis  et  de  unica  comes- 
tione  in  die,  iis  qui  jejunare  tenentur." 

Igitur  quaeritur:  i.  An  haec  resolutio  valeat  ubique  terrarum  ?  2  Dum 
dicitur /«•/«?'/ .i posse,  pctitur  a  quo  ista  permissio  danda  sit,  et  an  sufficiat  per- 
missio  data  a  simplici  confessario? 

Altera  resolutio:  "  Fideles  qui  ratione  aetatis  vi.l  laboris  jejunare  non 
tenentur,  licite  posse  in  Quadragesima,  dum  indultum  concessum  est,  omni 
bus  diebus  indulto  coiuprehensis,  vesci  carnibus  aut  lacticiniis  per  idem 
inuultum  permissis,  quoties  per  diem  edunt." 

Dubitatur  igitur  an  haec  resolutio  valeat  in  dioecesi  cujus  episcopus  auc- 
toritate  apostolica  concedit  fidelibus  ut,  feria  2a,  3a,  sa  temporis  Quadragesi- 
mae,  possint  semel  in  die  vesci  carnibus  et  ovis,  iis  vcro  qui  ratione  aetatis  vel 
laboris  jejunare  non  tenentur.  permittit  ut  ovis  saepius  in  die  utantur. 

Quaeritur  itaque:  i.  An  non  obtantibus  mcmorata  phrasi  ovis  saepius  in  die 
utantur,  et  tenore  concessionis,  possint  ii,  qui  ratione  aetatis  vel  laboris 
jejunare  non  tenentur,  vi  dictac  resolutions  vesci  carnibus  quoties  per  diem 
edunt?  2.  An  iis,  qui  jejunare  non  tenentur  ratione  aetatis  vel  laboris, 
aequiparandi  sint  qui  ratione  intirmae  valetudinis  a  jejunio  excusantur,  adeo 
ut  istis  quoque  pluries  in  die  vesci  carnibus  liceat? 


Appendix.  545 


S.  Poenitentiaria,  mature  consideratis  propositis  dubiis,  dilecto  in  Christo 
oratori  in  primis  respondet  transmittendo  declarationem  ab  ipsa  S.  Poeniten 
tiaria  alias  datam,  scilicet  :  "  Ratio  permissionis  de  qua  in  resolutione  data  a 
S.  Poenitentiaria,  16  Januarii,  1834,  non  est  indultum  patrifamilias  concessum, 
sed  impotentia,  in  qua  versantur  filiitamilias,  observandi  praeceptum." 

Deinde  ad  duo  priora  dubia  respondet  :  Quoad  primum,  affinnative. 
Quoad  secundum,  sufficere  ptrmissioncm  f attain  a  simplici  confessano. 

Ad  duo  vero  posteriora  dubia  respondet  :  Quoad  primum,  negative ;  quod 
secundum,  non  aequiparari. 

Datum  Romae  in  S.  Poenitentiaria,  die  27  Mali,  1863. 

A.-M.  CARD.  CAGIANO,  M.  P. 


III. 

INSTRUCTIO  DE  SCHOLIS  PUBLICIS  AD  RMOS  EPISCO- 
POS  IN  FOEDERAT1S  STATIBUS  AMERICAE  SEP- 
TEMTRIONALIS. 

Pluries  S.  Congregatio  de  Propaganda  Fide  certior  facta  est  in  Foederatis 
Statibus  Americae  Septemtrionalis  Catholicae  juventuti  e  sic  dictis  scholis 
publicis  gravissima  damna  imminere.  Tristis  quocirca  hie  nuntius  effecit,  ut 
praedicta  S.  Congregatio  amplissimis  istius  ditionis  episcopis  nonnullas 
quaestiones  proponendas  censuerit,  quae  partim  ad  causas  cur  fideles  sinant 
liberos  suos  scholas  acatholicas  frequentaie,  partim  ad  media  quibus  facilius 
juvenes  e  scholis  hujusmodi  arceri  possint,  spectabant.  Porro  responsiones  a 
laudatis  episcopis  exaratae  ad  Supremam  Congregationem  Universalis  Inquisi- 
tionis  pro  natura  argument!  delatae  sunt,  et  negotio  diligenter  explorato 
Feria  IV.,  die  30  Junii,  1875,  per  instructionem  sequentem  absolvendum  ab 
Emis  Patribus  judicatum  est,  quam  exinde  SS.  Dnus.  Noster  Feria  IV.,  die  2,1 
Novembris  praedicti  anni  adprobare  ac  confirmare  dignatus  est. 

Porro  in  deliberatione  imprimis  cadere  debebat  ipsa  juventulis  instituen- 
dae  ratio  scholis  hujusmodi  propiia  atque  pectiliaris.  Ea  vero  S.  Congrega 
tion!  visa  est  etiam  ex  se  periculi  plena,  ac  perquam  adversa  rei  catholicae. 
Alumni  enim  talium  scholarum  cum  propria  earumdem  ratio  omnem  excludat 
doctrinam  religionis.  neque  rudimenta  fidei  addiscent,  neque  Ecclesiae  instru- 
tntur  praeceptis,  atque  adeo  carebunt  cognitione  homini  quam  maxime  neces- 
saria,  sine  qua  Christiane  non  vivitur.  Enimvero  in  ejusmodi  scholis  juvenes 
educantur  jam  inde  a  prima  pueritia,  ac  propemodum  a  teneris  unguicuHs: 
qua  aetate,  ut  constat,  virtutis  ac  vitii  semina  tenaciter  haerent.  Aetas  igitur 
tarn  flexibilis  si  absque  religione  adolescat,  sane  ingens  malum  est.  Porro 


546  Appendix. 

autem  in  praedictis  scholis,  utpotc  sejunctis  ab  Ecclesiae  auctoritate,  iudis- 
criminatim  ex  omni  secta  magistri  adhibentur,  et  certeroquin  ne  ptrniciem 
afieraut  juventuti  nulla  lege  cautum  est,  ita  ut  liberum  sit  errores  et  vitiorum 
semina  aneris  mentibus  inlundere.  Certa  item  corruptela  insuper  ex  hoc  im- 
pendet,  quod  in  iisdem  scholis  aut  saltern  pluribus  earuni,  utriusque  sexus 
adolescentes,  ct  audiendis  lectionibus  in  idem  conclave  congregamui.  et 
sedere  in  eodem  scamno,  masculi  juxta  feminas  jubentur  :  quae  omnia  efficiunt 
ut  juventus  misere  exponatur  damno  circa  fidem,  ac  mores  periclitentur.  Hoc 
autem  periculum  perversionis  nisi  e  proximo  remotum  fiat,  tales  scholae  tuta 
conscientia  frequentari  nequeunt.  Id  vel  ipsa  clamat  lex  naturalis  et  divina. 
Id  porro  Claris  verbis  Summus  Pontifex  edixit,  Friburgensi  quondam  Archi- 
episcopo  die  14  Julii,  1864,  ita  scribens  :  Certe  quidtm  ubi  in  quibuscumque  locis 
regionibusque  perniciosissimum  hujusmodi  vel  susciperetur,  vel  ad  exitum  perdute- 
retur  consilium  expellendi  a  scholis  Ecclesiae  auctoritatem,  et  juventus  misere  expo- 
neretur  .damno  circa  fidem,  tune  Ecclesia  non  solum  dcberet  instantissimo  studio 
omnia  conari,  nullisque  curis  par  cere,  ut  eadem  juventus  neccssatiam  Christianam 
instituiionem,  et  educalionem  habeat,  ve:  um  eliarn  cogeretur  omnes  fideles  inonere, 
eisque  declarare  ejusmodi  se kolas  Ecclesiae  Catholicae  adversas  hand  posse  in  consci 
entia  f.equentari.  Et  haec  quidem  utpote  fundata  jure  naturali  ac  divino, 
generale  quoddam  enunciant  principium,  vimque  universalem  habent,  et  ad 
eas  omnes  pertinent  regiones,  ubi  perniciosissima  hujusmodi  juventutis  insti- 
tuendae  ratio  infeliciter  invecta  fuerit.  Oportet  igitur  ut  praesules  amplis- 
simi,  quacumque  posfint  ope  atque  opera,  commissum  sibi  gregem  arceant  ab 
omni  contagione  scholarum  publicarum.  Est  autem  ad  hoc,  omnium  con- 
sensu,  nil  tarn  necessarium,  quam  ut  Catholici  ubique  locorum  proprias  sibi 
scholas  habeant,  casque  publicis  scholis  haud  inferiores.  Scholis  ergo  Catho- 
licis,  sive  condendis,  ubi  defuerint,  sive  ampliricandis,  et  perfectius  instruendis 
parandisque,  ut  institutione  ac  disciplina  scholas  publicas  adaequeut,  omni 
cura  prospiciendum  est.  Ac  tam  sancto  quidem  exequendo  consilio,  tamque 
necessario  haud  inutiliter  adhibebuntur,  si  episcopis  visum  fuerit,  e  congrega- 
tionibus  religiosis  sodales  sive  viri  sive  muliercs  ;  sumptusque  tanto  operi 
necessarli  ut  eo  libentius  atque  abundantius  suppeditentur  a  fidelibus,  oppor 
tune  oblata  occasione,  sive  concionibus,  sive  privatis  colloquiis,  serio  necesse 
est,  ut  ipsi  commonefiant  sese  officio  suo  graviter  defecturos,  nisi  omni  qua 
possunt  cura,  impensaque,  scholis  Catholicis  provideant.  De  quo  potissimum 
monendi  erunt  quotquot  inter  Catholicos  ceteris  praestant  divitiis  ac  auctori 
tate  apud  populum,  quique  comitiis  ferendis  legibus  sunt  adscripti.  Et  vero 
in  istis  regionibus  nulla  obstat  lex  civilis  quominus  Catholici,  ut  ipsis  visum 
fuerit,  propriis  scholis  prolem  suam  ad  omnem  scientiam  ac  pietatem  eru- 
diant.  Est  enjo  in  potestate  positum  ipsius  populi  Catholici  ut  feliciter 
avertatur  clades,  quam  scholarum  illic  publicarum  institutum  rei  Catholicae 
minatur.  Religio  autem  ac  pietas  ne  a  scholis  vestris  expellantur,  id  omnes 
persuadeant  sibi  plurimum  interesse,  non  singulorum  tantum  civjum  ac 


Appendix.  547 

familiarum,   verum   etiam    ipsius   floremissimae    Americanae   nationis,    quae 
tantam  de  se  spem  Ecclesiae  dedit. 

Ceterum  S.  Congregatio  non  ignorat  taliura  interdum  rerum  esse  adjuncta, 
ut  paientes  Catholic!  prolem  suam  scholis  publicis  committere  in  conscientia 
possint.  Id  autem  non  poterunt.  nisi  ad  sic  agendum  sufficientem  causam 
habeant  ;  ac  talis  causa  sufficicns  in  casu  aliquo  particular!  utrum  adsit  necne, 
id  conscicntiae  ac  judicio  Episcoporum  relinquendum  erit ;  et  juxta  relata 
tune  ea  plerumque  aderit,  quando  vel  nulla  praesto  est  schola  Catholica,  vel 
quae  suppetit  parum  est  idonea  erudiendis  convenienter  condition!  suae,  con- 
gruenterque  adolescentibus. 

Quae  autem  ut  scholae  publicae  in  conscientia  adiri  possint,  periculum 
perversionis  cum  propria  ipaarum  ratione  plus  minusve  nunquam  non  con 
junctum,  opportunis  remediis  cautionibusque,  fieri  debet  ex  proximo  remo- 
tum.  Est  ergo  imprimis  videndum  utrumne  in  schola,  de  qua  adeunda 
quaeritur,  perversionis  periculum  sit  ejusmodi,  quod  fieri  remotum  plane 
nequeat :  velut  quoties  ibi  aut  docentur  quaedam,  aut  aguntur,  Catholicae  doc- 
trinae  bonisve  moribus  contraria,  quaeque  citra  animae  detrimentum,  neque 
audiri  possunt,  nedum  pcragi.  Enimvero  tale  periculum,  ut  per  se  patet,  om- 
nino  vitandum  est  quocumque  damno  etiam  vitae. 

Debet  porro  juventus  ut  committi  scholis  publicis  in  conscientia  possit, 
necessariam  Christianam  institutionem  et  educationem  saltern  extra  scholae 
tempus  rite  ac  diligentere  accipere.  Quare  parochi  et  missionarii,  memores 
eorum,  quae  providentissime  hac  de  re  Concilium  Baltimorense  constituit, 
catechesibus  diligenter  dent  operam,  iisque  explicandis  praecipue  incumbant 
veritatibus  fidei  ac  morum,  quae  magis  ab  incredulis  et  heterodoxis  impetun 
tur  ;  totque  periculis  expositam  juventutem  impensa  cura,  qua  frequenti  sacra- 
mentorum  usu,  qua  pietate  in  Beatam  Virginem  studeant  communire,  et  ad 
religionem  firmiter  tenendam  etiam  atque  etiam  excitent.  Ipsi  vero  parentes, 
quive  eorum  loco  sunt,  liberis  suis  sollicite  invigilent,  ac  vel  ipsi  per  se,  vel,  si 
minus  idonei  ipsi  sint,  per  alios,  de  lectionibus  auditis  eos  interrogent,  libros 
iisdem  traditos  recognoscant,  et  si  quid  noxium  ibi  deprehenderint,  antidota 
praebeant,  eosque  a  familiaritate  et  consortio  condiscipulorum,  a  quibus  fidei 
vel  morum  periculum  imminere  possit,  sou  quorum  corrupti  mores  fuerint, 
omnino  arceant  atque  prohibcant. 

Hanc  autem  necessarian!  Christianam  institutionem  et  educationem  liberis 
suis  impeitire  quotquot  parentes  negligunt  :  aut  qui  frequentare  illos  sinunt 
tales  scholas,  in  quibus  animarum  ruina  evitari  non  potest :  aut  tandem  qui, 
licet  schola  Catholica  in  eodem  loco  idonea  sit,  apteque  instructa  et  parata, 
seu  quamvis  facultatem  habeant  in  alia  regione  prolem  Catholice  educandi, 
nihilominus  committunt  earn  scholis  publicis,  sine  sufficiente  causa  ac  sine 
necessariis  cautionibus,  quibus  periculum  perversionis  e  proximo  remotum 
fiat:  eos,  si  contumaces  fuerint,  absolvi  non  posse  in  Sacramento  p<  enitentiae 
*x  doctrina  morali  Catholica  manifestuin  est. 


548  Appendix. 


IV. 

THE    SYMBOL    OF    POPE    PIUS    IV.,    AS    AMENDED 
BY    POPE    PIUS    IX. 

(y)  n.  326,  664. 
DECRETUM. 

Ouod  a  priscis  Ecclesiae  temporibus  semper  fuit  in  more,  ut  christifideli 
bus~certa  proponeretur  ac  determinata  formula,  qua  fidem  profiterentur,  atque 
invalescentes  cujusque  aetatis  haereses  solemniter  detestarentur,  idipsum, 
sacrosancta  Tridentina  Synodo  feliciter  absoluta.  sapienter  praestitit  Summus 
Pontifex  Pius  IV.,  qui  Tridentinorum  Patrum  decreta  incunctanter  exequi 
properans,  edita  Idibus  Novembris,  1564,  Constitutione  Injunctam  AV>iJ,  for- 
mam  concinnavit  professionis  fidei  recitandam  ab  iis,  qui  cathedralibus  et 
superioribus  Ecclesiis  praeficicndi  forent,  quive  illarum  dignitates,  canonica- 
tus,  aliaqiie  beneficia  ecclesiastica  quaecumque  curam  animarum  habentia 
essent  conseculuri,  et  ab  omnibus  aliis,  ad  quos  ex  decretis  ipsius  concilii 
special :  necnon  ab  iis,  quos  de  monasleriis,  convenlibus,  domibus,  et  aliis 
quibuscumque  locis  regularium  quorumcumque  ordinum,  eliam  militarium, 
quocumque  nomine  vcl  titulo  provided  contingeret.  Quod  et  alia  Conslilu- 
tione  edita  eodem  die  et  anno  incipiente  In  sacrosancto,  salubriter  praeterea 
extendit  ad  omnes  doctorcs,  magistros,  regentes,  vel  alios  cujuscumque  arlis 
et  facultatis  professores,  sive  clericos  sive  laicos,  vel  cujusvis  ordinis  regu 
laris,  quibuslibet  in  locis  publice  vel  privatim  quoquomodo  profilemes,  seu 
lecliones  aliquas  habenies  vel  exercentes,  ac  tandem  ad  ipsos  hujusmodi 
gradibus  decorandos. 

jam  vero,  cum  postmodum  coadunatum  fuerit  sacrosanctum  Concilium 
Vaticanum,  e't  anle  ejus  suspensionem  per  Lileras  Aposlolicas  Posiquam  /?,.-» 
Munete  diei  20  Oclobris,  1870,  indictam,  binae  ab  eodem  solemniter  promul 
gate  sint  dogmaticae  Conslitutipnes,  prima  scilicet  de  Fide  Catholica,  quae 
incipit  Dei  Filifs,  et  altera  de  Ecclesia  Christi,  quae  incipit  Pastor  actcrnus, 
non  solum  opportunum,  sed  etiam  necessarium  dijudicatum  est,  ut  in  fidei 
professione  dogmaticis  quoque  praememorati  Vatican!  Concilii  definitionibus, 
prout  corde,  ila  et  ore  publica  solemnisque  fieri  deberet  adhaesio.  Quaprop- 
U  r  Sanclissimus  D.  N.  Pius  Papa  IX.,  exquisite  ea  desuper  re  voto  specialis 
Congregationis  Emorum  S.  R.  E.  Patrum  Cardinalium.  statuit,  praecepit, 
atque  mandavit,  ceu  per  praesens  decretum  praecipit,  ac  mandat,  ut  in  praeci- 
tata  Piana  formula  professionis  fidei,  post  verba  "  praecipue  a  sacrosancta  T 
dentina  Synodo"  dicalur  "  et  ab  Occumenico  Concilia  Valicano  tradita,  defimla  ac 
declarata,  praeserthn  de  Romani  Pontificis  Pnmaiu  et  InfalUbili  Mngisteno " 
utque  in  posterut-x  fidei  professio  ab  omnibus,  qui  earn  emittere  tenenlur.  sic  et 


Appendix. 

non  aliter  eiuittatur,  sub  coinminationibus  ac  poen^s  a  Concilio  Tridentino  et 
a  supradictis  Constitutionibus  S.  M.  Pii  IV.  statutis.  Id  igitur  ubique,  et  ab 
tmnibus,  ad  quos  spectat,  diligenter  ac  fideliter  observetur,  non  obstanti- 
bus,  etc. 

Datum   Romae  e  Secretaria  S.  Congregationis  Concilii  die  20  Januarii, 
1877- 

P.  CARD.  CATEWNI,  Praefectus. 

].  ARCHIEPISCOPUS  ANCYRANUS,  Secretarius. 


THE   EMENDED    PARAGRAPH. 

The  paragraph  in  the  Creed  of  Pope  Pius  IV.,  amended  by  the  above 
decree  so  as  to  include  a  profession  of  faith  in  the  Dogmatic  Constitutions 
of  the  Council  of  the  Vatican,  especially  as  regarde  the  Primacy  and  Infalli 
bility,  therefore  runs  as  follows  : 

Caetera  item  omnia  a  sacris  canonibus  et  Oecumenicis  Conciliis,  ac  prae- 
cipue  a  sacrosancta  Tridentina  Synodo,  et  ab  Oecumenico  Concilio  Vaticano 
tiaatita,  definita  ac  dechrata,  ptaesertim  de  Romani  Pontificis  Primatu  et  Infalli- 
bili  Magisterio,  indubitanter  recipio  atque  profiteer ;  simulque  contraria  omnia, 
atque  haereses  quascumque  ab  Ecclesia  damnatas  et  rejectas  et  anathematizatas 
ego  pariter  damno,  rejicio,  et  anathematize.  Hanc  veram  Catholicam  Fidem, 
extra  quam  nemo  salvus  esse  potest,  quam  in  praesenti  sponte  profiteer  et 
veraciter  teneo,  eamdem  integram  et  immaculatam  usque  ad  extremum  vitae 
spiritum,  constantissime,  Deo  adjuvante,  retinere  et  confiteri,  atque  a  meis 
subditis  seu  illis,  quorum  cura  ad  me  in  munere  meo  spectabit,  teneri  et 
doceri  et  praedicari,  quantum  in  me  erit,  curaturum,  ego,  idem  N.  sponieo 
roveo  ac  juro.  Sic  me  Deus  adjuvet,  et  haec  Sancta  Dei  Evangelia. 


550  Appendix,. 

V. 

A  SYNOPSIS 

OF    THE  RECENT   "  INSTRUCTIO  "  OF  THE  HOLY  SEE  "  DE  TITULO  ORDINATIONIS,* 
ISSUED  BY  THE  PROPAGANDA,    APRIL   2?,    1871,    FOR   MISSIONARY  COUNTRIES. 

1.  "  Porro  geminus  distinguitur  titulus  :  ecclesiasticus  scil.  et  patrimonialis. 
Hie  postremus  obtinet,  cum  ordinandus  talibus  bonis  certis,  stabilibus  ac 
frugiferis,  aliunde  quam  ab  Ecclesia  provenientibus,  est  instructus,  quae  ad 
congruam  ejus  sustentationem  sufficere  episcopi  judicio  censeantur.     Eccle 
siasticus  veto  titulus  in  beneficialem  subdividitur  ac  partpertatis,  quibus  aliae 
quaedam  veluti  subsidiariae  atque  extraordinariae  species  adjiciendae  sunt, 
tituli  nempe  mensae  communis,  atque  servitii  Ecdesiae,  missionis,  sufficie.ntiac  et 
collegii."  ]     Now,  the  titles  beneficii,  servitii  Ecclesiae,  sufficientiae,  and  collegiiAo 
not  exist  with  us.     The  titulus patrimonii  may  be,  but  is  rarely,  made  use  of  in 
the  United  States.2    We  shall  therefore  pass  over  what  the  Instructio  says  in 
regard   to  these  titles,  and   subjoin  merely  what  it  teaches   concerning  the 
tituli paupertatis ,  mensae  communis,  and  missionis. 

2.  "  i.  Paupertatis  vero  titulus,"  says  the   Instruction,  "  in  religiosa  pro- 
fessione  est  positus,  vi  cujus  qui  solemnia  vota  in  probata  religione  emi- 
serunt,  vel  ex  reditibus  bonorum,  si  quae  ipsamet  religio  possideat,  vel  ex  piis 
fidelium  largitionibus  omnia  communia   habent  quorum  ad  vitam  alendam 
indigent.      2.    Quern   vero   vocant    mensae    communis    titulum,  eos    clericos 
attingit,  qui   religiosorum   more  in  communi  vitae  disciplina  degentes,  aut 
nulla  nuncupant  vota,  aut  simplicia  tantum,  proindeque  e  domo  religiosa 
exire  aut  dimitti,  atque  ad  saeculum  redire  permittuntur.     Neque  enim  ad  eos 
pertinet  titulus  paupertatis.     Verum  ex  hisce  clericis  ii  duntaxat  communis 
mensae  titulo  promoveri  ad  sacros  ordines  possunt,  quorum  Congregationes 
aut  Instituta  peculiari  ad  id  privilegio  ab  Apostolica  Sede  aucta  fuerint."  * 

3.  "  3.  Titulus  missionis,  de  quo  potissimum  heic  sermo  est,  adhiberi  con- 
suevit  pro  iis,  qui  Apostolicarum  Missionum  servitio  sese  devovent,  in  locis 
in  quibus  ea  est  rerum  conditio,  ut  commune  Ecclesiae  jus  circa  ea,  quae  ad 
praerequisitum   pro  sacra  ordinatione  titulum  snectant,  servari  adamussim 
nequeant."4    The  Instructio''  then  states  that  ordinaries  cannot  ordain  anyone 
ru6  titulo  missionis  except  by  special  indult  from  the   Holy  See.     The  Holy 
See,  on  January  24,  1868,  granted  this  mdult  to  all  the  bishops  of  the  United 
States  for  ten  years.8    The  indult  is  now  granted  only  for  five  years. 

4.  The  Instructio  having  explained  that  those  who  are  ordained  ad  titulum 
vtissionis  must  take  the  missionary  oath,  and  cannot  become  religious  without 

'  Instr.  cit.,  n.  2.  a  C.  PI.  Bait.  II.,  n.  323  ;  cf.  Instr.  cit.,  n.  14. 

*  Instr.  cit.,  n.  4.  4  Ib.,  n.  6  ;  cf.  Konings,  n.  1522.  •  N.  7. 

•  C.  PI.  Halt.  II.,  n.  323,  not.  i ;  ib.,  p.  cxlvii. 


Appendix.  5  5 1 

leave  from  the  Holy  See,  continues  :  "  Quemadmodum  alii  tituli,  ita  etiam 
hie  (titulus  missionis),  juxta  canonicas  sanctiones,  amitti  potest,  atque  ab 
ordinariis  auferri,  de  consensu  tamen  S.  Congregationis,  cujus  est  sic  ordi- 
natos  praestiti  juramenti  vinculo  exsolvere.  Quod  si  amisso  titulo  genera- 
tim,  aut  etiam  timlo  missionis,  alter  ei  non  substituatur,  sacerdos  baud  prop- 
terea  remanet  suspensus ;  sed  ordinarii  tenentur  compellere  ordinatos  ad 
alterius  tituli  subrogationem."  7 

5.  "  Pariter  sacerdotes  regulares,  qui  vota   solemnia   nuncuparunt,  atque 
ex  apostolica  indulgentia  in  saeculo  vivere  permittuntur  ;  vel  qui  ediderunt 
vota  swnplicia,  et  e  suis  Congregationiuus  seu  Institutis  egressi  sunt,  ad  sibi 
de  canonico  titulo  providendum  obligentur."8 

6.  "  Qui  titulo  certae  alicujus  missionis  ad  ecclesiasticos  ordines  ascen- 
derunt,  ubi  missionarii  officium  dimiserint,  proculdubio,  suum  amittunt  titu- 
lum,  ac  de  alio  sibi  providere  debent ;  si  vero  alterius  missionis  servitio  depu- 
tentur,  ut  hujus  missionis  titulum  assumant,  nova  opus  erit  S.  Sedis  conces- 
sione  ;  neque  enim  eis  suffragatur  facultas,  si  quam  obtinuerit  ejus  missionis 
ordinarius,  memorato  titulo  (missionis}  clericos  ordinandi."  * 

VI. 

A  SYNOPSIS 

«rK  THE  RECENT    "  INSTRUCTIO  "  "  DE  VISITATIONE   SS.   LIMINUM,"  ISSUED   BY  THE 
SACRED   CONGREGATION   "  DE   PROP.   FIDE,"  ON  JUNE   I,   1877. 

1.  The  Instructiow  states  first  that,  as  decreed  in  the  Const.  Romanus  Ponti- 
fex  (December  20,  1585),  some  bishops  or  archbishops  are  obliged  to  make  the 
visit  ad  sacra  limina  every  three  years — v.g.,  those  of  Italy;  others  every  four 
years,  as  those  of  Germany  and  England  ;  others  every  five  years ;  others — 
v.g.,  the  bishops  of  the  United  States — every  ten  years. 

2.  Then  it  proceeds  to  explain  the  question :  From  what  period  is  it  neces. 
sary   to  begin   in  counting  these  three,  four,  five,  or  ten   years?     It  says. 
"  Saepe  quaesitum  fuit,  undenam  in  computando  triennio,  quadriennio,  etc., 
exordiri  oporteat.     Et  quidem  alii  opinati  sunt  ea  temporis  intervalla  episco- 
pos  computari  debere  a  die  quo  ad  sedem  episcopalem  in  consistorio  renunciati 
sunt,  aut  quo  litterae  apostolicae  ipsis  expeditae  fuerunt ;  alii  a  die  consecra- 
tionis  •  alii  deinque  a  die  acceptae  possessionis  sedis.     Quidam  etiam  existi- 
marunt  initium  temporis  sumendum  esse  a  die,  quo  dioecesis  erecta  fuit."  ' 

7  Instr.  cit.,  n.  n.  8  Ib.,n.  12. 

9  Ib.,  n  13.  The  schema,  of  the  Vatican  Council  de  tit.  er<1inationis  proposed  that,  as  the 
Church  had  almost  everywhere  been  despoiled  of  her  property,  and  there  were  not  sufficient  bene 
fices,  and  most  candidates  for  ordination  were  unprovided  with  a  titulus  patrintonii  as  required 
by  canon  law,  bishops  be  allowed  to  ordain  candidates  either  ad  titulum  patri»ionii.  at  lacking 
the  conditions  required  by  canon  /aw,  or  ad  titulum  s?>--v,r<,  dioecesis  (Martin,  Arb  ,p  92; 
ib..  Doc.,  p.  138).  10  N.  1-3.  ll  Instr.  cit.,  n.  4. 


552  Appendix. 

3/  "  Ad  omnes  hujusmodi  opiniones  e  medio  tollendas  sat  est,  ea  quae  Sixtus 
V.  constituit,  sedulo  inspicere  ;  aperte  enim  in  §  8  Constitutionis  pracktae 
enunciatur,  a  die  publicationis  ejusdem  Constitutionis  Episcopos  ad  SS. 
Apostolorum  cineres  visitandos  omnino  teneri."  Igitur,  praedicta  annorum 
ipatia  omnibus  incipiunt  currere  a  die,  quo  bulla  Sixti  V.  edita  fuit,  hoc  est, 
a  die  20  Decembris,  1585. "ia 

4.  The  Instruclio^  having   explained   that   the   foregoing   applies   also   to 
bishops  of  newly  created  dioceses,14  continues  :  "  Cum  quispiam  ad  sedem 
episcopalem,  sive  ex  veteribus,  sive  ex  novis  (sedibus  episcopalibus)  evehi- 
tur,  diem  quo  lex  Sixti  V.  prodiit,  prae  oculis  habeat ;  et  si,  praefiniti  temporis 
inde  incipiens  computationem,  noverit  ejus  praedecessorem  vertente  triennio, 
quadriennio,  etc.,  oneri  SS.  Liminum  visitationis  haud  fecisse  satis,  sciat  sead 
earn  absolvendam  adstringi.     Econtra  si  quis  dioeceseos  curam  assumpserit 
paulo  ante  quam  triennium,  etc.,  sub  antecessore  incoeptum  ad  exitum  per- 
veniret,   cum   temporis  defectu   nondum  in  promptu  possit  habere   quae   ad 
statum   propriae  ecclesiae  referendum  requiruntur,  succurrit  remedium  in\ 
plorandae  prorogationis  quae  hisce  praesertim  in  adjunctis  a  S.  Sede  facile 
impertitur."  16 

5.  The  Instructio  next  declares  that  at  present,  owing  to  the  extraordinary 
facilities  and  speed  of  travelling,  legitimate  causes  excusing  bishops  from  per 
sonally  making  the  visit  ad  SS.  Limina  can  occur  but  rarely  ;  that,  conse 
quently,  the  Holy  See  desires  that  they  should  make  the  visit   personally, 
not  merely  by  proxy.18 

11  The  schema  of  the  Council  of  the  Vatican  "  de  Episcopis  "  (cap.  iv.)  proposed  that  these 
three,  four,  etc.,  years  should  no  longer  be  computed  from  December  20,  1585,  but  from  the  day 
M  which  the  decree  of  the  Vatican  Council  on  this  head  would  be  promulgated  (Martin  Doc., 
p.  trf). 

11  Instr.  cit.,  a.  5,  6.  "Ib.,n.  7,  8.  '•  Instr.  cit.,  B.  9,  10.  '«  Fb.«  n.  11-15. 


Appendix.  553 

VII. 

DE  EPISCOPIS  IN  HIBERNIA  SELIGENDIS. 

I. 

DECRETUM 

SACRAE   CONGREGATIONS   GENERALIS  DE  PROPAGANDA  FIDE,  HABITAE  DIE  PRIMA 
JUNII    ANNO    1829,    DE   EPISCOPIS    IN    HIBERNIA    SELIGENDIS. 

(Supra,  n.  345,  349,  351.) 

Cum  ad  gravissimum  Electionis  Hiberniae  Episcoporum  negotium  rite  sancte- 
que  absolvendum,  certam  aliquam  methodum  ubique  in  eo  regno  servandam 
statuere  in  primis  opportunum  esse  Sacra  Congregatio  intellexerit,  qua  fieret, 
ut  Sedes  Apostolica  exploratam  notitiam  habere  possit  meritorum  Sacerdotum 
pro  quibus  commendationes  afferuntur,  ut  ad  aliquem  Hiberniae  Episcopatum 
eligantur,  eadem  Sacra  Congregatic,  postquam  diu  multumque  de  ea  re  defini. 
enda  cogitavit,  in  generali  tandem  conventu  die  prima  Junii  anno  1829,  refer, 
ente  Eminentissimo  et  Reverendissimo  D.  D.  Mauro  S.  R.  E.  Cardinal  Cappel- 
lari,  Sacrae  Congregationis  Praefecto,  censuit  ac  decrevit,  methodum  in  toto 
regno  Hiberniae  super  ea  re  servandam  in  posterum,  esse  debere  earn  quae  hie 
describitur. 

Sede  itaque  Episcopali,  sive  per  antistitis  obitum,  translationem,  aliamve  ob 
causam  in  posterum  vacante,  Vicarius,  juxta  formam  a  sacris  canonibus  prae- 
scriptam,  constituatur,  qui  dioecesi  viduatae,  durante  vacatione,  praesit.  Met- 
ropolitanus  Provinciae,  ubi  vocatio  contigerit,  simul  atque  de  vacatione,  et 
Vicarii  electione  certior  factus  fuerit.  literis  mandatoriis  Vicario  edicat,  ut  in 
diem  vigesimum  a  dato  edicto,  in  unum  convocet  omnes,  ad  quos  pertinebit 
Summo  Pontifici  commendare  tres  dignos  ecclesiastici  ordinis  viros,  quorum 
unus  a  Summo  Pontifice  Dioecesi  vacant!  praeficiatur.  Qui  sint  ii  qui  convo- 
cari  debent,  qua  in  forma  convocandi  sint,  habetur  ex  sequent!  expositione. 

Qui  in  Hibernia  nuncupantur  Parochi,  scilicet  clerici  ad  ordinem  Sacerdotalem 
evecti,  censurarum  immunes,  qui  parochiae.  seu  parochiarum  unitarum,  actual! 
ac  pacifica  possessione  gaudeant,  ad  comitia  convocandi  sunt.  Ubi  vero  adest 
capitulum,  convocabuntur  cum  Parochis  etiam  Canonici.  Vicarius,  edicto 
Metropolitan!  accepto,  intra  octo  dies  singulos  presbyteros  supra  designates, 
litteris  scriptis  admonebit  ut  loco  quodam  opportune,  in  eadem  monitior.e  nom- 
inatim  exprimendo  adsint  die  in  edicto  Metropolitan;  statuto,  ad  tractandum  de 
negotio  ibidem  descripto.  Metropolitanus  ipse,  vel  unus  de  Suffraganeis  ejus 
episcopis  ab  ipso  delegatus,  comitiis  praesidebit,  et  nulla  prcrsus.  et  invalida 
habenda  sunt  ibidem  acta,  et  slatuta,  non  servata  forma  supra  definita,  sive  in 
convocando  sive  in  moderando  conventu.  Parochis  ceterbque  de  quibus  supra, 
die  et  loco  statutis,  mane  in  unum  congregatis,  Missa  solenmis  de  Spiritu  Sancto 


554  Appendix. 

celebretur  :  Missaque  finita,  Praeses  super  sedile  in  medio  ecclesiae  ascendet, 
omnibusque,  quorum  nihil  interest,  exire  jussis,  foribusque  ecclesiae  clausis, 
Vicarius  catalogum  nominum  omnium  Parochorum  et  Canonicorum,  si  adsit  ibi 
capitulum,  dioecesis  vacantis  Praesidi  tradet,  qui  eorumdem  nomina,  clara  ac 
distincta  voce,  a  Secretario  suo  recitari  mandabit,  et  unicuique  eorum,  postquam 
nomini  responderit,  sedem  propriam  assignabit.  Si  unus  aut  plures  Parochi 
absint,  praeses  a  Vicario  probationem  exquiret,  absentibus  sine  fraude  edictum 
fuisse,  et  tali  probatione  admissa,  absentia  cujusvis  numeri,  modo  quarta  pars 
totius  Parochorum  numeri  adsit,  nihil  obstabit,  quominus  rata  et  valida  sint, 
quae  in  comitiis  gerantur.  Idem  servandum  erit  circa  Canonicorum  numerum, 
in  diocesi  in  qua  Capitulum  adest.  Parochis  ac  Canonicis,  qui  Vicarii  moni- 
tioni,  sive  propter  adversam  valetudinem,  aliamve  ob  causam  parere  non  vale- 
ant,  liberum  erit,  suffragia  sua  propria  ipsorum  manu  scripta,  involucro  sigillato 
inclusa,  et  extrinsecus  ad  Praesidem  directa,  cuivis  alii  Parocho  vel  Canonico 
ejusdem  Dioecesis  confidere;  et  suffragio  sic  habito,  et  probato,  eadem  inerit 
vis,  ac  si  Parochus  aut  Canonicus  ipse  praesens  adesset;  modo  literae  certifica- 
toriae  de  adversa  ejus  valetudine,  a  duobus  artis  medicinae  peritis  subscr'iptae, 
ad  Praesidem  transmittantur.  Insuper  parochus  iste  vel  Canonicus  priusquu.m 
suffragium,  modo  supra  descripto  ferat,  eamdem  declarationem  emittet,  quam 
ceteri  Parochi  ac  Canonici  inter  comitia  emittere  coram  praeside  debebunt; 
ejusque  declarationis  coram  duobus  Parochis  vel  Canonicis  emissae  probatio,  in 
medium  erit  proferenda  coram  Praeside,  antequam  suffragium  admittatur. 
Comitiis  ita  compositis,  ac  Praeside  tractanda  proponenteduo  Scrutatores  juxta 
consuetas  canonum  formas,  eligantur.  Dein  Suffragatores  tactis  simul  manu 
pectoribus,  coram  Deo  pro  se  quisque  affirment,  se  neque  gratia,  neque  favore 
inductos  ei  suffragaturos,  quem  dignum  judicent,  qui  Dioecesi  vacanti  praefici- 
atur.  Postea  suffragio  in  urnam  immisso.  singuli  ad  propriam  sedem  recedent. 

His  peractis,  clara  altaque  voce  a  Scrutatoribus  ad  Praesidem,  et  a  Praeside 
ad  conventum,  renuntianda  sunt  nomina  trium  eorum  Sacerdotum,  in  quos 
major  Suffragiorum  numerus  convenerit.  Tune  Praeses,  narrationem  authen- 
ticam  in  scriptis  redactam,  parari  coram  comitiis,  ejusdemque  duo  exemplaria  a 
se  ipso  et  secretario  atque  scrutatoribus  subsignanda,  exscribi  curabit.  Ex  istis 
exemplaribus  alterum  Vicario  tradendum,  qui  idem  ad  Sedem  Apostolicam 
transmittat;  alterum  vero  ad  Metropolitanum,  cujus  munus  erit  idem  ad  Suffra- 
ganeos  suos  Episcopos  in  unum  congregates  referre.  Quaecumque  jura,  privi- 
legia,  et  munera  supra  recensentur  tanquam  Praesidi  conventus  propria, 
eadem,  Sede  Metropolitana  vacante,  Seniori  Provinciae  Suffraganeo  communi- 
cari  volumus. 

Episcopis  Provinciae,  Praeside  Metropolitano,  aut  ipsius  defectu  Seniore 
Provinciae  Suffraganeo  in  unum  congregatis,  et  narratione  authentica  supra 
memora^  coram  ipsis  prolata,  de  eadem  coram  Deo  judicium  sententiamque 
ferent.  Praeses  Episcoporum  Suffraganeorum  sententiam  de  meritis  trium 
Sacerdotum,  qui  sedi  Apostolicae  commendantur,  literis  consignatam,  unius- 


Appen  dix.  555 

cujusque  Episcopiet  Praesidis  manu  subscriptam,  sigilloque  munitam,  ad  Sedem 
Apostolicam  transmittet.  Semel  peracta  commendatione,  si  Episcopi  judica 
verint  tres  illos  commendatos  minus  dignos  esse,  quorum  unus  ad  Episcopatum 
promoveatur,  tune  quin  detur  novae  commendationi  locus,  Summus  Pontifex 
pro  sua  sapientia,  viduatae  ecclesiae  providebit. 

Si  agatur  de  Episcopo  Coadjutore,  cum  jure  successionis  cuivis  Episcopo  as- 
signando,  eadem,  quae,  sede  vacante,  commendandi  forma  servanda  est,  cauto 
tamen  varia  pnvilegia,  jura  et  munera  Metropolitano,  aut  Seniori  Episcopi 
Suffraganeo  jam  attributa,  ad  Archiepiscopum,  aut  Episcopum  cui  coadjutor 
assignandus  est,  unice  pertinere,  illaeso  tamen  servato  jure  Metropolitani, 
quando  Suffraganei  ejus  Episcopi  ad  ferendum  suffragium  convenerint.  Tan 
dem  quicumque  Sedis  Apostolicae  approbationi  commendentur,  cives  sint  indi- 
genae  Hiberniae  Serenissimo  Imperii  Britannici  Regi  fidelitate  incorrupta 
obstricti,  morum  integritate,  pietate,  doctrina,  ceterisque  quae  Episcopum 
decent,  dotibus  insigniti. 

Haec  sunt,  quae  in  commendandis  Sedi  Apostolicae  Sacerdotibus  pro  episco- 
porum  Hiberniae  electione,  Sacra  Congregatio  servanda  praescripsit.  Ea  vero 
decernens,  significari  omnibus  voluit,  in  documentis  de  hac  re  pertractantibus, 
ad  Sanctam  Sedem  transmittendis,  nihil  inveniri  debere,  quod  electionem,  pos- 
tulationem,  nominationem  innuat,  sed  simplicem  commendationem  :  memorata 
praeterea  documenta  esse  debere  jussit,  in  forma  supplicis  libelli  ita  concepti, 
ut  inde  pateat  nullam  in  Sanctam  Sedem  inferri  obligationem  eligendi  unum  ex 
commendatis. 

Declaravit  denique  Sacra  Congregatio.  salvam  semper  atque  illaesam  manere 
debere,  Sedis  Apostolicae  libertatem  in  eligendis  Episcopis,  ita  ut  commenda 
tiones,  lumen  tantum,  et  cognitionem  Sacrae  Congregationi,  nunquam  tamen 
obligationem  sint  allaturae. 

Datum  Romae  ex  Aedibus  die.  Sac.  Congregationis  die  17  Octobris,  1829. 

Gratis  sine  ulla  omnino  solutione  quocumque  titulo. 

D.  M.  CARD.  CAPPELLARI, 

Praefectus. 
C.  CASTRACANE,  Secretarius. 


II. 

DE  EPISCOPIS  IN  HIBERNIA  SELIGENDIS. 

(Supra,  n.  351.) 
ILLUSTRISSIME  AC  REVERENDISSIME  DOMIXE — 

Initum  a  Sacra  Congregatione  consilium  ut  certam  methodum  in  regn»  Hi 
berniae  pervandam  decerneret  circa  sacerdotes  commendandos  Apostolicae  Sedi 
quando  agitur  de  episcoporum  electione  in  eo  totum  versatum  est  ut  memorata 


556  Appendix. 

methodo  accurate  servata  Apostolica  Secies  exploratam  notitiam  habere  possit 
meritorum  sacerdotum  pro  quibus  commendationes  afferuntur.  Quare  Sacra 
Congregatio  in  decreto  quod  die  prima  Junii  anno  1829  ea  de  re  factum  fuerat 
ac  die  17  Octobris  ejusdem  anni  promulgatum  est,  declaravit  mentem  suam  esse 
ut  commendationes  illae  lumen  tantum  ac  cognitionem  sibi  compararent  circa 
eos  inter  quos  Apostolica  Sedes  episcopos  est  electura.  Voluit  quidem  diocesa- 
num  clerum  consuli  atque  ejusdem  opinionem  circa  sacerdotes  commendandos 
per  secreta  suffragia  requiri.  Id  autem  ea  tantum  de  causa  factum  est,  ut 
sanctae  Sedi  constaret  quinam  praecipue  sacerdotes  aestimationem  obtineant 
cleri  dioecesani,  et  tale  testimonium  consequantur  ex  quo  intelligi  posset  eos 
apud  diocesanum  clerum  ad  episcopatum  consequendum  idoneos  censeri.  Hoc 
vero  unico  scrutinio  fieri  posse  manifestum  est,  et  revera  decreti  superius  ine- 
morati  contextus  hie  est,  ut  in  uno  tantum  scrutinio  res  peragatur  atque  ex  eo 
scrutinio  constet  quinam  sint  tres  sacerdoles  in  quos  major  suffragiorum  numerus 
convenerit. 

Ad  Sacrae  Congregationis  notitiam  nuper  pervenit  in  aliquibus  Hiberniae 
dioecesibus  hoc  obtinuisse  ut  in  conventibus  qui  habentur  a  clero  diocesano  ad 
sacerdotes  sanctae  Sedi  commendandos  ex  quibus  episcopus  aliquis  eligatur  non 
unum  sed  tria  fiant  :  intelligens  Sacra  Congregatio  hinc  evenire  posse  ut  non 
tres  praestantiores  ex  clero,  sed  unus  revera  commendetur  atque  ei  duo  alii 
veluti  ad  formam  tantum  adjungantur  meritis  omnino  inferiores;  cupiens  prae- 
terea  eadem  Sacra  Congregatio  ubique  in  Hibernia  eamdem  methodum  circa 
ejusmodi  commendationes  servari  scribendum  judicavit  Amplitudini  Tuae  hanc 
epistolam  caeteris  Archiepiscopis  communicandam  ut  in  dioecesibus  omnibus 
Hiberniae  constet  unicum  scrutinium  in  conventibus  cleri  peragendum  esse  ad 
tres  sacerdotes  sanctae  Sedi  commendandos  antequam  ipsa  deveniat  ad  episcopi 
alicujus  Hiberniae  dioecesis  electionem,  et  hunc  verum  decreti  diei  I  Junii  1829 
sensum  esse.  Precor  Deum  interea  ut  amplitudinem  Tuam  diu  sospitem  ac 
felicem  servet. 

Romae  ex  aed.  S.  C.  de  Prop.  Fide,  die  25  Aprilis,  1835, 

Amplitudinis  tuae 

Ad  Officia  Paratissimus, 

J.  CH.  CARD.  FRANSONIUS,  Praef. 

A.  MAIUS,  Secretariats. 
R.  P.  D.  DANIELI  MURRAY, 

Archiepiscopo  Dublinensi, 
Dublinum. 

P.S.— In  Decreto  recentiori  S.  Congregationis  de  Prop.  Fide  statutum  est  ut  conventus 
Episcoporum  provinciae  qui  sententiam  dicere  debent  de  meritis  trium  sacerdotum  a  clero 
selectorum  teneatur  decem  diebus  post  conventum  cleri  ipsius. 


Appendix.  557 

VIII. 

INSTRUCTIO 
S.  CONGREGATIONS  DE  PROPAGANDA  FIDE  PRO  ANGLIA,  CIRCA 

COMMENDANDOS   AD   EPISCOPATUM. 

(Supra,  n.  345,  349-) 

21  Aprilis  1852. 

Ut  Ecclesiae  noviterper  Smum  D.  N.  in  Angliae  regno  constitutae  magis  in 
4ies  floreant,  iisdemque  Antistites  jugiter  praeficiantur  qui  vitae  probitate, 
doctrina,  zelo,  ac  prudentia  spectatissimi  existant  ;  peropportunum  visum  est, 
si  ab  ecclesiasticis  viris,  qui  sacris  obeundis  muneribus  inter  alios  praestiterunt, 
potissimum  vero  testimonio  Episcoporum  pro  tempore  existentium,  nonnulli 
Apostolicae  Sedi  commendentur,  ex  quibus  eadem  ad  episcopalem  gradum, 
quem  magis  idoneum  censuerit  eligere  valeat. 

Commendatio  vero  hujusmodi  tanti  momenti  esse  noscitur,  ut  inspectis  ani- 
madversionibus  ab  Emo  ac  Rmo  D.  Nicolao  S.  R.  E.  Cardinali  Wiseman  ac 
RR.  PP.  DD.  Episcopis  Angliae  redditis,  ac  re  accurate  perpensa,  S.  Congre- 
gatio  de  Propaganda  Fide,  in  generali  conventu  habito  die  5.  Aprilis  1852. 
peculiar!  instructione  methodum  proponendam  censuerit. 

Cum  Episcopus  est  constituendus,  capitulariter  dignitarius  et  canonici  illius 
Ecclesiae  conveniant,  precibus  de  more  praemissis  ac  praestito  jurarnento  de 
secreto  servando,  tribus  vicibus  suffragia  ferantur  circa  personas  Sanctae  Sedi 
veluti  digniores  commendandas.  Si  in  al-iqua  ex  tribus  vicibus  in  favorem 
nullius  adsint  suffragia  tot  numero  quae  excedant  majorem  partem  vocum,  actus 
nullius  momenti  existat,  atque  iterum  suffragia  ferantur. 

Actus  capitularis,  rite  descriptus  atque  obsignatus,  transmittendus  erit  ad 
Archiepiscopum,  vel  ad  Suffraganeum  antiquiorem  vacante  sede  archiepiscopali, 
vel  si  de  commendandis  ad  ipsum  archiepiscopatum  agatur  ;  ut  coetus  episco- 
palis,  consiliis  collatis,  circa  tria  nomina  alphabetico  ordine  descripta,  quae  in 
referat,  singulis  votationibus  majorem  suffragiorum  partem  obtinuerint  ad  S.  C, 
suamque  opinionem  tradat,  transmisso  etiam  ipso  authentico  capitulari  actu. 

Demum  cum  contingere  aliquando  possit,  ut  canonici  legitime  impediantur 
ne  ad  capitulum  in  quo  hujusmodi  fieri  debet  commendatio  accedant,  censuit 
S.  Congregatio  admittendos  tune  esse  eorumdem  procuratores  ad  effectum  tan- 
ium  tradendi  schedam  cum  nomine  et  praenomine  eligendi.1 

Caeterum  animadvertendum  ac  declarandum  censuit  S.  Congregatio,  his 
omnibus  contineri  tantummodo  commendationem,  adeo  ut.  quando  necessarium 
vel  opportunum  videatur,  Apostolica  Sedes  suo  utatur  jure  alterum  quoque, 
praeter  commendatos,  eligendi. 

1  Sive,  prout  postea  a  S.  C.  explicatum  est,  tres  schedas,  cum  nominibus  trium  virorum  pro- 
ponendorum.  Notandum  est  generatim  quod,  sicubi  aliqua  discrepantia  inveniatur,  inter 
decreta  Synod!  et  docutnenta  ipsa  ad  quae  referuntmr,  hoc  inde  eveniat,  quod  ista  ab  ipsa  S.  C. 
per  subsequentes  epistolas  modificata  fuerint.  In  praxi  igitur  adhaerendum  textui  SynodL 
N.  C.  W. 


558  Appendix. 

0 

Cum  vero  haec  omnia  Sino  D.  N.  Pio  Papae  IX  ab  infrascripto  S.  Congre- 
gationis  secretario  relata  fuerint  in  audientia  diei  6.  ejusdem  mensis  et  anni, 
Sanctitas  Sua  benigne  eadem  probavit  ad  servari  decrevit,  contrariis  quibus- 
cumque  baud  obstantibus. 

Datum  etc. 

ALEXANDER  BARNABO,  Secretarius. 


ON    THE   MODE   OBSERVED    BY    THESE    CHAPTERS    IN    THE    ELECTION    OF      BISHOPS. 

42.  Post  mortem  Episcopi  singuli  canonici  aderunt  ut  ejus  funeri  debito  cum 
honore  faciendo  assistant.  Et  intra  octo  dies  a  morte  Episcopi,  capitulum  no- 
minabit  per  liberam  electionem  suum  vicarium,  qui  ad  tramites  canonurr 
dioecesim  regere  possit,  quique  semel  nominatus  non  potest  revocari  a  cap'itulo, 
quique  unus  tantum  esse  potest. 

43-  Tune  loco  et  die  ab  Archiepiscopo,  vel,  eo  impedito  vel  demortuo,  ab 
Episcopo  seniore  assignanuo,  non  tamen  ultra  mensem  a  die  mortis  Episcopi, 
•capitulum  convocabitur  ;  et,  celebrata  per  canonicum  digniorem  missa  de  Spiritu 
sancto,  et  praestito  a  singulis  juramento  de  secreto  servando,  canonici  suffragia 
sua  secreto  deponent  in  urna  ad  hoc  disposita.  In  primo  suffragio  singuli 
adnotabunt  nomen  illius  personae  ecclesiasticae  quam  ad  sedem  vacantem 
magis  idoneam  in  Domino  judicaverint.  Haec  vero  suffragia  in  scriptis  da- 
buntur,  nulla  discussione  praecedente  in  conventu  capitulari,  et  a  tribus  scruta- 
toribus  in  initio  sessionis  electis  excipientur.  Ita  tamen  plicanda  sunt  utnonnisi 
nomen  proponendi  legi  possit.  Nomen  proponentis  interius  scribatur,  et 
suffragium  sit  bene  clausum  sigillo  non  noto.  Stylus  vero  scriptionis  sit  di 
versus  ab  eo,  quo  utitur  ordinarie  is  qui  suffragium  fert.  Deinde,  ex  compara 
tione  suffragiorum,  scietur  si  quis  habuerit  totidem  suffragia  sibi  favorabilia, 
quot  excedunt  medietatem  suffragiorum  tarn  praesentium,  quam  absentium  per 
procuratores  repraesentatorum,  non  vero  absentium  absque  procuratore. 
Publicatis  post  quodlibet  scrutinium  nominibus,  comburantur  ipsa  suffragia 

44.  Absentes  tamen    non   valent  per    litteras  votum  suum  aperire,  sed  per 
procuratorem  e  gremio  capituli  eligendum,  et  munitum   legitimo  mandato,  quod 
non  potest  admitti  nisi  propter  causam  vere  necessariam,  clare  descriptam  et 
capitulo  probandam  ;  vel  propter  infirmam  valetudinem,  quoin  casu  exprimatur 
quod  de  consilio  unius  saltern  medici  et  unius  canonici  documfinto  ipsi  se  sub- 
scribentium.  capitularis  nequit   adesse.      Procurator  est   admittendus   duntaxat 
ad  tres  schedas  tradendas  contmentes  nominaet  praenomina  deligendorum 

45.  Quodsi  in    primo  scrutinio   nullus  fuerit  assecutus  majorem  numerum, 
iterum  suffragia  ferantur  usque  dum  unus  fuerit  ilium  assecutus. 


Appendix.  559 

46.  Hac  etiam  ratione  procedendum  erit  ad  designationem  alterius  et  tertii 
candidati.  De  hisce  omnibus  instrumentum  fiet  his  terminis. 

,,Vacante  propter  obitum  vel  .   .   . 

,,R.  P.  D.  Sede  N.,  capitulum  sessionem  secretam  habuit,  hac  die  .  .  .  sub 
praesentia  R.  P.  D.  Archiepiscopi  vel  ...  in  qua  post  celebratam  missam  de 
Spiritu  sancto,  electi  fuerunt  scrutatores  R.  D  .  .  .,  R.  D  .  .  .,  R.  D  .  .  . 

,, Facto  ter  scrutinio  constat  ex  majore  numero  suffragiorum  proponendos 
esse  S.  Sedis  judicio  viros  ecclesiasticos  quorum  nomina  hie  ordine  alphabetico 
describuntur  R.  D.  A.  B.-  R.  D.  C.  D.-  R.  D.  E.  F. 

,,Omnia  vero  peracta  fuerunt  ad  tramites  decretorum  Sacrae  Congregationis 
de  Propaganda  Fide. 

,,In  quorum  fidem  has  praesentes  rite  publicatas  in  capitulo,  munitas  sigillo 
capitular!,  et  sub  manu  praepositi,  secretarii,  et  scrutatorum,  capitulum  dari 
jussit  die  .  .  .  mensis  .  .  .  anni  .  .  . 

A.  praepositus.     G.  } 

..Sigil.          D.  secretatius.     M.  >    scrutatores." 
N.) 

Triavero  exemplaauthentica  riant,  quorum  unum  apud  Capitulum  asservetur, 
alterum  apud  Archiepiscopum,  tertium  vero  ab  Archiepiscopo  ad  Sac.  C.  de 
Propaganda  Fide  transmitutur. 

IX. 

HOW  SHOULD   OUR   CONSULTORS  AND  IRREMOVABLE   RECTORS 
PROCEED    IN    THE    ELECTION    OF    BISHOPS? 

THE  form  of  electing  Bishops  to  be  observed  by  Cathedral  Chapters,  as 
laid  down  by  Pope  Innocent  III.  and  still  in  force,  is  as  Wows.  The  election 
must  take  place  in  one  of  these  three  ways  :  namely,  (a)  either  by  secret  suffrage 
or  voting,  (b)  or  by  compromise,  (c)  or  by  acclamation.*  The  e'ection  usually 
takes  place  in  the  first  way,  namely,  by  voting  or  suffrage. 

How  is  the  voting  to  be  conducted?  i.  When  those  who  have  a  right  to 
vote  are  assembled,  they  first  choose  three  tellers,  whose  duty  il  shall  be  to 
receive,  count,  and  announce  the  votes.  2.  Next  the  voting  itself,  wb'ch  must  be 
secret,  takes  place  thus :  each  voter  (a)  either  writes  down  his  vote  on  a  ticket  or 
ballot,  and  hands  it  to  the  tellers,  (6)  or  he  communicates  his  vote  orally  to  the 
tellers,  though  in  a  low  voice,  so  that  he  may  not  be  heard  by  the  other  voters; 
in  this  case,  the  tellers  must  at  once  write  down  the  vote  given  orally.  3.  When 
all  have  voted,  the  tellers  count,  and  announce  the  entire  vote  in  the  presence 
•of  the  voters. 

If  it  is  founo!  that  no  one  has  obtained  a  majority  of  votes  of  all  the  voters 
present,  the  voting  or  balloting  must  be  repeated  until  some  one  has  obtained 
the  requisite  majority  of  votes. 

It  will  be  seen  that  our  mode  of  voting  for  candidates  for  vacant  Bishopric? 

*  Cap.  42,  de  Elect.  (I.  6). 


560  Appendix. 

is  in  the  main*  the  same  as  that  prescribed  by  the  general  law  and  described 
above.  From  this  it  will  also  be  seen  that,  with  us,  if  after  the  vote  has  been 
taken  it  is  found  that  the  candidates  have  not  received  the  requisite  majority  of 
votes,  the  voting  must  be  repeated  until  three  candidates  have  each  received 
a  majority  of  all  the  votes  present.  No  candidate  can  be  placed  on  the  list  unless 
he  has  received  a  majority  of  votes  of  all  the  voters  present. 

X. 

MODE  OF  ELECTING  BISHOPS  AS  PRESCRIBED  BY  THE  GENERAL 
LAW  OF  THE  CHURCH,  AND  AS  STILL  IN  FORCE. 

THIS  mode  is  laid  down  in  the  following  decretal  issued  by  Pope  Innocent 
III.  in  1215  :  "  Quia  propter  diversas  electionum  formas,  quos  quidem  invenire 
conantur,  et  multa  impedimenta  proveniunt,  et  magna  pericula  imminent 
Ecclesiis  viduatis  :  Statuimus,  ut  cum  electio  fuerit  celebranda,  prsesentibus 
omnibus  qui  debent,  et  volunt,  et  possunt  commode  interesse,  assumantur  tres 
de  collegio  fide  digni,  qui  secrete  et  sigillatim  vota  cunctorum  diligenter  exqui- 
rant,  et  in  scriptis  redacta  mox  publicent  in  communi  :  nullo  prorsus  appella- 
tionis  obstaculo  interjecto  :  ut  is  collatione  habita  eligatur,  in  quern  omnes,  vel 
major  et  sanior  pars  capituli  consentit.  Vel  saltern  eligendi  potestas  aliquibus 
viris  idoneis  committatur,  qui  vice  omnium  Ecclesiae  viduatae  provideant  de 
pastore.  Aliter  electio  facta  non  valet  :  nisi  forte  communiter  esset  ab  omnibus, 
quasi  per  inspirationem,  absque  vitio  celebrata.  Qui  vero  contra  praescriptas 
formas  eligere  attentaverunt,  eligendi  ea  vice  potestate  priventur. 

"  §  i.  Illud  autem  penitus  interdicimus,  ne  quis  in  electionis  negotio  pro- 
curatorem  constituat,  nisi  sit  absens  in  eo  loco,  de  quo  debeat  advocari,  justoque 
impedimento  detentus  venire  non  possit  :  super  quo,  si  opus  fuerit,  fidem  facial 
juramento  :  et  tune  si  voluerit,  uni  committal  de  ipso  collegio  vicem  suam. 

"  g  2.  Electiones  quoque  clandestinas  reprobamus,  statuentes,  ut  quam  cito 
electio  fuerit  celebrata,  solemniter  publicetur." 

*  Cone.  PI.  Bait.  III.,  n.  15,  i,  ii,  iii. 


Appendix.  561 


XI. 

DECREE  OF  THE  SACRED  CONGREGATION  OF  PROPA 
GANDA  FIDE  APPOINTING  MOST  REV.  ARCH 
BISHOP  SATOLLI  TEMPORARY  DELEGATE  APOS 
TOLIC  IN  THE  UNITED  STATES. 

DECRETUM. 

Quo  controversiae,  quas  inter  Epiycopos  et  sacerdotes  amplissimae  Statuum 
Foederatorum  ditionis  adesse  contingit,  promptiori  faciliorique  ratione  componj 
possint,  citiusque  iis  sublatis  tranquillitas,  quae  turbari  per  eas  solet,  in  Dioecesi- 
bus  restituatur,  peropportunum  visum  est  huic  Consilio  Christianae  Fidei  Propa- 
gandae,  occasione  capta  commorationis  R.  P.  D.  Francisci  Satolli  Archiepiscopi 
Naupactensis  in  supradicta  Respublica  eidem  quoad  illic  fuerit,  commissariam 
facultatem  facere  memoratas  controversias  cognoscendi  componendique,  omni 
appellatione  remota,  et  servata  tantum  in  substantialibus  judicii  forma,  duobus 
tamen  semper  adhibitis  adsistentibus  spectatissimis  e  clero  in  singulas  vices  deli- 
gendis.  Quam  sententiam  Ssmo.  D.  N.  Leoni  XIII.  relatam  ab  infrascripto 
ejusdem  S.  Congregationis  prosecretario  in  audientia  diei  30  superioris  mensis 
Octobris,  Sanctitas  sua  benigne  adprobait  ratamque  habuit,  eaque  super  re 
praesens  Decretum  confici  jussit. 

Datum  Romae,  ex  sedibus  S.  Congregationis  de  Propaganda  Fide  die 
3  Novembris  1892. 

M.  CARD.  LEDOCH'OWSKI,  Praef. 
[Locus  Sigilli.  1  .    .     T 

•r  A.  LARISSEN,  Prosecretartus. 


XII. 

BRIEF  OF  POPE  LEO  XIII.  ESTABLISHING  A  PERMA 
NENT  APOSTOLIC  DELEGATION  IN  THE  UNITED 
STATES. 

LEO  XIII.,   POPE,  TO  HIS  VENERABLE  BROTHER,  FRANCIS 
SATOLLI,  TITULAR  ARCHBISHOP  OF  LEPANTO. 

VENERABLE  BROTHER  :  Greeting  and  apostolic  blessing.  The  apostolic 
office  which  the  inscrutable  designs  of  God  h  ive  laid  on  our  shoulders,  unequal 
though  they  be  to  the  burden,  keeps  us  in  frequent  remembrance  of  the  solicitude 
incumbent  on  the  Roman  Pontiff  to  procure  with  watchful  care  the  good  of  all 


562  Appendix. 


the  churches.  This  solicitude  requires  that  in  all,  even  the  remotest,  regions  the 
germs  of  dissension  be  weeded  out,  and  the  means  which  conduce  to  the  increase 
of  religion  and  the  salvation  of  Christian  souls  be  put  into  effect  amid  the  sweet 
ness  of  peace.  With  this  purpose  in  view  we,  the  Roman  Pontiff,  are  wont  to 
send  from  time  to  time  to  distant  countries  ecclesiastics  who  represent  and  act  for 
the  Holy  See,  that  they  may  procure  more  speedily  and  energetically  the  good, 
prosperity,  and  happiness  of  the  Catholic  peoples. 

For  grave  reasons  the  churches  of  the  United  States  of  America  demand  of 
us  special  care  and  provision.  Hence  we  came  to  the  conclusion  that  an  apos 
tolic  delegation  should  be  established  in  said  states.  After  giving  attentive  and 
serious  consideration  to  all  the  bearings  of  this  step,  and  consulting  with  our 
venerable  brothers,  the  cardinals  in  charge  of  the  Congregation  for  the  Propaga 
tion  of  the  Faith,  we  have  chosen  you,  venerable  brother,  to  be  entrusted  with 
such  delegation.  Your  zeal  and  ardor  for  religion,  your  wide  knowledge,  skill 
in  administration,  prudence,  wisdom,  and  other  remarkable  qualities  of  mind 
and  heart,  as  well  as  the  assent  of  the  said  cardinals,  justify  our  choice. 

Therefore,  venerable  brother,  holding  you  in  very  special  affection,  we,  by 
our  apostolic  authority  and  by  virtue  of  these  present  letters,  do  elect,  make,  and 
declare  you  to  be  Apostolic  Delegate  in  the  United  States  of  America,  at  the 
good  pleasure  of  ourself  and  this  Holy  See.  We  grant  you  all  and  singular 
powers  necessary  and  expedient  for  the  carrying  on  of  such  delegation.  We 
command  all  whom  it  concerns  to  recognize  in  you  as  apostolic  delegate  the 
supreme  power  of  the  delegating  Pontiff  ;  we  command  that  they  give  you  aid, 
concurrence,  and  obedience  in  all  things  ;  that  they  receive  with  reverence  your 
salutary  admonitions  and  orders.  Whatever  sentence  or  penalty  you  shall  de 
clare  or  inflict  duly  against  those  who  oppose  your  authority  we  will  ratify,  and 
with  the  authority  given  us  by  the  Lord  will  cause  to  be  observed  inviolably 
until  condign  satisfaction  be  made,  notwithstanding  constitutions  and  apostolic 
ordinances,  or  any  other  thing  to  the  contrary. 

Given  at  Rome,  in  St.  Peter's,  under  the  Fisherman's  Ring,  this  twenty- 
fourth  day  of  January,  1893,  of  our  Pontificate  the  fifteenth  year. 

(Signed) 

[Seal  of  Ring.]  SERAFINO,  Cardinal  VANNUTELLI. 

{Secretary  of  Briefs.} 


CONTENTS. 


BOOK  I.— ON  ECCLESIASTICAL  PERSONS. 


PART   I. 

FAGS 

On  the  Principles  of  Ecclesiastical  Law,        ...         7 

CHAPTER  I. 

On  the  Name,  Definition,  etc.,  of  Canon  Law,      .         .  7 

Art.     I.  Various  Meanings  of  the  term  Jits,       ....  7 

Art.    II.  Division  of  Law  in  general,            .....  7 

Art.  III.  What  is  Canon  Law  ? g 

Art.  IV.  Division  of  Canon  Law, 10 

CHAPTER  II. 

On  the  Sources  of  Canon  Law  ("  De  Fontibus  Juris 
Canonici  "),  .         .         .         .         .         .         .11 

Art.      I.  How  many  Sources  of  Canon  Law  are  there  ?       .         .  n 

Art.    II.   i.  Of  S.  Scripture  as  a  Source  of  Canon  Law,       .         .  13 

Art.  III.  2.  Of  Divine  Tradition  as  a  Source  of  Canon  Law,       .  14 
Art.  IV.  3.  Of  the  Law  enacted  by  the  Apostles  as  a  Source  of 

Canon  Law,     .......  14 

Art     V.  4.  Of  the  Teaching  of  the  Fathers   as  a   Source   of 

Canon  Law,     .....  .  16 

CHAPTER  III. 

5.  Of  the  Decrees  of  the  Sovereign  Pontiffs  as  a  Source 
of  Canon  Law,          .  .17 

^rt     I.   Nature  of  the  Power  of  the  Roman  Pontift.         .  17 

563 


Contents. 

MM 

Art.    II.  Of  the  Acceptance  of  Pontifical  Laws,         ...  19 

Art.  III.  Of  the  Exercise  of  the  Pontifical  Authority,          .         .  22 

Art.  IV.  Of  the  requisite  Promulgation  of  Pontifical  Laws,        .  23 

Art.    V.  Various  kinds  of  Papal  Letters  or  Constitutions,  .  26 

Art.  VI.  Of  Rescripts  (De  Rescriptis), 28 

CHAPTER  IV. 

6.  On  the  Decrees  of  Councils  as  a  Source  of  Canon 
Law, 32 

Art.      I.  Of  Oecumenical  Councils,  ......         32 

Art.    II.  Of  Particular  Synods,  whether  National,  Provincial,  or 

Diocesan,  especially  in  the  United  States,        .         .         34 

CHAPTER  V. 

7.  On  the  Roman  Congregations  as  a  Source  of  Canon 
Law,      .........        40 

Art.      I.  Force  of  the  Decisions  of  the  Sacred  Congregations,  .         40 

CHAPTER  V 

8.  On  Custom  as  a  Source  of  Canon  Law,          .        .  43 
Art.      I.  Nature  and  Division  of  Custom,          .         .         .         •  43 
Art.    II.  Essential  Conditions  of  Custom,          .         .        .        .  45 
Art.  III.  Effects  and  Abrogation  of  Custom,      ....  49 

CHAPTER  VII. 
On   National    Canon   Law  (De  Jure  Canonico  No- 

tionali),  ....          ....         51 

Art.      I.  Nature  and  Essential  Conditions  of  National  Canon 

Law,       .  51 

Art.    II.  Of  the  National  Canon  Law  of  the  United  States,       .         53 

CHAPTER  VIII. 

On  Privileges  ("  De  Privilegiis  "),        .         .        r        .     .    56 
Art.     I.  Nature,  Division,  etc.,  of  Privileges,  .         56 

CHAPTER  IX. 
On  the  History  of  the  Common  Canon  Law,  or  of  the 

Canon  Law  of  the  Entire  Church,  .         .         .         63 


Contents.  565 

PACB 

Art.  I.  Of  Collections  of  Canons  in  genera!  ("  Collections  Co- 

nonum"},  .....  •  •  "3 

Art.  II.  Of  the  State  of  Canon  Law  in  the  Oriental  Church — 

Eastern  Collections,  .  .  .  .  •  •  66 

Art.  III.  History  of  Canon  Law  in  the  Latin  Church — Collec 
tions  of  Dionysius  Exiguus,  Isidore  Mercator,  Gra- 
tian,  eta,  ....  .  .  67 

CHAPTER  X. 

History  of  Particular  or  National  Canon  Law — His 
tory  of  Canon  Law  in  the  United  States,          .         .         74 

CHAPTER  XL 
Rulae  for  the  Construction  of  Laws,    ....         79 


PART  II. 

Of  Persons  pertaining  to  the  Hierarchy  of  Jurisdic 
tion  in  general — that  is,  of  Ecclesiastics  as  vested 
with  J- 'urisdictio  Ecdesiastica  in  general,  .  .  .  81 

CHAPTER  I. 

Definition   of    the    Church — Meaning    of   the   word 

"  Hierarchy"  in  general, 81 

CHAPTER  II. 

Nature  and  Object  of  Ecclesiastical  Jurisdiction,         .         85 
Art.      I.  Difference  between  the  Power  of  Jurisdiction  and  that 

of  Order 85 

Art.  II.  What  is  the  precise  Extent  or  Object,  i,  of  the  "  Po- 
tcstas  Ordinis" ;  2,  of  the  "  Potesta  J^urisdic- 
tionis"! 88 

CHAPTER  117. 
Division  of  Ecclesiastical  Jurisdiction,  .         •         •         93 


566  Contents. 

CHAPTER  IV. 


PAGi 


Mode  of  Acquiring  Ecclesiastical  Jurisdiction  in  gene 
ral,          .....  ...        97 

Art.      I.  Of  the  Subject  of  Ecclesiastical  Jurisdiction,        .         .         97 
Art.    II.  Of  the  Requisite  Title  to  Jurisdiction  ("  Titulus  jpuris- 

dictionis"),      ........         98 

CHAPTER  V. 

Mode  of  acquiring  Ecclesiastical  Jurisdiction  in  par 
ticular  —  Manner  of  acquiring  "  ^urisdictio  Dele- 
gafa,"  .........  ioi 

CHAPTER  VI. 

Mode  of  acquiring  "  Jurisdictio  Ordinaria,"  .  .  106 
Art.  I.  Of  the  Institution  or  Establishment  of  Offices  to  which 

Eccl.  Jurisdiction  is  attached    ("  Comtitutio  Officio- 

rum  Eccl."),    ........       Io6 

Art.  II.  Erection  of  Parishes  "  Per  Viam  Creationis,"  especially 

in  the  U.  S.,   ........       no 

Art.  III.  Erection  of  Parishes  "  Per  Viam  Dismembrationis  "  — 

Division  of  Parishes,  especially  in  the  U.  S.,  .  .  115 
Art.  IV.  Erection  of  Parishes  "  Per  Viam  Unionis,"  .  .122 

CHAPTER  VII. 

On  Appointments  to  Ecclesiastical  Offices  ("  Insfitutio 

Canonica"),    .         .  .....       127 

Art.      I.  Of  Appointments  in  general,       .....       127 

Art.    II.  Of  Appointments  in  particular,    .....       135 

§  i.  Of  Election,        ........       135 

§  2.  Of  Postulation,  ........       140 

§3.  Of  Presentation  and  Nomination,        .         .         .         .141 

§4.  Of  Appointments  proper  (Collatid),     ....       142 

Art.  III.  Mode  of  electing  the  Sovereign  Pontiff—  Constitution 

of  Pope  Plus  IX.,  Dec.  4,  1869,   .  .  .145 

Art.  IV.  Of  Appointments    n  Prelaticnl  Offices  —  Mode  of  Ap- 


Contents.  56; 

PAGB 

pointment  to  Bishoprics,  especially  in  the  United 
States,  Canada,  Ireland,  England,  and  Holland,  .  149 

Art.  V.  Of  Appointments  to  Non-Prelatical  Offices — Appoint 
ments  to  Parishes,  especially  in  the  United  States,  .  160 

Art.  VI.  Installation  (" Institutio  Corporalis"}.          .         .         .164 

CHAPTER  VIII. 

On  the  Qualifications  required  in  Persons  who  are  to 
be  appointed    to    Ecclesiastical   Dignities  and  Of 
fices  ("  De  Qualitatibus  in  Pro  move  ndis"  etc.),          .        166 
Art.     I.  Of  the  Requisite  Qualifications  in  general,           .         .        166 
Art.    II.  Is  it  necessary  to  appoint  to  Bishoprics  or  Parishes  a 
'•'•Persona   Dignior"    in    preference    to    a   "Persona 
Digna"  ? 168 

CHAPTER  IX. 

When  and  How  a  Person  may  lose  Delegated  Juris 
diction  ("  De  Cessations  Officii  Judicis  Delegati"),    .       172 

CHAPTER  X. 

When  and  How  a  Person  may  lose  an  Eccl.  Office, 
and  therefore  Ordinary  Jurisdiction  ("  De  Cessations 
Jurisdictionis    Ordinariae    et    Vacatione     Officiorum 
Ecclesiasticorum"},  .         .         .         .         .         .174 

Art.      I.   Of  Resignations  (Dimissio,  Renuntiatio),      .  '  .        174 

Art-    II.   Of  Transferring  Ecclesiastics,  also  in  the  U.  S. ,  from 

one  Place  to  another  ( Translatio]  •,  .         .         .        180 

Art.  III.   How  Ecclesiastics,  also    in    the  U.  S.,  are  removed 

from  Office  (Privatio),     .          ,         .         .         .         .187 

§  i .  How  Irremovable  Incumbents  are  dismissed  from  Office,        1 88 
§  2.  Causes  and  Manner  of  dismissing  Irremovable  Rectors, 

also  in  the  United  States,         .          .          .          .          .191 

§  3.  Offences  for  which    Irremovable  Rectors  may  be  de 
prived  of  their  Parishes,  also  in  the  United  States,    .        192 
§  4.  For  what  causes  and  in  what  manner    Rectors,  also  in 

the  U.  S.,  who  are  not  irremovable,  may  be  dismissed,        196 


Contents. 
CHAPTER  XI. 

MM 

Restrictions  upon  Eccl.  Jurisdiction— Exemptions  of 
Religious  Communities  from  the  Jurisdiction  of  Bi 
shops  and  Pastors,  especially  in  the  United  States,  .  202 

CHAPTER  XII. 

Rights  and  Duties  of  those  who  are  vested  with  Ec 
clesiastical  Jurisdiction,  ......  215 

Art.  I.  Rights  of  Ecclesiastical  Superiors  in  general  {Obedien- 

tia  et  Reverentia),  .  .  .  .  .  .  .215 

Art.  II.  Canonical  Precedence,  how  regulated  (Mq/oritas  et 

Praecedcntia),  .  .  .  .  .  .  .217 

Art.  III.  Excesses  committed  by  Bishops  or  Prelates  in  the  Ex 
ercise  of  their  Authority  (Abusus  Jurisdictionis 
Eccl.']  Of  appeals,  .  .  .  .  .  .219 

Art.  IV.  Appeals  to  the  Civil  Power  against  the  Excesses  of 
Ecclesiastical  Superiors  (De  Appellatione  Tanquam 
ab  Abusu), 226 


PART  III. 

Of  Persons  pertaining  to  the  Hierarchy  of  Jurisdiction 
in  ^articular — that  is,  of  Ecclesiastics  as  vested 
with  "  Jurisdictio  Ecclesiastica"  in  particular,  .  .  232 

CHAPTER  I. 

On  the  Sovereign  Pontiff,    .         .         .         .         .         .232 

Art.      I.  Of  the  Roman  Pontiff  in  general,        ....       232 

Art.    II.  Of  the  Primacy  of  the  Roman  Pontiff,  especially  ac 
cording  to  the  Vatican  Council,       ....       233 

CHAPTER  II. 

Prerogatives  of  the  Sovereign  Pontiff,  .         .         .       241 

Sect.  I.    Rights  of  the  Roman  Pontiff  in  "Spiritual  Matters,"    .       241 


Contents.  569 

PAGB 

Art.  I.  Rights  of  the  Roman  Pontiff  flowing  immediately  ftoni 
his  Primacy — Papal  Infallibility  as  denned  by  the 
Vatican  Council  and  Supreme  Legislative  Au 
thority,  241 

Art.    II.  Rights  of  the  Roman  Pontiff  flowing  mediately  from 

his  Primacy, 245 

§  i.  His    Rights    relative   to    the   Various    Dioceses    of 

Christendom,  .         .         .          .         .         .         -245 

§  2.  His  Rights  respecting  Bishops, 24  j 

§  3.  His  Rights  in  regard  to  the  Church  as  a  whole,  .       348 

Art.  III.  Rights  of  the  Pope  as  Bishop,  Metropolitan,  Primate, 

and  Patriarch,         .          .         .         .         .         .         -250 

Sect.II.  Rights  of  the  Supreme  Pontiff  in  "Temporal  Mat 
ters,"  251 

Art.      I.  Various  Opinions  on  this  Head — Direct  and  Indirect 

Power,    .         .         .         .         »         .         .         .         '251 

Art.    II.  Relation  of  Church  and  State, 2r^ 

Art.  III.  The  Deposing  Power,         .         .         .         .         .         -258 

Art.  IV.  Temporal  Principality  of  the  Pope,      ....       259 

CHAPTER  III. 

On  the  Assistants  of  the  Supreme  Pontiff — The  "  Curia 

Romano," 262 

Sect.  I.  Assistants  of  the  Pope  "  intra  Curiam,"        .         .         .  263 

Art      I.  Of  Cardinals,      ...                  ....  263 

§  i.  Origin,  Appointment,  and  Number  of  Cardinals,          .  263 

§  2.  Rights  and  Duties  of  Cardinals,           ....  266 

§  3.  The  College  of  Cardinals  as  a  Corporation,         .         .  269 

§  4.  Consistories, 270 

Art.    II.  The    Congregations    of  Cardinals    (Sacrae    Congrega- 

tiones),    . 270 

§  i.  The  Congregatio  Consistorialis,     .         .         .         .         .271 

§  2.  The  Congr.  S.  Officii  or  Inquisitionis,  ....  272 
§  3.  The   Congr.   Indids — The   Imprimatur  in  the    United 

States,    : 273 

§  4.  The  Congr.  Concilii, 277 


57o  Contents. 

PACE 

§  5.  The  Congr.  de  Prop.  Fide .-  its  Relations  to  the  United 

States,     .....  ...       278 

§  6.  The  other  Congregations,  .         .         .         .         .         .281 

Art.  III.  Of  the  Roman  Tribunals,   .          .         ...  285 

Sect. II.  Ministers  of  the  Pope  "  extra  Curiam,"       .          .         .       296 
Art.       I.   Of  Legates  and  Nuncios — Powers  of  the  Apostolic 

Delegate  in  the  United  States,        ....        297 

&.rt.    II.  Of  Apostolic  Vicars,  Prefects,  Commissaries,  and  Pro- 

thonotaries,     .         .         .         .         .         .         .         -319 

CHAPTER  IV. 

On  Patriarchs,  Primates,  and  Metropolitans,        .         .       322 
Art.      I.  Patriarchs,  ........       322 

Art.    II.  Primates,    ..........  323 

Art.  III.   Metropolitans — The  Pallium,      .....       324 

CHAPTER  V. 

On  Bishops — Their  Rights  and  Duties,  especially  in 

the  U.  S., 329 

Sect.  I.   Rights  and  Duties  of  Bishops  in  general,     .         .         .       329 
Art.      I.   General  Powers  of  Bishops,         .         .  .         .       329 

Art.    II.  Are  Bishops  the  Successors  of  the  Apostles  ? — From 

whom  do  they  hold  ?      .          .         .         .         .  331 

Sect. II.  Rights  and  Duties  of  Bishops  in  particular,          .         .       336 
Art.      I.  Duty  of  Residence,     .......       336 

Art.    II.   Duty  of  visiting  the  Diocese  (Episcopalis  Visitatio),      .       339 
Art.  III.  Obligation  of  visiting  the   Holy   See  ( Visitatio  Sacro- 

rum  Liminuni},        .          ......       343 

Art.  IV.   Duties  in  regard  to  the  Management  of  Ecclesiastical 

Seminaries — Of  Seminaries  in  the  U.  S.,  .         .         .       343 
Art.    V.   Rights  and  Duties  of  Bishops  in  regard  to  the  Hold 
ing  of  Diocesan  Synods,  .....       349 

Art.  VI.  Legislative,  Judicial,  Executive,  and  Teaching  Power 

of  Bishops,      .          .         .         .  .         .         .352 

Art. VII.   Power  of  Bishops  to  grant  Dispensations,    .  .       354 

Art. VIII.  Powers  of  Bishops  as  to  various  Matters  respecting 

the  Liturgy  of  the  Church,       .         .         .         .         -357 


Contents. 


Art.         IX.  Rights    and  Duties   of  Bishops    in  regard  to  the 

Sacrament  of  Confirmation,        ....       359 

Art.  X.  Rights  and   Duties  of  Bishops  respecting  Causes 

of  Heresy,          .          .         :         .         .         .         .361 

Art.         XI.  Power  of  Bishops  to  reserve  Cases,        .         .         .       364 

Art.       XII.  Power  of  Bishops  over  Ecclesiastics,      .         .         .       366 
§  i.  Power  of  Bishops  over  the  Diocesan  Clergy,  es 

pecially  in  the  U.  S.,  (Third  PI.  C.  Bait.),  .       366 

§  2.  Power  of  Bishops  over  Extraneous  Ecclesiastics,    .       369 

Art.     XIII.  Powers   of  Bishops,    especially  in  the  U.  S.,  con 

cerning  Indulgences,  .....       374 

Art.      XIV.  Rights    and     Duties    of    Bishops    in    regard    to 

Relics,       ......  -375 

Art.  XV.  Rights  and  Duties  of  Bishops  respecting  Stipends 
of  Masses;  the  Reduction'  of  the  Number  of 
Founded  Masses;  other  Pious  Legacies,  .  .  377 

Art.  XVI.  Rights  and  Duties  of  Bishops  concerning  the 
Taxes  of  the  Episcopal  Chancery  —  Taxes  for 
Dispensations  in  the  U.  S.,  .  .  .  .  382 

Art.  XVII.  Right  of  Bishops  to  appoint  Assistant  Priests  and 
assign  them  a  sufficient  Maintenance  —  Division 
of  Perquisites  in  the  U.  S.,  .  .  .  .  385 

Art.  XVIII.  Rights  and  Duties  of  Bishops  relative  to  Preaching, 
Offering  up  the  Sacrifice  of  the  Mass,  and  Ad 
ministering  Church  Property,  ....  387 

Art.  XIX.  Right  of  Taxation  as  vested  in  the  Bishop  —  Contri 
butions  made  to  Bishops  in  the  United  States  (De 
yuribus  Utilibus  Episcopornni),  .  .  .  .  388 

Art.       XX.  Prerogatives  of  Honor  of  Bishops  (Jura  Honori- 

fica),          .  ....       392 

CHAPTER  VI. 

On  the  Various  Classes  of  Bishops,  and  of  Prelates 

having  Quasi-Episcopal  Jurisdiction,  .         .         .  394 

Art.  I.  Of  Auxiliary  Bishops,    ......  394 

Art.          II.  Of  Coadjutor  Bishops,  ......  395 


572  Contents. 


PAGE 


Art.  III.   Of  Regular  Bishops, 399 

Art.  IV.  Of  Inferior  Prelates,  ......       400 

CHAPTER  VII. 

On  the  Assistants  or   Vicegerents  of  Bishops  in  the 

Exercise  of  Episcopal  Jurisdiction,  .          .         .  401 

Art.      I.   Of  Vicars-General,  especially  in  the  U.  S.,  .         .  401 

§  i.  What  is  meant  by  a  Vicar-General  ?   .          .          .•       .  401 

§  2.   Appointment  of  the  Vicar-General,     ....  405 

§  3.   Powers  of  the  Vicar-General,      .         .         .         .         .  409 

Art.    II.  Of  Archdeacons  and  Archpriests,         ....  415 

Art.  III.  Of  Rural  Deans, 416 

CHAPTER  VIII. 

Administration  of  Vacant  Dioceses  (Administratio  Dioe- 

cests,  Sede  Vacante),  .         .         .          .          .         .418 

Art.      I.  Administration    of  Vacant   Dioceses   where   the    Jus 

Commune  obtains,    .          .          .          .          .          .          .        41" 

§  i.   Upon  whom  the  Administration  of  a  Vacant  Diocese 

devolves, 4*8 

§  2.   Powers    vested    in    the    Chapter    or    Vicar-Capitular, 

"Sede  Vacantc," 422 

Art.    II.  Administration    of    Vacant    Dioceses   in    the    United 

States,  (Third  PI.  C.  Bait.) 425 

CHAPTER  IX. 

Rights  and  Duties  of  Parish  Priests  and  Rectors  in  the 

u.  s., .429 

Art.      I.  Nature  of  the  Office  of  Parish  Priests  as  at  present 

understood,      ........       429 

§  i.    Errors  respecting  the  Origin  of  Parish  Priests,     .          .       429 
§  2.   Correct  View  of  the   Nature  of  the  Office  of  Parish 

Priests — Status  of  Rectors  in  the  U.  S.,     .          .         .       43° 
§  3.  Canonical  Formation  and  Suppression  of  Parishes,  es 
pecially  those  with  the  "  J^us  Patronatus"        .          ,       439 


Contents.  573 


§  4.   Manner  of  Appointing  Irremovable  Rectors,  also  in  the 
United   States — Competitive  Examinations  or  Con- 
cursus.      The  Third  Plenary  Council  of  Baltimore,   .        442 
Art.    II.  Rights  of  Rectors,  especially  in  the  United  States,          .       450 
§  i.   General  Remarks,       .......       450 

§  2.   Rights  of  Rectors  relative  to  the  Sacraments,         .         .       4511 
§  3.   Rights  of  Rectors  respecting  Funerals — Cemeteries  in 

the  U.  S.  (Third  PI.  C.  of  Baltimore),     .          .         .       462 
§  4.   Rights  of  Parish   Priests  concerning   Parochial   Func 
tions,  also  in  the  United  States,        ....       465 

Art.  III.  Duties  of  Rectors,  especially  in  the  United  States,         .       466* 

CHAPTER  X. 

On  Assistant  Priests,  Chaplains,  and  Confessors,          .  474 

Art.      I.  Of  Assistant  Priests  and  Chaplains,     ....  474 

Art.    II.  Of  Confessors, 477 

§  i.   Of    Confessors    who     are    neither    Canonical    Parish 

Priests  nor  Vicars- General  nor  Regulars,          .         .  477 
§  2.  Of  Confessors  who  are  Vicars-General  and  Canonical 

Parish  Priests,         .  .  .  47& 

§  3.   Of  Confessors  who  are  Regulars,  .  479 

§  4.   Confessors  of  Nuns,  especially  in  the  United  States,    .  48° 

§c.  Of  Confessors  in  relation  to  Reserved  Cases — Of  Re- 
*J 

servations  and  Censures  as  in  force  at  present,  ac 
cording  to  the  "  C.  Ap.  Sedis"  of  Pope  Pius  IX.— 
Special  Powers  of  Bishops  in  the  U.  S.  concerning 
Papal  Reservations,  ......  483 


PART   IV. 

The  New  Diocesan  Consultors,  according  to  the  Third 

Plenary  Council  of  Baltimore,        ....       492 


574  Contents. 


CHAPTER  I. 

PACK 

History  and  Organizations  of  Bishops'  Councils,  also 

in  the  United  States,      ......       493 

Art.  I.  Origin  and  History  of  Bishops'  Councils,  also  in  the 

United  States,       .......       493 

Art.  II.  Organization  of  Bishops'  Councils,  also  in  the  United 

States,          ........       494 

Art.  III.  Appointment  and  Removal  of  our  present  Diocesan 

Consultors,  .......       496 

CHAPTER    II. 

Rights  and  Duties  of  our  Diocesan  Consultors,  We 
plena,  ........  498 

Art.  I.  Advice  of  the  Consultors  in  the  calling  and  promul 
gating  of  Diocesan  Synods,  .....  499 

Art.       II.  Advice  of  the  Consultors  in  the  division  of  Missions,   .       5O1 

Art.  III.  Their  Advice  in  the  giving  of  Missions  to  a  Religious 

Community,  .  .  .  .  .  .  .504 

Art.  IV.  Their  Advice  in  the  Appointment  of  Seminary  Depu 
ties,  .........  506 

Art.  V.  Their  Advice  in  the  Appointment  of  New  Consultors 
and  of  Synodal  Examiners.  How  our  Synodal 
Examiners  are  appointed,  .....  507 

Art.  VI.  Their  Advice  in  the  Alienation  of  Church  Property ; 

Rules  for  these  Alienations,  .  .  .  .  513 

Art.  VII.  Their  Advice  in  the  Imposing  of  a  New  Tax  for  the 

Bishop,  .  .  .  .  .  .  .  .518 

Art.  VIII.  Their  Advice  in  the  remaining  Cases,         .         .         .       519 

Art.      IX.  Meetings  of  these  Consultors, 519 

CHAPTER   III. 

Rights  and  Duties  of  our  Consultors  while  the  See  is 

Vacantv 521 


Contents.  575 

PAGIl 

Art.  I.  Appointment  of  the  Administrator,  .  .  .  .  521 
Art.  II.  When  the  Administrator  must  take  the  Advice  of  the 

Consultors,    .         .         .         .         .         .         .         .522 

Art.  III.  Rights  of  the  Consultors  in  the  Election  of  the  New 

Bishop,          .  -523 

SUPPLEMENTARY   NOTES. 

Mode  of  quoting  from    the  Corpus  Juris  Canonici — Appeals — 

Sentences  ex  informata  conscientia,  etc.,  etc.,      .         .         .       524 


APPENDIX. 
I. 

The  Constitutio  "Apostolicae  Sedis  "  of  Pope  Pius  IX.  (Oct.  12, 
1869),  together  with  the  Papal  Reservations  published 
after  this  Constitution, 536 

II. 

Decree  of  the  S.  Poenit.  (Jan.  16,  1834)  as  to  when  Persons 
excused  from  Fasting,  by  reason  of  Age  or  Labor,  may 
eat  Meat  " totics  quoties" 544 

III. 

The  "Instructio  "  of  the  Holy  See,  recently  sent  to  our  Bishops, 

concerning  Public  Schools  in  the  United  States,         .        .       545 

IV. 

The  Profession  of  Faith  of  Pius  IV.,  as  Amended  by  Pope  Pius 
IX.  so  as  to  include  a  Profession  of  Faith  in  the  Dogmas 
denned  by  the  Council  of  the  Vatican,  particularly  in  re 
gard  to  the  Papal  Primacy  and  Infallibility,  .  .  .  548 


576  Contents. 

V. 

A  Synopsis  of  the  recent  Instruct™  of  the  Holy  See  De  Titulo 
Ordinationis,  issued  by  the  Propaganda,  April  27,  1871,  for 
Missionary  Countries,  .  .  .  .  .  .  •  55° 

VI. 

A  Synopsis  of  there  cent  Instructio  De  Visitatione  SS.  Liminum, 

issued  by  the  Propaganda  on  June  i,  1877,      .         .  551 

VII. 
Mode  of  choosing  Bishops  in  Ireland,      .         .         .         .  553 

VIII. 
Manner  of  choosing  Bishops  in  England,        .         .         .         -557 

IX. 

How  should  our  Consultors  and  Irremovable  Rectors  proceed 

in  the  election  of  Bishops,        ......       559 

X. 

Mode  of  Electing  Bishops  as  prescribed  by  the  General  Law  of 

the  Church,  and  as  still  in  Force, 560 

XL 

Decree  of  the  Sacred  Congregation  of  Propaganda  Fide  appoint 
ing  Most  Rev.  Archbishop  Satolli  Temporary  Delegate 
Apostolic  in  the  United  States,  .  56  r 

XII. 
Brief  of  Pope  Leo  XIII.   establishing  a  Permanent  Apostolic 

Delegation  in  the  United  States,        .         .         .         .         .561 


INDEX. 


(The  figures  indicate  the  marginal  numbers^ 

4bstinence. — V.  Fast. 

Administrators. — Of  vacant  dioceses  in  the  U.  S.,  by  whom  appointed,  their 
faculties,  379 ;  can  probably  accept  resignations  of  pastors,  382. 

American  canon  law. — Definition  of,  106  ;  opinion  of  Kenrick  on,  107  ;  may 
be  legitimate,  109  ;  history  of,  165-169 ;  how  does  the  Church  act  with  regard 
to  national  customs?  108,  v.  National ca:wn  laiv. 

Apostolic  prefects,  524  ;  commissaries,  525  ;  prothunotaries,  526. 

Apostolic  letters  or  constitutions. — V.  Papal  letters. 

Apostolicae  Sedis — Const,  of  Pope  Pius  IX.,  678-684;  Appendix,  p.  423. 

Appeals, — Judicial  and  extra-judicial,  443  ;  are  lawful  in  the  U.  S.,  ib. ; 
when  they  can  be  made,  when  not,  444-449  ;  what  are  appeals  "  in  suspen- 
sivo  "  and  "  in  devolutivo  "  ?  446  ;  who  may  appeal,  450  ;  from  whom  is  it  law 
ful  to  appeal?  ib.  ;  how  and  to  whom  to  appeal,  451-453  ;  it  is  always  allowed 
to  appeal  directly  to  the  Pope,  452  ;  within  what  time  to  be  made,  453  ;  appeals 
against  acts  of  the  bishop  on  visitation,  555. 

Appeals  to  the  civil  power  (app;llatio  ab  crbuszi). — Meaning  of,  454  ;  are  unlaw 
ful,  455  ;  also  to  priests  in  the  U.  S.,  456,  v.  Ecclesiastics. 

Appointments  to  civil  offices  in  the  U.  S.,  354. 

Appointments  to  ecclesiastical  offices. — Meaning  of,  283;  can  be  made  only  by 
the  ecclesiastical  authorities,  not  by  lay  persons,  285,  286  ;  when  to  be  made  in 
writing,  when  not,  294,  364  ;  various  modes  of,  296  (v.  Election,  Postulatlon,  etc.) ; 
how  appointments  proper  differ  from  elections,  nominations,  etc.,  318,  3x9, 
difference  between  absolute  and  conditional  right  of  making,  320  ;  when  to  be 
made,  364. 

Appointment  of  bishops. — Belongs  to  the  Holy  See,  321  ;  enquiries  to  be 
made  into  the  qualifications  of  candidates,  especially  in  the  U.  S.,  323-326  ; 
how  bishops  are  appointed  in  the  U.  S.,  345-348  ;  in  Canada,  Ireland,  Eng 
land,  and  Holland,  350;  what  voicehave  Consultorsand  Rectors  in  theU.  S.  in 
the,  349  ;  the  presentation  to  the  Holy  See  of  candidates,  as  made  in  the  U.  S., 
Canada,  Ireland,  England,  and  Holland,  has  merely  the  force  of  a  recommen 
dation,  347,  353. 

Appointments  to  parishes. — Power  of  making,  as  vested  in  the  Pope,  356- 
360;  in  bishops,  particularly  in  the  U.  S.,  360,  362,  363  ;  in  cardinals,  361. 

577 


578  Index. 

Approbation  fo<  confessions. — What  is  meant  by,  by  whom  given,  how  with 
drawn,  672;  not  required  by  vicars  general  or  canonical  parish  priests,  673; 
received  by  regulars  directly  from  the  Pope,  674. 

Archdeacons. — Former  and  present  powers  of,  631  ;  superseded  at  present 
by  vicars  general,  ib. 

Archpr  ests. — Former  and  present  powers  of,  631. 

Assistant  priests. — The  bishop  may  compel  pastors  to  take,  604  ;  how  many 
kinds  of,  670  ;  by  whom  appointed,  powers  of,  ib. 

Auxiliary  bishops. — What  is  meant  by,  613. 

Banns. — Of  matrimony,  to  be  published,  also  in  the  U.  S.,  658  ;  in  both 
parishes,  if  one  of  the  parties  belongs  to  one,  the  other  to  another  parish,  ib. 

Binatio. — In  the  U.  S.,  v.  Mass. 

Bishoprics. — Established  first  by  the  apostles,  246  ;  afterwards  by  the  Pope, 
or  at  least  with  his  consent,  247  ;  unition  of,  belongs  to  the  Pope,  274  ;  per 
sons  elected  or  nominated  to,  cannot  administer  the  see  before  they  have 
received  and  shown  the  bulls  of  their  appointment,  287-293  ;  otherwise  they 
incur  excommunication  now  reserved  in  a  special  manner  to  the  Holy  See 
637,  note  33  ;  can  administrators  of  dioceses  in  the  U.  S.  continue  to  adminis 
ter  the  vacant  see,  even  after  they  have  been  recommended  to  the  Holy  See  for 
the  see  ?  293. 

Bishops. — Power  of,  to  relax  decrees  of  provincial  and  national  councils,  in 
particular  cases,  173  ;  formulas  to  be  observed  by,  in  granting  dispensations 
or  faculties  by  virtue  of  Papal  indult,  240  ;  whether  they  hold  immediately  of 
God  or  the  Pope,  242,540;  they  are  all  equal,  "  juredivino,"  244;  cannot  exer 
cise  any  act  of  episcopal  jurisdiction  before  they  have  received  and  exhibited  the 
Papal  letters  of  their  appointment,  293  ;  of  the  U.  S.  not  appointed  in  consis 
tory,  322  ;  how  elected  at  various  times,  339-342  ;  election  of,  at  present  re 
served  to  Pope,  except  in  some  parts  of  Germany,  321,  343  ;  resignation  of, 
twofold,  383  ;  what  is  meant  by  a  bishop,  534  ;  the  "  potestas  jurisdictionis, 
ordinis  et  magisterii"  of,  535,  536  ;  are  superior  to  priests,  how,  537,  538  ;  how 
successors  of  the  apostles,  539  ;  have  immediate  jurisdiction  in  their  dio 
cese,  541. 

Rights  and  duties  of,  duty  of  residence,  particularly  in  the  U.  S.,  544, 

549 ;  how  long  and  for  what  causes  they  may  be  absent  from  their  diocese, 
545  ;  penalties  of  unlawful  absence,  548  (v.  Residence)  ;  duty  of  visiting  the  dio 
cese,  550  sq.  (v.  Visitation);  duty  respecting  seminaries.  557  (v.  Seminaries)} 
legislative,  judicial,  coactive,  and  teaching  power  o^  568-570  ;  power  of,  in  re- 
gard  to  liturgy,  573  ;  privileges  of,  611. 

Various  classes  of,  612  ;  auxiliary  bishops,  613  ;  coadjutor  bishops, 

614  sq.  ;  regular  bishops,  617. 

In  the  U.  S.  can  delegate  their  Papal  faculties  Extr.  D.  and  E.  to  thcii 

«icars  jfeneral  and  two  or  three  worthy  priests  of  the  diocese,  627  ;  special  fa- 


Index.  579 

culties  of  bishops  in  the  U.  S.  to  absolve  from  cases  reserved  to  the   Holy 
See,  684. 

Blessed  Sacrament. — In  what  churches  or  chapels  to  be  kept,  573. 

Burial. — Rights  of  pastors  in  regard  to,  661,  v.  Cemetery. 

California. — Canonical  parishes  in  some  parts  of,  654. 

Canada. — By  whom  assistant  priests  are  appointed  in,  670 ;  appointment 
of  bishops  in,  V.  Appointments. 

Canons. — Collections  of,  history  of,  130-132  ;  character  of,  133-137  ;  eastern 
collections,  141-147  ;  western  or  Latin,  147-165  ;  canons  of  faith,  morals,  and 
discipline,  137-141. 

Cardinal*.—  What  is  meant  by,  487;  are  they  of  divine  institution?  488; 
how  appointed,  489 ;  requisite  qualifications  of,  490  ;  orders  of,  491  ;  number 
of,  492  ;  rights  of,  493  ;  duties  of,  494  ;  insignia  of,  495  ;  how  addressed,  ib.  • 
the  college  of,  496  ;  "  reservati  in  petto,"  497. 

Care.  —  Of  souls  (cura  animatuni),  how  many  kinds  of,  642. 

Cases — Reserved  at  present  to  Pope,  without  censure,  681  ;  with  censure, 
especially  according  to  the  "  C.  A  p.  Sedis"  of  Pius  IX.,  ib. 

Reserved  to  bishops,  how  many  kinds  of,  582,  682  ;  what  cases  are  re 
served  to  bishops  by  the  "  C.  Ap.  Sedis,"  683  ;  does  ignorance  excuse  from? 
678  ;  can  regulars  absolve  from  ?  679,  v.  Reserved  cases,  Reservations 

Cathedraticum. — In  the  U.  S.,  400,  610. 

Causae  majores. — What  is  meant  by,  475. 

Causes.  —Ecclesiastical,  when  they  may  be  brought  into  civil  courts  in  the 
U.  S  ,  456,  v.  Ecclesiastics. 

Cemetery. — Right  of  having,  vested  in  parish  churches,  etc.,  661  ;  what  as  to 
interments  of  Catholics  in  the  U.  S.  in  non-Catholic  cemeteries,  ib.  ;  whether 
or  how  it  is  allowed,  particularly  in  the  U.  S.,  to  charge  anything  for  single 
graves  or  family  lots,  662. 

CAancery. ^Episcopal,  in  the  U.  S.,  603,  v.   Taxes. 

Chaplains. — Of  sisters  in  the  U.  S.,  363  ;  of  soldiers,  ships,  hospitals, 
etc.,  671. 

Chapters. — Can  be  established  only  by  Pope,  250  ;  have  at  present  the  right 
to  elect  the  bishop  only  in  some  parts  of  Germany,  321. 

Church. — The,  definition  and  nature  of,  181-184  ;  is  not  a  mere  corporation, 
but  a  sovereign  state,  185  ;  has  coercive  power,  201-204  ;  can  inflict  certain 
corporal  punishments,  202  ;  form  of  government  of,  463  ;  relation  of  church 
and  state,  479-483. 

Church  property. — Obligation  of  bishops  in  regard  to,  607  ;  should  be  ex 
empt  from  taxation,  669  ;  penalties  incurred  by  rulers  confiscating,  668  ;  by 
persons  alienating,  ib  ;  by  trustees  in  the  U.  S.  appropriating  to  their  own 
uses,  668  ;  is  the  Papal  permission  requisite  in  the  U.  S.  to  alienate?  ib.  ;  10 
ventorv  to  be  kept  of,  v.  Inventory. 


580  Index. 

Clandcstinity. — Tridentine  decree  "  Tametsi  "  regarding,  where  published 
in  the  U.  S.  and  Canada,  659,  note  113. 

Coadjutor-bishop. — What  is  meant  by,  614  ;  kinds  of,  ib. ;  how  appointed  in 
the  U.  S.,  615  ;  for  what  causes,  ib. ;  salary  of,  616  ;  rights  of,  ib.  ;  how  theii 
powers  lapse,  ib. 

Collections. — To  be  taken  in  the  U.  S.  for  Pope,  485,  v.  Contributions,  Taxes* 
Taxation. 

Committees. — Of  cardinals,  v.  Cong  legations  of  cardinals. 

Concordats. — Whether  binding  on  the  Holy  See,  105. 

Concursus. — When,  how  made;    Third  Plenary  Council,  647. 

Confessors. — In  the  U.  S.,  powers  of,  652,  v.  Nuns,  Sisters. 

Confirmatio. — "  In  forma  communi  "  and  "  in  forma  specifica,"  what  is  meant 
by,  and  how  distinguished,  170-173,  176. 

Confirmation. — Sacrament  of,  ministers  and  essence  of,  576  ;  subject  of 
577  ;  sponsors  of,  especially  in  the  U.  S.,  578. 

Congregation;. — Of  cardinals  (Congregationes  Romanae),  what  is  meant  by,  75  ; 
divided  into  temporary  and  standing,  76  ;  force  of  decisions  of,  77~$2  ;  powers 
of,  during  vacancy  of  Papal  chair,  494  ;  personnel  and  number  of,  498  ;  the 
Congr.  Consistorialis,  499 ;  S.  Officii,  500  ;  Indicis,  rules  of  the  Index,  as 
applied  in  the  U.  S  ,  501-506  ;  Concilii,  506  ;  Prop.  Fidei,  its  relations  to  the 
U.  S.,  507-510  ;  Episc.  et  Regul.,  510  ;  S.  Rit.,  511  ;  force  of  its  decisions,  512; 
Indulg.  et  Reliq.,  513  ;  mode  of  procedure  of  all,  514. 

Consistories. — What  is  meant  by,  secret  and  solemn,  how  often  held,  497. 

Construction. — Of  laws,  what  is  meant  by,  kinds  of,  177,  178;  rules  for,  179. 

Consultors. — Diocesan,  according  to  Third  Plenary  Council,  p.  464  sq. 

Contributions— Q*  collections  for  diocesan  purposes,  various  kinds  of,  609  ; 
in  the  U.  S.,  610. 

Corpus  juris  canonici. — Authority  and  application  of,  at  the  present  day, 
160-163. 

Council  of  Trent.—  Not  received  in  its  entirety  in  the  U.  S.,  64,  97  ;  whether 
its  disciplinary  decrees  may  be  abrogated  by  customs  to  the  contrary,  97  ;  de 
crees  of,  not  to  be  commented  upon  by  authors,  180. 

Council  of  the  Vatican.— Is  part  of  the  "jus  novissirnum,"  164,  v.  Vatican 
Council. 

Councils. — Oecumenical,  conditions  of,  59-60  ;  who  have  the  right  of  suf 
frage  at,  62  ;  mode  of  celebrating,  63  ;  authority  of,  especially  in  canon  law 
ib.  ;  national  councils,  v.  Synods,  Provincial  councils. 

Curia  Romana  (Roman  Court)—  The,  what  is  meant  by,  486  ;  tribunals  of, 
515  ;  the  Rota,  ib.  ;  Dataria  and  S.  Poenitentiaria,  516;  Papal  chancery,  517; 
secretaryship  of  state,  of  briefs,  ib. 

Custom.— Definition  and  conditions  of.  82-84  ;  division  of,  84  ;  difference 
between  custom  and  prescription,  85  ;  essential  conditions  of,  86-94  ;  effect* 
oJ  -M  ,  abrogation  of,  95-100 


Index.  ,  581 


Decisions. — Or  decrees  of  the  Sacred  Congregations,  v.  Congregations  of 
tardinals. 

Devises  (testamenta  ad  causas  pias,  legata  pid). — For  pious  uses,  what  is 
meant  by,  598  ;  can  bishops  change,  ib.  ;  bishops  the  executors  of,  ib. ;  laws  in 
the  U.  S.  regarding,  ib. 

Diocesan  synods. — What  is  meant  by,  563  ;  how  often  to  be  held  in  the  U.  S., 
564  ;  by  whom  to  be  attended  in  the  U.  S.,  565  ;  officials  of,  566  ;  appeals 
against  decrees  of,  ib. ;  statutes  enacted  in,  568. 

Dismissal. — Of  ecclesiastics  from  office  may  take  place  in  three  ways,  401 ; 
what  is  meant  by  privatio,  depositio,  and  degradatio,  402;  of  bishops,  404;  of 
canons,  406;  of  canonical  parish  priests,  407;  of  rectors,  removable  and  irre 
movable,  in  the  U.  S.,  648. 

Dispensations. — Practical  rule  in  the  U.  S.  in  regard  to,  125  ;  what  is  meant 
by,  57°  ;  when  bishops  can  dispense  from  the  common  law  of  the  Church,  ib. ; 
cause  required  for,  572. 

Domicile. — What  is  meant  by,  650  ;  quasi-domicile,  ib. 

Ecclesiastical  causes. — V.  Erclcsiastics. 

Ecclesiastical  jurisdiction. — Meaning  and  division  of,  207-217;  extent  of, 
204-207  (v.  Matters]  ;  subject  of,  active  and  passive,  218  ;  how  received,  219  ; 
title  of,  is  true  or  false,  221  ;  "  putativus,  fictus,  coloratus,  or  simpliciter  nul- 
lus,"  222-226  ;  is  it  sometimes  allowed  to  absolve  with  a  false  title?  225. 

"  Jurisdictio  delegata,"  definition  of,  226  ;  by  whom  conferrable,  231  ; 

how  conferred,  when  "  ab  homine,"  235-240 ;  how  lost,  378  ;  when  personal 
lapses  by  the  death  of  the  person  delegated,  ib.  (v.  Faculties  of  ow 
bisliops). 

"Jurisdictio  ordinaria,"  definition  of,  380  ;  lost  chiefly  by  resignation 

tr.mslation,  privation,  or  dismissal,  etc.,  ib.  ;  how  restricted,  421  (v.  Exemp 
tions)  ;  rights  and  duties  of  persons  vested  with,  433  ;  chief  abuses  of,  422  ; 
remedies  against  abuses  of,  442  (v.  Appeals,  etc.) 

Ecclesiastical  offices. — Definition  of,  245  ;  who  can  establish,  246  ;  erection 
of.  252  ;  divided  into  major  and  minor,  355  ;  how  acquired,  lost,  etc.  (v.  Ap 
pointments,  Dismissal} ;  qualifications  required  for,  v.  Qualifications. 

Eccl -siastics. — In  contradistinction  to  laics,  186  ;  may  now  in  many  cases 
plead  and  be  implcaded  in  civil  courts,  206  ;  causes  of,  whether  and  by  whom 
they  may  be  delegated  to  laymen.  234  ;  not  to  be  brought  into  civil  courts 
455;  whether  ecclesiastics,  also  in  the  U.  S.,  should  be  ordained  for  a  particu 
lar  church,  or  merely  for  the  diocese  at  large,  584  ;  cannot  leave  the  diocese 
without  the  leave  of  the  bishop,  585,  586. 

Elections. — Definition  of,  297  ;    election  by  quasi-inspiration,  compromise, 
and  scrutiny  or  suffrage.  298-302  ;  who  are  to  be  invited  to  take  part  in,  303 
308  ;  number  of  votes  necessary  at,  309  ;  formalities  to  be  observed  in,  311  j 
what  is  to  be  done  after,  312,  v.  Regulars,  £  -.v./j,  Pope. 


582  Index. 

England. — Dismissal  of  pastors  in,  648  ;  mode  of  appointment  of  bishops 
in,  v.  Appointment. 

Episiopal  office. — Essence  of,  542,  v.  Bishops. 

Episcopal  visitation. — V.   Visitation. 

Exeats. — How  given  to  priests  in  the  U.  S.,  384  ;  what  is  meant  by,  587. 

Exemptions. — Of  religious  communities,  definition  of,  421  ;  are  lawful  and 
just,  423,  424  ;  origin  of,  425  ;  exemptions  from  authority  of  bishops,  also  in 
the  U.  S.,  426-^29  ;  of  parish  priests,  429-432  ;  what  as  to  the  U.  S.,  432. 

Ex  informata  conscientia. — What  is  meant  by,  409  ;  censures  inflicted  "  ex 
inf.,"  in  the  U.  S.,  443  ;  no  appeal  proper  against  censures  "  exinf.,'"  445,  p.  424. 

Extraordinary  confessor. — Should  be  given  nuns  two  or  three  times  a  year, 
must  be  reappointed  each  time,  unless  permanently  appointed,  675. 

Facttlties. — Of  bishops  in  the  U.  S.  from  the  Holy  See  are  "  delegationes 
personales,"  and  consequently  lapse  at  their  death,  379  ;  to  grant  dispensa 
tions,  570;  from  the  precept  of  fast,  571. 

Fast. — Faculties  of  priests  in  the  U.  S.  to  dispense  from,  663. 

Fathers. — Of  the  church,  teaching  of,  as  a  source  of  canon  law,  20. 

Fessltr. — Secretary  to  the  Vatican  Council,  views  of,  regarding  the  relation 
of  church  and  state,  481. 

First  communion. — Of  children  in  the  U.  S.,  666. 

Forum. — Internum  and  externum.  n.  208. 

Funeral  dues. — For  what  funeral  services  pastors,  also  in  the  U.  S.,  can  re 
ceive,  662. 

Funeral  services. — Where  held  if  deceased  is  buried  in  a  different  place 
from  that  where  he  died,  662. 

German  parishes. — In  the  U.  S.,  how  formed,  641. 
Gerson.-  -Errors  of,  regarding  parish  priests,  640. 

Heresy. — Who  are  the  judges  in  matters  of,  579  ;  when  bishops  can  absolve 
from,  580  ;  in  the  U.  S.,  581  ;  penalty  of,  according  to  the  "  C.  Ap.  Sedis"  of 
Pius  IX.,  580. 

Hierarchy. — The,  definition  of,  187, 188  ;  divine  and  ecclesiastical,  of  magis- 
terium,  order,  and  jurisdiction,  189. 

Imprimatur. — To  be  given  by  the  ordinary,  not  of  the  author,  but  of  the 
place  of  publication,  502  ;  whether  obligatory  in  the  U.  S.,  505. 

Index. — Rules  of,  502  ;  whether  obligatory  everywhere,  even  in  the  U.  S., 
503,  504- 

Indulgences. — What,  grantable  by  bishops,  590  ;  in  the  U.  S.,  591  ;  publica 
tion  of  Papal,  ib. 

Innocent  XI. — Pope,  decree  of,  concerning  taxes  of  episcopal  chanceries, 
599,  v.  Chanceries. 


Index.  583 


Inquisition. — Or  Holy  Office,  tribunal  of,  exists  at  present  only  in  Rome. 

579- 

Installation. — Of  pastors,  definition  and  necessity  of,  365  ;  not  customary  in 
the  U.  S.,  366. 

Inventory. — Of  church  goods,  to  be  made  by  bishops,  607  ;  pastors,  668. 

Investitures. — In  the  Middle  Ages,  condemned,  286. 

Ireland. — Pastors  in,  how  appointed,  647  ;  obliged  to  say  Mass  for  their 
congregations,  666  ;  how  bishops  are  appointed  in,  v.  Appointment. 

Jurisdiction. — V.  Eccl.  jurisdiction. 

Jurisdiction. — Of  the  Supreme  Court  of  the  U.  S.,  217. 
Jus. — What,  i  ;  how  divided,  2t;  the  "jus  novissimum,"  163-165. 
Jus palronatus  — What  is  meant  by,  646  ;  how  acquired,  ib.  ;  does  not  exist 
in  the  U.  S.,  ib.  and  315. 

Laws. — Enacted  by  the  apostles,  as  a  source  of  canon  law,  17-19  ;  by  the 
Pope,  v.  Pontifical  laws. 

Legacies. — For  charitable  purposes,  v.  Devises. 

L. gates. — How  many  kinds  of,  formerly,  519;  at  present,  520;  rights  of, 
521  ;  when  the  laws  of  the  U.  S.  respecting  ambassadors  would  be  applicable 
to  Papal  legates,  522,  523. 

Letters. — Dimissory,  testimonial,  and  commendatory,  587,  v.  Exeats. 

Letters. — Of  the  Sovereign  Pontiff,  v.  Papil  letters. 

Marriages. — Of  strangers,  how  priests,  especially  in  the  U.  S. ,  should  pro 
ceed  in  regard  to,  660. 

Mass. — The  sacrifice  of  the,  can  bishops,  even  in  the  U.  S.,  permit  the  cele 
bration  of,  in  private  houses,  574  ;  celebration  of,  by  strange  priests,  588  ; 
expenses  for  altar-wine,  etc.,  by  whom  to  bo  borne,  594  ;  obligation  of  bishops 
to  offer  up,  607  ;  where  to  be  heard,  655  ;  when  can  a  priest  say  two  Masses  or. 
the-  same  day  ?  656  ;  in  the  U.  S.,  Ireland,  England,  etc.,  657.  v.  Stipends,  etc. 

Founded  Masses. — What  is  meant  by,  595  ;  not  to  bo  accepted  even  in 

the  U.  S.  without  leave  from  bishop,  or  (as  regards  regula;  priest's)  regular 
«uperior,  ib.  ;  reduction  of  number  of,  ib.  ;  recommendations  a?  te  mock  of 
accepting  in  the  U.  S.,  596. 

Matters. — Difference  between  temporal,  spiritual,  and  mixed,  205. 

Metropolitans. — What  is  meant  by,  529  ;  powers  of,  over  suffragan  bishops, 
530  ;  over  subjects  of  suffragans,  531-533  ;  pallium,  533. 

Missionary  countries. — Remain  subject  to  the  Propaganda  so  long  as  their 
dioceses,  one  and  all,  have  no  complete  canonical  organization,  507,  508,  524. 

National  canon  laiv. — What  is  meant  by.  TO  >  ;  how  it  nu.y  ch:a:n,  101  ,  11 
unlawful  if  not  sanctioned  by  Pope,  102  ;  maybe  abolished  by  Pope,  icu,  v. 
American  canon  law.  Custom. 


584  Index. 

Nomination. — To  bishoprics,  meaning  of,  316  ,  in  the  U.  S.,  ib. 
Nuncios. — V.  Legates. 

Nuns. — Or  sisters,  not  exempted  in  the  U.  S.,  363,  428  ;  confessors  of  nuns 
proper  need  special  approbation,  675,  v.  Sisters. 

Obedience  (pbedientia  canonica). — What  it  consists  in,  434-437  ;  promise  of,  in 
ordination,  especially  in  the  U.  S.,  435. 
Offices. — V.  Ecclesiastical  offices. 

Papal  letters. — What  is  meant  by,  44  ;  constitutions,  decrees,  decretal  epis 
tles,  encyclicals,  45  ;  rescripts,  46  ;  bulls  and  briefs,  47,  48. 

Parishes. — Can  be  erected  by  bishops,  "251,  254;  modes  of  erecting,  253; 
nature  of,  in  the  U.  S. ,  256;  can  hold  property  safely  only  by  conforming  to 
civil  laws,  257  ;  can  bishops  change  parishes  with  removable  pastors  into  par 
ishes  with  irremovable  pastors,  especially  in  the  U.  S.  ?  258-261  ;  in  the  U.  S., 
not  benefices,  261. 

Division  of,  conditions  of,  262,  263  ;  formalities  required  in  the,  265  ; 

bishops  in  U.  S.  can  change  limits  of,  267;  can  bishops  divide?  262,  268. 

Union  of,  269  ;  is  threefold,  "  unio  aeque  principalis,  plenaria,  extinc- 

tiva,"  270-274  ;  in  the  U.  S  ,  270  ;  who  can  make,  274  ;  conditions  of,  275  ; 
power  to  make,  restricted  by  C.  of  Trent,  276-280  ;  disunion  of,  280-283. 

Origin  of,  639  ;  are  there  any  canonical  parishes  in  the  U.  S.  ?  641, 

645.  654- 

Parishioners. — What  is  meant  by,  650. 

Parish  priests. — Unknown  in  the  first  three  centuries,  243  ;  transfer  of,  391 
sq.  ;  even  against  their  will,  394  ;  how  dismissed  from  their  parishes,  408-411 
(v.  Dismissal) ;  offences  for  which  canonical  parish  priests  either  can  be  or  are 
"  ipso  facto  "  removed,  411-417  ;  origin  of,  639  ;  errors  in  regard  to,  640  ;  what 
is  meant  by,  641  ;  are  they  essentially  irremovable  ?  643,  644  ;  how  appointed, 
647  ;  obligation  of,  to  say  Mass  for  the  people,  666. 

—  Rights  of,  respecting  the  sacrament  of  baptism,  650;  penance,  651  ; 
Blessed  Eucharist,  653  ;  marriage,  658  ;  Extreme  Unction,  the  Viaticum,  660; 
funerals,  661  ;  church  property,  667. 

Parochial  charge. — In  what  it  consists,  642. 

Parochial  functions. — What  is  meant  by,  663. 

Parochial  rights. — 430  ;  not  fully  possessed  in  the  U.  S.,  649. 

Parochismus. — What  is  meant  by,  640. 

Paschal  communion. — Where  to  be  made,  653  ;  in  the  U.  S.,  651,  653,  654. 

Pastors  in  the  U.  S. — When  transferrable  even  against  their  will,  395  ;  drs- 
oussal  of,  411  ;  removability  of,  417,  418  ;  can  they  be  removed  without  cause  ? 
419,  420;  the  bishop  in  the  U.  S.  ''parochus  in  habitu"  641;  not  canonical 
parish  priests,  645;  is  it  desirable  that  our  rectors  should  become  parish 
priests?  \b.;  Irremovability  of  some  of  our  Rectors,  258-261,  646;  how  ap- 


Index.  585 

pointed,  647  ;  dismissed,  648  ;  rights  of,  649,  650;  not  obliged,  except  in  some 
parts  of  California,  to  say  Mass  for  the  people,  657,  666;  duty  of,  to  preach, 
cavechise  the  children  establish  Catholic  day-schools,  666. 

Patriarchs.—  Definition  of,  527  ;  rights  of,  ib. 

Perquisites. — Of  baptisms,  etc.,  can  the  bishop  divide  them  between  the 
pastor  and  his  assistants?  605  ;  division  of,  in  the  U.  S.,6o6. 

Pius  IX. — "  Const.  Rornanus  Pontifex  "  by,  forbidding  bishops  elected  or 
nominated  to  administer  the  diocese  before  they  have  received  and  shown  the 
bulls  of  their  appointment,  637,  note  33  ;  Const.  Ap.  Sedis  of,  in  regard  to 
same,  ib. 

Pontifical  laws. — Whether  binding  on  the  Church  without  being  accepted, 
26-35  !  promulgation  of,  35  ;  notification  of,  43. 

Pope. — The,  errors  in  regard  to,  21  ;  supreme  legislative,  etc.,  powers  of, 
23,  24,  470;  laws  of,  26  (v.  Papal  letters);  receives  jurisdiction  over  the  entire 
Church  directly  from  God,  241  ;  elected  at  present  exclusively  by  the  cardi 
nals,  328  ;  even  during  an  oecumenical  council,  338  ;  cannot  elect  his  succes 
sor,  329,  457  ;  mode  of  election  of,  330-338  ;  right  of  veto  of  certain  govern 
ments  in  the  election  of,  337  ;  insignia  of,  tiara,  etc.,  457  ;  primacy  of,  as 
defined  by  the  Vatican  Council,  458-462  ;  is  the  primacy  separable  from  the 
see  of  Rome?  462  ;  does  not  always  act  as  head  of  the  Church,  464  ;  has  imme 
diate  jurisdiction  over  the  entire  Church,  ib.  ;  can  abdicate,  465  ;  what  if  he 
falls  into  heresy,  466. 

Rights  of,  in  spiritual  matters. — Mode  of  determining,  467  ;  all  essen 
tial,  467,  471  ;  infallibility,  as  defined  by  the  Vatican  Council,  468  ;  when  does 
the  Pope  speak  "  ex  cathedra"  ?  469  ;  right  of  demanding  from  bishops  an  ac 
count  of  the  state  of  their  dioceses,  472  ;  of  punishing,  granting  dispensations, 
and  receiving  appeals,  ib.  ;  of  appointing,  transferring  even  against  their  will, 
deposing,  and  reinstating  bishops,  473  ;  of  calling  oecumenical  councils,  ib.  ; 
ol  dividing  and  uniting  dioceses,  474. — Rights  of,  as  to  canonization  of  saints, 
liturgy,  religious  orders,  indulgences,  ib.  ;  "  causa  majores,"  475  ;  ordinary  and 
extraordinary  power  of,  ib.  ;  as  Bishop  of  Rome,  metropolitan,  primate,  patri 
arch,  476  •  he  cannot  depose  all  the  bishops  and  substitute  vicars  apostolic  in 
their  stead,  540. 

Rights  of,  in  temporal  matters. — Various  opinions,  477  ;  what  is  meant 

by  his  direct  and  indirect  power  in  temporal  matters,  478  ;  the  Pope  has  indi 
rect  power  in  temporal  affairs,  478-483  ;  deposing  power  of,  483  ;  temporal 
states  of,  484. 

—  Ministers  of,  486  ;  in  the  curia,  487  sq. ;  out  of  the  curia,  518,  v.  Le 
gates,  etc. 

Postulalion. — Definition  of,  313  ;  for  bishops  no  longer  in  use,  ib.  ;  sim 
ple,  314. 

Potes ta s  jurisdictionis. — Is  limitable  as  to  time,  persons,  places,  or  matters, 
193  ;  definition  of,  199  ;  conferred  ty  legitimate  mission  or  appointment,  200. 


586  Index. 

Pobstas  ordinis. — Is  separable  and,  at  least  accidentally,  distinct  from  the 
"  potestas  iurisdictionis,"  191-197  ;  conferred  by  ordination,  195  ;  precise  ex 
tent  and  object  of,  197,  198. 

Preaching. — Obligation  of  bishops  as  regards,  609  ;  of  pastors,  666  ;  custon 
in  the  U.  S.  to  omit  during  July  and  August,  ib. 

Precedence. — General  rules  of,  438-441 ;  particular  rules  of,  441 ;  "  prae- 
rogativa  loci  "  of  Archbishop  of  Baltimore,  440,  528  ;  among  priests  in  the 
U.  S.,  441  ;  bishops,  611. 

Prelates. — Inferior  to  bishops,  what  is  meant  by,  classes  of,  618. 

Presentation. — Definition  of,  315. 

Priests. — Strange  priests  not  to  be  allowed  to  say  Mass  without  leave  from 
the  bishop  or  vicar-general,  588  ;  how  admitted  into  a  diocese  in  the  U.  S.  if 
they  come  from  Europe,  589;  how  approved  for  confessions,  673  ;  during  a  sea 
voyage,  671. 

Pnmates. — What  is  meant  by,  528  ;  "  praerogativa  loci  "  of  Archbishop  of 
Baltimore,  v.  Precedence. 

Privileges. — Definition  of,  no  ;  when  to  be  shown  to  ordinaries  when  not, 
112;  how  distinguished  from  dispensations  and  mere  permissions,  115  ;  divi 
sion  of,  114-121  ;  how  acquired,  122  ;  lost.  129  ;  force  of,  123  ;  when  they  take 
effect,  125  ;  confirmation  of,  126  ;  use  of,  127  ;  how  construed,  128. 

Profession  of  faith. — To  be  made,  according  to  the  amended  form  of  Pope 
Pius  IX.,  by  bishops,  326  ;  canonical  pastors,  664;  but  not  by  pastors  in  the 
U.  S.,  ib. 

Protestants. — How  absolved  from  heresy,  580. 

Qualifications, — Required  for  ecclesiastical  offices,  especially  those  of  bi 
shops,  pastors,  etc.,  367  ;  requisite  age,  368  ;  purity  of  morals,  369  ;  learning, 
370;  lawful  wedlock,  the  clerical  state,  major  orders,  371  ;  is  it  necessary,  even 
In  the  U.  S.,  to  appoint  to  bishoprics  and  congregations  the  most  worthy  in 
preference  to  such  as  are  simply  worthy  ?  372-37?- 

Registers. — Of  baptisms,  marriages,  interments,  and  confirmations  to  be 
kept,  in  the  U.  S.,  669  ;  record  of  Masses,  both  ordinary  and  founded,  in  the 
U.  S.,  597- 

Regulars.— Exemptions  of,  especially  in  the  U.  S.,  421-433  ;  when  visitable 
by  the  bishop,  553  ;  cannot  absolve  from  cases  reserved  by  bishops,  582  ;  cele 
bration  of  Mass  in  a  strange  diocese  by,  588  ;  how  eligible  to  the  vicar-general 
ship,  625  ;  approved  by  their  own  superiors  to  hear  the  confessions  of  members 
of  their  order,  674  ;  by  the  bishop,  to  hear  seculars,  ib.;  can  the  bishop  limit, 
their  faculties  as  to  time,  persons,  and  places?  674;  can  regulars,  when  travel 
ling,  confess  to  priests  not  of  their  order,  and  even  though  not  approved  ?  ib.  ; 
exempt  from  episcopal  reservations.  677. 

Regular  bishops. — From  what  rules  of  their  order  they  are  released 


Index.  587 


bi7,  eligible  only  with  leave  of  their  superior,  ib.  ;  dress  of,   should  recite 
breviary  of  their  diocese,  not  order,  ib. 

Relics. — Of  saints,  what  is  meant  by,  592  ;  by  whom  to  be  authenticated 
and  transferred,  ib. 

Religious  communities.--^ ' .  Nuns,  Sisters,  Regulars. 

Removability. — What  ecclesiastics  are  removable  "  ad  nutum  "  in  the  U.  S. 
and  elsewhere,  4/7  ;  of  pastors  in  the  U.  S. ,  v.  Pastors ,•  of  parish  priests,  v 
Parish  priests. 

Rescripts. — What  is  meant  by,  49;  division  of,  51;  vitiated  by  defect  in 
persons,  petitions  or  form,  52,  53  ;  lapse  of,  55-59,  v* Papal  letters. 

Reservations. — Conditions  of,  677  ;  kinds  of,  Papal,  episcopal,  and  regu 
lar,  680. 

Reserved  cases. — What  is  meant  by,  677;  who  can  make,  ib. ;  does  igno 
rance  prevent  the  incurring  of?  678  ;  what  as  to  penitent  who  confesses  in  an 
other  diocese,  679  ;  sometimes  an  ordinary  confessor,  nay,  any  priest,  can 
absolve  from,  679,  v.  Cases. 

Residence. — Of  pastors,  particularly  in  the  U.  S.,  665  ;  how  long,  for  what 
causes,  they  may  be  absent,  ib. ;  penalties  of  unlawful  absence,  ib. ;  of  bishops, 
they  are  bound  to  reside  in  the  diocese,  though  not  in  the  episcopal  city,  544 
y.  Bishops,  Pastors. 

Resignat  ons. — Of  ecclesiastical  offices,  such  as  those  of  bishops,  pastors, 
etc.,  meaning  of,  381  ;  must  be  accepted  by  the  proper  superior,  382  ;  to  whom  t>> 
be  made,  especially  in  the  U.  S.,  ib.  ;  tacit,  express,  absolute,  conditional.  383 
who  can  resign,  384  ;  various  kinds  of  conditional   resignations,  385  ;  when 
resignations  take  effect,  389  ;  can  rectors  in  the  U.  S.  resign?  390. 

Richer. — Errors,  regarding  the  rights  of  the  Roman  Pontiff,  bishops,  and 
parish  priests,  640. 

Roman  Pontiff. — V.  Pope. 

Rufal  deans. — What  is  meant  by,  632  ;  duties  of,  in  the  U.  S.,  ib.  ;  are 
"  delegati  ad  universitatem  causarum,"  230. 

Schools. — Parochial  day-schools  should  be  established,  if  possible,  in  every 
parish  in  the  U.  S.,  666;  late  "Instruction"  of  the  Holy  See  regarding, 
app.  p.  432. 

Second  Plenary  Council  of  Baltimore. — Is  approved  only  "in  forma  commu- 
ni,"  174  ;  hence  it  is  allowed  to  appeal  from  its  decrees,  175. 

Seminaries. — History  of,  557  ;  what  is  meant  by,  ib.  ;  Tridentine  decrees 
respecting,  558  ;  committees  on  management  of,  559  ;  can  religious  communi 
ties  be  placed  in  charge  of?  560  ;  what  as  to  seminaries  in  the  U.  S.,  561-563. 

Sis'ers.  —  In  the  U.  S.  have  but  simple  vows,  except  in  some  houses  of  the 
Visitation,  676  ;  are  all  subject  to  bishops,  none  of  them  being  exempt  ib  f 
is  a  special  approbation  required  to  hear  ?  ib.,  v.  Nuns. 

State. — Relation  of  Church  to,  479-483. 


588  Index. 


Sta'ns    liber. — Of    parties    about    to    coniract    marriage,  what    is    meant 

by,  660. 

Stipends. — Of  Masses,  to  be  fixed  by  the  bishop  or  custom,  593  ;  rule  in  the 
U.  S.,  ib.  ;  what  if  too  many  are  received,  ib.,  594. 

Sunday-schools. — In  the  U.  S.  to  be  held,  or  at  least  superintended,  by  the 
Castor,  666. 

Synods. — National,  definition  of  65  ;  cannot  be  convened  in  the  U.  S  by 
the  Archbishop  of  Baltimore  in  virtue  of  his  "  praerogativa  loci,"  ib. 

Provincial,  what  is  meant  by,  66  ;  how  often  to  be  held,  67  ;  but  few  held 

within  the  last  three  centuries,  68  ;  except  in  the  U.  S.,  69  ;  persons  to  be  called 
to,  in  the  U.  S.,  70;  laymen  sometimes  admitted  to,  ib. ;  decrees  of,  sometimes 
tolerated  rather  than  approved  by  the  Holy  See,  72  ;  appeals  from,  lawful,  ib  ; 
none  of  the  Prov.  C.  in  the  U.  S.  approved  "  in  forma  specifica,"  ib.  ;  convened 
by  the  metropolitan,  or,  in  his  default,  by  the  oldest  suffragan,  73,  74. 

Diocesan  — V.  Diocesan  synods. 

Tax. — Decree  of  Innocent  XI.  regarding  the  taxes  of  episcopal  chanceries, 
599  ;  its  chief  regulation,  600  ;  chancery  fees,  especially  in  the  U.  S.,  600-604  '. 
taxes  for  dispensations  in  the  U.  S.,  603,  v.  Chancery. 

Taxation. — Right  of,  as  vested  in  the  bishops  of  the  U.  S.,  608  sq.,  v.  Con 
tributions. 

Theological  conferences. — In  the  U.  S.,  567. 

Tradition. — Divine  and  human,  as  a  source  of  canon  law,  15,  16. 

Transfer. — Of  ecclesiastics  from  one  place  to  another  to  be  made  by  the 
proper  superior,  391  ;  only  for  sufficient  reasons,  392  ;  of  bishops  against  their 
will,  393  ;  of  parish  priests  proper,  394;  of  rectors  in  the  U.  S.,  395  ;  effects  of, 
396-398  ;  relative  to  salary,  etc.,  398-401. 

Trustees. — Lay,  in  the  U.  S.,  by  whom  appointed,  668  ;  what  outlays  they 
can  make,  ib. 

Vacant  diocese. — What  is  meant  by,  634  ;  administration  of,  belongs  to  the 
whole  chapter  for  the  first  eight  days,  and  afterwards  to  the  vicar-capitular,  * 
635,  v.   Vicars-capitular. 

Administrators  of,  in  the  U.  S.,  by  whom  appointed,  638  ;  powers  of, 

especially  in  the  province  of  Baltimore,  ib.,  v.  Administrators. 

Vatican  Council. — The,  definitions  of,  regarding  Papal  primacy,  459,  460, 
462  ;  immediate  jurisdiction,  464  ;  infallibility,  468. 

Drafts  of  decrees  {schemata)  and  proposals  (postulata)  submitted  to, 

regarding  vicars-general,  625,  not.  26,  28,  30  ;  626,  not.  40;  the  administration 
of  a  diocese,  when  the  sedts  is  imfeditii,  634,  not.  3  ;  635,  not.  18,  27,  30,  31  ; 
Arsons  elected  or  nominated  to  bishoprics,  forbidding  them  to  assume  the  ad 
ministration  of  the  diocese  before  they  have  received  and  shown  the  bulls  of 
iheii  npointment,  637  not.  33  ;  the  administration  of  vacant  dioceses  in 


Index.  589 


countries  far  away  from  the  Holy  866,638,  not.  36;  restricting  the  "jus  pa 
tronatus,"  646,  not.  42 ;  modifying  the  Tridentine  decree  relative  to  parochial 
concursus,  647,  not.  58  ;  in  regard  to  dismissal  of  pastors,  648,  not.  65  ;  modi 
fying  Tridentine  decree  "  Tametsi "  on  clandestinity,  658,  not.  107  ;  to  mitigate 
and  render  more  uniform  the  laws  of  the  Churchas  to  fast  and  abstinence,  663, 
not.  138  ;  as  to  public  schools,  666,  not.  160  ;  the  removal  or  transfer  of  pas 
tors,  670,  not.  6 ;  to  reduce  the  number  of  cases  reserved  to  the  Holy  See,  681, 
not.  48  ;  as  to  power  of  bishops  respecting  Papal  reservations,  684,  not.  60 ; 
enclosure  for  all  nuns  or  sisters,  without  exception,  676,  not.  33. 

Vicars-apostolic,  524. 

Vicars-capitular. — But  one  to  be  elected,  635  ;  is  irremovable,  ib. ;  how 
elected,  ib.  ;  is  vested,  generally  speaking,  with  the  entire  ordinary  jurisdic- 
tion  of  the  bishop,  636-638  ;  may  probably  give  "  exeats,"  637  ;  salary  of,  ib.  j 
when  his  jurisdiction  lapses,  ib.,  v.  Administrators  in  the  U.  S. 

Vicar s-forane. — V.  A'ural  deans. 

Vicar-general. — What  is  meant  by,  620;  is  removable  "ad  nutu*n,"  417, 
628  ;  when  jurisdiction  of,  lapses,  420;  is  he  necessarily  vested  with  the  ad 
ministration  of  the  diocesan  Church  property  ?  621  ;  what  as  to  the  U.  S.,  ib. ;  has 
"  jurisdictio  ordinaria,"  and  that  from  the  common  law,  622,  623  ;  no  appeal 
from,  to  bishop,  624  ;  exceptions,  ib.  ;  qualifications  required  in,  625  ;  customs 
in  the  U.  S.  in  regard  to,  ib.  ;  who  can  or  should  appoint,  626  ;  how  appoint 
ed,  ib.  ;  powers  of,  especially  in  the  U.  S.,  627  ;  is  he  a  dignitary  or  prelate? 
628;  how  he  loses  jurisdiction,  629;  salary  of,  especially  in  the  U.  S.,  630; 
when  is  the  bishop  responsible  for  the  acts  of?  ib.  ;  by  whom  punishable,  ib. 

Vicar-parochial. — V.  Assistant  priests. 

Visit  ad  limina. — Duty  of  bishops,  also  in  the  U.  S.,  to  make  the,  472  ;  what 
is  meant  by,  and  how  often  to  be  made,  556;  auxiliary  bishops  not  bound  te 
make,  613. 

Visitation. — Of  diocese,  what  is  meant  by,  550  ;  obligation  of  bishops  to 
make,  551 ;  also  in  the  U.  S.,  552  ;  what  persons  and  places  are  visitable,  553, 
554  ;  what  is  to  be  done  after  the,  555. 


PRINTED  BY  BENZIGER   BROTHERS,  NRW  YORK. 


Smith ,     S . 

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