UNiVD N, V,' ■1^ \ \} y \ \ r / y -^> 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, 1Sag-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. 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 Conrofesso, 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*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 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 theseretatio 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 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. THE end. y U.C. 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