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-^> 
 
 Legal Formulary, 
 
 -^ 
 
 O]^ 
 
 A Collection of Forms to be Used in the Exer- 
 cise of Voluntary and Contentious 
 Jurisdiction. 
 
 To which IS added an Epitome of the Laws. De 
 cisions and Instructions pertaining thereto. 
 
 in THE 
 
 Rev. Peter a. Baart, A. M., S- T, L. 
 
 Irremovable Rector of St. Mary's Church. Marshall. Midi. 
 
 Formerly Fiscal Procurator of Detroit Diocese. 
 
 Author of "'The Konian Cotirt." ■'Orphans and Orphan As\ hmi'-."" >Vi 
 
 THIRD EDITION. 
 
 FR..PUSTET, ., , . . 
 Printer to the Holv See aiifl tlie'^.'ton'Eri^atioti of Rites. 
 
 Kk. PUSIET .V CO.. 
 
 NEW YORK. 
 
Nihil Obstat, 
 
 Carolus O'Reilly, S. T. D, 
 
 Censor Deputatus. 
 
 Imprimatur, 
 
 Joannes S. Foley, 
 
 Episcopus Detroitensis. 
 
 Die 3, m. Februarii, 1890. 
 
 LOAN STACK 
 
 Copyrighted, 1S9S, 
 
 EY 
 p. A. BAART. 
 
 ALL RIGHTS RESERVE1>. 
 
 I'KEss OF The Statesman. 
 
 MARSHALL. MICH. 
 
Ex 
 
 n 
 
 QQC^ 
 
 18 
 
 LETTER OF APPROVAL. 
 
 From His Holiness, Pope Leo XIII. 
 
 " The Holy Father has accepted ' Le^al Formu- 
 lary^ especially in the direction of making canon lavj 
 more knovjyi in your country^ and that the ecclesias- 
 tical affairs may be ahvays better reg'ulated accord- 
 ing" to ity 
 
 FR. CARDINAL SATOLLI. 
 
 Nov. J, i8g8. 
 
 [ 580 
 
EXTRACTS FROM LETTERS OF CARDINALS. 
 
 His Eminence^ M. Cardinal Ledochowski, Prefect of the Propaganda, 
 writes on October 7, 1898: 
 
 • ... .1 predict that this collection of forms will prove useful for 
 the diocesan curiae of your country " 
 
 His Eminence, M. Cardinal Rampolla, Secretary of State, writes on 
 Oct. 3, 1898: 
 
 •■.... With satisfaction 1 recognize that in writing 'Legal Formu- 
 lai-y' you have performed a very useful work, especially for your 
 own country. Hence I thank you much for the copy so courte- 
 ously sent me, and, taking advantage of this occasion, from my 
 heart I profess the sentiments of my particular esteem for you." 
 
 His Eminence, C. Cardinal Mazzella, on Oct. 29, 1898, writes: 
 
 • . . . . Having the endorsement which it has I make no doubt 
 tliat -Legal Formulary' will supply a want long felt in the United 
 Sta;tes, and prove a valuable handbook for the use of ecclesias- 
 t it;s who are too busily engaged in the duties of the ministry to 
 make a long search through extensive volumes for a necessary 
 formula. . . . "' 
 
 
 
 His Eminence, J. Cardinal Gibbons, A ich bishop of Baltimore, writes 
 on Nov. 2. 1898: 
 
 •■My Dear Dr. Baart:--! beg leave to thank yow for your new 
 work, 'Legal Formulary,' which you were kind enough to send 
 me. Your patient industry and studious habits, as well as your 
 ability, lead me to hope that I will peruse with profit this last 
 work from your pen .... Faithfully yours in Xst, 
 
 J. Card. Gibbons."" 
 
CONTENTS. 
 
 Part First -Forms foi- Diocesan Appointments. 
 
 Pa?.'. 
 
 ( 'hapter I. The Nomination of Bishops 1 
 
 Chapter II. — Ajipointmeut of Vicar General 11 
 
 Chapter III. -Aj)XJointment of Vicar or Administrator 29 
 
 Chapter IV. — Appointment of Canons and Consultors 37 
 
 Chapter V. — Appointment nf Rural Deans and Bishop's Chan- 
 cellor .J 1 
 
 Chapter VI. Apijointment of Notary, Secretary, and Econome 
 
 of Bishop 58 
 
 Chapter VII. -Appointment of Fiscal Procurator. Defender 
 of Marriay:e Bond, Auditors of Accounts T.I 
 
 P.vitT Skcon I). Parishes, Precedence, Sacred Thinij:s, Faculties, 
 
 Index Rules. Kdicts, Property. 
 
 (^hapter I.- Parish Priests, Synodal Examiners and Concursus. 8U 
 
 C/hapter II. — Parishes, Changes in Them, Pensions 113 
 
 Chapter III. — Order of Precedence for Clergy in the U. S 13;3 
 
 Chapter IV. — The Sacraments: Baptism. Contirmation. Holy 
 
 Eucharist 143 
 
 Chapter V.— The Sacrament of Penance lti(-> 
 
 Chapter VI. — Sacrament of Holy Orders 187 
 
 Chapter VII.— Sacrament of Matrimony -07 
 
 (^hapter VIII. — Facultates QuiB Episcopis Statuum Poedera- 
 
 torum Concedi Solent 234 
 
 Chapter IX. -Apostolic Constitution of Pope Leo XIII on the 
 
 Prohibition and Censure of Books 243 
 
 Chapter X.— Various Edicts; Visitation. Synod. Seminary. 
 
VI CONTENTS. 
 
 Foiiiidatiou of Convents. Collecting Alms 201 
 
 Chapter XI. The Alienation of Church Property ^Hf) 
 
 Part Third. Trials and Punishments. 
 
 Chapter T. —Preliminary Investigation. Forms for Monitions. 
 
 Precept. Judge. Auditor "298 
 
 Chapter II. -Forms foi- Summary Investigation before Pre- 
 ventive Remedies 311 
 
 Chapter III. — Forms for Criminal Libel lus. and for Recording 
 
 the Acts 315 
 
 C^'hapter IV. — Forms for Visiting Corpus Delicti: for Introduc 
 
 ing Documents 319 
 
 Chapter V. — Forms for Citation of Witnesses 322 
 
 Chapter VI. — Forms for Remissorial Letters 331 
 
 (chapter VII. Forms for Examining Witnesses 33;") 
 
 Chapter VIII. — Forms for Citing the Accused 315 
 
 Chapter IX. — Contumacy of the Accused 351 
 
 Chapter X. — Challenge of Judge: Arbiters 35() 
 
 Chapter XI. — Hearing Given the Accused 363 
 
 Chapter XIL— Defense of the Accused 372 
 
 Chapter XIII. — Forms for Definitive Sentence 385 
 
 Chapter XIV.--Process ex Notorio 392 
 
 Chapter XV.— Forms for Appeals 396 
 
 Chapter XVI.— The Acts Before Judge of Appeal 101 
 
 Chapter XVIL— Civil Process in Church Courts 410 
 
 Chapter XVIII.— Forms for Summary Civil Process .421 
 
 Chapter XIX.— Rules for Punishments 427 
 
 Chapter XX.— Forms for Censured 435 
 
 Chapter XXI.— Appeal and Release from Censures 447 
 
 Chapter XXII.— Vindicatory Punishments: Fines, Imprison- 
 ment, Banishment, Transfer, Dismissal, Loss of Title, De- 
 position, Disqualification 460 
 
 Chapter XXIII.—Excommunications, Suspensions. Interdicts 
 
 Lat£e Sententia3 477 
 
 Chapter XXIV.— Cum Magnopere, Prescription 486 
 
 General Index 495 
 
INTRODUCTION. 
 
 Acting on the sug-^restion of several bishops the 
 author has compiled this book of forms. The absence 
 of such a work has been felt by many who are 
 eng-aofed in official diocesan affairs and by pastors 
 whose time is too limited to permit a long- search 
 through extensive volumes when they need a neces- 
 sary formula. By using a correct form in official 
 documents much inconvenience and at times the dan- 
 ger even of nullity are precluded. In contentious 
 matters great trouble is avoided by each of the in- 
 terested parties knowing exactly what the other 
 claims. Moreover, it is an undeniable fact that the 
 forms hitherto used in some of our American ecclesi- 
 astical courts have with difficulty been sustained as 
 canonical. While the law does not require any set 
 form for documents, still it demands that certain 
 necessary things be not omitted. 
 
 The forms given in the following pages are based 
 on suggestions from Monacelli and Reiffenstuel. 
 founded on the g'eneral laws of the church and espec- 
 ially adapted to the exceptional conditions of the 
 United States. It is hoped that using thesei'orms as 
 a basis, with the help of the explanations given 
 therewith, the reader wnll be able to construct read- 
 ilv whatever document his circumstances mav 
 demand. 
 
Vlli INTRODUCTION. 
 
 The Formulary is confined to diocesan affairs; 
 to bishops and priests and to their official rela- 
 tions. English being" the lang^uage of our diocesan 
 courts as well as of the Apostolic Deleg"ation in 
 Washing"ton, this Formular}^ is printed in English, 
 except where prudence requires the use of Latin. 
 The object of this work is not to give extensive 
 treatises on the various subjects mentioned, but 
 rather to offer an epitome of the law on necessary 
 points and to provide safe forms. 
 
 Whatever appears in the following pages is cheer- 
 fully submitted to the judgment and correction of 
 proper ecclesiastical authority. 
 
 Peter A. Baart. 
 Marshall, Mich., August 15, 1898. 
 
 Note to the Third Edition. 
 
 The favorable reception of "Legal Formulary" 
 has made a third edition necessary within six months 
 of the first issue. 
 
 The Holy Father himself has deigned to accept 
 the work and express the desire that through it 
 canon law may become better known in the United 
 States and that ecclesiastical affairs ma}^ be always 
 better regulated according to it. \ . 
 
 A few additions have been made to the text but . 
 the paging and paragraphing are the same, so that " ' 
 in quoting no confusion will ensue. 
 
 J;in. 25, 1S<M). 
 
PART FIRST, 
 
 Forms for Diocesan Appointments. 
 
 CHAPTER I. 
 
 THE NOMINATION OF BISHOPS. 
 
 1. Authorit}" in the Catholic Church comes from 
 above. Hence the appointment of bishops to vacant 
 sees depends directly or indirectly on the Sovereign 
 Pontiff. In those countries over which the Sacred 
 Cong-reg'ation of the Propag^anda has jurisdiction, 
 where the ecclesiastical hierarchy has been estab- 
 lished, the archbishop and the bishops of the pro- 
 vince in, which the vacant see exists, propose to the 
 Sacred Cong'reg'ation the names of three persons 
 whom they deem fit for bishop to fill the vacancy. 
 From the persons thus sugfg-ested, after hearing- the 
 deliberations of the Propag-anda, the Sovereig*n Pon- 
 tiff selects the bishop. However, this rig^ht of rec- 
 ommending* must be understood to impose no oblig^a- 
 tion on the Pope of selecting- one of the three sug-- 
 g-ested b}' the bishops. Not unfrequently does His 
 
2 LEGAL FORMULARY. 
 
 Holiness appoint some other person, especially if 
 there be contention. 
 
 2- This recommendation made by the bishops, in 
 some countries is made by them alone, in others with 
 the participation of the clerg'y. 
 
 In the United States the consultors and the irre- 
 movable rectors of a vacant diocese suo"<2rest to the 
 bishops of the province the names of three persons 
 whom they deem fit for filling- the vacancy. The 
 archbishop convokes the meeting", usually within 
 thirty days from the date of vacancy, and himself 
 presides at the session; or, if he is impeded, then 
 some suffragan bishop of the province desigfnated by 
 him. In case of vacancy in the archiepiscopal see, 
 the suffrag-an bishop who is senior in consecration 
 presides or designates another suffragan to preside. 
 
 3. The administrator of the vacant diocese has no 
 rig-ht of his own authority to call this meeting-; 
 neither has he any right to be present at it unless he 
 be a consultor or irremovable rector. Much less can 
 the vicar general, the chancellor or, the secretary of 
 the deceased bishop attend the meeting*. In fact 
 their term of office expires with the coming- of the 
 vacancy. The archbishop or the bishop who presides, 
 appoints one of the consultors or rectors to act as 
 secretar}^ of the meeting; but no extraneous person 
 may be introduced. 
 
 4. Before the consultors and rectors proceed to 
 vote for candidates, they are oblig-ed to make an oath 
 that they in voting will be guided neither by friend- 
 ship nor by favor. The ballot shall be a secret one 
 and the law distinctly says it shall be considered only 
 aconsultive not an elective vote. A person who is. 
 
THE NOMINATION OF BISHOPS. 3 
 
 both a consultor and rector nevertheless is entitled 
 to but one vote. Each of the three places — most 
 worthy, more worthy, worthy — is to be filled sepa- 
 rately, so that each voter may write only one name 
 at a time on his ballot. A majority of all the votes 
 cast, includino- blank ballots, is required for the nom- 
 ination to first place; then ag^ain, a majority of all 
 the votes cast is required for a nomination to the sec- 
 ond place. Likewise for the third. It is not neces- 
 sary, thouofh in cases it may be very advisable, that 
 a complete record of all the votes cast be included in 
 the minutes of the meeting*, so that all the names and 
 the circumstances may thus be broug-ht to the notice 
 of the bishops. 
 
 5. The bishop who presides will then send a copy 
 of the minutes, countersigned by the secretary of the 
 meeting", to the other bishops of the province and to 
 the Sacred Cong-reg^ation of the Propag^anda. Hence 
 these minutes should be written in Latin. Then 
 the bishops will meet at a time appointed and discuss 
 the names presented to them by the minutes and 
 form a judg^menton the candidates of the clergy and 
 on others proposed by themselves in accordance with 
 the instruction of the Sacred Propaganda under date 
 of Jan. 21, 1861. li the bishops judge that the 
 names proposed by the clergy should be rejected they 
 will not neglect to give their reasons to the Sacred 
 Congregation. 
 
 6. Since the bishops must discuss the candidates 
 in accordance with the instruction of Jan. 21, 1861. 
 it surely is advisable that the consultors and rectors, 
 unless they wish to have their nominations rejected, 
 should select only those to whom no objection can be 
 
4 LEGAL FORMULARY. 
 
 made. For this purpose the questions which are 
 proposed reg-arding- the necessary qualities of candi- 
 dates- for the episcopacy are g-iven herewith, taken 
 from the aforesaid iustruction and the Second Plenary 
 Council of Baltimore. First, the name, surname, 
 ag'e, native country of the candidate are asked. 
 Under this question it should be noted that the age 
 required is thirty years completed. By native coun- 
 try is meant the place of birth. The civil g-overn- 
 ments of some countries positively prohibit any alien 
 from occupying- a residential see; and as it is the spirit 
 of the Church that each country should have its native 
 clerg*y, so also is it her wish that bishops be natives 
 or at least naturalized citizens. Further, g-rave 
 complications mig-ht arise in the United States re- 
 garding- the tenure of real property by other bishops 
 than citizens. 
 
 7. The second inquiry is, to what diocese and 
 province does the candidate belong-. Under this head 
 it may be noted that the g-eneral law requires that 
 the candidate be a cleric of the diocese whose see is 
 to be filled . ' 'De g-remio ecclesi^, " says Reiff enstuel 
 Lib. /, Tit, 6,n. 2jj. Likewise the Roman Breviary 
 in the office of Pope Celestin, April 7, as well as 
 Cap. 12 Dist. 61, says that this Pontiff enacted 
 that "in the creation of bishops extraneous clerics or 
 those previously unknown should not be chosen to 
 the exclusion of meritorious ones in the church or 
 diocese itself." There are also reasons of policy for 
 such an enactment. A clerg-yman of the diocese 
 knows both priests and people better than a stranger, 
 and naturally has more influence with the public 
 than one commo- from another diocese or state where 
 
THE NOMINATION OF BISHOPS. D 
 
 both characteristics and policy are different. He is, 
 therefore, not so liable to make mistakes and upset 
 the entire reofinie of the diocese. Moreover, it is bet- 
 ter for the clerofy to be ruled by one they know than 
 to take chances on the disposition of one whose char- 
 acter is known to them onh^ by report. However, it 
 should be remembered, as remarked by Zitelli, Ap- 
 paratus Juris Ecclesiastic!, pag^e 16, that for ^ood 
 reasons the voters may select some one outside their 
 own bod}^ and even outside the diocese, but in doing- 
 this they must have g^reat care to select some one in 
 every wa}^ more worth}' than anyone in the vacant 
 diocese. This is enacted by Pope Celestin, as found 
 in Cap. 13 of Distin. 61, where he says: "But then 
 another mav be chosen from another diocese, if in the 
 diocese over which the bishop is to be placed no one 
 can be found who is worthy, which we do not believe 
 occurs. For these must first be considered and re- 
 jected, before those from other dioceses can be rig^htly 
 chosen." If, therefore, the consultors and irremov- 
 able rectors should choose a strang-er to the diocese, 
 their selection, more especially if complaint were 
 made, would be liable to rejection by the bishops or 
 the Propag-anda. {Confer Pignatelli, Tom. VI, 
 Consult. g2.) From the above quotation it follows 
 that the bishops must also first examine whether 
 there are worthy candidates in the widowed diocese, 
 before selecting priests from another diocese or pro- 
 vince. Especially is this true of old established dio- 
 ceses with a numerous clerg*y. 
 
 8. The third question asks where the candidate 
 has made his studies and wnth what success. The 
 fourth question asks whether he has earned any de- 
 
(^ LEGAL FORMULARY. 
 
 grees and which ones. The degrees here meant are 
 those g-iven by Catholic universities, that is, such as 
 have a pontifical charter and confer dej^rees by papal 
 authority. Universities which are Catholic in name, 
 but confer degrees only by state or civil authority, 
 cannot give their laureates any canonical privileges, 
 for their degrees are not recognized by the Church. 
 (S. Cong-. Cone. 2^ Afr. 166^, 21 Feb. 168^. Confer 
 Mo)iacelli Sup-pl. T. /, 7i. 6.) This distinction is im- 
 portant, for doctors and licentiates of Catholic uni- 
 versities have many privileges specifically recognized 
 in church law. Some of these privileges are the fol- 
 lowing: 1*^. They are placed in dig-nity, and there- 
 fore may receive papal letters, ordinarily not sent to 
 the lower clergy. 2^. They rank with nobles, and 
 by their degrees obtain true nobility and all its priv- 
 ileges. This is an important social consideration, 
 especially in E^urope. 3°. They are exempt from 
 both real and personal taxes according to the Roman 
 civil law. 4*^. There is always a strong presumption 
 in their favor and when found g-uilty of any crime, 
 according to the same law, they are to receive lighter 
 punishment than others. This holds in ecclesiastical 
 law even to the present day. 5°. In conferring eccle- 
 siastical dignities and benefices, other things being 
 equal, doctors and licentiates must be preferred. In 
 fact, the law specifically provides that the cathedral 
 chapter must choose a doctor or licentiate of law or 
 theology to act as administrator of the diocese when 
 vacant, and if the chapter should choose some one 
 else not a laureate, their act would be invalid. In a 
 similar way there is an obligation to choose a doctor 
 or licentiate for bishop provided he has the other 
 
THE NOMINATION OF BISHOPS. / 
 
 necessary qualities. Therefore, one of tbe questions 
 to be answered in the process prepared for fillinof an 
 episcopal see is, "What deg-rees has the candidate 
 received and in what university?" The deg"rees here 
 meant are of canon law and theolog-y, not those of 
 arts and medicine. The honorary deg^ree of LL. D. 
 granted by secular colleg'es is not recog'nized in 
 ecclesiastical law. 
 
 According" to the g-eneral law of the church a 
 canonist is to be preferred to a theolog-ian in filling- a 
 vacant bishopric. So exacting- is the law that doc- 
 tors or licentiates must be chosen for bishops that in 
 the bulls of appointment issued from the Apostolic 
 Chancery, if the Pope chooses a person not a lau- 
 reate, he first ofrants a dispensation from this neces- 
 sary requirement and records it in the bull of ap- 
 pointment. It follows that laureates of Catholic 
 universities have an inherent rig-ht to be considered 
 in filling- the vacant see of the diocese to which they 
 belong-, and a neglect to consider them before select- 
 ing- from outside the diocese would be a just cause of 
 complaint and a reason for rejecting- the candidates. 
 
 9. The institutions in the United States which 
 confer deg-rees by pontifical authority are: The 
 Catholic University of America, in Washington, D. 
 C, chartered March 7, 1889; Georgetown Univer- 
 sity, in charge of the Jesuits, also in Washington, 
 chartered March 30, 1833; St. Mary's University, in 
 Baltimore, Md., in charge of the Sulpitian Father-s, 
 chartered April 18, 1822, by Pope Pius VIII. In 
 Canada, Ottawa and Laval universities have pontifical 
 charters. At present E^ngland and x\ustralia have 
 no Catholic universities. The bishops of Ireland 
 
8 LEGAL FORMULARY. 
 
 have a charter for a university, but it has never been 
 fully developed. In 1896 Pope Leo XIII g-ranted 
 Maynooth colleg-e authority to confer deg-rees in the- 
 olog-y and philosophy. Belgium, France, Spain, 
 Germany, Switzerland, Austria and especially Italy 
 have universities v^^hich confer decrees by papal 
 authority. 
 
 Doctors or masters are they who have obtained the 
 higfhest g-rade and insig^nia in theolog-y, law, medi- 
 cine or philosophy. The titles of master and doctor 
 are interchangeable; but custom as well as the stat- 
 utes of certain universities, such as the Sarbonne, 
 Louvain, Salamanca, and the practice of the Roman 
 Court have brought it about that the}^ who obtain 
 the hig-hest degree in theology are called masters of 
 theolog}^ but they who obtain a similar degree in 
 law or in other sciences are called doctors. 
 
 Licentiates also come under the name of masters 
 or doctors, and participate in all their privileges. 
 Licentiates are they who have the license or faculty 
 of taking whenever they wish the highest grade, and 
 the public insignia thereof, in theology, law or medi- 
 cine, because after examination they were not only 
 found worthy, but were solemnly and lawfully given 
 these rights. This degree is not given by sec- 
 ular universities, except at Cambridge, England, 
 and there only in medicine. Bachelors are they who 
 have obtained the first testimony of their progress 
 and the first deg'ree in any science or faculty. The 
 requirements for this degree vary considerably in 
 different universities. Bachelors obtain no canonical 
 or ecclesiastical privileges. The insignia of the doc- 
 torate are the four-cornered cap, and a gold ring. 
 
THE NOMINATION OF BISHOPS. 9 
 
 with a siiigfle stone setting-, which is to be worn on 
 the ri«"ht hand. Some universities have also special 
 insig"nia, particularly in the hoods or capes worn by 
 their laureates. 
 
 Universities which confer deg-rees by pontifical 
 authority can ofive them only to such candidates 
 as are found worthy through examination, and are 
 sound in the Catholic faith as well as conspicuous for 
 morality. During- the ceremony of conferring the 
 degree, especially in theology, the candidate is re- 
 quired to make a profession of faith, and to swear 
 assent to the following- articles: V . That he will 
 never teach or write intentionally anything* that is 
 repugnant to Holy Scripture, tradition, the defini- 
 tions of g'eneral councils or the decrees of the Supreme 
 Pontiffs. 2^. That he will be watchful in doing his 
 share to preserve the unity of the Church and not let 
 the seamless g^arment of Christ be rent b}^ divisions; 
 also that he will be studious in seeing* due honor 
 paid to the Sovereign Pontiff, and obedience and rev- 
 erence to his own bishop. 3°. Under the same oath 
 he promises to defend the Christian, Catholic and 
 Apostolic faith even to the effusion of his blood. 
 
 10. The fifth question of the process asks whether 
 the candidate has been a professor and if so of what 
 facult3^ The sixth reg*ards the parish work of the 
 candidate and his success therein. The seventh 
 query is how many and which lang-uages does he 
 know. The eighth question asks what offices has he 
 filled and with what success. The ninth inquires 
 into his prudence in deliberations and in action; and 
 the tenth asks whether he is in good bodily health, 
 temperate, patient and well versed in administering- 
 
10 LEGAL FORMULARY. 
 
 temporal affairs. The eleventh query is whether he 
 be of constant or of chang-eable mind; the twelfth, 
 whether he be of gfood reputation, or whether at any 
 time there was in his conduct something- ag^ainst 
 ofood morals. The thirteenth question asks whether 
 he is attentive in performing- his sacerdotal duties, 
 edifying- and observant of the rubrics; and the last 
 asks whether in dress, carriag-e, walk, speech and 
 all else he shows forth g-ravity and relig-ion. 
 
 From the answers to all these questions a com- 
 plete knowledg-e of the candidates can be g-athered, 
 and a judicious selection seems possible. This pro- 
 cess is of oblig-ation for all countries subject to the 
 Propag-anda. 
 
 11. When there is question of desig-nating- a coad- 
 jutor with the rig-ht of succession to a bishop, the 
 same method is followed as in case of a vacancy, with 
 this only difference that in such case the archbishop 
 or bishop, for whom a coadjutor is sougfht, presides 
 at the meeting- of the consultors and irremovable rec- 
 tors, or if he is hindered then his vicar gfeneral or 
 some other deleg-ated priest. Further, in this case 
 it is not improper for him to sug-g-est the names of 
 those whom he judges best adapted for the position 
 of coadjutor. However, the voters are in no way 
 bound by his desig-nation. When there is question 
 of a coadjutor for an archbishop, all the archbishops 
 of the other provinces are also to be consulted. This 
 obtains a fortiori when a new archbishop is to be 
 selected. For the appointment of only an auxiliary 
 bishop the above method is not strictly necessary. 
 
 When a new diocese is erected, the same reg'ula- 
 tions are followed, except that the consultors of the 
 
THE NOMINATION OF BISHOPS. 11 
 
 old diocese or dioceses from which the new one is 
 formed and the irremovable rectors of the new diocese 
 meet to sug-gest the names of three candidates. 
 
 12. In Australia nearly the same method is pre- 
 scribed as in the United States. 
 
 In Eng"land, where they have cathedral chapters, 
 the dig'nitary and canons of the vacant see meet 
 under the presidency of the archbishop, or if he is 
 detained or there is question of a vacancy in the 
 archiepiscopal see, then under the senior bishop. 
 The presiding- bishop, however, takes no other part 
 in the matter. The capitular acts are immediately 
 sent to the archbishop or the senior bishop, who 
 summons the other bishops to a meeting-, at which, 
 having* compared notes, they make a w^ritten report 
 on each of the three candidates and annex their judg-- 
 ment. The three names, it should be noted, are ar- 
 rang-ed in alphabetical order. 
 
 The same method is followed in Scotland as in 
 E^ngland. 
 
 13. In Ireland, the metropolitan of the province by 
 letter directs the vicar capitular to summon for a 
 meeting-, to be held twenty days after the call, all who 
 have a right to recommend candidates to the Sover- 
 eig"n Pontiff. All parish priests, w^ho being- free 
 from censure, have actual charg-e of parishes, must 
 be summoned. Where there is a cathedral chapter 
 the canons must also be called. The metropolitan 
 or one of his suffrag-ans deleg-ated by him will pre- 
 side; but pending' a vacancy in the metropolitan see 
 the senior suffrag-an wnll preside. After an oath to 
 choose the one they deem worthy, all will cast their 
 ballots. A duplicate cop}' of the minutes is made, 
 
12 I^EGAL FORMUIyARY. 
 
 one of which the vicar capitular sends to the Propa- 
 o*anda, the other to the metropolitan. The metro- 
 politan and the sufiFrag-an bishops then meet and form 
 a judg"ment on the candidates, which is put in writ- 
 ing' and sig"ned b}^ each bishop, sealed and sent to the 
 Holy See. When the commendation is once made by 
 the clerg"y, if the bishops deem the three candidates 
 unworthy, the Sovereig'n Pontiff will make the ap- 
 pointment without another recommendation. The 
 same method is followed in nominating- a bishop- 
 coadjutor with the rig"ht of succession, except that 
 in such case the bishop who seeks the coadjutor 
 presides. 
 
 14. In Holland the cathedral chapters present the 
 names of three candidates, concerning- whom the 
 bishops form a judg"ment and report to the Holy See 
 whom they deem more worthy. 
 
 In Canada the archbishop and the bishops of the 
 province propose three names to the Propag^anda. 
 In other places, where the law gfives no one the rig^ht 
 of recommendation, the Sacred Cong'reg'ation of the 
 Propag-anda sug-g-ests a worthy candidate to the 
 Holy Father. 
 
 In those places where the hierarchy is not yet 
 established, but where vicars apostolic with the 
 episcopal character exercise jurisdiction, the superior 
 of the relig-ious order in charg^e of the missions of 
 that territory recommends a person for vicar apos- 
 tolic. Where no relig-ious order has control the Holy 
 Father, after consulting- the Propag^anda, makes the 
 appointment. * 
 
 15. No special form is required for drawing* up the 
 minutes of the meeting of the consultors and irre- 
 
THE NOMINATION OF BISHOPS. 13 
 
 movable rectors mentioned above. Certain facts 
 should of necessity be stated, such as the date and 
 place of the meeting-, the previous issuance of the 
 call, the bishop presiding", the names of those present 
 and whether they constitute all or at least a majority 
 of those entitled to vote. The details of the meeting- 
 may or may not be g-iven, but care should be taken 
 to express distinctly the full names of those selected 
 for the three positions of dig'nissimus, dig-nior, dig'nus. 
 The sig-natures of the presiding* bishop and of the 
 secretary of the meeting' must be attached to the 
 document. Good policy usually requires that the 
 names proposed be kept secret; but there is no au- 
 thority for exacting- an oath to this effect. 
 
CHAPTER II. 
 
 APPOINTMENT OF VICAR GENERAL. 
 
 16. Usually one of the first concerns of a bishop is 
 the selection of a competent vicar g^eneral. A vicar 
 creneral is a cleric leg"itimately appointed to exercise 
 in a general way episcopal jurisdiction in the bishop's 
 stead and in such a manner that his official acts are 
 considered the acts of the bishop himself. Once 
 appointed the jurisdiction of the vicar general is 
 ordinary from the office, not delegated from the 
 bishop. Hence no appeal lies to the bishop from the 
 action of the vicar general, but only to the metropol- 
 itan or other higher authority. 
 
 17. It is controverted whether a vicar general 
 must have by virtue of his office jurisdiction in tem- 
 poral matters as well as in spiritual; but it seems 
 from the council of Trent (Sess. /j, chap. 2 and j 
 de re/.) and from the practice of the Roman Court 
 that a cleric with general jurisdiction over the dio- 
 cese only in spiritual matters may nevertheless 
 rightly be called a vicar general. On the other hand, 
 a cleric with jurisdiction only in temporal matters 
 even over the whole diocese, is surely not a vicar 
 general, but, as doctors teach, is to be considered a 
 procurator or econome and cannot be a delegate of 
 the Holy See unless he is otherwise in dignity. 
 When a bishop appoints a cleric his vicar general 
 
 14 
 
APPOINTMENT OF VICAR GENERAL. 15 
 
 without' restriction, the law ^ives the appointee 
 jurisdiction in both spiritual and temporal matters. 
 Hence if a bishop prefers that the vicar g'eneral 
 should not interfere in the temporal administration 
 of the diocese he should be careful to limit jurisdic- 
 tion in the document of appointment. For this 
 reason, also, a copy of the appointment of the vicar 
 general should be broug^ht to the notice of all the 
 clerg'y of the diocese. They are not only in reason 
 but in law entitled to know what powders diocesan 
 officials possess. What is said of the vicar g^eneral 
 in this respect is true of all others claiming* to possess 
 diocesan authorit}^ or jurisdiction, the bishop alone 
 excepted, for the law sufficiently proclaims the extent 
 of his authority. 
 
 18. The present law g-athered from Roman decis- 
 ions says that a vicar gfeneral must be a cleric at 
 least t\venty-iive years of ag'e, and a doctor or licen- 
 tiate of law or at least of theolog-y in some pontifical 
 universit}-. The Sacred Cong'reg'ation of Bishvops 
 and Regfulars has several times decided that a bishop 
 cannot choose a vicar general among* the diocesan 
 clerg-y but must select a cleric from another diocese, 
 and Bouix sa3^s a papal dispensation is required be- 
 fore a bishop may appoint a diocesan his vicar gen- 
 eral. It is also the common law that no parish 
 priest or rector of the seminary can be the vicar 
 general, these offices being incompatible. It is inter- 
 esting to note that the schemata of the Vatican 
 council contained a distinct chapter on the vicar gen- 
 eral — this being the first time the office is treated 
 ex ^rofesso in any g-eneral council. The schema 
 proposed "that the vicar general should be a priest, 
 
16 IvEGAIv FORMULARY. 
 
 not less than thirty years of ag-e, a doctor or licen- 
 tiate in canon law, and not the canon penitentiary, a 
 parish priest or anyone having- the care of souls, nor 
 the brother or nephew of the bishop." 
 
 Up to the present time in the United States the 
 vicar g-eneral has been chosen usually from the dio- 
 cesan clerg-y and not unfrequently parish priests have 
 been selected. The necessary qualification of the 
 doctorate or knowledg^e of law seems to have been 
 overlooked in manv cases and the vicar g"eneral 
 chosen for such considerations as lonof, meritorious 
 service, friendship and the prominence of one's con- 
 g'reg'ation. Whether this has been to the advantag^e 
 of the church and the better administration of justice 
 seems very doubtful. The vicar general, like a 
 bishop, is supposed to be chosen for his personal 
 qualifications, chief among- which are a knowledge 
 of canon law, fearlessness in decision and prudence in 
 action. Ferraris, verho Vicarii Generalis, art. /, ;/. 
 j(?, quoting decisions of the Sacred Congregation, 
 concludes that if recourse is had to the Sacred Con- 
 gregation of Bishops and Regulars against a bishop 
 not having a canonist as his vicar general, the order 
 is generally sent that the bishop must have a doctor 
 as his vicar general. However, when the bishop 
 himself is a jurist the S. Cong-regation sometimes 
 permits him to have one not a doctor if he is other- 
 wise fit. 
 
 19. Ever}^ bishop of a residential see may ap- 
 point a vicar general. He need seek neither the con- 
 sent nor the advice of his chapter or consultors in 
 the matter. The administrator of a vacant see, 
 after the confirmation of his own appointment bv 
 
VICAR GENERAL. 17 
 
 the Holy See, may appoint a vicar g-eneral, because 
 he then has ordinary jurisdiction. The administra- 
 tor of a diocese whose bishop is still living- seems 
 to have the same rig-ht, if he is the sole administra- 
 tor; if he is not sole administrator there could easil}' 
 be a clashinio" of authorit}- between the vicar g-eneral 
 of the administrator and the vicar ifcneral of the 
 absent bishop. 
 
 The Holy See mav and in fact s(jmetimes does ai)- 
 point a vicar g-eneral for a bishop, especially when 
 the bishop alone cannot administer his diocese and 
 nevertheless neglects appointing- a vicar g-eneral. 
 This appointment by the Holy See is g-enerally made 
 by asking- the bishop to send the Holy See an appoint- 
 ment of a vicar g-eneral sig-ned by the bishop, but 
 with the name of the appointee left blank. The 
 Holy See then chooses the person, fills in the name 
 and sends the vicar g-eneral into the diocese. The 
 bishop has no power without the consent of the Holy 
 See to remove a vicar general - thus constituted. 
 However, in such a case the faculties of the vicar 
 general expire with the death of the bishop. 
 
 20. At times also the H0I3' See appoints a vicar 
 apostolic to rule a diocese instead of its bishop. In 
 such cases the exercise of all jurisdiction belongs to 
 the vicar and the bishop may not interfere in any 
 way. Various causes render necessary the appoint- 
 ment of such a vicar, but they ma}^ be reduced to 
 this one; namely, w^hen there is grave reason, either 
 with or without the fault of the bishop, that he 
 should be removed from the administration of the 
 diocese, and if at the same time the cause is not such 
 as to entail deposition and again for other reasons it 
 
18 LEGAL FORMULARY. 
 
 is uot expedient to appoint a coadjutor bishop. 
 {Confer Roman Court by Baart, f>ag-e j2j.) When a 
 vicar apostolic is in charg-e the bishop can have no 
 vicar general. The appointment of a vicar apostolic 
 is made direct by an apostolic brief or a letter of the 
 Sacred Congregation of Bishops and Reg*ulars, or in 
 the United States, of the Propaganda. 
 
 21. It is controverted whether a bishop is obliged 
 to appoint a vicar general. The Roman Rota holds 
 that he is not strictly obliged if the bishop resides 
 in his own diocese constantly. In practice, if re- 
 course is had to the Holy See by the diocesans and a 
 showing made that a vicar general was formerly 
 appointed in the diocese, the Holy See will order an 
 appointment. On the other hand in a small or very 
 poor diocese a dispensation is sometimes granted, 
 and even renewed, freeing the bishop from the neces- 
 sit}^ of constituting a vicar general. It is also con- 
 troverted whether a bishop as a rule can have sev- 
 eral vicars general. When there are different rites 
 in his diocese such as the Latin and the Greek, the 
 bishop not only may but should appoint a vicar g'en- 
 eral for each rite. Again when a bishop rules two 
 dioceses he may have a vicar general for each, espec- 
 ially if the dioceses are distant. While there can be 
 no "honorary vicars g'eneral" still where such is the 
 custom it seems more probable that two vicars gen- 
 eral may be appointed, each having jurisdiction in 
 solidiim and both being equal. In such case, as in 
 the case of one vicar general, they must both reside 
 in the episcopal city. {Communis doctorum.) While 
 each retains full jurisdiction, still as a matter of con- 
 venience they may divide work. However, accord- 
 
VICAR GENERAL. 19 
 
 iug* to a declaration of the Sacred Propa«-anda dated 
 Dec. 22, 189b, It is certain that a bishop in the United 
 States can sub-dele^rate the extraordinary faculties 
 contained in schedules D and E to only one vicar 
 ofeneral. Formerly several vicars general were rec- 
 og-nized in these faculties, but the Holy Office ordered 
 a chano-e so that only one is now recog"nized. 
 
 22. The vicarship g-eneral is a diofnity, for it is an 
 office to which precedence with jurisdiction is an- 
 nexed. But it is not a prelacy, because the vicar 
 .jLJfeneral exercises gfovernment not in his own name, 
 but in that of another. His jurisdiction expires by 
 his own resio'nation or that of the bishop, by the 
 death, transfer, suspension or deposition of the 
 bishop, or by the revocation of his appointment by 
 the bishop. This revocation, while always valid, is 
 not licit except for g-rave and just cause, w^hich being 
 absent the Hol}^ See may re-instate the vicar general. 
 In the diocese over which he has jurisdiction the 
 vicar general takes precedence next after the bishop. 
 
 23. The vicar general is entitled de jure conimnni 
 to a support which the bishop must pay from his 
 own salary or income. The bishop is also responsi- 
 ble for the excesses or mistakes of his vicar general 
 in official acts, especially if his bad character or igno- 
 rance is or should be known to the bishop. For his 
 official misdeeds, according to a decision of the Sacred 
 Congregation of the Council, the metropolitan even 
 in the first instance is the competent judge, but for 
 his private evil deeds the bishop may punish his 
 vicar general. 
 
 24. By virtue of his office the vicar general can as 
 a rule do what the bishop can do de jure ordiiiario: 
 
20 LEGAL FORMULARY. 
 
 but at present both the law and the will of the 
 bishop usually require that a special mandate be 
 o'iven the vicar o-eneral in order tha,t he may act 
 validl}' in certain cases. A vicar ^-eneral in the 
 United States appointed oralh^ or without a special 
 mandate may rig-htly concur with all the pastors of 
 the diocese in the administration of the sacraments 
 and in preaching-. Where the decree "Tametsi" is 
 in voo-ue he, bein«f the ordinary, may validly assist at 
 marriag'es. He may hear confessions, absolve from 
 cases reserved to the ordinary, (not to the bishop 
 solely) and also g-ive other priests faculties to do so. 
 He can appoint a deleg*ate for certain cases, dispense 
 with all proclamations of the banns, compel pastors 
 of parishes to fulfill their care of souls even by order- 
 ing' them to accept assistants. 
 
 25. A special mandate is required by the vicar 
 general, even thoug-h he be a bishop, before he ma}^ 
 g-rant dimissory letters for the reception of orders 
 fexcept when the bishop is in distant countries and 
 will not return for a long* time.) A special mandate 
 is also required for appointments to parishes or ben- 
 efices, as well as for erecting-, dividing" or uniting- the 
 same. Neither can he g"ive another bishop permis- 
 sion to exercise pontificalia in the diocese. Further 
 he cannot visit the diocese, call a synod, take cog- 
 nizance of the g-raver crimes of ecclesiastics, nor de- 
 pose them from benefice, parish or order; nor in gfen- 
 eral can he dispose of matters of a g-rave character. 
 However all these thiug-s he may do by a special 
 mandate g-iven either once for all or for the individ- 
 ual case. 
 
 Usually and rig-htly a l/ishop, even thoug-h he has 
 
V^ICAR GENERAL. 21 
 
 a bishop for vicar o-eneral, reserves for himself cer- 
 tain powers, such as conferrino* benefices and par- 
 ishes, adniittino- priests into the diocese or g^rantin^* 
 exeats to leave it, blessing- the holy oils, g-iving- con- 
 firmation, consecrating churches, conferrinor holv 
 orders, g-ranting- other bishops permission to use pon- 
 tificalia in his diocese. In case he wishes the vicar 
 g'eneral to act he g^ives him special jurisdiction for 
 the individual case, either verbally or by note. 
 
 26. In those matters in which the bishop acts as 
 the deleg'ate bv law of the Holv See he usuallv g-ives 
 his vicar g*eneral jurisdiction by a special mandate. 
 In the United States and other countries where 
 bishops receive extraordinary faculties from the Holy 
 See, the bishop by special mandate, iii quantum 
 possiuuHS, gives his vicar g-eneral the faculties in 
 Form I and Facultates Extraordinaria? C. But he 
 should not include the Facultates Extraordinaria^ D . 
 and E in any gfeneral mandate. Neither can he sub- 
 deleg*ate these faculties to two vicars greneral nor to 
 a chancellor. The answer of the Propag'anda Dec. 
 22, 18%, says that a bishop should nominate a vicar 
 g"eneral in curia and sub-delegfate these faculties to 
 him only, and, if necessary, also to two or three 
 priests in the remote part of the diocese, but only 
 for a certain number of urg-ent cases in which access 
 cannot be had to the bishop. For safety these sub- 
 deleg-ations should be in writing- and state the date 
 whereon the bishop himself received the faculties 
 from the Holv See. 
 
 27. Not only to prevent confusion, but also for 
 safety and lest his authority be disputed, the vicar 
 •g-eneral should be appointed in writing- and this doc- 
 
22 LvEGAL FORMULARY. 
 
 ument be recorded in the chancery and made known 
 to the diocesan clergfy. It is presumed that a vicar 
 t^eneral has jurisdiction in the matters mentioned 
 above in number 24; but he is oblig^ed to publish his 
 authority for claiming- jurisdiction in the matters re- 
 quiring" a special mandate. Herewith is gfiven a 
 form for the appointment of a vicar gfeneral. If two 
 vicars gfeneral are appointed, exactly the same doc- 
 ument, changfing- only the name, should be sent to 
 each, for they must be appointed in solidimi. E)ach 
 may then receive instructions as to the division of 
 work. It seems more prudent to g'ive the vicar g*en- 
 eral a full commission, and then, if the bishop desires 
 the vicar not to interfere in certain matters, simply 
 to so inform him. In case the bishop is then called 
 away suddenly there will be no doubt of the juris- 
 diction of the vicar g^eneral. 
 
 ''N — Dei et Apostolica.^ Sedis g-ratia Kpiscopus N. 
 
 Dilecto Nobis in Christo N — , salutem in Domino. 
 
 Cum onus Kpiscopalis ministerii tanti sit momenti, 
 ut etiam ipsis angelicis humeris formidandum videa- 
 tur, operas pretium duximus in administratione Epis- 
 copatus N — quem Sanctissimus Dominus N — Papa 
 nostrse imbecillitati superimposuit, vicarium idoneum 
 advocare, qui partem sollicitudinis nostrae in se 
 assumendo, pondus quo ultra vires premimur alleviet. 
 Hinc aciem nostras mentis in personam tuam diri- 
 g^entes, et de fidelitate, probitate, prudentia, scientia 
 et experientia, aliisqiie quibus polles virtutibus plene 
 confisi, Te nostrum Vicarium Generalem ad nostrum 
 beneplacitum in dicto nostro Episcopatu N. in spirit- 
 ualibus et temporalibus tenore prsesentium facimus, 
 constituimus et deputamus, dantes et concedentes 
 Tibi: 1^ potestatem officii ordinariam, et 2^ man- 
 datum specialeecclesias, altaria et oratoria aedificata, 
 
VICAR GENERAL. 23 
 
 et aedificanda et divino cultui deputata benedicetidi. 
 eaque poUuta (non tamen consecrata) reconciliandi: 
 a casibus quibuscunque Nobis reservatis absolvendi 
 et aliis confessariis ut ab iisdetii absolvere possint 
 facultatem deleg-andi, publicas, et solemnes poeniten- 
 tias injungendi, letteras commendatltias et testimo- 
 niales concedeiidi, et insuper dimissorlas ad quos- 
 cuuque ordines datidi et super interstitiis dispensandi 
 Nobis tamen a Dioecesi absentibus; causas matrimo- 
 niales cog-noscendi et decidendi, procurationem visi- 
 tationis, synodaticum seu cathedraticum aliasque 
 consuetas pecunias, et charitativum subsidium, ut 
 juris erit, exig-endi; 3"" mandatura item speciale, 
 (Nobis tamen prius consultis nisi urg-eat moralis nec- 
 essitas) novas parochias et missiones erigendi et 
 erectas collapsasque reficiendi, ad parochias vacantes 
 coucursum indicendi et economos tempore vacationis 
 instituendi, coadjutores rectoribus parochiarum im- 
 peritis et infirmis dandi; causas omnes ad forum 
 nostrum tam de jure quam ex consuetudine spectantes 
 et pertinentes, etiamsi feudales et ha^resis sint. cog- 
 noscendi et decidendi: edicta nostra exequendi, cen- 
 suras fulminandi et ab ordine, officiis, administratione 
 et beneficiis, prout juris erit, suspendendi, privandi, 
 destituendi et deponendi; inquisitos, excommunicatos 
 a canone, suspensos et interdictos a jure in casibus 
 Nobis permissis absolvendi; causas criminales cog'- 
 noscendi et decidendi, pias voluntates exequendi, in 
 alienatione bonorum ecclesiarum et locorum piorum 
 ad formam sacrorum canonum auctoritatem prasstandi 
 et decreta interponendi: loca pia etiam exempta et 
 monasteria monialium visitandi, literas apostolicas 
 Nobis seu vicario nostro directas et dirig'endas aper- 
 iendi et (nisi industria persona? eligatur) exequendi: 
 jurisdictionem in regulares et exemptos ad formam 
 Sac. Concil. Tridentini, constitutionum Apost. et 
 decretorum Sac. Cong, exercendi, confessarios tum 
 seculares tum regulares exaniinandi et ad tempus 
 approbandi et facultatem eis concessam ex causa 
 
24 LEGAL FORMULARY. 
 
 revocandi, voluntatem puellarum habitum religionis 
 suscipere sive profiterl volentium rNobis impeditis 
 aut absentibus) explorandi, liceutias pro ingressu in 
 clauslrum monialium, pro rebus taiitutn necessariis, 
 officialibus, artilicibus et colonis concedendi. 
 
 4^ Ad haec, commuuicamus Tibi cum facultatc 
 sub-delegandi in quantum ordo permittit et Nos 
 possuraus, Facultates in Forma I a Sancta Sede 
 Nobis concessas die mensis 18 — , et Facul- 
 tates Kxtraordinarias C, ab eadem Sancta Sede 
 
 die mensis 18 — , Nobis concessas. Facul- 
 
 tatem insuper concedimus unum vel plures vicarios, 
 Nobis absentibus, in casu alicujus necessitatis 
 cum eadem vel minori auctoritate nomine 
 nostro ad tenipus substituendi, et cetera exercendi 
 qua ad officium vicariatus noscuntur pertinere. 
 Volumus autem quod in Vicarium nostrum g"eneralem 
 onines Nobis in episcopatu et jurisdictione subjecti 
 Te recog"noscant, recipiant et admittaut, atque ut 
 par est, Tibi obediant. Si quis vero inobediens 
 fuerit condiofna poena feriatur. 
 
 In quorum fidem nomen nostrum et siii'illum im- 
 posuimus. 
 
 Datum die — — -mensis A. D. 189~. 
 
 [l. s.] N. N. Episcopus N. 
 
 N. N. Secretarius." 
 
 If the bishop has already appointed his chancellor 
 this official should sig-n the above document instead 
 of the bishop's secretary. 
 
 28. If an archbishop with suffragans is to appoint 
 a vicar general, with, a chang^e of names, the same 
 form as that used by a bishop may be employed. 
 But because of his appellate jurisdiction the follow- 
 \no; should be inserted before the 4^ of the above form: 
 
 "Ut cuncta autem adimpleantur ex omni parte 
 quct' pertinent ad prinium (u'dineni hierarchicum et 
 
VICAR GENERAL. 2d 
 
 ecclesiam metropolitanam, neciion ad digriitateni 
 nostram et jurlsdictionem, Tibi etiani speciale man- 
 datum damus et concedimus causas criminales ct 
 civiles, matrimoniales et beneficiales et quascunque 
 alias tarn principales quam iucidentes et per appella- 
 tioiiem devolutas et in posterum devolvendas, et quae 
 ad dictam nostram ecclesiam pertinebunt de jure vel 
 consuetudine, audiendi et de ipsis coefnoscendi; et 
 cetera omnia quae sunt episcopalis et archiepiscopali*^ 
 jurisdictionis exercendi et terminandi/' 
 
 29. When the vicar general is elected he must lake 
 possession of his office reg'ularly. Where there is a 
 cathedral chaper, at an appointed time the letters 
 of appointment are read before it by a notary or the 
 chancellor, and a record of the matter is^made on the 
 letters themselves and filed also in the chancery 
 office. This form may be used: 
 
 "In nomine Domini, Amen. Reverendus Dominus 
 N. possessionem cepit sui officii vicariatus, mediante 
 mandato episcopi (vel archiepiscopi) praesentibus 
 
 omnibus (vel ) dominis canonicis et dignitatibus 
 
 capituli hujus cathedralis ecclesi^; die mense 
 
 anno hora . In quorum fidem etc. Datum in 
 
 urbe die mense anno . Eofo N. N. 
 
 Notarius (vel cancellarius) curiae episcopalis." 
 
 If there is no chapter then a record ma}' be made 
 in the chancery office and a notice be sent by mail tc 
 the clero-v of the diocese. A similar form mav be 
 used, with proper chang-es, for recordin^r the taking- 
 possession of other ecclesiastical offices; for by com- 
 mon law every official must take possession regularly. 
 
 30. When the vicar general desires to be absent or 
 for another reason wishes to sub-delegate he may 
 use this form: 
 
 ,> 
 
26 LEGAL FORMULARY. 
 
 "In the name of Christ, Amen. N., N., vicar gfeu- 
 eral in spiritual and temporal matters of the Most Rev- 
 erend N. N., the Bishop of N — , wishing" to be 
 absent from the city of N — , for the purpose of 
 (here state the reason), in order .that justice may be 
 administered in those matters which pertain to epis- 
 copal government, has substituted, deputed and 
 placed in his stead until his return the Reverend N. N. 
 with the same authority which he himself possesses. 
 Hoc et omni meliori modo. 
 
 Dated . ^Ro, N. N. Vicar General. 
 
 In the presence of N — and N — , Witnesses. 
 
 N. N. Chancellor." 
 
 This form is to be placed in the chancery in orig- 
 inal or copy. 
 
 31. When the Holy See appoints a vicar apostolic 
 for a vacant diocese at times it uses the form of 
 brief, which it is not necessary to quote, since it is 
 beyond the scope of this work. But when the Sacred 
 Congregation makes the appointment, the letjter is 
 couched in about these words: 
 
 "To the Reverend N. N. Vicar Apostolic. Rev- 
 erend Sir: His Holiness, for reasons known to his 
 sublime prudence, has deigned to appoint you with 
 the title of vicar apostolic to the government of the 
 vacant episcopal see (church) of N — , with all the 
 necessary and opportune usual faculties, emoluments, 
 and prerogatives except those of conferring benefices 
 and granting dimissory letters to those to be pro- 
 moted to orders. Fail not, therefore, to correspond 
 with due application to the favor which His Holiness 
 has thus deig*ned to confer, and may God there 
 prosper you. 
 
 Rome . Cardinal . 
 
 M — , Archbishop of , Secretary." 
 
 32. When, however, a vicar apostolic is appointed 
 
VICAK APOSTOLIC. 27 
 
 by the Holy See, not durinf^ a vacancy, but in order 
 to suspend the jurisdiction of the bishop, the Sacred 
 Cono-reofation uses letters in about this form: 
 
 ''To the Rev. N. N. Vicar Apostolic. Reverend 
 Sir: An order having" been made by His Holiness 
 that a vicar apostolic be sent for the g-overnment of 
 
 the see of , it was resolved to depute you to the 
 
 exercise of this charg^e, with the provision of 200 
 scudi a year besides the emoluments of the office, 
 expenses ofoing- and returning" and proper habitation 
 in the episcopal palace, or somewhere else at the 
 expense of the bishop's manse; communicating- to 
 you for such purpose by means of these presents all 
 the faculties .usually gfranted to vicars apostolic, 
 except only the conferring" of benefices and the g^rant- 
 ing" of dimissory letters; sig'nifying- to you also to 
 take possession as soon as possible of this charge. 
 And may God prosper you." 
 
 The following- is the letter sent to the bishop in 
 such cases: , 
 
 "His Holiness having" resolved to depute a vicar 
 apostolic to the gfovernment of your see for causes 
 known to His Holiness, I make this known to Your 
 Lordship in order that you may conform properly to 
 the resolution of His Holiness, being- content to leave 
 toN. N. Dig-nitary of N — , appointed to that charg-e 
 the gfovernment of the said see. 
 
 Following" is the letter sent to the chapter in such 
 cases. 
 
 "His Holiness, Pope N — , having" resolved, for 
 reasons known to himself, to depute a vicar apostolic 
 to the g"overnment of your church and having- 
 for that purpose chosen the person of N. N. I inform 
 you thereof and notify you to the end that 3'ou may 
 g"ive him possession of it, and that you may show him 
 
28 LEGAL FORMULARY. 
 
 proper obedieace. This much do and may God 
 prosper you. Dated Rome, etc." 
 
 Each of these letters is sig-ned bv the Cardinal 
 Prefect and by the secretary of the Cougreg^ation 
 and properly sealed and addressed. 
 
 When a vicar apostolic receives faculties without 
 the above exceptioi^is he may confer benefices and 
 grant dimissory letters. But these rig'hts are g^en- 
 eralh^ reserved from him in the letters of appointment. 
 If the Holy See has not specially reserved these 
 rig-hts to itself and still reserved them from the vicar, 
 then they remain, not with the vicar, but with the 
 bishop. In either case whether the Holy See or the 
 bishop confers the benefices, particularly parishes, 
 the vicar apostolic attends to the concursus and an- 
 nounces the more worthy candidate to the bishop or 
 to the Holy See as required. It is the duty of the 
 vicar also to attend to the examination of the candi- 
 dates for orders in either case. 
 
CHAPTER HI. 
 
 APPOINTMENT OF VICAR CAPITULAR uK 
 ADMINISTRATOR. 
 
 33. As soon as an episcopal see becomes vacant by 
 the death, resig-nation or transfer of the bishop, all 
 his power, both ordinary and by law delegfated, (not 
 however, that speciall}^ deleg'ated) devolves on the 
 chapter of the cathedral church and from it exclu- 
 sively and irrevocably unto the one vicar capitular 
 who must be chosen by the said chapter within eiofht 
 days from the time of certain knowledgfe of a 
 vacancy. In case of supposed vacancy the Holy See 
 should be consulted, especially if the bishop has ap- 
 pointed a vicar ofeneral. Certain knowledg-e of the 
 vacancy is required, not merely presumptive. This 
 certaint}^ inay be founded on the announcement of 
 the transfer in consistory or on a letter of the Sacred 
 Congreg^ation. The chapter cannot reserve any 
 jurisdiction to itself, nor remove the vicar capitular 
 once he is appointed. According* to the Council of 
 Trent, the chapter must also appoint one or more 
 economes from itself to administer the temporalities 
 of the see during- the vacanc3^ During' the time 
 from the vacancy to the selection of a vicar capitular, 
 the chapter, as a colleg-iate body, has jurisdiction 
 over the whole diocese. 
 
 34. In the election of a vicar capitular the first 
 
 29 
 
30 LEGAL FORMULARY. 
 
 digfnitary presides. The votino- should be secret. 
 (\S'. Cong\ Cone, in Melevitana, 2^ Nov. i6gy. . Mona- 
 celli, Tom. /, Tit. I. Ferraris, verho, Vicario Cap. 
 Art. /, n. I J.) Pelligfrinus says an open ballot is 
 null. A majority vote will elect, but this majorit}^ 
 must be given at the time of the election when the 
 chapter is in collegiate session. The consent of in- 
 dividual members obtained later even in writing will 
 not make valid an election with less than a majority 
 vote obtained during the session. ^Pignatellus Tom. 
 /, Consult. 2j, n. y.) The same author in Tom. VI, 
 Consult. g2 shows that an election is vitiated and 
 rendered null if some person competent for the office 
 is overlooked or rejected from the number of can- 
 didates. 
 
 As to the requisite qualities for the vicarship the 
 law distinctly provides that a doctor or licentiate in 
 canon law or at least in theology shall be chosen and 
 if there is only one in the chapter who has these 
 qualities he must be chosen; if there is one and he is 
 not chosen the election is by that fact null, {Ferraris 
 I. c. 71. j2.) If there is none with these qualities in 
 the chapter itself then some one outside with proper 
 degrees may be chosen. This holds a fortiori in 
 choosing a bishop to fill the vacancy. The same 
 qualities are required in a vicar capitular as in a vicar 
 general. {Confer Zitelli, A-pp. Juris, fg-. r6g.) It 
 should be noted that if the chapter neglects the elec- 
 tion of a vicar or defers it beyond the eight days, or 
 if it elects a person without the requisite qualities, 
 the choice of the vicar capitular for that time devolves 
 upon the metropolitan, or if the metropolitan see is 
 vacant then upon the senior suffragan. The chapter 
 
ADMINISTRATOR. 31 
 
 may also otherwise be punished, if the case is aggfra- 
 vateci. The vicar capitular appoints his own substi- 
 tute in case of absence. The chapter has no author- 
 ity in the matter. If it occurs leg'ally that one not a 
 canonist is elected vicar, the law requires him at 
 once to choose a cousultor who is a canonist: but the 
 chapter cannot select him. 
 
 35. The power of the vicar capitular is j^reater 
 than that of the vicar general of a bishop, for the 
 vicar capitular performs by his ordinary power most 
 of the acts for which the vicar general requires a 
 special mandate. Thus the vicar capitular holds a 
 concursus for vacant parishes, though he does not 
 appoint; after the lapse of a year's vacancy he can 
 hold a synod and can visit the diocese a year after 
 the last visitation. He can give dimissory letters 
 within the first year of vacanc}^ for tonsure and also 
 for orders to those oblig'ed to receive them; but he 
 can neither admit priests into the diocese nor grant 
 exeats, nor, in a word, materially change the condi- 
 tion of the vacant see. Hence he cannot confer ben- 
 efices or parishes, (he appoints temporary adminis- 
 trators) ;lheJcannot alienate property lor;transfer it 
 from church to^church nor begin suits. For other 
 information works on law should be consulted. 
 
 The authority of the vicar capitular ceases when 
 the new bishop presents his letters of appointment, 
 or when the H0I3' See provides an administrator to 
 govern, either because of the long vacancy, strife in 
 the chapter, or because the chapter elected an unfit 
 person for vicar. Following is the form to be used 
 by the chapter in appointing its vicar capitular: 
 
 "Nos, Archidiaconus, canonici et capitulum cathe- 
 
32 LEGAIv FORMULARY. 
 
 dralis ecclesise N — sede vacante per mortem bonec 
 memoris N — E)piscopt. 
 
 Admodura Revdo D. N — , J. U. Doctor! , salutem 
 in Domino. * 
 
 Cum ex sacrorum canonum dispositione cathedrali- 
 um ecclesiarum capitula in locum deficientium epis- 
 coporum, (praesertim si ex humanis erJoi contig'erit ) 
 subrog"entur, eisque in spiritualibus et temporalibus 
 succedant, eorum munus fit, viduatis ecclesiis ita 
 consulere ut ministrorum solertia atque dilig^entia 
 incommoda minime sentire permittantur. Ne ig"itur 
 supradicta ecclesia culpa nostra aiiquid detriment! 
 patiatur, nos canonicis sanctionibus et S. Concilii 
 Trid. decretis ut par est obtemperando, vocatis 
 omnibus et sino-ulis canonicis, intra tempus octo 
 dierum a praefato concilio constitutum, ad vicariuni 
 qui vices nostras sustinere debeat deputandum, con- 
 g'reg'atisque his qui debuerunt, potuerunt et voluer- 
 unt interesse, habitis capitulariter secretisque suf- 
 frag"iis sive votis omnium seu majoris partis interes- 
 sentium, et ut permittitur cong^re^-atorum, Te Advo- 
 catuni Reverendum D. N — , J. U. D. supradictum, 
 de cujus probitate, scientia et sollicitudine pluri- 
 mum in Domino conlidimus, Generalem in spirituali- 
 bus et temporalibus Vicarium nostrum in praedicta 
 ecclesia cathedrali, civitate et dioecesi tenore pra?- 
 sentium deputamus, facimus, creamus et constitui- 
 mus pro tempore sedis vacantis; cum omnibus et 
 sing*ulis facultatibus, privileg"iis, honoribus, oneribus, 
 emolumentis, praeeminentiis et praerogativis ad 
 hujusmodi munus exercendum debitis, necessariis et 
 opportunis. 
 
 Dantes Tibi plenam et liberam potestatem omnia 
 et singula exercendi, quae capitulo sede vacante in 
 utroque foro a jure perraittuntur, et proinde causas 
 omnes tam civiles quam criminales et mixtas etiam 
 liseresis et matrimoniales 'audiendi, cognoscendi, 
 terminandi ac decidendi cum facultate excommunica- 
 tionem aliasque ecclesiasticas censuras et prjenas 
 
ADMINISTRATOR. 33 
 
 etiam pro ecclesianim immunitate et libertate tuenda, 
 ferendi et inflio'endi, resi<^"nationes beiieficiorum cum 
 causa recipiendi (et prssentatos ad beneficia juris- 
 patronatus, si qua3 sint, instituendi): concursus ad 
 parochiales vacantes indicendi et niag^is dig-num ex 
 approbatis eliofendi, ac dimissorias ad ordines post 
 annum, et infra annum coarctatis ad formam Cone. 
 Trid. concedendi, et super interstitiis dispensandi; 
 necnon ea omnia faciendi, mandandi et exequendi 
 quas nos facere, mandare vei exequi possumus, etiamsi 
 requirerent speciale mandatum, (si vicarius deputatus 
 non esset doctor, addatur) cum voto tamen consultoris 
 idonei J. U. Doctoris, Tibi benevisi in sententiando 
 et procedendo ad actus quoscunque irrevocabiles et 
 qui consilio videbuntur indig^ere. 
 
 Prascipimus itaque universo clero hujus civitatis 
 et dioecesis, aliisque hujus ecclesia? jurisdiction! sub- 
 jectis, ut Te in Vicarium nostrum Generalem. 
 ut pra^mittitur, recipiant, Tibique tanquam tali in 
 omnibus pareant et obediant: dantes Tibi voces et 
 vices nostras, contradictores et rebelles poenis et 
 censuris ecclesiasticis compescendi . In quorum iidem 
 prssentes scribi jussimus per inlrascriptum nostra; 
 curias notarium, et manu propria subscripsimus, sig"- 
 illoque capituli jussimus muniri. Datum. &c." 
 
 The document is to be sig-ned b}^ all the chapter 
 and witnessed by the notar}^ 
 
 36. In dioceses where there are no cathedral chap- 
 ters the Holy See appoints an administrator to 
 govern during the vacancy. But provision is made 
 meanwhile in order that jurisdiction may not lapse. 
 According to the Second Plenary Council of Balti- 
 more n. 96-99, which is still in force, every bishop 
 can communicate to his priests certain faculties 
 which he receives from the Holy See. These are the 
 
 Facul-tates Ordinaria^ ^orni I, and in the provinces 
 6 
 
34 LEGAL FORMULARY. 
 
 of Baltimore and Philadelphia, part of the E^xtraor- 
 dinary Faculties C; not those requirinof episcopal 
 character. The bishop is instructed to appoint some 
 priest of his diocese as administrator with these fac- 
 ulties, so that pending- the vacancy caused by death 
 he ma}^ take the place of the bishop until the Holy 
 See shall dispose otherwise. The one appointed ad- 
 ministrator is oblig-ed, as soon as possible, to inform 
 the Holy See reg^arding- the death of the bishop and 
 his own appointment. The appointment of the ad- 
 ministrator by the bishop is only provisional, i. e. 
 until the Holy See provides. As much as possible 
 the administrator should be possessed of the qualities, 
 required in a vicar capitular. If recourse is had to 
 Rome ag'ainst the bishop's appointee and g-ood rea- 
 sons g-iven ag'ainst him the matter will receive proper 
 attention. Usually when the Sacred Propag'anda 
 confirms the appointment a letter of instruction is 
 also sent. It should be noted that the usual extraor- 
 dinary faculties received by the bishop do not now 
 lapse with his death. {^Cf. -p. 241 . below.) 
 
 37. Should the bishop have omitted to appoint in 
 writing- an administrator, the metropolitan, or the 
 senior suffrag-an if the metropolitan see is concerned, 
 will appoint an administrator provisionally. When 
 a see becomes vacant by the resig'nation or the trans- 
 fer of the bishop, the Propag'anda when announcing" 
 such an event usually also makes provision reg-arding* 
 an administrator. However, if none is made then 
 the metropolitan, or the senior suffrag"an as above, 
 makes a provisional appointment. It is worthy of 
 note that the schema of the Vatican Council intended 
 that where there are no chapters the vicar gfeneral 
 
ADMINISTRATOR. 35 
 
 of the late bishop should succeed ipso facto to the 
 administratorship as vicar capitular; but only pro- 
 visionally until the Holy See should provide. This 
 is the pontifical provision for missionary countries 
 which have no special law on the subject. It is cer- 
 tain that the administrator for validity must be ap- 
 pointed in writino-. No priest of the diocese need 
 recoofnize an oral appointment. The appointment 
 should also be made known throug'h the reofular 
 channels. As a matter of prudence the bishop ma}^ 
 draw up the appointment at any time, and, if neces- 
 sary, from time to time he may chano*e it like his 
 last will. But to preclude complications the appoint- 
 ment should be published before the bishop's death. 
 It is not a question of the last will of the bishop, but 
 of jurisdiction which ceases with death. If the un- 
 published appointment were disputed when made 
 known after death, serious complications mig-ht arise. 
 The authority to adjust the matter is respectively 
 the metropolitan or the senior suffraofan. 
 
 38. The administrator cannot chang-e the condition 
 of the diocese, cannot admit or excardinate priests, 
 cannot appoint to parishes, except provisionally, nor 
 encumber with debts nor alienate church propert3\ 
 He has the usual powers and faculties of a vicar 
 capitular, besides the unexpired faculties of the late 
 bishop, except only the personal ones. It is worthy 
 of special note that if an administrator needs imme- 
 diately some extraordinary faculty such as those of 
 Forms D and E, he can obtain it by applyincr to the 
 Apostolic Delegation in Washing-ton. The Deleg-a- 
 tion has for use in necessary circumstances all the ex- 
 traordinary faculties gfiven by the Holv See to the 
 
36 EvEGAL FORMULARY. 
 
 bishops of the United States. The following- form 
 may be used by the bishop in appointing" an admin- 
 istrator: . 
 
 "N — Dei et Apostolical Sedis ^^jfratia Episcopus N. 
 Dilecto Nobis in Christo N. N. salutem in Domino. 
 
 Cum ex mente Sanctae Sedis et Secundi Plenarii 
 Concilii Baltimorensis decretis oporteat Episcopuni 
 moriturum su^ dioecesi ita consulere ut jurisdictio in 
 spiritualibus et temporalibus ad reg"imen ecclesia? 
 necessaria in aliquo sacerdote idoneo remaneat, qui 
 post obitum episcopi eam exerceat; Nos, iofitur, me- 
 mores conditionis nostrae infirmai, supradictis pra^- 
 scriptis obteniperantes, Te, de cujus scientia, probi- 
 tate, solicitudine et fidelitate plurimum in Domino 
 confidimus, administratorem in spiritualibus et tem- 
 poralibus in praedicta N — ecclesia cathedrali, civi- 
 tate et dioecesi tenore praesentium deputamus, faci- 
 mus, creamus, et constituimus, donee Apostolica 
 Sedes, certior facta, alio modo provideat; cum omni- 
 bus et sinsfulis facultatibus, privilegfiis, honoribus, 
 oneribus, emolumentis, praeeminentiis et praerog^ativis 
 ad hujusmodi munus exercendum debitis, solitis, nec- 
 essariis et opportunis. 
 
 In quorum fidem praesentes scribi jussimus per in- 
 frascriptum nostrae curiae notarium et manu propria 
 subscripsimus sig^illoque nostro muniri jussimus. 
 Datum &c. 
 
 N. N. Notarius. [l. s.] N. Episcopus N." 
 
CHAPTER IV. 
 
 APPOINTMENT OF CANONS AND CONSULTORS. 
 
 39. E^very bishop, even while the Apostles were 
 alive, g-athered around himself a clerg-y to help in 
 his sacred work. This body, during- the first three 
 centuries, nearly everywhere consisted of twelve 
 priests and seven deacons, the priests to sig-nify the 
 twelve apostles, the deacons to represent the seven 
 deacons mentioned in the Acts of the Apostles. 
 These twelve priests and seven deacons constituted 
 the senate of the church or diocese and the council of 
 the bishop. Sub-deacons and inferior ministers were 
 attached to this body for service and from them the 
 deacons and priests were chosen to fill vacancies, 
 thouofh until chosen they belong-ed not to the senate 
 or council. {Conf. Bouix, Dc Cafitulis, page ,\) 
 Without this senate, the Fourth Council of Carthag-e, 
 Canon 23 says, no bishop should decide any import- 
 ant matter, otherwise his sentence would be null. 
 During- the first five centuries, according- to Tomas- 
 sin. Vet. et Nov. Ecc. Disc. Pars /, lib. j, c. 7, there 
 was no common life among- the clergy of the cathe- 
 dral, but nevertheless they formed with the bishop 
 one body and participated with him in the care of the 
 diocese. To this body of clerg-y succeeded cathedral 
 chapters, or the college of canons belonging- to the 
 cathedral. 
 
38 IvEGAIv FORMULARY. 
 
 40. Chapters are defined: Colleo-es of clerics who, 
 established under a prelate, make one body and are 
 devoted by the church to public divine worship. 
 Chapters are either cathedral or colleg*iate. Cathe- 
 dral chapters are those established in a church to 
 which the bishop's see is affixed, for the purpose of 
 assisting- the bishop in the government of his diocese 
 and supplyino* his place durini^ a vacancy in the see. 
 {Cf. ConciL Trid. scss. 2^, c. 12, /j, de ref.) Col- 
 leg'iate chapters are those established in other than 
 cathedral churches, and hence they have no part 
 whatever in the administration of the diocese. 
 Chapters in our day can be established only by the 
 Pope whether they be cathedral or only collegiate. 
 Bishops have not the power according- to all canonists. 
 
 41. A canonry is defined: A spiritual rig-ht 
 which comes from an election or reception of a per- 
 son as a canon. This rig-ht consists, firstW, in en- 
 titling- the canon to a seat or stall in the choir and a 
 voice in the chapter-meeting; secondly, in entitling- 
 hini to a prebend or portion of .the canonical rev- 
 enues as soon as possible. A prebend, therefore, 
 conve3^s more than a canonry. A prebendary is a 
 canon or member of a chapter who besides the 
 other rig-hts of a canon receives an annual support 
 throug-h such office. Formerly the bishop and his 
 chapter in common received and partook of the rev- 
 enues of the church; but later a division was made 
 between the bishop and the chapter, and a portion 
 of the chapter revenues was assig-ned to individual 
 canons, which portion was called a prebend. A 
 prebend is considered in law more honorable than a 
 chaplaincy or beneficial cure, and hence in odious 
 
CATHEDRAT, CHAPTER. 39 
 
 matters a caaonry or prebend does not come under 
 the name of benefice, but in favorable matters both 
 are included. 
 
 42. The bishop is to provide that the canons have 
 prebends sufficient for their support. Hence, in the 
 months not reserved to the Holy See, with the con- 
 sent of the chapter, the bishop can unite simple ben- 
 efices to a poor and insufficient prebend. A benefice 
 in g^eneral is defined: A perpetual right of receiv- 
 ing income from the goods of the church on account 
 of some spiritual dut}^ authorized by the church and 
 to be personally performed. A simple benefice is 
 one to v^diich the care of souls is not attached, nor 
 any jurisdiction, precedence or administration. Such 
 would be the obligation of sa3^ing mass twice a week 
 for a certain intention and receiving therefor the in- 
 come of a certain property set apart by church au- 
 thorit}^ for that purpose. Such a simple benefice 
 might be united to a cathedral prebend to make its 
 revenues sufficient for the support of the canon pre- 
 bendary. But besides prebends a third part of the 
 chapter revenues is set apart for daily distribution 
 to all the canons, whether they have prebends or 
 not, for attendance at choir. The bishop is to de- 
 termine how^ this distribution shall be made. (C onj . 
 Co??. Trid. sess, 21, cap. j, dc rcf.) 
 
 43. If the cathedral chapter is considered as the 
 senate and born council of the bishop, undoubtedly 
 the bishop is its head and most noble part; but il 
 considered as a corporate bod\', having its own rights 
 and duties, the bishop is neither head nor part of it. 
 Its head is then its chief canon, generally to-day the 
 First Dicrnitarv. If the vicar o-eneral is also a canon 
 
40 . LEGAL FORMULARY. 
 
 he belongfs to the chapter, otherwise not. In choir, 
 he takes his place as a canon, not havinio;- precedence 
 because of the vicarship. The number of canons in 
 cathedral churches is not determined by law, but 
 depends on the judg-ment of the Pope, although at 
 least three are required for the establishment and 
 two for the continuance of the chapter. If the num- 
 ber of canons has been precisely determined, either 
 b}' the Pope, immemorable custom, or by the bishop 
 and chapter under oath not to increase the number, 
 then the number can be increased only by the Pope. 
 Outside of these cases the bishop with the chapter 
 can increase the number if sufficient support is 
 provided. 
 
 A canon once appointed is irremovable by law; 
 hence if unwilling" he cannot be removed except b}^ 
 judicial sentence after canonical trial. 
 
 44. As a rule to-day the digfnitaries of a cathedral 
 also belong- to its chapter. Formerly the}' did not, 
 although the}" had precedence of the canons. 
 Whether or not they are members of the chapter 
 to-day depends on their institution. A dignity 
 formerly was defined a beneficial title having an- 
 nexed jurisdiction and precedence. To-day, while 
 jurisdiction has been withdrawn, nevertheless w^hat 
 offices formerlv were dio-nities still retain the name 
 and precedence. Such are the arch-deaconate and 
 the arch-presbyterate. By law,, then, the arch-dea- 
 con, the arch-priest, and also the head of the chapter, 
 whether he is called the dean or by some other name, 
 are dig-nitaries. Often the arch-deacon is also dean 
 of the chapter. Anyone else in the chapter claiming" 
 dig'nity must make proof of it. These dignitaries 
 
CATHEDRAL CHAPTER 41 
 
 always take precedence in choir, in processions and 
 other acts out of chapter meeting*; if they belong- to 
 the chapter they precede also in capitular acts. 
 The arch-deacon is the first dig-nitary, and once ap- 
 pointed is irremovable, althoug-h in the province of 
 Rheims in France by special concession of the Holy 
 See vicars g*eneral who are removable are called 
 arch-deacons. {CoJifer Craisson^ Maniiale, 7i. iigy.) 
 The same qualifications as to birth, university de- 
 g-ree, morals, are required in these dig-nitaries as in 
 a vicar g-eneral. Usually in every cathedral chapter 
 there are prebends for a canon theolog'ian, who 
 teaches Holy Scripture, for a canon penitentiary who 
 hears confessions, and for other officers, none of 
 whom, however, have precedence. 
 
 45. According^ to the fourth rule of the apostolic 
 chancery the first dig-nity of all cathedral churches 
 is reserved to the Pope. In some countries, as in 
 France, this rigfht is not enforced, as is apparent 
 from the councils of Avignon and Rheims held in 
 1849, in which the bishops are said to confer also 
 the first dignity of their cathedral churches. It is 
 considered certain to-day that the conferring- of 
 canonries and prebends in cathedral churches regfu- 
 larly pertains to the bishop and the chapter together. 
 {Confer Bouix\ De Ca-pihdis, fag-e 224..) B3' common 
 law the right of choosing canons in a collegiate 
 church belongs to its chapter, the institution of the 
 canons depending on the bishop. However, much 
 depends on custom and the statutes of individual 
 chapters, which, together with approved authors, 
 should be consulted also regarding the various rights 
 and duties of the canons. Since the council of Trent 
 
42 LEGAL FORMULARY. 
 
 the bishop appoints the vicar who has charge of the 
 parish work of the cathedral even thoug-h the cathe- 
 dral has a chapter. The same is often true also of 
 the canon theologfian and the canon penitentiary. 
 
 46. When properly appointed the appointee must 
 take possession of his canonry or dig^nity in a capitu- 
 lar manner, that is, the chapter must be called to- 
 gether by the sound of the bell, and the newly ap- 
 pointed must in the presence of the chapter take his 
 proper seat or stall. Otherwise he is not in legal 
 possession. {^Confer Ferraris^ Canonicatus, Art. II, 
 75. ) Further it is required that the canon within 
 two months make a profession of faith and promise 
 upon oath obedience to the church of Rome. This 
 profession and oath are to be taken before the bishop 
 or his vicar general, and also must be repeated in 
 the chapter. (^Coiifer Cone. Trid. Sess. 2^, c. 12, 
 de re/.) This profession and oath must be made 
 personally not by procurator. Its omission deprives 
 the appointee of all the revenues of his canonry, but 
 not of other rights, provided he has taken possession 
 legally. The mere appointment, even if publicly 
 known, will not suffice. 
 
 No special form is required, either by canon la^v or 
 the council of Trent for conferring the theological 
 and penitentiary prebend, but in Italy and the adja- 
 cent islands by order of Pope Benedict XIII both are 
 given through concursus. The canon theologian 
 must be a master in theology, and the canon peni- 
 tentiary a doctor or licentiate in theology or canon 
 law, and at least forty years of age unless necessity 
 or utility demands a younger man. 
 
 47. The Sacred Congregation of the Propaganda, 
 
DIOCESAN CONSULTORS. 43 
 
 according- to Zitelli Appar. Juris Ecc. fage i^8, has 
 not ceased admonishing' the bishops subject to its 
 jurisdiction to establish cathedral chapters. And if 
 the circumstances of times and places render this 
 impossible it insists on at least the establishment of 
 a council to take the place of the chapter temporarily. 
 
 The Third Plenary Council of Baltimore, while 
 claiming- that the present state of affairs would not 
 permit the establishment of chapters, decreed in 
 their place certain diocesan cousultors. Six or at 
 least four priests noted for pie|y, integ^rity, zeal for 
 souls, kuowledg-e, prudence, experience and observ- 
 ance of law, are to be chosen by each bishop as dio- 
 cesan consultors. One-half of these the bishop him- 
 self chooses. He also chooses the other half, but 
 only after the priests of the diocese have each sug"- 
 g'ested nine names, or three for each position. It is 
 easily seen that such a proposition by the clerg-y is 
 entirely nug-atory, for according- to the Council, n. 
 19, the bishop would thus have any number of names 
 to choose from and is not confined to those receiving- 
 the hig-hest vote, nor in fact is he precluded from 
 selecting- a man who received but one vote. This 
 proposition by the clerg-y is rendered even more nug-- 
 atory when a vote is taken not in synod but by let- 
 ters sent by the individual priests to the bishop's 
 office. While it mig-ht have been intended that a 
 vote should be taken in synod and that the bishop 
 should recog-nize the wish of the clerg-y by selecting- 
 those three for consultors for whom most priests had 
 voted, still practice has developed something- very 
 different. 
 
 The term for which consultors are chosen is three 
 
44 LEGAL FORMULARY. 
 
 years, not during" life. This short term also has 
 proved detrimental, and the experience of the four- 
 teen years elapsed since the council has shown that 
 in most dioceses the establishment of consultors has 
 by no means satisfied the want of cathedral chapters. 
 Moreover, is not the church in the United States in 
 much better condition than in England and other 
 countries, where nevertheless cathedral chapters are 
 found? 
 
 48. The consultors are chosen ad triennium^ for 
 three years, and therefore their term expires by lim- 
 itation -exactly three years from the date of their 
 apppointment. The law itself confirms this by mak- 
 ing* one exception: "In case the three years' term 
 happens to expire during- a vacancy in the episcopal 
 see, then the consultors will remain in office until the 
 advent of the new bishop, who within six months 
 from his consecration is oblig^ed to select new con- 
 sultors." (No. 21.) Pending- a vacancy, the admin- 
 istrator will use the council as should the bishop of 
 the diocese. 
 
 During" his term of office a consultor is irremovable 
 except for cause; and if justly removed his place is to 
 be filled by the bishop with the advice of the other 
 consultors. The defect of the law as to the practical 
 efficiencv of the consultor seems to be, that if out- 
 spoken in meeting- or opposed to some imprudent or 
 illegal act of the bishop, the consultor can be 
 dropped at the expiration of his term; thereby de- 
 feating- one of the chief objects intended by estab- 
 lishing- cathedral chapters. 
 
 49. As a vicar general may be a member of the 
 cathedral chapter, so also it seems he may be a diocesan 
 
DIOCESAN CONSUTvTORS. 4:^ 
 
 consultor. It is true he is the consultor natus of the 
 bishop and forms one tribunal with him; but this 
 does not seem to render the two positions incompati- 
 ble. In fact in 1886 the Sacred Propag-anda replied 
 to an inquiry that "vicars oreneral may be consultors, 
 provided they are in a minority, i. e., if there are two 
 vicars g^eneral there must be at least three other 
 priests consultors." {See note p. 50 below.) 
 
 The consultors will meet at the call of the bishop, 
 who according- to the law will summon them four times 
 or at least twice a year at stated times and also when- 
 ever business requires special meetings. The advice 
 of the consultors must be g"iven as a body, collegia- 
 liter^ and, whenever the consultors so wish, even by 
 secret vote. Every consultor must be summoned to 
 the meeting-. Proper records of the business trans- 
 acted should also be kept, for which purpose one of 
 the consultors should be appointed secretary to the 
 body. Neither should any but the consultors be 
 present at their meeting^s, as is the rule for chapters. 
 An illegally appointed consultor is not competent; 
 and, because of their position in the diocese and the 
 necessity of obtaining- their consent in certain busi- 
 ness matters, it is certain that their appointment 
 must officially be made known to the clerg-y of the 
 diocese. Each consultor, as in the case of canons, 
 must make a profession of faith, or at least take the 
 oath of office required of everyone in public office in 
 the church. If the proposition of names was made 
 by the clerg-y throug'h letters, the choice of the 
 bishop should be made known in a similar way. 
 The mere publication of names in a directory, issued 
 outside the diocese, cannot in law be considered an 
 
46 LEGAIv FORMULARY. 
 
 ofi&cial publication to the clerg^y, especially since 
 there is no official directory, and no bishop has juris- 
 diction outside his own diocese. 
 
 50. Before undertaking* certain things the bishop 
 is by law oblig^ed to ask the advice of the diocesan 
 consultors, not by interviewing them individually 
 or by asking- the opinion of several whom he 
 prefers, but by calling" them to meet and give advice 
 as a body, collegialiter. The matters for which 
 such advice is necessary are: The calling of a dio- 
 cesan synod; the dividing of a parish; the g^iving a 
 parish to a religious community; the appointment of 
 regents for the seminary; the election of a new con- 
 suitor and synodal examiners; the alienation or mort- 
 gaging or permitting indebtedness on church prop- 
 erty to any amount over $50 {Cf. p. 288)\ the impo- 
 sition of a new tax on the diocese for the bishop. 
 The consultors in meeting- with the irremovable rec- 
 tors of the diocese, also have each a vote in proposing- 
 names for a new bishop when the see has become 
 vacant. The consultors and the irremovable rectors 
 take precedence of all the other priests of the diocese 
 except the vicar general and Roman prelates; but 
 none of them should be entitled "Very Reverend." 
 When there is a cathedral chapter it ranks immedi- 
 ately after the vicar general. 
 
 51. Following is a form for appointing a canon 
 when the appointment rests solely with the bishop: 
 
 "N~ Episcopus N— Dilecto U. J. Doctori N— 
 familiari clerico nostro loci N — , salutem in Domino. 
 
 Grata f amiliaritatis obsequia, quae Nobis hactenus 
 impendist; et adhuc solicitis studiis impendere non 
 desistis, necnon litterarum scientia, vitae ac morum 
 
DIOCESAN CONSULTORS. 47 
 
 honestas, aliaque laudabilia probitatis et virtutum 
 raerita quibus personam tuam juvari percipimus, Nos 
 inducunt, ut Tibi ad gratias reddamur liberales. 
 Cum itaque canonicatus et praebenda nostra cathe- 
 dralis ecclesiae N — quorum collatio, provlsio et omni- 
 moda dispositio ad Nos (hac vice, vel ommittitur si 
 praibendffiomnes ad episcopum pertinent disponendae) 
 spectare diofnoscuntur; et quos quondam N. N., 
 qui extra Romanam curiam de mense N — diem 
 clausit extremum, possedebat, vacaverint et vacent 
 ad prsesens: Nos volentes Tibi praemissorum obsequi- 
 orum et idoneitatis intuitu ofratiam facere specialem. 
 canonicatum et prsbendam pra^dictos sicut praemit- 
 titur vacantes cum plenitudine juris canonici ac om- 
 nibus suis fructibus, proventibus, juribus et perti- 
 nentiis universis, Tibi auctoritate ordinaria tenore 
 praesentium conferimus et de iisdem providemus. 
 Teque coram Nobis personaliter constitutum per 
 (anuli traditionem et) bireti capiti tuo impositionem 
 investimus, et realem, corporalem et actualem pos- 
 sessionem auctoritate nostra per N. N. cui vices nos- 
 tras committimus immitti mandamus: amoto quolibet 
 alio illicito detentore, recepto prius per Nos et per 
 Te praestito ad sancta Dei evang-elia corporal! jura- 
 mento, quod Nobis et successoribus nostris episcopis 
 obediens eris et fidelis sanctae Matri Ecclesis; 
 eisdemque canonicatui et prcebendae ac ipsi ecclesi^ 
 cathedrali secundum ipsius statuta, laudabiles consue- 
 tudines et ordinationes deservies et deservire facies 
 in divinis, juraque et libertates prsedictorum manu- 
 tenebis et pro posse defendes, nihilque quod ad dic- 
 tum canonicatum et praibendam pertinet alienabis. 
 sed alienata et distracta ad jus et proprietatem 
 eorundem reduces et pro viribus reduci procurabis. 
 Quo circa mandamus-omnibus Dig'nitatibus et canon- 
 icis Reverendi Citpituli, ut Te in fratrem et concan- 
 onicum recipiant et stallum in choro locumque et 
 vocem in capitulo tradant et assig^neut, Teque in 
 talem habeant, tractent et portionem de redditibus 
 
48 r^EGAL FORMULARY. 
 
 universis, prout habent alii cauonici, faciant Tibi re- 
 sponderi; emissatamenprius per Teipsum professione 
 fidei coram Nobis aut vicario nostro orenerali et postea 
 coram capitulo. Et ita conferimus, providemus, et 
 asstg"namus ac exequi mandamus omni quo meliori 
 
 raodo. Datum^ 
 
 [iv. s.] N. E^piscopus N. 
 
 N. Cancellarius Kpiscopalis." 
 
 52. If a canon r}' (or parish) has been reserved to 
 the Holy See or if the fourth rule of the Apostolic 
 Chancery is observed, the bishop who confers the 
 benefice may use the following- form: 
 
 "N: Episcopus N. Dilecto &c. 
 
 Cum per te Nobis pr^sentata fuerint litterse 
 Apostolicae Sanctissimi in Christo Patris et D. Nostri 
 
 Divina Providentia Papae , in perg^amena 
 
 scriptae cum plumbo pendenti, cordula canapis more 
 Romans Curiae, quas Nos, qua decet reverentia, 
 recepimus, tenoris sequentis, videlicet (et hie insera- 
 tur tenor Bullae) et successive Nobis instantiara 
 feceris ut ad ipsarum litterarum executionem proce- 
 deremus; Nos volentes mandata Apostolica exequi 
 juxta formam in dictis litteris praescriptam, de ex- 
 positis et contentis in eis debitam capi mandavimus 
 informationem, qua dilig*entercapta, etconsti to Nobis 
 leg"itime ex actis narrata Sanctissimo Domino Nostro 
 esse vera et verificata, teque esse habilem et idoneum 
 ad dictum canonicatum et praebendam (vel parochiamj 
 prout idoneus (et diofnus) repertus fuisti a nostris 
 examinatoribus (additur synodalibus si beneficium 
 sit cum cura aniniarum, et inseritur "di§*nus"); 
 proinde dictum canonicatum et praebendam (vel paro- 
 chiam) ut supra vacantes tenore praesentium auctor- 
 itate Apostolica, qua in his funo-imur, cum omnibus 
 suis fructibus, proventibus, emolumentis et distribu- 
 tionibus ac annexis tibi conferimus et assig^namus, 
 amoto quolibet alio illicito detentore, quem amotum 
 
DIOCESAX COXSULTORS. 49 
 
 esse praedicta Apostolica auctoritate per praesentes 
 decernimus, recepto et per te praestito corporali 
 juramento &c (et sequere ut in pra;^cedenti formula. 
 Iti quorum &c. 
 
 [l. s.] N. Episcopus N. 
 
 N. Cancellarius Episcopalis." 
 
 53. Ill appointitio- a diocesan consultor the follow- 
 ing" form may be used: 
 
 '*N — Episcopus N — . Dilecto Nobis in Christo 
 N. N. rS. T. D. vel alias; salutem in Domino. 
 
 Quum rerum conditiones in quibus dioecesis nostra 
 praesenti versatur tempore, cathedrale capitulum 
 fieri non sinant, necessitati huic alio quo meliori 
 modo possimus, satisfacere opportet Nos conemur. 
 Itaque decretis Concilii III Plenarii Baltimorensis 
 obtemperantes, post propositionem nominum a clero 
 dioecesano factam in scriptis (et in synodo), Te de 
 cujus pietate, morum integ-ritate, sollicitudine pro 
 animarum salute, doctrina, prudentia, rerum homi- 
 nunique experientia, necnon sacrorum canonum et 
 dioecesanorum statutorum observantia plurimum in 
 Domino confidimus, in dioecesanum consultorem cum 
 omnibus juribus et oneribus in praefato Concilio de- 
 terminatis, sine tamen quacumque mercede ex hoc 
 capite percipienda, ad trennium auctoritate nostra 
 ordinaria tenore preesentium nominamus, constitui- 
 mus, facimus et deputamus. Teque coram nobis 
 personaliter constitutum per bireti capiti tuo impos- 
 itionem investimus et in actualem possessionem 
 ofiBcii consultoris immittimus; recepto prius per Nos 
 et per te praestito ad sancta Dei evano-elia corporali 
 juramento, quod Nobis et successoribus nostris 
 episcopis obediens eris et fidelis, et sanctae matri 
 ecclesi^; et ipsi dioecesi nostrae secundum ipsius 
 Statuta et ordinationes deservies et deservire facies. 
 juraque ejusdem manutenebis et pro posse defendes, 
 necnon et alia consultoris officia fideliter adimplebis; 
 emissa etiam prius per te ipsuni professione fidei 
 
 8 
 
50 LEGAL FORMULARY. 
 
 coram Nobis (vel vicario nostro g"etierali.j Volumus 
 autem ut in consultorem dioecesanum omnes Nobis 
 in episcopatu et jurisdictione subjecti te recoo'uoscant, 
 recipiant et admittant. Et ita statimus ac exequi 
 et publicari mandamus. 
 
 Datum &c. 
 I^L. s.l N. Episcopus N. 
 
 N. N. Cancellarius Episcopalis." 
 
 Note. -On Aug. 3], 1886, Bp. McNeirny of Albaoy asiked the 
 Propaganda ''May the vicar general of a bishop be a consultor ?"" 
 ("Cardinal Simeone, after giving the reasons why the vicar general 
 should not be a ccnsultor, the principle one of which is that the 
 I wo offices are essentially distinct and should be discharged by 
 two different persons, gives his decision in these words: "Negative 
 \"el saltern non expedire." On receipt of this answer the Arch- 
 bishop of New York wrote the Cardinal Prefect stating that his 
 \'icars general knew the diocese'very well and that their advice in 
 matters comiiig before the consultors would be very important 
 and asking permission for them to be appointed consultors. The 
 answer came back: ''Tolerari posse, modo tres saltern alii con- 
 sultores habeantur." Prom which it seems the appointment of a 
 vicar general as consultor is only tolerated and from the words of 
 tlie ariswor provision was made only for that particular case. 
 
CHAPTl^^R V. 
 
 APPOINTMFA'T OF KURAr. UEANS AND BISHOP's 
 
 CHANCBLLOK. 
 
 54. In former times when access to the episcopal 
 city was difficult and necessity more frequent, cer- 
 tain priests were commissioned b}' the bishop to act 
 as vicars forane or rural deans. They had nu 
 authority in criminal matters, but could settle sum- 
 marily trivial civil contentions. To-day where they 
 exist thev have no jurisdiction nor anv authorit\ 
 whatever over the clerg*}' of their districts, except 
 to preside at the theolog"ical conferences which art^ 
 held accordino- to diocesan statutes. Besides this 
 the}' may be empowered to watch and report to the 
 bishop at stated times "whether the clerg*}" and peo- 
 ple live as they should, whether proper worship is 
 held in the churches, whether the furnishinors of the 
 church and especially the sacred vessels are kept 
 clean and whether the decrees made by the bishop 
 on visitation are properly executed." 
 
 55. Rural deans have no precedence over the 
 clerg"y of their district except durino- conference. 
 "Anv custom to the contrary is an abuse." Confer 
 Zitelli, Appar. Juris Eccl. page 14J. Craisso)i Mct)i- 
 uah\ )i. 6j4.) "The Sacred Cong-reo-ation oF 
 Rites in at least sixteen decisions given to different 
 countries and made of universal application, has de- 
 
52 LEGAL FORMULARY. 
 
 creed that "a vicar forane or rural dean, by reason 
 of that office has no precedence in choir, in sessions, 
 in processions and in other acts and ecclesiastical 
 functions over other parish priests, canons and 
 priests older and more worthy than himself; but the 
 vicar or dean must stand, sit and walk in the place 
 of his reception and di^nit\% just as if he were not a 
 vicar forane or dean, both with the cotta and with- 
 out it notzuit hstmiding' any and every order of the 
 bishop to the contrary ; except only in those congre- 
 g-ations or conferences which are held each month b}' 
 order of the bishop, in which as the delegate of the 
 bishop he should precede all, but not, however, in 
 the procession, mass and other acts which take place 
 before or follow the conference." And in another 
 decree, intendinof to eliminate even the custom, the 
 same Sacred Cong-regfation ordered the observance 
 of the above decree, "notwithstandino- any and ever}^ 
 custom to the contrary." {Confer Ferraris sub 
 verbo Vicarius ; Monacelli, Tom. /, ///. /, form. 4.) 
 Hence not even the bishop can entitle a rural dean, 
 "Very Reverend;" which is an abuse, and the use of 
 which title is unauthorized and unjust. Rural 
 deans are not appointed for life, but at the pleasure 
 of the bishop; hence their appointments lapse with 
 the death of the bishop, and a new desigfnation is re- 
 quired after the vacant see is filled. 
 
 56. The following- form ma}^ be used in making 
 the appointment: 
 
 "N. Dei et Apostolicas Sedis g^ratia Kpiscopus N. 
 
 Dilecto Nobis in Christo N. N. (Doctori vel alias) 
 salutem in Domino. 
 
RURAL DEANS. 53 
 
 Multlfariis dioecesis nostra,' nei^'otiis implicati, 
 cupientes tamen ut clerus, praesertim junior, in dis- 
 trictu a sede nostra procul remoto, in pietate, studiis 
 et moribus progfressum faciat, caventes insuper ne 
 abusus in cultuni divinum vel in cleruni irrepant, 
 te, de cujus probitate et idoneitate plurimum in 
 Domino confidinius, in nostrum vicarium foraneum 
 seu decanum ruralem ad beneplacitum nostrum (vel 
 ad trennium) in loco N — nostra* dicecesis facimus, 
 constituimus et deputamus; dantes tibi facultatem 
 cong-ressibus seu collationibus theologficis, juxta 
 statuta dioecesana habendis, pra3sidendi, imponentes- 
 que in te opus discrete vio-ilandi fideliterque Nobis 
 referendi num clerus et populus. ut decet, vivant, et 
 notabilia, si qua? in districtu conting-ant, tempore 
 informandi: sine tamen quacunque mercede ex hoc 
 capite percipienda, vel alia pra^eminentia quam in 
 collationibus theolog-icis tibi vindicanda; mandantes 
 omnibus, ad quos spectat, ut te in talem vicarium 
 recog-noscant et admittant. Ita statuimus ac pub- 
 licari jubemus. Datum &c. 
 
 |l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Kpis. " 
 
 From time to time, as the occasion requires, the 
 l)ishop may g-ive special faculties or instruct the dean 
 to look after certain specified matters. A rural 
 dean has no faculties from the law: all he has hv 
 must receive from the bishop. 
 
 57. A necessary official in every episcopal curia i-^ 
 the bishop's chancellor. The law supposes him to 
 be a layman, but clerics are not prohibited from act- 
 ing- as chancellors to bishops. (Monacelli Tom, /. 
 tit. /, forjn 5.) The duty of the chancellor is to 
 draw up and countersig-n documents necessary in 
 granting- favors or administering" justice and to care- 
 fully g-uard and preserve documents pertaining- to 
 
54 LEGAL FORMUIvARY. 
 
 the diocese and its administration. He mav be con- 
 sidered a notar}^ whose official writing's are to be 
 credited throu,i>"hout the diocese in ecclesiastical 
 courts and out of them. The work of the episcopal 
 chancery, that is, the position itself, must neither be 
 sold nor rented; but must be performed by the 
 bishop's servants on a stated salary without an}^ 
 participation in the emoluments. {Confer Ferraris, 
 Cancellarius, )i. 7.) The emoluments or charg^es 
 for drawing' documents should not exceed the tax 
 arrang-ed by Pope Innocent XI where it applies, and 
 should otherwise conform to the diocesan regfulations. 
 The chancellor of a bishop must conform his charg'e 
 to the taxa IrDiocentiana for copies of acts and of 
 civil or criminal processes. This charg'e cannot be 
 more than half a "Roman Julius" for a two pag^e sheet 
 of which each pag'e must consist of at least twenty 
 lines and each line of at least tw^enty letters, making- 
 forty lines of twenty letters each for half a "Roman 
 Julius." But the chang-e in the value of coins should 
 also be considered. 
 
 58. The position of episcopal chancellor, it is evi- 
 dent, is one of trust, but not of special honor. It 
 belong's to the laity rather than the clergfy. When 
 filled by a clergfyman, even by a priest, it g-ives the 
 clerg'yman no precedence whatever over the other 
 clerg"y; nor can the bishop because of the office of 
 chancellor gfive its incumbent any such precedence. 
 The office is that of a familiar, trusted and hard- 
 worked. Should the bishop desire to favor his chan- 
 cellor if a priest, he should appoint him also to 
 some other office which will g'ive him the desired 
 precedence. This view is sustained by an answer of, 
 
BISHOP S CHA^XELLOR. 0:5 
 
 the Sacred Propaganda g-iven Dec. 22, 18%. to a 
 bishop who desired to sub-deleg'ate certain matri- 
 monial faculties to his chancellor, for the reason that 
 his vicar gfeneral resided out of the episcopal city. 
 The answer ignored the chancellor and advised the 
 bishop to appoint a vicar gfeneral in curia. An in- 
 quiry into the validity of some dispensations sig-ned 
 bv the bishop's chancellor even thouo-h a priest, but 
 not sig'ned by the bishop or the vicar iJfeneral. miffht 
 be quite pertinent. While it miofht appear pre- 
 sumptuous to question such methods, still some care- 
 ful pastors migfht prefer not to use such dispensa- 
 tions, especially when extraordinary faculties are re- 
 ([uired. The chancellor by law has no rigfht or 
 j)Ower to issue dispensations; he simply draws the 
 document and attests the bishop's siofnature or that 
 of the vicar o-eneral; if sub-deleo-ated by the bisho]) 
 it seems he should mention this sub-delet^'ation as 
 the bishop is required to mention his special deleg^a- 
 tion by the Holy See. The bishop himself or the 
 vicar general must siofn the dispensation. If the 
 chancellor sig'ns the bishop's name and then his own. 
 the document is w^orthless as proof. Neither can 
 the offices of chancellor and vicar general be filled bv 
 the same person, for they are incompatible. 
 
 The aspirant for the position of episcopal chan- 
 cellor should know how to draw up all necessary 
 documents pertaining- to the bishop's office, and all 
 the laws g-overningf ecclesiastical processes in which 
 he may be oblig-ed to participate; for, if throug"h 
 fault of his, damag-e is done, he is liable therefor. 
 Before taking- possession he must take the oath ot 
 office. The parties t(^ a cause mav challeng-e the 
 
56 LEGAL FORMULARY. 
 
 chancellor for good reasons, and another actuar}" 
 must then be assig'ned for that case. 
 
 59. The follow! nij- form may be used for the ap- 
 pointment: 
 
 "N — Episcopus N— Dilecto Nobis in Christo 
 N— , &c. 
 
 Cum de idoneo cancellario providere cupiamus qui 
 Nobis et tribunali nostro inserviat, et quse in illo 
 ag"enda sunt dilig-enter adimpleat, et scripturas 
 librosque ad nostram cancellariam spectantesfideliter 
 custodiat, erga personam tuam mentis aciem direxi- 
 mus, cujus vitse honestas, morum probitas, fides, 
 dilig^entia, habilitas, aliaeque qualitates apud Nos 
 multiplici commendantur testimonio. Ouapropter 
 illarum intuitu tenore prassentium auctoritate nostra 
 ordinaria, et omni alio meliori modo quo possumus, 
 te in nostrum cancellarium eligfimus et deputamus 
 cum facultate universa et sing-ula a«"endi et faciendi 
 tam in voce quam in scriptis quae oferere et facere 
 secundum leg'em possunt et debent cancellarii epis- 
 copales; ita ut tuis scripturis tarn publicis quam pri- 
 vatis durante officio omnis fides in judicio et extra 
 adhibeatur. Ac insuper assigfiaamus tibi annuuni 
 
 salarium doUariorum, quod mensuali portione 
 
 ex fdioecesanis) fuudis accipies cum congrua habita- 
 tione et victu in aedibus nostris episcopalibus, sine 
 tamen alio quocunque emolumento, exceptis qua^ 
 juxtataxam dicecesanam pro documentis transcriptis 
 rite accipies, vel alio modo ex nostra liberalitate tibi 
 specifice donabuntur. Mandamus itaque omnibus 
 nostrae jurisdiction! subjectis, ceterisque ad quos 
 pertinet, ut te in talem ag'noscant et recipiant sul) 
 poenis nostro arbitrio pro modo culpee infli^endis. 
 Praesentibus ad nostrum beneplacitum valituris. In 
 quorum fidem &c. Datum &c. 
 [l. s.] N. EpiscopLis N. 
 
 N. N. Secretarius K])iscopi/' 
 
bishop's chancellor. 57 
 
 60. This appointment should be countersig-ned by 
 the bishop's secretary and by him copied in the 
 chancery reg"ister that no dispute may occur regard- 
 ing- the validity of the chancellor's acts. Proper 
 notice should also be g"iven to the diocesan clergfy in 
 the usual way. The oath to be taken by the chan- 
 cellor before taking- possession of his ofifice is as fol- 
 lows: 
 
 "Kgro, N. N. curiae episcopalis N — cancellarius 
 electus, promitto, spondeo et juro, me officium quod 
 suscepi hdeliter et sincere quantum in me est 
 executurum et impleturum, nee quidquam in eo 
 favore aut g^ratia humana acturum; sic me Deus 
 adjuvet et haic Sancta Dei l^vang^elia." 
 
 A notary or actuary appointed for a special case 
 or in g^eneral is oblig^ed to take a similar oath, a 
 neg^lect to do which will render at least suspected if 
 not invalid all the records he writes. [Confer Moii- 
 acclli, Tom. /, Til. 7. Form. 10.) He sa^^s that all 
 officials on taking" office are oblig"ed to make oath to 
 fulfill their duties properly. 
 
 The chancellor has no precedence over the clerg^y 
 because of ' his office, which is merely that of a 
 notary. He cannot be entitled "Very Reverend," 
 as specially shown in the following" chapter, n. 65. 
 
 It should not be overlooked that the bishop's chan- 
 cellor has by law no right whatever in the adminis- 
 tration of diocesan property; hence, if advisable, 
 special provision should be made for this purpose in 
 each new appointment, and notification thereof griven 
 
 the clerg-y. 
 
 9 
 
CHAPTER VI. 
 
 APPOINTMENTS OF NOTARY, SECRETARY AND 
 
 ECONOME OF BISHOP. 
 
 61. The chapters "Quoniam," de Probationibiis, 
 and "Ut ofFicium" de Hccreticis ordain that judicial 
 acts must be written either by a public notary or by 
 two competent men. But custom has abolished the 
 employment of these two writers, as Reiffenstuel 
 shows. {Cf. Lib. V. Decret. tit. /, 7i. 344.) There- 
 fore a notary public is absolutely required for the 
 purpose; otherwise the acts would neither be authen- 
 tic nor worthy of confidence and therefore the whole 
 judicial proceeding* on account of this defect would 
 be nullified. 
 
 62. A notary is a person constituted by public 
 authority, so that acts written and attested by him 
 may be considered authentic and worthy of confi- 
 dence. The necessity of having* such persons is rec- 
 og^nized by both the church and the various civil 
 g*overnments. None but the supreme power in 
 church or state can by inherent rig*ht create notaries. 
 Thus only the Pope for the church, the President or 
 Governor for the state. The reason is that only the 
 supreme power can enact or introduce what exceeds 
 the law of nations, such an enactment being*, "that 
 full credence shall be g*iven to the writing* of one 
 man which is a dead and inanimate w^itness without 
 
 58 
 
CREATION OF NOTARIES. 59 
 
 the corroboration of a living" voice or other attesta- 
 tion." This is the unanimous teachintr of canonists; 
 but they also teach that by custom, introduced with 
 the consent of the Pope, bishops may create notaries 
 for their dioceses. Since, however, the creation of 
 notaries is held to be an act, not of voluntary, but of 
 contentious jurisdiction, a bishop living- outside his 
 diocese cannot there create a notary or chancellor 
 for his diocese. {Cf. Pirhing-, Tit. 22, Lib, 2, Deer; 
 Boicix, De Judiciis, page 44(^.) 
 
 63. Because the bishop has the power to create 
 notaries only from g-eneral custom, it follows that he 
 must himself perform this act and cannot deleg-ate it 
 to his vicar general or others. This point is import- 
 ant for ecclesiastical trials and in fact for all public 
 documents. Since the bishop's chancellor is a notar}^ 
 it applies also to the appointment of the chancellor. 
 
 The o'eneral and provincials of relig-ious orders 
 may create notaries for judicial processes within the 
 order; and inquisitors may create them for processes 
 concerning- faith. 
 
 Notary seems to be a g^eneral term. An actuary 
 is a notary appointed to write the acts of a particu- 
 lar case or cases, and seems to be rather a specific 
 term. But in g-eneral the terms, notar3\ actuary, 
 chancellor are interchang^eable, and the qualifications 
 should be the same. 
 
 64. Notaries created by the Hol}^ See are called 
 apostolic notaries, and have authority throug'hout 
 the world. There are two classes, notaries and pro- 
 tonotaries. Protonotaries are either participating- 
 in the Roman curia, seven in number, or ad i)istar 
 particifantiinn. Notaries created by bishops are 
 
60 LEGAL FORMULARY. 
 
 called ecclesiastical notaries; those created by the 
 state are termed usually notaries public. 
 
 A notary can validly draw up and attest writing's 
 only within the territory of the power appointing" 
 him. It is held as probable by canonists that by 
 custom a notary may outside his territory by consent 
 of subjects of his own territory draw up documents 
 for them. i^Cf PirJiing^, I. c.^ An instrument drawn 
 validly by a notary in his territory is held authentic 
 everywhere; thoug'h the state g^overnments usually 
 require the consular seal of their own representative 
 in foreig"n countries to attest the notary's sigfnature. 
 
 65. By g*eneral law all clerics in sacred orders are 
 prohibited from acting* as notaries, chancellors or 
 actuaries. This is certain from the decretal "Sicut" 
 Lib. 3, Decretalium, title 50, n. 8. This prohibi- 
 tion according" to Fag"nanus, in locimi citatuvi, and 
 other canonists applies whether clerics have benefices 
 or not, and according" to the same author it applies 
 also to all clerics in minor orders who have a suffi- 
 cient support. Religfious are also prohibited, as is 
 evident from Caput ut offtcium. {Lib. j, ///. 2, n. 11, 
 in 6°.) But by that same decretal an exception is 
 made for causes of faith and heresy, so that any 
 competent cleric may act as notary for these cases, 
 and must serve without compensation. Another ex- 
 ception is made for apostolic notaries, for the Pope 
 when appointing" them, by that fact dispenses from 
 the g"eneral law. {Cf. Faguanus, /. 6\) According" 
 to the g"eneral written law this prohibition ag"ainst 
 clerics being" notaries applies also to causes in eccle- 
 siastical courts; but by the g"eneral practice of to- 
 day, as well as that of former times, it is lawful for 
 
ECCLESIASTICAIv NOTARIES. 61 
 
 clerics even in major orders, to act as notaries or 
 chancellors for acts of ecclesiastical authority. 
 {Cf. Tliomassinus, Vet. et Nov. Ecc. Discif. /, /. 2, 
 c. 106; Monacclli, Tom. /, ///. I, form . ^.') Fao-na- 
 nus, however, and others claim the contrary. But 
 whether it is more expedient to have a layman than 
 a cleric for the bishop's chancellor and for the busi- 
 ness of the ecclesiastical courts, must, it seems, be 
 left to the judg-ment of the bishop. Where a tax is 
 assessed on documents, people are likely to decry the 
 chancellor, particularly if a clergyman. But on the 
 other hand the many delicate matters of the bishop's 
 curia which must be recorded and g-uarded by the 
 chancellor suofg^est that he mig'ht with crreater pro- 
 priety be in major orders if not a priest. This would 
 also be more satisfactory to the clerg^y at largfe. 
 
 From the above, however, it is ver}' evident that 
 the chancellor, notary or actuary cannot by virtue of 
 his office have any precedence over the clerg\% 
 whether he be a priest or not. Neither can the 
 bishop g-ive the chancellor any precedence, as shown 
 in chapter three of part second of this book. It also 
 follows that entitling" a bishop's chancellor "Very 
 Reverend," because of that position, is preposterous. 
 
 66. Laymen certainly may act as chancellors for 
 the bishop or as notaries, also in spiritual matters, 
 provided they are appointed by ecclesiastical author- 
 ity. Strictly speaking-, notaries created by the state 
 cannot act in ecclesiastical matters, unless custom 
 has made such acting" lawful. A reservation, how^ever, 
 must be made for causes of canonization, for which 
 none but an apostolic notary can be employed. For 
 the drawing- up of ecclesiastical documents scarcely 
 
62 LEGAL FORMULARY. 
 
 any state notary with us would be considered fully 
 competent, and it must be said that no custom 
 with us has authorized notaries public, or state 
 notaries, to act in church matters, except possibly to 
 attest by siofnature and seal the affidavits of wit- 
 nesses and others in matters to be submitted to 
 ecclesiastical courts. Such attestation has been held 
 valid by the Apostolic Deleofation. 
 
 67. Certain qualifications are required in an eccle- 
 siastical notary, amono- them being* leg"itimate birth 
 and a knowledg-e of law, thoug-h not necessarily a 
 deg-ree in it. If he presumes to act without sufficient 
 knowledg-e, he is liable for all damag^es caused by 
 mistakes. So true is this, that a bishop may cause 
 not only his own appointed notaries, but also apos- 
 tolic notaries to be examined, and if found incompe- 
 tent he may prohibit them from continuing* to act. 
 A notary or chancellor sins ag'ainst his office if he 
 undertakes it without sufficient knowledg-e of law 
 and the practice of courts, or if he violates his oath, 
 or adds or detracts anything* important in taking* 
 testimony. Ag-ain he sins if he commits the exami- 
 nation to a cop3nst with dang-er of mistakes, or if he 
 is neg"lig"ent in g-uarding* the acts to the injury of the 
 parties. Further he sins if throug-h culpable ig-no- 
 rance or malice he omits the necessary solemnities in 
 documents, or if he draws up a false document or 
 violates the secret of his office, for example by re- 
 vealing- testimony to one or the other party before 
 the legfal publication. He sins also by hiding- the 
 acts or refusing- copies of the process to the parties, 
 or by placing- a fictitious document in the stead of 
 one lost. He can also offend by acting* throug-h fear 
 
NOTARIES MUST TAKE OATH. 63 
 
 or favor. Incompetent notaries not unfrequentl}^ are 
 the occasion of much scandal and injury. 
 
 68. Common usag-e has made it obli<ratory for the 
 notary or chancellor to take on entering upon his 
 duties an oath of fidelity. This usa^e is immemor- 
 able, for documents even of the middle aj^^-es contain 
 such sio-natures as "I. N. N., a sworn notary." 
 Pope Clement V prescribed such an oath to be taken 
 by the notaries commissioned by the twenty French 
 bishops to whom that privilege was o-ranted in the 
 council of Vienne; but there seems to be no jL^eneral 
 positive law. However, the universal, immemorable 
 custom, as well as* the unanimous teaching- of canon- 
 ists, requires the notary to take oath; and its omis- 
 sion would undoubtedly render all his acts suspected 
 if not ipso facto null and void. So certain is this, 
 that it may be maintained that a notary until he has . 
 taken the oath of office is onh' a private person and 
 his word is only that of a private individual. Fur- 
 ther, if an oath is required of a witness for the 
 validity of his testimony, unless specifically waived, 
 
 a fortiori the oath of office is required for the validit}^ 
 of such an extraordinary w^itness as the mere writ- 
 insf of the notarv. Moreover, article 18 of the "Cum 
 mag-nopere" enacts that all officials in trials must 
 make oath to perform their duties faithfully. For 
 public safety, therefore, and because of the import- 
 ance of the matter, the acts of a notary who has 
 not taken the oath of office should be held and have 
 been held null and void. The form of this oath for 
 the notar}^ is given in n. 60 of the previous chapter. 
 
 69. The following' form may be used in appointing 
 a notary: 
 
64 LEGAL FORMULARY. 
 
 "N. Kpiscopus N. — Dilecto iilio &c. Cum vitae 
 tuae lionestas, morum probitas, fides, diligfentia atque 
 habilitas apud Nos niultlplici commendentur testi- 
 monio, harum qualitatum intuitu, tenore praesentiuni, 
 auctoritate nostra ordinaria, et onini alio meliori 
 modo quo possunius, te in publicum notarium 
 elig'imus et deputamus; cum facultate universa et 
 sing"ula ag*endi et faciendi, tarn in voce quam in 
 scriptis, qua3 gerere et facere possunt etdebent notarii 
 publici auctoritate ecclesiastica creati; ita ut tuis 
 scriptis tam publicis quam privatis, durante officio, 
 oninis fides in judicio et extra adhibeatur; cum con- 
 sueta mercede; mandantes omnibus nostrse jurisdic- 
 tioni subjectis ceterisque ad quos pertinet, ut te in 
 talem ag^noscant et recipiant, sub po^nis arbitrio nos- 
 tro pro modo culpae inflig'endis. Pra^sentibus ad 
 beneplacitum nostrum valituris. In quorum fidem 
 &c. Datum &c. 
 
 N. E^piscopus N. 
 N. N. Cancellarius Episcopalis." 
 
 A copy of this appointment and a minute of tak- 
 ing- the oath should be left in the chancery and men- 
 tion must be made of them in the beginning* of each 
 judicial process in which the n-otary is engaged. 
 Should the notary or chancellor become ill, another 
 must be deputed to take his place and a proper rec- 
 ord be made in the acts of the process. Only the 
 bishop himself can create this substitute notary, but 
 not the vicar general or a judge-delegate who may 
 be acting in the case. Hence lest the bishop be 
 absent or unable for some other cause to supply the 
 vacancy when it occurs, it seems prudent that he 
 create in his diocese several competent notaries who 
 may be substituted when necessity requires it. The 
 state has several notaries public; so also should each 
 diocese have more than one. It may be advantageous 
 
bishop's secretary. 65 
 
 also to have aspirants for the notaryship attend cer- 
 tain ecclesiastical trials with the notary of record so 
 that they may train experience, which cannot be 
 acquired from books. 
 
 70. The secretary of a bishop is a private person 
 who w^rites letters and otherwise fulfills the orders 
 of a bishop for whom he is eng-a^red. He may be a 
 layman or a priest, but g^ood policy sug^g^ests that if 
 not a priest, he be at least in sacred orders, because 
 of the delicate matters which come to his knowledgfe 
 throug'h intimate association with the bishop. For 
 this reason also he should be eminently trustworthy. 
 He is not a public official and is not recog'nized in 
 law. Hence all communications sent by him to the 
 clerg'y should always contain the expression "by 
 order of the bishop," or "the bishop directs me to 
 say." He is a familiar of the bishop to whom he is 
 responsible, and who in turn is responsible for his 
 acts- and writing's. The position itself g'ives him no 
 precedence over the clerg-y of the diocese, and he 
 necessarily ranks below the movable rectors, nor can 
 the bishop g-ive him precedence other than accorded 
 him by holy orders. The bishop is personally re- 
 sponsible for the salary of his secretary. Frequently 
 the bishop's secretar}^ has also some official position 
 which g-ives him rank and additional support. 
 
 71. The Second Plenary Council of Baltimore, n. 
 75, determined and expressed the conviction that it 
 would tend g-reath^ to the relief of bishops and the 
 gfood of the church, if each appointed an econome or 
 procurator, either a layman or a cleric, for the ad- 
 ministration of temporalities. His duties niig-ht be 
 
 10 
 
66 LEGAL FORMULARY. 
 
 to care for the bishop's house in temporal matters as 
 well as to administer the diocesan property under 
 direction of the bishop, to whom at stated times he 
 would render an account. For, as the council thinks, 
 bishops, on whom rests "the care of all the churches" 
 and "for whom it is not rig-ht that they leave the 
 word of God and minister at the tables," should so 
 arrangfe the administration of their dioceses that, not 
 being- troubled with the care of temporal matters, 
 they may be free to devote their whole energ^y to 
 spiritual affairs and the salvation of souls. The 
 council quotes from the council of Milan and from 
 the reforms introduced by St. Charles Boromeo on 
 this subject. The Fifth Council of Milan as well as 
 previous councils made the appointment of an econ- 
 ome an oblig^ation; but the Baltimore council was 
 content with g"iving" a strong admonition that it 
 should be done. 
 
 72. In the first ag*es of the church, as we learn 
 from the councils of Gangfra and Antioch, the bishops 
 administered all church property. But they had 
 two checks, the one that they were oblig^ed to use 
 the advice of their priests and deacons, that is the 
 cathedral chapter, the other that they migfht on com- 
 plaint be called to an accounting- and judgment be- 
 fore the provincial council. The council of Calce- 
 don, canon 26, ordered that each bishop should ap- 
 point one of his clerg^y econome for the administra- 
 tion of church property; and so strict became the 
 law, that Photius later notes that one of the chargfes 
 ag"ainst Chrysostom was, "that he administered 
 church property without consultation, that no one 
 knew where the revenues of the church went; 
 
bishop's econome. 67 
 
 that he had sold through Theodulus the property 
 left by Thecla." The reason why the Calcedon 
 council was moved to make such a law was that 
 certain bishops, notabl}^ Ibas of Edessa, were mal- 
 administering- church property and diverting- it to 
 the use of their families. The Fourth Council of 
 Toledo, in canon 48, enacted that "if an}^ bishop 
 hereafter shall choose to administer church tempor- 
 alities throug"h a laymen or shall g^overn without an 
 econome, he shall be held a contemner of the canons 
 and a defrauder of the church and shall be amenable 
 to the provincial council." It is ag^ainst the law to 
 have laymen in full chargfe of church property, 
 thougfh the}" niay be granted some, participation. 
 Priests were first appointed economes, but later dea- 
 cons beg^an the temporal administration under man- 
 date of the bishop in both the east and the west, and 
 carried their pretensions so far that in time they 
 took precedence of priests, even of those having* the 
 care of souls. Gradually the powder of the arch-dea- 
 cons, who besides having- contentious jurisdiction, 
 were made economes by bishops, became so g^reat 
 that these administrators became presumptuous even 
 ag^ainst the bishops who appointed them. To curb 
 such presumption w^hich had become almost founded 
 in law% bishops begfan appointing- vicars g-eneral other 
 than the arch-deacons, and chose economes from 
 among- their clerg"v wdio would be more docile than 
 those already too powerful throughout the diocese. 
 73. When parish priests beg-an to be appointed, 
 the tithes and other church property in their parishes 
 came under their administration, the bishop retain- 
 ing- only the rigfht of supervision, that the property 
 
68 LEGAL FORMULARY. 
 
 mio-ht not be alienated or badly administered. The 
 law now is that as soon as a parish becomes vacant 
 an administrator or econome must be appointed by 
 the bishop to ofuard its revenues. A similar oblig"a- 
 tion rests on the cathedral chapter, for in case of va- 
 cancy occurring" in the see, the chapter must appoint, 
 according- to the council of Trent, an econome to 
 temporarily administer the finances of the diocese. 
 It will be noticed from the above that the duties of 
 an econome may vary much. The economes made 
 of oblig^ation in the councils of Calcedon and Toledo 
 had charg^e of all church property, because no divis- 
 ion of it had yet been made into four parts, for the 
 support respectively of the bishop, the clerg-y, the 
 church fabric and the poor. But the Fifth Council 
 of Milan and the practice following- therefrom con- 
 cerned the property after this fourfold division. In 
 its eleventh chapter the council enacts "that each 
 bishop shall appoint an econome, who shall not be a 
 layman, nor a relative, but an ecclesiastic of his dio- 
 cese, and who if possible shall -be a deacon well 
 versed in this kind of business. The bishop shall 
 each third year bring- and exhibit to the provincial 
 council the account books of his administration by 
 such econome and g-ive in that same council a consci- 
 entious report of his whole administration." {Cf. 
 V Coitncil of Milan; TJiomassiniis^ Vet. et N. Eccl. 
 Disc. f>. J, /. 2, c. g-i2.) 
 
 74. The apostolic canons, n. 39, g-ave to the bishops 
 the full administration of the offering's of the faith- 
 ful. But this discipline could not and did not last 
 long-. When these oflFering-s were increased and real 
 property was acquired, another method became nee- 
 
ADMINISTRATION OF PROPERTY. 69 
 
 essary. The bishops, even in the first ages, coun- 
 seled with their presb3"teries or chapters reg^arding- 
 the administration and distribution of church prop- 
 erty. Ivater certain councils in both the east and 
 the west made it oblio'atory on bishops to appoint 
 clerical economes. Gradually also cathedral chap- 
 ters acquired many rights in the administration of 
 diocesan property, while all parish property was 
 subject to the administration of the respective parish 
 priests. It is evident also that bishops were oblio-ed 
 to render an account of their administration to the 
 provincial council ever}^ three 3^ears; and therefore 
 that they had never an absolute and irresponsible 
 control of church property. 
 
 75. While in missionary countries man}^ exceptions 
 are made so lono- as necessary to the general laws of 
 the church, still prudence dictates that laws founded 
 on the sad experience of the past should be put into 
 force just as soon as possible also in the countries 
 subject to the Propaganda. The absolute owner- 
 ship of church property by the civil title being in the 
 person of the bishop alone, is contrary to the spirit 
 and the laws of the church even though allowed as a 
 last resource for exceptional reasons by the councils 
 of Baltimore. The exclusive administration of 
 church property by a la3^man is also against the laws 
 and spirit of the church from the apostolic canons 
 down to the present day. While the Second Council 
 of Baltimore allowed such administration because it 
 was supposed then necessary, still to-da}^ throughout 
 the whole United States, neither that exception nor 
 the other of the absolute tenure by the individual 
 bishop seems necessary in fact or maintainable in 
 
70 LEGAL EORMULARY. 
 
 g-ood conscience in view of the censures lodgfed ag^ainst 
 alienation of church property. The tenure before 
 the civil law which best harmonizes with the laws 
 and spirit of the church, is the plan of a corporation 
 consisting" of the bishop and several priests, with 
 whom if advisable a minority of laymen may be as- 
 sociated. This is in vogfue in several states and has 
 been found eminently satisfactory. It best secures 
 the property and yet amply preserves the authority 
 of the bishop. Further, it seems an approach to the 
 chapter system, and will do away with the odium of 
 one man holding immense properties. The corpora- 
 tion plan has also received the sanction of the Sacred 
 Propaganda in a Detroit case, decided January 11, 
 1897, wherein these words are used: "This same 
 decision shall remain in force when the administra- 
 tion of the diocesan funds shall pass to a corporation 
 to be eventually established for the holding of the 
 property appertaining to the diocese." 
 
 76. The mandate of the bishop to his econome 
 should explicitly desig'nate the duties of the latter, 
 and if the econome thereby is obliged to correspond 
 with the clergy of the diocese and receive from them 
 the sums required for cathedraticum and such pur- 
 poses, his appointment must be published to them so 
 that they may know precisely what are his powers. 
 The law gives him no authority, but makes all his 
 power and duties depend on the written mandate of 
 the bishop. The office of econome to the bishop is 
 one of trust and grave responsibility; but since it 
 may be held by a deacon or any lower cleric, the po- 
 sition cannot give its incumbent any precedence over 
 
TENURE OF CHURCH PROPERTY. 71 
 
 the diocesan cler^ry; nor can the will of the bishop 
 enforce precedence to the detriment of others. 
 
 Following- is a <^eneral form for the appointment 
 of an econome, which may be chan^^cd according to 
 desire: 
 
 "N. Bishop of N. to Rev. N. N. Beloved in the 
 Lord. Greetin^^: The councils of the church hav- 
 ing" wisely advised that bishops should appoint an 
 econome for the manag'ement of their household and 
 other temporal affairs, we, seeing- the g-reat utility 
 for our diocese which may ensue, have resolved to 
 relieve ourselves of much of our detail work in tem- 
 poral affairs and to confide it under our supervision 
 to some experienced, faithful and devoted clerg-yman. 
 
 Trusting- therefore in your experience, tact and 
 carefulness in business matters and having- g-reat 
 confidence in your honesty, fidelit3% unselfishness of 
 character as well as devotion towards ourselves, we 
 hereby choose, desigfnate, make and appoint you our 
 econome in temporal matters during- our g-ood pleas- 
 ure, g-iving- you all and singrular' the necessary 
 powders to collect cathedraticum and all other moneys 
 or oblig-ations due us or our manse by diocesan law or 
 custom from the parishes or priests or other persons 
 of our diocese or for interest on invested funds; 
 authorizing- you to receipt officially for the same 
 when paid, and to place all moneys so received as 
 well as others which may come into your charg-e, in 
 a bank or other place of safe-keeping-; authorizing- 
 you further to pay from said moneys the necessary 
 expenses of our household and such other items as 
 we from time to time may direct; and after consulta- 
 tion with us to invest the balance of such funds; in- 
 structing- you hereb}^ to keep proper and exact ac- 
 counts of all receipts and expenses and to render an 
 accounting- to us in writing- at the expiration of each 
 three months and as often as we shall require; allow- 
 
72 LEGAL FORMULARY. 
 
 \ng you a yearly salary of dollars, payable 
 
 monthly, and also proper lodgfing* and board in our 
 episcopal residence. And we command all whom it 
 may concern to recoa"nize you as our econome and 
 pay to you the moneys hereinbefore mentioned. In 
 testimony whereof we have ordered the above letters 
 patent to be expedited, registered in our chancery 
 and published. Given at &c. 
 
 N. Bishop of N. 
 N. N. Bishop's Chancellor." 
 
CHAPTER VII. 
 
 APPOINTMENT OF FISCAIv PROCURATOR, DEFENDER 
 
 OF MARRIAGE BOND, COURT MESSENGER, 
 
 AUDITORS OF ACCOUNTS. 
 
 77. In every diocese it is necessary that a curia be 
 established for the exercise of contentious jurisdic- 
 tion. In the United States a diocesan curia is of 
 strict law and a papal dispensation is required for 
 temporary relief from the oblig*ation of establishing- 
 it. iCf' Third Plot. Council Bait. }i. 2g'/-2gS.) 
 By the diocesan curia, or the bishop's court is meant 
 that body of persons, who, either with the bishop or 
 in his name exercise contentious jurisdiction. In 
 the United States this court is necessarily composed 
 of the bishop or vicar g-eneral or his deleg^ate, as 
 judge; of the chancellor of the diocese or some other 
 notary as actuary or secretary; and of the fiscal pro- 
 curator as plaintiff or accuser. To these the bishop 
 may add, if advisable, an auditor, other notaries and 
 messeng-ers. A special tribunal should also be pro- 
 vided for matrimonial causes. 
 
 78. According- to article 13 of the instruction 
 *'Cum mag-nopere," a fiscal procurator or diocesan 
 prosecutor must of necessit}^ be appointed in every 
 episcopal curia, "in order that justice and the law 
 may be satisfied." A criminal trial without a reg-u- 
 
 11 73 
 
74 LEGAL FORMULARY. 
 
 larly appointed fiscal procurator is ipso facto null 
 and void. It is the riorht of the prosecutor to inter- 
 vene at all judicial proceeding's, whenever any step 
 is taken against an accused person. It is the rig"ht 
 and duty of the fiscal procurator to draw up and 
 present the charges ag'ainst the accused and he is 
 therefore responsible, if, through his carelessness, 
 malice or want of firmness, malicious charges are 
 allowed to be heard in court; for, before the bishop 
 may cite an accused person the opinion of the pro- 
 curator must be given that the charges seem sus- 
 tainable. 
 
 79. It is evident, therefore, that a fiscal procura- 
 tor must know canon law not only in its primary 
 principles but in its details, though he need not nec- 
 essarily have a degree in law. He should also be en- 
 dowed with great prudence, for an imprudent or 
 ignorant procurator can do immense harm and easily 
 create scandal. A prosecutor or fiscal procurator 
 can act onlv in the diocesan curia for which he is 
 appointed. He has no standing -in any other court, 
 not even in the metropolitan court on appeal, unless 
 he has been specially authorized by the metropolitan. 
 
 The fiscal procurator is a familiar of the bishop, 
 and must receive a salary from him, even if no pre- 
 vious arrangement has been made regarding it. 
 {Cf. BouLx, De Jiidiciis, Vol. /, ^. 47 S-) He is ap- 
 pointed during the good pleasure of the bishop, and 
 consequently may be removed without a canonical 
 trial, though not without grave and sufficient cause 
 and proper security for his reputation. Any cleric 
 may be fiscal procurator for the bishop, sacred orders 
 not being required for the position. He has no pre- 
 
FISCAL PROCURATOR. 75 
 
 cedence over the other clergy, nor is he entitled 
 "Very Reverend." In case of necessity the vicar 
 general may appoint a procurator temporarily; but 
 he cannot remove one appointed by the bishop. 
 
 80. The fiscal procurator should remember that if 
 durino" his investi«"ation he discovers testimony favor- 
 able to the accused he is oblit>'ed to make it known. 
 He is not a persecutor but an official prosecutor, 
 vs^ho acts not from personal motives but that justice 
 ma\^ be satisfied. For the same reason when an ac- 
 cused person has once been tried re^^fularly and ac- 
 quitted in the diocesan curia, the prosecutor cannot 
 appeal to a hig*her court and have the accused ag^ain 
 tried on the same charg-es. {Cf. Moiiacclli, -p. /, ///. 
 /, f. 8.) In the United States an un violated pre- 
 scription of over a hundred years from the establish- 
 ment of the hierarchy has made the custom of the 
 prosecutor not appealing" from an absolvinor sentence 
 so strict a law that his attempt to appeal would not 
 only render him odious, but would also be clearly 
 illeg'al. The fiscal procurator on assuming- office 
 must take an oath to fulfill his duties properly. This 
 is required in the Roman law. Hence, also, under 
 canon law, for no exception has been made in it. 
 {Cf. Bollix, Dc Jiidiciis f). 473: Craissoji, Mauiialc 
 n. sydg.) 
 
 81. The following- form may be used in appointing- 
 a fiscal procurator, publication of it being- made in 
 the usual way : 
 
 "N. Episcopus N— . Dilecto N— , &c. 
 
 Idoneitate, probitate, experientia et prudentia tua 
 
 innitentes, ut justitice et legi, ut decet, in nostra dioe- 
 cesi satisfiat, te procuratorem fiscalem nostree curia? 
 
76 LEGAL FORMULARY. 
 
 ad beneplacitum nostrum cum emolumentis solitis et 
 
 consuetis, seu salario annuo dollariorum men- 
 
 strue solvendo, nominamus, constituimus et deputa- 
 mus; dantes tibi omnes facultates necessarias et con- 
 venientes ad ea omnia implenda quse ex Instructione 
 "Cum mao-nopere" et Plenarii Concilii III Baltimor- 
 ensis decretis ad officium procuratorls pertinere nos- 
 cuntur, velqua^tibi posthac specialiter mandabuntur; 
 mandantes omnibus nostras jurisdictioni subjectis, 
 ca^terisque ad quos spectat, ut te in officialem nos- 
 trum episcopalem seu procuratorem ag'noscant et 
 quoties opus fuerit tibi assistant. In quorum fidem 
 &c. Datum &c. 
 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Episcopalis." 
 
 82. In matrimonial causes, when there is question 
 of the validity or nullity of a marriag^e, either a 
 special judg-e or auditor may be appointed by the 
 bishop, or the vicar ofeneral may act by virtue of his 
 g-eneral appointment if matrimonial causes were 
 mentioned therein. The chancellor or notarv may be 
 the same as for criminal cases. A special official, 
 called the defender of the marriag^e bond, is required 
 in every curia whenever a judg-ment is to be passed 
 on the validity or nullity of a contested marriag"e. 
 His presence is necessary for the validity of the judgf- 
 ment. The Third Council of Baltimore, n. 305, says 
 this defender should be an ecclesiastic conspicuous 
 for knowledg*e of law and probity of life. It is his 
 duty to defend the bond of a contested marriag"e and 
 to appeal to a hig-her court in every case of a decision 
 annulling" the marriag^e. The defender of the marriagfe 
 bond has no precedence over the clergfy. He is ex- 
 horted by Benedict XIV "Dei Miser, no. 12" to act 
 without pay; but if he insists, then the party who 
 
DEFENDER OF MARRIAGE BOND. 77 
 
 defends the validity to pay him if possible; other- 
 wise the judg*e will pay him out of the sums dsvoted 
 to pious works. 
 
 The defender must take an oath of fidelity not 
 only when first appointed, but at the be^^innintr of 
 each case. '{,Cf. Benedict XIV, Deiniiseralione, n. y.) 
 
 The followinof form may be used for the appoint- 
 ment: 
 
 "N. Episcopus N. — Dilecto &c. Cum a Benedicto 
 XIV in constitutione qua^ incipit "Dei miseratione" 
 provide statutum fuerit, ut in disceptandis matri- 
 moniorum (quoties de eorum nullitate ag-itur) causis, 
 aliquis deputetur, qui sub matrimonii vinculi 
 defensoris nomine, eorundem valorem ex officio sus- 
 tineat; idcirco nos, de tua idoneitate et probitate 
 apprime conscii, te ad explendum in nostra curia dic- 
 tum officium, juxta pra^laudata^ constitutionis ten- 
 orem et praiscripta, nominamus, constituimus et 
 deputamus; mandantes omnibus nostras jurisdictioni 
 subjectis, ut te in defensorem matrimoniorum ag"nos- 
 cant et quas tibi, ut tali, debentur, officia prasstent. 
 In quorum fidem &c. Datum &c. 
 [e. s.] N. Episcopus N. 
 
 N. N. Cancellarius Episcopalis." 
 
 83. A court messeno-er is required for serving* 
 citations, summoning- witnesses and performing* such 
 other duties as usualh^ pertain to the custodian of 
 the court room. When properly appointed and reg"- 
 istered, his official testimony that he served citations 
 is considered full proof of the fact. Several messen- 
 g-ers may be appointed. Following- is the form: 
 
 "N. Bishop of N. To our Beloved N— &c. 
 Wishing- to provide our episcopal court with a proper 
 messeng'er who will fulfill his duties with fidelity 
 and alacrity and having- confidence that you possess 
 
78 LEGAIv FORMULARY. 
 
 these qualities, we by these present letters do choose, 
 constitute and depute you as a public messeno'er or 
 courier of our tribunal, during- our g^ood pleasure, 
 with the duties, privilegfes and emoluments usual to 
 the office; g-rauting* you all the necessary and oppor- 
 tune faculties for exercising* in our whole diocese 
 the office of messeng-er whenever you shall be called 
 upon, admonishing" you in the Lord to faithfully per- 
 form your duties, and commanding- all to recog-nize 
 and receive you as such messeng-er, under penalty to 
 be inflicted in proportion to the offense. In testi- 
 mony whereof, &c. Given at &c. 
 [iv. s.] N. Bishop of N. 
 
 N. N. Chancellor." 
 
 84. It is not only a rig'ht but a duty on the part 
 of the bishop to demand an accounting- of those who 
 administer charitable institutions or pious places. 
 Undoubtedly he is also entitled to supervise the ad- 
 ministration of all parish finances and must see that 
 church property is devoted to its proper use. He 
 cannot himself devote time to examine these various 
 accounts, and therefore he usually appoints one or 
 more auditors or examiners of diocesan accounts, 
 gfiving- them authority not onl}^ to examine the an- 
 nual statements sent in by pastors and heads of in- 
 stitutions, but also to examine the books themselves 
 from which these statements purport to be copied. 
 It is advisable that these auditors likewise examine 
 the books of the bishop's econome and report on 
 their condition to the bishop. Such an auditor or 
 examiner mig-ht accompany the bishop on his episco- 
 pal visitation, and at this time or some other, mig-ht 
 make a comparison of the annual statements with 
 the parish books. {Cf. Ill Cotincil Bait. no. 14.) 
 This auditor may be either a clerg-yman or a 
 
AUDITORS OF ACCOUNTS. 79 
 
 layman and must receive compensation from the 
 bishop if from anyone, for neither the bishop nor the 
 examiner can exact anything- whatever for the ex- 
 amination of these accounts, no matter what custom 
 there be to the contrary. The Sacred Con^reg-ation 
 of the Council has so decided. {Cf. Monacelli p. /, 
 /. /, /. /^.) Should the accounts be found incorrect 
 or the books in poor shape the auditor must refer the 
 matter to the bishop or the vicar general and cannot 
 himself proceed against the parties in fault. 
 
 This form may be used for the appointment: 
 
 "N. Bishop of N. To our beloved N. health in 
 the Lord and g-reeting: The duties of our pastoral 
 office require us to see that the goods and revenues of 
 churches and pious places be properly administered, 
 and that their accounts at proper times be examined 
 and audited. Wherefore we, being occupied with 
 the g'raver cares of the episcopate and confident of 
 your fidelity, prudence and experience, do by these 
 present letters choose, constitute and depute you 
 during our good pleasure to be a general examiner 
 and auditor of the accounts and the administration 
 of all the churches and pious places of both our epis- 
 copal city and the diocese which are subject to either 
 our ordinary or our delegated jurisdiction ; giving you 
 full faculty and power to cite all officials and admin- 
 istrators, as the law determines, and to compel them 
 under penalty to be determined by us, to exhibit to 
 you their books and receipts and all other papers 
 required for a thorough examination and accounting-. 
 You will, however, not proceed against delinquents 
 or those contemning* these letters, without previous 
 consultation with us or our vicar g'eneral. In testi- 
 mony, &c. Given &c. 
 
 [iv. s.] N. Bishop of N. 
 
 N. N. Chancellor." 
 
PART SECOND. 
 
 Parishes, Precedence, Sacred Things, Fac- 
 uivTiEs, Index Rules, Edicts, Property. 
 
 CHAPTER I. 
 
 PARISH PRIESTS, SYNODAL EXAMINERS AND 
 
 CONCURSUS. 
 
 86. Parish priests are the chief auxiliaries of the 
 bishop, because the actual care of souls is committed 
 to them. They are truly pastors, but only of eccle- 
 siastical orig-in, and therefore have only a limited 
 jurisdiction, not independent but subject to the ordi- 
 nary of the diocese. Their jurisdiction is also con- 
 fined to the internal forum and is not contentious. 
 
 He may be called a parish priest who in his own 
 name exercises the care of souls, whether his tenure 
 be perpetual or only temporary. However, the coun- 
 cil of Trent, (sess. 24, ch. ij de reforrn.) expressly 
 orders bishops to establish parishes where they do 
 not yet exist, and having separated the people into 
 
 80 
 
PARISH PRIKSTS. 81 
 
 distinct parishes to assig^n to each its own f)crf>etual 
 pastor notwithstandin<4- any and every privilege and 
 custom to the contrar3^ The Sacred Con<i-re<^ation 
 of the Council insisted on June 26, 1875, and on 
 April 26, 1879, that movable vicars should not be 
 appointed, but perpetual vicars should be chosen, 
 except in the case of churches served by religious, 
 which may have movable vicars. These decisions 
 apply to countries where the hierarchy is established; 
 but in missionary countries where there are no epis- 
 copal sees and consequently no parishes, the mission- 
 aries must be considered simply preachers of God's 
 word, not parish priests. {S. Congregation of 
 Propaga nda J a n .28, lySo,) 
 
 87. According-, then, to the canons and especially 
 to the idea of the council of Trent a parish ma}^ be 
 defined, "a church of some diocese desig*nated by 
 authority of the Roman Pontiff or of the bishop, 
 which has a people circumscribed within determined 
 limits and a priest or rector by whom the sacraments, 
 the word of God and other spirituals are exclusively 
 and officially administered to this same people." A 
 church is required as the center of unity and the 
 desig"nation by the Roman Pontiff or the bishop in 
 order that there may be certainty of the foundation 
 of the parish. {C/\ Can. 11, causcc 16, q. 7/ Coic. 
 Trid. sess. 21, cap. 4.) A certain people living- 
 w^ithin described limits of the diocese is required. 
 {Cf. Can. /, cans, /?, q. i ; Co?ic. Trid. scss. 24, c. 
 I J de reform.) But this does not necessarily pre- 
 clude two or more parishes from having- the same 
 territory- if they have a different people either in 
 
 lang-uag-e or in rite. For a parish it is also required 
 12 
 
82 IvEGAIv FORMULARY. 
 
 that there be one determined priest from whom alone 
 the people may licitly receive the sacraments. When 
 a moral person, as a monastry or a . chapter, is the 
 parish priest, a vicar must be appointed to act for 
 it. As soon then as these three requirements are 
 present a true parish is said to exist, and to have 
 been canonically erected. Kven if documents cannot 
 be produced, the very fact that a certain people of 
 a determined territory receive the sacraments only 
 from an appointed rector constitutes presumption of 
 a canonical parish. A baptismal font and a ceme- 
 tery g-ive g'ood but not conclusive proof that a church 
 is a parish church, says Smalzg^reuber 1. 3, t. 29, n. 
 5; but to-day a cemetery is not necessary for a par- 
 ish, because common burial i^frounds are used in many 
 of the larg"er cities. 
 
 88. The Second Plenary Council of Baltimore, n. 
 124, decreed that in all the provinces of the United 
 States and especially in the larg^er cities where there 
 are several churches, certain districts, like parishes, 
 with defined limits should be assigned to each church 
 and that parochial or quasi-parochial rio-hts should 
 be ^iven the rectors of such churches. This decree 
 was put into effect, and throug-hout nearly every 
 diocese, except probably those of the west and south, 
 parish limits were determined and by that very 
 fact canonical parishes were established by the 
 bishops with the implied sanction of the Holy See, 
 and in obedience to the council of Trent. 
 The rectors of such churches {Cf. idem Cone. n. 
 112.) when properly appointed, thereby obtained 
 ordinary pastoral jurisdiction over the people living- 
 within the limits assigfned to their churches, and 
 
PARISHES IN UNITED STATES. 83 
 
 other priests (except the ordinary) not unfrequently 
 even by diocesan statutes, were excluded from ad- 
 ministerin«f within such parishes without the consent 
 of the rectors. This is the common practice throug^h- 
 out most of the United States at the present time. 
 According to the definition g^iven above it seems well 
 nig"h incontrovertible that throuf^'hout most of the 
 United States there are canonical parishes, for this 
 former missionary country has an established hier- 
 archy with dioceses, and these dioceses have by order 
 of their bishops certain desig^nated churches which 
 have each a people within determined limits and a 
 priest or rector by whom the sacraments and spirituals 
 are exclusively and officially administered to this 
 same people. DeAngelis, 1.1, t. 28, n. 6, maintains 
 the same regarding- our parishes. So also Pieron- 
 tenelli, Praxis, tit. 4, n. 3. 
 
 89. Undoubtedly the bishops of both the Second 
 and the Third Plenarv Council wished to avoid 
 g"rantingf irremovability to the parish priests whom 
 they practically instituted. Hence in n. 125 of the 
 Second and n. 32 of the Third Plenary Council 
 they say: "In using- the terms parochial rig-hts, 
 parish and parish priest, we do not intend to g-rant 
 to the rector of any church the rig^ht, as they say, 
 of irremovabilit3% or to diminish in an}^ way that 
 power which from the received discipline in this 
 country the bishop has of depriving- any priest of his 
 charg-e or transferring- him elsewhere. But we 
 admonish and exhort bishops not to use this rig-ht 
 except for g-rave causes and with due reg-ard for 
 merit." By excepting- irremovability they conferred 
 all other ri«-hts. Moreover, the council of Trent 
 
84 LEGAL FORMULARY. 
 
 orders bishops to establish parishes; hence any and 
 every act of theirs looking- to the fulfilment of this 
 law must be widely interpreted, favorable to the 
 law, not aofainst it. 
 
 It was with this same mind that in n. 24 of the 
 same Third council the bishops say: "Ut ig-itur 
 mentem sacrosanctae synodi sequamur, quamdiu 
 parochial canonice erecta^ uon sint, constituant sin- 
 ^uli episcopi examinatores pro concursibus ad 
 rectoratus irremovibiles." They seemed to take for 
 granted that in a canonically erected parish, the 
 pastor is necessarily irremovable and this rig"ht they 
 wished to exclude from the movable rectorships; 
 hence they incidentally asserted, without determin- 
 ing* the matter ex f>rofesso, that as long- as all par- 
 ishes were not established with this full rigfht of 
 irremovability, still the clerg-y should be examined 
 for appointments to certain irremovable rectorships. 
 The explanation is plain. The bishops were willing" 
 to put upon the rectors all the duties of parish 
 priests and to g-ive them all the rig"hts of them, ex- 
 cept that of perpetuity of tenure, which the Holy 
 See urgfed, and which the council of Trent expressly 
 orders, but which the discipline introduced by the 
 bishops in missionar}^ times excluded. On the sup- 
 position that perpetuity of tenure is of the essence of 
 a parish, the bishops constantly endeavored to assert 
 that parishes have not been canonically erected in the 
 United States. But under the supposition that a 
 canonical parish is possible without necessarily im- 
 plying" perpetuity of tenure, there seems no doubt 
 whatever that even many "movable rectorships" are 
 true parishes, and that their pastors if properly ap- 
 
PARISPIES IN UNITED STATES. 85 
 
 pointed have all parish ri^rhts except perpetuity of 
 tenure or irremovability. [Cf. Boidx, De Parocho, 
 pag-e 20 1- 1 2, y, Craisson^ Mamuilc, n. 532.) As a 
 matter of fact and law the S. Con^-. of Prop, on 
 Nov. 8, 1882, declared that, "Amovability <^/^/ ;?///^^;;^ 
 is not in itself a siijfn that parish ricrht is lackin^r." 
 (C/. Collect, n. 212^ -pg-. jgj) 
 
 The expression in n. 24 of III Plen. Council of 
 Baltimore "Quamdiu parochial canonice erecta? non 
 sint" is not a universal ne<jfative, nor does it say 
 there are with us no parishes. If such a meanino- 
 were intended, the assertion would be false in fact; 
 for the Fathers of the Council knew and admitted 
 that there were canonically erected parishes at least 
 in New Orleans, and in the province of San Fran- 
 cisco and in the city of Detroit. The II Plen. Coun- 
 cil of Bait. n. 108 admitted the parish in New 
 Orleans; and in n. 340 mentioned the parish of De- 
 troit. The learned Sabetti in his Moral Theolo.ffv 
 n. 710, q. 3, says that the pastors of some churches 
 in the province of San Francisco are obliged on the 
 appointed days to apply their mass for their parish- 
 ioners; still he seems in the same number and else- 
 where to consider the above passa«"eof the Third coun- 
 cil'las quite conclusive proof that there are no canon- 
 icall}^ erected parishes in the United States. The 
 passa»"e of the Third council in view of admitted facts 
 and the decrees of the First and Second councils 
 which authorized the establishment of districts and 
 churches and exclusive rectors, seems of little force 
 in settling* the question whether or not there are 
 parishes in the United States. Moreover a cursory 
 assertion is only as valuable as the facts on which it 
 
86 LEGAL FORMULARY. 
 
 is based. It cannot make the facts. Too much is 
 attempted to be proved by this passage; therefore 
 nothing is proved. {Cf. note p. 2jj b^lozv.) 
 
 Ten years before the celebration of the III Coun- 
 cil of Baltimore, the First Provincial Council of San 
 Francisco, held in 1874, in decree 16 declares explic- 
 itly that there are in that province certain canonically 
 erected parishes; and insists that both pastors and 
 people therefore comply with their respective duties. 
 Hence the casual assertion of the III Council of Bal- 
 timore cannot have much weight in law to prove 
 there are no parishes in the United States. 
 
 Moreover the argument drawn from the III Coun- 
 cil of Baltimore is based simply on a narrative pas- 
 sage; and it is a well known principle of law "E)x 
 narrativis non valet argumentum." {Pyrrh. Corr. 
 Praxis, I. J, c. /, J.) Finally the S. Cong, of the 
 Propaganda which never does things thoughtlessly 
 or uselessly, has granted the bishops of the United 
 States in no. 4 of Form C the faculty of permitting 
 parish priests subject to them to abstain for good 
 reason from applying their mass for their people 
 on suppressed feasts. Now if there are no 
 parishes in the whole United States what sense is 
 there in this act of Rome? These special faculties 
 are given to bishops with a thorough knowledge of 
 the needs of the country in which they are to be used. 
 Hence different forms are given for different coun- 
 tries. The bishops of Canada (form T), of Ireland 
 (form VI), of Germany, Austria, Poland, Russia, 
 Belgium (form III), of France (form X) and prefects 
 apostolic (form IV) and the bishops of I^^ngland and 
 Scotland (form II, which, except in n. 2, 4, 5 and 
 
PARISHES IN DETROIT DIOCESE. 87 
 
 12, ib the same as form I) receive special faculties 
 appropriate for those countries. The bishops of the 
 United States receive special extraordinary faculties 
 in Form C which contains that re^ardin^ parish 
 priests. Could the Holy See do such a senseless 
 thing- as give bishops a faculty they can never use? 
 This would be farcical and impossible. Therefore 
 the Holy See recognizes that there are parishes in 
 the United States. This doctrine is taught by the 
 professors of law and others in Rome, among whom 
 were Santi, De Angelis and at present Pierontonelli. 
 Hence when the learned Putzer (comment 113, 2) 
 says we have no benefices or parishes because also 
 irremovable rectors hold their parishes and adminis- 
 ter them j'zere delag'ato, he simply begs the question. 
 In the United States at least irremovable rectorships 
 may be considered parishes administered jure ordi- 
 nario as shown above. 
 
 It is certain that parishes have been established 
 in the Diocese of Detroit, for the late Bishop Borgess 
 so intended and decreed in his synodal constitutions 
 of 1886, and the decree establishing parishes, once 
 issued, cannot be revoked. Personally I am sure of 
 the mind and intention of the bishop, for as fiscal 
 procurator, at his special mandate I drew up the 
 decrees, and w^hen the}' were presented to him for 
 approval, decree n. 6 was specially discussed and its 
 extension and effect fully appreciated as designating 
 parishes. The onl}' reservation the bishop desired 
 made was regarding irremovability. He first intended 
 inserting some words to that effect in decree n. 6; 
 but later decree n. 11 was inserted, reserving the 
 one right of irremovabilit}^ The originals of the 
 
88 IvEGAIv FORMULARY. 
 
 decrees with the notes of the bishop are still in my 
 possession. The bishop himself officially published 
 these decrees Sept. 15, 1886, after the III Council 
 of Baltimore. Following' are the two decrees: 
 
 No. 6. "Civitates, pra^sertim in quibus plures 
 reperiuntur ecclesiae, sed et omneni dioecesim in dis- 
 trictus quosdam dividendas, ordinis causa censuimus, 
 divisasque declaramus; juribus tributis eorum rec- 
 toribus, ut scilicet ii vel eorum vicarii, sacramenta 
 baptismi, matrimonii, extremae unctionis et viatici, 
 jus habeant ministrandi, illis qui mirdi pcn'ccciarion 
 suaruni limites deg'unt; nee alius quicunque sacerdos, 
 sive s^cularis sive reg^ularis, possit leg"itime se iis 
 ministrandis ing-erere absque Nostra vel parochi 
 ipsius licentia." 
 
 Decree 7 forbids interference with the pastor's 
 rig-hts; decree 8 makes it obligatory for a priest, who 
 has administered sacraments to another pastor's 
 parishioners, to forthwith turn over to the pastor all 
 offerings, and decree 9 orders all people to apply for 
 sacraments to their own pastor. Decree 10 makes it 
 a duty for pastors to attend the charitable institu- 
 tions situated within their parish limits. Decree 11 
 is as follows: 
 
 "Parochialis juris, paroecise et parochi nomina 
 usurpando, nullatenus intendimus ecclesise cujuslibet 
 rectori jus, ut aiunt, inamovibilitatis tribuere, nisi 
 prout in Concilio Plenario III Baltimorensi statutum 
 est de rectoribus inamovibilibus posthac constituen- 
 dis; quibus exceptis missionarii rectores onines ad 
 nutum sunt amovibiles." Irremovable rectors were 
 appointed in 1890 in a meeting- of the diocesan clerg-y 
 and the synodal decrees of 1886 were confirmed. 
 
PARISHES IN DETROIT DIOCESE. 89 
 
 Decree 12 adds, "Cum rectorlbus ecclesiarum ciira 
 animaruin commissa sit, sacerdotes assisteutes seu 
 vicarii, quibusdam ecclesiis ab Episcopo adsig-nati, 
 iisdem in omnibus quai ad cultum divinum spectant 
 subesse et obedire debent, &c." 
 
 So careful was Bishop Borg'ess on this matter that 
 a copy of the synodal constitutions of 1886 was sent 
 for record to the S. Con«-reg"ation of the Propag-anda, 
 that there mig-htbe no question in the future re^^ard- 
 inof his action in this matter. Limits were defined 
 between parishes and are well-known to-day. From 
 the official acts 'of Bishop Borg'ess it is absolutely 
 certain that parishes have been canonically erected 
 in the diocese of Detroit. It will be noticed by com- 
 paring" the above decree n. 6 with the II Council 
 of Baltimore that the words '^parochiariun i)isiar'" 
 "juribus quasi -parocliialibus''' which are found in 
 the Baltimore Council and some diocesan statutes 
 have been purposely omitted from the Detroit de- 
 cree, thus explicitly g^iving- full parochial rig'hts and 
 making" real parishes instead of quasi-parishes. 
 
 90. The Third Council of Baltimore, in n. 33, 
 while claiming" that for the present it is still impossi- 
 ble to carry into effect all the prescriptions of the 
 council of Trent reg"arding" parishes, especiall}" the 
 perpetuity of tenure, nevertheless by order of the 
 Holy See explicitly granted this perpetuity and irre- 
 movabilitv to certain rectors. It seems sure that at 
 least the rectors thus desig"nated must be considered 
 true parish priests; for their parish churches and 
 people, as well as themselves, have been explicitly 
 desig"nated by the bishop, under instructions from 
 
 the Holy See, and the rig'ht of irremovability canon- 
 13 
 
90 LEGAL FORMULARY. 
 
 ically conceded. The "Cum magfnopere," n 45, terms 
 them irremovable parish priests or rectors. 
 
 Moreover perpetuity of tenure, as* well as other 
 parish rig^hts, is not a g'ratuitous and spontaneous 
 concession of the bishops, but comes from the very 
 law, which determines that benefices, even such as 
 our rectorships, must be conferred not for a time or 
 manually, but perpetually and irrevocably. When 
 therefore the bishops of the Second and Third Ple- 
 nary Councils of Baltimore stated that they did not 
 intend to confer the right of irremovability on all 
 rectors, they must be understood to say this, not as 
 if they could changfe the common law, but as acting- 
 with the tacit consent of the Holy See which was 
 pleased not to correct such a practice for the time 
 being-. (6/. DeAng-elis, Pra'lectiones, lib. j, t. 2g, 
 n. j; Cone. Trid. sess. 24, c. ij, dercf.) 
 
 91. Since only the Holy See in the plentitude of 
 its authority can authorize that benefices, particu- 
 larly having" the charg-e of souls, may be conferred 
 temporarily when the law distinctly requires that 
 they be conferred perpetually, it is evident that no 
 bishop, without special authority and permission of 
 the Holy See can lawfully appoint pastors who shall 
 be movable ad uutum. For this reason the bishops 
 of France and Belg^ium, after the Napoleonic wars 
 and the consequent chang-e in parishes, wished to 
 have their practice of appointing- movable rectors to 
 certain parishes approved by the Holy See. After 
 carefully considering- the circumstances, on Mayl, 
 1845, the Sovereig-n Pontiff decreed that no chang-e 
 should be made until otherwise provided by the Holy 
 See. {^S. Cong. Coiicilii, in Leodiensi, i Mali, 184.^.') 
 
WHO HOLDS TITLE OF PARISHES. 91 
 
 Thus there are in Prance and Belo"iuni two classes 
 of parish priests, one succursal and movable, the 
 other practically irremovable. The same is true of 
 the United States to-day. There are two classes of 
 rectors, movable and irremovable. 
 
 92. As soon therefore as a bishop has desiofnated a 
 church and assig^ned to it a people within certain 
 limits and g-iven a certain and sole rector to it, then, 
 according- to the council of Trent, cap. 13, sess. 24 
 de reform., is had a canonically erected parish. 
 These requirements being- present, the law itself, 
 not the will of the bishop, determines that there is 
 a canonical parish, or parochial benefice. However, 
 the bishop either confers this parish on some one as 
 a title, and then the position of the incumbent is per- 
 petual under the canons and he is said to be a true 
 parish priest and a true beneficiary; or, on the other 
 hand, the bishop while himself retaining* the titles of 
 parishes once constituted, g-ives only the administra- 
 tion of them to certain priests, who in this supposi- 
 tion are either perpetual or temporary vicars. To 
 the first class being* irremovable rectors, for the 
 bishop confers on them not only the administration 
 but the title of their parishes after being- found 
 worthy throug-h concursus. To the second class 
 may belong- some if not all movable rectors of par- 
 ishes. This will depend on their letters of appoint- 
 ment, (which should be carefully drawn and specify 
 whether or not the priest is only a vicar) and on the 
 tolerance of the Holy See in allowing- bishops for a 
 while long-er to continue this exceptional discipline. 
 Bishops have the rig-ht to appoint incumbents of 
 movable rectorships real parish priests by their let- 
 
92 LEGAL FORMULARY. 
 
 ters, and the presumption of law is that also movable 
 rectors are parish priests; hence the contrary, if in- 
 tended, must be stated in each appoi-ntment. Irre- 
 movable rectors have canonical institution, but tem- 
 porary vicars have only a deputation or appointment. 
 Irremovable rectors can be moved only for canonical 
 causes and after trial. Temporary vicars in the 
 United States may be moved by the bishops "for 
 ofrave reasons and with proper consideration for 
 merit," and this without trial unless the reasons 
 constitute crime and the removal would be a punish- 
 ment. Before a movable rector or temporary vicar 
 is removed as a punishment or deprived of his office 
 he must be g-iven a trial according- to "Cum mag^no- 
 pere." {Cf. S. Cong", de Prop, responsa ad dithia 
 March 28^ iSSy.) It should always be remembered 
 that against the decree of the bishop removing a 
 movable rector or temporary vicar there is no appeal, 
 but only a recourse and that the removed cleric 
 must vacate the office until restored by the higher 
 authority. Recourse may be made to the Apostolic 
 Delegation at present instead of the Propag^anda. 
 The reason why there is only a recourse is that the 
 position of temporary vicars is not determined in law, 
 and hence there is no ordinary remedy, but only an 
 extraordinary one because of a certain unwritten, 
 natural equity. The bishop is not oblig^ed to g"ive his 
 reasons to the removed rector, but only to the author- 
 ity to whom recourse is had. {Cf. n. 106, below.) 
 
 93. The division of the diocese into parishes, 
 according to the canons and especially the council 
 of Trent, was ordered for the better and safer g^ov- 
 ernment of souls and to afford the bishop certain 
 
BISHOPS AND PARISH PRIESTS. 93 
 
 determined assistants compelled by reason of 
 their office to assist him in the care of souls. Hence 
 parish priests must acquire this participation from 
 the bishop or the Sovereign Pontiff and no one else 
 can o-ive them authoritative institution. But the 
 bishop's authority is not lessened by such participa- 
 tion, for whatever the parish priest can do the 
 bishop also can do, because he does not cease to be 
 the ordinary of that part of his flock. However, 
 g-ood policy sug-g-ests that he should not interfere 
 indiscriminately in parish work, for undoubtedly 
 episcopal duties differ from parochial work, and 
 supervision differs from concurrent .labor. Parish 
 priests have participant jurisdiction, not in the exer- 
 cise of the episcopal order nor in the external forum, 
 but in the administration of all other sacred thing's, 
 in reg*ard to the people belong-ing* to their parish. 
 (6/. De Ang-clis^ I. j, /. 29, ;^. ^: Berardiis I. c.) 
 Further, parish priests are said to be placed b}' law, 
 because it is a precept of ecclesiastical law that a 
 diocese be divided into parishes and that parish 
 priests be assig^ned to them, and secondly because 
 their authority is determined by law and therefore 
 is said to be ordinary. For this reason, says De 
 Ang"elis, 1. 3, t. 29, n. 4, it is admitted that parish 
 priests can sub-deleg"ate this authorit3% either for 
 certain acts or ad iinivcrsitateni ccnisariim, by ap- 
 pointing* assistants with the approval of the bishop. 
 Agfain, since parish priests receive jurisdiction from 
 the law, a bishop cannot stop the exercise of this 
 jurisdiction by merely "withdrawing- faculties," as it 
 is called. The bishop can in this way onl}' withdraw 
 what he g'ave voluntarily, but he cannot thus with- 
 
94 LEGAIv FORMULARY. 
 
 draw what the law g"ave. He must for this purpose 
 properly suspend the incumbent and specify exactly 
 the extent of the suspension. 
 
 • 94. The council of Trent, sess. 21, c. 4, de re- 
 form., enacts that when a parish priest cannot alone 
 attend to the spiritual wants of his parishioners, the 
 bishop, also as the delegate of the Holy See, is g^iven 
 power to compel the rector to employ as many as- 
 sistants as will suffice to attend the people. Con- 
 cerning- these assistants Pope Innocent III issued a 
 bull '^ Afostolici Ministerii''' which Benedict XIII 
 ordered observed, to the effect that, "the bishop shall 
 determine the portion of the parish revenues which 
 shall be assigned for the maintenance of the assistant, 
 with proper regfard for circumstances. And if the 
 parish priests after warning by the bishop neglect to 
 engag-e assistants, the bishops themselves may then 
 appoint such assistants as they deem fit and assign 
 them competent support from the parish revenues. 
 Nevertheless when the parish priests have selected 
 their assistants, before they are admitted to act their 
 fitness must be determined by an examination. If 
 rejected as unfit by the bishop, the parish priests 
 must select others, or in default the bishop will ap- 
 point." From which text it follows plainly that the 
 parish priest may choose his own assistants when 
 needed; but when a vicar is appointed because of a 
 fault in the pastor, for instance, if he is suspended 
 ex inforniata cojiscicntia, then the nomination de- 
 volves on the bishop. {S. Cong-. Cone. 4.. Mali 
 1737.) 2vitelli, who wrote his Af^aratus Juris Ecele- 
 siastiei especially for the United States and similar 
 countries, and who at the time was the official of the 
 
ASSISTANT TO PARISH PRIEST. 95 
 
 Propao-anda, distinctly lays down the same doctrine 
 on pao;"e 187, where he says, "the nomination of tem- 
 porary assistants belongs to the pastors, but the 
 examination and approval of them pertains to the 
 bishop." There is no law which reverses the com- 
 mon law for the United States. Hence it holds. 
 
 95. This seems but proper, especially considerinof 
 that the pastor is really responsible for his parish 
 and that he has ordinary ri"; ht to it by law. A^ain, 
 since usually in the United States the assistants live 
 in the same house as the pastor, he should be allowed 
 to determine who shall belon«- to his household, who 
 shall eat at his table. For these reasons w^hatever 
 may be held concerning- the nomination of assistants 
 to a parish priest, it ^ems certain that he may 
 object to receiving- into his house or retaining- there- 
 in any assistant who is personally offensive; nor can 
 the bishop impose such assistants upon him, except 
 according- to the bull above quoted. DeAng-elis lib. 
 3, t. 5, n. 27, says that in parts of France and ad- 
 joining- countries, where g'enerally assistants live 
 separate from the pastor, a departure has been in- 
 troduced from the practice of parish priests naming- 
 their assistants. There the bishops appoint and re- 
 move them without hearing- the pastors. But, he 
 says, this is because of the special manner of adniin- 
 tering- these dioceses in which the bishop alone is 
 responsible for the support of his clergy and must 
 sustain them himself until he provides them with 
 some office. He adds that this practice which by 
 long custom and the tacit consent of the Holy See 
 may be licit in a certain place, should not and can- 
 not be introduced in other places against the canons. 
 
% LEGAL FORMULARY. 
 
 Craisson, however, who was a vicar general in 
 France, does not sustain an}^ such custom, but in his 
 Mannale, nos. ^o^g and 133 J lays down the law that 
 the pastor may choose his own assistants. Bouix, 
 De Parocho, pag'e 42'/, maintains the same ri^lit for 
 the pastor. The S. C. Cone, in Melit. 7 June, 1692 
 decided that the parish priest, not the bishop, has 
 the rig-ht to appoint a deputy to have charg^e of the 
 parish in the absence of the pastor. 
 
 96. There is a g^reat difference between an assist- 
 ant and a coadjutor. The pastor chooses the former, 
 but the latter is a priest, who is assig"ned by the 
 bishop for reasons determined by law to assist the 
 pastor in the exercise of the care of souls. The 
 reasons for appointing" a coadjutor are: Long- con- 
 tinued ill health of the pastor in body or mind, the 
 defect of sufficient knowledg-e, provision during- the 
 pastor's suspension for a fault. The larg-e number 
 of parishioners is not a leg-al reason why the bishop 
 may appoint a coadjutor, but only a reason why he 
 may compel the pastor to select an assistant. A 
 suspensive appeal will lie ag"ainst the bishop's de- 
 cree appointing- a coadjutor to a pastor because of 
 his ill health; but only a devolutive appeal if the 
 coadjutor is appointed because of defective knowl- 
 edg-e, since the council of Trent so declared for this 
 latter case. 
 
 97. Parish priests have both oblig-ations and rig-hts. 
 The council of Trent decrees that a parish priest 
 must make a profession of faith before the bishop or 
 his vicar g-eneral within two months from his ap- 
 pointment. This applies to those pastors who are 
 movable ad nutum as well as to those irremovable. 
 
DUTIES OF PARISH PRIESTS. 07 
 
 They are also bound to reside within their parishes, 
 and in the rectory if there is one. If a priest has 
 two parishes united, he must reside in the more 
 worthy. However, the council of Trent allows that 
 when there is a canonical cause the bishop may o-rant 
 the parish priest leave of absence, provided he leave 
 a competent vicar to take his place and assign him 
 proper compensation. 
 
 The parish priest is oblig*ed also to offer sacrifice, 
 preach and administer the sacraments for his people. 
 All those who have a pastoral title are obliged to 
 say mass and apply it for the people committed to 
 them. Thus bishops for their diocese, and all for 
 their charg-e, who possess a benefice with the cure of 
 souls, that is, parish priests by whatever name they 
 may be called. They also are under this oblig-ation 
 who are actually in charg-e or administer a parish 
 that is either vacant or the habitual care of which is 
 in another, which is claimed by some to be the con- 
 dition of our movable rectors. Such also are vicars 
 of parishes either perpetual or temporary. All these 
 are obliored to apply their mass for their people on 
 Sundays and feasts of oblig-ation even those now 
 suppressed. Missionary priests are not obliged to 
 apply their mass for their people, except those wdio 
 take the place of pastors in those places where epis- 
 copal sees and parishes have been canonically 
 erected. (S. C. Prop, March 28, i,Soj. jMarch 
 
 2:?, 1863.) 
 
 98. Pastors are also obliged to preach and instruct 
 
 their people, old and young. Neither should they 
 
 allow any others to preach in their church unless 
 
 they know them either personally or by letters of the 
 11 
 
98 LKGAL FORMULARY. 
 
 bishop. A pastor is also bound to administer the 
 sacraments to his parishioners not only from charity 
 but from justice. He is also oblig'ed'to keep record 
 books for baptisms, marriag-es, deaths and a book 
 de statu animaruyn^ as well as proper account books 
 for temporal matters. 
 
 99. The rio'ht of administering baptism pertains 
 exclusively to the pastor, except in case of necessity, 
 and no other priest can licitly confer it. The same 
 holds true of holy communion by way of viaticum, 
 and at I^aster time, as well as the first communion 
 of children. The last sacraments must be adminis- 
 tered by the pastor, and the solemni^^ation of mar- 
 riages also pertains to him alone. Certain blessings 
 are reserved for him, as the blessing of ashes, palms, 
 candles, the baptismal font and the celebrating mass 
 on Holy Thursday; but in all these cases he may 
 delegate others. Funerals likewise belong to the 
 parish priest to conduct, and offerings therefor are 
 his by law. What formerly were personal tithes, 
 but now are called jura stoke off-erings, must go to 
 the pastor of the person receiving- the sacraments. 
 These two principles are laid down by law: personal 
 tithes ov jura stoke must be paid by all the faithful 
 to the pastor from whom as subjects they must re- 
 ceive the sacraments, unless they are specifically 
 exempt; and those who do not pay their tithes or 
 dues to their pastor commit a mortal sin, as do also 
 those who impede others; and according to Sess. 25, 
 c. 12 of the council of Trent they are to be excom- 
 municated and cannot be absolved until they have 
 satisfied. (6/. DeAiig-elis, I. j, t. jo, n. 4.) The 
 Sacred Penitentiary has recently rendered a decision 
 
SUPPORT OF PASTORS. 99 
 
 to this same effect, which by some has been applied 
 to the payment of pew rent or dues to the church as 
 well as jura stolce to the pastor. They maintain 
 that the fifth precept of the church imposes an obli- 
 g"ation of justice, which must be satisfied before ab- 
 solution can be g'ranted. They further contend that 
 a pastor, in justice to his successor, may not incon- 
 siderately remit these oblig*ations due by each and 
 all of the faithful, but that he is bound prudently to 
 enforce them. Whether such policy is proper is left 
 for others to decide. 
 
 The S. C. Prop. May 13, 1816, replied to the 
 Bishop of Bardstown that "the faithful are bound 
 in conscience to provide sufficient support for the 
 ministers of the church. But it is unworthy of an 
 ecclesiastic and a matter meriting adimadversion to 
 refuse sacred thing's and even baptism to those who 
 decline to submit themselves to the debt of offering's." 
 {Cf, Collect, f). 82, n. 22^.) 
 
 The administration of the temporal affairs of a 
 parish belong-s to the pastor; he only is held respon- 
 sible. He may for safety have others associated 
 with him, but the law holds the pastor for an ac- 
 counting*. Prom the revenues he must assign a com- 
 petent support for his assistants if he has any. In 
 the United States §300 a year and board is the usual 
 allowance for an assistant, with of course full con- 
 trol over his intcntioues mauualcs. But by law an 
 assistant is not entitled to any perquisites. In some 
 dioceses an arrang^ement has been made in synod, 
 specifying a division of revenues. When ordained 
 tihilo niissionis a priest is entitled to cong*ruous sup- 
 port from his diocese and from the bishop who or- 
 
100 LEGAL FORMULARY. 
 
 dained or incardinated him. He can insist on this 
 rig-ht before the ecclesiastical courts; but when ap- 
 pointed to a parish he can make no further claim on 
 the bishop, unless the revenues are entirely insuf- 
 ficient. The civil courts do not hold the bishop re- 
 sponsible for the priest's salary. {Rose vs. Vertin^ 
 46 Mich. ^57. Tiiigg" vs. SJiceJian^ loi Penn. j6j.) 
 
 100. In the United States, at the present time, 
 there are no reserved parishes, nor any with j'tis 
 ^atro7iatus . The bishop of the diocese has the free 
 collation of them all whenever a vacancy occurs. 
 However, a priest to be appointed to the care of souls 
 should be at least twenty-five years old and con- 
 spicuous for virtue, morality and knowledo-e. The 
 council of Trent, elaborated by many apostolic con- 
 stitutions, insists that only those shall be given 
 charge of parochial churches, who shall have been 
 found the most worthy through a concursus and a 
 solemn examination of all the candidates before at 
 least three synodal examiners together with the 
 bishop or his vicar general. 
 
 Prom the law of concursus are exempt: Churches 
 in which the care of souls belongs to a chapter or a 
 collegiate body and the actual charge is exercised by 
 a dignitary, canon or other cleric; churches which 
 have been resigned to the bishop or the Sovereign 
 Pontiff in favor of a certain person with a change of 
 benefice, and churches subject to \?i^ jus ^atronatus. 
 Parishes also of very scant revenues, i. e., those 
 which do not exceed (20 aurei de camera) about 
 thirty-five dollars, after deducting expenses; new 
 parishes, but only for the first collation, and parishes 
 twice exposed for concursus without any candidates 
 
CONCURSUS FOR PARISHES. 101 
 
 applying'. {Cf. Santi, I. j, /. 5, n. 72.) Still none 
 of these should be conferred without some examina- 
 tion. {Cf. Reiffenshiel, I. ,% /. 5, n. 146.) Only the 
 bishop may call a concursus, or in case of vacanc}^ in 
 the see, the vicar capitular or administrator. 
 
 101. In the United States a concursus is necessary 
 before the bishop may appoint a pastor to any vacant 
 irremovable rectorship. (///. Plcn. Council, n. 40, 
 et seq.) A concursus is not of necessity at present 
 before appointments to movable rectorships, on the 
 supposition that their incumbents are temporary 
 vicars, to whom the title does not pass, though they 
 actually perform the work, but it remains in the 
 bishop. How long- this condition shall continue will 
 depend on the tolerance of the Holy See. No one, 
 however, will question the advisability of filling- such 
 positions with the best possible candidates. Neither 
 is it out of place for priests to apply for such posi- 
 tions when vacant, particularly if an examination is 
 held before appointments are made. 
 
 102. A concursus is a competitive examination held 
 before the bishop or his vicar general and certain 
 persons called synodal examiners. These examiners, 
 at least six in number, were ordered by the council 
 of Trent, sess. 24, c. 18, de ref. to be proposed by the 
 bishop or his vicar g^eneral in diocesan s3^nod each 
 year and to be such as are satisfactory to the synod 
 and approved b}^ it. These examiners should be 
 masters or doctors or licentiates in theology or canon 
 law or if such cannot be had, then other clerg-yman 
 secular or regular who may seem best qualified; and 
 they are oblig-ed to take an oath to fulfill their duty 
 without any human consideration. They are de- 
 
102 LEGAL E'ORMUIvARY. 
 
 clared g"uilty of simony if on the occasion of exami- 
 nations, either before or after them, they accept any- 
 thing- whatever. The election in the synod should be 
 by name and surname and each person should be 
 singfly proposed, not all too^ether, otherwise their 
 nomination would be null. {Cf. Monacelli^ tovi. /, 
 /. 5, n. i6.) Once appointed they hold office until 
 the next synod, even thoug*h the year closes for 
 which they have been chosen. {S. Cong-. Concilii^m 
 Iviol. lo Dec. i6g^) The Third Council of Balti- 
 more, n. 25, says that with previous permission of 
 the Holy See, a bishop can choose examiners outside 
 of synod, having- heard his consultors. Further if 
 by death, resig-nation or other cause a vacancy occurs, 
 the bishop with the advice of his consultors may fill 
 it. The examiners are to take the oath before the 
 synod if appointed therein, and before the bishop or 
 his vicar g-eneral if otherwise selected. At least 
 three examiners must be present in each concursus. 
 They may also be used for the examination of candi- 
 dates for orders, for examination, before approval of 
 confessors and for the examination of the junior 
 clerg-y. 
 
 103. The rules for the concursus have been laid 
 down by Benedict XIV in his constitution Cinn illud, 
 and are explained for the United States in the Third 
 Plenary Council nos. 40 to 59. When an irremov- 
 able rectorship becomes vacant, the bishop will im- 
 mediately appoint an administrator, and later an- 
 nounce the vacancy to the diocesan clerg-y by calling- 
 a concursus. He will g-ive ten days or even twenty, 
 for candidates to file their applications. By special 
 faculty of the Holy See, g"iven for ten years from 
 
RULES OF CONCURSUS. 103 
 
 Jan. 6, 1886, (and renewed to individual bishops) 
 thirty days may be g-iven instead of the usual ten. 
 The vacancy must, however, be filled by appoint- 
 ment within six months. Only priests of unblem- 
 ished character who have served at least ten 3^ears 
 in the diocese and have ruled as movable rector at 
 least three years or have otherwise «-iven evidence of 
 ability to administer spiritual and temporal affairs, 
 may be admitted to compete. All competitors must 
 within the specified time file application with the 
 bishop who will judg^e of their admission. 
 
 The examination will be in moral and dog^matic 
 theology, liturg^y and canon law especially on practi- 
 cal points. A catechetical lesson will also be re- 
 quired and a short sermon. The questions will be 
 proposed to all competitors at the same time and a 
 limited term g^ranted for reply. The competitors 
 will meet in the same room under a prefect and none 
 except the competitors and prefects will be allowed 
 in the room, nor will any be permitted to leave dur- 
 ing" the examination except for necessity. Each 
 competitor will write his answers and sig^n them; 
 they will then be sig"ned by the notary of the con- 
 cursus and each of the examiners and by the ordi- 
 nary. In forming- an opinion of the competency of 
 the candidates not only their knowledg^e but their 
 other qualities must be considered, such as experi- 
 ence and capacity in temporal aifairs, prudence in 
 conduct and fairness in disposition. The examiners 
 may only announce to the bishop the names of all 
 whom they find competent without specifying- the 
 most worthy. The examiners must g-ive their opin- 
 ions before they leave the place of examination. 
 
104 LEGAL FORMULARY. 
 
 The bishop or his vicar g-eneral will not take part in 
 this judg-ment on the examination except in case of 
 a tie vote when he may decide. 
 
 104. When a judgment has been gfiven by the ex- 
 aminers the vacant parish must be g-iven to one of 
 the approved candidates, the bishop having- the 
 selection. If the bishop has secret information 
 ag-ainst a candidate he may pass him by and choose 
 another of the approved. This concursus is a neces- 
 sary prerequisite for appointment to an irremovable 
 rectorship, except when it is first established, or in 
 case the bishop desires to appoint a priest (who has 
 been once cxaniincd, S. C. Prop. Oct. 10, 1884) con- 
 cerning" whose knowledg-e he has abundant proof on 
 account of his dig-nity and long- service to the church; 
 but in this case the bishop must first hear the opin- 
 ion of the examiners. Such collation, however, un- 
 less explained, is liable to create ill-feeling- and crit- 
 icism. If it is deemed wise, the examination reg-ard- 
 ing- knowledg-e may be separated from the other ex- 
 amination. This is the practice in many parts of 
 Germany. I^ach year an examination is held for 
 aspirants to irremovable rectorships, and all those 
 who pass are in that respect considered competent 
 for appointment to any vacancy within six years 
 from the time of the examination. At the expira- 
 tion of six years they must be re-examined if not 3^et 
 appointed. When a vacancy occurs, the examina- 
 tion is only reg-arding- other qualities. (C/. Zitclli 
 App. Juris Ec. p. I'jj; List. S. Prop. Oct. lo, i88^.) 
 
 105. When an irremovable rector is once appointed 
 he cannot be removed except for canonical cause and 
 after trial. If he is suspended ex informata con- 
 
TRIAL OF RECTORS. 105 
 
 scicntia an administrator is to be appointed, but the 
 rector retains possession. The causes called canon- 
 ical are specified in law, but the Third council added 
 several special ones, such as pertinacious disobedience 
 in a serious matter regarding temporal administra- 
 tion, persistent refusal to keep up a catholic school, 
 temerarious and repeated running into heavy debt, 
 collusion with the church lay trustees regfardin^ a 
 note for money due the pastor, fraudulent deceiving 
 of the ordinary in the yearly report in a serious mat- 
 ter to the g-rave injury of the parish, public defama- 
 tion of character tendino- to g"rave dang-er for 
 souls; and finally incompetence in administering- the 
 parish. In such last case the rector should be in- 
 duced to resiofn; and if he refuses, a vicar according- 
 to law should be appointed. But if this is impossi- 
 ble then for a very g-rave reason leg-all}^ shown, the 
 rector may be removed and a competent pension as- 
 sig-ned him with the title of "rector emeritus." 
 
 106. The trial of an irremovable rector must be 
 conducted accordinof to the instruction "Cum mag-no- 
 pere." According- to the common law of the church, 
 if convicted in the diocesan court, he has a suspen- 
 sive appeal to the hig-her court and retains full pos- 
 session until the final sentence. Any limitation of 
 this rig-ht is odious and therefore of strict interpre- 
 tation. There is no limitation in canon law itself, 
 but in n. 286 of the Third Plenary Council of Balti- 
 more one exception is made and the reason of the 
 exception is g-iven in the decree itself. The excep- 
 tional case is when the irremovable rector is also a 
 trustee of the parish propert}^ before the civil law. 
 
 In such a case in order to remove him from his civil 
 15 
 
108 LEGAL FORMULARY. 
 
 Rev. D. N. N. rector in civitate nostra. 
 
 Rev. D. N. N. rector in urbe N. 
 
 Rev. D. N. N. rector ecclesia^ S. N— in N— ." 
 
 When each name has been separately submitted 
 and voted on, either by secret ballot which may be 
 demanded {Cf. Monacelli t. 5, /. j, n. 18) or by a viva 
 voce placet, then a notation is made to that effect on 
 the document itself and a canonical election of exam- 
 iners has been held. The document is published 
 with the synod; nothing" else is required. A similar 
 form may be used for appointment out of synod, 
 but proper publication, after it has been sig"ned and 
 sealed, must be effected of the appointment thus 
 made: 
 
 108. A form follows for announcino- a concursus: 
 
 "To the clerg"y of the Diocese of N — . Greeting*: 
 The irremovable rectorship of St. N. in the city of 
 N — has become vacant by the death (resio^nation) of 
 
 its latest incumbent Rev. N. N. on the day of 
 
 189 — . Therefore in accordance with the pre- 
 scriptions of the council of Trent and the Third 
 Plenary Council of Baltimore (aiid by virtue of the 
 
 faculty g*ranted Us by the Holy See on of 
 
 A. D. — for extending- the time) We have ordered these 
 letters to be expedited and affixed to the door of the 
 vacant church and of our cathedral and to be pub- 
 lished; by which We summon, require and admonish 
 all of our diocese who wish to enter the concursus 
 for the aforesaid vacant charge to appear before Us 
 in the city of N — within ten (thirty) days from the 
 publication of this notice and to give their names and 
 have themselves inscribed by our chancellor among* 
 the contestants, for at the expiration of the said ten 
 
 (thirty) days on the day of A. D. in our 
 
 episcopal residence the concursus of those inscribed 
 will be held before the synodal examiners, and the 
 
 M 
 
SYNODAL EXAMINERS. 109 
 
 aforesaid cure will be conferred on the one found 
 more worthy. Given &c. 
 
 N. Bishop of N. (or the vicar g^eneral.) 
 [e. s.] N. N. Chancellor. 
 
 An official publication must be made of this edict: 
 a newspaper publication is hardly s^ufficient. The 
 bishop's name, or in his absence that of his vicar <4"en- 
 eral must for validit}^ be affixed to the notice. In 
 the United States only those in the diocese for ten 
 years are allowed to compete. 
 
 109. The following- forrn may be used in appoint- 
 ing* an irremovable rector after concursus: 
 
 "N. — Episcopus N. — Dilecto &c. Inter ca^tera 
 quae pro pastoralis officii debito pra^stare cupimus, 
 illud prsecipue cordi est, ut parochialibus ecclesiis, 
 quibus de rectoribus providendum est, tales praifi- 
 ciamus qui ministerio curae animarum, quod omnium 
 gravissimum est, laudabiliter satisfaciant. Vacante 
 igitur nuper de mense N. proxime pra^terito par- 
 ochiali ecclesia sub invocatione S. N. in oppido N. 
 hujus nostrae diciecesis per obitum (vel alias) N. N. 
 illius, dum viveret, ultimi possessoris, fuerunt per 
 curiam nostram, mediante publico edicto juxta 
 formam et praescriptum Sacri Concilii Tridentini et 
 Tertii Concilii Plenarii Baltimorensis, vocati omnes 
 de sic vacante ecclesia provideri cupicntes, quatenus 
 intra terminum decem (vel alias prout in edicto) 
 dierum comparerent in eadem curia ad faciendum 
 describi et adnotari noriiina ipsorum; et cum in eodeni 
 termino plures comparuissent, tandem iisdem legi- 
 time vocatis sub die , coram Nobis rigoroso pra?vio 
 
 examine per tres examinatores synodales facta fuit 
 experientia de scientia et sufficientia singulorum 
 descriptorum oppositorum, ac demum, servatis de 
 jure servandis, fuisti per dictos tres examinatores 
 repertus, habitus et existimatus idoneus vita, niori- 
 bus, a^tate et scientia, et aliis a jure requisitis prae- 
 
110 LEGAIv FORMULARY. 
 
 ditus, et ut talis ad dictani parochialem ecclesiam, 
 ejusque curam per te ipsum reg^endam ab iisdem 
 Nobis renunciatus fuisti, et successive a Nobis ma^is 
 idoneus reputatus et judicatus; Nos ig'itur eidem 
 ecclesise ac animabus illi subditis de rectore provi- 
 dere volentes, tibi quern prse caeteris dio-niorem 
 deleg'imus eamdem parochialem cum illi atanexis, 
 ac omnibus juribus, et pertinentiis suis universis 
 conferimus et assio^namus, de illaque te coram Nobis 
 flexis g^enibus constitutum et acceptantem per bireti 
 capiti tuo impositionem investimus. Quo-circa 
 omnibus notariis publicis et personis ecclesiasticis 
 civitatis et dioecesis nostras per praesentes mandamus 
 et committimus, ut cum pro parte tua fuerint 
 requisiti vel eorum aliquis requisitus, (emissa per te 
 prius coram vicario nostro gfenerali professione fidei,) 
 ad ipsani parochialem ecclesiam dicti loci N. acce- 
 dant, teque vel procuratorem tuum in corporalem, 
 realem et actualem possessionem pra^dicta^ parochi- 
 alis ecclesiam ac omnium illi annexorum et pertinen- 
 tium inducant auctoritate nostra et inductum defend- 
 ant, amoto exinde quolibet illicito detentore, queni 
 Nos harum serie amovimus et denuntiamus aniotum, 
 ac de fructibus, redditibus, proventibus et obventi- 
 onibus universis tibi faciant debito tempore respon- 
 deri. Volumus auteni, ac pra3sentiuni tenore declar- 
 amus per hujusmodi parochialis pacificam posses- 
 sionem, alteram parochialem ecclesiam (missionem) 
 loci N. quam obtines eo ipso vacare. In quorum &c. 
 Datum &c. 
 [l. s.] N. N. Cane. Episc. N. Episcopus N. 
 
 110. The following- form may be used for appoint- 
 ing- a movable rector, or temporary vicar for a parish: 
 
 "N — Bishop of N — , to our beloved, &c., g-reeting": 
 
 Since the church of St. N — in the city (town) of 
 
 N — in our diocese has become vacant by the death 
 
 (resig^nation, transfer, promotion) of the Rev. N. N. 
 
 its former pastor, and since for the g-ood of souls it 
 
APPOINTING OF RECTORS. Ill 
 
 is necessary that we provide a pastor for the said 
 church, who shall be our vicar and movable ad 
 nutum; we therefore, havintr confidence in your 
 knowled<:>*e, piety, prudence, experience and general 
 character, do by these presents appoint you to the 
 said vacant church with its care of souls, until other- 
 wise decreed in writing-; g-ranting- you all and sing-u- 
 lar the necessary rig^hts and powers as movable rec- 
 tor of the said church in accordance with the Plenary 
 Councils of Baltimore and our diocesan statutes. 
 Further we command all whom it may concern to 
 recog'nii^e you as such pastor and rector and g-ive you 
 all necessary assistance. In testimony whereof &c. 
 Given &c. N. Bishop of N. 
 
 [l. s.] N. N. Chancellor of Bishop." 
 
 111. If it becomes advisable for g^rave reasons to 
 transfer a movable rector, he should if possible be 
 broug-ht to consent; and proper consideration in any 
 event must be g^iven to his merits. Prudence dic- 
 tates that he should either be g'iven somewhat of a 
 promotion or at least an equivalent charge. In the 
 form for transferring- no reasons need be g'iven, for 
 in case of recourse they had better be expressed only 
 when demanded by the hig"her authority: 
 
 *'N — Bishop of N — , to our beloved, &c., g-reeting-: 
 In the proper manag^ement of our diocese, for rea- 
 sons known to ourselves, and having' taken full con- 
 sideration of your past merits, we have determined 
 to relieve you of the pastoral charg-e of the church of 
 St. N — in N — and we do hereb}^ relieve you of said 
 charg-e and declare the said church vacant; and we 
 signify to you our intention of appointing' you to an- 
 other charg'e, which appointment is conveyed by let- 
 ters of even date with these. In testimony whereof, 
 &c. Given cS:c. 
 [h. s.] N. N. Chancellor. N. Bishop of N." 
 
112 IvEGAL FORMULARY. 
 
 112. An assistant may be ^iven letters after the 
 following' form : 
 
 "N — , Bishop of N—, to Rev. N. N., beloved in 
 the Lord, greeting : 
 
 The Rev. N. N. pastor of the church of St. N— 
 in N — having" sig'nified to us his desire that you be 
 assig'ned as his assistant, we, being" assured of your 
 competency, do hereby approve of you for that posi- 
 tion and consent that you be assistant in said parish 
 in accordance with the diocesan statutes, until other- 
 wise ordered b}^ us. In testimony whereof, &c. 
 Given, &c. 
 [iv. s.] N. N. Chancellor. N. Bishop of N." 
 
 113. When an administrator is to be appointed for 
 a parish during" a vacancy, this form may be used: 
 
 "N— , Bishop of N— , to Rev. N. N., beloved in 
 the Lord, g"reeting": 
 
 The parish and church of St. N — , in the city of 
 N — , having" become vacant by the death (resig"na- 
 tion, transfer) of Rev. N. N., its last pastor, v^e 
 wishing", as is required by law, to provide for its 
 proper care during" the vacancy, do hereby select and 
 appoint you, in whom we have confidence, to be the 
 temporary administrator of the said vacant parish, 
 and we assig"n you out of its revenues the monthly 
 sum of dollars as salary tog"ether with the per- 
 quisites usually received by the pastor, g"iving" you 
 all the necessary powers of such administrator and 
 commanding" all whom it may concern to acknowledg"e 
 you as such, until jjossession is taken in proper form 
 by the pastor to be later appointed. In testimony 
 whereof, &c. Given, &c. 
 [L. s.] N. N. Chancellor. N. Bishop of N." 
 
CHAPTER 11. 
 
 PARISHES, CHANGES IN THEM, PENSIONS. 
 
 114. The erection of a benefice is defined: "A 
 le^ifitiniate act, by which some sacred office or min- 
 istry is arrang'ed to be performed by a cleric in a 
 certain church or at some altar, with a permanent 
 income which the cleric will receive in his own ri<^ht 
 for the purpose of supporting* himself and sustaining- 
 the expenses of the benefice." A parish is a benefice 
 with the care of souls attached. Parishes may be 
 erected by the bishop of the diocese, provided certain 
 conditions are observed. They may be erected by 
 creation, i. e. by assigning to the new parish terri- 
 tor}^ not yet belonging to any parish, which is a 
 usual method in missionary countries, by detaching- 
 territory from one or several parishes and making- a 
 new one thereof; by uniting- two or more parishes 
 into one. 
 
 115. It is universally held that the large number 
 of parishioners is not in itself a sufficient reason for 
 dividing- a parish. In such a case the parish priest 
 can be obliged to accept assistants sufficient in num- 
 ber to attend to the wants of the people. As a last 
 resource, however, a parish may be divided, provided 
 certain solemnities be observed. The council of 
 Trent (scss. 21, c. ^, dc re for, ^ says: *'As regards 
 those churches to which on account of the distance 
 
 10 113 
 
114 LEGAL FORMULARY. 
 
 or the difficulties of the locality, the parishioners 
 cannot without g^reat inconvenience repair to receive 
 the sacraments and to assist at the divine offices, the 
 bishops may even ag^ainst the will of the rectors, 
 establish new parishes." Thus necessity or g^reat 
 utility for the people are considered sufficient causes 
 for dividing" a parish and erecting- a new one. A 
 reg"ular process should be instituted showing- this 
 necessity or utility before the decree of division is 
 drawn. The bishop either personally or throug-h 
 his vicar g-eneral should ascertain formally that the 
 necessity or g-reat utility for the division exists; the 
 rector and the parishioners of the parish to be 
 divided should be summoned and heard that no injus- 
 tice may be done; the bishop in the United States 
 must take the advice of the diocesan consultors, 
 (/// Plenary Council Balthnore^ n. 20,) and where 
 there is a cathedral chapter its consent is necessary; 
 the bishop in his decree must fix the limits of the 
 new parish either territorially or by desig-nating- 
 families; a competent support must be assig-ned the 
 new pastor either out of the revenues of the mother 
 church or by assessment on the new parishioners or 
 otherwise. It requires at least ten families for the 
 formation of a parish. 
 
 116. The decree of dismemberment of a parish is 
 considered odious in law {CojiiiniDiis DD.) and 
 therefore must be strictly interpreted. But an 
 appeal ag"ainst it is not suspensive but only devolu- 
 tive. {Cf. Const. Ad niililanlis, o)i appeals.) Not 
 only the parish priest may appeal ag-ainst dismem- 
 berment, but anyone of the people of the parish may 
 undertake the cause even ag-ainst the wish of the 
 
DISMEMBERING PARISHES. 115 
 
 pastor if he neg'lects to oppose dismemberment. 
 {Cf. S. Rotcc R. Dccis. Rcc. 2^, n. ^, f>. 3, ciccis. 5^.) 
 The same tribunal has decided that the necessity or 
 the evident utility of the dismemberment must be 
 proved by the bishop and a mere presumption will 
 not suffice. {Decis. 116, n. /j, />. / ?.) Further it 
 decided that the reasons g"iven must be true at ])res- 
 ent, not merely probable' for the future. If the 
 dismemberment should inflict a vital -injury on the 
 old parish, or if the new parish should be unable to 
 support itself, it seems certain that there is no 
 "evident utility," but, on the contrary, «-reat injury 
 in the dismemberment. No precise rules can be laid 
 down either as to the distance or the inconvenience 
 required for dismemberment. Two miles or a mile 
 and a half is considered sufficient, and country mis- 
 sions may be separated from a parish as soon as they 
 are able to support a priest. The bishop is the com- 
 petent judg-e in the matter. In the same way a 
 union of parts of two or more parishes may consti- 
 tute a new parish, if sufficient support is at hand. 
 A petition and subscription of the people interested 
 is a o^ood g-uarantee on this head. Likewise two 
 parishes may be united into one, not temporarily but 
 perpetually, by the bishop if the conditions g-iven 
 above are present. The chief cause for such a union 
 is the poverty of the parishes. In dividintr a parish 
 canonically erected, the bishop is strictly oblig-ed to 
 follow the council of Trent; but in dividing- a mission, 
 after takinof the advice of the rector and the dioce- 
 san consultors, his judg^ment of the necessity of dis- 
 memberment has great weig^ht. {Cf. Rom. Po)ih'/\) 
 117. Dismemberment is a species of alienation, and 
 
116 LEGAIv FORMULARY. 
 
 hence strictly the consent of the Holy See is re- 
 quired. Parish property, as all other church prop- 
 erty, may not be alienated, sold, mortg'ao'ed or g'iven 
 away without necessity or evident utility, and the 
 previous consent of the Holy See. This applies to 
 a renewal of a mortg'ag'e as well as the first g'iving- 
 it. In the United States, the bishops in manag"in^ 
 loans and mortg-agfes on the church property of the 
 diocese or of parishes must take the advice of the 
 diocesan consultors, and the permission of the Holy 
 See is also a necessary condition. However, by 
 special faculties g^ranted for ten pears from Jan. 6, 
 1886, (and renewed to the individual bishops) the 
 Holy See on account of peculiar circumstances has 
 waived the necessity of the previous apostolic bene- 
 placitum for such alienation and allowed the bishops 
 to act without it, on condition that for each case 
 they first ask the advice of their consultors, in 
 collegiate meeting", and that they report every three 
 years to the Propao;anda the various mortg'ag'es and 
 other transactions as well as the exact condition of 
 the parishes for which debt was thus contracted. 
 {Cf. Ill Conn, of Bait. -page c 1 1 1 ?) It seems scarcely 
 necessary to state that the advice of the consultors 
 cannot be obtained by interviewing" them individually; 
 the council specifically requires colleg'iate action of 
 which a proper record must be kept. 
 
 118. While the limits of parishes in g"eneral should 
 not be chang-ed, more serious reasons are required 
 for dismembering" an irremovable rectorship, than 
 for one not so desig^nated; because its revenues were 
 a matter of consideration and- necessary assurance 
 before the church was g'iven the privilegfe of irre- 
 
ONE RECTOR IN EVERY TEN. 117 
 
 movability. As mentioned in the previous chapter, 
 there are two kinds of rectorships in the United 
 States, movable and irremovable. A parish must 
 have a cong-ruous church, school, presbytery and 
 assured revenues sufficient for the support of the 
 pastor, church and school, before it can be made an 
 irremovable rectorship. The law says that for the 
 present one tenth of the parishes or rectorshiy)s of 
 each diocese shall be made irremovable, but adds 
 that this proportion should not be inconsiderately 
 increased before the year 1%6. The law also says 
 that irremovable rectorships must be established in 
 the above proportion before Jan. G, 1889. The con- 
 ditions on the part of the person to be appointed are 
 ten years' honorable service in the diocese, experience 
 in manag"ing' the temporal and spiritual aifairs of a 
 parish, and a satisfactory examination in the con- 
 cursus. However, for the first time, irremovable 
 rectors may be appointed by the bishop without con- 
 cursus but with the advice of the -consul tors. {Cf. 
 Ill PL C. BdlL nos. j^-jy.) 
 
 119. Prom these decrees it seems certain that au}" 
 movable rector, who has the required competence 
 and whose parish has the proper conditions, may 
 demand of the bishop that he be declared an irre- 
 movable rector if one tenth of the parishes of the 
 diocese are not yet irremovable rectorships. The 
 law insists that these rectors — one in every, ten — be 
 made irremovable before Jan. 6, 1889, If this has 
 not been done a recourse to the Propag^anda will 
 bring- it about. Neither are the conditions laid down 
 by the decrees to be extended but rather mitio^ated, 
 since the establishment of such rectorships is an ap- 
 
118 EvEGAI^ FORMUIvARY. 
 
 proach to the common law, not a departure from it. 
 120. The Third Council of Baltimore, n. 38, enacts 
 that the bishop shall provide a pension with the title 
 of "rector emeritus," for an irremovable rector who 
 is either removed or resig*ns voluntarily, said pension 
 to be such as with the advice of his consultors the 
 bishop shall deem cong-ruous. This pension may be 
 payable, with the consent of the Holy See, by the 
 parish which the rector assio'ned, or from the fund 
 set apart for infirm priests. Such a fund is ordered 
 by the same council, n. 71, to be collected by a tax 
 on all the parishes of the diocese, even those in charg-e 
 of religfious communities, and to be apportioned for 
 the support of the inlirm and ag^ed priests who were 
 ordained titulo viissionis for the diocese, and whom 
 it therefore is bound to support. When a priest has 
 become a rector and faithfully served the church for 
 years, rio-ht reason and the sense of mankind will 
 not allow that he should be deg"raded because of old 
 ag-e to the position of an assistant or chaplain, or be 
 refused support and a pension from the diocesan 
 fund. When the resia"nation of his parish is ac- 
 cepted, by that fact he becomes a pensioner. If he 
 willing'ly performs some work as chaplain, this fact 
 should not influence or be allowed to influence the 
 pension to which the law entitles him without a 
 deg"radation. However, sometimes the poverty of 
 the diocese is allegfed for such methods. Priests 
 ordained by the title of mission who after trial have 
 been definitely removed from their office, are still 
 entitled to support from the diocese until by reg-ular 
 process they are shown, after many attempts at re- 
 form, to be incorrigible. Only then may they be 
 
PENSIONS FOR PRIESTS. 119 
 
 denied support. Before this time they should be 
 maintained in monasteries or other houses at the 
 order of the bishop, even while under censure. { II I PL 
 CoiDicU Bait. )i. 72.) Priests who because of old 
 a^e, infirm health or other cause draw a pension are 
 subject to the orders of the bisho[) like others and 
 may be forced under pain of censure to reside in their 
 own diocese. Whether priests derelict in duty may 
 without trial be condemned by the bishop to live in 
 some monastery outside the diocese where he has no 
 jurisdiction and cannot <*'ive the priest even a "cele- 
 bret" is left to others to determine. It seems like 
 banishment, which is a very severe punishment. 
 
 121. The folio win^^ form may be used in estab- 
 lishing- a parish church: 
 
 "N — , Bishop of N — . Since in our visitation re- 
 cently made We noticed that there is no parish church 
 in N— in which the faithful residinjjf there may re- 
 ceive the sacraments and hear the word of God; and 
 beintr desirous of providing- for the salvation of souls 
 and of obviatino- the evils which arise from the ab- 
 sence of a stationed pastor; considering also the pe- 
 tition of the inhabitants of the aforesaid place for a 
 parish church and their subscription made and reg"- 
 istered in our chancery that they will each year pa}' 
 a certain sum for the support of the pastor and the 
 ])arish church, house and other necessities, until 
 otherwise provided, (since funds cannot be provided 
 by assiofnin«- part of the revenues of the mother 
 church or endowments;) therefore, invoking- the name 
 of our Lord Jesus Christ, and of His mother the ever 
 blessed Virgin Mary, We hereby erect by our ordi- 
 nary authority and every other best way, the church 
 of N — - under the invocation of Saint N — of this our 
 diocese into a parochial church and We wish and de- 
 clare it to be thus erected, and after it shall have 
 
120 . LEGAIv FORMUIvARY. 
 
 been provided with a decent tabernacle and other 
 necessaries for the sacraments, as We ordered in our 
 visitation, We command that the Most Blessed Sac- 
 rament be kept at the high altar, and a baptismal 
 font, holy oils and other thini^^s necessary for a par- 
 ish church be retained in proper places. Further 
 We concede and decree that the said church shall 
 enjoy all the ri<>"lits and privileges which by law 
 parish churches enjoy, with the subscriptions and 
 revenues promised by the aforesaid parishioners, 
 and all other offering's, alms and revenues, certain 
 and uncertain, conceded and permitted by the canons 
 to such a cure; and We declare and decree that the 
 said church is not subject to any Jus f>atronatus 
 whatever, but that it pertains to the free collation 
 of ourselves and our successors in office, according- 
 to the form provided by the councils of Trent and 
 Baltimore for concursus. 
 
 "But that the aforesaid church thus newly erected 
 into a parish church may be provided with a compe- 
 tent rector who may rule and g^uide the people in 
 spiritual matters and the care of souls, and who will 
 be obligfed to celebrate mass on Sundays and other 
 festive days of oblig^ation for his flock, and administer 
 the sacraments of penance and Holy Kucharist as 
 well as join his parishioners in matrimony in the 
 aforesaid church and teach the rudiments of faith; 
 We hereby choose and set over the said church our 
 beloved in the Lord, N. N., a priest found worthy 
 and competent by Us and our synodal examiners; 
 and We commit to him the cure, rule and adminis- 
 tration of the sacraments, and confer upon him the 
 said parochial church thus newly erected; command- 
 ing" all notaries and all whom it may concern to hold 
 and recog'niiie him as such pastor, and, after he has 
 made a profession of faith before our vicar g*eneral, 
 to assist him or his procurator in taking" formal and 
 actual possession of the said parochial church, and 
 We wish and hereby declare that the other church of 
 
DECREE FOR FORMING PARISH. . 121 
 
 N — , which he now holds shall, by the said taking- 
 peaceable possession of his new cure, become vacant. 
 In testimony whereof, &c. Given, &c. 
 [ly. s.] N. Bishop of N. 
 
 N. N. Chancellor." 
 
 "The above decree of (dismemberment and) erection 
 of the parish church of N — was read, made and pub- 
 lished in the episcopal residence on day of 
 
 A. D. in the presence of witnesses. 
 
 N— , Witness. N— , Witness. 
 
 N. N. Bishop's Chancellor." 
 
 122. The usual method of creating- parishes in the 
 United States is to cut off certain territory from ex- 
 isting- parishes, and, without assig-ning any yearl}^ 
 revenues from the mother church, to arrange a sub- 
 scription to be paid by the parishioners thus cut off 
 and attached to the new parish. Sometimes a cer- 
 tain sum is ordered paid by the mother church to the 
 new parish, without,* however, giving- the mother 
 parish any right over the new one. The process 
 mentioned should be carefull}^ drawn that in case of 
 appeal a proper defense may be made. The follow- 
 ing form may be used for the decree: 
 
 "N — , Bishop of N — . Willingly encourag-ing- 
 everything- which can remove dang-er from souls and 
 aiford relief to the people committed to Us, and be- 
 ing moved by the prayers of the catholic people of 
 N — , who have sorrowfully informed Us that because 
 of distance, (railroad crossings, &c.) it is only with 
 very great difficulty and dang-er, if at all, that they 
 can receive the sacraments and attend mass in the 
 parish church of N — , to which they belong; that 
 especially the old, the infirm and the young can 
 rarely for these reasons assist at the divine offices; 
 nor can the children, as is required, attend the parish 
 17 
 
122 LKGAL FORMULARY. 
 
 school; (havino-, moreover, obtained the consent of 
 the pastor of said parish church of N — and of our 
 cathedral chapter, cousultors) We have determined 
 to proceed, as the said petitioners have requested, to 
 the dismemberment and erection, respectively, of a 
 new parish. Wherefore, a careful examination of 
 the matter having been made by our vicar o'eneral 
 under express orders, and a process having- been 
 dravt^n up, after the rector of the aforesaid parish 
 of N — was cited and heard, and the facts being- con- 
 clusively sustained by the depositions of witnesses 
 and other leg-itimate proofs. We, by virtue of our 
 ordinary power and of that deleg^ated by the council 
 of Trent, c. 4, sess. 21 de reform, do hereby separate 
 divide and dismember the said place N — with the 
 church of Saint N — (now built or to be built), its 
 people, inhabitants and families from the aforesaid 
 parish church of N — ; and, with the consent of our 
 chapter (consultors) We erect and constitute the said 
 church of Saint N — with its place and district ex- 
 tending- from to (g'we exact limits on N. S. 
 
 E). W.) into a parish church, g-iving- and conceding- to 
 the inhabitants of the said place and district full and 
 free power to have and to hold in the said parish, 
 funerals, a cemetery, baptismal ' font, belfry and 
 all other marks of a parish. And We hereby assig-n 
 as a proper division of the property of the old parish 
 
 of N — the sum of dollars to be paid within 
 
 years by the said old parish of N — to the said new 
 parish of N — in full for all claims and demands. 
 This money, tog-ether with the subscriptions prom- 
 ised by the petitioners and recorded in our chancery, 
 and all other alms, dues and offering's, certain and 
 uncertain, usual to parish churches. We hereby tax 
 and assig-n for the support of the pastor and the 
 aforesaid new parish in accordance with the diocesan 
 statutes. And We declare and decree that the said 
 church of Saint N — is not subject to 'dny j'lcs palro7z- 
 atus whatever, but that it pertains to the free coUa- 
 
DECREE EOR FORMING PARISH. 123 
 
 tion of ourselves and our successors in office, accord- 
 inor to the form of the council of Trent. But that 
 &c, as above in number 121, to the end." 
 
 123. When one parish church is to be united to 
 another, for some just cause, such as poverty, the 
 process must show the cause fully proved. The 
 decree may be drawn as follows: 
 
 "N — , Bishop of N — . To all interested, peace in 
 the Lord. That divine worship in parochial churches 
 may be properly conducted throughout our diocese 
 and that those havino- the care of souls in them may 
 be sufficiently supported from the altar. We g^ladly 
 accord our assistance. Therefore, since it has been 
 brouo-ht to our attention by the Rev. N. N., the rec- 
 tor of the parochial church of Saint I in N — that in 
 the same place (or near it) there is another parish 
 church under the invocation of Saint 2 whose rev- 
 enues on account of their smallness are not sufficient 
 to support its pastor; and if the said parochial cliurch 
 of Saint 2 be united to the said parochial church of 
 Saint I, which is situated in a better location, then a 
 proper support can be obtained for the rector of this 
 church of Saint I, and divine worship can be cele- 
 brated in a more becominor manner; moreover, since 
 for these reasons he has asked Us to provide in ac- 
 cordance with the premises, and since We find all 
 and sino'ular his statements to be true, as is shown 
 by a lejjitimate and diliofent examination instituted 
 by Us and the testimony of witnesses worthy of 
 belief; therefore by our ordinary authority and that 
 deleg"ated by the Holy See throug-h the sacred coun- 
 cil of Trent sess. 21, c. 5. de reform, and by ever}^ 
 other best way, with the consent also of our cathe- 
 dral chapter (consultors) We by these presents do 
 perpetually unite, annex and incorporate the afore- 
 said parochial church of Saint 2 with all its ricfhts 
 and appurtenances to and with the said parochial 
 
124 LEGAL FORMULARY. 
 
 church of Saint I for the better service of God and 
 the g-reater ^ood of souls; in such a way that when- 
 ever the present rector of Saint 2 shall die or resig'n 
 or in any other way vacate the said church, and its 
 provision and disposal thereby pertains to Us, then 
 and in such case it shall be lawful for the then ex- 
 isting- rector of the church of Saint I by his own au- 
 thority to freely take actual, corporal and real pos- 
 session of the said church of Saint 2 and of all its 
 rights and property, and to convert the fruits and 
 revenues thereof to his own use and that of the afore- 
 said churches and perpetually retain possession with- 
 out any other permission whatever being obtained 
 from any superior. But We desire that when the 
 union shall have been effected, the aforesaid church 
 of Saint 2 shall not be defrauded of its proper ser- 
 vice and that the care of' souls in it shall not be 
 neg-lected, but that its burdens be supported. All 
 and singular of which We make known to you by the 
 above letters. In testimon}^ whereof, &c. Given &c. 
 [l. s.] N. Bishop of N. 
 
 N. N. Chancellor." 
 
 "The above decree of the union of the church of 
 Saint 2 with the church of Saint I was read, made 
 and published also by affixing- it to the doors of the 
 aforesaid churches as is certified by the court mes- 
 seng-er in the presence of N. N. and N. N., witnesses 
 for the purpose. 
 
 N. N. Chancellor." 
 
 124. When a bishop establishes an irremovable 
 rectorship the following form of decree -may be used 
 and published in the usual way, especially by affix- 
 ing- it to the church door: 
 
 ' 'N. — Bishop of N. — to all whom it may concern, 
 g-reeting; Since it is required by the Third Plenary 
 Council of Baltimore that a number of parishes in 
 each diocese, which have the proper qualifications. 
 
DECREK FOR FORMING PARISH. 125 
 
 be made irremovable rectorships, and since the parish 
 of St. N. — in the city of N. — has been found by 
 examination and the process instituted by our vicar 
 g-eneral, to have a cong-ruous church, presb3^tery and 
 school for both sexes as well as an assurance of com- 
 petent support for the parish and the aforesaid par- 
 ish institutions; therefore We, having- taken the ad- 
 vice of our diocesan consultors, do hereby make, con- 
 stitute and declare the said church and parish of St. 
 N, — in the city of N. an irremovable rectorship w^ith 
 all the rights and privileges by law accorded to the 
 same, and We hereby define its territory to be as 
 formerly with these limits. (Give exact limits on K. 
 W. N. S. ) Further; that the newly erected rector- 
 ship may be supplied with a competent rector, in 
 accordance with the same council of Baltimore We 
 hereby designate and appoint the Rev. N. N., whom 
 We and our synodal examiners have found worthy 
 and competent, to be its irremovable rector with all 
 the rights and privileges by law granted to such 
 rector; and We command all whom it concerns to 
 recognize him as such irremovable rector and accord 
 him all the rights and privileges consonant therewith. 
 In testimony whereof &c. Given &c. 
 [o. s.] N. Bishop of N. 
 
 N. N. Chancellor." 
 
 125. When a parish has all the requirements for 
 an irremovable rectorship an application may thus 
 be made to the bishop asking that he declare it such 
 by proper decree: 
 
 "Place and date. Most Reverend Bishop: The 
 
 undersigned priest of the diocese of respectfully 
 
 lays before Your Lordship the following^ facts and 
 petition. The parish of Saint — in the cit}^ of — has 
 a congruous brick church, an appropriate rectory, 
 and schools in which the children of the parish re- 
 ceive satisfactory education. The assured revenues 
 
126 LEGAL FORMULARY. 
 
 of the parish from pew rents, collections, &c., are 
 ample for the support of the pastor and the afore- 
 said institutions. 
 
 The undersiofned, the present rector of the parish, 
 has been in honorable and faithful service in this 
 
 diocese for (over ten) years, and has been in 
 
 charg^e of a mission for years during- which time 
 
 he believes his administration of spiritual and tem- 
 poral affairs was successful. Moreover he has re- 
 ceived in reg-ular course the deg-ree of to which 
 
 he points' as proof of sufficient knowledg-e. 
 
 Therefore, your orator, while humbly showino- 
 that these are the requirements for an irremovable 
 rectorship (III C. Bait. ch. 5) and that there are 
 
 in the diocese of less than the required ten per 
 
 cent, of the pastors made irremovable rectors, earn- 
 estly petitions that Your Ivordship will forthwith 
 institute the usual process and make a decree to the 
 effect that the church of Saint — in — is an irre- 
 movable rectorship and that the undersig"ned. Rev. 
 N. N. is its permanent rector, with the rigfhts and 
 privilegfes accorded by law. And your orator will 
 ever pray. With g^reat respect, I remain. 
 
 Your Lordship's obedient servant, 
 To Most Rev. N., Bishop of N. ■ N.N." 
 
 The application will receive proper consideration 
 and a reply. If the pastor finds himself ag-g-rieved 
 thereby he may make a recourse on the matter to the 
 S. Cong*reg*ation of the Propag-anda. 
 
 126. When two irremovable rectors wish to ex- 
 chang-e parishes, each without fraud, unconditionally 
 resig-ns in favor of the other, and after the bishop 
 accepts the resig-uations, as he may do in any month 
 of the year, he issues without concursus and orders 
 published within three months a decree for each like 
 the following': 
 
DECREE FOR EXCHANGING PARISH. 127 
 
 "N— , Bishop of N— , to our beloved N. N. health 
 in the Lord. Accommodating ourselves to the just 
 desires of petitioners We willinorly g-rant what is 
 not contrary to the sacred canons. Since, therefore, 
 you this day throuf^h yourself have resi<^ned freely, 
 spontaneously and unconditionall}^ into our hands 
 the parish church of Saint N — in N — (or other 
 benefice), and likewise our well beloved in the Lord, 
 the Rev. N. N. by his procurator N. N. specially 
 commissioned for this purpose, has resi<>-ned freely, 
 spontaneously and unconditionally his parish of 
 Saint N — in N — ex causa -pcrmulalionis to be made 
 sincerely between yourselves; We, inclining favor- 
 abl}'' to your v^nshes, having accepted the resignation 
 for the aforesaid reason, do b}' our ordinar}^ authority 
 hereby confer and assign to you the aforesaid parish 
 church thus made vacant, with all its rights and 
 appurtenances; you having been examined and found 
 competent by three of our synodal examiners. (The 
 last clause is not necessary if he has been previously 
 examined for another parish.) And We by the im- 
 position of the biretum on your head, do hereby invest 
 you with the said parish and We immit you into the 
 actual, real or corporal possession thereof, you hav- 
 ing made and We received your oath on the holy 
 gospels, that no fraudulent pact or bargain has in- 
 tervened, and that you will be faithful and obedient 
 to Us and our successors in office and to holy church 
 and that you will laudably serve the aforesaid church 
 in spirituals and temporals, and support its burdens, 
 and recognize our rig*hts, and that you will maintain 
 and defend to your best ability the rights and prop- 
 erty and will not alienate anything of the said church, 
 but will endeavor to recover any rights or property 
 which may be alienated at any time. Wherefor by 
 these presents We order all notaries and others 
 whom it may concern to recognize you, (after you 
 have made a profession of faith before our vicar gen- 
 eral) as such parish priest and to assist you in tak- 
 
128 I^EGAL FORMULARY. 
 
 ing- possession of the said parish by our authority. 
 In testimony whereof We have hereunto attached 
 our sig'nature and ordered our seal affixed, and the 
 above decree to be expedited and published. Given &c. 
 [l. s.] N. Bishop of N. 
 
 N. N. Chancellor." 
 
 If the exchang^e of parishes should be fraudulent 
 it would be null. Fraud is supposed when an ex- 
 chang-e is made by a sick or very old person or when 
 there is a great difference in the benefices exchanged. 
 No exchange can be made by the mere act of the 
 beneficiaries. It must be made with the consent of 
 their superior; otherwise both lose their benefices. 
 To prevent fraud the exchange must be published. 
 
 127. When an irremovable rector (or a movable 
 one) wishes to resign his parish because of old age, 
 or other reasonable cause, he must file his resigna- 
 tion in writing with the bishop, who within one 
 month will either accept or reject it, and within the 
 same time will fill the vacancy. (C/. Monacelli, T. /, 
 f. ig, t. 2, n. 5.) Because of the special faculties given 
 by the Holy See to bishops of the United States, this 
 time for filling the vacancy may be extended twenty 
 days. The person resigning his parish must be 
 otherwise provided with support, and the bishop 
 before accepting his resignation is obliged to be for- 
 mally made certain of this fact. yCf. Bull of Pius 
 V. Quanta EcclesiQ3 n. j.) According to the III 
 Council of Baltimore n. 38, VII, the rector may 
 show a pension as his means of support. He may 
 also show personal property. When old age or ill 
 health is alleged as a reason, it is scarcely possible 
 to give a general rule for judging it. Sixty years is 
 
FORM FOR RESIGNATION. 129 
 
 by common consent considered old ag^e; but fifty 
 years is also sufficient in law. Much depends on the 
 view of the bishop. Amon^jf reasons for resig"nation, 
 admitted in law, and mentioned in the Bull of Pius 
 V, n. 58, are: Old a^e, ill health, crime, ecclesias- 
 tical censure, impossibility or unwilling"ness to serve 
 the benefice, obtaining- another benefice, entrance 
 into a religious order, impossibility of residing in the 
 parish because of the deadly enmity of the people 
 ag'ainst the pastor. It should be remarked that only 
 the religious profession actually vacates the benefice: 
 enterinir the novitiate is not sufficient. The same 
 holds of a priest leaving a diocese for which he was 
 ordained by the title of mission. He still belongs 
 to the diocese until he is actually professed, and may 
 if refused by the religious order, at any time return 
 to his diocese and must be re-admitted and supported, 
 even though he had agreed to leave forever. This 
 matter has been frequently decided b}^ the Holy 
 See and the Apostolic Delegation, and deserves 
 careful consideration. Not unfrequently priests 
 are allowed by bishops to spend the best years of 
 their life laboring outside their own diocese; but 
 w^hen ill health overtakes them they are thrown for 
 support onto the diocese to which they belong- by 
 the title of mission. This emergency, it seems, 
 should be forestalled. 
 
 128. The following form may be used for resig^n- 
 ing-: 
 
 "The Rev. N. personally appeared in the episco- 
 pal curia of N. — and said and exposed that he is 
 weighed down by old age and for this and other 
 reasonable causes it is difficult for him to attend to 
 
 18 
 
130 LEGAL FORMULARY. 
 
 the cure of souls and even impossible to fulfill his 
 duties as pastor, and therefore he willing-ly, spon- 
 taneously, unconditionally, and without fraud or 
 chicanery has resig^ned, renounced, and does resig*n 
 and renounce into the hands of the Most Reverend 
 Bishop N. N. the parish church of Saint N. — in 
 N. — with all and sing-ular its rigfhts, appurtenances, 
 honors and oblig^ations; and because he has means 
 whereby otherwise he can live and be properly sup- 
 ported (means should not be mentioned, but document 
 showing- such means should be filed) he asks that his 
 resignation be received and accepted, asserting- that 
 in the present resig-nation there neither has been nor 
 is any fraud, chicanery or taint of simony whatever. 
 
 Thus I renounce and resig-n and insist. 
 
 I, N. N., irremovable rector of the church of Saint 
 N.— in N— . 
 
 All of which the Most Reverend N. N. Bishop of 
 N. having seen and examined and it appearing- by 
 testimony and other proofs that the aforesaid state- 
 ments are true, the said Most Reverend Bishop ad- 
 mitted and accepted the aforesaid resignation after 
 having received an oath of the Rev. N. N. that in his 
 resignation there has intervened no fraud, trickery 
 or other illicit bargain or any taint of simony; and he 
 ordered the resig-nation published. Witnesses pres- 
 ent were N. N. and N. N. 
 
 N. N. Bishop's Chancellor." 
 
 The publication of the resig-nation may be made by 
 prefixing- it to the edict for concursus to fill the 
 vacancy. 
 
 129. When a pension is to be assigned a rector 
 that he may resig-n and have support, for safety it 
 should be assigned in writing, and the document 
 should be executed before he gives up possession of 
 his office. The rector should demand this and to pre- 
 vent misunderstanding- a copy should be retained in 
 
ARRANGING PENSIONS. 131 
 
 the chancery office. The consent of the H0I3' See is 
 required for imposing- a pension on parish churches. 
 {Cf. Benedict XIII, Scf>t. 5, 1724.) 
 
 The bishops of Canada have this faculty in their 
 form T.: "Assig^nandi pensiones parochis vel mis- 
 sionariis ex infirmitate resig^nantibus paroeceas seu 
 missiones in quas per decem annos incubuerunt, sol- 
 vendas annuatim a successore, non excedentem ter- 
 tian! partem fructuum quolibct modo provenientium 
 ex paroeceis vel missionibus." "Voluit autem Sanc- 
 titas sua ut episcopi in praedicta facultate exercenda 
 expressam mentionem facere debeant Apostolicae 
 Deleg-ationis, necnon epocham adjunofere facta? sibi 
 concessionis." 
 
 The following- form may be used in assig-ning- a 
 pension: 
 
 "N— , Bishop of N— , to Rev. N. N. beloved in 
 the L/ord, g-reeting-. Since those priests who long- 
 have labored in the vineyard of the Lord or have be- 
 come exhausted and broken by serious illness or are 
 otherwise incapacitated should nevertheless be prop- 
 erly supported, We are desirous of providing- for 
 such of our diocese who otherwise mig-ht not be able 
 to live in a becoming- manner and with the convenience 
 suitable to their sacred office. Therefore, We will- 
 ing-ly g-ive ear to your relation that 3^ou have labored 
 in the diocese for years with honor and satisfac- 
 tion and that vour health is now so unsatisfactorv as 
 to incapacitate you from further reg-ular work and 
 especially from the onerous duties of the pastor- 
 ate. Finding- on examination and by the testimony 
 in the acts that the aforesaid relation is based on 
 fact and truth, in order that you may have proper 
 support after you have resig'ned 3^our parish or mis- 
 sion. We hereb}" assig-n to you, after consultation 
 with our diocesan consultors, the sum of dollars 
 
132 LEGAL FORMULARY. 
 
 per annum, payable quarterly, out of the Infirm 
 Priests' Fund (or other source as the case may be) 
 belong^ing- to this diocese; (allowing- you also the 
 title of "rector emeritus" with its rank and privi- 
 legfes,) and We command the officials incharg'e of the 
 said fund to recoofnize this your cong-ruous pension 
 and pay it at the proper time to you or to your order. 
 In testimony whereof, &c. Given, &c. 
 [l. s.] N. Bishop of N. 
 
 N. N. Bishop's Chancellor." 
 
 If the pension is payable by the parish vacated 
 then mention should be made of the amount and of 
 the apostolic authority authorising- it, as stated in 
 the preceding- parag-raph. 
 
 Note. It may be useful to quote substantially Rule 36 of the 
 Apostolic Chancery which is applicable also in the United States 
 and is intended to preclude by . prescription controversy regarding 
 possession of parishes and other benefices. 
 
 "Quicunque beneficium ecclesiasticum cum titulo saltern colorato 
 bona fide per integrum triennium pacifice possidet, valide et licite 
 in foro utroque illud retinere et a nemine amplius molestari potest, 
 dummodo simoniace non obtinuerit." 
 
CHAPTER III. 
 
 ORDER OF PRECEDENCE FOR CLERGY IN THE 
 
 UNITED STATES. 
 
 130. To preclude confusion and dissatisfaction 
 some order of precedence is as necessary in the 
 church as it is in the state. The clerory of those 
 countries wherein canon law fully obtains can easily 
 know their exact position in church ceremonies and 
 social trathering-s, for numerous authoritative decis- 
 ions have established precedents and made the law 
 for nearly all continw'encies. 
 
 In the United States, however, because of our pe- 
 culiar circumstances, it cannot be denied that much 
 confusion prevails as to the rii^ht of precedence. If 
 a popular man is put into some ecclesiastical office 
 his friends at once prefix a new title to his name, or 
 at least give him the seat of honor in social o-ather- 
 inofs. Not having- made a special study of the mat- 
 ter, the new official soon assumes as a rig-ht what 
 may have been accorded him as a personal favor. 
 Others, noticing- this, do the same. Thus, it hap- 
 pens, also, that the customs of other countries, never 
 sanctioned by Rome, are introduced into the United 
 States in spite of the fact that they have no applica- 
 
 This chapter on Precedence was published by the author in the N. V. Free- 
 man's Journal in March, 18'>(). at the ret|uest of several bishops and after exam- 
 ination, correction and approval by the Apostolic Deleyration. 
 
 133 
 
134 LEGAL FORMULARY. 
 
 tioti here and that they are contrary to the councils 
 of Baltimore and the decisions of the Sacred Cong-re- 
 g"ation of Rites. 
 
 One has but to examine the Catholic directories 
 published from 1886 to the present time to gain pre- 
 cise information reg'arding' these facts. First one 
 diocese is shown to have adopted a certain desig'na- 
 tion for officials, and to have arrang^ed its clergfy in 
 a certain order of precedence, and then in subsequent 
 years other dioceses seem to have adopted this same 
 order, no matter how erroneous it may be. Whether 
 this was the act of the compilers or of diocesan offi- 
 cials matters little. The fact remains, and remains 
 often without the ordinary of the diocese ever having- 
 decided the matter or been consulted regarding- it. 
 Prom the same source it is also apparent that g"reat 
 divergencies exist among the various dioceses of the 
 country, making confusion indeed great. 
 
 131. The question of precedence is one not of pride 
 but of rigdit. If an ecclesiastical person is entitled 
 to a certain position, he should, and in fact must, take 
 it, otherwise confusion will ensue all along the line. 
 
 If he is not entitled to a certain position and as- 
 sumes it, or is allowed to assume it, an abuse is in- 
 troduced, against which it is the right and at times 
 becomes the duty of any cleric to protest. 
 
 The Sacred Cong'regation of Bishops and Regu- 
 lars has decided that "in order to do away with all 
 contests and controversies in the matter of precedence, 
 that must be observed which is observed in Rome, 
 the mistress of all." {Barbosa, Apostolic Decisions^ 
 under Prcccde?ice n. tS.) And the same Sacred 
 Cong'regation in regard to reg'ulars of both sexes 
 
ORDER OF PRECEDENCE. 135 
 
 decided that the rules of precedence must be observed 
 "even thoug^h one should wish to <^»-ive up his rig-ht." 
 {In Assisiensi^ jo OcL, 1600.) What here is applied 
 to reg'ulars can be applied also to seculars, for the 
 reason is the same — order must be preserved. 
 
 132. The practice of the Roman Court is therefore 
 a safe ^uide for- re^jfulating- precedence amon^ the 
 clergfy of a diocese in the United States wherever 
 that practice can be applied. On those points which 
 are peculiar to this country the Third Council of 
 Baltimore may safely be followed. There is no 
 authority for introducing- into the United States the 
 peculiar titles, customs or laws of France, Bel<^ium, 
 England, Ireland or Germany. In fact, such cus- 
 toms are forbidden by the councils of Baltimore. It 
 seems, however, that some such titles or customs 
 have been unwittin(»-ly introduced. An example in 
 point is ^•iving" a bishop the title "Rio-ht Reverend," 
 brought over from E^ngland, when, according to the 
 practice of the Roman Court, he should be entitled 
 "The Most Reverend" the same as an archbishop. 
 Another example is the abuse of giving- deans or 
 vicars forane the title "Very Reverend," which was 
 brought over from Belgium and Ireland, but to which 
 they are not entitled b}^ the practice of the Roman 
 Court and decisions of the Sacred Congregation of 
 Rites, issued again recently. 
 
 133. If an order for precedence ma}^ be laid down 
 without offense, the following- may be considered in 
 accordance with canon law, the Third Council of 
 Baltimore and the practice of the Roman Court. In 
 such a delicate matter it was deemed wise first to 
 submit it to competent authorit3\ 
 
136 LEGAL FORMULARY. 
 
 First — Precedin|j;- all his clerg-y is the Most Rev- 
 erend Bishop or Archbishop of the diocese. 
 
 Second — First under him, and above all other 
 priests of the diocese, is his vicar g'eneral. 
 
 Auxiliary and other bishops who may be in a dio- 
 cese take precedence over the vicar g-eneral, except, 
 of course, in a meeting' over which* the bishop has 
 specially deputed his vicar g^eneral to preside, or 
 unless the vicar general is himself a bishop. For 
 there is a special order of precedence among- bishops 
 which must be observed throug-hout the world and 
 must be satisfied before the order of precedence to be 
 observed between bishops and priests can be con- 
 sidered. 
 
 Prelates of the Roman Court, living- in a diocese, 
 follow among themselves the rules of precedence laid 
 down by the court, protonotaries apostolic ranking- 
 first, then domestic prelates, then honorary chamber- 
 lains of the Pope. The vicar general precedes all 
 these in the diocese where he is vicar, but outside of 
 his diocese all these prelates rank before him. If, 
 for instance, the bishop of a diocese should attend a 
 council or ceremony outside his own diocese, and 
 take his vicar g-eneral and a prelate with him, on 
 that occasion the prelate would rank ahead of the 
 vicar general, for Roman prelates have rank all over 
 the world, and the vicar general is out of the terri- 
 tory where he is prelate. 
 
 134. Third— After these prelates may be classed 
 the consultors, and the irremovable rectors of the 
 diocese ex ^quo, precedence among- them being- reg*- 
 ulated by the time of their ordination, since to some 
 
ORDER OF PRECEDENCE. 137 
 
 few canonists there seem to be no benefices, strictly 
 speaking", in the United States. 
 
 These two classes tog^ether propose the names for 
 the choosing" of a new bishop in case of a vacancy in 
 the diocese, and thus take the place of the cathedral 
 chapter under canon law in what may be called its 
 most important act. The diocesan consultors also, 
 in other matters, chiefly as counselors of the bishop, 
 ma}^ be considered representing" the cathedral chap- 
 ter. While the Third Plenary Council of Baltimore, 
 n. 30, lays down the fact, as acknowledg"ed, that 
 irremovable rectors precede other priests, "Pro 
 g"radu quo rectores inamovibilitatis titulo condecorati 
 aliis praeeunt sacerdotibus, etc.," still the same 
 council g"ives the diocesan consultors no precedence. 
 From this it follows that by law they can claim 
 none, at least over irremovable rectors. 
 
 Further, the position of irremovable rector is per- 
 manent, while that of consultor is ad triennium, for 
 three years. Ag"ain, the irremovable rectorship is 
 the nearest approach to a benefice that we have in 
 the United States; therefore, as precedence is regfu- 
 lated by the benefice one holds and by the time one 
 acquired it, other thingfs being" equal, the presumption 
 is in favor of the irremovable rector over the consul- 
 tor. But because of their common office of proposing" 
 names for a new bishop, they may well be classed 
 tog"ether ex aequo, and tog"ether be g-iven precedence 
 over the other clerg^y of the diocese. 
 
 Rev. Dr. Peries, former professor of canon law in 
 the Catholic Universit}" of America, prefers separat- 
 ing" the consultors and irremovable rectors into two 
 
 bodies, g-iving" preference to the consultors. He 
 19 
 
138 LEGAL FORMULARY. 
 
 says: "The council of Baltimore did not attribute 
 them this place, but the Plenary Council was not 
 exhaustive of all matters, and has left several un- 
 touched." It is precisely to harmonii^e what is the 
 law and what was possibly overlooked, that, with- 
 out depreciating- either class, the consultors and irre- 
 movable rectors are g^rouped tog^ether ex aequo; 
 but if, because of the possible number of irremov- 
 able rectors, a distinction is preferred, (this seems 
 better) then these rectors among- themselves rank 
 according- to the time they acquired their parishes, 
 the rule being-, "Prior in tempore, potior in jure" — 
 First in time, first in rig-ht. {Reg-ukf ^^, jicr. in 6°.) 
 Por this reason, also, these rectors should be men- 
 tioned in that order in the directories immediately 
 after the consultors. Then no confusion will ensue. 
 
 135. Fourth — After the consultors and irremovable 
 rectors may be placed, the rector of the cathedral, 
 the rector of the diocesan theolog-ical seminary and 
 rural deans, ex aequo; precedence being- reg-ulated 
 among- them by the time of their ordination. (If 
 any of this class are among- those of n. 3 above, then, 
 of course, they rank under n. 3.) 
 
 It seems proper that those mentioned in this n. 4 
 should have some precedence, not indeed over those 
 mentioned in n. 3, i. e., not over consultors and irre- 
 movable rectors, but over the other clerg-y. For the 
 rector of the cathedral, because of it being- the 
 bishop's church, and the rector of the seminary, be- 
 cause of that position, seem entitled to some special 
 honor in ecclesiastical functions, thoug-h not in 
 others, according- to the Sacred Cong-reg-ation of 
 Rites, June 16, 1608. 
 
ORDER OF PRECEDENCE. 139 
 
 Rural deans, accorclin<4- to at least sixteen decis- 
 ions of the Sacred Congreg^atiou of Rites, g^iven to 
 different countries, and made of universal applica- 
 tion, have no precedence over other priests, except 
 only in those acts wherein they are the delegates of 
 the bishop. "A vicar forane or dean, by reason of 
 that office, has no precedence in choir, in sessions, in 
 processions and in other acts and ecclesiastical func- 
 tions over other parish priests, canons and priests 
 older and more worthy than himself; but the vicar 
 or dean must stand, sit and walk in the place of his 
 reception and dio-nity just as if he were not a vicar 
 forane or dean, both with the cotta and w^ithout it, 
 notwithstanding- any and every order of the bishop 
 to the contrary, except only in those cong-reg-ations 
 or conferences which are held each month b}^ order 
 of the bishop, in which, as the deleg-ate of the bishop, 
 he should precede all; but not, however, in the pro- 
 cession, mass and other acts which take place be- 
 fore or follow the conference." And in another de- 
 cree, intending- to eliminate even the custom, the 
 same Sacred Cong-reg-ation ordered the observance 
 of the above decree, "notwithstanding- any and every 
 custom to the contrary." (C/. FcD'aris snh vcrho, 
 Vicarius Foranciis.) Therefore Rev. Dr. Smith in 
 his "Elements" No. 441 is in error. 
 
 Hence also /^ittelli {Apparatus Juris Canoiiici, p. 
 14^,) writing- of our present time, says plainly : 
 "Any custom to the contrary is an abuse." This 
 author, it may be remarked, was the official of the 
 Sacred Con^^reg-ation of the Propag-anda, and pub- 
 lished his work in 1888 (after the council of Balti- 
 more) especially for use in the United States and 
 
140 LKGAIv FORMUIvARY. 
 
 countries similarly situated in reference to canon law. 
 Craisson, in- his Manuale, n. 634, lays down the 
 same doctrine. Benedict XIV, in his work, De 
 Synodo Dioecesana, lib. Ill, 10, 7, when he quotes 
 Bonhomius, seems to have overlooked these decis- 
 ions of the Sacred Conofreg*ation of Rites, which con- 
 tradict and nullify the authority he quotes. He him- 
 self lays down no precedence in this matter. 
 
 Still, the Third Council of Baltimore, after sug"- 
 g'esting that rural deans might be appointed with 
 advantag-e to the bishop, and after sugfgesting- what 
 duties might be assig^ned them, says (n. 29) that or- 
 dinaries ought to give these vicars forane certain 
 faculties, more or less extensive, and also a certain 
 pre-eminence among- rectors. It must be noted that 
 deans are not made of obligation by the council, nor 
 when appointed does the council itself g^ive them any 
 precedence. Hence, deans have no canonical or leg^al 
 precedence, and the council herein does not militate 
 against the decisions of the Sacred Cong-reg^ation of 
 Rites and the teaching- of canonists. However, the 
 council suggests that ordinaries who appoint deans 
 should give them some pre-eminence or prominence 
 among rectors. Bishops cannot give them precedence 
 over irremovable rectors, for these rectors are given 
 precedence by the law itself over other priests. There- 
 fore, if the bishop wishes to g^ive prominence among 
 rectors to his deans he can give it them among* mov- 
 able rectors and other priests. Por this reason 
 deans are placed with the rector of the cathedral 
 and the rector of the seminary under n. 4. Prom 
 this, as well as from the practice of the Roman 
 Court, it follows that deans are in nowise entitled 
 
ORDER OF PRECEDENCE. 141 
 
 to be called "Very Reverend." To authorize such 
 a title for them it would be necessary to call all con- 
 suitors and irremovable rectors "Very Reverend," 
 which is quite preposterous. This question was 
 determined also for our own times by the S. C. Kit. 
 2 Sept. 1871, in Trifluvian. (Three Rivers, Canada) 
 where it was decided, "a vicar forane has pre-emi- 
 nence or precedence over other priests of the place 
 only in those meeting's at which he is i^resent as the 
 deleg'ate of the bishop." {Cf. Collect. Prop. />. 7/, 
 n, iy6.) 
 
 136. Fifth — Under the fifth head, unless they rank 
 hig'her because of other positions, may be placed ex 
 aequo the chancellor and the secretary of the bishop, 
 if they are priests, the fiscal procurator, the pro- 
 fessors of the theolo«fical seminary, the examiners of 
 the clerg"y; thoug"h it must be remarked that the law 
 itself, as was pointed out in previous chapters, g^ives 
 none of these precedence over simple rectors or rec- 
 tors ad nutum. None of these by any fiction of law 
 may claim the title "Very Reverend." If, however, 
 a distinction is made, then 
 
 Sixth — Following' these officials come movable 
 rectors. 
 
 Seventh — Then chaplains of public institutions. 
 
 Eighth — And lastly, assistants or coadjutors to 
 the rectors of parishes. 
 
 There being* strictly speaking* no benefices in the 
 United States, except the irremovable rectorships, 
 the diocese itself must be considered the benefice in 
 this respect. Hence precedence is reckoned from the 
 time of ordination, but in the case of priests incardi- 
 nated from another diocese it is reckoned from the 
 
142 LEGAL FORMULARY. 
 
 date of their admission into the>diocese, not from the 
 time of their ordination. 
 
 Ninth — The regfular clerg^y always yield prece- 
 dence to the secular clerg^y, so that assistant priests 
 of the secular clerg-y precede all the regular clerg-y, 
 even if the reg^ulars have charge of parishes and are 
 seniors in ordination. Such is the law. 
 
CHAPTER IV. 
 
 THE SACRAMENTS — BAPTISM, CONFIRMATION, HOLY 
 
 EUCHARIST. 
 
 137. The parish priest is oblig^ed to administer the 
 sacrament of baptism and to keep a record of each 
 one baptised. E^xcept in case of necessity this sac- 
 rament should be administered in the church. The 
 form for recording* it may be found in the Roman 
 Ritual. The record should contain the full name of 
 the child, the parents, sponsors, minister, tog"ether 
 with the date of birth and of baptism. Each record 
 must be sig^ned. Great indeed is the importance of 
 the record of baptism, especially for those about to 
 receive holy orders. 
 
 138. The parish priest is also oblig-ed to keep a 
 record of all those confirmed in his parish. The 
 bishop of the diocese is the ordinary minister of this 
 sacrament; nor should any but diocesans be confirmed 
 except by consent of the bishop to whose diocese 
 they belong". {Mo)iacclli, t. f, f. 5, )i. /.) Custom, 
 with the tacit consent of bishops, in the United 
 States, seems a sufficient permission. It is the duty 
 of the bishop to administer confirmation, and there- 
 fore he cannot exact an3^thing" by way of expenses 
 for g-iving" it. {Cf. Barbosa cie off. Ef>. all. jo, ?i. to; 
 Moiacclli^ t. 10,/. 7, )i. I.) He may g-ive it on the 
 occasion of his visitation of the parish, for which he 
 
 143 
 
144 LEGAL FORMULARY. . 
 
 is entitled to his actual maintenance. But he may 
 not tax this maintenance in money; he must accept 
 it in victuals. (C/. S. Cong, Cone, in Larin. 12 
 April, i6gS; Monacclli, t. 5, /. 2, n.' 20-2^.) The 
 III Council of Baltimore, n. 14, says that in diocesan 
 synod provision should be made for the expenses of 
 this visitation. 
 
 The record to be kept by the pastor should contain 
 the full names of those confirmed, with the names of 
 their parents and sponsors. An alphabetical list 
 may be made of those confirmed, headed by the 
 
 words: "On the day of A. D. the 
 
 Most Reverend Bishop N. N. confirmed the follow- 
 ing" in the church of Saint N. — in N. — " At the 
 bottom of this list the parish priest affixes his sig"- 
 nature. 
 
 139. Only those baptised may be confirmed. The 
 Roman Catechism says that confirmation should 
 hardly be g'iven to those young^er than seven years, 
 and that the usual age for the sacrament is the 
 twelfth year. Those receiving- it can then be in- 
 structed in the faith. If they have made their first 
 communion, they should receive the Holy Eucharist, 
 after confession, as a preparation for confirmation. 
 If possible the candidates should be fasting-. 
 
 Usually the bishop bring^s with him the chrism 
 needed in confirmation. In the Latin church it is a 
 mixture of olive oil and balsam, blessed by the 
 bishop. The chrism of the Greeks is made of thirty- 
 five aromatic herbs besides the oil and balsam. 
 
 140. The parish priest, however, is required to 
 procure the holy oils needed for the sacraments and 
 keep them in the church in a proper place under lock. 
 
HOLY OILS. 145 
 
 These oils may not be sent by express, because of 
 the irreverence in such carria<»-e, nor broug^ht by a 
 layman. [Cf. Bencd. XI V^ lust. 8i, n. 5.) They 
 must be procured from the bishop of the diocese and 
 renewed each year. (C/. Ritual^ Rubric ^2 ; Cava- 
 licri on Rubrics, vol. ^, 26,) Bishops are positively 
 prohibited from making- any charg^e whatever for 
 the holy oils. {.Cf. Benedict XIV, De Syn. Diocces- 
 ana 5, 7, /o.) 
 
 It may be well to cite a decree of the S. Cong"re- 
 g"ation of Rites g-iven Jan. 31, 18%: "Instante 
 episcopo Anneciensi, ut permittatur usus s. oleorum 
 anno pra^cedente benedictorum usque ad sabbatum 
 ante Pentecosten exclusive, ne eo tempore absint a 
 propriis para^ceis rectores * ^ ^^ S, R, C. juxta 
 votum commissionis liturg-icas rescribendum censuit: 
 parochus curet ut presbyter vel clericus, si possibile 
 sit in sacris constitutus, nova olea recipiat. Quodsi 
 aliquod adhuc exstet impedimentum idem parochus 
 vel per se vel per alium sacerdotem benedicat fontem, 
 sine sacrorum oleorum infusione, qua? privatim 
 opportuno tempore fiet; nisi aliquem baptisare debet; 
 tunc enim in ipsa benedictione solemni Vetera olea 
 infundat. Atque ita servari mandavit." 
 
 141. The Holy Eucharist is "the sacrament of the 
 body and blood of Jesus Christ under the appearances 
 of bread and wine." In the Eucharist Christ is 
 trul}^ really and substantialh^ present with bod3% 
 soul and divinity. Christ is wholly present perma- 
 nently under each species, and in ever}^ part — at 
 least sensible — of each species. In the sacrament of 
 the Eucharist there occurs a true transubstantia- 
 
 tion, or a real conversion of the whole substance of 
 20 
 
146 LEGAL FORMULARY. 
 
 the bread into the body, and of the wine into the 
 blood of Christ, so that after consecration, nothing* 
 but the appearances remain of the bread and wine. 
 These points are of catholic faith. 
 
 142. Kvery parish priest, or vicar having* the care 
 of souls, is oblig"ed in justice to administer the sac- 
 rament of the I^ucharist to his subjects if properly 
 disposed, not only during- Easter time and at death, 
 but whenever the}^ reasonably request it. A priest 
 when celebrating" mass administers the Eucharist to 
 himself. He may also from devotion, in the absence 
 of another priest, g-ive himself the Eucharist without 
 saying" mass. C Cf. St. AlfJionsiis, n. 2^j ; Lehmkuhl, 
 n. 136.) Ordinarily when a pastor allows a priest to 
 celebrate mass at the altar of the Blessed Sacrament 
 in his church, he is supposed also to g^rant permis- 
 sion to administer the Eucharist to the laity, who 
 receive from devotion. This is not the case with 
 Easter communion. Parishioners must by law re- 
 ceive' their Pascal communion in their parish church 
 and from their own pastor. {S. Co)i§\ Ef>p. et RR. 
 21 Jan. 1848.) 
 
 143. By law only cathedral and parish churches 
 and those of reg"ulars who make solemn vows may 
 retain the Sacred Eucharist. Others may obtain 
 the privileg-e by apostolic indult. It is forbidden to 
 keep the Blessed Sacrament in an}^ other place than 
 the tabernacle placed in the middle of the altar. 
 (Cf. S. Rit. Cong. Aiig-. i86j.) This tabernacle 
 should be reg^ularly of wood, g-ilded outside and cov- 
 ered with silk inside. A corporal should be on the 
 floor of it. The outside should be covered with a 
 canopy of silk, wool or even cotton if the richer 
 
CERTIFICATE OF COMMUNION. 147 
 
 materials cannot be obtained. The canopy should 
 correspond to the color of the day, but if this is im- 
 possible then it should always be white. (S. Ril. 
 Cong-. 21 July 1 8^^.) 
 
 The tabernacle must be locked and the key kept 
 by the pastor of the parish. It must not be left un- 
 g'uarded either around the altar or in the sacristy, 
 nor can it be kept by the sacristan whether a relig- 
 ious or a layman. (S. Ril. Cong. 22 Feb. /S9J') 
 
 144. Sometimes it is necessary to g^ive a person a 
 certificate that he has received communion. In such 
 case it seems imprudent and dang^erous to state 
 whether or not the person first went to confession 
 unless to certify that an excommunication was 
 removed. The fact of confession is implied in the 
 fact of communion. If his communion was .sacri- 
 leo-ious, his confession could easily be the same. 
 Hence mention should not be made of confession or 
 absolution. The parish priest is not bound by such 
 a certificate of another priest if he knows that the 
 one presenting- it is a public sinner at home or is ex- 
 communicated. Catholics who fulfill their oblig-a- 
 tions without shirking- usually receive communion in 
 their own parish. The following' form seems suf- 
 ficient: 
 
 "To all whom it may concern. I, parish priest of 
 N — , hereby certif}^ that N. N., personally known to 
 me, received the Holy Kucharist in the church of St. 
 N — in N — on the day of A. D. — . Sig-ned 
 
 N. N. Dated &c." 
 
 145. The Eucharist besides a sacrament is also a 
 sacrifice, which is called the mass. It is the one 
 sacrifice of the new law and consists essentially in 
 
148 LEGAL FORMULARY. 
 
 the transubstatitiation of the bread and wine into the 
 body of blood of Christ. St. Alphonsus teaches as 
 more probable that the communion also pertains to 
 the essence of the sacrifice. The mass is a sacrifice 
 of adoration, thanksg'iving, satisfaction for sin and 
 its punishment, and impetratiou for benefits and 
 necessities. 
 
 146. The sacrifice may be offered and applied for 
 anyone, except those from whom it is forbidden by 
 the church. Such are only excommunicated persons. 
 {Be7ied. XIV. Con. In Silver, n. 27, 18 Mar. 1755.') 
 Hence it may be applied even for infidels, not only in 
 g'eneral but also individually. However, a distinc- 
 tion should be made between masses for the dead and 
 for the livino-, between private and public celebra- 
 tion. Private masses can be said for the conversion 
 of non-catholics but no announcement of the name 
 can be made, lest there be scandal or the people 
 think such a priest is acting- in the name of the 
 church. (^S. Cong-. Inqiiis. ig A-pr. iSjy.) Asked 
 "whether it is lawful for priests to celebrate mass 
 for the intention of Turks and other infidels and to 
 receive from them an alms for the application of the 
 mass" the same S. Cong^regation on July 21, 1865, 
 replied, that it is lawful provided there is no scandal 
 nor any evil, error or superstition in the offering*. 
 Solemn public masses are conceded only for living* 
 rulers in the state and then only for the welfare of 
 the state. But no solemn mass can be offered for a 
 deceased non-catholic ruler, even the hig"hest in the 
 state, for then it would be a public solemn service for 
 a deceased person, not for the state. This is strictly 
 forbidden, as Greg^ory XVI declared in 1842: "It 
 
STIPENDS FOR MASSES. 149 
 
 is forbidden by both the ancient and modern disci- 
 pline of the church that men who die in the external, 
 notorious profession of heresy should be honored by 
 catholic rites." At most therefore a private mass 
 with the above restrictions ma}^ be said for a de- 
 ceased non -catholic without an}" public announcement 
 whatever. Commemorative services for non-catholics 
 are forbidden in catholic churches. 
 
 For a similar reason prayers nia}^ not be asked or 
 said publicl}^ in church for the repose of the soul of 
 a non-catholic, thouf^h they ma\" be offered privately. 
 Public prayer for the dead is undoubtedly a "cath- 
 olic rite." 
 
 147. It is law^ful to receive a stipend or alms for 
 the application of a mass which a priest is not 
 oblig-ed to say for another; but when this stipend is 
 received there arises a strict obligration to apply the 
 mass as requested. The amount of the stipend is 
 usually determined by diocesan statutes. A priest 
 who has received a larg'er stipend than usual can- 
 not licitly or justly commit to^ another the celebra- 
 tion of the mass and retain part of the unusual 
 stipend; unless it is morall}^ certain that this excess 
 in the stipend w^as g*iven 3,s /^(s stolcc or on account of 
 the dig'nity or position of the pastor, as occurs in nup- 
 tial or funeral masses. i^S. Coirr. Cone. 25 Jid}\ 
 iSy^.) In such case the priest who says the mass may 
 be o-iven only the usual stipend in accordance %vith 
 diocesan statutes for low and high masses. The 
 pastor may retain the excess as ;V<'j> stolcE. Likewise 
 if the excess of the alms was g'iven because of friend- 
 ship, relationship, g^ratitude, which can easil}" be 
 : nown, a priest ma\" commit the celebration to 
 
150 LEGAL FORMULARY. 
 
 another, g-iving" only the usual stipend. But it is 
 strictly forbidden to collect masses, receiving- a cer- 
 tain stipend, and then send them to other places to 
 be said for a smaller stipend. Pius IX in Aposiol- 
 icce Sedis has attached excommunication to this un- 
 lawful practice. 
 
 148. Urban VIII on June 21, 1625, prohibited the 
 rectors of churches, whether secular or regfular, 
 from accepting- a perpetual foundation of masses 
 without the written consent of the bishop or vicar 
 g-eneral in the case of seculars, and of the gfeneral or 
 provincial in the case of reg-ulars. He further 
 ordered that the money left or donated for this pur- 
 pose should be immediatel}^ put into immovable pro- 
 ductive property with express and individual men- 
 tion of the oblig-ation annexed to it. He further 
 ordered that all alms boxes having- the inscription 
 "alms for masses" should be removed from churches, 
 and the S. Cong-, of the Council later declared by 
 authority of the same pope that this order included 
 also those boxes placed in the church on All Souls' 
 day. However the S. Cong-, of the Council on Jan. 
 27, 1877, did not condemn the practice of coUecting- 
 from the faithful on All Souls' day a rich alms and 
 celebrating" therefor but the one hig-h mass on that 
 day. But the S. Cong-reg-ation g-ave orders that the 
 people should be properly instructed that only the 
 one mass would be said for all the alms. 
 
 149. The g-eneral rule according- to the present 
 discipline of the church is that a priest may say only 
 one mass a day, except on Christmas when three are 
 allowed. But by faculty of the Holy See for canon- 
 ical reasons bination is allowed, with previous per- 
 
FACULTY FOR BINATION. 151 
 
 mission of the ordinary of the diocese. ,This faculty 
 is ^iven the priest because of necessity, which means 
 not the poverty of the priest, but the spiritual needs 
 of the people and the scarcity of priests. Hence, if 
 a second priest can be had, bination is not allowed. 
 Neither is it allowed for the convenience of those 
 who wish to hear mass in private oratories, whether 
 they be seculars or relig"ious. Two cases are ^^iven 
 by Benedict XIV in which he says bishops by law 
 may g*rant the faculty of binating-: First, to a priest 
 who has charge of tw^o parishes or of two congrega- 
 tions so distant that one cannot be present when the 
 priest is celebrating for the other on a Sunday or 
 holyday of obligation; second, when there is only 
 one church, but the people cannot all attend the one 
 mass. In these two cases the law itself gives the 
 priest the right to say tw^o masses, but always after 
 the bishop has acknowledged the necessity. In fact, 
 Benedict XIV, 1. 6, de Synod. Diccc. says that a priest 
 with two parishes is bound to binate. From this it 
 follows that less necessity is required for using the 
 extraordinary^ faculty to binate than the necessity for 
 which the law allows it. 
 
 150. If a number of the faithful, unless the priest 
 binates, would miss mass to which they are bound 
 there is sufficient reason for his saying two masses. 
 Twenty was decided a sufficient number in one case. 
 (S, Conor, Cone. 12 Jcui. ^S^j.) And again in the 
 case of prisoners ten or fifteen was declared sufficient. 
 This declaration can be extended also to those in 
 hospitals or cloistered convents. The priest can- 
 not accept a stipend for more than one mass in case 
 of bination, nor for either if he, as pastor, is obliged 
 
152 LEJGAL FORMULARY. 
 
 to apply one ^ass for his people. (S. Cong-. Prop, 
 Oct. 75, iS6j.) But for special reasons Pius IX on 
 the above date g^ranted certain bishops the faculty 
 to allow their missionary priests to accept stipends 
 for both masses. However, the S. Con^. of the 
 Council has gfiven a recent reply that a priest who 
 binates may apply the second mass for a deceased 
 fellow priest for whom by the oblig^ation of a pact 
 or society he is bound to offer some masses. Fur- 
 ther, because the law allows three masses«on Christ- 
 mas day, a priest may satisfy three obligations on 
 that day. 
 
 151. By common law mass should be celebrated only 
 in a church, which has been blessed or consecrated and 
 is not polluted or interdicted. Bishops may allow 
 mass also in public oratories (i. e., those w^hich are 
 free to all and have a door opening- on the street,) 
 and in all relig-ious and pious places. A religious 
 place is one devoted to works of mercy or piety, 
 erected with the approval of ecclesiastical authority, 
 such as a seminary or convent. .A pious place is a 
 charitable institution founded with or without eccle- 
 siastical authority, such as an orphan asylum, hospi- 
 tal, house of refuge. BishojDS cannot, without an 
 indult of the Holy See, alloVv mass to be said in a 
 private oratory, except possibly once or twice for a 
 grave reason. By the extraordinary faculties re- 
 ceived from the Holy See the bishops of the United 
 States may communicate to their priests permission 
 to say mass sub dio ct sub terra, in loco tamen de- 
 cently si allter celebrarl non possit,'' But this does 
 not include the establishment of a private oratory 
 and granting the permanent privilege of celebrating 
 
GIVING CELEBRET. 153 
 
 mass therein. No secular entertainments are al- 
 lowed in a church-buildin<>- which has been blessed. 
 
 152. The pastor of the parish ofives permission to 
 celebrate in his church, subject to the diocesan reg-- 
 ulations concerning" permission to be received from 
 the bishop. Strangers to a diocese must always 
 procure a "celebret" from the bishop, who may limit 
 it as to time and impose conditions; but if they have 
 letters he cannot keep them from saying" mass simply 
 because they are strangers. 
 
 The following form may be used in granting a 
 celebret: 
 
 *'N. — Bishop of N. — We grant permission to cel- 
 ebrate mass in the churches of this city and diocese, 
 (excepting churches of monks and the chapels of 
 convents) to the Rev. N. N. — a priest of the diocese 
 of N. — , as shown by commendatory letters of his 
 
 ordinary dated and exhibited in our chancery; 
 
 this permission being" given for months and on 
 
 the following conditions: That on all Sundays and 
 holidays he shall be present at the services in the 
 church of the parish wherein he resides; that he 
 shall observe the canonical regulations regarding 
 'cohabitatio cum mulieribus;' that he shall wear the 
 Roman collar and clerical dress; that he shall submit 
 a certificate of the pastor of the parish wherein he 
 has resided, stating- that these conditions have been 
 fulfilled, before this permission will be renewed. 
 [l. s.] N. Bishop of N. (or V. G.) 
 
 N. N. Bishop's Chancellor." 
 
 These conditions may seem strange to some, but 
 experience teaches that they are prudently at- 
 tached. They may prevent scandal to the faithful 
 and inconvenience and anno3^ance to pastors, espec- 
 ially in places where strange priests dwell for a con- 
 21 
 
154 LEGAL FORMULARY. 
 
 siderable time. The conditions may be omitted if 
 the "celebret" is granted for only a short time. 
 The bishop cannot compel, but only exhort rectors 
 of churches to furnish necessaries for priests who 
 wish to say mass in their churches. (S. C. Cone, 
 75 Dec. 1 70 J.) 
 
 153. Permission to binate should be asked of the 
 bishop and be obtained in writing* even when the law 
 allows it; the reasons should be stated in the appli- 
 cation. Following* are forms for asking* and con- 
 ceding* permission: 
 
 "Place and date . 
 
 Most Reverend Bishop: In the parish of N. — 
 in N. — of which I have charge, it is impossible for 
 all the people to attend one mass, because the church 
 is too small, (some must remain at home while others 
 attend or other reason) so that unless I say a second 
 mass at least twenty (g'ive approximate number) 
 will not be able to hear mass, as obliged, on Sundays 
 and holy days. Wherefore I request the iDrivileg'e 
 of binating* on such days of obligation for the people. 
 With great respect I remain, 
 
 Yours obediently, 
 
 N. N." 
 To Most Reverend N. N., Bishop of N. 
 
 ? ) 
 
 "N. Bishop of N.— To Rev. N. N., rector of 
 N. — greeting: Since the common law, as stated 
 by Benedict XIV, 1. ,6, de syn. dicec, authorizes a 
 priest in charge of souls to celebrate two masses in 
 case of necessit}^ on the part of the people; and since 
 it is shown that such necessity exists in N. — of 
 which you have charge; therefore We hereby judge 
 that such necessity exists and grant that you or the 
 priest for the time being* in charg*e of N. — may 
 licitly celebrate two masses on all Sundays and holy 
 
 i 
 
FOUNDATION OF MASSES. 155 
 
 days of obliofation, under the prescriptions laid down 
 for such cases by the S. Cong-ret^'ation of the Propa- 
 g*anda and contained in nos. 100 to 106 of III Plen- 
 ary Council of Baltimore. In testimony whereof Sic. 
 Dated &c. N. Bishop of N. 
 
 N. N. Chancellor." 
 
 The bishop may also g'rant this permission by vir- 
 tue of the extraordinary faculty received from the 
 Holy See. In this case the necessity need not be so 
 evident; he should then mention that permission to 
 binate is g^ranted by faculty of the Holy See, gfiving* 
 date thereof. 
 
 154. When a sum of money is paid to a church as 
 a foundation for masses, if it is to be a perpetual 
 contract the consent of the bishop is first required. 
 When this has been g-iven in writing- the following- 
 document may be drawn: 
 
 "This indenture made this day of A. D. 
 
 between the Rev. N. N. pastor of St. 
 
 church in N — for and in the name of said church, of 
 the first part; and N. N. the executor of N. N. (or 
 as the case may be) of the second part; witnesseth: 
 That the said party of the first part for and in con- 
 sideration of the sum of dollars to him in hand 
 
 paid by the said party of the second part, the receipt 
 whereof is hereby confessed and acknowledg^ed, does 
 by these presents, with the written consent and ap- 
 proval of the Most Reverend N. N., the bishop of the 
 diocese of N — to which the aforesaid parish belong-s, 
 ag^ree and promise for himself and his successors in 
 the office of pastor of the said church, that each 
 
 year perpetually (or for years) on the — day of 
 
 — , or as near thereafter as possible, he will celebrate 
 or have celebrated a higfh mass of requiem for the 
 repose of the soul of the said N. N (or as the case 
 ma}^ be) without any further trouble of any kind 
 
156 LEGAL FORMULARY. 
 
 to the party of the second part or his heirs or assig^ns. 
 
 In witness whereof the said party of the first part 
 has hereunto set his hand and seal the day and year 
 first above mentioned. (Signature.) [l. s.] 
 
 Signed, sealed and delivered in the presence of N. 
 N. and N. N. witnesses. 
 
 Diocese of . On this day of A. D. 
 
 before me, an ecclesiastical notary, appeared 
 
 the above Rev. N. N. to me personally known and 
 declared the above to be his free act and deed. 
 
 N. N. Notary." 
 
 155. A table of the foundations of masses with 
 which a church is burdened should be hung* in the 
 sacristy and a book kept especially for the purpose 
 of recording" these oblig'atory masses and noting- the 
 fulfillment of the obligation. The examination of 
 this book is one of the points of episcopal visitation. 
 In case the obligation of masses, on account of de- 
 preciation or loss of the investment, is to be reduced, 
 proper application should be made through the 
 bishop to the Holy See. {Urban VIII, 162^; 
 Innocent XII, 16^4.) The same should be 
 done if an insufficient amount has been left by will 
 for the obligation of masses specified in the will. 
 Obligations of masses left to one church cannot be 
 transferred to another without permission of the 
 Holy See. {S, C. Cone. Dee. /, 1686.) 
 
 Instead of this foundation of masses a person while 
 alive may by setting aside some property, with the 
 acceptance of the bishop, found a simple benefice to 
 which is attached the obligation of saying certain 
 masses for the founder. This form may then be used: 
 
 "N— Bishop of N— . Since N. N. because of 
 great devotion towards Saint wishes to endow 
 
CREATING A BENEFICK. 157 
 
 and has endowed an altar in his honor in the church 
 of Saint in N — with the annual interest or rev- 
 enue of dollars to be derived from permanent 
 
 property, viz as is fully set forth in an instrument 
 
 of endowment dated and preserved in our chan- 
 cery (with the reservation of the jus paironatiis of 
 presenting* the chaplain whenever a vacancy occurs, 
 by himself and his heirs) We, therefore ag^reein^" to 
 his desires, do by our ordinary power, and every 
 other best way, manner and form permitted to Us by 
 
 law, erect the said altar of Saint in the said 
 
 church of Saint in N — into a perpetual ecclesi- 
 astical benefice, and We wish and declare it to be so 
 erected, and We assig^n, appropriate and apply the 
 aforesaid property of the said N. N. as and for an 
 endowment of the said altar. Further We g^rant 
 and reserve to the said N. N. and his heirs theyV^^^ 
 ■patronatus of presenting" the chaplain or chaplains as 
 often as a vacancy may occur, who however are to be 
 instituted and confirmed by Us and our episcopal 
 successors, with the oblig^ation on the chaplain, (who 
 is to be presented within the required time) of cele- 
 brating* or having* celebrated masses in ever}^ 
 
 week for the salvation of the soul of . Thus, 
 
 saving* our episcopal rig*hts. We erect and reserve. 
 In testimony whereof We have ordered these present 
 letters and this decree of erection sig*ned by Us to be 
 expedited and to be reg*istered and preserv^ed in our 
 chancery tog*ether with the aforesaid instrument of 
 endowment. Given, &c. N. Bishop of N. 
 
 [l. s.] N. N. Bishop's Chancellor." 
 
 156. The above form may be used for erecting* any 
 
 other simple benefice by chang-ing* the details, such 
 
 as leaving* out the jus fiatronatus, but retaining* the 
 
 essential features. These are: That the erection 
 
 of the benefice must be in a church at a certain altar 
 
 under the invocation of some saint and that certain 
 
 free and stable fruitful property be assig*ned as an 
 
158 LEGAL FORMULARY. 
 
 endowment. {Monacclli t. 2, f. /, n. 12.) This 
 property may be deeded to the church corporation or 
 mort^agfed to it or leased for 999 years or otherwise 
 safe-g*uarded. A bishop may not refuse the estab- 
 lishment of such a benefice if left by will or offered 
 when living". If he refuses, the hig"her authority on 
 recourse will supply the consent. (C/. /. c. n y-S.) 
 If money is left or g*iven for the purpose it must be 
 immediately invested in stable, productive property. 
 {S. C. Cone. June 21, 162^.) If alienated with con- 
 sent of the Holy See, the proceeds must be immediately 
 re-invested with the sameoblig^ation affixed. {Ibidem.) 
 
 157. Great care should be taken in drawing- wills 
 which leave bequests for masses. The supreme 
 courts in various states have rendered very diverg^ent 
 decisions on the question whether such bequests are 
 valid and whether such a trust can be created. In 
 New York the court of appeals in the Thomas Gun- 
 ning- case of 1888 decided that a trust created by the 
 testator leaving- the residue of his estate to Frederick 
 Smyth and Henry Alcock "to be devoted to the pur- 
 chase of masses for the soul of the testator, the souls 
 of his relatives, and the souls of all other persons in 
 purg-atory" is not valid in law. The decision seemed 
 based on the point that there was no defined bene- 
 ficiary. (Holland vs. Alcock, 108 N. Y. reports 312.)" 
 
 The most important decision, however, was made 
 by the supreme court of Illinois, in 1898, in the case 
 
 *See also Ruppel vs. Schle^el, 7 N. Y. Sap. 936; In re Howard's 
 Estate, 25 id. 1111; Vandoveer vs. McKane, 25 Abbot's N. C. 105; 
 McHusfh will case in Wisconsin, 72 N. W. Repoi^ter (531; Iowa, 
 Moran vs. Moran, 7.3 N. W. Rep. 017; Schoulor, Petitioner, 134 
 Mass. 426; Rhymer's Appeal, 93 Pa. St. 142; Seibert's Appeal, 18 W. 
 N. Cas. 276. 
 
BEQUESTS FOR MASSES. 159 
 
 of Hoeffer vs. Clogan. Andrew Clogfan died and by 
 will left $1,000 and some real estate to the "Holy 
 Family church" in Chicao^o, the real estate to be sold 
 by the church and the total sum to be expended in 
 masses for the repose of his, the testator's, soul and 
 the souls of his mother-in-law and brother-in-law. 
 The Holy Family church is not incorporated and 
 therefore no such entity is known in law. The be- 
 quest would therefore fail unless it could be sus- 
 tained by the doctrine of charitable uses. It was so 
 sustained, the court holding- the bequest to be a g\it 
 to a charitable use under the law of Eng-land adopted 
 in Illinois. "The mass," says the court, "is a repe- 
 tition of the sacrifice on the cross, Christ offering* 
 himself ag^ain throug^h the hands of the priest and 
 asking* pardon for sinners as he did on the cross. 
 It is reg"arded as a benefit not only for the partic- 
 ular soul in whose behalf it may be said, but to all 
 others who may participate in the ceremony or attend 
 it. Hence it may be upheld as a public charity. 
 Such is the doctrine of the courts of Massachusetts 
 and Pennsylvania." 
 
 It may also 'be noted that the supreme court of 
 Michigan by mandamus to the auditor g*eneral, Nov. 
 8, 1889, decided that a minister who officiated at the 
 funeral of an unknown person, found dead and buried 
 at the expense of the state, was entitled to a fee for 
 his services. It had been allowed by the circuit 
 court to the coroner, but the auditor general had re- 
 fused pa3"ment. The court ordered payment and 
 said a stranger is entitled to a decent burial, which 
 means with also religious service. (Lechance vs. 
 Aud. General, 77 Mich. 563.) 
 
CHAPTER V. 
 
 SACRAMENT OF PENANCE. 
 
 158. The sacrament of penance was instituted by 
 Christ, by way of judg^nient or trial, for remitting* 
 to a penitent confessing them, all his sins committed 
 after baptism, which remission is granted through 
 the absolution of the authorised priest. On the part 
 of the penitent contrition and confession are required 
 and also satisfaction, which last is necessary only 
 for the integrity of the sacrament; on the part of the 
 priest, who takes the place of Christ by his commis- 
 sion, absolution is required. Thus contrition, con- 
 fession and absolution are the essence of the sacra- 
 ment of penance. The matter and form of this sac- 
 rament, as well as the dispositions required in the 
 penitent and the method of confessing", are treated in 
 works on moral theology. This work is concerned 
 chiefly with the approbation, jurisdiction and con- 
 duct of its minister in certain circumstances. 
 
 159. Every priest in ordination receives the in- 
 herent or essential power to forgive sins in the sac- 
 rament of penance; but the use of this power, except 
 for the benefit of a dying person, is restricted by the 
 church and depends on its jurisdiction or commission. 
 Approbation is required from the ordinary of the 
 place where confessions are heard. It is defined: 
 "A judgment of the ordinary concerning the compe- 
 
 160 
 
SACRAMENT O^ PENANCE. 161 
 
 tency of a priest to hear confessions." Without it 
 no priest, secular or reg^ular, except in case of death, 
 can validly or licit! y hear confessions. An examina- 
 tion is not strictly necessary before a bishop can 
 ^ive approbation, for his jud^^ment may be otherwise 
 well founded. So necessary is this approbation by 
 the ordinary that if he should unjustly refuse it, or 
 withdraw or limit it, the priest, even if a reli^^^ious, 
 could not validly hear confessions. Such a with- 
 drawal or limiting" of approbation on the part of the 
 bishop is valid, thoug'h for its licity there must be 
 good cause. 
 
 160. Approbation is something distinct from juris- 
 diction; for to approve is to declare a priest worthy 
 or competent to receive subjects on whom to exercise 
 the power of the keys; but to confer jurisdiction is 
 actually to assign subjects to such priest. Appro- 
 bation may be given only after examination if the 
 bishop judg'es it necessary; and he may call to a sec- 
 ond examination confessors whom he has approved. 
 Even parish priests, who in their appointment acquire 
 ordinary jurisdiction in the internal forum over their 
 parishioners, may be cited to an examination if a well 
 founded suspicion should arise of their incompetence. 
 However, unless such suspicion arise, the bishop 
 who approved them for the appointment to the parish 
 cannot re-examine them, although his successor may 
 do so. (jRec. Dccis. Rotcc ^57, 2^8^ p. 2.) 
 
 161. As to reg'ulars, properly so called, who make 
 solemn vows, their prelates have ordinary jurisdic- 
 tion over the members of the order, and through 
 them the other members acquire delegated jurisdic- 
 tion. But in reg'ard to the confessions of seculars, 
 
 22 
 
162 IvEiGAL FORMUIvARY. 
 
 these reg'ulars receive jurisdiction from the Roman 
 Pontiff; but for its valid exercise the approbation of 
 the ordinary of the place is required. 
 
 From this approbation their power is determined 
 as to place, time, persons and also cases. [Const. 
 Apost. Ministerii^ Inn. XII: Ben. XIII ide7n; 
 Greg-ory XIII Const. Cum in Sacra.) The common 
 practice at present is for bishops to grant reg"ulars 
 approval only for a limited time or while stationed 
 in the diocese, so that if they should lose their dom- 
 icile in the diocese and ag*ain return, they would be 
 obliged to obtain a renewal of approbation. 
 
 162. It is noteworthy that, except in the case of 
 exempt regulars, the common practice to-day is for 
 bishops to give priests jurisdiction together with ap- 
 probation. With us this jurisdiction extends over 
 the diocese except it be specially limited. It is usu- 
 ally given for a limited time. But since parish 
 priests have implicit approval and acquire ordinary 
 jurisdiction for the confessions of their parishioners 
 by their appointment to the parish, this jurisdiction 
 is not withdraw^n except by a legal suspension or re- 
 moval from the parish. The so-called "revocation 
 of faculties," whatever it means, cannot cover such 
 a case. Moreover, using such an uncanonical term 
 is at best a dangerous experiment, and experience 
 has shown that it is hardly sustainable even in the 
 case of movable rectors. 
 
 163. In the general faculty for hearing confessions 
 is not included that for the confession of nuns. A 
 special approbation is required for this. Regulars 
 should not be confessors for nuns except where sec- 
 ulars cannot be had. [Monacclli t. /, /. g, f. j.) 
 
VISITING IN CONVENTS. 163 
 
 The ordinary confessor for nuns is approved for 
 three years and should then be changfed. With the 
 consent of the Holy See a second term of three years 
 may be allowed; which consent is usually oriven only 
 if by secret vote two thirds of the nuns ca-pitiilaritcr 
 ag-ree in requesting- a second term. For the third 
 successive term the consent of all the nuns of the 
 convent without exception is required. A secular ex- 
 traordinary confessor must be deputed by the bis^hop 
 (or approved on presentation by the prelate of a reg*- 
 ular order to whom the nuns are subject), and at 
 least two or three times a 3^ear all the nuns of the 
 convent must confess to him or present themselves in 
 the confessional even though not desiring- to confess. 
 The S. Cong, of Bishops and Regulars on Sept. 27, 
 1861, ordered this also for congreg"ations of sisters 
 who take only simple vows. On April 22, 1872, the 
 same Sacred Congregation decided that, where in 
 parishes, especially in the country, there are three 
 or four sisters belonging to congregations or insti- 
 tutes which haVe only simple vows, but living in the 
 parish in order to teach school and frequenting the 
 parish church for mass and the sacraments, they can 
 make their confession outside their own house to any 
 confessor approved by the ordinary. While the ex- 
 traordinary confessor is hearing confessions, the 
 ordinary confessor is prohibited from hearing" the 
 confession of any one in the convent under punish- 
 ment to be arbitrarih" imposed by the prelate to 
 whom the convent is subject. Likewise access to 
 the convent is prohibited to the extraordinary con- 
 fessor, after he has completed hearing confessions. 
 While these two regulations apply particularlv to 
 
164 LEGAL FORMULARY. 
 
 nuns who take solemn vows, the spirit of the law in- 
 sists that neither ordinary nor extraordinary con- 
 fessors should visit in convetits. The contrary 
 practice is a serious abuse, even if the sisters are 
 teachers in the parish schools, and it should be elimi- 
 nated as the occasion of scandal. 
 
 164. Jurisdictionis potestatem jure suo limitibus 
 coercere possunt Pontiiices Maximi in ecclesia uni- 
 versali, et in sua quisque dioecesi episcopi per casuum 
 reservationem, qua invalidaprorsus redditurabsolutio 
 extra mortis articulum. Reservationes factae a 
 Romano Pontifice sunt perpetuse; factae ab ordinario, 
 nisi statutae sint in synodo dioecesana, cessant resoluto 
 jure reservantis. {Cf. D^ Annihale^ -part. Ill^ -p. ^44.) 
 Extra mortis articulum, tantum possunt directe a 
 reservatis absolvere ipse reservans, reservantis supe- 
 rior et ab alterutro deleg'atus. Ceterum, in mortis 
 articulo nulla est reservatio atque ideo omnes sacer- 
 dotes quoslibet poenitentes a quibusvis censuris atque 
 peccatis absolvere possunt. Qui tamen a censuris 
 Romano Pontifici speciali rnodo reservatis absolvit 
 poenitentem, eum moiieat de oblig^atione, si conval- 
 uerit, se sistendi eidem summo Pontifici eidemque 
 plane parendi; recidet enim in censuras easdem si 
 praestare hasc reniiat. Verumtamen h^ec oblig"atio 
 non afficit eos qui peccata reservata vel alias censuras 
 habent quam quae speciali modo R. Pontifici reservata 
 sunt. 
 
 165. Nullus confessarius absolvere potest compli- 
 cem suum, marem vel feminam, in peccato turpi; ita 
 ut absolutio, si qua detur extra mortis articulum, et 
 invalida sit et illicita. Qui autem absolvere praesumit, 
 excommunicationem latae sententiae Papae speciali 
 
RESERVED CASES. 165 
 
 modo reservatam incurrit. In mortis articulo vel 
 periculo et valide et licite absolvet complicem si non 
 possit advocari alius sacerdos qui confessionem 
 audiat; vel si potest quidem advocari, sed non absque 
 scandalo. Si vero adsit sacerdos alter qui confes- 
 sionem excipere queat etiamsi non sit approbatus, 
 tunc sacerdos complex absolvet quidem valide, sed 
 illicite incidetque in excommunicationem. Hanc cen- 
 suram incurrit etiam qui simulat absolvisse. (S. O. 
 20 maji, i86y.) 
 
 166. Casus iste reservatusid peculiare habet, quod 
 semper in posterum excipendus est etiam^ in amplis- 
 simis facultatibus quse episcopis et missionariis con- 
 ceduntur. Idem dicendum de peccato quo quis cal- 
 umniose denunciavit sacerdotem aliquem de crimine 
 soUicitationis. Ambo casus specialissimo modo Papa^, 
 reservati sunt. {S. O. 2j JinH\ 1866; 4. Afr. iSyi.) 
 Per S. Congreofationem de Propaofanda Fide die 24 
 Jan. anno 1868, "Sanctitas sua sing-ulis archiepis- 
 copis, episcopis ac vicariis apostolicis Statuum Fced- 
 eratorum America} Septentrionalis facultatem 
 benig-ne concessit, qua illorum quisque pro quindecem 
 casibus in propria dioecesi vel vicariatu uti possint, 
 sive per suum vicarium generalem, sive per idoneos 
 confessarios, a se vel a dicto vicario ad hoc specialiter 
 et cum expressa mentione Apostolicaj auctoritatis 
 deputandos, absolvendi nimirum a censuris et poenis 
 ecclesiasticis sacerdotes, qui personam complicis in 
 peccato turpi confessiones excipere eamque absolvere 
 ausi fuerint, et cum iisdem super irregularitate a 
 violatione dictarum censurarum quomodocunque 
 contracta misericorditer dispensandi; sub ea tamen 
 lege, ut sic absoluti et dispensati infra duos menses, 
 
166 IvEGAL E'ORMULARY. 
 
 vel aliud congruum tempus a dispensante decernen- 
 dum, directe vel per medium proprii coiifessarii, sup- 
 pressis nominibus, ad S. C. de P. Fide recurrere, 
 eique explicare, quot persotias complices in re turpi, 
 et quoties a peccato complicitatis absolverint, et 
 mandatis ejusdem S. C. desuper ferendis obedire 
 teneantur; sub reincidentia. in easdem censuras et 
 poenas, si contravenerint; injuncta singulis pro modo 
 culparum cong-rua poenitentia salutari, quodque ab 
 audiendis personae complicis confessionibus omnino 
 abstineant, aliisque injunctis de jure injung^endis." 
 (Cy. Co7ic. Plen. Bait. II, -p. cxlviii.) Si facultas 
 ha^c sing-ulis episcopis peteutibus pro determinato 
 numero renovata fuerit, dies alterius concessionis 
 inseri debet in sub-delegatione. 
 
 167. Formula lieic datur litterarum quae post im- 
 pertitam absolutionem in casu superiori essent a con- 
 fessario scribendae (mutatis mutandis) ad Em^^^ii^ 
 Praefectum S. Cong*, de Prop. Fide vel ad Sacram 
 Poenitentiariam. 
 
 "Eminentissime Princeps: 
 
 Ego infrascriptus sacerdos ex facultate Apostolica 
 mihi a RevE^ Episcopo N. N. communicata, (qui 
 
 die mensis A. D. a Sanctissimo DD. 
 
 Papa facultatem obtinuit cum potestate sub- 
 
 deleg'andi,) absolvi Titium sacerdotemab excommuni- 
 catione lata contra absolventes complicem in peccato 
 turpi et cum eodem super irreg"ularitate a violatione 
 dictae censurae contracta dispensavi. Nunc vero 
 juxta praescriptionem (ejusdem indulti et) decreti S. 
 Cong-, de Prop. Fide die 24 Jan. 1868, certiorem facio 
 Eminentiam Vestram quod idem sacerdos Titius 
 unum tantum (vel duos &c) complicem eumque semel 
 (vel bis, ter &c) absolverat. Addam eundem Titium 
 facti sincere poenituisse, et paratum se ostendere 
 
RESERVED CASES. 167 
 
 niandatis omnibus exequendis qua3 Eminentia Vestra 
 vellit ei injuno'ere. 
 
 Purpuram deosculans sunima qua par est rev- 
 ereatia et devotione permaneo. 
 
 E^minentiae Vestrae 
 
 Submississmus 
 N. N. Ecclesiae N." 
 
 Excell?^ Delegatus Apostolicus idem quod epis- 
 
 copi idultum habet et confessarium subdele^^are 
 
 potest. Recursus ad episcopum sa^pe omittendus 
 
 est tie sio-illum periclitetur. Kx respon. S. O. 23 
 
 Junii, 1886, necesse est "ut tali modo absoluti infra 
 
 7)16)1867)1 a recepta absolutione per medium confessarii 
 
 ad S. Penitentiariam recurrere teneantur." 
 
 168. De jure ecclesia^ communi omnes sacerdotes 
 sollicitautes ad peccandum contra sextum decaloo^i 
 praeceptum cum relatione ad confessionem, denunci- 
 andi sunt vel ordinario vel Apostolical Sedi; et p(ieni- 
 tens sollicitatus absolvi nequit antequam denunci- 
 averit, vel si statim non possit, saltern quam primum 
 se denunciaturum pollicitus fuerit. Denunciatio 
 excipi poterit etiam a vicario apostolico. {S. O. 
 di6 2o JiDiii^ iS8^.) 
 
 Quoad sollicitationem notandum est, quod ea 
 debet esse facta a sacerdote tamquam a confessario; 
 hinc vel in actu confessionis sive immediate ante 
 sive immediate post, vel extra confessionem occasione 
 vel praetextu vel simulatione confessionis. Notan- 
 dum etiam, quod si nullo modo omnibus adhibitis 
 hortationibus, poenitens ad denunciandum induci 
 queat, confessarius opus caritatis faciet si, suppresso 
 ejus nomine, ad S. Poenitentiariam casum deferat. 
 
 169. Haud facile adhibenda est fides mulieribus 
 sacerdotes de sollicitatione accusantibus. Etenim 
 
168 LEGAL FORMULARY. 
 
 non semel visae sunt mulierculse, quae ex invidia, odio, 
 Zelotypia, aliove fine perverso clericos prorsus inno- 
 centes atrociter calumniate sunt. Ig"itur pcenitenti 
 sedulo aperiat confessarius si per calumniam sollici- 
 tationis, de qua ag^itur, sacerdotem accuset, irreti- 
 turum seipsum teterimo scelere ac tali, a quo nisi 
 per Suttimum Pontificem, extra mortis articulum, 
 non possit absolvi. Ista reservatio extenditur etiam 
 ad mandantes, consulentes, suadentes vel quocumque 
 modo procurantes falsam accusationem. 
 
 Pcjenae sollicitationis sunt oravissimai, sed ferendae 
 sententie; nempe suspensio ab ordine, privatio bene- 
 ficiorum, dig-nitatum et officiorum quorumcumque et 
 perpetua inhabilitas ad ilia; addenda est perpetua 
 inhabilitas ad misse celebrationem. Confessarius 
 solicitans potest absolvi ab alio quocunque con- 
 fessario. 
 
 ADDUNTUR NOVISSIM^ INSTRUCTION'S DE RATIONE 
 PROCEDENDI IN CAUSIS SOLLICITATIONIS. 
 
 I. Instructionis S. Romanae et Universalis Inquis- 
 itionis circa observantiam Apostolical Constitutionis 
 "Sacramentum Poenitentiae" no. 10 praecipitur ut 
 anteqiimn contra denitnciatiun -procedatiir, f>ersf>eC' 
 tiim cxploratiunqice judici esse debeat, quod midieres 
 vel viri deminciantes siiit boiii nominis, neqiic ad 
 accusandmn vel inimicitia vel alio huniano affectu 
 addiicti fiierint. 
 
 II. Praeceptum hujusmodi, uti omnia quae ad liujus 
 Supremi Tribunalis procedendi rationem spectant, 
 strictissimi juris censendum est, ita ut, eo neg*lecto, 
 ad ulteriora procedi nequeat. 
 
 III. Nee sufficit ut id utcumque, sed omnino 
 
PROCESS DB SOLrjCITATIONE. 169 
 
 iiecesse est ut certa iudiciali forma iudici innotescat; 
 quod propria dlctione: 'Uiiligoitias circa dcnuncia- 
 tuvi eiusquc deiiiuicicmtcs pcragere^^ sig"aificarl in 
 foro S. Officii usus obtinuit. 
 
 IV. lamvero cum non semper nee ab omnibus vel 
 tantum post long-um tempus, cum nempe testimoni- 
 orum receptio difticilis et quandoque impossibilis est, 
 Supremum hoc Tribunal id servari perspexerit, hanc 
 ad rem Instructionem, pro Rmorum Ordiuariorum 
 norma, edendam mandavit. 
 
 V. Ordinarius ig'itur toties quoties aliquam de in- 
 fando sollicitationis crimine denunciationem accep- 
 erit, illico ad idilig-entias peraofendas procedet. Ad 
 quem finem vel per se vel per Sacerdotem a se spec- 
 ialiter deleo'atum advocabit (separatim scilicet et 
 qua decet circumspectione) duos testes, quantum fieri 
 poterit, ex coetu ecclesiastico,'Utcumque vero omni 
 exceptione maiores, qui bene noverint tum denuncia- 
 tum tum omnes et sing^ulos denunciantes, eosque sub 
 sanctitate iuramenti de veritate dicenda et de secreto 
 S. Officii servando, iudicialiter iuterrogabit, testi- 
 monium scripto referens, iuxta insequentem formu- 
 1am; utriusque vero testimonii atque simul respecti- 
 vae denunciationis autlienticum exemplum directe 
 tutaque via ad banc Supremam Cong-reg^ationem 
 quamprimum transmittet. 
 
 VI. Dictum est: "vel per se vel per Sacerdotem 
 
 a se specialiter deleo'atum;" nihil enim prohibet 
 
 quoniinus, rationabili ex causa, pio alicui docto ac 
 
 prudenti Sacerdoti id muneris Ordinarius demandare 
 
 valeat; spcciali tamen ei in singulis casibus delega- 
 
 tione imperitita, eique antea delato iureiurando de 
 23 
 
170 IvEGAIv FORMULARY. 
 
 munere fideliter obeundo et de secreto S. Officii 
 servando. 
 
 VII. Quod si inveniri nequeant duo tantum testes 
 qui noverint una simul denunciatum et onines et 
 sin^ulos denunciautes, plures vocari debent. Tot 
 nempe hoc in casu testes, ut supra vocandi erunt, 
 quot oportebit ut duplex quoad denunciatum et 
 unumquemque denunciantem habeatur testimonium. 
 
 VIII. Quoties autem iuramentum de secreto ser- 
 vando, et, pro diversis casibus, de veritate dicenda 
 vel de munere fideliter obeundo deferendum sit, 
 iuramentum ipsum semper et ab omnibus, etiam 
 Sacerdotibus, tactis Ss. Dei Evarigeliis ct no7i aliter, 
 praestandum erit. In Ordinarii vero potestate erit, 
 siquidem pro rerum, locorum aut personarum adiunc- 
 tis necessarium vel expediens iudicaverit, excommun- 
 icationem ipso facto incurrendam et Rom. Pont, 
 speciali modo reservatam violatoribus comminari. 
 
 IX. Sequitur interrog"ationis formula: 
 
 Die mense — anno 
 
 Vocatus personaliter comparuit coram me infras- 
 scripto Episcopo--(?^o/^/^^r iiomcn dioecesis. Dele- 
 g-atus aiitenv dicat : coram me infrascripto a r. p. d. 
 Episcopo--ad hunc actum tantum specialiter dele- 
 ^ato) sistente in — hiotctur locus iibi ncgotiiun 
 geritur. ) 
 
 N. N. (no77ie)iy cogoiomen ct qualitates testis con- 
 veiiti) qui, delato ei iuramento veritatis dicendag, 
 quod praestitit tactis Ss. Dei Evang-eliis, fuit per me 
 
 1. Interrog'atus: Utrum noverit Sacerdotem N. 
 N.? {7iome7i, cog7i077ie7i et qualitates de7iu7iciati,) 
 
 ^Q^-^ondiXi: - - {exsc7'ibatur lirigua qua ulitu7' testis, 
 eius 7'es^07tsio.) 
 
PROCESS DE SOLLICITATIONE. 171 
 
 2. Interrog^atus: Ouaenam sit hujusce Sacerdotis 
 vit^ ratio, quiuam mores, qua^nam penes populum 
 existimatio? 
 
 Respondit: 
 
 3. Interrog"atus: Utrum noverit viros vel, ut plur- 
 imum, mulieres NN. NN.? {iiomcu, cognomen ct 
 qiialitatcs iminscniusqiic dcnunciaiitis. ) 
 
 Respondit: 
 
 4. Interroo-atus: Quainam sit uniuscuiusque eorum 
 vita3 ratio, quinam mores, (juaenam penes populum 
 existimatio? 
 
 Respondit: 
 
 5. Interrocfatus: Utrum eos censeat fide dig-nos, 
 vel contra mentiendi, calumniandi in judicio et etiam 
 periurandi capaces eos existimet? 
 
 Respondit: 
 
 6. Interrog-atus: Utrum sciat, num forte inter eos 
 et praefatum Sacerdotem ulla unquam extiterit odii 
 vel inimicitiarum causa? 
 
 Respondit: 
 
 Tunc, delato ei juramento de secreto S. Officii ser- 
 vando, quod pra^stitit ut supra, dimissus fuit, et 
 antequam discederet, in confirmationem pra3missorum 
 se subscripsit. 
 
 Siih script io autographa testis vel eiiis sig'iuini ^ 
 criicis. 
 
 Acta sunt ha^c per me N. N. {nomoj, cog^uomen et 
 qiialitates Episcopi vel eAus Deleg'ati qui testinio)iiu))i 
 reccpit.) 
 
 Datum Roma3 die 6 Aug"usti 1897. 
 
 L. M. Card. Parocchi. 
 
 170. Formula pro concedenda facultate confes- 
 siones audiendi: 
 
172 LEGAIv FORMULARY. 
 
 "N— Dei &c Episcopus N — . Dilecto Nobis in 
 Christo N. N. salutem in Domino. Cuplentes Nos 
 in quantum possumus saluberrimi sacramenti poeni- 
 tenti^ administrationem in nostra dioecesi, ea qua 
 majori potest doctrinae sufficientia ac morum integ*- 
 ritate exerceri; cum te hisce dotibus ornatum non 
 immerito censeamus, et per Nos ac nostros exam- 
 inatores examinatum, satis capacem idoneumque 
 repererimus; idcirco ad tantum administrandum 
 sacramentum tenore praesentium te approbamus, 
 omniumque poenitentium in nostra dioecesi confes- 
 siones audiendi, eosque sacramentaliter absolvendi, 
 praiterquam a casibus Sanctai Sedi ac Nobis reser- 
 vatis, . (excepto mortis articulo) opportunam et ad 
 — annos (vel alias) duraturam concedimus facul- 
 tatem; excipimus tamen sanctimoniaies. Praecipi- 
 musquoque, ut absque parochorum licentia aliorumve 
 superiorum, in quorum ecclesiis volueris confessiones 
 excipere, id efficere non debeas. Tibique insuper 
 injung-imus ut quotiescunque a^orotantium confes- 
 siones audieris, quamprimum ea de re eorum paro- 
 clium certiorem reddas sub poena privationis facul- 
 tatis hoc administrandi sacramentum ipso facto 
 incurrenda; sub eademque pcjena mulierum non in- 
 firmarum confessiones audire extra sedem confession- 
 alem et non interposita crate tibi omnino vetamus. 
 Denique te in Domino enixe hortamur ut ea qua decet 
 modestia ac puritate conscientia^ ad tale sacramentum 
 ministrandum accedas et ea qua? per sacros canones 
 et constitutiones SS. Pontificum atque per nostras 
 constitutiones synodales, praesertim circa casus res- 
 ervatos, vel per Sacral Pctniitentiaria} de Urbe litteras 
 ordinata et commissa sunt et erunt attente leo'as, 
 perpendas et fideliter exequaris. In quorum &c. 
 Datum &c. 
 
 [iv. s.] N. Episcopus N. 
 
 N. N. Cancell. Episcopalis." 
 
 171. Formula litterarum testimonialium idoneita- 
 
APPROVAL FOR REGULARS. 173 
 
 tis ad confessiones audiendas pro reg-ularibus ex- 
 emptis: 
 
 "Eg"o infrascriptus Ordinis N — magfister, sacraj 
 theoloo-iaj professor ac prior (provincialis) provincial 
 N — (mutatis mutandis) eleg^i Patrem N. sacerdotem 
 in nostra religfione professum ad audiendas confes- 
 siones sacramentales, quern sic electum tanquam 
 sufficientem, idoneum, vita probatum, discretum, 
 modestuni atque peritum, et ab examinatoribus 
 ordinis ad id approbatum, x^raisento 111^^' et Rev5^ 
 D. Episcopo N. quern humiliter peto ut ad tarn salu- 
 bre ministerium et officium exequendum ilium et ipse 
 approbare di«fnetur; ad hoc ut in sua civitate et 
 dirL'cesi confessiones subditorum confiteri sibi volen- 
 tium audire, atque eisdem pcenitentias salutares 
 imponere et absolutionis beneficium impendere libere 
 valeat. In quorum omnium testimonium prasentes 
 dabam. Locus et dies &c. 
 
 [l. s.] N. N. Provincialis. 
 
 N. N. Secretarius." 
 
 172. Formula approbationis confessarii reg"ularis 
 exempt! : 
 
 "N. Episcopus N. Dilecto Nobis in Christo P. N. 
 ordinis N — presbytero salutem et benedictionem: 
 Cum multa Christi messis Nos coo*at undequacjuc ut 
 ad auxilium nostrum operarios advocemus, teque 
 pium et doctum examine noverimus aptumque ut sub 
 nostri reii'iminis mag"isterio procuranda^ iidelium 
 saluti inservias; administrando poenitentia^ Sac- 
 ramento te admovere statuimus, prout per pra?- 
 sentes ad sex menses (vel alias) tantum valituras ad 
 confessiones Christi iidelium excipiendas in hac nos- 
 tra dioecesi approbamus; ea tanien couditione ut a 
 casibus Nobis et sanctae Sedi reservatis non absolvas. 
 In quorum &c. Datum &c. 
 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Episcopali; 
 
 is. 
 
174 LEGAL FORMULARY. 
 
 173. Formula deputationis confessarii ordinarii 
 pro monialibus: 
 
 "N — Episcopus N— . Dilecto in Christo Rev. N. 
 N. presbytero sseculari, salutem et benedictionem: 
 Tibi, Reverende Domine, per examuiatores nostros 
 idoiieo reperto et per Nos approbate ut in ecclesia et 
 monasterio Santae N — confessiones sacramentales 
 monialium audire, et ssecularium etiani muiierum, 
 si quae in eodem monasterio erunt, easque absolvere 
 valeas, praeterquam a casibus et censuris Sedi Apos- 
 tolicae et Nobis reservatis, licentiam et facultatem 
 concedimus et impartimur; tibique confessario ordi- 
 nario a Nobis deputato omnes moniales confiteri 
 teneantur. In clausuram monasterii non ing-redieris, 
 nisi, superpelliceo et stola indutus ut tantummodo 
 sacramenta poenitentiae, eucharistiae et extremae 
 unctionisinfirmisadministres, in quibusutique casibus 
 semper hoc tuo munere modestia perfung^as, sociatus 
 a duabus ex senioribus monialibus, quae cum confes- 
 siones iniirmarum audies, janua cellae aperta, te 
 etiam videre possint, non auteni audire. Neg"otiis 
 monasterii aut monialium quibuscunque non te im- 
 misceas, neque ad crates seu rotas colloquaris nisi 
 de his tantum, quai ecclesia cultum et divinorum 
 officiorum celebrationem respiciunt. Te quoque in 
 Domino monemus, ut cures promovere qu^ ad 
 reg"ulae observantiam conducant; pravos autem 
 abusus si qui sint, evellere, sed relig"iosam vitam 
 fovere et enutrire coneris. Cum vero confessor 
 extraordinarius per Nos mittitur, long-e a monasterio 
 abscedas, donee ille discesserit. Praesentibus cum 
 solita mercede (a monasterio solvenda) ad triennium 
 valituris. In quorum &c. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Kpiscopalis." 
 
 175. Formula deputationis confessarii extraordi- 
 narii pro monialibus: 
 
APPOINTMENT OF CONFESSORS. 175 
 
 "N.— Episcopus N.— Dilecto in Christo N. N. 
 presbytero saeculari, salutem et benedictionem: 
 Tibi, Reverende Domine, confessario in hac nostra 
 dioecesi approbate, cujus vitam, doctrinam et morum 
 probitateni jampridem experti sunius, obtemperan- 
 tes S. Concilii Trid. decreto, necnon et S. Cong-re- 
 g^ationis E)pp. et RR. instructioni circa confessarium 
 extraordiuariuni pluries in anno monialibus Nobis 
 subjectis providendum, ut tanquam talis confessarius 
 sanctimonialium monasterii N. in civitate N. sacra- 
 mentales confessionesexcipere et a peccatis absolvere 
 possis, et eaedem pcjenitentiae medicina indig-entes 
 liberius malis suis mederi valeant, etiam cum facul- 
 tate ab omnibus casibus et censuris Nobis reservatis 
 absolvendilicentiam concedimuset facultatem oppor- 
 tunam impartimur, per trinos dies unoquoque cir- 
 citer anni tempore et quater tantum duraturam. 
 In quorum &c. Datum &c. N. Episcopus N. 
 
 [iv. s.] N. N. Cancellarius Episcopalis." 
 
 175. At times it is necessary for confessors to 
 apply to the Sacred Penitentiary in Rome for facul- 
 ties and dispensations for the internal forum or for 
 occult cases. Even though bishops have the re- 
 quired faculties it is frequently imprudent or dan- 
 g"erous to apply to them. Besides the faculties in 
 Form 1, and the extraordinary faculties of Forms 
 C, D, and E, which are for use in the external forum, 
 the Holy See throug-h the Cardinal Penitentiary 
 g"rants some bishops on application extensive facul- 
 ties for the forum internum. A copy of this form is 
 g-iven below in parag^raph 184. 
 
 When, however, it is necessary for the confessor 
 to apply to the Cardinal Penitentiary, he should first 
 make dilig'ent inquiry into the case to determine just 
 what faculty is required. He will then w^rite either 
 
176 LEGAL FORMULARY. 
 
 in Latin or in the national lang"uao"e an exact and 
 concise statement of the case without mentioning" 
 names, even thoug'h there be no dang^er in divulo'ing' 
 them. In place of the real names he will therefore 
 use N. N. or fictitious ones, and at the bottom of the 
 letter will g-ive the address to which the reply is to 
 be sent. The envelope enclosing- the letter is to be 
 addressed: "To His Imminence, the Cardinal Peni- 
 tentiary, Rome, Italy." The letter may be sent by 
 ordinary mail. 
 
 176. The following form may be used in address- 
 ing the Cardinal Penitentiary, making the necessary 
 changes as the various cases require: 
 
 "Eminentissime Princeps: 
 
 N. N. Sacerdos contraxit irregularitatem ex honii- 
 cidio occulto ab eo ob (talem) causam, clam (tali) 
 modo patrato (vel procurato) in personam hominis 
 laici (vel clerici). Ab eo tempore non abstinuit ab 
 exercitio ordinum, vitandi scandali causa (vel ne se 
 proderet). Igitur huniiliter supplicat pro remedio. 
 
 Vel: N. N. contraxit matrimonium cum muliere 
 cujus matrem antea carnaliter cognoverat, conscius 
 (vel nescius) impedimenti, quod ocCultum est; quare 
 cum absque scandalo separari non possint humillime 
 supplicat pro remedio. 
 
 Summa qua par est reverentia et devotione pur- 
 puram deosculans, permaneo, 
 
 E^minentiae Vestrae 
 
 Submississimus 
 
 >» 
 
 Then add the address to which the reply is to be 
 sent. With proper changes application may be 
 made to the bishop if he has the required facult}^ or 
 to the Apostolic Delegate. 
 
 177. The reply of the Cardinal Penitentiary is 
 
CLAUSES IN FACULTIES. 177 
 
 mailed to the address j^iveu, and in a second envelope 
 encloses the necessary faculty or dispensation which 
 is to be executed according- to the directions g-iven 
 therein. Formerly the execution was committed 
 only to a master of theolog-y or doctor of law, but 
 now it is frequently delegated to "any confessor ap- 
 proved by the ordinary." The letter of the Sacred 
 Penitentiary at times contains various clauses whose 
 meaning" should be understood. 
 
 ^uatenus si ita est, means that the confessor must 
 inquire whether the statements are in fact true; but 
 for this he need only depend on the word of the 
 penitent. Absolvas vel dispenses in foro con- 
 scienticc, means that the absolution or dispensation 
 is of no value in the public or external forum, fii 
 ipso actu sacrarnenialis confessionis iantuvi, requires 
 for the validity of the dispensation an actual con- 
 fession. An frcBinissa sive exposita sint occulta, 
 which is added especially when matrimonial dispen- 
 sations are granted. If this clause is inserted and 
 the crime, irregularity or impediment is not occult 
 but public, then the faculty cannot be used validly; 
 but another must be obtained ^ro /oro externa. 
 
 When the faculty is given for deferring- entry 
 into a religious order, the letter contains the clause 
 considcratis qiice sunt consideranda, which means 
 that the confessor must examine whether the reason 
 g-iven is true and the necessity for delay real, and 
 that he must also consider the danger for the peni- 
 tent if delay is granted. When executing- such a 
 letter granting delay the confessor after granting- 
 sacramental absolution will say: "Insuper auctori- 
 
 tate apostolica specialiter mihi delegata tibi dela- 
 2i 
 
178 LEGAL FORMULARY. 
 
 tioaem adimplendi votum relig"ionis quod emisisti 
 concedo. In nomine Patris et Filii et Spiritus 
 Sancti." 
 
 When executing" a letter absolving- from trans- 
 gression of a simple vow of religion or of chastity in 
 the case of a person who afterwards married, the 
 confessor will say: 
 
 "Deinde auctoritate apostolica mihi specialiter 
 delegata, te, non obstante voto castitatis quod emis- 
 isti et transgressus fuisti, in dicto matrimonio 
 remanere et debitum conjugale reddere posse et de- 
 bere declaro, et ut idem debitum etiam exigere licite 
 valeas tecum eadeni auctoritate apostolica dispense. 
 In nomine &c." 
 
 178. In executing letters granting dispensation 
 from the secret impediment of affinity ex copula 
 illicit a, the clause occurs: Sub lata occasione -pec- 
 candi cum dictcc mulieris {inatre, -patre) and means 
 that if the occasion is voluntary, it must be removed 
 before the dispensation can be applied. Injuncta 
 ei gravi -pmnitentia sahitari^ injitnctis qucc de jure 
 fueririt injung'enda^ are requirements which confes- 
 sors understand. The clause Ita quod hujusmodi 
 absolutio et disperisatio in Joro judiciali nidlatenus 
 suffrageiitur, means that if the occult impediment 
 from which dispensation is granted should become 
 public, then this dispensation will not avail in a trial, 
 but a new one must be obtained for the external 
 forum. In declaring the dispensation the confessor 
 after the usual absolution from censures and sins 
 will say with necessary changes: 
 
 "Insuper auctoritate apostolica mihi specialiter 
 delegata dispenso tecum super impedimento primi 
 
FORMS FOR ABSOLUTIONS. 179 
 
 (secundi) gradus ex copula illicita a te habita cum 
 sorore mulieris (fratre viri) cum qua (quo) contra- 
 here intendis (vel attentasti) proveniente, ut pra^fato 
 impedimento noii obstante matrimonium cum dicta 
 persona publice contrahere (vel in eo remanere) licite 
 possis et valeas; item eadem auctoritate prolem 
 quam ex matrimonio susceperis legitimam fore pro- 
 nuncio et declaro. In nomine &c. " 
 
 179. In letters for absolution in occult cases of a 
 person who has imposed violent hands on a cleric, 
 a clause is inserted, Cziin autcni lator de f^rccmissis 
 qiiCE occulta sunt seii qucr ad forum ordinarii niinhne 
 -pervencrunt, f^Iuriniuiii doleat, which requires that 
 the confessor be certain of the sorrow of the penitent 
 and of the secrecy of the case; otherwise the absolu- 
 tion is null. Another clause is, Ita quod si f>rccmissa 
 ad forum ordhiarii devenire contig'eriiit ct lator scu- 
 teuticc scu ordinationi ordinarii f>arcrc co}itcmpscrit 
 i)i dictam cxcommunicationcm co ipso relabatur, 
 which means that if the crime becomes public and 
 he refuses the penance imposed by the bishop he will 
 relapse into excommunication. The form for ab- 
 solution is: 
 
 *'Dominus noster Jesus Christus te absolvat et 
 ego auctoritate ipsius, et auctoritate apostolica mihi 
 specialiter delegata, absolvo te in primis ab excom- 
 municationis sententia quam incurristi ob manus 
 violentas injectas in clericum N. N. et ab omni alio 
 vinculo excommunicationis et interdicti in quantum 
 possum et tu indiges. Deinde ego te absolvo a pec- 
 catis tuis. In nomine, &c." 
 
 180. The form for absolving and dispensing from 
 irregularit}^ incurred in case of occult homicide is: 
 
 "Dominus noster Jesus Christus te absolvat, et 
 
180 LEGAI^ FORMULARY. 
 
 e^o auctoritate ipsius et auctoritate apostolica mihi 
 specialiter deleg"ata absolve te in prlmis a quibusvis 
 sententlis, censuris et poenis ecclesiasticis; quibus 
 propter ea quas confessus es, quomodolibet innodatus 
 existis, et pariter eadem auctoritate absolve te a 
 peccatis tuis. In nomine &c. Insuper eadem auc- 
 toritate apostolica tecum dispense super irreg-ulari- 
 tate, quam ex homicidio contraxisti ut ilia non 
 obstante clericali charactere insig'niri ac ordines 
 etiam sacros et presbyteratus suscipere et postquam 
 susceperis in illis etiam in altaris ministerio minis- 
 trare licite possis et valeas. In nomine, &c." (Si 
 dispensandus esset sacerdos, dicatur,) "ut ilia non 
 obstante in sacris ordinibus etiam in altaris ministerio 
 ministrare licite possis et valeas. In nomine &c." 
 
 181. The form for rehabilitating* a simonical cleric 
 is: 
 
 "Dominus noster Jesus Christus te absolvat et e^o 
 auctoritate apostolica mihi specialiter deleg^ata, 
 absolve te inprimis a quibusvis sententiis, censuris 
 et poenis ecclesiasticis quas propter simoniam 
 incurristi, et eadem auctoritate absolve te 
 a peccatis tuis. In nomine &c. Et insuper 
 eadem auctoritate apostolica tecum dispense 
 in irreg'ularitate quam ex simenia et ex violatione 
 pestea contraxisti, ut ilia non obstante in tuis ordini- 
 bus etiam in altaris ministerio ministrare ac beneiicia 
 si qua; tibi alias canonice conferantur, non tamen 
 beneficium quod simoniace obtinuisti et dimisisti, reci- 
 pere et retinere licite possis et valeas. In nomine 
 Patris et Filii et Spiritus Sancti. Amen." 
 
 182. When a priest orives absolution by deleg^ation 
 from the S. Penitentiary or from the bishop in a 
 public case then the form will be the following" after 
 reciting- the prayers prescribed in the Roman Ritual: 
 
 "Et e^o auctoritate mihi cemmissa absolve te a 
 
CERTIFICATE OF ABSOLUTION. 181 
 
 vinculo excommunicationis majoris quam incurristi 
 
 ob , et restituo te unitati S. Matris Ecclesia^, 
 
 Sanctis sacramentis et communioni fidelium. In 
 nomine &c. 
 
 The confessor will in such case ofive the penitent, 
 and also send to the bishop a certificate testifying- to 
 absolution from the censure. 
 
 "Kg-o N. N. confessarius deputatus ab I11II12 et 
 Rev^ N. Episcopo N. (vig-ore litterarum Sacrae 
 Pcjenitentiaria^) fidem facio qualiter audivi confes- 
 sionem sacramentalem N. N. et illi absolutionem 
 sacranientalem impertitus sum in forma ecclesia^ con- 
 sueta, non solum a peccatis, verum etiam ab excom- 
 
 municatione quam ipse N. N. incurrit propter . 
 
 In quorum fidem testimoniales has litteras dedi ex 
 
 loco N. die — mense — anno. 
 
 [l. s.] Ego N. N. Confessarius Deputatus.*' 
 
 183. It is customary for the tribunal of the Peni- 
 tentiary to use many peculiar abbreviations in its 
 replies which are always sent in Latin. That such 
 abbreviations may not be misunderstood, and neces- 
 sary conditions thereby be omitted, an explanation 
 of the most frequent ones is inserted: 
 
 archiepus archbishop 
 
 air otherwise 
 
 als otherwise 
 
 absoluo absolution 
 
 aplica apostolic 
 
 autte authority 
 
 appbatis - approved 
 
 cardlis cardinal 
 
 canice canonically 
 
 cen censures 
 
 Xtus Christ 
 
 confeone confession 
 
 coione communion 
 
 consciae conscience 
 
 discreoni discretion 
 
 dnus — lord 
 
 eccla3 church 
 
 effus effect 
 
 exit exists 
 
 ecclis ecclesiastics 
 
 epus bishop 
 
 excdd - -excommunication 
 
 f r brother 
 
 f rum brother 
 
 gnali - general 
 
 humoi -of this kind 
 
182 
 
 IvEGAL FORMULARY. 
 
 humilr humbly 
 
 infraptum — undersio-ned 
 
 irreg-ulte irreofularity 
 
 igr therefore 
 
 Ha — license 
 
 Itima leg"itimate 
 
 Irae letters 
 
 lite licitly 
 
 mrittionium matrimony 
 
 magfro master 
 
 mitaone — - - mercy 
 
 mir mercy 
 
 nultus not at all 
 
 ordio ordinary 
 
 ordinaoni ordination 
 
 Pp pope 
 
 pr father 
 
 pontus pontificate 
 
 ptus aforesaid 
 
 ptur - is preferred 
 
 pntium present 
 
 pbter priest 
 
 poenia penance 
 
 poenaria - -penitentiary 
 
 poe can 
 
 pror - - procurator 
 
 qtnus in as far as 
 
 qmlbt in some way 
 
 qd which or what 
 
 relari reo-ular 
 
 relione reli<:^ion 
 
 Roma Roman 
 
 snta3 or stae holy 
 
 saluri salutary 
 
 sentia sentence 
 
 spealtr specially 
 
 supplibus supplications 
 
 spualibus spiritual 
 
 tn nevertheless 
 
 tm only 
 
 thia or theolia - theolosfy 
 
 tli title 
 
 venebli venerable 
 
 vrag vour 
 
 184. The quinquennial faculties g-ranted by the 
 Cardinal Penitentiary to some bishops and, mutatis 
 mutandis, also to some priests are the following*: 
 
 Raphael, 
 
 Divina Miseratione Episcopus Ostiensis et VelitGrnus, S. R. E. 
 
 Cardinalis Monaco La Valetta, Sacri Colle<?ii Decanus, Sacro- 
 
 sanctae Patriarchalis Archilmsilicae Lateranensis Ar(^liiprosbvt or. 
 
 SS. DD. Nostri Papae ot S. Sedis Apostolicne 
 
 Major Pooiiitentiarius. 
 
 Vobis Venerabili in Christo Patri N— N— , Episciopo N — , in- 
 frasoriptas commnnicamns facultates ad quinquennium duraturas, 
 quibiis, non obstante Constitutione Apo.stolicjic Sedis pro loro 
 conscientiae per vos sive per Vestrum Vicarium in spiritualibus 
 generalem, dummodo in Sacro presbytcratus ordinc sit constitutus, 
 etiam extra sacramentalem contessionem pro j?rep:e Vobis com- 
 misso, et intra fines Vestrae dioecesis tantum atque de speciali in 
 
SPECIAL FACULTIES. 183 
 
 unoqiioque casu exprimenda Scdis Apostolicae auctoritate Vobis 
 dele^ata, uti valeatis; qiiasque caiioiiico poeiiitentiario, iiecnon 
 vicariis foraueis pro foro pariter coiiscieiitiae ac in actu sacra- 
 nicutalis coiifcssioiiis dumtaxat, etiam habitiialitcr, si Vobis 
 placuorit, aliis vero confessariis, ouni ad Vos sive ad praediotum 
 Vicarium goueralem in casibus particularibus poenitentium re- 
 cursiim tiabuerint, pro oxposito casu impertiri possitis, nisi ob 
 pecnliares causas alicjuibus confessariis a Vobis specialiter sub 
 delegandis, per tempus arbitrio Vcstro statuendum, illas commu 
 nicare judicabitis. 
 
 I. Al^solvendi ab excommunicatione Romano Pontifici sim 
 pliciter reservata ob maiuis violentas injectas sive in clericos sive 
 in Keftulares, dummodo non fuerit secuta mors, vel nuitilatio, seu 
 lethale vulnus, aut ossium fractio; et dummodo casus ad forum 
 Ordinarii deducti non fuerint; injunctis de jure in.junjg:endis, et 
 praesertim ut parti laesae competenter satistiat. 
 
 II. Absolveudi a censuris contra duellantes statutis, in casibus 
 dumtaxat ad forum Ordinarii non deductis; injuncta gravi poeui- 
 tentia salutari; et aliis injunctis, quae fuerint de jure injungenda. 
 
 III. Absolvendi quoscumque poenitentes (exceptis haereticis 
 publicis, sive publice dogmatizantibus), a (juibusvis seutentiis, 
 censuris, et poenis ecclesiasticis incursis ob haereses tam nemine 
 audiente, vel advertente, quam coram aliis externatas: ob infideli- 
 tatem, et catholicae fidei abjurationem private admissas, sortilegia 
 ac maleficia haereticalia etiam cum sociis patrata, necnon ob 
 daemonis iuvocationem cum pacto donandi animam, eique prae- 
 stitam idolatriam, ac superstitioues liaereticales exercitas, ac 
 demum ob quaecumque insiiuiata falsa dogmata incursis, post- 
 qiiam tamen poenitens complices, si quos habeat, prout de jure, 
 denunciaverit; et quatenus ob justas causas nequeat ante absolu- 
 tioneni denunciare, facta a poenitente seria promissione deuun- 
 ciationem peragendi cum primum, et meliori modo, quo fieri 
 poterit; et postquaiii in singulis casibus coram Absoivente haereses 
 secrete abjuraverit, et pactum cum maledicto daemone initum 
 expresse revocaverit, tradita eidem Absolventi syugrapha forsan 
 exarata, aliisque mediis superstitiosis, ad omnia comburenda, seu 
 destruenda; injuncta pro modo excessuum gravi poenitentia 
 salutari cum frequentia sacramentorum et obligatione se retrac- 
 tandi apud personas coram quibus haereses manifestavit, et 
 leparandi illata scandala. 
 
 IV. Absolvendi a censuris incursis ob violationem clausurae 
 Kegularium utriusque sexus, dummodo non fuerit commissa cum 
 intentione ad malum finem, etiam efi'ectu non secuto, nee casus 
 
184 LEGAL FORMULARY. 
 
 fuerint ad forum Ordiuarii deducti, cum congrua poenitentia 
 salutari. Et insuper absolvendi mulieres tantum a censuris, et 
 poenis ecclesiasticis, ob violationem ad malum flnem clausurae 
 virorum religiosorum incursis, dummodo tamen casus occulti 
 remaneant; injuncta gravi poenitentia salutari, cum prohibitione 
 accedendi ad Ecclesiam aut Conventum, seu coenobium dictorum 
 religiosorum durante occasione peccandi. 
 
 V. Absolvendi a censuris ob retentionem et lectionem librorum 
 prohibitorum incursis, injuncta congrua poenitentia salutari, 
 necnon flrma obligatione tradendi prout de jure, sive per se, sive 
 per alium absque ulla mora, et quantum fieri poterit ante absolu- 
 tionem, libros prohibitos, quos poenitens in sua potestate retineat. 
 
 VI. Absolvendi a casu Apostolicae Sedi reservato ob accepta 
 munera a regularibus utriusque sexus, injuncta poenitentia 
 salutari et quando agitur de muneribus quae valorem decem 
 scutatorum non excedunt, imposita aliqua eleemosyna Absolventis 
 judicio taxanda, et caute eroganda, cum primum poterit, in bene- 
 ficium religionis aut conventus cui f acienda esset restitutio; dum- 
 modo tamen non constet, quod ilia fuerint de bonis propriis 
 Religionis; quatenus vero accepta munera, vel fuerint ultra 
 valorem scutatorum decem, vel constet fuisse de bonis propriis 
 Religionis, facta prius restitutione, quam si de praesenti poenitens 
 adimplere nequeat, emissa seria promissione restituendi infra ter- 
 minum Absolventis arbitrio i^raefiniendum; alias sub reiucidentia. 
 
 VII. Absolvendi a censuris, et poenis ecclesiasticis eos, qui sectis 
 vetitis massonicis, aut carbonariis, aut aliis ejusdem generis sectis 
 nomen dederunt, aut qualemcumque favorem praestiterunt, ita 
 tamen ut a respectiva secta omnino se separent, eamque abjurent, 
 libros, manuscripta, ac signa sectam respicientia, si quae retineant, 
 in manus Absolventis tradant ad Ordinarium quam primum caute 
 transmittenda, aut saltem, si justae gravesque causae id jjostulent, 
 comburenda, injuncta pro modo culparum gravi poenitentia 
 salutari, cum frequentia sacramentalis confessionis, aliisque in- 
 junctis de jure injungendis; necnon absolvendi eos, qui ejusmodi 
 sectarum duces et coryphaeos occultos denunciare culpabiliter 
 neglexerint, injuncta pariter salutari poenitentia, et firma obliga- 
 tione sub reincidentia eosdem Vobis vel aliis, ad quos spectat, 
 prout de jure denuntiandi. 
 
 VIII. Absolvendi Religiosos cujuscumque Ordinis (etiam 
 moniales, per confessarios tamen pro ipsis a Vobis approbatos, vel 
 specialiter deputandos) non solum a praemissis, sed etiam a 
 casibus et censuris in sua Religione reservatis, dunmiodo Religiosi 
 
SPECIAL FACULTIES. 185 
 
 apud Con/essariuni sulxlclefjrUum /cfjifiniani habueiint licentiavi j^cr- 
 ayendi confess ionem saci'amentalem. 
 
 IX. Dispensandi ad petcndum debitum conjuj^ale cum trans- 
 ffressore voti castitatis privatim emissi, qui matrimoiiium cum 
 dicto voto contraxerit, hujusmodi penitentem moueudo, ipsum 
 ad idem votum servaiidum teiieri tam extra licitum matrimonii 
 usum, quam si marito, vel uxori respective supervixerit. 
 
 X. Dispensandi cum incestuoso, vel incestuosa, ad petendum 
 debitum couju^ale, cujus jus amisit ex superveniente occulta 
 affinitate per copulam carnalem habitam cum consan^uinea, vol 
 consan^uineo sivo in primo sive in prime et secundo, sive in 
 secundo gradu suae uxoris, seu respective mariti, remota occasione 
 peccandi, et injuncta ^ravi poenitentia salutari, et confessione 
 sacramental! singulis mensibus, per tempus arbitrio Dispensantis 
 statuendum. 
 
 XL Dispensandi super occulto impedimento primi, necnon 
 primi et secundi, ac secundi tantum gradus atfinitatis ex illicita 
 carnali copula provenientis quando agatur de matrimonio cum 
 dicto impedimento jam contracto; et quatenus agatur de copula 
 cum suae putatae uxoris matre, dummodo ilia secuta f uerit post 
 ejusdem putatae uxoris nativitatem, et non aliter; monito poeni- 
 tente de necessaria secreta renovatione consensus cum sua putata 
 uxore, aut suo putato marito, certiorate seu certiorata de nullitate 
 prioris consensus, sed ita caute, ut ipsius poenitentis delictum 
 nusquam detegatur; et quatenus haec certioratio absque gravi 
 periculo fieri nequeat, renovate consensu juxta regulas a probatis 
 auctoribus traditas; remota occasione peccandi, ac injuncta gravi 
 poenitentia salutari et confessione sacramentali semel in mense 
 per tempus Dispensantis arbitrio statuendum. 
 
 Item de speciali et expressa Apostolica auctoritate Vobis 
 facultatem concedimus dispensandi super dicto occulto impedi- 
 mento, seu impedimentis atfinitatis ex copula illicita etiam in 
 matrimoniis contrahendis dispensandi que facultatem subdelcgandi, 
 etiavi hahitualiter, parochi's vestrac dioecesis, quando tamen omnia 
 parata sint ad nuptias, nee matrimouium usquedum ab Apostolica 
 Sede obtineri possit dispensatie absque periculo gravis scandali 
 dift'erri queat, remota semper occasione peccandi, et firma 
 remanente conditione, quod copula habita cum matre muUeris 
 hujus nativitatem non antecedat: injuncta in quolibet casu poeni- 
 tentia salutari, 
 
 XII. Dispensandi super occulto criminis impedimento, dum- 
 modo sit absque ulla machinatioue et agatur de matrimonio jam 
 25 
 
186 LEGAL FORMULARY. 
 
 contracto; monitis putatis conjugibus de necessaria consensus 
 secreta renovatione. 
 
 Item ex eadam specLali ct expressa Apostolica fMictoritate pariter 
 facultatem concedinius dispensandi sux)er eodem occulto inip)edi7)ieiito, 
 dummodo sit absque ulla machmatione, etiani in 7nc(tri7ii07iiis contra- 
 hendis, in casibus tamen urgcntiuribus m quibns tempus non suppetat 
 recurrendi ad S. Sedem; injuncta in utroque casu gravi poeniteyitia 
 salutari, et coyifessione sacranientali semel singulis mensibns per tem- 
 pus Dispensaniis arbitrio statueudum. 
 
 N. B. Mens nostra est: 1*^ Ut si forte ex oblivione vel inadvei'- 
 tentia ultra jiraedictum temiinum his factUlo.tibus Vos lUi contingat, 
 absolutiones sen dispensationes exindc impertitae ratae sint et validae; 
 'Z^ Ut injunctio confci<sionis sacrarnentaiis de qua sub 7in, x, xi, et xii, 
 non sit IRRITATIVA sed tantiim praeceptiva; 3" Ut his facultatibus 
 non solum singillatim sed etiam cumulatim i7i u7io codemquc casu uti 
 possitis. 
 
 Datum Romae ex Aedibus Nostris die 5 Maji 1896. 
 
 B. POMPILI, S. P. Corrector. 
 R. Celli, S. p. tSubstit. 
 
CHAPTER VI. 
 
 SACRAMKNT OF HOLY ORDERS. 
 
 185. It is a dog'ma of faith that there is in the 
 catholic church a divinely constituted hierarchy 
 consisting" of bishops, priests and ministers. This 
 hierarchy is founded not on carnal g-eneration and 
 succession as in the old law, but on election and 
 ordination. Hence holy order is a sacrament by 
 which is conferred permanently the power to conse- 
 crate the Holy Eucharist and rig-htly to perform 
 other ecclesiastical functions. Only a consecrated 
 bishop is the minister of major orders. By special 
 delegation of the Holy See a priest may confer minor 
 orders, the ordinary minister being" the bishop. For the 
 validity of ordination, besides other essential require- 
 ments the intention of ordaining* is required in the 
 bishop; for licity it is also required that the bishop 
 confer orders only on his own subjects, who should 
 be of proper age and have probity, knowledge and a 
 title of ordination. Ordination should moreover be 
 held at proper time and place, and with interstices 
 and after previous proclamation. 
 
 186. A person may be the subject of a bishop b}^ rea- 
 son of a benefice which he peacefully holds in his 
 diocese; by reason of birth in the diocese; b}' reason 
 of a certain and stable domicile in it; or by reason of 
 being an actual familiar of the bishop, that is, in his 
 
 1S7 
 
188 LEGAL FORMULARY. 
 
 service and supported by htm for three full years 
 previously to ordination. In such case the candidate 
 for ordination must produce testimonial letters from 
 the bishop ruling" the diocese of his orig-in or previous 
 domicile. Relatives are not considered familiars 
 unless they actually are in the" service of the bishop. 
 
 The bishop for a reg'ular with solemn vows is only 
 the bishop of the diocese wherein is situated the 
 monastery in which the candidate lives. The can- 
 didate's superiors in the order may grant dimissorial 
 letters to this bishop, and if he is absent, impeded or 
 not intending to hold an ordination, then to any 
 other bishop; but in such case mention of this reason 
 must be made in the dimissorial letters. However, 
 some religious orders by special privilege ma}^ have 
 their candidates ordained by any catholic bishop. 
 It should be noted that a bishop is suspended from 
 conferring" orders for a year, if he ordains the sub- 
 ject of another without dimissorial letters, or even 
 his own subject who has lived outside the diocese 
 for a time sufficient to contract a canonical impedi- 
 ment, unless he brings testimonial letters from the 
 bishop of such place. {Cf. Const. Ap. Sedis.) 
 
 187. The candidate for orders should have the 
 necessary requirements, both positive and neg^ative. 
 The positive requirements are ag"e, knowledgfe, 
 piety. For tonsure at least the ag*e of seven years 
 is required. No ag"e is specified for minor orders, but 
 for sub-deaconship twenty-two years and for deacon- 
 ship twenty-three is required. A candidate for 
 priesthood must have begun his twenty-fifth year 
 and for the episcopate he must have completed his 
 thirtieth year. The bishop cannot dispense from the 
 
TITLE OP ORDINATION. 189 
 
 required a.ge; but he may obtain special faculties for 
 the purpose from the Holy See. The ordinandi 
 should have sufficient knowled«-e and be of g'ood 
 character as well as confirmed in the faith. The 
 neg"ative requirements are freedom from impediments 
 and irreg'ularities. These proceed either from crime 
 or from defect. Of the first kind are homicide or 
 mutilation of the body, iteration of baptism, forbid- 
 den exercise of orders, heresy. Of the second kind 
 are, defects of mind, body, condition or lenity. 
 
 188. Reg'ardingf the title of ordination the Sacred 
 Congfre^ation of the Propag^anda on April 27, 1871, 
 issued a special instruction in which these points are 
 prominent. No one, except solemnly professed 
 relio*ious who vow personal poverty, is allowed to 
 be ordained without a title which is his means of 
 support. There are two kinds of title, ecclesiasti- 
 cal and patrimonial. This latter obtains, when the 
 candidate has such an income from certain, stable, 
 unencumbered property, as in the judg^ment of the 
 bishop will suffice for his decent support. He ma}" 
 also have a perpetual pension or life annuity from 
 property, but in both cases the property should be 
 immovable, or permanent securities. In case of 
 necessity or utility the bishop may ordain a candi- 
 date having- such title as his means of support. 
 
 189. The ecclesiastical title is divided into that of 
 benefice and that of povert3\ to which are added as 
 subsidiary or extraordinary the titles of common 
 table, service of the church, mission, sufficiency, col- 
 leg'e. The titles of colleofe and sufficienc\% are no 
 long-er used. That of service of the church, also 
 rarely used, means that a cleric is ordained for min- 
 
190 LEGAL FORMULARY. 
 
 isterin^ in a certain church which he may not leave, 
 and from which service and the alms of the faithful 
 he derives a sufficient support. The title of poverty 
 (really a neg-ative title) is founded on a religious 
 profession and means that the individual must derive 
 his support from the g"oods of the relig-ious order 
 and the alms of the faithful gfiven to the order. The 
 title of common table is a similar title used by those 
 clerics who live in community as relig'ious, but take 
 no vows or only simple ones. Not all communities, 
 but only such as have an apostolic indult may use 
 this title of ordination. 
 
 190. The title of mission is the one used for those 
 who are to devote themselves to the service of apos- 
 tolic missions, when no other title can be supplied. 
 Priests ordained with this title receive what is nec- 
 essary for their support from the missions wherein 
 they labor. But since this is an extraordinary title, 
 not known to common law, it is evident that bishops 
 cannot ordain under it except by special indult of the 
 Holy See and on conditions laid down by it. Thus 
 even in dioceses canonically erected, priests ordained 
 titiilo viissionis still remain under the special protec- 
 tion of the Propaganda and the Cong-regfation alwa3^s 
 insists on their proper maintenance by the diocese to 
 which they belong. In a strictly legal sense a priest 
 ordained by this title is bound directly to the Propa- 
 ganda and indirectly to the diocese or province to 
 which he swears to devote his services. 
 
 191. The oath taken by the priest who is ordained 
 titiilo missionis is to the effect that he will not join 
 any religious order or community without the special 
 permission of the Apostolic See and that he will per- 
 
TITLE OF MISSION. 191 
 
 petually labor in the ministry for the g"ood of souls 
 under the entire direction and jurisdiction of the or- 
 dinary for whose diocese he is ordained. This oath, 
 it should be remarked, does not o-ive a bishop in a 
 missionary country any more extensive power than a 
 bishop has elsewhere. The (general principles of 
 canon law must be observed by both bishop and 
 priest. The same instruction of the Sacred Propa- 
 ganda says that ordinaries may use the services of 
 priests ordained by other titles than that of mission, 
 and that such priests cannot be forced to chang-e 
 their title for that of mission. On the contrary the 
 Sacred Congreg'ation explicitly asks of ordinaries 
 that other legitimate titles be introduced as much as 
 possible instead of that of mission. In this respect 
 a priest ordained tititlo viissionis, when appointed to 
 an irremovable rectorship, may be supposed to 
 chang-e his title to that of a parochial benefice, and a 
 bishop to that of his diocese. 
 
 192. The title of mission, like others, may be lost 
 or taken away by ordinaries with the consent, how- 
 ever, of the Holy See. In such case the priest is not 
 suspended, but should be forced by the bishop to 
 supply another title. (C/'. S. Cong. Prop. Sept, /, 
 18^6.) In the same way reg'ular priests who have 
 made solemn vows and by permission of the Holy 
 See live in the world, or those making- simple vows 
 and leaving" their congreg^ations or institutes are 
 oblig-ed to procure another title, and in missionary 
 countries they must prove that at least they have 
 sufficient means of support. The Propaganda on 
 February 4, 1873, allowed bishops, before conferring- 
 the title of mission on reg^ulars who have left their 
 
192 LEGAL FORMULARY. 
 
 order or institute, to send them for a congruous time 
 to some mission on trial. But this does not apply to 
 apostates (runaways) nor to those expelled from the 
 order as incorrio*ible, for these are perpetually 
 suspended. (C/. Cong. Cone. 21 Sept. 162^.) 
 
 193. In the same decision {S. Prop. Feb. 4, ^^Syj) 
 the rule was laid down that when a priest, ordained 
 titulo viissionis, has rendered himself unworthy to 
 exercise the sacred ministry, the bishop should make 
 a declaration to the priest to the effect that "because 
 of such un worthiness he remains deprived of the title 
 of mission and consequently of the rig-ht to support 
 from the diocese;" and thereafter so long- as the 
 priest perseveres in his preverse way of living", g^iv- 
 ing" no sig'n of repentance, the bishop is not bound to 
 give him support. At the same time it was inti- 
 mated that bishops should not proceed to such a final 
 declaration, until after using' in vain and repeatedly 
 all paternal admonitions and until they have pro- 
 cured sure proofs, obtained also extrajudicially, of 
 the priest's crimes and public defamation. These 
 proofs in case of recourse will be on record to be sent 
 to the Holy See, or in the United States to the Apos- 
 tolic Leg'ation, and will ward off trouble from the 
 bishop interested and his successors. {Cf. }i. 120 
 above^ p. 118; II PI. Coicn. Bait. )i. 77; ''Ciun 
 7)1(1 g'nof ere ^^^ art. ^5.) 
 
 194. In the United' States a priest ordained titido 
 7nissio7iis for one diocese may now with the consent 
 of his bishop be adopted into another diocese of the 
 same province without the necessity of consulting* 
 the Propaganda. In such case he need but renew 
 his oath for the new diocese when he acquires an 
 
CHANGE OF DIOCESE. 193 
 
 ineat^ if he had taken the oath for his diocese pre- 
 vious to Nov. 30, 1885. Since that date the mis- 
 sionary oath is taken not for the diocese but for the 
 province and need not be renewed when a priest, 
 ordained since then, is transferred from one diocese 
 to another within the same province. {Cf. Decretum 
 S. Cong-. Prop, jo Nov. i88^.) When a transfer is 
 made from one province to another, the consent of 
 the Propag^anda is required as formerly. A virtual 
 incardination into a diocese, no matter what the title, 
 occurs ipso facto at the expiration of three and of 
 five years' service unless the bishop has explicitly 
 stated the contrary to the priest before the end of 
 such respective period. (/// Conn. Bait. n. 6j.) 
 
 195. As to the ordination itself, it should not be 
 pe7' saltiun and proper interstices should be kept 
 unless an apostolic faculty for dispensation is used. 
 Even in such case minor orders and sub-deaconship 
 should not be conferred on the same person in one 
 day, nor two of the major orders. Still no punish- 
 ment is attached to such reception of orders. The 
 time for g^iving- orders is any day and hour for ton- 
 sure; Sundays and holy days of oblig'ation (also sup- 
 pressed) for minor orders, and during" mass as a mat- 
 ter of propriety. Holy orders are given on the Sat- 
 urdays of the ember weeks, the Saturdays before 
 Passion and Easter Sundays, and always during 
 mass. Bishops should be consecrated only on Sun- 
 days and feasts of the apostles during mass at nine 
 o'clock in the morninof. A greneral ordination must 
 be held in the cathedral, {S. R. C. i6 Sept. iy4.y) 
 but if only a certain few are to be ordained it may 
 
 be held in any church and also in the bishop's private 
 
 20 
 
194 LEGAL FORMULARY. 
 
 chapel. (Cy. S. C, Co7zc. in Melit. 20 Nov. i5g2.) 
 
 196. An announcement of the ordination to be held 
 and of the persons of the parish to be ordained is to 
 be made by patish priests one or two months before 
 the ordination occurs, so that any objections or im- 
 pediments may be made known. {.Cf. Cone, Trid. 
 c. 5, scss. 2 J dc reform.^ The parish priest will 
 then o-ive testimonial letters regarding- the birth, a^e, 
 life, character of the ordinandi. A second examina- 
 tion is made by the bishop througfh his appointed 
 examiners who will inquire into the knowledg'e of 
 the candidates. The third examination — a merely 
 formal one — is made by the bishop himself during- 
 ordination when he asks the arch-deacon whether he 
 knows the candidates to be worthy. To this the 
 arch-deacon replies according- to his public not private 
 knowledg'e. 
 
 The special faculties conferred on bishops of the 
 United States reg-arding- ordination are g-iven below 
 in chapter VIII. 
 
 197. When the bishop intends holding- a g-eneral 
 ordination the following- edict or notice should be 
 published in proper form: 
 
 "N — Bishop of N — . To each and all who dwell 
 within the limits of our diocese and jurisdiction, also 
 to reg-ulars, by these presents We g-ive notice that 
 We shall solemnly hold a g-eneral ordination in our 
 cathedral on the Saturday of the spring- ember week 
 
 which will be the day of of the present 
 
 year. Wherefore those who desire to be promoted 
 to the various sacred orders, in accordance with the 
 Sacred Council of Trent, sess. 23, c. 5, de reform., 
 will express to Us their desire a month previously to 
 the time for ordination, and later will present them- 
 
NOTICE OF ORDINATION. 105 
 
 selves before Us and our examiners in our episcopal 
 residence at ten o'clock a. m. of the Wednesday pre- 
 ceding" the ordination, i. e. on the day of 
 
 A. D. , to be examined in accordance with law. 
 
 Those wishing" promotion to minor orders will also 
 appear for examination at the same time and place, 
 and all will bring" with them the necessary testi- 
 monial letters regfarding" ag"e, birth, character, pre- 
 vious orders and other requisites, in order that those 
 found fit and worthy may be admitted. To this end 
 We command all pastors of our city and diocese to 
 publish this edict during" mass on the first Sunday 
 after receiving" it, and to make proper report to Us 
 concerning" the various candidates for ordination who 
 may belong" to their respective parishes, under sanc- 
 tion to be inflicted in accordance with our discretion. 
 Given &c. N. N. Bishop of N. 
 
 N. N. Bishop's Chancellor." 
 
 108. The announcement of the parish priest may 
 be made in these or similar words : 
 
 "N. N. of this parish wishes to receive tonsure 
 (minor orders, sub-deaconship) at the coming- ordi- 
 nation. Wherefore if anyone knows of an}- canonical 
 impediment on account of which he should not re- 
 ceive orders, such a one is oblig"ed in charity and by 
 virtue of holy obedience to make such impediment 
 known to me within eigfht days, to the end that if 
 no such impediment is discovered the said N. N. may 
 receive (tonsure) orders." 
 
 The pastor should mention and explain the imped- 
 iments. The letter of the pastor testifying- to the 
 proclamation may be : 
 
 "I, the undersig"ned pastor of St. church in 
 
 N — testify that during" mass on a Sundav, i. e. on 
 day of A. D. , I announced that N. N. 
 
196 LEGAIv FORMULARY. 
 
 wishes to receive tonsure sub-deaconship) and after 
 pointing" out the different impediments which might 
 prevent such reception (or ordination) I admonished 
 all and everyone conscious of any such impediment 
 to make it known to me in charity and holy obedience. 
 I further testify and certify that no impediment was 
 discovered. In testimony whereof I have given these 
 letters under oath sig'ned by my own hand and sealed 
 
 this day of A. D. . 
 
 N. N. Parish Priest of N— ." 
 
 199. The parish priest's certificate of baptism for 
 a candidate for tonsure may be worded thus : 
 
 "Ego, infrascriptus rector (vel parochus) ecclesise 
 
 S — in N — praesentibus litteris testor N. N. in 
 
 aetatis anno constitutum, filium legitimum et natura- 
 lem N. et N. conjugum, ex hac mea parochia, fuisse 
 baptisatum sub die — , prout constat ex libro baptis- 
 atorum hujus parochise, in quo sic habetur; (ponantur 
 ipsamet verba libri.) In cujus fidem praesentes lit- 
 teras etiam juramento interposito manu propria sub- 
 
 scripsi etsig"illo meo munivi, die — . m. A. D. — . 
 
 N. N. Parochus." 
 
 If it should happen that no record of baptism can 
 be procured, and the candidate is born of catholic 
 parents and among* catholics, this fact alone is suf- 
 ficient presumption of baptism and is considered 
 proof of it unless proofs are advanced to show he was 
 not baptised. iCf, C. veniens in fine de Pres. ?ion 
 haft.) Even if a person is born of catholic parents 
 among heretics, dimissorial letters cannot be re- 
 fused because a certificate of baptism is wanting-. 
 {S. Cong. Epp. in Land, jo Ang. i6ig.) Often the 
 sworn testimony of witnesses to the baptism may be 
 procured to remedy the deficiency in the record. 
 
TESTIMONIALS FOR ORDERS. 197 
 
 200. Following- is the form for testimonial letters 
 of the diocesan chancellor certifying to a title of 
 benefice: 
 
 "E^o infrascriptus curi^ episcopalis N — cancel- 
 larius per praesentes fidem facio, clericum N. N. qui 
 ad sacros ordines promoveri cupiat, revera beneficium 
 habere ecclesiasticum in ecclesia S. N. hujus di(je- 
 ceseos sub invocatione S. N. erectum, (prout constat 
 ex litteris collationis illi factae per N — mihique ex- 
 
 hibitis) illudque annui redditus scutatorum vere 
 
 et pacifice possidere, prout testes super his formiter 
 a me examinati deposuerunt. Insuper testor Rev "^^^^ 
 D. Vicarium g-eneralem pronunciasse et decreto 
 declarasse praefatum beneficium esse sufficiens, ita 
 ut idem clericus N. N. ad illius titulum sacris ordi- 
 nibus initiari valeat, ut constat ex meis actis. In 
 quorum fidem has litteras meo solito sig"illo meaque 
 manu roboravi. Die &c. Ita est. 
 
 N. N. Cancellarius Episcopalis." 
 
 201. Following- is the diocesan chancellor's certi- 
 fication regarding the title of patrimon}^ under which 
 a candidate seeks ordination from his bishop: 
 
 *'Per praesentes litteras testimoniales omnibus ego 
 infrascriptus cancellarius fidem facio clericum N. N. 
 patrimonio praeditum esse, prout constat ex instru- 
 ment© assignationis et constitutionis ejusdetn facto 
 
 die m. A. D. , per notarium N. N. 
 
 mihique exhibito, idemque patrimonium consistere 
 in pra^dio (vel alias) et esse annui redditus scu- 
 tatorum. Insuper testificor dictum patrimonium a 
 Rev^. D. Vicario g-enerali hujus curiae esse approba- 
 tum, ita ut ad titulum illius dictus clericus N. N. 
 ad sacros ordines promoveri valeat, si ita videbitur 
 expedire 111^ et Rev?i^ D. Episcopo. Denique 
 testor supradictum N. N. vere et pacifice dictum 
 patrimonium possidere et fructus percipere, prout 
 
198 LEGAL FORMULARY. 
 
 testes super praedictis a me examitiati deposuerunt, 
 ac de omnibus constat ex meis actis. In quorum &c. 
 
 N. N. Canceliarius Episcopalis." 
 
 > 
 
 202. Following- is a copy of the oath to be taken 
 and sig-ned by a cleric to be ordained titiilo missionis. 
 The paper is to be retained in the chancery: 
 
 "Eg'o N — filius N — dioecesis (vel vicariatus) N — 
 spondeo et juro quod postquam ad sacros ordines 
 promotus fuero, nullam relig^ionem, societatem aut 
 congfre^ationem reg^ularem sine speciali Sedis Apos- 
 tolical licentia aut S. Conoreg-ationis de Prop. Fide 
 ing'rediar neque in earum aliqua professionem emit- 
 tam. Voveo pariter et juro quod in hac diocesi (vel 
 vicariatu) et (inseri debet ^r6>?7^V^<::^« ex decreto S. C. 
 Prop. Nov. 30, 1885) provincia perpetuo in divinis 
 administrandis laborem meum ac operam sub omni- 
 moda directione et jurisdictione R. P. D. pro tem- 
 pore Ordinarii pro salute animarum impendam, quod 
 etiam praestabo si cum pra^dictae Sedis Apostolicse 
 licentia relig-ionem, societatem aut conofre^ationem 
 reg"ularem ing-ressus fuero et in earum aliqua pro- 
 fessionem emisero. Item^voveo' et juro me pra^dic- 
 tum juramentum et ejus oblig-ationem intelligere et 
 observaturum. Sic me Deus adjuvet et haec sancta 
 Dei evangfelia." 
 
 203. Application for a chang-e of province may be 
 made to the S. Propaganda in this form: 
 
 "Eminentissime Princeps. 
 
 N. N. sacerdos titulo missionis ordinatus pro dioe- 
 cesi N — , annuente suo Episcopo humiliter petit dis- 
 
 pensationem a juramento die m. a. d. 
 
 emisso, ita ut in dicecesim N — alterius provincial 
 ecclesiastical licite sub simili titulo missionis et jura- 
 mento incorporari valeat. 
 
TESTIMONIAL'S FOR ORDERS. 199 
 
 Purpuram deosculans, summa qua par est rever- 
 entia et devotioiie permaneo, 
 
 Eminentiae Vestrse 
 
 Submississimus " 
 
 "Libenter annuimus et commendimus. 
 
 N. N. Episcopus N." 
 
 204. When regulars are to receive from their 
 superiors dimissorial letters for ordination they first 
 obtain a certificate of examination and competence 
 from the examiners of the order; but the bishop may 
 also examine them (except the Jesuits) before ordi- 
 nation. FoUowinof is a form for certifying- to 
 examination: 
 
 "Nos infrascripti pro examinandis alumnis juxta 
 ordinis constitutiones deputati, cunctis ad quos 
 spectat providere, per praesentes testamur clericum 
 N — in nostra relig^ione professum et in ordinibus N — 
 exercitatum, coram nobis personaliter constitutum 
 et probe examinatum, fuisse ad ordines sacros 
 idoneum et habilem repertum; ipsumque propterea 
 qui ad episcopum suum ordinarium dimittatur pro 
 illis suscipendis dio-num reputamus. In quorum 
 4&C. Datum &c. 
 
 N. N. S. Theolog-ia^ professor et ordinis examinator. 
 
 N. N. S. Theolog-iaiprofessoret ordinis examinator." 
 
 205. Following" is a form for dimissorial letters to 
 be g-iven by the superior of a reg^ular order that an 
 inferior may be ordained by the diocesan bishop: 
 
 "N.N. in sa?culo N.N. (ordinando) salutem. Humil- 
 itas et pietas quas profitemur nos cog-unt et inipellunt 
 ut selectos et probatos juvenes (vel ministros) ad ser- 
 viendum Deo in nostra relig"ione coelitus vocatos ad 
 sacra munera obeunda promoveri ad ordines curemus. 
 Cumque te ad liabitum relig^ionis admissum {vcl 
 libera voluntate in relig"ione nostra professum) et in 
 
200 LEGAL FORMULARY. 
 
 conventu N — de familia existentem, debita setate, 
 morumque honestate praeditum, leg"itimis natalibus 
 ortum, sacro chrismate delibutum, nee aliquo 
 canonico inipedimento, quod sciamus; innodatum; 
 necnon per examinatores nostros idoneum repertum 
 et admissum noverimus ; tenore pra^sentium cum 
 salutaris obedientiae nierito, ad IHmum qi RevHlliS} D. 
 I^piscopum tuuni N. N. mittimus, eumque humiliter 
 rog"amus ut tibi sic dimisso et licentiato, hisproximis 
 
 quatuor temporibus mensis (vel alio tempore 
 
 juxta circumstantias) clericalem tonsuram, ostiar- 
 iatus, lectoratus, exorcistatus et acolitatus ordines 
 minores pro necessitate nostrarum ecclesiarum omnes 
 simul (si sibi expedire videatur) interstitiis etiam non 
 servatis, (pro sacro ordine inseritur "ad titulum 
 relig^iosae paupertatis") conferre digfnetur. Pro quo 
 et etiam pro nobis Deum precari non cessabis. 
 Datum &c. 
 
 [l. s.] N. N. Provincialis Ord. N. 
 
 N. N. Secretarius." 
 
 By making- proper changfes the above form may be 
 used by a regular superior in g-ranting- dimissorial 
 letters for sacred orders. In such case the order 
 which the candidate has already received should be 
 mentioned and also the title "ad titulum relig*iosae 
 paupertatis" under which he is to be ordained. 
 
 206. When the diocesan bishop is not holding- an 
 ordination and reg-ulars therefore wish to be ordained 
 by some other bishop the following- form of letters 
 should be obtained for presentation to the bishop 
 who is requested to ordain such reg'ulars: 
 
 "Universis et sing-ulis praesentes litteras testi- 
 moniales inspecturis notum facimus et testamur, 
 quod in proximis quatuor temporibus futuris mensis 
 — in liac civitate N — neque in alio dioecesis loco ob 
 adversam valitudinem (sive aliud impedimentum) 
 
CERTIFICATE OF ORDINATION 201 
 
 Illustrissimi et Reverendissimi D. mei Episcopi, 
 ordinationes non celebrabuntiir. In quorum fidem 
 &c. Datum &c. 
 
 [ly. s.] N. N. Vicarius Generalis. 
 
 N. N. Cancellarius." 
 
 207. PoUowino- is a form of letters testifying to 
 the ordination of an individual: 
 
 "N. Dei et Apostolicse Sedis gratia Episcopus N. 
 Universis et singulis pra^sentes nostras testimoniales 
 litteras visuris et lecturis fidem indubiam facimus et 
 
 testamur quod Nos die mensis anni , 
 
 (sabbato quatuor temporum vel alias) generalem 
 ordinationem habentes in nostra ecclesia cathedrali 
 inter missarum solemnia, dilectum in Christo N. N. 
 (si est exterus inseritur "cum litteris dimissorialibus 
 Rmi ;n^ ]sj^ gui Ordinarii") examinatum, approba- 
 tum, idoneumque repertum per examinatores a Nobis 
 deputatos, ad ordinem (si ordo est sacer exprimat 
 titulum missionis, patrimonii vel alii ad quem ordi- 
 navitj juxta ritum S. R. I^cclesia^, servatis forma 
 Sacri Cone. Tridentini ac decretorum S. Congrega- 
 tionum aliisque de jure servandis, in Domino rite 
 promovimus. 
 
 [iv. s.] N. Episcopus N. 
 
 N. Cancellarius Episcopalis." 
 
 208. When a person has been ordained by dispen- 
 sation the following form may be used with proper 
 changes: 
 
 "N. Dei et Apostolicae Sedis gratia Episcopus N. 
 Per prsesentes cunctis testamur, quod Nos, vigore 
 
 facultatum a Sancta Sede Nobis die A. D. 
 
 concessarum, in nostra ecclesia cathedrali (vel 
 capella) dilectum Nobis in Christo N. N. examina- 
 tum, approbatum, idoneumque repertum et dispensa- 
 tione Apostolica ab impedimento — habilem eifectum, 
 die — mensis — a. D. — ad subdiaconatus, die vero — 
 27 
 
202 LEGAL FORMULARY. 
 
 ejusdem mensis et anni ad diaconatus, die denique 
 — ejusdem etiam mensis et anni ad presbyteratus 
 sacros ordines ad titulum missionis inter missarum 
 solemnia, adhibitis solemnitatibus .juxta ritum 
 Sanctie Romanae I^cclesiae et servatis forma Sacri 
 Cone. Tridentini aliisque de jure servandis promo- 
 vimus. In quorum &c. 
 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellerius Episcopalis." 
 
 209. The following* form of dimissorial letters may 
 be used with proper chano-es when a bishop gfrants 
 permission to another bishop to ordain a subject who 
 is absent from his diocese in a seminary: 
 
 "N. Dei et Apostolicae Sedis g-ratia E)piscopus N. 
 Dilecto Nobis in Christo N. N. salutem in Domino: 
 Ut tu, a nostra dioecesi studiorum causa absens, 
 qui leg"itimis es procreatus natalibus, (morum probi- 
 tate ornatus — satius omittitur si absentia est long"a) 
 aitate leg"itima, ac in clericali tonsura constitutus, 
 nulloque, quod sciamus, canonico impedimento, quo- 
 minus ad ordines promoveri possis, reperiris deten- 
 tus, ab 111^^ et RevE2 D. N. N. in propria vel aliena 
 dioecesi, de Ordinarii loci licentia ordinationes ten- 
 ente (vel a quocunque IllE^ et Rev^ D. Antistite 
 rite et canonice promoto g'ratiam et communionem 
 Sanctae Sedis Apostolical habente, quem ideo adire 
 malueris) ad ostiariatus, lectoratus, exorcistatus et 
 acolytatus minores ordines promoveri possis et 
 valeas; dummodo quoad litteraturam idoneus reperi- 
 aris, super quo conscientiam ordinantis oneramus, et 
 intra sex menses praesentibus utaris et non alias, tua 
 absentia non obstante, licentiam et facultatem utri- 
 que concedimus. In quorum &c. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Epis." 
 
 If the dimissorial letter is directed to the Cardinal 
 
DIMISSORIAL LETTERS. 203 
 
 Vicar of Rome or to any other cardinal the clause 
 ''super quo conscientiam ordinantis oneramus" is 
 omitted on account of his dig"nity. In such case also 
 the title "Eminentissimus N. Cardinalis N." should 
 be inserted. 
 
 210. Following* is a form which may be used for 
 dimissorial letters for a student in Rome: 
 
 "N. Kpiscopus &c. Tibi dilecto Nobis in Christo 
 N. N. leg'itimis natalibus procreato, in acolytatus 
 ordine (vel tonsura clericali) et aetate leg*itima vi^in- 
 tiquatuor annorum completorum constituto, morum- 
 que probitate ornato, in ecclesia parochiali N. ex 
 praiscripto S. Cone. Tridentini proclamato, nullaque 
 censura ecclesiastica aut alio canonico impedimento 
 innodato, quod sciamus, aliisque a jure requisitis 
 praedito, ut ab Eminentissimo et Reverendissimo D. 
 Cardinali N. Urbis Vicario, sive illius IllH12et RevE2 
 vices Gerente in eadem Urbe, pontificalia exercente, 
 statutis a jure temporibus ad sacros subdiaconatus, 
 diaconatus et presbyteratus ordines debitis servatis 
 interstitiis aut illis non servatis cum dispensatione 
 tamen Apostolica, ad titulum missionis, pro utilitate 
 nostrae dioeceseos, praestito prius consueto juramento, 
 promoveri possis et valeas.licentiam et facultatem 
 in Domino impertimur et concedimus; dummodo 
 tamen quoad scientiam idoneus et habilis reperiaris, 
 cum Nos propter tuam absentiam a nostra diciecesi 
 de ea cogfuoscere nequiverimus. Volumus etiani, ut 
 tu postquam fueris ordinatus, pra^cipue in ordine 
 presbyteratus, exhibere tenearis in nostra cancellaria 
 testimoniales litteras tuae ordinationis infra duos 
 menses sub poena suspensionis ipso facto incurrenda, 
 Nobis reservata. In quorum &c. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Epis." 
 
 211. When a person is to be ordained for another 
 diocese, it is required that he present testimonial 
 
204 ' LKGAL FORMUL^ARY. 
 
 letters from the bishop of the diocese wherein he has 
 dwelt a sufficient time to contract an impediment. 
 Before g-iving* letters of recommendation the bishop 
 should make dilig^ent inquiries. The testimonial let- 
 ters must be given and sig-ned by the bishop himself, 
 not by the vicar general unless by special mandate 
 which should then be mentioned. {Cj.S. Con. Cone, 
 sii^ra c. S\ sess. 2j de reform.) 
 
 "N. Episcopus &c. Per prsesentes cunctis indu- 
 biam fidem facimus atque testamur, dilectum in 
 Christo N. N., qui ratione originis (vel alias) huic 
 nostrae jurisdictioni noscitur subjectus, pro tempore 
 quo in loco N — in quo ex legitimo matrimonio natus, 
 educatus et commoratus fuerit, suse probitatis speci- 
 men dedisse, bonaque fama, vita ac moribus praeditum 
 fuisse et ex hac nostra dioecesi annos natum — nullo 
 delicto quod infamiam irrog^et patrato, nullaque 
 ecclesiastica censura aut alio canonico impedimento, 
 quod sciamus, innodatum discessisse, quominus ad 
 minores seu majores sacros ordines ab I11E12 et Rev^ 
 D, Episcopo N. N. juxta canones promoveri possit. 
 In quorum fidem has testimonials litteras manu 
 nostra subscriptas expediri jussimus. Datum &c. 
 [l. s.] ' N. Episcopus N. 
 
 N. N. Cancellarius Episcopalis" 
 
 212. Testimonial letters combined with commen- 
 dation are g"iven by the bishop to a priest about to 
 leave the diocese on vacation or business. Follow- 
 ing* is a g"eneral form: 
 
 *'N. N.Deiet Apostolicae Sedis g^ratia Episcopus N. 
 
 Dilecto Nobis in Christo Revdo D. N. N. (S. T. D.) 
 Rectori (presbytero) ecclesi^ S. N — , in loco N. 
 dioecesis nostrae, salutem in Domino. Cum propter 
 rationes a Nobis cog'nitas et admissas ab ecclesiatua 
 abesse cupias, libenter tibi, relicto in cura substituto 
 
TESTIMONIAL LETTERS. 205 
 
 a Nobis prius approbando, licentiam discedendi per 
 tres menses tantum valituram concedimus et impert- 
 imur; attestantes te esse sacerdotem bonis moribus 
 imbutuni et ab hac nostra di(]ecesi abire nulla cen- 
 sura ecclesiastica neque alio canonico impedimento 
 aut poena, quod sciamus, irretitum. Quare omnes ad 
 quos declinabis, pra^sertim in Christo PP. IHmos 
 et RevE25 Episcopos aliosque ecclesiarum niinistros 
 et officiales rog^amus, ut ad sacrificiuni missa3 
 celebrandum et ad alia divina officia exercenda 
 admittant et in cuuctis faveant ac tueantur. In 
 quorum fidem prffisentes litteras manu nostra sig"- 
 natas sigilloque nostro munitas exarari jussimus. 
 Datum &c. 
 
 [l. s.] N. Kpiscopus N. 
 
 N. N. Cancellarius Episcopalis." 
 
 213. Following" is a form of commendation for a 
 priest living away from his diocese with permission: 
 
 "N. Episcopus N. Dilecto Nobis in Christo Revdo 
 N. N. Tibi qui nullum officium nee beneficium quod 
 residentiam requirat in hac dioecesi possides et a 
 nonnuUis annis ad tua honesta negotia peragenda 
 (vel ad valitudinem conservandam) ab eadam cum 
 licentia nostri prsedecessoris (vel nostra) discessisi; 
 modoque Romam (vel Kuropam) petere cupis, prout 
 certiores Nos fecisti, obedientia simul praestata, 
 licentiam libenter concedimus et in Domino imperti- 
 mur; attestantes te esse sacerdotem bonis moribus 
 imbutum et discessisse ab hac dioecesi nulla censura 
 ecclesiastica seu canonico impedimento irretitum, 
 quod sciamus, quominus sacriiicium missse ubique de 
 licentia Ordinarii locorum, et alia divina officia cele- 
 brare possis. In quorum &c. Datum &c. 
 [l. s.] N. N. Episcopus N. 
 
 N. N. Cancellarius." 
 
 214. It is sometimes necessary to certif}^ to the 
 health or life of a cleric, so that he may resign in 
 
206 LEGAL P'ORMULARY. 
 
 favor of another or may continue drawing- a pension 
 or annuity. The following" form may be used in 
 such and similar cases with proper chang-es: 
 
 * 'N. Episcopus N. (sive vicarius g-eneralis N.) Uni- 
 versis fidem indubiam facimus et testamur per prae- 
 sentes N. N. bona et iirma valetudine praeditum, 
 sanum et incolumem vivere ut ex ejus aspectu et col- 
 loquio hodiein hac civitatecum illo habito digfnoscere 
 potuimus, et sic publice ab omnibus reputari percipi- 
 mus. Ideo ad ejus instantiam has testimoniales lit- 
 teras nostra manu subscriptas et sigfillo munitas 
 expediri jussimus. Datum &c. 
 [l. s. N. Episcopus N. sive Vicarius G. 
 
 N. N. Cancellarius." 
 
CHAPTER VII. 
 
 SACRAMENT OF MATRIMONY. 
 
 215. Matrimony is a sacrament by which a bap- 
 tised man and woman are leg'ally united by their 
 mutual consent in an indissoluble marriagfe. From 
 the very institution and nature of this sacrament and 
 from the will of Christ instituting it, in the marriao;"e 
 of baptised persons the contract itself and the sac- 
 rament are inseparable. Hence the rig^ht of making- 
 laws reg'arding' the marriage of christians pertains 
 to the church vs^hich is the g*uardian of the sacra- 
 ments. The marriaofe of unbaptised persons is not 
 subject to ecclesiastical law, but is regulated by 
 the state. The state may also make for its own 
 needs certain external regulations for the marriage 
 of christians, such as requiring* a license stating the 
 ages, occupation and other qualities of those intend- 
 ing to get married. 
 
 216. For the validity of a marriage it is required 
 that the parties be competent, that their consent be 
 expressed by words of the present tense, and, where 
 the decree '' Tayiictsf is published, also before the 
 parish priest and two witnesses. {See notef). 2jj.) 
 It should be noted that a marriage whose nullity is 
 known in the forum of conscience, cannot therefore 
 be declared null in the public forum. Neither can 
 the parties be allowed to re-marry so long as the 
 
 207 
 
208 LEGAL FORMULARY. 
 
 impediment of the previous marriag^e remains occult 
 and the nullity is not proved in the external forum. 
 Hence the impediment should be made known and a 
 public declaration of nullity obtained. 
 
 217. For the licity of marriag-e it is required that 
 usually the consent of parents be obtained, and that 
 previous proclamation of the intended marriag-e be 
 made three times in the parish church of the contract- 
 ing- parties. At least one proclamation should be 
 made also in those regfions and parishes in which the 
 council of Trent has not been published. ^Cf. Zitelli, 
 Afp. J. E. p. 40J.) Through decisions of the Sacred 
 Cong-, of the Council, althoug-h the question of law 
 was not decided, it follows from the principles quoted, 
 that the proclamations may be made also on sup- 
 pressed feast-days, provided there is a solemn cele- 
 bration and a concourse of people. {June 77, 1780; 
 Apr. ig, 182J; Apr. 7, 1862.) 
 
 The proclamations of the banns should be made 
 only at the request of the contracting parties them- 
 selves, after inquiring* whether both freely consent 
 to the marriag-e. Parish priests may not omit the 
 proclamations without the consent of the ordinary, 
 and bishops are admonished by Benedict XIV, Const. 
 Satis Vobis, not to be easy in remitting the procla- 
 mations. Nevertheless when there is a legitimate 
 reason a dispensation not only may but sometimes 
 should be given from even all proclamations. The 
 bishop, his vicar general and the administrator of a 
 diocese may grant such dispensation. A parish 
 priest may also do so, when recourse to the bishop 
 cannot be had and when at the same time the cause 
 is such and so great that the bishop is bound to grant 
 
MARRIAGE IN CHURCH. 209 
 
 the dispensation. Legitimate reasons for dispensa- 
 tion are: Probable fear or suspicion that the mar- 
 riage will be impeded maliciously, or dan«-er for 
 body, soul or reputation of the contracting^- parties. 
 
 218. The punishment for omitting- the proclama- 
 tion of the banns is suspension for three years. This 
 however, is fercndcc senteiiticB. {Cf. C. Cum inJiib- 
 itio dc ClcDi. Spo7i.) "Si parochialis sacerdos tales 
 (contrahentes) sine denuntiationibus conjunxerit, per 
 trienniuni ab officio suspendatur." The second pun- 
 ishment is a penance for the contracting- parties, and 
 the third is that, if a diriment impediment renders 
 such a marriag-e null, the offspring- will be consid- 
 ered illeg-itimate and a dispensation from the impedi- 
 ment will be obtained only with g-reat difficulty. 
 
 219. Matrimony is to be celebrated in the parish 
 church, not in private oratories and much less in 
 private houses unless the ordinary g-ives special per- 
 mission. {S. Cong. Propaganda in re-ply to the 
 Archbishop of St. Louis, Jaii, i8g8; Cf. Monacelli, 
 /, /. 2,f. 2, n. 7.) Marriag-e should be celebrated in 
 the morning-, not in the evening-, chiefly because 
 there should be a nuptial mass without which the 
 special nuptial blessing- cannot be g-iven. This 
 blessing- should not be confounded with that of the 
 Roman ritual, which can be g-iven always. Further 
 it should be noted that "althoug-h spouses should be 
 exhorted to receive the nuptial blessing- (g-iven only 
 in mass) still the}' cannot be compelled to receive it" 
 and therefore cannot be compelled to the mass. (6/. 
 S. R. C. Sept. /, i8j8.) The sacrament of matri- 
 mony should be received in the state of g-race, and 
 the parties should receive holy communion during* 
 
 28 
 
210 LEGAL FORMULARY. 
 
 the nuptial mass. Reg'arding' the ttiarria«*e of those 
 who are notoriously under censure of the church, 
 such for instance as belong" to condemned societies, 
 according- to an instruction of the Sacred Peniten- 
 tiary, Dec. 10, 1860, the pastor should strive to get 
 the party to become reconciled with the church. If 
 this is impossible and grave complications would 
 ensue unless the marriage were performed, the pastor 
 should consult the ordinary who after carefully 
 weigfhing the circumstances will decide what had best 
 be done, always excluding the celebration of mass. 
 
 220. It is a dog"nia of catholic faith that lawful 
 and consummated marriag^e cannot be dissolved ex- 
 cept by the death of one or the other party. Even 
 adultery is not a cause for full divorce, though it is 
 a sufficient reason for perpetual separation without 
 the re-marriage of either party. A separation may 
 also be licit by mutual consent for reasons of greater 
 perfection when one or both parties enter religion. 
 Another cause is heresy or apostacy from the faith 
 and a fourth cause is any g^rave dang^er for soul or 
 body, so long' as such danger lasts. In all such 
 cases the ecclesiastical judg-e should be consulted 
 and a declaration obtained. 
 
 221. There are some impediments which render 
 marriage illicit, though not invalid. A simple vow 
 of chastity taken either in a religious community or 
 privately, unless a dispensation is previously ob- 
 tained, renders the contracting" party, thus impeded, 
 guilty of mortal sin. The simple vows taken by 
 members of the Society of Jesus render later mar- 
 riage also null as well as illicit. 
 
 Marriag'e should not be solemnised during the for- 
 
IMPEDIMENTS TO MARRIAGE. 211 
 
 bidden times, that is from the first Sunday of Ad- 
 vent to Epiphany and from Ash Wednesday to the 
 octave of Easter inclusively. Durin*^ these times 
 marriag-e may be celebrated, but without solemnity. 
 {Cf. Benedict XIV, lust, 80.) Sometimes by spec- 
 ial law or custom the marriag^e itself is prohibited, 
 and then permission for it is required from the ordi- 
 nary. During these closed times the special nuptial 
 mass and blessing- are forbidden; neither should there 
 be a weddingf feast. 
 
 A promise of raarriao-e to another person is an im- 
 pediment prohibiting- marriag-e with anyone else 
 until proper dispensation or solution of the oblig-a. 
 tion has been obtained. A special prohibition, either 
 of the bishop or the Roman Pontiff while a supposed 
 impediment is being- investig-ated or for some other 
 cause, is also a prohibiting- impediment. 
 
 222. The impediment of mixed relig-ion is a prohi- 
 bition of marriag-e between catholics and baptised 
 persons who are not catholics. If the non-catholic 
 party is not even baptised then the impediment be- 
 comes also a diriment one, and is called "disparity of 
 worship." The church has always been opposed to 
 these marriag-es because of the dang-er of perversion 
 for the catholic party and the children and because 
 of the communion of catholics with heretics or 
 schismatics in sacred thing's. Only the Roman Pon- 
 tiff for a g-rave reason can dispense in these mar- 
 riag-es. When a catholic asks for a dispensation to 
 marry a non-catholic the ordinary should endeavor 
 to procure the conversion of the non-catholic party, 
 or dissuade the catholic from the marriage. If this 
 is not possible and if there are just reasons for dispen- 
 
212 le:gal formulary. 
 
 sation, or a well-grounded fear of a civil marriag^e, 
 then, if the ordinary has an apostolic indult, as our 
 bishops have, he may g^rant a dispensation, provided 
 there is no fear of perversion for the catholic party, 
 and provided the non-catholic party sigfn and intend 
 to keep promises, that 1^ he will not interfere with 
 the relig"ion of the catholic party, 2° that all children 
 born of the marriag'e shall be broug"ht up catholics. 
 The catholic party should also ag"ree to work for the 
 conversion of the non-catholic to the true faith. - 
 
 These marriag*es are to be celebrated not in the 
 church but in the parochial rectory, and the priest is 
 not allowed to use any sacred vestments, nor g-ive 
 the nuptial blessing*. In special cases where g^raver 
 dang^ers are feared from a refusal, the ordinary may 
 allow the priest to use the usual form of the Ritual 
 for marriag'e, but always excluding* the celebration of 
 mass. \Cf. Piitzer Comvient. in Facilitates^ n, 21 g.) 
 
 223. The diriment impediments which render mar- 
 riag*e null are induced either by natural or divine 
 law or by ecclesiastical law. All, even unbaptized 
 persons, are bound by impediments of natural or divine 
 law; only baptised persons are bound by those of 
 ecclesiastical orig"in. Heretics are bound by these 
 impediments even that of clandestiny, except where 
 in certain circumstances they are declared free there- 
 from. 
 
 Defective consent is a diriment impediment. Con- 
 sent may be defective because of a substantial ante- 
 cedent or concomitant error reg^arding* the person, 
 but not reg^arding- the qualificatious of the spouse. 
 This impediment is founded on natural law. 
 
 A eonditio)i of slavery in which one or both con- 
 
IMPEDIMENTS TO MARRIAGE. 213 
 
 tracting- parties exist unknown to the other, is a 
 diriment impediment. This impediment does not 
 affect the person substantially, but only accidentally 
 and is therefore of ecclesiastical not natural law. 
 
 The impediment oi force or fear is present when 
 the fear is great and produced by a free cause, un- 
 justly inducincr it in order to extort marriag-e. It 
 seems a very difficult impediment to prove leo-ally. 
 
 224. The impediment of abduction is the violent 
 carrying- away of a woman for the sake of marr3'ino;- 
 her. For this impediment to exist it is necessary 
 that the woman be really abducted or transferred 
 from one place to another, that she be unwillino- and 
 that the abduction be made for the reason of marry- 
 ing- her. This impediment endures so long- as the 
 woman is in the power of the abductor. Excommu- 
 nication is inflicted on abductors of women and they 
 become perpetually infamous as well as all who 
 assist in the abduction. It matters not whether the 
 woman be a virsfin or a widow, whether of o'ood or 
 bad morals, provided she be abducted for the cause 
 of marriag-e. 
 
 225. Immature «^^ is a diriment impediment of 
 ecclesiastical orig-in. Males must be fourteen and 
 females twelve years of ag-e before marriag-e can be 
 leg-ally contracted, unless wickedness has supplied 
 for defective ag-e. Insanity is also an impediment 
 because of w^ant of free will. 
 
 Perpetual impotence before marriag-e is a diriment 
 impediment founded on natural law, especiall}' if 
 impotence is absolute. In matrimonial cases reg"ard- 
 ing- this impediment the various prescribed solemnities 
 must be exactly followed, as found in the instruction 
 
214 LEGAL J'ORMULARY. 
 
 of the Propag"anda, {Causa' Matr. i88^, 71.46,) and 
 the impotence must be fulh^ shown. {Cf. Feije 
 De Ivipcd. Mat. c. 24.) 
 
 226. The defect of liberty or the boi?d of a -prior 
 viarriag'e is a diriment impediment to a subsequent 
 marriagfe; but it is required that the prior marriag'e 
 be validly contracted and that it still exist. A mar- 
 riag'e once validly contracted ceases to exist by the 
 death of one or the other part3^ Among- baptised 
 persons, a marriage which is validly contracted in- 
 deed, but not yet consummated, also ceases by papal 
 dispensation a viatrimonio rato ct non consuinmato, 
 and by the solemn vows made by one of the spouses 
 in a relig-ious order. Among' unbaptised persons, 
 when marriag'e has been validly contracted and even 
 consummated, and one party becomes converted to 
 the catholic faith and the other refuses to live with 
 the converted party without contumely of the Crea- 
 tor, the convert, using" the Pauline privileg^e, may 
 contract marriag'e with a catholic and the former 
 marriag'e becomes dissolved b}^ the latter. To pre- 
 vent complications a civil divorce should be obtained 
 under direction of the ordinary. The interpellation 
 of the infidel spouse should be made in reg'ular form 
 whenever possible. When not possible an apostolic 
 dispensation may be granted, for which some bishops 
 have an indult; but in such case a summary of the facts 
 showing' the impossibility of interpellation tshould 
 previously be made and preserved, and a minute 
 thereof entered in the marriag'e record. 
 
 227. The impediment of crime is of ecclesiastical 
 orig-in for the protection of married life. In order to 
 remove temptation, the church invalidates marriage 
 
IMPEDIMENTS TO MARRIAGE. 215 
 
 between partners in certain crimes, adultery and 
 murder, which are committed with a view of break- 
 ing' up an existing- marriag"e and contracting" a new 
 one. Also in order that marriag-e may always be 
 proved and may not be kept secret the impediment of 
 clandcstinity was decreed by the council of Trent. 
 Where this decree, called '' Tamctsi,'' has been pub- 
 lished, the marriage of baptised persons must be cel- 
 ebrated before their parish priest and two witnesses, 
 otherwise it is declared null and invalid. ^See note 
 p. 2JJ.) The Holy See has made special declarations 
 regfarding" heretics who d\vell in countries where 
 the decree has been published. 
 
 228. Relationship is a diriment impediment and it 
 has various forms. Natural or carnal relationship 
 prohibits marriag^e in the direct line indefinitely and 
 collaterally to the fourth deg-ree. Spiritual relation- 
 ship arising- on account of the sacraments of baptism 
 and confirmation, prohibits marriage between the 
 person who baptises or the sponsors on the one 
 side, and the person baptised or confirmed or his 
 father or mother on the other. Relationship by mar- 
 riag-e, called affinity, prohibits and dissolves marriag-e 
 betw^een the husband and the relatives of his wife to 
 the fourth collateral deg-ree, and between the wife 
 and the relatives of her husband also to the fourth 
 deg-ree collaterally. In the direct line the impedi- 
 ment extends indefinitely. In cases of illicit or extra- 
 matrimonial intercourse affinity impedes marriag-e to 
 the second collateral deg-ree, and indefinitely in the 
 direct line. 
 
 229. Public ho)iesty is an impediment arising- from 
 absolute or valid espousals or betrothal and annuls 
 
216 LEGAEv FORMULARY. 
 
 marriage between the man and the relatives of the 
 woman, and vice versa, to the first deg'ree for a be- 
 trothal, but for a ratified marriag*e to the fourth de- 
 gree included. It is entirely of ecclesiastical orio-in. 
 
 Another impediment, also of ecclesiastical origin, 
 is a sacred order, which, especially since the council 
 of Trent, prohibits marriage under pain of nullity, 
 without however dissolving it if already contracted. 
 
 SolenDi vozus taken in a religious order either by 
 a man or a v^oman are a diriment impediment to sub- 
 sequent marriage, and also annul a previously con- 
 tracted marriage if unconsummated. 
 
 For an extended treatment of the various impedi- 
 ments special treatises should be consulted. The 
 bishops of the United States have extensive facul- 
 ties from the Holy See for dispensing in matrimonial 
 impediments. A list of these faculties is given in 
 the following chapter. Some forms useful in matri- 
 monial cases are given below. 
 
 230. Testimonial letters showing freedom to marry: 
 
 "N. E^piscopus N. Universis et singulis ad quos 
 praesentes nostrae litterse pervenerint, fidem facimus 
 et testamur N. N. de loco N. nunquam habuisse 
 nee de pra^senti habere virum (vel uxorem,J sed esse 
 in statu libero ad matrimonium contrahendum, prout 
 ex depositionibus testium, coram nostro vicario gen- 
 erali medio eorum juramento examinatorum, plene 
 constat. In quorum &c. Datum &c. 
 [L. s.] N. Episcopus N. 
 
 N. N. Cancellarius Epis." 
 
 If the letter is to certify only for the time during 
 which a person was in the diocese these words may 
 be used with the above form: "attestamur N. N. de 
 
MARRIAGE IN HOUSE. 217 
 
 locoN — mense — anno — discessisse ab hac dirjecesi 
 in statu libero &c. " 
 
 231. Permission to contract marriag'e durin<:^ the 
 forbidden times may be given in the followinf^ form: 
 
 "N. EpiscopusN. &c. Tibi N. N. parocho (vel 
 presbytero) ecclesi^e N. ut in matrimonium per verba 
 de pra^senti in facie ecclesia3, praemissis in tribus 
 continuis diebus festivis denuntiationibus, ac servata 
 in reliquis forma in Rituali Romano pra3scripta, N. N. 
 et N. N. nullo detecto ad contrahendum impedi- 
 mento, absque tamen personarum comitatu, omissa- 
 que omnino benedictione nuptiali, necnon conviviis et 
 aliis vana3 la3titiae sig-nis, conjung^ere possis, non 
 obstante tempore currenti adventus (vel quadragesi- 
 mal) justis de causis facultatem concedimus et dis- 
 pensamus. Datum &c. 
 [l. s.] N. N. Cancell. E^pis. N. Episcopus N." 
 
 232. The bishop has an undoubted right to prohi- 
 bit the celebration of marriage in a private house. 
 {Cf. Monacelli, /, t. 8, f. ii ; Reply of Propaganda 
 
 Jan. iSg8, to the Archbishop of St. Loicis.) But if 
 there should be good and sufficient reasons the bishop 
 may grant permission to have the ceremonies of the 
 Roman Ritual, not the mass, performed in the home 
 of one of the contracting parties. Following is a form : 
 
 "N— Episcopus N— &c. Tibi, N. N., parocho 
 (vel presbytero) ecclesi^ N — ut in matrimonium per 
 verba de preesenti et servata forma in Rituali Romano 
 pra^scripta, absque tamen benedictione nuptiali, et 
 dummodo factse fuerint tres publicationes in ecclesia 
 diebus festivis continuis, et nullum detectum sit 
 impedimentum ad contrahendum, domi conjungere 
 possis N. N. et N.N. licentiam et facultatem con- 
 cedimus justis de causis. Datum &c. 
 [l. s.] ' N. N. Cancell. N. Episcopus N." 
 
 29 
 
218 LEGAIv FORMULARY. 
 
 In case of a mixed marriag^e this form may be used: 
 
 "N — Episcopus N— &c. Tibo N. N, parocho 
 (vel presbytero) ecclesiae N — ut in matri.monium per 
 verba de pr^senti, et servata forma in Rituali pro 
 mixtis matrimoniis praescripta, omissaque omnino 
 missa cum benedictione nuptiali, dummodo non aliud 
 impedimentum detectum fuerit quam disparitatis 
 cultus (mixtae relio-ionis) super quo vi facultatum a 
 
 SS. Papa Nostro N. die m. anno Nobis 
 
 ad quinquennium concessarum, jam dispensavimus, 
 domi conjunjjfere possis N. N. et N. N. licentiam et 
 facultatem iustis de causis concedimus. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Epis." 
 
 233. When objection is made to a raarriag'e because 
 of a previous betrothal, the bishop having- examined 
 the objection and made a judicial decree that it is 
 irrelevant may use the following* form: 
 
 "N. Episcopus N. &c. Tibi N. N. parocho (vel 
 presbytero) ecclesise N — ut in matrimonium per 
 verba de praesenti in facie ecclesise, factis prius in 
 tribus continuis diebus festivis denuntiationibus, ac 
 in reliquis servata forma in Rituali Romano prae- 
 scripta, N. N. et N. N., nullo alio detecto impedi- 
 mento ad cdntjahendum, quam assertorum sponsa- 
 liuni cum N. N., conjungere possis facultatem con- 
 cedimus; quoniam opposita sponsalia per dictam N. 
 N. non obstare censemus. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. N., Cancellarius Episcopalis." 
 
 234. When parties have obtained from the Holy 
 See a dispensation, the bishop may use this form in 
 verifying- it and ordering- its execution: 
 
 "N. Episcopus N. &c. Tibi N. N. parocho (vel 
 presbytero) ecclesiae N — ut in matrimonium per 
 
FORMS FOR DISPENSATIONS. 219 
 
 verba de praesenti in facie ecclesi^, prsmissis in 
 tribus cotitinuis diebus festivis denuntiationibus, ac 
 servata in reliquis forma in Rituali Romano prad- 
 scripta, nullo alio detecto ad contrahendum impedi- 
 mento, quam primo affinitatis ^radu (vel alio) quo 
 invicem sunt conjuncti, super quo dispensationem 
 apostolicam obtinuerunt, conjuno-ere possis licentiam 
 et facultatem concedimus; quoniam verificatis coram 
 Nobis expositis in dicta dispensatione, illam exequi 
 volumus et mandamus. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Episcopalis." 
 
 235. Followino- is a form of interpellation to be 
 used before declaring- that the Pauline privileg-e is 
 applicable: 
 
 "By the commission and command of the Most 
 Reverend N. N. Bishop of N. and at the request of 
 N. A. a convert from infidelit3% called before bap- 
 tism N. B., I, the undersio-ned hereby require, ask 
 and warn N. C. the consort of the above mentioned 
 N. A. to express and declare by word or by authentic 
 document in (mention house and place) within thirty 
 days from the date of this notice, ten of which are 
 assig"ned for the first, ten for the second and the re- 
 maining- ten for the third summons, whether or not 
 he (or she) wishes to embrace the holy catholic faith, 
 and with a sincere heart receive holy baptism, as his 
 (or her) consort has already done, and as she (or he) 
 now earnestly asks him (or her) to do for the sake of 
 his (or her) soul; and she (or he) further asks if he 
 (or she) does not wish to embrace the true relig-ion, 
 whether he (or she) is willing- peacefuU}' to cohabit 
 with the catholic consort without striving to pervert 
 her (or him) or blaspheming- the most hol}^ name of 
 Christ or' despising- the catholic religfion. And if he 
 (or she) refuses to be converted, and declares that 
 he (or she) will not cohabit peacefully, the aforesaid 
 
220 LEGAIv FORMULARY. 
 
 consort will proceed to another marriag^e with a 
 catholic, or will enter reliofion (or take holy orders) 
 as she (or he) shall deem best for the salvation of 
 her (or his) soul. And let the aforesaid N. C. be 
 cited and he is hereby considered cited at the expira- 
 tion of the said thirty days to appear before this 
 curia to hear judg'ment pronounced and any and 
 every other necessary and opportune decree pub- 
 lished in the premises. In testimony whereof &c. 
 Given in the episcopal chancery of N — the — day of 
 — A. D. — . 
 
 N. Vicar General. 
 N. N. Bishop's Chancellor." 
 
 If the infidel spouse cannot be found and the above 
 citation cannot be served after all dilig-ent efforts to 
 find him have been used, an application for dispensa- 
 tion from the interpellation may be made to the Holy 
 See. The bishops of Canada have this faculty in 
 their extraordinary^ faculties, Form T. 
 
 236. Following- are some forms for applying to a 
 bishop for dispensations. Name of place and date 
 should be at beg^inning- of application. 
 
 "Most Reverend Bishop. Place and Date. 
 
 N. N. and N. N. of this parish of N — , throug-h 
 the undersigfued their pastor, humbly beg* a dispen- 
 sation from all (two) publications of the banns of 
 marriag-e. The reasons are: (gfive canonical rea- 
 sons.) Having- made dilig-ent inquiry I find no im- 
 pediment to their marriag-e, and I recommend g-rant- 
 ing- their request. With much respect I remain, 
 Your Lordship's obedient servant, 
 
 N. Rector of N. 
 To Most Rev. N. N. Bishop of N." ' 
 
 237. Application for dispensation for a mixed 
 marriag-e: 
 
FORMS FOR DISPENSATIONS. 221 
 
 "Most Reverend Bishop. Place and Date. 
 
 N. N. a catholic of this parish of N — wishing- to 
 marry N. N. a non-catholic, throug-h the undersio^ned, 
 his (or her) pastor, humbly beg's you, as deleg^ate of 
 the Holy See, to gfrant a dispensation from the im- 
 pediment of disparity of worship (or mixed relig-ion.) 
 The reasons are: (g"ive canonical reasons.) N. N. 
 the non-catholic party w^ho was never baptised (or 
 
 baptised in sect) makes the necessary promises, 
 
 as shown by the agfreement sent herewith. I believe 
 he (or she) will keep them and that there is no extra- 
 ordinary dano-er of the perversion of the catholic 
 petitioner. Unavailing" efforts have been made to 
 dissuade from the marriagfe. In the circumstances 
 I recommend g-ranting" the dispensation. With much 
 respect I remain, 
 
 Your Lrordship's obedient servant, 
 
 N. Rector of N. 
 To Most Reverend N. N. Bishop of N." 
 
 Pollowingf is the form of agfreement to be sigfned 
 by the non-catholic party and forwarded with the 
 application. If the non-catholic is a Jew it must be 
 specially mentioned in the application; because ex- 
 cept in urg'ent cases our bishops have no faculties 
 for such dispensation. {Cj . Extra: I), n. j, in fol- 
 lozving' chapter. ) 
 
 "Ag"reement to be sigfned by all non-catholic appli- 
 cants for dispensation to contract marriagfe with 
 members of the catholic church. 
 
 I, the undersigfned, not a member of the catholic 
 
 church wishing- to contract marriagfe with a 
 
 member of the catholic church, propose to do so with 
 the understanding- that the marriag'e bond thus con- 
 tracted is indissoluable, except by death; and I prom- 
 ise on mv word and honor, that shall be 
 
 permitted the free exercise of relig'ion according* to 
 
222 LEiGAL E'ORMUIvAKY. 
 
 — belief, and that all children of either sex born of 
 this marriag'e, shall be baptised and educated in the 
 faith and according- to the teaching's of the Roman 
 catholic church. I furthermore promise that no 
 other marriag'e ceremony than that by the catholic 
 priest shall take place. iSig^nature.) 
 
 Sig-ned in the presence of this — day of — 18." 
 
 238. Following- is a form for application for dis- 
 pensation from impediments of consang-uinity. The 
 same opening* and closing* phrases as above may be 
 used: 
 
 "N. N. and N. N. of the parish of N — throug-h 
 the undersigfned, their pastor, humbly beg- Your 
 Lordship as delegfate of the Holy See, to gfrant them 
 a dispensation from the impediment of consangfuinity 
 in the third (or other) deg-ree collateral. The can- 
 onical reasons are: Having- examined these reasons 
 and finding- them based on truth, I recommend g-rant- 
 ing- the dispensation." To be sig-ned by the rector. 
 
 239. Form of application in case of affinity: 
 
 "N. N. and N. N. of the parish of N — throug-h 
 the undersig'ned, their pastor, humbly beg- Your 
 Lordship, as deleg-ate of the Holy See, to grant them 
 a dispensation from the impediment of affinity in 
 the (second) deg-ree collateral, arising" from marriagfe, 
 N.'s first wife, now deceased, being- a (cousin) of N. 
 whom he wishes to marry. The canonical reasons 
 are: Finding- them based on truth I recommend that 
 the dispensation be g-ranted." 
 
 In case of affinity from illicit intercourse, fictitious 
 names should be g-iven in the application. 
 
 240. Form for applying- for sanatio i)t radice: 
 
 "N. A. (fictitious) wishing- to validate his (or her) 
 marriag-e with N. B. (fictitious") through his (or her) 
 confessor humbly beg-s Your Lordship, as delegate 
 
FORMS FOR DISPENSATIONS. " 223 
 
 of the Holy See, to grant a dispensation i)i radice^ 
 removing' the impediment of [affinity in the first col- 
 lateral deg"ree ex copula illicita with the sister (or 
 brother) of N. B.] which he (or she) concealed at the 
 time of marriag-e >vith N. B. who is still ig-norant of 
 it. The reasons for sanatio in radice are scandal 
 and dang'er of incontinence, if separation is imposed 
 and the impossibilit3^ of obtaining- N. B.'s renewal of 
 consent without serious dang-er of present and future 
 dissensions. N. Confessor. 
 
 » » 
 
 241. FORMULAE LATINS AD POSTULANDAS 
 
 DISPENSATIONES. 
 
 Ad petendam dispensationem in impedimento 
 publico, super quo, juxta facultates apostolicas, 
 possit dispensare Episcopus: 
 
 die m. 18 — . 
 
 "lUustrissime ac Reverendissime Domine. 
 
 Joannes A — et Anna B — de parochia (missione) 
 N hujus dioecesis N — consang-uinei in quarto 
 (vel alio) g-radu a^quali in linea transversali, prout 
 ex annexo schemate patet, matrimonium secum inire 
 cupiunt, et ideo dispeasationem sibi necessariam ab 
 lUustrissima ac Reverendissima Dominatione Vestra 
 tanquam S. Sedis deleg^ato, suppliciter efflag-itant. 
 Rationes snnt circumstantise sunt . 
 
 Summa, qua par est, reverentia et devotione 
 permaneo, 
 
 lUustrissime ac Reverendissime Domine, 
 
 Illustrissims Dominationis Vestrae 
 Submissisimus, 
 
 N., Pai'ochiis.'" 
 
 Nota — A tergo folii, seu infra textum supplicis 
 libelli, ponatur schema consang-uinitatis vel affinitatis. 
 
 242. Ad petendam dispensationem in impedimento 
 occulto, super quo juxta facultates vel de jure dispen- 
 
224 LEGAL FORMULARY. 
 
 sare possit Kpiscopus, et cujus dispensatio ab eo 
 sine periculo l^dendi sig*illi peti valeat: 
 
 "Illustrissime, etc., ut supra 241. 
 
 Titius et Caja, vivente adhuc prima Titii conjug-e, 
 carnaliter se coofnoverunt, et sibi fidem invicem 
 dederunt de matrimonio inter se coiitrahendo, si 
 uxor Titii praimoreretur; qua modo mortua, neutro 
 tamen oratorum in ejus mortem machinante, matri- 
 monium inter se contrahere desiderant. Cum autem 
 impedimentum criminis ex adulterio et promissione 
 proveniens sit occultum, et, nisi matrimonium inter 
 eos contrahatur, periculum immineat scandalorum 
 aut perseverantia^ in peccato, ideo ad hddc evitanda, 
 et pro conscientise suse quiete, supplicant humillime, 
 ut Illustrissima Dominatio Vestra g-ratiam dispen- 
 sationis sibi clementissime impertiri dig'netur. " 
 
 "Sumnia," etc., ut 241. 
 
 243. Ad petendam dispensationem ab Kpiscopo, 
 matrimonio in bona fide cum impedimento de se pub- 
 lico jam contracto, et super quo, vi facultatum apos- 
 tolicarum, Episcopus dispensare possit: 
 
 "Illustrissime, etc. 
 
 I^xponitur humiliter Illustrissima Dominatione 
 Vestrse pro parte devotorum oratoruin Joannis A — 
 
 et Anna B — de parochia hujus dioecesis, 
 
 quod ipsi, alias ig^norantes aliquod impedimentum 
 inter se existere, quominus possent invicem matri- 
 monialiter copulari, matrimonium inter se per verba 
 de praesenti, publice factis proclamationibus in eorum 
 parochiali ecclesia, nulloque detectoneque denuntiato 
 impedimento, contraxerunt, illudque in facie ecclesia 
 solemnizarunt, et carnali copula consummarunt. 
 Postmodum vero ad eorum pervenit notitiam, eos 
 (prout ex annexo scliemate patet) tertio et quarto a 
 communi stipite provenientibus consang-uinitatis 
 g^radibus invicem esse conjunctos, propter quod a 
 carnali copula abstinuerunt (z'c/, et nihilominus in 
 
FORMS FOR DISPENSATIONS. 225 
 
 eadem carnali copula perstiterunt.) Cum autem ora- 
 tores praedicti in hujusmodi matrimonio renianere non 
 posslnt absque dispensatione, et, si separatio inter 
 eos fieret, gravia exinde scandala possent oriri, sup- 
 plicant, ut, leg"is ecclesiasticae venia eis clementissime 
 data, matrimonium in facie ecclesia^ inire, et post- 
 modum in eo libere et licite vivere valeant." 
 "Summa," etc. ut supra. 
 
 244. Ad petendam dispensationeni ab Episcopo, 
 matrimonio in mala fide cum impediment© publico 
 jam contractor 
 
 "Illustrissime," etc. 
 
 "Kxponitur humiliter Illustrissime Dominationi 
 Vestrae, nomine oratorum Joannis A — et Anna^ B — 
 de parochia N — hujus difecesis N — quod ipsi, alias 
 scientes se (ut ex annexo patet schemate) secundo 
 consan^uinitatis ^radu a communi stipite equaliter 
 proveniente invicem esse conjunctos, dispensationeni 
 ab Illustrissima Dominatione Vestra (vel, ab Illus- 
 trissimo ac Reverendissimo Domino N — ) ad valide 
 inter se matrimonium contrahendum, dicto impedi- 
 niento non obstante, postulaverunt; sed, repulsam 
 passi, vesana obcoecati libidine ac circumventi dia- 
 bolica fraude coram ma^istratu civili (vel, praecone 
 haeretico) matrimonium incestuosum* contraxerunt, 
 ac consummaverunt, ex quo jam tres interea filii ab 
 ipsis suscepti sunt. Nunc vero ex Dei (^•ratia de per- 
 iculo salutis seternae valde timentes, niag^no ob ante- 
 actam vitam sunt commoti dolore. Cum autem, si 
 separatio inter eos fieret, o^ravia exinde scandala 
 orirentur, necnon magnum damnum emer^feret liberis 
 suis, in matrimonio vero remanere non possint absque 
 dispensatione, supplicant, ut Illustrissima Vestra 
 Dominatio cum ipsis dispensare diofnetur ut in facie 
 Ecclesia3, omissis tamen publicis denuntiationibus, 
 matrimonium invicem, consensu renovato, contrahere, 
 ac in eo renianere libere et licite valeant; addito in- 
 30 
 
226 LEGAL FORMULARY. 
 
 super ex parte infra sig"ttatt hoc tnotivo, quod, nisi 
 dispensatio concedatur, valde timendum sit, ne 
 oratores in fide omnino pervertantur, et ab ea 
 deficiant, una cum filiis susceptis, cum inter acath- 
 olicos et infideles deg'ant." 
 "Sunima," etc. 
 
 245. Ad petendam dispensationem ab E^piscopo in 
 impedimento occulto, et quidem cum sanatione mat- 
 rimonii in radice: 
 
 "Illustrissime," etc. 
 
 "Sempronia, dioecesis N — igfuara impedimenti, 
 in facie ecclesis et praemissis denuntiationibus, bona 
 fide contraxit matrimonium cum viro, a cujus fratre 
 vel filio) prius carnaliter fuerat cow'nita. Quare, 
 cum absque scandalo separari non possint, et pericu- 
 lum incontinentiae aut gravis diffamationis subsit, 
 marito putativo impedimenti plane inscio, ac proinde 
 consensus matrimonialis nequeat renovari absque 
 gravi dissidiorum periculo, hinc supplicat humiliter 
 pro celeri remedio dispensationis super hujuscemodi 
 impedimento penitus occulto, ac quidem in radice 
 matrimonii, ita ut, absque renovatione consensus, 
 matrimonium sanari valeat." "Sumnia," etc. 
 
 246. Ad petendem dispensationem in impedimento 
 publico, super qua non possit dispensare Episcopus. 
 
 Summatur Formula 241; sed: 
 
 1*^ Loco: "Illustrissime," etc. scribatur: "Beatis- 
 sime Pater." 
 
 2° Loco: "ab Illustrissima," etc. scribe: "a Sanc- 
 titate Vestra." 
 
 3^ Loco "Summa," etc. scribe: "Quam ^ratiam si 
 Sanctitas Vestra benig-ne oratoribus elargfiri dig-ne- 
 tur, maximas pro ea g'ratias summa, qua par est, 
 reverentia ac devotione ag^et 
 
 Sanctitati Vestrae, 
 
 Submissisimus, 
 Datum N-~. N. N., etc." 
 
FORMS FOR DISPENSATIONS. 227 
 
 Nota. — 1° Si sint pauperes, post expositas rationes 
 dicitur: "Pauperes et miserabiles existunt, atque 
 ex suis labore et industria tantum vivunt." 
 
 2° Supplicatio a parocho oratorum confecta ad 
 Episcopum mittatur; Episcopus vero, vel loco ipsius 
 Vicarius Generalis, earn testimonio, sig'illo et chiro- 
 grapho episcopali munltam Romam mittet. 
 
 3^' Si dispensatio a S. Sede petenda sit in matri- 
 monio cum impedimento publico sive bona, sive mala 
 fide co)ilracto, sumatur Formula 243 vel 244, 
 mutatis mutandis juxta ea, qUcE in hac Formula 246 
 mutata sunt. 
 
 247. Ad petendam dispensationem a S. Poeniten- 
 tiaria in matrimonio contrahendo: 
 
 '*Eminentissime Princeps. 
 
 Exponitur humillime E^minentiae Vestra?, pro 
 parte oratorum Titii et Cajai, quod matrimonium 
 contrahere intendant, sed quod Titius conjutratus 
 Cajam, vivente adhuc propria uxore Sempronia, 
 carnaliter cog-noverit copula perfecta, sibique invi- 
 cem fidem dederint de matrimonio inter se contra- 
 hendo, si Sempronia uxor Titii pra^moreretur, qua3 
 etiam per venenum a Titio propinatum pra^mortua 
 est. Cum autum ex praemissis impedimentum cri- 
 minis sit exortum, et exinde matrimonium nee licite, 
 nee valide contrahere possint, supplicant oratores 
 pro gratia dispensationis super isto impedimento 
 criminis, ut publice matrimonium inter se contra- 
 here, et in eo postmodum licite et libere remanere 
 valeant, prolesque legitima decernatur. Impedi- 
 mentum omnino occultum est, et urget periculum 
 perseverantiai in peccato, quin etiam scandali gravis, 
 si matrimonio legitime copulari nequeant. Ouare 
 pro quite conscientiai sua3, de prsemissis summe do- 
 lentes, Fminentiam Vestram humiliter supplicant, 
 ut super his de opportune remedio auctoritate Apos- 
 tolica providere dignetur. 
 
228 LEGAL FORMULARY. 
 
 Purpuram deosculans, summa, etc. Eminentise 
 Vestrae submissisimus — . 
 
 Di^netur Etninentia Vestra responsum dirig-ere 
 ad me infra inscriptutn, — " 
 
 248. Ad petendam dispensationem a S. Poenlten- 
 tiaria in matrimonio jam contracto: 
 
 "Kminentissime Princeps. 
 
 Titius conjugatus Cajam, vivente adhuc propria 
 uxore Sempronia, carnaliter cognovit copula perfecta, 
 sibique invicem fidem dederunt de matrimonio inter 
 se contrahendo, si Sempronia uxor Titii pra^morere- 
 tur, ac, postquam Sempronia per venenum a Titio 
 propinatum praemortua esset, conscii fvel ignari) 
 impedimenti in facie ecclesiae praemissis (vel dispen- 
 satis) proclamationibus (coram magistratu civili, 
 aut praecone haeretico) matrimonium contraxerunt 
 et carnali copula consummarunt. (Si utraque vel 
 alterutra pars, in bona fide adhucdum perseveret, id 
 exprimatur; item utrum utraque vel alterutra pars, 
 impedimenti conscia, nunc a copula abstineat, vel ni- 
 hilominus in eadem perstiterit.) Quare cum impedi- 
 mentum ovinino occultum sit, et separatio sine scan- 
 dalo fieri nequeat, Eminentiam Vestram liumillime 
 oro, ut dispensationem eis benigne indulgeat, quate- 
 nus valide contrahere possint. 
 
 "Purpuram," etc., ut in Form. 247. 
 
 249. Practically the same method is to be used in 
 executing the general faculties, given in chapter 
 VIII following, as for those granted by the Sacred 
 Penitentiary. If therefore a matrimonial dispensa- 
 tion is asked, investigation will determine whether 
 it can be granted by the bishop as delegate using his 
 extraordinary faculties or whether recourse to Rome 
 is necessary. Then it must be ascertained whether 
 the applicant is a subject of the bishop, and living in 
 
FORMS FOR DISPENSATIONS. 229 
 
 the diocese at the time of the execution of the dispen- 
 sation (necessary in some cases) and whether there 
 is a just cause for dispensation. Then whether the 
 applicant is not laboring- under censure, such as ex- 
 communication, which renders previous absolution 
 necessary; whether a penance must not be imposed as 
 required by Forms D and E. The same forms re- 
 quire a cong-ruous alms to be imposed, which, how- 
 ever, may sometimes be condoned; whether there is 
 not an occasion of sin or scandal to be avoided. All 
 these matters should be understood, but rejifularly 
 the only requirement for the bishop is the pastor's 
 application giving- an exact and truthful exposition 
 of the case, since the Holy See exacts only that the 
 exposition shall be true. The dispensation must be 
 executed entirely g-ratuitously. 
 
 250. The bishop may grant the dispensations of 
 Form I, since they are communicable, in the form of 
 commission to the pastor, who will then b}^ decree 
 g-rant the dispensation jvist as a vicar g'eneral. 
 When the parties apply directly to the bishop, if he 
 does not know them he cannot well g-rant dispensation 
 except by referring- the petition for investig-ation. 
 
 "N. Episcopus N. — Revdo N — parocho in N. 
 salutem in Domino. Oblata^ Nobis nuper pro parte 
 devotorum oratorum Joannis A. et Mariee B. diee- 
 cesis nostras N — parochial N — petitionis series con- 
 tinebat; quod, cum (referunt'ur in extenso preces 
 oratorum) dicta Maria B. dotem habens minus com- 
 petentem, et vig-esimum quartum annum et ultra 
 aetatis su^e ag-ens, virum paris conditionis non imped- 
 itum, cui nubere possit, non invenerit, et dictus ora- 
 tor dictam oratriceni in uxorem ducere intendat, cup- 
 iunt oratores praefati invicem matrimonialiter copu- 
 
230 LEGAL FORMULARY. 
 
 lari; sed quia tertio et quarto a communi stipite 
 provenientibus gradibus invicem conjuncti sunt, 
 desiderium suum hac in parte adimplere non pos- 
 sunt absque dispensatione. Quare Nobis liumiliter 
 supplicari fecerunt, quatenus eisdem in praemissis de 
 opportune dispensationis remedio ex benig-iiitate 
 nostra providere dignaremur. Nos ig"itur, qui spec- 
 ialem a SS. Domino nostro Leone Papa XIII, die — 
 mense — anno — Nobis ad quinquennium o-enerali- 
 ter concessam facultatem habemus tenoris sequentis; 
 "dispensandi in 3^ et 4^^ consang-uinitatis et affinita- 
 tis gradu simplici et mixto tantum, et in 2^, 3° et 4^ 
 mixtis, non tamen in 2° solo quoad futura matri- 
 monia; quoad vero ad prseterita etiam in 2^ solo, 
 dummodo nullo modo atting^at primum gradum, cum 
 his qui ab heresi vel infidelitate convertuntur ad 
 fidem catholicam et in praefatis casibus prolem sus- 
 ceptam declarandi leg^itimam," eosdem Joannem A. 
 et Mariam B — et eorum quemlibet autoritate apos- 
 tolica Nobis delegata a quibusvis excommunicationis 
 interdicti aliisque ecclesiasticis sententiis, censuris 
 et poenis a jure vel ab homine quavis occasione vel 
 causa latis, si quibus quomodolibet inriodati exis- 
 tant, ad eifectum duntaxat praesentium consequen- 
 dum, harum serie absolventes et absolutos fore cen- 
 sentes; ac certam de praemissis notitiam non habentes, 
 hujusmodi supplicationibus inclinati, discretioni tuae, 
 de qua in his specialem in Domino fiduciam habemus, 
 hisce auctoritate apostolica mandamus, quatenus 
 deposita per te omni spe cujuscunque muneris aut 
 praemii etiam sponte oblati, a quo te omnino abstinere 
 monemus, te de praemissis diligenter informes; et si 
 per informationem eandem preces veritate niti reper- 
 iris, super quo conscientiam tuam oneramus, tunc 
 cum iisdem Joanne A. et Maria B. (dummodo ilia 
 propter hoc rapta non fuerit, aut si rapta fuerit, in 
 potestate raptoris non amplius existat^ ut, impedi- 
 mento quarti et tertii consang-uinitatis gradus hujus- 
 modi ac constitutionibus et ordinationibus apostolicis. 
 
FORMS FOR DISPENSATIONS. 231 
 
 ceterisque contrariis nequaquam obstaiitibus, matri- 
 monium inter se publice servata forma Concilii Tri- 
 dentini contrahere, illudque in facie ecclesiae solemni- 
 zare et in eo postmodum remanere libere et licite 
 valeant, dispenses apostolica auctoritate, quam in 
 hoc gfeneraliter delegatani habemus et tibi specialiter 
 communicamus. In quorum fidem &c. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. Cancellarius Episcopi." 
 
 251. In g-ranting- the dispensation himself the 
 bishop may use the above form by droppiug- the 
 words after "accertam informationem non habentes" 
 and using- instead: 
 
 "Capta de expositis dilig-enti informatione et 
 reperta precum veritate, cum iisdem Joanne A — et 
 Maria B — (dummodo ilia propter hoc rapta non 
 fuerit, aut si rapta fuerit in raptoris potestate non 
 amplius existat) ut impedimento tertii et quarti con- 
 sang-uinitatis g^radus non obstante, matrimonium inter 
 se publice servata forma Cone. Trid. contrahere, illud- 
 (^ue in facie ecclesia3 solemnizare et in eo postmodum 
 remanere libere et licite valeant, pra^fata auctoritate 
 apostolica harum litterarum serie dispensamus; 
 distantiam vero tertii gfradus pra^dicti eis non ob- 
 stare declaramus ; (addatur si necesse est) prolem 
 susceptam, si qua sit et suscipiendam exinde legiti- 
 mam nunciando. In quorum &c. Datum &c. 
 
 N. Episcopus. N. 
 N. Cane. Epis." 
 
 Following- is another form for g-ranting- a dispen- 
 sation in /oro extcrno: 
 
 ' 'N — Dei et Apostolica? Sedis gfratia Episcopus N — . 
 Universis et sing-ulis pn'iisentes visuris, Iccturis et 
 audituris notum facimus, quod N — et N — humillime 
 Nobis supplicaverint ut cum eis super impedimento 
 tertii consanguinitatis g-radus simplicis (vel alius) 
 
232 LEGAL FORMULARY. 
 
 quo impediti existunt, dispensare in ordine ad matri- 
 moniuni leg'itime coiitrahendum clenientissime dig-- 
 naremu'rob causas canonicas, nempe, (dentur causa3.) 
 Nos igfitur, qui a SS. Domino N. Leone Papa XIII 
 speciali facultate dele»-ata desuper, die — mensis — 
 anno — ad quinquennium Nobis concessa muniti 
 existimus, prout invenitur in Art. 6° Pormae I, (vel 
 alias inserantur ipsa facultatis verba) vi deleg"ats 
 Nobis potestatis apostolicae alleo'atae dictos oratores 
 a quibusvis sententiis, censuris et poenis si innodati 
 existant, ad effectum duntaxat praesentium conse- 
 quendum absolventes, cum memoratis N — et N — 
 ex causis pra^fatis Nobis co^nitis et probatis, in 
 Domino dispensamus et dispensatum declaramus, quo 
 legitime matrimonium inter se, non obstante supra- 
 dicto impedimento, servatis in reliquo de jure ser- 
 vandis, contrahere valeant. (Si dispensatio est ex 
 formis D. vel E). addatur: "Insuper eadem auctori- 
 
 tate apostolica illis injung*imus ut eleemosynam 
 
 dollariorum ad econonum nostrum transmittant piis 
 operibus applicandam.") 
 
 In quorum fidem praesentes litteras manu nostra 
 sig"natas, sig"illoque nostro munitas et per cancell- 
 arium nostrum subscriptas expediri jussimus. 
 
 Datum in aedibus nostris episcopalibus, , 
 
 die — mensis — anno Domini — . 
 [l. s.] N. Episcopus N. 
 
 N. Cancellarius Episc. 
 
 The omission of the words "juxta facultates ab 
 Ap. Sede nobis imperitas" will not render the dis- 
 pensation invalid. Still it is ordered to insert either 
 the words of the faculty or at least that the dispen- 
 sation is g-ranted by apostolic deleg^ation, g-iving- date 
 of faculties and of their expiration. {S. Cong'. 
 Prop. J, June, ^^S3-) Dispensations granted by 
 Apostolic indult must be signed by the bishop or 
 the vicar general. The mere filling in of the bishop's 
 
FORMS FOR DISPENSATIONS. 233 
 
 name by the chancellor is useless and clearly illegal. 
 The seal should be affixed to every document of dis- 
 pensation. 
 
 Following- is a form for g-ranting^ a dispensation 
 'pro foro interno: 
 
 "N. Dei &c Episcopus N. 
 
 Committitur confessario ex approbatis abordinario, 
 per Titium(velaliam personam) specialiterdelig^endo, 
 potestas dispensandi circa impedimentum affinitatis 
 (criminis «&c) cum uxore (niarito) sua contracta? ob 
 praicedentem copulam cum sorore (fratre) ipsius 
 habitam; in foro tamen conscientia^ tantum, ac dum- 
 modo impedimentum sit occultum. Injun^atur vero 
 poenitentia g-raviset salutaris. In quorum iidem &c. 
 Datum &c. 
 [l. s.] N. Cancellarius Epis. N. Episcopus N/' 
 
 The pastor or other executor may use the follow- 
 ing" form for executing" the dispensation: 
 
 "Auctoritate apostolica vi indulti RE? Episcopo 
 (archiepiscopo) ad quinquennium a Sancta Sede con- 
 cessi mihique ad hoc communicati, eg^o vos N. et N. 
 (dummodo mulier rapta non fuerit aut si rapta fuerit 
 in potestate raptoris non existat) absolvo ab omnibus 
 censuris et poenis ad eflFectum praesentium conse- 
 quendum, atque dispenso super impedimento — ita 
 ut leg^itime matrimonium contrahere, in eoque post- 
 modum libere et licite remanere valeatis. Eadem 
 auctoritate prolem susceptam, si qua sit, et suscip- 
 iendam leg"itimam declaro. In nomine Patris &c." 
 
 Note. — Where the decree "Tametsi" has been published it is 
 certain that ''The faculty to administer all sacraments not re- 
 quirin.i? episcopal order does not give also the faculty of assisting 
 at the marriage of the faithful of the diocese," It is also certain, 
 "That those marriages contracted before priests other than those 
 delegated by the ordinary or licensed by the paris/i j>n'e.st are not 
 validly ctmtracted." Decree of Holy Office, Sept. 7, 1808, in New 
 Orleans Consultation. 
 
 The places in America where the "Tametsi" has been published 
 are given below on page 49J:, 
 
 31 
 
CHAPTER VIII. 
 
 FACULTATES QU^ EPISCOPIS STATUUM FCEDERA- 
 
 TORUM CONCEDI SOLENT. 
 
 FACULTATES ORDINARI.E — FORM I. 
 
 252. 1. "Conferendi ordines extra tempora et non servatis inter- 
 stitiis usque ad presbyteratum inclusive si sacerdotum necessitas 
 ibi fuerit." 
 
 2. "Dispensandi in quibuscumque irregularitatibus, exceptis illis, 
 quae vel ex bigamia vera, vel ex liomicidio voluntario proveniunt; 
 et in his etiam duobus casibus, si praecisa necessitas operariorum 
 ibi fuerit, si tameu, quoad homicidium voluntarium, ex hujusmodi 
 dispensatione scandalum non oriatur." 
 
 3. "Dispensandi super def ectu aetatis unius anni ob operariorum 
 penuriam, ut promoveri possint ad sacerdotium, si alias idonei 
 fuerint." 
 
 4. "Dispensandi et commutandi vota simplicia in alia pia opera, 
 et dispensandi ex rationabili causa in votis simplicibus castitatis 
 et religionis." (intrandae.) 
 
 5. "Absolvendi et dispensandi in quacumque simonia; et in 
 reali, dimissis beneficiis, et super fructibus male perceptis, in- 
 juncta aliqua eleemosyua vel poenitentia salutari arbitrio dispen- 
 santis, vel etiam retentis beneficiis, si fuerint parochialia et non 
 sint qui parochiis praeflci possint." 
 
 6. "Dispensandi in 3^ et 4*^ consanguinitatis et aflinitatis gradu 
 simplici et mixto tantum, et in 2*^, 3^ et 4*=" mixtis, non tamen in 2*" 
 solo quoad futura matrimonia ; quoad vero ad praeterita etiam in 
 2*^ solo, dummodo nuUo modo attiugat primum gradum, cum his 
 qui ab haeresi vel infidelitate convertuntur ad Pidem Catholicam, 
 et in praefatis casibus prolem susceptam declarandi legitimam." 
 
 7. "Dispensandi super impedimento publicae honestatis justis 
 ex sponsalibus proveniente." 
 
 8. "Dispensandi super impedimento criminis, neutro tam^en con- 
 jugum machinante et restituendi jus amissum petendi debitum." 
 
 9. "Dis[)ensandi in impedimento cognationis spiritualis praeter- 
 quam inter levautem et levatum." 
 
 234 
 
SPECIAL FACULTIES. 235 
 
 10. "Hae vero dispensationes matrimoiiiales videlicet 6% 7% 8 et 
 9' non concedantur, nisi cum clausula; (lunimodo mulicr rapt a non 
 fuerit, vel fii rapid fiierit, in potentate raptoris non exi.sfaf: et in dis- 
 pensatione tenor hujusmodi facultatem inseratur, cum expressione 
 temporis ad quod fuerint concessae." 
 
 11. "Dispensandi cum gentilibus plures uxores habentibus, ut 
 post conversionem et baptismum, quam ex illis maluerint. si etiani 
 ipsa fidelis fiat, retinere possint, nisi prima voluerit converti." 
 
 12. "Conflciendi Olea Sacra cum sacerdotibus, quos potuerint 
 habere, et, si necessitas urgeat, etiam extra diem Coenae Domini.'' 
 
 13. "Delegandi simplicibus sacerdotibus potestatem benedicendi 
 paramenta et alia utensilia ad Sacrificium Missae necessaria, ubi 
 non intervenit sacra unctio; et reconciliandi ecclesias pollutas 
 aqua ab Episcopo benedicta, et in casu necessitatis, etiam aqua noii 
 benedicta ab Episcopo." 
 
 14. "Largiendi ter in anno indulgentiam plenariam contritis, 
 confessis ac sacra communione refectis." 
 
 15. "Absolvendi ab haeresi et apostasia a fide et a schismate 
 quoscumque etiam ecclesiasticos tam saeculares quam regulares; 
 non tamen eos qui ex locis fuerint ubi Sanctum Officium exerce- 
 tur nisi in locis missionum, in quibus impune grassantur haereses, 
 deliquerint, nee illos qui judicialiter abjuraverint, nisi isti nati 
 sint ubi impune grassantur haereses, et post judicialem ab jura- 
 tionem illuc reversi in haeresim fuerint relapsi, et hos in foro 
 conscientiae tantum." 
 
 16. "Absolvendi ab omnibus censuris in Bulla 'ApostoUcae Seilis 
 moderdtioni,' die 12 Oct. 1869, Romano Pontifici etiam speciali 
 modo reservatis, excepta absolutione complicis in peccato turpi." 
 
 17. "Concedeiidi indulgentiam plenariam primo conversis ab 
 haeresi atque etiam fidelibus quibuscumque in articulo mortis 
 saltem contritis, si confiteri non poterunt." 
 
 18. "Concedendi indulgentiam plenariam in oratione 10 horarum 
 ter in anno indicenda diebus episcopo bene visis, contritis et con 
 fessis et sacra communione refectis, si tamen ex concursu populi 
 et expositione SSmi. Sacramenti nulla probabilis suspicio sit sac- 
 rilegii ab haereticis et iufidelibus aut ottensionis a magistratibus." 
 
 19. "Lucrandi sibi easdem indulgentias." 
 
 20. "Singulis feriis secundis non impeditis officio IX lectionum, 
 vel eis impeditis. die immediate sequenti, celebrandi missam 
 lie re(ji(ie, in quocumque altari, etiam portatili. et liberandi animas 
 secundum eorum intentionem a purgotorii poeuis per modum 
 suttragii." 
 
 21. "Tenendi et legendi, non tamen aliis concedendi, praeter- 
 
236 LEGAL FORMULARY. 
 
 quam ad tempus tamen iis sacerdotibus, quos praecipae idoneos 
 atque honestos esse sciat, libros prohibitos, exceptis operibus 
 Dupuy, Volney, M. Reghellini, Pigault le Brun, De Potter, Ben- 
 tham, J. A. Dulaure, Petes et Courtisanes de la Grece, Novelle di 
 Casti, et aliis operibus de obscoenis et contra Religionem ex pro- 
 fesso tractantibus." 
 
 22. "Praeflciendi parochiis regulares, eisque suos deputandi 
 vicarios in defectu saecularium, de consensu tamen suorum 
 superiorum." 
 
 23. "Celebrandi bis in die, si necessitas urgeat, ita tamen ut in 
 prima Missa non sumpserit ablutionem, — per unam horam ante 
 auroram et aliam post meridiem, — sine ministro, — et sub dio et 
 sub terra, in loco tamen decenti, — etiamsi altare sit fractum vel 
 sine reliquiis sanctorum, — et praesentibus haereticis, schismaticis, 
 infldelibus et excommunicatis, — si aliter celebrari non possit. 
 Caveat vero, ne praedicta facultate seu dispensatione celebrandi 
 bis in die aliter quam ex gravissimis causis et rarissime utatur, 
 in quo graviter ipsius conscientia oneratur. Quod si banc eandem 
 facultatem alteri sacerdoti juxta potestatem inferius apponendam 
 communicare, aut causa utendi alicui, qui a Sancta Sede banc 
 facultatem obtinuerit, approbare visum fuerit, serio ipsius con- 
 scientiae injungitur, ut paucis dumtaxat, iisque maturioris pru- 
 dentiae ac zeli et qui absolute necessarii sunt, nee pro quolibet 
 loco, sed ubi gravis necessitas tulerit, et ad breve tempus eamdem 
 communicet aut respective causas approbet." 
 
 24. "Deferendi SSmum Sacramentum occulte ad inflrmos sine 
 lumiue, illudque sine eodem retinendi pro eisdem iufirmis, in loco 
 tamen decenti, si ab haereticis aut infldelibus sit periculum 
 sacrilegii." 
 
 25. "Induendi se vestibus saecularibus, si aliter vel transire ad 
 loca eorum curae commissa vel in eis permanere non poterunt." 
 
 26. "Recitandi rosarium vel alias preces, si breviarium secum 
 deferre non poterunt, vel divinum offlcium ob aliquod legitimum 
 impedimentum recitare non valeant." 
 
 27. "Dispensandi, quando expedire videbitur, super esu carnium, 
 ovorum et lacticiniorum tempore jejuniorum et Quadragesimae, 
 non tamen per generale indultum sed in casibus particularibus." 
 
 28. "Praedictas facultates communicandi, non tamen illas, quae 
 requirunt Ordinem Episcopalem, vel non sine Sacrorum Oleorum 
 usu exercentur, sacerdotibus idoneis qui in eorum dioecesibus 
 laborabunt, et praesertim tempore sui obitus, ut, sede vacante, sit 
 qui possit supplere, donee Sedes Apostolic^a certior facta, quod 
 quam primum fieri debebit, per delegatos vel per unum ex iis alio 
 
EXTRAORDINARY FACULTIKS. 237 
 
 modo pcovideat, quibas delegatis auctoritate Apostolica facultas 
 conceditur, sede vacante et in casu necessitatis, consecrandi 
 calicfes, patenas et altaria portatilia Sacris Oleis, ab Episcopo 
 tamen benedictis." 
 
 29. "Et praedictae facultates gratis et sine ulla mercede exer- 
 ceantur et ad quinquennium tantum concessae intelligantur, nee 
 illis uti possit extra fines suae dioecesis." 
 
 FACULTATES EXTRAORDINARI/E C. 
 
 253. 1. "Recitandi privatim, legitima concurrente causa, mat- 
 utinum cum laudibus diei sequentis statim elapsis duabus horis 
 post meridiem eamdemque facultatem ecclesiasti(ns viris sive 
 saecularibus, sive regularibus communicandi." 
 
 2. "Retinendi ac legendi libros ab Apostolica Sede prohibitos, 
 etiam contra Religionem ex prot'esso agentes, ad ett'ectum eos im- 
 puguandi; quos tamen diligenter custodiat ne ad aliorum manus 
 perveniant, exceptis astrologicis, judiciariis, superstitiosis ac ob- 
 scoenis ex prot'esso; eamdemque facultatem etiam aliis conce- 
 dendi, parce tamen et dummodo prudentur praesumere possit 
 nullum eos ex hujusmodi lectione detrimentum esse passuros." 
 
 3. "Dispensandi cum Diaconis utriusque cleri super defectu 
 aetatis quatuordecim mensium, ut promoveri possint ad Sacer- 
 dotium, si alias idonei fuerint." 
 
 4. "Permittendi jutrochis sibi subjectis, dummodo justa et 
 legitima causa concurrat, ut lis diebus festis, quibus fldelos Apos- 
 tolica auctoritate soluti sunt ab obligationc missam audiendi, ipsi 
 ab applicatione pro populo abstinere valeant, dummodo proeodem 
 populo in ejusmodi missa specialiter orent." 
 
 5. "Permittendi Catholicis sibi subjectis, ut f eriis sextis, sabbatis, 
 aliisque diebus, quibus carnium esus vetatur, acatholicis, si in 
 eorum mensa esse contigerit, carnes praebere valeant, dummodo 
 tamen absit ecclesiasticae legis contemptus et ejusmodi t'acultate 
 sobrie multaque circumspectione utantur, ne scandalum in 
 Catholicos vel heterodoxos ingeratur." 
 
 6. "Deputandi aliquem sacerdotem in locis sibi subjectis cum 
 facultate consecrandi juxta formam in Pontificali Romano prae- 
 scriptam calices, patenas et altarium lapides, adhibitis tamen 
 Sacris Oleis ab Episcopo Catholico benedictis." 
 
 7. "Impertiendi quater in anno intra fines suae dioecesis in sol 
 emnioribus testis Benedictionem Papalem, juxta formulam typis 
 impressam atque insertam, cum indulgentia plenaria ab iis lucrau- 
 da, qui vere poenitentes, confessi ac Sacra Commuuione refecti 
 eidem Beuedictioni interfuerint, Deumque pro Sanctae Fidei 
 propagatione et S. R. E. exaltatione oraverint." 
 
238 LEGAL FORMULARY. 
 
 8. "Declarandi privilegiatum in qualibet ecclesia suae dioecesis 
 unum altare, dummodo aliud privilegiatum non adsit, pro cunctis 
 Missae Sacrificiis, quae in eodem altari celebrabuntur a quocun- 
 que presbytero saeculari vel cujuvis ordinis regulari," 
 
 9. "Benedicendi coronas precatorias, cruces, et sacra numismata 
 iisque applicandi indulgentias juxta folium typis impressum atque 
 insertum, necnon erigendi Confraternitates B. M. V. de Monte 
 Carmelo, SS"' Rosarii et Bonae Mortis cum applicatione omnium 
 indulgentiarum et privilegiorum, quae Summi Pontifices iisdem 
 Confraternitatibus impertiti sunt; addita insuper potestate has 
 facultates communicandi presbyteris sacro ministerio fungen- 
 tibus." 
 
 10. "Erigendi in locis suae dioecesis, in quibus non adsint PP. 
 Pranciscales, pium exercitium Viae Crucis cum applicatione 
 omnium indulgentiarum et privilegiorum, quae Summi Pontifices 
 ejusmodi exercitium peragentibus impertiti sunt, addita insuper 
 potestate banc facultatem communicandi presbyteris sacro min- 
 isterio fungentibus." 
 
 11. "Promovendi Clericos sibi subditos ad Subdiaconatum alios- 
 que Ordines Majores usque ad Presbyteratum inclusive titulo 
 missionis, praestito tamen ab eisdem Clericis juramentoantequam 
 Subdiaconi ordinentur, quo spondeant, ad instar Pontiflciorum 
 alumnorum, suae dioecesi vel missioni se esse perpetuo 
 inservituros." 
 
 12. "Delegandi benedictionem campanarum, quandocumque eam 
 ipsi absque gravi incommodo perficere nequeant, sacerdotibus sibi 
 bene visis, servato ritu Pontificalis Romani, atque adhibitis Oleis 
 et aqua ab Episcopo benedictis; necnon sine aqua ab Episcopo 
 benedicta, si gravis causa concurrat." 
 
 13. "Et praedictae facultates gratis et sine uUa mercede excer- 
 ceantur, nee illis uti possit extra fines suae dioecesis." 
 
 FACULTATES EXTRAORDINARI^ D. 
 
 254. 1. "Dispensandi super impedimento cognationis spiritualis 
 inter levantem et levatum." 
 
 2. "Dispensandi in casibus occultis et in foro conscientiae tan- 
 tum super primo et secundo gradu simplici et mixto affinitatis ex 
 copula illicita provenientis, in linea sive collaterali sive etiam 
 recta, dummodo, si de linea recta agatur, nullum subsit dubium 
 quod conjux possit esse proles ab altero contraheutium genita, 
 tam in matrimoniis scienter vel ignoranter contractis quam in 
 contraheudis." 
 
EXTRAORDINARY FACULTIES. 239 
 
 3. "Dispensandi cum snis svhflifi.s, super imperlimento dispari- 
 tatis cultus, quatenus sine contumelia Creatoris tieri possit, et 
 dummodo cautum omniiio sit conditiouibus ab Ecclesia prae- 
 seriptis ac praesertim de amovendo a Catholico conjuge perver- 
 sionis periculo, deque conversione conjugis infidelis pro viribus 
 curanda, ac de universa prole utriusque sexus in Catholicae Relig- 
 ionis sanctitate omniuo educanda; servata in reliquis adjecta in- 
 structione typis impressa; excepto tamen casu matrimonii cum 
 viro vel muliere judaeis nisi adsit periculum in mora; tum vero 
 singulis trienniis referat quot in casibus dispensaverit." 
 
 4. "Dispensandi cam .svt/.s subditis, super impedimento im 
 pediente mixtae Religion is, dummodo cautum omnino sit condi- 
 tiouibus ab Ecclesia pi-aescriptis prout in superiori No. .3." 
 
 5. "Dispensandi in matrimoniis mixtis jam contractis, non item 
 in contraliendis, super gradibus consanguinitatis et aftinitatis, 
 super quibus Apostolicam facultatem pro Catholicis jamobtinuit, 
 quatenus pars Catholica, praevia absolutioue ab incestus reatu et 
 censuris. cum parte acatholica rite et legitime matrimonium con- 
 trahere de novo possit, prolemque susceptam ac suscipieudam 
 legitimam declarandi dummodo cautum omnino sit conditiouibus 
 ab Ecclesia praescriptis prout in sup. No. 3." 
 
 6. "Sanandi in radice matrimonia contracta, quando comperitur 
 adfuisse impedimentum dirimens super quo ex Apostolicae Sedis 
 indulto dispensare ipse possit, magnumque fore iucommodum re- 
 quirendi a parte innoxia renovationem consensus, monita tamen 
 parte conscia impediment! de effectu hujus sanationis." 
 
 7. "Absolvendi contrahentes in omnibus et singulis casibus 
 supra expositis, dummodo opus sit, ab incestus reatibus et cen- 
 suris, imposita pro modo culparum congrua poeniteutia salutari, 
 prolemque susceptam ac suscipieudam legitimam declarandi," 
 
 8. "Subdelegandi praesentes facultates suo Vicario Generali, 
 quoties absit a residentia vel legitime sit impeditus, atque duobus 
 vel tribus presbyteris sibi benevisis in locisremotioribus propriae 
 dioecesis, pro aliquo tamen numero casuum urgentiorum, in 
 quibus recursus ad ipsum haberi non possit." 
 
 "Voluit autem Sanctitas Sua et omnino praecepit ut praedictus 
 Episcopus superioribus facultatibus justis dumtaxat gravibusque 
 accedentibus causis et gratis utatur, injuncta tamen aliqua con- 
 grua eleemosyna, in pium opus arbitrio ipsius Episcopi eroganda. 
 atque ut, elapso (luinqueniiio de singulis dispensationibus concessis 
 certiorare debeat Apostolicam Sedem." 
 
 FACULTATES EXTRAORDINARLE E. 
 
 255. "Dispensandi in utroque foro cum Catholicis ejus jurisdic- 
 
240 IvEGAIv FORMULARY. 
 
 tioni subjectis, in matriinoniis sive contractis sive contrahendis , 
 super sequentibus impedimentis:" 
 
 1. "Super impedimento primi gradus attinitatis in linea col- 
 laterali ex copula licita provenientis." 
 
 2. "Super impedimento seoundi gradus consanguinitatis vel 
 aflfinitatis admixti cum primo in linea transversali." 
 
 3. "Super impedimento secundi gradus consanguinitatis vel 
 affinitatis in linea transversali aequali." 
 
 4. "Super impedimento publico primi gradus affinitatis, ex 
 copula illicita provenientis, in linea sive collaterali sive etiam 
 recta, dummodo si de linea recta agatur, nullum subsit dubium 
 quod conjux sit proles ab altero contrahentium genita." 
 
 "Insuper Sanctitas Sua praedicto Episcopo facultatem concessit 
 in omnibus et singulis casibus superius expositis absolvendi con- 
 trahentes, dummodo opus sit, ab incestus reatibus et censuris, im- 
 posita pro modo culparum congrua poenitentia salutari ac prolem 
 tam susceptam quam suscipiendam legitimam declarandi," 
 
 "Voluit autem eadem Sanctitas Sua ac omnino praecepit, ut 
 praed ictus Episcopus iisdem facultatibus urgentissimis dumtaxat 
 concurrentibus causis et gratis utatur, injuncta tamen aliqua 
 eleemosyna in pium opus arbitrio ipsius Episcopi eroganda." 
 
 "Tandem SS"i^Pater eidem Episcopo potestatem fecit prae- 
 dictas facultates subdelegandi suo Vicario Generali quoties a 
 propria residentia absit vel sit legitime impeditus, atque duobus 
 vel tribus presbyteris sibi bene visis in locis remotioribus propriae 
 dioecesis, pro aliquo tamen numero casuum urgentiorum, in 
 quibus recursus ad ipsum haberi non possit." 
 
 QUADRUPLICIS IGITUR GENERIS SUNT FACULTATES, QU^ EPISCOPIS 
 
 NOSTRIS CONCEDI SOLENT. 
 
 256. Facilitates Ordinariae, dictae Formulae I, quae a caeteris 
 distinguuntur quod, l'^ omnes, et consequenter etiam illae dis- 
 pensationes matrimoniales, quae vi earum conceduntur, gratis 
 exercendae sint; 2" Episcopi eas communicare possint omnibus 
 indiscrimituUbn "sacerdotibus idoneis, qui in eorum dioecesibus 
 laborabunt," exceptis tamen, "quae requirunt Ordinem Episco- 
 palem, vel non sine Sacrorum Oleorum usu exercentur" et facul- 
 tate celebrandi bis in die, quam "paucis dumtaxat — et qui ab- 
 solute nocessarii sint" subdelegare valent. 
 
 Facultates Fxtraordinari.ae, dictae C. Has quoque Episcopi 
 communicare possunt omnibus hidiscrbninativi sa(;erdotibiis in 
 eorum dioecesi laborantibus, exceptis sequentibus: 1^ "Conse- 
 crandi calices, patenas et altarium lapides Sacris Oleis ab 
 
FACULTIES PASS TO SUCCESSORS. 241 
 
 Episcopo Catholico benedictis, quam ad actum tantum, aut uni 
 alterive saoerdoti in locis sibi subjectis delegare valent, 2*^ Im- 
 pertiendi quater in anno in solemnioribus festis Benedictionem 
 Papalem. 3^ "Declarandi privilegiatum in qualibet ecclesia suae 
 dioecisis unum altare, dummodo aliud privilegiatum non adsit." 
 4^ Benedicendi campanas, nisi quando "ipsi absque gravi incom- 
 modo" eum actum perficere non valent, et tunc "servato ritu Pon- 
 tificalis Ramani, atque adhibitis Oleis et aqua ab Episcopo bene- 
 dictis, necnon sine aqua ab Episcopo benedicta, si gravis causa 
 concurrat." 
 
 Facultates Extraoi'dinariac, dictae D. Hae 1^ Omncs ad dis- 
 pensationes matrimoniales pertinent. 2^ Subdelegari possunt 
 soli "Vicario Generali, "dummodo Episcopi "a jjropria residentia 
 absint vel legitime sint impediti, atque duobus vel tribus pres 
 byteris sibi benevisis in locis remotioribus propriae dioecesis, pro 
 aliquo tamen numero casuum urgentiorum in quibus recursus 
 ad ipsos haberi non possit." 3' Justis dumtaxat gravibunque 
 accedentibus causis "exercendae sunt, ac licet gratis." 4* "In- 
 juncta tamen aliqua congrua" eleemosyna, in pium opus arbitrio 
 ipsius Episcopi eroganda." 5^ "Elapso quinquennio" (ad quod 
 concedi solent) "de singulis dispeusationibus certiorare" debent 
 Episcopi ''Apostolicam Sedem." 
 
 Facultates Extraordiiiariae^ dictae E, Hae quoque, 1* Omnes 
 ad dispensationes matrimoniales pertinent. 2*^ lis tantum sub- 
 delegari valent quibus Facultates Extraordimiriae D. 3* Urgcn- 
 tissimae requiruntur causae. 4* Servanda sunt, quae servanda 
 pracipiuntur supra 4*^ quoad Facultates Extraordinarias D. 
 
 NoTA. — In matrimoniis mixtis, infidelis, seu persona non-bap- 
 tisata, non est subditus episcopi; ideoque non illi sed parti Catho- 
 licae dispensatio est concedenda, praesertim si diversas incolant 
 dioeceses. 
 
 "De transitu ad successores facultatum specialium iiabitual- 
 iTER a sancta sede ordinariis concessarum, pro tempore et in 
 
 TERMINIS CONGESSIONIS. 
 
 Feria IV, 24 Novembris, 1897. 
 In Cong. Gen. S. Rom. Univ. Inquis. habita ab Emis ac Rmis 
 DD. Card, in rebus fidei et morum Gen. Inquisitoribus iidem Emi 
 Patres, rerum temporumque adjunctis mature perpensis, decer- 
 nendum censuerunt: Supplicandum SS'"<^^', ut declarare seu 
 statuero dignotur facultates omnes speciales habitualiter a S. 
 Sede Episcopis aliorumque locorum Ordinariis concessas non sus- 
 pendi vel desinere ob eorum mortem vel a munere cessationem , 
 ' 32 
 
242 LEGAL FORMULARY. 
 
 sed ad successores Ordinarios transire ad forman et in terminis 
 decreti a sup. hac Cong, editi die 20 Pebraarii, 1888, quoad dispen- 
 sationes matrimoniales. 
 
 Insequenti vero feria VI, die 26 Novembris, 1897, in solita audi- 
 entia R. P. D. Adsessori S. O. impertita, facta de his omnibus 
 SSmo D. N. Leoni Div. Prov. Pp. XIII relatione, Sanctitas 
 Sua Emoruni Patrum resolutionem adprobavit, atque ita per- 
 petuis futuris temporibus servandum mandavit, contrariis non 
 obstantibus (luibuscumque. 
 [l. s.] los. Cmi. Mancini, S. R. et U I. Notarius.^^ 
 
 Die 20 Aprilis, 1898, clausula "durante munere" suppressa est, 
 et innovata est declaratio: I'' Pacultates omnes habituales in 
 posterum committendas esse Ordinariis locorum. 2* Appellatione 
 Ordinariorum venire Episcopos, administratores seu vicarios 
 apostolicos, praelatosseu praefectos habentes jurisdictionem cum 
 territorio separato, eorumque officiales seu vicarios in spirituali- 
 bus generales, et sede vacante vicarium capitularem vel legiti- 
 mum administratorem. Die vero 23 Junii, 1898, declaratio circa 
 facultates concedendas extensa est ad facultates jam anteceden- 
 ter concessas. 
 
 Facultates habitualUer concessae, sunt: Forma I, Extraordinar- 
 iae C, D, E, pro Statibus Foederatis. Aliae sunt formae pro aliis 
 regionibus. 
 
CHAPTER IX. 
 
 APOSTOLIC CONSTITUTION OF POPE LEO XIII ON 
 THE PROHIBITION AND CENSURE OF BOOKS. 
 
 257. "The head and sum of the duties and offices 
 which must be most dilig^ently and sacredly observed 
 in this apostolic dig-nity is assiduously to watch, and 
 with fullest stren^-th to strive that the integ-rity of 
 christian faith and morals suffer no loss. And that, 
 more than at any other, is especially necessary at 
 this time, when, throug-h the unbri.dled license of 
 men's minds and hearts, almost every doctrine which 
 the savior of men, Jesus Christ, delivered to the 
 keeping" of his church for the salvation of the human 
 race is daily called into question and endangered. 
 In this strife against Christ certainly varied and in- 
 numerable are the crafty and ingenious arts of his 
 enemies; but full of danger above all others is that 
 of intemperate writing and publishing broadcast 
 what is written. For nothing more dangerous could 
 be imagined to corrupt men's minds through con- 
 tempt of relig-ion and their hearts through incentives 
 to sin. Wherefore the church, the guardian and the 
 mediator set to preserve faith and morals, fearing 
 such great ill, very early understood that she must 
 take some remedy against this plague; and for this 
 end, as far as she could, has alwa^^s striven to safe- 
 g'uard men against this terrible poison, reading bad 
 
 243 
 
244 LEGAL FOKMULARY. 
 
 books. The days nearest to her founding- saw the 
 vehement zeal of Blessed Paul in this matter, and so, 
 likewise, has every following* ag^e witnessed the vig"- 
 ilance of the holy fathers, the ordinance's of bishops 
 and the decrees of councils. And especially it is tes- 
 tified by documentary records how vig-ilantly the 
 Roman Pontiffs have gfuarded ag*ainst heretical writ- 
 ing's creeping- in, to the injury of the public. Anas- 
 tasius I, by solemn edict condemned the more dan- 
 g-erous writing-s of Orig^en; Innocent I, those of 
 Pelag-ius, and Leo the Great all the books by the 
 Manicheans. Well known in this connection are the 
 decretal letters which Gelasius opportunely issued 
 reg-arding- the books which migfht and mio^ht not be 
 accepted. And so likewise, as time went on, did the 
 sentence of the Apostolic See pin down as erroneous 
 the pestilent books of the Monothelites, of Abelard, 
 of Massilius of Padua, of Wickliff, and of Huss. 
 But in the fifteenth century, when the art of print- 
 ings had been discovered, not only was attention 
 directed ag-ainst those evil books which had already 
 seen the lig-ht, but precautions were taken ag-ainst 
 the issue of such books in future. And, indeed, at 
 that period this foresig-ht was required not from any 
 lig-ht motive, but for the very protection of virtue 
 and public safety; for not only too many people had 
 immediately turned aside an art in itself most excel- 
 lent, the source of thegreatest blessing's, and cal- 
 culated to further the social well-being- of the chris- 
 tian world, into a gfreat weapon for ruin; but the 
 already g-reat evil of wicked writing-s was made 
 g-reater and more rapid by the ease with which they 
 could be spread abroad. Therefore in their most 
 
NEW RULES OF INDEX. 245 
 
 salutary wisdom did our predecessors, both Alex- 
 ander VI and Leo X decree certain enactments, be- 
 fitting* the moral requirements of their time, for the 
 purpose of restraining* within bounds the publishers 
 of those days. 
 
 258. But soon the wind became a whirlwind, and 
 •it was necessary to repress the pestilence of these 
 wicked heresies with more vig-ilant sternness. So 
 the same Leo X, and afterwards Clement VII, most 
 forcibly decreed it to be unlawful to read or to pos- 
 sess the works of Luther. But when, to the misery 
 of that ag'e, the impure swill of these pernicious 
 books had beyond bounds increased and crept into 
 every place, there seemed to be need of a remedy fuller 
 and more promptly efficacious. And this remedy our 
 predecessor, Paul IV, at once provided by issuing- a 
 list of books and writing's ag^ainst which the faithful 
 were warned. And soon after, the Fathers of the 
 council of Trent labored to restrain the increasing- 
 license in reading* and writings by a new decree. It 
 was their will and enactment that authorities and 
 theologfians should be chosen for the duty not alone 
 of increasing* and perfecting* the Index which Paul 
 IV had issued, but of framing* rules to serve as a 
 g*uide for publishers, readers and users of these 
 books; and to these rules Paul IV g*ave the force of 
 his apostolic recog*nition. 
 
 259. But the very reason of the public welfare, 
 which in the beg*inning* had beg*otten the Tridentine 
 reg*ulations, made chang*es necessary in them as time 
 went on. And the Roman Pontiffs, Clement VIII, 
 Alexander VII and Benedict XIV, prudently mind- 
 
246 LEGAL FORMULARY. 
 
 ful of the needs of the times, made several decrees to 
 develop them and adapt them to the day. 
 
 Now, these things clearly show^ that the principal 
 anxiety of the Roman Pontiffs has ever been to ward 
 off that twin pest and ruin of communities — errors in 
 opinion and depravity in morals — from the civil and 
 social life of men. Nor did energy fail to be fruit- 
 ful so long" as in this, the administration of public 
 affairs, God's eternal law expressed its rig^ht to order 
 and forbid, and the g-overnors of commonwealths 
 worked in unison with ecclesiastical authority. 
 E^veryone knows what followed. When time had 
 gradually chang-ed the aspect of affairs and man's 
 environment, the church, as is her wont, prudently 
 took such steps as seemed most useful and expedient 
 to the common weal. Several of the ordinances of 
 the Rules of the Index, which seemed no long'er op- 
 portune, she either removed by decree, or, with a 
 kindliness equalled by its foresig'ht, permitted to be 
 reg"arded as obsolete, in view of the streng"th of cus- 
 tom and use around her. In quite recent times Pius 
 
 IX, from his pontifical pre-eminence, sent letters to 
 archbishops and bishops in partial mitig^ation of Rule 
 
 X. And as the Vatican council drew near he g"ave 
 the duty to some learned men, chosen to prepare 
 arg'uments, to weig"h out and appreciate all the Index 
 rules and to appraise what should be done with them. 
 They unanimously decided that they oug-ht to be 
 chang-ed and several of the Fathers openly professsd 
 their ag^reement with this decision and asked the 
 council to ratify it. On this point letters are extant 
 from French bishops expressing- the opinion that it 
 was necessary and too urg-ent to be delayed "to put 
 
NEW RULES OF INDEX. 247 
 
 the rules and the whole Index upon a basis better 
 adapted to the ao^e and easier to observe." And the 
 same opinion was held by the German bishops, who 
 asked that the "Rules of the Index . . . should 
 be submitted to a new revision and be edited afresh." 
 And many bishops from Italy and the other countries 
 were of the same mind. And these all, if we keep 
 in view the state of the times, of civil enactments, 
 of popular usag'es, make a just request, and one in 
 accord with the maternal charity of holy church. 
 For in the rapid march of minds there is no field of 
 knowledge in which literature does not too boldly 
 wander; whence comes the daily «flut of pestilent 
 books. And what is sadder still is that amid this 
 g"reat evil the public laws are not only conniving', 
 but allowinof g'reat license. Hence, on the one hand, 
 the minds of so many are loosed from relig"ion, and 
 on the other such perfect impunity of reading" with- 
 out restraint w^hatever issues from the press. 
 Wherefore, bent on remedying" these troubles, We 
 have considered two thing's feasible, from which all 
 may g'ather a certain and clear rule of action in this 
 matter. First, that the Index of books unfit to be 
 read should be most diligfently re-examined, and, 
 when this is done, should be published. Secondly, 
 We have considered the rules and have decreed, 
 while preserving' them in substance, to make them 
 easier, so that anyone, unless he be of evil mind, will 
 not find it hard or troublesome to obey them. In 
 this not only are We follow^ing- the example of our 
 predecessors, but We are imitating- the maternal 
 zeal of the church, which desires nothing' so deeply 
 as to show herself kind, and has so w^atched over and 
 
248 LEGAIv FORMULARY. 
 
 still watches over her ailing- children that she may 
 with zealous love be sparing to their weakness. 
 
 260. Whence, after mature consideration with the 
 cardinals of holy church who belong- to the Sacred 
 Council of the Index, We have decided to issue the 
 g-eneral decrees w^hich are written below and are 
 conjoined with this constitution; which rules alone 
 are to be used by the said sacred council, and to be 
 religiously obeyed by catholics throughout the world. 
 We wish that these alone be regarded as law and 
 We abrogate the rules issued by order of the holy 
 council of Trent, the observations, instructions, 
 decrees and monitions, and whatever else has been 
 decreed and ordered on this matter by our prede- 
 cessors, excepting alone the constitution "SoUicita 
 et Provida" of Benedict XIV, which We decide to 
 leave in force, as it now is in force. 
 
 Section I — The Prohibition oj Books. 
 
 CHAPTER I. 
 
 THE FORBIDDEN BOOKS OF APOSTATES, HERETICS, SCHISMATICS AND 
 
 OTHER WRITERS. 
 
 261. 1. All books which were condemned before 
 the year 1600 by the Supreme Pontiffs or by oecum- 
 enical councils, and which are not enumerated in 
 this new Index, must be considered condemned as 
 before, with those exceptions which are permitted by 
 these general decrees. 
 
 2. Books of apostates, heretics, schismatics and 
 all other writers which defend heresy or schism, or 
 in any way tend to overthrow the basis of religion, 
 are absolutely forbidden. 
 
 3. L/ikewise are forbidden books of non-catholics 
 which professedly treat of religion, unless it is known 
 
PROHIBITION OF ROOKS. 249 
 
 that they contain nothing- contrary to catholic faith. 
 4. Books of those authors who do not professedly 
 treat of religion, but merely in passing touch on 
 truths of faith, are not to be considered forbidden by 
 ecclesiastical law until they are proscribed by special 
 decree. 
 
 CHAPTER II. 
 
 THE EDITIONS OF THE ORIGINAL TEXTS OF HOLY SCRIPTURE AND OF 
 VERSIONS NOT IN THE VULGAR TONGUE. 
 
 262. 5. Editions of the orig-inal text and of 
 ancient catholic versions. of sacred scripture, even of 
 the oriental church, published by any non-catholics, 
 even though apparently edited faithfully and integ- 
 rally, are allowed to those only who are engaged in 
 theologfical or biblical studies, provided, however, 
 no attack be made, in the prefaces or notes, on 
 dogmas of the catholic faith. 
 
 6. In the same way and under the same conditions 
 are allowed other versions of the holy bible edited 
 by non-catholics, whether in Latin or any other 
 classic lang-uage. 
 
 CHAPTER III. 
 
 VERSIONS OF HOLY SCRIPTURE IN THE VERNACULAR. 
 
 263. 7. Since experience has proved that, on ac- 
 count of man's boldness, more evil than good arises 
 if the sacred books are allowed to all without check 
 in the vulgar tongue; therefore all versions in the 
 vernacular, even though made by catholics, are en- 
 tirely forbidden unless approved by the Holy See or 
 issued under the care of bishops, with notes taken 
 from learned catholic writers. 
 
 8. Prohibited are all versions of the holy scriptures 
 
 made by whatever non-catholic writers in whatever 
 33 
 
250 IvE;gal formulary. 
 
 vulg"ar tong^ue, and those especially which are spread 
 broadcast by bible societies, ag"ain and ag-ain con- 
 demned by the Roman Pontiffs, since they entirely 
 discard the most salutary laws of the church relative 
 to the issuing- of the divine books. But these ver- 
 sions are allowed to those who are eng^ag^ed in theo- 
 log*ical or biblical studies on observing- the reg^ula- 
 tions set forth above in No. 5. 
 
 CHAPTER IV. 
 
 INDECENT ROOKS. 
 
 264. 9. Books which professedly treat on, nar- 
 rate, or teach lasciviousness or obscenity — for here 
 the question is not one of faith merely, but of morals, 
 which are easily corrupted by the reading- of such 
 books — are absolutely prohibited. 
 
 10. Books, whether they be of authors ancient or 
 modern, belong-ing- to what are called the classics, if 
 infected by this taint of turpitude, are, on account 
 of their eleg-ance and propriety of lang-uag-e, per- 
 mitted to those only whose station or teaching* office 
 affords a reason; but on no account, unless expur- 
 g-ated with exceeding" care, must they be g-iven to or 
 read before boys and youths. 
 
 CHAPTER V. 
 
 SOME BOOKS OF A PARTICULAR KIND. 
 
 265. 11. Books detracting- from the reverence due 
 to God, the Blessed Virg-in, the saints, the church 
 and its worship, the sacraments or the Apostolic See, 
 are condemned. Under the same prohibition come 
 those works in which the idea of the inspiration of 
 holy scripture is perverted or its extension too 
 strictly limited. Books in w^hich the ecclesiastical 
 
PROHIBITION OF BOOKS. 251 
 
 hierarchy or the clerical or relig-ious state is delib- 
 erately assailed with opprobrium are likewise 
 forbidden. 
 
 12. It must be held as unlawful to publish, read or 
 keep books in which fortune tellintf, divination, 
 mag^ic, the summoning- of spirits and other such 
 superstitions are tauo'ht or recommended. 
 
 13. Books or writings which tell of new appari- 
 tions, revelations, visions, prophecies and miracles, 
 or which introduce new devotions, even under the 
 pretext that they are private, are proscribed if the}^ 
 are published without due permission from ecclesi- 
 astical superiors. 
 
 14. In like manner are prohibited books which 
 uphold the lawfulness of the duel, suicide or divorce, 
 which treat of the masonic sects and other societies 
 of that kind, and maintain that these are not bane- 
 ful, but useful to the church and civil society, and 
 which defend errors proscribed by the Hol}^ See. 
 
 CHAPTER VI. 
 
 SACRED PICTURES AND INDULGENCIES. 
 
 266. 15. Pictures, however printed, of our Lord 
 Jesus Christ, the Blessed Virg-in Mar3^ the an^'els 
 and saints, or other servants of God, which are not 
 in conformity with the sense and decrees of the 
 church, are absolutely forbidden. New ones, 
 whether prayers be attached or not, are not to be 
 published without the permission of the ecclesiasti- 
 cal authorit3\ 
 
 16. All persons are interdicted from publishint>- in 
 any way indulg-encies which are apocryphal and have 
 been condemned or recalled by the Holy Apostolic 
 
252 LEGAL FORMULARY. 
 
 See. Those that have been already published are to 
 be withdrawn from the faithful. 
 
 17. All books, epitomes, pamphlets, leaflets, etc., 
 recording orrants of indulg*encies are not to be pub- 
 lished without license from competent authority. 
 
 CHAPTER VII. 
 
 LITURGICAL BOOKS AND PRAYER-BOOKS. 
 
 267. 18. Let no one take upon himself to make 
 any alteration in authentic editions of the Missal, 
 the Breviary, the Ritual, the Ceremoniale Episco- 
 porum, the Roman Pontifical, and other liturg-ical 
 books approved by the Holy Apostolic See; in case 
 this has been done, the new editions are prohibited. 
 
 19. No litanies except the most ancient and the 
 ordinary ones, which are contained in the Breviaries, 
 Missals, the Pontificals and the Rituals, the Lita- 
 nies of the Blessed Virofin which are usually sung* in 
 the Holy House of Loretto, and the Litanies of the 
 Holy Name of Jesus already approved by the Holy 
 See, are to be published, without the revision and 
 approbation of the Ordinary. 
 
 20. Let no one, without license from legfitimate 
 authority, publish books or pamphlets of prayers, 
 devotion, or relig"ious, moral, ascetic and mystic doc- 
 trine and teaching-, or other books of this kind, even 
 thoug'h they may appear calculated to promote the 
 piety of christians; otherwise they are to be deemed 
 prohibited. 
 
 CHAPTER VIIL 
 
 JOURNALS, LEAFLETS AND PERIODICALS. 
 
 268. 21. Journals, leaflets and periodical publica- 
 tions w^hich of set purpose attack relig^ion and moral- 
 
PROHIBITION OF BOOKS. 253 
 
 iW are to be reofarded as proscribed not onl}^ by 
 natural but also by ecclesiastical law. 
 
 And when necessary let the ordinaries take care to 
 warn the faithful opportunely with retJfard to the 
 dano-er of such reading- and the injury it causes. 
 
 22. Let no catholic, especially no ecclesiastic, 
 publish an3^thino- in journals, leaflets or periodical 
 publications of this kind, except for a just and rea- 
 sonable cause. 
 
 CHAPTER IX. 
 
 THE PERMISSION TO READ AND KEEP PROHIBITED BOOKS. 
 
 269. 23. Books condemned by special decrees or 
 by these General Decrees can be read and kept only 
 by such as have received due authori/.ation from the 
 Hol}^ See or from those to whom it has deleg*ated the 
 requisite power. 
 
 24. The Roman Pontiff set up the Sacred Congre- 
 g"ation of the Index to g"rant licenses for reading* and 
 keeping" whatsoever books are prohibited. But both 
 the Supreme Cong'reg'ation of the Holy Office and 
 the Sacred Cong-reg'ation of the Propag^anda Fide 
 possess the same power for the reg'ions subject to 
 their jurisdiction. This authority belong's likewise 
 to the Master of the Sacred Apostolic Palace, but 
 merely for the city. 
 
 25. Bishops and other prelates holding- quasi- 
 episcopal jurisdiction can g^rant a license for sing-le 
 books, and only in urg'ent cases. And if they shall 
 have obtained from the Apostolic See the gfeneral 
 power of g'ranting the faithful a license to read and 
 keep prohibited books, let them g-ive it only in chosen 
 cases and for g*ood and reasonable cause. 
 
 26. All who have obtained apostolic authorization 
 
254 LEGAL FORMULARY. 
 
 to read and keep prohibited books are not thereb}^ 
 empowered to read and keep any books whatsoever 
 or journals proscribed by the local ordinaries, unless 
 the power of readino; and keeping- books by whomso- 
 ever condemned be expressly ^iven to them in the 
 apostolic indult. Moreover, they who have procured 
 a license to read prohibited books must remember 
 that they are bound by a g^rave precept to o-uard 
 such books so that they may not fall into the hands 
 of others. 
 
 CHAPTER X. 
 
 THE DENUNCIATION OF BAD BOOKS. 
 
 270. 27. Althoug-h it is the duty of all catholics, 
 particularly of those eminent in learning', to denounce 
 bad books to the bishops or the Apostolic See, still 
 this duty belong-s by a special title to nuncios, dele- 
 gfates apostolic, local ordinaries, and rectors of uni- 
 versities which are notable as seats of learning*. 
 
 28. It will be w^ell when denouncing- bad books 
 not only to indicate the title, but, also, as far as 
 it can be done, to explain the reasons for which the 
 book is thoug^ht deserving* of censure. And for those 
 to whom the denunciation is addressed it will be a 
 sacred duty to keep secret the names of the de- 
 nouncers. 
 
 29. Let ordinaries also, as deleg^ates of the Apos- 
 tolic See, endeavor to proscribe and take out of the 
 hands of the faithful bad books and other pernicious 
 writing's published or circulated in their dioceses. 
 Let them submit to the apostolic judg'ment those 
 works or writing's which require a closer examina- 
 tion or for which in order to insure a salutary effect. 
 
CENSORSHIP OF BOOKS. 255 
 
 the decision of the highest authority may appear to 
 
 be needed. 
 
 Section II. — The Censor ship of Books. 
 
 CHAPTER I. 
 
 THE AUTHORITIES WHO HAVE CHARGE OF THE CENSORSHIP OF BOOKS. 
 
 271. 30. From what has been laid down above 
 (No. 7) it is clear with whom lies the power of ap- 
 proving- or permittin<*" editions and versions of the 
 sacred scriptures. 
 
 31. Let no one dare agfain to publish books which 
 have been forbidden by the Apostolic See; should an 
 exception appear admissable in any particular case 
 for a g'rave and reasonable cause, it is never to be 
 made until a license has first been obtained from the 
 Sacred Congreg-ation of the Index and the conditions 
 prescribed by it have been observed. 
 
 32. Whatever pertains in an}^ way to the causes of 
 beatification and canonization of the servants of God 
 cannot be published without the sanction of the 
 Sacred Congreg'ation of Rites. 
 
 33. The same is to be said of the collections of the 
 decrees of the different Roman cong reflations; that is 
 to say, these collections cannot be published unless 
 license has previously been obtained and the condi- 
 tions laid down by the directors of each cong-reo-ation 
 have been observed. 
 
 34. Vicars apostolic and missionaries apostolic are 
 to observe faithfully the decrees of the Sacred Con- 
 ^reg"ation of Propa<;>'anda with reg'ard to the publish- 
 ing' of books. 
 
 35. The approbation of books, the censorship of 
 v^'hich is not reserved by the present decrees to the 
 
256 LEGAL FORMULARY. 
 
 Holy See or the Roman congregations is a matter 
 appertaining to the ordinary of the place at which 
 they are published. 
 
 36. Regulars are to remember that, in addition to 
 the license from the bishop, they are bound by a de- 
 cree of the sacred council of Trent to obtain author- 
 ization for the publication of a book from the 
 superior to whom they are subject. And such per- 
 mission is to be printed at the beginning or the end 
 of the work. 
 
 37. If an author living in Rome wishes to publish 
 a book elsewhere than in the city, no other approba- 
 tion is required but that of the Cardinal Vicar of the 
 city and the Master of the Sacred Apostolic Palace. 
 
 CHAPTER II. 
 
 THE DUTY OF CENSORS IN THE EXAMINATION OF BOOKS BEFORE 
 
 PUBLICATION. 
 
 272. 38. Let bishops to whose office it belongs to 
 grant authority to print books take care to entrust 
 the examination of them to men of approved piety 
 and learning, upon whose faith and integrity they 
 can rely, confident that they will not be influenced 
 by favor or ill-will, and that all human considera- 
 tions will be put aside. 
 
 39. The censors are to recognize that of the vari- 
 ous opinions and views (according to the injunction 
 of Benedict XIV) they must judge with a mind free 
 from all prejudices. They must, therefore, discard 
 affection for any particular nation, family, school, or 
 institution, and put away from them party zeal. 
 Let them keep before them the dogmas of holy 
 church and the common teaching of catholics which 
 are contained in the decrees of the general councils, 
 
CENSORSHIP OF BOOKS. 257 
 
 the constitutions of the Roman Pontiffs, and the 
 consensus of the doctors of the church. 
 
 40. On the completion of the examination, if there 
 appears to be nothing- ag^ainst the publication of the 
 book, let the ordinary give the author in writing and 
 entirely gratis, permission for its publication to be 
 printed at the beginning* or the end of the work. 
 
 CHAPTER III. 
 
 BOOKS TO BE SUB^IITTED TO CENSORSUIP BEFpRE PUBLICATION. 
 
 273. 41. All the faithful are bound to submit to 
 ecclesiastical censorship before publication at least 
 those books which have reference to the hol}^ scrip- 
 tures, sacred theology, ecclesiastical history, canon 
 law, natural theology, ethics or other religious or 
 moral subjects of this kind, and in general all writ- 
 ing's specially concerning religion and morality. 
 
 42. Let not members of the diocesan clergy pub- 
 lish even books treating of the arts and purely nat- 
 ural sciences without having consulted their ordi- 
 naries, so that they may give a proof of their obedi- 
 ence towards them. They are forbidden to under- 
 take the directing of journals or periodical sheets 
 without first having obtained leave from the ordi- 
 naries. 
 
 CHAPTER IV. 
 
 PRINTERS AND PUBLISHERS OF BOOKS. 
 
 274. 43. Let no book subject to ecclesiastical cen- 
 sure be printed unless it bears at the beginning the 
 name and surname both of the author and publisher; 
 also the name of the place and the year in which it is 
 printed and published. If in any case it seems w^ell 
 
 that the name of the author should be withheld, the 
 34 
 
258 LEGAL FORMULARY. 
 
 power of permitting' this is to lie with the ordinary. 
 
 44. Printers and publishers of books should bear 
 in mind that new editions of a work which has been 
 approved require a fresh approbation, and that the 
 approbation gfiven to the original text does not suf- 
 fice for its translation into another lang-uag^e. 
 
 45. Books condemned by the Apostolic See must 
 be considered condemned everywhere, no matter in- 
 to what languag-e they are translated. 
 
 46. Let all vendors of bool^s, especially those who 
 rejoice in being- catholics, neither sell, supply nor 
 keep books treating "ex professo" of obscene mat- 
 ters; other prohibited books let them not keep for 
 sale, unless they shall have obtained leave through 
 the ordinary from the Sacred Cong-regation of the 
 Index, and let them not sell them to anyone unless 
 in the exercise of a wise discretion thev can form the 
 opinion that they are lawfully sought by the pur- 
 chaser. 
 
 CHAPTER V. 
 
 PENALTIES AGAINST TRANSGRESSOES OF THE GENERAL DECREES. 
 
 275. 47. All and everyone reading, without the 
 authoris^ation of the Apostolic See, the books of 
 apostates and heretics which champion heresy, also 
 the books of any author whatsoever expressly for- 
 bidden by apostolic letters, and keeping, printing or 
 in any way defending those books, incur ipso facto 
 excommunication specially reserved to the Roman 
 Pontiff. 
 
 48. Those who, without the approbation of the 
 ordinary, print or cause to be printed the books of 
 the sacred scriptures or notes or commentaries upon 
 
CENSORSHIP OF BOOKS. ^ 259 
 
 them fall ipso facto under excommunication un- 
 reserved. 
 
 49. Those who shall have transg^ressed in the 
 other thing's prescribed by these g^eneral decrees are 
 to be seriously admonished by the bishop in accord- 
 ance with the degree' of g*ravity in the transgression; 
 and if it shall appear fitting-, let them be restrained 
 by canonical penalties. 
 
 We decree that this letter and all that it contains 
 can never be censured or impug^ned on the g^round of 
 its having- been obtained throug-h furtiveness or sur- 
 prise, of imperfect intention on our part, or of any 
 other defect whatsoever, that it ever shall be and 
 is in force, and that it should be inviolably observed, 
 judicially and otherwise, by all persons of whatso- 
 ever deg-ree or pre-eminence, also declaring- null and 
 void the action of anyone, by whom, with whatever 
 authority or under whatsoever pretext, knowingly 
 or unknow^ing-ly, an3'thing- different to this should 
 happen to be attempted, everything- to the contrary 
 notwithstanding-. 
 
 Moreover, We desire that copies of this letter, 
 even when printed — subscribed, however, by a not- 
 ary and streng-thened by the seal of the ecclesiasti- 
 cal dig-nitary — should have the same credit as would 
 be g-iven to the indication of Our Will on the presen- 
 tation of the present letter. 
 
 To no man, then, let it be permitted to violate this 
 pag-e of our constitution, ordinance, limitation, re- 
 striction and will, or with rash daring- to g-o ag-ainst 
 what it prescribes. And if an3'one should presume 
 to do so, let him know that he will incur the dis- 
 
260 IvKGAL FORMULARY. 
 
 pleasure of Almig-lity God and the Blessed Apostles 
 Peter and Paul. 
 
 Given at St. Peter's, Rome, on the 25th of Febru- 
 ary, in the year of the Incarnation of Our Lord, 
 18%, the nineteenth year of Our Pontificate. 
 
 A. CARD. MACCHI. 
 
 A. PANici, Subdatarius. 
 
 VISA 
 DE CURIA I. DE AQUIIvA E VICECOMITIBUS 
 
 Loco Plunibi. 
 
 Reg", in Secret. Brevium, 
 
 I. CUGNONIUS." 
 
 DuBiuM CIRCA Revisionem Librorum. 
 
 In cong-reg'atione g^enerali habita in aedibus Vati- 
 canis die 1 Septembris 1898, proposito dubio super 
 Constitutione "Officioruni et munerum," videlicet: 
 "An peracto examine, Ordinarii teneantur auctori, 
 deneg*atae licentiae librum publicandi, rationes mani- 
 festare?" 
 
 E^minentissimi Patres, re mature perpensa, respon- 
 dere decreverunt: "Affirmative, si liber videatur 
 correctionis et expurg'ationis capax." 
 
 Datum Romae ex S. Indicis Cong-reg-ationis Secre- 
 taria, die 3 Septembris 1898. 
 
 Fr. Andreas Card. Steinhuber, Praif. 
 Fr. Marcoeinus Ciccognani, Secret. 
 
CHAPTER X. 
 
 VARIOUS EDICTS : VISITATION, SYNOD, SEMINARY, 
 FOUNDATION OF CONVENTS, COLLECTING ALMS. 
 
 276. One of the chief cares of a bishop is the visi- 
 tation of his diocese. While this duty may be dele- 
 g'ated by a special mandate, still unless a just cause 
 and impediment render it impossible this work should 
 be performed personally by the bishop. In this vis- 
 itation of the diocese he beg"ins with the church he 
 prefers and is free to follow an order convenient for 
 himself. The order and dates of visitation are 
 usually published with the decree. The list of per- 
 sons and thing's to be visited is to be found in the 
 Roman Pontifical, Part III, and is given below. 
 
 But among* other thing's, the bishop, at least in his 
 first visitation, may ask for letters showing* ordina- 
 tion and appointments and he may insist on an in- 
 ventory of all church property being* made and filed 
 in the diocesan chancery. [Cf. ^uarantus in 
 Siivima BuUarum, v. Archiviuni.) The expenses of 
 the visitation as well as the maintenance of the 
 bishop are to be arrang-ed in diocesan synod, not out- 
 side. {Cf, II Bait. )i. loo. Ill Ball. )i. 14.) 
 
 277. Following* is a form for the edict of visitation: 
 
 "N. By the g'race of God and the favor of the 
 Apostolic See Bishop of N. 
 
 Being* about to undertake the visitation of our 
 
 261 
 
262 LEGAIv FORMULARY. 
 
 diocese in accordance with the prescription of the 
 holy council of Trent and the sacred canons; We 
 therefore g-ive notice to each and all the faithful 
 under our jurisdiction and all others interested, that 
 We will visit, with our ordinary and also deleg"ated 
 authority, each and all churches of this city and dio- 
 cese, as well as all chapels, oratories, altars, ceme- 
 teries, hospitals, colleg"es, schools and other pious 
 places, convents of nuns and of reg"ulars which by 
 virtue of apostolic decrees are subject to Us; the 
 cathedral chapter and its members and likewise all 
 clerics, confessors, priors, syndics and ministers of 
 hospitals, confraternities and other pious places; and 
 the whole diocese. 
 
 Therefore let all the above mentioned know that 
 
 on the day of — A. D. 18 — , We shall beg^in 
 
 the work of visitation in our cathedral church and 
 continue it as announced below, with the purpose 
 and to the end that as much as in Us lies with the 
 help of God we may procure the salvation of souls, 
 increase of divine worship, betterment in the state of 
 the church, preservation of morality in the people 
 and discipline in the clerg-y. Wherefore We warn 
 each and all to whom pertains the care of g-overn- 
 ment or administration of the said churches, monas- 
 teries, cemeteries and pious places, or the celebra- 
 tion of masses and divine offices or the performance 
 of other functions, that, on the day on which We 
 shall visit the aforesaid places they shall produce 
 and show to Us the books of their administration, 
 showing- exactly receipts and expenses, the fulfil- 
 ment of masses and of other oblig*ations, and shall 
 also indicate the oblig^ations or debts existing* on the 
 said places, insurance policies, sources of income, 
 statutes or constitutions, and an inventory of all the 
 movable and immovable property thereunto pertain- 
 ing-. Further let all the dig-nitaries, canons and 
 beneficiaries of the cathedral chapter, parish priests, 
 confessors, vicars, chaplains and other clerics of our 
 
EDICT OF VISITATION. 
 
 263 
 
 whole diocese be present and assist at the visitation 
 of their respective churches, and let each show the 
 title, revenue, oblig-ations and their fulfilment of 
 the respective benefice, diornity, prebend, order, which 
 he holds in the said church under pain of dol- 
 lars, as a fine to be applied to pious places and uses. 
 But if anyone desires to suf^^est anything- which 
 concerns the ^lory of God, the convenience or utility 
 of the church or the salvation of souls. We exhort 
 him to make it known to Us by word of mouth or in 
 writingf. And in order that no one may plead ignor- 
 ance of these premises We have ordered this our 
 edict to be published in the usual way. Given &c. 
 [l. s.] N. Bishop of N — . 
 
 N. Chancellor." 
 
 Here should follow the dates assig^ned to each 
 church. 
 
 278. Following- is a list of thing's subject to epis- 
 copal visitation: 
 
 Of the Hohf Eucharist. 
 
 Tabernacle. 
 Veil, and how man3'. 
 Interior linin^r. 
 Corporal spread out. 
 Ciboriuni; bowl silver, 
 
 gilt within. 
 Vessel for purif3-ing' the 
 
 fingers. 
 
 Font. 
 
 Cover. 
 
 Rails- 
 
 Ambry on the Gospel side 
 
 of Sanctuary. 
 Inscription (exteriof and 
 
 interior.) 
 
 In a public position. 
 Pierced grating-. 
 
 Ambry. 
 Lining. 
 Reliquaries. 
 
 Veil of ciboriuni. 
 
 Particles. 
 
 Fragments. 
 
 Renewed, how often. 
 
 Key. 
 
 Lamp, always burning. 
 
 Umbrellino for proces- 
 
 Processional canopy. 
 P3X, for the sick. 
 Burse, etc., for Commu- 
 nion of the sick. 
 Monstrance. 
 
 Throne, for benediction. 
 Portable lanterns. 
 
 sions. 
 
 Humeral-veil. 
 
 Of the Baptistery. 
 
 
 Water. 
 Drain. 
 Shell. 
 
 Holy oils. 
 
 Salt. 
 
 Cloths. 
 
 Of the Hoi)/ Oils. 
 
 
 Vessels for holy oils. 
 Cotton wet with oil, dry 
 
 cotton above. 
 Purple burse, or cover. 
 
 How brought from the 
 
 cathedral. 
 Renewal. 
 Burning the old. 
 
 Of the Confessionals. 
 
 
 Thick veil. 
 Pictures. 
 
 Doors with bolt. 
 Purple stole. 
 
 Of the Holy Belies. 
 
 
 Names. 
 
 Approbation. 
 
 Exposition. 
 
 Key. 
 
 Proper Offices. 
 
 Festivals. 
 
264 
 
 LEGAIv FORMULARY. 
 
 Hig-h Altar. 
 Steps up to it. 
 Steps upon it. 
 Stone Altar. 
 Consecration. 
 Wax-cloth. 
 Altar-cloths. 
 Their blessing-. 
 Crucifix. 
 
 Choir. 
 
 Large Crucifix, in a prom- 
 inent place. 
 
 Bishop's throne, steps 
 and canopy. 
 
 Nave and aisles. 
 
 Walls. 
 
 Images of saints. 
 
 Pulpit. 
 
 Windows. 
 
 Vaults. 
 
 Seats. 
 
 Division of sexes. 
 
 Roof. 
 
 Pavement. 
 
 Ambry. 
 
 Ambries. 
 
 Lavatory. 
 
 Towels. 
 
 Kneeling-desk. 
 
 Prayers before and after 
 
 Mass. 
 Prayers for vesting. 
 Altar-cloths. 
 Finger-cloths. 
 Communion-cloths. 
 Altar-breads, where made 
 Cottas. 
 
 Missal-markers. 
 Bier. 
 Pall. 
 
 Book-stands. 
 Book. 
 
 Supplement to Missal. 
 Ordo celebrandi. 
 Ritus servandus. 
 Missals, binding. 
 
 INDEX OBSERV 
 
 Name. 
 
 Surname. 
 
 Country. 
 
 Age. 
 
 When appointed. 
 
 Profession of faith. 
 
 Income. 
 
 Obligations satisfied. 
 
 Divine office. 
 
 Faculties. 
 
 Parish books and papers. 
 
 Residence. 
 
 Mass. how often. 
 
 Sermons. 
 
 Publication of feasts, 
 
 fasts, pastorals. 
 Catechism, 
 Vespers. 
 Processions. 
 
 Of the Altars. 
 
 Candlesticks. 
 Statues. 
 Pictures. 
 Altar-cards. 
 Covering. 
 
 Cloths for changing. 
 Antependiums, and how 
 many. 
 
 0/ the Chnrch Itself. 
 
 Alms-chests. 
 
 Holy-water stoups. 
 
 Doors. 
 
 Churchyard. 
 
 Cross therein. 
 
 Trees. 
 
 Bell-tower. 
 
 Bells. 
 
 Their blessing. 
 
 Ladders, ropes. 
 
 Roof. 
 
 Spire. 
 
 Weathercock. 
 
 Pavement. 
 
 Door. 
 
 Key. 
 
 Of the Sacristy. 
 
 Chalices. 
 
 Patens. 
 
 Purificators. 
 
 Corporals and palls. 
 
 Veils. 
 
 Burses. 
 
 Amices. 
 
 Albs. 
 
 Girdles. 
 
 Stoles, maniples and 
 chasubles, of five colors, 
 for feast days, for ferias 
 
 Dalmatics. 
 
 Tunics. 
 
 Copes of different colors. 
 
 Humeral veils. 
 
 Altar-cushions and book- 
 stands. 
 
 Devout images. 
 
 Cruets. 
 
 ANDORUM IN VISITATIONE 
 
 Proper feasts. 
 
 Customs. 
 
 Monthl3' conferences. 
 
 Servers at Mass. 
 
 Blessing of ashes,candles 
 palms. 
 
 Holy week. 
 
 Blessing houses. 
 
 Holy Sepulchre. 
 
 Blessing font and Pas- 
 chal candle. 
 
 Pious pictures. 
 
 The long litanies. 
 
 Ceremonies in High and 
 Low Mass. 
 
 The administration of the 
 Sacraments. 
 
 Baptism, how long de- 
 layed. 
 
 Canopy. 
 
 Predella. 
 
 Credence. 
 
 Piscina. 
 
 Screen, or rails. 
 
 Beli: 
 
 Endowment. 
 
 Obligations. 
 
 Use of bells. 
 
 Subterranean chapels. 
 
 Patron. 
 
 Improper epitaphs. 
 
 Bur3ing-place for the 
 
 clergy. 
 And for children. 
 Titulars of church. 
 Dedication. 
 Both festivals. 
 Office, how held. 
 Other festivals. 
 Indulgences. 
 Fort3' hours' prayer. 
 Benediction, how often 
 Lights, how many. 
 
 Lavabo-dishes. 
 
 Bells. 
 
 Thurible and boat. 
 
 Processional cross. 
 
 Holy-water vessel and 
 aspersory. 
 
 Pax. 
 
 Banners. 
 
 Flower-vases. 
 
 Triangular candlestick. 
 
 Paschal candlestick. 
 
 Door. 
 
 Key. 
 
 Safe. 
 
 Pavement. 
 
 'Windows. 
 
 Wall. 
 
 Roof. 
 
 Table of obligations. 
 
 Inventory of the afore- 
 said. 
 
 PERSONAKUM. 
 
 Given in private houses. 
 
 Godfathers and godmoth- 
 ers. 
 
 Confessions, where, at 
 what time. 
 
 Instructions for first com- 
 munion. 
 
 Sick persons and how 
 often. 
 
 Visiting sifck, commenda- 
 tion. 
 
 Marriages, how, where. 
 
 Other functions. 
 
 Lent sermons. 
 
 Funerals. 
 
 Moral and dogmatic the- 
 ology. 
 
 Books, what studied. 
 
VISITING THK DIOCESE. 265 
 
 279. The bishop should watch that his secretary 
 or chancellor of visitation carefully puts in writing 
 all the acts of visitation, because the books in which 
 the provisions, orders and decrees made during* visi- 
 tation are entered constitute full proof. [Cf. Mon- 
 acelli, T. 5, /. 2, 59.) Ag'ainst these decrees there 
 is no suspensive, but only a devolutive appeal. 
 
 280. Following" is a form for appointing- a visitor 
 when the bishop is impeded from visiting- the diocese: 
 
 "N. Episcopus N. Dilecto N. N. &c. 
 
 Cupientes Sacri Concilii Tridentini decretum de 
 visitanda dicecesi exequi, sed, adversa valitudine de- 
 tenti, ecclesias et loca pia personaliter visitare non 
 valentes, Te de cujus fide, integ-ritate, scientia et ex- 
 perientia plene in Domino confidimus, visitatorem 
 totius nostras dioecesis deleg-amus, elig-imus et depu- 
 tamus, cum facultate ecclesias, monasteria, confra- 
 ternitates, coemeteria, hospitalia, colleg-ia, locaque 
 alia pia et relig-iosa visitandi, computa et adminis- 
 trationes eorundem locorum revidendi, debitores, 
 officiales et administratores ad libros exhibendum et 
 reliquatum respective solvendum compellendi juris 
 et facti remediis, sola facti veritate inspecta. Potes- 
 tatem insuper decreta quascunque faciendi et ex- 
 equendi dummodo processum non requirant; procu- 
 rationem a visitatis, prout juris est, exig-endi, et alia 
 gferendi, quae facere, g-erere et exequi tam ordinaria 
 quam etiam deleg-ataauctoritateNosnietipsi visitantes 
 possemus, Tibi omnia gfeneraliter et specialiter coni- 
 mittimus. In quorum fideni &c. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. Cancellarius Episcopalis." 
 
 281. When the bishop, or his delegated visitor, is 
 impeded maliciousl}^ or violently from making- the 
 visitation of places which by law or custom are sub- 
 ject to his visitation, he may enforce his rig-hts even 
 
 .35 
 
266 LEGAL FORMULARY. 
 
 by immediate excommunication of the opponents 
 without other or previous judicial warning-. (6/. ;^. 
 334-335 ^elozv.) Such would be the case, if, when 
 proper notice of visitation has been ^iven, the doors 
 of the place to be visited are locked ag^ainst the 
 bishop or opposition is otherwise notoriously mani- 
 fested. {S. Cong". Cone, in una Vicen. juris visi- 
 tandi 26 Sept. i6gg, et 16 Jan. lyoo.) In similar cir- 
 cumstances he mig-ht interdict the people or place, 
 whenever the honor, reverence and thing's (res) 
 usually g-iven are publich' and injuriously denied the 
 bishop. The same S. Cong-, of theCouncil sustained 
 a censure of interdict thus inflicted. {S. C. C . in 
 Venaphrana interdieti^ 26 Jan. i6gy.) 
 
 282. Following- is a form for excommunication in 
 such circumstances: 
 
 "On the — day of — A. D. — when the Most Rev- 
 erend N. N., Bishop of N — , was exercising- his jur- 
 isdiction by making- visitation, N. N. and N. N. 
 dared actually and notoriously to resist him and to 
 oppose him wishing- to visit the church of N — . 
 Wherefore the aforesaid Most Reverend Bishop in 
 the very act of manifest violence thus offered him, 
 and for the defense of his rigfhts, repelling- force by 
 force, excommunicated the aforesaid N. N. and N.N. 
 and commanded these papers ag-ainst them to be 
 issued and affixed, that they may be avoided by all 
 the faithful. 
 [l. s.] N. Chancellor (or actuary) of Visitation." 
 
 283. The following- form may be used for interdict: 
 
 "We, N. N., Bishop of N— , on this — day of — 
 A. D. — have placed under ecclesiastical interdict the 
 church of N — , (or the city or persons) because (here 
 state the reason.) Sig-ned: 
 [L. s.] N. N. Chancellor. N. Bishop of N— ." 
 
VISITING THE DIOCESE. 267 
 
 The following- form may also be used: 
 
 "This church of N — , (or city or people) is pub- 
 lished as under ecclesiastical interdict by our ordi- 
 nary (or deleg-ated) authority because (here state the 
 reason.) Dated this — day &c. 
 
 [e. s.] N. Bishop of N. 
 
 N. Chancellor." 
 
 284. A diocesan synod is usually held after the 
 bishop's visitation. The sacred canons require that 
 one be held every year and the Third Council of 
 Baltimore, n. 23, sug"g'ests the same, when it enacts 
 that "each year in diocesan synod examiners of the 
 clerg*}^ are to be chosen who will be satisfactory to 
 the synod and approved by it." Each three years 
 the diocesan consultors also are to be chosen after 
 proposal of names by the clerg-y, which undoubtedly 
 can be done satisfactorily only at a meeting- of the 
 priests. The Third Council of Baltimore, n. 20, 
 requires that the bishop ask the advice of his con- 
 sultors before calling* and publishing- a diocesan 
 synod. Hence for safet}^ mention of this advice re- 
 g'arding" the holding* of a synod should be inserted in 
 the minutes of the synod and in the call thereto. 
 In this call, the cathedral chapter, \vhere it exists, 
 should be invited by name to participate. A synod 
 may be held outside a church, but the most appro- 
 priate place is the cathedral. Under no circum- 
 stances is it lawful for a bishop to hold a synod in 
 the diocese of another bishop, even with his consent. 
 He cannot order priests to leave their own diocese. 
 Hence, too, all appointments made in a synod held 
 outside of a bishop's own diocese seem null and void, 
 for the required jurisdiction seems lacking". 
 
268 LEGAL FORMULARY. 
 
 285. Following- is a form for noting- that the advice 
 of the chapter (or consul tors) was asked: 
 
 "Die mensis anno — . 
 
 Convocato coram Ill5^ et RevHiP D. N — Episcopo 
 in ffidibus episcopalibus hujus civitatis N — , capitulo 
 cathedrali, nenipe N. N. et N. N. dignitatibus et 
 canonicis majorem partem capituli constituentibus, 
 ibique capitulariter congregatis, fuerunt per me in- 
 frascriptum, de mandato ejusdem D. N — , Episcopi, 
 intelligibili voce lecta decreta et ordinationes, quae 
 evulg-ari et publicari debent in proxima futura synodo 
 habenda die — mensis — ; super quibus expleta lec- 
 tura, idem D. N — , Episcopus consilium eorundem 
 DD. dignitatum et canonicorum sic capitulariter con- 
 g-reg'atorum requisivit, qua per eos requisitione 
 audita, propositum et determinationem dicti D. N — , 
 Episcopi, synodum habendi et in eadani decreta supra 
 memorata publicandi laudaverunt et approbaverunt. 
 In quorum &c. Presentibus testibus N. N. et N. N. 
 Datum &c. 
 
 N. N. Cancellarius Episcopi." 
 
 The method of choosing the diocesan consultors 
 and synodal examiners was given in the preceding- 
 part of this work, n. 47 and n. 107. - 
 
 286. Following- is a form of edict for calling- the 
 synod: 
 
 "N. Episcopus N— . 
 
 In suscepti a Nobis episcopatus primordiis, gregem 
 curse nostrae divina dispensatione commissum, per- 
 sonaliter visitare et universam dioecesim perlus- 
 trare nequaquam distulimus, et quidem omnium in 
 ea locorum conditionem, ecclesiasticorum disciplinam, 
 necnon populorum mores dignoscentes, ea quae repar- 
 atione aut reformatione indigebant, pro viribus 
 restaurare curavimus. Ut ig-itur quae cultui divino 
 christiana^que pietati consona sunt validius consol- 
 
DIOCESAN SYNOD. - 269 
 
 identur, capituloconsulto, dioecesanam synodum cele- 
 brare decrevimus. Universis proinde ac sing-ulis, 
 qui tarn in civitate quam in coeteris nostrae dirjecesis 
 locis, beneficiis etiam sinecura potiuntur, presbyteris 
 ac clericis tarn in sacris quam in minoribus ordinibus 
 constitutis, aliisque omnibus etiam reg"ularibus qui 
 de jure vel de consuetudine tenentur adesse, in vir- 
 tute sanctae obedientiae, necnon sub poenis per sacros 
 canones injunctis ac aliis arbitrio nostro infligendis 
 praecipimus et mandamus, capitulum autem nostrum 
 peramanter invitamus, ut die — proximi mensis — , 
 quam pro synodo inchoanda sig"nanter indicimus, 
 clericali habitu telari induti, ac aliis indumentis et 
 sio-nis eorum muneribus et ordinibus respective con- 
 g"ruentibus instructi, in ecclesia cathedrali hora 
 octava antemeridiana conveniant. Ut autem id ex- 
 actius ad omnipotentis Dei laudem et g'loriam perfici 
 queat, omuesin Domino enixe obsecramus ut oration- 
 ibus a Patre luminum auxilium Nobis impetrent et 
 seipsos Deo acceptabiles exhibeant. Volumus autem 
 ut hsec synodi indictio affixa valvis ecclesiae cathed- 
 ralis necnon parochialium dioecesis, omnes afficiat ac 
 si fuisset singfulis intimata. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Episcopalis." 
 
 Instructions as to lodg^ino-, hours of meeting* and 
 other thing's usually are sent to those oblig-ed to at- 
 tend the synod. It is evident, too, that a prudent 
 bishop will take counsel of learned, wise and pru- 
 dent men and submit his proposed decrees to them 
 before publishing- them in synod. This is especialh' 
 true when entirely new methods are to be introduced 
 or radical chang^es made. 
 
 287. Among" the chief cares of a diocesan bishop is 
 the erection and conduct of a seminarv for instruct- 
 ing- young- men destined for the priesthood. Accord- 
 
270 LEGAL FORMULARY. 
 
 inof to the council of Trent each diocese should have 
 its seminary. Where this is impossible, at least 
 each province should have a common institution. 
 {C/. Ill Council Bait. n. 153.) For co'unsel and as- 
 sistance in gfoverning" the seminary the bishop is 
 ordered by the council of Trent to choose reg'ents, 
 one of whom he must select from the cathedral 
 chapter, the other from the diocesan clergy. Fur- 
 ther the chapter chooses a regfent and the clerg-y 
 also one, making- four in all. Their tenure is per- 
 petual and they cannot be removed except for cause. 
 Where the seminary is not endowed and has not suf- 
 ficient funds for its support, the regents (deputati) 
 may impose a proportionate tax on the episcopal 
 manse, the chapter, all benefices, even if they are of 
 jus f>atronatus or exempt. If then sufficient support 
 is not at hand, simple benefices may be united to the 
 seminar3\ But a real necessity is required before 
 this union can be effected. 
 
 288. The III Council of Baltimore, n. 178-179 
 following the council of Trent, decrees that the 
 bishop shall select deputati or regents: These 
 deputati are of tw^o kinds: Those whose advice 
 must be asked concerning the internal management 
 of the seminary and those whose advice is necessary 
 regarding the administration of its temporal affairs, 
 such as the levying of a tax for its support, the ex- 
 amination of accounts and the like. For each semi- 
 nary, minor or major, at least two deputies are to be 
 selected, one for the spiritual matters, such as the 
 instruction, discipline and character of the students; 
 the other for temporal concerns. These regents 
 will be chosen for diocesan seminaries by the re- 
 
ERECTION OF SEMINARY. 271 
 
 spective bishops after taking the advice of their con- 
 suitors, and for provincial seminaries by the bishops 
 of the province as a body. 
 
 289. Private seminaries and colleg-es under the 
 manag"emeut of secular priests are declared subject 
 to the jurisdiction and inspection of the diocesan 
 bishop. Those in charofe of religious orders or insti- 
 tutes are to keep the arrano-ement entered into b}^ 
 proper authority. But it should be noted that a 
 bishop cannot without special permission from the 
 Holy See give a seminary into the charo-e of a reli^"- 
 ious order or institute, and whenever such a religious 
 community is put in charg^e, the rig'hts of the bishop 
 should be conserved. {C/. Bened. XIV, dc Syii. 
 Dioeces. I. 5, c. 2, n. g.) 
 
 The council did not make any enactment concern- 
 ing- the support of the seminary. Up to the present 
 time in the United States the usual method has been 
 an annual collection taken up in every church of the 
 diocese, none, even those in charg-e of relig'ious orders 
 being- exempt. {Cf. Const. Rom. Pontifices.) 
 
 290. The following- form for decreeing the erec- 
 tion of a seminary ma}^ be useful: 
 
 "N. N. Episcopus &c. 
 
 Cum in hac civitate et di(]ecesi N — nullum semi- 
 narium majus (vel colleg"ium ecclesiastjcum puer- 
 orum) juxta Concilii Tridentini dispositionem et 
 Tertii Plenarii Concilii Baltimorensis decreta erec- 
 tum et institutum existat, cumque ejusdem necessi- 
 tas seu maxima utilitas indies innotuerit; Nos ig-itur 
 volentes decretis conciliaribus satisfacere et necessi- 
 tati dioecesis consulere in prsemissis opportune pro- 
 videndo, cum concilio N. N. et N. N. nostras cathed- 
 ralis g-raviorum canonicorum, quos pro reg'imine et 
 
272 LEGAL FORMULARY. 
 
 o-ubernio seminarii erigfendi deputatos eli^imus, (vel 
 suscepto dioecesanorum consultorum concilio) in hac 
 civitate in domibus N. in via N — ununi seminarium 
 majus (vel mintis) pro uno illius rectore et competenti 
 nuniero juvenum nostrae dioecesis requtsita a Tertio 
 Cone. Plen. Bait. (tit. 5) habentium perpetuo usu et 
 habitatione, qui in eodem philosophiam, theolo^iani, 
 sacram scripturam, jus canonicum, liturg^iam, alia- 
 que necessaria (mutantur pro minori seminario) edis- 
 cant, perpetuo erig^imus et instituimus; illique sic 
 erecto et instituto, pro ejus dote illiusque rectoris et 
 
 alumnorum sustentatione bona assig'namus et 
 
 appropriamus ita ut liceat rectori et alunmis pro 
 tempore existentibus per se vel alium sive alios etiam 
 dicti seminarii nomine propria auctoritate corporalem, 
 realem et actualem possessionem dictorum bonorum, 
 illorumque functuum, reddituum et proventuum 
 libere apprehendere et apprehensam perpetuo reti- 
 nere, eosdemque fructus et redditus percipere, levare, 
 ac in suos et dicti seminarii usus et utilitatem conver- 
 tere, cujusvis licentia desuper minime requisita. 
 (Si taxa beneficiis est imponenda additur.) Kt quia 
 pro manutentione mag^istrorum et sustentatione 
 alumnorum ac mercede inservientium bona et reddi- 
 tus ut supra assio-nata non sufficiunt, ideo ut portio 
 aliqua et fructibus mensa nostra et aliorum quo- 
 rumcunque beneficiorum etiam regularium civitatis 
 et dioecesis probe ad supplendum dictis expensis ad 
 formam S. Cone. Trid. detrahatur et etiam semin- 
 ario applicetur, pro eoniicienda taxa Rev. Canoni- 
 cum N. N. de capitulo et Rev. N. N. de elero ex 
 parte nostra in consultores eligimus et deputamus; 
 mandamusque ut alii duo, alter per capitulum, alter 
 per clerum infra terriiinum 30 (vel alias) dierum 
 eligantur. Et ita in exeeutionem decreti Cone. 
 Trid. sess. 23, c. 18, de ref. et decretorum Con. Ill 
 PI. Bait, erig^imus, instituimus et bona respective 
 assiofnamus, onini meliori modo quo possumus. 
 [l. s.] Datum &c. N. E^piseopus N." 
 
TAX FOR SEMINARY. 273 
 
 Lectum, latum et publicatum fuit i)rcijscns decre- 
 tum erectionis seminarii in civitate N — in cudibus 
 
 episcopalibus die mensis anno ; pra;- 
 
 sentibus N. et N. ad id pro testibus specialiter adhi- 
 bitis atque ro^atis. 
 
 N. N. et N. N. testes. 
 N. N. Cancellarius Episcopalis." 
 
 291. Following- is a form for certify inj^- the tax 
 roll and the assessment on each benefice in accord- 
 ance with the above edict: 
 
 "Cum seminarium ecclesiasticum in hac civitate 
 erectum pro manutentione mag"istrorum, alumnorum 
 et inservientium redditus sufficientes non habcat, 
 eidem propterea cong^rue providere volentes, infras- 
 criptam portionem sive partem fructuum nostras 
 mens^ et aliorum beneficiorum ecclesiasticorum 
 hujus civitatis et dioecesis colleg-io pra^dicto appli- 
 candam cum concilio consultorum deputatorum ad 
 formam decreti Con. Trid. cap. 18, sess. 23, de ref., 
 auctoritate Nobis in eodem decreto tributa detra- 
 hendani duximus, prout praesenti decreto nostro pro 
 nunc in quantitate infrascripta detrahimus, taxamus, 
 et pra3fato colleg"io sen seminario applicanius, ac 
 annis sing^ulis tam per nostram mensani quam per 
 capitulum et caeteros beneficiarios infrascriptos solvi 
 in mense — et contribui debere mandamus, videlicit: 
 
 Mensa episcopalis scutata . 
 
 Capitulum cathedralis scutata . 
 
 Parochialis ecclesia N — scutata . 
 
 Beneficium simplex sub inv. N. in ecclesia N. 
 
 scutata (et sic nominentur omnia beneficia.) 
 
 N. E^piscopus N. 
 
 N. N. consultor dep. capituli ab 111^}^ Episcopo. 
 N. N. consultor dep. capituli pro capitulo. 
 N. N. consultor dep. cleri ab IllES! Episcopo. 
 N. N. consultor dep. cleri pro clero. 
 
 N. N. Cancellarius Epis.'^rog-atus," 
 
 .36 
 
274 LEGAL FORMriLARY. 
 
 292. The laws of the church prohibit a priest from 
 acting- as g"uardian or administrator for any except 
 his relatives within the fourth degfree. A special 
 dispensation from the bishop is required for all other 
 cases, and even in the case of relatives permission 
 should be obtained. Clerics are also forbidden to g^o 
 bail for others or act as their procurators. iCf. II 
 Cone. PL Bait. n. is?-) Permission may be given 
 by the bishop in this form: 
 
 "N. Bishop of N. To N. N. &c. 
 
 Since you, as a near relative, are by law a proper 
 guardian of N. N. and N. N., minors, and since you 
 desire to act as such, We hereby grant permission 
 for you to do and perform all and singular the things 
 required by law, use or custom to be done by guar- 
 dians, until the said minors shall become of ag^e; 
 provided, however, that you in no way undertake or 
 become mixed in affairs interdicted by law to 
 ecclesiastical persons. In testimony whereof &c. 
 Given &c. 
 
 [l. s.] N. Bishop of N. 
 
 N. N. Bishop's Chancellor." 
 
 293. When a monastery is to be established, the 
 explicit permission of the bishop of the diocese and 
 of the Holy See is required. (C/. Const. Romanos 
 Pojitifices.) In granting permission the bishop is 
 oblig*ed to see that the apostolic constitutions are 
 observed, and particularly that the new foundation 
 and the religious to be introduced can be properly 
 supported without detriment to the religious houses 
 already in existence and without detriment to parish 
 churches. {Cf. Monacclli, T. /, t. 6, f. ig.) When 
 monasteries claim the privilege that others shall not 
 be established within a certain distance, this privi- 
 
ESTABLISHMENT OF CONVENTS. 275 
 
 leg"e, if real, must be guarded in establishing- new 
 monasteries. But this does not appl}^ to congrega- 
 tions of secular priests living- in community and 
 founded solely by episcopal authority. [Cf. S. C 
 C. g Aug-. 162^, ex lib. 12, Dccret. fol. 2g8.) It 
 should be noted that if a parish priest sees that a 
 chapel is being erected in his parish and does not 
 protest he is supposed to have consented and cannot 
 later bring suit on that head. {R. Rota. 2^ June ly 05.) 
 
 294. Regarding the establishment of convents for 
 nuns there is no such privilege or prohibition. It is 
 required that they have the bishop's permission, and 
 the assurance of a competent support. For sisters 
 who do not take solemn vows nor observe cloister 
 the Holy See leaves the establishment of new houses 
 entirely with the bishop, and it refuses to recognize 
 their foundations directly or indirectly. (yCf. S. C . 
 C. 20 Feb. i6gj, i)i una Imol.) Even though the 
 bishop of the diocese visits such foundations, they 
 are not for that reason considered approved. {Cf. 
 S. C. C. 1608.) 
 
 295. In the erection of a convent for nuns, and this 
 applies also to houses for sisters belonging to reli- 
 gious congregations, the bishop before g'iving his 
 consent, should see to it, 1^ That the goods assigned 
 as an endowment are safe and sufficient for com- 
 munity life. 2"^ That the house is not established in a 
 small place where there is no chance to get confes- 
 sors, except the house is wealthy enoug'h to pay the 
 expenses for securing them. {S. C. Epp. /? Sept. 
 158J?) 3^ That the house is not established near a 
 monastery of men {Cf. Can. Mo)iust. puell. 18, q. 2.) 
 4^^ The founder, ho who endows, mav make certain 
 
276 LEGAL FORMULARY. 
 
 conditions, provided they are not ao^ainst good* morals 
 or discipline, but be cannot reserve the rig-ht of 
 choosing- the superior. 5° The nuns of any and 
 ever}^ order or rule should be subject to "the jurisdic- 
 tion of the ordinary in order to preclude dissensions 
 and complaints; and therefore they should not be 
 subject to the jurisdiction of any relig^ious order. A 
 prudent bishop will constantly refuse his consent to 
 any foundation unless the convent is subject to his 
 jurisdiction. Such too is the g^eneral law. (C/. 
 Cap. Cognovhniis i8^ q- 2 ; Monacelli T. i, L 6, 21.) 
 6^ The number of members of the convent should be 
 fixed. 7'' The bishop may exact an ag"reement in 
 writing- that the relig-ious will not collect alms, {Cf. 
 S. C. Ef>p. 4 July, i6g2,) for the Holy See replied 
 that a foundation may be made '^Cum strictissima 
 ohlig'atione 7ion quccstuandiy Monacelli also holds 
 that a bishop may la\^ down as a necessary condi- 
 tion of his consent that the relig*ious may not acquire 
 real estate. iCf. Monacelli, Form T. /, t. 6, 7i. ig, 
 n. 2C}.) In fact a multitude of relig-ious houses can- 
 not but g-reatly interfere with parish' rig-hts and also 
 with smooth diocesan administration. Too many 
 relig-ious houses interfere not only with the rig-hts of 
 the bishop and the diocesan clerg-y, but also become 
 injurious to each other. A proper number is g-ood 
 and useful. {Cf. S. C. C. in Tibiirt. 28 Feb. i6g8.) 
 2%. Besides relig-ious orders there are especially 
 in the United States relig-ious cong'reg-ations which 
 are diocesan or scattered* over several dioceses, 
 thoug-h not exempt from the jurisdiction of the ordi- 
 nary of the diocese wherein the house exists. The 
 men or women respectively of such congreg-ations 
 
ESTABLISHMENT OF CONVENTS. 277 
 
 take simple vows either temporary or perpetual. 
 The vow of poverty which they take does not rentier 
 them incapable of acquiring' and disposing" of prop- 
 erty. Only the use and administration of it are pro- 
 hibited. They should therefore before they take 
 vows g^ive over the administration and use and pro- 
 ceeds of their property to whomever they choose or 
 to their cong'rejsfation for the time they will remain 
 in the community. (T/", S. C. EE. et RR, 12 junii 
 i8j8.) The cong'reg'ation does not obtain the 
 dominion of their property acquired even when in the 
 convent, except when they g'ive it. If a sister leaves 
 the community or is expelled her dowry is to be re- 
 turned. {Cf. S. C. C. in CastelL j Mar. iyg2; S. 
 C. Ep. ct R. 1)1 Comoi, i Dec. 1758.') In fact only 
 by the death of the sister does her dov^^ry become the 
 full propert}^ of the convent. 
 
 297. When a religious cong^reo'ation is only dioce- 
 san the Holy See does not approve it, but leaves its 
 approval to the bishop of the diocese. When, how- 
 ever, it has houses in various dioceses, it should apply 
 for approval to the Sacred Propag-anda. The first 
 requisites for obtaining* this approval are: 1^ Let- 
 ters of the bishop in whose diocese the mother-house 
 is situated, and letters also of the other bishops in 
 whose dioceses branch houses -exist. These letters 
 should show when and by whom the institute was 
 founded, whether a "decree of praise" has already 
 been obtained from the Apostolic See, how many 
 houses the institute has and how man}^ professed 
 relig"ious, when the constitutions were put into etfect, 
 what progress the new institute has made, what vicis- 
 situdes it has underg'one, what is its present condi- 
 
278 IvEGAIv FORMULARY. 
 
 tion and what the amount of its property. 2° The 
 consent of all the relig'ious g"iven capitulariter is re- 
 quired. 3^ A successful trial of the constitutions of 
 the institute. When these matters are sent to the 
 Propag^anda and a compilation is made, the matter is 
 referred to a commission of consultors over whom a 
 cardinal belong-ing- to the Propaganda presides. 
 One of the consultors examines and reports on the 
 matter to the commission of consultors who in turn 
 formulate a report in writing*. The whole matter, 
 with the report, is then referred to the congfregfation 
 of'the cardinals for final adjustment. 
 
 298. If the institute is only diocesan, it is subject 
 entirely to the bishop's authority and jurisdiction. 
 If not merely diocesan but scattered over several 
 dioceses and subject to one superior gfeneral, then no 
 bishop can be the superior of the. conorreofation, but 
 each bishop may exercise jurdisdiction over the houses 
 and the relig'ious existing* in his own diocese, accord- 
 ing- to the sacred canons and the constitutions ap- 
 proved by the Holy See. The authority of the 
 superior g*eneral must be preserved^ as laid down in 
 the approved constitution, and therefore a bishop 
 may not interfere in those matters which concern the 
 g-eneral g-overnment of the whole institute or cong're- 
 g-ation even thoug"h the mother-house is situated in 
 his diocese. Neither can he make any changfe in the 
 constitution especially if approved by the Holy See. 
 (C/. ^S'. C. Ep. et R. 8 June i8^6^ in Const, Tatir.) 
 
 299. The bishop of the diocese must appoint the 
 ordinary and extraordinary confessor, and "the rig'ht 
 of naming" them is usually not gfiven the nuns them- 
 selves." {S. C. Ep. I Sept. i860.) The bishop may 
 
ESTABLISHMKNT OF CONVENTS. 279 
 
 also ^ive the institute permission to alienate prop- 
 erty of small value, and he must be heard before a 
 sister is expelled. {Eadeni Cojig, 20, Feb. 1861.) 
 He presides over the chapter for the election of a 
 superior, but he cannot mix in the deliberations 
 either b}^ votinof or dictating- a vote. (Cy. Zitelli^ 
 App. Juris Ec. p. 24^.) The Sacred Cong-reg"ation 
 of Bishops and Reg^ulars has extended to these in- 
 stitutes the requirement of the council of Trent that 
 the bishop) must examine novices reg-ardincr their vo- 
 cation before they are professed. C^j March, i860.) 
 The bishop has the rig-ht of inspection as to faith, 
 communit}^ life, the eradication of scandals and 
 abuses; but domestic direction does not belong- to 
 him but to the superiors of the houses. The right 
 of visitation belong-s to the bishop, and althoug*h the 
 superior g-eneral may have the rig-ht to visit all the 
 houses for the preservation of reg'ular discipline, still 
 the same Sacred Cong'reg-ation of Bishops and Reg"- 
 ulars in 1858 ordered such superiors to abstain from 
 officially visiting- the church and the thing-s pertain- 
 ing to it. The administration of the propert}^ of the 
 whole institute or cong-reg-ation belong-s to it, not to 
 the bishop; but an abuse committed in the adminis- 
 tration falls under his jurisdiction as ordinary, and 
 he can curb the excess. The institute, not the 
 bishop, holds the leg^al title to its real estate and 
 other propert3\ {Cf. Zitelli, L c.) The bishop may 
 appoint a deleg-ate to perform the above mentioned 
 acts in his stead. 
 
 300. The following* form for giving- consent to the 
 establishment of a monastery or convent nia}^ be 
 used but to it the necessarv conditions should be at- 
 
280 LEGAL FORMULARY. 
 
 tached and made part of it. A duplicate of the agree- 
 ment should be kept in the chancery. 
 
 "N. Episcopus N. 
 
 Tibi, Revdo Patri N. ordinis — pro virciali, ut 
 una cum difinitorio, cujus consensum exhibuisti, ac 
 servatis in reliquis constitutiouibus ordinis, constito 
 Nobis duod^cim relig"iosos tua^ religfionis commode 
 sine aliorum detrimento sustentari posse, monas- 
 terium, seu conventum absque tamen oratorio pub- 
 lico in loco N — hujus nostrae dioecesis, juxta consti- 
 tutionem Apost. "Romanos Pontifices," extruere et 
 fundare possis, sine tamen praejudicio ecclesiarum 
 parochialium dicti loci, ac nostras cathedrae, licen- 
 tiam et facultatem, quantum ad Nos spectat, con- 
 cedimus et consensum praestamus, dummodo quis 
 aliquid revelans quod fundationi sbstare possit, non 
 superveniat; et dummodo conditiones infrascriptae 
 omnino adimpleantur, videlicet: (ponantur condi- 
 tiones.) Datum &c. 
 
 [l. s.] N. Episcopus N. 
 
 N. N. Cancellarius Episcopalis." 
 
 301. Another form, similar to this, may be used: 
 
 ''N. Bishop of N. To the Sister Superior of N. 
 It appearing- advantag^eous that a hospital (school, 
 convent) be established in the city of N — in our dio- 
 cese, and you having- assured Us in writing- that your 
 order Cor some person) has devoted sufficient means 
 or money for that purpose, and the constitution of 
 your order having- been observed in other respects. 
 We hereby g-rant you, inasmuch as pertains to Us, 
 the necessary permission and faculty for erecting- 
 and founding- a hospital, (school, convent) without 
 however a public orator}^ or chapel, in the aforesaid 
 
 city on street, no. , in accordance with the 
 
 constitution of Pope Ueo XIII, "Romanos Pontifices," 
 and without any prejudice to parish churches or our 
 cathedral, and on condition that nothing- will super- 
 
CHANGES IN FOUNDATIONS. 281 
 
 vene to oppose the fouudation, and on the further 
 essential condition that neither you nor the sisters 
 for the time beingf in the hospital now or in the 
 future shall collect or attempt to solicit alms in our 
 episcopal city or diocese and that no real property 
 shall be bought for the use of the said hospital 
 (school, convent) without our previous permission in 
 writing. In testimony whereof, &c. Given &c. 
 [l. s.] N. Bishop of N. 
 
 N. N. Bishop's Chancellor." 
 
 302. When a religious house of any kind is to be 
 established in a diocese the consent of both the bishop 
 and the Holy See is required. When once estab- 
 lished the institution cannot be moved from place to 
 place or converted into another similar use, as a 
 school into a church, a monastery or convent into a 
 college or into a house for orphans or the sick, or 
 vice versa. Neither can a new cause or use be af- 
 fixed and the original use preserved, unless this new 
 use concerns onlv the internal administration or do- 
 mestic discipline of the religious community. Thus 
 sisters teaching a parish school ma}" not start a 
 boarding school or asylum on the original foundation, 
 but a scholasticate for the. religious may be opened 
 in a monastery or convent, provided no outside 
 students are received without express and explicit 
 permission of the bishop and the Holy See. Much 
 less can a monaster}^ open up a church to the public 
 or an asylum. These are the words of the apostolic 
 constitution Romanos Poutificcs\ Sodalibus re- 
 ligiosis novas sibi sedes constituere, erigendo novas 
 ecclesias, aperiendov^e coenobia, collegia, scholas, nisi 
 obtenta prius expressa licentia ordinarii loci et Sedis 
 
 Apostolicse, non licere." 
 37 
 
282 IvEGAlw FORMULARY. 
 
 "Reli^iosis sodalibus non licere ea quag instituta 
 sunt in alios usus convertere absque expressa liceutia 
 Sedis Apostolicae et ordinarii loci, nisi ag^atur de 
 conversione, quae, salvis fundationis leg'.ibus, refer- 
 atur dumtaxat ad internum reg^imen et disciplinam 
 regularem." 
 
 303. The soliciting- of alms is a matter which causes 
 much vexation and scandal. The diocesan bishop 
 alone has the right to issue permits to collect alms. 
 But for the regular mendicant orders this permission 
 is not required for convents existing' in the diocese. 
 (S. C. Ep. in Casal. 6 Oct. isqS.) Nevertheless 
 the bishop can forbid by edict or otherwise any and 
 all religious from begging* or seeking alms unless 
 they first show the written permission of their 
 superior countersig^ned by the bishop. (C/. Mo)ia- 
 celli, T. /, t. 6, f. 6, n. 8 ; S, C , C . in Theat. jo 
 Af>r. 1 6^8.) Moreover these religious must them- 
 selves collect alms and cannot employ seculars or 
 others for the purpose. CS. C. C. pluriesdeclaravit.) 
 
 304. When others besides religious of the mendi- 
 cant orders collect alms, they may not participate in 
 the alms thus collected, {S. C. C. teste Fagnano) 
 but must have a stipend* from some other source. 
 Further all scandalous methods must be avoided. 
 Hence, if the collectors use threats, imprecations 
 blessings or special prayers, or distribute statues or 
 sacred things, or offer privileg"es, the bishop may 
 severely chastise them even though they are laymen 
 or exempt religious. He may even excommunicate 
 them. {Cf. Barbosa de off, Ep, all. log^ n. 12; 
 Monacelli I. c. n. 5. 
 
 305. Regular permission to collect alms is given 
 
SOI^ICITING ALMS. 283 
 
 only to asylums or hospitals in which orphans and 
 the poor are actually supported. Nevertheless 
 to-day other institutions dointr charitable work and 
 unable from their endowment to pay all their ex- 
 penses are sometimes ^iven permission by the bishop 
 to solicit alms. If the needy institutions are in 
 charg^e of sisters, or penitents, it is not allowed for 
 them to personally solicit alms, but as ordered by 
 Pope Greg'ory XIII {Const, impressa in Bull. ?toi'o, 
 t. 2, n. 8) they are to remain in their convents and 
 deputies appointed by the ordinary of the place are 
 with his permission to solicit alms for them. Alms 
 mean a free offeringf, not an assessment. Assess- 
 ments cannot be levied for the benefit of charitable 
 institutions; but voluntar}^ collections may be ordered 
 by the bishop in his judofment and pastors are 
 oblig'ed to announce them. 
 
 306. Rio-htly then did the Third Council of Balti- 
 more n. 95, severely condemn the abuse of sisters or 
 nuns g'oing' around soliciting- alms often far from 
 their convents and wnth g^reat dang^er of scandal. 
 It further prohibited sisters and also lay brothers 
 from collecting' without the written permission of 
 the diocesan ordinary. Again in n. 295-296 the 
 same council denounced the practice of secular and 
 reg^ular priests coming* from other countries to col- 
 lect alms often without previous permission and in 
 spite of the ordinary of the diocese and the rectors of 
 parishes. It declared the soliciting* of alms with the 
 promise of masses or such like an intolerable abuse, 
 and vehemently reproved and prohibited the practice 
 of sending* circulars or cards offering* masses for all 
 who contribute to the building* of a church, convent, 
 
284 LEGAL FORMULARY. 
 
 hospital or other institution. Thus it appears that 
 the law g^uards agfainst scandal, even though prac- 
 tice in some instances is diametrically opposed to the 
 canons. 
 
 307. Following is a form for permitting* the col- 
 lecting of alms: 
 
 *'N. Bishop of N. To &c. 
 You, who are of good life and approved piety and 
 
 who are deputed by the officials of the asylum of 
 
 in our diocese, are hereby granted permission to 
 solicit alms throughout our whole diocese for the 
 support of the said asylum whose revenues are not 
 sufficient for the purpose; provided you do so mod- 
 destly and without threat or fraud or any publishing 
 of masses or favors, and provided all the money or 
 alms which you may collect shall be used for the 
 support of the said asylum, concerning which the 
 officials will render Us an account during our visita- 
 tion. This permission will last until and is 
 
 given gratuitously. In testimony whereof &c. 
 Given &c. 
 
 N. Bishop of N. (or Vicar General.) 
 
 N. N. Chancellor.'' 
 
CHAPTER XL 
 
 THE AT^IENATION OF CHURCH PROPERTY. 
 
 308. The g'oods of the church are the patrlmon}^ of 
 Christ; and ecclesiastical persons have only the use 
 of church property. The real title or ownership is 
 in the church, not in prelates who have only the 
 administration of it. Where the church is not rec- 
 ognized as a corporation before the civil law, the 
 civil title to church property should be placed not in 
 any individual as such, but in a corporation recog*- 
 nixed by both church and state. In the whole United 
 States, so far as the state is concerned, there is no 
 need of any bishop holding* church property in fee 
 simple in his individual name; for incorporation has 
 never been refused and may easily be obtained. In 
 Maryland, Massachusetts, Kentuck}^ Illinois, Cali- 
 fornia, the bishops are incorporated b}^ state laws as 
 a "corporation sole." In Ohio, Indiana, Missouri, 
 Iowa, the property is held by bishops who are recog-- 
 nized before the civil law as trustees. In New York, 
 Wisconsin, Minnesota, North and South Dakota the 
 property is held by a corporation consisting- of the 
 bishop, his vicar g-eneral, the pastor and two laymen, 
 there being- a separate corporation for each parish. 
 This last system seems most in accordance with 
 canon law, and best adapted to prevent the mixture 
 of diocesan and parish property, which mixture is 
 prohibited by the sacred canons. It also approaches 
 
 255 
 
286 LEGAL FORMULARY. 
 
 nearest the plan of the chapter holding- under the old 
 system, making- the tenure perpetual. 
 
 309. In Michig-an a ver\- anomalous condition 
 exists. The bishops claim to hold most of church 
 property in absolute fee simple as individuals. The 
 diocesan regfulations — not the statutes — require the 
 deed to be made without any trust appearing- on its 
 face. The Michig-an statutes prohibit parole testi- 
 mony to prove a trust in a deed on whose face no 
 trust is shown. But it was supposed that statute 
 4727, Howell's, passed in 1867, could be made apply 
 to save church property from passing to the bishop's 
 heirs, and possibly parole evidence mig-ht be intro- 
 duced to show a trust in the holding- of the bishop. 
 However, this statute, placing- in each of the Roman 
 Catholic bishops a trust title, while never used by 
 the bishops, nevertheless has been quoted ag-ainst 
 them in favor of cong-reg-ations when disobeying* the 
 injunctions of the bishop. Hence the dang-er of 
 diverting- parish property ag-ainst the will of the 
 bishop is increased, for the bishop actually holds 
 neither in fee simple as absolute owner, nor yet with 
 such powers of trusteeship as to prevent any layman 
 of the parish from leg'ally interfering-. In 1897 a 
 most liberal law was passed for incorporating- 
 churches, under section four of which the church it- 
 self may arrang-e the tenure of its property and 
 select its own members, for the corporation. Under 
 this law a diocesan corporation and distinct parish 
 corporations may be had. 
 
 310. The fee simple tenure of church property 
 seems unsafe, unnecessary and unwise. Further it is 
 ag-ainst the sacred canons, for it is an actual wholesale 
 
TENURK OK CHURCH PROPERTY. 287 
 
 alienation, for which there can be g^iven at present 
 no satisfactory reason. That it has been done in 
 the past is no reason for the future. In fact the Holy 
 See has lately been insisting- on a changfe from the fee 
 simple tenure, and moreover has explicitly- indicated 
 that achang-e isconiinor, foronJan.ll, 1897, in decid- 
 ing- a Detroit property case it added these words: 
 "This same decision shall remain in force when the 
 administration of the diocesan funds shall pass to a 
 corporation to be eventually established for the hold- 
 ing* of the property appertaining- to the diocese." 
 
 311. If at any time it is necessary or very useful 
 to alienate a certain piece of church property, or ex- 
 chang-e it for another, such alienation must be made 
 in accordance with canon law, otherwise the benefi- 
 ciary and other administrators concerned in the 
 alienation are /7^6o/«c/<7 excommunicated. (C/. Const. 
 Apost. Sedis.) Under the head of church property 
 comes the property not only of churches, but of all 
 relig"ious and pious places which have been founded 
 for the worship of God, the salvation of souls or the 
 care of the sick or the poor. Further, under the 
 head of alienation comes every kind of contract, gift 
 or changfe, compromise, union with another church, 
 mortg-ag-e, renting- for more than three years, or any 
 other species of transfer. B}' the apostolic constitu- 
 tion, Afostolicce Sedis, all alienation is prohibited. 
 An exception is made for thingrs of trifling value and 
 such as are useless to the church because of the ex- 
 pense entailed. 
 
 312. But all kinds of propert}' may be alienated 
 if there is a sufficient reason and the proper 
 solemnities are observed. A sufficient cause would 
 
288 LEGAL FORMULARY. 
 
 be, necessity, utilit}' or piety. The solemnities re- 
 quired are, the consent of the cathedral chapter, or 
 in the United States the advice of the consultors 
 gfiven as a coUeg-iate body; and second the authority 
 of the Pope in each case where the sum exceeds fifty 
 dollars. In the United States the bishops have re- 
 ceived special faculties by which they need not ask 
 permission of the Holy See in each individual case 
 of alienation; but it is distinctly stated that they 
 can use these faculties only on condition that for 
 each case the necessity or evident utility for the 
 church must become apparent to the bishop zvith the 
 advice of the diocesan consultors^ and that at the 
 end of every third year the bishop must report each 
 case and the financial condition of the church inter- 
 ested. The passao-e, therefore, of decree 20, pag-e 
 15, of the Third Council of Baltimore which says 
 that the bishops need not ask the advice of their 
 consultors when the sum does not reach $5,000, must 
 be held inoperative when compared with the faculty 
 which the Holy See really g-ave the bishops and in 
 which no such exception is made. The bishops 
 could not dispense themselves from obeying;- the com- 
 mon law of the church. We hold, therefore, 
 that no bishop, in view of his special faculties can 
 alienate any church property over $50 ( Vi canonis 
 Terriilas) without the advice of his consultors gfiven 
 as a colleg"iate body, which advice must be asked for 
 each case. These are the words of the faculty: 
 
 " Facultates extraordinarise tribuuntur; ea 
 
 tavien leg'e, ut f>rcBdictH facilitate iitantur iepiscopi) 
 perspecta prius ex consultoriun concilia necessitate 
 vel evidenti titililate ecclesice^ utque in fine cujuslibet 
 
INSTRUCTIONS FOR ALIENATING. 289 
 
 trientiii episcopi ad S. Cong-, referant quibus in 
 casibus, et pro quibus summis, ea usi sint, exposita 
 etiam statu oeconomico illarum missionum pro quibus 
 aes alienum contractum fuit. " (C/. /// Coyic. Ball, 
 -pg". ciii.) Hence it appears the alienation of church 
 property is more serious than ordinarily supposed. 
 
 313. Following- is the instruction which the S. 
 Cong-regation of the Propaganda gave on Jul\^ 30, 
 1867, regarding the alienation of church property: 
 
 1°. In venditione bonoruni ecclesiasticoruni, prae- 
 mittatur eorumdem a^stiniatio a probis peritis scripto 
 facienda; audiantur omnes interesse habentes; con- 
 stet de evidenti Kcclesiae necessitate vel utilitate; 
 vendantur favore maioris oblatoris et non minori 
 pretio quam quod a prsedictis peritis fuerit a^sti- 
 niatum; pretium ab emptore integre solvatur in actu 
 stipulationis, et collocetur in frugifero, tuto ac licito 
 investimento; quod si non erit in promptu, deponatur 
 pretium in aliqua capsa publica, vel apud aliquam 
 personam spectator probitatis et idoneitatis, recepta 
 tamen cautione scripto exarata, penes ipsum Patri- 
 archam vel Rpiscopum ecclesise, ad quam pertinent 
 bona vendita, accuratissime custodienda. 
 
 314. 2^. In permutationibus pra^mittatur a?sti- 
 matio fundorum a probis peritis scripto facienda; 
 audiantur omnes interesse habentes; constet de evi- 
 denti Ecclesise utilitate; et in contractus stipulatione 
 expresse reservetur hinc inde regfressus ad priman-a 
 iura in casu evictionis. Quod si valor fundi ecclesi- 
 astici superet valorem fundi qui ab ecclesia in per- 
 mutationem recipitur, ea pecuniae vis qufE ad pera?- 
 quationem contractus est necessaria, ecclesia persol- 
 vatur in actu stipulationis, et collocetur in honesto, 
 tuto ac licito investimento: atque interim deponatur 
 uti supra in capsa publica, vel apud personam spec- 
 tatse probitatis atque idoneitatis. 
 
 315. 3° In contractibus emphyteuticis ineundis 
 
 38 
 
290 I^EGAL FORMULARY. 
 
 praemittatur aestimatio peritorum; audiantur omnes 
 interesse habeutes; constet de evident! Ecclesiae util- 
 itate; canon ab emphyteuta persolvendus non sit 
 minor, quam qui a peritis statutus fuerit; stipulatio 
 scripto consig"netur cui descriptio fundi ac topo- 
 graphica eiusdem tabula adiiciatur; praestet emphy- 
 teuta hypothecariam inscriptionem super alio idoneo 
 suo fundo, aut saltem hoc deficiente cautionem idon- 
 earum personarum pro securitate canonum trium 
 annorum; atque in ipsa stipulatione obligationem 
 emittat pro se suisque heredibus ac successoribus 
 valituram, nunquam utendi qualibet praesenti vel 
 futura lege seu privileg"io afFrancationis canonis, et 
 melioramenta omnia solo cedendi. 
 
 316. 4°. Si ag-atur de Ecclesiae bonis oppignor- 
 andis, vel de aere alieno contrahendo, necesse est, ut 
 prius audiantur omnes interesse habentes, et constet 
 de vera et gravi Ecclesiae necessitate; quae si vere 
 intercedat, cavendum est, ut debitum illud, cum 
 primum fieri poterit, ecclesia ipsa diniittat, eaque de 
 causa imponatur eidem singulis in casibus obligatio 
 contractum debitum extinguendi annuis ratis ab ipso 
 Episcopo praeiiniendis; ad quem effectum deter- 
 minati aliqui ecclesiae eiusdem redditus erunt assig- 
 nandi, ac singulis vicibus deponendi in capsa publica, 
 vel penes honestam atque idoneam personam, ut suo 
 tempore investiri possint. 
 
 317. 5^. Cum vero Ecclesiae pecuniam investiri 
 contingat, duo imprimisdiligentissime curanda erunt; 
 primum ut a contractibus ineundis longe procul sit 
 quaevis usuraria labes, secundo ut Ecclesiae indem- 
 nitati cautum sit; ideoque non coUocetur eiusdem 
 pecunia nisi apud honestas et idoneas personas, quae 
 praestent hypotecariam inscriptionem, vel saltem 
 idoneam cautionem; omnesque huiusmodi contractus 
 publicis tabulis pro recepto regionum more 
 consignentur. 
 
 318. 6^. Denique in locationibus bonorum ecclesi- 
 asticornm cavendum est, ut locationes praedictae fiant 
 
METHOD OF ALIENATING. 291 
 
 iusto pretio, atque ut annuae responsionis solutio non 
 fiat anticipate in pra^iudicium successorum. Non 
 licebit autem ecclesiastica bona locare ultra trien- 
 nium: poterit autem Ordinarius, si specialem ab 
 Apostolica Sede super alienatione bonorum ecclesias- 
 ticoruni facultatem obtinuerit, permittere ut loca- 
 tiones pra^dicta^ iiant etiam ultra praedictum tenipus, 
 dummodo nori excedat novennium. 
 
 319. When church property is let for not more 
 than three years, the pastors of the various con«-re- 
 g^ations have the manag*ement and letting- of what 
 belong"s to their respective con«"reg'ations or parishes, 
 and the superiors or oflficials of pious places or char- 
 itable institutions have respectively the letting- of 
 their property. (S. C. EE. et RR. plurics declar- 
 avit, teste Pig'natello.^ Hence, says Monacelli, they 
 ma3% if there is no fraud or collusion, validly and 
 licitely make contracts reg^arding* rent for not more 
 than three 3^ears without the permission of the 
 bishop, is. a EE. et RR. in CastcII. 27 Feb. 
 i6gj; in Bonon. 4. Mar. i6g4..) Property let out for 
 long^er time than three years requires the beneplaci- 
 tuni apostolicum, or in the United States the consent 
 of the bishop using- his extraordinary special faculty 
 as delegate of the Holy See with the advice of the 
 consultors. But the bishop may not g-ive permission 
 that it be let for more than nine years. 
 
 320. It should be noted that property left to a 
 church or other pious place erected b}^ authority of 
 the bishop, cannot be alienated without the permis- 
 sion of Rome, even thoug'h the testator so specified 
 in his will. (C/. Auctores multos ap2(d Moiiacelli 
 T. /, /. 5, /. 75, }}. ig-22.) Neither can a compro- 
 mise be eflfected reg^arding- the supposed rigdits of a 
 
292 LEGAL FORMULARY. 
 
 church to certain property without the sanction of 
 the Holy See. {Cf. S. C. C. Aiiscul. 14 Feb. i6gg.) 
 Further it should be noted that not only reg-ulars 
 but also other rectors who alienate precious movable 
 ^oods of the church incur excommunication, if they 
 do this without the beneplacitum apostolicum, not- 
 withstanding- their gfood faith or permission of the 
 g-eneral chapter of the order. {Cf. S. C. C. in Seg-i- 
 nen. 16 Ma)-. i6g2.) Neither can they alienate small 
 thing's vig-ore capitis Terriilas without the decree of 
 the ordinary of the diocese. {S. C. Ef. in Tro'pie7i. 
 II Jan. i6g2.) These decisions which are in full force 
 to-day may interest the rectors of churches, for often 
 they find it necessary or ver}^ useful to make chang^es 
 in the movable g^oods of their parishes. 
 
 321. A reg-ular process, thoug-h summary, is re- 
 quired in the alienation of church property even 
 thoug-h this is not specifically mentioned in the 
 beneplacitum apostolicum. (Rota decis. 224. n. 11-12^ 
 -par. io)\ and the utility for the church must be 
 shown by judicial proof, that is by witnesses ex- 
 amined at the instance of the alienating' church, who 
 testify to such utility precisely at the time of aliena- 
 tion. The mere assertion of the parties interested 
 or of the bishop or executor of the beneplacitum 
 apostolicum is not sufficient. {Rota decis. j6.) 
 i^Cf. Mcmacelli, T. i, t. 14, f. 2, n. i .) The summary 
 process as g-iven in chapter 18 below may be used. 
 
 322. The permission g-iven by the Holy See for 
 alienating- church property is always called a bene- 
 placitum apostolicum, whether g-iven by the Datary, 
 the Sacred Cong-reg-ation of the Council, or the 
 Sacred Propaganda. When issued by the bishops 
 
DECREE FOR ALIENATION. 2^3 
 
 of the United States, by virtue of their special fac- 
 ulties, it may also be called a beneplacitum apos- 
 tolicum. It is evident that when a parish church or 
 pious place is to alienate property, the beneplacitum 
 must be obtained in writing- from the bishop, who 
 having received the testimony of witnesses, and 
 heard all those interested, after takinof the advice of 
 his consultors in each case, will issue a decree in 
 proper form. (See note 2 on page 297.) 
 
 323. The delegated judges or commissaries to 
 whom is intrusted the execution of apostolic bene- 
 placita for the alienation of property are warned 
 b\^ Pope Paul II, i^Const. Cimi in oinuibus.^ to cau- 
 tiously and diligently examine the causes put forth 
 for the intended alienation and to carefully examine 
 the witnesses and proofs, putting- aside all fear and 
 favor and having only God before their eyes. The 
 permission given b}^ the Hol}^ See is always condi- 
 tional, and therefore the executor must alwa^'s 
 verify the truth of the statements made in the appli- 
 cation for the favor. Care should be taken to see 
 that the money received for the property is carefull}^ 
 guarded or invested. 
 
 324. When the bishop by virtue of his ordinary 
 power (canon Terrulas) grants permission for alien- 
 ating- things of less value than $50, he may use this 
 form for the decree: 
 
 "Having considered the law and the depositions 
 of witnesses formally examined, by which it appears 
 that the alienation of a house (or other property) be- 
 longing to the church of N — in the town of N — , of 
 
 the value of dollars (under fift}^ situated on 
 
 the lot N — as mentioned in the process, will redound 
 to the evident utility of the said church; having also 
 
294 IvEGAIv FORMULARY. 
 
 heard those claiming' an interest in the matter, We 
 say and pronounce that there is place for the desired 
 alienation, and therefore by the ordinary authority 
 g-iven Us by law, We grant permission . to N. N. to 
 alienate the aforesaid house (or other property) 
 
 valued at dollars for the price of dollars, 
 
 to the effect, however, that the said price thus re- 
 ceived shall be all converted into and not other- 
 wise; concerninof which re-investment the said N. N. 
 
 shall be charg'ed and within days from date of 
 
 alienation shall cause to be filed in our chancery 
 office a certificate showing- such re-investment, under 
 pain even of censures, to be inflicted at our pleasure. 
 Given &c. 
 
 N. Bishop of N. or Vicar General. 
 N. B. Bishop's Chancellor." 
 
 325. When the bishop by virtue of his special fac- 
 ulty as deleg-ate of the Holy See g-ives a beneplaci- 
 tum or permission to alienate church property worth 
 over $50, having- taken the colleg-iate advice of his 
 consultors and complied with the other requirements 
 of the decrees of the Propag-anda mentioned above, 
 he may issue a decree of alienation as follows, always 
 specifying- what disposition is to be made of the price 
 received: 
 
 "Having- seen the acts and the process constructed 
 thereon, and especially considering- the reports of the 
 estimators who valued the property and the testi- 
 mony of the witnesses who were specially examined, 
 from whose depositions it appears that an alienation 
 by sale (exchang-e, emphyteusis, loan for over three 
 years) of the lots (describe property exactly) which 
 are valued at — dollars, will be for the evident utility 
 of the church of N — to which the aforesaid property 
 belongs; having- also heard all tliose having- an inter- 
 est in said property, We say and declare that there 
 
DECREE P'OR ALIENATION. 295 
 
 is place for the alienation of the aforesaid property; 
 and therefore having" taken the advice of our diocesan 
 consultors in this matter, by virtue of the special 
 apostolic facult}' ""ranted Us for — years by the Holy 
 
 See on day of A. D. We hereby g-raut 
 
 permission and declare it permitted for N. N. the 
 rector of the church of N — (or other person) to 
 alienate the aforementioned property for the price of 
 — dollars, to the effect, however, that the said price 
 shall be wholly re-invested (converted or otherwise) 
 
 into (mention exactly v^^hat) as was petitioned 
 
 and as in the acts, and not otherwise; concerning 
 which re-investment the said N. N. rector of N — (or 
 other person) within — da3^s from the date of aliena- 
 tion shall cause to be filed in our chancery office a 
 certificate showing" such re-investment, under pain 
 even of censures, to be inflicted at our pleasure. 
 And thus We g-rant permission for the alienation, 
 omni meliori modo. In testimony w^hereof &c. 
 Given &c. 
 
 [l. s.] N. Bishop of N — , Delegate. 
 
 N. N. Bishop's Chancellor." 
 
 326. When a church has become so dilapidated 
 that it should be torn down, the bishop in his visita- 
 tion ma}^ use the following decree for the purpose: 
 
 "On the — day of — A. D. — the Most Reverend 
 N. Bishop of N — visiting the church of St. N — sit- 
 ated in N — in this diocese found it almost destro3'ed 
 and destitute of sacred furniture; and not finding" 
 anyone whom by law he could oblige to repair it and 
 there being no other way to restore it; having re- 
 moved the sacred images, and taken up the conse- 
 crated altar stone, and workmen having removed the 
 altars, by the facult}" and authority conferred upon 
 him both by law and the holy council of Trent, 
 granted permission to N. N. to profane the said 
 church and to convert its stones and other material 
 
2% LEGAIv FORMULARY. 
 
 to the use of — , a cross being" erected on the church 
 site. In testimony whereof &c. Given &c. 
 
 N. N. Notary and Actuary of Visitation." 
 
 In such case the reg'ular process of alienation must 
 be used before the site or land is sold or exchang-ed. 
 
 327. It may not be out of place to mention the law 
 re^^'arding" the changfe of a cathedral church. When 
 a bishop wishes to transfer his cathedral from one 
 city to another, the explicit consent of the Holy See 
 is required. But is certain that a bishop with the 
 consent of his chapter can transfer his cathedral 
 church from one place in the city to another, even if 
 betterment or preference is the only cause. For 
 such transfer no permission of the Holy See is neces- 
 sary. (6/. Can. Si qiiis vitlt i6, g, y ; Glossa in 
 can. Tribics distinct, ^riina^ verbo, Difficultas, in 
 fine dc consecra. Et tradunt Mandos. de Sig'natura 
 Graticc, tit. de trans, col. 2, j, vers. %Translatio 
 EcclcsicE; Rebuff .in praxi tit. de Trans, episc. n. y; 
 Lotter. de re bene/. I. i , q. 12, n. 6; Prances^ de 
 Eccl. Cathed. c. y. n. 27, 28, ^/, ^2, et prcesertim 70, 
 y^ ; Respo7idit etiam Rota decis. yo^^ n. 12, -p. 4, re- 
 cent. torn, j; iterum, Placentina Cat lied. 22 Jnnii, 
 lyoj.) It is also certain that such a chang'e and 
 transfer having* been made, all the rig-hts and all the 
 qualities of cathedrality previously existing* in the 
 cathedral church from which the transfer is made, 
 g-o over and thereafter belong* to the church to which 
 the transfer has been effected. {Cf. Gloss, in cap. 
 Privilegiuni^ vers, ^itod die veruni, de reg: jur. in 
 6"", Innocent, in cap. 2. n. 2 : ibiqne Fagnaii. n. lo, 
 de Nov. oper. niinciat, et idem Innocent, in cap. /, in 
 princeip. vers. Si vera de uno, ne sede vacant; Grat. 
 
CHANGING CATHEDRAL. 2^7 
 
 disceft. 2C)i , n. 1 ei seq; Prances de Eccl. Cath. c. 
 7, n. 59, et seq; Rota, coram Seraph, decis. i i4g, n. 
 i6\ Coram Poen. decis, i ij, n. 6, et decis. t6j, n. j; 
 Coram Liidovis. decis. 66 j, ii. 7; Coram Bicli. decis. 
 gg^, 71. /j; Cora7n Dtinoy, decis, ig6, n. 16, ly par. 
 ig Recent; Placent. coram Molines, 22 Junii lyoj.) 
 This last decision specifically says that when the 
 transfer of the bishop's chair is from one material 
 church to another in the same city, no apostolic in- 
 dult is required. 
 
 However the transfer does not aflFect the property 
 rig-hts of the two churches. The transfer of the 
 bishop's chair from one church to another cannot 
 alienate the property of the former cathedral in favor 
 of the new one. 
 
 Note. — In England Catholic diocesan property is held by private 
 individuals known as trustees, viz., the bishop of the diocese and 
 four or five individuals chosen by him. Bishops, as such, are not 
 recognized by the civil law, but only as individuals. Parish prop- 
 erty is held also in the names of several individuals as trustees. 
 
 Note. 2. — Diocesan consultors are selected for a term of three 
 years. They go out of office by limitation, unless the triennial 
 term expires during a vacancy in the episcopal see. Attention 
 should be paid to this point in the matter of alienating property. 
 If a bishop is transferred by Brief dated before the triennial term 
 expires, the consultors hold over, even though notice is received 
 only later. But if the consultors' term expired before the date of 
 the Brief of transfer and the bishop had neglected to select new 
 consultors before the transfer, then the selecting of consultors 
 devolves on the Metropolitan, who will follow the same method of 
 selecting as the bishop should have followed. {Cf. L. 1. t. 10, decret. 
 De Supplenda uer/Ugentia praelatorum.) From the exact date of 
 transfer the bishop loses all jurisdiction. Similar is the case of 
 the triennial term expiring before a bishop's death without a new 
 selection. The old consultors are then no longer in ofiice. 
 39 
 
PART THIRD, 
 
 Trials and Punishments. 
 
 CHAPTER I. 
 
 PRELIMINARY INVESTIGATION, FORMS FOR MONI- 
 TIONS, PRECEPT, JUDGE, AUDITOR. 
 
 328. The ordinary judge in all ecclesiastical trials 
 is the bishop of the diocese or his vicar general. An 
 actuary is required for each trial. The forms for 
 appointing the vicar general and the actuary or 
 notary as well as other officials are given in the first 
 part of this work. Trials are of two kinds, criminal 
 and civil. Many of the forms used in the criminal 
 process are applicable also to the civil. Hence, fol- 
 lowing the late instruction "Cum magnopere" for 
 the trial of criminal and disciplinary causes of eccle- 
 siastics, we shall give first the forms needed in this 
 
 298 
 
PREVENTIVE REMEDIES. 299 
 
 process, and then add those which are special to the 
 civil process. 
 
 329. The instruction "Cum ma^nopere" says it 
 is the dut}^ of the bishop to see that discipline is pre- 
 served in the clerg-y, and lays down two kinds of 
 remedies for that purpose, preventive and repressive. 
 For inflicting- the former only an extrajudicial 
 process is required, but for the latter a summary 
 judicial process. The preventive remedies are 
 chiefly spiritual exercises, admonitions and the pre- 
 cept. But since a cleric may appeal or make re- 
 course also from an extrajudicial g-rievance, it will 
 be prudent for a bishop always to have in writing- 
 sufficient evidence to sustain the infliction even of 
 preventive remedies. Hence the instruction says 
 that before inflicting- even preventive punishment a 
 summary investig-ation and record should be made. 
 This does not pertain to the fiscal procurator, but 
 rather to the bishop himself or the vicar g-eneral, as 
 father and ruler of the diocese, not as judg-e. 
 
 330. When a cleric has committed even a serious 
 fault, if he repents, often the only punishment re- 
 quired is one of the preventive remedies. In fact a 
 prudent bishop will abstain as long- as possible from 
 a reg-ular judicial process and the repressive punish- 
 ments, to prevent scandal and save the unfortunate 
 clerg-yman. The practice of putting prominent men 
 on trial without sufficient proof obtained in advance, 
 cannot be too strong-ly denounced because of its g-reat 
 detriment to relig-ion and to the person injured. 
 For this reason to-day, no matter who makes the 
 charg-es, the bishop is held responsible for every 
 criminal trial, and it must be beg-un by him ex officio, 
 
300 LEGAL Formulary. 
 
 as the instruction clearly states. In making- the 
 extrajudicial investig-ation great prudence is required, 
 so as not to stir up scandal, or injure anyone's repu- 
 tation, for not unfrequently malicious charg*es and 
 reports are sent to the bishop concerning priests. 
 The bishop may speak to the accused priest pater- 
 nally pending the extrajudicial investigation, but he 
 cannot cite him to appear. 
 
 331. The admonitions may be made secretly by a 
 reg-istered letter or through some person, but a 
 record of them should be kept, or again they may be 
 made in a legal form served by the court messeng^er. 
 They should contain no threat. Follow^ing- is a form 
 for the two paternal warning's: 
 
 ''To the Rev. N. N. of N— in the diocese of N— . 
 For your own sake and the g^ood of religion We find 
 it necessary, as your bishop, in a paternal manner to 
 admonish you to practice sobriety and to cease fre- 
 quenting places w^here liquor is sold and especially 
 
 . We also call your attention to your oblig^ation 
 
 of celebrating- with proper preparation mass on Sun- 
 da^^s and holy days of obligation, so that the people 
 of your mission may assist thereat. We hope this 
 (secondj admonition will be effective. Dated &c. 
 [L. s.] N. Bishop of N." 
 
 332. If even the second canonical warning is not 
 effective, the ordinary through the curia will issue to 
 the delinquent a legal and formal precept as to what 
 he must do or avoid; and specific punishment must 
 be threatened for disobedience. Following- is a form 
 for the canonical precept: 
 
 ''N. Bishop of N. to Rev. N. N. rector of N. 
 greeting. Twice have We with paternal interest 
 admonished you, but without avail; and We now 
 
FORM FOR CANONICAL PRECFPT. 301 
 
 formally enjoin on you that you practice sobriety 
 and cease frequenting* places where liquor is sold 
 
 and especiall}^ . We also strictly enjoin on you 
 
 not to neg'lect either personally or throug-h another 
 the celebrating-, with proper preparation, of mass on 
 Sunda3^s and holy days of oblig-ation, so that the peo- 
 ple of your mission may assist thereat. Further We 
 warn you that any and every disreg^ard of this our 
 precept will be punished by suspension, deprivation 
 of the charg-e you now hold, and other canonical re- 
 pressive remedies. In testimon}' whereof &c. 
 Given &c. 
 
 [l. s.] N. N. Bishop of N. 
 
 N. N. Bishop's Chancellor." 
 
 "On this 31st day of May, A. D. 1898, the above 
 precept was by me served on the Rev. N. N. men- 
 tioned therein who also received it in the presence of 
 the Very Rev. N. N. vicar g^eneral (or in the pres- 
 ence of N. N. and N. N. as witnesses summoned for 
 the purpose.) 
 
 N. N. Vicar General, or N. N. and N. N. wit- 
 nesses ad hoc. 
 
 Ita est. N. N. Bishop's Chancellor." 
 
 333. This precept for validity must be served in 
 writing-. If the delinquent will appear in the chan- 
 cery office it will be served on him by the chancellor 
 in the presence of the vicar g-eneral or of two ecclesi- 
 astical or virtuous lay witnesses summoned for the 
 purpose, who may be required under oath to keep 
 secret the precept and its circumstances. A proper 
 record as g-iven above is made of the service by the 
 chancellor, which is to be sig-ned also b}^ the vicar 
 general or the two witnesses. This precept should 
 be in duplicate cop3% one for the delinquent, one to 
 be retained in the chancerv. 
 
 If the precept cannot be served in the chancery 
 
302 LEGAL FORMULARY. 
 
 office because the delinquent refuses to appear or if 
 he cannot be found, the same method for serving- it 
 may be used as for a citatioa. E^ven the registered 
 mail can be employed. (C/*. Art. 14, C?mi viag-o- 
 pere.) The form for ordering a retreat as a preven- 
 tive remedy is given below, n. 480, in the chapter on 
 punishments. 
 
 334. Since the "Cum magnopere" was issued it is 
 necessary, as a rule, to g^ive the canonical admoni- 
 tions and the formal precept and then a trial before 
 repressive punishments may be inflicted, whether 
 they be called correctional, medicinal or vindictive, 
 which distinctions are rather logical than real. 
 Where, however, the crime committed is of great 
 enormity, and it is evident that the delinquent acted 
 with malice prepense, or also where the greatness of 
 the scandal given requires it, the criminal trial may 
 be begun at once by the fiscal procurator filing his 
 bill of complaint without the admonitions or formal 
 precept having been given previously by the bishop. 
 Such is the general law, as applied also by Art. XI 
 of the "Cum magnopere." Further, when the 
 bishop suspends ex informata conscientia, neither 
 warning, precept nor trial need be g"iven. But it is 
 plain that in all such cases the bishop assumes a 
 very grave additional responsibility. Again in the 
 case of censures which are a jure et latce sentefitice, 
 no previous precept or monition is required, 
 but only a citation to show cause why sentence 
 should not be declared. A threat to a particular 
 person by the ordinary, that unless he does a certain 
 thing before a certain time he as delinquent will be 
 ipso facto suspended from office, although a censure 
 
TRIAL IS NECESSARY. 303 
 
 latce sententice ah honiine is held by some canonists to 
 be equivalent to a censure a jure et latce sententice, 
 in this much that the threat itself is a continual ad- 
 monition. Therefore they say no further zvarning^ 
 is required after the lapse of the allotted time, but 
 only a citation to the delinquent to appear and show 
 cause why a sentence declaratory of the censure 
 should not be passed on him. Ag-ainst such a per- 
 sonal threat, an appeal when admitted by the hig-her 
 court, has a suspensive effect. However, on the 
 other hand it is held that a bishop cannot even val- 
 idly inflict by such special sentence a correctional 
 punishment or censure to be incurred ipso facto for 
 future crimes {Cf. Smith's Elem. )i. 20^1 \ Rota, 
 Enchir. f>g. 277.) The citation to show cause is to 
 be issued at the instance of the fiscal procurator, 
 who must submit judicial proof that the censure was 
 incurred, i. e., that the crime was committed or that 
 the required work was not performed. This in reality 
 IS the judicial process. {.Cf. Mojiacclli Tom. j, /. /, 
 f. I et seq. Vide etiam, Reiifensttiel, I. 5, t. jg, n. 21 , 
 2j; De Angelis, h. tit. parag-. j; Eng-el, l- 5, tit- 39 ^ 
 n. 9, Novarrus, eodem tit. co)icil. g, )i. 4.) These 
 authors also hold that the denunciation or declara- 
 tion of a censure laid down in law, or a personal 
 threatened suspension as above, is null unless it is 
 preceded by a citation to the delinquent to show cause 
 why it should not be passed. {Cf. Glossa Clement. 
 J, de censuris et Clement. 2, de pee n is. JValte?-, 
 Canon Lazi\ pg". 2J4.) One exception is made: 
 namely, when the fault and the contumacy 
 of the unrepentant delinquent are notorious. 
 This notoriety itself, however, must be show^n to 
 
304 LEGAL FORMULARY. 
 
 exist and cannot be presumed. To omit a citation 
 to show cause and to plead notoriety is a dang-erous 
 proceeding, for as said in Cap. C onsiiliiit 14, de Af>- 
 -pell., "many thing's are called notorious which really 
 are not such, and therefore when denied they must 
 be proved." Consequently, when no citation is 
 issued to the delinquent to show cause why a declar- 
 ation of his censure ipso facto incurred, should not 
 be passed, for the alleg^ed reason that his contumacy 
 is notorious, then under pain of nullity, a sentence 
 declaratory of the notoriety of the contumacy must 
 first be passed or at least be inserted in the sentence 
 declaring- the ipso facto suspension. (C/. Reiffen- 
 stiiel, I. 5, /. 7, n. 264, 266, et alios ibi et coynmuniter .^ 
 In a late case no declaration of the notoriety of the 
 contumacy was inserted in the sentence declaring a 
 suspension which a bishop claimed was ipso facto 
 incurred, but to hear which sentence he had neglected 
 to cite the delinquent priest, claiming- afterwards 
 that the priest was notoriously contumacious. Be- 
 cause of the aforesaid neglect to show or at least in 
 the sentence to state this alleged notorious contu- 
 macy, the sentence could not legally be sustained. 
 Moreover, notoriety can never sufficiently establish 
 the incorrigibleness of the notorious offender, since, 
 even when a person has, e. g. publicly said that he 
 will not obey the superior's warning, it is possible, 
 nay presumable, that he may have done so from bra- 
 vado or want of consideration. (6/. Smith Elem. 
 n, 20^4, Kober, der Kirkenbann, pg. 155.) 
 
 335. The instruction "Cum magnopere" is silent 
 on the process ex notorio and the process is so dan- 
 g^erous that it is rarely used to-day. In fact it seems 
 
TRIAL IS NECESSARY. 305 
 
 SO discordant from our times and really so unneces- 
 sary that few bishops care to use it. If the church 
 to-day wished the procedure ex )wtorio used g-ener- 
 all3^ it would have mentioned the matter in the in- 
 struction just as it mentioned the one exception of 
 the suspension ex Uiformaia coiiscieiitia. However, 
 if the crime w^as committed openly before the jud^e 
 sitting" in court or a bishop makin^;" canonical visita- 
 tion, it may be immediately punished ex notorio. 
 Such notorious crimes, as well as contempt of court, 
 mentioned below in n. 366, require no trial, but 
 only an immediate declaration of the notoriet}^ and a 
 sentence. {Cf. also n. 281-282 above.) However, 
 most modern canonists say that even in such cases a 
 trial is required. {Sviith. Elem. )i. 20^4; Kober, 
 der Kirkenbayin, -pg". ijj.) 
 
 For all other cases our authorized process under 
 the instruction likeh^ can be made short enout^h. 
 Hence the Third Council of Baltimore, n. 310, says: 
 "Let the bishops notice that except the one case of 
 suspension ex inforniata conscientia, no repressive 
 punishment should be inflicted unless a judicial 
 process has preceded, so that even in causes which 
 are called notorious, it is by all means much better 
 to institute a summar}^ process reg^arding- the 
 notoriety before punishment is inflicted." This ad- 
 vice applies even to crimes committed in the ver}^ 
 presence of the bishop or judg-e out of court. {See 
 belovj, )i. ^,Y' ct'nd folloi^'iiig for the process.) 
 
 336. The instruction, in article 10, states that a 
 criminal action may be instituted against a cleric 
 either because without other fault he breaks the 
 precept mentioned above or because of crimes or for 
 
 40 
 
306 r^EGAL FORMULARY. 
 
 breaking" church laws. The process is to be com- 
 piled summarily, but the rules of -justice must be 
 strictly followed. This compilation of the- process 
 and especially the taking* of testimony -may be quite 
 burdensome. Hence, if the bishop and the vicar 
 general, who are the ordinary judges of the diocese, 
 prefer not to act as judge in a certain case, the bishop 
 may delegate some cleric to act, and so also the vicar 
 general if in his letters of appointment he has re- 
 ceived this power. The judge delegate before acting* 
 must leg*itimii:e or show his appointment in public or 
 before witnesses and a memorandum to this effect 
 must be entered by the actuary of the trial, for which 
 a form is given below. The appointment of a judge 
 delegate must be made in writing. The same is 
 true of an auditor appointed to take testimony. 
 
 337. Following is a form for appointing either a 
 judge or an auditor in a criminal case: 
 
 "N. &c Bishop of N. to Rev. N. N. (insert the 
 official title or position of the person appointed) 
 health in the Lord: 
 
 The requirements of our office demand that not 
 only by kind exhortation and preventive remedies 
 shall We endeavor to prevent evil and remove scandal, 
 but also that at times by more vigorous measures 
 We shall recall delinquents to a sense of duty. 
 Since therefore an official process is necessary be- 
 cause of information now before Us regarding the 
 Rev. N. N. of the church of N — in N — , and since 
 our msLuy other duties will not permit Us personally 
 to act as judg-e (or auditor) in the aforementioned 
 case, We, knowing your prudence, knowledge of 
 law, probity of character, do by these presents con- 
 stitute you our judge delegate (or auditor) for this 
 case of the Diocese of N. vs. Rev. N. N. charg-ed 
 
FORM irOR APPOINTIN(; JUDGE. 307 
 
 with (mention the crime or charofes,) the doc- 
 uments in which matter are g-iven you herewith; and 
 We commit to you the rio-ht and power, having- 
 chosen, if you wish, a competent (auditor and) 
 assessor, with our diocesan chancellor or other 
 notary as the actuary for the case, of drawing- up 
 and completing- a criminal process over the afore- 
 mentioned person and charg-es even to the final sen- 
 tence inchisivc (or exchisive, if only an auditor is ap- 
 pointed; in which case add: and j^ou will faithfully 
 transmit to Us all the acts and your summary of the 
 case that We may pronounce what shall be just.) 
 For which purpose We deleg-ate to you all the neces- 
 sary and opportune power and faculties. Where- 
 fore We command all and sing'ular our subjects that 
 they recog-nize and receive you as our judg-e deleg-ate 
 (auditor) and that in this case and matters pertain- 
 ing- thereto they obey you as ourselves, under the 
 penalties constituted by ecclesiastical law ag-ainst 
 the rebellious and contumacious. In testimony &c. 
 Given &c. 
 
 [Lv. s.] N. Bishop of N. 
 
 N. N. Bishop's Chancellor." 
 
 338. If the vicar g-eneral deleg-ates, he must men- 
 tion that he does so by virtue of the power he him- 
 self received so to do in his appointment. If the 
 vicar capitular or administrator deleg-ates, he makes 
 the proper chang-es in addressing- the person dele- 
 g-ated. Following- is a form for leg'itimizing- or pub- 
 lishing- the appointment of a judg-e delegate or 
 auditor: 
 
 "We the undersig-ned heard read and saw^ with 
 our own eyes the letters by which the Most Reverend 
 Bishop of N. (vicar g-eneral) delegated as judge 
 (auditor) the Rev N. N. &c in the criminal case of 
 the Diocese of N. vs. Rev. N. N. In testimony 
 
308 IvEGAL FORMULARY. 
 
 whereof witness our names this day of 
 
 A. D. . 
 
 Sig-natures, N. N. and N. N. 
 
 N. N. Actuary." 
 
 The oath of office must of course be taken, a form 
 for which is o-iven in n. 60, pag^e 57. This form may 
 be used for any office by only chano-ing- the names. 
 
 339. There are various ways in which the bishop 
 may have obtained the extrajudicial information on 
 which he based his monitions and precept. As 
 shown in the next chapter, some people may have 
 filed charges to which they have sworn, or the news- 
 papers may have contained reports which were veri- 
 fied by proper investigation. After preventive 
 measures have been used, all this information is turned 
 over to the fiscal procurator with an order of the 
 bishop to proceed. The procurator will then draw 
 the charges and present them to the curia. No one 
 else can officially present charg-es, although any 
 agg-rieved person may file accusations with the 
 bishop. Hence it is a grave duty on the part of the 
 procurator to see that the testimonyalready at hand 
 is sufficient to give at least half-full proof. The 
 bishop should remember that a priest must have be- 
 come defamed before a judicial process can be begun; 
 otherwise the act of the bishop will be defamatory 
 and illegal. The prosecutor is obliged to call the 
 bishop's attention to this, and cannot file charges 
 unless defamation has already occurred. For in- 
 stance, one or two people know that a priest who 
 enjoys a gfood reputation has been guilty of a secret 
 crime, which in itself does not injure his flock. 
 They report the matter to the bishop and swear to 
 
TAKING TESTIMONY. 309 
 
 it. In such a case the bishop may institute a sum- 
 mary investig^ation and may g-ive a canonical warn- 
 ing* to the priest, but he cannot place him on trial, 
 for there is no ill-fame and a trial would be scanda- 
 lous, as well as injurious. Hence great prudence is 
 required in both bishop and fiscal procurator. The 
 duty of the latter is to protect the innocent and pre- 
 vent scandal as well as to satisfy justice. The form 
 for his appointment is gMven in the first part of this 
 book, in n. 81, pag"e 75. 
 
 340. It may be well to remark that if the testimony 
 on which the bishop based his paternal warning's 
 and the precept, or in other words if his informative 
 process before using- preventive remedies, was con- 
 ducted and gathered legfally, as is aUvays best, then 
 this same testimony without re-examination may be 
 used, after the procurator has filed his charg-es, in 
 the process for the information of the curia before 
 the citation is issued to the accused. Further, it 
 may be used in the judicial process when leg'alixed 
 and accepted by the accused, without even then being- 
 repeated, unless a demand for repetition is made. 
 The testimony when taken in the first instance 
 should therefore be taken leg'ally before the vicar 
 g^eneral or a deleg-ate and an ecclesiastical notary, 
 sig-ned by the sw^orn witnesses, and all marked and 
 drawn reg-ularly, the forms for which will be g-iven 
 below. Much time can thus be saved, and useless 
 repetitions avoided. However it should be remem- 
 bered that more proof is required for convicting- a 
 cleric on trial than will suffice for g-iving- warning-s 
 and the precept. For imposing- preventive remedies 
 the bishop must have moral but not leg-al certainty 
 
310 LEGAL FORMULARY. 
 
 of the guilt of the accused. For the filing- of the 
 criminal libellus the procurator should have at least 
 legal half-full proof. For the citation of the accused 
 the judge should hdL,YQ ;p7'ivia facie legal full proof, 
 such that unless overthrown must convict the ac- 
 cused. Finally for conviction of the accused the 
 judge must have legal full proof remaining' after the 
 defense has tried to off-set it. 
 
 It should not be overlooked that prescription may 
 be urged effectually against a criminal action for cer- 
 tain crimes. {See -page ^gj belozu.) Hence care is 
 necessary lest a process otherwise legal become null 
 and ineffectual through lapse of time since the crime 
 was committed. 
 
CHAPTER II. 
 
 FORMS FOR THE SUMMARY INVESTIGATION BEFORE 
 
 PREVENTIVE REMEDIES. 
 
 341. As was said in the preceding numbers the 
 information on which the bishop bases his paternal 
 preventive remedies may be obtained from various 
 sources. For safety a summary investig-ation should 
 be made by the vicar g-eneral or a deleg^ate accom- 
 panied by a notary. A prudent investig-ation ma}^ 
 quietly be made, when public fame or certain per- 
 sons charg-e a cleric with crime, and sometimes the 
 vicar general may beg-in an investig-ation ex officio 
 when the crime of a cleric becomes known throug-h 
 another trial or when a criminal exception is taken 
 and proved agfainst him. 
 
 342. The following- form for opening- the acts may 
 be used when a summary investig-ation is made be- 
 cause of public fame: 
 
 '^Diocese of N— \ 
 
 vs. \ Diocese of N — ) 
 
 Rev. N. N. ) Criminal Department. \ 
 
 In the name of the Lord, amen. This is a sum- 
 mary investig-ation w4iich the V. Rev. N. N. vicar 
 g-eneral of the Most Rev. Bishop of N — intends to 
 institute ex officio ag-ainst Rev. N. N. a priest. For 
 since it has come to the ears of the aforesaid vicar 
 g^eneral that there exists common fame even among- 
 
 g-rave and not malevolent persons, that the Rev. N. 
 
 3n 
 
312 . LEGAL FORMULARY. 
 
 N. has fallen into several faults and crimes, namely, 
 1^ That he drinks to excess; 2° that he is therefore 
 not able and does not attend to his parochial duties; 
 3'^ that he loudly and openly curses people by the 
 holy name of God; 4° that he struck and seriously 
 wounded N. N. (or if only one thing* is charged men- 
 tion that); therefore the said vicar g*eneral wishing- 
 to fulfill his duty decided to make a summary inves- 
 tigation of these matters. Wherefore he summoned 
 me the undersigned notary to his room (or other place) 
 where he erected his tribunal, and deputed me as 
 actuary for the case. These things were done 
 
 at this day of A. D. . 
 
 Signed: N. N. Vicar General. 
 
 N. N. Actuary:" 
 
 The form for examining witnesses to prove ill- 
 fame is given below in n. 373. 
 
 343. When a person of good reputation and to 
 whom no exception can be taken testifies to the 
 bishop, making his visitation and instituting a gen- 
 eral investigation, that, for instance, he has himself 
 seen a cleric frequently enter and leave forbidden 
 places, such a half-full proof may be a reason for a 
 summary investig'ation. The same may be said when 
 a responsible person denounces a priest in writing, 
 and testifies to the fact. The form for opening the 
 investigation in such case is the same as the above 
 except to change the source of information. In all 
 such cases the bishop should first investig'ate 
 whether there is ill-fame, in order to know how to 
 proceed. 
 
 344. When by criminal exception to a cleric filed 
 and proved in another case, or by mention inci- 
 dentally made in another case of a crime committed 
 by a cleric, a crime becomes known to the bishop or 
 
PREIylMINARY IN VE^STIGATION. 313 
 
 vicar jufeneral, a summary investig-ation should be 
 made. The judicial process in which the crime was 
 divulged makes proof of ill-fame. The following^ 
 may be used as the form for opening* when a crime 
 becomes known through another trial: 
 
 "In the name of the Lord, amen. Since in the 
 process instituted ag^ainst N. N. concerning- (here 
 mention the suit) a certain N. N., who was a wit- 
 ness judicially examined, (or the defendant) confessed 
 in his deposition that he had committed (mention the 
 crime confessed); therefore the V. Rev. N. N., vicar 
 gfeneral, wishing* to fulfill his duty decided and de- 
 cides to proceed ex offtcio to the investig^ation and 
 punishment of the said crime in accordance with the 
 sacred canons. Wherefore &c. These thing's were 
 done in , this day of A. D. 18 — . 
 
 Sig"ned, N. N. Vicar General. 
 
 N. N. Actuary." 
 
 The following" may be used as a form for opening" 
 when a crime becomes known throug-h a criminal 
 exception: 
 
 "In the name of the Lord, amen. Since it is the 
 duty of a judg-e to coerce criminals by punishing 
 them, lest their bad example and immunity from 
 punishment may induce others to commit similar 
 crimes; the V.Rev. N. N., vicar g-eneral of the Most 
 Rev. Bishop N — , knowing- that N. N. has committed 
 several serious faults, as was proved in the exception 
 process broug-ht ag-ainst him at the instance of N. N. 
 as in the acts, decreed, as he also by these presents 
 decrees, to institute a summary investigation or 
 process ag-ainst the said N. N., to examine witnesses 
 and to do other thing-s as required by law even to a 
 definitive sentence. Wherefore, &c. These thing-s 
 
 were done in this day of A. D. 18 — . 
 
 I, N. N. Vicar General. 
 I, N. N. Actuary." 
 
 41 
 
314 LEGAL FORMULARY. 
 
 345. The vicar general with the actuary will then 
 proceed with the summary investigation. This 
 should follow in effect the lines laid down for the 
 judicial process. Hence witnesses may be examined 
 regarding- the existence of common ill-fame, and if 
 the fault or crime left permanent marks, such for 
 instance as the striking of N. N. by the priest men- 
 tioned in n. 342, then a visitation of the corpus 
 delicti should be made and properly recorded. Wit- 
 nesses may then be cited and examined regarding 
 the crimes charged, and their testimony noted. 
 Should the vicar-g-eneral be unable to go to a certain 
 place to examine witnesses a commission may be 
 delegated for the purpose by the bishop or by the 
 vicar general if his appointment gives him that 
 authority. If a special notary is also appointed for 
 the commissioner then only the bishop can appoint 
 him. Forms for these acts are the same as those 
 used in the judicial process which will be given be- 
 low in chapters IV and following. 
 
CHAPTER III. 
 
 FORMS FOR CRIMINAL LIBELLUS AND FOR RE- 
 CORDING THE ACTS. 
 
 346. When the fiscal procurator is certain of the 
 necessity of filing- charg-es he may use the following- 
 form for a criminal libellus: 
 
 "Diocese of N — i 
 
 vs. > Diocese of N — [ 
 
 Rev. N. N. ) Criminal Department. ) 
 
 Bill of Charg-es. 
 
 Comes now the Rev. P. Q., fiscal procurator of 
 the diocese of N — and before the V. Rev. N. N. 
 vicar g-eneral and ordinary judg-e, files ex o/fic/o the 
 following- charg-es and accuses the Rev. N. N. rector 
 of the church of St. A — in X — of being- scandalous 
 in conduct, of neg-lecting- to say mass on Sundays so 
 that the people of his parish may assist thereat, of 
 celebrating- mass without keeping- the fast required 
 as a preparation, of breaking- the precept imposed 
 upon him reg-arding- these matters by the Most 
 Rev. B. C, bishop of this diocese. 
 
 The fiscal procurator charg-es: 1*^ Scandalous 
 conduct and specifies: a) The Rev. N. N. frequents 
 saloons in X — and drinks therein, much to the 
 scandal of his parishioners, b) The Rev. N. N. 
 was seen drunk on the streets of X — and particularly 
 on or about the 10th da}^ of May A. D. — , and also 
 onor about the 15th day of June, A. D. — . c) Because 
 of excessive drink he was unfit and unable to attend 
 an urg-ent sick call in X — on the 11th day of June 
 
 315 
 
316 LEGAL FORMULARY. 
 
 A. D. 1898, and in consequence the sick person died 
 without the sacraments. 
 
 2^ Not celebrating- mass on Sundays so that the 
 parishioners may assist thereat, and specifies: 
 a) On Sunday, the 5th day of June, A. D. 1898, and 
 ag-ain on Sunday, the 12th day of June, A. D. 1898, 
 the Rev. N. N. neither said mass nor had mass cel- 
 ebrated in the church of X — , on which days mass 
 should have been said. 
 
 3° Breaking- the ecclesiastical fast required before 
 celebrating" mass and he specifies: a) On the morn- 
 ing- of the 14th day of June, A. D. 1898, the Rev. N. N. 
 publicly said mass in X — after eating- and drinking- 
 at about 2 o'clock that morning- in the presence of 
 five or six persons. 
 
 4*^ The fiscal procurator charg-es the Rev. N. N. 
 
 with breaking- in X — during- the month of 
 
 A. D. , the formal precept imposed upon him on 
 
 the 31st day of May, A. D. 1898, by the Most Rev- 
 erend Bishop. 
 
 To sustain which charg-es legally the fiscal pro- 
 curator is ready; and he therefore prays that this 
 bill be accepted, that proceeding-s be had as required 
 by law and punishment be inflicted according-ly. 
 Hoc et omni meliori modo. 
 
 Dated N— June 21, 1898. 
 
 P. Q. Fiscal Procurator." 
 
 The fiscal procurator should not attach the names 
 of witnesses to his charg-es. He may hand a sched- 
 ule of proofs to the judge, but it should not be put 
 in the acts at this stag-e. 
 
 347. After the fiscal procurator has officially filed 
 his charg-es, the judg-e, either ordinary or deleg-ated, 
 will summon the diocesan chancellor or other notary, 
 who as actuary for the case may beg"in the acts with 
 this form for recording- the acts or beg-inning* com- 
 pilatio processus: 
 
FORM FOR RECORDING ACTS. 317 
 
 "Diocese of N — i 
 
 vs. >- Diocese of N — ) 
 
 Rev. N. N. ) Criminal Department. \ 
 
 In the name of the Lord, amen. This is a crimi- 
 nal -process which at the instance of the Rev. P. Q. 
 fiscal procurator of the diocese of N — the V. Rev. 
 N. N., vicar general of the Most Rev. Bishop of N — 
 intends to formulate. For since the said fiscal pro- 
 curator appeared and officially offered a bill of 
 charo-es which begins 'Diocese of N — vs. Rev. N. 
 N. Bill of Charges' and ends with his signature and 
 the date, 'June 21, 1898,' and which bill is found be- 
 low under the title 'Documents no — ,' the aforesaid 
 V. Rev. vicar general wishing to proceed according 
 to law% summoned me, an ecclesiastical notary, and 
 deputed me as actuary for the case. These things 
 were done in this day of A. D. . 
 
 Signed, N. Vicar General. 
 
 N. Actuary." 
 
 348. If the notary is specially created for the case 
 he should insert the document of his creation among 
 the records and while using the above form for be- 
 ginning the process will insert these words after 
 "the aforesaid vicar general:" 
 
 "Wishing to proceed according to law obtained 
 from the Most Rev. Bishop N — that a notary be 
 created who could be made actuary for this case. 
 Wherefore the aforesaid bishop before witnesses 
 created me a notary public, having administered to 
 me the oath of fidelit}^ in office which I at once took, 
 as appears in the documents of this case no. — ; and 
 the V. Rev. vicar general deputed me actuary 
 for this case. These things were done &c as above." 
 
 The form for creating a notary is given in the first 
 part of this work, page 64. 
 
 349. When a delegate judge or an auditor has 
 
318 IvEGAIv FORMUI^ARY. 
 
 been appointed, for which the forms are g^iven above 
 in n. 337-338, then the actuary will thus beg"in: 
 
 "Diocese of N — ) 
 
 vs. > Diocese of N — ) 
 
 Rev. N. N. ) Criminal Department. I 
 
 In the name of the Lord, amen. This is a criminal 
 process which the Rev. N. N. (mention the deleg'ate's 
 title, such as consultor) as judg-e delegate (or auditor) 
 at the instance of. Rev. P. Q. the fiscal procurator 
 of the diocese, intends to formulate. For since the 
 Rev. P. Q., the said fiscal procurator, appeared be- 
 fore the vicar gfeneral of the Most Rev. Bishop of 
 N — and officially offered a bill of chargfes which 
 beg"ins: 'Diocese of N — vs. Rev. N. N. Bill of 
 charg^es' and ends with his signature and the date 
 'June 21, 1898,' and which bill is found below under 
 the title 'Documents no. — ,' the aforesaid V. Rev. 
 vicar general (or the Most Rev. Bishop at the request 
 of) busy with other work, therefore delegated his 
 jurisdiction over this case (for the compilation of the 
 process) to Rev. N. O. (diocesan consultor.) The 
 said delegated consultor (or other official) went to 
 X — and there before all else legalized his appoint- 
 ment by having the letters patent of his delegated 
 jurisdiction read before M — and Y — as witnesses, 
 as appears below under the head of Documents 
 no. — The judge delegate (or auditor) wishing to 
 proceed &c (as in previous form.) Dated &c. 
 
 N. O. Judge Delegate (or auditor.) 
 
 N. Actuary." 
 
CHAPTER IV. 
 
 FORMS FOR VISITING CORPUS DELICTI, FOR INTRO- 
 DUCING DOCUMENTS. 
 
 350. When the crime, which is bein^ investig^ated, 
 either summarily or judicially, is of a permanent 
 character, i. e., when traces of it are left, a visita- 
 tion of the corpus delicti should be made, since this 
 constitutes basic testimony. This visitation should 
 be made even before investig^ation is made of the 
 fama piiblica, when the vicar g^eneral bases his sum- 
 mary investigfation on that foundation. If after the 
 precept is g"iven there is a renewal of the corfiis 
 delicti^ another visitation should be made. For in- 
 stance a formal precept has been g'iven a cleric to 
 cease becoming* intoxicated. Some time after re- 
 ceiving* this precept he is reported to have delirium 
 tremens. This condition might constitute a corpus 
 delicti', though to make a visitation in such or similar 
 cases, experts might safer be emplo3'ed. 
 
 351. When the vicar general, judge delegate or 
 auditor makes the visit to the corpus delicti, the 
 acts may be thus written. 
 
 "After this the Rev. N. O., the judge (auditor) 
 wishing to proceed according to law, accompanied 
 by me and two witnesses, specially summoned for 
 the purpose, went to X — in order to visit the corpus 
 delicti mentioned in number — of the charges under 
 
 319 
 
320 IvEGAL FORMUI^ARY. 
 
 this investigation which was instituted ex officio be- 
 cause ot common fame (or insert proper reference to 
 acts in the case.) And it was seen and found that 
 N. N. was badly injured; for there w^s a wound on 
 the rig"ht side of his face &c (describe it) on account 
 of which the said N. N. was confined to his room. 
 (Or) And it was seen and found that the said Rev. 
 N. N. was in a state of delirium, in which he acted 
 irrationally, claiming to see snakes and such like 
 and constantly calling" for liquor (describe condition) 
 which state the physicians present as witnesses said 
 was delirium caused by excessive drink. These 
 thing's were done in — the — day of — A. D. — . 
 
 Sig-ned, N. O. Judg-e. 
 
 I, M. M. was present as witness. I, G. H. was 
 present as witness. N. N. Actuary." 
 
 352. If the judg"e himself cannot make such a visit 
 he may depute the actuary with the two witnesses, 
 and the acts may then be written: 
 
 "After this, the Reverend Judg^e wishing* to pro- 
 ceed according- to law, deputed me with two wit- 
 nesses, namely M. M. and G. H. to visit the corpus 
 
 delicti mentioned above in . Hence, accompanied 
 
 by the said witness I went to and there it was 
 
 seen and found that" &c as above. Dated and 
 sigfned by the two witnesses and the actuar}^." 
 
 If for some reason it is impossible to visit the 
 corpus delicti, for instance, the injured person will 
 not submit to it, as in the case of an outragfed woman, 
 then an entry should be made in the acts reg^arding- 
 the matter and proceeding's continued as if no traces 
 of the crime were left: 
 
 "Althoug"h the said crime mentioned above in 
 number — is of a permanent character and therefore 
 would require a visitation of the cor-ptis delicti, still 
 because the aforesaid injured person, D. E. will not 
 
INTRODUCING DOCUMENTS. 321 
 
 consent to an examination, and there is no way to 
 compel it, the V. Rev. N. N. vicar g*eneral (or jud^j^e 
 or auditor) pronounced that the visitation of the 
 corfms delicti, since it is impossible, is not required 
 in the case, and it beino- omitted, that the proceed- 
 ing's be continued. Done &c. SitJj'ned &c." 
 
 353. It will be necessary to introduce into the 
 criminal process the canonical admonitions and the 
 precept as well as what testimony is deemed suitable 
 from that g^athered in le^^al form by the bishop be- 
 fore inflicting* preventive punishments. A copy also 
 of thedecree inflicting- these punishments, paternally 
 administered, may be introduced from the summary 
 investig"ation into the judicial process. All this 
 should be done before the accused is cited, and even 
 before witnesses are examined. The following* form 
 may be used for introducing- such documents or 
 records: 
 
 "After this, the V. Rev. Judg-e (or auditor) wish- 
 ing" to proceed with safet}^ and according" to law, at 
 the instance of the fiscal procurator w^ho produced 
 them, had read the canonical monitions which are 
 filed with the documents of this case and marked 
 no. — , and the. formal precept also filed and marked 
 no. — ; and it appearing" that these documents are 
 authentic, and that the said monitions and precept 
 were actually g"iven to the said Rev. N. N., the V. 
 Rev. Judg-e ordered that they be admitted, si ct i)i 
 quantum, and that they be made part of the process. 
 Done &c. Sig-ned &c, as above." 
 
 A similar form ma}^ be used for introducing" other 
 official records, and also testimony' taken b}' commis- 
 sioners either for the informative or judicial process. 
 The form for thus taking" testimony is sfiven in 
 
 chapter six below, 
 42 
 
CHAPTER V. 
 
 FORMS FOR CITATION OF WiTNliSSEiS. 
 
 354. All witnesses in a criminal case, especially 
 for the prosecution, should be cited either by letters 
 or formal citation. When they are cited to give tes- 
 timony for a summary investig"ation the name of the 
 accused should not be mentioned in the citation. 
 When cited after a citation has been issued to the 
 accused, then the process in which the}^ are to testify 
 may be mentioned. Article 17 of the "Cum mag^no- 
 pere" enacts that the witnesses must be examined 
 separately. Article 18 enacts that all witnesses be- 
 fore testifying- must take an oath to tell the truth, 
 and also to keep secret the matter on which they tes- 
 tified. This secrecy must be observed until the leg^al 
 publication of the testimony. It is also enacted that 
 all others connected with formulating- the process 
 must take a similar oath. 
 
 355. Article 19 authorizes the employment of a 
 commissioner to take the testimony of witnesses in 
 distant places within the diocese, and their diocesan 
 authority if they be in another diocese, and says a 
 summary of the facts of the case must be transmitted 
 to the commissioner along" with the questions pro- 
 posed for the witness to answer. Article 20 enacts 
 that if witnesses who should be examined cannot be 
 examined, either because it is not lawful or proper to 
 cite them, or because when cited they refuse to come, 
 
 322 
 
FORM FOR CITING WITNESSES. 323 
 
 then a note should be made of this in the acts, and 
 their testimony be supplied b}^ other witnesses who 
 know the matter by hearsay or otherwise. But it 
 should be remarked that the instruction does not 
 mention any punishment for witnesses who refuse 
 to testify. It is doubtful whether a witness can be 
 punished for refusing- to testif}^ against an accused 
 cleric, in a criminal or disciplinary case. Custom, 
 however, seems to have established the practice of 
 punishing- those who refuse to testify in favor of an 
 accused person or who contemn the court. But it 
 should be remembered that if an auditor has charg-e 
 of the process, he himself cannot inflict censures on 
 a recalcitrant witness, but must turn the matter 
 over to the vicar gfeneral, unless in his deleg^ation 
 this power of compelling* was specially deleg^ated. 
 
 356. Following* is a form for calling* a witness b}^ 
 private letters, especially for a summary in- 
 vestig*ation: 
 
 "To N.N. 
 
 Dear Sir: Since 3^our presence is necessary in a 
 certain cause which is now under investig*ation b}^ 
 us, in which 3^ou can gfive information on certain 
 points, we trust you wmII not be incommoded by 
 being- cited by us to appear before the diocesan 
 curia in the episcopal residence (or other place) on 
 the 18th day of June next at 9 o'clock a. m. Mean- 
 while may God have you in his keeping*. Given in 
 the episcopal chancery this 13th da}' of June A. D. 1898. 
 
 N. N. Vicar General." 
 
 357. Following* is a form for judiciall}' citing* a 
 witness: 
 
 "We, N. N. the vicar g*eneral of the Most Rev- 
 erend Bishop of N — , require, warn and cite N. N. 
 
324 LEGAL FORMULARY. 
 
 (under pain of suspension or without any threatened 
 punishment, as the judge sees fit) to appear on the 
 — day of this month personally in the episcopal 
 curia before us, the vicar gfeneral, there to be sworn 
 and to depose for the information of fhe curia in a 
 certain cause now being- tried before the said curia; 
 (or if the accused is already cited, then insert "in 
 the cause now being* tried in the said curia ag^ainst 
 N. N. as in the acts.") And we command that our 
 public messeng-er N. N. (or other person stated) shall 
 serve this citation on the aforesaid witness either 
 personally, or at his residence or by reg^istered mail. 
 
 Given at this day &c. 
 
 N. Vicar General. 
 N. Actuary." 
 
 358. The following- is a form for citing- a witness 
 
 so that he may be punished as contumacious if he 
 
 refuses to appear: 
 
 "We, N. N., the vicar g-eneral of the Most Rev. 
 Bishop of N — require, warn and cite N. N. (under 
 pain of fine or suspension, or without threat) to ap- 
 pear on the day of this month personally in the 
 
 episcopal curia before us, the vicar g-eneral, there to 
 be sworn and to depose for the information of the 
 curia in a certain cause now being- tried before the 
 said curia; (or mention the name of the accused if he 
 has been cited.) But wishing- that this notice of 
 citation shall have the force of a canonical warning-, 
 we therefore assig-n six days from the day on which 
 this notice shall be served on him, of which two shall 
 be for the first term, two for the second and two for 
 the third and peremptory term; within which, if he 
 does not appear before us, unless detained by a 
 leg-itimate cause, let him know that we shall pro- 
 ceed ag-ainst him as contumacious, according- to the 
 forms of law, without any other citation. Given &c. 
 
 N. Vicar General. 
 N. Actuary." 
 
SERVICE OP CITATION. 325 
 
 If the witness does not appear, then a declaration 
 of contumacy should be made by the jud^'-e and 
 canonical monition g-iven, as below in n, 360, before 
 censures are inflicted. (C/. Cone. Trent, sess. 25, 
 e. J, de ref.) 
 
 359. Article 14 of the "Cum mag^nopere" enacts 
 that all notices and citations shall absolutel}^ be 
 g-iven in writing", i. e., under pain of nullity. When 
 the person, public or private, charg-ed with the serv- 
 ing" of the citation has served it, he must under oath 
 make his return of service to the actuary. If he 
 cannot serve the citation he must make a return to 
 that effect. Hence each citation should be in dupli- 
 cate, one for the witness, the other to be retained by 
 the messeng-er and returned to the actuary who will 
 insert it in the acts with the following" entry: 
 
 "Since M. P. the messeng"er (or other person 
 stated) of this curia received a mandate from the V. 
 Rev. Vicar g"eneral to citeX. Y. personally, or in his 
 house, or by reg"istered letter, he having" now re- 
 turned to me the actuary, and being" first sworn, 
 made report that on — (mention time and place) he 
 served the citation to him (mention in what way) and 
 he presented a copy of it for the acts, which is filed 
 and marked no. — . These thing's were done in the 
 
 episcopal chancery this day of A. D. . 
 
 I, M. P., the messeng"erof the episcopal curia, affirm 
 as above. N. N. Actuary'." 
 
 The actuary will enter in the acts the failure to 
 serve the citation, chang"ing" the above form where 
 needed. If the service was by reg'istered mail, the 
 messeng"er will file the postal precept with his return 
 of service. 
 
 360. For the purpose of proceeding" ag"ainst a con- 
 
326 LEGAL FORMULARY. 
 
 tumacious witness, following' is a declaration of 
 contumacy and a form for a warning- citation to a 
 witness equivalent to three: 
 
 "We, N. N. the vicar general of the Most Rev. 
 Bishop of N — , since it appears that X. Y. a witness 
 cited personally (or state how) to appear before us 
 personally (or before Rev. L. K. auditor for this 
 curia) did neither appear on the appointed day nor 
 excuse his absence through a procurator (or refused 
 to come &c.;) we, therefore, intending to proceed 
 against such contumacy in accordance with law, by 
 way of warning cite the aforesaid X. Y. to appear 
 before us and show cause why he should not be pun- 
 ished for contempt, within thirty days from the date 
 of these presents; of which days we assign ten for 
 the first, ten for the second and ten for the third and 
 peremptory term. Therefore if he does not appear 
 before the said peremptory term has elapsed, unless 
 leg-itimately impeded, let him know that we shall 
 proceed against him as contumacious without any 
 further warning. Given at &c. 
 
 N. Actuary. N. Vicar General." 
 
 361. The actuary ma}^ enter the above in the acts 
 in these words: 
 
 "Since X. Y. who, on the order of the V. Rev. N. 
 N., vicar general (or auditor) was cited to appear 
 and testify in this case, did not appear on the re- 
 quired day (or told the messenger he would not come 
 &c.:) therefore the said V. Rev. Vicar general 
 ordered proceedings accorded to law against such 
 contumacy and comijianded that a monitorial cita- 
 tion, peremptory and equivalent to three, be served 
 on the said X. Y. (or at his house, or by reg*istered 
 mail) by the court messeng'er (or other person speci- 
 fied) of which the following is the tenor: (Insert 
 monition as above.) Therefore the aforesaid mes- 
 senger (or other specified person) after he had ful- 
 
FORMS FOR CONTUMACY. 327 
 
 filled his orders, returned to me the actuary and on 
 oath reported (either that the aforesaid X. Y. thus 
 cited said &c or reported) that on the — da\^ of — 
 A. D. — he delivered the citation, of which the above is 
 a copy, to X. Y. personally (or at his house or by 
 reg'istered mail.) 
 
 These thing's were done in this day of 
 
 A. D. . I, M. P. messeng-er of the episcopal curia 
 
 affirm as above. I, N. N. Actuary." 
 
 362. Form for declaring- sentence ag^ainst a con- 
 tumacious witness: 
 
 "Since X. Y. was cited to appear before us by a 
 peremptor}^ warning* having- the force of a triple one, 
 (see n. 360 above) and dated the — da}^ of — A. D. — 
 and since he by contemning- our orders has become 
 and is contumacious after the aforesaid warning-; 
 therefore to compel him to show us proper obedience, 
 by these writing's we lodg-e ag-ainst him the sentence 
 of suspension ab officio (or a fine of — dollars;) by 
 which he shall remain inflicted until he appears be- 
 fore us and by obeying- us, merits the benefit of 
 absolution. And that all nia}^ know this sentence, 
 we order it published by affixing" it in opportune 
 places. Given &c. 
 
 N. N. Vicar General. 
 N. N. Actuary." 
 
 363. The actuar}' will enter the above sentence in 
 the acts using- about the same form with proper 
 chang-es, as gfiven above in n. 361, for entering- the 
 monitory citation. 
 
 The actuary will then make this further entry 
 about the execution of the sentence: 
 
 "Therefore for the execution of the foreg-oing- sen- 
 tence, which was read in a loud and intellig'ible voice, 
 as is the custom, by the V. Rev. N. N., the vicar 
 g*eneral, seated at his tribunal, the court messeng-er 
 
328 LEGAL FORMULARY. 
 
 M. P. on the order of the V. Rev. Vicar general 
 received two copies of the said sentence to be affixed 
 to the doors of the episcopal chancery (or other cus- 
 tomary places) which same he reported on oath that 
 he had thereunto affixed. These thing-s were done 
 in — this — day of — A. D. — . I, M. P. messeng-er of 
 the episcopal curia affirm as above. 
 
 I, N. N. Actuary." 
 
 364. Form for absolving- a witness returned from 
 contumacy: 
 
 "Before the V. Rev. N. N., vicar general of the 
 Most Rev. Bishop N., came finally X. Y. who, as is 
 mentioned above, was suspended (or fined) for con- 
 tumacy; and he said he repented of his contumacy in 
 not obeying the orders and citations given him, and 
 that he is prepared to appear as often as called in 
 the future, and obey the V. Rev. Vicar general, and 
 meanwhile he has begg^ed to be absolved from the 
 censure (fine) lodged against him. 'Therefore the 
 aforesaid V. Rev. Vicar general, after g-iving an op- 
 portune serious warning, before the witnesses under- 
 sig-ned specially called for the purpose, absolved him 
 in the usual manner. These things were done 
 (place and date.) I, X. Y. have asked and promised 
 as above. I, J. K. was a witness. I, P. Q. was a 
 witness. 
 
 I, N. N. Vicar General. 
 I, N. N. Actuary." 
 
 365. The actuary may then enter in the acts the 
 following before the examination of the absolved 
 witness: 
 
 "But when the said X. Y. had been absolved from 
 the censure, as stated above, the V. Rev. Vicar gen- 
 eral called him to the curia, where he oflPered him, 
 the said X. Y., the oath of verity and secrecy which 
 he took in the accustomed way. Afterwards being- 
 
FORMS FOR CONiniMACY. 329 
 
 interrogated he replied as follows: (GivinjSf his 
 examination.) 
 
 When a witness comes into court, after being- 
 warned but before being' censured, the acts may read: 
 
 "When C. D. a witness, who had refused to obey 
 the citations, as above, but had not yet been cen- 
 sured, returned to a better disposition and sent word 
 to the V. Rev. Vicar g"eneral asking" pardon and 
 promising- obedience, he the V. Rev. Vicar gfeneral 
 called him to the curia, where the said witness hav- 
 ing" taken the oath in the usual way, was interro- 
 g-ated and replied as follows." 
 
 366. During" examination it may be necessary to 
 use this form for punishing" an irreverent witness: 
 
 "Later A. B. was called as a witness, who being- 
 ordered to take the oath and reply to questions, 
 wished neither to make oath nor to reply; but with 
 contempt did or said (mention what.) Whereupon 
 the V. Rev. Vicar g"eneral kindly admonished him, 
 and when because of this kindness the said A. B. 
 became worse, he severely rebuked him. The wit- 
 ness nevertheless persisting- in his pertinacity and 
 contempt, the V. Rev. Vicar g"eneral thoug"ht best to 
 use the remedies of law, and therefore decreed as 
 follows: 
 
 "Since A. B. called as a witness and ordered to 
 take the oath and reply to questions, openly refused 
 to obey, and althoug-h once admonished and ag"ain 
 rebuked, still persisted in his pertinacity; therefore 
 by the present order we, the vicar g-eneral, decree 
 that the said A. B. shall remain subject to the cen- 
 sure of suspension (excommunication) until he re- 
 l)ents and obeys our commands. Given (place and 
 date.) N. N. Vicar General. 
 
 N. N. Actuary." 
 4:3 
 
330 LEGAL FORMULARY. 
 
 367. The form for absolving- from the censure of 
 suspension inflicted for contumacy, as above, maybe: 
 
 "Absolvo te a vinculo suspensionis in quam incur- 
 risti ob causam contumacia et restituo te pristinae 
 executioni tuorum ordinum vel officiorum." 
 
 For absolving- from the excommunication: 
 
 "Absolvo te a vinculo excommunicationis in quam 
 incurristi proper contumaciam et restituo te sacra- 
 mentis ecclesia^ et fidelium communioni. In nomine 
 Patris &c." 
 
 These forms of absolution are not strictly neces- 
 sary; since the w^ords "absolvo te a suspensione," or 
 other censure, are held sufficient. When the censure 
 has been publicly declared, it is advisable to use the 
 form of absolution g-iven in the Roman Ritual for 
 absolution \nforo externo. 
 
 In the above forms three terms of ten days each are 
 g-iven; but after the "Cum mag-nopere" it seems only 
 two terms or tv^enty days are necessary. Moreover 
 the two monitions to show cause may be combined 
 into one peremptory citation, if mention is made of 
 such fact, as is done above, in the citation. 
 
CHAPTER VI. 
 
 COMMISSORIAL AND REMISSORIAL LETTERS FOR 
 
 EXAMINING WITNESSES. 
 
 368. When a witness is to be examined at a dis- 
 tance from the court but in the diocese the bishop, or 
 the vicar g*eneral, as stated in n. 335, will appoint 
 a commissioner for that purpose. This is a form for 
 appointing- a commissioner to take testimony: 
 
 "N. Bishop of N., to our beloved son in Christ, 
 Rev. C. R. rector of the church of St. C. in M. health 
 and benediction. Since it is necessar}^ for Us to ex- 
 amine A. K. for a certain cause which is being" tried 
 before Us, and since for g-ood reasons We judg-e that 
 it is not advisable that the said A. K. be summoned 
 to our tribunal, We therefore by these presents com- 
 mit to you and enjoin that, having- taken for actuary 
 N. N. a notary public, (or, w^hom for this case by 
 these presents We create a notary and whose oath 
 of office 3"ou will receive in the usual manner) 3'ou g-o 
 to the said A. K. (or call him before you) and in the 
 presence of the said notary you examine him on the 
 points mentioned below. But We order the said A. 
 K. under a formal precept to recog-nize you as our 
 commissioner deleg-ated to take the aforesaid exami- 
 nation and We command that he assist and obey 
 you in all thing-s for this purpose. The points on 
 which the said A. K. is to be questioned are: 
 1*^ &c. (The several questions are to be sent and 
 put to A. K. just as if he were examined in the curia.) 
 Enclosed is also a summary statement of the case on 
 
 331 
 
332 TvEGAT. FORMUTvARY. 
 
 trial; which toofether with the questions properly 
 answered, si^'iied and sealed you will return to'^Us 
 as soon as possible. Given &c. 
 
 N. Bishop of N. 
 N. N. Actuary." 
 
 369. F^orni for executing* the commission to ex- 
 amine a witness: 
 
 In the name of the Lord, amen. Since the Rev. 
 C. R., rector of the church of M — , received certain 
 letters from the Most Rev. bishop of this diocese, of 
 the following" tenor (insert the commissorial letters;) 
 therefore the aforesaid Rev. C. R. wishing- to execute 
 the aforesaid letters with all possible promptness, 
 had me, the undersig-ned, called to his house, and 
 published me a notary created by episcopal author- 
 ity in the presence of the undersig^ned witnesses, 
 and administered the oath which I took for the pur- 
 pose of being" a legitimate secretary to him in this 
 cause. These thing"s were done at — this - — day of 
 — A. D. — . I, C. R. deleg"ated commissioner. I, J. 
 S. was a witness. I, N. N. was a witness. 
 
 I, N. N. Actuary." 
 
 "Consequently the aforesaid A. K. was called, and 
 before me, after having" taken the oath, was ques- 
 tioned by the Rev. C. R. the delegfated commissioner, 
 and he replied as follows; (Give questions and 
 answers in detail. Then conclude as in all examina- 
 tions of witnesses with the clause) "which being" had 
 and accepted, if and as much as is lawful, at-the 
 command of the Rev. deleg"ated commissioner, I read 
 to the witness his deposition, which he, not wishing- 
 to chang"e, was ordered tosig"n, with the formal pre- 
 cept under oath to keep secret the contents thereof. 
 These thing's were done in — this — day of — 
 A. D. — . 
 
 Sig"ned, C. R. Witness. 
 
 C. R. Commissioner Deleg"ated. N.N. Actuary." 
 
COMMISSORIAL LETTERS. 333 
 
 If several witnesses are to be examined, the same 
 method is persued for each and when the work is 
 completed, the return is made to the bishop. 
 
 370. When a witness is to be examined in the dio- 
 cese of another bishop, remissorial letters, contain- 
 ing a summary statement of the case and the ques- 
 tions on which it is desired to have the testimony of 
 the witnesses, are sent to the bishop or vicar g'en- 
 eral of that diocese, and he then, according" to art. 
 19 of "Cum magnopere," will have the witness ex- 
 amined and will return the testimony. The bishop 
 who receives the letters will appoint a competent 
 notary for the examination. The acts of the case 
 will read: 
 
 "After this, when the V. Rev. Vicar g^eneral 
 found it necessary that N. N. be examined as a witness 
 and his presence could not be had because he lives in 
 the diocese of N — he decreed that remissorial letters 
 should be sent to the V. Rev. D. K. vicar g-eneral 
 and ordinary judgfe of that diocese. Therefore let- 
 ters were sent him of the following- tenor: 
 
 "Very Rev. Sir: — Since it is necessary for me to 
 have the testimony of a certain N. N., living- in the 
 diocese of N — in the case of (mention the case) which 
 is now on trial before me, and since you are known 
 to be ordinary judg*e in the said diocese; I deem it well 
 to ask your help. Wherefore, I beg" you to have the 
 aforesaid N. N. appear before you, or your deleg^ate, 
 and have him examined on oath before a properly 
 constituted notary who will write down his testi- 
 mony; and return his deposition properly attested to 
 me. I enclose a summar}^ of the case and points on 
 which questions are to be asked, which are the fol- 
 lowing*: 1^' &c. (Give summar}" and questions.) 
 Meanwhile oifering- ni}^ services in similar cases I 
 
334 LEGAL FORMULARY. 
 
 trust God may have you in his holy keeping. Given 
 at — . Date — . 
 
 N. N. Vicar General. 
 N. N. Actuary." 
 
 371. The judg-e who has received the remissorial 
 letters w^ill execute them as follows: 
 
 "In the name of the Lord, amen. Since the V. 
 Rev. D. K. vicar g^eneral of the Most Rev. Bishop 
 N. has received from the V. Rev. N. N. vicar g"en- 
 eral and ordinary judg*e in the diocese of N — certain 
 remissorial letters of the following* tenor: (give con- 
 tents}; therefore the aforesaid V. Rev. D. E., vicar 
 general, decreed to order them executed according to 
 law. Wherefore calling me, the undersigned 
 actuary of the episcopal curia, he ordered the re- 
 quested examination to be held. These thing's were 
 done at — this — day of — A. D. — . 
 
 D. E. Vicar General. 
 N. Actuary." 
 
 "In consequence N. N. was called and being* duly 
 sworn was questioned by the V. Rev. D. E., vicar 
 g'eneral and being* asked he replied ." 
 
 The examination should be closed as above in n. 
 369. The original acts will then be sealed and sent 
 to the vicar general who requested that the witnesses 
 be examined. 
 
CHAPTER VII. 
 
 FORMS FOR EXAMINING WITNESSES. 
 
 372. If the bishop proceeds against a cleric because 
 some one lodg^ed a complaint, it is absolutely neces- 
 sary for the bishop to institute a summary investiga- 
 tion before even paternal punishments are inflicted 
 and before he may presume to cite the cleric for trial. 
 If the bishop proceeds ex officio agfainst the cleric 
 because of public ill-fame and rumors which have 
 come not once but often to his ears, then he must 
 first have leg-al proof of the ill-fame. For safety in 
 every criminal process, no matter how it starts, the 
 bishop should first obtain proof of the ill-fame of the 
 accused, for otherwise an appeal migfht be made and 
 reversal mig-ht occur. The ill-fame required by law 
 is such that starts from honest, not malevolent per- 
 sons; and which, moreover, has come not once but 
 often to the ears of the superior. {Cf. c. J^ualiter 
 et quando.) This ill-fame must be proved to exist 
 by the testimony of at least two competent witnesses, 
 who must testify not only that the accused is in 
 ill-fame before the public, but must state the names 
 of persons who suspect him. From this it can be 
 seen whether the persons are malevolent or trust- 
 worthy, enemies or unprejudiced. 
 
 373. This examination reg^arding* ill-fame must be 
 made ex officio, and following* is a form for entering* 
 in the acts the judicial inquiry reg'arding' ill-fame: 
 
 335 
 
336 LEGAL FORMULARY. 
 
 "In consequence the same V. Rev. Vicar general 
 cited to appear before him in — on the — day of — 
 A. D. — , John N. and James N. witnesses called ex 
 officio. And when on the appointed day John N. 
 appeared and took the oath to tell the truth he 
 replied as follows: 
 To g^eneral questions: 
 
 1. Asked what is his name? He replied, John N. 
 
 2. Asked his ag^e? He replied, 30 years. 
 
 3. Asked where he lives and for how long? He 
 replied . 
 
 4. Asked what business he is in? He replied 
 
 These and similar general questions are always to 
 be asked even though the witness is well known. 
 They are for the record and the higher court in case 
 of appeal. 
 
 To special questions: 
 
 1. Asked whether the people connected with the 
 church in N. live good lives, or whether evil reports 
 exist? He replied, the reports about Rev. N. are 
 not the best. 
 
 2. Asked what reports? He replied, people say 
 he drinks hard, curses and quarrels. 
 
 3. Asked who say so? He replied, it is common 
 talk in town. 
 
 4. Asked of whom he heard thrs? He replied, I 
 heard it from Andrew N. the post-master, Matthew 
 Q. the butcher, Luke S. the lawyer. 
 
 5. Asked whether he knows or heard that these 
 persons are enemies ot Rev. N.? He replied, I think 
 they are not enemies. 
 
 6. Asked what was the occasion and from whom 
 this ill-fame started? He replied, they saw Rev. N. 
 drunk in a saloon and we all knew he did not say 
 mass on Sunday. 
 
 7. Asked how long this report is around? He 
 replied, this last is about six weeks old, but other 
 things happened before. 
 
 After the examination, the actuary will read his 
 
DECREE OF ILL-FAME. 337 
 
 deposition to the witness, so that he can add or cut 
 out or change parts if he wishes. Then the witness 
 will sig'n the deposition and wmU be instructed to 
 keep secret the whole matter. Then the following is 
 inserted in the acts: 
 
 "Which deposition being made and accepted, if 
 and as much as allowed by law, at the order of the 
 V. Rev. Vicar General I read his deposition to the 
 aforesaid witness, which, not wMshing to change, he 
 was ordered to sign and did sign, and he was in- 
 structed to keep silence on the matter of the exami- 
 nation . These things were done at — the — day of — 
 A. D. — . N. Vicar General. 
 
 I, John N. Witness. N. N. Actuary." 
 
 374. In the same way the witness James N. is to 
 be examined, and if the testimony of both agrees, or 
 if after further examination the vicar general or 
 judge finds that ill-fame exists, he will declare it in 
 these or similar words: "We judge that ill-fame 
 exists regarding Rev. N. and we wish to further 
 proceed against him according to law." The actuary 
 will record it: 
 
 "Considering the depositions of the aforesaid wit- 
 nesses the V. Rev. Vicar general (judge) pronounced 
 that ill-fame is shown and he decreed to further pro- 
 ceed according to law against the said Rev. N. as 
 defamed. These things were done at — this — &c. 
 I, N. Vicar General. I, N. Actuary." 
 
 375. If the ill-fame is not shown or if it appears to 
 
 have been started by enemies or malevolent persons, 
 
 the judge will so pronounce and add that no further 
 
 proceedings will be taken. After taking testimony 
 
 some decision must be given. The actuarv \\\l\ make 
 
 the record: 
 44 
 
338 LEGAL FORMULARY. 
 
 "Considering" the depositions of the witnesses, the 
 V. Rev. Vicar g-eneral (judg-e) recog'nizin^ that the 
 evil reports had their orig-in from enemies (or fac- 
 tionaries or garrulous persons or that the ill-fame is 
 not proved) and that Rev. N. N. is riot defamed be- 
 fore just and prudent men, pronounced that ill-fame 
 is not shown and therefore on that account no fur- 
 ther proceeding's will be had. These things were 
 
 done at &c. 
 
 N. N. Judge. 
 N. N. Actuary." 
 
 376. After the declaration of ill-fame the vicar 
 general (judge) will proceed as mentioned above in 
 n. 374. The acts may be written thus: 
 
 "Considering" that ill-fame exists ag*ainst Rev. N. 
 N. and considering' also the charges and complaints 
 made by responsible persons (omit this latter if com- 
 plaints are not introduced into process), the V. Rev. 
 Vicar general determined and by this decree orders 
 further proceedings to be had, by investigating the 
 accused through the examination of witnesses and 
 doing other thing-s prescribed by law. In conse- 
 quence he ordered cited the following witnesses &c. 
 These things were done at — this — day of — A. D. — . 
 
 N. N. Vicar General. 
 N. Actuary." 
 
 377. The citations having- been issued and served 
 as stated in nos. 356-357 above, and the records be- 
 ing- made of the same, on the appointed day the wit- 
 nesses are examined and the acts may read: 
 
 "In consequence of citation, the witness Andrew 
 N. appeared on the — day of — a. d. — and being 
 duly sworn deposed and said: 
 To g-eneral questions: 
 
 1. Asked his name? He said, Andrew N. 
 
 2. Asked his ag-e? He replied, 42 years. 
 
EXAMINATION OF WITNESSES. 339 
 
 3. Asked where he lives and for how long-? He 
 replied, in X for 20 j^ears. 
 
 4. Asked his occupation? He replied, post-master. 
 
 5. Asked whether married? He replied, yes, and 
 have family of three children. 
 
 6. Asked what parish he belong-s to? He replied, 
 St. Ann's. 
 
 (These and similar g-eneral questions should be 
 asked of each witness and answers recorded in the 
 
 acts.) 
 
 To special questions: 
 
 (Beg-innino- with article 1^ "that Rev. N. N. 
 drinks to excess," as charg'ed in ex officio complaint 
 by vicar gfeneral now under investig^ation, mentioned 
 in n. 342 above. But this article should not be read 
 to the witness, nor should any Icadiiig' question be 
 put under pain of nullity of the deposition. Hence 
 questions must only be put which g-radualh^ lead to 
 the articles to be proved.) 
 
 7. Asked you say you live in X, what church do 
 you attend? He replied, St. Ann's. 
 
 8. Asked who is the rector of St. Ann's? He re- 
 plied, N. N. 
 
 9. Asked does Rev. N. N. sa}^ mass every day? 
 He replied, I think not. 
 
 10. Asked why he thinks Rev. N. N. does not say 
 mass every day? He replied, because he sometimes 
 omits it on Sundays when he should say mass. 
 
 11. Asked on what Sundays did Rev. N. N. 
 neg^lect mass? He replied, on June 5 and on June 12 
 last. 
 
 12. Asked was there no mass said in St. Ann's 
 on those Sundays? He replied, no. 
 
 13. Asked why Rev. N. N. did not sa}' mass? He 
 replied, because he was drunk. 
 
 14. Asked how he knew Rev. N. was then 
 drunk? He replied, I saw him often in saloons, and 
 saw him drunk on the streets before, and when Luke 
 
340 LEGAL FORMULARY. 
 
 S. inquired at the rc-ctory the first Sunday, he over- 
 heard Rev. N. cursinor and calling- for liquor. 
 
 15. Asked did he himself see Rev. N. on either 
 Sunday? He replied, no. 
 
 16. Asked when did he himself see Rev. N. in 
 saloons? He replied, often, but especially Saturday 
 before Sunday, June 5. 
 
 17. Asked what was condition of the Rev. N. at 
 that time? He replied, he was so drunk he had to 
 be helped home. 
 
 18. Asked v^ho helped Rev. N. home? He replied, 
 one man was Matthew Q. the butcher. 
 
 19. Asked how he knew Luke N. heard Rev. N. 
 cursing- and calling- for liquor on Sunday, June 5? 
 He replied Luke S. told me so when he returned 
 from the rectory. 
 
 20. Asked does Rev. N. attend to other duties, as 
 sick calls? He replied. Rev. N. could not or did not 
 g-ive last sacraments to Y. Z. who died without 
 them. 
 
 21. Asked how he knows this? He replied, I went 
 to the rectory for him myself, and the servant would 
 not let me see him. But I heard him talking- as if 
 insane and cursing- and calling- for drink. 
 
 22. Asked did you hear Rev. N. curse when sober? 
 He replied, yes, especially once when he g-ot very 
 ang-ry and struck N. N. 
 
 23. Asked when this took place? He replied, 
 about three months ag-o. 
 
 24. Asked, did Rev. N. strike anyone lately? He 
 replied, it is said publicly that he struck and injured 
 G. H., but I did not see the striking-. I saw G. H. 
 afterwards and he told me so. 
 
 25. Asked where he saw G. H. who was struck? 
 He replied, at his home, where he is still laid up on 
 account of the blow. 
 
 26. Asked does he know who saw the encounter? 
 He replied, I heard Charles T. and Thomas S. were 
 
EXAMINATION OF WITNESSES. 341 
 
 at a short distance and ran up and stopped the fuss, 
 and carried G. H. home. 
 
 27. Asked, did he himself ever have any trouble 
 with Rev. N? He replied, I never had any trouble 
 with him; but I do not fancy his conduct, and really 
 wish he w^ere out of the parish. 
 
 28. Asked why he wishes Rev. N. out of the 
 parish? He replied, because of the scandal and the 
 bad example for my children. 
 
 29. Asked, does he contribute to the support of 
 the St. Ann's church? He replied, yes. 
 
 30. Asked how and what amount? He replied by 
 pew rent and collections, about S25 a year. 
 
 31. Asked does he g'ive to the Christmas collection 
 for the pastor? He replied, yes. 
 
 32. Asked whether he belong-s to any part}^ of men 
 who have taken action to have Rev. N. removed from 
 his parish? He replied, no, but several asked me to 
 write to the bishop on the matter. 
 
 33. Asked, did he do so? He replied, I did not. 
 
 34. Asked why he did not write? He replied, I 
 desired to keep out of this trouble. 
 
 35. Asked you said you saw G. H. who was 
 struck by Rev. N.; did G. H. tell you why he was 
 struck? He replied, because he upbraided Rev. N. 
 with saying" mass after breaking" his fast. 
 
 36. Asked do you know that Rev. N. did so? He 
 replied, all I know is that Jacob S. and Frank Z. 
 told me he did so. 
 
 These questions being asked and answered, and 
 accepted, if and in as much as allowed legally, at 
 the order of the V. Rev. vicar general N. N., I 
 read his deposition to the witness, and when he was 
 asked whether he w^ished to change it by adding to 
 or deducting from it he replied he did not. There- 
 upon he was ordered to sign it, and to observe 
 
342 LEGAL FORMULARY. 
 
 secrecy. These thino-s were done at — this — day 
 of — A. D. — . 
 
 Sig'ned, Andrew N. Witness. 
 
 N. N. Vigar General. 
 N. N. Actuary." 
 
 378. It will be seen from the above examination 
 that all the four points of the charg'es made by com- 
 mon rumor as laid down in n. 342 in the vicar gfen- 
 eral's ex officio investig^ation have been specifically 
 covered. It is also possible from the testimony of 
 this witness to show that he has no enmity, but is 
 competent. An opening is also made for the testi- 
 mony of other witnesses whose names this witness 
 g'ave on certain points. A careful judg-e will have 
 the counts of the indictment before him when ques- 
 tioning* witnesses, so as not to overlook important 
 matters, and not to allow the testimony to remain 
 incomplete. Thus from question 36 he will remem- 
 ber to cite the persons therein mentioned, and will 
 thus g'ather another charg^e. The fiscal procurator 
 will then introduce also this new charg^e, as is done 
 in n. 346, when he ex officio files his complaint, if 
 such judicial criminal process becomes necessary. 
 After taking" testimony leg"ally as above for the sum- 
 mary investig-ation, the advantage for subsequent 
 acts is apparent. 
 
 379. In a similar manner the other witnesses are 
 examined, each separately. If any of the witnesses 
 states something" favorable to the accused, it should 
 be followed up and investig^ated. All the testimony 
 should then be carefully compared and weig'hed. In 
 case a witness cannot come to the curia on account of 
 illness, as in the case of the man struck by Rev. N., 
 
EXAMINATION OF WITNESSES. 343 
 
 then the judg-e and the notary may go to take his 
 testimony at his house. In the case supposed in n. 
 377, this witness, judg-ing- from answer 35 of Andrew 
 N., mig-ht g-ive valuable testimon}^ regfardino- Rev. 
 N. saying" mass after breaking- his fast. The acts 
 will then read: 
 
 "Witness N. N. This witness being- confined to 
 his house by injuries could not come to the tribunal; 
 therefore the V. Rev. Vicar g-eneral, with me accom- 
 panying- him went to him. The witness being- duly 
 sworn at — on the — day.of — A. D. — , deposed and 
 said, &c." 
 
 380. When an examination is interrupted for any 
 cause, the acts may read thus: 
 
 "Because of the lateness of the hour (or other rea- 
 son) the V. Rev. Vicar g-eneral could not complete 
 the examination of the aforesaid witness and decreed 
 to interrupt it temporarily, with the intention how- 
 ever, of resuming- and completing- it. The witness, 
 however, having- heard his deposition read and ac- 
 cepted, St et i)i quantum, was ordered to sig-n it. 
 These thing's were done &c. 
 
 Sig-ned, N. Witness. 
 
 N. Judg-e. 
 N. Actuary." 
 
 Later when the examination is resumed the acts 
 will read: 
 
 "The V. Rev. Vicar g-eneral wishing- to continue 
 the examination of the same witness, N. N., ordered 
 him recalled and the oath being- ag-ain administered 
 and taken bv him at — on the — dav of — A. D. — , 
 he further deposed as follows:" 
 
 381. Sometimes it becomes necessary to introduce 
 documents as proof. If these are official, there is 
 
344 IvEGAL FORMULARY. 
 
 little trouble to show authenticity. If they are pri- 
 vate letters, it may be necessary to prove the hand- 
 writing-. This may be done by witnesses who know 
 the writing-. Below is a short form of examination: 
 
 "Witness is cited, sworn and asked gfeneral ques- 
 tions as usual. Then he is asked: 
 
 1. Asked do you know E).? He replied, I do. 
 
 2. Asked have you corresponded with him? He 
 replied, formerly I did. 
 
 3. Asked would you know his handwriting-? He 
 replied, I would. 
 
 4. Asked would he be able to select his handwrit- 
 ing- from any others? He replied, yes, very easily. 
 
 Then the V. Rev. Vicar g-eneral offered several 
 papers to the witness, among- them being- that 
 alleg-ed to be E.'s. The witness without hesita- 
 tion chose a paper and said "This is the handwriting- 
 of E. and in fact it was the writing- alleg^ed to be 
 that of E." 
 
 The deposition should be closed in the usual way. 
 Then a second witness should depose to the same 
 effect. 
 
CHAPTKR VIII. 
 
 FORMS FOR CITING THE ACCUSED. 
 
 382. When the informative process is completed, 
 the vicar o-eneral or jud,i>-e should carefully vveig"h 
 the testimony. If he does not find at least half-full 
 proof of guilt all further , proceeding's must be 
 stopped. But if there is certainly at least half-full 
 proof of guilt, he may proceed to cite the accused. 
 The instruction, Art. 21, says that all proofs should 
 be collected before the accused is cited. Hence we 
 say the judg*e may, not must, cite the accused if he 
 has at least undoubted half-full proof of guilt. But 
 a prudent judge will not issue a citation unless he 
 has prima facie evidence sufficient to convict, i. e., 
 such full proof that if not offset by the accused will 
 convict him. It should be remembered that to-day 
 when an accused cleric is criminally cited and tried, 
 he must be absolutely convicted or declared innocent. 
 He cannot be dismissed with the sentence ''ex hac- 
 tenus deduct is'' not g*uilt3\ Such a sentence is now 
 illegal. {Cf. S. C EE. d- RE. n Sept. i8iS; ii 
 Sept. 1804.) Again, when once tried, he cannotagain 
 be tried on the same charges. Hence we say a pru- 
 dent judge acting ex officio under the procedure, will 
 not cite an accused person unless he has prima facie 
 full proof of guilt. 
 
 383. The decision of the vicar g*eneral whether or 
 
 i5 345 
 
346 IvEGAIv FORMULARY. 
 
 not to cite the accused may be entered in the acts as 
 follows: 
 
 "Since from the proceeding's had up to the present 
 there appears at least half-full proof of the crimes 
 charg^ed ag^ainst Rev. N. N., namely, (state charg-es) 
 and since sufficient appears from the informative 
 process to authorize the citing* and examining* of the 
 accused, the V. Rev. Vicar g"eneral (judg'e) decreed 
 to cite and examine the said Rev. N. N. and to proceed 
 further according* to law. Done at — this — day of 
 
 — A. D. — . N. N. Vicar General (Judg-e.) 
 
 N. N. Actuary." 
 
 But if less than half-full proof was found then a 
 decree is issued not to proceed further: 
 
 "Since from the informative process now finished 
 not even half-full proof has arisen concerning- the 
 alleg"ed crime of Rev. N. N., namely (state charg^e;) 
 and since by this very fact that is wanting* which 
 the law demands as necessary before citation may be 
 issued to the said accused; therefore the V. Rev. 
 Vicar g^eneral (judg'e) has decreed that no further 
 proceeding's shall be taken ag-ainst him. Done at 
 
 — this — day of — A. D. — . 
 
 N. N. Vicar General (Judg'e.) 
 N. N. Actuary." 
 
 384. The accused must be cited in writing' and in 
 the citation, unless prudence demands the contrary, 
 the accusations must be made known. In case it is 
 not expedient to make known the accusations, it is 
 sufficient to state that the accused is cited in order 
 that he may defend himself in a cause concerningf 
 which an investig'ation is being' made ag^ainst him. 
 A copy of the charg'es may be enclosed and merely a 
 reference to the copy is sufficient in the citation. 
 
CITATION OF THE ACCUSED. 347 
 
 {Cf. ''Cum viag'no'pere,'^ Art. 21-2J.) The accused 
 should be cited personal!}^ b}^ court messengers, or 
 where there are none, by some other person or by 
 reg"istered letter. {Cf. Art. i^f..) When the accused 
 cannot be reached, either because he hides himself or 
 has fled or his address is unknown, then a citation 
 may be left at his usual place of residence or he may 
 be cited by edict affixed in some public place, as on 
 the doors of the parish church. 
 
 385. The first citation, according' to Art. 24 of 
 "Cum mag-nopere," should be a simple one without 
 threat. Should the accused neg"lect the first sum- 
 mons, then a second should be griven in which a per- 
 emptory term is assigned for his appearance and 
 notice is gfiven that if he fails to appear within that 
 time he will be adjudg^ed contumacious. Should he 
 transgress this second and peremptory citation, 
 WMthout showing" a leg'itimate impediment, he wmII be 
 held de facto contumacious. Under the "Cum mag-- 
 nopere" three citations are no long'er necessary. 
 Nor does it appear that in extraordinar}^ circum- 
 stances the rig-ht to combine the two citations into 
 one peremptory citation is taken aw^ay, provided in 
 the one peremptory citation the required warning* is 
 g^iven concerning- contumac}'. Because nothing- is 
 enacted to the contrary, it seems that the "cong-ru- 
 ous time" to be g-iven in a peremptory citation is 
 twenty days. The g-eneral practice allow^s ten days 
 for each of three citations, or thirty da^'s in all. By 
 limiting- the number of citations to two, the "Cum 
 mag-nopere" may also be said to have shortened the 
 time to twenty days. 
 
 386. The citation should clearly express the name 
 
348 LEGAIv FORMULARY. 
 
 of the person cited, the cause as stated above, the 
 name of the judg-e who cites, the place where and 
 the time within which the accused is to appear. The 
 citation should also state whether it is the first or 
 the second and peremptory summons. Following* is 
 a form to be used under the "Cum mag'nopere" 
 process: 
 
 "We, N. N,, vicar g"eneral of the Most Reverend 
 Bishop N., since the report has come to us concern- 
 ing" certain offenses alleged to have been committed 
 by Rev. N. N., a copy of which as chargfed is sent 
 herewith, and since the evidence concerning* these 
 offenses, as in the acts of the informative process, is 
 sufficient to compel us to pronounce, as we did pro- 
 nounce, that public defamation exists ag^ainst the 
 said Rev. N. N. and that this defamation has its 
 orig"in not in enemies and malevolent but in serious 
 minded persons; therefore in order to satisfy the re- 
 quirements of our office we have decreed to cite for 
 examination the aforesaid Rev. N. N., as by these 
 presents we do cite him, to personally appear before 
 us in the episcopal curia within the space of (ten 
 days from the date of this citation, which is the first. 
 Given &c) twenty days from the date of this citation, 
 of which we assig^n ten days for the first and ten 
 days for the second and peremptory term, this one 
 warning- being- sufficient for the two canonical warn- 
 ing-s required by "Cum magfnopere." Therefore 
 should the aforesaid Rev. N. N. fail to appear 
 within the said peremptory term, unless legitimately 
 impeded, let him know that we shall proceed by law 
 ag-ainst him as contumacious, without any other or 
 further warning-. Given in the episcopal chancery 
 at — the — day of — A. D. — . 
 
 N. Vicar General. 
 N. Actuary." 
 
 387. Following- is a form of citation by edict which 
 
CITATION OF the: ACCUSED. 349 
 
 can be affixed to the door of the diocesan chancery, 
 parish church, or other public place, especialh' in 
 quasi-notorious cases when the accused cannot be 
 reached or has fled from the diocese: 
 
 "We, N. N. vicar general of the Most Reverend 
 Bishop N. do by these presents command, cite and 
 expressly order that, within the peremptory term of 
 twenty days from the date of these presents, the 
 Rev. N. N. who is said to be g-uiltv of certain of- 
 fenses, namely, (express the char^jfes if prudence 
 allows it; otherwise say, which will be made known 
 to him) shall appear in the chancery office (or usual 
 place for court) to inform the curia, to see the oaths 
 of witnesses, to make publication of the acts and 
 lastly to hear sentence, under pain of having" con- 
 fessed the crime and other punishment by law estab- 
 lished. Given in &c. Dated &c. 
 
 N. Judg-e. 
 N. Actuary." 
 
 388. When it is necessary to appl}^ to a neig-hbor- 
 ing" bishop to serve a citation in his diocese, the acts 
 may read: 
 
 "Thereafter, because the V. Rev. Vicar g-eneral 
 knew that the aforesaid Rev. N. N. was staying" in 
 the diocese of N — , in order that the citation niig'ht 
 surelv reach him he ordered that remissorv letters 
 be sent to V. Rev. N. vicar g-eneral and ordinary 
 judg"e in that diocese. Which letters were expedited 
 and are of the following- tenor: V. Rev. Sir — Since 
 it is known that 3^ou are ordinary judge in the dio- 
 cese of N — and since w^e are informed that Rev. N. 
 N., a priest subject to the jurisdiction of our Most 
 Rev. Bishop, is staying" in your diocese, but whom it 
 is my dut}" to cite for a criminal cause now pending 
 ag"ainst him in this curia; it therefore was judged 
 prudent to ask you to have the enclosed citation 
 
350 LEGAL FORMULARY. 
 
 served throug"h one of your officials on the aforesaid 
 Rev. N. N. personall}^ or in the place of his usual 
 residence and to have a -judicial report of said service 
 transmitted to me (enclose citatioi,i.) Meanw^hile 
 offering' my services I pray God to have you in his 
 keeping-. Given &c. N. Vicar General. 
 
 N. Actuary." 
 
 The actuary of the diocese to which such requisi- 
 tion is sent will formulate his report thus: 
 
 "In the name of the Lord, amen. Since the V. 
 Rev. N. N. vicar g-eneral of our Most Rev. Bishop, 
 received from V. Rev. N. N., vicar g-eneral and ordi- 
 nary judge in the diocese of N — , certain remissorial 
 letters of the following* tenor; (insert letters as 
 above) therefore the aforesaid V. Rev. Vicar g'en- 
 eral decreed to execute them according- to law. 
 Wherefore he consigfned the aforesaid citation to 
 N. N. our official messeng*er, and ordered him to 
 serve it personally, or in his usual place of residence, 
 on Rev. N. N. The said messeng*er having* returned 
 to me, the actuary, made report that he had served 
 and left a copy of the said citation on the said Rev. 
 N.N. Done at — this — day of — A. D. — . I, N. N. 
 messenger affirm as above. I, N. Vicar General. 
 
 I, N. Actuary." 
 
 This process is then sealed and forwarded to the 
 
 vicar g-eneral who made the requisition. He will 
 
 then have the actuary make an entry in the acts as 
 
 follows: 
 
 "The aforesaid remissorial letters were executed 
 concerning- which the V. Rev. Vicar g-eneral received 
 a judicial report as follows:" (Insert the above 
 report.) 
 
 However, since a verbal citation is not considered 
 an act of jurisdiction it may be served in the diocese 
 of another bishop by reg-istered mail or even by mes- 
 seng-er, if good policy allows it. 
 
CHAPTER IX. 
 
 CONTUMACY OF THE ACCUSED. 
 
 389. When the citation has been served on the ac- 
 cused, it may happen that for g-ood cause he cannot 
 appear within the appointed time. To excuse his ab- 
 sence, but not to plead for him, he may send a procu- 
 rator. {,Cf. Mag-aliiis^ Praxis Crim. C. /j, ;/. j6). 
 It is far safer to send a procurator than a mere letter 
 which may be ig-nored. The accused may send word 
 before the expiration of the time for appearance and 
 ask an adjournment. The judgfe will consider the 
 reasons g^iven, and if he approves them, will ^rant the 
 request in writing* and order the actuary to make 
 proper entry. If he disapproves them and orders 
 proceeding's continued without adjournment, the 
 actuary will make proper entr}" in the acts: 
 
 "Thereafter, the said Rev. N. N. throug^h his pro- 
 curator asked from the V. Rev. N., the judg-e, a 
 prorog-ation of the peremptory term set for his ap- 
 pearance because of certain impediments which ren- 
 dered his coming- impossible. The excuse seemed 
 reasonable to the said V. Rev. Judg^e, and he there- 
 upon adjourned the peremptory term for appearance 
 to — (g-iving- the exact date.)" Or, "The excuse 
 offered did not seem reasonable to the V. Rev. Judge, 
 and therefore he decreed that, without paying* at- 
 tention to it, further proceedings should be had. 
 Done at — this — day of — A. D. — . 
 
 N. N. Judg-e. 
 N. Actuary." 
 
 351 
 
352 LEGAL FORMULARY. 
 
 390. It may happen that the peremptory term has 
 elapsed without the accused appeariug-. If such is 
 the case, on the first day after the expired peremp- 
 tory terfu, the judg*e will call in open. court the name 
 of the accused, and if no one appears, the fiscal pro- 
 curator will ex-officio move that the accused be de- 
 clared in contumacy. Under the "Cum ma^nopere" 
 only one accusation of contumacy is necessary, not 
 three as is customary in some places. But this must 
 be made only after the peremptory term has ex- 
 pired. If a procurator answers for the accused and 
 offers reasons for his non-appearance, the judg-e will 
 consider the reasons, and if he deems them sufficient, ' 
 will then make an order which the actuary will 
 enter: 
 
 "But since the said Rev. N. N. did not appear be- 
 fore the expiration of the peremptory term, in order 
 that he mig"ht escape punishment for contumacy he 
 sent a procurator to g-ive the jud^e reasons for his 
 absence. Which reasons the judg^e considered leg*it- 
 imate, and consequently declaring- the said Rev. N. 
 N. not to be contumacious, he assigfned another per- 
 emptory term for his appearance, namely — (gfive 
 exact date.) Done &c. 
 
 N. Judg-e. 
 N. Actuary." 
 
 391. But if no one appears and no excuse is g^iven 
 or if the excuse offered is frivolous, the fiscal pro- 
 curator will say: 
 
 "I accuse Rev. N. N. of contumacy, inasmuch as 
 being- peremptorily cited, and reported cited and not 
 appearing-, he is contumacious and I move he be so 
 
 declared." 
 
 The judge will then make his order or declara- 
 
DECREE OF CONTUMACY. 353 
 
 tioti and the actuary will enter it in the acts. If the 
 excuse is disallowed the entry will be: 
 
 "But since the said &c (as in 390.) Which reasons 
 the judg-e did not consider leg-itimate, and conse- 
 quently, on motion of the fiscal procurator, he de- 
 clared the said Rev. N. N. to be in contumacy and 
 ordered proceedings a^^^ainst him according to law; 
 and further ordered that the trial proceed in his ab- 
 sence and appointed N. N. as advocate to represent 
 
 him and set as the term ad prodiicoidiim oiniiia. 
 
 Done &c. N. Judg-e. 
 
 N. Actuary." 
 
 Or the actuary will enter the following- according- 
 to circumstances: 
 
 "On the — day of — A. D. — , (the day after per- 
 emptory term) when Rev. N. N. was called in court, 
 and neither himself nor another for him offered an 
 answer, the fiscal procurator ex officio moved that 
 the said Rev. N. N. who was peremptorily cited, re- 
 ported cited and did not appear, be declared contu- 
 macious. Consequently the V. Rev. N., vicar gen- 
 eral, declared that the said Rev. N. N. had fallen^in- 
 to contumacy and decreed to proceed against him as 
 contumacious, and further decreed to^continue the 
 trial in the absence of the accused. Wherefore the 
 V. Rev. Judg-e ex officio appointed N. N. as the ad- 
 vocate to represent and defend the said contumacious 
 Rev. N. N. and ordered the trial to proceed according- 
 
 to law and appointed as the term ad producen- 
 
 diun ojiinia. Done at — this — ■ day of — A. D. — . 
 
 N. Judg-e. 
 N. "Actuary." 
 
 392. It must be noted that after the accused is de- 
 clared contumacious, there are really two proceeding-s 
 instead of one. The original trial is continued as in 
 
 the "Cum magnopere," and proofs are offered of the 
 46 
 
354 LEGAL FORMULARY. 
 
 ^uilt of the accused; for although contumacy consti- 
 tutes a very strong- presurn^tion of the guilt of the 
 accused, still it is not proof. The trial on the 
 charges will then proceed in the absence of the 
 accused and notices regarding it thereafter will be 
 given to the advocate appointed for the accused in- 
 stead of to the accused himself. The contumacy of 
 the accused may be mentioned in the definitive sen- 
 tence on the charges, to hear which definitive sen- 
 tence the contumacious accused should for safety be 
 cited, as well as his advocate. 
 
 But there arises through contumacy a second pro- 
 ceeding against the accused which should be kept 
 distinct from the trial on the charges but which may 
 be inserted as part of the acts in the original case. 
 After the judge has declared the accused in contu- 
 macy he should issue to him a monitory citation, 
 summoning him to show cause why he should not be 
 punished for contempt. This citation is essential 
 and necessary for validity before sentencing for con- 
 tempt or contumacy. {Cf. Zitelli, Ap. /. £c. pg-, 505/ 
 Svialzgruber I. 2, t, /^, n. ^^\ and I. 2, /. (5, n. 55/ 
 Cone. Trid. sess. 25, c. j de re/; see also n. jj^ 
 above.) 
 
 The council of Trent requires that at least two 
 monitions should be given before censure for contu- 
 macy is passed, but these two monitions may be com- 
 bined into one peremptory citation, if mention is 
 made of such fact in the citation. The forms given 
 in n. 360-363 above for the punishment of a contu- 
 macious witness may be used imitatis mutandis for 
 the canonical monition, citation and sentence of a 
 contumacious accused person. But in the case of 
 
WARNING BEFORE CENSURES. 355 
 
 both it should be remembered that lesser punishment 
 must first be inflicted, and only as a last resource 
 excommunication. In fact Pierantonelli, Praxis 
 -pg-. 1J4., and Droste-Messmer, Procedure -pg". ijj, 
 hold that excommunication can be inflicted only when 
 no other punishment can be executed on the contu- 
 macious person. This applies a fortiori when only 
 a witness is contumacious. If after fallinor into con- 
 tumacy, the accused repents and appears, he must 
 first purg^e himself of contempt of court and be de- 
 clared free from it before he may take part in the 
 trial on the charges. If the trial on the charges is 
 concluded and definitive sentence passed while he is 
 in contumac}^ he cannot appeal against such sentence. 
 However, he may always show that he was not really 
 contumacious. If he can g-ive such proof, he may 
 then have a new trial. Hence it is advisable for a 
 judg*e to depend on proof, not on contumacy, for in- 
 flicting- severe sentences. 
 
CHAPTER X. 
 
 CHALLENGE OF THE JUDGE. ARBITERS. 
 
 393. When the accused appears in court within 
 the peremptory time, before he pleads to the charg-es, 
 if he has any exceptions to make he should at once 
 propose them. Especially must this be done if he 
 excepts ag'ainst the judg'e or challeng-es him for cause. 
 This exception must be made first, and within twenty 
 days after the citation. {Cf, L. offerattir /, c. de lit. 
 coni.) Later he may make others, such as res 
 judicata, or prescription. Hence as soon as served 
 with the citation he should at once en^ag"e a com- 
 petent advocate, whose instructions he should follow 
 exactly. This advocate will send word of his being* 
 retained to the bishop of the accused, and formally 
 ask approval, unless from his well-known character 
 or previous approval he is supposed approved. In 
 any event he must inform the curia that he acts as 
 "defensor." He may accompany the accused and 
 advise him what to do or avoid doing" in answer to 
 the citation. The accused undoubtedly at all times 
 may be accompanied by his advocate, thoug-h he can- 
 not be represented by a procurator. However, ac- 
 cording- to Art. 30 of "Cum mag^nopere," and n. 315 
 of Third Plen. Coun. Baltimore, the accused himself 
 may also be represented by his advocate in the sum- 
 ming- up of the process, at which time and during* 
 
 356 
 
RECUSATION OF JUDGE. 357 
 
 the sentence the accused may be absent if he wishes. 
 At other times he must be present. 
 
 394. Following- is a form for presenting a recusa- 
 tion of the judge which should be in writing and 
 state the reasons. {Cf. L. i6, c. dc jud.) 
 
 Diocese of N — 
 
 vs. 
 Rev. N. N. 
 
 "Comes now on the — day of — A. D. — , before 
 the V. Rev. Vicar general, the Rev. N. N., the ac- 
 cused in this case, and with all due showing of 
 honor and reverence for the said V, Rev. Vicar gen- 
 eral, says that the person of the said vicar general is 
 by him suspected, because he is an enemy and be- 
 cause the chief complainants and witnesses in this 
 case, namely X. Y. and C. D., are either relatives 
 or intimate friends of the said vicar general. Where- 
 fore for the above and other reasons he, the accused, 
 Rev. N. N. challen«fes and recuses the said vicar 
 general as judge, and asks and wishes and insists 
 that he shall no longer concern himself in the~cause 
 now pending- against the said accused; and he pro- 
 tests the nullity of the proceedings, if notwithstand- 
 ing this present recusation the said V. Rev. Vicar 
 general continues to act. Dated — . I, N.^N. -ex- 
 cept and recuse as above. 
 
 N. Advocate for Defendant. 
 
 395. The actuarywill«enter the recusation in the 
 acts, and the vicar g-eneral will either appoint a 
 judge-delegate for the case with the consent of the 
 accused, or transmit the whole case to the higher 
 tribunal, or make anorder'^that arbiters be chosen to 
 decide on the merits of the recusation. If arbiters 
 are chosen, the judge selects one, the accused the 
 other. These two, if they cannot agree, choose a 
 third, and the decision of the majority is binding. 
 
 » > 
 
358 LEGAL FORMULARY. 
 
 They first examine whether the reasons alleg^ed in 
 the challeng-e are sufficient if true, and then they 
 examine whether the reasons are really true. Fol- 
 lowing" is a form for entry in the acts: . 
 
 "Appearing* personally in the curia before the V. 
 Rev. N. vicar general, with the fiscal procurator. 
 Rev. Q. and myself as actuary present, the accused 
 Rev. N. N. came and offered the following recusa- 
 tion against the said V. Rev. Vicar general, as 
 judge. (Insert words of challenge as above.) 
 
 Consequently the V. Rev. Vicar g-eneral ordered 
 the said recusation placed in the acts which was in- 
 serted as above, and is found in the original among 
 the documents and is marked . He further or- 
 dered that arbiters should be chosen according- to 
 law to determine the merits of the recusation, and 
 for himself selected Rev. M. as one arbiter and 
 ordered that the selection of Rev. O. who was chosen 
 by the accused as a second arbiter, be noted in the 
 acts of the process. Further he ordered an adjourn- 
 ment of this trial on the charges, until the question 
 of the recusation shall have been determined. Done 
 in the curia, this — day of — A. D. — . 
 
 N. Vicar General. 
 N. Actuary." 
 
 396. The arbiters must refuse or file acceptance 
 with the judg^e who will order it entered in the acts. 
 Then the arbiters will meet as soon as possible and 
 with the same actuary, or another, will examine and 
 determine the law and facts on which the challeng'e 
 is based, and will report their decision in writing* to 
 the challeng*ed judg-e who will order their finding" 
 and their acts entered in the acts of the original 
 process. Following" is a form for recording" the acts 
 of the arbiters: 
 
TRIAL BY ARBITERS. 359 
 
 "In the name of the Lord, amen. Since in the 
 cause which is pendino- agfainst Rev. N. N. before 
 the V. Rev. Vicar g^eneral, the said Rev. N. N. re- 
 cused and challeng'ed the said vicar creneral as sus- 
 pected, and since to determine the validity of this 
 recusation, according* to law and the practice of this 
 curia, Rev. M. and Rev. O. were chosen respectively 
 by the parties, and their nomination was made known 
 to them and their acceptance of the office of arbiter 
 was received, as all appears in the acts of the process; 
 therefore the aforesaid Rev. M, and Rev. O. the chosen 
 arbiters, wishing- to fulfill their duty according" to law 
 convened in , and having summoned me the un- 
 dersigned as actuary in this matter, who was al- 
 ready employed in the case by the vicar general as is 
 in the acts, thev called Rev. N. N. who had chal- 
 lenged the V. Rev. Vicar general as suspected, and 
 having administered to him an oath, which he also 
 took, that he recuses the said vicar general, as 
 judge, not from fraud or with the intent of calumny 
 but only for his own defense, he was ordered to show 
 the cause of his challenge, and to produce witnesses 
 and other legitimate proofs, by which the truth and 
 substance of such a charge might be sustained. 
 The said Rev. N. N. thereupon produced a cop}' of 
 the challenge presented to the aforesaid V. Rev. 
 Vicar general and said to the Rev. arbiters that it 
 contained the reasons for his challenge and he filed 
 a list of the witnesses, namel}" (X. and Z. ) to prove 
 his statements, and asked that his proofs be ad- 
 mitted by the Rev. arbiters and that they proceed to 
 examine both the law and the facts in the case. The 
 Rev. arbiters admitted the aforesaid copy of the 
 challenge and documents, si et i)i q2iantum, and or- 
 dered proceedings according to law. The}" ordered 
 me as actuary to receive the said challenge and place 
 it in the acts which I did, and it is found among- the 
 documents marked . Done at — this — dav of — 
 
 A. D. — . 
 
360 LEGAL FORMULARY. 
 
 I, M. Arbiter. I, O. Arbiter. I, N. N. recuse and 
 affirm as above. N. Actuary." 
 
 "Thereafter, the aforesaid arbiters, convening in 
 their accustomed place, examined the cause of the 
 recusation as expressed in the challeng-e produced 
 before them by the said Rev. N. N., and when they 
 noticed that it was founded on a suspicion of enmity 
 which is alleg-ed to exist between the said V. Rev. 
 Vicar g^eneral who was challenged and the said Rev. 
 N. N. who challeng'ed him, and also on close rela- 
 tionship between the accusing- parties and the said 
 V. Rev. Vicar g-eneral, they pronounced that the 
 said cause was legitimate in law; and that therefore 
 investigation should be made to determine whether 
 such enmity and close relationship existed in fact. 
 Consequently the Rev. arbiters decreed to proceed to 
 the examination of witnesses produced by the said 
 Rev. N. N. who challenged. Wherefore X. being 
 called as a witness and being duly sworn was asked 
 &c." (Here is given the examination of the witness 
 on the point in question, according to the form given 
 in n. 373 or 377 above.) 
 
 397. The arbiters must examine witnesses and 
 documents offered by the- challenger. Then it is 
 proper for them to ask the challenged judge whether 
 he has anything he wishes'^to oppose to the allega- 
 tions of the challenger. This should be recorded in 
 the acts: 
 
 "Afterwards the Rev. arbiters, thinking it proper 
 to hear also the V. Rev. Vicar general, the chal- 
 lenged judge, in order that he might oppose, if he so 
 wished, the proofs brought by the Rev. N. who 
 challenged, ordered me, the actuary, to carry to the 
 V. Rev. Judge the acts of the process thus far held 
 before the arbiters, and to give him an opportunity 
 of reading them. Which command I having fulfilled, 
 the said V. Rev. Vicar general, having seen and 
 
JUDGMENT BY ARBITERS. 361 
 
 read the acts, thanked me, and said he had nothinof 
 to oppose to the recusation. (Or) And the said V. 
 Rev. Vicar general later called me and g-ave me a 
 writing- in which are found the points he opposes to 
 the alleg"ations of the challengfer, Rev. N. N., and he 
 ordered me to present it to the Rev. arbiters. 
 Which when I did the aforesaid arbiters ordered me 
 to insert the paper in the acts. This I did marking- 
 it ■ among- the documents. In testimony &c. 
 
 Dated &c. I, N. Actuary." 
 
 398. If the vicar g-eneral wishes the arbiters to 
 examine witnesses for his side, thev will do so and 
 insert the examinations in the acts. They will then 
 consider the proofs and g-ive written judg-ment in 
 about this form: 
 
 "In the name of the Lord, amen. We, M. and O. 
 chosen "arbitri juris" and respectivel}^ selected by 
 the parties to decide in the matter of the challeng-e 
 and recusation as judg-e, made by Rev. N. N., an ac- 
 cused person, ag-ainst the person of the V. Rev. Vicar 
 g'eneral; having- examined witnesses and the proofs 
 produced on each side, and having- heard the parties 
 informing- on each side, and having- fully discussed 
 the merits of the cause; having- only God, the source 
 of justice, before our eyes, we say that in no way, 
 neither fully, nor half-full}'' are the reasons of the 
 alleg-ed challeng-e sustained, namely, (here g-ive the 
 reasons advanced by the challeng-er.) Therefore we 
 decide that the aforesaid challeng-e and recusation is 
 of no force, and by it the ordinary jurisdiction of the 
 V. Rev. N., vicar g-eneral and ordinary judg-e, is in 
 no wise impeded from prosecuting- the cause beg-un 
 ag-aiust the aforesaid Rev. N. N. Thus we have 
 pronounced this — day of — A. D. — . 
 I, M. Arbiter. I, O. Arbiter. N. Actuary." 
 
 47 
 
362 LEGAL FORMULARY. 
 
 399. However if the reasons for challeng"iiig" were 
 half-fully proved the decision will be: 
 
 "In the name (&c to the words 'we say'j. We 
 say that the reasons for the challeng^e and recusation 
 are sufficiently proved namely, (g"ive reasons); 
 therefore we decide that the aforesaid challeng-e is 
 sustained as legitimate in law and fact; and we say 
 that the aforesaid V. Rev. Vicar general, the ordi- 
 nary judg-e, should abstain from the prosecution (or 
 beginning") of the cause ag'ainst Rev. N. N., thechal- 
 leng-er; and the. said vicar gfeneral is oblig^ed to refer 
 it to the hio-her court, or to deleg^ate for the said 
 cause another judg-e, free from suspicion, with the 
 consent of the aforesaid challeng^er. Thus we have 
 pronounced this — day of — A. D. — . 
 I, M. Arbiter. I, O. Arbiter. I, N. Actuary." 
 
 The decision and all the acts of the arbiters will 
 be entered in the acts of the process ag^ainst the ac- 
 cused, and thus become part of that process. The 
 vicar general, or judg"e, will then make the order 
 required in the circumstances, which will also be 
 entered in the acts in the usual way. 
 
CHAPTER XL 
 
 HEARING GIVEN THE ACCUSED. LEGAIvIZING 
 
 OFFENSIVE PROCESS. 
 
 400. When the accused comes into court not to 
 propose exceptions, but for a hearing- on the charg-es, 
 the judg-e will direct the fiscal procurator to read 
 the charges to the accused and give him a cop}' if he 
 has not already received one with the citation. If a 
 copy has been given with the citation an immediate 
 hearing may be had; but if the accused first learns 
 the charges on appearing- in obedience to the citation, 
 it is certain that a reasonable dela}' must be accorded 
 him before the hearing. 
 
 The accused is not obliged to make any statement 
 at this time, except he wishes to plead guilty and 
 take his punishment. The accused is not bound to 
 confess his guilt, nor has the judge any right to in- 
 sist on his answ^ering- questions which would convict 
 him. Neither can the judge force the accused to 
 answer any questions at this stage of the process. 
 The practice of extorting a confession is no longer in 
 vogue. The intent of this preliminary hearing is 
 that it is a favor or defense for the accused, and gives 
 him a chance to present exceptions and possibly clear 
 himself. This is evident from Art. 25 of the "Cum 
 mag-nopere," where it says "audiatur," and orders 
 that the statement be examined which he makes in 
 
 363 
 
364 LEGAL FORMULARY. 
 
 his own favor. It is now forbidden to require the 
 oath from the accused. Unless the accused has a 
 conclusive proof that he is innocent, the less he sa3^s 
 at this stag-e of the proceeding-s, the better for him- 
 self. He should allow the fiscal procurator to make 
 his proofs without any assistance. 
 
 401. When the fiscal procurator has read the 
 charg-es, the judg-e asks the accused what he has to 
 say. He usually replies, "I am not g-uilty of the 
 thing's charg^ed." This is really the litis co7itestatio 
 in the criminal case, and thereafter the fiscal procu- 
 rator cannot alter the charg-es. He may chang-e his 
 capitula or specifications because they have not yet 
 been presented to the judg^e. Sometimes the accused 
 explains away the whole case, but this seems rarely 
 possible. At other times by saying* too much he 
 completes the case for the prosecution. With this 
 end in view, the judg-e also asks questions, but 
 the accused is now not oblig-ed to answer them. His 
 mere word will not be proof if in favor of himself, 
 but it will be a confession if it is ag*ainst himself. 
 Therefore he will say nothing", if prudent, except to 
 enter a g-eneral plea of "not g-uilty." 
 
 402. After this first hearing* g-iven to the accused, 
 the fiscal procurator may find it necessary to chang^e 
 his specifications, either by dropping- some, or modi- 
 fying- the lang-uag-e of others. He is entitled to an 
 adjournment for this purpose if he asks it. How- 
 ever, if he is ready to proceed, he may hand his 
 capitula or specifications to the judg-e immediately 
 after the hearing- of the accused is ended. The 
 judg-e will either admit them as offered or modify 
 them according- to the canons. After being- admitted 
 
EXAMINATION OF ACCUSED. 365 
 
 by the judg^e they can no long^er be chang-ed by the 
 fiscal procurator. The specifications are read to the 
 defendant on the day appointed ad dicendiivi contra 
 capitula, and to each of these specifications he is 
 oblig-ed to make a specific reply if the judg-e so orders. 
 But a refusal cannot now be taken for an admission 
 of the specification, for the accused is not under oath. 
 He should make a careful specific answer and may 
 also offer counter specifications. 
 
 403. The entry in the acts of the hearing- g-iven the 
 accused may be as follows: 
 
 "Appearing" personally in the curia before the 
 V. Rev. Vicar g-eneral, with the fiscal procurator, 
 Rev. Q., and myself as actuary present on the — 
 day of — A. D. — the accused Rev. N. N. was ad- 
 monished to tell the truth and was asked: 
 
 Q. What is his name? He replied, N. N. 
 
 O. Where he lives? A. In X—. 
 
 Q. What is his position? A. Rector of St. Ann's. 
 
 Q. Was he ever before under charg-es in the curia? 
 A. No. 
 
 Q. What does he say to the present charg-es? 
 A. Not guilty. 
 
 Q. Has he anything- more to say? A. Not at 
 present. 
 
 Q. Did he not receive a canonical precept on cer- 
 tain points? A. Yes. 
 
 Q. Did he keep the precept g-iven? A. He does 
 not recollect ever breaking- it. 
 
 Q. Does he say mass on Sundays? A. He prefers 
 to answer no more questions at present. (Or other 
 questions as occasion requires may be asked.) 
 
 Which being- had and received, si et in quantum, 
 on the order of the V. Rev. Vicar g-eneral the afore- 
 said questions and answers were read by me to the 
 said Rev. N. N., who, having- been asked whether 
 
366 LEGAL FORMUIvARY. 
 
 he wished to make any chang'es therein and replying* 
 he did not, was ordered to subscribe the said exami- 
 nation. Done this — day of — A. D. — . I, N. N. 
 testify as above. N. Vicar General. 
 
 N. Actuary." 
 
 "The hearing- of the accused being- finished as 
 stated above the V. Rev. Vicar general assig-ned to 
 the fiscal procurator, as a term for offering- the spec- 
 ifications, next (Thursday) the — day of — ; and he 
 cited the accused to appear on that same day at 9 
 a. m. to hear the specifications of the procurator and 
 to reply to them. Done this &c. 
 
 N. Vicar General. 
 N. Actuary." 
 
 (Or) "The hearing of the accused being- finished 
 as above, and the fiscal procurator being- read}^ with 
 his specifications, he presented them to the V. Rev. 
 Judge, who ordered them read to the accused. The 
 specifications are as follows: The fiscal procurator 
 specifies and on denial intends to prove, 1^ that a 
 regular canonical precept was g-iven the accused on 
 May 31, 1898, ordering him to practice sobriety and 
 to cease frequenting- places where liquor is sold; 
 2° that the accused since the precept has frequented 
 such places; 3° that since the precept the accused 
 has been drunk on the streets of X; 4° that on the — 
 day of last — when in a drunken condition several men 
 assisted in taking him to his home. (Other specifica- 
 tions may be drawn, based on the precept in n. 332 
 and the libellus n. 346, for which the fiscal has proof 
 on hand.) The accused being asked successively re- 
 garding- each specification admitted the first, denied 
 the second, third, fourth. (Record exactly what the 
 accused answered..) 
 
 "Which replies of the accused being g-iven and re- 
 corded were read to the accused and he not wishing* 
 
lyEGAIvI^ING PREVIOUS TESTIMONY. 367 
 
 to chanofe them in any way was ordered to subscribe 
 them. Done &c. I, N. reply as above. 
 
 N. Vicar General. 
 N. Actuary." 
 
 404. If the procurator demands an adjournment to 
 collect his proofs it must be g"iven and recorded in 
 the acts. If not, then continue the acts: 
 
 "Thereafter, the fiscal procurator informed the 
 judge that all the documents and testimony of wit- 
 nesses which for the present he would present, were 
 now before the court. Thereupon the V. Rev. Vicar 
 o-eneral asked the accused whether he would accept 
 and hold the witnesses as being- rigfhtly and lawfully 
 examined, saving- the exceptions and repetitions 
 which may occur. The accused declared that, sav- 
 ing- the exceptions and repetitions which may occur 
 he will and does hold and accept the witnesses as 
 properly and lawfully examined and accepted. He 
 was then ordered to subscribe such declaration in 
 the acts. Done &c. I, N. declare and accept as 
 above. N. Vicar General. N. Actuary." 
 
 405. The publication of the testimony previousl}^ 
 taken ag^ainst the accused and of the other documents 
 offered by the fiscal procurator to sustain his 
 charg-es is essential. How it must be done is dis- 
 puted. The safest way is to have the actuary read 
 it to the accused in court. {Cf. Ill C. Bait. n. J14.) 
 This will serve not only as a publication and leg-ali- 
 zation of the process, but also as a verbal confronta- 
 tion of the witnesses, which is also required, unless 
 a personal one takes place. Usually the accused 
 will leg-itimize the process by declaration. However 
 if he refuses to do so, a repetition of the testimony 
 must take place for the validit}^ of the process. 
 
368 LEGAL FORMULARY. 
 
 406. But in order that the leg'alization of the 
 process, "especially throug"h confrontation, may be 
 less complicated and tedious, it will be advisable, that 
 in case the accused refuses to legitimate the process 
 through declaration, no -personal but only a verbal 
 confrontation of the witnesses take place; that is, 
 that instead of the witnesses being personally placed 
 in the presence of the accused, only their depositions 
 be read to him by the judge and notary and he be 
 allowed to make, and to have put on record, what- 
 ever exceptions he desires to make against the per- 
 sons and the depositions of the witnesses. With 
 this act the process becomes legitimized in all things 
 whatsoever, w^hether they are already begun, or are 
 yet to be begun, even though the written defenses 
 have already been handed in, and that with all the 
 legal effects of a true and real legitimation." (Or- 
 cidar of S. Cong-. BB. and RR. Atig. /, i8^i.) 
 
 407. Following is a form of legalization by way of 
 verbal confrontation: 
 
 "Date . The accused N. N. having appeared 
 
 before the judge and me the notary, was again ad- 
 monished to tell the truth respecting himself and 
 was sworn to tell the truth in regard to other 
 parties. Thereupon for the purpose of legalizing 
 the process, the testimony of the witnesses N. and 
 
 N. examined under dates of was read to the 
 
 accused in full and word for word. Being then 
 asked whether he had anything to say against the 
 persons or depositions of the witnesses, and being 
 informed at the same time, that by this act he was 
 deprived of all right to have the witnesses repeat 
 their testimony, he answered: After you, the vicar 
 general (judge) have caused the notary here present 
 to read for me the depositions of the witnesses N. and 
 
CONFRONTATION OF WITNESS. 369 
 
 N. examined under date of — and having- fully 
 understood them, I have to say &c. (Here follow his 
 answers which must be recorded exactly by the 
 actuary.) Afterwards &c." (About reading and 
 sigfning- by accused and judg-e and notar3\) 
 
 408. It must be noted, however, that the circular 
 quoted above does not prohibit personal confronta- 
 tion of the witnesses. Personal confrontation is the 
 practice in all secular courts in the United States 
 and has been introduced into France and other coun- 
 tries as well as the United States in church courts. 
 It is in much better accord with g-eneral sentiment 
 than a mere verbal confrontation, which latter ren- 
 ders a cross examination practically impossible. 
 Moreover, under cross examination lying- witnesses 
 will be discovered more easily. In trial for capital 
 offenses (deposition from parish) the defendant may 
 demand a personal confrontation. This is a form in 
 such case: 
 
 "Date . In presence of the judg-e, fiscal pro- 
 curator and me, the actuary, and of the accused, 
 for the purpose of legfalizing- the process, the previous 
 deposition made by the witness N. under date of — 
 was read to the said witness in full, and word for 
 word. Being- asked whether he now confirmed his 
 previous statements or whether he wished to chang-e 
 them in an}^ point, he answered: (Here follow the 
 answers of the witness.) After this the accused 
 was asked whether he had anything- to say ag-ainst 
 the person or deposition of the witness and being- in- 
 formed &c., (as in previous form in n. 407.)" 
 
 This confrontation must take place, of course, in 
 the court in presence of the judg-e, fiscal procurator, 
 actuary, and the accused. The witness must be put 
 
 under oath. All these points should be entered in 
 
 48 
 
370 LEGAL FORMULARY. 
 
 the acts. With the publication of the acts, the oflFen- 
 sive process becomes complete. 
 
 409. When the testimony has been legalized the 
 accused or his advocate may demand a copy of the 
 acts and it is recorded in this form: 
 
 "On the — day of — A. D. — , the Rev. N., the 
 advocate of Rev. N., the accused, appeared be- 
 fore the V. Rev. Vicar general and asked that an 
 integral copy of the acts, with also the names of the 
 witnesses, be given to him, since he intends to except 
 against the persons of these witnesses, as well as 
 their testimony, saving always due respect for the 
 V. Rev. N. the vicar general, and he insists in this 
 and every other best way. I, N. N. advocate, ask 
 and insist as above. 
 
 N. Vicar General. 
 N. Actuary." 
 
 Following is a form for recording the acts: 
 
 "Thereafter the V. Rev. Vicar general ordered 
 the publication of the proceedings thus far had in 
 this cause. Consequently by his order the whole 
 processus offensivus was read in a loud voice in 
 court; which being done the same, V. Rev. Vicar 
 general ordered that the offensive process should be 
 held for published. Wishing moreover to grant the 
 accused everything necessary according to law for 
 his defense, the V. Rev. Vicar general assigned him 
 a term of seven days, i. e., on — as the date for 
 presenting his defense; he also granted his request 
 that a copy of the acts be furnished him or his advo- 
 cate, together with the names and testimony of the 
 witnesses, since he, the accused, has declared that he 
 receives and accepts their testimony "as lawfully 
 
 taken. Done &c. Date . 
 
 N. Vicar General. 
 N. Actuary." 
 
GIVING COPY OF ACTS. 371 
 
 "Wherefore a copy of the aforesaid acts, collated 
 and authenticated, word for word, was g-iven to the 
 said accused (or his advocate), who received it, re- 
 serving* to himself the right of asking- a prolongation 
 of the term for defense, the cross examination of the 
 witnesses according to questions to be proposed by 
 himself, and the making of a new defensive process; 
 further he held the witnesses examined by the curia 
 as legitimately examined and received; concerning 
 each and all of whom he expressly made declaration. 
 Done at — this — day of — A. D. — . I, N. N. 
 (advocate) affirm the above to be true. 
 
 N. N. Actuarv." 
 
 At the bottom of the copy the actuary will thus 
 certify to it: 
 
 "The above copy was collated by me, word for 
 word, with its original, extant with me, and it 
 agrees therewith in all things. In testimon\^ 
 whereof &c. N. N. Actuary." 
 
CHAPTER XII. 
 
 DEFENSE OF THE ACCUSED. 
 
 410. The accused, having- learned throug-h the 
 official publication of the process what charges and 
 testimony are against him, has the natural and legal 
 rig-ht to defend himself by producing* testimony and 
 even by a written explanaton. {^Cf. Cum inagno- 
 ■pere, Art. 2'/-ji.^ So necessary is this defense in 
 criminal cases, that the judg^e is bound to grant a 
 term for it even though the accused has confessed 
 the charg-es and does not wish a defense. (Com- 
 munis DD.) Moreover if the accused does not select 
 an advocate at this stage of the process the judge is 
 obliged ex officio to appoint one to act. (C/. /. c. 
 Art. J I.) The documents are presented and wit- 
 nesses examined for the accused in the same manner 
 as for the prosecution, the forms for which are given 
 above in n. 377-381. When the defendant has pro- 
 duced all his testimony, the prosecution may offer 
 testimony to rebut it, and again the defense ma}^ op- 
 pose the rebuttal with other testimony. Then the 
 prosecution usually declares that it rests its case and 
 the defense makes a similar declaration. This rest- 
 ing- shuts off the prosecution from presenting- any 
 further testimony, but not the defense, which may 
 offer additional testimony at any time before the sen- 
 tence. But if the defense introduces new witnesses 
 the prosecution is thereby entitled to rebut them by 
 
 372 
 
INTERIyOCUTORY SENTENCE. 373 
 
 other witnesses. This declaration by both sides 
 that they rest their case is the conchisio in causa, 
 in as far as there can be one in a criminal case. It 
 need not be made in any set form. After the vicar 
 g^eneral, or other judg-e, has declared the process 
 closed {absoluto proccssu) he makes a summary of 
 the case, stating its orig"in and the various stag-es of 
 the process, g'iving- also the conclusions which follow 
 leofally on the one hand from the testimony of the 
 prosecution and on the other hand from that of the 
 defense. If the vicar gfeneral is also to g-ive sen- 
 tence, he nevertheless at this stage makes a sum- 
 mary of the case. If an auditor has acted, this 
 summary concludes his work, and he turns over to 
 the ordinary judg^e the whole case tog'ether with the 
 summary he makes of it. 
 
 411. Following" is a form for recording* a demand 
 for long'er time for defense: 
 
 "On the — day of — A. D. — the Rev. N. advo- 
 cate for the accused Rev. N. appeared before the V. 
 Rev. Vicar g"eneral and asked a long^er term than the 
 seven days grranted for defense, which he says is too 
 short for several reasons g^iven by him. The V. 
 Rev. Vicar gfeneral held his request to be reasonable 
 and therefore, having* accepted it si et in quantum^ 
 ordered the term prorogfued for another seven days, 
 counting- from the expiration of the first term. Done 
 this — day of — . 
 
 N. N. Vicar General. 
 N. Actuary." 
 
 But if the request is refused then say: 
 
 "On the — day of — A. D. — , the Rev. N. &c (as 
 above to the V. Rev.) The V. Rev. Vicar g-eneral 
 considering" that the reasons alleg^ed were not suffi- 
 
374 LEGAL FORMULARY. 
 
 cient and that the request was made simply to pro- 
 long' the trial, denied the request and said that if the 
 defense is not made within the time allowed, further 
 proceeding's will be had without paying" attention to 
 the defense. Done &c. 
 
 N. Vicar General. 
 N. Actuary." 
 
 412. If the accused wishes to appeal or except 
 ag'ainst such a denial (for he can except) the acts 
 may thus be written: 
 
 "To which the aforesaid advocate (or accused) re- 
 plied that the reasons advanced by him are leg'iti- 
 mate and by no means invented to delay the trial; 
 that therefore he appeals to those to whom by law 
 he should appeal from the foreg'oing* sentence and de- 
 cree; and he protests the nullity of the acts if fur- 
 ther proceeding's be had, and he asks that the orig'inal 
 acts be forwarded to the hig^her court urg'ently and 
 most urg'ently. Done this — day of — A. D. — . I 
 N. N., advocate, protest and appeal as above. 
 
 I, N. N. Vicar General. 
 I, N. Actuary." 
 
 If the judg'e then g-rants the request rather than 
 waste time in the appeal, the facts may be thus 
 recorded: 
 
 "But the V. Rev. Vicar g-eneral seeing* the perse- 
 verance of the aforesaid advocate in appealing", and 
 considering- that althoug-h the appeal is frivolous and 
 the alleged reasons are not legfitimate, but that 
 nevertheless the trial would be more prolong'ed in 
 discussing- them than in g-ranting- the demanded pro- 
 rog'ation, prudently receding- from his decree of re- 
 fusal already made, g-ranted another term of seven 
 days from the expiration of the first term. Done 
 this — day of — A. D. — . N. Vicar General. 
 
 N. Actuary." 
 
CROSS EXAMINATION. 375 
 
 The above forms may be used with proper chang^es 
 for recording- any interlocutory sentence, appeal 
 therefrom, and receding* from the decree first en- 
 tered. If the judg-e refuses to recede and orders the 
 trial to proceed, it would be very dang-erous for the 
 defendant to resist and try to g^et a hearing" on appeal. 
 
 413. When the accused or his advocate has re- 
 ceived a copy of the offensive process he will formu- 
 late a cross examination of the witnesses for the 
 prosecution, before he presents his own witnesses. 
 By leg-alizing- the testimony already taken he did not 
 forfeit the rig-hts of cross examination and exception. 
 No exact form can be g"iven here for such cross ex- 
 amination; but it should be based on the examina- 
 tion in chief and tend as much as possible to w^eaken 
 such examination. The judg^e ma}^ reject questions 
 which are irrelevant and purely defamatory. Still 
 the fullest chance should be g^iven the defendant to 
 defend himself. The acts may read thus: 
 
 "On the — day of — A. D. — , in the curia before 
 the V. Rev. Vicar g^eneral, appeared Rev. N., advo- 
 cate for the accused Rev. N., and in the name of his 
 client asked a recall of the witnesses — (mention 
 them) for the prosecution and a re-examination on 
 points which he mentioned; and at the same time he 
 presented a series of interrog^atories, which the 
 V. Rev. Vicar g'eneral accepted, si et in quantum, 
 and which on his order I placed in the acts marked 
 n. — . In testimony whereof, &c. 
 
 N. Advocate. 
 
 N. Vicar General. 
 
 N. Actuary." 
 
 414. The followingr form may be used for present- 
 ing- the questions to the judg-e; 
 
376 LEGAIy FORMULARY. 
 
 "Questions which the Rev. N., advocate for the 
 accused Rev. N., presents to the V. Rev. Vicar g-en- 
 eral and asks that the respective witnesses be exam- 
 ined thereon: 1^ Witness N. (^ive questions for his 
 cross examination); 2'^ Witness M. (give questions 
 for his cross examination, and in a similar way the 
 other witnesses.) Which questions, I, the under- 
 signed advocate, present to the V. Rev. Judge and 
 ask that they be put. "N. Advocate. 
 
 "The above questions being duly considered by 
 the V. Rev. Vicar general he ordered question — 
 and question — dropped, because irrelevant. 
 Wherefore on these questions he does not intend to 
 re-examine the witnesses, but on the others he de- 
 creed that the witnesses should be recalled and 
 cross examined. Done &c. N. Vicar General, 
 
 N. Actuary." 
 
 415. "Consequently the V. Rev. Vicar general 
 decreed to cite the accused Rev. N. and his advocate 
 Rev. N. to hear the testimony of the witnesses to be 
 recalled. Wherefore he ordered issued a citation to 
 the aforesaid accused and his advocate to be served 
 by N. N. personally or in their usual places of resi- 
 dence which citation is as follows: 'At the order of 
 the V. Rev. Vicar general Rev. N.- th.e accused and 
 Rev. N. his advocate are cited to appear before the 
 same V. Rev. Vicar general in the usual judgment 
 hall on — at — o'clock; for the purpose of seeing the 
 affidavits of the witnesses and their cross examina- 
 tion. And this citation the same V. Rev. Vicar 
 general orders served personally or in the place of 
 their usual residence. Given in the chancery on — 
 day of — A. D. — . I, N.V icar general. N. Actu- 
 ary.' Which order after the aforesaid N. N. had 
 fulfilled, he returned to me and reported that he had 
 served the citation personally, leaving a copy. Done 
 &c. I, N. N. messenger affirm as above. 
 
 N. Actuary." 
 
CROSS-EXAMINATION. 377 
 
 In a similar way the witnesses are cited for the 
 same time and place. 
 
 416. "On the — day of — A. D. — , Rev. N., the 
 accused, and Rev. N., his advocate, appearing- before 
 the V. Rev. Vicar g'eneral, and likewise the witnesses 
 previously examined in the cause of the said Rev. 
 N. also appearing-, Mr. N., one of the witnesses, 
 was called and having- taken the oath to tell the 
 truth, after his previously g-iven testimony was read 
 to him word for word and he wished to make no 
 chang-es in it, but on the contrary re-affirmed it, he 
 was cross-questioned on the points proposed b}- the 
 advocate of the accused, namely: 1° Asked? He 
 replied. (Then g-ive questions and answers.) 
 Which being- done on the order of the V. Rev. Vicar 
 g-eneral I read his deposition to the said witness; 
 and he being- asked whether he wished to make any 
 chang-es in it and replying* that he did not, he was 
 ordered to subscribe his deposition. Done this — 
 day of — A. D. — . I, N. witness testify as above. 
 
 N. Vicar General. N. Actuary." 
 
 The same method is followed in reg-ard to each 
 witness. The previous examination is read to him 
 before the cross-examination is made. A copy of 
 this testimony may be thus g-iven: 
 
 '*On the — day of — a. d. — , when the cross-ex- 
 amination of the witnesses was completed, the V. 
 Rev. Vicar g-eneral decreed that a copy of it, -prout 
 de jure, should be g-iven the accused. 
 
 N. Vicar General. 
 N. Actuarv." 
 
 "For the execution of the aforesaid decree on the 
 same day Rev. N., advocate for the accused, w^as 
 called and an authentic cop}- of the aforesaid cross- 
 examination was given to him, for which he g-ave 
 thanks. In testimony whereof, &c. Done &c. 
 
 I, N. Actuary." 
 49 
 
378 LEGAL FORMULARY. 
 
 417. After the defendant has cross-examined the 
 witnesses of the prosecution, he presents the points 
 of his defense to the judg^e and asks that his docu- 
 ments be received and his witnesses examined. 
 Following- is a suggestion for presenting- points of 
 defense though the articles should be drawn in ac- 
 cordance with the testimony the defendant expects 
 to produce: 
 
 *'Date . Comes now Rev. N., the advocate of 
 
 the accused Rev N., and in court before the V. Rev. 
 Vicar general presents the underwritten points of 
 •defense in favor of his client, and he insists and de- 
 mands that concerning them all without exception 
 all the witnesses whom he will later produce shall 
 be examined, protesting and appealing against any 
 refusal with however all due honor and reverence. 
 The points are: 1^ that the place mentioned as fre- 
 quented by the accused is really not a saloon but a 
 restaurant where the accused sometimes takes meals; 
 2^ that what was said to be drunkenness on the 
 streets was only the effect of a sickness to which the 
 defendant is subject; 3° that on the Sunday men- 
 tioned, June 12, 1898, and also on the day before, the 
 defendant was absent from home, being suddenly 
 called to his sick brother and not being able to reach 
 home; 4° that there is no ill-fame about the defend- 
 ant's alleged eating before mass, and the two wit- 
 nesses of the prosecution are known enemies of the 
 defendant. The witnesses to sustain these points 
 of defense he will present one after the other at the 
 proper time, whom at present for just reasons he 
 does not mention; but at the citation of the V. Rev. 
 Vicar general he will name. 
 
 I, N. N. Advocate for Defendant." 
 
 "The above points of defense were presented 
 and were accepted by the V. Rev. Vicar gen- 
 eral, 6^/ et in quantum,, and saving the right to 
 
DEFENSE OF ACCUSED. 379 
 
 modify them, and at his order were by me placed in 
 the acts. Done this — day of — A. D. — . 
 
 N. N. Actuary." 
 
 418. ' 'On the — day of — A. D. — Rev. N. , the ad- 
 vocate of Rev. N., the accused, was called before 
 the V. Rev. Vicar g^eneral and was told to produce 
 documents and witnesses to sustain the points of de- 
 fense offered by him. And the aforesaid advocate 
 produced Mr. N. to be examined on the first and 
 fourth points. Immediately therefore the aforesaid 
 Mr. N. was called and the oath to tell the truth be- 
 ing" administered was taken by him on the hoh^ g*os- 
 pels. Then he being- asked regarding- the first point 
 of the defense, namely (as in n. 417 above) replied — . 
 Asked regarding- the fourth point of defense, namely 
 (as in n. 417 abovej he replied — ." 
 
 "Which being- done and his deposition being read 
 to the witness &c, (add usual conclusion for testi- 
 mony of a witness.) 
 
 "Immediately thereafter the aforesaid advocate 
 produced Dr. N. to be examined on the second and 
 fourth points of the defense, &c (as for the preced- 
 ing witness.") 
 
 419. Thus the defense by witnesses will endeavor 
 to establish its points, and documents may also be 
 produced. It is evident that the defense should 
 make the strongest showing possible. , If the judge 
 excludes necessary testimony or refuses to hear wit- 
 nesses or to entertain valid exceptions against wit- 
 nesses, or otherwise clearly shows himself prejudiced 
 against the defendant, an appeal may be taken at 
 once and a challenge of the judge be included. 
 However the attention of the judge must first be 
 called to the matter and correction asked. 
 
 Following is a form for appealing and challenging: 
 
380 LEGAL FORMULARY. 
 
 "Date . Comes now the Rev. N., advocate of 
 
 the accused Rev. N., before the V. Rev. Vicar gen- 
 eral, and protesting all due honor and reverence for 
 the said V. Rev. Vicar g-eneral, in the name of his 
 client says that the person of the V. Rev. Vicar 
 gfeneral is suspected by him, because he showed ill- 
 will ag"ainst the defendant in rejecting* as frivolous 
 his exception against a witness because of enmity, 
 and in ordering the actuary to record the testimony 
 of said witness. Therefore he appeals ad quern et 
 qicos de ju7'e from the aforesaid V. Rev. Vicar gen- 
 eral because of the grievance already sustained; and 
 combining a challenge with the appeal, for the afore- 
 said cause he recuses the said vicar general as a 
 judge suspected by him; and he asks and wishes and 
 insists that he shall no longer in any way interfere 
 in this cause which is being tried against the de- 
 fendant; and he protests the nullity of the process, 
 if notwithstanding the present appeal and recusa- 
 tion, he should proceed further; nunc pro tunc ap- 
 pealing and asking urgently and most urgently that 
 the original acts be sent up to the higher court. 
 Done this — day of — A. D. — . I, N.N. advocate, 
 appeal and recuse as above. 
 
 N. N. Actuary." 
 
 420. "Consequently the V. Rev. Vicar general 
 ordered the aforesaid appeal to be placed in the acts, 
 which I inserted, and he issued a decree as follows: 
 
 "Although the aforesaid appeal, made by Rev. N. 
 advocate for Rev. N. defendant, is altogether frivo- 
 lous and without foundation, nevertheless because of 
 reverence for those to whom the appeal is taken, we 
 yield to it, si et in quantmn, and decree that the acts 
 in the case be forwarded. Given in the chancer}^ 
 this — day of — A. D. — . 
 
 N. Vicar General. 
 N. Actuary." 
 
 421. When the defendant has seen the names of 
 
EXCEPTING TO WITNESSES. 381 
 
 the witnesses, he may notice some to whom he ex- 
 cepts. He should at once file his exceptions in writ- 
 ing. Following" is a form: 
 
 "Date . Comes now before the V. Rev. Vicar 
 
 ofeneral, Rev. N. ag'ainst w^hom a criminal process is 
 beinor instituted, and he says that he excepts against 
 N. N. a witness produced ag'ainst him, because the 
 said N. N. is a g^reat personal enemy (or is g'uilty of 
 the crime of — , or is infamous in law or fact) which 
 precludes his testimony being- received. Therefore 
 he proposes the following- points of exception with 
 this intention only that the testimony of the afore- 
 said N. N. may be rejected and held as' null. 
 Wherefore he does not intend that the aforesaid wit- 
 ness shall be punished either publicly or privately. 
 The points of exception are: 1^ That the said N. 
 N. has been convicted of calumny ag-ainst Rev. X. 
 2^ That in the same libellous article the present de- 
 fendant and exceptor was also abused. 3^, &c. 
 The witnesses to sustain these points will be pro- 
 duced at the order of the court. Dated &c. I, N. N. 
 except and accuse as above." 
 
 422. The bill of exceptions will be filed by the 
 actuary, and the judg-e will order witnesses exam- 
 ined. He will then pass interlocutor}^ sentence 
 on whether the witness is to be rejected or not, for 
 this exception really necessitates a trial within a 
 trial. Should the judg-e allow the testimony of the 
 witness to stand in spite of the proved exception, 
 the defendant may appeal to the hig-her court from 
 this interlocutorv sentence, for it inflicts a g-rievous 
 damag-e w^hich cannot be remedied in the final sen- 
 tence; since in fact the testimony in question may 
 actually determine the final sentence ag'ainst the de- 
 fendant. It is true the council of Trent (Sess. 2j, 
 
382 IvEGAIv FORMULARY. 
 
 c. /, de ref.) chang'ed the law and limited appeals, so 
 that in criminal cases no appeal can be taken from 
 an interlocutory sentence. But it did not absolutely 
 forbid such appeals; it forbade them, "unless the 
 g'rievance is such which cannot be repaired by the 
 final sentence, or unless no appeal can be taken from 
 the final sentence itself; in which cases the provisions 
 of the sacred and ancient canons remain in full force. ' ' 
 Hence in the very form of appeal from an interlocu- 
 tory sentence it must now appear, not only that 
 there is a serious g'rievance, but one which cannot 
 be repaired by the definitive sentence. This defini- 
 tive sentence means the one in the present trial, not 
 on appeal to a higher court. The g'rievances which 
 cannot be repaired by the final sentence are nowhere 
 specified in law. Hence a careful showing should 
 be made in the form of appeal showing* the irrepar- 
 able damage. 
 
 423. Following is a form for appealing against an 
 interlocutory sentence which in a criminal case in- 
 flicts a damage irreparable by the final sentence: 
 
 "Date . Comes now before the V. Rev. Vicar 
 
 general, the Rev. N. accused as above, and says that 
 he is aggrieved by the said V. Rev. Vicar general 
 in a decree by which he rejected as frivolous the said 
 defendant's exception against the witnesses N. and 
 N. (or express the grievance whatever it is.) Fur- 
 ther he shows that this grievance is such that it can- 
 not be remedied by the final sentence; for since the 
 aforesaid witnesses have testified that the alleged 
 crime was perpetrated by the said defendant, if 
 their testimony is admitted, nothing but conviction 
 can be expected by the said defendant. Hence be- 
 cause the said defendant sustains that he has suf- 
 
INTERLOCUTORY APPEAL. 383 
 
 ficiently proved that the aforesaid witnesses are per- 
 sonal enemies of him, and are infamous and disquali- 
 fied; therefore with all due submission, not with the 
 intention of protracting* the trial, but of freeing- him- 
 self from a g^rievance, the said Rev. N. appeals from 
 the said decree or interlocutory sentence, and he 
 wishes and insists that it be rescinded; otherwise 
 he appeals to the metropolitan curia and the Holy 
 See; and he asks that the orig"inal acts be sent up, 
 urg*ently and must urg-ently. Dated this — day of — 
 A. D. — -. I, N. appeal as above.'.' 
 
 "The above appeal was presented and on the order 
 of the V. Rev. Vicar general was placed in the acts, 
 and receive only according* to law, this — day of — 
 A. D. — . N. Actuary." 
 
 424. The judge may re-investig-ate and rescind his 
 decree and the orig-inal case will then proceed, after 
 proper entry is made'in the records. But if the ap- 
 peal is to be rejected, following* is a form: 
 
 "Consequent thereto the V. Rev. Vicar g-eneral, 
 having- attentively considered the cause of the appeal 
 produced by the said defendant, Rev. N., he found 
 that it is not sustained in law or in fact; therefore 
 he rejected it as frivolous and of no force and de- 
 creed, notwithstanding" it, to proceed further. 
 Which decree when it was made known to the said 
 defendant. Rev. N., he taking- an exception, acqui- 
 esced in it. {Or) he ag'ain appealed and ag-ain asked 
 that the acts be forwarded, urg-ently and most 
 urg-ently. Done this — day of — A. D. — . 
 
 N. Actuary." 
 
 425. After the defense has entered all its proofs, 
 such as documents and witnesses, the fiscal procu- 
 rator may reply and rebut them. To this rebuttal, 
 the defendant in turn will make rejoinder. If nec- 
 essary an adjournment may be asked and must be 
 
384 LEGAL FORMULARY. 
 
 granted for this purpose, which term is called ad 
 diccndinn contra firoducta. The entry in the acts 
 may be as follows: 
 
 "On the — day of — A. D. — , the fiscal procura- 
 tor presented certain replies to rebut the defense 
 made by Rev. N., the defendant; which replies are 
 as follows: (Insert them.) The foreg'oing' replies 
 on the order of the V. Rev. Vicar general were com- 
 municated to the advocate of the defendant. In 
 testimony whereof &c. I, N. Actuary. 
 
 426. The rejoinder of the defendant may be thus 
 entered: 
 
 "On the — day of — A. D. — , the Rev. N., advo- 
 cate for the defendant, Rev. N., presented a re- 
 joinder against the rebuttal adduced by the fiscal 
 procurator, which rejoinder is as follows. (Insert 
 it.) In testimony whereof &c. 
 
 I, N. Actuary." 
 
 If new proofs should be found for the prosecution 
 they may be offered before the judg"e declares the 
 process closed, or makes his summary. The defense 
 may offer new proofs also later. The same method 
 is pursued with them as with those proofs originally 
 offered. They must be communicated to the opposite 
 party. 
 
CHAPTER XIII. 
 
 FORMS FOR DEFINITIVE SENTENCE. 
 
 427. When both sides have finished entering testi- 
 mony, the vicar g'eneral or auditor will make a sum- 
 mary of the case. This practicall}^ closes the case 
 for the prosecution, even though no declaration is 
 made by the judo*e, closing the case. If an auditor 
 was compiling the process he will now turn it over 
 to the ordinary judge. The judge will then issue a 
 citation to the accused and the fiscal procurator 
 ordering' them to make and present a final defense or 
 argument, ad alleg'andinn in jure et in facto. In 
 doing this the defendant must have an advocate, or 
 the judge is bound to appoint one for the purpose. 
 (C/. Ciun viag-nop. Art. ji.) This defense, or argu- 
 ment on the law and facts of the case, must now be 
 in writing. (/. c. j2.) The whole process, as well as 
 the summary made by the auditor or judge, ma}^ be 
 seen by the defendant's advocate in the chancery 
 ofiSce. He may also copy it at his own cost. The 
 advocate for the defendant on or before the ap- 
 pointed day files his written argument on the law 
 and facts. Then the fiscal procurator files his writ- 
 ten argument, which must be communicated to the 
 defendant's advocate. This advocate makes a final 
 argument, and the judge takes all the papers to pre- 
 pare his sentence. When he is ready, he cites both 
 the defendant or his advocate and the fiscal procur- 
 
 50 385 
 
386 LEGAL FORMULARY. 
 
 ator to hear the definitive sentence. One simple 
 citation is sufficient, if it is properly served, for the 
 trial is summary. If the parties after citation do 
 not appear and assig'n no reason, sentence may be 
 passed in their absence. The sentence must be read 
 by the judg^e, seated, and for validity must be in 
 writing". 
 
 428. Following" is a form for citing" the defendant 
 to hear sentence. A similar form mav be used to 
 cite the fiscal procurator: 
 
 "Thereafter the V. Rev. Vicar g"eneral wishing" to 
 proceed to a final sentence summoned N. N. a public 
 court messeng"er and committed to him a citation of 
 the following- tenor: The Rev. N. defendant and 
 Rev. N., his advocate, and also the diocesan fiscal 
 procurator N. N. are cited to appear before the V. 
 Rev. Vicar g-eneral at — o'clock, on the — day of — 
 A. D. — , in the hall of -judg^ment in the episcopal 
 residence, to hear the definitive sentence then to be 
 pronounced in the case tried ag"ainst the said de- 
 fendant. And the aforesaid V. Rev. Vicar g"eneral 
 orders this citation served personally on the afore- 
 said persons or in their place of usual residence. 
 Given at — on the — day of — A. D. — . 
 
 N. Vicar General, 
 N. Actuary." 
 
 "Therefore the aforesaid N. N. messeng-er, having" 
 fiulfilled his commission, returned to me as actuary 
 and reported that he had served the aforesaid cita- 
 tion, as was ordered, personally on the aforesaid 
 Rev. N. and Rev. N. Done this — day of — A. D. — . 
 I, N. messeng"er, affirm as above. 
 
 I, N. Actuary." 
 
 429. Following" is a form for beg"inning" a definitive 
 sentence in a criminal case. The words "warned 
 
DEFINITIVE SENTENCE. 387 
 
 and g"iven the canonical precept" may be omitted if 
 the trial was beg'un without warning*. {See )i. jj^..) 
 
 "In the name of God, amen. We, N. N. ordinary 
 (or deleg*ated) judg^e seated in our tribunal, having- 
 seen and carefully considered all and sing"ular the 
 matters in the cause and causes tried before us for 
 our auditor, N. N.) concerning* the (here mention the 
 crime concerning- which the trial was had) in reg^ard 
 to which crime the Rev. N. was defamed (warned 
 and g-iven the canonical precept); having- seen and 
 maturely weig-hed the depositions of the witnesses 
 and other proofs ag-ainst the said Rev. N. about the 
 aforesaid crime; having" seen and seriousl}^ considered 
 the citation, examination and defense of the accused, 
 and the said defendant having- been sufficiently heard 
 on all his points of defense; having- seen all thing's 
 that should be seen and considered all that should 
 be considered in the case, having- onl}^ God, the foun- 
 tain of justice before our eyes, and invoking the 
 sacred name of Christ, b}^ this our definitive sen- 
 tence, which we g-ive in this writing-, we say, de- 
 clare, pronounce and g-ive sentence that — ." 
 
 430. Form for an absolving- sentence when no 
 crime was committed: 
 
 "In the name (as above in n. 429 to ) we g-ive 
 
 sentence, that the aforesaid Rev. N. has not at all 
 committed the crime with which he was charg-ed; 
 and therefore we absolve him as innocent and dismiss 
 him from further trial. Thus and ever\' other best 
 way. This sentence was g-iven, read and published 
 in — on the — day of — A. D. — . Thus we have 
 pronounced, seated in court. 
 
 N. N. Vicar General. 
 N. Actuary. 
 
 ' » 
 
 431. Form when the defendant has not been shown 
 g-uilty: 
 
388 LEGAL FORMULARY. 
 
 "In the name (as in n. 429 to ) we g^ive sen- 
 tence that the Rev. N. was not found gfuilty nor 
 punishable by law; and therefore we absolve him 
 from further trial and from any and every further 
 process; and we impose perpetual silence on this 
 case. Thus and every other best way. This sen- 
 tence was o;-iven, read and published on the — day 
 of — A. D. — in (place.) Thus we have pronounced 
 seated in court. N. Vicar General. 
 
 N. Actuary." 
 
 432. Form for a sentence condemning- the accused 
 who was convicted by witnesses: 
 
 "In the name (&c as in n. 419 to give sentence) 
 give sentence that the Rev. N., the accused, was and 
 is throug-h witnesses fully convicted of (mention the 
 crime with its circumstances.) Wherefore we con- 
 demn him to the punishment imposed by the sacred 
 canons in lib. — tit. — c. — (or our diocesan stat- 
 utes, or threatened by our canonical precept) namely, 
 (express exactly the punishment to be underg*one.) 
 Thus and every other best way. This sentence was 
 g-iven, read and published this — day of — A. D. — 
 in — . Thus we have pronounced, seated in the 
 tribunal. N. Vicar General. 
 
 , N. Actuary." 
 
 If the accused has confessed the crime that fact 
 may be inserted thus: "Give sentence that the Rev. 
 N. has committed the crime of (express crime) of 
 which he is convicted by witnesses and as he himself 
 by his own mouth and willing-l}^ has confessed. 
 Wherefore &c." 
 
 433. At times the canonical punishment is to be 
 increased because of previous conviction or other cir- 
 stances; at times also it should be diminished 
 because of alleviating- circumstances. Following- is 
 a form for such cases: 
 
def'initive: sentence. 389 
 
 "In the name &c (as in n. 429) we say, declare, 
 pronounce and give sentence that the Rev. N. is con- 
 victed of (or is convicted and has confessed) the crime 
 for which he was tried, namely (mention crime.) 
 Therefore he is subject to the punishment decreed 
 by the sacred canons (or diocesan statutes, or our 
 precept) against such delinquents. But because 
 the said Rev. N. is accustomed to offend by this kind 
 of crime of which he was previousl}^ also convicted 
 (or state other reason for increasing the punishment) 
 therefore we declare the said punishment is to be in- 
 creased. Wherefore we condemn him to (give ex- 
 actly the punishment he is to undergo.) 
 
 But because (here appears the circumstance why 
 punishment should be decreased) therefore we de- 
 clare the severity of the punishment is to be some- 
 what relaxed in his case. Wherefore we condemn 
 him &c. Thus and every other best way. This 
 sentence was given, read and published this — day 
 of — A. D. — in — . Thus we have pronounced 
 seated in the tribunal. 
 
 N. Vicar General. 
 N. Actuary." 
 
 434. The actuary must record the sentence in the 
 acts, which may be done as follows: 
 
 "The accused Rev. N. together with his advocate 
 Rev. N. (or the advocate alone) and also the fiscal 
 procurator appearing in court, the V. Rev. Vicar 
 general (or the bishop) seated at the tribunal passed 
 a definitive sentence absolving the said accused from 
 all guilt under the charges {o7') declaring that the 
 
 accused is guilty of the crime of . and inflicting 
 
 the canonical punishment; which written sentence 
 when he had pronounced vocally, he committed writ- 
 ten to me, the actuary, ordering me to place it in the 
 acts. In fulfillment of which command, I placed the 
 
 said sentence in the acts, and it beg'ins and ends 
 
 and is of the following tenor: (insert it.) To 
 
390 LEGAtv FORMUIvARY. 
 
 abundantly prove the authenticity of the aforesaid 
 sentence, N. and N. asked for the purpose, have 
 subscribed as witnesses. Done at — this — day of 
 — A. D. — . I, N. Vicar General. I,. N. was a wit- 
 ness. I, N. was a witness. 
 
 I, N. Actuary." 
 
 435. It is not necessary for the defendant to be 
 present when sentence is passed thoug^h he should be 
 cited. The "Cum mag-nopere, " Art. 34, makes no 
 mention of the defendant, but says his advocate and 
 the fiscal procurator are to be present when the sen- 
 tence is pronounced. The sentence is then made 
 known officially to the accused, either by court mes- 
 senger, or special messeng*er, or by registered mail 
 (C/. ArL 14, ''C?i7n ^nagnojiere.'') An exact ac- 
 count should be kept of the day and hour when the 
 accused receives the notification of the sentence, for 
 he is allowed ten days and only ten from this time 
 in which to file his appeal with the judg"e a quo. 
 When sent by mail such a record can hardly be got- 
 ten. The actuary should make the following- entry 
 in the acts. 
 
 436. ''Thereafter the V. Rev. Vicar gfeneral 
 ordered that the aforesaid sentence should be com- 
 municated to the accused, and calling* N. N. a mes- 
 senger, he committed to him and ordered him to 
 serve an authentic copy of the said sentence on Rev. 
 N. personally or in his usual place of residence. 
 Given &c. N. Vicar General. 
 
 N. Actuary." 
 
 "Therefore the aforesaid messenger, N. N. having 
 fulfilled his commission, returned and reported to 
 me, as actuary, that on the — day of — A. D. — , at 
 10 o'clock a. m. he had served the aforesaid sentence. 
 
SERVICE OF SENTENCE. 391 
 
 as ordered on Rev. N. personally. Done this — day 
 of — A. D. — . I, N. messenger affirm as above. 
 
 I, N. Actuary." 
 
 The "Cum mag-nopere" Art. 33, requires the 
 judg"e to state in his definitive sentence of condemna- 
 tion the canonical sanction or punishment attached 
 to the crime committed. In some cases the law it- 
 self specifically states the punishment to be inflicted 
 for the crime; in others the law states that the crime 
 is punishable, but does not specify the punishment, 
 leaving- the ecclesiastical judg-e free to inflict what- 
 ever punishment he may deem just. Hence Art. 3 
 leaves the inflicting- of punishment to the conscien- 
 tious discretion of the ordinary. In such a matter 
 it is better to err by leniency than by. severity. 
 
CHAPTER XIV. . 
 
 PROCESS KX NOTORIO. 
 
 437. Although notorious crimes may be punished 
 without following^ the regular process of law, 
 {Cf. n. ^j^ above,) still it is required, 1° that the crime 
 be really notorious, i. e., committed in a public place 
 and in presence of a larg-e number of people, 2^ that by 
 two witnesses the notoriety itself be proved, 3^ that 
 there also be certainty of the malice of the delinquent, 
 4° that the delinquent be cited to show cause why sen- 
 tence should not be passed on him. A crime seen by 
 several o^c\dA^m ffag-ranti may be considered notor- 
 ious and needs no reg'ular process if the delinquent 
 is brought before the judge immediately. If the 
 crime is committed flagrantly in presence of the 
 judge himself seated in court, sentence may at once 
 be passed in a decree and in it mention be made of 
 the flagrancy of the crime. But- if the crime was 
 committed in the presence of other witnesses these 
 witnesses must testify to the flagrancy; and if the 
 accused denies the crime he must be given an advo- 
 cate and opportunity to defend himself . {Cf. Clams 
 in praxi criin. q. 8; Reiffenstiiel, I. 5, t. /, n. 268.) 
 Hence the "Cum mag'nopere" had better be used in 
 flagrant cases, except contempt of court. If the 
 crime is committed before a judge out of court, the 
 regular process must be followed. {Ibidem.) 
 
 438. Following is a form for the acts in notorious 
 cases: 
 
 392 
 
PROCESS EX NOT(3KIO. 393 
 
 "In the name of the Lord, amen. This is a crim- 
 inal process by way of notoriety a^'ainst Rev. N. 
 Since it has come to the knowledgfe of the V. Rev. 
 Vicar g-eneral that the said Rev. N. in the public 
 street before a larg^e number of persons wantonly 
 and maliciously struck the Rev. X. in such a way 
 that the crime committed by him can in no way be 
 concealed or denied; therefore in order to fulfill his 
 duty the said V. Rev. Vicar treneral decreed to pro- 
 ceed by way of notoriety ag^ainst the said de nqucnt 
 Rev. N. and to take information concerning- the 
 notoriet}'; wherefore he called me to his room where 
 he erected his tribunal and having* deputed me, al- 
 ready a sworn notary, as the actuary for the case, 
 he decreed to proceed by citing- N. N. and N. N. as 
 witnesses, and he ordered the following citation 
 served on the said witnesses personally or in their 
 usual place of residence by the court messenger N. 
 (Then follow the citation, and return by messeng^er 
 in usual form.) Done at — this — day of — A. D. — . 
 
 N. Vicar General. 
 N. Actuary." 
 
 439. "On the — day of — a. d. — , in — , N. N., 
 a witness summoned and appearing before the 
 V. Rev. Vicar general, and having taken the oath to 
 speak the truth, deposed and said: 
 
 Q. What is your name? A. . (Then the 
 
 general questions.) 
 
 Q. Do you know of an}^ unusual occurrence or 
 scandal having occurred in your town? A. . 
 
 Q. How, when and where did it occur? A. . 
 
 Q. How do 3^ou know? A. 1 was present. 
 
 Q. Who else was present? A, 
 
 Q. Is this well known and notorious? A. . 
 
 Q. What do 3^ou understand by notorious? A. — . 
 "Which being done &c." (Close as usual for 
 examination.) 
 
 In the same way one or two more witnesses are 
 
 51 
 
394 . LEGAL FORMULARY. 
 
 examiaed on the notoriety of the crime. Then the 
 judgfe declares the notoriety to exist and orders the 
 delinquent cited: 
 
 ''Consequently the V. Rev. Vicar g-eneral having 
 maturely considered the depositions of the witnesses, 
 pronounced that notoriety of the alleg-ed crime ex- 
 isted; and he decreed to proceed further according- 
 to law. Wherefore he ordered the court messeng^er, 
 N. to serve personally on Rev. N. or in his place of 
 usual residence a citation to appear and show cause 
 why he should not be punished for the said crime, 
 which citation is as follows: (Knter citation and 
 return by messengfer in usual forms.) Done &c. 
 Date &c. Signed." 
 
 440. "On the — day of — A. D. — , in — the afore- 
 said Rev. N. was called and appeared before the 
 said V. Rev. Vicar g*eneral, the said Rev. N. being- 
 the person who, as is found in the acts, notoriously 
 struck Rev. X. When, therefore, the V. Rev. Vicar 
 general had admonished him he absolved him from 
 the excommunication with reincidence to the effect 
 only of allowing" him standing- in court, and then 
 havingf spoken to him of the crime he had notoriously 
 committed, the delinquent was asked why he should 
 not be condemned to the ordinary punishment. He 
 
 replied . Then his deposition having- been read 
 
 to him he was ordered to sig-n it. I, N. testify as 
 above. N. Vicar General. 
 
 N. Actuary." 
 
 441. The sentence can be passed immediately as 
 follows: 
 
 "This is a definitive sentence in a criminal case 
 passed by way of notoriety against Rev. N. 
 
 "In the name of God, amen. We, N. N. ordinary (or 
 deleg-ated) judge seated in our tribunal, having- seen 
 and maturely considered all and singular the matters 
 in the cause of the Rev. N. who is charg-ed with note- 
 
SENTENCE IN NOTORIETY. 395 
 
 riously having- struck Rev. X; having- seen and 
 weio-hed the depositions of the witnesses to the noto- 
 riety of the said crime; having- seen the citation of 
 the accused and his deposition and reasons why he 
 should not be sentenced; having- seen what should 
 be seen and considered what should be considered in 
 this case, having- only God, the fountain of justice 
 before our eyes, and invoking- the holy name of 
 Christ, by this our definitive sentence which we g-ive 
 in writing-, we say, declare, pronounce and g"ive sen- 
 tence that, since it is notoriously certain that Rev. N. 
 struck Rev. X., therefore he can and oug-ht to be 
 punished by way of notoriety and without the sol- 
 emnity of law. Wherefore we condemn him to the 
 punishment inflicted by law — (mention it) and 
 therefore he is (excommunicated or mention exact 
 punishment.) Thus in this and every other best 
 way. This sentence was passed, read and published, 
 on the — day of — A. d. — in — . Thus we pro- 
 nounced seated at our tribunal. 
 
 N. Vicar General. 
 N. Actuary." 
 
 The sentence is recorded as in n. 434 and is made 
 known to the condemned as in n. 436 above. No ap- 
 peal is allowed in notorious cases. 
 
CHAPTER XV. • 
 
 FORMS FOR APPEALS. 
 
 442. If an appeal is taken in court as soon as the 
 sentence is pronounced, no set form is required. 
 The appellant will simply say: "I appeal to the 
 hig-her court and ask that the acts be sent up." 
 The actuary will then make this entry: 
 
 "When the aforesaid sentence was read and pub- 
 lished to the said accused, Rev. N., he appealed and 
 asked that the acts be sent up; to which the V. Rev. 
 Vicar g^eneral replied that he would do what he 
 judg-es the law requires. Done at — this — day of 
 — A. D. — . I, N. appeal and ask that the acts be 
 sent to the court of appeal. 
 
 I, N. Actuary." 
 
 But if the defendant does not immediately appeal, 
 he can within the ten days file a notice of appeal in 
 the following* form: 
 
 ' 'On the — day of — A. D. — in — comes the Rev. N. 
 with the witness undersig^ned, (witnesses are not 
 strictly necessarjO and before the V. Rev. Vicar 
 g-eneral says he has been g-rievously injured by the 
 sentence passed ag^ainst him on the — day of — A. 
 D. — ; therefore he appeals from it and asks that the 
 orig^inal acts be sent to the higfher court, earnestly, 
 and most earnestly. In testimony whereof, I, N. ap- 
 peal and ask as above. N. Witness. N. Witness." 
 
 "The above appeal was presented and admitted si 
 et in quanliwi, and inserted in the acts on the order 
 of the V. Rev. Vicar g-eneral, who replied that he 
 
 3% 
 
FORM FOR APPEALING. 397 
 
 would do what is required by law. Done at — this 
 — day of — A. D. — . I, N. Actuary." 
 
 443. If for some reason such as sickness a person 
 cannot appeal before the judg^e a quo he nia}^ appeal 
 within the ten days before several honest men in 
 public and in writing"; these men should sig"n the 
 appeal as witnesses. Following" is a form: 
 
 "I appear to-day, the — day of — A. D. — person- 
 ally, before you N. and N. and being" defendant in the 
 case of — (state the case) and feeling" that I have 
 been seriously injured by the sentence passed ag"ainst 
 me in the aforesaid cause by the V. Rev. Vicar g"en- 
 eral on the — day of — A. D. — or other time as 
 mentioned therein; and because I have not committed 
 the crime and undefended and unheard and illeg"all3^ 
 have been condemned, and for other- reasons which 
 will be g"iven in proper time and place; and because 
 further, on account of sickness (or state other rea- 
 son) I am not able to appeal before the said Vicar g"en- 
 eral, I appeal before you as honest men to the Holy 
 See (or the metropolitan curia) and with this my 
 protestation I ask that you give a certification to this 
 my appeal. In this and ever}" other best wa3\ I, N. 
 appeal and ask as above." 
 
 "On the same day and in the same place as above 
 we the undersig-ned citizens of N — certif}^ unto whom 
 it may concern and on request we testify that N. N. 
 on the aforesaid day and in the same place person- 
 ally appeared before us and alleg"ed the aforesaid 
 reasons for not appealing" before the judg"e a quo, and 
 he asserted that he was ag"g"rieved, that he appealed 
 and asked as in the writing* signed by his own hand 
 more fully appears; and this he did before also the 
 undersig"ned witnesses. In testimony whereof we 
 g"ive these testimonial letters. I, N. a witness. 
 I, N. a witness." 
 
398 LEGAL FORMULARY. 
 
 444. The judg-e a quo by article 38 of the "Cum 
 mag"nopere" is obliged in case of appeal to send 
 forthwith the orig-inal acts of the case to the higher 
 court. Formerly he gave the appellant only a copy. 
 The original of the process, the summary of it, the 
 defense and the sentence must be sent up. The 
 judge a quo may accompany the acts with a letter, 
 taking the place of the a^ostoli no longer in use. 
 Following is a form for such letter, especially in an 
 appeal from a decree or interlocutory sentence: 
 
 "When Rev. N. on the — day of — A. D. — , ap- 
 pealed before us from a sentence (or decree) passed 
 by us on — as appears in the acts, and he also gave 
 a reason for the appeal as is contained in the acts; 
 we rejected his appeal and the reason for it as of no 
 value and again we reject them. But because a sec- 
 ond time he appealed against our rejection and asked 
 that the acts be sent up, we herewith transmit them 
 and refer and forward the cause concerning this 
 point to — (mention the higher tribunal) and succes- 
 sively to others as by law it may devolve. But we 
 do not intend thereby to dismiss the aforesaid ac- 
 cused from our jurisdiction, but pronounce that we 
 wish his case prosecuted and determined according 
 to law. Given at — this — day of — A. D. — . 
 
 N. Vicar General. 
 N. Actuary.'' 
 
 445. Following is a form in sending up the acts 
 after an appeal from a definitive sentence: 
 
 "Since we passed a definitive sentence in the case 
 of Rev. N. who was defamed (accused) of crime, and 
 since the said Rev. N. has appealed from our sen- 
 tence to the metropolitan curia (or other court) and 
 successively to the Holy See; we, as is right, de- 
 ferring to such appeal, dismiss the said accused and 
 
FORM FOR APPEALING. 399 
 
 his cause with the orig"inal acts and send them up to 
 the said metropolitan curia (or other court.) Given 
 at — on the — day of — A. D. — . 
 
 N. Vicar General in the Diocese of N. 
 
 N. Actuary." 
 
 The above forms may be used for appealing" also 
 in civil cases; but the civil matter on trial should be 
 distinctly specified instead of the crime. As soon as 
 the appeal is made known to the judge a quo, the 
 sentence is suspended until reviewed by the higher 
 court. The definitive sentence should not be exe- 
 cuted before the limit for appealing- has expired. 
 When, however, an appeal is taken against an extra- 
 judicial sentence or grievance, the decree is sus- 
 pended only when the hig"her court has accepted the 
 appeal. In such a case the judge a qtio is also 
 obliged to send up the original acts and may be in- 
 hibited from proceeding further. {^Ad niilitantis^ 
 n, 4S.) 
 
 436. Following is a form for appealing- from an 
 extrajudicial grievance: 
 
 *'0n the — day of — A. d. — in — , comes the 
 Rev. X. and before the V. Rev. Vicar general N. N. 
 (Most Rev. Bishop) says that he has been and is 
 grievously injured by a certain decree (or order) 
 issued to and concerning- him on the — day of — 
 A. D. — , and received on — , which decree is to the 
 effect that (here state exactly the grievance, for in- 
 stance,) the Rev. X. must pay $300, for building an 
 asylum, within thirty days under pain of suspension, 
 and he further shows that he is not obliged in law 
 or justice to pay such an amount and is unable to 
 pay it, and therefore he appeals to the metropolitan 
 curia from this grievance extrajudicial!}^ inflicted, 
 and he asks that the original records in the matter 
 
400 I^EGAL FORMULARY. 
 
 be sent up to the hig-her court, earnestly and most 
 earnestly. In testimony whereof. I, N. appeal and 
 ask as above. N. witness. N. witness." 
 
 "The above appeal was presented and admitted 
 si ct in qitantum, and made of record on the order of 
 the V. Rev. Vicar g-eneral, who replied that he 
 would do what is required by law. Done at — 
 this — day of — A. D. — . 
 
 N. Vicar General. 
 
 N. Actuary." 
 
 An extrajudicial appeal is tried before the judg-e 
 of appeal as in a court of first instance. In ^ivingf 
 notice to the judg-e of appeal a copy of the appeal as 
 lodofed in the lower court should be offered. It is 
 safer to appear personally or by advocate before the 
 hig-her court when first the appeal is introduced. 
 An inhibition should be asked ag-ainst the lower 
 court or the bishop taking- further action. 
 
CHAPTER XVI. 
 
 THE ACTS BEFORE JUDGE OF APPEAL. 
 
 447. When the notice of appeal has reached the 
 jud^e of the hig-her court he will at once enjoin on 
 the appellant that within thirty days he must select 
 an advocate who is subject to approval of the higher 
 court. If the appellant allows this peremptory term 
 of thirty days to elapse without notifying" the court 
 of his selection or reg'arding- an impediment why he 
 cannot, the judg^e of appeal will declare the appeal 
 extinct. {''Cu))i magiiopere'' art. jg. ^o.) It is 
 now certain that in a criminal case the appellate 
 judge sets the time for introducing the appeal, and 
 that an appeal is not extinguished except by his 
 declaratory sentence to that effect. The judge of 
 the lower court can no long^er make this declaration. 
 On the other hand it is certain that the judge of the 
 lower court after an appeal has been taken cannot 
 proceed to execute his sentence until he has obtained 
 a decree declaring- the appeal extinct. The judge 
 of appeal may issue inhibitions to the lower court, 
 and at the request of the appellant should do so if 
 there is suspicion that an attempt will be made to 
 execute the sentence. At the request of the appel- 
 lant the judge of appeal before all else will revoke 
 attentates, or things done against the appellant 
 within the ten days allowed for a suspensive appeal 
 or after notice of appeal has been given. In the 
 
 court of appeal the same method will be foUow^ed as 
 52 401 
 
402 LKGAIv FORMULARY. 
 
 in the lower court. (/. c. art. 41 .) The fiscal pro- 
 curator of the hig-her court will represent the lower 
 court, unless another to act with him is requested by 
 the appellee and approved by the judg-e of appeal. 
 What has been proved in the lower court need not be 
 proved ag-ain; but new testimony may be introduced, 
 which is done as in the lower court. 
 
 448. When an appeal from an interlocutory sen- 
 tence is introduced the acts may be thus recorded in 
 the court of appeal: 
 
 "In the name of the Lord, amen. Since the Rev. 
 N. of the diocese of N. (or N. the advocate of Rev. 
 N.) appeared before the V. Rev. N. N., Vicar gen- 
 eral of the arch-diocese of N., and showed that he 
 has appealed from an interlocutory sentence of the 
 V. Rev. N. N., vicar g-eneral of the same diocese, 
 which sentence was concerning- (state sentence;) and 
 since the said appellant. Rev. N., insisted that he 
 should be admitted before the said V. Rev. N. N., 
 vicar g-eneral of this arch-diocese, to prove his cause 
 and the reasons advanced by him to sustain his ap- 
 peal; the said V. Rev. Vicar g-eneral, having- sum- 
 moned me, a public actuary of this curia, decided to 
 proceed according- to law. Done at — this — day &c. 
 I, N. Vicar g-eneral of the Arch-diocese of N. 
 
 N. Actuary." 
 
 "Consequently the same V. Rev. Vicar g-eneral, 
 having- seen the reasons for the appeal produced by 
 the said appellant. Rev. N., for his advocate,) pro- 
 nounced that they are leg-itimate in law; and to see 
 whether they are founded on fact, at the order of the 
 same vicar g-eneral, the said appellant. Rev. N., (or 
 his advocate) was called before the said V. Rev. 
 Vicar g-eneral, and he said he was ready to prove the 
 cause expressed in his bill of appeal and he men- 
 tioned N. and N. as witnesses to prove his first 
 
ACTS OF APPEAL. 403 
 
 article. (The actuary will record witnesses and 
 documents offered by the appellant to sustain his 
 appeal.) All of which were received and admitted 
 by the V. Rev. Vicar general of this arch-diocese, si 
 et in qiianttun and the said vicar g'eneral decided to 
 proceed further according* to law. Done at — this 
 — day of — A. D. — . 
 
 I, N. Vicar General of the Arch-diocese of N. 
 
 N. Actuary." 
 
 449. If the judge of appeal thinks the reasons for 
 appeal are not such for which the law allows an ap- 
 peal from an interlocutory sentence, instead of say- 
 ing: "He pronounced that they are legitimate in 
 law, as in the above number, the record will be: 
 
 "He pronounced the reasons for the appeal are not 
 legitimate in law; consequently he decreed to remit 
 the said appellant, Rev. N., to his ordinary judgx, 
 and he ordered that these original acts of the present 
 decree and of the process be sent to the aforesaid 
 ordinary judge. Done at — this — day of — A. D. — . 
 N. Vicar General of Arch-diocese of N. 
 
 N. Actuary." 
 
 450. When the reasons for the appeal are found 
 legitimate, the appellant must also show that the}^ 
 exist in fact. Taking the case of appeal against a 
 judge allowing enemies to be witnesses, mentioned 
 above in n. 419, the reason for appeal is sufficient in 
 law; but the appellant must show that they are 
 actual enemies. The acts will be thus written: 
 
 "On the — day of — A. D. — , at — , when the 
 said appellant, Rev. N. appeared before the V. Rev. 
 Vicar general of this arch-diocese, the latter decided 
 to proceed to the examination of witnesses and docu- 
 ments produced by the said appellant to show that 
 his cause subsisted in fact. Wherefore X., a witness 
 
404 LEGAL FORMULARY. 
 
 assig"ned to prove the tirst article was called, who 
 being" duly sworn, deposed and said: Q. — . A. — . " 
 
 The forms for examining* witnesses &c. are the 
 same as given in the preceding- chapters. The 
 process is substantially the same as in the lower 
 court. When the parties have rested their case, they 
 are cited to hear sentence. 
 
 451. Following- is a form for sentence in an appeal 
 from an interlocutory decree or sentence: 
 
 *'In the name of the Lord, amen. We, vicar g-en- 
 eral and ordinary judg-e of the arch-diocese of N., 
 having" seen the appeal interposed by Rev. N. an 
 accused person, concerning" an interlocutory sentence 
 passed by the V. Rev. N. vicar g^eneral and ordinary 
 judg"e of the diocese of N. on the — day of — A. d. 
 — ; having" seen the reasons advanced by the said 
 Rev. N. to sustain his cause; having" seen and 
 maturely considered the depositions of the witnesses 
 and other proofs offered by the appellant, by this 
 our sentence we pronounce, declare and say, that in- 
 terlocutory sentence was ill passed by the aforesaid 
 judg"e and the appeal is well taken. Wherefore we 
 call the aforesaid case from the V. Rev. N. vicar 
 g"eneral of the diocese of N. to our metropolitan 
 tribunal. Given at — this — day of — A. D. — . 
 
 N. Vicar General of Arch-diocese of N. 
 
 N. Actuary." 
 
 452. But if it is found that proof of the fact is not 
 sufficient and the sentence of the lower court is to be 
 sustained then the sentence will read: 
 
 "In the name (&c. to declare and say) declare and 
 say that interlocutory sentence was well passed by 
 the aforesaid judg"e, and an appeal was ill taken by the 
 said appellant, Rev. N. Wherefore we decree and 
 pronounce that notwithstanding" the aforesaid appeal, 
 
ADMITTING APPEAL. 405 
 
 the said judge should proceed with the case accord- 
 ing- to law. Given (&c. as above.)" 
 
 In case the lower judge is sustained all the acts of 
 the appeal should be sent down to him with the sen- 
 tence of the appellate court, and they are all to be 
 inserted in the acts of the case in the lower court. 
 But if the sentence is in favor of the appellant, the 
 court of appeal will hear the case from the point of 
 appeal and give final sentence as a court of first 
 instance. 
 
 453. When an appeal is taken from a definitive 
 sentence the acts of the appellate court will read: 
 
 "In the name of the Lord, amen. Since the Rev. 
 N. of the diocese of N. as appears from the notice of 
 appeal filed by him before the V. Rev. Vicar general 
 N. of the arch-diocese of N. has appealed against a 
 definitive sentence passed on him in a criminal case 
 by the V. Rev. N. vicar general of N.; and since he 
 presents the Rev. X., as his advocate and asks that 
 he be approved by the court of appeal with the in- 
 tention of prosecuting the said appeal; since, more- 
 ever, the original processual acts of the curia of N. 
 including the process, its summary, the defense and 
 the definitive sentence have been transmitted to and 
 are now before the said V. Rev. N., vicar general of 
 this arch-diocese; therefore the said V. Rev. N., vicar 
 general of this arch-diocese, called on me a sworn 
 notary to be actuary for this case and decreed to 
 proceed according to law in the case of the said 
 appeal. Done at — on the — day of — A. D. — . 
 N. Vicar General of the Arch-diocese of N. 
 
 N. Actuary." 
 
 "Consequently the aforesaid Rev. X. was ap- 
 proved and the aforesaid appellant Rev. N. was 
 ordered by the said V. Rev. Vicar general to present 
 what articles he had, if any, to show the injustice of 
 
406 LEGAL FORMULARY. 
 
 the aforesaid sentence from which he appealed. 
 Thereupon he presented some points in a writing- 
 
 which begins and ends , and which on the 
 
 order of the V. Rev. Vicar general was placed in the 
 
 acts numbered . Done at — this — day of — 
 
 A. D. — . N. Metropolitan Vicar General. 
 
 N. Actuary." 
 
 Thereafter the new testimony is introduced and 
 the trial conducted as in the lower court, the metro- 
 politan fiscal, or other as above, n. 447, representing 
 the lower court. If, however, the appellant has no 
 new testimony to present then the acts will read: 
 
 "Consequently (&c. to Thereupon.) But the ap- 
 pellant replied that he had nothing to add to what is 
 contained in the acts, from which the injustice of the 
 sentence will sufficiently appear. Done &c." 
 
 In this case the judg^e will examine the acts and 
 when ready will cite the parties for sentence. 
 
 454. It should be noted that the judge of appeal 
 becomes the judge of the principal cause and must 
 pass definitive sentence. Unlike the state courts he 
 does not order a new trial by the lower court, but 
 himself becomes the judg-e and gives sentence. Pol- 
 lowing* is a form for definitive sentence on appeal: 
 
 "Case of Diocese of N. vs. Rev. N. Sentence in 
 the second instance. 
 
 In the name of the Lord, amen. We, N. N., 
 vicar general of the arch-diocese of N., seated 
 in our tribunal, having seen and attentively 
 considered all and singular the things done in the 
 cause and causes tried before the V. Rev. N., Vicar 
 general of the diocese of N., against the Rev. N. 
 who was defamed (or accused) concerning- the crime 
 of (express crime or charges exactly;) having- like- 
 wise seen all things produced in law and fact in favor 
 
FINAL APPEAL SENTENCE. 407 
 
 of the said Rev. N.; having- seen also the definitive 
 sentence passed against him by the said V. Rev. 
 Vicar general and ordinary judge of the said diocese; 
 having finally seen the appeal interposed before this 
 metropolitan court, and having considered the rea- 
 sons, laws and proofs produced before us to sustain 
 the said appeal, and the argument of the fiscal pro- 
 curator against it; having seen what should be seen 
 and maturely considered what should be considered 
 in the matter, having- only God, the fountain of jus- 
 tice, before our eyes, by this our definitive sentence 
 which we give in writing, invoking the holy name of 
 Christ, we judge, say, pronounce and declare that 
 the sentence of the lower court was well passed and 
 the appeal ill taken. Wherefore we confirm the 
 sentence alread}^ pronounced by the judge of the dio- 
 cese of N. viz., that Rev. N. is guilty &c. (mention 
 crime) and therefore we condemn him to the punish- 
 ment imposed (express punishment exactly.) 
 
 Thus and every other best wa3\ This sentence was 
 passed, read and published at — this — day of — 
 A. D. — . Thus we have pronounced seated in our 
 tribunal. 
 
 N. Vicar General of the Arch-diocese of N. 
 
 N. Actuary." 
 
 The sentence will be entered in the acts and served 
 on the defendant by the hig-her court as in the lower 
 court. A copy will be sent to the judge from w^hom 
 the appeal was taken. 
 
 455. If the sentence of the lower court is to be re- 
 versed then after "we iudo-e — and declare" it will 
 read: 
 
 "That the sentence of the lower court w^as ill 
 passed and the appeal well taken. Wherefore w^e 
 reverse (or modif}^ the sentence pronounced by the 
 ordinary judge of the diocese of N. and we give sen- 
 tence that the Rev. N. is not found guilty nor pun- 
 
408 LEGAIv FORMUIvARY. 
 
 ishable by law; and therefore we absolve him from 
 further trial, and we impose perpetual silence on this 
 case. Thus and ever}^ other best way. This sentence 
 was given, read and published at — on this — '- day of 
 — A. D. — . Thus we have pronounced seated in 
 our tribunal. 
 
 N. Vicar General of Arch-diocese of N. 
 
 N. Actuary." 
 
 456. When an appeal has been deserted, the judg-e 
 of appeal, on application by the ^'udge of the lower 
 court or his representative, will issue a decree declar- 
 ing the appeal extinct. He should uot, however, 
 issue such a decree of his own motion. Following is 
 a form: 
 
 "On the — day of — A. D. — in — , the Rev. S., 
 fiscal procurator of this arch-diocese of N. appears 
 before the V. Rev. N., vicar general of this arch- 
 diocese and appellant judge in the case of the Diocese 
 of N. vs. Rev. N.; and the said fiscal procurator for 
 and in the name of the diocesan curia of N. shows 
 that on the — day of — A. D. — a notice of appeal 
 was filed by the said Rev. N. with this metropolitan 
 curia in the aforesaid case, and the said fiscal procu- 
 rator further shows that the time allowed by law, 
 in "Cum magnopere" art. 40, for the perfecting of 
 the appeal is now expired, that is thirty days from 
 
 , when this metropolitan curia ordered that the 
 
 appeal be perfected by the said Rev. N. appointing 
 an advocate to represent him; and the said fiscal pro- 
 curator further shows that no further action looking 
 to the perfecting of said appeal has been taken by 
 the said Rev. N., nor has any excuse been offered or 
 accepted by this court asking for an extension of the 
 peremptory term, nor has any such extension been 
 granted. Therefore the said fiscal procurator for 
 and in the name of the diocesan curia of N. asks and 
 insists that a decree be issued by this metropolitan 
 
EXTINCTION OF APPEAL. 409 
 
 curia declaring extinct the said appeal of the said 
 Rev. N., and referring- the sentence for execution 
 back to the said diocesan curia of N. I, S. fiscal 
 procurator ask as above. N. Actuary." 
 
 "The above application was presented and ad- 
 mitted, St et in quantum, and made of record on the 
 order of the said V. Rev. Vicar g-eneral, who decided 
 to proceed according- to law. Done at — this — 
 day of — A. D. — . 
 N. Vicar General, Arch-dioc. of N. N. Actuary." 
 
 "Consequently the same V. Rev. Vicar g-eneral, 
 having- carefully considered the above application for 
 the extinction of the appeal of Rev. N., issued a de- 
 cree as follows: 'In the name of the Lord, amen. 
 We, N. N., vicar g-eneral of the arch-diocese of N. 
 and ordinary judg-e, having- seen the notice of appeal 
 interposed by the Rev. N., an accused person, con- 
 victed in the diocesan curia of N. of the crime of — 
 and sentenced therein to (g-ive punishment); having- 
 considered attentively the decree of this metropolitan 
 curia ordering- the said Rev. N. to perfect his appeal 
 within the thirty days allowed by law, w^hich per- 
 emptory term in this case expired on — ; seeing-, 
 moreover, that the said appeal was not perfected 
 within the peremptory term and no excuse having- 
 been g-iven; we therefore on the motion and appli- 
 cation of the Rev. fiscal procurator of this metropol- 
 itan curia, for and in the name of the diocesan curia 
 of N., do hereby declare and decree that the afore- 
 said appeal of Rev. N. ag-ainst the sentence of the 
 diocesan curia of N. is extinct and we remand him, 
 the said Rev. N., back to the said diocesan curia for 
 the execution of the definitive sentence passed upon 
 him. Given at — on this — day of — A. D. — . 
 N. Vicar General, Arch-dioc. of N. N. Actuary." 
 
 The orig-iual acts of the diocesan curia will then 
 
 be returned to it, tog'ether with a copy of the acts of 
 
 appeal and of the above decree. 
 53 
 
CHAPTER XVII. 
 
 CIVIL PROCESS IN CHURCH COURTS. 
 
 457. Every process which is not criminal is called 
 civil; therefore w^henever action is taken not for pub- 
 lic punishment, but for any other purpose the pro- 
 cess is a civil one. Many points are common to both 
 the civil and criminal process. Hence it will be nec- 
 essary only to point out some special features of the 
 civil process and. g^ive forms for them. But first a 
 summary of the reg"ular civil process is g'iven. 
 
 458. The reg*ular civil process begins with the 
 libellus or filing- of the bill by the plaintiff. He ap- 
 pears personally or by his procurator before the 
 judge to whom he presents the bill signed by himself 
 wherein he asks that another give him something or 
 that something' be done for his benefit. This bill 
 must be clear, so that the defendant may know ex- 
 actly what he has to meet. If it is obscure the judge 
 ex officio is obliged to require that it be modified. 
 The plaintiff is obliged to present his bill in writing 
 and the judge should not admit the case without it. 
 {Cf. Lib. 2 Decret. /. j, c. /.) The judge may not 
 refuse to accept a proper bill of complaint. The bill 
 consists of three parts, the narrative of facts, the 
 basis or reason for concluding and the conclusion. 
 The narrative part should contain the name of the 
 judge or the official position of him before whom the 
 action is taken, the name of the plaintiff, the name 
 
 410 
 
DRAWING CIVIL BILL. 411 
 
 of the defendant and a summary of the facts, show- 
 ing" in a civil case just what and how much is asked. 
 In a criminal bill, such as is filed by the fiscal pro- 
 curator, it is also required that the place where and 
 the year and month when the crime was committed 
 be inserted. {Cf. form i)i n. J4.6, above.) 
 
 It is not necessary to insert the day of the crime. 
 But in a civil bill the place and time as a rule need 
 not be inserted; except in a civil bill for slander or 
 libel, wherein they must be inserted. (C/. Smalz- 
 g'rueber^ I. 2, t. j, n. /.) If the place and date are 
 omitted from a criminal bill or a civil bill for slander, 
 the bill is null and void even without objection b}^ 
 the defendant. i^Cf. Lex libellorum 3, ff. de accusa- 
 tionibus ; Doctores commiDiiter.) The kind of 
 action intended need not be expressed in the bill 
 before the church courts. 
 
 459. The conclusion, or just what is asked, must 
 of necessity be clearly expressed in a civil bill, for 
 the sentence must be based on this request and be 
 conformed to it. It is customary to add to the con- 
 clusion in a civil bill a saving* clause like the follow- 
 ing: "On all these matters I ask that law and jus- 
 tice be administered by every best w^ay and form 
 possible by law, statute or custom." But such a 
 clause cannot make good a bill null and void in essen- 
 tials, such as omitting to state exactly what is re- 
 quired or sued for from the defendant. But if the 
 principal thing is mentioned such a saving clause 
 will carry along' the accessories. The reason of the 
 claim must for validity be stated in a civil bill. 
 Hence it is not enough to state that the plaintiff sues 
 for a certain sum of money; but further it must be 
 
412 IvEGAL FORMULARY. 
 
 stated wh}^ he sues. For instance, because of a 
 promise to pay borrowed money, because of rent due 
 and unpaid, because of ownership of an article claimed 
 also by defendant. The judg-e is oblig-ed ex , officio 
 to refuse a civil bill in which the conclusion and rea- 
 son for concluding- are not clearly expressed. How- 
 ever in a criminal bill, neither the conclusion, nor 
 the reason for it need be expressed. For when a 
 crime has been committed, the law itself proclaims 
 the conclusion or punishment to be inflicted. 
 
 460. A civil bill may be amended in points not sub- 
 stantial with permission of the court at any time be- 
 fore the sentence, on condition that the expenses of 
 the other party caused by the amendment be paid 
 before the amendment is allowed. But if the thing- 
 asked for or the reason of asking- were chang-ed, the 
 chang-e would be substantial and cannot be made 
 after the answer of the defendant has been filed in 
 court, as is commonly held to-day. In such case a 
 new trial must be beg-un. But in any case, all ex- 
 penses of the other party must first be paid. As 
 the bill itself must necessarily be filed in writing-, so 
 for validity must all amendments be filed in writing-. 
 No one but the plaintiff himself or his procurator 
 can substantially chang-e his bill. His advocate has 
 no authority for such a matter. The bill and all 
 substantial amendments must be sig-ned by the 
 plaintiff who bring-s the suit, not by his advocate. 
 {Cf. Serial 2 grueher, I. 2, t. j, n. ij.) 
 
 461. When the bill of complaint is presented to 
 the judg-e, at the request of the plaintiff he issues a 
 citation to the defendant, or if a bishop, then to his 
 procurator, to appear and answer the bill within a 
 
AMENDING BILL. 413 
 
 certain time, usually twenty days for appearance 
 and twenty more days for the answer. At the same 
 time a copy of the bill, to be furnished in duplicate 
 by the plaintiff, is served on the defendant. (C/. 
 Reijfenstuel I. 5, t. /, n. 408.) This is the usual 
 practice to-day. 
 
 The citation issued to the defendant is to be served 
 personally if possible; otherwise in his place of usual 
 residence and in either case the messeng-er serving it 
 must certify to such service in his return. The 
 practice to-day, especially in the United States, is to 
 issue in civil cases only one peremptory summons or 
 citation and in it to warn the defendant that unless 
 he appears within the specified time and files his 
 answer, the bill of complaint will be taken for con- 
 fessed. This is the punishment of contumacy of the 
 defendant. However no declaration is made by the 
 judg-e, except on motion of the plaintiff. If after 
 declaration of default and consequent confession, the 
 defendant later appears and wishes to have the de- 
 fault set aside and to contest, he must first purg-e 
 himself of contempt by g-iving- a satisfactory reason 
 for not appearing- and must also pa}^ the costs of the 
 other party caused by his neg-lect. The judg-e may 
 then allow him to file his answer. 
 
 462. Before the defendant files his answer to the 
 bill, he may file certain exceptions, either first of all 
 and within twenty days contesting- the jurisdiction 
 of the jud^e, or showing- that the case should not be 
 heard because it is 7'es judicata, or ended b}^ pre- 
 scription, or for some other reason. The defendant 
 at this stag-e may also ask that the judg-e demand of 
 the complainant a deposit as security for costs. 
 
414 LEGAIv FORMULARY. 
 
 especiall}^ if the plaintiff cannot be reached after the 
 ecclesiastical trial is concluded. A prudent judg-e 
 will require a deposit or other security for costs 
 especially in the United States. Thi's may well be 
 said to take the place effectually of the jurmnentum 
 caluni7iice, no long-er in use with us. 
 
 463. When the appearance of the defendant has 
 been entered in the court, he files his answer in 
 duplicate to the bill of complaint, one copy for the 
 court and one for the plaintiff. This answer may 
 be filed in court at any time within the stated time 
 and the presence of the other party is not required. 
 This answer makes the litis contestatio. The 
 answer of the defendant should reply to the bill, 
 clause for clause, for what is not denied in the bill 
 is taken for confessed. Hence with us i\\^fositiones 
 are no long'er in use, since they are practically set- 
 tled in the bill and its answer. The points denied 
 in the answer are the points that must be proved by 
 testimony. Por this purpose a certain time is set 
 for the parties to present^their proofs and witnesses 
 are cited and examined in the presence of both 
 parties. If witnesses at a distant place are to be 
 examined it may be done by a commissioner, who 
 will inform both parties of the place and date of the 
 examination in order that they may be present. 
 
 464. Thereafter on the appointed day occurs the 
 publication of the testimony taken on both sides. 
 Then takes place the rebuttal testimony, which on 
 the other side is met by other testimony, all of which 
 is then published. When all proofs are in and the 
 parties declare that they rest their case, the judg-e 
 will declare the case closed. This conchisio in cmisa 
 
ANvSWER OF DEFENDANT. 415 
 
 shuts out further testimony by either side in a civil 
 case. The parties are then cited to appear on a cer- 
 tain date with their advocates and argue the case 
 before the judg^e, both orally and in writint^, on the 
 points of law and fact. The judge then takes the 
 case with all papers under advisement and when he 
 has prepared his sentence he orders the parties cited 
 for a certain day to hear it. On the appointed day 
 the judg-e seated will read his definitive sentence, 
 which must either condemn the defendant to do or 
 free him from doing- what was asked in the bill of 
 complaint. The judg^e cannot go outside the bill, 
 and in deciding- must depend only on the evidence 
 presented. The usual ten days is allowed after sen- 
 tence has been communicated to the parties before 
 its execution takes place. Within that time notice 
 of appeal may be given to the judg-e who g^ave the 
 sentence. Either party may appeal in a civil case. 
 465. The curia for a civil case is the vicar g-eneral 
 (or bishop) as ordinary judg-e and a notary to write 
 the acts. Each party has its advocate. The fiscal 
 procurator is not present except he acts as advocate 
 when the diocese is a party to the suit. The actu- 
 ary will write his acts as in a criminal case, simply 
 chang-ing" the names and recording- a civil instead of 
 a criminal case. The forms for an auditor or judg-e- 
 deleg-ate are the same. So also are the citations to 
 the parties' and to witnesses. The examination of 
 witnesses is in form the same in a civil as in a crim- 
 inal case except that to-day both parties are usually 
 present when the examination takes place. Remis- 
 sorial letters are also the same. The judgx in a 
 civil case nia}^ be challenged as in a criminal one and 
 
416 LJiGAIv FORMULARY. 
 
 the ensuing- process is similar. Arbiters are ap- 
 pointed and decide on the challeng-e, each party ap- 
 pointing- one arbiter, the judg-e choosing- neither. 
 The form for drawing- the beg-inning- and ending- of 
 the definitive sentence, for appealing- and for declar- 
 ing- the appeal extinct are practically the same in a 
 civil as in a criminal trial. They were g-iven in pre- 
 ceding- chapters of the third part of this work. 
 
 466. It may be convenient to g-ive a form for a 
 civil libellus. A property case is supposed: 
 
 "To the diocesan curia of (name the diocese.) 
 Most Reverend N. N., ordinary judg-e. 
 
 1^. Your orator, St. Mary's church and parish of 
 the town of Y — , a regfularly org-ani^ed and recog-- 
 nized ecclesiastico-juridical person, throug-h its rec- 
 tor, Rev. N., respectfully shows unto the curia that 
 on or about the first day of August, 1890, the church 
 and parish of St. John in the city of X, throug-h its 
 then pastor. Rev. A., borrowed of the church of St. 
 Mary in Y— the sum of $5,000. 
 
 2°. Your orator further shows that the said Rev. 
 A. g-ave his note as pastor for the said sum of $5,000, 
 in favor of St. Mary's church, said note to be due 
 and pavable in three years from- date, or Aug-. 1, 
 1893. 
 
 3^ Your orator further shows that the said note 
 has not been paid, nor any settlement made therefor, 
 althoug-h proper and explicit demand has been made 
 for the same. 
 
 4°. Your orator further shows that since the said 
 note was g-iven, i. e., since Aug-. 1. 1890, a chang-e of 
 rectors hasoccurredihSt. John'schurchof X, and that 
 the present rector of the said St. John's, Rev. W., has 
 refused to pay or even to acknowledg'e as due the 
 said note of $5,000 and the debt which it represents. 
 
 5°. Therefore your orator asks the aid of this 
 diocesan curia in the premises and that the above 
 
ANSWER OF DEFENDANT. 417 
 
 Rev. W. as rector of St. John's church, the defend- 
 ant in this suit, may appear and answer this your 
 orator's bill and that he may come to a fair and just 
 accounting- touching- the amount due to your orator 
 upon the note hereinbefore mentioned and the inter- 
 est accruing* thereon for the term of years since the 
 said note was g-iven. 
 
 6^ And that he may be decreed to pay forthwith to 
 your orator the amount which shall be found due to 
 him thereon and the interest thereon, tog'ether with 
 your orator's reasonable costs and chariifes in this 
 behalf sustained; and that your orator may have 
 such other and further relief in the premises as shall 
 be agfreeable to equity and g"ood conscience, and that 
 your orator may be gfranted whatever decrees, sen- 
 tences and commands may be necessar}'' or opportune 
 in the premises for the obtaining* his full rig^hts and 
 equities and all other remedies, not only as asked but 
 also as may be better conducive to obtaining- his full 
 rig^hts in any other way by law, statute or custom. 
 
 May it please the court, the premises being* con- 
 sidered, to gfrant to 3^our orator the writ of citation 
 to be issued out of and under the seal of this court 
 to be directed to the said Rev. W., rector of St. 
 John's church in X., the defendant herein, thereby 
 commanding" him on a certain day and' under a cer- 
 tain penalty personally to be and appear before this 
 court, then and there to answer the premises and to 
 stand to and abide by the order and decree of the 
 court herein. And vour orator will ever prav. 
 Dated Sept. 5, 1894. 
 Rev. N., rector of St. Mary's church for St. Mary's 
 
 Church in Y. A. B., Advocate for complainant." 
 
 467. Following- is a form for a citation in the 
 
 above case: 
 54 
 
418 LEGAIv FORMUIvARY. 
 
 "Diocesan Curia of N- 
 V. Rev. N. Judge. 
 Civil Department. 
 To the Rev. W., rector of St. John's church in 
 X., g-reeting-. You are hereby notified that a Bill of 
 Complaint has been filed ag-ainst you in the diocesan 
 curia of N — , civil department, by the Rev. N., rec- 
 tor of St. Mary's church in Y — as complainant, and 
 that if you desire to defend the same you are re- 
 quired to have your appearance entered in this court 
 v^ithin twenty days from this date and your written 
 answer filed with the chancellor or actuary of this 
 curia on or before the 15th day of October, 1894. 
 
 Hereof fail not under the penalties by law made 
 and provided, and especially that of taking the bill 
 for confessed. In testimony whereof. 
 
 N. N. Vicar General and Judge. 
 Given in N— this fifth day of Sept. 1894. 
 A. B., Advocate for Complainant. 
 
 N. Chancellor." 
 
 468. Polio wMUg is a form for answer to the bill: 
 
 "Rev. N., complainant, 
 
 vs. 
 Rev. W., defendant. 
 
 Diocesan Curia, of N — 
 
 V. Rev. N. N. Vicar General, Judge. 
 
 Civil Department. 
 
 Comes now the Rev. W. before this court to 
 
 answ^er as defendant the bill of complaint herein filed 
 
 by the Rev. N., and reserving all rights to take at 
 
 any time exceptions allowed by law, now for answer 
 
 says: 
 
 1° He admits that the church of St. Mary in Y — 
 is a regularly organized parish, but denies that the 
 church and parish of St. John in X — borrowed of 
 the said St. Mary's church the sum of $5,000. 
 
 2^ The defendant confesses ignorance as to 
 whether or not the said Rev. A. gave his note for 
 
ANSWER IN CIVIL CASE. 419 
 
 $5,000 in favor of St. Mary's church; but he deaies 
 that he, Rev. A., did or could have done such an act 
 as pastor of St. John's. 
 
 3° This defendant confesses ig^norance as to 
 whether or not the note in question has been paid. 
 
 4° This defendant admits that since Aug*. 1, 1890, 
 a chang'e of rectors has occurred in St. John's church, 
 and that the present rector, Rev. W. who is also de- 
 fendant in this case, has refused to pay the said note 
 for $5,000, and has even refused to acknowledg'e it 
 as due. 
 
 5^ Further this defendant answering* says that 
 the said sum of $5,000, alleg^ed to have been bor- 
 rowed for St. John's church, was never used for the 
 said St. John's church. Neither was the said Rev. 
 A. ever authorized by the proper diocesan and dele- 
 g'ated authority to borrow the said sum of $5,000 for 
 the said St. John's church. 
 
 The defendant, reserving* to himself the rig'ht to 
 make further answer when necessary to the bill of 
 complaint, now charg*es and respectfully represents 
 to the V. Rev. Judg*e that this suit was begun 
 by the complainant temerariousl}^ and without foun- 
 dation in law, much to the inconvenience, damag*e, 
 injury and pecuniar}^ loss and expense of the de- 
 fendant. He therefore humbly prays to be hence 
 dismissed with an allowance for his reasonable costs 
 and charg*es and damag*es in this behalf most wrong*- 
 
 fully sustained. Dated . 
 
 N. B., Advocate for Defendant. 
 
 N. W., Defendant." 
 
 469. The definitive sentence in the above civil case 
 may be drawn as follows: 
 
 "In the name of God, amen. We, N. N. ordinary 
 judg*e, seated in our tribunal, having* seen and care- 
 fully considered all and sing-ular the matters in the 
 cause tried before us concerning* the claim of St. 
 Mary's church of Y., throug'h its rector, Rev. N. 
 
420 LEGAL FORMULARY. 
 
 ag-ainst St. John's church of X. for the sum of $5,000 
 and interest claimed to be due and owing- because of 
 a note g-iven for said sum by the pastor of St. John's 
 church, sig-ned as pastor; having- seen and careful!}^ 
 considered the bill of complaint, the answer thereto, 
 and the depositions of witnesses, documents and 
 other proofs advanced for and against the said claim; 
 having heard and maturely weighed the arg-uments 
 on the law and facts as presented by each side; hav- 
 ing seen all that should be seen and considered all 
 that should be considered; having only God, the 
 fountain of justice, before our eyes, and invoking the 
 sacred name of Christ, by this our definitive sentence 
 which we g-ive in this writing-, we say, declare, pro- 
 nounce and give sentence that: 1^ The church of 
 St. Mary of Y. on Aug. 1, 1890, lent to Rev. A., 
 who was then pastor of St. John's church in X., the 
 sum of $5,000. 2^ That the said Rev. A. gave his 
 note for $5,000, which he signed as pastor of St. 
 John's church of X. 3^ The said note or sum of 
 $5,000 has not been repaid to St. Mary's church of 
 Y. But, considering- that the said St. John's church 
 had no canonical permission to borrow $5,000, and to 
 pledge itself for such sum; considering- that the said 
 $5,000 was not shown to have been used for St. 
 John's church of X.; considering- that a church is 
 not held for the dereliction of its pastor, according- 
 to rule 76 in Sexto "Delictum personae non debet in 
 detrimentum ecclesiae redundare;" therefore 4^ The 
 defendant in this case, the church of St. John in X., 
 through its pastor, Rev. W., is not oblig'ed or holden 
 to pay the said $5,000, nor any part thereof, and we 
 dismiss the said defendant with an allowance for his 
 legal costs herein sustained. Thus and every other 
 best way. This sentence was given, read and pub- 
 lished in — on the — day of — 18 — . Thus we have 
 pronounced seated in court. 
 
 N. Vicar General. 
 N. Actuary." 
 
CHAPTER XVIII. 
 
 FORMS FOR SUMMARY CIVIL PROCESS. 
 
 469. The procedure under "Cum maofnopere" is 
 of oblig-ation in all trials of criminal and disciplinary 
 causes of ecclesiastics in the United States. It is in 
 some respects a summary process, since on certain 
 points it shortens the ordinary trial. 
 
 In criminal processes ex notorio, not onl}^ some 
 but all the formalities of solemn or ordinary trials 
 are dispensed with, except those which re^^fard the 
 establishment of the notoriety and the citation for 
 the final sentence. Ag-ain in sentences ex informata 
 conscientia, all formalities whatever of ordinary 
 trials are omitted, and the sentences may be pro- 
 nounced without any trial or judicial formality what- 
 ever. In fact they are extra-judicial sentences. 
 
 But in civil cases, the ordinary procedure outlined 
 in the preceding- chapter should be followed, except 
 in the matters where b\^ pontifical constitution a 
 summary process is allowed. (C/. Clementiiia, Saepe 
 2, de Verboriim Significatione ; Clem. Dispendiosam 
 2, de Jiidiciis.) 
 
 470. A summary trial is one in which for the more 
 speedy termination of the process, certain formalities 
 are by law specifically allowed to be omitted. All 
 essential forms must be retained and the proofs must 
 be just as complete in summary as in ordinar}^ trials. 
 But according- to the above Clementine constitution 
 
 421 
 
422 LEGAL FORMULARY. 
 
 in a summary trial, 1'- no written libellus is required 
 and the complaint may be made orally provided it is 
 inserted in the acts; 2^ no litis contestatio strictly is 
 required, but when the jud^e has cited the defend- 
 ant he may take testimony; 3^ the proceeding's may 
 take place on court ferials, but not on Sundays or 
 holydays of oblig-ation; 4*^ no co7iclusio i7i causa is 
 necessary, and the final summary should be made as 
 short as possible; 5"^ no peremptory but only a 
 simple citation to hear sentence is necessary; 6° the 
 judge need not be seated in giving- sentence. How- 
 ever both parties must be cited for trial, the proofs 
 must be just as full and the rig-ht of defense just as 
 unimpaired as in ordinary, solemn trials. Legiti- 
 mate and reasonable exceptions and appeals must 
 also be allowed. 
 
 471. The causes in which the law mentioned above 
 allows a summary process are: All questions con- 
 cerning* elections to ecclesiastical offices or dig'nities; 
 appointments to parishes or offices in the church; 
 questions concerning" tithes or means of support for 
 incumbents of church positions; matrimonial causes. 
 But when there is question of the validity or millity 
 of a marriage then the special matrimonial process 
 ordered by Benedict XIV, Dei viiseratione, must be 
 followed. {Cf. Marriag-e Process in U. S. by Rev, 
 Dr. S. B. Smith. A very useful zuork.) 
 
 Likewise a special process was ordered by Bene- 
 dict XIV for causes concerning the nullity of a re- 
 ligious profession. A defensor is to be appointed in 
 the same way (n. 82 above) as for marriage cases. 
 {Cf, Bull, Si data77i; Bouix de Judiciis II, pg". 467.) 
 Finally, not only the above causes may be tried by 
 
EXCEPTING TO CANDIDATES. 423 
 
 summary process, but also all questions or causes 
 which depend or touch upon them. 
 
 In the same summary manner may be tried 1° causes 
 of the poor, of widows, orphans, stratig^ers and the 
 miserable; 2"^ causes of religious; 3° questions of 
 food, spoliation, deposit, rewards; 4° causes of 
 small moment and also such as will not admit of de- 
 lay because of imminent dang"er. 
 
 472. The actuary should be^in his acts in a sum- 
 mar}" case thus: "This is a sinnmary civil process 
 concerning" ex. g-. certain exceptions made af^i^ainst 
 the election (or nomination) of N. N. to the office of 
 
 ." Such a beg'inning' will at once give notice 
 
 that the process is summary, and mention of the 
 matter to be tried will at once make evident whether 
 or not the law allows a summ.ary process for such a 
 cause. The other acts are recorded as in ordinary 
 civil cases, omitting" those formalities specifically 
 allowed by law to be omitted, and inserting" 
 "" suniniarie' ' before ''front de jure" where that ex- 
 pression occurs. 
 
 473. Following is a form for entering an exception 
 against the nomination or election of a person to 
 office: 
 
 "Comes now the Rev. X. before the V. Rev. N., 
 vicar general of the Most Rev. Bishop N., and says 
 that great injury will result to the church if Rev. 
 D. is nominated or chosen to the office of (mention 
 the office, such as rector, canon, vicar general, 
 bishop); and he states further that there is grave 
 doubt whether he can be legalh^ chosen. Where- 
 fore to preclude all harm which might come to the 
 church from such a nomination or choice, whose 
 utility each one belonging to its body should procure, 
 
424 le:gaiv formulary. 
 
 he proposes ag'ainst the aforesaid Rev. D. the fol- 
 lowing* points of exception; and in these writing's 
 swears that he is not moved by any desire to calum- 
 niate nor any ill-will, passion or animosity against 
 the said Rev. D., but only by zealfor the public 
 welfare. Therefore also he does neither intend nor 
 wish that the said Rev. D. shall be punished for any- 
 thing* contained in these exceptions, but only that he 
 shall not be nominated or chosen to such dignity or 
 office. And he further protests that if proper inves- 
 tigation according to law is not made of his excep- 
 tions which he lawfully proposes, and a nomination 
 and choice is nevertheless in spite thereof made of 
 the said Rev. D. then the said nomination and choice 
 shall be null and of no value; and he appeals from it 
 to the superiors as by law necessary. The points of 
 exception are: 
 
 1° That the aforesaid Rev. D. is unfit and does 
 not know what is necessary for such an office, name- 
 ly, canon law and theology, and Latin. 
 
 2° That he was suspended formerly for cause. 
 
 3 That he is given to excessive drinking. 
 
 4^ That by a writing which through another he 
 had printed, he grossl}^ abused ecclesiastical and 
 apostolical authority, namely, (give place, date and 
 circumstance of crime.) The witnesses and proofs 
 to sustain the first point are: (Give names.) 
 
 Done this — day of — A. D. — , at — . I, X., ex- 
 cept, protest, insist and appeal as above." 
 
 It should be recollected that crimes may always 
 be urged by way of exception against the delinquent 
 seeking preferment. No prescription can be urged 
 by him in such a case even thoug'h it migflit effectually 
 estop a criminal proceeding-. {See f. 4g4 belozu.) 
 
 474. After a summary civil trial on this bill of ex- 
 ceptions or complaint, the judge may g'ive sentence 
 in the following" form: 
 
DECISION OF EXCEPTIONS. 425 
 
 "In the name of God, amen. We, N., ordinary 
 (deleg"ated) judg-e, havin"- seen and maturely consid- 
 ered all and sing"ular the matters in the cause tried 
 before us concerning the exceptions made civilh' by 
 Rev. X. against the nomination or choice of Rev. D. 
 
 for the office of ; havino- seen the citation to the 
 
 said Rev. D., the depositions of witnesses and other 
 proofs advanced for and ag"ainst the said exceptions; 
 having- heard and carefully weighed the allegations 
 of both parties; having considered all that should 
 be considered; having only God before our eyes and 
 invoking the sacred name of Christ, by this our 
 definitive sentence which we also give in writing, we 
 say, declare, pronounce and give sentence that: 
 1° A canonical impediment has been conclusively 
 proved to exist why Rev. D. should be repelled from 
 the office of — ; namel\% that Rev. D. does not know 
 canon law, which knowledge is required for the said 
 office and therefore that according to the sacred 
 canons [lib. 7, /. 6, c. 7) he, the said Rev. D., is not 
 
 eligible to the said office of . 2"" That Rev. D. 
 
 is shown guilty of having used and published in- 
 jurious language against ecclesiastical and apostolic 
 authority and therefore is unfit to be rewarded by 
 promotion to the office of . Wherefore we de- 
 clare that he cannot be nominated or chosen to the 
 
 office of ; and if he is chosen we pronounce that 
 
 the choice will be ipso jure null. Thus and every 
 other best way. This sentence was given, read and 
 published this — day of — A. D. — at — . Thus we 
 pronounced seated in our tribunal. N. Judge. 
 
 N. Actuary." 
 
 475. When church property is to be alienated the 
 summary process may be used in establishing the 
 necessity or evident utility for alienation. The de- 
 cision or decree in the matter may then be draw^n 
 according- to the forms g-iven above in n. 324, 325. 
 
 55 
 
426 IvEGAIv FORMULARY. 
 
 4 
 
 Following is a form for a sentence or decree in a 
 cause of nullity of relig'ious profession: 
 
 "We, Bishop of N., considering* the petition and 
 instance of Sister N., named in the world A. B., a 
 professed relig'ious (or novice) in the convent of N., 
 and dwelling in cloister v^ith the habit, which peti- 
 tion concerning the nullity of her profession was 
 leg*ally introduced before us within five years from 
 said profession; considering* the proofs advanced for 
 her side and the whole process formulated in the 
 case, from which it is established that force was 
 used, and fear sufficient to move a strong* man, was 
 induced by C. in order to force the said A. B. to 
 take the habit of a relig*ious and make profession in 
 the said convent; we say and declare that the pro- 
 fession (or receiving* the habit) made by the said A. 
 B. was and is null, and that she is not bound to the 
 observance of the rule of the said convent and that 
 consequently it was and is allowed her to return to 
 the world without violation of her vows, and to leave 
 the cloister, and we willing*ly g'rant such leave. 
 Given at — on &c. 
 
 [h. s.] N. Bishop of N. 
 
 N. Actuary." 
 
 If the relig*ious community is subject immediately 
 to the bishop he alone is the judge; but if it has its 
 own superior, as in the case of men, then the relig*- 
 ious superior with the bishop will g*ive a joint 
 sentence. (C/. Benedict XIV ^ Bull, Si da tarn.) 
 
CHAPTER XIX. 
 
 RUIvES FOR PUNISHMENTS. 
 
 476. A punishment in g^eneral is an evil, a pain or 
 a suffering", whether of body or soul, inflicted for a 
 crime. There can be no punishment when there is 
 no crime: "Sine culpa non est aliquis puniendus." 
 {Rule 2^ in d°) Ecclesiastical punishments are in- 
 flicted for crimes, not sins. By a crime in its leg^al 
 or canonical sense is meant not every sin but only 
 certain g^rave sins to which the law of the church 
 has attached a punishment for the external forum. 
 Certain punishments or remedies are z-aW^A preven- 
 tive because they aim at preventing- the serious fall 
 or repetition of a fall in those inclined to crimes. 
 Other punishments are called repressive because 
 they aim to repress crimes in one fallen and to bring- 
 him back to the rig-ht way. 
 
 477. For some crimes the law itself specifically^ 
 determines the punishment, which is then called 
 ordinary. For other crimes the law enacts that they 
 are punishable, and therefore enacts a penal sanc- 
 tion, but it does not specify the punishment, leaving- 
 it to the judg-ment of the judg-e to inflict what he 
 deems proper. The judg-e in punishing- must alwa\^s 
 quote the law under which he inflicts punishment. 
 Ordinary punishments are enacted either as latce 
 sententicF which are incurred ipso facto for the inter- 
 nal forum when the crime is committed, or ferejidce 
 
428 LEGAL FORMULARY. 
 
 sententm, which require a trial and sentence b}^ the 
 judg^e. A crime to be punishable must be wilful, 
 external, personally committed, mortal or g^rievous, 
 complete, juridically proved, and desig^nated in law 
 as punishable. - 
 
 478. The rules following may be helpful to judg-es: 
 1° Only the supreme lawgiver, the Pope, can intro- 
 duce a new ecclesiastical punishment. Bishops must 
 use those sanctioned by the canons. 2° Punishments 
 or remedies sanctioned by the canons are of two 
 kinds, preventive and repressive. 3° The judge 
 should always bear in mind that the reform of the 
 criminal is the aim of the church in punishing even 
 by vindicatory sentences. 4° Therefore, it follows 
 that when an ecclesiastic falls into crime, nothing as 
 a rule should be done, if he amends and repairs his 
 offense. But if he persists in his criminal course, as 
 a rule he should be first warned at least twice; then 
 if the admonitions prove of no avail he should be 
 given the precept; if even this is not effective, he 
 should be put on trial, and if convicted be punished 
 viedicinally, that is, by censures; finally, if even these 
 fail to reform him, vindicator}^ punishments may 
 follow. 
 
 479. However, 5° where the crime committed is of 
 g'reat enormity and it is evident that the delinquent 
 acted with malice prepense, or also where the great- 
 ness of the scandal given requires it, the criminal 
 trial may at once be beg*un by the fiscal procurator 
 filing his complaint, without the previous admoni- 
 tions or precept having* been g-iven by the bishop. 
 On conviction, vindicatory punishment, according to 
 the canons, may at once be inflicted on the criminal. 
 
RULES FOR PUNISHMENTS. 429 
 
 (C/. '^Cuin 7na§^)iopereJ" art. ii ; III Coiot. Bait, 
 n. 300.) 6^ In gfeneral it belong"s to the ordinary to 
 assess after trial what punishment he deems best 
 adapted for the case, whether onl}^ preventive or re- 
 pressive, and also the specific preventive or repres- 
 sive punishment. 7° But where the law clearly 
 states what punishment should be inflicted, the 
 judg'e should not chang-e it except for g^rave reason. 
 8° The judg-e should always incline to mercy rather 
 than to. severity. 9° Finally it should be remem- 
 bered that when a crime or fault has once been pun- 
 ished even by a preventive remedy, such as a retreat, 
 it cannot a^ain be punished; althoug'h the crime and 
 its punishment may be introduced as evidence in a 
 new case. {Reg-ula juris 8j in 6°.) 
 
 480. The chief preventive remedies or punishments 
 are, spiritual exercises, the admonitions and the 
 canonical precept. {Cum niag'noperc , art. 4.) The 
 spiritual retreat here meant is not the common re- 
 treat made by the diocesan clerg-y, but a special one 
 imposed on an ecclesiastic by the ordinary. Hence 
 this retreat cannot be imposed except for an offense 
 or some other action which is proximate to an 
 offense and partakes of its nature. The offense, 
 however, must be not occult, but external and known 
 to others. {Cf. Acta S. Sedis, vol. ij. pg. 377.) 
 The retreat should be imposed in writing*, and the 
 reason for it specified. Forms for the admonitions 
 and the precept were g-iven in a preceding* chapter n. 
 331 and 332. The following- form of letter may be 
 
 used in imposing" the retreat: 
 
 (Place and date.) 
 "Reverend Sir: — 
 
 Having maturely considered in itself and its cir- 
 
430 LEGAL FORMULARY. 
 
 cumstances the offense which you have committed, 
 as shown by proofs in our possession, viz., (state the 
 offense), We deem it wise and prudent to impose a 
 preventive remedy, as in "Cum mag'nopere" art. 
 4, and We therefore instruct you to make a spiritual 
 retreat of three (or more) days in (state place) at 
 your own expense; and We further order that you 
 file with us within fifteen days (state time) from the 
 date of these letters a certificate from the superior 
 of the said institute to the effect that you have made 
 the said prescribed retreat. This do and may God 
 have you in his holy keeping*. 
 
 Yours faithfully in Christ, 
 To Rev. N. N. N. N. Bishop of N." 
 
 481. The above preventive remedies may be in- 
 flicted after a summary investigation as stated above 
 in n. 341. If it is necessary to inflict other and 
 repressive punishments, the process outlined in 
 "Cum mag-nopere" art. 6, and following, must be 
 used. It is left to the judgment of the ordinar}^ to 
 impose by his sentence after trial the repressive 
 punishment he deems best adapted in the circum- 
 stances. However it must not be excessive under 
 pain of nullity. While all repressive punishments 
 have in view the reform of the delinquent, still they 
 are divided in medicinal and vindicatory. The 
 former are called censures, the chief aim of which is 
 to curb and break the contumacy of the delinquent; 
 the latter, or vindicatory punishments have the vin- 
 dication of the law and the public good as their chief 
 object. 
 
 482. There are three repressive medicinal punish- 
 ments or censures, namely, excommunication, sus- 
 pension and interdict. They are designed chiefly 
 against obstinate persistence in crime; hence a per- 
 
RULES FOR CENSURES. 431 
 
 son to be liable to any of these censures should not 
 only be g"uilty of crime but of persistence in it after 
 having been duly warned. This warning- which 
 must precede the punishment can emanate either 
 from the law itself or from the superior. Hence a 
 person may become contumacious either when he 
 does not heed the vvarnino- of his superior addressed 
 to him individually or when he violates an ecclesias- 
 tical law with full knowledge of the law and of the 
 annexed censure. Censures are either lalce ov fer- 
 endcp sententice ; the former being incurred in foro 
 intcrno by the very fact of committing- the crime, the 
 latter being* incurred only after sentence of the ordi- 
 nary or superior. But in order that a sentence latce 
 sententice may bind in foro externo a declaratory 
 sentence of the censure must be g^iven by the sup- 
 erior and this must be preceded by a citation to the 
 delinquent to show cause why the sentence declara- 
 tory of the censure should not be passed. A censure 
 which is alj homine or ferendcB sententice^ for validitv 
 requires previous warning's and a trial before it is 
 inflicted. 
 
 483. Since these censures are intended to break the 
 obstinacy or contumacy of the delinquent, they 
 should be inflicted indeterminately as to time. But 
 suspension and interdict ma}^ also be inflicted as vin- 
 dicatory punishments, not as censures. In such a 
 case they may be imposed for a set time, but in the 
 sentence it should be stated that the suspension or 
 interdict is a punishment, not a censure. However, 
 excommunication can never be thus inflicted, for it 
 is never anything- but a censure aud must be 
 indeterminate. 
 
432 IvEGAIv FORMULARY. 
 
 484. Following- are some rules reg-arding- censures: 
 1° It is the unanimous teaching" of canonists that 
 censures can be inflicted validly only for gfrave of- 
 fenses. 2° A censure can never be' inflicted for a 
 venial fault. 3° Censures are always very severe 
 punishments even if inflicted for only a few days. 
 4^ Censures cannot be imposed, even for gfrave of- 
 fenses, except after all other milder punishments 
 have been applied and failed to produce any effect. 
 {Cf. Benedict XIV De Synodo, I. lo, c. /, n. 2.) 
 5^ Censures are not to be inflicted even for the 
 g-reatest crimes, unless the delinquent has openly and 
 incontestibly shown his incorrig-ible and obstinate 
 persistence in crime. {Cf. Fessler, der Kirchenbann 
 ^g. ly ; Kober, der Kirchenbann, -pg-. i/j.^; Smith, 
 Eleynents III, n. 20J0.) This incorrig-ibility is 
 shown by the delinquent breaking* the canonical pre- 
 cept or disreg^arding* several admonitions, the g^iving- 
 and the disreg^arding- of which precept or admonition 
 must be judicially shown. In other words, censures 
 cannot be inflicted until preventive remedies have 
 been tried in vain. 6° Censures, as such, cannot be 
 inflicted for crimes, which are entirely past; thoug^h 
 vindicatory punishment may be imposed. 7° A 
 bishop, by general mandate on a g^rave matter either 
 in or out of synod, may impose a censure on any one 
 who in the future will violate this mandate, and the 
 censure may even be, latce sententiae. Further in a 
 particular case by way of individual sentence it is 
 certain that a bishop may threaten for g^ood reasons 
 a censure ferendae sententiae. But it is g^enerally 
 held that a bishop cannot even validly inflict by 
 special sentence on an individual a correctional puu- 
 
RULES KOK CENSURES. 433 
 
 ishment or censure to be incurred if)So facto for 
 future crimes. {Cf. Caf>. Romana ^^ de sent, exami. 
 m d°,* Glossa in cap. cit. v. f2itnris\ Glossa in cap. 
 2 de const, in 6°, i\ conimiserunt ; Rota, Enchir. 
 pg-. 2yj) 8° Even if it is held that a bishop may 
 inflict such a particular sentence latae sententiae for 
 future crimes, the censure has no effect in foro ex- 
 terno until juridically declared by sentence after 
 citation to the delinquent to show cause. 9° For- 
 merly three, but to-day two or at least one peremp- 
 tory warning- are required before a censure may be 
 inflicted which is ab homine, or a J2ire but feroidae 
 sententiae. In case of censure a jnre et latae sen- 
 tentiae the very law is a constant warning- and none 
 other is required. However, a citation to the delin- 
 quent to show cause why the declaratory sentence 
 should not be passed, is an essential condition for 
 validity. (C/. n. jj^, above: also Smith, El cm. n. 
 2o8y ; Walter, Canon Lazu, pg". 2'/4\ Smalzgrueber, 
 I. 2, t. i/j., n. jj ; Santi, /. 5, /. jg, )i. i^; Pieran- 
 tonelli, Praxis, t. 6, n. ly, zuho is emphatic.) 
 
 485. It may be asked whether the so-called "with- 
 drawal of faculties" is a censure. In the first place 
 the expression is uncanonical and not authorized by 
 the canons; hence it appears an attempt to introduce 
 a new punishment or censure, which can only be done 
 by the supreme authority. The "Cum mag-nopere" 
 art. 1, distinctly says that the ordinary is to use 
 only "remedies established b}^ the canons." (6/'. 
 Cap. I, de Off. ordin.) The canons do not mention 
 a "withdrawal of faculties." Moreover, there is 
 no certainty of what is meant b}^ the expression. 
 
 On consultation five different canonists g-ave five 
 56 
 
434 LEGAIv FORMULARY. 
 
 different answers. Hence the expression, "with- 
 drawal of faculties," "faculties will cease to be 
 valid," is va^ue and indefinite; and therefore inef- 
 fectual. {Cf. Sitarez, de cens. disp. j-, sect. 2, n. 5/ 
 Pierantonclli^ Praxis^ t. 6, n. 21.^ The Apostolic 
 Deleg'ate, in g-iving" sentence, nomine S. Sedis, on 
 June 16, 1897, held: "Dubitari potest an per dictam 
 phrasim 'withdrawal of faculties' veniat siispensio 
 proprie dicta. Evt cum in punitivis strictior et benig-- 
 nior interpretatio sit adhibenda, non suspensionem 
 sed potius simpliciter cessationem a S. Miss2e sacri- 
 ficio importare videtur." Hence it surely is no cen- 
 sure, and violation of the prohibition does not pro- 
 duce the effects entailed by violating- censures. 
 Since the "withdrawal of faculties" is certainly not 
 a censure, if it is anything, it must be a repressive 
 punishment. Therefore it cannot be inflicted except 
 after trial. A prudent judg-e will not use the ex- 
 pression, but will specify exactly the canonical cen- 
 sure or punishment he intends to inflict, because a 
 delinquent may with impunity ignore an uncanonical 
 punishment or an illeg^al censure. Further, such a 
 "withdrawal," since it is not a suspension, has no 
 force whatever outside the diocese of the bishop in- 
 flicting it, and a priest thus innodated may licitly 
 say mass in the diocese of another bishop and receive 
 and exercise jurisdiction therein without respect to 
 such "withdrawal." 
 
CHAPTER XX. 
 
 FORMS FOR CENSURES. EXCOMMUNICATION, SUS- 
 PENSION, INTERDICT. 
 
 486. Kxcommunication is the "expulsion from the 
 external and internal membership of the church, the 
 complete withdrawal of all g'races and privileg'es 
 acquired by baptism," or a^ain it is defined "as a 
 correctional punishment instituted b}" the church by 
 which the excommunicate is separated from the 
 communion or fellowship of the faithful." Thus if 
 the excommunicated person is an ecclesiastic he loses 
 also all jurisdiction and becomes entirely suspended 
 from office and benefice. According* to present law 
 when a person has been publicly excommunicated by 
 name or denounced by name as excommunicated, 
 then must he be avoided by all the faithful. The 
 publication must be made officially and publicly, e. g., 
 by posting the placard on the church doors or by 
 announcing" it in the parish church during- the time 
 of service. 
 
 487. Excommunication is considered onl}- a tem- 
 porary state and is inflicted indeterminately, so that 
 as soon as repentance occurs, the censure should be 
 withdrawn. Hence excommunication while sus- 
 pending* does not ipso facto deprive an ecclesiastic of 
 his office or benefice. It is disputed whether he for- 
 feits the income of his benefice ipso facto or only 
 
 435 
 
436 LKGAL FORMULARY. 
 
 after sentence of the judg-e to that effect. However, 
 the law says that persons who are' suspended, ex- 
 communicated or interdicted, if they obstinately 
 remain a year or long^er in their censure and do not 
 seek release from it, shall be deprived of their 
 offices or benefices. {Cap. 8, de cet. et qiial.; Can. 
 j6, c. II, q. J.) This deprivation must be effected 
 by a sentence after citation to show cause. 
 
 488. In excommunications and other censures a 
 jure et latce sentefitice the judg-e or superior before 
 making" a declaratory sentence at the instance of the 
 fiscal procurator is oblig-ed for validity to issue a 
 citation to the delinquent to show cause why the ex- 
 communication should not be declared. (See n. 334 
 above.) Following is a form for such warning- and 
 citation: 
 
 "We, vicar general of the Most Rev. N., Bishop 
 of N., do hereby require, admonish and cite N. N. 
 within six days from the date of these letters, to ap- 
 pear and show cause, if he has any, why he should 
 not be declared and denounced to have fallen into 
 the excommunication specially reserved to the Holy 
 See in the bull "Apostolicae Sedis," n. 6, because 
 of (state reason) 'impeding- directly or indirectly the 
 exercise of ecclesiastical jurisdiction;' which term of 
 six days having elapsed, if he has given no satisfac- 
 tory excuse, on the first juridical day immediately 
 following, he shall be declared and denounced pub- 
 licly excommunicated without further warning or 
 citation. Given at — on the — day of — A. D. — . 
 [l. s.] . N. Vicar General. 
 
 N. Actuary," 
 
 The citation should specify the precise excommun- 
 ication incurred, such as g-iven above, or that for 
 imposing violent hands on a cleric, which is simply 
 
DECLARING EXCOMMUNICATION. 437 
 
 reserved to the Holy See, n. 2, or whatever other is 
 to be denounced. The citation should be lec^all}' 
 served, and on the person if possible; otherwise in 
 his place of usual residence. In the United States, 
 it may be served also by regfistered mail. {Cum 
 magnopere. Art. /^.) Of course, the jud^e must 
 have leg^al proof of the fact for which excommunica- 
 tion is inflicted. 
 
 489. Following" is the form for the declaratory 
 sentence of excommunication a jure et latae sententiae\ 
 
 "Considering- the report and motion of our fiscal 
 procurator, the depositions of witnesses and the law 
 cited and the whole process formulated in our curia 
 ag^ainst N. N. accused of impeding- directly or indi- 
 rectly the exercise of ecclesiastical jurisdiction in 
 resisting- the Most Rev. Bishop of N. [or accused of 
 laying' violent hands on the ecclesiastic X., or state 
 other-reason); considering- the canonical warning- and 
 citation g-iven and served on the said accused to 
 show cause why he should not be declared to have 
 fallen into excommunication, and nothing* being- 
 alleg-ed to excuse him; by this our declarator}^ sen- 
 tence we say and pronounce that N. N. has fallen 
 into major excommunication specially reserved to 
 the Holy See, contained in the bull "Apostolicse 
 Sedis," and therefore w^e order that placards be 
 affixed in public places ag-ainst him that he may be 
 avoided by all, and be denounced as excommunicated, 
 as we hereby denounce him. This and every other 
 best way. Done at — on &c. 
 
 N. Vicar General; 
 N. Actuar3^" 
 
 490. Following- is a form for notice or placard to 
 be affixed in the usual places such as on the doors of 
 the cathedral and parish churches, in order to pub- 
 lish the excommunication: 
 
438 LEGAL FORMULARY. 
 
 "Hereby N. N. by our ordinary authority is de- 
 nounced as excommunicated by major excommunica- 
 tion specially reserved to the Holy See, and he is 
 separated from intercourse and comrnunion with the 
 faithful and deprived of participation in the sacra- 
 ments and the suffrag-es of the church, and of chris- 
 tian burial in case of death; because he directly or 
 indirectly impeded the exercise of ecclesiastical juris- 
 diction (or state other reason.) In order therefore 
 that he may be shunned by all, as we hereby order 
 him to be shunned, we have ordered these presents 
 affixed and published; and so let it be until he shall 
 merit absolution from the Apostolic See. Given at 
 — on &c. 
 
 [l. s.] N. Vicar General. 
 
 N. Actuary." 
 
 491. When not onh^ the crime but also the con- 
 tumacy of the delinquent is surely notorious and the 
 excommunication, or other censure, is a jure et latae 
 sententiae, no citation to show cause is required be- 
 fore a declaratory sentence is passed and published. 
 But this notoriety is then made evident in the decree 
 itself. 
 
 Following- is the wording- of such a declaratory 
 sentence lately issued by the Holy See itself: 
 
 DECREE OF EXCOMMUNICATION. 
 
 Whereas, It has been made known to the Holy 
 See from undoubted documents that the priest, N. 
 N., by orig-in a Pole, now being* in the arch- diocese 
 of Chicag-o, has contumaciously rebelled ag-ainst 
 leg-itimate ecclesiastical authority, and moreover 
 calls himself Bishop of the Catholic Independent 
 Diocese of Chicag-o, and has published a letter which 
 he calls a pastoral, in which he says that he received 
 episcopal consecration from certain heretical bishops 
 
MONITION before; CENSURE. 439 
 
 in Switzerland; our Most Holy Father, Pope Leo 
 XIII, in an audience of the twent3^-sixth day of 
 April, 1898, ordered that in his name, by the present 
 decree of this Sacred Cong-relation De Propaganda 
 Fide, it should be declared that the pseudo-Bishop 
 N. N. has incurred "Major E^xcommunication" re- 
 served in the Roman Constitution "Apostolical Sedis. " 
 Moreover, His Holiness commands that this sentence 
 of excommunication be published with proper in- 
 structions not only by the Ordinary of Chicag-o in 
 his diocese, but also by each and every one of the 
 Ordinaries in the United States of North America. 
 Given at Rome, from the Palace of the Sacred 
 Cong-reg-ation De Propag^anda Fide, on the second 
 day of May, 1898. 
 
 M. Card. Ledochowski, Prefect. 
 [seal.] a. Archbishop of Larissa, Secretary." 
 
 492. Following- is a form for the monitions before 
 inflicting- a censure ab Jioinine or ferendae seutentiae 
 laid down in law: ^ 
 
 "N. Episcopus N. {Vel) N. vicarius g-eneralis 
 Revdo N. N. Moneris tu, Rev. Dne, ad dimitten- 
 dam et ejiciendam in termino trium dierum, e domo 
 tuai solitse habitationis mulierem N. tuam concubi- 
 nam, ut nobis constat, et ab ea omnino te separan- 
 dum, et abstinendum a consuetudine cum ea forni- 
 candi, sub poena excommunicationis (suspensionis); 
 et hoc primo et pro prima canonica nionitone, instante 
 promotore fiscali. Datum &c. 
 
 [iv. s.] N. Episcopus (vel vicarius g*en.) N. 
 
 N. Actuarius." 
 
 It is of course necessary that certaint}^ of the fact 
 or notoriety be had before any monition can be g-iven. 
 If the first warning- is not heeded a second and a 
 third should be g-iven. "Et hoc secundo et pro 
 secunda canonica monitione; et hoc tertio et pro 
 
440 LKGAL FORMULARY. 
 
 tertia canonicaet ultima peremptoria monitione &c." 
 If contumacy is shown by neg"lectin^ the peremptory 
 warning*, excommunication may be declared without 
 further citation. Other punishments may also be 
 inflicted on clerics, following- the order laid down in 
 Cap. 14 sess. 25, de refor. of the Council of Trent. 
 
 493. When the ordinary threatens censures by 
 virtue of a decree of the Holy See of which he is only 
 the executor, since there is no appeal from the de- 
 cree, he may use this form for citation, after the fis- 
 cal procurator has prepared the acts and the actuary 
 placed the decree in them: 
 
 "L/et N. be cited and admonished and he is so 
 cited and admonished to make answer on the first 
 day ag-ainst the rescript or decree of the S. Cong", de 
 Propag-anda, emanating; from the cause of N. and 
 found in authentic form in the acts, which answer is 
 ordered for the first day after the date of this; and 
 on the second day immediately following- the date of 
 this he is cited to show cause why he should not be 
 excommunicated; and on the third day likewise 
 immediately following- the date of this, he is cited to 
 see himself excommunicated, declared excommuni- 
 cated and so denounced, without further citation or 
 warning-. Given &c. 
 
 [iv..s.] N. Bishop of N. 
 
 N. Actuary." 
 
 494. When a person has remained under censure 
 for a year without sig-ns of repentance he may be 
 cited as suspected of heresy and insordescent in cen- 
 sure. Following- is a form: 
 
 "Let N. be cited and warned and he is hereby 
 cited to appear and answer concerning his faith and 
 to purg-e himself of the suspicion of heresy within 
 the peremptory term of — — days; otherwise, this 
 
SUSPENSION. 441 
 
 term having- elapsed, he is cited to see himself de- 
 clared insordescent in censures and to be a^ain ex- 
 communicated. Given &c." 
 
 In a similar way a person insordescent in censure 
 may be deprived of his benefice, after warning. 
 
 495. Suspension is a "censure by which an eccle- 
 siastic who is gruilty of crime is temporarily deprived 
 in whole or in part of the use or power which he 
 possesses, either by reason of his order, or of his of- 
 fice or of his benefice or income." Suspension may 
 be from office only or from office and benefice. The 
 later is a total suspension. But when it is from 
 either or from some act pertaining- to either, it is 
 called partial. Thus suspension may be ah ordine 
 and still a priest retains jurisdiction. Ag'ain it may 
 be from one or another act of order or of jurisdiction. 
 Hence in passing" sentence or declaring- the censure, 
 the judg-e must be careful to specify the extent of the 
 suspension. Suspension from benefice deprives the 
 incumbent only of the fruits and the administration 
 of the benefice, but not of the title to it. An admin- 
 istrator must in such case be appointed. 
 
 4%. For inflicting- suspension as a censure, the ad- 
 monition and the precept, or two canonical warning-s, 
 and in either case the trial, are required; but when it 
 is inflicted as a vindicative punishment only the trial 
 need proceed. If the suspension is laid down in the 
 law and incurred ipso facto, a citation to show cause 
 why it should not be published is all that is required 
 before the declaratory sentence. One exception is 
 made for occult crimes by the council of Trent, which 
 allows bishops, not their vicars g-eneral, to suspend 
 clerics from office, not from benefice, by the extraor- 
 
 57 
 
442 -^ IvKGAIv FORMULARY. 
 
 dinary procedure called ex informata conscientia^ 
 without any admonition or trial preceding*. A priest 
 thus suspended from the cure of souls retains pos- 
 session of his parish, but must supply a reasonable 
 support for a vicar, to be in this case appointed by 
 the bishop. No appeal lies ag^ainst a suspension ex 
 inforinata coiiscientia, but only a recourse to the 
 Holy See or with us also to the Apostolic Deleg'ation. 
 
 497. Following- is a form for suspension ex in- 
 /oi'mata conscientia, 
 
 "It being- known to Us that Rev. N., a priest, is 
 g-uilty of crime, for reasons which rig-htly deter- 
 mine Us and for which we are ready to g-ive an ac- 
 count to God and the Holy See when required, b}^ 
 virtue of the faculty g-ranted by the S. Council of 
 Trent, sess. 14, c. 1, de ref. and ex informata consci- 
 e7itia. We suspend a divinis for six months the said 
 priest. Rev. N., and declare him suspended and 
 order the decree of suspension served on him. 
 Given &c. 
 
 [iv. s.] N. Bishop of N. 
 
 N. Actuary." 
 
 498. Following- is a form for declaring- a suspen- 
 sion incurred ipso facto in "Apostolicae Sedis," n. 2, 
 after a citation to the delinquent to show cause why 
 declaratory sentence should not be passed. In this 
 case the bishop has jurisdiction also over reg-ulars: 
 
 "Considering- the recourse of Rev. N., rector of 
 N — , and the report of our fiscal procurator, and in- 
 formation being- had from which it is certain that 
 Rev. X. assisted at and blessed the marriag-e of N. 
 and N. who are parishioners of N., and considering- 
 that Rev. X. did this without any permission of 
 Rev. N., the pastor of N. and N.; considering* 
 further that the Rev. X. being- cited and warned to 
 
DECREE OF SUSPENSION. 443 
 
 show cause why he should not be declared sus- 
 pended did not produce anything*- to relieve him, We 
 say and declare that the said Rev. X. according- to 
 sess. 25, c. 14 de ref. of the council of Trent, is sus- 
 pended and We wish and declare him suspended and 
 order his suspension published b}' affixino- a decree 
 to the doors of the parish church. This and every 
 other best way. Given &c. 
 
 [h. S.] N. Bishop (or) Vicar General of N. 
 
 N. Actuary." 
 
 499. Following- is a form for declaring- a suspen- 
 sion which is laid down in law but is ferendce sen- 
 ie7iticB, and is found in Cap. Episcopus 35 distinctio. 
 A similar form may be used for others of the same 
 kind: 
 
 "Considering- the instance of the fiscal procurator 
 and the information taken on both sides, from which 
 it is certain that N. N., a priest w^ho is accustomed 
 to play at cards, has not obe3^ed the admonition and 
 precept g-iven him to abstain from such play under 
 pain of suspension; considering- that he is g-iven to 
 such play even with laics and also in public houses, 
 we hereby in virtue of Cap. E^piscopus 35 Dist. sus- 
 pend him a divinis for three months and declare and 
 denounce him suspended therefrom and order the 
 suspension served upon him. Given &c. 
 [l. s.] N. Vicar General. 
 
 N. Actuary." 
 
 The above form is practically a definitive sentence 
 after trial, and is sufficient, thoug-h less formal than 
 the forms g-iven in n. 420-432. Being- a definitive 
 sentence the usual formalities are required in g-iving- 
 it. 
 
 500. A bishop for a reasonable cause, which is to 
 be manifested to the Holy See when it requires it. 
 
444 LEGALpFORMULARY. 
 
 can suspend regfulars from hearing" confessions, even 
 after he has approved them. No trial of any kind is 
 required. Follov^ing- is a form under the Const, of 
 Clement X, Sufcrna: 
 
 "Considering- that Pr. X. of the order of N. and 
 the convent of Y. does not observe the conditions 
 and monitions prescribed and enjoined on him in the 
 approbation given him by us to hear confessions, and 
 for other reasons known to us and determining- our 
 judg-ment, we hereby revoke the aforesaid faculty 
 and suspend him from hearing- confessions, and de- 
 clare him suspended therefrom and order the suspen- 
 sion served upon him. Given this &c. 
 [l. s.] N. Bishop of N. 
 
 N. Actuary." 
 
 501. While a judg-e in inflicting- censures is oblig-ed 
 to follow the prescribed form of "Cum mag-nopere" 
 and after canonical warning- put the censure in writ- 
 ing- with a statement of the reason, still this holds 
 only when the judg-e suspends from some act which 
 belong-s to the suspended person in his own rig-ht. 
 But when the judg-e suspends from an act which 
 comes to the suspended person only from the com- 
 mission of the judg-e himself, then the judg-e neither 
 sins nor incurs the penalty if he omits these solemni- 
 ties. Thus a simple priest who has not the care of 
 souls and who cannot hear confessions jure suo, can 
 be suspended from that act without warning- and 
 without writing-; because such a suspension or with- 
 drawal is really no suspension and no censure, but an 
 inhibition and a revocation of the concession formerly 
 g-iven. Wherefore as the bishop could commission 
 him verbally so he can verbally revoke the commis- 
 sion. But on the other hand, if a bishop or judg-e 
 
DECREE OE INTERDICT. 445 
 
 should suspend from hearing- confessions a parish 
 priest or one having* charg^e of souls, without putting- 
 it in writing" and stating* the cause, he would sin 
 g-rievously and fall under the punishment decreed in 
 c. viedicinalis de sent, excom. in 6°, i. e. he would 
 be oblig-ed to pay all expenses and interest thereon 
 to the censured person and suffer other punishment, 
 because in this case the hearing- confessions belong-s 
 jtire suo to the priest having- charg-e of souls, even 
 if he is only a vicar. The same can be said of sa^^ing- 
 mass, which jure sno belong-s to a priest having- 
 charg-e of souls, and cannot be withdrawn by the 
 bishop, except with the formalties required by 
 the "Cum mag-nopere" for the infliction of censures 
 or punishment. i^Cf. Sayr, de cens. I. 4., c. 2, n. 18 ; 
 Monacelli, -p. j, t. 2,/. 11, 71. g.) 
 
 For this reason, also, the so-called "withdrawal 
 of faculties" cannot be understood as a canonical 
 term when there is question of priests who have 
 charg-e of souls, even as vicars. When once ap- 
 pointed their rig^ht to say mass depends on their 
 position, not on the mere will of the bishop, and this 
 rig-ht can be limited only by censure or punishment 
 canonically inflicted. Moreover, since the expres- 
 sion "withdrawal of faculties" is uncanonical, vag-ue 
 and ineffectual, it seems that a priest having- charg;e 
 of souls who is inflicted b}^ such a terra, may ig-nore 
 it with impunity. There are canonical terms which 
 the judg-e can use easily and effectively. 
 
 502. An interdict is a correctional punishment by 
 which in punishment of crime the public celebration 
 of divine service, the administration of certain sacra- 
 ments and ecclesiastical burial are forbidden in cer- 
 
446 IvEGAL FORMULARY. 
 
 tain places and to certain persons. Interdicts in the 
 comprehensive sense of former times have g"one out 
 of use. Interdicts are local and personal. They 
 are inflicted only for g^rave crime, in which the whole 
 community or a majority of it is implicated. The 
 usual formalities required for censures are necessary 
 in inflicting an interdict. 
 
 503. Following" is a form for declaring" an interdict: 
 
 "Considering- the report of the excess of B., a 
 publicly excommunicated person and information 
 being- had from which it is certain that he was pub- 
 licly present at divine service in the church of X. on 
 
 the feast of and was admitted to the Holy 
 
 E^ucharist; we hereby subject to ecclesiastical inter- 
 dict the aforesaid church and the priests N. and N. 
 who temerariously received and admitted him, and 
 we wish and declare them subject to interdict and 
 order that they be publicly denounced. Omni mel- 
 iori modo. Given &c. 
 
 [iv. s.] N. Bishop of N., (or) Vicar General. 
 
 N. Actuary." 
 
 504. The interdict may be thus published: 
 
 "By our ordinary authority the church of X. is 
 declared and announced to be under ecclesiastical 
 interdict, and N. and N., officials of the same church 
 are declared subject to the same interdict from en- 
 tering- the church, for the reason that they temer- 
 ariously dared to receive and admit to the divine 
 offices and participation in the sacraments on the last 
 
 feast day of B. who is publicly and. notoriously 
 
 excommunicated. Given &c. 
 
 [iv. s.] N. Bishop of N., (or) Vicar General. 
 
 N. Actuary. 
 
 )> 
 
CHAPTER XXL 
 
 APPEAI^ AND REtvEASE FROM CENSURES. 
 
 505. It is allowed to appeal against all censures, 
 no less than ag"ainst other punishments. As a rule 
 appeals from vindicatory punishments produce a 
 suspensive effect, for the decree of execution is 
 estopped. But since a censure executes itself, when 
 it has already been inflicted, ordinaril}^ an appeal 
 produces only a devolutive effect. However, if the 
 censure has also temporal as well as spiritual effects, 
 the common teaching" of canonists is that an appeal 
 has also a suspensive effect. Thus from a suspen- 
 sion a beneficio a suspensive appeal may be taken. 
 (C/. Smalzgriieber, I. 2, /. 28, n. 2^; Boitix, de Jitd. 
 II. f). 255/ Stremler, -pg-. 255; Cap. 20 de sent. exc. 
 in 6° ; Glossa ibidem.) 
 
 506. A suspension, which is a vindicatory punish- 
 ment, not merely a censure, can be appealed ag^ainst 
 in suspensivo like any other punishment. {St. Lig"- 
 ouri, I. 7, n. 314; Kober, Suspension, pg. 8j et alii.) 
 An appeal even ag'ainst a purely spiritual censure 
 has a suspensive effect, if the cause assig'ned is null- 
 ity. {Ad milita)itis )i. j6.) An appeal ag-ainst the 
 declaration, made or even threatened, of a censure a 
 jure et latce sentcjiticB has a suspensive effect. An 
 appeal made ag-ainst the proposed publication of a 
 censure ab lioniine is held to-day to have a suspen- 
 sive effect. (Cf. Smith Elem. n. jo^o-jo^j.) An 
 
 447 
 
448 LEGAIv FORMULARY. 
 
 appeal against a threatened CQw^nre has surelv a sus- 
 pensive effect, and if the judg*e nevertheless declares 
 the censure, it may be ignored with impunity. This 
 holds true even if the higher judge after seeing the 
 acts rejects the appeal. {Pierajztonelli, Praxis, t. 
 <5, n. jg\ Smith Eleni, 7i, jojo. et alii conununiter.) 
 After the appeal has been rejected by the higher 
 court, the threat should be renewed b}^ the lower 
 judge in order to be effective. {Covummis DD.) 
 
 507. When an appeal is made to the metropolitan 
 against a censure, he thereby obtains jurisdiction to 
 re-examine the whole case, and to confirm or revoke 
 the censures inflicted. Meanwhile the sentence can- 
 not be executed by the judge a quo, and the metro- 
 politan may after warning inflict censures on the 
 vicar general of a suffragan who in such circum- 
 stances attempts to execute the sentence. The ap- 
 peal may come either on the plea of unjustness or on 
 that of invalidity in the censure. 
 
 - If the reason alleged is injustice, theu the metro- 
 politan must first see the acts of the lower court and 
 hear the parties, before he relaxes the censure. 
 The procedure in the metropolitan court on appeal is 
 the "Cum magnopere" as in the lower court. If 
 the metropolitan finds the censure unjust he himself 
 will at once revoke it and declare it invalid. If he 
 finds it just he will send the appellant back to the 
 lower court for absolution, and if the suffragan 
 bishop refuses to absolve from the censure when re- 
 quested by appellant, then the metropolitan will 
 absolve. In case the metropolitan finds it doubtful 
 whether the censure is just or not, he himself may 
 grant absolution, but to-day it is the rule to send the 
 
APPEAL FROM CENSURES. 449 
 
 appellant back to the lower court with a mandate 
 that he be absolved within a brief time stated in the 
 mandate. When a censure has been unjustly in- 
 flicted, the metropolitan is oblig^ed to order the lower 
 ^'udg^e to completely indemnify the appellant, unless 
 the judgfe can show he acted from error depending" 
 on some one else, but not from ignorance. The pre- 
 sumption is always against the judg'e in such cases. 
 
 508. When the reason alleged in the appeal is 
 invalidity, the invalidity is either certain or doubt- 
 ful. If certain, and notoriously invalid, then no 
 appeal need be taken. Still with us it is safer to have 
 the invalidity declared by the higher court on appeal 
 ex capite nullitatis. Meantime the censure need not 
 be recognized in either forum. But if the invalidity 
 is doubtful the metropolitan when an appeal is made, 
 should first of all examine the acts in a sinuniary 
 way and having cited the lower judge, should before 
 he hears the case on its merits grant absolution from 
 the censure ad caiitelam. He then hears the case on 
 its merits, according to "Cum magnopere" and in 
 his definitive sentence either sustains the censure and 
 then it ipso facto revives, or he reverses the lower 
 court and the absolution from the censure becomes 
 absolute. 
 
 509. The absolution ad cautelam, when the appeal 
 is because of invalidity, must always be ordered 
 immediately by the metropolitan, except the judge 
 a quo offers to show within eight days that the cen- 
 sure was justly imposed for a iiotorious crime or for 
 notorious contumacy. Then the metropolitan ma}^ 
 wait eight da3^s. But if the judg-e a <7//o does not 
 prove his assertion, the absolutiou is to be given ad 
 
 58 
 
450 IvEGAL FORMULARY. 
 
 caiUelcuji. The bishop a quo is also oblig-ed to show 
 that he properly cited the alleg'ed contumacious per- 
 son, not only peremptorily to the trial, but also by a 
 second warning or citation to show cause before the 
 censure was inflicted or declared. {Cf. Pieranton- 
 elli^ Praxis^ t. 6, n. ly-ig', also n. jj^ above.) If 
 the -judg-e a quo makes the required showing-, then 
 before absolution ad catitelavi is g^iven, the metro- 
 politan must require from the appellant that he make 
 due satisfaction to the lower court, that, if he be 
 contumacious, he pay the costs of the lower court, 
 that in token of submission he present himself to his 
 superior by whom he was censured, that he sincerely 
 promise to obey the laws of the church for the 
 future. After this is done, the metropolitan will 
 send him for the absolution ad cautelani to the judge 
 a quo w^ith an order that the absolution be given 
 within three days. If the judge a quo refuses, the 
 metropolitan will give it himself. Then the merits 
 of the case are considered in regular form. E^ven 
 when the invalidity is doubtful, if the appeal was 
 taken for that reason, the appellant need not observe 
 the censure in either forum. 
 
 510. An appeal from a threatened censure has a 
 suspensive effect. The same is the case if the judge 
 a quo who threatened censure was challenged before 
 he inflicted censure. In these cases the metropolitan 
 will decide only after a full re-hearing on the merits 
 of the case. 
 
 A censure is invalid when one essential formality 
 has been omitted in inflicting it. It is unjust if there 
 is no cause or not sufficient cause for the censure in 
 question. It is both valid and just when inflicted 
 
REMOVING CENSURES. 451 
 
 for sufficient cause and with all the required for- 
 malities. When a censure has been validly inflicted, 
 even if unjust, it must be observed in foro externa, 
 thoug"h if certainly unjust it may be disregfarded 
 i7i foro intern o. A censure is invalid, if the superior 
 exceeds his jurisdiction, if he himself is under cen- 
 sure, if the defendant has appealed before the cen- 
 sure v^as actually inflicted, if the superior imposes a 
 censure on one not his subject. Aorain it is ipso jure 
 invalid if an essential formality has been 
 neglected, if the judofe neg^lects the two or at least 
 one peremptory monition, if he does not g^ive the ac- 
 cused a trial, if in the trial he leaves out some essen- 
 tial formality, such as the citation of the accused to 
 defend himself. Finally the censure is ipso jure in- 
 valid if inflicted without a sufficient cause or crime 
 juridically established. Hence no censure can be 
 inflicted on mere private information, nor even on the 
 information obtained in the summary investig^ation 
 before preventive remedies, because that information 
 is not yet juridical, since the accused has not been 
 cited nor beard. 
 
 511. However, after the informative process of a 
 judicial trial has been completed and a X^^^'dX proof of 
 g*uilt has been obtained, the judg-e, either just before 
 or after the citation is g-iven the accused, may some- 
 times order him to retire provisionally into a monas- 
 tery or other suitable place during* the time the trial 
 g'oes on. This is equivalent to incarceration, and is 
 considered a very severe punishment, and indeed an 
 irreparable damag*e. Therefore it cannot be inflicted 
 by the auditor or judg-e except where there are al- 
 ready on hand leg'al proofs of g*uilt obtained judi- 
 
452 LEGAL FORMULARY. 
 
 daily, not extrajudicially, and when also the crime 
 in question is very ^rave, atrocious and causing- g-reat 
 scandal, so that the accused cannot continue to exer- 
 cise the sacred ministry -piihlicly and in the midst of 
 those among' whom his offense is known without 
 g-rave scandal and injury to relig^ion. A judg-e who 
 orders incarceration without these circumstances 
 renders himself liable for heavy damag^es. Such in- 
 carceration does not necessarily entail suspension. 
 {Cf. PellegTimis, part 4, sec. 8, n. 14.-1^.) 
 
 512. The wilful violation of a valid and just cen- 
 sure is a mortal sin and entails irreg*ularity, which 
 is a disqualification to receive orders or to perform 
 the functions of orders already received. Irreg^u- 
 larity ensues only for violation of suspension from 
 order, ab ordine. It is incurred ipso facto and is re- 
 served to the Pope. It is not incurred for violating* 
 an invalid censure, nor one yiotoriously unjust, which 
 really is equivalent to an invalid one. Besides irreg-- 
 ularity, privation and even deposition from all offices 
 and benefices may be inflicted after canonical warn- 
 ing's on those who obstinately disreg*ard correctional 
 punishments or censures, when the suspension is ah 
 ordine and acts of ordo are performed. If acts of 
 jurisdiction are performed during* a suspension from 
 them, the acts are null and void, and other punish- 
 ments may be imposed after monition as the judg'- 
 ment of the superior determines. 
 
 513. In order that a censure may cease, a formal 
 remission or absolution by the ecclesiastical superior 
 is necessary. As soon as the delinquent has 
 amended he has the rig-ht to absolution and the judg^e 
 is bound to g^rant it from censures — not from vindic- 
 
ABSOLUTION PROM CENSURES. 453 
 
 atory punishment. If the superior by whom a pun- 
 ishment was imposed for a certain time sees fit to 
 shorten it, he may do so. E^ven vindicatory punish- 
 ments may be remitted, unless scandal is too "^reat. 
 (C/. Kobe)', Siispe)isio}i, p. 128; Drostc-Mcssme)\ 
 f>§'. 112; Sang^tiineti, Inst. f>g: 4.00, 4^g: S/nilic, 2, 
 -pg. jSy,) When censures are incurred a jure et ipso 
 facto, and not reserved, every confessor may absolve 
 from them .also in foro externo. When these cen- 
 sures are reserved, then only the lawgiver, his suc- 
 cessor or his deleg"ate can absolve. When, however, 
 censures are ah homine throug"h a special sentence, 
 which applies also to censures a jnre ferendcc seji- 
 tentice, then only the superior who inflicted them, 
 his successor or deleg'ate, or his hio-her superior and 
 no one else can remit them. Such censures follow 
 the delinquent even out of his diocese. 
 
 514. A person under censure may be released 
 absolutely, which is usually the case. Ag-ain abso- 
 lution from censures is frequently given ad caidelani 
 in the exercise of voluntary jurisdiction, as in the 
 sacrament of penance, in granting* dispensations, 
 before conferring offices or benefices. It is also given 
 ad cautelam in contentious matters, when it is doubt- 
 ful whether or not a censure is valid, or again in 
 order to give a witness or litigant standing in court 
 for a certain case. Sometimes, as in danger of 
 death, absolution is granted under the condition of 
 re-incidence, or revival of it. Before absolution is 
 granted from censures, the person under censure 
 must ask personally to have it removed and should, 
 if required, give satisfaction to the injured party 
 and repair the scandal given if it be possible. Be- 
 
454 LEGAL FORMULARY. 
 
 fore absolviag-, the superior should obtain sure in- 
 formation that the delinquent has really receded 
 from his obstinacy. Whenever the censure has been 
 officially published the absolution must be g-iven in 
 foro cxterno, the formula of the Roman Ritual 
 {Tit. de Sac. Poen.) being- used from propriety, but 
 not from necessity for validity. Forms for absolu- 
 tion were g^iven in n. 367 above. 
 
 515. The forms for presenting an appeal to the 
 metropolitan court and for recording" it are given in 
 n. 448-453 above. The following- form may also be 
 used by the appellant: 
 
 "To the Metropolitan Curia of N. 
 
 Comes now the undersig-ned appellant before the 
 Most Reverend Metropolitan and shows that he is a 
 priest of the diocese of N., which is suffrag-an to this 
 metropolitan curia; that on the — day of — A., D. — , 
 he was grievously injured by a sentence passed upon 
 him by the V. Rev. Vicar general of N. — ; that, 
 therefore, using- his rig-ht, he appealed and does ap- 
 peal to this metropolitan curia for relief from the 
 said censure which is of the following- tenor: (give 
 censure exactly in full.) And the said appellant 
 says and shows that this aforementioned censure is 
 invalid because 1° no canonical warning was g-iven 
 him previous to the infliction of the censure, 2"" no 
 trial preceded the censure. Wherefore, the said 
 appellant, your orator, asks the aid of this metropol- 
 itan curiaand aninhibition tothe V. Rev. Vicargeneral 
 of N. — , prohibiting him from proceeding further in 
 the matter of this said censure, and he asks the 
 further aid of this metropolitan curia for the revo- 
 cation of the said invalid censure, and the final ad- 
 judication of the whole cause therewith connected. 
 Further your orator, this appellant, asks that he be 
 given his entire costs and interest, as by law re- 
 
APPEAL FROM CENSURE: 455 
 
 quired, for this most g^rievous damag^e thus illegally 
 and unwarrantedly inflicted and sustained. This 
 and every other best way, by law, custom or statute 
 your orator will ever pray. Dated &c. 
 
 Sio-ned: N. N. Appellant." 
 
 516. Following- is a form for remitting" the appel- 
 lant to the judg-e a quo with a mandate for absolu- 
 tion ad caittelani from the censure: 
 
 "We, vicar g^eneral of the archdiocese of X. and 
 judg-e of appeals from the diocese of N.; considering- 
 the appeal of Rev. N. of the diocese of N., against a 
 censure inflicted on him by the V. Rev. Vicar g'en- 
 
 eral of N. and dated ; considering- the plea of 
 
 invalidity made by said appellant; having- seen the 
 acts and the opposing- party being- cited, in accord- 
 ance with the constitution "Ad militantis," n. 37, 
 we hereby remit the said appellant. Rev. N., to the 
 aforesaid V. Rev. Vicar gfeneral, or ordinary of N. 
 in order that within three days the said ordinary of 
 N. may g-rant the said Rev. N. absolution ad caute- 
 lam from the said censure; and we so have ordered 
 in this and every other best way. Given &c. 
 
 N. Vicar General of the Arch-diocese of X. 
 [iv. s.] N. Actuary." 
 
 517. Should the vicar g-eneral of a suffrag-an 
 bishop, in spite of inhibitions, proceed to execute a 
 censure, or other sentence from which an appeal has 
 been taken, the metropolitan may punish him even 
 b}^ excommunication after proper warning and cita- 
 tion. {Cf. cap. /, dc off. ricar. iii 6"" .) This is also 
 true, even for the first instance, when the vicar g-en- 
 eral is g-uilty of faults in his official capacit3\ 
 {S. C. Cone. 25 Feb. 16^2.) The complaint may be 
 made either bv the fiscal procurator or bv anv sub- 
 ject of the suffrag-an bishop. In such cases the arch- 
 
456 ^ LEiGAL FORMUI^ARY. 
 
 bishop himself should sign the acts of the process, 
 not his vicar g-eneral, in order that there may be no 
 question of nullity in the process. If the offending" 
 vicar general appears personally or -by procurator 
 and gives reasons why he should not be punished he 
 should be heard. If he pleads guilty but begs par- 
 don and promises to act rightly for the future, when 
 satisfaction is made to the offending party, and his 
 xvritten promise is filed in the metropolitan chancery 
 he should be pardoned provided he is not a recidivus. 
 [Cf. Monacelli, -p. j, t. /, /. j2, n. y,) 
 
 518. The following form may be used for citing 
 the delinquent vicar general. The service of the 
 citation must be proved as usual: 
 
 "Let the vicar general of N., the V. Rev. N. N. 
 be cited and admonished, through a messenger (also 
 registered letter 'Cum magn.' art. 14) personally if 
 he can be found, otherwise by a copy left at his 
 place of usual residence or affixed to the door of the 
 cathedral of N., and he is hereby cited and admon- 
 ished, to appear before Us within the (peremptory) 
 
 term of days to show cause and make answer 
 
 why he should not be punished by excommunication 
 as in cap. 1, de off. vicar, in 6°, because of his action 
 in attempting to execute a censure (or sentence) im- 
 posed on Rev. N. N. after the said Rev. N. N. had 
 appealed and the said V. Rev. Vicar general had 
 been inhibited from proceeding further. Given &c. 
 [l. s.] N. Archbishop of N. 
 
 N. Actuary." 
 
 519. Following is a form for the decree to be 
 issued by the archbishop after the usual (see n. 334) 
 warnings have been given to the delinquent vicar 
 general: 
 
 "Considering the acts and proofs brought before 
 
INHIBITING LOWER COURT. 457 
 
 Us, from which it is certain that the appeal which 
 N. interposed before our tribunal within the proper 
 time from a judicial decree (or a sentence having the 
 force of a definitive) passed by the V. Rev. N. vicar 
 g^eneralof the Bishop of N., our suifratran, in a cause 
 tried between the appellant on one side and X. on 
 the other (or state cause), which appeal-was rejected 
 by the said V. Rev. Vicar g-eneral; considering the 
 execution of the aforesaid decree (or sentence) not- 
 withstanding our inhibition; considering^- the warn- 
 ing's g"iven and executed with the peremptory term 
 assigfned to the said vicar g^eneral to appear and 
 show cause under pain of excommunication; consid- 
 ering* his contumacy; We say and declare that the 
 said vicar g^eneral, N. N., has been grievously dere- 
 lict in office and in the exercise of jurisdiction, and 
 has offended ag^ainst archiepiscopal and metropolitan 
 jurisdiction; and therefore he should be excommu- 
 nicated, as We now excommunicate and declare him 
 excommunicated. Further We wish and order that 
 he be publicly denounced as such by affixing* placards 
 both in this our city and in the city of N., with the 
 clause that those who remove, tear or deface these 
 placards shall, even if they be regfulars, incur ipso 
 facto excommunication. Given at &c. 
 [l. s.] N. Archbishop of N. 
 
 N. Actuary." 
 
 520. Following" is a form for publishing* such an 
 excommunication: 
 
 "By these<presents with our ordinary authority, 
 N. N. the vicar g^eneral and official of the Most Rev. 
 Bishop of N., our suffrag-an, is denounced and de- 
 clared excommunicated by excommunication reserved 
 to Us; because he would not admit an appeal made 
 to Us within proper time from his appealable decree 
 (or sentence,) and notwithstanding- our inhibition, 
 nevertheless with damnable presumption proceeded 
 further in the case. In order therefore that he may 
 59 
 
458 LEGAIv FORMULARY. 
 
 be shunned by all We have ordered these presents to 
 be affixed in public places in the city, and he will 
 remain excommunicated until he shall have fully 
 satisfied our jurisdiction and the agig-rieved party, 
 and shall merit to be absolved by Us. But all those 
 who shall tear or deface these placards, even if they 
 be regfulars, shall incur ipso facto excommunication. 
 Given &c. N. Archbishop of N. 
 
 [l. s.] N. Actuary." 
 
 521. In criminal matters an archbishop to-day has 
 no ordinary jurisdiction over his suffrag"an bishops. 
 But he still retains jurisdiction in civil matters when 
 the subject of a suffrag*an sues his bishop. If the 
 bishop bring-s suit ag-ainst his own subject, ayhitri 
 
 juris are to be appointed, for the archbishop has not 
 immediate jurisdiction in the first instance over the 
 subjects of his suffrag^ans, and therefore he cannot 
 cite such a subject. The bishop cannot act for he is 
 a party to the suit. Hence the arhitri juris. But 
 since the metropolitan has immediate jurisdiction in 
 the first instance over his suffragans, the subject of 
 a bishop may file his bill of complaint in the metro- 
 politan curia, and the archbishop may act as ordi- 
 nary judge. However, no citation, according- to the 
 council of Trent, should be directed to the bishop 
 himself, but it must be issued to the bishop's pro- 
 curator. 
 
 522. That an archbishop has such jurisdiction in 
 the first instance, according to Monacelli, has been 
 several times decided by the S. Cong, of the Council, 
 and therefore is the law also since the council of 
 Trent. Decisions were made in 1585 and Nov. 10, 
 1618, and the point decided distinctly in a Lima case 
 Feb. 1586. (Cf. Pallotini Collection.) 
 
JURISDICTION OVER SUFFRAGANS. 459 
 
 Following" are some canonists who clearly main- 
 tain such jurisdiction. Monacelli, T. 2, t. 15, f. 2 
 n. 11; Nicolinus, Lucubr. Can. 1. 2, t. 2, de for 
 comp. 2; ^ecchius, de rep. eccl. tit. de stat. Patr 
 et Arch; Rice, in praxi, par. 4, resol. 4%; Genuen 
 in praxi, cap. 86, n. 1; Passer, in cap. rom. n. 4 
 Pirhing-, Jus Can. 1. 1, t. 31, n. 14; Piasc. prax. par 
 2, cap. 5, art. 2; Caput 1, distinct 80 of Corpus 
 Juris; cap. Metrop. 45, 2, q. 7; Glossa in cap. 
 pastoralis de off. ord. et in cap. pervenit 39, verb, 
 interponere 11, q. 1; Abbas, in cap. de app.; 
 DeAng-elis, 1. 1, t. 31, n. 17; Reiffenstuel, 1. 1, t. 31, 
 n. 38; E^ng-el, de maj. et obed. n. 21; Maschat, tit. 
 31, n. 9; Gallemart, cap. 5; Santi, tit. 31, n. 153. 
 
 The II Council of Baltimore, (n.81) g-ives room for 
 the same doctrine when it uses the word "fere" in 
 specifying- some points of metropolitan jurisdiction. 
 It not only did not exclude such jurisdiction but b\' 
 using- the word "fere" left room to include it and 
 whatever else the common law and teaching* includes. 
 But it is also true that on Jan. 20, 1891, the S. 
 Cong", of Propag-anda to whom the question was re- 
 ferred on appeal replied: "Considering- the peculiar 
 circumstances, since it is controverted among* can- 
 onists, this S. Cong*, does not wish to decide the 
 question by its sentence, and therefore calls the 
 whole case to itself." Hence practicalh^ the best 
 way is to bring* such suit throug*li the Propag*an(la 
 direct or beg^in it in the Apostolic Deleg^ation. 
 
CHAPTER XXII. 
 
 VINDICATORY PUNISHMENTS: FINES, BANISPIMENT, 
 
 IMPRISONMENT, TRANSFER, DISMISSAL, LOSS 
 
 OF TITLE, DEPOSITION, DEGRADATION. 
 
 523. Vindicatory punishment is intended to correct 
 the delinquent, but also to atone for crimes and de- 
 ter others from committing" them. Vindicatory pun- 
 ishment can be inflicted only after trial, and must be 
 proportionate to the offense. Regularly an inferior 
 judge can neither increase nor diminish the punish- 
 ment laid down in law. Still for just cause he may 
 do either. The punishment may be increased on ac- 
 count of the position of the delinquent and the greater 
 scandal, or on account of the dignity of the person 
 offended. Again if the reason for offending was 
 weak and "the deliberation great, or if the offense 
 has become habitual, or if the circumstances are 
 more atrocious, the punishment may be increased. 
 On the other hand the punishment may be lessened 
 if the delinquent believes he is not sinning, if he 
 commits the crime in anger or in drunkenness. 
 Again children and the aged are to be punished less 
 than others. Moreover, the eminence or nobility of 
 a person is a reason of law why less severe punish- 
 ment is exacted. So also is the length of time which 
 has elapsed since the crime was committed. When 
 
 460 
 
FINES AS PUNISHMENT. 461 
 
 the law or statute leaves the punishment arbitrary, 
 the judo"e must keep a proportion between the crime 
 and the punishment, which may be determined b}' 
 comparing- the punishment inflicted by law for other 
 crimes of a somewhat similar nature. 
 
 524. A pecuniary fine is the payment of a sum of 
 money imposed by the ecclesiastical judo-e in foro 
 extcrno upon a person in punishment of a crime com- 
 mitted by him. It is certain that fines are a canon- 
 ical punishment. (C/. Council of Trent ^ sess. 2j, c. 
 J, de ref.) Hence fines may be imposed as punish- 
 ments by the sentence of an ecclesiastical jud^e after 
 trial, when the law expressly specifies this punish- 
 ment, when it was made the sanction for s3'nodal 
 statutes, or when the assessing* of punishment is left 
 to the judg-e. Fines rather than censures should be 
 inflicted for contumac}^ {Coiin. Trent, I, c.) and 
 whenever the offense is not so g^reat as to deserve 
 spiritual punishments, such as suspension, removal 
 and the like. 
 
 525. But in order to cut off all abuse in the collect- 
 ing- of fines, the same council enacted that neither 
 the bishop nor his vicar g-eneral should either re- 
 ceive or appropriate these fines to his own use. 
 Neither can these fines be used to pa^'' the salary of 
 the bishop, vicar g-eneral, chancellor or any official, 
 (except the defensor of the marriag-e bond, according- 
 to Benedict XIV, "Dei miser," n, 12); nor can they 
 be applied to repairing- church building-s; but they 
 must g-o entirely for pious and charitable purposes, 
 such as maintaining- the poor, or supporting- asylums 
 in the diocese. An excellent use would be the nec- 
 essary support of clerg-ymen under censure or de- 
 
462 LEGAL FORMULARY. 
 
 prived of their parishes; for these ecclesiastics are 
 undoubtedly entitled to what is necessary for their 
 maintenance, though not to a strict competency. . 
 
 526. The bishop cannot act as treasurer of the 
 moneys collected as punishments; neither can the 
 vicar g'eneral, econome or other official of the 
 bishop's house. A special treasurer, according to 
 numerous decrees, must be appointed. He should 
 be a member of the cathedral chapter and must give 
 security for the faithful performance of his duties. 
 The bishop will designate the pious works for which 
 the money thus received is to be expended; and each 
 year the treasurer will render an account before the 
 ordinary and two members of the chapter, one to be 
 chosen by the bishop, the other by the chapter. (S. 
 C. Ep. 20 Nov. 16^4.) The treasurer for fines is 
 really to act as treasurer, and the ordinary cannot 
 hold the money. (C/. Ferraris, Bibliotheca, Pcena, 
 art. /, n. 5/, /j.) He may very properly be the 
 treasurer of the fund for infirm priests. 
 
 527. Following is a form for appointing the treas- 
 urer of fines: 
 
 "N. Bishop of N— . To &c. Following the de- 
 crees of the holy council of Trent and the Sacred 
 Congregations, and wishing to obey them, in order 
 that the fines and pecuniary punishments which may 
 be imposed in our tribunal for crimes and satisfac- 
 tion for them, may rightly be applied to pious uses 
 or places in our city or diocese according to our 
 judgment; We by these presents constitute and 
 depute you, in whose fidelity and probity We have 
 confidence, as the treasurer of the said fines and 
 punishments. You will give security, to be filed in 
 our chancery, for the faithful administration of your 
 
TREASURER FOR FINES. 463 
 
 office and will keep a book showing- the amounts re- 
 ceived and will expend said moneys only on our 
 order ^iven expressly in writing-, or in our absence, 
 on the order of our vicar g-eneral, to the bottom of 
 which order you will have placed the receipt of the 
 person to whom the specified amount is paid; and of 
 your administration you will g"ive an account each 
 year before Us and two members of the chapter. 
 Further We order our chancellor and econome to 
 have nothing- to do with these said funds or fines; 
 which must be entirely deposited with you. These 
 letters are to be reg-istered in the chancery and to 
 continue in force during- our g"ood pleasure. Given 
 at — this — day of — A. D. — . 
 [l. s.] "' N. Bishop of N. 
 
 N. Chancellor." 
 
 528. Imprisonment is a canonical punishment for 
 g-rave crimes proved by trial. To-day, especialh^ in 
 the United States, this imprisonment is modified to 
 confinement in a house of penance. {Cf. Stremler, 
 fg: 6j: III Coun, Bait, n, 77.) If this house of 
 penance to which the delinquent is condemed for a 
 certain time is outside the diocese, a mild form of 
 exile is usually connected with the imprisonment and 
 specified in the sentence. E^xile from the diocese is 
 a canonical punishment for g-rave crimes and inflicted 
 usually to break up scandal and take the delinquent 
 out of the occasion of crime. For this purpose also 
 a delinquent may be ordered to keep out of certain 
 places or out of a city wnthin the diocese. 
 
 529. In harmony with the reason underlying- par- 
 tial exile, not unfrequently a penal transfer is in- 
 flicted on a movable' rector after trial. Whenever 
 punishment is intended or can be interpreted from 
 the circumstances, then a movable rector is entitled 
 
464 LEGAL FORMULARY. 
 
 to a trial before be is bound by such transfer, and 
 pending- the trial in the diocesan curia he retains 
 possession; althoug^h pending" the decision of the 
 hig-her court to which he made recourse, because not 
 g-iven a trial, he must vacate the position from which 
 he was decreed transferred. Still, pending the de- 
 cision of the higher court he is not strictly obliged 
 to accept the new charge, though he may do so with- 
 out forfeiting any rights. {Cf. n. g2, io6, above; 
 hist. S. Cong-. Prop, circa, deer. c. Prov. Bait. /, 
 ap. Cojic. Bait, p§: 64..) 
 
 530. There are two kinds of transfer, one penal, 
 the other administrative. Penal transfer always 
 requires a previous trial. An administrative trans- 
 fer of a movable rector may be made for necessity or 
 titiltity, which does not involve crime. Some grave rea- 
 son is required by law, and therefore the law also 
 implicitly requires that this g-rave reason be showm 
 on recourse, and the mere assertion of the superior 
 has no weig^ht. {Cf. Leurenius^ For. Ben. p. j, g. 
 (555 ; DeAngelis, I. /, t. 7, n. 2.) Neither can in- 
 discreet conduct, which has once -been punished, be 
 ag-ain alleg^ed as a grave reason; for this would make 
 it a penal transfer, and further no one can be pun- 
 ished twice for the same offense. (Rule 83 in 6°.) 
 Moreover the transfer must necessarily be made to a 
 better or at least to an equivalent parish. (C / et 
 4 de transl. /, 7.) If made to an inferior parish, even 
 if necessity or utility is pleaded and shown, the 
 higher court will order re-instatement. This is es- 
 pecially the case if an extrajudicial cognitio causes 
 has not been prepared by the bishop in advance of 
 the transfer; for then the presumption is that the 
 
PENAL TRANSFER. 465 
 
 transfer was made from ill-will and malice. {Can. 
 y,'8, dist. 7^.) The above teaching was clearly sus- 
 tained in a Detroit case of transfer, decided Aug-. 15, 
 1896, by the Apostolic Delegate who on recourse de- 
 cided "the transfer is not sustained" and ordered 
 re-instatement. A form for letters of administrative 
 transfer is given in n. Ill above. 
 
 531. It is certain that an irremovable rector can- 
 not be transferred against his will except for canon- 
 ical cause and after trial under "Cum magnopere." 
 The rectorship undoubtedly is his parish and a trans- 
 fer from his rectorship is a deprivation of it, no mat- 
 ter what is offered in exchange. The Third Coun- 
 cil of Baltimore, n. 38, says an irremovable rector 
 cannot be removed except for canonical cause, and 
 it specified eight new causes v^hich thereby it made 
 canonical for this purpose. Most urgent and g-rave 
 reasons of necessity and utility are alleged by a few 
 canonists to give the bishop a right to transfer an 
 irremovable rector against his will, but even they 
 say that the necessity must be imperative, that it 
 must be established beyond a doubt, that the incum- 
 bent should be induced to resign, that it must clearly 
 be shown that the church to which he is transferred 
 is reallv better both in honor and income, that this 
 transfer should not be made except where it is im- 
 possible to otherwise provide, as by an assistant. 
 From these conditions it will be seen that even these 
 canonists practically deny the right of the bishop. 
 It is certain that neither the honor nor the privileges 
 of an irremovable rector will be maintained, unless 
 he is transferred to another irremovable rectorship. 
 In such a case he likely would consent. 
 
 GO 
 
466 LEGAL FORMULARY. 
 
 532. Whenever the law enacts the penalty of dis- 
 missal from a benefice for crime, it thereby a fortiori 
 g"ives the judg'e power to transfer the incumbent 
 within the diocese as a punishment, if some mitig-at- 
 ingf circumstance renders such a sentence advisable. 
 It may be asked, can a bishop in such circumstances 
 transfer a priest, ordained titiilo inissionis since 
 Nov. 30, 1885, to the diocese of another bishop in the 
 same province with the consent of such bishop, but 
 without the consent of the priest, i. e. the priest be- 
 in^' unwilling-? The reason advanced in favor of 
 such a proposition is the fact that in answer to a re- 
 quest of the Fathers of the Third Plenary Council 
 the Holy See issued a decree of which the following* 
 is a copy: 
 
 DECRETUM. 
 
 De Ordifiatis Titulo Missionis. 
 
 R. P. D. Archiepiscopus Baltimorensis suo ac 
 Episcoporum Statuum Foederatorum America nom- 
 ine ab Apostolica Sede petiit, ut juramentum quod 
 ordinati titulo missionis prsestant, eos exinde oblig^et 
 non pro aliqua Dioecesi tantum, sed pro tota Pro- 
 vincia ecclesiastica, ita ut presbyteri sic ordinati 
 sola coUatione novi tituli in aliam dioecesim ejusdem 
 Provinciae transferri possint de consensu utriusque 
 Ordinarii, quin necessarium sit ut ipsi novum jura- 
 mentum emittant. Insuper expostulavit quoad pr^- 
 teritum, ut ordinati titulo missionis pro aliqua Dioecesi 
 ad aliam Dioecesim intra eandem Provinciam trans- 
 ferri possint novo titulo novoque praestito juramento 
 absque recursu ad Apostolicam Sedem. Gum autem 
 supplices hujusmodi preces in audientia diei 22 
 Novembris, 1885, Sanctissimo D. N. Leoni XIII a 
 R. P. D. Dominico Jacobini, Archiepiscopo Tyrensi, 
 S. Cong-reg"ationis de Propag-anda Fide Secretario 
 
TRANSFER TO OTHER DIOCESE 467 
 
 relatae sint, Sauctitas Sua eas benig-ne excipere, ac 
 expetita privUetJfia concedere dig-nata est, et super 
 his prsesens decretum expediri mandavit. 
 
 Datum Romae, ex Aedibus S. Congreg'ationis de 
 Propag-anda Fide, die 30 Novembris, 1885. 
 
 Joannes Card. Simeoni, PrcB/ectiis. 
 
 D. Archiep. Tyrens., Seer. 
 
 533. Now it is a well known fact that the Holy 
 See often grants less, but never more, than is asked. 
 The bishops in making their request made no men- 
 tion, in fact had no thoug-ht, so I am informed, of 
 transferring- a priest ag^ainst his will from one dio- 
 cese to another within the province. They simply 
 wished to do away with the necessity of asking- the 
 consent of the Holy See for every case when a priest 
 wished a chang-e of diocese and the two interested 
 bishops consented. Moreover in some dioceses where 
 priests are numerous it was and is a practice to loan 
 them with their consent to neig-hboring- bishops who 
 need them. This practice is mentioned in n. 69 of 
 the decrees of the Third Council. But with the 
 oath as formerly taken to labor in hac dia^eesi these 
 priests could not lawfully work even temporaril}', 
 i. e., for several years, in the neig'hboring^ diocese. 
 Bishops and priests became scrupulous about the 
 oath. Hence the petition to the Holy See, which 
 granted the request by a decree. A favor g-ranted 
 to the bishops and priests cannot well be turned to 
 the disadvantagfe of the latter, unless special men- 
 tion is made of such intention. {R?(le •,-, /. 40, I. -r. 
 de verb. s/^?i. Reijfenstuel.) Moreover, such an 
 interpretation of the decree as would sanction a 
 penal transfer of a priest from his original diocese 
 
468 LEGAL FORMULARY. 
 
 to another, would change radically the laws of the 
 church reg'arding' rights in a diocese and diocesan 
 rig-hts, which cannot be done by implication, but 
 only by direct legislation. Kven when an ecclesias- 
 tic in a church court is condemned to exile, he still 
 has an inherent right to be considered a member of 
 the diocese. But exile is a greater punishment than 
 transfer; hence a fortiori. Moreover in -punitivis 
 mitior et benignior interf>retatio est adhibenda, 
 which surely is against such penal transfer. If it is 
 claimed that the priest has virtually consented in 
 advance, when such removal is deemed expedient by 
 the ordinaries, a simple denial is all that is required 
 in answer, for the Holy See has not authorized such 
 a far-fetched interpretation. The Holy See does not 
 thus treat the free will of priests and the rights of 
 third parties, and superiors, it seems, would scarce- 
 ly be justified in thus explaining the oath to young 
 men before ordination, without an authentic inter- 
 pretation of the Holy See in explanation of its de- 
 cree. Meanwhile the one fact that the bishops did 
 not ask to be allowed authority to transfer priests 
 in a7iy circumstances without their consent, is a suf- 
 ficient proof that the Holy See granted no such per- 
 mission, even implicitly. 
 
 534. Removal from office, or deprivation of one's 
 benefice, is a canonical punishment by which an 
 ecclesiastic loses his parish or office without being 
 appointed to another, but nevertheless without be- 
 ing disqualified from holding office in the future. 
 Hence it differs from a penal transfer which is a less 
 punishment, and from deposition which is a greater 
 one, because this last disqualifies a person from 
 
DISMISSAL P'ROM PARISH. 469 
 
 holding" office also for the future. The punishment 
 of removal or dismissal can be inflicted on incumbents 
 of any ecclesiastical office, but it is especialU^ severe 
 on those who have the cure of souls, either as irre- 
 movable or as movable rectors. It is held to be 
 equivalent to social or civil death; and is one of the 
 severest or g^reatest of the reg^ular or ordinary pun- 
 ishments of the church. Hence it cannot be inflicted 
 except for crime judicially proven. For this reason 
 when an ecclesiastic because of inexperience, want of 
 knowledg"e or ability, or because of old ag^e or ill 
 health becomes unable to discharg-e the duties of his 
 office, parish or benefice, he cannot be deprived of it, 
 {c. 5, de cler. ceg-j'o. j, 6.) but simply an assistant or 
 coadjutor must be assig^ned to him. (C/. c. j, 4, de 
 cler. oeg". 3,6; Con. Trid. sess. 21, c. 6; DeAng'elis, 
 I. J, t. 6, n. 2.) 
 
 535. Irremovable rectors in the United States can 
 be deposed only 1° for crime. 2° The crime must be 
 gfrave and atrocious. 3° The crime must be ex- 
 pressly stated in law as punishable b}^ deprivation 
 of office. 4° The crime must be fully proved by a 
 judicial trial, following- the "Cum mag-nopere." 
 This trial is required also when a crime is charg-ed 
 which ipso facto deprives the incumbent of his 
 office. 5° Before removal is decreed all preventive 
 remedies must have been tried in vain, and then after 
 trial the milder repressive punishments, such as 
 suspension, must first be tried in vain before dis- 
 missal may be decreed. Thus all canonists say that 
 dismissal must be used only as a last resort and then 
 by judicial sentence. For the effect of this sentence 
 on appeal, see n. 106 on pag"e 105. 
 
470 LEGAIv P'ORMULARY. 
 
 The crimes for which dismissal of an irremovable 
 rector may be ordered are: Alienation of property 
 of the parish without the solemnities of law; simony, 
 real or confidential; heresy, falsification of apostolic 
 letters, striking- a cardinal of the Holy Roman 
 church, 'assassination, sodom3% all of which crimes 
 deprive an incumbent of his benefice ipso jii7'e\ only 
 a declaratory sentence being* required after citation. 
 To these are added several from the Third Council 
 of Baltimore, for which see n. 105 above on pag^e 104, 
 or Third Council of Baltimore n. 38. 
 
 536. It is certain that a movable rector can be 
 removed from office or dismissed only as a punish- 
 ment for crime or for a breach of discipline, and then 
 only after atrial according" to "Cum mag-nopere." 
 (5. Cong-. Prof. 28 Mar. i88y.) Not for a trivial 
 offense, but only for a serious one may these rectors 
 be dismissed. Moreover they cannot be even trans- 
 ferred without a trial, when crime or a breach of 
 discipline is the alleg^ed reason. However, the crime 
 need not be so serious as in the case of an irremovable 
 rector. The present position of a movable rector 
 seems somewhat anomalous; for when charg^ed with 
 crime he is entitled to a trial before he can be trans- 
 ferred, and pending- the trial may retain possession 
 of his parish; but if he is without fault and is trans- 
 ferred, even to an inferior place, he must vacate his 
 parish immediately, and can only make a recourse to 
 the Holy See or the Apostolic Deleg-ation. After 
 patiently awaiting* a decision, even if finally re-in- 
 stated, he has no redress for the illeg-al expenses 
 entailed upon him, nor for the inevitable loss of g-ood 
 name because of the attempted transfer. 
 
SUPPORT WHEN DISMISSED. 471 
 
 537. When an ecclesiastic is dismissed from his 
 parish, even for crime as stated above, he is not and 
 cannot be deprived of necessary support; thoug^h he 
 has no claim to the comforts of life. (C/". Snialz- 
 griieber, I. 5, /. j^i, n. jos\ Miinchcn, vol. 2, pg-. 
 2J4; Streynler, Peines, pg. ji-33; III Conn. Bait, 
 n. y2; S. Cong. Prop. Feb. 4., iSyj.) 
 
 If the dismissed ecclesiastic has sufficient means of 
 his own, not however from his family or friends, the 
 bishop is not oblig"ed to g^ive him even the necessaries 
 of life. {Cf. Glossa, c. 23 de elect. /, 6.) Otherwise 
 the bishop certainly is oblig^ed to do so, especially if 
 the priest has been ordained titido niissionis. So 
 longf as there is a chance for repentance, such moder- 
 ate support must be g-iven according- to the decree of 
 the Propag-anda, of Feb. 4, 1873. When, however, 
 after repeated trials and warning-s the dismissed 
 cleric, no matter what was his office, is found unre- 
 pentant and persistent in a criminal life, then "after 
 the bishop has g^iven him a previous declaration to 
 the effect that because of such unworthiness he re- 
 mains deprived of the title of mission and conse- 
 quently of the rig^ht to support from the diocese; 
 just so long- as the priest perseveres in his evil course 
 without g-ivingf any sig-ns of sincere repentance, the 
 bishop is not oblig'ed to g"ive him support." Sup- 
 port for dismissed ecclesiastics mig-ht well be taken 
 from the fines assessed in court as punishments. 
 (See n. 525 above.) Support for ecclesiastics tem- 
 porarily suspended should be taken from their parish 
 or office. 
 
 538. From this decision of the Propag'anda it is 
 certain, conversely, that worthy priests even if In ill 
 
472 IvE^GAL FORMUI^ARY. 
 
 health and incapacitated for work are nevertheless, 
 because of the title of mission, entitled to support 
 from the diocese, and the bishop is obliged to see 
 that they receive it. Neither can this support be a 
 mere pittance, but it must be a congfruous support, 
 giving* not only the absolute necessaries but also the 
 ordinary comforts of life. Further, it is also certain 
 from the same decision that as a final punishment 
 even after dismissal the bishop may make a declara- 
 tion that the offending- ecclesiastic has forfeited his 
 title of ordination, that of mission. This declaratory 
 sentence cuts him off from all support; but even this 
 declaration must be withdrawn when the priest 
 shows signs of repentance. He must then again be 
 given necessary support. 
 
 539. Regarding the title of mission mentioned 
 above, when a priest is declared deprived of it, he 
 has really no title. But if he is ordained by the title 
 of patrimony, it cannot be forfeited and from the in- 
 come of such title he may derive .support even under 
 censure or dismissal. The Propaganda distinctly 
 advises that so far as possible other legitimate titles 
 instead of that of mission be introduced for ordina- 
 tion. Further when a priest ordained by other title 
 than that of mission changes his diocese, he is not to 
 take any oath, but only to make obedience to the 
 ordinary of his new diocese. In n. 194 above, it is 
 said, "a virtual incardination into a diocese, no mat- 
 ter what the title, occurs /^^o facto at the expiration 
 of three or five years' service unless the bishop has ex- 
 plicitly stated the contrary to the priest before the 
 end of such respective period." But this should not 
 be understood to exclude any other incardination. 
 
INCAKUINATION INTO DIOCESE. 473 
 
 With the consent of both bishops interested, 
 a priest may at once be g'iven an exeat from one dio- 
 cese and a written ineat into another, notice of the 
 acceptance bein^ ^iven to the bishop g"ivin^ the exeat. 
 If the priest is not ordained titulo viissionis, no other 
 formality is required. If ordained by the title of 
 mission since Nov. 30, 1885, and the dioceses are in 
 the same province then nothinor more is required, for 
 the oath is now widened so as to allow him to work 
 anywhere in the province. If ordained by the title of 
 mission before Nov. 30, 1885, he simply renews the 
 oath for his new diocese without consulting" the Holy 
 See. But when the dioceses are in a different prov- 
 ince then a new oath is to be taken and permission of 
 the Holy See obtained. However if the bishop, be- 
 fore a,ccepting- the applicant, wishes to g-ive him a 
 trial, he may do so first for three years; and if this 
 term is not deemed sufficient, it may be prolonged 
 two years more, provided the bishop has given the 
 priest proper notice before the expiration of the term 
 of three years to the effect that he wMshes the term 
 of trial extended so as to make five years in all. 
 Meantime the priest retains his title, whatever it 
 be, and his right to his old diocese. Before the end 
 of the five years' term the bishop is obliged to inform 
 the priest if he declines to admit him; otherwise by 
 the expiration of the five years the priest becomes 
 ipso facto incardinated into the new diocese. The 
 term of three years and again of five years, like 
 other terms in re beueficiaria, is to be stricth' con- 
 strued to the very dav. Such, too, has been the 
 holding of the Apostolic Deleg'ation in several cases, 
 
 and especially in one of 1896, wherein the question 
 61 
 
474 LEGAL FORMULARY. 
 
 was introduced whether the term beg"an with the 
 date of the bishop's letter of acceptance for trial, or 
 with the date of actual taking- possession of a mis- 
 sion in the diocese, which occurred some days later. 
 The following- form may be used for letters of con- 
 ditional excardination which become absolute per se 
 when the priest is admitted into another diocese, but 
 up to such time require for safety an annual report 
 to the bishop under whose jurisdiction the priest still 
 remains: 
 
 "N. Episcopus N — . Dilecto Nobis in Christo 
 Revdo N. N. salutem in Domino: 
 
 Cum tu, Revde Domine, propter rationes a Nobis 
 cog-nitas et admissas, ab hac nostra dioecesi definitive 
 excorporari cupias ut in aliam (seu in dioecesim N.) 
 ineas, decretis III Cone. Plen. Bait, inha^rentes, 
 votis tuis libenter annuimus; attestantes te esse sac- 
 erdotem bonis moribus imbutum et ab hac nostra 
 dioecesi abire nulla censura ecclesiastica neque alio 
 canonico impedimento aut poena, quod sciamus, irre- 
 titum. Volumus autem, ut praesentes litteras in 
 eventu incorporationis sive formalis sive praesumptiv^ 
 in aliam dioecesim ipso facto futurae sint litterae ex- 
 cardinationis. Ceterum, prsecipimus ut sinorulis 
 annis a die praesenti computandis, donee in aliam 
 dioecesim non sis legitime cooptatus, certiores Nos 
 facias de munere cui incumbas et de valitudine, sub 
 poena suspensionis Nobis reservatae ipso facto incur- 
 renda, trig-esimo die post annum elapso. In quorum 
 fidem pr^sentes litteras manu nostra sig-natas sigil- 
 loque nostro munitas exarari jussimus. Datum &c. 
 [l. s.] N. Episcopus N. 
 
 N. Cancellarius." 
 
 540. More severe than removal from office is the 
 punishment of deposition, which means that an 
 ecclesiastic is forever deprived of his office or benefice 
 
DEPOSITION. 475 
 
 and also of the rig-ht to exercise the functions or 
 power of his ordo. This punishment entails infamy, 
 and usually disqualification from holding- office for 
 the future is attached to it in the sentence. Even 
 after full penance and amendment, the deposed per- 
 son has no right to be restored. The bishop, while 
 not oblig^ed, may reinstate him if he judges fit, 
 provided the crime was not atrocious, such as wilful 
 murder. Deposition can be imposed only for crimes 
 which are enormous, g"ive g^reat scandal, and are ex- 
 pressly stated in law as meriting- deposition, such as 
 wilful murder, public concubinag-e, &c. 
 
 541. Deg-radation, which is rarely inflicted to-day, 
 is a canonical punishment by which an ecclesiastic is 
 wholly and forever deprived of the exercise of the 
 power of orders, and also of all benefices, and is re- 
 duced to the state of a layman. Deg-radation can be 
 inflicted only for enormous crimes and only when the 
 law especially attaches such punishment, and then as 
 a last resort. At present the bishop can inflict ver- 
 bal deg-radation, i. e. by sentence; but actual degra- 
 dation or the execution of the sentence formerly 
 could be had only by twelve bishops assisting- to 
 impose it on a bishop, six bishops on a priest, and 
 three bishops on a deacon. At present the bishop, 
 instead of being- bound to have six bishops or three 
 respectively, can use six or three mitred abbots, or 
 also other persons in dig-nit3% who are of gTeat 
 weig-ht by their ag-e and knowledg-e of canon law. 
 These persons are actually associate judg-es and have- 
 not only a deliberative but a decisive vote in the 
 sentence. 
 
 All vindicatorv punishments must be inflicted as a 
 
476 LEGAL FORMULARY. 
 
 definitive sentence after trial, or as a declaratory 
 sentence after trial when the law ipso facto imposes 
 the punishment. The forms for such sentences are 
 given above in n. 429 and 499. Infamy and irregu- 
 larity are also serious punishments consequent on 
 crime, and often included with other punishments. 
 They are prohibitive from orders and benefices and 
 require an explicit dispensation. While irreg'ularity 
 for crime and also for infamy is contracted ifso 
 facto, still for the external forum a declaratory sen- 
 tence is g^enerally required. This declaration may 
 be included in the sentence for the crime after trial. 
 For a more extensive treatment of these punishments 
 special works on canon law^ should be consulted. 
 
CHAPTER XXIII. 
 
 EXCOMMUNICATIONS, SUSPENSIONS, INTERDICTS 
 
 EAT^ SENTENTI^. 
 
 542. For convenient reference a list of the cen- 
 sures which are latcB sentcnticc throughout the world 
 
 « 
 
 is ^iven below^: 
 
 PRIMA TABELLA. 
 
 In hac prima tabella continentar excommunicationes Romano 
 Pontifici specialiter reservatae. 
 
 1. Omnes a Christiana Fide apostatas et omnes ac sin^nilos 
 haereticos, quocumque nomine censeantur et cujuscumque sectae 
 exsistant, eisque credentes; eorumque receptores, fautores, ac 
 generaliter quoslibet illorum defensores. 
 
 2. Omnes et singulos scienter legentes sine auctoritate Sedis 
 Apostolicae libros eorumdum apostatarum et haereticorum haer- 
 esim propugnantes, necnon libros cujiisvis auctoris per Apostoli- 
 cas Litteras nominatim prohibitos, eosdemque libros retinentes, 
 imprimentes et quomodolibet defendentes. 
 
 3. Schismaticos, et eos qui a Romani Pontificis pro tempore ex- 
 sistentis obedientia pertinaciter se subtrahunt, vel recedunt. 
 
 4. Omnes et singulos, cujuscumque status, gradus seu condi- 
 tionis fuerint, ab ordinatiouibus seu mandatis Romauorum Pon- 
 tificum pro tempore exsistentium ad universale futurum Con- 
 cilium appellantes, nee non eos, quorum auxilio, eonsilio vel 
 favore appellatum f uerit. 
 
 5. Omnes interlicientes, mutilautes, percutientes, capientes, 
 carcerantes, detinentes, vel hostiliter insequeutes S. R. E. Cardi- 
 nales, Patriarchas, Archiepiscopos, Episcopos, Sedisque Apos- 
 tolicae Legatos vel Nuntios, aut eos a suis Dioecesibus. Territoriis, 
 Terris seu Dominiis ejicientes, nee non ea mandantes vel rata 
 habentes seu praestantes in eis auxilium, consilium vel favorem. 
 
 6. Impedientes directe vel indirecte exercitium jurisdictionis 
 ecclesiasticae sive interni sive externi fori, et ad hoc recurrentes 
 
 477 
 
478 LEGAL FORMULARY. 
 
 ad forum saeculare, ejusque mandata procurantes, edentes, aut 
 auxilium, consilium vel favorem praestantes. 
 
 7. Cogentes sive directe sive indirecte judices laicos ad trahen- 
 dum ad suum tribunal personas ecclesiastioas praeter canonicas 
 dispositiones; item edentes leges vel decreta contra libertatem aut 
 jura Ecclesiae. 
 
 8. Recurrentes ad laicam potestatem ad impediendas litteras 
 vel acta quaelibet a Sede Apostolica, vel ab ejusdem Legatis aut 
 Delegatis quibuscumque profecta, eorumque promulgationem vel 
 executionem directe vel indirecte' prohibentes, aut eorum causa 
 sive ipsas partes sive alios laedentes vel perterrefacientes. 
 
 9. Omnes falsarios Litterarum Apostolicarum, etiam in forma 
 Brevis ac supplicationum gratiam vel justitiam concernentium 
 per Romanum Pontiflcem, vel S. R. E. Vice-Cancellarios seu 
 Gerentes vices eorum aut de mandato ejusdem Romani Pontificis 
 signatarum; nee non falso publicantes Litteras Apostolicas, etiam 
 in forma Brevis, et etiam falso signantes supplicationes hu jus- 
 modi sub nomine Romani Pontificis, seu Vice-Can(?ellarii aut 
 Gerentis vices praedictorum. 
 
 10. Absolventes complicem in peccato turpi etiam in mortis 
 articulo, si alius Sacerdos, licet non approbatus ad confessiones, 
 sine gravi aliqua exoritura infamia et scandalo possit excipere 
 morientis confessionem. 
 
 11. Usurpantes aut sequestrantes jurisdictionem, bona, reditus 
 ad personas ecclesiasticas, ratione suarum ecclesiarum aut bene- 
 ficiorum pertinentes. 
 
 12. Invadentes, destruentes, detinentes per se vel per alios, civi- 
 tates, terras, loca aut jura ad Ecclesiam Romanam pertineutia; 
 vel usurpantes, perturbantes, retinentes supremam jurisdictionem 
 in eis; nee non ad singula praedicta auxilium, consilium, favorem 
 praebentes. 
 
 13. a) Canonici ac Dignitates Cathedralium Ecclesiarum 
 vacantium, qui ausi fuerint concedere et transferre Ecclesiae 
 vacantis curam, regimen et administrationem sub quovis titulo, 
 nomine, quaesito colore, in nominatum et praesentatum a laica 
 potestate, ante exhibitionem Literarum Apostolicarum. 
 
 b) Nominati et praesentati vel ut supra electi ad vacantes Eccle- 
 sias, qui earum curam, regimen et administrationem suscipere 
 audent sub nomine Provisoris, Vicarii generalis aliove nomine, ex 
 concessione et translatione in eis peracta a Dignitatibus et Canoni- 
 cis, aliisque qui, deficientibus Capitulis, Vicarios deputant aut 
 vacantes Ecclesias legitime administrant. 
 
 c) li omnes qui praemissis paruerint, vel auxilium, consilium 
 
EXCOMMUNICATIONES LATAE. 479 
 
 aut favorem praestiterint, cu.juscumque status, conditiouis, prae- 
 eminentiae et dignitatis fuerint. 
 
 14. Omnes et singali nomine dantes, vel quomodocumque 
 faventes, vel adhaerentes Societati in eum finem institntae. vel 
 instituendae ut, quandocnmqae Apostolica Sedes vacaverit, pop- 
 ulus Romanus concurrat in summi Pontificis electione. 
 
 SECUNDA TABELLA. 
 
 543. In hac secunda tabella referuntur omnes excommunica- 
 tiones quae sunt simpliciter reservatae Romano Pontifici. 
 
 1. Docentes vel defend entes sive publice sive privatim proposi- 
 tiones ab Apostolica Sede damnatas sub excommunicationis poena 
 latae sententiae; item docentes vel defendentes tamquam licitam 
 praxim inquirendi a poenitente nomen complicis, prouti damnata 
 est a Benedicto XIV in Const. 'S'icpreina, 7 Jul. 1745; Ubi primum 
 2 Julii 1746: Ad eradicandum, 28 Septembris 1746. 
 
 2. Violentas manus, suadente diabolo, injicientes in Clericos vel 
 utriusque sexus Monachos, exceptis quoad reservationem casibus 
 et personis, de quibus jure vel privilegio permittitur, ut Episcopus 
 aut alius absolvat. 
 
 3. Duellum perpetrantes, aut simpliciter ad illud provocantes 
 vel ipsum acceptantes, et quoslibet complices vel qualemcumque 
 operam aut favorem praebentes, nee non de industria spectantes, 
 illudque permitteutes vel, quantum in illis est, non prohibentes, 
 cujuscumque dignitatis sint, etiam regalis vel imperialis. 
 
 4. Nomen dantes sectae Massonicae aut Carhonariae aut aliis 
 ejusdem generis sectis, quae contra Ecclesiam vel legitimas potes- 
 tates seu palam, seu clandestine machinantur, nee non iisdem 
 sectis favorem qualemcumque praestantes: earumve occultos cory- 
 phaeos ac duces non denuntiantes, donee non denuntiaverint, 
 
 5. Immunitatem asyli ecelesiastici ausu temerario violare 
 jubentes aut violantes. 
 
 6. Violantes clausuram Monialium, cujuscumque generis aut 
 conditionis, sexus vel aetatis fuerint, in earum xMonasteria absque 
 legitima licentia ingrediendo; pariterque eos introducentes vel 
 admittentes: itemque Moniales ab ilia exeuntes extra casus ac 
 formam a S. Pio V in Const. Decor i praescriptam. 
 
 7. Mulieres violantes Regularium virorum clausuram, et Supe- 
 riores aliosve eas admittentes. 
 
 8. Reos simoiiiae realis in benefieiis quibuscumque eorumque 
 complices. 
 
 9. Reos simoniae eonfidentialis in benetieiis quibuslibet. cujus- 
 cumque sint dignitatis. 
 
480 LEGAL FORMULARY. 
 
 10. Reos sjmoniae realis ob ingressum in Religionem. 
 
 11. Omnes qui, quaestum facientes ex Indulgentiis aliisque 
 gratiis spiritaalibus, excommunicationis censura plectuntur 
 Const. S. Pii V, Quam plemoii, 2 Jan. 1569. 
 
 12. Colligentes eleemosynas majoris pretii pro Missis et ex iis 
 lucrum captantes faciendo eas celebrari in locis, ubi Missarum 
 stipendia minoris pretii esse solent. 
 
 13. Omnes qui excommunicatione mulctantur in Constitutioni- 
 bus S. Pii V, Admonet nos, quarto kalendas Aprilis 1567; Innocenti 
 IX, Quae ab hac Sede, pridie nonas Novembris 1591; dementis 
 VIII, Ad Romani Pontiftcis curmn, 25 Junii 1592, et Alexandri VII, 
 Inter ceteras, nono kalendas Novembris 1660, alienationem et in- 
 feudationem civitatum et locorum S. R. E. respicientibus. 
 
 14. Religiosi praesumentes Clericis aut laicis extra casum neces- 
 sitatis Sacramentum Extremae Unctionis aut Eucharistiae per 
 viaticum ministrare absque Parochi licentia. 
 
 15. Extrahentes absque legitima venia reliquias ex sacris Coe- 
 meteriis sive Catacumbis Urbis Romae ejusque territorii, eisque 
 auxilium vel favorem praebentes. 
 
 16. Communicantes cum excommunicato nominatim a Papa in 
 crimine criminoso, ei scilicit impendendo auxilium vel favorem. 
 
 17. Clericos scienter et sponte communicantes in divinis cum 
 personis a Romano Pontifice nominatim excommunicatis et ipsos 
 in Officiis recipientes. 
 
 18. Absolvere praesumentes ab excommunicationibus Romano 
 Pontiflci speciali modo reservatis, etiam quovis praetextu, revo- 
 catis indultis concessis sub quavis forma et quibusvis personis 
 etiam Regularibus cujuscumque Ordinis, Congregationis, Socie- 
 tatis et Instituti, etiam speciali mentione dignis et in quavis dig- 
 nitate constitutis. 
 
 19. Si quem Clcricorum vel laicorum, quacumque is dignitate, 
 etiam imperiali aut regali, praefulgeat, in tautum malorum om- 
 nium radix cupiditas occupaverit, ut alicujus ecclesiae seu cujus- 
 vis saecularis velregularis beneficii, montium pietatis, aliorumque 
 piorum locorum jurisdictiones, bona, census ac jura etiam feudalia 
 et emphyteutica, fructus, emolumenta seu quascumque obven- 
 tiones, quae in ministrorum et pauperum necessitates converti 
 debent, per se vel per alios vi vel tiniore incusso, seu etiam per 
 suppositas personas Clericorum aut laicorum, seu quacumque 
 arte aut quocumque quaesito colore in proprios usus convertere, 
 illosque usurpare praesumpserit, seu impedire ne ab iis, ad quos 
 jure pertinent, percipiantur; is anathemati tamdiu subjaceat, 
 quamdiu jurisdictiones, bona, res, jura, fructus et reditus, quos 
 
EXCOMMUNICATIONES LATAE. 481 
 
 occupaverit vel qui ad eum quomodociimque, etiam ex donatione 
 suppositae personae, perveuerint, ecclesiae ejiisque admiiiistratori 
 sive beneficiato integre restituerit, .ac deinde a Romano Pontifice 
 absolutionem obtiuuerit.— Ex Cone. Trid. sess. 22, c. 11, de lie/or m. 
 
 TERTIA TABELLA. 
 
 544. Haec tertia tabella continet excommuiiicatioiies Episcopis 
 sive Ordinariis locorum reservatas. 
 
 1. Clericos in Sacris constitutos vel Regulares aut Moniales post 
 votum solemne castitatis Matrimonium contrahere praesumentes; 
 nee non omnes cum aliqua ex praedictis personis Matrimonium 
 contrahere praesumentes. 
 
 2. Procurantes abortum, effect u secuto. 
 
 3. Litteris Apostolicis falsis scienter utentes vel crimiui ea in 
 re cooperantes. 
 
 4. Laici turpe mercimonium circa missarum stipendia exer- 
 centes. Deer. Congr. Cone. "Vigilanti studio," d. d. 25 Maji 1893. 
 
 QUARTA TABELLA. 
 
 545. In hac tabella continentur excommunication es nemini 
 reservatae. 
 
 1. Mandantes seu cogentes tradi ecclesiasticae sepulturae haer- 
 eticos notorios aut nominatim excommunicates vel interdictos, 
 
 2. Laedentes aut perterrefacieutes Inquisitores, denuntiantes' 
 testes, aliosve ministros S. Officii, ejusve Sacri Tribunalis scrip- 
 turas diripientes, aut comburentes, vel praedictis quibuslibet 
 auxilium, consilium, favorem praestantes. 
 
 3. Alienantes et recipere praesumentes bona ecclesiastica absque 
 beneplacito Apostolico, ad formam extra vagantis Ambitiosae de 
 Reb. Eccl. non alienandis. 
 
 {Extvav. coiiDit. I. ;>, t. 4, (•<(/>. iinic. de rebus Kcclesidc non 
 alienandi.s.) 
 
 4. Negligentes sive culpabiliter omittentes denuntiare infra 
 mensem Confessarios sive Sacerdotes, a quibus sollicitati fuerint 
 ad turpia in quibuslibet casibus expressis a Praedecess. Nostris 
 Gregorio XV, Constit. [J')iivcrs>\ 20 Augusti lt)22, et Benedicto XIV. 
 Constit. tSacrameiitum Poenifevfiac, 1 Junii 1741. 
 
 5. Libros de rebus sacris tractantes sine Ordinarii approbatione 
 imprimentes aut imprimi facientes. 
 
 6. Bonifacii VIII Constitutionem, quae incipit Po iculoso, reno- 
 vans saucta Synodus. uuiversis Episcopis sub obtestatione divini 
 judicii et intei-minatione maledictionis aeternae praecipit, ut in 
 omnibus Monasteriis sibi subjectis ordinaria, in aliis vero Sedis 
 Apostolicae auctoritate, clausuram Sanctimonialium. ubi violata 
 
 02 
 
482 IvEGAL FORMULARY. 
 
 fiierit, diligenter restitui, et ubi inviolata est, conservari maxinie 
 procurent, inobedientes atque contradictores per censuras ecclesi- 
 asticas aliasque poenas, quacumque appellatione postposita, com- 
 pescentes, invocato etiam ad hoc, si opus fuerit, auxilio brachii 
 "saecularis. Quod auxilium, ut praebeatur, omues' christianos Prin- 
 cipes hortatur saucta Synodus, et sub excommunicationis poena 
 ipso facto incurreuda, omnibus magistratibus saecularibus injun- 
 git. i&'ess. 25, c. 5, cle liegul. ) 
 
 7. Decernit sancta Synodus, inter raptorem et raptam, quamdiu 
 ipsa in potestate raptoris manserit, nullum posse consistere Matri- 
 monium. Quod si rapta a rajjtore separata et in loco tuto et libero 
 constituta ilium in virum habere consenserit, eam raptor in 
 uxorem habeat, etnihilominus raptor ipse ac omnes illi consilium, 
 auxilium et favorem-praebentes, sint ipso jure excommunicati. 
 (/S'e^'.s. 24. cap. 6, de Bcforvi. Matritn.) 
 
 8. Praecipit sancta Synodus omnibus, cujuscumque gradus, dig- 
 nitatis et conditionis exsistant, sub anathematis poena, quam ipso 
 facto incurrant, ne quovis modo directe vel indirecte subditos suos 
 vel quoscumque alios cogant, quominus libere Matrimonia con- 
 trahant. {Sess. 24, cap. 9, de Befonn. Mairha.) 
 
 0. Anathemati sancta Synodus subjioit omnes et singulas per- 
 sonas, cujuscumque qualitatis vel conditionis fuerint, tam Clericos 
 quam laicos, saeculares vel Regulares, atque etiam qualibet digni- 
 tate fungentes, si quomodolibet coegerint aliquam virginem vel 
 viduam, aut aliam quamcunque mulierem, praeterquam in casibus 
 in jure expressis; ad ingrediendum Monasterium, vel ad suscip- 
 iendum habitum cujuscumque Religionis, vel ad emittendam pro- 
 fessionem, quique consilium, auxilium vel favorem dederint, quique 
 scientes eam non sponte ingredi Monasterium aut habitum sus- 
 cipere, aut professionem emittere, quoquo modo eidem actui vel 
 praesentiam vel consensum vel auctoritatem interposuerint. 
 Similiquoque anathemati subjicit eos, qui sanctarum virgin um vel 
 aliarum mulierum voluntatem veli a^ccipiendi vel voti emittendi 
 quoquo modo sine justa causa impedierint, {Sess. 25, Cap. 18, de 
 jRegnl.) 
 
 10. Omnes qui excommunicatione mulctantur in Constitutioni- 
 bus Urbani VIII, Ex debito, die 21 Febr. 1633, et Clementis IX 
 SolUcitudo, die 17 Julii 1669, respicientibus mercaturas et negotia- 
 tiones saeculares in Indiis Orientalibus, et in America tam Aus- 
 trali, quam Septentrional!. 
 546. SUSPENSIONES IN CONST. "APOS. SEDIS" EXPRESSAE. 
 
 1. Suspensionem ipso facto incurrunt a suorum beneficiorum 
 perceptione, ad beneplacitum S. Sedis, Capitula et conventus 
 
SUSPENSIONES LATAE. 483 
 
 Ecclesiarum et Monasterioriim, aliiqae omnes, qui ad illarum seu 
 illorum regimen et administrationem recipiunt Episcopos aliosve 
 Praelatos de praedictis Ecclesiis sen Monasteriis apud eamdem S. 
 Sedem quovis modo provisos, antequam ipsi exhibuerint Litteras 
 Apostolicas de sua promotioue. 
 
 2. Suspensionem per trieiiuium a coUatione Ordinum ipso jure 
 incurrunt aliquem ordinantes absque titulo beneficii vel patrimonii 
 cum pacto, ut ordinatus non petat ab ipsis alimenta. 
 
 3. Suspensionem per annum ab Ordinum administratione ipso 
 jure incurrunt ordinantes alienum subditum, etiam sub praetextu 
 beneficii statim conferendi, aut jam collati, sed minime sufficientis, 
 absque ejus Episcopi litteris dimissorialibus, vel etiam subditum 
 proprium, qui alibi tanto tempore moratus sit, ut canonicum im- 
 pedimentum contrahere ibi potuerit, absque Ordiuarii ejus loci 
 litteris testimonialibus. 
 
 4. Suspensionem per annum a collatione Ordinum ipso jure iu- 
 currit, qui, excepto casu legitimi privilegii, Ordinem sacrum con- 
 tulerit absque titulo beneficii vel patrimonii Clerico in aliqua Con- 
 gregatione viventi, in qua solemnis professio non emittitur, vel 
 etiam Religioso nondum professo, 
 
 5. Suspensionem perpetuam ab exercitio Ordinum ipso jure in- 
 currunt Religiosi ejecti, extra Religionem degentes. 
 
 6. Suspensionem ab Ordine suscepto ipso jure incurrunt. qui 
 eumdem Ordinem recipere praesumpserunt ab excommunicato vel 
 suspense vel interdicto nominatim denuntiatis, aut ab haeretico 
 vel schismatico notorio; eum vero qui bona fide a quopiam eorum 
 est ordinatus, exercitium non habere Ordiuis sic suscepti, donee 
 dispensetur, declaramus. 
 
 7. Clerici saeculares exteri ultra quatuor menses in Urbe Roma 
 commorantes ordinati ab alio quam ab ipso suo Ordiuario absque 
 licentia Card. Urbis Vicarii, vel absque praevio examine coram 
 eodem peracto, vel etiam a proprio Ordinario posteaquam in prae- 
 dicto examine rejecti fuerint: nee non Clerici pertiuentes ad ali- 
 quem e sex episcopatibus suburbicariis. si ordinentur extra suam 
 dioecesim, dimissorialibus sui Ordinarii ad alium directis quam ad 
 Card. Urbis Vicarium: vel non praemissis ante Ordiuem sacrum 
 suscipiendum exercitiis spiritualibus per decem dies in domo 
 urbaua Sacerdotum a Missione nuncupatorum, suspensionem ab 
 Ordinibus sic susceptis ad beneplacitum S. Sedis ipso jure incur- 
 runt; Episcopi vero ordinantes ab usu pontificalium per annum. 
 
 5i7. SUSPENSIONES A CONCILIO TRIDENTINO LATAE. 
 1. Abbates, Collegia. Capitula et alii quicumque, dimissorias sibi 
 
484 LEGAT. FORMULARY. 
 
 non subditis concedentes, ab officio et beneflcio per annum sint 
 ipso jure suspensi. {Sess. 23, caj). 10, de Reform.) 
 
 2. Ordinautes sibi non subditos, nisi horum probitas ac mores 
 Ordinariorum suorum testimonio commendentur, a collatione Or- 
 dinum per annum; sic vero ordinati a susceptorum Ordinum exe- 
 cutione, quamdiu proprio Ordinario videbitur e'xpedire, sint sus- 
 pensi. {Sess. 23, cap 8, de Heform.) 
 
 3. Nemo Episcoporum, qui titulares vocantur, etiamsi in loco 
 nullius dioecesis, etiam exempto, aut aliquo Monasterio cujusvis 
 Ordinis resederint, aut moram traxerint, vigore cujusvis privilegii 
 sibi de promovendo quoscumque ad se venientes pro tempore con- 
 cessi, alterius subditum, etiam praetextu familiaritatis continuae, 
 commensalitatis suae, absque sui proprii Praelati expresso con- 
 sensu aut litteris dimissoriis, ad aliquos sacros aut minores Ordines 
 vel primam tonsuram promo vere seu ordinare valeat. Contra 
 f aciens ab exercitio pontificalium per annum, taliter vero promotus 
 ab exercutione Ordinum sic susceptorum, donee suo Praelato visum 
 fuerit, ipso jure sint suspensi. [Sess. 14, cap. 2, de Reform.) 
 
 4. Nulli Episcopo liceat cujusvis privilegii praetextu pontificalia 
 in alterius dioecesi exercere, nisi de Ordinarii loci expressalicentia, 
 et in personas eidem Ordinario subjectas tantum. Si secus factum 
 fuerit, Episcopus ab exercitio pontificalium, et sic ordinati ab ex- 
 ecutione Ordinum sint ipso jure suspensi. {^ess. 0, ccfp. 5, de 
 Reform.) 
 
 5. Qui non arctatur occasione beneficii recepti vel recipiendi, et 
 sede vacante, acceptis infra annum a die vacationis dimissoriis a 
 Capitulo, ordinatur; si fuerit tali ordinatione in Minoribus con- 
 stitutus, non gaudet privilegio clericali; si in Majoribus, ipso jure 
 suspenditur ab eorum executione ad beneplacitum f uturi Praelati. 
 {fSess. 7, cap. 10, de Reform. ) 
 
 6. Si quis Parochus vel alius Sacerdos, sive regularis sive saecu- 
 laris sit, etiam si id sibi ex privilegio vel immemorabili consue- 
 tudine licere contendat, alterius parochiae sponsos sine illorum 
 Paroohi licentia Matrimonio conjungere aut benedicere ausus 
 fuerit, ipso jure tamdiu suspensus maneat, quamdiu ab Ordinario 
 ejus Parochi, qui Matrimonio interesse debebat, seu a quo bene- 
 dictio suscipienda erat, absolvatur. {Sess. 24, cap. 1, de Reform.) 
 
 7. Episcopi, quod absit, si concubinas aut alias mulieres de qui- 
 bus possit haberi suspicio, in domo vel extra detineant, aut cum 
 iis ullam consuetudinem habeant, eta synodo provinciali admoniti 
 se non emendaverint, ipso facto sint suspensi. (Sess. 25, cap. 14, 
 de Reform.) 
 
 8. Contrahentes excommunicationem latae sententiae Rom. Pon- 
 tifici speciali modo reservatam, si episcopali charactere sint insig- 
 
SUSPENSIONES LATAE. 485 
 
 niti, in poenam suspensionis ab exercitio poutiHcalium, et iuter- 
 dicti ab in^ressii ecclesiae ipso facto, absque ulla declaratione, iii- 
 cidunt, S. Sedi pariter -speciali modo reservatam. (C'on.st. Roinnnus 
 Pont if ex. ) 
 
 9, Ex decreto S. C. C. d. d. 25 Maji 1893 Sacerdotes turpe merci- 
 moniuni circa missarum stipeudia a.i^entcs ipso facto siispeiisioiiem 
 a diviuis S. Sedis reservatam iuciirriiiit: item clerici noudum sacer- 
 dotes eandem suspensiouem quoad susceptos ordines incurrunt et 
 iuhabiles fiunt ad superiores ordines recipiendos. (" llfjildnti 
 Studio,'' Maii2h, 1893, S. C. C.) 
 
 548. INTERDICTA IN CONST. "APOS. SEDIS" CONTENTA. 
 
 1. Interdictum Romano Pontifici speciali modo reservatum ipso 
 jure incurrunt Universitates, Collegia et Capitula, quocumque 
 nomine nuncupentur, ab ordinationibus seu mandatis ejusdem 
 Romani Pontiflcis pro tempore exsistentis ad universale futurum 
 Concilium appellantia. 
 
 2. Scienter celebrantes vel celebrari facientes divina in loeis ab 
 Ordinario, vel delegato Judice, vel a jure interdictis: aut nomiua- 
 tim excommunicatos ad divina Officia, seu ecclesiastica Sacra- 
 meuta, vel ecclesiasticam sepulturam admittentes, interdictum ab 
 ingressu ecclesiae ipso jure incurrunt, donee ad arbitrium ejus, 
 cujus sententiam contempserunt, competenter satisfecerint. 
 
 549. INTERDICTA LATA A CONCILIO TRIDENTINO. 
 
 3. Metropolitanus suffraganeos Episcopos absentes, Metropoli- 
 tanum vero absentem suffraganeus Episcopus antiquior residens, 
 sub poena interdicti ecclesiae eo ipso incurrenda infra tres menses 
 per litteras seu nuntium Romano Pontifici denuntiare teneatur. 
 (tS'ess. (3, cap. 1, de Reform.) 
 
 4. Capitulum, Sede vacante, dans infra annum a die vacationis, 
 dimissorias ad Ordines, ei qui non arctatur oceasione beneticii 
 recepti vel recipiendi, ecclesiastico subjacet interdicto. (-sv.s.s. 7, 
 eaj). 10, de Reform.) 
 
 550. The specific vindicatory punishments at- 
 tached to various crimes by the sacred canons may 
 be found in the Corpus Juris from which the law 
 should be quoted in the sentence. Faults ag"ainst 
 discipline are usually specified in diocesan statutes 
 and the sanction therein laid down, if not extrava- 
 g'ant, can be inflicted after due trial. Hence it seems 
 unnecessar3\ and for other reasons also inadvisable, 
 to insert in this Formulary a list of crimes and the 
 specific punishment attached to each. 
 
CHAPTER XXIV. • 
 
 THE "cum MAGNOPERE." 
 
 Instruction of the Sacred Congregation de Prop. Fide on the 
 manner of proceeding which must be observed in the United States 
 of North America, where there is question of hearing and deciding 
 criminal and disciplinary causes of ecclesiastics. 
 
 This sacred Council deems it of great importance that in eccle- 
 siastical trials such a method of proceeding shall be observed, as 
 will be well adapted to the wants of the times, wholly adequate to 
 the regular administration of justice, and fully sufficient to pro- 
 tect the authority of Prelates, as well as to stop complaints on the 
 part of the accused. Hence it has pleased this Sacred Congrega- 
 tion to re-examine all those enactments which were made in this 
 matter for the United States of North America, and laid down in 
 the Instruction of July 20, 1878, and in the subsequent Response 
 to doubts concerning the same. Therefore, the Sacred Congrega- 
 tion haviog maturely weighed all things, with the approval of our 
 Most Holy Father, Pope Leo XIII, has decreed that what follows 
 shall be observed in future, and that consequently the previous 
 Instruction and the subsequent Declarations are hereby abro- 
 gated, with the exception of what is contained in the present 
 Instruction. 
 
 I. The Ordinary is bound, by virtue of his pastoral office, dili- 
 gently to look after the discipline and correction of ecclesiastics. 
 Hence he should watch assiduously over their conduct, and make 
 wise use of the remedies established by the canons, for the purpose 
 either of preventing or of doing away with abuses which sometimes 
 creep in among the clergy. 
 
 IT. These remedies are of two kinds; some Eire preventive, others 
 repressive. The former have for their object the prevention of 
 evils, the removing of causes of scandal, and the avoiding of volun- 
 tary proximate occasions of sin. The latter are established for the 
 purpose of recalling the delinquent to the path of duty, and of 
 taking away the effects of the offences committed by him. 
 
 III. The application of any of these remedies is left to the con- 
 scientious discretion of the Ordinary, provided, however, the pre- 
 
 486 
 
CUM MAGNOPERE. 487 
 
 scriptioiis of the sacred canons be observed, according to tlie grav- 
 ity of the case and the attendant circumstances. 
 
 IV. The following are the chief preventive remedies: Spiritual 
 exercises, admonitions, precepts. 
 
 V. However, before they are imposed upon any one, tlie facts 
 calling for them must be verified in a summary manner. The 
 Ordinary should take care to preserve a written record of this 
 summary verification or inquiry, in order that he may be aVjle, if 
 need be, to proceed to ulterior measures, and in the case of lawful 
 recourse, to ,give an accurate account of the entire affair to the 
 higher ecclesiastical authority. 
 
 VI. The canonical warnings may be made either secretly (also by 
 letter, or by means of a third person), by way of paternal correc 
 tion, or they may be given with the formalities prescribed by law, 
 provided always that the fact of their having been really given ap- 
 pears from some act. 
 
 VII. If the admonitions fail to produce any effect, the Ordinary 
 will order the curia to communicate to the delinciuent a precept 
 analogous to the warnings. This precept should state what the 
 delinquent must do or avoid, and also explain what ecclesiastical 
 punishment will be inflicted upon him in case he disobeys the 
 precept. 
 
 VIII. The precept will be enjoined upon the delinquent by the 
 chancellor of the curia, in the presence of the vicar general, or of 
 two ecclesiastics, or laics of probity, as witnesses. 
 
 1° The act of the enjoioing of the precept is signed by the parties 
 present, and also by the delinquent, if he wishes. 
 
 2^ The vicar general can impose upon the witnesses the oath to 
 observe secrecy, if this is prudently required, on account of the 
 nature of the case. 
 
 TX. So far as concerns repressive remedies or punishments, Ordi- 
 naries will remember that the extrajudicial remedy established by 
 the council of Trent, sess. XIV, cap. 1, de Ref., for occult crimes, 
 remains in full force. 
 
 X. In a criminal action instituted either for the violaiiou of the 
 precept or for common crimes, or for the transgression of ecclesi- 
 astical laws, the trial will be conducted in a summary manner and 
 without the nice formalities of solemn trials, yet so that the rules 
 of justice be always observed in all their substance, 
 
 XI. The trial is begun c.r officio, and that either on cccasion of 
 complaints, or of accusations, or of information brought to the 
 curia in any way w hatever: and is carried to its end in such a man- 
 ner that the truth will, in all sincerity and prudence, be discov- 
 
488 lf:gat^ formulary. 
 
 ered and that a clear knowledge will be obtained both of the crime 
 itself and the guilt or innocence of the accused. 
 
 XII. Where curiae are already established the comjnlatio pro 
 ee.ssus, that is, the conduct of the trial, consisting in the gathering 
 together of the evidence of both parties, may be entrusted to a 
 worthy and expert ecclesiastic, who shall be attended by a 
 secretary. 
 
 In those dioceses, however, in which episcopal courts cannot as 
 yet be established, the Instruction of 1878, together with the sub- 
 sequent answer to the proposed doubts concerning the same, shall 
 be meanwhile observed. That is, each bishop, after having heard 
 theadviceof his clergy assembled in diocesan synod — which advice, 
 however, he is not bound to follow — shall appoint five, or where 
 this number cannot be had, at least three of the most worthy 
 priests, and who are, as far as possible, learned in canon law, to 
 discharge the duties outlined in said Instruction. Where, for 
 some grave reason, the synod cannot be held, five or three ecclesi- 
 astics, as above, will be appointed by the bishop to this office. 
 The members thus chosen will remain in office till the next dio- 
 cesan synod, when they may be confirmed or others selected in 
 their stead. But should the prescribed number of these councillors 
 be sometimes lessened whether by death, resignation or other 
 cause, the bishop, having taken the advice of the remaining men- 
 bers of the Commission, will appoint others in their stead. This 
 Commission of Consultors, which is bound by oath to discharge its 
 duties faithfully, will conduct its proceedings under the presidency 
 of the bishop or his vicar general. However, the summing up or 
 final defense of the accused must be made -in writing, in the man 
 ner laid down in the present Instruction. 
 
 XIII. A diocesan procurator shall be appointed in every episco- 
 pal curia, in order that justice and law may be upheld. 
 
 XIV. For delivering intimations and notices where no official 
 messengers are attached to the curia, the bishop shall employ 
 some reliable person who shall deliver them and inform him of 
 such delivery. These notices may also be sent by the curia, by 
 registered mail, (where this postal system exists), in which case a 
 receipt of their having been accepted or refused, should be 
 obtained. 
 
 Intimations and notifications must always be absolutely in 
 writing. 
 
 XV. The groundwork upon which the procurator fiscalis bases 
 his charges, so far as the oft'ense or crime is concerned, can be ob- 
 tained from the information obtained in the manner indicated 
 
CUM MAGNOPEKE. 489 
 
 above, under articles V and XI. This expose or information should 
 be corroborated by inquiries from authentic sources, or by extra- 
 judicial confessions, or by the depositions of witnesses. This 
 groundwork, so far as the violation of the precept is concerned is 
 obtained from the precept itself, and the acts of its having been 
 enjoined in accordance with articles VII and VIII. 
 
 XVI. However, in order to assume the accused guilty, so as to 
 cite him for trial and eventually convict him, legal proof is re- 
 quired. This legal proof must be made up of such elements as 
 will really and fully demonstrate the truth, or at least create a 
 moral conviction of the guilt of the accused and remove all reason- 
 able doubt to the contrary. 
 
 XVII. Persons who are subjected to examination are heard sep- 
 arately, that is, apart from each other. 
 
 XVIII. The witnesses, whether for the prosecution or for the 
 defence, in case the secular law does not forbid it, should take the 
 oath to tell the truth and also if the case demands it to observe 
 secrecy. Consequently, before they testify they shall swear that 
 they will tell the truth and also observe secrecy. With greater 
 reason, all those who take any part in the proceedings, by virtue of 
 their office, must swear that they will discharge their duties faith- 
 fully and also observe secrecy, as far as the nature of the case 
 requires. 
 
 XIX. Witnesses who are in a distant part of the diocese, or in a 
 different diocese altogether, shall be examined by the ecclesiastical 
 authority of the place where they are. For this purpose a state- 
 ment of the case is transmitted to it. This authority shall, in com- 
 plying with the request to examine the witnesses, observe the rules 
 laid down in this Instruction. 
 
 XX. Should witnesses be pointed out who ought to be examined 
 respecting facts or circumstances which have reference to the sub- 
 stantial merits of the cause, and who. nevertheless, cannot be ex- 
 amined, either because it is not lawful or proper to cite them to 
 appear in court, or because they refuse to appear, after having 
 been asked to appear, it becomes necessary to mention this in the 
 acts, and their absence is supplied by the testimony of other wit- 
 nesses who know of the facts either from hearsay or from other 
 sources. 
 
 XXI. When all the evidence has been collected which goes to 
 show the truth of the facts in the case and the guilt of the accused, 
 the latter is called to trial by a written summons or intimation. 
 
 XXII. In the citation, unless prudence forbids, the accusations 
 
 68 
 
490 LEGAIv FORMULARY. 
 
 brought against the accused are stated in full so that he may pre- 
 pare for his defence. 
 
 XXIII. But if, on account of the character of the accusations, or 
 for some other cause, it is not expedient to express the accusations 
 in the citation, it will be sufficient to intimate in it that the accused 
 is called to trial in order to defend himself in a matter which is 
 under investigation, 
 
 XXIV. If he refuses to appear for trial he is summoned a second 
 time. In this second citation a peremptory term is fixed, within 
 which the accused must appear, and he is informed that if he fails 
 to obey he will be adjudged contumacious. Should he also refuse 
 to comply with this second citation, without proving a legitimate 
 hindrance, he shall, as a matter of fact, be regarded as contumacious. 
 
 XXV. But if he appears in court he should be heard. And if he 
 makes statements of any consequence they should, as far as pos- 
 sible, be accurately discussed. 
 
 XXVI. The next step is the plea or contestation of the offence 
 and of the proofs extant which go to show that the accused should 
 be considered guilty and has rendered himself liable to canonical 
 punishments. 
 
 XXVII. When the accused, from what has taken place thus far, 
 knows all that is contained in the acts against him, he can make 
 his defence and therefore produce his witnesses, etc. He can also, 
 if he wishes, make use of the right to hand in a written defence 
 which must be signed by himselL 
 
 XXVIII. He can, moreover, if he asks for it, obtain a suitable 
 delay to enable him to present this written defence, especially 
 where on account of what is said in article XXIII he has not been 
 able to get ready his reply to the accusations brought against him. 
 
 XXIX. When the trial is over the auditor shall make out a 
 written synopsis of the principal evidence submitted on both sides 
 and of the legal deductions flowing from it. 
 
 XXX. On the day on which the final summing up will take place 
 the accused will have the right to make his final defence or sum- 
 ming up in writing through another priest acting for him and in 
 his name. But if he does not find a competent priest to do this he 
 can employ a Catholic layman. Each of these, however, must be 
 approved by the ordinary. 
 
 XXXI. Should the accused decline to appoint an advocate the 
 ordinary will ex officio designate one for him. 
 
 XXXII. The advocate will, under due precautionary measures 
 examine the entire process and its synopsis in the chancery of the 
 curia, in order that he may be able to defend the accused. And 
 
CUM MAGNOPERR. 491 
 
 he will hand in the defence or summing up, in writing, prior to the 
 day on which the case is to be proposed and final sentence pro- 
 nounced. He is also obliged to take the oath to observe secrecy, 
 should the judge believe that the nature of the case demands it. 
 
 XXXIII. The trial and its resume are sent to the procurator 
 flscalis in order that he may be able to fulfill the duties 
 of his office. After the procurator flscalis has handed in 
 his written summing up the latter is communicated to the 
 advocate of the accused so that he may, if he chooses, 
 reply to it in writing. Thereupon all the acts are remitted to the 
 ordinary who, after acquiring a full knowledge of the case, fixes a 
 day for the pronouncing of the final sentence. 
 
 XXXIV. On the day appointed the bishop or his vicar general 
 pronounces the sentence, in the presence of the diocesan prosecu- 
 tor and of the advocate of the accused, dictating its dispositive 
 part to the chancellor, and making express mention, in case he 
 pronounces condemnatory sentence, of the ecclesiastical law sanc- 
 tioning the punishment, which is applied to the accused. 
 
 XXXV. The sentence shall then be delivered to the accused, who 
 can appeal to the authority of the higher instance. 
 
 XXXVI. In the appeal it will be necessary to observe the regula- 
 tions made by Pope Benedict XIV, of holy memory, in his consti- 
 tution Ad MiUtccntis, March 30, 1742, as also those rules which are 
 laid down by the Sacred Congregation of Bishops and Regulars, in 
 the decree of Dec. 18, 1835, and in the circular of Aug. 1, 1851. 
 
 XXXVII. The appeal should be interposed within the space of 
 ten days from the time the sentence was served on the accused. 
 When this term has elapsed and no appeal has been made the sen- 
 tence can be executed. 
 
 XXXVIII. However, when the appeal is interposed, the curia 
 shall forthwith transmit to the ecclesiastical authority of the 
 higher instance all the acts of the cause in. their originals, namely 
 the trial, its synopsis, the summing up and the sentence. 
 
 XXXIX. The authority of the higher instance, having been in- 
 formed of the appeal, commands the appellant to appoint, within 
 thirty days, an advocate for himself, who must be approved by it. 
 
 XL. When the peremptory space of 30 days has expired and the 
 accused has not presented any advocate, he is regarded as having 
 given up the benefit of appealing. Consequently the judge of the 
 higher instance shall declare the appeal extinct. 
 
 XLI. In the appeal from the sentence of the episcopal curia to 
 the Metropolitan's curia the archbishop will, in hearing and decid- 
 
492 IvEGAL FORMULARY. 
 
 ing the cause, use the same mode of proceeding which is outlined 
 in this Instruction. 
 
 XLII. Where an ecclesiastic, notwithstanding the privilege of 
 exemption from the secular forum, is placed on trial by the civil 
 authorities for common offences, the ordinary will make a sum- 
 mary inquiry into the alleged crime and see whether, according to 
 the sacred canons, the accused has made himself liable to infamy, 
 irregularity or any other canonical punishment. 
 
 1*. Pending the trial, or while the accused is in prison, it will be 
 advisable for the ordinary to adopt merely provisional measures. 
 
 2*. When the trial is over, if the accused is set at liberty, the epis- 
 copal curia will, according to the nature of the information obtained 
 as above, proceed in the manner laid down in this Instruction. 
 
 XLIII. In doubtful cases and in the various difficulties coming 
 up in practice ordinaries should consult this Sacred Congregation 
 in order that they may avoid contentions and nullity of the acts. 
 
 XLIV. Episcopal courts cannot be so easily condemned to pay 
 costs or damages. For, whenever it appears from the informative 
 process of the curia a <iiia that there were sufficient indications of 
 guilt to warrant the curia to proceed against the accused, the 
 judge of appeal shall abstain from the condemnations in question, 
 since those indications of guilt are sufficient to exonerate the 
 judge of the lower instance from the true and real calumny or 
 false accusation which is required for these condemnations. 
 
 XLV. The decrees of the Second Plenary Council of Baltimore, 
 No. 125, so far as regards the character of missions or congrega- 
 tions, and Nos. 77, 108, so far as concerns the juridical effects of the 
 removal of missionaries from office, are in no wise changed or ab- 
 rogated, excepting in so far as they are modified by the regulations 
 which have been recently made respecting irremovable parish 
 priests or rectors. 
 
 DE PRAESCRIPTIONE ADMITTENDA IN CAUSIS CRIMINALIBUS CLERICORUM. 
 
 Illustrissime et Rme Domine uti Frater, 
 
 Litterae Amplitudinis Tuae die 16 Junii 1894 datae ad obtinen- 
 dam authenticam solutionem nonnullorum dubiorum circa prae- 
 scriptionem delictorum carnis in causis criminalibus Clericorum, 
 remissae fuerunt ad banc Sacram Congregationem Negotiis et 
 Consultationibus Episcoporum et Regularium praepositam, ad 
 hoc, ut ea, qua ipsa pollet, competentia in re criminali Clericorum, 
 quid in proposita quaestione sentiendum decerneret. Omnibus 
 sedulo perpensis, Emi Patres in Comitiis liabitis 4 Martii 1898 haec 
 
DECREE ON PRESCRIPTION. 493 
 
 retinenda censuerunt: tralatitii scilicet iuris esse, in causis crim- 
 inalibus ecclesiasticis locum habere praescriptionem, et quidem 
 nedum quando iudex procedit ad iustantiam privati accusatoris, 
 sed et quando ad vindictam publicam seu ex officio inquirit; huius 
 vero praescriptionis eum proprium eftectum esse, ut solam -peri- 
 mat actionem poenalem, siquidem per accusatum seu inquisitum, 
 aut per eius ijrocuratorem expresse de praescriptione iudicio 
 oppositum f uerit. 
 
 Exinde facile est deprehendere, integrum tum accusandi tum 
 inquirendi ius manere usquedum expresse non opponatur prae- 
 scriptio, et omnino tenere indicium si eadam opposita minime 
 fuerit. 
 
 Quod si in iudicium praescriptio deducta fuerit et legitima 
 recognoscatur, tunc perimit quidem actionem criminalem, at non 
 civilem, quae forte ex eodem delicto promanat: et hinc, non ob- 
 stante praescriptione, reum manere obnoxium omnibus effectibus 
 canonicis non criminalibus ex patrato delicto provenientibus. 
 manifesti iuris est. Immo licet praescriptione actio poenalis ex- 
 tinguatur, non tamen toUitur exceptio, quae perpetuo manet, iuxta 
 iuris effatum; "'Temporalia ad agendum, perpetua sunt ad excip- 
 iendum;" ideoque delictum illud, etsi praescriptum, potest reo 
 semper opponi per modum exceptionis, eique obest, si ad ecclesi- 
 asticas provisiones concurrere vellet. 
 
 Quod autem spectat ad tempus necessarium ad dictam prae- 
 scriptionem inducendam, regula generalis est, actionem iniuri- 
 arum spatio unius anni; crimen peculatus et delicta carnis spatio 
 quinque annorum; caetera vero crimina spatio viginti aunorum a 
 die commissi delicti continuorum praescribi. Verumtamen si 
 agatur de delictis, quae successiva sunt et permanentia, in his 
 nulla praescriptio locum habet nisi a die cessantis delicti: quem- 
 admodum si delictum fuerit totaliter occultum, praescriptionem 
 non a die commissi criminis, sed a die scientiae accusatoris vel in- 
 quisitoris currere placet. 
 
 Illud demum hand praetereundum est, quod criminibus raptus. 
 stupri per vim illati, et adulterii cum incestu coniuucti, nonnisi 
 lapsu viginti annorum praescribatur; criminibus vero suppositi 
 partus, parricidii, assassinii, laesae maiestatis, duelli, falsae mone- 
 tae, apostatatus, haeresis, simoniae, concussionis, abortus et sodo- 
 miae, nullo unquam tempore praescribatur, sed perpetuo horum 
 criminum rei. dum vivunt, accusari et inquiri possunt. Quibus 
 omnibus SSmo Domino Nostro relatis, in audientia habit a ab in- 
 frascripto Cardinali Praef ecto die 21 Martii an. 1898, Sanctitas Sua 
 sententiam Eminentissimorum Patrum adprobare dignata est. 
 
494 IvEGAL FORMULARY. 
 
 Haec signiflcanda habui Amplitudini Tiiae, cui fausta et pros- 
 pera omnia a Deo adprecor, 
 L. >b S. Seraph. Card. Vannutelli, Praef. 
 
 Romae, die 22 Martii, 1898. A. Trombetta, fSecret. 
 
 DECREE "TAMETSi" IN AMERICA. 
 
 The decree "Tametsi" has been published in the following places 
 in America: All the regions which sometime were under rule of 
 the Spaniards or Portuguese, even though not yet inhabited 
 (>S. O. Jan, 23, 1882); Mexico, Curacao, Trinidad; Canada, especially 
 lower, (/S. O. Nov. 14, 1888) Quebec city and diocese at least in part; 
 Province of New Orleans; Province of San Francisco, and Utah 
 except the part east of Colorado river; Province of Santa Pe, ex- 
 cept the western part of Colorado; Indianapolis diocese, St. Louis 
 city; Places called St. Genevieve, St. Ferdinand, St. Charles, in 
 the Archdiocese of St. Louis; Places called Kaskasia, Cahokia, 
 French Village, Prairie du Rocher in Belleville diocese; (The par- 
 ish of Detroit city.) 
 
 The decree has not beeyi published in America in the following 
 places: Province of Baltimore (>S'. Cong. Propaga7ida Dec. 13, 1817.) 
 Provinces of Philadelphia, New York, Boston, Oregon, Milwaukee, 
 St. Paul, Dubuque, Cincinnati, except the diocese of Indianapolis 
 (and the parish of Detroit); St Louis, except the city of St. Louis 
 and places mentioned above; Chicago, except places of Belleville 
 diocese mentioned above. (*S'. O. Nov. 25, 1885.) 
 
 It is doubtfut about the publication of the decree in the diocese 
 and province of Quebec in Canada. Further, about the year 1840, 
 the Bishop of Kingston, whose diocese then contained all the 
 present province of Toronto and half of that of Ottawa, published 
 the decree throughout his whole diocese. In 1852 the bishops of 
 Canada in council doubted about the validity of the publication, 
 there being ^no real parishes. To their request to confirm the 
 publication the S. Propaganda gave an ambiguous reply. But on 
 Nov. 14, 1883, the Holy Office in a similar case (St. Hyacinth) held 
 the publication to be valid. • Hence it seems valid in Ontario, 
 there being no doubt about the fact of publication. 
 
 The decree is no longer observed., nor of obligation, in the parish 
 of Detroit, because it is not mentioned as of obligation in the de- 
 cree of the Holy Office of Nov. 25, 1885. It is reported the decree 
 is not observed in Canada in the Provinces of Halifax, Ottawa and 
 Toronto, although in Rome {Cf. Zitelli Juris Ec p. 431) it is held as 
 validly published in those places. 
 
GENERAL INDEX. 
 
 A 
 
 Administrator of Diocese, p. 2, n. 3; p. 33, n. 30. 
 
 Administration of property, p. 68, n. 74-75;— parish, p. 00, ii. 00: 
 p. 112. 
 
 Auditors of Accounts, p. 78, n. 84. 
 
 Appointment of vicar general, p. 11, n. 16:— of canon, p. 46, n. 51- 
 52; — of vicar capitular, p. 29, n. 33;— of consultor, p. 49, n. 53; 
 — of deans, p. 51, n. 54; — of chancellor, p. 56, n. 59; — of secre- 
 tary, p. 65, n. 70; — of econome, p. 71, n. 76; —of fiscal procura- 
 tor, p. 75, n. 81; — of auditors of accounts, p. 79, n. 84;— of synodal 
 examiners, p. 107; of rectors, p. 109-111; —of judge, p. 306: — 
 defender of religious prof., p. 422; — of treasurer of fines, p. 462. 
 
 Assistants to pastors, p. 94, n. 94-95; — appointment of, p. 112. 
 
 Alienation of parish property, p. 116, n. 116 ; —p. 287-295. 
 
 Absolution, forms for, p. 178-180; - certificate of, p. 181: — from 
 contumacy, p. 328-330: — ad cautelam, p. 449. 
 
 Alms, begging, p. 283-284. 
 
 Acts of Process, — summary, p. 311; — judicial, p. 315: (see Forms 
 in Trials.) 
 
 Accused, citation of, p. 345-348; — contumacy of, p. 351-355:— hear- 
 ing of, p. 363; — defense of, 374. 
 
 Arbiters, appointment of, p. 356; — decision of, p. 361. 
 
 Appeal, forms for, p. 306-400: — extinction of, p. 400: -from cen- 
 sures, p. 448-458. 
 
 B 
 
 Bishops, appointment of, p. 1, n. 1; —of province, p. 3, n. 6: — 
 coadjutor, p. 10, n. 11: advise with consultors, p. 46, n. 50: — 
 chancellor, see chancellor: secretary, p. 65, n. 70: — econome, 
 p. 65, n. 71: — responsible for criminal trials, p. 290. 
 
 Benefice, erection of, p. 113. n. 114: — p. 156. n. 155-156: —title of. 
 for orders, p. 180. 
 
 Baptism, certificate of, p. 196, n. 199. 
 
 495 
 
496 GENERAL INDEX. 
 
 Books, prohibition, p. 243, 254; — censure of, p. 255-260. 
 
 C 
 
 CoNSULTORS, and ir. rectors, nominate bishop, p. 2, n. 2 seq. — p. 
 43, n. 47; — precedence of, p. 136, n, 134; — advice before synod, 
 p. 268; — must advise in each alienation, p. 288; — term expires, 
 p. 297. 
 
 Candidates for Bishop, qualities of, p. 3, n. 6 et seq. — ^^excepting 
 to, p. 423. 
 
 Chapter, cathedral, p. 29, n. 33; p. 37, n. 39-46. 
 
 Cathedral, transfer of, p. 296. 
 
 Chancellor of bishop, p. 53, n. 57; —has no precedence, p. 54, n. 
 58; p. 57, n. 60; p. 61, n. 65; p. 141, n. 136. 
 
 Contumacy, notorious, must be shown, p. 304; — of witness, p. ^324- 
 330; — of accused, p. 351-355. 
 
 CoNCURSUs, p. 100, n. 100-104; — announcement of, p. 108, n. 107. 
 
 Censure of Books, p. 255-260. 
 
 Censures, forms for, p. 431-446; — appeal from, p. 424: — latae, p. 477. 
 
 Communion, certificate of, p. 147, n. 144. 
 
 Corpus Delicti, p. 319-321. 
 
 CoMPLicis, absolutio, p. 165, n. 166-167. 
 
 Convents, establishment of, p. 275-281; — visiting in, p. 163; — 
 changes in, p. 281. 
 
 Certificate of absolution, p. 181; — o*f baptism, p. 196, n. 199; — 
 of ordination, p. 201. 
 
 Citation, necessary also before declaratory sentence, p. 303; — of 
 witness, p. 323; — accused, p. 345-350; — to hear sentence, p. 386. 
 
 Challenge of judge, p. 356; — of witness, p. 381. 
 
 "Cum Magnopere," given in full, p. 486. 
 
 Correcting books, p. 260. 
 
 D 
 
 Degrees, p. 5. n. 8; — p. 8, n. 9. 
 
 Deans, rural, p. 51, n. 54; — precedence of, p. 54, n. 58; p. 138, n. 135. 
 
 Doctors, p. 5, n. 8; p. 8, n. 9. 
 
 Diocese, incardination into, p. 472. 
 
 Dispensations, not given by chancellor, p. 55, n. 58; — p. 21, n. 26; 
 — application for mixed marriage, p. 220, n. 227: — forms for, 
 p. 217, n. 231-251; -special faculties for, p. 234-241. 
 
 DiMissoRiAL letters, p. 202-203. 
 
GENERAL^ INDEX. 497 
 
 Detroit Diocese, parishes in, p. 87, n. 89 — tenure of property, 
 p. 70, n. 75; — transfer case, p. 465. 
 
 Decree, for erection of seminary, p. 271; — for seminary tax, p. 
 273; — for alienating property, p. 293; — large property, p. 294; — 
 of suspension ex inl'ormat.ci c'0)i.scirntia, p. 442: — of excommuni- 
 cation, p. 437-440; — of suspension, p. 442; — of interdict, p. 446; 
 — regarding title of mission, p. 470. 
 
 Dismissal, from office, p. 468-473. 
 
 Deposition, p. 474. 
 
 Econome of bishop, p. 65, n. 71. 
 
 Examiners, synodal, p. 101, n. 102; — appointment of , p. 107, n. 1*)7 
 
 ExAMiNiTiON, certificate of, p. 199, n. 204; — of books, p. 255. 
 
 Edict, for diocesan visitation, p. 261, n. 277; — appointing visitor, 
 p. 265; — for calling synod, p. 268. 
 
 Excommunication, form for, p. 266; — absolution from, p. 180; p. 
 330; — declaration of, p. 437-439; — latae sententiae, p. 477. 
 
 Excardination or Exeat, form for, p. 474. 
 
 Exception against candidates, p. 424. 
 
 F 
 
 Fiscal Procurator, p. 73, n. 77-81: -has no precedence, p. 141, 
 n. 136: — in metropolitan curia, p. 74, n. 79; p. 402. 
 
 Pines, p. 460; — treasurer of, p. 462. 
 
 Faculties, for confession, p. 162, n. 161-163; — special, p. 164-168; 
 p. 182, n. 184: — request for, p. 166: p. 185-176; — form for grant- 
 ing, p. 172; — abbreviations used in, p. 181; — clauses in, p. 177- 
 179: — special and extraordinary faculties, p. 234-242; — extra- 
 ordinary now pass to successors, p. 241-242; p. 34, n. 36; — alien- 
 ating property but only with advice of cousultors, p. 288; — 
 withdrawing, p. 433; p. 445. 
 
 Forms for appointing, vicar general, p. 22. n. 27, 28, 30: — vicar 
 capitular, p. 31, n. 35: — administrator of diocese, p. 35, n. 38: — 
 canon, p. 46, n. 51-42: — consultor, p. 49, n. 53; — rural dean, p. 
 52, n. 56: — chancellor of bishop, p. 55, n.59: — of econome, p. 71, 
 n. 76: — fiscal procurator, p. 75, n. 81: defender of marriage 
 bond, p. 77, n. 82: — court messenger, p. 77, n. 83: - auditors of 
 accounts, p. 79, n. 84; — irremovable rector, p. 109, p. 126: - mov- 
 able rector, p. Ill: - assistant to pastor, p. 112: — administrator 
 of parish, p. 112: — confessors for nuns, p. 174: — auditor or 
 judge, p. 306, n. 337: — defender of religious profession, p. 422: — 
 treasurer of fines, p. 462. 
 
 FoR3i for taking ofiice, p. 24, n. 29; — oath of office, p. 57, n. 60: — 
 for establishing parish, p. 119, n. 121-124: -^ for granting pen- 
 sion, p. 131 : — for applying for irremovability, p. 125: for re- 
 
 64 
 
498 GEiNERAIv INDEX. 
 
 signing parish, p. 129: — for celebret, p. 153, n. 152; — for grant- 
 ing bination, p. 154; — for foundation of masses, p. 155; — for 
 erecting benefice, p. 157; - forgiving faculties for confession, p. 
 172; — for absolution from suspension or excommunication, p. 
 179; — for executing dispensations, p, 178-180; — announcing 
 ordination, p. 194, p. 200; — for dimissorial letters, p. 199, n. 205; 
 
 — testimonial of freedom to marry, p. 216: — for permission, for- 
 bidden times, p. 217; — for interpellation, Pauline, p. 219; — 
 agreement of non-Catholic to marriage, p. 221: — for asking 
 dispensations, p. 221-223; — executing dispensations, p. 233; — 
 granting dispensations, p. 229, n. 250-252; — special faculties, p. 
 234-241; — appointing visitor of diocese, p. 265; — for excom- 
 munication, p. 266: — for interdict, p. 266: — for calling synod, 
 p. 268: - for erecting seminary, p. 271: - for tax for seminary, 
 p. 273: ~ establishing convent or monastery, p. 280; — for alien- 
 ation, p. 294-295; — exeat, p. 474. • 
 
 Forms in trials: form for monition, p. 300; — for pi-ecept, p. 300; 
 — for ordering retreat, p. 429; — recording acts of trials, p, 311; 
 — opening process, p. 311-314-317; — criminal libellus, p. 315; — 
 Corpus delicti, p. 320; — introducing documents, p. 321: — citing 
 witness, p. 323-324: ~ serving citation, p. 325; — examining wit- 
 nesses, p. 336-336; dismissing charges, p. 346; — citation of ac- 
 cused, p. 348; — for declaring contumacy of accused, p. 352; — 
 challenging judge, p. 357: — actsof arbiters, p. 369; — decision of 
 arbiters, p. 361: — for examiniog accused, p. 365; — specifications 
 in bill of charges, p. 366; — legalizing testimony, p. 368; — copy 
 of acts, p. 371; — asking time, p. 373; — for cross exam., p. 374; — 
 defense, p. 378; — challenging witness, p. 381: — for appeal and 
 challenge in interloc. sentence, p. 380-382; — citation to hear 
 sentence, p. 386; — giving defin. sentence, p. 387-390; — in notor- 
 iety, p. 303: — for appealing, p. 396-400; — for appeal acts, p. 401; 
 
 — appeal sentence, p. 406; — extinction of appeal, p. 409; — bill 
 in civil case, p. 416; — answer to same, p. 418; — senteDce in civil 
 case, p. 419; — summary civil process, p. 420-426; — excepting to 
 candidates, p. 423; — imposing retreat, p. 429; — warning before 
 censure, p. 436-439; — declaring excommunication, p, 437-439; — 
 for suspension, 442-444; — for interdict, p. 446; — appeal from 
 censure, p. 454; — remitting appellant for absolution, p, 455; — 
 citing vicar gen.,' p. 456; ^ censuring vicar gen., p. 457. 
 
 Guardian, for relatives, p. 274. 
 
 I 
 
 Irremovable Rectors, p. 89, n. 90: — concursus, p. 100, n. 101; — 
 nominate bishops, p. 1, n. 1: — appointment of, p. 100, p. 126; — 
 trial of, p. 105, n. 106, p. 465; — transfer of, 469; — precedence of, 
 p. 136. n. 134; p. 492 in n. 45 of "Cum magnopere." 
 
 Irremovable Rectorships, changes in, p. 117, n. 118, 126; — bishop 
 must make, p. 117, n. 119, 124, 125. 
 
GENERAL INDEX. 499 
 
 Incardixation into diocese, p. 472. 
 
 Infirm Priests, support of, p. 118, n. 120: p. 131, ii, 120. 
 
 Impediments to matrimony, p. 210, u, 221, to 229; application lor 
 dispensation, p. 2:30. n. 236-218. 
 
 Imprisonment, p. 463. 
 
 Interpellation, Pauline privilege, p. 219, n. 235. 
 
 Index Rules, p. 243-2()0. 
 
 Interdict, form for, p. 266, p. 446; — latae sententiae, p. 485. 
 
 Instruction regarding alienation, p. 289. 
 
 Investigation, summary, p. 311. 
 
 Ill-fame, p. 335; — decree of, p. 338. 
 
 Judge, appointment of, p. .306: —challenge of, p. 356. 
 Jurisdiction of metropolitan over suffragans, p. 458. 
 
 Licentiates, p. 8, n. 9, p. 15, n. 18. 
 
 Letters, dimissorial for regulars, p. 199: — for diocesans, p. 202: 
 — testimonial, p. 204: — certifying health, p. 2(KJ: of testi- 
 mony of parish priest, p. 195; testifying freedom for mar- 
 riage, p. 216, n. 230; commissorial and remissorial for exam, 
 witness, p. 331. 
 
 M 
 
 Mass, p. 147, n. 145; — for whom said, p. 118, u. 146; — stipend 
 for, p. 149, n. 147; — binating, p. 150, n. 149, 1.33; — celebret, p. 
 153, u. 152; — foundations of, p. 155, n. 154; — bequests for, p. 
 158, n. 157. 
 
 Mission, title of, p. 118, n. 120; p. 190. n. 190-194: — decree, p. 470. 
 
 Matrimony, banns of, p. 208, n. 217: — celebrated in church, p. 
 209, n. 219. n. 222: -- impediments to. p. 210, n. 221: freedom 
 for, p. 216, u. 230: — celebrated in house, p. 217, n. 232: dispen- 
 sations for, p. 217-233. 
 
 Monastery, erection of, p. 274-281; — imprisonment in, p. 463. 
 
 Monition, form for, p. 3lX); — witness in contumacy, p. :^26 
 — accused in contumacy, p. 1354. 
 
 Mortgaging church property, p. 116; p. 228. 
 
 N 
 Nomination of bishops, p. 1. n. 1: — oath for, p. 2; p. 13. 
 
500 GENERAL INDEX. 
 
 Notary, appointment of, p. 56, n. 59; p. 64, n, 69; — only bishop or 
 pope can create, p. 58, n. 62, 
 
 Notorious, oases, p. 303; — in censure, p. 449. 
 
 Oath of office, p. 57, n. 60; — of notary, p. 63, n. 68; — of canons, 
 p. 42; — of defender of marriage bond, p. 77, n. 82; — synodal 
 exam., p. 102; — for mission title, p. 198, n, 202; - explanation 
 of, p. 465; — of secrecy not required, p. 13. 
 
 Order of Precedence, p. 133, n. 130-136. 
 
 Oils, holy, p. 144, n. 140. 
 
 Orders Holy, p. 187; — time for, p. 193. 
 
 Ordination, announcement of, p. 194-195. 
 
 Possession, taking of, of office, p, 25, n. 29. 
 
 Patrimony, title of, p. 189, p. 197, n. 201. 
 
 Precedence, rural deans have none, p. 52, n. 55; — bishop's chan- 
 cellor has no, p. 54, n. 58; p. 57, n. 60; p. 61, n. 65; — of irremov- 
 able rectors, p. 137, n. 134; — of consultors, p. 137. 
 
 Property, tenure of, p. 66, n. 72; p. 285-286. 
 
 Province, changes of, p. 198, n. 203; p. 472. 
 
 Parishes, p. 81, n. 87; - in U. S., p. 82, n. 88-93; p. 223; — in Detroit 
 diocese, p. 87; — title of, p. 90, n. 92; — dismemberment of, p. 113, 
 n. 115; — establishing, p. 119; — priest, p. 80, n. 86; p. 96, n. 97; 
 p. 492. 
 
 Pension of rectors, p. 118, n. 120; p. 131, n. 129. 
 
 Prelates, Roman, take precedence, p. 136, n. 133. 
 
 Process for alienation, p. 292, n. 321; — judicial, p. 315, foil. — 
 summary, p. 421; — ex notorio, p. 304-305; — civil cases, p. 410-420. 
 
 Preventive Remedies, p. 299. 
 
 Prescription in criminal cases, p. 310, p. 424, p. 493. 
 
 Precept Canonical, p. 300. 
 
 Punishment, repressive, p. 302, n. 334; — rules for, p. 427; — pre- 
 ventive, p. 429; — retreat, p. 429: — suspension, p. 443; — fines, 
 &c, p. 460-474; — transfer, p. 464; — - dismissal 470. 
 
 R 
 
 Rectors, irremovable, p. 89, n. 90; — trial of, p. 105, n. 106; — ap- 
 pointment of, p. 109, n. 109; — removal of, p. 469; — movable, p. 
 90, n. 91-92; — appointment of, p. 110; — transfer of, p. Ill; 
 — removal of, p. 470; — emeritus, p. 118, n. 120, p. 131. 
 
GENERAL INDEX. 501 
 
 Regular Clergy yield precedence to diocesan, p. 142: faculties 
 of, p. 161: - approval of, p. 173; — ordination of, p. 188, n. 18G, 
 p. 199, n. 204. 
 
 Resignation of parish, p. 128, n. 127. 
 
 Reservation of cases, p. 164, p. 175. 
 
 Retreat, imposing, p. 429. 
 
 Removal from office, p. 468. 
 
 Secretary of bishop, p. 65, n. 70. 
 
 Support of priests, p. 118, n. 120; p. 1.31, n. 129; p. 99; — under dis- 
 missal, p. 471. 
 
 Sacrament of baptism, p. 143, n. 1.37; — of confirmation, p. 143, 
 n. 138; — of Holy Eucharist, p. 145, n. 141; — of penance, p. 160; 
 — of Holy Orders, p. 187; — of matrimony, p. 207. 
 
 Suspension ex infonnata conscientia, p. 302; — form for, p. 442-444; 
 
 — latae sententiae, p. 482. 
 
 Sentence, contumacious witness, p. 327: appeal interloc. p. 382; 
 — contumacious accused, p. 353; — definitive, p. 386-380; — in 
 notoriety, p. 394: - on appeal, p. 407; — in civil case. p. 419. 
 
 — p. 425. 
 
 Sollicitation, p. 167, n. 168: — process concerning, p. 168-171: 
 
 — of alms, p. 282. 
 
 Synod, diocesan, p. 267. 
 
 Seminary, regents, p. 269; — tax. p. 273. 
 
 SUBDITUS EPISCOPI, p. 241. 
 
 Taking Office, p. 25, n. 29: — canonry, p. 42. n. 46; — chauoellor, 
 p. 57. 
 
 Titles of address, "Very Reverend," p. 52, n. 55; p. 57, n. 60: p. 141. 
 
 Title of parishes, p. 91, n. 92; — of property, p. 69, n. 75; p. 285. 
 
 Title of ordination, p. 118, n. 120; p. 189, n. 188-194: - mission, 
 p. 466; — deprivation of, p. 471. 
 
 Trial of movable rectors, p. 92, n. 02: — necessity of, p. 305: - of 
 irremovable rectors, p. 105, n. 106; p. 465; — forms for, see under 
 Forms. 
 
 Tax, for seminary, p. 273. 
 
 Testimony required for punishment, p. 309: — taking, p. 1330; — 
 legalizing, p. 368-371. 
 
 Treasurer of fines, p. 462. 
 
502 GENERAL INDEX. 
 
 Transfer, penal, p. 464; — to other diooese, p. 467. 
 "Tametsi" Decree, p. 207, p. 233, p. 494. 
 Term of Consultors, p. 297. 
 
 U 
 
 University, pontifical, p, 6, n. 9; — degrees of, p. 9, n. 9. 
 
 V 
 
 Vicar General, appoint., p. 14, n. 16; — support, p. 19, n. 23; — 
 power, p. 19, n. 24; — may be consultor, p. 45, n. 49; p. 50, note; — 
 is ordinary judge, p. 298; — cited by archbishop, p. 456; — cen- 
 sured by archbishop, p. 457. 
 
 Vicar Apostolic, p. 17, n. 20; p. 26, n. 31-32. 
 
 Vicar in parish, p. 91, n. 92. 
 
 W 
 
 Warning, paternal, p. 300; — necessary before censure even in 
 notorious cases, p. 303; — in contumacy, p. 326, 354. 
 
 Witness, citation of, p. 323; — contumacy of, p. 326; — irreverent, 
 p. 329; — examining distant, p. 331-334; — exam., p. 335-344; 
 — challenging, p. .381; — cross exam., p. 375; — confrontation of, 
 p. 369. 
 
 Withdrawal of faculties, p. 4.33, n. 485; p. 445. 
 
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