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RECEIVED I.V BU-HANQI 

C<t-th*tic Unr* of Am- 



THE SACRED PENITENTIARIA 



AND ITS 



RELATIONS TO FACULTIES OF 



ORDINARIES AND PRIESTS 



DISSERTATION 



SUBMITTED TO THE FACULTY OF THEOLOGY OF THE 
CATHOLIC UNIVERSITY OF AMERICA 



IN PARTIAL FULFILMENT OF THE REQUIREMENTS 

FOR THE DEGREE 



DOCTOR OF CANON LAW 



By WILLIAM J. KUBELBECK, S. T. B,J.CL 
Catholic University of America 

1918 



Nihil Obstat: 

+ TJHOMAS J. SHAHAN, S. T. D., 

Censor Deputatus. 



Imprimatur: 

+ J. CARD. GIBBONS, 

Archiepiscopus Baltimorensis. 



The Rosary Press, Somerset, Ohio 

1918 



THE SACRED PENITENTIARIA 



AND ITS 



RELATION TO FACULTIES OF 



ORDINARIES AND PRIESTS 






CONTENTS 

Chapter Page 

Introduction 5 

I. Origin of the Sacred Penitentiaria 7 

II. Constitution of the Sacred Penitentiaria: 

Part I 14 

Part II 18 

III. Competency of the Sacred Penitentiaria : 

Part I 23 

Part II 28 

Part III 35 

IV. "Dummodo sit occultum" : 

Part I 43 

Part II 48 

V. The Giver of Matrimonial Dispensations and Causes 

for which Dispensations May be Granted 52 

VI. Dispensations and Absolutions Granted by Ordi- 
naries in Virtue of Ordinary Powers 57 

VII. Dispensations and Absolutions Granted by Priests in 

Virtue of Ordinary Powers 70 

VIII. Dispensations and Absolutions Granted in Virtue of 

Delegated Faculties 80 

IX. How to Apply for Dispensations. 85 

X. Concession and Execution of Dispensations 94 

XI. Appendix : 

Part I— Taxes 106 

Part II — Componenda 113 

Sources and Bibliography 122 



INTRODUCTION 

The Sacred Penitentiaria, one of the three tribunals of the 
Roman Curia, was instituted for the purpose of giving absolution 
from sins and censures, of granting various dispensations, com- 
mutations of vows, condonations and other favors pertaining to 
the internal forum. 

Benedict XIV in his constitution "Pastor bonus" (13 Apr. 
1744) says : "Among the tribunals of the Roman Curia the Ro- 
man Pontiffs . . . have at a very early date, called into ex- 
istence the Office of the Sacred Penitentiaria for the cleansing 
of sinners. Where the faithful of the Christian world can, either 
in person or by anonymous letter, secretly and gratuitously, ob- 
tain healing medicine for their spiritual ailments." There is an 
intimate relation between the S. Penitentiaria and the Sacra- 
ment of Penance. Both tribunals continue the work of "the 
Good Shepherd Christ Jesus, sent by the Father to seek the 
sheep that was lost. When He had found it and placed it upon 
His shoulders, He returned to heaven, but He gave to the vicars 
of His work the government of His entire flock, which He bought 
with a great price, leaving His example and precepts, that His 
flock be kept within moderate bounds of discipline, that those, 
who through the abuse of liberty have wandered from the path 
of salvation, be recalled to the fruits df justice and mercy" 
("Pastor bonus"). The Church like a kind mother is ever ready 
to forgive the sins and crimes of her children. She relaxes the 
rigor of her laws and condones the faults of the penitent in imita- 
tion of her divine Founder "the son of man, who came to seek and 
to save that which was bst" (Luke 19, 10). 

The New Code has changed little in the competency of the 
S. Penitentiaria. It will grant faculties for the internal forum 
in the future as it has done in the past. Many powers however, 
which were formerly enjoyed by the Ordinaries and priests in 
virtue of delegation, are now conceded them by law and hence 
it becomes necessary to study the the S. Penitentiaria in its rela- 
tions to faculties of Ordinaries and priests. The scope of this 
dissertation is: to give a brief history of the S. Penitentiaria, 
to enumerate the faculties it had in the past and those it now 
enjoys, to indicate the powers of the Ordinaries and priests, and 
lastly, to point out the proper method of applying for and grant- 
ing dispensations. 



CHAPTER I 

Origin of the Sacred Penitentiaria 

Many able writers like Goeller, Denifle and Lang in Germany ; 
Chouet, Villien in France ; Lea and Haskins in this country, have 
rendered valuable service to the study of the Sacred Penitenti- 
aria, but there still remains considerable work to be accom- 
plished. How old is the Sacred Penitentiaria and what was its 
first constitution? These are questions, which have not been 
answered. What has thus far been found regarding the history 
of the Sacred Tribunal, is fragmentary and incomplete. Like all 
institutions it developed gradually. Its beginnings reached back 
to the dawn of the Church, its government and competency were 
organized according to the needs of the times. Thus Benedict 
XII relates : "I have read in a certain old book, that the office 
of the Penitentiaries was exercised in olden times by Cardinal 
Priests, but when the work of the Church increased, these Car- 
dinals no longer found time to hear confessions and hence Peni- 
tentiaries were instituted in their places, who were honored like 
Cardinals and were, so to say, Prelates of the whole world." 1 
There are reasons for believing that the S. Penitentiaria had its 
orgin about the year 253 at the time of St. Cyprian and Pope St. 
Cornelius. 2 The persecutions during that time caused some of 
the faithful to weaken and lapse into apostasy and other sins 
reserved to the Pope. The Pope, because of his many admin- 
istrative duties found little time to hear confessions and ap- 
pointed ministers to represent him in the tribunal of Penance. 
This belief has some foundation, since the famous historians of 
the early Church, Socrates and Sozomen write, that Bishops ap- 
pointed competent priests in the dioceses to hear confessions and 
absolve penitents from grievous sins. 8 According to the "Liber 
Pontificalis," Pope St. Marcellus (d. 309), after the persecution 
of Diocletian, divided the territorial administration of the 
Churches into twenty-five districts (tituli), appointing a pres- 
byter over each, to prepare the catechumens for Baptism and to 
direct the performance of public penance. Pope Simplicius 



"University of Rome MS., 119. f. 19. V. 

* M. Lega, Praelectiones in Textum Juris Can. vol. 5. 

8 Socrates, Hist. Eccl. v. 19; Sozomen, Hist. Eccl. VII. 16. 



8 THE SACRED PENITENTIARIA AND 

(468-483) designated a week for the Churches of St. Peter, St. 
Paul and St. Lawrence the martyr, during which priests should 
administer the sacraments of Penance and Baptism. 4 

Penitentiaries are certainly more ancient in the East than in 
the West. All Oriental Churches had Penitentiaries in the fifth 
century. That of Constantinople has left us documents, which 
constitute a valuable contribution to the history of this subject 
matter. The Western Church did not have this institution at 
so early a date. Not until the Fourth Lateran Council (1215) 
were Penitentiaries appointed for all Cathedral Churches. Some 
authors, as for instance, De Luca, think that the office of the 
Penitentiary dates from the primitive Church. 6 Lega refers it 
to the time of Pope Cornelius (264), who is said to have ap- 
pointed Penitentiaries "pro lapsis".* Other authors endeavor to 
show that Cardinals have elected Penitentiaries in Rome since 
the time of Benedict II (d. 685), but the origin remains doubtful. 
Benedict II and the "Liber Diurnus" have nothing on the subject. 7 

The office of the Penitentiaries gained in importance at the 
time of Alexander III (1159-1181). He was in the estimation of 
Rome, Italy and the whole of Christendom, "the Light of the 
Clergy, the Ornament of the Church, the Father of his city and 
of the whole world" and now ranks next to Innocent III as legis- 
lator of the Church in the Middle Ages. 8 With him began the 
renaissance of Canon Law. His reputation as a canonist began, 
when he was professor in Bologna and grew with the public 
attention given to his Commentary on the Decretum Cratianum, 
known as "Summa Magistri Rolandi". 9 

A thorough study of Canon Law caused men of learning to 
realize the full extent of papal powers and therewith the Pope's 
supreme jurisdiction in matters of dispensations and absolutions. 
Pope Alexander clearly expounded and explained the God-given 
powers of the Roman Pontiff and minutely indicated the faculties, 
which the Holy See enjoys. As a natural consequence of this 
doctrine we meet with the subsequent restriction of the episcopal 
authority and the different laws regulating their powers. The 
canonist John of God who wrote about this time (1250), speaks 



4 Anastasius Bibliothecarius in Simplicio. P. P. 

' Relatio curiae rom. forensis, XII. Venice 1759. 

•Prcl. de judicio eccl. 263, note. 

T Plettenberg, Notitia congr. ct tribunal, curiae rom. Hildesheim 1593 ; 
Liber Diurnus, Duchesne Paris 1891. 

• Card. Hergenroether Kirch. II, p. 497. Wernz, tit. XII, no. 237. 

•Ed. Thancr, Insbruck 1875. 



FACULTIES OF ORDINARIES AND PRIESTS ^ 

in detail of the different categories of sins, and of the confessors, 
priests, bishops and cardinals, who were competent to absolve 
from them. 

In the early Church bishops alone reserved cases and rarely 
do we find papal reservations. 10 Not every bishop reserved sin 
and centures to himself, but only a few here and there. Thus 
the Counc. of York (Eborancence) a. 1195 cap. 11, imposes on 
perjurers the obligation to apply to the bishop for absolution. 11 
The Synodal Constitution of Paris decreed that atrocious crimes, 
as homicide, sacrilege, sins against nature, incest, seduction of 
virgins, violence to clerics be reserved to the bishop. 12 . St. 
Thomas enumerates only five cases reserved to bishops. 18 

Isolated cases reserved to the Pope are found in the Peni- 
tential Books. The Holy See for example reserved the power of 
dispensing from a pilgrimage to Rome in expiation for the crime 
of killing a cleric. 14 As early as the ninth century excommuni- 
cation was inflicted on those who injured or killed a bishop. 15 
At the end of the sixth century (592) St. Gregory reserved to 
himself the excommunication, with which he threatened Arch- 
bishop John of Larissa for having unjustly deposed Adrian, 
bishop of Thebes. The Council of Limoges (1032 sess. II) im- 
poses the obligation on bishops to send penitents to Rome when 
in doubt to whom the case be reserved. When Henry IV in the 
year 1105 asked the legate Richard of Albano to absolve him from 
the censure of excommunication, the legate replied that the Pope 
alone could grant absolution in the case. 

In the beginning of the twelfth century, the power of the 
Pope to reserve cases was universally recognized and laws were 
frequently enacted which evidently implied such jurisdiction. 
The second Council of the Lateran, 1139 cap. 29, caus. XVIII, 
quest. IV, by the famous canon of Innocent II (1130-1143)", "Si 
quis suadente diabolo," confirming the Synods of Clermont, 1130, 
c. 10, Reims 1131, c. 13 and Pisa 1135, decreed that whosoever 
henceforth laid malicious hand on a cleric or monk, incurred ipso 



10 Wasser schleben, Bussordnung pp. 192 etc.; Canoniste Contemp. 
1909 pp. 73- sq. 1915 p. 487 sq. ; Londiniensis 1102 cap. 28, Harduin VI., 1866. 

"Adami Perscnniae Abbatis Epist. XXVI. Migne CCXI. 

"Const. Syn. Odonis Episcopi Paris, circa 1198 cap. VI par. 5 Harduin 
VI 11, 1940. 

"St. Thomas in IV Cent. Dist. XIX C. 1. art. 3; Summa Suppli. c 
XX art. 2. 

u Poenit. P Ecberti Liber IV cap. 6. 

"Cf. c. Synod. Romana 862 or 863. Hefele, I. IV. p. 260; Wcrnz, tit. 
VIII no. 164. 



10 THE SACRED PENITENTIARIA AND 

facto excommunication, the raising of which, except in danger 
of death, was reserved to the Pope and had to be sought in per- 
son in Rome. 16 

From this time on papal cases became more frequent. To 
those reserved in the Lateran Council, were added : incendiarism, 
church-robbery and violation of the enclosure of nuns. 17 The 
Council of Rouen (Rothomagense) adds perjury, and the Synod 
of Paris includes simony. 18 

The exact number of cases reserved to the Pope in the 
twelfth century is not certain. Some authors maintain that there 
were only two, 19 others three, some as many as six. The Council 
of Mainz (1261) enumerates only three: violence to clerics, in- 
cendiarism and simony. St. Thomas mentions six (Dist. XVIII, 
Sent. IV, Q. II, art. 5). The Council of Vienne (1311) adds three 
more to the six reserved before that time. Finally the Council 
of Constance (1414) instituted a reform movement, the so-called 
"Collegium Ref ormatorium" to bring about uniformity. . 

The steady increase in the number of papal reservations may 
be ascribed to the growing consciousness of the Church-rights, 
to the better understanding of the centralized supreme jurisdic- 
tion of the Apostolic See, and the increasing facility of com- 
munication between Rome and the more distant countries. The 
ever growing numbers of the faithful coming to Rome from 
different parts of Europe, to obtain absolution from reserved 
cases, made it necessary to appoint special priests for this class 
of penitents. Thus we read that Lucius III (1184) appointed 
the abbot of Citeaux to absolve incendiaries, fugitive monks and 
those who communicated in any way with the interdicted. The 
abbot at first enjoyed this privilege only in regard to those who 
wished to join the order, but afterwards also in favor of all who 
chose him as confessor. Pontifical Legates and bishops were 
endowed with similar faculties and privileges. 

The method of procedure and the discipline of reserved cases 
rendered a permanent office not only useful but necessary. This 
office gradually developed into the present Tribunal of the Sacred 
Penitentiaria. Before entering into the subject, a few words in 
explanation of the p.ertinent documents are necessary. By an 



M Can. 29 causa 18 q. 4 Lat. II. Pius IX Const. Apost. Sed. no. 2. 
Phillips, t. I par. 60. Hinchius, t. I p. 118. Wernz, t. VIII no. 164. 

17 Post. Cone. Lat. P XIV c. 2 c. 1, 4, 5, 6, 9, 19, 22, 24. Extr. Lib. 
VI t. XXXIX. 

. "Cone. Rothomagense, cap. 26. Const. Syn.Odonis Paris, cap. VI par.6. 

"Const. Richardi Episc. Sarum a. 1217 cap. 28. 



FACULTIES OF ORDINARIES AND PRIESTS 11 

order of Leo XIII the Vatican Archives were opened to truth- 
seeking investigators, and invaluable material for history was 
gathered from these sources. Very little regarding the S. Peni- 
tentiaria was open for inspection. As a consequence we are still 
in doubt about the origin and the first constitution. Available 
documents are incomplete and obscure. 

In mode of procedure the S. Penitentiaria undoubtedly fol- 
lowed the custom of the Apostolic Chancery and, like that office, 
also preserved its formularies and original registers, imposed its 
taxes and compiled its manuals. We have complete registers of 
the Chancery from the year 1198. The secret archives alone 
could give us information in regard to the registers of the S. 
Penitentiaria. The constitution of Benedict XII (d. 1342) "In agro 
dominico" does not mention any registers but gives a clear idea 
of the constitution of this Sacred Agency of Absolution. 20 Even 
at the time of Eugene IV the registers of the letters and petitions 
of the S. Penitentiaria were incomplete, because the general rule 
was to return the petitions to the petitioners. In the Constitution 
"Prudens paterfamilias" of July 1, 1436, Eugene IV advises, and 
in a later Constitution of July 11, 1438 he formally decrees, that 
all letters and petitions of the Sacred Penitentiaria be duly kept 
on record. 21 

Some extant documents give a more or less clear idea of 
the original constitution of the Sacred Penitentiaria. There is 
a manuscript of Cardinal Bentevenga (1279-1289), which con- 
tains several documents written by himself, but as he remarks, 
it is a mere formulary, rather than a method of procedure. 22 
One of the most important documents is the so-called "Liber 
Poenitentiariae," which closely resembles the "Liber Provincialis" 
of the Chancery. It contains acts of the Penitentiaria and of the 
Roman Pontiffs relating to the Tribunal. It imposes the obliga^ 
tion on the scribes to procure, within two months after going 
into office, a copy of the constitution treating on the matter. 
After these two months have elapsed, the scribes had to acquaint 
themselves, within the following four months, with the powers 
of the Major and Minor Penitentiaries, the general and special 
concessions, the reformed formularies of the Pontiff, the formul- 



" Denifle. Archiv fur Litt. u. Kirch. Vol. IV. p. 209. 

*Fondo Vaticano MS. Lat. 3994, f. 88; MS. Lat. 5744 f. 101 v; MS. 
Reg. Svec. 1796 f. 133 v. 

* Registerband des Card. Poenitent. Bentevenga. Eubel, Arch. f. 
kath. Kirchenrecht vol. LXIV 1890 pp. 3-69. 



12 THE SACRED PENITENTIARIA AND 

ary of the minor offices and all that was necessary for the exer- 
cise of office." 

There are three editions of the "Liber Poenitentiariae." The 
first dates back to the Const. "In agro dominico" of Benedict X.II 
(Apr. 8, 1338) and contains the new tax-list issued by the Pope. 24 
One of the MSS points out the "Privileges of the Penitentiaries," 
another the "Days on which the Penitentiaria is not in session." 25 
Another document, "Summa Nicolai" of the year 1291, enumerates 
the powers and cases reserved to the Major Penitentiary. The 
second revised edition of the "Liber Poenitentiariae" begins with 
the Statutes of Benedict XII, and adds the new concessions and 
reservations with an extract of laws from the Decree of Gratian 
and Clement V. In it are also recorded the chief offices of the 
Penitentiaria, the new legislation of Eugene IV and the Statutes 
of the Major Penitentiary, Jordan Orsini. 26 

Of equal value with the "Liber Poenitentiariae" are the 
Formularies. These are of great importance, because they help 
us to understand the mode of procedure in the Sacred Peniten- 
tiaria. 

The most ancient, it seems, is the "Formae Romanae Curiae 
compositae a magistro Thomasio bonae memoriae presbytero 
Cardinali super casibus poenitentiariae." 27 Charles Lea is of the 
opinion, that Jacobus Thomasius Gaetanus, Cardinal presbyter of 
St. Clement (1295-1300), composed this formulary, but this is 
very doubtful. Haskins adduces strong arguments for attribut- 
ing the formulary to Thomas of Capua, Cardinal priest. This 
Cardinal held the office of Penitentiary from 1234-1240, during 
which time the formulary appeared. There is only one form that 
shows a later date, No. XCI, 2, 1243. Furthermore he is men- 
tioned five times in the Formulary : XXVIII 3, LXIII, 3 ; LXVI ; 
CXLV 2; CLXjXII 7. In the "Salimbene Chronica" (Parma pp. 
66, 194, 1857) he is called the "Melior dictator de curia" and in an- 
other he is spoken of as the confessor who gives absolution in the 



"Ravenna MS. 470 f. 26 v. Vat. L. Fond. Vat. MS. Lat. 2663 f. 36 v. 

* MS. Lat. 415 Hofbibliothek Vienna ff. 1-37 (14 cent. 121 ff.). Denifle, 
Archiv. f. Litt. u. f Kirch, des Mittelalters. vol. IV pp. 209 sq. 

"Vat. Lat. 3994 f. 18 v.; f. 19 and 28 v. 

"Fondo Vat. MS. Lat. 3994 ff. 83 v-88; 5744 ff. 95-102 v.; 6347 ff. 195- 
202; MS. Reg. Svec. 1796 ff. 1265-135 v. 

The third revision is merely a copy of the second adding the Const. 
"Provida Romani" of Sixtus IV (Nov. 1, 1437) and ending with the Brief 
of Julius III (Mar. 1, 1552). 

n "A Formulary of the Papal Penitentiaria in the thirteenth century," 
Philadelphia, 1892. It is divided in 355 formulas and 179 rubrics. 



FACULTIES OF ORDINARIES AND PRIESTS 13 

place of the Pope (1223). 28 Jacobus Thomasius Gaetanus is 
never called simply Thomasius, always Jacobus and between the 
years 1295-1300, Matthias de Aquasparta was Major Penitentiary. 
If Jacobus Thomisius Gaetanus and not Thomas of Capua is the 
author of the Formulary, it seems entirely improbable that he 
would omit all the forms, which were so numerous in his own 
time, the end of the thirteenth century, and record only those 
in use fifty years before. All these reasons lead us to conclude, 
that Thomas of Capua was the author of the famous Formulary. 

When Benedict XII April 8, 1338 issued the Constitution "In 
agro dominico," he not only reconstructed the Curia, but ap- 
pointed Gaucelinus, bishop of Albano, Gotius, patriarch of Con- 
stantinople, Jacobus of Brixen and abbot of the monastery Mont- 
isolivi, to reform the original Formulary. It is not altogether 
certain, whether this reformed Formulary and that of Thomas 
of Capua are identical. The great similarity between both in 
regard to matter and form is very striking and apparently there 
is no doubt that the Formulary of Thomas of Capua at least 
formed the basis and foundation for the Formulary of Bene- 
dict XII. 

A short time afterwards Walter of Argenten, scribe and cor- 
rector of the Penitentiaria, composed a new Formulary under 
Urban VI 1389. New concessions granted to the Major Peniten- 
tiary and Regent, as well as many new changes made in the old 
Formulary, are the reasons given by Walter for issuing a new 
one. This last revision according to three documents, was in 
use up to the time of Cardinal Calandrini (1476). 



"Guillaume le Breton Philippeide, XII. II. 721-738 (ed. Delaborde 
Paris, p. 376). Parma 1851, pp. 66, 194. Canoniste Contemp. Sep. Oct. 
1915 Poenitentiaria. Haskins, "The sources for the history of the papal 
Penit." American Journal of Theology vol. IX. 1905. 



CHAPTER II 
Constitution of the Sacred Penitentiaria 

PART I 

After this brief investigation of the historical documents re- 
garding the origin and practices of the Sacred Penitentiaria, we 
shall treat the Sacred Tribunal as constituted previous to the 
reformation of Benedict XII in the year 1342. 

Benedict XII found "when reading a certain book" that for- 
merly Cardinal Priests assisted the Pope in hearing confessions, 
and when labors increased in the Roman Curia, Penitentiaries 
were appointed for the work. In his memorable constitution "In 
agro dominico" (8 Apr. 1338) he again mentions the fact that 
Penitentiaries or Archpriests were formerly assistants in the 
internal forum, with the obligation of hearing confessions and 
writing the apostolic letters. For composing other acts a libra- 
rian and a secretary were employed. 

The exact time when the office of the Penitentiary was in- 
stituted is not known. As already stated it is not unlikely that 
it had its origin during the reign of Pope Alexander III (1159- 
1181). We know that Cardinal John a Sancto Paulo, of the 
titular Church of St. Pricilla, was appointed by the Pope to hear 
confessions in his stead: "Quod confessiones pro papa tunc re- 
cipiebat" (1193-1205). Apparently he was not the only one to 
be thus appointed since a letter of Gregory IX mentions the Peni- 
tentiary Nicolaus Tusculanus, bishop under Pope Honorius III. 
It seems at the time of Innocent III this Penitentiary was no 
longer an ordinary official, but the head of some institution. 1 
Under Gregory IX this institution was known by the name of 
Poenitentiaria. The fact, also that Innocent IV (d. 1254) and 
Alexander IV (d. 1261) mention the scribes of the Penitentiaria, 
testifies to the existence of a permanent institution. 2 The earli- 
est letter we have of a Penitentiary, seems to be that of Nicolaus 
Tusculanus, who had charge of the Penitentiaria during the years 
1216-1219. Thomas of Capua the author of the Formulary suc- 



*Breslau, Urkundenlehre, vol. I, p. 228, n. 2. Pressutti, Regesta 
Honorii Papae III, index sub Poenitentiarius Chartularium Universita- 
tis Parisiensis, Paris 1889, vol. I, p. 85; Raymundiana pars. II pp. 17 sq. 

a Breslau, Urkundenlehre, vol. I, p. 228 Potthast, n. 12993. 



FACULTIES OF ORDINARIES AND PRIESTS 15 

ceeded him in office (1216- 1234) .* Next in office was Hugo de 
Sancto Caro (Hugh de St. Cher) cardinal priest of the titular 
church of St. Sabina (1244-1263). A letter from him of the year 
1256, shows that he was the head of the Tribunal during that 
time. The exact date of his appointment is unknown, but it was 
probably made under Innocent IV, who entrusted him with vari- 
ous affairs after the Council of Lyons (1245). This cardinal is 
the first Penitentiary known under the title of Summus or Gen- 
eralis Poenitentiarius. 4 

Shortly afterwards, under Urban IV (d. 1265), the superior 
of the Sacred Penitentiary is well known as the Summus Poeni- 
tentiarius. The successor of Hugh de St. Cher was Guido Gros, 
cardinal bishop of Sabina (1261-1265), who afterwards became 
Pope Clement IV (Feb. 5th, 1265). The immediate successors to 
the office of Penitentiary are not known, probably because they 
were appointed temporarily. The next known Grand Peniten- 
tiary is Peter of Tarantasia, cardinal bishop of Ostia (1273-1276) 
afterwards Pope Innocent V (Jan. 21, 1276) . 5 Though probably 
not the immediate successor, Bentevenga, cardinal bishop of 
Albano, held the office during the years 1278-1289. The Regesta 
of this Cardinal began in the year 1270. Cardinal Mattheo de 
Aquasparta of the titular church of St. Lawrence at Damaso 
(1288-1291), afterwards cardinal bishop of Porto and St. Rufinus 
(1291-1302), came next in succession. He was a former General 
of the Franciscans and a renowned theologian. The letters of 
this Cardinal are quite numerous, as the formularies of the Sa- 
cred Penitentiaria show. 

Next in office was Gentilis de Montefiore, cardinal priest of 
San Martino ai Monti (1300-1312) ; Berengarius Fredoli, bishop 
of Bezier, afterwards cardinal priest of the Basilica of SS. Nerius 
and Achilleus, and finally cardinal bishop of Tusculum (d. 1323). 
Berengarius was one of the collaborators on the Liber Sextus 
Decretalium under Boniface VIII. Gaucelinus, bishop of Albano, 
succeeded Berengarius. Gaucelinus was commissioned by Bene- 
dict XJI to change the old Formulary. He died 1348. Then came 
Etienne d'Albert (or d'Albret). He was bishop of Noyon 1338, 
of Clermont 1340, cardinal priest 1342, cardinal bishop of Ostia, 



'Guillaume le Breton Philippeide XII. II. 721-738 ed. Delaborde Paris 
1885 p. 376. 

4 The letter of Nicolaus Tusculanus mentions "Summus Poeniten- 
tiarius." 

8 Regesta d. Honorius IV, n. 735. Saegmuller, Die Thaetigkeit u. Stel- 
lung der Cardinaele bis Papst Bonifaz VIII. Freiburg 1896 pp. 105 sq. 



16 THE SACRED PENITENTIARIA AND 

Grand Penitentiary 1352 and finally elected Pope (18 of Dec, 
1352). Next in office was Gil de Albornoz the renowned cardinal, 
general and statesman (d. 23 Aug., 1367). Clement VI created 
him cardinal priest of San Clemente (17 Dec, 1350). Innocent 
VI entrusted him with extraordinary powers to restore the au- 
thority oi the Pope and appointed him legate and Vicar General 
of the Papal States (30 Jan., 1353). Gil de Albornoz had many 
substitutes as Grand Penitentiary. Special mention is made of 
Francis d'Abt, surnamed Florentinus, cardinal priest of St. Mark, 
and William Bragose, cardinal deacon of St. George at Velabro, 
afterwards cardinal priest of St. Lawrence at Lucina. Bragose 
was Grand Penitentiary from 1361-1367. Galhardus de Bos- 
coviridi took charge of the "regimen curae poenitentiariae" in 1367. 

He was succeeded by Etienne de Poissy, bishop of Paris, 
cardinal priest of the titular church of St. Eusebius and Grand 
Penitentiary from 1369-1373. John de Croso, bishop of Limoges, 
was Penitentiary from 1273-1383. 6 Jead d'Aurelin archbishop of 
Corfu was elected "regens officii poententiariae" by Pope Urban 
VI in the year 1378. He afterwards became cardinal priest of 
Sabina and Grand Penitentiary. The next Penitentiary Eleazar 
de Sabran, cardinal priest of St. Balbina, was in charge only from 
Oct. 1378 to Aug. 1378 when he died. Then Augustin de Lanzano, 
who was not a cardinal, was temporarily appointed. Luc Radul- 
fuci de Gentilibus, cardinal priest of St. Sixtus replaced the for- 
mer in 1382 and held the position five years. He was succeeded 
by Ponce de Orvisto after whose death Augustin de Lanzano 
again took charge. Cardinal Nicholas Mosquino exercised the 
functions of a Grand Penitentiary a very short time from the 
3rd of March to the 29th of July, 1389. 

His successor was Francis Corbon cardinal priest of St. Sus- 
anna, afterwards bishop of Sabina (1389-1412). Then came An- 
thony de Cajetanis cardinal priest of St. Cecilia, afterwards bishop 
of Palestrina and later bishop of Porto. He died 1412. 7 During 
the Council of Pisa, Gerard and Anthony de Cajetanis were both 
in office, dividing the work between themselves. Towards the 
end of the year 1408 John Dominici, cardinal of St. Sixtus, had 
charge of the Sacred Penitentiaria under Pope Gregory XII. 
Then followed Jordan de Ursinis, who reigned simultaneously 



*He was sent to Avignon by Clement VII. 

T At Avignon we find the following Penitentiaries: John de Crosso, 
who was sent there by pope Clement VII; Peter Ameli, cardinal priest 
of St. Mark (d. 1389); Peter Gerard bishop of Puy, cardinal priest of 
St. Peter in Vinculis (1390) and bishop of Tusculum (d. 1417). 



FACULTIES OF ORDINARIES AND PRIESTS 17 

with Peter Gerard from 1415-1438. His successor was Nicholas 
de Albergatis, cardinal priest of the titular church of the Holy- 
Cross in Jerusalem (d. 9th of May, 1444). 

Upon him followed Cesarini, cardinal bishop of Tusculum 
(d. 1444) ; John de Capranica, cardinal priest of the titular church 
of the Holy Cross (d. 1458) ; Philipp Calendrini, cardinal priest of 
St. Lawrence at Lucina, afterwards bishop of Albano and Porto 
(d. 1476) ; Julian de Revere, Grand Penitentiary from 1476-1503, 
afterwards Pope Julius II; Peter Luigi Borgia, cardinal priest 
of the titular church St. Marcellus (d. 1511); Leonard Grosso 
della Revere (d. 1520) ; Lawrence Pucci (1529) and Anthony 
Pucci his nephew, cardinal priest and bishop of Sabina (in 1544) ; 
Robert Pucci (d. 1547) ; Ranucci Farnese (d. 1565). 

We conclude our list of Penitentiaries with Charles Bor- 
romeo, cardinal priest of the titular church of St. Prassede and 
papal secretary of Pius IV. He resigned his offices as Grand Peni- 
tentiary, archbishop of St. Maria Maggiore and other high dig- 
nities in the year 1572. 

The names we have given and the periods in which these 
Penitentiaries held office were until quite recently entirely un- 
known to historians. M. Goeller began the work, and I have veri- 
fied the data and given the result of his earnest and unbiassed 
research. When the minds of men will turn from war and car- 
nage and investigation can be peacefully resumed, the old manu- 
scripts yet untouched will no doubt furnish us with still more 
information especially regarding the organization of the Tribunal 
and the functions of its various officials. The libraries of the 
cardinals in charge of the office at various times, will render use- 
ful service, as ikewise the original letters, if they can be found, 
issued by the Penitentiaries. One of the earliest we have is that 
under seal of Nicholas of Casamari to those who accompanied 
Louis of France to England. 8 

The work of M. Goeller brings us down to the time of Pope 
Pius V, who completed the work or reforming the Sacred Peni- 
tentiaria, so well begun by Pius IV (d. 1565). Succeeding Popes, 
as we shall see, took up the task and made new rules and regula- 
tions as time and circumstances required, until Pius X by his 
constitution "Sapienti consilio" (29 June, 1908) gave the Sacred 
Penitentiaria its present form and powers. 



1 Archives Nationales, J. 655, publ. by Teulet, Layettes du Tresor des 
chartes, Paris 1863 vol. I p. 450 n. 1241 ; Paston, Geschichte der Paepste 
vol I p. 769 n. 1. 



18 THE SACRED PENITENTIARIA AND 



PART II 



The constitution "In apostolicae" (Apr. 13, 1744) of Benedict 
XIV with a few exceptions is in full force even at the present 
time. It confirms the rules laid down by Pius V in the Const. "In 
omnibus" (June 15, 1569) and gives the number of officials, who 
constitute the S. Penitentiaria. 

According to this constitution the Major Penitentiary must 
be a cardinal. He must furthermore have the degree of Doctor 
of Canon Law or be a Licentiate in Theology. He is elected by a 
Brief of the Pope and must exercise his office in person. If how- 
ever he is absent for some legitimate reason, approved by the 
Pope, he can delegate another cardinal with the required qualities, 
who exercises his office not in the name of the Major Peniten- 
tiary, by whom he was delegated, but in his own name. 

If the Major Penitentiary dies during the vacancy of the 
Holy See, a new one is elected by the majority of the cardinals 
present at the Conclave. This election takes place either in a 
special meeting before they enter the Conclave, or during the 
Conclave itself. It is made by a secret vote and the one chosen 
remains in office only during the time the See is vacant. 

Besides the powers of dispensing and absolving, as we shall 
see when treating of his competency, the Major Penitentiary is 
chief administrator of the Tribunal. All the other officials are 
under his jurisdiction and guidance. He may inflict punishment, 
appoint whom he thinks worthy and exclude the undesirable. He 
hears confessions of the faithful in the Basilica of St. John at the 
Lateran on Palm Sunday, in St. Mariae Maioris, on Wednesday of 
Holy Week, in St. Peter's on Thursday and Good Friday of Holy 
Week. A special confessional is reserved for this purpose and 
after each confession he touches the penitent with the so-called 
penitential rod to which ceremony 100 days of indulgence were 
attached. By a rescript granted on the 6th of March, 1917, the 
indulgence has been increased to 300 days. 9 On Ash Wednesday 
he imposes the ashes on the Holy Father, the cardinals and as- 
sistants. He also assists the Pontiff at the hour of death. He 
solemnly celebrates Mass on All Souls Day in the pontifical 
chapel. He appoints the Minor Penitentiaries to the Roman Ba- 
silicas and the Church of Loreto and grants them the required 
faculties. 10 He appoints the extraordinary Penitentiaries to St. 



Acta Apostolicae Sedis, March, 1917. 

10 Every day they hear confessions in the Basilicas : Lateran, Vatican, 
Liberiana, the faithful, when touching the penitential rod gain 100 days 
of indulgences. Acta Ap. Sed. Mar. 1917. 



FACULTIES OF ORDINARIES AND PRIESTS 19 

Peter's and during the time of Jubilee to St. Paul's and the other 
churches of the city. He appoints the assistant, who is delegated 
to visit the different Penitentiaries to collect the libelli supplices 
which require special powers and return them to the confessors. 
He designates priests to conduct the spiritual exercises at the 
Mission House near the Curia Innocentiana. These exercises are 
free to all, having been endowed by Vincentius bishop of Preneste 
and Cardinal Petra. 

Benedict XIV allowed the Penitentiary 100 scuta auri (about 
$100) as monthly salary. 200 scuta from the income of the 
Penitentiaria were set aside for the poor who had recourse to 
the Sacred Penitentiary. If the sum did not suffice the Peniten- 
tiary was privileged to petition the Holy Father for a greater 
allowance. Recent laws regarding the Sacred Penitentiaria, have 
affected many changes and hence some of these powers and 
privileges have fallen into desuetude. 

The Regent, Theologian, Datarius, Canonist, Corrector and 
Sigillator are elected by the Major Penitentiary. The names of 
the elected are presented to the Pope for approval and the nec- 
essary documents are drawn up. The qualities required of every 
official are strictly determined. The Regent, Datarius, Theologian 
and Canonist must be especially acquainted with the various cases 
of conscience and must be men of superior learning. 

The Corrector must be versed in detecting defects and thor- 
oughly acquainted with decrees and formulas pertaining to the 
Tribunal. The Procurators and Scribes are elected and appointed 
after a public competitive examination and a searching inquiry 
by the Regent and Corrector into their lives, morals, age, knowl- 
edge and other qualities necessary for such offices. Unless elected 
in this manner all their concessions, even though for some reason 
or other made by the Pope himself, are null and void. 

Duties of the Regent : By a very old custom the Regent is 
chosen from among the chaplains of the Pope, one who is an 
auditor of the Apostolic Curia. It is his duty to examine all 
cases with the greatest diligence and to direct all negotiations in 
all sincerity. The Procurator takes all orders from the Regent 
and can do nothing without his approbation. All matters of 
minor importance are expedited through the procurator, but any 
doubtful or difficult case must be referred to the Major Peniten- 
tiary, who decides it in the so-called Signatura or congress, a 
meeting in which the most important cases are discussed. 

Duties of the Theologian : For a long time past this official 
has been chosen from the Society of Jesus. It is his duty to give 



20 THE SACRED PENITENTIARIA AND 

counsel and advice (in writing if so demanded). All obscure, 
vague or difficult cases are submitted to the Major Penitentiary. 

The Canonist examines the cases proposed to him and gives 
his decisions either orally or in writing, as the Regent or the 
Penitentiary may demand. 

The Corrector looks over all minutes and petitions drawn 
up by the Procurators and makes the necessary corrections, so 
that all letters are expedited in the proper form. 

The Datarius affixes the date, the name of the place and the 
year of the pontificate. Vacancy of the Holy See requires special 
mention. 

The Sigillator or Sealer examines the letters, to see that 
everything corresponds to the regulations and then adds the seal 
of the Sacred Penitentiaria. The Sealer is also responsible for 
the work of any assistant or substitute he may employ. 

Each Procurator or Scribe has a particular work assigned 
him. They examine and classify the letters and petitions sent to 
the Sacred Penitentiaria. The procurators give them their proper 
form and then pass them on to the Corrector. The formulas 
must be approved by the Major Penitentiary and the six officials 
of the Signatura, and under no consideration can they deviate 
from the given formulas unless for a grave reason, approved by 
the Regent or the Penitentiary. The Procurators cannot inter- 
fere in giving the final decisions, which depend on the Regent and 
the Major Penitentiary. 

The Scribes or their substitutes compose the letters referred 
to them in a clear and exact type (formerly in form of a Bull), 
enter all decrees of the Roman Pontiff, if there are any on the 
matter, in the respective books and also the instructions or de- 
crees issued by the Major Penitentiary or Signatura. Exceptional 
cases, special dispensations or extraordinary occurrences are 
recorded in the same manner. 

The number of Procurators and Scribes has not always been 
the same, Clement V reduced the number to twelve (Sep. 2, 1311. 
Regesta Clem. Papae V. n. 7359). Before the time of Pius V there 
were twenty-four Procurators and twenty-seven Scribes. This 
number was reduced to two Procurators and two Scribes. Bene- 
dict XIV again increased the number adding one to each office 
on account of the additional work. In his Constitution "Quamvis 
jam" (Dec. 13, 1747) he gave special rules, how these Procurators 
and Scribes were to be elected and how they were to conduct 
themselves to acquire the necessary experience. This constitu- 
tion is still in force in all matters not at variance with the Const. 



FACULTIES OF ORDINARIES AND PRIESTS 21 

"Sapienti consilio." The three special rules that govern this 
Tribunal now are as follows : 

1. The Tribunal limited solely to the internal forum retains 
the following officials : the Cardinal Penitentiary and the Regent, 
the other five prelates of the Signatura, the Procurator or Secre- 
tary, a substitute and some other minor officials. 

2. The Tribunal conducts its business according to the forms 
of the Const. "In apostolicae" (Apr. 13, 1744) excepting those 
changed afterwards by legitimate custom, which however must 
be put in writing by the Cardinal Penitentiary and submitted to 
the Pontiff for approval. The Constitution "Sapienti consilio" 
and subsequent laws retain their full force. 

3. According to the same Const, of Benedict XIV, all busi- 
ness must be transacted gratuitously and with the greatest sec- 
recy (Normae pecul. cap. VIII. art. 1). 

The officials of the Sacred Penitentiaria, as mentioned in the 
official directory, are the following : Datarius, Corrector, Sealer, 
Canonist, Secretary and Substitute, two Copyists, Secretaries, an 
Archivist and two Registrars. The Signatura or congress is 
composed of the Cardinal Penitentiary, Regent, Canonist, Theo- 
ogian, Datarius, Sealer, Canonist and Secretary, but the latter 
has no vote. 

According to the Constitution of Benedict XIV, all the offices 
mentioned are conferred for life, and, excluding the case where 
an official is legitimately deprived of office, they remain until 
they voluntarily resign or are raised to the dignity of bishop, 
cardinal or some higher office in the Penitentiaria. All bargain- 
ing for offices is strictly prohibited and unless their lives are 
beyond reproach, all grants and concessions made to them are 
null and void. 

Only those present are entitled to a salary, unless their 
absence is unavoidable. If any of the higher officials is legiti- 
mately detained, the one next in dignity takes his place as pro 
N. N. When one of the Secretaries or Copyists is absent, the 
Major Penitentiary appoints another in his place. The substi- 
tutes must all take the oath and are bound by the same obliga- 
tions as the officials they represent. 

Paragraph 25 of the Constitution reads : Since it would not 
be just that the officiasl, whose work is not light, be deprived 
of emoluments, we decree that the reimbursements granted them 
by our predecessors remain in full force. Accordingly the Regent 
receives 25 scutata monthly, the Datarius, Corrector and Sealer 
15, the Theologian and Canonist 10, the Procurators 12, and the 



22 THE SACRED PENITENTIARIA AND 

Copyists or Secretaries 6 each. Paper, ink, wax and other acci- 
dentals are furnished by the Tribunal. 

Th$ Sacred Penitentiaria also employs an administrator. He 
is obliged to give the required security and manage all finances 
of the Tribunal according to given norms. He is the custodian of 
all documents and the registrar of the Sacred Penitentiaria. Ac- 
cording to the Constitution of Pius V "In earum rerum commuta- 
tione" the Sealer ex officio was the administrator of the Sacred 
Penitentiaria. Benedict XJV confirmed the ordinance but per- 
mitted the Sealer to employ a substitute. This Pro-sealer had to 
be a cleric and a man whose life was without reproach. All super- 
fluous moneys had to be applied to the Asylum for Poor Invalids, 
as per Constitution of Innocent XII (June, 1693). The Sealer 
was then the sole custodian of the sacred archives or the Ar- 
marium, but he could permit the Pro-sealer to take charge of 
the other archives. We are not concerned here with the Minor 
Penitentiaries, stationed at Rome and elsewhere. It will suffice 
to mention that they depend entirely on the Major Penitentiary, 
by whom they are elected and examined. The constitution of 
Benedict XIV speaks of them also at some length. They have 
various faculties to absolve, dispense and commute vows, but only 
within certain limits and under the guidance of the Major Peni- 
tentiary. 



CHAPTER III 

PART I 

Competency of the Sacred Penitentiaria 

To enumerate the faculties enjoyed by the Sacred Peniten- 
tiaria during the first years of its existence is not an easy task. 
Powers were often granted by word of mouth of which we have 
no record. More than two centuries after the institution of the 
Tribunal Eugene IV (d. 1447) wrote : "In regard to the powers 
of absolution and dispensation, the Sacred Penitentiaria has no 
firm rules. The concessions are made as circumstances require. 
Some are in contradiction to others, some are granted only for 
certain places, others again are uncertain or obscure." 

We get some idea of the original faculties of the Sacred Peni- 
tentiaria from the writings of Andre'de Escobar, who wrote dur- 
ing the time that Jordanus de Ursinis was Major Penitentiary 
(1415-1438. He writes: "In short, my Lord, Father Jordanus 
de Ursinis, bishop of Albano, in virtue of the Constitution of 
Benedict XII, can dispense from every sin and crime against the 
canons and decrees of the Roman Pontiff, from every major or 
miner excommunication, especially from the major, from suspen- 
sion, interdict and irregularity. He can dispense from every ir- 
regularity contracted either knowingly or ignorantly as long as 
it is not of the divine law or contrary to the apostolic rule or not 
especially and nominally reserved to the Pope, or promulgated 
ab homine or the Apostolic See." 

It was the privilege of the Major Penitentiary to hear con- 
fessions of the cardinals, patriarchs, bishops and abbots. He 
presided over the Minor Penitentiaries, when they inflicted pun- 
ishments or he mitigated excessive penalties. Special cases and 
enormous crimes were referred to him alone. The canonist 
John of God sums up his powers in these words : "Quia postquam 
gerit papae vices, ergo personam in poenitentiis representat." 
At the time of the Council of Lyons (1244) he alone could absolve 
the officials of the Curia from excommunication incurred for 
simony, except in danger of death, when every priest can absolve. 
The Constitution "Saepe contingit" of Clement IV (d. 1268) 
grants him the privilege of absolving the bishops of Italy from 
suspension inflicted for ordaining clerics without the permission 



24 THE SACRED PENITENTIARIA AND 

of the Pope or their ordinaries. Gradually he was authorized to 
grant indults and privileges, to give permission to choose con- 
fessors, grant indulgences, commute vows, to give absolutions 
and dispensations. 

After the time of Innocent VI (d. 1362), formerly a Grand 
Penitentiary (Etienne Aubert), the Major Penitentiary regularly 
received the power to absolve "a sententiis latis in die Jovis sancta" 
The different faculties, which it would be useless to mention, can 
be found in the various constitutions as: "Saepe contingit" 
(Clement IV d. 1268) ; "De advocatis" (Gregory X d. 1276) ; 
"Proinde accedentis" and "Episcoporum" (Boniface VIII d. 
1303) ; "Antiquae" (John XXII d. 1334) ; "In agro dominico," 
"Vas electionis" (Benedict XII d. 1342) and "Ne in vinea" (Urban 
V d. 1370). According to these constitutions the Major Peni- 
tentiary can absolve from simony, homicide and mutilation, from 
violence to clerics, heresy and achism. He can absolve those who 
have falsified or abused the papal letters, but in regard to the 
latter only in minor cases, since the more important ones were 
reserved to the Pope. 

1. Dispensations: The Penitentiaria dispenses from irregu- 
larities ex corpore vitiato and ex defectu natalium. In virtue of 
the faculties granted by Gregory X (d. 1276) the Penitentiary 
could dispense "without letters and witnesses for the internal 
forum, those who contracted marriage in the fourth degree of 
affinity unaware of the impediment, but only when the impedi- 
ment was an occult one." Clement VI (d. 1352) granted the 
power to dispense from the impediment of the fourth degree of 
consanguinity and affinity, if the marriage had been contracted 
and the parties were ignorant of such impediments. Gregory XI 
granted the privilege to the Major Penitentiary to dispense in 
cases of the fourth degree of consanguinity arising from the 
impediment of public decency, if the marriage was contracted 
in ignorance of the impediment and the publication of banns 
had taken place. 

Alexander V (d. 1410) permitted the Penitentiary to dispense 
from the impediment of consanguinity and affinity in the third 
degree both for marriages to be contracted and marriages al- 
ready contracted, but only under certain conditions. At the 
further request of the Penitentiary, that he be given the power 
to dispense also from the impediment of spiritual relationship, the 
request was granted only for those marriages contracted in 
ignorance of said impediment. Eugene IV (d. 1447) retracted 
the privilege of dispensing from the impediment of the third 



FACULTIES OF ORDINARIES AND PRIESTS 25 

degree but gave permission to dispense from the impediment of 
the fourth degree of consanguinity and affinity for marriages to 
be contracted. 

2. Commutation of vows: In the thirteenth century even 
the Minor Penitentiaries had the privilege of commuting vows, 
of extending the time for their fulfillment and of reducing the 
penalty for breaking them. Nicholas IV in his "Summa de abso- 
lutionibus et dispensationibus" (1290) reserved the following to 
the Major Penitentiary : Vow of religion, the vow of continency, 
the vows of visit the Holy Places, St. Peter's and St. Paul's and 
St. James' at Comppstella. 

Gregory XI (d. 1378) authorized the Penitentiary to dispense 
from the vows of visiting the Holy Sepulchre and other oversea 
places under certain conditions i. e. all proceeds were to be 
applied to the fabrics of St. Peter's and St. Paul's. Under Sixtus 
IV commutation of vows to visit Rome or Compostella was not 
only granted in favor of women but to all in general. 

3. Special powers of the Major Penitentiary: In some cases 
the Major Penitentiary enjoyed the same powers as the bishops. 
Benedict XII permitted them to grant "de gratiis quae conceduntur 
episcopis" to absolve and dispense "ad certum numerum" as is 
granted to bishops. The Tribunal was privileged to reconcile 
apostates, especially "apostatae a religione," and to grant ec- 
clesiastical burial to those excommunicated. 

Benedict XII gives a twofold series of faculties enjoyed by 
the Sacred Penitentiary: the ordinary faculties and the special 
faculties. Later a third series embracing the cases, which de- 
manded a special indult of the Holy Father was added. Thus the 
Council of Constance states : "the power of the Major Peniten- 
tiary is threefold: the first is the ordinary, the second is that 
by which he dispenses in cases requiring special faculties and 
the third, where a special power is granted him by the Pope for 
exceptional cases." 

The Bull "In apostolicae" of Eugene IV formed the basis of 
the powers of the Sacred Penitentiaria in the fifteenth century. 
It eliminated the superfluous grants and issued new faculties and 
privileges, but in a precise and definite manner, forbidding any 
one to exceed these powers without a special permission of the 
Pope. Nicholas V, Calistus II, Paul II, again made some changes 
as circumstances demanded. Sixtus IV in the year 1484 gave 
explicit and specific rules for the new concessions. 

Under Clement VII (d. 1543), when the Sacred Penitentiaria 
had full sway and apparently was at the height of its power, new 



26 THE SACRED PENITENTIARIA AND 

reformatory laws were introduced. The Major Penitentiary, 
who up to this time exercised full powers, both in the internal 
and in the external forum and was unhampered in granting de- 
cisions on innumerable matters, was obliged to abide by the new 
ordinances. With the consent of the Pope, Anthony Pucci or- 
dained that the chief members of the Penitentiaria meet with the 
Cardinal Penitentiary weekly and discuss all important matters 
at the so-called Signatura or congress. The laws enacted up to 
the end of the fifteenth century in regard to the Sacred Peniten- 
tiaria clearly show that its powers extended not only to the in- 
ternal forum but to the external as well. It is certain that in the 
thirteenth century, the Major Penitentiary exercised his powers 
for both forums. He dispensed from ecclesiastical impediments, 
legitimated children, absolved from homicide, granted permission 
to acquire benefices, dispensed from the defect of age or body for 
the reception of Holy Orders and granted indulgences. This 
shows how the Sacred Penitentiaria had gradually drifted away 
from its original institution and had exceeded all faculties, which 
it originally enjoyed. Sixtus IV in his constitution "Quoniam 
Nonnulli" (May — th, 1484) mad this clear, when he stated : "It 
is said that the powers of the Sacred Penitentiaria extend only 
to the forum of conscience and that it cannot grant the apostolic 
powers, which it enjoys to others." To remove all doubts it was 
decreed that the Sacred Tribunal can delegate its powers and 
that all its rescripts have full force in both forums. 

This encroachment upon the powers and faculties of other 
congregations soon proved undesirable, and laws were enacted 
to restrict and define the privileges and rights of the Tribunal. 
Julius III and Pius IV deprived it of all rights to commute the 
last wills of the faithful, to suppress or transfer benefices, to 
admit voluntary homicides to major Orders, to permit religious 
to remain outside of their monasteries and to concede matri- 
monial dispensations in forma gratiosa. 

Pius IV in his Constitution "In sublimi" (May 4th, 1562), 
though he did not deprive the Tribunal of all juridical power in 
the external forum, imposed upon it certain conditions and 
limitations. 

Leo X continued this reform movement. His Constitution 
"Pastoralis officii" (Dec. 13th, 1513) commands the Correctors 
and Auditors of the Sacred Penitentiaria to admit no scandalous, 
unusual, or inappropriate cases, and to observe under pain of 
excommunication the rules and modifications made regarding 



FACULTIES OF ORDINARIES AND PRIESTS 27 

the taxes. Procurators should be satisfied with half the tax and 
ask no more than is necessary to exedite letters and rescripts. 

Pius V in his Constitution "In omnibus" (May 18th, 1569) 
proceeds with still greater severity. He says, "Since human 
weakness and negligence have corrupted many, all previous 
powers of the Sacred Penitentiaria are recalled." The new facul- 
ties granted by him were to be interpreted strictly and used con- 
scientiously. "We demand that this be observed in the most 
holy and inviolable manner, namely that nothing be asked for 
composing or expediting letters, nothing for paper, ink, seal, 
cover, cords and other things pertaining to the sending of letters." 
In another constitution "Ut bonus paterfamilias" (May 18th, 
1569) he denjands that henceforth only those faculties are to be 
granted, which serve as real remedies to the faithful and are 
proper to the penitential office of the Tribunal. The same zeal 
for reform actuated Pope Urban VIII, when he issued his Con- 
stitution "Regimini" (June 10th, 1634). The Bulls "Romanus 
Pontifex (Sep., 1682) of Innocent XII and "Apostolatus Officii" 
(Oct., 1732) of Clement XIII merely confirm these restrictions 
made by their predecessors. 

Thus the Sacred Penitentiaria was restricted to the forum of 
conscience, its office was well determined and the qualities of the 
various officials specified. The Tribunal became a true dispenser 
of spiritual remedies. 

Benedict XIV in his masterly way continued the reform and 
wrote the four constitutions : "In apostolicae" (Apr. 13th, 1744) ; 
"Pastor bonus" of the same date; "Quamvis jam" (Dec. 13th, 
1747) ; "Pastoralis" (Aug. 5th, 1748). Restricted and guided by 
these various ordinances the Sacred Penitentiaria dispensed its 
graces without hampering any other ecclesiastical organization. 

The Dataria, it is true, was entirely impeded in the exercise 
of its functions on account of the civil disturbances of the eigh- 
teenth century, and the Sacred Penitentiaria through necessity 
granted almost all dispensations. When the civil affairs adjusted 
themselves the Dataria was reinstated in its former office of 
dispensing in the external forum, but with this restriction that 
the Sacred Penitentiaria should retain the power of dispensing 
the poor or quasi poor in both forums. Spain and Portugal how- 
ever were exempted from the jurisdiction of the Sacred Peniten- 
tiaria. This extraordinary faculty of dispensing the poor and 
the quasi poor was the cause of long disputes between the Dataria 
and the Sacred Penitentiaria. This dispute was decided in the 
following manner. To the question : "Do the new rules made by 



28 THE SACRED PENITENTIARIA AND 

the Dataria apply to the dispensations granted by the Peniten- 
tiaria," the S. Tribunal gave the following answer : "In the prac- 
tice of the Sacred Penitentiaria no innovation has been made" 
(July 23, 1902). This reply was confirmed on Jan. 2nd, 1904. 1 
With the additional faculties received during the French 
revolution the Sacred Penitentiaria kept all its powers intact 
from the time of Benedict XIV to the latest constitution of 
Pius X, "Sapienti consilio" (June 29th, 1908). Henceforth the 
Sacred Penitentiaria is limited to the forum of conscience. No 
doubt Pius X, when making the change, had in mind the consti- 
tution "In eligendis" (Oct. 9, 1562) of Pius IV, according to which 
the Major Penitentiary and his officials can act only in the forum 
of conscience. In all other matters, with the exception of in- 
dulgences the Sacred Tribunal is powerless and its acts null and 
void. 

PART II 

Indulg 



Once admitted that the Church has the power to forgive 
sins, the power of granting indulgences is logically inferred. If 
the Sacraments of the Church can free one from guilt and eternal 
punishment, it plainly follows that the Church can also free him 
from the lesser or temporal punishment. Our Lord said to St. 
Peter: "I will give to thee the keys of the kingdom of heaven, 
and whatever thou shalt bind upon earth shall be bound also in 
heaven, and whatever thou shalt loose upon earth shall be loosed 
also in heaven" Matt, xvi, 19 ; xviii, 18. That this power, as the 
Council of Trent shows, was exercised from the earliest times, is 
shown by St. Paul in his letter to the Corinthians (II. Cor. ii, 
5-10). St. Paul had bound the guilty Corinthian with the fetters 
of excommunication, he releases the penitent from this penalty 
by exercising his authority in the person of Christ. 

Every Christian knows, that, even though sin is remitted, 
the temporal punishment due to sin might still remain (II Kings 
xii, 13; Gen. iii, 17; Ex. 32, 14, 27; Num. xx, 2). How does the 
Church exercise the God-given power to remit the temporal 
punishment? An essential element in indulgences is the applica- 
tion of the satisfaction performed by Christ and His Saints to 
others. Merit is personal and cannot be transferred; satisfac- 



1 Praxis apostolicarum dispensationum super impedimentis matrimo- 
ialibus in Dataria Apostolica. No. 206. 



FACULTIES OF ORDINARIES AND PRIESTS 29 

tion can be applied to others. This tranfer is based on the Com- 
munion of Saints. "We being many, are one body in Christ, and 
every one members of another" (Rom. xii, 5). It is secondly based 
on the principle of vicarious satisfaction (Coll, i, 24). Thirdly it 
is based on the treasury of the Church (I. Jo. ii, 2). "All the Saints 
intended that whatever they did or suffered for God's sake, should 
be profitable not only to themselves but to the whole Church." 1 

Hence the practice of granting indulgences, whereby the 
Church comes to the penitent's assistance and places at his dis- 
posal the treasury of the merits of Christ and His Saints. Though 
closely connected with penance, indulgences are not a part of 
the Sacrament, they presuppose Confession and Absolution and 
are properly called an extra-sacramental remission of the tem- 
poral punishment incurred by sin. 

The indulgences granted by the S. Penitentiaria, like abso- 
lution and dispensations, have been the object of bitter accusa- 
tions. History records some writs containing indulgences from 
guilt and punishment (a culpa et a poena) and these are the 
source of great misunderstandings. 2 Some authors as Nicolas of 
Cusa in the fifteenth century, affirm that the Church at one time 
granted a dispensation from Confession. Clement V (d. 1314) 
condemned the practice of these purveyors of indulgences, who 
pretended to absolve from guilt and punishment. 8 The Council of 
Constance (1414) revoked all indulgences containing the said 
formula (Sess XLII n. 14). Benedict XIV (d. 1758) treated these 
indulgences as spurious and ascribed them to the illicit practice 
of the "questores" or purveyors. 4 

What is the maning of the formula "a culpa et a poena" and 
the more or less equivalent formulas as "poenitentiam levamus et 
remissionem peccatorum facimus," "peccatorum veniam pol- 
licemus"?. 

H. C. Lea claims that such formulas have been in use in the 
Church as early as the eleventh century or ever earlier. Enemies 
of the Church have distorted the doctrine of Christ. Either 
through ignorance or malice, they have gone so far as to accuse 
the Church of granting pardon for future sins. 5 The true mean- 



1 Alexander Hales, Summa IV, Q. XXIII. m. 3, n. 6; Albertus Magnus, 
IV Sent. dist. XX art. 16; St. Thomas, IV Sent. dist. XX Q. I art. 3 sol. 
1; Quod lib. II Q. VII art. 16; Cath. Ency. Penance. Indulgences. 

•Pesch, Theol. Dogm. VII 196, par. 464; Lea, Hist. Ill, 54; Beringer, 
Les Indulg. t. I p. 14. 
• Clem. IV tit. 9, c. 11. 
*De synod, dioc. VIII, v. 117. 
■Schiller, Mary Stuart. 



30 THE SACRED PENITENTIARIA AND 

ing of the formulas, which have been the occasion of so much 
controversy, is that indulgences presuppose the Sacrament of 
Penance and that the penitent is freed from temporal punishment 
only after sacramental absolution from the guilt of sin has been 
granted. 6 

No one denies that mercenary members of the flock have 
been guilty of grave abuses to fill their purses. Martin V in his 
Bull "Inter cunctas" (Denz. n. 57) writes "Utrum credat, quod 
Papa omnibus Christianis vere contritis et confessis ex causa pia 
et justa possit concedere indulgentias in remissionem omnium 
peccatorum (Clem. V. t. 9. c. 2). Cum aliqui ex ipsis (questoribus) 
eos a poena et a culpa, ut eorum verbis utamur absolvant, nos, 
abusus hujusmodi . . . omnimodo abolere volentes" etc. 

History proves that, excepting a small minority, the greater 
number of Catholics have never misunderstood these formulas. 1 
Why not reasonably believe that the majority of the people in 
the Middle Ages thought about the matter as we do, and under- 
stood peccatum here as meaning, poena peccati and not culpa, 
which can be remitted only by the Sacrament of Penance? St. 
Peter interprets peccatum in that way when speaking of our 
Lord. "Who His ownself bore our sins in His body upon the tree" 
(I Pet. 2, 24; Is. 53, 5). Why should they not understand that, 
where an indulgence is granted in connection with the "litterae 
confessionaks" peccatum means culpa, which is forgiven by abso- 
lution, whereas temporal punishment is condoned by the in- 
dulgences ? 

We fully appreciate the fact that the study regarding these 
formulas must be carried on, not only in the field of exegesis, 
but also from the historical point of view. Earnest endeavors 
have been made in the last few years in this regard and valuable 
documents have been discovered. M. Goeller has made a careful 
research into this matter, and his explanation no doubt will meet 
with the approval here, as it did with the learned in Germany and 
France. He claims that the solution of the difficulty is found in 
the right interpretation of the so-called "confessionalia" or "litterae 
confessionaks" These letters were granted either by the bishop 
or the Pope and gave the holder the right to choose his own con- 
fessor, aside from the one which the law prescribed for him. 



•Bellarmine, De Indulg. I, 7. 

' T A. Franz, Wie man dem Volke im 15 Jahr, uber den Ablass predigte. 
Katholik, 1904 II 115. Beringer, die Ablasse 12 Aufl S. 12 Paderborn, 1900; 
Pohle Lehre der Dogmatik B. Ill S. 508. 



FACULTIES OF ORDINARIES AND PRIESTS 31 

Previous to this concession, the pastor alone had the right to 
hear the confessions of his parishioners. 

These "litterae confessionales," which left the faithful free to 
choose their own confessor, were granted as early as the thir- 
teenth century, and as the documents show, this choosing of one's 
confessor, was then quite prevalent. The Formulary of Thoma- 
sius contains letters of the Sacred Penitentiaria granting this 
"facultas eligendi confessorem." A century later we frequently en- 
counter these privileges of choosing a confessor, who could grant 
"plena remissio omnium peccatorum' 9 to the dying. 

The development was of course a gradual one. At first it 
was a simple permission of choosing a confessor. Very soon the 
chosen confessor received the power to absolve from all sins that 
were not reserved to the Pope. A little later the same powers 
were given with the addition of granting particular favors. 
Finally general faculties were granted to these confessors to 
absolve from all sins, even those reserved to the Pope. 

Clement V granted the indult to Mary of France (1306) : 
"eligere sibi confessorem, qui earn absolvere valeat etiam a qui- 
buscumque sententiis, sacrum ei ministrare et dispensare super 
observantia jejuniorum." John XXII granted her the same favor 
"eligere confessorem cui conceditur facultas earn absolvendi in 
omnibus casibus etiam episcopis reservatis et ab excommunica- 
tionis sententiis a canone promulgatis, si quas incurrerit, nisi 
talia fuerint propter quas sedes apostolica esset merito consu- 
lenda." On the 17th of April, 1318, Bishop Arnold of Lombez 
received from John XXII the privilege to choose his confessor, to 
whom the power would be given to absolve him from an irregu- 
larity reserved to the Major Penitentiary. During the time of 
Clement VI the formula "eligere confessorem, qui absolvere 
valeat a casibus Sedi apostolicae reservatis" was commonly em- 
ployed. 

In speaking of the more important formulas, which bring 
us closest to the point in question, we note the following. Among 
the litterae confessionales, which John XXII granted in the last few 
years of his pontificate, we find one that reads: "ut confessor 
tuus, quern duxeris eligendum, omnium peccatorum, de quibus 
corde contritus et ore confessus exstiteris, ac poenarum etiam 
Quibus tunc pro peccatis ipsis eris obnoxius, earn plenam remis- 
sionem, quam Romani Pontifices consueverunt per speciale privi- 
legium aliquibus impertire, quatenus claves Ecclesiae se exten- 
dunt et gratum in oculis maiestatis divinae fuerit, in mortis 
articulo tibi auctoritate nostra concedere valeat, tenore praesen- 



32 THE SACRED PENITENTIARIA AND 

tium concedimus facultatem." We have here in the language of 
the times, a full remission from all sins and penalties. (Plena 
remissio omnium peccatorum.) Without the least modification of 
the power, a slight change of terms gives us the celebrated for- 
mula : indulgentia a culpa et a poena. 

In the confessional letters granted to Philip V, king of 
France, and Joanna his wife, the terms are identical. "Mandamus 
quatenus ei regenti, criminum suorum, de quibus corde contritus 
et ore confessus infra unius anni spatium fuerit, plenam semel 
indulgeas veniam peccatorum, illaque sibi auctoritate nostra plena 
remittas, et quatenus claves Ecclesiae se extendunt et gratum in 
oculis divinae maiestatis fuerit, satisfactionem impendendam, ut 
debite satisfaciat, eidem injungas." 

Another concession granted to Clementine the Queen of 
Louis le Hutin, Philip's brother, contains the same privilege, 
absolutio et indulgentia a poena et a culpa." Many more could 
be cited from the fourteenth century. One of 1343 reads: "Te 
placeat plenissimam indulgentiam, quae vulgariter a poena dici- 
tur et a culpa, in mortis articulo eidem Guidoni et Amebae uxori 
suae concedere ut in forma Fiat," etc. Another : "Suplicat S. V. 
Bartholomaeum de Thomasiis ut a poena et a culpa et etiam ab 
excommunicatione et irregularitate eundem absolvere dignemmi." 

The formula of absolution for the dying, with full remis- 
sion from sin and punishment, removes the last vestige of daubt. 
"Primo ipse absolvendus dicat litteraliter vel vulgariter: Con- 
fiteor Deo. . . . Et si dicere non potest, dicat alius vice ejus. 
Quo dicto, sacerdos qui eium absolvere debet dicat Misereatur, et 
postea subjungat sic dicens : Ego auctoritate Dei, beatorum Petri 
et Pauli ac aliorum apostolorum omniumque sanctorum et sanc- 
tarum Dei et auctoritate d. Urbani papae quinti, qua fungor, 
mihi in hoc casu specialiter et expresse commissa, absolvo te ab 
omni vinculo excommunicationis generaliter vel specialiter latae 
ab homine vel a canone et ab omni vinculo seu poena irregularita- 
tis, suspensionis vel cujuscumque senten etiae, quam scienter vel 
ignoranter incurristi usgue in hanc horam a judice vel a jure, et 
restituo te unitati fidelium Christi et Sanctis sacramentis Ecclesiae 
in nomine P. et F. et Sp. S. Amen. 

Item eadem auctoritate Dei et Ejus vicarii domini Urban? 
papae V mihi in hoc casu expresse commissa, absolvo te ab omni- 
bus peccatis tuis, de quibus contritus es corde et ore confessus 
specialiter vel communiter pro modulo tuae fragilitatis, ac etiam 
de quibus oblitus es in speciali conteri vel confiteri, et ab omnibus 



FACULTIES OF ORDINARIES AND PRIESTS 33 

poenis tibi debittis pro tuis peccatis quantum se extendit potestas 
clavium beatissitni apostoli Petri vicarii Dei in nomine Patris etc." 

To sum up the arguments we find that "indulgentia a poena et 
a culpa" is the equivalent of "remissio omnium culparum et poe- 
narum." These formulas employed by the Holy See empowered 
the holder to select his own confessor, who absolved him from 
sin and granted him the indulgence. These faculties, namely to 
absolve from sin and grant the indulgence, embraced in the one 
formula, are called, "indulgentia a culpa et a poena." Our con- 
cept of indulgences is restricted to the remission of temporal pun- 
ishment and presupposes the absolution from sin. The whole dif- 
ficulty in the past resulted from confounding the terms indul- 
gentia a culpa et a poena, with the theological concept we have 
of indulgences. 8 

While it cannot be denied, that abuses were widespread, it 
must also be remembered that, even when corruption was at its 
worst, these spiritual grants were being used properly by the 
sincere members of the laity, who sought them in the right 
spirit, and by the priests and preachers, who took care to insist on 
the need of true repentance. For this reason the Church instead 
of abolishing them, aimed rather at confirming the practice, by 
the elimination of abuses. 

The Council of Trent, after deploring the fact, that in spite 
of the remedies prescribed by earlier councils, the traders in in- 
dulgences continued their nefarious practice, ordained that pur- 
veyors be entirely eliminated and the indulgences be henceforth 
published by the bishop gratuitously, so that all may understand 
that spiritual treasures are dispensed only for the sake of piety 
and not of lucre (Sess XXI, c. ix). In the year 1567 St. Pius V 
cancelled all grants of indulgences involving any fees or financial 
transactions. Since that time the Church has frequently reiter- 
ate her doctrine, to separate the chaff from the wheat, to de- 
nounce abuse and enforce her ordinances. Canon 2327 in the 
New Code reads: Questum facientes x indulgentiis plectuntur 
ipso facto excommunication Sedi Apostolicae simpliciter reserv- 
ata. The New Code hereby confirmed the sanction contained in 
the Constitution of Pius IX "Apostolicae Sedis" (ser. 2, n. II) and 
in the decree of Pius IV "Romanum decet Pontificem" (7th of 
Nov., 1562). 



$ For a more detailed account see M. Goeller ; A. Villien in Le Canon- 
iste Contemporain 1915, p. 583. Also Simony in the Christian Church 
by Rev. N. A. Weber, S. M., S. T. D. Green, Indulgences, Sacramental Ab- 
solution and the Tax Tables of the Roman Chancery and Penitentiaria. 



34 THE SACRED PENITENTIARIA AND 

Up to the time of Clement VIII, the Sacred Penitentiaria was 
competent in all things pertaining to indulgences. Clement VII 
instituted a special Congregation for Indulgences, and Clement 
IX in his Bull "In ipsis Pontificatus nostri primordiis" (July 6, 
1669) gave the Congregation its definite shape and form. The 
competencey of this new congregation consisted in "solving all 
doubts and difficulties regarding relics and indulgences," but it 
could give no dogmatic decisions in the matter. In the course 
of time the congregation was endowed with numerous powers 
and privileges. It was reorganized by Clement XJ, 1710. 

By a Motu proprio of Pius X "Quae in Ecdesia" (Jan. 28, 
1904) the Congregation of Indulgences was united with the Con- 
gregation of Rites. In the Constitution "Sapienti consilio" all 
matter pertaining to the doctrine and the use of indulgences, was 
committed to the Holy Office, everything concerning relics was 
transferred to the Congregation of Rites. Benedict XV, by a 
Motu proprio "Alloquentes proxime" (Mar. 25, 1917), suppressed 
the Congregation of the Index and committed its ministries to the 
Holy Office. In order not to burden the Holy Office with too 
much work, all matters concerning the concessions and the use 
of indulgences are again committed to the Sacred Penitentiaria. 
The Holy Father reserved everything concerning the Dogma of 
new prayers and devotions to the Holy Office, "salvo jure S. Officii 
videndi ea quae doctrinam circa novas orationes et devotiones 
respiciunt." 

Hence under the Pope the Sacred Penitentiaria has supreme 
authority in granting indulgences, solving difficulties or answer- 
ing questions regarding them. According to an instruction of the 
S. C. of Indulgences Jan. 28, 1756 (9 n. 205. 371) all general con- 
cessions granted by the Pope were invalid unless a copy of these 
indulgences was sent to said Congregation. 9 The New Code can. 
920 decrees : "Those who have asked the Roman Pontiff for con- 
cessions of indulgences for all the faithful, are obliged, under pain 
of nullity, to send an authentic copy of the granted indulgences 
to the Sacred Penitentiaria." 

"New indulgence, according to canon 919, also those granted 
to Churches of Regulars, which are not promulgated in Rome, 
cannot be published without consulting the Ordinary." "Books 
of indulgences, summaries, pamphlets, leaflets etc. containing 
concessions should not be published without the permission of 



* Decretum S. C. Indulg. April 14, 1856 ; Dec. 15, 1859 ; Norma peccul. 
VII, art. 1 no. 8. 



FACULTIES OF ORDINARIES AND PRIESTS 35 

the Ordinary of the place." An express permission of the Apo- 
stolic See is required to publish in any language authentic col- 
lections of prayers or pius works to which the Apostolic See 
has attached indulgences, or catalogues of Apostolic Indulgences, 
or summaries of indulgegences either previously collected and 
never approved or now for the first time collected from various 
concessians" Can. 1388 par. 1, 2. 

An official publication of indulgences was made by Pope 
Leo XIII in the year 1883 (Decretum authenticum) and contains 
the decisions of the S. C. of Indulgences from the years 1668-1882. 
The work "Raccolta di orazioni e pie opere le quale sono state 
concesse dai Sommi Pontefici le SS. Indulgenze" is authentic and 
enjoys full authority. The last edition appeared in 1898 and is 
prefaced by the decree of the S. C. of Indulgences (July 23, 1898) . 10 

PART III 

Competency of the Sacred Penitentiaria According to the Con- 
stitution "Sapient! Consilio" and the New Code 



M 
U 



The jurisdiction of this tribunal of justice," says the decree 
Sapienti consilio" and the New Code in like terms, "is limited 
solely to those matters, which regard the internal sacramental 
and non-sacramental forum. The power to dispense from matri- 
monial impediments in the external forum having been trans- 
ferred to the Congregation of the discipline of the Sacraments, 
this tribunal grants graces, absolutions, dispensations, commuta- 
tions, ratifications and condonations. It deals also with ques- 
tions of conscience and renders decisions regarding same." 

Canon 258 of the New Code reads practically the same way. 
The second paragraph of this canon adds the new faculties ac- 
quire by the Sacred Tribunal in virtue of the Motu proprio "Al- 
loquentes proxime" (Mar. 25, 1917). It reads; "Moreover it is 
its office to judge about all things that pertain to the use and 
concession of indulgences ; the right of the Holy Office regarding 
dogmatic doctrine about these same indulgences or new prayers 
and devotions remaining intact." 



10 



F. M. Cappello, Curia Rom. Sede plena, pp. 67 sq. ; Noldin, n. 314 sq. ; 
Santi, lib. V p. 35. Boudinhon. Sur l'histoire des indulgences a propos 
d'un livre recent Lea in Revue d'histoire et de litt. relig. Ill 1898; Baum- 
garten, Leo's Historical Writings, N. Y., 1909; Rescripta authentica, by 
Joseph Schneider, Ratisbon 1885. 



36 THE SACRED PENITENTIARIA AND 

We notice at first glance how extensive the powers of the 
Sacred Penitentiaria are in the internal forum. "In a certain 
sense/' writes F. M. Capello, "its faculties are universal regar- 
ding persons, places and even matters to some degree." It 
grants graces, dispenses, and gives decisions from which there 
is no appeal. It has supreme competency because it receives it 
immediately from the Pope himself. 1 

Innocent XII, in his Constitution "Romanus Pontifex" (3 
Non. Sep., 1682), and Clement XII, in his Const. "Apostolatus 
Officium" (Non. Oct., 1732), and lastly Benedict XIV, in the 
Const. "Pastor bonus," catalogued and determined its faculties. 
The Const. "Pastor bonus" remains in full force in all that is not 
at variance with the law of Pius X. Only in extraordinary cases 
the Sacred Penitentiaria is limited in its jurisdiction, but as Bene- 
dict XIV says: "Salva semper Maioris Poenitentiarii facultate 
R. Pontificem consulendi in quibus particularibus casibus etiam 
per praesentes litteras non concessis imo prohibitis, seu reservatis 
et exceptis." 

The sphere of the Sacred Penitentiaria henceforth is the 
internal forum alone. Even here some restrictions must be 
kept in mind. The Sacred Congr. of the Holy Office dispenses 
from the impediments of mixed religion and disparity of wor- 
ship. The Holy Office has exclusive rights in regard to the 
Pauline privilege and deals with all matters which, directly or 
indirectly, concern faith and morals ; it judges heresy and all 
offences that lead to the suspicion of heresy (Capello vol. I. 
pp. 63, 79). 

The Sacred Penitentiaria therefore dispenses in occult case, 
or in other words, it dispenses in all cases that are not of the 
external forum. It absolves not only in occult cases but also in 
public cases, the reason of this important difference is: abso- 
lution belongs to the forum of conscience in which the Sacred 
Tribunal is alone competent. Another distinction is to be noted, 
that in occult cases the Sacred Penitentiaria absolves through the 
aid of the confessor and in public cases only through the inter- 
vention of the Ordinary. 2 

It is important to bear in mind, what is meant by the forum 
of conscience, which is either sacramental or extra-sacramental. 
The Sacred Tribunal is competent in both, either through the or- 
dinary jurisdiction, which it enjoys or the extraordinary faculties, 



1 F. M. Capello, De Curia Rom. Sede Plena. Rome 1911 p. 357. 
'Capello, De Curia Rom. vol. I p. 356. 



FACULTIES OF ORDINARIES AND PRIESTS 37 

which it may easily obtain. The Forum says Ojetti is twofold; 
the ecclesiastical or civil forum. 8 The ecclesiastical forum is 
again subdivided into the external or the internal forum. The 
external forum refers to the public good of the faithful, or in 
other words, is concerned with the whole corporate body of the 
Church. The internal forum regards the private good of the in- 
dividual. The jurisdiction of the internal forum deals therefore 
with questions concerning the welfare of the individual Christians 
and with their relations to God. Hence it is also called the 
forum of conscience. The internal forum is again divided into the 
sacramental or penitential forum and into the extra-penitential 
forum. 

Cases concerning the private and secret needs of the faith- 
ful, can often be expedited outside of the sacramental confession. 
Thus for instance the Sacred Penitentiaria absolves from vows 
and secret censures and dispenses from occult impediments. 
Suarez writes: Guilt requires absolution in the forum of con- 
science (sacramental forum) but penalty and censures can be re- 
moved outside of confession (extra-sacramental forum). "The 
confessor" says Bonacina, "who has the faculty to absolve in the 
tribunal of penance, can absolve outside of sacramental con- 
fession, when the pardon is asked for matters that do not require 
sacramental absolution, unless the words of the rescript demand 
otherwise." 4 

Bearing these distinctions in mind, we proceed to enumerate 
the powers of the Sacred Penitentiaria as contained in the Con- 
stitution "Pastor bonus." 

1. The Sacred Penitentiaria absolves from sins and censures 
any person of any degree or dignity, ecclesiastics or seculars, of 
any order, congregation, society or institute, all regulars or lay- 
persons of either sex. It absolves from every guilt, crime or 
excess no matter how grievous or atrocious, be they public or 
occult, in whatever way they have been perpetrated or com- 
mitted, from all excommunications and suspensions or inter- 
dicts, and from censures and ecclesiastical punishments imposed 
and inflicted for such crimes. 

It absolves not only in cases reserved to the Ordinaries and 
superiors of religious, but also from those reserved in a special 
manner to the Pope and the Holy See and also from those re- 
served by special letters issued yearly on Holy Thursday. A 



•Ojetti, Synopsis Rerum. Forum. 

* Bonacina, De censuris disp. I q. 3, p. 6, -n. 8. 



38 THE SACRED PENITENTIARIA AND 

salutary penance according to the nature of the guilt must be 
always imposed and all that the laws require must be observed. 

It absolves in both forums secular, ecclesiastic and lay-per- 
sons: (1) from censures imposed by law, especially those re- 
served to the Apostolic See, even when individually mentioned; 
(2) from censures inflicted nominatim ab homine : (a) when the 
jurisdiction of the author of the censures has expired ; (b) when 
the absolution is reserved to the Roman Pontiff or the Holy 
See; (c) when the persons censured are legitimately hindered 
to appear before those who censured them or those appointed 
by law. To this norm the constitution adds: "The penitents 
must abide by the decision and satisfy all claims of a third party." 

Pilgrims coming to Rome are absolved from censures to gain 
the indulgences but with the sanction "cum reincidentia" unless 
the necessary conditions have been fulfilled. It absolves from 
occult heresy even when some external acts have been com- 
mitted, provided that they are not public. Public heretics are 
absolved in the forum of conscience when no denunciation of 
occomplices is required. It dispenses from irregularities and 
inhability "ex quocumque delicto et defectu," except voluntary 
homicide and other grave excesses. It absolves secular heretics 
or apostates from irregularity and infamy, when their crime is 
a secret one, and grants them permission to receive Holy Orders 
and accept benefices. It grants homicides, exiled and other crim- 
inals the privilege to join a religious order and make the pro- 
fession, provided they do not receive any Orders during their 
Novitiate. It absolves in occult cases those who fraudulently 
have been promoted to any Orders. Monitis monendis, it ab- 
solves in occult cases those, who have received Orders by com- 
mitting simony conjointly with the bishop. It revalidates the 
titles of benefices which have been obtained by some occult crime 
or vice. 

2. Condonations: The constitution admonishes the Sacred 
Penitentiaria to abstain from condoning simoniacal money taken 
from the Church or the poor, unless the perpetrators are poor 
themselves, in which case all that remains must be returned to 
those, who have been unlawfully deprived thereof. In occult 
cases it condones the fruits received by default, grants faculties 
to condone goods unjustly acquired, if quality or necessity war- 
rants it, otherwise with the clause: to restore to the poor or 
the places despoiled. 



FACULTIES OF ORDINARIES AND PRIESTS 39 

It permits virgins or even non-virgins to enter a monastery 
without an inheritance. It absolves from all oaths, when the 
absolution does not violate the rights of a third party. 

3. Commutations: It dispenses from or commutes simple 
vows even though they be reserved or confirmed by oath. In 
dispensing from the vow of chastity it also grants permission 
to contract matrimony. 

4. Dispensations: It dispenses from or commutes the reci- 
tation of canonical hours. It dispenses the religious from ir- 
regularity incurred "ex defectu vel delicto," either for Orders 
received or those to be received. It grants them privileges, 
permits them to retain their offices or benefices, religious digni- 
ties and the exercise of their rights. This however has no 
general application, when it is question of a public defectus 
natalium. It dispenses religious apostates or fugitives, but only 
after their superiors have been notified and under pain of re- 
lapsing into the same censure, if they do not return. With the 
permission of the superiors, it can allow a religious, for just rea- 
sons, to join a more lenient order. It dispenses nuns from cen- 
sures, defects, punishments and reserved sins, when incurred for 
violating the enclosure. 

5. Matrimonial dispensations: The Sacred Penitentiaria 
dispenses or grants faculties to dispense from the publication of 
banns and from occult impediments, which impede but do not 
annul marriage, even in view of contracting a marriage of con- 
science. These faculties do not include the power of dispensing 
from the impediment of mixed religion or from the proofs of 
being free to marry again. The Tribunal is not competent in 
this matter as we shall see later. 

The constitution exhorts the Tribunal to abstain from grant- 
ing dispensations from any impediment in any degree of con- 
sanguinity or affinity or spiritual relationship, even though the 
impediment be a secret one and the cause of scandal if the dis- 
pensation is not granted. It should also abstain from permitting 
such marriages. The reason for this clause is the public nature 
of the impediments. As to contracted marriages it dispenses 
from the impediments of secret spiritual relationship and public 
4 decency when it is secret. 5 It should abstain from granting dis- 
pensations or revalidations in regard to marriages contracted in 
the first or second degree of consanguinity and affinity, even 
when the impediments are occult, but the dispensation can be 



•Benedict XIV, Inst. eccl. 87, n. II. Feije, n. 606, Cf. Chap. IV. 



40 THE SACRED PENITENTIARIA -AND 

granted when the parties for ten years have been considered 
lawful man and wife. These two faculties just mentioned may 
remain after the New Code has the force of law, but since the 
impediments of affinity and public decency have been changed, 
the faculties regarding these impediments will have to be re- 
modelled. Affinity arising from illicit intercourse has been en- 
tirely abolished and the impediment of public decency has been 
substantially altered as we shall see later. Affinity according 
to the New Code canon 97 arises only from lawful wedlock that 
is, marriage ratum and consummatum or ratum only. We shall 
omit the faculties contained in the Constitution "Pastor bonus" 
relating to affinity ex copula illicita and betrothment since these 
impediments will no longer exist after Pentecost. 

The Tribunal can grant a dispensation, when the parties 
have had intercourse and did not mention the fact in order to 
obtain the dispensation more easily. Since the decree of Pope 
Leo XIII issued by the S. C. S. O. on the 25th of June, 1885 
and 28th of August, 1895, it is no longer necessary for the validity 
of the dispensation to mention the fact of having had intercourse. 
It dispenses from the occult impediment of crime i. e. adultery 
with the promise of marriage both as to marriages contracted 
and to be contracted. When in the impediment of crime both 
parties have participated in homicide, it dispenses only if the 
crime is entirely secret and then only for reasons that are 
weighed and approved in the special congress of the Sacred 
Penitentiaria. All these faculties mentioned extend to the cases, 
where the impediments are multiple and arise from various 
sources. The faculties include the power of legitimating chil- 
dren with the exception of those conceived in sacrilege or adul- 
tery, which require a special rescript of the Pope. Lastly it 
answers all questions, solves all doubts and difficulties concerning 
sins and the penitential forum. 

What was stated at the Council of Vienne in the year 1311 
and in the Constitution "In elegendis" of Pius IV remains in full 
force: the faculties of the Sacred Penitentiaria do not expire 
with the death of the Pope. Benedict XIV says: "We desire 
and decree that the Major Penitentiary (whose faculties during * 
that time do not expire, but are merely not exercised outside of 
the conclave), or his officials, can act and expedite all matters 
concerning the forum of conscience, but absolution is given only 
ad tempus et cum reincidentia. Those who have been absolved 
lust have recourse to the new Pope within a specified time." 



FACULTIES OF ORDINARIES AND PRIESTS 41 

The officials of the Sacred Penitentiaria are not privileged to ex- 
tend the term. 

Pius X in his Constitution "Vacante Sede Apostolica" (Dec. 
25th, 1904, n. 12) decreed the following : "The office of the Major 
Penitentiary does not cease at the death of the Pontiff." 8 "The 
Major Penitentiary can act and exercise his powers during the 
vacancy of the Apostolic See as provided for and defined by 
Benedict XIV in his Constitution "Pastor bonus" (Apr., 1744, par. 
51-55). Hence during the vacancy of the Apostolic See the Sa- 
cred Penitentiaria enjoys almost unlimited powers regarding the 
internal forum. Whenever the welfare of souls so demands, it 
grants absolutions, condonations, dispensations in all matters 
which cannot be postponed till the election of the new Pope. It 
can even absolve from penalties and censure regarding which it 
had no power during the reign of the preceeding Pope. 7 

The absolutions granted under such circumstances however, 
are valid only for the time being with the obligation to have 
recourse to Rome when the new Pope has been elected. Re- 
garding the time when recourse must be had, there is no Specific 
law. Benedict XIV says that the time is to be reckoned ac- 
cording to the distance the petitioners are from Rome. We may 
apply the law here laid down by the S. C. S. O. (June 23, 1886) 
which demands that in all cases in which the confessor absolves 
"cum reincidentia" the petition must be made within a month's 
time. 8 

Benedict XIV in his Constitution grants the Sacred Tribunal 
the widest faculties regarding dispensations but with these limi- 
tations : during the vacancy of the Holy See it can dispense only 
when the common spiritual welfare of souls is concerned; sec- 
ondly that the dispensations be diligently examined in the Signa- 
tura; thirdly that the consent of the Major Penitentiary, re- 
siding at the conclave be obtained and fourthly that recourse be 
had to the new Pope within a month's time after his election. 

For the sake of brevity we have omitted some cases in which 
the Sacred Penitentiaria can likewise dispense and absolve, but 
those given will amply suffice to show what it can do in similar 
circumstances. In consequence of the repeal of the accumulated 
powers held by the Roman Congregations and Tribunals, each 



'Clement V cap. Ne Romani pars. 1 de elect. 1, 3 in Clem; Pius 
IV Const. "In elegendis" par. 9. Clement XII. Const. "Apostolatus Of- 
ficium" par. 15. 

'Cappello, De Curia Rom. vol I p. 115, vol. II p. 85. 

• CapeUo 1. c. vol. II p. 85. 



42 THE SACRED PENITENTIARIA AND 

matter has its appointed place ; nevertheless, in particular cases, 
doubt and error may occur. 9 Under such circumstances it must 
be remembered that: A favor, denied by one Congregation or 
Office of the Roman Curia, cannot be validly granted by another 
Sacred Congregation or Office or local Ordinary with the neces- 
sary powers, without the consent of the S. Congregation or Office 
to which application was first made, the rights of the Sacred 
Penitentiaria remaining intact (can. 43). If it is necessary to 
mention the refusal of one Congregation, when applying to an- 
other, it is certainly more necessary, when a Congregation and 
the Ordinary are concerned. If the Ordinary refuses to grant 
the rescript, the Congregation can validly grant it, even though 
the fact that the favor was rejected by the Ordinary has not 
been mentioned. The Sacred Penitentiaria can grant favors and 
dispensations in the internal forum, when the rescripts have been 
refused by others because, while the refusal is sometimes neces- 
sary for the public welfare, the private good of the individual, 
with which the Sacred Tribunal is concerned, always prevails. 



•Normae pecul. cap. I n. 2. 



CHAPTER IV 

PART I 

"Dummodo sit occultum" 

In granting dispensations the S. Penitentiaria uses the clause 
"dummodo sit occultum." We shall endeavor to show in this 
chapter, what is meant by this term and how far the meaning 
has been changed by the New Code. To decide, what is public 
and what is occult, was not an easy task up to the present time. 
The terms were incumbered by innumberable distinctions, and 
any author, trying to clarify matters, succeeded only in adding 
a new opinion to those already in existence. 

An impediment was either occult in nature or in fact. Occult 
by nature meant an impediment, arising from a defamatory act. 
It was occult in a double sense : materially occult, when the fact 
from which the impediment had its origin, was unknown ; it was 
formally occult and materially public, when the fact was known, 
but people were not aware that such a fact constituted an im- 
pediment. It was simply occult, when it was known to a few, 
strictly occult, when only the confessor and the parties bound 
knew of the impediment. 

It was said that an impediment may be public either in 
nature or in fact, materially public or formally public, strictly 
public or simply public, materially public and formally occult 
or both materially public and formally public. 1 Consanguinity, 
affinity, spiritual relationship, disparity of cult, mixed religion, 
holy Orders, solemn vows, were considered impediments by na- 
ture public even though the fact was not known. The impedi- 
ment of crime could be public in fact (materially public) and 
occult as impediment (formally occult), strictly occult, when 
only the confessor and the parties were aware of it, or simply 
occult, when it was known to a few other prudent and discrete 
persons. 

Ojetti explained the occult in the following manner: "Ac- 
cording to nature and usage of Canon Law, occult is that which 
is opposed to the manifest (pluribus notum) and the notorious 
(quod celari non potest). If the fact could be proved by wit- 



1 Gasparri, no. 260; Telch, Epitome p. 320. 



44 THE SACRED PENITENTIARIA AND 

nesses, but can still be kept secret, it is considered occult/' 2 
Bouix speaking of the practice of the S. Penitentiaria holds the 
same opinion saying: "An impediment can be considered occult 
even though one or two in a community, three or five in a village, 
five or eight in a city are aware of the fact/' 8 D'Annibale gave 
the following rule : "It is a question of fact and hence rests with 
the estimation of the good. It is said to be occult, when so 
few persons know it, that it can justly be assumed that prac- 
tically nobody is aware of it." 4 

So far the practice of the S. Penitentiaria has been to dis- 
pense from impediments occult by nature, even when the impedi- 
ment was known to three, four even as many as ten discrete 
persons, according to the size of the place, and provided there 
was no danger of publicity. 5 St. Alphonsus says : "I know that 
the S. Penitentiaria has dispensed in a certain impediment of 
consanguinity, which was known to about ten persons/' 6 Gas- 
parria adds that the S. Penitentiaria dispensed from an impedi- 
ment known to seven or eight in a city of 9,000 population. 7 

The difficulty became acute, when it was a question of an 
impediment materially public but formally occult. Does the S. 
Penitentiaria include in the clause "dummodo sit occultum," an im- 
pediment when the fact from which the impediment has its origin 
is known, but not that such fact constitutes an impediment? 
Take the case of a woman, who in agreement with another kills 
her husband. The crime is public but it is not known that such 
an act forms a diriment impediment and invalidates the marriage 
with the accomplice. Benedict XIV says: "We have always 
considered it a difficult matter and cannot include it in the num- 
ber of those impediments from which the S. Penitentiaria dis- 
penses under the form "dummodo sit occultum/' If this were 
true," he continues, "then every impediment of crime and affinity, 
from illicit intercourse, even if they were public, could be classed 
among the occult. Experience teaches that all impediments, with 
the exception of consanguinity and affinity arising from licit 
congress, are unknown, not only to the village people, but also 



*Ojetti, Synop. vol. II p. 2779. Sanchez, VIII disp. 34 n. 55; D'Ann. 
Com. in Const. Ap. Sed. n. 234; St. Alph. VI 593; Salmant. Theol. Mor. 
t. XIII c. 4, n. 53. 

' D. Bouix, Tract, de Cur. R. p. 255 ; Plettenberg, Notitia Congr. p. 203. 

4 D'Ann. p. 1, par. 242, note 49; Reiff. App. 46. 

8 Gasparri, n. 260 ; Leitner, p. 410 ; Putzer, p. 29 ; Wernz, n. 613, note 36. 

•Lib. VI no. 1111. 

T Gasparri, no. 260. 



FACULTIES OF ORDINARIES AND PRIESTS 45 

to those living in cities. Finally we can affirm with an oath, 
that in all those years, when we were associated with the S. 
Penitentiaria our vote, written or oral, was always concerning 
an impediment materially public and we never even considered 
an impediment only formally occult." 8 Giraldi, 9 Santi, 10 Ros- 
set 1X and many others, held the same view with Benedict XIV. 

Gasparri maintaines, that the opinion of Benedict XIV was 
confirmed by a response of the S. Penitentiaria. 12 The question 
proposed was the following : "Do the faculties granted ordinarily 
to bishops by the S. Penitentiaria include the power of dispensing 
from the impediment of affinity in the second degree, arising 
from illicit intercourse, when the marriage is shortly to be con- 
tracte and the impediment is only formally occult but materially 
public?" The answer was: "Non comprehendi." 18 

Wernz in speaking of this question, does not decide the con- 
troversy or remove the difficulty. In the question of the impedi- 
ment arising from crime he says : "When the crime is only ma- 
terially public and formally occult, it must be considered public 
and hence would not be included in the clause "dummodo sit 
occultum." 14 

"The crime," says Ojetti, "must be formally occult at least 
in regard to the fact, although it might otherwise be public. If 
for example a person became irregular on account of homicide 
and it is believed that death was caused by accident (materially 
public), or that it was a question of self-defence (formally occult 
errore facti), the case is still an occult one in view of obtaining a 
dispensation." 15 "According to some authors," Ojetti continues, 
"the case can be considered to be occult even when it is known 
that the man was killed through hatred, but it is not known, that 
the perpetrator is thereby irregular." 18 

The New Code canon 1037 reads : "An impediment is said to 
be public, when it can be proved in the external forum, otherwise 
it is occult." This canon is of the greatest importance and re- 
quires some explanation. It is said to be (censetur) implies that 



•Inst. Eccl. 87, n. 39 sq. Gasparri, n, 260. 

•Exp. Iur. Pont. App. II ad lib. IV Decret. n. 3. 

10 App. ad lib. Decret. n. 18. 

M No. 2738. 

"Gasparri, no. 260 note 1. S. Penitentiaria Jan. 31, 1876. 

"Gasparri 1. c 

"Wernz, no. 214 n. 10; no. 619, note 86; no. 640, note 6. 

"De Curia Rom. S. Penitentiaria. 

"Layman, Theol. Mor. I, tit. 5, c. 9, n. 4. D'Ann. 1242, 54. 



46 THE SACRED PENITENTIARIA AND 

even though the impediment is in fact occult, when there is a 
possibility of proof, it must be considered public. When this 
possibility is wanting, the impediment is occult. All the different 
distinctions of public and occult impediments are hereby elimi- 
nated. Consanguinity for instance, affinity, spiritual relationship 
etc. when they admit of no proof, are occult by law. 

This doctrine is not entirely new. Reiffenstuel said: "An 
occult impediment is one, which is entirely secret so that it 
cannot be proved." 17 This is also attested by the practice of the 
S. Penitentiaria. For the purpose of revalidating marriages, the 
Tribunal has dispensed from the impediments of the third and 
fourth degree of consanguinity and of licit affinity in the second 
degree, if this impediment has remained occult for at least ten 
years, and from spiritual relationship. 18 

The definition of public and occult impediment in the New 
Code is the same as that given by Gasparri 19 but with this dis- 
tinction, that in regard to dispensation, Gasparri interpreted the 
occult in the sense of most authors, it is occult even when it is 
known by one or two even ten people, provided there is no danger 
that it will become public. 

This distinction, we believe, can no longer be retained. An 
impediment henceforth must be considered public or occult in 
the sense of the New Code. It is said to be public, when it can 
be proved, and occult when proofs are wanting. The competency 
of the S. Penitentiaria is restricted to the occult impediments 
according to canons 258 and 1047. Other congregations, espe- 
cially the S. C. de S., dispense from the public impediments. 

Can the S. Penitentiaria dispense now from the impediment 
which is materially public but formally occult ? The question ap- 
parently can be answered in the affirmative. A crime according 
to the New Code (can. 2197), is materially occult when it is secret 
as a crime, and formally occult when its imputability is hidden, 
this distinction is not made in reference to impediments. The 
impediment is said to be occult, when it cannot be proved in the 
external forum. We are not allowed to make distinctions, where 
the law does not distinguish. 



"Reiff. App. n. 44; Sanchez, II, disp. 4, n. 40. 

Prosper Fagnanus says : "an occult impediment is one, which can in 
no way be proved. Comm. cap. 7, n. 45 sq. De Cohabit. 

""Pastor bonus" Benedict XIV (Apr. 13, 1744). Inst. Eccl. 87, n. 7 
and 11 Gasparri, no. 331. 

"Gasparri, no. 260. 



FACULTIES OF ORDINARIES AND PRIESTS 47 

On January 29, 1881, the S. C. C. decided in favor of this 
opinion. The New Code in canon 1037 has placed upon it the 
stamp of approval. The reference in the New Code to can. 1037 
corroborates our statement. "Communi iurisprudentia receptum 
est publicum omnino haberi impedimentum quod, licet actu oc- 
cultum sit, quandocumque vulgari et probari potest." 20 The 
clause "dummodo sit occultum" includes therefore an impedi- 
ment materially public but formally occult. Sanchez had the 
true answer to the difficulty. The impediment must be consid- 
ered occult as long as it is not known, that a certain fact con- 
stitutes an impediment. In other words the impediment cannot 
be called public, when it cannot be proved in the external forum, 
since the quality of publicity according to the sense of law is 
wanting. 21 

Bonacina held the true opinion, now confirmed by the Code, 
when he said: "An impediment is said to be occult even when 
the fact is known, but not that such fact constitutes an impedi- 
ment, i. e. when the impediment is not public as an impediment." 22 
Schnitzer has rightly surmised that with the decision of the S. C. 
C. just quoted, the case has been closed. 28 Layman, Rodriguez, 
Reginaldus, St. Alphonsus, D'Annibale, Zitelli, Putzer and others 
have now the approval of the New Code on this matter. Even 
Benedict XIV, who held the opposite opinion, was forced to con- 
fess, that "fere omnes putare satisfied Penitentiaria mandato, 
quo illud iubetur, dummodo sit occultum." 24 

In answer to the question : How can we prove in the external 
forum, that the impediment is public, we refer to that part of 
Canon Law, which treats of proofs in the external forum (can. 
1747). Evidence or notoriety of fact require no proofs. The 
testimony of two witnesses on one and the same point, provided 
that they be above all suspicion and are unshaken in their evi- 
dence, is a sufficient proof. A public instrument or other docu- 
ments, having the force of a public instrument forms adequate 
testimony. The confession of bbth parties, or of one only, when 
corroborated by trustworthy witnesses, constitutes a sufficient 
proof for the existence of the impediment. 



"S. C. C. Mohilovien seu Tiraspolen 9 Iul. 10 Sep. 1881. Act. S. 
Sed. vol. 14, p. 155 and 458. 

* Lib. VIII disp. 24, n. 56. 

"In tract, de leg. disp. 1 quest. 2, n. 2, 7. 
** Schnitzer, p. 225. 

* Inst. 87, par. 42. 



^ 



48 THE SACRED PENITENTIARIA AND 

The S. Penitentiaria dispenses also from an impediment that 
was once public, but by the lapse of time, has become occult. 
Ten years are required to render such an impediment occult. 25 
The S. Tribunal does not dispense from an impediment or crime, 
that has been brought before the court, but when the defendant 
has been absolved even falsely and unjustly, the crime and the 
impediment arising from it are considered to be occult. 26 

PART II 

As a supplement to the preceding, it will be useful to indicate 
the important changes regarding impediments, with which the 
S. Penitentiaria is concerned. Every student of Canon Law and 
Ecclesiastical History knows that the disciplinary rules of the 
Church are adapted to the circumstances of the times. Some 
laws regarding matrimonial impediments enacted in the Lateran 
Council (1215), were mitigated or entirely obrogated by the 
Council of Trent. In the Vatican Council some bishops petitioned 
the Holy See to abolish the diriment impediment of affinity aris- 
ing from illicit intercourse and to limit the impediment of affinity 
from licit intercourse to the first degree. 1 

The New Code has made the following changes: "Affinity 
arises from a valid marriage, be this marriage ratified only, or 
ratified and consummated. It exists only between the husband 
and the blood-relatives of the wife, between the wife and the 
blood-relatives of the husband. It is computed in the following 
manner : Those who are the blood-relatives of the husband, are 
in the same degree and line the blood-relatives of the wife and 
vice versa" (can. 971). Affinity in the direct line invalidates 
marriage in all degrees, in the collateral line to the second de- 
gree inclusive. The impediment becomes multiple; (1) When 
the impediment of* consanguinity from which it arises is multiple ; 
(2) by successive marriages with the blood-relatives of the de- 
ceased wife" (can. 1077). 

The question of licit or illicit intercourse has no longer any 
reference to affinity. It arises from marriage only. What for- 
merly partly constituted the impediment of public decency has 
now been added to affinity. A ratified marriage formerly gave 



"Twenty to thirty years are required for irregularity. Putzer, p. 30; 
Benedict XIV. Instr. 87, n. 4 and 7; Gasparri, no. 260. 

* Sanchez, De Matr. disp. 38, no. 12; Ferraris, Bibliot. under Disp. 
Putzer, p. 30; Zitelli, disp. p. 51. 

1 Martin, collect docum. Con. Vat. p. 162, 190. 



FACULTIES OF ORDINARIES AND PRIESTS 49 

rise to the impediment of public decency, it now gives rise to 
affinity. The impediment of public decency formerly arose from 
betrothment or from a ratified marriage. According to the New 
Code (can. 1078) public decency arises from an invalid marriage, 
be this marriage consummated or not, and from a public or no- 
torious concubinage. It invalidates marriage in the first and 
second degree, between the husband and the blood-relatives of 
the wife and vice versa. 

The Church now, as in the past, relaxes the vigor of her 
laws, when the necessity of the times warrants a change, and 
tightens the bond in conformity with the spirit of the old Roman 
Law, which decreed : "In marriage, not only what is lawful, but 
also what is becoming must always be considered." 2 Illicit inter- 
course no longer constitutes an impediment of affinity, but pub- 
lic or notorious and repeated congfess is now an impediment of 
public decency. 8 

The fact that the New Code has abolished the impediment 
of affinity from illicit intercourse demonstrates that it was an 
impediment, not of the natural law, but of the ecclesiastical law. 
The Church has followed this doctrine in the past, because 
through the S. Penitentiaria, she has frequently dispensed from 
this impediment. 4 

Some authors as Bellarminus, Reiffenstuel, Rosset, Pirhing 
and others claim that affinity from licit intercourse, has its origin 
in the natural law, but the majority of canonists rightly main- 
tains, that it is only an ecclesiastical impediment from which the 
Church can dispense. 5 Examples of dispensations thus granted 
are found in the Council of Epaon (a. 517, can. 30) and in the 
Council of Orleans (Cone. Aurel. Ill a. 538, can. 10), which states 
that marriage contracted in infidelity with the wife of the father 
or the daughter of the wife, are not to be considered void after 
baptism. The S. C. S. O. has decided the question in announcing 
that "there is no doubt that the Pope has the power to grant dis- 
pensation in the first degree of affinity in direct line. Even then, 



1 L. 197, D. L. 17. 

"Leo XIII in the const. "Trans oceanum (Apr. 18, 1897) limited the 
impediments of consanguinity and affinity for the Negroes and Indians 
in Latin America and the Philippines to the second degree. This privi- 
lege is not abolished by the New Code. 

*Gasparri, n. 796; Kernz, n. 430 note 45. 

•Bellarm. De Matr. lib. II. c. XVIII. note 2; Reiff. Lib. IV tit. XIV 
no. 49; Rosset, n. 1956; Pirhing, n. 32. Opponents: Sanchez, VII. disp. 
66. n. 7; Riganti, Reg. Cancel Ap. no. 20; Gonzalez in cap. I. De cons, 
et aff, n. 9; De Justis, lib. II c. VII. n. 54; Schmalzgr. lib. IV. t. XIV n. 
103; Gasparri, n. 792; Wernz, n. 430 n. 45, etc. 



50 THE SACRED PENITENTIARIA AND 

when the impediment arises from licit intercourse, can he allow 
the step-father to marry his step-daughter." 6 

Granted, however, that the Church has this power, does she 
ever make use of it? Canonists generally answer in the nega- 
tive. They base their doctrine, that the Church never dispenses 
from the impediment arising from licit affinity in the first degree 
direct line, on the decisions of the Congregations. 7 The S. C. C. 
(28 May, 1796) emphatically refused to revalidate the marriage 
of a man with his step-daughter, who was a legitimate child from 
a former marriage. 

In late years the Church has mitigated her laws in this mat- 
ter. An interesting case is recorded, where the S. Penitentiaria 
granted a dispensation from the impediment of licit affinity in 
the first degree in direct line. 8 John T. married S., the mother 
of Rebecca, who is an illegitimate child. The mother died and 
John married Rebecca in the year 1907 before the civil magis- 
trate, unaware of the impediment of affinity. It is certain that 
Rebecca is not the daughter of John. To legitimate their child, 
to avoid the scandal of a separation and for the welfare of their 
offspring, they applied for a dispensation. The S. Penitentiaria 
granted the dispensation in the following form : Sacra Poeniten- 
tiaria, mature consideratis peculiaribus adjunctis in casu exposi- 
tis, de speciali et expressa Apostolica Auctoritate, benigne sic 
annuente S. S. Dno. Nro Pio Pp. X, Tibi Dilecto in Christo, Ora- 
torum Ordinario facultatem concedit, si ita sit, super recensitis 
in precibus impedimenentis cum oratoribus benigne dispensandi, 
ad hoc ut ipsi, omissis proclamationibus sed remoto scandalo, 
servatis in reliquis canonicis praesumptionibus, matrimonium 
contrahere in eoque remanere licite ac libere valeant ; prolemque 
sive susceptam sive suscipiendam exinde legitimam declarandi ac 
respective nuntiandi. Contrariis quibuscumque non obstantibus. 
Praesentes autem litterae custodiantur, ut pro qubcumque futuro 
eventu de matrimonii validitate et prolis legitimate constare pos- 
sit. Datum Romae, in Sacra Poenitentiaria, die 2 Dec. 1911. 

This is an extraordinary dispensation and was granted only 
by special permission of the Pope. It is interesting in more than 
one way. When it was proposed to the S. C. de Sacr., the Con- 
gregation refused to grant the dispensation. Although the im- 



•S. C. S. O. Feb. 14, 1727; Sep. 4, 1743; Feb. 20, 1888; Aug. 26, 1891. 

T S. C C. Liege May 28, 1796; S. C. S. O. Feb. 20, 1888; Aug. 26, 1891, in 
collect, S. C. de P. F. n. 1471, 1247. Wernz, n. 438 note 70; Gasparri, n. 796. 

'Vermeersch in Nouv. Rev. Theol. Sep. p. 528; Le Can. Contemp. 
vol. 35, p. 658. 



FACULTIES OF ORDINARIES AND PRIESTS 51 

pediment is formally and by nature public, it was was brought 
before the S. Penitentiaria which, since the reform of the Curia, 
dispenses only from occult impediments and was, by special com- 
mand of the Pope decided by the same. The doctrine therefore 
repeated by canonists in general,, that the Church, though she 
possesses the power to dispense in the impediment of affinity in 
the first degree direct line, does not do so, admits of some excep- 
tions. Our case is an exceptional one, but we must bear in mind, 
that it is nevertheless an actual occurrence, the knowledge of 
which might be useful in similar instances. On the other hand 
we must guard against drawing rash conclusions. Vermeersch 
concludes from this decision, that it is no longer impossible to 
obtain in exceptional cases a dispensation, that the step-father 
may marry the legitimate daughter of his deceased wife. There 
is no essential differnce in the impediment of affinity, he states, 
whether the daughter be lgitimate or illegitimate. A. Bouhinhon, 
in Le Canoniste Contemporain, believes that the conclusion goes 
too far. Even though, he says, there is no difference in the causes 
of the impediment, the juridical effects are not the same. Licit 
and illicit affinity also had the same causes, but the effects in 
law were quite different. Illicit affinity invalidated marriage only 
to the second degree ; occult illicit affinity was removed by a 
dispensation in the forum of conscience ; finally it does not 
exist at all in the civil law and was abolished by the New Code. 
Hence it cannot be denied that the nature of the origin makes a 
great difference not only in regard to law, according to which a 
legitimate child enjoys privileges entirely different from those of 
an illegitimate, but also in regard to obtaining a dispensation. 
We can easily understand, therefore, why the Church would grant 
the dispensation in the one case and would refuse to do so in 
the other. Another dispensation analogous to the one mentioned 
by Vermeersch, was granted by Pope Leo XIII (1894). 9 The 
Church beyond a doubt has the power to dispense from the im- 
pediment of affinity in direct line and can permit a man to marry 
his step-daughter or step-mother, or a woman to marry her 
step-son or step-father even when it is a question of a legitimate 
offspring. But if the Church does dispense, she does so rarely 
and only for very grave reasons. The Church is a kind mother 
and relaxes her laws, when the public welfare is not placed in 
jeopardy, and not even in the most desperate cases should all 
hope be abandoned. 10 



•J. B. Ferreris, Los. Esp. y. el Matr. 1916. no. 628 sq. 
ao Sabetti-Barrett, no. 892. 



CHAPTER V 

The Giver of Matrimonial Dispensations and Causes for Which 

Dispensations May be Granted 

So far we have studied the history, constitution and com- 
petency of the Sacred Tribunal. To make this study practical, 
we shall endeavor to point out ways and means to be employed 
by those, who will be called upon to apply for dispensations. 

Matrimonial dispensations have for their author the Pope, 
the Roman Congregation, the Bishop or Ordinary and the priest. 

Preliminary observations: According to the legislation of 
"Sapienti consilio" the impediments have been divided into minor 
and major impediments. 1 This change is of the greatest im- 
portance, since "dispensations for the minor impediments shall 
be granted for reasonable causes approved by the Holy See; 
under this form they will have the same force as if given in 
virtue of a Motu proprio and with certain knowledge and so will 
not be open to question on the ground either of obreption or 
subreption." 2 The New Code makes this even stronger. In 
Canon 1054 we read : "A dispensation granted for a minor impedi- 
ment is not vitiated either by obreption or subreption even though 
the final cause given in the petition be false." Hence even when 
the determining or final cause is false the dispensation for a 
minor impediment is valid. The Pope, the Congregation or the 
Ordinary act of their own accord and with a presumed knowledge 
of the case as though no dispensation had been asked and hence 
omission of some truth or an assertion of something false, does 
not vitiate the dispensation. In the New Code this division of 
minor and major impediments has been substantially retained 
but some of the minor impediments have been entirely abolished 
as the third degree of affinity and the fourth degree of consan- 
guinity, public decency arising from betrothment or marriage 
ratified. The impediment of crime formerly among the major is 
now classed among the minor impediments. The minor impedi- 
ments according to can. 1042 are the following: 

1. Consanguinity in the third degree collateral line. 

2. Affinity in the second degree collateral line. 



1 Normae pecul. cap. VII art. 3. 
'Normae pecul. no. 21 art. 3. 



FACULTIES OF ORDINARIES AND PRIESTS 53 

3. Public decency in the second degree. 

4. Spiritual relationship. 

5. The impediment of crime arising from adultery with the 
promise of marriage or an attempted civil marriage. 

All other impediments are major impediments. 

This important change was primarily made for the S. Cong, 
of the Sacraments. The question then arose: Can this law be 
extended to the Sacred Penitentiaria and the Ordinary? It was 
quite generally admitted that the competency of the Sacred Peni- 
tentiaria enjoyed the same privileges in the internal forum as the 
Sacred Cong, of the Sacraments in the external forum. 8 The 
other question, whether Bishops or Ordinaries can grant dispen- 
sations "ex motu proprio" gave rise to different opinions. Sanchez 
stated: "It would seem to be more proper that the Ordinary 
grant dispensations motu proprio, because he is better acquainted 
with the circumstances of the case than even the Pope." 4 
Schmalzgrueber, 5 Reiffenstuel, 6 De Smet T and others held the 
same opinion. 

The opinion of these authors has received the sanction of 
the New Code. Rescripts according to can. 36 are not only 
granted by the Apostolic See but by Ordinaries as well. The 
division of impediments into minor and major is a general one 
and enjoys the force of law not only in the S. C. of the Sacra- 
ments but for all who can exercise voluntary jurisdiction. It 
is self-evident that, when a dispensation from a minor impedi- 
ment has been granted, it does not mean that the parties are 
free to marry, when other impediments not mentioned are 
present. A reasonable cause for dispensation is necessary in 
all cases, because it cannot be supposed that dispensation is 
granted at random, but practically it is invariably present when 
the petition is made. 

A just and proportionate cause is always demanded if not for 
the validity, at least for the licitness of a dispensation, when there 
is question of a major impediment. 8 The New Code can. 84 
enacted the following: "No one should dispense from an ec- 



*De Smet, no. 375 note 3; Genicot-Salmant. II p. 715; Capello, p. 375. 

4 Sanchez, lib. VIII disp. 21 no. 48. 

9 Schmalzgrueber, vol. V p. Ill tit. XVI no. 147. 

•Reiffenstuel, App. par. 9 no. 420. 

f De Smet, no. 375 note 3. 

•Cone. Trid. Sess. XXIV cap. 5 de ref. raatr; Sess. XXV cap. 18; 
Instr. S. C. de P. F. May 9, 1877; Suarez,.De Leg. lib. VI cap. 18; Cone. 
Bait. II no 335 Collect. Lace. t. Ill collect. 488. 



54 THE SACRED PENITENTIARIA AND 

clesiastical law without a just and reasonable cause, which cause 
must be in proportion to the gravity of the law from which dis- 
pensation is granted. If an inferior dispenses without such a 
cause, the dispensation is illicit and invalid." 

To dispense from a major impediment licitly, and for an in- 
ferior to do so validly, the following conditions are necessary: 
(1) a true and proportionate cause; (2) existing at the time, 
when the dispensation is granted. To decide whether a cause is 
sufficient, it is necessary to consider the status of the petitioner 
and the nature of the impediment. Formerly, when the parties 
had contracted marriage in bad faith, they lost all rights to leni- 
ency. 9 Today the Church is more lenient and grants dispensa- 
tions not only when one of the parties but even when both 
parties are in bad faith, provided there is a sufficient cause. She 
only demands for licitness, that this circumstance be mentioned 
in the petition. She mitigates her severity to render the legitima- 
tion of the children possible. 10 A graver cause is required for 
some than for others. Not even the Pope can dispense validly 
without a just cause from vows, from solemn profession, from 
the marriage ratified of the faithful or in regard to the Pauline 
privilege, because it is a question of divine law. 11 It is of the 
greatest importance to follow the custom of the Roman Curia 
and consider the causes in the light of equity, decency and ex- 
pediency. Modern authors are continually insisting on this prac- 
tice and persistently advise that the Ordinary for validity follow 
the style of the Curia when dispensing in virtue of delegated 
powers, and for the sake of uniformity when the dispensation is 
granted by ordinary powers. 12 The reason is plain. When the 
Pope by privilege or special faculties grants any one the power 
to dispense from certain impediments, he wishes the delegate 
to conform to his wishes and use the faculties in the same way 
and for the same causes. 18 

The causes for which dispensations are granted, are either 
canonical or non-canonical. Canonical causes are those expressly 
admitted by the Holy See. As many as twenty-eight have been 
enumerated, but most authors reduce the number to sixteen or 



10 

11 



•Cone. Trid. Sess. XXIV cap. 5 de ref. 

Gasparri, no. 348. 

Noldin, I n. 164, 171; Laymann, Theol. mor. T I tr. 4. c. 22. n. 15; 
Telch, p. 357. 

"Wernz, no. 620, note 95. 

M Reiffenstuel lib. Ill tit. 35. no. 77; Putzer, no. 11, 12. 



FACULTIES OF ORDINARIES AND PRIESTS 55 

eighteen. 14 We refer to these different authors for explanation 
of the various causes. 

The Instruction of the S. C. de P. F. (May 9, 1879) after 
enumerating the different causes states: "These are the more 
common and the chief causes which can be alleged for matri- 
monial dispensations." These words indicate, that other non- 
canonical causes can be adduced and approved. The Sacred 
Penitentiaria and the Dataria in the past have repeatedly granted 
dispensations for non-canonical causes. Thus a strong desire on 
the part of the parents in favor of the marriage, when a particular 
benefit could be derived from the union, when the parties ignorant 
of any impediment before marriage, became aware of it im- 
mediately afterwards, were sufficient causes. The S. C. S. O. 
(Aug. 14, 1822) answered in the affirmative, when asked by the 
Apost. Vicar of Bosnia, whether "vesanus amor (a strong affec- 
tion) combined with the danger of contracting civil marriage" 
would be a sufficient cause for a dispensation. 15 

It is the practice of the Holy See to be more lenient in 
granting dispensations when the petitioner is the offspring of an 
illegitimate union, or to one who is physically deformed. It 
grants dispensations more easily to widowers or widows with 
children. A strong purpose of marriage, the good of both parties 
or the parents, public good and the like, under certain circum- 
stances constitute sufficient causes. 16 When graver causes are 
wanting, several minor causes, though insufficient in themselves 
have been admitted by the Holy See, on account of their number. 17 

Rome has frequently granted dispensatione for "certain rea- 
sonable causes," especially to princes and those in high posi- 
tions. Dispensations thus granted were sometimes called "dis- 
pensations sine causa," not because no causes were present, 
but because none were mentioned to avoid danger of defama- 
tion. 18 When there are sufficient honorable causes, dishonorable 
or defamatory causes should not be mentioned, especially, when 
the defamatory causes are occult. 

The second condition for the dispensation in major impedi- 
ments is : The cause must be present at the time, when the dis- 
pensation is granted. Dispensations are granted either in forma 



14 



Gasparri, vol. I, p. 239, ed. Ill ; Wernz, no. 519, vol. IV, ed. II ; Nol- 
din, vol. Ill, no. 630; De Smet, no. 374. 

"Gasparri, no. 366. 

18 Leitner, p. 431 ; Wernz, no. 631. 

"Reiff. App. no. 120; Sanchez, lib. VIII disp. 19, no. 34. 

"Reiff. App. no. 98; Schmalzgr. pars III. tit. XVI no. 135. 



56 THE SACRED PENITENTIARIA AND 

gratiosa or in forma commissoria. When the dispensation is 
granted in forma gratiosa, the cause must be true when the 
dispensation is given ; if granted in forma commissoria, it must 
be true when the dispensation is executed (can. 38). The opin- 
ions formerly differed in this matter. 19 

To omit some truth (subreptio) in the petition, does not ren- 
der the rescript void or invalid, provided everything is expressed, 
which, according to the Style of the Curia, is demanded for 
validity. Neither does a false assertion (obreptio) vitiate the 
rescript, provided the one motive cause alleged, or at least one 
from among the many causes proposed, be true. Obreption or 
subreption in one part of the rescript does not invalidate any 
other part of the rescript that contains more than one favor 
(can. 42). 

A dispensation may be licitly applied for and licitly granted 
when there is doubt about the sufficiency of the cause (can. 84). 
A probably just cause suffices not only for licitly asking a dis- 
pensation, but even for granting it licitly. If in doubt whether 
the dispensation was granted for a just cause, the dispensation 
is valid even though the cause appears less just after it has been 
awarded. This rule can be applied when in doubt, whether the 
dispensation has been asked for or whether it was reasonably 
and validly granted. 20 The application of this rule can be ex- 
tended to the powers enjoyed by delegate and executor. 21 

Summing up, then, we distinguish between minor and major 
impediments. A reasonable cause suffices for a dispensation 
from the minor impediments. Omitting some truth or asserting 
something false does not vitiate the dispensation. 

A true, just and proportionate cause is necessary for the 
dispensation from the major impediments; and, provided such 
cause is mentioned and present, when the dispensation is granted, 
the omission of some truth, ignorance, bad faith or even false- 
hood, though sinful, does not render the dispensation void. The 
penalty for the abuse of dispensations is mentioned in canon 
2361. Any one, who through fraud or trickery has omitted the 
truth or asserted something false in the supplica sent to the 
Apostolic See or the Ordinary, should be punished by his Ordinary 
according to the gravity of the offense. 



19 Reiff. App. n. 221 ; Schmalzgr. lib. IV. t. 16. n. 161. 

80 D'Annibale, I. n. 233. 

* De Justis, disp. matr. 3. c. I. n. 84; St. Alph. Theol. Mor. I. 6. n. 902; 
Sanchez, lib. VIII. disp. 21. n. 25. 



CHAPTER VI 

Dispensations and Absolutions Granted by Ordinaries in Virtue 

of Ordinary Powers 

When the nature of the impediment is known and a sufficient 
cause for the dispensation has been found, the next step in the 
procedure will be to inquire: to whom shall one apply for the 
dispensation ? 

Experience teaches that, notwithstanding the fact that ask- 
ing and granting dispensations are of daily occurence, doubts and 
difficulties are encountered at every turn, because the style and 
practice are not well understood and followed. Dispensations 
are asked which can never be granted, and petitioners are dis- 
suaded from applying when the matter could easily be adjusted. 
Many have recourse to Rome, when the Ordinary could grant the 
necessary powers, or they apply to the S. Penitentiaria in mat- 
ters, where the S. C. de Sacr. or one of the other congregations 
are alone competent. We shall give a brief survey of the theory 
and practice of dispensations in conformity with the New Code. 

When jurisdiction, either ordinary or delegated, is granted 
for the external forum, it is also valid for the internal forum, 
but not vice versa. But jurisdiction granted for the internal 
forum may also be exercised in the internal extra-sacramental 
forum, unless the sacramental forum is indicated. If the forum 
for which jurisdiction has been given is not mentioned, the 
faculties are considered to be granted for both, unless the forum 
is defined by the nature of the case (can. 202). 

When several impediments present themselves, some from 
which the Bishop can dispense, the others reserved to the Pope, 
the Bishop's power is suspended and papal dispensation must be 
obtained first. If however, after papal dispensation has been 
procured, other impediments are discovered from which the 
Bishop can dispense, the Bishop may exercise his faculties (can. 
1050). When application has been made to the Holy See in a 
matter of an impediment from which the Bishop can dispense 
by delegated faculties, the Bishop should not use his powers, 
except in cases of urgent necessity (can. 1048). In an urgent 
case however he can make use of his faculties but he must notify 
the Holy See immediately (can. 204). 



58 THE SACRED PENITENTIARIA AND 

We must bear in mind that there are impediments of the 
natural law and impediments of the ecclesiastical law. Prohibi- 
tive impediments of the natural law are those arising from vows. 
Diriment impediments of the natural law are: error, violence 
and fear, ligamen, impotency, consanguinity certainly in the first 
degree direct line, beyond that probably, in the collateral line in 
the first degree also probably. 1 

The power of the Sovereign Pontiff in dispensing from matri- 
monial impediments extends to all impediments of the ecclesi- 
astical law. This is implied by canon 1040 which reads : None but 
the Roman Pontiff can abrogate prohibitive or diriment impedi- 
ments of the ecclesiastical law, nor can any one derogate or dis- 
pense from them unless he has received such power from common 
law or by special indult of the Apostolic See. 

The reason is apparent. The lawgiver who enacts laws and 
sanctions customs can naturally abrogate them or dispense from 
them for sufficient reasons. He could dispense from them, validly 
even without reason, though not licitly. 2 Vows are of the divine 
law but only conditionally, since the obligations arising from 
them are dependent on the free will of man. The Pope in virtue 
of the powers granted to him by God can free his subjects from 
these obligations for grave reasons. Not even the Pope can dis- 
pense from the divine-natural law, when this law, as for instance, 
impotency, is absolute and independent of the acts of man. 8 

In some ecclesiastical impediments the Pope never dispenses, 
in others he dispenses rarely. He never dispenses from the im- 
pediment of crime, when the murder is public, nor from the Or- 
der of Episcopacy. He seldom dispenses from the impediments 
of affinity in the direct line, Order of the Priesthood or solemn 
profession. Ordinarily the Pope does not dispense from an im- 
pediment doubtful as to the law or as to the fact in the absolute 
natural law. 4 

ORDINARY POWERS OF THE SACRED CONGREGATIONS 

According to the constitution "Sapienti consilio" and the New 
Code the following congregations have each their powers to grant 
dispensations from matrimonial impediments: The S. Peniten- 
tiaria for the internal forum in ecclesiastical impediments, occult 



1 Wernz, no. 612 ; Reiff . App. n. 6 ; Schmalzgr. p. Ill, tit. XIV. n. 65. 

* Schmalzgrueber, p. Ill, tit. XVI, no. 59. 

'Wernz, no. 612; Reiff. App. no. 6. Schmalzgr. p. III. tit. XVI, no. 65; 
Sanchez, lib. VIII. disp. VI. no. 2. Santi, lib. Ill, tit. XXXIV. 13 sq. 

4 S. C. S. O. April 6, 1906; De Smet, no. 350; Wernz, no. 612. 



FACULTIES OF ORDINARIES AND PRIESTS 59 

in the sense pointed out; for the external forum, the S. C. de 
P. F., the S. C. S. O. ; the S. C. for the Affairs of the Religious 
Orders, especially the S. C. of the Discipline of the Sacraments. 
By a Motu proprio of Benedict XV (May 1, 1917) the S. C. for 
the Oriental Church enjoys all faculties, which other Congrega- 
tions have for the churches of the Latin Rite, the jurisdiction of 
the S. C. S. O. remaining intact. 5 For the various powers we 
refer to what has been said. 6 

« 

ORDINARY POWERS OF THE BISHOP 

Only when the secrecy of the confessional is in danger, the 
priest or confessor will be called upon to have recourse directly 
to the Holy See. The easiest and the prober way will be, to 
apply in all other cases to the Bishop, who can dispense and 
absolve either by ordinary or delegated powers in most cases. 
Unless the Bishop has special faculties he cannot grant general 
absolutions or dispensations from irregularity, matrimonial im- 
pediments, solemn vows, reserved vows, or from any other cases 
not reserved by himself personally. 

(a) In virtue of ordinary faculties the Ordinary can dis- 
pense from oaths unless there is question of justice to a third 
party, in which case the Holy See, for grave reasons can alone 
dispense (can. 1320). 

(b) Ordinaries can dispense their subjects, either them- 
selves or through a delegate, from all irregularities, arising from 
an occult crime. They cannot dispense voluntary homicides, 
abortionists (effectu secuto) and their cooporators, and those 
whose cases are before court (can. 990). 

(c) Ordinaries can dispense their subjects and strangers 
within their territory from vows not reserved to the Pope, pro- 
vided there is a just cause and no violation of the rights of 
others (can. 1313). Ordinaries can dispense from the reserved 
vows, viz. perpetual and perfect vow of chastity and the vow of 
joining an Order with solemn vows, when they were made con- 
ditionally and before the completion of the eighteenth year (can. 
1309). They can dispense from these two vows in case of doubt 
or urgent necessity. 7 

(d) Absolution from censure and dispensation from vin- 
dictive punishments, can be granted by him, who has inflicted the 



8 Act. Ap. Sed. vol. no. II, p. 529. 

• Wernz, no. 613; De Smet, no. 351. 

T Reiff. App. n. 13; Schmalzgr. III. it. XVI. n. 117; De Smet, n. 357; 
Canon 81. 



60 THE SACRED PENITENTIARIA AND 

penalty, by his superior, successor or one, who has been entrusted 
with such powers (can. 2236). In occult cases the Ordinary can 
absolve, in person or through a delegate, from all penalties latae 
sententiae of the common law, except from those which are par- 
ticularity or in a special manner reserved to the Holy See (can. 
2237). The Ordinary enjoys additional powers in cases of urgent 
necessity, which are indicated under faculties of confessor. 

PROHIBITIVE IMPEDIMENTS 

The Bishop, by an express (Cone. Trid. sess XXIV c. 1 de 
ref.) or tacit (X c. 2 de eo qui IV 13) concession of law, can 
dispense from all prohibitive impediments excepting those re- 
served to the Holy See or some one superior to the Bishop. 8 The 
Ordinary can now permit the solemn celebration of matrimony 
during the forbidden times (c&n. 1108). When the parents re- 
fuse their consent to a marriage the case must be referred to 
the Ordinary (can. 1034). Unless the Ordinary enjoys delegated 
powers, he cannot dispense from vows reserved to the Pope, 
mixed religion, the prohibition of the Pope, Metropolitan or any 
other superior in case of appeal. 9 Exceptions to this rule are 
made in canon 81 of which we have spoken above. 

DIRIMENT IMPEDIMENTS 

In virtue of his ordinary faculties the Ordinary can dispense 
in the general law of the Church, when recourse to the Holy See 
is difficult and the case is urgent and of such a nature that the 
Holy See would dispense (can. 81). Ordinaries can do nothing 
in regard to the universal law, not even in particular cases, un- 
less the three following conditions conjointly are present: (1) 
difficulty of recourse to Rome ; (2) grave danger in delay ; (3) 
the case is one in which the Church is accustomed to dispense. 

1. The difficulty may be either moral as for instance, danger 
of defamation or incontinency, or physical. About three weeks 
may be considered as necessary for obtaining a dispensation from 
the Holy See. 10 Since the difficulty to have recourse to Rome 
can easily be obviated by writing a letter, poverty, inexperience in 
traveling or the like excuses, have lost their importance and can 
no longer be alleged as excuses. 11 It is not necessary to apply for 



'Wernz, no. 615; De Smet, no. 357; Gasparri, no. 434; Sanchez, disp. 
40, n. 14. 

•Wernz, no. 615; Sanchez, VIII disp. 5, no. 1. 

"Archiv. f. k. Kirchenrecht, 1902, p. 493; De Smet, no. 355. 

S. C. Inq. June 23, 1886; Wernz, 618. 



it 



FACULTIES OF ORDINARIES AND PRIESTS 61 

a dispensation by telegraph, because the Holy See regularily does 
not admit petitions sent by such means. 12 

2. Danger in delay: Which would be the case if, on the 
one hand, the parties could not be seperated without scandal or 
disgrace, and if, on the other hand, there is danger of incontinency. 

3. From which the Pope is aecustomed to dispense: If the 
Pope cannot dispense or does not wish to dispense, the Ordinary 
must abstain from granting the dispensation. 

The Bishop could formerly dispense, when these conditions 
were present, in virtue of a tacit 18 consent of the Pope and in 
character of ordinary powers. Ordinaries can do so now by 
force of law. Formerly the Bishop's power extended only to 
the internal forum, to a consummated marriage, contracted with 
the formalities prescribed by the Church, and when at least one 
of the parties was in good faith. Canon 81 eliminates these con- 
ditions and includes marriages to be contracted. It makes no 
difference, whether the impediment is occult or public or even 
multiple. The law is general and does not exclude the faculty 
of cumnulating. 

Formerly good faith was demanded in at least one of the 
parties. The Council of Trent (sess XIV cap. 5 de ref.) says : "If 
any one shall knowingly presume to contract marriage within the 
forbidden degrees, he shall be separated without hope of obtain- 
ing dispensation." Most authors demanded good faith in at least 
one of the parties, 14 but, by reason of the more indulgent atti- 
tude of the Church, this power seems to include the revalidation 
of marriage contracted in bad faith. 

DISPENSATIONS WHEN THERE IS IMMINENT DANGER OF DEATH 

"When there is imminent danger of death, the Ordinaries, for 
the quieting of conscience and if necessary for the legitimation of 
children, can dispense their subjects everywhere and all those 
living within their territory, from the formalities required for 
the celebration of matrimony and from all impediments, public, 
occult or multiple, of the ecclesiastical law, with the exception 
of the impediments arising from the Order of the Priesthood or 
affinity in direct line, provided the marriage has been consum- 
mated, there be no scandal, and if dispensation is granted from 



Secret. Status Dec. 10, 1891 ; Wernz, no. 618, note 80. 

Wernz, no. 617, note 72. 

Sanchez. II disp. 40, no. 4; Reiff, App. 57 sq.; Schmalzgr. p. Ill, 
tit. XVI no. 81 ; Wernz, no. 618 ; Gasparri, no. 440. 



13 

a* 

14 



62 THE SACRED PENITENTIARIA AND 

disparity of cult or mixed religion, the required conditions have 
been observed" (can. 1043). 

1. "Urgente mortis periculo": Persons in respect of whom 
the Ordinaries have power to dispense are not only the dying 
concubinarii as formerly, but all subjects wherever they may re- 
side and all strangers actually living within the territory. Ac- 
cording to the declaration of the S. C. S. O. (July 1, 1891) they 
can dispense in favor of a dying person, even when the impedi- 
ment directly affects the party in good health and not the sick 
person. As the faculties of Pius X, these ordinary powers apply 
even to those not sick but who are in imminent danger of death, 
provided that they wish to set their conscience right or to legiti- 
mate their children. 16 The canon says "urgente mortis periculo" 
not "articulo," hence one is at liberty to act, when there is grave 
danger of death. 16 Such danger may arise from any source such 
as war etc. 

2. "Ad consulendum eonscientiae" . This would obtain, for 
instance, if the man wished to repair the wrong done to the wo- 
man or to put on end to scandal or in order to remove the cause 
of temptation by marriage. 

3. "Si casus ferat legitimationi prolis." Either this one or 
the preceding cause would be sufficient to grant the dispensation. 

4. "Turn super format, etc." In virtue of this power the 
Ordinaries can dispense from all formalities which are required 
for the celebration of matrimony. The Ordinaries of China peti- 
tioned the Holy See to grant them the faculty to dispense from 
the presence of the parish priest and two witnesses on account of 
the peculiar conditions existing in some places of China. The 
S. C. C. (July 28, 1908) granted the necessary powers. 17 In virtue 
of this canon these faculties in the character of ordinary powers 
are now enjoyed by every Ordinary of the place. 

5. "Turn super omnibus et singulis impedimentis, etc." This 
power extends to all impediments, prohibitive and diriment, not 
merely to the diriment as formerly in virtue of the decree of 
the S. C. C. (Feb. 20, 1888). The impediments may be either 
public or occult or even multiple, hence the power includes the 
faculty of cumulating, as was the case formerly according to 
some authors. 18 Unless however the Ordinary has delegated 



15 "Ne temere" Art. VII. 
*S. C de Sacr. Aug. 16, 1909. 
"Acta S. Sed. XLI 1908, 511. 
"Wernz, no. 617, note 67. 



FACULTIES OF ORDINARIES AND PRIESTS 63 

faculties he cannot grant a "sanatio in radice," since such revalida- 
tion can be granted only by the Apostolic See (can. 1141). 19 

6. "Exceptis impedimentis, etc." The impediments arising 
from the Order of the Priesthood and affinity in direct line are 
not included in these powers. As no distinction is made, affinity 
is understood in every degree.. Apart from these impediments, 
the Ordinaries can dispense from all impediments of ecclesiastical 
law, including the impediment of crime arising from public mur- 
der of the partner, the impediment of solemn vows and of Orders 
below the Priesthood. 

It mentions "form of matrimony" separately because the 
New Code does not class defect of form among the impediments 
proper. Defect of consent, as error, violence and fear or defect 
of form, render the marriage invalid but are not properly called 
diriment impediments. 20 

7. "Remoto scandalo." The means of removing the scandal 
are left to the good judgment of the Ordinary. A declaration 
made by the parties before the priest and witnesses, that they 
are sorry and ask pardon suffices, if the separation of the parties 
"a toro ct mensa" cannot be effected conveniently. Some authors 
required the observance of this clause for the validity and others 
for licitness. 21 Since the reform of the Curia the tendency of the 
Holy See has been to make the formalities easier. In virtue of 
can. 39 this condition is not demanded for the validity of the 
dispensation. Only those conditions must be observed for validity 
of the rescript, which are expressed by "si" "dummodo" or equiv- 
alent terms; others are required for licitness only. 

8. "Praestitis consuetis cautionibus" The Church accord- 
ing to canon 1061 does not dispense from the impediments of 
mixed religion or disparity of cult unless: (1) there be a just 
and grave cause, (2) the non-Catholic party promises to remove 
danger of perversion from the Catholic party and both promise 
the Catholic baptism and education of all children, (3) there be 
moral certainty that these conditions will be fulfilled. These con- 
ditions should as a rule be given in writing. The decree of the 
S. C. S. O. (June 21, 1912) expressly states, that a dispensation 
is null, when it has been "granted in the matter of the impediment 
of disparity of worship, by one having faculties from the Holy 
See, without the exaction, or with the refusal of the precaution- 



** Leitner, p. 491 ; Cf . Formularium S. C. S. O. p. 58 ; Wernz, n. 617, 
note 67. 

*• Wernz, no. 216. 

n De Smet, no. 391, p. 316, vol. II. 



64 THE SACRED PENITENTIARIA AND 

ary conditions." 22 Notwithstanding these precautions, we be- 
lieve that canon 39 just mentioned can be applied here. If the 
Ordinary for no reason dispenses without exacting the conditions, 
the dispensation would be valid but illicit. 

9. "Consummato matrimonio" We believe that canon 39 
applies here also. The condition is required for licitness only, 
not for the validity of the dispensation. When the marriage is 
not consummated, the Ordinary should investigate, whether the 
conditions mentioned in canon 81 are present and make use of his 
ordinary faculties mentioned there, or in a so-called perplexed 
case, apply the faculties granted him for such circumstances. 

The Ordinarii locorum dispense from these same impedi- 
ments and with the same reservations as to scandal, mixed relig- 
ion and disparity of worship, in a so-called perplexed case. A per- 
plexed case is one, in which an impediment is detected, when all 
preparations for marriage have been made and the marriage can- 
not be postponed without probably grave evil to the parties, be- 
fore recourse can be had to the Apostolic See (canon 1044). This 
faculty was formerly accorded to Ordinaries by tacit consent of 
the Holy See and only in regard to occult diriment impediments. 28 
It was stated, that if not even the Major Penitentiary enjoys the 
power to dispense from public impediments, it would certainly 
not be permitted to Ordinaries. 24 Ordinaries now enjoy these 
powers in favor of all their subjects and all those who reside with- 
in their territory. Public impediments are included in this 
faculty and dispensations can be granted even when one or both 
parties are in bad faith. 

"Sine probabili gravis mali periculo" Reasonable belief that 
there is danger of evil consequences suffices. Evil which may 
affect either the body, soul or fortune. To avoid the evils of a 
civil marriage, would be sufficient cause to grant the dispensa- 
tion. The evil consequences need not be certain, probable dan- 
ger of defamation or grave inconvenience, if the impediment were 
made known, suffices to grant the dispensation. 

Canon 1045, 2. Not only do Ordinaries enjoy these powers 
in regard to perplex cases, for marriages to be contracted, but 
even for the revalidation of contracted marriages, provided there 
is danger in delay of having recourse to the Holy See. Authors 
defended the opinion, that an ecclesiastical impediment discovered 
by one of the parties after the marriage had been contracted in 



" Acta Ap. Sed. IV, p. 443. 
"Wernz, no. 618. 



Rosset, no. 2396; Wernz, no. 619, note 85. 



FACULTIES OF ORDINARIES AND PRIESTS 65 

good faith and with all the formalities, ceases, if the other party 
cannot be notified, or revalidation in radice speedily obtained and 
the marriage debt cannot be easily refused. 25 Other authors 
refused to admit that impediments cease in a perplexed case, but 
on account of the extrinsic authority of so many, especially St. 
Alphonsus, permitted the use of it in practice, hoping that the 
Holy See would decide the controversy. The Code favors the 
opinion, which maintains that the impediments do not cease in a 
perplexed case, but grants the most liberal faculties to dispense 
under such circumstances. 26 With the restrictions as to scandal 
and the two impediments mentioned, the Ordinary can dispense 
in all cases provided there is a physical or moral danger in delay 
of having recourse to Rome. The impediments arising from Holy 
Orders of the Priesthood and affinity are the only exceptions. 
Ordinarily the priest, not the Bishop, will have to deal with 
the perplexed case first, we will therefore give a more detailed 
account of the case, when treating of the powers granted to 
priests. (N. B. Forma matr. is excluded here but see, can. 81.) 

POWERS OF ORDINARIES IN REGARD TO DOUBTFUL IMPEDIMENTS 

According to the New Code impediments have their origin 
from certain facts and no reference is had to the person's inten- 
tion. No ignorance of the law which renders a person incapable 
or invalidates an act excuses unless the law makes special pro- 
visions (can. 16). Ignorance excuses no one from incurring a 
diriment impediment, or an irregularity "ex defectu" An irregu- 
larity "ex delicto" can only be contracted, when the act committed 
is a mortal sin (can. 986). 

Ecclesiastical impediments or irregularities that are doubtful 
from a doubt of law, require no dispensation. The rule is "lex 
dubia non obligat"; a doubtful impediment is no impediment. 27 
Laws, even those that render a person inhabilis or invalidate the 
act, when doubtful from a doubt of law are not binding( can. 15). 
This opinion was formerly commonly accepted, but it now enjoys 
the sanction of the Code. Hence matrimony is licit and valid 
even though the Holy See declares afterwards, that the impedi- 
ment is certain. The marriage would be valid in the case where 
the greater probability militates for the existence of the impedi- 



* Lehmkuhl, Theol. mor. t. II ed. II 1910, n. 1054 ; Ballerini Palmieri, 
VI no. 307; Gennari, Consult, moral, can. 2, p. 716; Noldin, III no. 656. 

"Feije, no. 645; Rosset, no. 2400 sq. Wernz, no. 619. 
w Sanchez, VIII disp. 6, n. 18; Schmalzgr. IV tit. XVI, n. 76; Gasparri, 
n. 262. 



66 THE SACRED PENITENTIARIA AND 

ment. The priest is of course admonished to apply to the Or- 
dinary for instruction if time permits. The Ordinary in that 
case does not dispense but simply declares that no impediment 
exists, or if he does dispense, he dispenses only "ad cautelam." 
When the Ordinary thinks that the doubt is not well founded, he 
refers the matter to Rome for an authentic solution. 

An impediment that is doubtful from a doubt of fact, can- 
not be presumed to be non-existent hence requires a dispensa- 
tion. According to the best authors the Bishop formerly en- 
joyed ordinary powers to dispense in the internal forum from 
occult doubtful impediments. 28 This opinion was confirmed by 
a response of the S. C C. (Sep. 8, 1852) and the S. C. Inq. (Aug. 3, 
1873). 29 Canon 15 has removed all vestige of doubt. The Or- 
dinaries can dispense from laws which are doubtful from a doubt 
of fact, providing the laws are such in which the Roman Pontiff 
is accustomed to dispense. In practice the following rules should 
be observed. If the Ordinary is morally certain that there is no 
impediment, he permits the celebration of marriage without dis- 
pensation and, should there be an impediment, it would cease 
according to most authors. 80 Imprudent doubts, rumors or one 
witness, who announces the impediment in a letter, or even when 
the witness makes a deposition and confirms it with an oath but is 
not trustworthy, are not sufficient to prove the existence of an 
impediment, unless the circumstances render the matter really 
probable. 81 If it is probable that an impediment exists, the Or- 
dinary grants a dispensation, at least ad cautelam. In a con- 
tracted marriage, the Ordinary should never proceed to dissolve 
the union, unless he is obsolutely certain that no dispensation is 
possible and the impediment is attested by the sworn testimony 
of trustworthy persons., 82 When the impediment is certain he 
procures a dispensation or a sanatio in radice as the case may be. 83 
The Church rarely dispenses the faithful from doubtful impedi- 
ments of the natural law. She permits marriage for instance, 
when impotency is doubtful, "because it is dangerous to refuse a 
man the right to marriage, when the matter is doubtful." 84 The 



"Wernz, n. 619, note 92; St. Alph. I, n. 194, VI n. 902; Feije, n. 636; 
Gasparri, n. 438; Sanchez, II disp. XL; D'Ann. p. Ill, par. 498, n. 26. 

" Gasparri, n. 438. 

80 Gasparri, n. 265 ; Sanchez, VIII disp. 6, n. 18 ; St. Alph. lib. VI n. 902. 

n Gasparri, 1. c. 

* Gasparri, n. 266. 

83 Sanchez, L. VIII disp. 6, n. 18 ; Gasparri, n. 267. 

* D'Annibale, p. Ill, n. 447, note 42; Gasparri, n. 269. 



FACULTIES OF ORDINARIES AND PRIESTS 67 

S. C. S. O. often has permitted marriage in such cases. Man 
has a perfect right to matrimony, and, unless the existence of 
an impediment before and especially after marriage is certain, 
the natural right of man prevails. 

Canon 15 does not restrict the powers of Ordinaries to occult 
doubtful impediments, hence the opinion of many authors, that 
the ordinary powers extend to doubtful public impediments, is 
now certain. 85 

RULES REGULATING THESE POWERS 

Ordinaries: By a decree of the S. C. Inq. (Feb. 20, 1888) 
Leo XIII determined, what is meant by Ordinary. The New Code 
has not substantially changed anything in this matter. "Unless 
expressly excluded, besides the Roman Pontiff, Ordinaries by law 
are : the residential Bishop for his territory, Abbot and Praelatus 
nullius, their Vicars General, Administrators, Vicar and Prefect 
Apostolic, all those who by law or approved constitutions succeed 
them in office, and for their subjects, the major superior of ex- 
empted clerical Orders. (2) Ordinaries of a place or places are 
all those mentioned with the exception of religious superiors" 
(can. 198). 

When it is difficult to have recourse to Rome, but the diffi- 
culty can be obviated by applying to one who has special faculties, 
for example the papal delegate, the Ordinaries must apply to 
the delegate. 86 

Formerly, when a dispensation had been granted from an 
occult impdiment and the impediment became public afterwards, 
another dispensation for the external forum was necessary. 87 
Gasparri claimed that a new dispensation is only required ad 
cautelam, which opinion was confirmed by a response of the 
S. C. C. (Jan. 28, 1881 ). 88 *Canon 1047 referring to rescripts of 
the S. Penitentiaria says : "Unless the rescript of the S. Peniten- 
tiaria ordains otherwise, a dispensation from an occult impedi- 
ment, granted in the non-sacramntal forum, should be annotated 
in the book, which according to can. 379 must be diligently kept in 
the secret archives of the Curia, and no other dispensation for the 
external forum is necessary, even though the occult impediment 
should become public afterwards. Another dispensation is how- 



85 St. Alph. VI, no. 902; Gennari, p, 244; Wernz, no. 62; Gasparri, 
no. 438. 

35 Wernz, no. 619, note 87. 

w Wernz, no. 618, note 79; Reiff. App. no. 45; Sanchez, II disp. 40, 
no. 11 ; D'Annibale, p. Ill par. 490 no. 26. 

"Gasparri, no. 441. 



68 THE SACRED PENITENTIARIA AND 

ever necessary if the dispensation has been only granted in the 
sacramental forum." "The Ordinaries should follow this practice, 
when granting dispensations and thus avoid many difficulties. 

If the impediment, without being as yet public, is known to 
the Bishop in the external forum, he must refrain from enjoining 
separation and from instituting proceedings against marriage, if 
he knows by secret but legimate testimony that a dispensation 
has been granted in the sacramental forum, for instance, through 
a statement made by the confessor, who with the permission of 
the penitent has informed the Ordinary of the fact. 89 Even, when 
the impediment has become public, the dispensation for the in- 
ternal forum, which is known to have been asked for "must be 
considered as valid in the external forum, and the ecclesiastical 
judge is neither bound nor able to take judicial cognizance of the 
impediment in question, unless it has been brought before him 
in due form of law." 40 

In these ordinary faculties are included the powers to revali- 
date a dispensation obtained from Rome, but invalid on account 
of some occult defect, when the case demands immediate atten- 
tion and no new dispensation can be procured. These faculties 
include the power of cumulating since this faculty is always en- 
joyed by an Ordinary, when he dispenses in virtue of ordinary 
or delegated powers. 41 

These ordinary faculties always include the power of legiti- 
mating the children excepting the adulterine and the sacrilegious, 
which require a special rescript from the Pope. 42 The legitima- 
tion has reference to both the unborn and those already born 
(can. 1051). These faculties also contain the power to absolve 
from censures, if there are any, in order that the dispensation 
may take effect (can. 66, 3). 43 

Voluntary powers, either ordinary or delegated, are not sus- 
pended, when the case has been brought before a superior, dis- 
regarding the inferior. But once the case is brought before the 
superior, the inferior should not interfere, except in urgent cases, 
in which circumstances the superior must be notified (can. 204 
and 1048). Applying this to Ordinaries, canon 1048 states: Or- 
dinaries may not use the powers they may have when a dispensa- 



89 



Feije, De imp. no. 693. De Smet, no. 346. 

40 S. Poenitentiaria July 29, 1891 ; Sabetti-Barrett, no. 919 ed. 22. See 
also canon 202. 

41 Sanchez, lib. II disp. 40, n. 6. Canon 1049. 

°S. Poenitent. July 1, 1859; S. C. Inq. July 8, 1903; Gasparri, n. 471. 
43 S. Poenitent. July 1, 1859; Gasparri, no. 471, ed. 111. 



FACULTIES OF ORDINARIES AND PRIESTS 69 

tion has been asked from the Holy See, except in cases of urgent 
necessity. 

In granting dispensations by ordinary powers it is not abso- 
lutely necessary to follow the style of the Curia, but by far the 
best method to employ. 44 

Ordinary jurisdiction is that, which is attached to the office 
by law (can. 197). Any one, who enjoys ordinary powers, may 
delegate them to others, either totally or in part, unless the law 
expressly forbids this (can. 199). What a person can do of his 
own right, that he can do through others ( Reg. 69). Hence Or- 
dinaries can delegate all those who are free from defects that 
bar the reception of jurisdiction. These defects arise either from 
nature, as deafness, insanity, age etc. or from law, as excom- 
munication (can. 2265), interdict (can. 2275), suspension (2283) 
and infamy (can. 2294) , 45 Ordinary jurisdiction is attached to the 
office itself, hence a mere appointment to a person having 
such jurisdiction joined to it, includes the grant of ordinary 
powers. As it is a favor to the holder of office, it does not cease 
at the death of the giver. Neither is it lost by renunciation, 
privation, removal, translation of the granter (can. 183). It 
ceases however by loss of office and is suspended during the time 
of an appeal in suspensivo (can. 208). 

These powers cannot be exercised by one, who is excom- 
municated, suspended, interdicted or infamous in the sense of the 
canons : 2264, 2275, 2294. Ordinary jurisdiction, or jurisdiction 
granted for all causes, permits of a wide interpretation (can. 200). 

The power of jurisdiction can only be exercised towards sub- 
jects, but unless the law makes special provisions, voluntary 
jurisdiction of which we are speaking, may be exercised in one's 
own favor, or when outside of the territory, or towards subjects 
outside of the territory (can. 201). When granting any powers 
of ordinary jurisdiction to priests or confessors it is well to 
specify them. General commission as "I grant you all faculties 
and jurisdiction that I have" is not sufficient. As a rule the dele- 
gation should be made in writing and the most important faculties 
mentioned to remove all anxiety. 48 



44 S. P. June 2, 1891 ; Putzer, p. 15-38; Gasparri, n. 445; Wernz, n. 620, 
note 95. 

"Tunton, p. 279. 

* Reiff. App. n. 35 ; Schmalzgr. IV, tit. XVI, n. 75 ; Sanchez, II disp. 
40 n. 14. 



CHAPTER VII 

Dispensations and Absolutions Granted by Priests in Virtue of 

Ordinary Powers 

Anterior to the New Code, no priest had ordinary powers to 
dispense either in virtue of his office, presumed or tacit consent 
of the Church, or by custom. This discipline has now been 
changed and we shall indicate in this chapter, what powers are 
enjoyed (1) by parish priests, (2) simple priests and (3) con- 
fessors. 

1. The parish priest, says canon 83, cannot dispense from 
the common, nor the particular law, unless this power has been 
expressly granted him. Such powers have been conceded to him 
in regard to feast-days and fast and abstinence. In particular 
cases and for just reasons he can dispense his subjects, either 
the individual or the family, even outside of his territory and 
strangers within his territory, from the observance of feast-days, 
fast and abstinence or either (can. 1245). 

POWERS IN IMMINENT DANGER OF DEATH 

The parish priest has the same powers that the Ordinaries 
enjoy, when certain circumstances arise and no recourse to the 
Ordinary is possible. Hence he can dispense: (1) Urgente mortis 
periculo. No matter from what cause this danger arises ; (2) ad 
constdendum conscientiae. This condition is fulfilled, when the per- 
son is bound to marry, e. g. because he cannot otherwise remove 
the proximate occasion of sin, or even "when the sickness has 
occasioned his accomplice (or her family) a material loss, which 
according to the law of the country, can be more readily re- 
paired if he leaves a widow behind him, and the case in which a 
marriage would put an end to an inveterate family quarrel or 
prevent a patrimony from being turned to bad use" would be 
sufficient reason to grant the dispensation. 1 

3. "Pro casibus in quibus ne loci quidem Ordinarius adire 
possit." The reason why no delegation can be had, may be danger 
of death or other valid motives, like the safeguard of some 
secrets. The necessary time is wanting even, when telegraphic 
or telephonic communication with the Ordinary is possible, but 



1 Vermeersch, Ne temere, n. 73; Wernz, no. 617; De Smet, n. 369. 



FACULTIES OF ORDINARIES AND PRIESTS 71 

not when an registered letter could be sent and an answer re- 
cived. (4) Turn super forma. The delegated powers granted 
to simple priests by Pius X (Ne temere. art. VII) did not ex- 
plicitly define, whether the parish priest was included. 2 This was 
definitly decided by the decrees of the S. C. de Sacr. (May 14, 
1909, July 29, 1910) where it is stated that parish priests are 
included. 8 It was formerly held that the priest could not dispense 
from the prensence of witnesses, not even in danger of death. 
The code clearly states that parish priests enjoy the faculty to 
dispense from the formalities of matrimony. Hence, when no 
witnesses are to be had, they are not needed and the parish 
priest under these circumstances can assist at a marriage even 
outside of his territory (can. 1044). 

5. 'Turn super omnibus et singulis impedimentis" This 
power embraces either forum and dispensation is granted for 
the external or internal forum according to the nature of the im- 
pediment. In these absolute general terms of the Code the 
power of cumulating is included, because the Church wishes as 
far as possible to provide for the welfare of the dying. 4 The 
dispensation for the external forum should be committed to 
writing. The parish priest is likewise obliged to notify the Or- 
dinary, when a dispensation has been granted in the external 
forum and enter it in the marriage register (can. 1046). What 
has been said regarding the other conditions, scandal, consumma- 
tion of marriage and the necessary promises, must be applied 
here. 

IN CASES OF URGENT NECESSITY 

The parish priest enjoys additional powers by law, when 
everything is in readiness for the nuptials and the marriage can- 
not be postponed without probable grave danger of evil (can. 
1043, 3). With the same conditions and restrictions that bind 
the Ordinary in such cases, the parish priest can dispense from 
all impediments from which the Ordinary can dispense, but in 
occult cases only and provided he cannot apply to the Ordinary, 
or if he did apply, there would be danger of violating a sercet. 

The conditions in regard to scandal, mixed religion and dis- 
parity of worship are the same as above. 



* Ne temere art. VII; Act. I, 448, II, 650; L. Wouters, Com. in Decret. 
Ne temere, p. 73; De Smet, n. 369. 

'Vermeersch, De Relig. Period. V. p. 38 ; Van der Acker, p. 69; Vogt, 
p. 158. Against : L. Wouters, p. 70 ; Ferreres, Les Esp. n. 599 and 617 ; 
Leitner, Lehrbuch, p. 484. 

4 L. Wouters, Ne temere, p. 71. 



1 



72 THE SACRED PENITENTIARIA AND 

"Sed solum pro casibusoccultis." It is quite evident that this 
dause has no reference to a private marriage. Does it mean 
that the parish priest can dispense only from occult impediments? 
If this were true, the parish priest would have no ordinary power 
to dispense from impediments, which can be proved in the ex- 
ternal forum and hence in many cases would find himself de- 
prived of all powers. If for example two expressed their desire 
to contract marriage and just before the celebration the priest 
upon investigation found that they are related but nobody in the 
place knew of the fact, he could not dispense them, if the impedi- 
ment can be proved in the external forum. Even though there 
would be grave danger in delay and it were most difficult to 
have recourse to the Ordinary, the priest could do nothing. The 
difficulty would be still greater, if with the impediment of con- 
sanguinity, one of the parties were bound by the vow of chastity. 
An occult case apparently means one, which does not arouse the 
admiration of the people. The canon cannot mean to exclude a 
public impediment, which is not known by the community be- 
cause it would have to be stated. It is certainly not apparent. 
When speaking of he public impediment, the Code says : "censetur 
publicum," which indicates that it is presumed to be public. We 
cannot assume such presumption here and logically the case is 
occult as long as the people are not aware of an impediment. 

One might object saying: if the priest can dispense from 
occult and public impediments, he has more power than the S. 
Penitentiaria. This objection was formerly raised by Benedict 
XIV against the opinion that the Bishop can dispense from an 
impediment, which is only formally occult. 6 The objection no 
longer holds since the New Code expressly grants such powers 
to Ordinaries. Under conditions which obtain in the perplexed 
case we believe that the priest can also dispense from public im- 
pediments provided the case is an occult one. 

If an occult case means an occult impediment only, why is 
this not mentioned? The Pagella, which the S. Penitentiaria 
grants to Ordinaries and priests expressly states occult impedi- 
ment. Occult impediment was always mentioned in the faculties 
formerly given to Bishops in virtue of tacit consent of the Pope.* 
Canon 1043 makes special reference to occult and public impedi- 
ments and the reason, why canon 1045 reads, "in casibus occultis" 
is no other than this : By law the priest can dispense from the 



8 Wernz, n. 618, note 79 ; Gasparri, n. 440. 
•Wernz, n. 618, 619; Gasparri, 440; Putzer, p. 22. 



FACULTIES OF ORDINARIES AND PRIESTS 73 

same occult and public impediments fgom which the Ordinary 
can dispense, bat only when such dispensations do not arouse 
admiration among the people. When therefore is the case an 
occult case? The doctrine formerly applied to occult impedi- 
ments may be here used to advantage. We must consider the 
number of people, who know of the case, the size of the com- 
munity and especially the quality of the persons, who have knowl- 
edge of the affair. If six in a village, eight or ten in a city are 
aware of the public impediment, but are friends or relatives of 
the parties the case could be considered occult. If on the con- 
trary the quality of the person is such that there is grave danger 
of publicity, the case would have to be considered public and no 
dispensation could be granted by ordinary powers. 1 In the latter 
case it is easy to await the dispensation from the Ordinary with- 
out disgrace or scandal, since the matter is public If the priest 
did dispense, he would rather provoke than avoid scandal. 8 

When the parish priest discovers an impediment just before 
marriage, the first step to take will be, to investigate of what 
nature the impediment is. When this is ascertained and the 
marriage cannot be postponed the following course should be 
persued. We must first bear in mind the distinction between 
impediments of natural law, from which no dispensation is 
granted and those of ecclesiastical law in which the Church dis- 
penses, either with ease, under no circumstance, or seldom. 

1. When there is question of a public impediment from 
which no dispensation is possible and the people are aware of 
this, no priest can lend his assistance in the matter. If the 
public impediment is not known to the people, the parish priest 
may follow the rules laid down below in regard to indispensable 
occult impediments. 

2. A public impediment from which dispensation can be 
granted : When the people know about the impediment the priest 
can do nothing, unless he has faculties to dispense, and he must 
refer the case to the Ordinary. 9 When the case is occult in the 
sense we have explained, the parish priest simply grants the dis- 
pensation, notifies the Ordinary and enters the marriage in the 
marriage register. 



' Putzer, p. 29; Reiff. App. n. 46; Feije, n. 96; St. Alphonsus, lib. VI 
IIII ; Zitelli, disp. p. 90. 

•Reiff. App. n. 43; Schmalzgr. IV Decret. t. XVI, n. 82; De Smet, 
n. 354. 

'Synod, dioces. Albanensis, p. 11, tit. IX no. 13; Gasparri, no. 247. 



74 THE SACRED PENITENTIARIA AND 

3. An occult impediment of the ecclesiastical law, except- 
ing the impediments arising from the Priesthood and affinity in 
direct line : When both parties are in good faith, the parish priest 
will assist at the marriage without disturbing their minds and 
grant the dispensation in virtue of his ordinary powers. If one 
of the parties knows of the impediment and the other does not, 
it is no longer necessary to have recourse to the uncertain re- 
strictions, which demanded the celebration of marriage "sub con- 
ditione," the subsequent obligation to abstain from the nuptial 
congress, and the renewal of consent. The parish priest simply 
dispenses in this case. 

The perplexed case proper consisted in this; One of the 
parties declares to have knowledge of an impediment but cannot 
inform the other without grave inconvenience, or cannot obtain 
a dispensation on that day. Authors generally believed that the 
impediment ceases under such circumstances. 10 In order to show 
due respect for the law canonists generally demanded that re- 
course should be had after the marriage to the Ordinary or the 
S. Penitentiaria to procure a dispensation ad cautelam. Practic- 
ally these difficulties have now disappeared. The parish priest, 
in virtue of ordinary powers, can dispense even when both are 
in bad faith. The priest is obliged however, as in the case of 
imminent danger of death, to notify the Ordinary of any dis- 
pensation granted in the external forum and make a note of it in 
the marriage register (can. 1046). Supposing however the im- 
pediment was purposely concealed by both ? Must we apply the 
rule "nemo ex propria malitia commodum habere debeat"? 11 
They are unworthy to receive the sacrament but it will lie with 
the good judgment of the priest to dispose them and, even if he 
fails, to prevent greater evil, he will not refuse to grant them a 
dispensation. 12 

4. An occult indispensable impediment. As a general rule 
the priest cannot assist at such marriages. If both parties how- 
ever are in good faith, he may sometimes leave them in good 
faith, since no one is obliged to impede material loss, when a 
still greater evil, scandal among the faithful or grave harm, 
would result. Hence according to a probable opinion, when only 



10 



D'Ann. p. Ill, par. 454; Scavini, vol. Ill, n. 903; Gury, vol. II, n. 771 ; 
Roncaglia, De Matr. XXI q. V. c. Iq. 2; Rossett, n. 2403; Gasparri, n. 249; 
Gennari, Cons. vol. I consult. 127 ; St. Alph. lib. VI n. 613 ; Horn. Ap. XVI 
et tract. XVIII n. 8; Praxis confess, n. 8 et 84. 

"Gennari 1. c. n. 8. 

u Gasparri, n. 249. 



FACULTIES OF ORDINARIES AND PRIESTS 75 

one or even when both are in bad faith, the priest can assist at 
such marriages. He must admonish them however, and only in 
extreme cases is he allowed to comply with their wishes. Such 
assistance is not intrinsically wrong because he only assists as 
witness to the invalid and sacrilegious marriage. 18 

What course must the parish priest follow, when this urgent 
need for a dispensation occurs in regard to contracted marriages ? 
According to many authors the impediment ceases under the cir- 
cumstances. 14 The old discipline however required good faith 
in at least one of the parties. In virtue of canon 1045, par. 2, 
the ordinary faculties of the parish priest extend to the revalida- 
tion of contracted marriages providing there is danger in delay 
and recourse to the Ordinary is difficult. 

In occult cases, therefore, the parish priest can dispense 
from all ecclesiastical impediments except those arising from the 
Priesthood or affinity in direct line, under the following condi- 
tions: (1) Subjects he can dispense everywhere, strangers only 
within his territory ; (2) there is no scandal ; (3) the necessary 
promises have been made ; (4) the intervention of the Ordinary 
cannot easily be obtained; (5) there is danger in delay; (6) or 
danger of violating secrets. 

SIMPLE PRIESTS 

An ordinary priest has no power to grant dispensations un- 
less such faculties are especially given to him. The New Code 
endows even simple priests, who have no parochial rights or 
jurisdiction, with various powers. In imminent danger of death, 
every priest in accordance with canon 1098, 2, can validly and 
licitly assist at a marriage provided: (1) the Ordinary, the par- 
ish priest or a delegate cannot be had; (2) the parties wish to 
set their conscience right or legitimate their children. 

Under these conditions any priest can dispense from the 
formalities of marriage i. e. witnesses, when they cannot be pro- 
cured, or from territorial limitations. He can likewise dispense 
from all impediments, occult, public or multiple, except the im- 
pediments arising from the Priesthood or affinity in direct line. 
All that the priest is required to do is to notify the Ordinary 
about the dispensation granted in the external forum and make 
the proper annotations in the marriage register (can. 1046). 
Care must be taken to remove all scandal and to exact the neces- 



M D'Anniabale, p. Ill, par. 462, n. 8. Gasparri, no. 250. 

"Lehmkuhl, Theol. Mor. II n. 826; Ballerini Palmieri, VI, n. 207; 
Noldin, n. 656. 



76 THE SACRED PENITENTIARIA AND 

sary promises, when a dispensation is granted from the impedi- 
ment of mixed religion or disparity of worship. For explanation 
of the various conditions, we refer to what has been said above. 
Canon 1098 says alius sacerdos: Since it does not specify the qual- 
ity of the priest, the marriage is valid and licit before any priest 
whatever, even before one who is suspended or excommunicated 
by name and deprived of all delegation. 15 Any dispensations that 
he may grant are valid and licit. 

In order to contract marriage validly without the presence 
of the priest, it is required : (1) that there be grave inconvenience 
in sending for or in going to the competent priest, i. e., parish 
priest or the delegate : 16 (2) that this state of affairs as prudently 
forseen, will last for a month. 17 Canon 1098 says if another priest 
can be had, he must assist at the marriage, though the marriage 
would be valid with only two witnesses. 

Under these circumstances, when all preparations have been 
made for the marriage, and it cannot be postponed without prob- 
able grave peril of evil, any priest enjoys the same powers that 
the parish priest has, with the conditions and restrictions men- 
tioned. The same powers also extend to contracted marriages. 

These powers which are granted to ordinary priests for mar- 
riages under peculiar circumstances are new and clearly indicate 
how well the Church provides for the welfare of all the faithful. 

CONFESSORS 

a) In regard to dispensations in imminent danger of death 
and when all preparations have been made for the marriage, the 
confessors have the same powers that the parish priest has, with 
this one important exception. According to canon 1044 the con- 
fessor can dispense only in the internal forum, and then only in 
the sacramental forum. Outside of confession the confessor can 
do nothing, but in confession he can grant the dispensations men- 
tioned even though the parties are unworthy to receive absolu- 
tion. As we shall explain later, it is the duty of the confessor to 
try to dispose the penitents or, if possible, to postpone the abso- 
lution and dispensation, but according to a decision of the S. Pen- 



is 

16 



De Smet, n. 68; Vermeersch, Ne temere, n. 74; Wouters, p. 68. 

S. C C July 27, 1908; Ojetti, Anal. eccl. 190, p. 341; De Smet, n. 69. 

"Can. 1098; De Becker, Legislatio Nova. 1908, p. 36; Wouters 1. c. 
p. 75 S. C. de S. Jan. 31, 1916 ; Sabetti-Barrett, ed. 26, n. 912 ; Boudinhon, 
Can. cont. 1910, p. 264; Ferreres, esp. 5 ed. Madrid 1911, n. 806. 



FACULTIES OF ORDINARIES AND PRIESTS 77 

itentiaria, 19 May, 1834, a dispensation can be granted even when 
absolution must be deferred. 18 

The confessor upon the discovery of any public impediment 
in confession must insist that the parties abstain from marriage 
until dispensation has been procured, and furthermore he must 
demand of them to reveal this impediment to their pastor outside 
of confession. If they refuse to comply with this request, abso- 
lution must be refused. If the case is occult, and the parties are 
ignorant of the impediment, the confessor in most cases will do 
well to leave them in good faith. When both or when only one 
of the parties knows that an impediment exists, the confessor 
simply makes use of his ordinary powers and grants the neces- 
sary dispensation. He proceeds the same way in the case of a 
public impediment which is in fact occult. 

When the impediment is an indispensable one or one from 
which no dispensation is granted, as for instance affinity in direct 
line, and the parties are in good faith they may be left in good 
faith, unless grave scandal would follow. If the penitent knows 
that in such cases no dispensation is granted, the confessor must 
tell him that nothing can be done. 19 It is well to remember that 
the parish priest, who is at the same time the confessor, must 
always assist at the marriage, if he knows only from confession 
that the parties are unworthy. 

As the ordinary faculties of the parish priest, under certain 
circumstances, extend to revalidation of contracted marriages, 
so too the law accords the same right to confessors. In occult 
cases, and in the sacramental forum, the confessor can dispense 
from all ecclesiastical impediments from which the Ordinary can 
dispense in such cases, but with the following conditions : (1) his 
parishioners everywhere and strangers within his territory; 
(2) that there be no scandal ; (3) the necessary assurances are 
given ; (4) recourse to the Ordinary is difficult ; (5) there is dan- 
ger in delay ; (6) or danger of violating some secret. No records 
are kept of these dispensations, because they are of no value for 
the external forum. 

b) Absolutions from reserved cases. 

During the time in which the faithful are obliged to make 
their Easter duty, every parish priest is competent to absolve 
from all episcopal reservations. The missionaries enjoy the same 
powers during the time of the mission (can. 899, 3). 



M Gasparri, no. 412. 
"Gasparri, n. 246. 



78 THE SACRED PENITENTIARIA AND 

Every reservation ceases for the sick, who wish to confess 
and cannot leave the house, and for those who go to confession 
as a preparation for marriage. The reservation ceases even when 
the lawful superior has refused the faculty to absolve in a certain 
case, or when in the prudent judgment of the confessor the power 
to absolve cannot be obtained without grave inconvenience on 
the part of the penitent, or when there is danger of violating the 
seal of confession. Reserved cases do not bind when the delin- 
quent has left the territory, even though he went elsewhere for 
the purpose of obtaining absolution (can. 900). The censure, 
however, inflicted "ab homine" bind the penitent everywhere 
(can. 2247, 2). 

c) Absolution from censure. 

Every priest can absolve those who are in danger of death 
from any sins or censures. "It has been piously held by the 
Church of God that there is no reservation in regard to those who 
are in danger of death. In order that none may perish, every 
priest can absolve penitents from any sins or censures." 20 The 
New Code reiterates. the same in these words : Every priest, even 
those not approved to hear confessions, can absolve any penitent 
who is in danger of death from every kind of sin or censure, no 
matter how notorious or reserved, even when another competent 
priest is present (can. 882). There is one exception. Absolution 
of the accomplice (in peccato turpi) is valid when there is danger 
of death, but illicit except in cases of necessity (can. 884). 

All those, who when in danger of death, have been absolved 
from censure, reserved by man or in a special manner by the 
Apostolic See, must after recovery and under pain of relapse, 
have recourse to the one who inflicted the censure, if it is a cen- 
sure "at homine," or to the S. Penitentiaria, the Bishop, or any one 
with faculties, if it is a censure "a iure" (can. 2252). The same 
powers are granted to confessors in cases of urgent necessity. 21 
Any confessor can absolve from reserved cases in the sacramental 
forum under these conditions: (1) that the case be urgent, 
(2) that censures latae sententiae cannot be endured without 
grave danger of scandal, infamy, or (3) that it be difficult for the 
penitent to remain in the state of mortal sin until provision has 
been made by the competent superior. The penitent, under pain 



M Concil. Trid. sess. 14, c. 7. 

"Noldin, n. 431, ed. VI. Powers of confessors to dispense from 
vindictive penalties are similar to these (can. 2290). Ignorance of res- 
ervation (can. 2247) : For special powers of confessors in regard to ir- 
regularities see canon 990. 



FACULTIES OF ORDINARIES AND PRIESTS 79 

of relapse, must take upon himself the obligation to have recourse 
within a month by letter, or through the confessor if possible 
without grave inconvenience, to the S. Penitentiaria, Bishop, or 
another superior having faculties, by whose decisions he must 
abide (can. 2254). 

To avoid these obligations, the penitent may choose another 
confessor, who has the necessary faculties, confess his sins, at 
least the crime to which the censure is attached and follow his 
commands (can. 2254, 2). If in an extraordinary case approach 
to the superior is morally impossible, the confessor can grant 
absolution without imposing the obligation to have recourse, ex- 
cepting the censure attached to the crime of absolving an accom- 
plice (can. 2254, 3). The confessor must not omit to enjoin all 
that is rejuired by law, impose a salutary penance and satisfac- 
tion for the censure. The penitent is also warned that unless he 
fulfills the penance and gives satisfaction within the limited time, 
he relapses into the same censure, (can. 2254, 3). 



CHAPTER VIII 

Dispensations and Absolutions Granted in Virtue of Delegated 

Faculties 

Besides the ordinary powers, which we have treated, Or- 
dinaries have delegated powers varying with the extent of the 
faculties granted them by favor of the Holy See. It will suffice 
merely to indicate the most important ones, because the changes 
of the New Code make a total or partial remodelling of the dif- 
ferent formulas imperative. 

They are divided into ordinary and extraordinary faculties. 
The ordinary faculties are distinguished with Roman numerals 
e. g. Form I, Form II, the extraordinary faculties with capital 
letters, Form C. F. E. The grant of ordinary faculties varies in 
different countries ; that of the extraordinary faculties depends 
upon the need. In England and Scotland the Bishops have Form 
II, in Ireland F. VI, in U. S. and Canada F. I. and T. 1 According 
to Normae pec. (c. VII art. VI n. 3) they can no longer be 
granted by the S. C. P. F. except to those countries and peoples 
under its direct jurisdiction, but they have been temporarily re- 
newed and prolonged by the Cong, of the Consistory and are still 
in force. 

The Congregation of the Discipline of the Sacraments also 
grants quinquennial faculties. They relate both to contracted 
marriages and marriages to be contracted and include the faculty 
of cumulating. 2 The Holy Office bestows its faculties to dispense 
from the impediments of mixed religion and disparity of worship 
for a limited number of cases or for a definite period. 

The faculties mentioned are chiefly for the external forum. 
The S. Penitentiaria gives quinquennial faculties for the internal 
forum, to dispense from various impediemnts and to absolve 
from numerous censures. 8 

EXPLANATION OF POWERS 

Delegated faculties granted either in perpetuum, for a defi- 
nite time or for a certain number of cases, are considered to be 



1 Taunton, p. 522. 

* Bargilliat, p. 476, n. 584 ed. 30. 

"Bargilliat, n. 487; F. Capello, De Cur. Ro. Pustet, 1911, p. 363. 



FACULTIES OF ORDINARIES AND PRIESTS 81 

privileges "praetcr juf (can. 66) and hence admit a wide inter- 
pretation, but all expansive or arbitrary explanation is prohibited. 
Canon 200 says: ordinary jurisdiction and jurisdiction for the 
universality of cases can be interpreted widely all other jurisdic- 
tion must be taken strictly. When there is question of a dispensa- 
tion according to canon 50, or a single case, strict interpretation 
is always demanded (can. 85). Hence nothing more can be in- 
ferred from them except that which the faculties explicitly or im- 
plicitly contain. They do include those powers however, which 
are necessary for the exercise of the faculties (can. 66). The 
faculty to dispense includes the power to absolve from censure 
but only in order that the dispensation may take effect. 4 A 
faculty to dispense, when a marriage is to be contracted, cannot 
be used for a marriage already contracted. Faculties to dispense 
in favor of converts, cannot be extended to Catholics. 5 Whoso- 
ever claims that he has faculties to dispense, has the obligation 
to prove his claim in case of doubt (can. 200). 

The general faculty, not that for a particular case, to dis- 
pense from diriment impediments, includes ipso facto the power 
of legitimating the children, excepting the sacrilegious and adul- 
terine. 6 The dispensation granted for the impediment of affinity 
does not extend to the impediment of public decency, since ac- 
cording to the Code, there is no connection between the two. 1 
When the indult contains no restrictive clauses, dispensation can 
be granted even though both parties have the same impediment, 
or the impediment, arising from various cause, is multiple. 8 

The faculty of cumulating gave rise to many difficulties in 
the past. It was not necessary in the following cases : (1) When 
an impediment public by its nature, occurred simultaneously with 
another impediment occult or of the internal forum." 9 (2) When 
several occult impediments were present. 10 (3) When the de- 
grees were multiple. " 

When the Ordinary dispensed in virtue of delegated powers, 
he could not dispense the same person from various public im- 
pediments, unless he had expressly obtained such faculties from 



* Gasparri, n. 471 ; can. 200. 

• Wcrnz, n. 621, note 101. 

•S. P. July 1, 1859; S. C O. July 8, 1903; Gasparri, 471; can. 1051. 

f Wcrnz, n. 622 ; Gasparri, n. 465 ; Can. 97, 1078. 

•Wcrnz, n. 622; Gasparri, n. 465; Can. 1049. 

•S. C S. O. 31 mar. 1872; Aug. 18, 1897. 

" Sanchez, L. II D. 40. no. 6 ; Gcnarri, Cons. 12, cons. 107, n. 7. 

u S. Pcnitcntiaria Apr. 20, 1883 ; Gasparri, n. 465. 



82 THE SACRED PENITENTIARIA AND 

the Apostolic See. 12 The faculty of cumulating was always re- 
quired, when a diriment impediment occurred with a prohibitive 
impediment reserved to the Pope. 18 Gasparri 14 plainly states 
that, according to various decisions of the S. Penitentiaria, Prop- 
aganda and the Holy Office, the faculty of cumulating must be 
especially mentioned, if it should comprehend several impedi- 
ments in the same case. The faculty of cumulating could not 
be used in conjunction with the power of revalidating marriages 
in radice. A special concession from the Holy See was required 
for this. 15 

All this, excepting the power of revalidating "in radice," has 
only historical value now. The Code (can. 1049) says : Any one 
who has a general indult to dispense from various kinds of im- 
pediments, either diriment or prohibitive, can dispense from these 
impediments, even public impediments, when they occur in the 
same case. 

DELEGATION AND SUBDELEGATION 

Formerly the question was agitated; can a delegate sub- 
delegate his powers, when no such express permission is given? 16 
The S. C. S. O. (Dec. 17, 1898) to the question: "Can a Bishop 
without special permission subdelegate to his V. G. or to other 
ecclesiastics, generally, or at least in a particular case, the tem- 
porary powers delegated to him by the Holy See"? replied 
"affirmative* 9 provided this is not forbidden in the indult, and the 
faculty of subdelegating is not there restricted to certain per- 
sons only, for in that case the tenor of the rescript must be 
strictly observed." The discipline has not been altered very 
much by the New Code. The Bishops are the executors of the 
papal rescripts and therefore enjoy full powers of subdelegation 
(can. 57). 

The power of ordinary or delegated jurisdiction can be sub- 
delegated either for a particular case or habitually, unless the 
power is restricted to a certain person or subdelegation is pro- 
hibited. The power of jurisdiction for the universality of cases 
can be subdelegated for particular cases (can. 199). Those who 
are delegated by the Holy See can subdelegate others habitually 
or for a particular instance, unless they be appointed to deal with 



U S. C. S. O. May 18, 1869; July 2, 1884; S. Penitent. Jan. 18, 1883. 
M S. C S. O. Sep. 12, 1888 ; Aug. 18, 1879 ; Wernz n. 622, note 108. 

Gasparri, n. 465. 

Wernz, 622; Gasparri, 467. 
16 Wernz, n. 622, note 104; Gasparri, n. 448, 1132; Sanchez, lib. Ill D.31. 



14 
IS 



FACULTIES OF ORDINARIES AND PRIESTS 83 

matters personally or subdelegation be prohibited (can. 199). 
Preparatory acts may always be committed to another, even 
when subdelegation is prohibited e. g. verifying facts in a case. 
Formerly when faculties were granted to Bishops the V. G. could 
not use the faculties unless the Bishop delegated him. Now the 
V. G. is implicitly included, when the Holy See grants faculties 
to the Bishop (can. 66). A subdelegate has no power to delegate 
unless especially permitted to do so (can. 199). 

All those, who are worthy and capable of ecclesiastical juris- 
diction can be chosen as delegates. 17 We have mentioned the 
requisites, when speaking of the ordinary powers. The faculties 
granted by the S. Penitentiaria can be subdelegated ; "to the 
Canon Penitentiary and the Deans for the forum of conscience 
and in confession alone, but habitually if so desired; to other 
confessors, when they apply in a particular case or even for a 
definite term." 18 

The so-called Propaganda faculties can be subdelegated 
wholly or in part as the case may be and the rescripts indicate. 
Unless the nature of the case demands it or the law makes other 
provisions, voluntary jurisdiction may be exercised in one's own 
interest. A delegate having faculties to dispense, can make use 
of this power to dispense himself. He may exercise his power 
even outside of his territory in favor of those within his domain. 
Subjects of the delegate, who are outside of their territory are 
not excluded from the scope of voluntary jurisdiction (can. 201). 
Delegates who exceed their powers in regard to persons or mat- 
ters, render the faculties null and void for that particular case. 
The delegate is free however to employ his own method of pro- 
cedure unless the method is prescribed also (can. 203). 

Delegated faculties cannot be extended to different terri- 
tories or forums, to a larger number of cases or impediments. 
They are void after the time limit has elapsed unless this is 
especially permitted. Thus the "Pagella" of the S. Penitentiaria 
ratifies all absolutions and dispensations which are granted 
through forgetfulness or inadvertance, when the time limit al- 
lotted by the faculties has expired. 19 The New Code (can. 207, 2) 
applies this rule to the internal forum in general, stating : When 
there is question of powers for the internal forum, the concession 
granted by inattention, after the limited period has elapsed or 
the number of cases in exhausted, is valid. 



IT 
IS 
1» 



X. cap. 2, De judic. Cap. 41 De off. deleg. Bargilliat, no. 238. 
Pagella S. Penitent. Introduction. 
Pagella S. Penitent, in fine. 



84 THE SACRED PENITENTIARIA AND 

Faculties which the Holy See habitually grants to Bishops 
or Ordinaries are not suspended nor do they cease at their death 
or cessation of office but pass to their successors. 20 Hence at 
the death of the Bishop the faculties pass to the Vicar Capitular 
or the Administrator and then to the new Bishop even in a case 
of "res non integral 

Delegated faculties cease : by the completion of the business, 
by lapse of a fixed period, when the limited number of cases has 
been exhausted, by cessation of the final cause, by revocation of 
the delegator made known to the delegate, by renunciation of the 
delegate made known and accepted by the delegator. 21 It does 
not cease by cessation of office of the delegator unless the rescript 
contains a special clause to that effect or unless the rescript is 
given in favor of particular persons mentioned and the "res is 
adhuc integra" (can. 207). An exception to this canon has been 
mentioned namely: an inadvertent act placed in the internal 
forum, when the time limit has elapsed or the number of cases 
has been exhausted, is valid. The rule given by the canon 209 de- 
serves special mention. The Church supplies the jurisdiction 
both for the external and the internal forum, when there is 
question of common error or a positive and probable doubt as to 
the law or fact. The Church does not encourage culpable igno- 
rance or negligence, but in her solicitude for the welfare of 
souls, she relaxes her laws and remedies the defects of human 
frailty. 



" S. C. S. O. Feb. 20, 1888, Nov. 24, 1897. 

M Cap. 7, de procurator, in 6to ; Bargilliat, no. 425 sq. ; Gasparri, n. 
429; Wernz, n. 622; Cf. ex gr. cap, ult. De Rescriptis in 6to. 



CHAPTER IX 

How to Apply f or Dispensations 

It is the sacred duty of the clergy to know how to answer 
questions of conscience and solve difficulties relating to the wel- 
fare of souls. The confessor must be acquainted at least in a 
general way with the S. Penitentiaria and be able to judge, in 

which cases this Sacred Tribunal is competent to act and how 
to apply for favors. The parish priest will be called upon to act 
in many cases and hence will do well to learn how to expedite 
matters to the satisfaction of all concerned. 

Formulas for absolutions, commutations, condonations are 
found in numerous authors and need not be mentioned here. 1 
With regard to matrimonial dispensations, matters are more 
complicated and require a closer study. The first step to take will 
be to investigate to what forum the impediment belongs. When 
this has been ascertained according to the rules we have pointed 
out, the parish priest or the simple priest takes up the matter 
for the external forum, the confessor looks to the forum of con- 
science. When priests or confessors find that they have no fac- 
ulties to dispense in a particular case, they may direct the peti- 
tioner to apply elsewhere, but when this is not practical, the 
zealous priest will not refuse to lend his assistance. 

In cases of imminent danger of death or urgent necessity the 
priest will not hesitate to make use of the extensive faculties 
granted him by the New Code as pointed out above. When the 
parish priest or confessor discovers an impediment which does 
not demand immediate solution, they must first investigate the 
nature of it and the causes for dispensation. If the impediment 
is such that the Holy See alone is competent in the matter, the 
priest and confessor will do well to inform themselves to whom 
application must be made. The S. C. de Sacram. dispenses from 
public impediments, the S. Penitentiaria from the occult, the S. C. 
S. O. from those concerning faith, the S. C. de P. F. from all 
impediments for her subjects, the S. C. Reg. from the vow of 
chastity taken in religion, and the S. C. Eccl. Oriental, for the 
Orientals. 



Wapello, De Cur. Rom. Pustet 1913. 



86 THE SACRED PENITENTIARIA AND 

GENERAL RULE 

The confessor or parish priest either for the external or for 
the internal forum should apply directly to the Ordinary, since 
the Holy See generally receives petitions and grants favor 
through the agency of the Ordinary. For the internal forum 
recourse is sometimes had to the Holy See through the agency 
of the confessor. The confessor is invariably called upon to 
apply in the name of the petitioners, when the secrecy of the 
confession demands this, but when this is not the case the best 
method will be to send the letter to the Ordinary, who will draw 
up the supplica and forward it to Rome if necessary. 

As a rule the faithful do not apply for dispensations them- 
selves, though they are authorized to do so. Before the consti- 
tution "Sapienti consilio" private persons could not apply to the 
S. Congregation except to the S. Penitentiaria. Even Bishops 
were obliged to employ an agent. Today the rule is that all 
the faithful have free recourse to the Holy See and only special 
grants must be accompanied by commendatory letters of the 
Ordinary. 2 Even a third party may ask for the dispensation 
without the knowledge of the parties affected by the impediment. 
The dispensation would be valid before the acceptance but of 
course could not be granted against the will of the recipient. 3 

Ordinaries are under no obligation to employ agents but are 
free to do so. If the Ordinary employs a permanent agent or 
procurator in Rome, the agent for the legitimate exercise of his 
office must have his name inscribed in the official catalogue of 
procurators. This is not necessary when the agent is engaged 
for a particular case only. 4 

Language : Since the Constitution "Sapienti consilio," Latin, 
Italian, French, English, Spanish, German, Portuguese can be 
used in drawing up the supplica. Latin being the language of the 
Church is especially recommended, but the others may be em- 
ployed. 5 Recourse to the S. Penitentiaria is even easier. Any 
language either those mentioned or any modern tongue may be 
used, only when the petitioners write in their own language, they 
should employ the Latin characters. 6 Everybody, lay or ecclesi- 
astical, men or women, in person or through the agency of others, 



* Capello, vol. I, p. 43. 

"Canon 37; Gasparri, n. 378. 

4 Normae com. cap. X n. 1; cap. IX n. 1, 3; Sabetti-Barrett, n. 926,946. 

•Norm. pec. Vi. n. 5; S. C. de P. F. May 18, 1896. 

6 Capello, p. 359, vol. I ; S. C. de P. F. Sep. 29, 1868. 



FACULTIES OF ORDINARIES AND PRIESTS 87 

may write and apply to the S. Penitentiaria. Only those who 
are excommunicated, suspended or interdicted after a declaratory 
or condemnatory sentence, cannot validly obtain rescripts unless 
the clause of absolution is attached to the grant. 7 

If the confessor in writing to Rome does employ an agent, 
the following monitum of the S. Penitentiaria must be strictly 
observed : "Ceterum si opera alicuius procuratoris in alma Urbe 
uti velint, litteras obsignatas praelaudato Cardinali Poenitentiario 
Maiori tradendas suppressis nomnibus ad ipsum procuratorem 
transmittere quidem poterunt, ast memoratos casus S. Poeniten- 
tiariae proponendos nunquam aut nullimodo narrare seu mani- 
festare audeant." 8 

What method must be followed, when a dispensation is to be 
obtained from two impediments the one public the other occult? 

When two impediments, the one public the other occult, occur 
in the same case, it is important to know how to proceed. Two 
petitions or supplica must be drawn up, one for the external 
forum, another for the internal forum. They are then sent to 
the S. C. de Sacram. and the S. Penitentiaria respectively. 9 The 
S. Penitentiaria dispenses only from occult impediments and the 
dispensation from occult impediments, granted in the sacramental 
forum, is of no value in the external forum though the marriage 
is valid. Bargilliat states : "if an occult impediment from which 
the S. Penitentiaria has dispensed, becomes public, another dis- 
pensation must be applied for in the S. C. de Sacram. for the 
external forum, otherwise the children of such marriages would 
be reputed illegitimate, though the marriage would be valid in 
the forum of conscience. 10 This is only partly true now since 
canon 1047 referring to rescripts of the S. Penitentiaria states: 
"Unless the rescript of the S. Penitentiaria ordains otherwise, a 
dispensation from an occult impediment, granted in the non- 
sacramental forum, should be annotated in the book, which ac- 
cording to can. 379 must be diligently kept in the secret archives 
of the Curia, and no other dispensation for the external forum is 
necessary, even though the occult impediment should become 
public afterwards. Another dispensation is however necessary, 
if the dispensation has been granted only in the sacramental 
forum." 



T Canons 2275, 2265, 2283. 

8 Act. S. Sed. vol. VII, p. 208 ; Wernz, n. 632, note 163. 

•Gasparri, no. 31. 

a0 Bargilliat, ed. 30, no. 438, b. 



88 THE SACRED PENITENTIARIA AND 

The discipline of the Church requires that all impediments 
should be named and removed at the same time. To mention 
the occult impediment however in the external forum, would 
injure the reputation of the penitent, and on the other hand a 
public impediment cannot be removed in the internal forum. 
This is one of the reasons, why a dispensation is asked from 
the public impediment in the external forum, but it is secretly 
null because of the occult impediment. Other reasons are : the 
more impediments there are in a case, the more difficult it is 
to obtain dispensation and when a dispensation is granted the 
clause "si alvud non obstat" is always understood. 11 When there- 
fore the dispensation from the occult impediment is granted in 
the internal forum, the dispensation of the external forum for 
the public impediment is revalidated provided it has been men- 
tioned in the internal forum. In other words the S. Penitentiaria 
really grants the dispensation from both impediments and the 
other Congregation merely provides proofs for the external 
forum. 12 

Hence the public impediment is named and all the particulars 
for the external forum in this forum, but nothing is mentioned 
regarding the occult impediment. In the second petition, which 
is sent to the S. Penitentiaria mention is made at once of the 
occult impediment and of the public impediment, signifying that 
a dispensation has been granted or asked for from this latter 
in the external forum. Is it allowed to apply to the S. Peniten- 
tiaria first and to the S. C. de Sacram. afterwards? According 
to some authors this is permitted. 18 But they also mention that, 
when this is done, the dispensation from the occult is not granted 
until the public impediment has been removed and hence prac- 
tically coincide with our opinion. 

In whose name is the petition drawn up? 

In the name of both parties, when they are both Catholics, 
only in the name of the Catholic party if the other is not a 
Catholic. In the name of one alone if the impediment affects one 
or if being common to both, it arises from the delinquency 
of one. 14 



"Reiff. App. no. 152; Sanchez, lib. VIII. disp. 23, n. 2; Schmalzgr. 
L. IV, n. 176. 

Dc Smet, n. 384; Gasparri, n. 246; Wernz, n. 633; Ojetti, Syn. 2383. 

Gasparri, n. 346; Gutier, c. 123; Sanchez, L. VIII d. 23, n. 7; 
Schmalzgr. lib. IV tit. XVI n. 176. 

14 Sabetti-Barrett, n. 925; Wernz, n. 632, note 160. 



u 

IS 



FACULTIES OF ORDINARIES AND PRIESTS 89 

THE FORM OF THE SUPPLICA 

Formerly according to the Instruction of the S. C. de P. F. 
(May 9, 1877) : "if even unwittingly the truth was concealed or a 
false statement made, the dispensation was void." There are 
two exceptions to this rule. Any rescript which has the clause 
"Motu proprio" attached is valid even if the whole truth is not 
told, providing that at least one of the final causes be true (can. 
45). The second exception mentioned in canon 1054 has reference 
to minor impediments. The dispensation granted for minor im- 
pediments is not vitiated by the omission of truth or the asser- 
tion of falsehood and is valid even though the final cause be false. 

The petition is addressed: "All Eminentissimo Cardinale 
Penitenziere Magiore — Palazzo del S. Officio — Roma. The head- 
ing of the letter is : Beatissime Pater or Eminentissime Princeps 
or Eminentissime Domine. 

The letter contains three parts : the impediments, the causes 
for dispensation and the request or petition for dispensation. 

1. In the supplica directed to the S. Penitentiaria, every- 
thing likely to make known the identity of the petitioners must 
be omitted. The names must be replaced by fictitious names such 
as Titius etc. 

2. To mention the age and the condition of the petitioners 
or their religion is not required for validity. 

3. When the confessor writes directly to the S. Peniten- 
tiaria for a dispensation in the forum of conscience only, there 
is no obligation to mention the diocese. 

4. The exact species of the impediment : Whether it is con- 
sanguinity or affinity, public decency from an invalid marriage or 
notorious concubinage ; for the impediment of crime, whether it 
arises from conjugicide with promise of marriage, from con- 
judicide with adultery or merely from adultery with the promise 
of marriage. Exact species : e. g. in the impediment of the vow 
of chastity it must be stated, whether it is perpetual chastity, or 
a vow of entering an order, or not to marry. 15 

Error in the species formerly invalidated the dispensation. 16 
Canon 1052 has made a change in this. Dispensation granted 
from the impediments of consanguinity and affinity in some de- 
gree is valid, although another impediment of the same species, 
in an equal or an inferior degree, has been concealed. Does this 



n. 3o4. 



"Gasparri, n. 384. 

"Reiff. App. n. ISO; Schmalzgr. lib. IV, tit. XVI, n. 157; Gasparri, 



90 THE SACRED PENITENTIARIA AND 

mean that a major impediment can be concealed without in- 
validating the dispensation ? Is for instance a dispensation from 
the second degree of consanguinity valid, though the fact of 
multiple consanguinity of the same or an inferior degree has been 
intentionally omitted? An affirmative answer to the preceding 
questions seems to be the only correct interpretation. The Style 
of the Curia, which demanded that all impediments, simple or 
multiple must be mentioned for validity, will have to conform 
to this canon. Canon 1054 has done away with difficulties con- 
cerning obreption or subreption in regard to dispensation from 
minor impediments. 

When an impediment is given as doubtful although it is 
certain, the dispensation is valid though illicit, because the tacit 
condition "if there is an impediment" is always understood. 17 

The impediment of affinity arising from illicit intercourse no 
longer exists, but marriage is never permitted when there is 
doubt that the parties are blood-relatives in some degree direct 
line or in the first degree collateral line (can. 1076, 3). In the 
impediment of public decency the origin line and degree must be 
given according to canon 1078. Spiritual relationsliip as an im- 
pediment is contracted only through Baptism and by the minister, 
sponsors and the one baptized. It is not necessary to indicate the 
number of children unless the impediment is thereby rendered 
multiple. 18 . 

5. The degree of consanguinity or of affinity or of public 
decency, whether it is simple or mixed, not only the remoter 
degree but also the nearer. The line, whether direct or collateral, 
likewise if the petitioners are connected by a double tie of con- 
sanguinity on the father's side and on the mother's side. Hence, 
when instead of the nearer degree, the remoter is mentioned the 
dispensation is certainly invalid. According to some authors the 
dispensation is also invalid, when a nearer degree is put down 
instead of the remoter. 19 The practice followed by the S. Peni- 
tentiaria considered the dispensation invalid, when the nearer 
degree was given for the remoter. Other Congregations accepted 
the more lenient opinion of many authors. 20 The controversy on 
this matter is now settled by canon 1052. The dispensation 
granted from the impediments of consanguinity or affinity in 



" Sanchez, lib. VIII, disp. XXXI n. 40. 

" Reiff. App. n. 267; Schmalzgr. IV, tit. XXVI, n. 169. Canon 1079, 768. 

"Gasparri, n. 385. 

"Wernz, n. 634, note 177; Reiff. App. n. 166; Sanchez, L. VIII, disp. 
24, n. 17. Schmalzgr., L. IV, tit. 16, n. 192. 



FACULTIES OF ORDINARIES AND PRIESTS 91 

some degree, is valid even if an error in regard to the degree has 
slipped in the petition or concession of the dispensation, provided 
the error regards the remoter degree. 

When the first degree is in question, the sex should be men- 
tioned, since it is more difficult to obtain dispensation for a 
nephew to marry his aunt, than for an uncle to marry his niece, 
but it is not Tequired for validity. 21 

6. The number of impediments must be mentioned e. g. if 
the consanguinity or affinity is twofold or multiple ; if to the con- 
sanguinity is joined affinity or any other impediment, whether 
diriment or prohibitive. Formerly if the multiplicity e. g. of con- 
sanguinity of affinity was not mentioned, the dispensation was 
void. 22 We have seen under number 4 that the dispensation is 
valid, although another impediment of the same species, in an 
equal or an inferior degree, has been concealed (can. 1052). 

7. The various circumstances, that is to say, whether the 
marriage is contracted or to be contracted, whether the Banns 
have been published and the form enjoined by the Council of 
Trent, Ne temere, or the New Code observed, must be mentioned 
but for licitness only. It is not necessary for validity to mention 
that civil marriage was contracted in order to obtain a di$pensa- 
tion more easily. 28 Neither is it necessary to state that a Catholic 
marriage was contracted to procure dispensation more easily as 
seen by an answer of the S. Penitentiaria (3 July, 1890). 

No one should ask a favor from another Ordinary that has 
been denied him by his own Ordinary, without mentioning the 
fact that the petition was refused. When such refusal is men- 
tioned the Ordinary should not grant the favor without having 
obtained the reasons from the proper Ordinary why the favor 
was not granted (can. 44). A petition rejected by the Vicar Gen- 
eral is invalidly asked from the Bishop unless mention is made 
of the fact that the favor was refused; if however the petition 
was refused by the Bishop, it cannot be validly granted by the 
Vicar General without the consent of the Bishop, even though the 
refusal was mentioned (can. 44). The S. Penitentiaria can grant 
dispensations that have been rejected by other Congregations in 
virtue of canon 43 as we have seen. In the first paragraph of 
canon 44, where the two Ordinaries are concerned, there is merely 
a question of licitness. If the second Ordinary should grant the 
rescript, which was refused by the first and the fact was not men- 



si 



Gasparri, n. 385. Feije, n. 703. 

Benedict XIV, "Etsi" Sep. 30, 1755; S. C. S. O. Mar. 11, 1896. 

Cf. S. Penitentiaria Apr. 18, 1831 ; Scherer, p. 471, note 84. 



92 THE SACRED PENITENTIARIA AND 

tioned, the rescript would be illicit but valid. The second para- 
graph of canon 44 contains an invalidating law, which renders the 
contrary act null and void. 

Formerly a dispensation was null, not only when the fact 
of incestuous intercourse was omitted, or the intention of ob- 
taining a dispensation more easily, but also, when after granting- 
dispensation, the parties had been guilty of incest or had repeated 
the offence mentioned in the supplica, before marriage. Accord- 
ing to a provision made by the S. C. S. O. (25 June, 1885), and 18 
Mar., 1891) matrimonial dispensations are valid even if the inter- 
course or the intention of obtaining the dispensation more easily, 
have not been mentioned. 24 

To avoid all difficulties and danger of omissions it is well 
to attach the geneological tree and then, even though one is not 
aware of all the impediments existing in the case, the dispensa- 
tion will cover all. 25 

Lastly the petition must contain the legitimate causes ; this 
belongs to the substance of the dispensation and is required for 
validity. 

EXPENSES AND TAXES 

The S. Penitentiaria, as we have seen (Benedict XIV Const. 
"In Apostolicae," 13 Apr., 1744, par. 22), granted dispensations in 
the external forum as it does now exclusively for the internal 
forum, entirely free of charge and demands neither taxes nor 
componenda. When applying directly to the S. Tribunal, abso- 
lutely nothing is required unless the petitioners are willing to 
defray the postage, which is merely a just compensation. Agents 
do not exact nor refuse taxes. Their remuneration is not deter- 
mined but practice allows them five francs or more according to 
the labor. 26 When an agent is employed a legitimate compensa- 
tion is no more than just, but the sum does not exceed the ex- 
penses for postage and a little above (3 libellae 60 cents). Even 
this is not required, when the petitioners are destitute. 27 

The Ordinaries generally observe the Style of the Curia and 
dispense gratuitously for the internal forum. When the Ordinary 
dispenses in virtue of delegated faculties, he can demand taxes 
only if this is especially permitted to him. In the New Code 
canon 1056 we read: Ordinaries and their officials may not de- 



84 Wernz, no. 636, note 180. 
83 Bargilliat, n. 414; S. Off. Feb. 22, 1899. 
"Acta S. Sed. I ap. XIII. 
"Gasparri, n. 324; Wernz, n. 634. 



FACULTIES OF ORDINARIES AND PRIESTS 93 

mand any emolument, when granting a dispensation, with the 
exception of a small offering for defraying the expenses of the 
Chancery in dispensations for those who are not poor, unless a 
faculty herefor be granted them expressly by the Holy See and if 
they shall have exacted anything, they are held to restitution. All 
customs to the contrary are hereby declared illegal. 

No regard need be had to the future, provided the petitioners 
are poor at present. The rich relatives are not considered nor 
capital encumbered by debts or borrowed. 18 In no way does 
error or fraud as to the pecuniary position of the petitioners affect 
the validity of the dispensation. 19 Those who live solely by the 
labor of their hands are not only poor, they are considered to be 
destitute. 30 The canon does not forbid the acceptance of volun- 
tary gifts, and after the dispensation has been executed it is not 
prohibited to accept what is freely offered. 81 For the exercution 
of matrimonial dispensations the Ordinary is forbidden to ask or 
demand voluntary remuneration. He is allowed only what 
the papal rescript permits him, such as chancery fees and ex- 
penses. 32 

Specimens of petitions and how they must be addressed are 
found in various authors as Sabetti Barrett, Noldin, De Smet, es- 
pecially Capello. Ordinaries, when dispensing in virtue of dele- 
gated faculties follow the rules and prescriptions of the Curia 
also in this: State the faculties and for how long they enjoy 
these faculties ; grant the dispensations in writing and rarely by 
telephone or telegraph. The dispensation would be valid but 
illicit if the faculties are not mentioned in the episcopal rescripts. 
The powers granted to Ordinaries contain no invalidating clause 
and canon 1057 merely states : Qui ex potestate a Sede Apostolica 
delegata dispensationem concedunt, in eadem expressam pontificii 
indulti mentionem faciant. The Bishops are only obliged to fol- 
low the Style of the Curia in so far as the substance of the con- 
cession is concerned, the formalities are no longer binding since 
the clause "alias nullae sint" is now omitted in the indults. The 
formalities must be observed for licitness but only in so far as 
time, place and matters permit. 38 



*Reiff. App. n. 379; Schmalzgr. IV, tit. 16 n. 131. 

* Capello, p. 531. 

*Wernz, n. 634; Gasparri, n. 318. 

"Sanchez, lib. VII, disp. 35, n. 14; Reiff. App. 321. 

"Wernz, n. 639; Gasparri, n. 430; D'Annibale. p. Ill, par. 502, note, 
15; Giovine, torn. II, par. 55; Reiff. App. n. 319; Schmalzgr. lib. VIII, disp. 
35, n. 12. 

** Wernz, 638 ; Gasparri, 454. 



CHAPTER X 
Concession and Execution of Dispensations 

The Holy See and the Ordinaries generally grant dispensa- 
tions by simple rescripts. These rescripts are sometimes given in 
"forma gratiosa," and when this is done, as for instance, dispensa- 
tions for royalties or "sanatio in radice" they are applied directly 
to the petitioners. 1 

Ordinarily, however, dispensations are granted in "com- 
missariat form/ 9 where the executor is either an executor neces- 
sarius or voluntarius. The executor necessarius exercises mere 
ministerial powers. He examines and verifies the facts contained 
in the supplica and then in full conformity with the rescript, im- 
poses the penance, absolves, dispenses and legitimates the chil- 
dren. 2 He cannot refuse to execute the dispensation unless the 
rescript is manifestly vitiated by subreption or obreption, or the 
executor is certain that the conditions placed in the grant have 
not been fulfilled, or the petitioner is so unworthy that the grant- 
ing of the favor would cause scandal, but in this latter case the 
Holy See would have to be notified, why the dispensation has 
been refused. 8 

Dispensations granted without an executor go into effect 
immediately and hence the causes must be true, when the dis- 
pensation is granted. When the agency of an executor is em- 
ployed, the dispensation is not in force until the time of the 
execution and it suffices if the causes of the petition be present 
at that time. 4 

The delegated faculties which our Ordinaries enjoy are 
granted in the commissarial form, but the Ordinaries are "exec- 
utores voluntarii." They may therefore grant the dispensations 
either in full, with certain restrictions, or refuse them altogether. 5 

Both the executor necessarius and the executor voluntarius 
may prudently employ a substitute unless the rescript expressly 
states otherwise. They are always permitted to delegate an- 



1 Wernz, n. 638; Putzer, p. 97. 

2 Reiff. App. n. 291 ; Wernz, n. 638. 

"Canon 54; Normae pec, cap. Ill, nos. 3 and 4; De Smet, p. 226. 

4 Canons 38, 39 ; Reiff. App. n. 220 ; Schmalzgr. lib. IV, tit. 16, n. 160. 

"Normae pec cap. Ill, nos. 3 and 4; Capello, p. 523. 



FACULTIES OF ORDINARIES AND PRIESTS 95 

other to verify the facts of the petition. 6 No executor can validly 
exercise his office before he has received the rescript, unless the 
notice bears the official approbation. 1 Important decrees on this 
matter were issued by the S. C. S. O. (24 Aug., 1892) and the 
S. Penitentiaria (15 Jan., 1894) stating: "that the dispensation 
cannot be executed on notice by telegram, that the dispensation 
has been granted unless the telegram was officially sent by the 
Holy See." 8 The S. Penitentiaria sends its rescripts either to the 
Ordinary or to the priest, indicating the method of execution. 
The dispensation is granted either in the extra-sacramental 
forum as the one mentioned in the chapter "Dumodo sit occultum," 
or in the sacramental forum by the confessor, but always in the 
forum of conscience, never in the external forum. When the 
sacramental forum is in question, the rescript goes directly to 
the confessor unopened, whether the petition was sent by the 
confessor directly to the Holy See or whether it was forwarded 
to Rome through the episcopal Chancery Office. The confessor 
cannot subdelegate his powers when the letters determine the 
confessor. When the petitioner himself has applied, the rescript 
generally reads : "Discreto viro Confessario ex probatis ab Ordi- 
nario per latorem praesentium eligendo." The petitioner is then 
free to choose the confessor and also to select another, when the 
priest first chosen is dead or is hindered by sickness or other 
causes, or is inexperienced, or too strict, or even if the confessor 
has declared the letters subreptitious or obreptitious. The con- 
fessor must always be from among those approved by the Ordi- 
nary of the place. 9 

EPISCOPAL DISPENSATIONS 

The confessor before applying to the Bishop for a dispensa- 
tion, will ask himself : is the impediment or the case occult in the 
sense pointed out? Is there a sufficient cause? Can a dispen- 
sation be granted in the case? Dispensations can be asked for 
orally, but it is not at all expedient. The case must be investi- 
gated, the petition examined, and when the rescript is given, 
clauses must be inserted and all this cannot be properly done 
orally. Furthermore, the impediment, when it is proposed orally, 



•Can. 57; Reiff. n. 325; Sanchez, VIII, disp. 35; Schmalzgr. IV, 
t. 16, n. 226. 

T Canon 53. 

• Reiff. App. n. 299 ; Schmalzgr. IV, 1. 16, n. 222 ; Wernz, n. 618, note 80. 

•Feije, De imped, n. 748; Ferreres, La Curia n. 873; Gasparri, n. 411, 
432; Sanchez, lib. VIII, D. 27, n. 40; Reiffenstuel, App. n. 451. 



96 THE SACRED PENITENTIARIA AND 

is often not well expressed, and when the dispensation is granted, 
things are easily omitted that may render the dispensation void. 
Hence the Bishop generally will demand that the supplica be 
drawn up and contain, in substance at least, all that is essential 
according to the Style of the Curia and as we have pointed out. 
The confessor of course must avoid the mention of anything by 
which the petitioner could be identified. 10 The episcopal dispen- 
sations are executed in the same way as the dispensations granted 
by the Holy See. The executor is either the Bishop himself, the 
parish priest or the confessor. Generally episcopal dispensations 
are granted in gracious form and hence the Bishop carries out 
the execution himself. The parish priest for the extra-sacra- 
mental forum, and the confessor for the sacramental forum, will 
therefore have nothing else to do but to communicate to the 
parties, that absolution, dispensation, legitimation have been 
granted and impose upon the petitioner what is prescribed by the 
Bishop. To dispense in gracious form is the better way, though 
the conditions must be verified, when the dispensation is granted 
and not, when it is communicated to the parties by the priest or 
confessor. If the causes are true, when the Bishop grants the 
dispensation it is valid, even though the causes and conditions 
have changed by the time it is communicated. 11 

When the Bishop dispenses by delegated powers, the rescript 
makes mention of the apostolic authority and the text of the in- 
dult; then follows the absolution ad effectum, the juridical ab- 
solution if necessary, penance, clauses, dispensation and legiti- 
mation. It would not suffice for instance to say : the petitioners 
are free to marry. 12 If the faculties are not mentioned the dis- 
pensation is valid but illicit. This opinion of D'Annibale 18 is con- 
firmed by a response of the S. C. Inq. (15 June, 1875), Sabetti- 
Baarrett 14 and the new Code (can. 1057). 

When the Ordinary dispenses from two impediments, he fol- 
lows the method indicated, namely, he dispenses from the public 
first and then by a separate rescript from the occult, revalidating 
at the same time the dispensation granted from the external 
forum. 15 



10 Reiff. App. n. 490; Sanchez, lib. Ill, D. 31, lib. VIII, D. 29. 

u Reiff. App. 206 ; Sanchez, lib. VIII, D. 24. 

" Giovini, p. 1, par. 89; Noldin, n. 638; D'Ann. p. Ill, par. 503, note 16. 

18 D'Annibale, p. Ill, par. 503, note 18. 

14 Sabetti-Barrett, n. 926. 

"Statuta Synod, dioces. Bait. an. 1886, pp. 108-109; Wernz, 633; Gas- 



parri, no. 326; Putzer, n. 86. 



FACULTIES OF ORDINARIES AND PRIESTS 97 

When the parish priest or confessor has communicated the 
dispensation in the extra-sacramental forum, the document is 
placed in the secret archives, and the dispensation is recorded 
in the special register for occult cases. The confessor, who dis- 
penses in the sacramental forum communicates the dispensation 
and then destroys the rescript because it can serve no other 
purpose. 

When the priest dispenses in virtue of delegated faculties he 
is the executor voluntarius and hence he may grant the dispen- 
sation or refuse it. In conformity with canon 54, prudence and 
conscience should be his guides in the exercise of these powers, 
and unless he fulfills the essential conditions of the rescript and 
observes the substantial form of procedure, the dispensations are 
null and void (can. 55). 

In examining the conditions it is sufficient "for the delegated 
judge to satisfy his conscience, as to the truth of the facts. 16 It 
depends therefore on the prudent judgment of the delegate, 
regard being had to the particular circumstances of each case, 
which might make it necessary or desirable to interrogate the 
parties as well as the witnesses. 17 

INTERPRETATION OF CLAUSES 

In the execution of matrimonial dispensations, special at- 
tention must be paid to the clauses, which are contained in the 
rescripts. Some clauses are prescriptive and must be observed 
under pain of nullity, others are more directive, which when not 
heeded, render the execution illicit only. Since the decree of the 
S. C. S. O. (Aug. 28, 1885), the clauses have been reduced and 
changed considerably. 18 It was difficult at times to distinguish 
between directive and prescriptive clauses, to judge which must 
be observed for validity and which for licetness. 

The New Code has simplified matters also in this matter. In 
all rescripts only those conditions are essential and required for 
validity, which are mentioned with the particles, "si, dummodo," 
or an equivalent term (can. 38). The clause "si preces veritate 
nitantur" when not expressed is always to be understood (can. 
40). The two exceptions to this rule, have reference to dispensa- 
tions granted by a Motu proprio (can. 45) or dispensations from 
minor impediments (1054) and have been explained before. 



u S. Penitentiaria July 1, 1859. 

" S. Penitentiaria Sep. 5, 1899; Cf. Rth. fr. 1900, p. 88; De Smet, n. 390. 

IB 



Wernz, n. 640. 



98 THE SACRED PENITENTIARIA AND 

The clauses: "si vera sint exposita, si ita est, si preces 
veritate nitantur," formerly read : "si per inf ormationem eandem 
preces veritate niti repereris." 19 In the future the objective truth 
is alone considered for the validity of the rescript, and the clause 
therefore ; "de praemissis te diligenter informes" is only required 
for the licit execution of dispensations. If the executor knows 
that the impediment, causes, circumstances are as they were 
written down, he can immediately proceed to the execution of 
the rescript. 

"Discreto viro confessario ex probatis ab Ordinario loci per 
latorem eligendo." A confessor from another diocese is not 
eligible nor can one approved for men only, hear the women. 20 

"Discreto viro N Confessario.' 9 This clause determines the 
confessor and is inserted, when the petitioner mentioned the con- 
fessor or when the confessor has applied for the penitent. When 
the confessor opens the letter and does not wish to accept or 
does not execute the dispensation for reasons of his own, the 
petitioner can choose another. It suffices for validity to execute 
the dispensation for one, when grave reasons demand it. 21 The 
confessor must inquire and verify the facts in confession. He 
believes what the penitent tells him unless he knows outside of 
confession that the dispensation is vitiated by false, statements. 22 
If the confessor has executed the dispensation without verifying 
the facts, the dispensation is valid, providing the necessary re- 
quirements are objectively present. 23 

If the rescript contains the words : "in foro conscientiae" sac- 
ramental confession is not necessary. When the sacramental 
confession is mentioned the dispensation can only be granted in 
confession. A sacrilegious confession does not render the dis- 
pensation invalid. If the confessor sees that the penitent is not 
well disposed, he should try to render him worthy. If it is im- 
possible, it is well to postpone the execution of the rescript, un- 
less it is a case of urgent necessity, when the dispensation can 
be granted. 24 Dispensation can be granted before the absolution 



W S. C. S. O. Aug. 28, 1885; S. Penitent. Apr. 27, 1886; Gasparri, n. 397; 
Wernz, n. 640, note 209. 

* Benedict XIV, Inst. eccl. 87, n. 31; D'Annibale, I, 242-245. 

"Feije, De Imp. n. 758; De Smet, n. 397. 

"Schmalzg. lib. IV, tit. XVI, n. 224; Sanchez, lib. VIII, D. 35; Reiff. 
App. n. 324. 

"Sanchez, lib. VIII, D. 34, n. 25; Wernz, n. 640; Gasparri, n. 397. 

**Apud. Carriere, De Matr. n. 1168. S. Penit.; Reiff. App. n. 457; 
Sanchez, VIII, D. 34, n. 29. 



FACULTIES OF ORDINARIES AND PRIESTS 99 

even when the absolution must be deferred. 25 In executing the 
rescript care should be taken to dispose the penitent for absolu- 
tion from sin, but the absolution ad effectum is valid, provided 
the confession took place. 26 

"Proletn susceptam, si qua sit, kgitimam deccrnendo." If 
legitimation has been forgotten, it can be made afterwards and 
the child would be considered legitimate, from the time that the 
dispensation was granted. Legitimation can take place even after 
the death of the parents, even when the death occurred before 
the marriage took place, provided the dispensation had been 
granted, or even when death prevented the execution of the 
rescript. 27 

Praesentibus laniatis" To escape penalty it would suffice 
to break the seal and tear the rescript, because they could then 
no longer be used in court, but the clause must be observed, es- 
pecially when it contains the words "per te combiistis." The 
rescript should be destroyed within three days, but it may be kept 
until after the marriage. If the confessor gives the rescript to 
the petitioner, the dispensation would be valid, but the rescript 
has no judicial value unless the confessor has refused to execute 
the rescript. 28 The confessor acts in the external forum as 
though he knew nothing. 29 Documents for the sacramental 
forum, can never be alleged as proofs for the external forum. 
The S. Penitentiaria demans this to safeguard the secrecy of the 
confessional. Unavoidable and distressing consequences some- 
times arise from this discipline. Sometimes marriages which are 
lawful in the internal forum must be considered invalid in the 
external forum. Presumptions for validity might be lawful for 
the internal forum and prove nothing before a matrimonial court. 
The judge is not concerned with the internal forum. When he 
declares the marriage invalid, his sentence does not militate 
against the internal forum or the natural law, provided the laws 
of the external forum have been observed. 80 The conflict between 
both forums cannot be avoided entirely. Many difficulties have 
been eliminated by the abrogation of some impediments and 



*S. Peniten. Episcopo Tudelensi May 19, 1834; Jan. 4, 1839; Gas- 
parri 412. 

* Lega, De Judiciis p. 339, n. 277. 

,T Wernz, n. 640 ; Gasparri, n. 403 ; Sanchez, lib. VIII, D. 2 ; D. 34 n. 43. 
u Reiff. App. n. 482 ; Schmalzgr. lib. IV, tit. 16, n. 252. 
"Reiff. App. n. 481. 

* Scherer, p. 453, note 2; Benedict XIV, Inst. eccl. 87, n. 49; Wernz, n. 
609, note 10 ; Gasparri, n. 472 ; Sanchez, lib. Ill, D. 15 ; Reiff. App. n. 480 sq. 



100 THE SACRED PENITENTIARIA AND 

other changes made by the New Code. In many cases the con- 
flict is prevented by the S. Penitentiaria. It grants rescripts for 
the extra-sacramental forum with the admonition to keep a rec- 
ord of the dispensation in the secret archives. Thus, when a mar- 
riage is null on account of the impediment of clandestinity and 
the parties are considered lawful man and wife, the S. Peniten- 
tiaria in granting dispensation does not insert the words laniatis 
or conbustis. When no record is made of the dispensation, the 
sworn testimony of the husband or wife, claiming the validity of 
the marriage is sometimes admitted as sufficient proof in the 
external forum. 31 

The foregoing clauses must be strictly observed for validity. 
Other clauses point out obligations of the natural law e. g. avoid- 
ing scandal and the occasion of sin, or of the positive law such 
as publication of the banns. These are merely admonitions, which 
must be followed under pain of sin, but do not render the dispen- 
sation invalid. 32 The clauses containing demands for penance 
or alms are prescriptive for the external forum but only of an 
earnest appeal in the internal forum. 83 

The dispensation cannot be licitly given unless the promise 
is made to remove the scandal and as far as possible the occasion 
of sin. The separation of the parties cannot be imposed, when 
it is not expedient, but reparation must be made according to the 
advice of the executor. 84 

"Imposita cis . . . gravi poenitentia" The dispensation 
is valid but illicit if penance is not imposed. 85 "In determining 
the quality, gravity, duration, etc., of the penance, which accord- 
ing to law is left to the discretion of the delegate, he must not 
be either too severe or too indulgent, and he must take into ac- 
count the condition, age, weakness, employment, sex, etc., of 
those upon whom he is enjoined to impose it. ,,3e 

"Et aliis quae de hire fuerit iniungenda" Restoration and 
reparation must be made and, besides the juridical penance, the 
sacramental penance must not be omitted. Some clauses are 
easily understood and need not be mentioned here, others have 
been abrogated and are no longer in use. 87 



** Cf. Instr. Card. R. par. 170 sq. ; Cap. 7, X de frig. IV, IS ; Wernz, n. 745. 

"Wernz, n. 640. 

"Wernz, n. 640; Zitelli, p. 98; Putzer, p. 85. 

**S. Peniten. 12 Apr., 1889; Gasparri, n. 401; 424; S. Penitent. 27 



Apr., 1886. 

85 Sanchez, lib. VIII D. 34. n. 29; Reiff. App. n. 341. 

" S. Penitent. 25 Feb., 1890. 

"Gasparri, n. 396 sq. Wernz, n. 640. note 209 sq. 



FACULTIES OF ORDINARIES AND PRIESTS 101 

One clause deserves special mention : "Et quod oratores . . . 
a quibusvis ecclesiasticis sententiis, censuris et poenis ... ad 
effectum huius dispensations dumtaxat . . . absolvantur." The 
absolution is only granted to remove the obstacle to the lawful 
execution of the dispensation but leaves the censure unaffected 
otherwise. It is of practical importance for instance for the re- 
validation of a marriage contracted before a Protestant minis- 
ter. 88 The excommunicated could formerly receive no rescripts. 89 

The clause was modified by Pius X 40 who excluded only the 
excommunicated by name and those suspended a divinis by the 
Holy See. The New Code has made another change in the mat- 
ter. Canon 36, 2, partly taken from Normae peculiares (cap. 3, 
n. 6) reads : "Favors and dispensations of every kind granted by 
the Holy See are valid even for those under censure, except for 
such as are excommunicated (can. 2265, 2), interdicted (can. 2275, 
n. 3) and suspended (can. 2283) by a declaratory or condemnatory 
sentence." The absolution ad effectum is therefore no longer 
necessary for the valid execution of a dispensation, except when 
there is question of these three censures. For the validity of the 
absolution from these three it is necessary that they receive 
special mention in the papal rescript (can. 2265, 2). 

The absolution ad effectum is always required for the licit 
use of the rescript. Formerly the opinions differed on this point. 41 
The Church does not wish to grant favors to the unworthy, but 
she willingly extends her help to those who seek it. All those, who 
have faculties to dispense, enjoy the additional powers, which are 
necessary for the exercise of those faculties. The powers there- 
fore to absolve from ecclesiastical penalties, that the dispensation 
may take effect, is always included in the faculties of dispens- 
ing (can. 66). 

The foregoing clause must not be confounded with another 
in virtue of which the executor can absolve from censure not 
merely to make the dispensation effective but so that the censure 
will not revive. This absolution removes the censure and faults 
for the external and consequently before both forums or before 
the internal forum alone according as it is given for the external 
or the internal forum. 42 



88 Reiff. App. n. 310 ; Wernz, n. 640, note 214. 

" S. C. de P. F. 26 Sep., 1821 ; S. C. Inq. 18 Dec, 1872 ; Wernz, n. 640, 
note 214. 

40 Normae pecul. 29 Sep., 1908. c. 3. n. 6; Capello, page 525. 

41 De Smet, n. 393 p. 321 ; Ferreres, La Curia 235-237. 
** Reiff. App. n. 343; De Smet, n. 241. 



102 THE SACRED PENITENTIARIA AND 

The final act of execution of the dispensation is called ful- 
mination of the rescript. When the facts have been sufficiently 
verified, the conditions fulfilled, the clauses observed, the decree 
of execution is issued. In this the executor for the extra-sacra- 
mental forum absolves from censures, imposes the penance, gives 
advice, how scandal is to be removed and finally dispenses and 
legitimates the offspring. 48 No such decree is required for the 
valid fulmination or communication of the dispensation. It may 
be made orally or by telegram not only validly but licitly also in 
case of necessity, but ordinarily a written document must be 
drawn up so as to furnish proof for the external forum. The docu- 
ment of execution with the evidence of fulmination must be pre- 
served in the secret archives of the Curia and the parish priest 
makes a note of it in the secret marriage register to be able to 
show in case of necessity that the dispensation has been granted. 

In the sacramental forum, the confessor chosen by the peti- 
tioners or determined by the S. Penitentiaria or the Ordinary re- 
ceives the sealed rescript and proceeds to verify the facts, ob- 
serves the conditions and clauses and then by an express or tacit 
consent of the petitioners executes and fulminates the dispensa- 
tion. All this is done in sacramental confession, by word of 
mouth. The order to be followed is given in the formula em- 
ployed in the curia and is contained in the Ritual. 44 The S. Pen- 
itentiaria however demands no special formula and it suffices for 
validity to determine the nature of the impediment and give the 
dispensation. 45 Dispensation is granted to the one bound by the 
impediment or the guilty party. When the impediment is com- 
mon to both, as adultery with the promise of marriage, the re- 
script is executed in respect to both. 46 When it is impossible or 
very difficult to induce the other party to go to confession, it 
suffices for validity to dispense one. 47 

It is necessary to mention the change in the old discipline 
with regard to the renewal of consent. When a marriage is in- 
valid on account of an occult impediment it suffices for the con- 
validation, that the one who knows of the impediment renew the 
consent, provided the other has not retracted the consent. If 
both parties are aware of the invalidity both must renew their 
consent, but it may be done privately and secretly, either in con- 
fession or outside of confession (can. 1135, 2, 3). 



*" S. Penitentiaria 27 Apr., 1886; Gasparri, n. 424. 
44 Putzer, p. 95 ; Gasparri, n. 431 ; De Smet, n. 397. 
**Capello, p. 361; Bargilliat, n. 486; Noldin, n. 639. 
46 S. Penitent. 15 Nov., 1748. 
"Feije, n. 758. 



FACULTIES OF ORDINARIES AND PRIESTS 103 

When the petitioners refuse the dispensation, it cannot be 
granted, but the rescript can be retained for future use. 48 In a 
response of the S. Penitentiaria we read: "The faculty remains 
even after the destruction of the letters, but the letters may be 
kept as long as there is any probability that the penitent will 
appear, care being taken to avoid the danger of losing them. 49 
Even if one of the petitioners married, the dispensation could be 
granted after the death of the partner. 50 

ERRORS IN THE RESCRIPT AND HOW TO REMEDY THEM 

An essential error in the rescript invalidates the dispensation 
(can. 55). Obreption and subreption in one part of the rescript 
do not affect the other part, when the rescript contains more than 
one favor (can. 42). 

1. Exaggeration does not vitiate the dispensation, if the final 
cause in itself is true, 51 but when this is false and the rescript is 
granted for a major impediment, the dispensation is void. 2. 
When the final cause, for which the dispensation was granted has 
ceased, e. g., the child to be legitimated died, we must distinguish : 
If the child died after the dispensation had been executed, the 
impediment once removed does not revive, even though the child 
died before the marriage was contracted. If the child died before 
the rescript for the major impediment was executed, the dispen- 
sation is invalid. 52 When the marriage is contracted and the 
parties are ignorant of the fact that a substantial error invalidated- 
the dispensation, they can be left in good faith in most cases. 58 
Many authors defend the opinion that an error discovered after 
the marriage ceremony, even in regard to the final cause, does 
not invalidate the marriage. 54 

HOW TO REMEDY DEFECTIVE RESCRIPTS 

If the execution of an apostolic or episcopal dispensation has 
been vitiated by neglecting an essential element, the executor 
can begin to execute the dispensation again without a fresh dis- 



** Sanchez, lib. VIII. D. 32. n. 6; Wernz, n. 641; Gasparri, n. 428; 
Ojetti, Syn. n. 1824; De Smet, n. 392. 

"Lintzer Quartalschrift 1905. p. 582; Noldin, 1. n. 172; De Smet, n. 397. 

■•Gasparri, n. 429; Sanchez, lib. VIII. D. 32 n. 6; D'Annibale, p. Ill, 
par. 364 note 30. 

M Sanchez, lib. VIII. D. 21 ; Reiff. App. n. 205. 

"Can. 86; Reiff. App. 227. 

"Gasparri, n. 390. 

"Schmalzgr. lib. IV. t. 16. n. 166; Sanchez, Lib. VIII. D. 17. n. 8; De 
Smet, n. 403. 



104 THE SACRED PENITENTIARIA AND 

pensation, unless his power has expired on account of cessation 
of the final cause or the rescript has been recalled. 55 When the 
executor cannot correct the mistake, he must procure letters 
known as "perinde valere," in virtue of which a favor previously 
granted is revalidated so that by a fiction of the law, the effect 
of the revalidation is regarded as going back to the time of the 
original granting of the dispensation. 56 In asking for these let- 
ters, the petitioner will apply the same rules that obtained in 
writing for the first rescript, adding the causes, errors and defects, 
which rendered the first dispensation void. 57 Should it happen 
that another error has been committed, a new letter called 
"perinde valere super perinde valere" would be required. 

If the first dispensation was for a public impediment and the 
fresh impediment is an occult one, "perinde valere" will be granted 
for the internal forum and mention must be made of the public 
impediment. When dispensation has been granted from two 
impediments, one occult the other public and the new impediment 
is occult, all three impediments are mentioned and the dispensa- 
tion is revalidated in the internal forum. When the new impedi- 
ment is public, it is removed in the external forum and then the 
dispensation is revalidated in the forum of conscience. 

In virtue of delegated faculties, the Ordinaries possess vari- 
ous powers for revalidating dispensation. By ordinary powers 
they can remedy defective dispensation from Rome, when they 
are invalid on account of some occult defect in case of urgent 
necessity. The priest and confessor can only revalidate dispen- 
sations for which they have faculties i. e. in cases of urgent 
necessity and in danger of death, unless they have special powers 
for dispensations. 

This brings us to the end of our task. The New Code with 
its many changes, has made a study of the S. Penitentiaria and its 
relations to faculties of Ordinaries and priests, very opportune. 
Since Ordinaries and priests enjoy many faculties, which were 
formerly reserved to this S. Tribunal, it is well to know and 
imitate its mode of procedure in the internal forum. To the praise 
of the S. Penitentiaria be it said that everything is performed and 
expedited with the profoundest secrecy and free of any charges. 



88 Can. 59; Sanchez, L. VIII. D. 27. n. 39; Schmalzgr., L. I. t. n. 40; 
Wernz, n. 641 ; Gasparri, n. 429; D'Annibale, p. I. par. 77. n. 55; De Smet, 
n. 405 sq. 

M Gasparri, n. 390; Giovini, torn. II. par. 82. n. 4 sq.; Wernz, n. 642; 
De Smet, n. 405; Reiff. App. n. 362. 

81 Putzer, p. 95 ; De Smet, 405 sq. 



FACULTIES OF ORDINARIES AND PRIESTS 105 

Its officials take an oath to this effect : "Ego N ab hac hora in 
antea ero fidelis et oboediens B. Petro et Domino Nostro Papae, 
eiusque successoribus canonice intrantibus ; Officium meum fide- 
liter exercebo, et gratis ; eiusque ratione, nihil ab aliquibus, etiam 
sponte oblatum, vel donatum, accipiam, praeter quam salarium, 
mihi constitutum ; secreta S. Poenitentiariae et occultos casus ac 
personas, de quibus in ea tractabitur, nunquam cuiquam, extra 
Officium revelabo; et ita iuro ad Sacrosancta Dei Evangelia." 
Every official, when he assumes the office, takes this oath before 
the Chief Penitentiary and it is repeated every year in the first 
meeting of the Signatura. The penalty for violating the oath is 
most severe. "Any one, who contrary to the oath, accepts even 
the smallest gift from the petitioners, be it for more prompt 
expedition or extraordinary labor in procuring, writing, review- 
ing or examining the rescript, or under any plea or pretence, is 
ipso facto deprived of his office and punished with excommunica- 
tion from which no one outside of danger of death, can absolve, 
but the Roman Pontiff." Furthermore any one convicted of this 
crime, becomes infamous and is incapable of receiving future 
offices. Officials who by fraud or trickery suggest to others how 
petitions may be more easily obtained, incur the same punish- 
ment (Benedict XIV "In Apostolicae," 13 Apr., 1744). These pen- 
alties are not abrogated by the New Code. According to canon 
243 the Congregations, Tribunals and Offices of the Roman Curia 
are governed by the disciplinary laws and regulations defined and 
determined for each organization. 

Who does not see that when all rules are observed, the S. 
Penitentiaria is a tribunal of mercy, instituted for the welfare of 
souls, as Benedict XIV has said? For this reason the seal of the 
S. Tribunal appropriately bears the image of the Virgin Mother 
with the Holy Infant in her arms. God promised mercy and 
grace to penitents and our Holy Mother the Church follows His 
example in dispensing His gifts. "The bruised reed He shall not: 
break and the smoking flax He shall not quench. He shall bring 
forth judgment unto truth" (Is. 42, 3). 



APPENDIX 



PART I 



The so-called Tax-lists constitute an important chapter in 
the history of the Sacred Penitentiaria. The great controversy 
between Catholics and non-Catholics concerning Tax-lists cover 
many pages of historical research and, if we are to judge by the 
bitter remarks found in books and magazines, the time has not 
yet come for an unbiased solution. 

There is nothing good or sacred in this world, that has not 
been abused by men. We are therefore not astonished to find 
abuses in the Church. The Church, of divine institution, but 
existing amongst men, is exposed to their imperfections and 
frailties. The one important task for us is not so much to give 
minute details of these abuses, but rather to show that the Church 
of Christ as such, has never approved but always condemned these 
abuses. To her glory be it said, that she never had an agreement 
with vice. Simony has been combated by the Church since the 
time of Simon Magus, its first perpetrator. 

The great struggle of Gregory VII in the matter of investi- 
ture, during the time when German Emperors created bishops 
and antipopes and committed depredations throughout Germany 
and Italy, is a classical example of the battle of the Church 
against simony. To be sure churchmen, protected by civil power, 
have at times, under pretence of indigence or instigated by greed 
and malice, tried to sell spiritual goods for temporal gain, but 
the Church, as a social and ecclesiastical body, has ever disowned 
them and condemned their practices. 

Concessions and grants of spiritual favors by the Sacred 
Penitentiaria require the payment of certain taxes. These are 
not the price for favors, as we shall endeavor to prove, but orig- 
inally merely meant to make up the salary of the officials em- 
ployed. No doubt there is an element of danger in the transaction 
but such danger, common to all institutions, secular as well as 
ecclesiastical, is parried by laws and repression of abuses. 

It is difficult to fix the time when the Sacred Penitentiaria 
issued the first tax-list. Such lists may have been in existence, 



FACULTIES OF ORDINARIES AND PRIESTS 107 

when Thomas of Capua composed his Formulary, since Benedict 
XII in his Constitution presupposes them. 1 In this same consti- 
tution the Pope demands, that the petitions must all be returned 
to the senders, and this is one of the reasons why our sources are 
so fragmentary.* The tax-list published with this Constitution 
"In agro dominico," is one of the oldest documents we have.* In 
the introduction the object and the legitimate reasons for impos- 
ing taxes are clearly pointed out. "Ut igitur scriptores Sacrae 
Poenitentiariae domini papae in recipiendo pro scriptura littera- 
rum de Poenitentiariae litteris procurandis de cetero non exce- 
dant, infrascriptas taxationes . . . faciendas duximus et prae- 
sentibus annotandas." This regulation, published for the first 
time by H. Denifle, was official and almost all formulas of conces- 
sions are represented in this list. It is the belief of some authors, 
that this list is based on a still older document and it cannot be 
denied that taxes may have been in use before, but this is the 
earliest extant official document on the subject. 

When did the Sacred Penitentiariea begin to levy taxes? 
This is a difficult question to answer, since we have no record in 
history. We may say that they were imposed before the time 
of Benedict XII, because we find taxes mentioned in a few letters 
prior to that Pope, but they are very rare, because as we have 
stated, the petitions were returned to the senders. Even up to 
the time of Clement V (d. 1314) no regular record of the hono- 
raria was kept. A list of taxes is contained in a document dated 
July 14, 1311. The custom of imposing taxes seems to be well 
established after July, 1320. At this time taxes were always 
mentioned, with the species of money abbreviated and the names 
of the distributors. In the year 1336, we find the Florin (about 
$2.42^4) and towards the close of the year 1342 the Turonensis 
Grossus (about 17^c) is given. It is of interest to note the pre- 
caution taken against abuses by placing the tax between two 
parts of the name of the petitioner as for instance, W. de Argen- 
quatuor tur-tina (W. de Argentina quatuor tur). 

To prove that the taxes were not a price for favors granted, 
but the salary of the officials, we need only give a cursory glance 



1 Vat. Archivum Armarium 53 no. 17, ff 10 v-12 v. Denifle. Archiv fur 
Litt. u. Kirch, vol. IV pp. 237-238. 

'Armarium 53 no. 17 ff 26-35. 

■Denifle, Die aelteste Taxrolle der ap. Poenitent. Archiv. f. Litt. u. 
Kirch, des Mittelalters. vol. IV, 1888, pp. 201 sq. Taxes of the Papal Peni- 
tentiary, English Historical Review, vol. VIII, 1893, p. 424. 



108 THE SACRED PENITENTIARIA AND 

over the original documents. Among the many, we find the list 
of taxes of the Grand Penitentiary Gaucelme de Jean (1338). 
We read there "taxativnes pro littera" which means a payment 
for the scribe for composing the letter. The formula which is 
most frequently met with is : "Turonensis pro littera confessionali 
in minori forma," another "littera confessionali in maiori forma 
duo turonenses." For annonymous or for particular letters the 
taxes were from three to six tur., and one "absolutio et dispen- 
satio de omnibus sententiis generalibus et aliis multis casibus," 
demands seven tur. The amount of taxes was rated according to 
the length of the letter, and the more words required for the 
dispensation the higher were the taxes. Favors, absolutions and 
dispensations granted to a large number of persons, required a 
correspondingly higher tax. Thus we find one formula of 70 tur., 
Sy 2 florins, "pro littera generalis absolutionis in multis casibus et 
dispensatione pro toto ordine Cluniacensi." 

We conclude that the difference in taxes is of little or no im- 
portance. It depends solely on the length of the letter, the form 
of the rescript and the number of the petitioners. Greatness of 
the favor or the gravity of the crime, does not enter into con- 
sideration. "Littera pro dispensatione super defectu natalium" 
requires the same amount of taxes as the dispensation for the 
murder of a cleric, four turonenses grossi. Protestant editions 
of the tax-lists also show, how little relation the taxes bear to the 
sin remitted. "Pro laico a lapsu carnis super quocumque actu 
libidinoso in f oro conscientiae, tur. 6 ducat. 2 ; ab incestu pro laico 
in foro conscientiae tantum tur. 4 ; ab adulterio cum incestu, pro 
una persona tantum tur. sex." 4 

The Constitution of Benedict XII provides for cases not men- 
tioned in the tax-list. "Quod si quando aliquae formae huismodi 
litterarum apparent, quae sub dictis taxationibus minime inclu- 
duntur, super earum taxationibus, si commode fieri poterit, dom- 
inus noster Summus Pontifex consulatur et quod interim sec- 
undum beneplacitum Maioris Poenitentiarii taxentur." 

It is necessary to bear in mind, that the same favors granted 
by the Penitentiaria require a higher tax if accorded by the 
Chancery. The Chancery has a more complicated practice of 
expediting matters and therefore demands higher taxes. 5 The 
Penitentiaria, according to the regulations of Benedict XII, de- 



*Taxe de Parties casuelles de la Boutique du Pape, Anec. Annota- 
tiones &c. A. D. C. Antoine du Pinet A. Lyon 1564, pp. 81-82. 

Denifle 1888 Archiv. fur Litt u. Kirch, des Mitt. Band IV. p. 201. 

5 Mittheilungen des Instituts fur oesterreich. Gescrichtsforschung 
Band. XIII, 1. 



FACULTIES OF ORDINARIES AND PRIESTS 109 

mands no more than A]/ 2 tur. unless the rescripts apply to many 
and require changes, in which cases 20, 40 or even 70 tur. are 
asked. The scribes were not the only officials to work on these 
letters. Procurators prepared the petitions, "supplices libellas," 
and were therefore entitled to a remuneration for their work. 
The Pope and the Curia made no special provisions concerning 
the fees for the labor of procurators. According to the general 
regulations of the Curia, the procurators were forbidden to re- 
ceive more than y 2 tur. "pro littera confessionali," 2 "pro littera 
communi," 3, "pro completa facti narratione," 6, "pro littera decla- 
ratoria." 6 The scribe had to pay for the wax since the "sigillator 
nihil omnino recipiat a quocumque, nisi dumtaxat a scriptoribus 
dicti officii, a quibus pro cera non recipiat ultra 12 tur. pro singulis 
centenariis litterarum vel nisi ad instantiam partis (adversae) 
petentis fiat sigillum cum cera rubea impressa in alba pro qua 
non recipiat pro suo labore nisi unum turonensem." For minor 
offices, writing letters or sealing them, the officials received noth- 
ing, or at the most an insignificant reward. The total tax im- 
posed constituted withal a small salary of the officials. 

The laws of Benedict XII, regarding the taxes of the Sacred 
Penitentiaria, were for many years, strictly and conscientiously 
observed. Gradually abuses began to manifest themselves. Vari- 
ous abuses appeared within the sphere of the officials, which how- 
ever, had no direct or important effect on the public at large. 
The distributors, actuated by greed and mercenary motives, 
passed over the letters of minor importance, and reserved to 
themselves, the petitions which brought higher taxes. 

The commission of reform, instituted by the Council of 
Constance, had no fault to find with the taxes, but merely de- 
manded that the officials be punished for the abuses. It likewise 
decreed that a copy of the taxes be affixed in a conspicuous place 
in the office of the Sacred Penitentiaria. 

Other flagrant abuses directly affecting the people, were op- 
posed and condemned without mercy. 7 Offices were at times 



6 "Videlicet pro qualibet littera confessionali in maiori seu in minori 
forma, non licet sibi recipere ultra dimidium tur. argenti, pro qualibet 
littera grossa et communi, utpote cum brevi et succincta narratione non 
ultra 2 tur. completa vero facti narratione non ultra 3 tur. pro qualibet 
vero littera declaratoria non ultra 6 tur." 

1 "In f oro conscientiae, quod horendius est quam simoniacae pravita- 
tis vitium; ubi non in remedium animarum sed sub colore appretianda- 
rum chartarum crimina delinquentium aut gratiae dispensationum, 
praecise secundum qualitatem suam ut res profane taxantur, abusiones 
manifeste nefandas committendo. Protestatio Nationis Germanicae." 
Von der Herdt, Concilium Constant. IV. 1422. 



110 THE SACRED PENITENTIARIA AND 

sold to the highest bidder with the tacit consent of authority. 
Dietrich of Niem an official of the Chancery under Boniface IX 
(d. 1404), says of this Pope : "Necnon etiam suae Poenitentiariae 
ac Apostolicarum litterarum scriptoriae officia pacto pecuniario 
intercedente vendidit." 

The abuses prevalent at this time have been somewhat exag- 
gerated. The program of 1423 reduced the taxes for "litterae 
absoluteriae" only for the time of Lent. Had they been so ex- 
cessive, they would no doubt have abolished them altogether. 
Dietrich of Niem is furthermore not an impartial witness. He 
is accused by Raynoldus of being bitter and unjust, "acerbus et 
iniquus" and of having written many gossipy pages, lacking in 
appreciation of difficulties and environments. But that there 
were some flagrant abuses can be seen by the reform movements 
of some of the Popes. To counteract the schemes of increasing 
the revenues of the Sacred Penitentiaria, Eugene IV (d. 1447) 
permited a new tax for the registration of a certain class of 
letters. The new tax consisted of a grossus papalis for "sententiis 
generalibus." For letters under formularies "Si inveneris" and 
Licet non credat" the tax was 2 grossi and for "litteris declara- 
toriis" 3 grossi papales. 

Under Pius II (d. 1464) Nicolas of Cusa, imbued with the 
spirit of reform, demanded the removal of the scribes from office, 
if they accepted more than the law allowed them. Sixtus IV 
(1484) imposed stricter ordinances on procurators to remedy the 
abuses of excessive taxes, and certain documents indicate that a 
new tariff was issued to keep the scribes in check. All these 
laudable efforts proved vain on account of the venality of officials, 
and again every successful bidder, to increase his revenues, de- 
manded higher taxes. Innocent VII (1492) tried more drastic 
measures than had yet been employed. He ruled that delinquents 
incur excommunication reserved to the Pope, that they be de- 
prived of their emoluments, lose their offices and become ineligi- 
ble to all offices of the Curia. 

These drastic punishments however failed to bring about 
lasting reforms. New complaints were made to Alexander VI 
(d. 1503) because scribes and procurators showed no regard for 
the poor and refused to grant letters gratuitously. 

Julius II (d. 1513) proved as vigorous in this regard as he 
had shown himself in his Bull on simony. In the Fifth Lateran 
Council he introduced new rules and regulations against the em- 
ployees, who exceeded their faculties in regard to salaries and 



FACULTIES OF ORDINARIES AND PRIESTS 111 

taxes. 8 Leo 2£ (d. 1521) likewise made great endeavors to remedy 
existing abuses. . 

Manuscripts of this period show interesting features in the 
total amounts and the applications of the taxes. 9 One of the 
MSS. mentions a tax levied to benefit the procurators and to 
pay for the wax used. In consequence of this new tariff, the 
charges for preparing the petitions and expediting the letters 
surpassed the taxes, which formerly constituted the salary of 
the scribes. 

Another important change appeared at this time in the forms 
themselves. Benedict XII always placed the words "pro littera" 
before the tax, which indicated, that the money was to be a 
salary for the officials. Later catalogues suppressed these words. 
We find for instances: "absolutio pro monaco qui praelatum 
indignum elegit, venit ad grossos septem." This is a regrettable 
change, since it would appear that the money no longer consti- 
tuted a mere salary but a payment for the dispensation or abso- 
lution, which gives the canonist some difficulty in answering 
accusations. 

In defence of the Church it could be rightly stated that the 
taxes imposed are simply a just penance for the transgression 
of the law, or that the constant practice of the Church in the past 
shows that she considers the taxes a just remuneration for clerical 
labor and hence does not offer or need an apology. A lenient 
explanation of the facts however cannot be expected from men, 
who find an accusation of simony much more efficacious in ma- 
ligning the Church. 

The Constitution "Pastoralis officii" (Dec. 13, 1513) of Leo 
X, and the new tax-list by the same Pope, are another praise- 
worthy attempt to reform the Roman Tribunals, but they are 
rather general and lack the precision manifested by Benedict 
XII. Leo X strongly insists that the auditors and the correctors 



•"Qui in taxis, salariis sett mercedibus recipiendis, facultatibus am- 
pliandis, modum et formam in eis expressam excedunt ; nova gravamina 
et angarias quotidie imponentcs pro eorum arbitrio pecunias expetunt et 
exegunt, in animarum ipsorum periculum, partium detrimentum, pernici- 
osum, exemplum et scandalum plurimorum totiusque Romanae Curiae 
infamiam et jacturam." 

•One MS. from the year 1480 gives the following: "Taxae dispensa- 
tionum super natalium: De solutione et solita genitus in aliquo gradu 
consanguinitatis gr. 12}4 papales. De apostasia: Pro monacho qui 
exivit monasterium sine licentia et ivit ad guerras vel alibi vagavit cum 
habitu, venit in forma, scriptor habet A l / 2 proc. V/ 2 in totum, et hoc si 
est praesens gr. 8. Item similimodo si dereliquit habitum et deinde vult 
reverti ad monasterium cum habitu. Nota quod si est praesens, potest 
committi uni poenitentiario et venit ad gr. W/*? 



112 THE SACRED PENITENTIARIA AND 

abide by the old order of taxes, as modified by him, and rejects 
all regulations not directly approved by the Chief Penitentiary. 10 
He also admonishes the procurators to be satisfied with half the 
tax, as pointed out in the Constitution, and not to burden the 
petitioners with higher taxes. They are also advised not to ac- 
cept forbidden or unusual matters nor to extort more from the 
parties for expediting the letters than the law permits them. 11 
He further request the correctors to be as lenient and moderate 
as possible in their demands for taxes. The* Sacred Penitentiaria 
is urged to temper the rigor of the tariff with clemency and 
benignity and to treat the poor and needy with all charity. 

Some of the taxes authorized by this Pope were: "Pro 
litteris de speciali" 6 turonenses ; "pro litteris de speciali et 
expresso" 12 tur. When the "litterae pro absolutione" were 
added the tax was naturally higher. The reader will notice that 
here as above, the tax constituted merely the salary of the of- 
ficials and had nothing to do with the quality of the favor granted. 
The difference in taxes arises from the diversity of letters or 
from the length of the formulas, or to some extent from the pur- 
pose of rendering the dispensation rarer. 12 

In summing up the different factors of the tax-list, in com- 
paring the amounts of money, which the scribes, procurators and 
sealers received in proportion to the work, in finding that the 
quality of favors has no direct influence on the taxes, we come 
to the conclusion that there can be no ground for the suspicion 
of simony on the part of the Church. We have gathered enough 
material from the sources available to enable us to view the re- 
proaches in their proper light and meet the accusations of our 
separated brethren in all sincerity. Individual abuses among 
men are to be expected and never surprise the serious student of 
history. Flagrant abuses are naturally more harmful, when as 
in our case, they are provoked and aggravated by the avidity of 



10 "Taxationes litterarum praeter antiquam ordinem et nostram modi- 
ficationem factas, sub excommunicationis sententia non permittant, sed 
illas omnino retineant vel rejiciant, nisi aliud Summo Poenitentiario 
visum fuerit." 

11 "Unica media taxa sibi ex constitutione officii competente conten- 
tentur nee partes in ullo plus gravent, nee prohibitas materias et insuetas 
expedire procurant, nee item a partibus plus quam pro expediendo nego- 
tio necessarium fuerit extorqueant." 

u "Etsi tales praedictis implicitis impedimentis scienter contraxerint 
et consummaverint, tunc taxa augetur de duobus, occasione absolutionis 
illis impediendae." 

For a complete list of taxes and their uses see: M. Goeller, vol. 2, 
pp. 146 sq. 



FACULTIES OF ORDINARIES AND PRIESTS 113 

mercenaries, who purchased offices and dignities rendered venal 
by those in authority. 

The Church has constantly fought these abuses and per- 
versions by grave penances and salutary laws issued by Popes 
and councils, and the just condemnation of the faithful helps to 
keep the avaricious within the proper bounds. Christ, the Good 
Shepherd of His flock, is ever mindful to keep alive the principle 
of reason and of Sacred Scripture, that spiritual favors are not 
objects of negotiation. 

The Spirit of Truth prompted St. Peter to utter those mem- 
orable words, which show the sentiment of every true repre- 
sentative of Christ : "Keep thy money to thyself to perish with 
thee, because thou hast thought that the gift of God may be pur- 
chased with money" Acts vii, 18-25. 

PART II 

Compoaenda 

Intimately connected with the taxes are the so-called com- 
ponenda. They have this in common with the taxes, that money 
is demanded in connection with the favors granted, but the pur- 
pose of this fee is an entirely different one. 1 

Componenda may be defined as a certain sum of money (aside 
from 'the taxes) given in connection with the dispensation ac- 
cording to a given norm. Componenda are not a remuneration 
for work, but an amicable transaction for an agreed sum. In the 
past and even up to the present day the componenda have met 
with great opposition and difficulties. 2 The objections and diffi- 
culties arise from what would appear to be a financial transaction 
in spiritual matters. 

The Church as we have seen, has always prohibited the 
traffic in spiritual things, but at the same time permits an amica- 
ble adjustment in matters, which do not come under this head. 
This has been the practice of the Church from the earliest times. 



*Putzer, p. 25 104 sq. 302 sq. ; Gasparri, no. 315 sq.; Giovini, L. II, 
p. 109 sq.; Feije, no. 690 sq.; Rosset, no. 2477; Leitner, p. 432 sq.; Scherer, 
p. 492; Kirchenlex. Ill p. 771 sq.; Saegmueller, Lehrb. der k. K. p. 186. 

"Cone. Trid. spec, collect, t. 2. p. 609-615, sess. XXIV cap. 5 de ref. 
The Belgian bishops did not clearly distinguish between taxes and com- 
ponenda. They petitioned the Vat. Counc. to have the taxes or com- 
ponenda abolished, or if this could not be done to devise some means, 
by which those who pay more for the disp., do not receive it any easier 
than those who pay less or nothing. 



114 THE SACRED PENITENTIARIA AND 

From the eighth to the twelfth century the custom arose of 
substituting some lighter penance for the rigorous demands of 
the penitential canons. The penitential book of Egbert, Arch- 
bishop of York, declares (XIII, 11) : "For him who can comply 
with what the Penitential prescribes, well and good; for him 
who cannot, we give counsel of God's mercy, instead of one day 
on bread and water, let him sing fifty psalms on his knee or 
seventy psalms without genuflecting. . . . But if he does not 
know the psalms and cannot fast, let him instead of one year on 
bread and water, give twenty-six solidi (solidus lc.) in alms, 
fast till noon on one day of each week and till Vespers on another, 
and in three Lents bestow half of what he receives." 

This practice of substituting the alms for the penance, is 
also sanctioned in the Irish Synod of 807 CXXIV, where it is 
stated that: "the fast of the second day of the week, may be 
redeemed by singing one psalter or by giving one denarius to a 
poor person." The Council of Tribur (895 can. LVI), in determin- 
ing the penance for a homicide, authorizes the redemption (while 
traveling or at war) of the fast on Tues. Thur. or Sat. by paying 
a denarius or by caring for three poor persons. These redemp- 
tions were offered indiscriminately to all at the Council of Cler- 
mont (1095 can. II), suggesting the Crusades as a ranson for all 
penances. 

The discipline of the sixteenth century admitted and de- 
manded the componenda for the following cases: Commutation 
of vows, absolution from the crime of simony, absolving a cleric 
who was promoted with a fictitious title, dispensations for matri- 
monial impediments and restitutions. 

Even at the time of Nicolas IV (d. 1292), the Penitentiary 
already enjoyed the privilege of commuting vows for a donation 
of money. Other forms of commutations were, making pil- 
grimages to well-known shrines, such as that of St. Alban's in 
England, or that of St. James in Compostella, Spain. The most 
important place for pilgrims, was of course, Rome. As early as 
the seventh century, during the time of Bede (674-735) the 
"Visitatio ad Litnim" was regarded as a good work of great 
efficacy (Hist. eccl. vol. IV, 23). These long pilgrimages, entail- 
ing heavy expenses and a great loss of time, were soon commuted 
to a payment of money as alms, to be given to some pious work. 
Thus the pilgrimage to Compostella was commuted to the pay- 
ment of a certain sum of money to be applied to the Patriarchial 
churches in Rome. These churches were in sore need in the 



FACULTIES OF ORDINARIES AND PRIESTS 115 

thirteenth century, because the Popes were frequently forced to 
leave Rome on account of revolts and wars. 8 

During the time of Gregory XJ (1370-1378) the Sacred Peni- 
tentiaria commuted the vows of visiting the Holy Sepulchre and 
other holy places to the payment of alms. A special collector 
was appointed at this time to receive the money. The alms 
asked were equal to the amount it would take to defray the ex- 
penses of the pilgrimage to St. Peter's and St. Paul's Churches. 4 
This tradition of substituting other penances for vows continued 
in the fifteenth century. Eugene IV (d. 1447) writes: "Item 
possint vota etiam beatorum Petri et Pauli de Urbe ac sancti 
Jacobi in Compostella in alia opera pietatis mulieribus tantum 
commutare, et in commutatione voti sancti Jacobi et alterius 
peregrinationis. illud quod est consultum, quod detur pro medie- 
tate amore Dei arbitrio et consilio Ordinariorum sicque quod nihil 
ad eorum manus deveniat, et fiat deductio laboris et expensarum, 
quern et quas fecerunt et sustinuerunt peregrini hucusque veni- 
endo personaliter et redeundo, ac alia medietas fabricis ecclesi- 
arum patriarchalium Urbis assignetur." Clement VII (d. 1534) 
regulated the practice and fixed the amounts that could be asked. 
"Commutatio voti Sancti Sepulchri taxatur 12 tur., commutatio 
voti liminum Apostolorum Urbe 12 tur." He adds : "Nota quod 
in istis tribus immediate praecedentibus votorum commutationi- 
bus requiritur compositio cum Dataria Sanctissimi, quae fieri 
solet secundum qualitatem personarum interdum per litteras et 
interdum per nuncios ad arbitrium domini Datarii, sed compositio 
ordinaria in similibus votis est quadraginta ducatorum." 5 

The componenda offered when the vows are commuted, are 
justifiable on the ground that they merely constitute an agree- 
ment on the part of the faithful, to pay a certain sum of money 
to some pious cause, in place of the fulfillment of the obligation 
made by promise. They do not benefit the Pope or the other 
members of the Curia personally. 

In like manner, the eleemosynary fine or componenda de- 
manded in connection with matrimonial dispensations, have their 
legitimate uses. The Sacred Penitentiaria has not invented these 
componenda. She grants the dispensations, when the componenda 
have been made to the Chancery of Rome. During the fourteenth 



'Edward of England in the fourteenth century had vowed a pil- 
grimage to Rome and was asked instead to found a monastery. 

4 M. Stiegler: Dispensat., Dispensationswesen u. Dispensationsrecht 
im Kirchenrecht. cap. 42 Geschichte der Dispensationstaxen. 

• E. Goeller, II part 2, p. 1577. 



11<5 THE SACRED PENITENTIARIA AND 

century the Sacred Penitentiaria was obliged to give all compo- 
nenda received for matrimonial dispensations to the Chamberlain 
or collector of the Apostolic Chancery. 

These componenda constituted a fine for the faults, which as 
a rule give the occasion for the dispensation, or a check to re- 
strain a too great frequency of petitions often based on unde- 
serving grounds. The income from these componenda, with the 
exceptions of abuses, that could be expected, was invariably used 
for pious purposes. 6 To verify this we point to Pope Nicholas II 
(d. 1061), who by papal dispensation, legitimized the marriage 
of William of Normandy and Mathilda of Flanders. By way of 
penance they freely consented to found two monasteries at Caen. 
In 1063 the bishop of Venice petitioned Alexander II : "Si qua 
modo misericorditer conjunctam sibi illicite consanguineam re- 
tinere posset, et orationibus et jejuniis ac hereditatis et eleemosy- 
narum se largitione redimere." 7 The favor was granted. 

These fines, or penances for excesses as the ancients called 
them, originally were imposed only on those, who had contracted 
marriage against the laws of the Church. 8 The penal character of 
the componenda can be easily recognized by the following : "Eos 
qui divino timore proposito in suarum periculum animarum sci- 
enter in gradibus consanguinitatis et affinitatis constitutione can- 
onica interdictis. . . . ipso excommunicationis sententiae ipso 
facto sujacere." In a catalogue of the fifteenth century we read, 
that those who contract matrimony in the fourth degree of affin- 
ity need not pay componenda, if the marriage has not been con- 
summated ; if it was consummated, they were obliged to pay the 
componenda and the tax. This same rule was followed a half 
a century later by Clement VII. 9 The same rule applied to mar- 
riages contracted in other forbidden degrees. When the marriage 
had been contracted in ignorance of the law no componenda was 
asked. 



•Alexander V (d. 1410) and Martin V (d. 1431) used them to restore 
churches and to aid other charitable institutions. 

T Patr. Lat. t. CXLVI, 1406. 

8 "Et quia dicti contrahentes concordare habent cum Camera Ap. de 
excessu praedicto." "Quod hi qui ignorantes contraxerunt in dicto sic 
contracto remanere, hi vero qui scientes, de novo contrahere possint 
dispensare, dum tales, qui scientes contraxerunt remittantur ad Cameram 
Ap. compositur cum eadem." E. Goeller I part II p. 43. 

*Nota quod si matrimonium fuerit scienter contractum et consum- 
matum in hujusmodi quarto, tunc materia est componenda cum Datario 
Sanctissimi, est regulariter due. auri de Camera decern." E. Goeller, II 
part II p. 47. 



FACULTIES OF ORDINARIES AND PRIESTS 117 

At first, dispensations from impediments were granted 
mostly to the nobility, but soon their bad example found fol- 
lowers among all classes. To stem the abuses and to make it 
more difficult to obtain dispensations the Popes were obliged to 
employ strict laws and ordinances. Clement VII decreed: "Et 
insuper isto impedimento quocumque modo sit, vel de contra- 
hendo vel contracto, scienter vel ignoranter, consummato vel non 
consummato, semper est componendum cum Datario Sanctissimi 
et compositio est 25 due. auri de camera." 10 "Nota quod in sec- 
undo et tertio semper componitur cum Datario et de concordia 
non est certa taxa, quia secundum qualitatem personarum com- 
ponitur communiter in tertio gradu, pro compositione solvantur 
ducati 25 (ducat about 60c), pro nobilibus duplo videlicet 50." 
The second degree of consanguinity seemed to have this in 
common with the fourth, that no componenda was asked, when 
the origin of the impediments was the same and the marriage 
had been consummated. The document adds : "Si vero est con- 
summatum componit cum Datario ad ducatos decern." A multi- 
plex impediment arising from the collateral line was always 
treated according to the following norm: "Nota quod in isto 
gradu semper componitur cum Datario si sunt pauperes ad du- 
catos 25, si divites aut nobiles arbitraria est compositio, quia 
aliquando solvuntur due 50." Dispensation from the impediment 
of the second degree of affinity, arising from illicit intercourse, 
even for contracted marriages was not granted except to the 
highest nobility and then only for a considerable componendum. 
For the dispensations of other impediments no eleemosynary fine 
was imposed. 

The third series of componenda has reference to goods illi- 
citly acquired and fruits illegitimately received. It has always 
been the practice of the Church to grant no absolution from sins 
against the seventh commandment, unless restitution of ill-got- 
ten goods was assured. It was formerly the custom of the Sacred 
Penitentiaria to tax illegitimate profits and to demand that res- 
titution be made and a certain sum of money be given as penance 
for the transgression. E. Goller in his study of the Sacred Pen- 
itentiaria, gives many examples. To mention two will suffice to 
show the practice of the Sacred Tribunal. One is taken from the 
catalogue of the taxes, issued by the Sacred Penitentiaria in the 
first quarter of the sixteenth century. A merchant, who trans- 
ported arms and other articles to the infidels, without personal 



10 



E. Goeller 1. c. p. 149. 



118 THE SACRED PENITENTIARIA AND 

profit, was taxed six tur. In a note it is stated, that if he derived 
any benefit from this transaction, the matter was to be adjusted 
with the Dataria and the tax to be levied accordingly. The sec- 
ond example is similar to this. One who has derived considerable 
profit form goods unlawfully acquired, is obliged to pay the 
componenda to the Dataria. 11 

In summing up this brief treatise on taxes, we find that in 
the Roman Curia the expenses incurred by petitioners fall under 
four heads : 

1. Expenses or carriage (postage, etc., also a fee to the 
accredited agent, when one has been employed) ; 

2. A tax to be used in defraying the expenses incurred by 
the Holy See in the organized administration of dispensations ; 

3. The componendum to be paid to the congregations and 
tribunals and applied by them to pious uses ; 

4. An alms imposed on the petitioners and to be distributed 
by themselves in good works. 

The first two are merely a just compensation for the ex- 
penses incurred by the Curia. The last is without reproach, since 
Sacred Scripture in numerous places inculcates the giving of 
alms. 12 Authors of the Middle Ages taught that alms were most 
efficacious. 18 It is also recommended and presupposed in certain 
parts of the Roman Ritual. 14 

As to the third point, the componenda in themselves are 
legitimate and can be justified as we have endeavored to prove. 
Wherever you turn, you will not find any cause to accuse the 
Church as such of simony. Her laws are without reproach. 
There have been grave abuses and some perhaps still exist. 
Officials have profited by their positions to commit the crime of 
simony. To be astounded at this among frail human beings 
would be naive indeed. The Church has legitimate reasons for 



""Absolutio pro mercatore, qui transportaverit hastas et alia pro- 
hibita ad partes infidelium et nullum lucrum reportavit taxatur 6 tur. 
Nota quod si lucrum reportaverit componit cum Datario et taxatur etc." 
"Et si percepit fructus ex illo, componit de fructibus perceptis cum 
Datari." E. Goller 1. c. p. 166. 

"Eci 31, 28; Pr. 22, 9; Da. 4, 24; Pr. 14, 21; Lu. 11, 4; Pr. 16, 6; 
Pr. 28, 27 etc. 

" "Eleemosyna completa habet vim satisf actionis quam oratio, oratio 
quam jejunia. Et propter hoc eleemosyna magis indicitur ut universalis 
medicina pro peccatis quam alia" J. Friburgens, Summa Confessorum lib. 
Ill t. XXXIV, Q. 123. Cf. S. Antonii Summa p. Ill t. XIV c. 20 pars 3. 
Summa Sylvestrina s. v. Satisfactio. 

14 "Poenitentias peccunias sibi ipsis confessarii non applicent, neque 
a poenitentibus quidquam tamquam ministerii sui praemium petant vel 
accipiant." 



FACULTIES OF ORDINARIES AND PRIESTS 119 

demanding taxes and componenda, and true to her divine calling, 
she has ever taken the necessary means to stop abuses. 15 

Some writers strongly object to the laws of the Roman 
Index, which forbade the reading of tax-lists. 16 The Church has 
never refused permission to read forbidden books, when the 
petitioner was actuated by motives of scientific and sincere in- 
vestigation. She rightly withholds some books from the curious 
and ignorant, who would derive no benefit from the reading and 
would peruse them only to their own detriment. 

Other objections have been raised by zealous members of 
our own faith. St. Peter Damian deplored the fact that no lay- 
man can endure a fast of three days, and insisted that the peni- 
tential canons should be abolished if redemptions were not ab- 
rogated. 17 Pius II laments: "There is nothing that the Roman 
Curia gives without money. Even the imposition of hands and 
the gifts of the Holy Ghost are sold. The forgiveness of sin is 
only granted for coin." 18 In the year 1538 the cardinals drew up 
a plan for a general spiritual reformation in which they boldly 
declared that "the Penitentiaria and the Dataria were a refuge 
for the wicked, who there find impunity in return for money. 
The Church has assumed a right to maintain abuses so monstrous 
that they would destroy any human society." 19 The answer to 
these and similar objections, is contained in the last quotation. 
The Church of Christ is not merely a human society. She is 
guided by the Holy Ghost, the spirit of truth. If she were only 
human, no doubt she would have been destroyed long ago, through 
the greed and corruption of human agents. But in giving the 
history of any institution, why exaggerate its failing and min- 
imize its works of mercy? The sources of God's teachings on 
Sinai and in the Cenaculum must always remain pure ; the foun- 
dation of the Church, the pillars of truth must ever remain 
staunch. When adversities seemed to overwhelm them, St. Peter 
and his successors have cried out "Lord save us, we perish" (Matt. 



IS 



Ferraris, sub ver. Taxa. Hollweck, D. k. Strafg. p. 286. Cf. Ben. XIV 
De Synod, dioc. IV cap. 6n. 1. 

19 Appendix of Antwerp Index 1570 p. 69. Praxis et taxa officianae 
poenitentiariae Papae. Copied in Index of Sixtus V 1590. Clement VIII 
1596 added "ab hereticis depravata." Benedict XIV adopted the formula 
"cum ab hereticis sit depravata" : Index Benedict XIV, Romae 1758 p. 216. 

"St. Petri Damiani Epist. lib, I, epist. 15. De modis poenitentiae. 
Wasserchleben, Bussordnungen n. 276, 341, 462. 

"Aeneae Sylvii Lib. I Ep. 66 (Op. Basil, 1571). Doellinger, Beitrage 
zur politischen, kirchlichen Kulturgeschichte III 210. 

w Le Plat, Monum. Concil. Trid. II, 601. 



120 THE SACRED PENITENTIARIA AND 

c. 8, v. 25), and the spirit of truth, that will guide the Church till 
the end of time, has ever come to their rescue. The successor of 
St. Peter, whose faith never wavers, shall ever confirm his 
brethren. 

Since the time of Simon Magus the Church has fpupd a rem- 
edy for every abuse. In the age of the martyrs, St. Cyprian 
severely reprehended the abuses made with the so-called "libelli" 
yet he did not forbid the martyrs to give them. In later times 
abuses were always met by repressive measures on the part of 
the Church. The Council of Clovesho (747) condemned those 
penitents who imagined that crimes could be atoned by merce- 
nary means. 20 The Lateran Council of 1215 restricted the exces- 
sive grants of Indulgences. The Council of Ravenna in the year 
1317 enacted similar laws. Boniface IX in a letter to the bishop 
of Ferrara (1302), condemns the practice of certain religious 
who claimed authorization by the Pope to forgive all sorts of 
sins and exacted money from the simple-minded by promising 
perpetual happiness in this world and the next. Sixtus IV (1478) 
reserved a large number of indulgences formerly granted to con- 
fessors, lest the idea of gaining indulgences prove a greater in- 
centive to sin. Pius III, when seeking advice from counsellors 
regarding the demands for reform of the Curia, received the fol- 
lowing report : "Not for absolution but for the satisfaction money 
may be demanded, which is to be applied to pious purposes, as 
your Holiness has advised in numerous cases." 21 Finally the 
Council of Trent decreed that dispensation should be granted 
free of all charges. 22 

Diocesan Chanceries were bound to conform to this law and 
neither to exact nor accept anything but the modest contribution 
to the Chancery expenses sanctioned by an Instruction approved 
by Innocent XI (Oct. 8, 1678), reformed by Leo XIII (S. C. C. 
June, 1896) and known as the Innocentian Tax. 28 The executors 
of rescripts were always forbidden to receive or ask anything for 
the execution of matrimonial dispensations and customs to the 
contrary were tolerated rather than approved. 24 It cannot be 



"Hadden & Stubbs Counc. Ill 373. Cf. Lingard Hist, and Antiquities 
of the Anglo Saxon Church, 2nd ed. London 1858, 1, 311. 

"Doellinger, Beitrage zur polit, kirch. u. Kulturgeschichte III, 210. 

a Sess. XXIV, c. V, De Ref. Matr. 

"Wernz, vol. IV, n. 634, note 166; Giovini, t. II, p. 109; Feije, n. 690; 
Kirchenlex. t. Ill, p. 771; Ojetti, Syn. Taxa; Ferraris, Prompta BibL 
Taxa; Bouix, de Episc. II, p. 5, s. 30, par. 1. 

"Gasparri, n. 398; Wernz, n. 639, note 207; Putzer, p. 88; S. C. C. 
June 20, 1871; Jan. 28, 1822; S. Penitent. Apr. 20, 1861; S. C. C. Apr. 18, 
1883. Concil. plen. Bait. Ill (a. 1884 n. 134). 



FACULTIES OF ORDINARIES AND PRIESTS 121 

said that the discipline of our episcopal Curias is in contradiction 
to the various instructions of the Holy See declaring that dis- 
pensations are to be granted gratuitously. Bishops generally in 
virtue of indults demand taxes for the expenses incurred and the 
support of good works, never for the dispensation itself or for the 
profit of the one who grants or executes the rescript. 

In the New Code, canon 1056, we read : Ordinaries and their 
officials may not demand any emolument, when granting a dis- 
pensation, with the exception of a small offering for defraying 
the expenses of the Chancery in dispensations for those, who are 
not poor, unless a faculty herefor be granted them expressly by 
the Holy See, and if they shall have exacted anything, they are 
held to restitution. All customs to the contrary are hereby de- 
clared illegal. No other charges are therefore permitted except 
the small fee for defraying the expenses of the Chancery, though 
this offering may be used for any purpose. Special faculties 
mentioned in the Code are enjoyed by many bishops in this coun- 
try. In virtue of the extraordinary faculties under Form T. no. 
15, bishops can ask a modest offering for good works. 

Canon 1507 demands that all regulations concerning taxes, 
which are to be paid in ecclesiastical provinces for the various 
acts of voluntary jurisdiction or for the execution of apostolic 
rescripts or upon the occasion of the administration of Sacra- 
ments and Sacramentals, are to be drawn up in the provincial 
council, or at the meeting of the bishops of the province, but the 
statutes have no force of law without the approbation of the 
Apostolic See. 

Bishops generally dispense gratuitously in the forum of con- 
science, but they are not forbidden to ask and accept a just 
remuneration for the expenses incurred in verifying facts or in 
seeking the necessary information. 26 As to the present pro- 
cedure of the S. Penitentiaria, it follows the rules set down in the 
Constitution "In apostolicae" (Benedict XIV) and "Sapienti con- 
silio." Accordingly, its business is transacted with the greatest 
secrecy and entirely gratuitously (Omnino secreto et gratis). 



"Gasparri, n. 398; Wernz, n. 639, note 207 ; Putzer, p. 88; S. C. C. June 
20, 1871 ; Jan 28, 1822 ; S. Penitent. Apr. 20, 1861. 



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