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 A COMMENTARY ON
THE NEW
CODE OF CANON LAW

By THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D.

Professor of Canon La<w

VOLUME VI
Administrative Law
(Can. 1154-1551)

B. HERDER BOOK CO.

17 SOUTH BROADWAY, ST. Louis, Mo.
AND
68, GREAT RUSSELL ST., LONDON, W. C.
1921
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 IN RELIGIONE ET LABORE
SOCIO CARISSIMO
VIRO DOCTRINA EXCELLENTISSIMO

AD

,
S. VINCENTIUM SEMINARII
EGREGIO RECTORI
S. THEOLOGIAE DOCTORI

R. P. AMBROSIO KOHLBECK, O.S.B.

HANC
DE SEMINARIIS
LEGUM COLLECTIONEM
AUCTOR DEDICAT AMANTER
 CONTENTS
PAGE
BOOK III PART II. SACRED PLACES AND TIMES i

SECTION I. SACRED PLACES IN GENERAL 2

Definition 2
The Minister of Consecration 3
The Minister of a Blessing 6

Registration and Proof 7

Immunity of Sacred Places 9

TITLE IX. CHURCHES 12

Definition I2

Building of Churches 13
Dedication of a Church 19
The Consecration of Churches and Altars . . . . 23
Anniversary of Consecration 24
Titles and Titular Feasts 25
Church Bells 28
Loss of Consecration or Blessing 32
Effect of Consecration or Blessing 33
Desecration of a Church 35
Consequences of Desecration 41
The Reconciliation of Churches 42
Decorum of the House of God 46
lus Asyli 47
The Title of Basilica 49
Entrance Fees not Allowed 50
The Administration of Churches 5^
Trustees 55
Repair of Churches 5

TITLE X. ORATORIES 65
Definition and Division 65
Chapels of Cardinals and Bishops 68
Private Cemetery Chapels 69
v
vi CONTENTS
PAGE
Public Oratories .
. .
70
Semi-Public Oratories 72
Private Oratories 78
TITLE XI. ALTARS 84
Definition and Species 84
Requisites 86
Consecration of Altars 91
Loss of Consecration 93
Titles of Altars 96
Profane Uses Not Tolerated 97
TITLE XII. ECCLESIASTICAL BURIAL 100
Burial vs. Cremation 100
Ecclesiastical Burial 102

CHAPTER I. CEMETERIES 104

Blessed Cemeteries 104
Rights of the Church in Regard to Cemeteries . . 106
Interdict,Violation, etc., of Cemeteries .... 108
Owners of Cemeteries 108
Keeping of Cemeteries in
Waiting Time 112
Exhumation 113

CHAPTER II. FUNERAL SERVICES AND INTERMENT . .115

Conveying Bodies Church
to 115
Parochial Rights in Regard to Burial 116
Transfer to One s Own Church 118
Burial of Cardinals and Bishops 120
Funeral of Beneficiaries 121
Funerals of Religious 122
Guests and Students of Religious 124
Selection of Sepulture 126
Ancestral Tombs 132
Duties and Rights of Pastors in Regard to Burials .
133
Burial 139
Funeral Processions 140
Mourners and Emblems 141
Funeral Fees 144
Portio Paroecialis 146
Recording of Deaths 150
 CONTENTS vii

PAGE
CHAPTER III. ECCLESIASTICAL BURIAL, TO WHOM
GRANTED OR DENIED 151
To Whom Granted 151
To Whom Denied 152
Exhumation of Corpses 159

SECTION II. HOLY SEASONS 160

Dispensations 163
Reckoning Feasts and Fast Days 168

TITLE XIII. HOLYDAYS 170

Obligations Connected with Holydays 172
Where Mass May be Heard 175

TITLE XIV. ABSTINENCE AND FASTING 177

The Law of Abstinence 177
The Law of Fasting 177
Days of Abstinence and Fasting 179
Particular Laws 180
Who Is Obliged to Fast and Abstain 184

PART III. DIVINE WORSHIP 186

Public and Private Worship 189

Approbation of the Liturgy 190
Communicatio in Sacris 192
Approbation of Devotions and Litanies .... 198
Independence from Secular Interference .... 200
Duty of the Ordinary 201
Separate Seats for Men and Women in Church . .
204
Distinguished Seats in Church
"

206
Church Music 208

TITLE XV. RESERVATION AND WORSHIP OF THE BLESSED

SACRAMENT 213
Open Churches 218
The Blessed Sacrament Altar 218
The Tabernacle 221
The Pyx 224
The Tabernacle Light 225
Altar Breads . . . 226
viii CONTENTS
PAGE
Frequent Assistance at Mass and Visits to the Bl.
Sacrament 227
Exposition of the Blessed Sacrament 227
The Forty Hours Devotion 233
TITLE XVI. WORSHIP OF THE SAINTS, SACRED IMAGES,
AND RELICS 235
Public Worship of the Saints
236
Patron Saints 240
Pictures of Saints 241
Restoration of Statues and Paintings 243
Alienation of Relics and Images 244
Authentication of Relics 247
Exposition of Relics 251
Relics in the Bishop s Pectoral Cross 252
Precautions against the Sale and Profanation of
Relics 253
TITLE XVII. SACRED PROCESSIONS 255
Definition and Division 255
Corpus Christi Procession 257
Other Processions 261
Religious Not Allowed to Hold Public Processions
without the Permission of the Ordinary . . .
263
Pastors and the Clergy in Relation to Processions .
264
Order of Processions 265
TITLE XVIII. SACRED VESSELS, UTENSILS, VESTMENTS,
ETC. (SACRA SUPELLEX) 267
Care and Maintenance 267
Cardinalitial, Episcopal, and Clerical Supellex . .
270
Duty of Making a Valid Testament 277
Custody of the Sacra Supellex 279
Further Directions Regarding the Sacra Supellex . 280
Blessing of the Sacra Supellex 281
Loss of Blessing or Consecration . . . . . . 284
Handling Sacred Vessels 286

TITLE XIX. Vows AND OATHS 289

CHAPTER I. Vows 289

Definition and Capacity 289
Kinds of Vows 292
 CONTENTS ix

PAGE
Reserved Vows 293
Personal Obligation 295
Cessation of Obligation 297
Irritation of Vows 299
Dispensation from Vows 33
Commutation of Vows 37
CHAPTER II. OATHS 3
Definition 3io
The Obligation Arising from an Oath 312
Nature of Obligation 313
Cessation of Obligation 314
Dispensation from Oaths 3*6
Interpretation 3 J6

PART IV. THE TEACHING OFFICE OF THE

CHURCH 3i8

Right of the Church to Teach 3*9

The Material Object of Faith 322
Dangers to Faith 328
Profession of Faith 329
Bishops as Judges in Matters of Faith . . . .336

TITLE XX. PREACHING THE WORD OF GOD 338

Missio Canonica 34 1

CHAPTER I. THE PASTOR S DUTY 343

Catechetical Instruction 343
Catechists 346
Obligations of Religious 347
Duties of Parents 349
Diocesan Regulations 350

CHAPTER II. SERMONS 351

Faculty Required for Preaching 35 1

Religious Preachers 35 2

Religious vs. Ordinaries 354

Examination 35^
Extradiocesan Preachers 359
 CONTENTS
PAGE
Who May Preach 362
The Pastor s Duty to Preach 364
Instruction in Christian Doctrine in Other than
Parish Churches 366
Lenten and Advent Sermons 367
Subjects of Sermons 368
Duty of the People 369

CHAPTER III. MISSIONS 370

Missions to Non-Catholics 370

TITLE XXI. SEMINARIES 373

Right of the Church to Educate the Clergy . . .
374
The Duty of Pastors with Regard to Clerical Voca
tions 376
Diocesan Seminaries . .
377
The Seminaristicum 380
The Bishop s Duties in Regard to/the Seminary . .
388
Seminary Officials .
389
Diocesan Seminary Board 390
Qualifications of the Chief Seminary Officials . .
391
Seminary Confessors 393
Scholarships 394
Admission to Seminaries 395
Plan of Studies for Little Seminaries 396
Philosophy and Theology 398
Qualifications of Seminary Professors 401
The Religious Training of Seminarists 403
Exemption of the Seminary from Parochial Juris
diction 406
Seminary Discipline 408
Students Outside the Seminary 410
Dismissal of Students 410

TITLE XXII. SCHOOLS 411

The Duty of Christian Education 411
Religious Instruction in Schools 413
Non-Catholic Schools 414
The Right of the Church to Establish Schools . .
416
Universities, Degrees
Faculties, and 419
Rights Attaching to the Degree of Doctor .... 421
 CONTENTS xi

PAGE
Catholic Schools to be Established 422
Clerics to Pursue Higher Studies 423
Religious Instruction under Church Authority . .
423
School Inspection by the Local Ordinaries . . .
426

TITLE XXIII. THE CENSORSHIP AND PROHIBITION OF

BOOKS 428
Right of the Church 428

CHAPTER I. PREVIOUS CENSORSHIP 433

Obligations of Clerics and Laymen 440
Various Exceptions 444
Bible Versions 447
When a New
Approbation is Demanded .... 449
Diocesan Censors 450
The Imprimatur Must be Given in Writing . . . 452

CHAPTER II. THE PROHIBITION OF BOOKS 454

Who Has the Power to Forbid Books 454
Books Forbidden by the Apostolic See 458
The Obligation of Denouncing Books 459
The Effects of Prohibition 463
List of Forbidden Books 466
Exception in Favor of Theological Students . . . 475
Persons Exempt from the Prohibition 477
Faculties 478
Booksellers 481
Penal Sanction 483

TITLE XXIV. THE PROFESSION OF FAITH . . . . .485

Who Must Make It 485

PART V. BENEFICES AND OTHER NON-CORPO

RATE ECCLESIASTICAL INSTITUTIONS . 491

TITLE XXV. ECCLESIASTICAL BENEFICES 493

Definition 493
Division of Benefices 496

CHAPTER I. ESTABLISHMENT OR ERECTION OF BENE

FICES 498
Competent Authority 498
Requisites of Erection 498
xii CONTENTS
PAGE
CHAPTER II. UNION, TRANSFER, DIVISION, DISMEMBER
MENT, TRANSFORMATION, AND SUPPRESSION OF BEN
EFICES 501
Union 501
Transfer, Division, Dismemberment, etc 502
Rights of the Local Ordinaries 503
Religious Benefices 505
Transfer of Secular Parochial Benefices .... 506
Division of Parishes 506
Pensions 513
Transformation 515
CHAPTER III. BESTOWAL OF BENEFICES 516
Cardinals and Ordinaries 516
Benefices Reserved to the Holy See 517
Acceptance 518
Provision to be Made for Life 519
Qualities of Beneficiaries 519
No Deductions Permissible 519
On Whom Benefices May be Conferred .... 520
Installation 521
Prescription and Titulus Coloratus 521
A Litigant Benefice 522

CHAPTER IV. IUSPATRONATUS OR ADVOWSON . . . .524

Popular Patronage 526
Transmission of Patronage 527
Authentic Proof Required 527
Privileges of Patrons 527
Wife and Minors 528
Time of Presentation 528
Collegiate Presentation 529
Candidates 531
Rejection of the Candidate Presented 532
Effect of Accepted Presentation 532
Obligations of Patrons 533
Loss of the luspatronatus 534
Indult of Presentation 535

CHAPTER V. RIGHTS AND DUTIES OF BENEFICIARIES .

536
Rights in General 536
 CONTENTS xiii

PAGE
Order and Canonical Hours 538
Obligations of Administration 539
Leases 540
How the Revenues are to be Divided in Case of the
Beneficiary s Death 540
What is to be Done in Case of Vacancy .... 541
Episcopal Revenues 541

CHAPTER VI. RESIGNATION AND EXCHANGE OF BENE

FICES 542
Resignation 542
Exchange of Benefices 544

TITLE XXVI. OTHER NON-CORPORATE ECCLESIASTICAL

INSTITUTIONS 546

PART VI. THE TEMPORAL POSSESSIONS OF THE

CHURCH 549

Right of the Church to Possess Property .... 549

TITLE XXVII. THE ACQUISITION OF ECCLESIASTICAL
PROPERTY 557
Division and Transfer of Church Property . . .
558
Begging 560
The Cathedraticum 561
Subsidium Charitativum 563
Prescription 566
Donations and Legacies 570
Change of Last Will 574

TITLE XXVIII. THE ADMINISTRATION OF CHURCH PROP

ERTY 577
The Sovereign Pontiff 577
The Local Ordinaries 578
The Diocesan Board of Administration .... 579
Administrators of Individual Institutions .... 581
The General Duties of Administrators 582
Special Duties of Administrators 586

TITLE XXIX. CONTRACTS 590

Ecclesiastical and Civil Contracts 59
Alienation 592
xiv CONTENTS
PAGE
Formalities of Alienation 599
Donations 601
Mortgages and Debts 603
Sale and Exchange 604
Administrators and Relatives Excluded 605
Lease or Rent 605
Interest 608

TITLE XXX. Pious FOUNDATIONS 610

Definition 610
Safeguards of Foundations 612
Formalities 613
Exempt Religious 614
Reduction of Obligations 615
 THE NEW CODE OF
CANON LAW
-PART II
BOOK III

SACRED PLACES AND TIMES

INTRODUCTION
After the treatise on the Sacraments and Sacramentals,
we come to sacred places as the next subject of considera
tion. Sacred places partake, as it were, of the sacra
mental nature and may, therefore, be truly called vehicles
of sanctification. Besides, being consecrated or blessed,
they may be claimed by the ecclesiastical authorities as
their own, and are not subject to civil power.
Means of sanctification are also sacred times, namely

holy days and days of fasting and abstinence. These

form the subject-matter of Part II of the Third Book
of the Code.
 SECTION I

SACRED PLACES IN GENERAL

DEFINITION

CAN. 1154

Loca sacra ea sunt quae divino cultui fideliumve

sepulturae deputantur consecratione vel benedictione

quam prbfoati liturgici libri ad hoc praescribunt.

Sacred places are places set aside for divine worship,

or for the burial of the faithful, by a consecration or
blessing prescribed for this purpose by the approved
liturgical books.
^ The custom of withdrawing certain buildings from

profane uses and dedicating them to the divinity, is as

old as divine worship itself. The act by which a place
is made sacred, is called consecration or blessing. The
canonical effects of both are the same. These effects
consist partly in the destination of an otherwise profane

thing for sacred functions and worship, partly in the

prohibition of profane acts being performed in sacred
places. Hence Can. 1172 mentions the violation or de
filement of a church if certain acts are committed therein.
Besides, the sacred character is apparent from the ins
asyli referred to in Can. 1179. Finally, though this is
not specially mentioned in the text, certain profane acts
must not be performed in sacred places. Such acts are
civil trials, theatrical and purely secular entertainments,
 CANON 1155 3

political or merely worldly meetings, and every species of

1
buying and selling.
As we said, the canonical effects of consecration and
blessing are identical. But there is a difference in the
sacramental effects. Consecration is an act performed
by the bishop with certain prayers and anointing with oil
and chrism, whereas a blessing consists of prayers and
aspersions with holy water, which, even though reserved
2
to the bishop, may also be
performed by priests. Conse
cration, therefore, called
is solemn
also dedication,
whereas a blessing is a less solemn initiation. 3
The liturgical books which contain the formularies for
consecrations and blessings are the Roman Pontifical and
the Roman Ritual.

THE MINISTER OF CONSECRATION

CAN. 1155
i. Consecratio alicuius loci, quanquam ad regu-
lares pertinentis, spectat ad Ordinarium territorii in

quo locus ipse reperitur, dummodo

Ordinarius cha-
ractere episcopal! sit insignitus, non tamen ad Vica-
rium Generalem sine speciali mandate, firmo iure S. R.
E. Cardinalium consecrandi ecclesiam et altaria sui ti-
tuli.

2. Ordinarius territorii, licet charactere epi-

scopali careat, potest cuilibet eiusdem ritus Episcopo
licentiam dare consecrationes peragendi in suo ter-
ritorio.

Our canon substantially repeats the old law, which

made it very plain that no strange bishop, even though he
1 Cfr. Aichner, Compendium siae dedicatione sive consecratione;
luris EccL, 203, 3. Rituale Rom., tit. VIII, c. 27.
2 Cfr. Pontificate Rom., De eccle- 3 Wernz, lus Decretal., Ill, n.
436, p. 437, ed. i.
4 ADMINISTRATIVE LAW
has built a church
at his expense in another diocese, may
consecrate temple outside his own territory.* Ab
a
bots were forbidden to consecrate churches and altars. 5
This provision is here reenacted, for even regulars have
to call in the bishop in whose territory a church is to be
consecrated. Only in case the local Ordinary, after re
peated requests on the part of the regulars, should refuse
to perform the consecration, are they permitted to call in
another bishop, as Leo X had enacted at the Vth Lateran
Council. 6
A endowed with the episcopal
Vicar General who is

dignity, consecrate sacred places only by special

may
commission from the Ordinary, which should be repeated
every time a consecration is to take place.
Cardinals who are not bishops may by law validly con
secrate the churches and altars of their own title. Car
dinals who are endowed with the episcopal character may,
in virtue of a special privilege, consecrate churches and
7
altars everywhere with the consent of the local Ordinary.
An Ordinary who
not endowed with the episcopal is

character may grant the faculty of consecrating places

to any bishop of the same rite. Thus a Prelate or Abbot
Nullius, if he is not a bishop, may call any bishop of the
same rite into his diocese for that purpose. The same
applies to vicars-capitular or administrators. Sede va-
cante the regulars also must apply to the latter, who shall
call in a bishop for the purpose. 8
From all the ancient texts, which in this case have not
been abolished, it follows that the
episcopal character is
4 Cc. i, 3, C. 16, q. 5. titled to consecrate titular churches
5 C. 10, C. 1 6, q. i. and altars of other cardinals; S. Kit.
6
"

Dum intra," Dec. 19, 1516, C., Jan. 30, 1879 (Dec. Auth., n.
12. 3478).
7 See can. 239, i, n. 20. The 8 Many, De Locis Sacris, 1904, P.
Cardinal-Vicar of Rome is not en- 32.
 CANON 1155 5

required for valid consecration, although this requisite is

of merely ecclesiastical (but universal) law. The conse
quence is that the Pope, and he alone, can dispense from
this law and grant the faculty to consecrate
places to such
as are not bishops. Benedict XIV granted to Abbot En-
gelbert of Kempten in Bavaria the privilege of consecrat
ing his abbey-church. A personally granted privilege
seems be required, as Benedict XIV insinuates in his
to
9
letter. If an abbot claims the right to consecrate a

church, he must possess a special privilege of the Apos

tolic See and exhibit it to the
bishop who would other
wise be entitled to perform the function. 10
A consequence of this requirement is that any validly
consecrated bishop, even though he be a heretic, or a
schismatic, or under censure, may validly, though not
licitly, consecrate churches and altars.
Notice the term
"

eiusdem ritus," which excludes a

mixture of rites. Hence a Latin Ordinary may not licitly

grant permission, say to the Ruthenian bishop of our

11
country or Canada, to consecrate a Latin church.
"

Observe, finally, Ordinarins terri-

the expression,
torii," which includes
Ordinaries, whether their terri
all

tories are large or small, and also the abbots and prelates
mentioned in can. 319, 2.

It may be added that a metropolitan has no right to

interfere with consecrations in the territories of his suf

fragan bishops.
9
"

Ex tuis precibus," Nov. 16, ll S. O., June 16, 1831 (Coll. P.

1748. F., n. 822): non expedire," which
"

10 5. Rit. C., April 14, 1674 (Dec. means that the consecration would
Auth., n. 1505). be valid, but illicit.
6 ADMINISTRATIVE LAW

THE MINISTER OF A BLESSING

CAN. 1156

lus benedicendi locum sacrum, si hie pertineat ad

clerum saecularem vel ad religionem non exemptam,
vel ad laicalem, spectat ad Ordinarium territorii in quo
locus reperitur; si ad religionem clericalem exemptam,
ad Superiorem maiorem; uterque vero potest alium
sacerdotem ad hoc delegare.

The right of blessing a sacred place belongs ( I ) to the

Ordinary in whose territory the place is situated, con

cerning all places which belong to the secular clergy, or
to non-exempt religious, or to lay persons, even though
these be an ecclesiastical corporation which constructed
12
the church; (2) to the major superior, if the place be
longs to exempt religious, i. e., who are such either in
virtue of their regular character or by reason of a special

privilege.
The Ordinary as well as the religious superior may

delegate another priest, whether secular or religious,

13
whether pastor or not, to bless a place, but not to conse
14
crate it. Hence provincials, abbots, guardians, conven
tual priors and all who enjoy the power of quasi-provin-
cials, may bless churches and altars either themselves or
15
through others.
CAN. 1157

Non obstante quolibet privilegio, nemo potest locum

sacrum consecrare vel benedicere sine Ordinarii con-
sensu.
12 S. Kit. C., Oct. 7, 1645 (Dec. 14 S. Kit. C., Oct. 7, 1645.
Auth., n. 889). 15 Reg. luris, 68, 72 in 6.
13 Ibid., and Aug. 7 1875 (ibid.,
n. 3364, ad i).
 CANON 1159 7

No one may bless or consecrate a sacred place without

the consent of the Ordinary, notwithstanding any privi
lege.
The Ordinary whose consent is required for consecra
tion, is the one in whose territory the church or altar is
located. This rule, we repeat, binds all, regulars and
seculars, individualsand corporations, no matter whether
or not they have or helped to build, the church or
built,
16
altar. To bless a church or altar the consent of the
Ordinary is required, as explained under can. 1156.
The name of Ordinary, in this latter case, also com
prises the higher religious superiors.
The required consent may be given either in writing or

orally, but should, in ordinary cases, be express. In

urgent cases we believe consent may be lawfully pre
sumed for a blessing, but hardly for a consecration, be
cause a consecration is a pontifical right, which may not be
exercised in alien territory. 17

REGISTRATION AND PROOF

CAN. 1158

De peracta consecratione vel benedictione redigatur

documentum, cuius alterum exemplar in Curia epi-

scopali, alterum in ecclesiae archive servetur.

CAN. 1159

Consecratio vel benedictio alicuius loci, modo

i.

nemini damnum fiat, satis probatur etiam per unum

testem omni exceptione maiorem.
2. Si de ea legitime constet, nee consecratio nee

16 Cc. i, 3, C. 16, q. 5; S. Rit. C, 28, C. 7, q.i, inflicts one year s sus-

Oct. 7, 1645 (Dec. Auth., n. 889). pension a dninis, but our Code con-
17 Trid., Sess. 6, c. 5, de ref.; c. tains no penalty.
 8 ADMINISTRATIVE LAW
benedictio iterari potest ; in dubio autem, peragatur ad
cautelam.

After the consecration or blessing a report should be

drawn up, of which one copy is to be kept in the episcopal
court, and another in the archives of the church.
Consecration or blessing can be proved by one trust
worthy witness, provided no damage is done to a third
person.
Neither consecration nor blessing is to be repeated after
legal proof has been furnished that it has taken place but ;

if there is doubt, the act

may be performed provisionally
(ad cautelam).
A proof would be the testimony of an au
sufficient
18
thentic document or the deposition of an eye-witness.

Damage would be caused if a consecrated or blessed

church were given over to profane uses. Formerly one
who consecrated a church or an altar was entitled to the
tithes offered there. Hence the requirement of an un
prejudiced witness.
Re consecration is forbidden for an analogous reason as
rebaptism, viz.: because the ceremony imprints an indelible
character. 19 For this reason canonists have taught that
if a positive doubt exists as to whether a church or an
altar has been consecrated, the consecration should take

place, and Benedict XIV sanctioned this teaching, now em

bodied in the Code. 20 The mere age of a church would
not create a positive doubt as to its not being consecrated
or dedicated. The constantly observed anniversary of the
dedication, especially if for the consecration of the main
altar some kind of document were preserved, would make
reconsecration unnecessary, even though there were no

18 C. 16, Dist. i, de cons.; S. Kit.

19 C. 3, Dist. 68; C. 10, Dist. L,
C., Aug. 19, 1634 ad i (Dec. Auth., de cons.; c. in, Dist. 4, de cons.
n. 611). 20 "

Jam inde," Nov. 17, 1706.

 CANON 1 1 60 9

authentic document and no traces of the crosses appeared

on the walls. 21 If neither crosses nor documents are
available, and the church was entirely remodelled or re

built, consecration must take place. 22 If the doubt can

not be dispersed, consecration should be performed pro
visionally. This does not mean conditional consecration,
but, as the text says, ad cautelam, according to the for
mula contained in the Roman Pontifical.

IMMUNITY OF SACRED PLACES

CAN. 1160

Loca sacra exempta sunt a iurisdictione auctoritatis

civilis et in eis legitima Ecclesiae auctoritas iuris-
dictionem suam libere exercet.

Sacred places are exempt from the jurisdiction of the

civil authority, and the lawful ecclesiastical authority

I
freely exercises jurisdiction in them.
S- This is what is called localis immunitas, or exemption
from civil power in the use and administration of these
places. Even the pagans felt awe and reverence for
sacred places. The very terms Upov and sanctum instilled
respect for the spot or district set apart for the gods.
No criminal or unclean person was allowed to enter these
temene or sacred precincts, and no animal was admitted
into them. The fact that such places were either erected
or protected by public authority shielded them from
vexation and profanation. 23 All this goes to show that
there is in man what we might call a natural instinct of

21 S. Rit. C., Nov. 27, 1706 (Dec. 23 Cfr. Stengel, Die Griech. Kul-
Auth., n. 2174). tusaltertiimer, 1898, p. 18 ff. ; Ram-
22 S. Rit. C., Dec. 17, 1875; Aug. say-Lanciani, Manual of Roman An-
19, 1878 (Dec. Auth., nn. 3385, tiquities, p. 372 ff.

3462).
 io ADMINISTRATIVE LAW
reverence for things that belong to God. It was not
priestly arrogance, then, on the part of the Christian
Church that she claimed these natural prerogatives and
that the Christian emperors accorded them, as it were,

spontaneously. A
specific exemption was the ius metatus
or right of quartering soldiers in churches. The Church
would not permit secular trials, civil or criminal, to be
held in sacred places, nor purely worldly meetings, mar
24
kets, and political assemblies. This immunity still ex
ists. Our States have enacted laws which protect at least
the safety and decorum of church meetings. While no
"

church
"

ds established here in the European sense of

"

the word, all are established for the purpose of the

security of the worshippers from penalties or from moles

25
tation in the act of worship." Church purposes in the
United States are strictly private purposes, it is true, but
they are of more than passing interest to the general
26
public. This, of course, naturally implies that the ad
ministration and government of a sacred place belonging
to the Catholic Church must be acknowledged and carried
out according to its own constitution and laws. For with
out such authority the important provisions in the consti
tutions which guarantee the free enjoyment of religious
beliefs and worship to every person would become
27
nugatory. The Catholic Church cannot permit her
temples to become as was customary before 1776 28
places for town meetings, lectures, concerts, temperance
or political meetings and for other profane purposes.
24 Cfr. cc. i, 5, X, iii, 49; c. 2, century, in a Christian land, no ar-
6, III, 23. gument is necessary to show that
25 Cfr. Zollmann, American Civil church purposes are public pur-
Church Law, 1917, p. 286. poses."
26 Ibid., p. 407: "Says the Mis- 27 Ibid., p. 286.
souri court in a dedication case: it 28 Ibid., p. 407.
is presumed that in the nineteenth
 CANON 1160 ii

Here we may add some practical observations occa

sioned by the recent influenza epidemic. The Church is
not opposed to sanitary and hygienic regulations intended
to safeguard the public health and welfare. But she can
not recognize the authority of a local board of health to
close a church or to command the clergy to do so. Such
measures, when necessary, have to be taken through the
hierarchy, e., the bishop of the diocese, who should not
i.

shirk his duty. This is an act of jurisdiction proper to

the diocesan court.
A last remark: The text does not state on what
ground the Church claims immunity for sacred places,
whether by divine or ecclesiastical law. The majority of
canonists attribute it either to divine law or (at least) to
the natural dictates of reason. The latter view may be
safely defended on the basis of universal consent.
 TITLE IX
CHURCHES
DEFINITION

CAN. 1161

Ecclesiae nomine intelligitur aedes sacra divino cul-

tui dedicata eum potissimum in finem ut omnibus
Christifidelibus usui sit ad divinum cultum publice
exercendum.

By the term church is understood a sacred building

dedicated to divine worship, chiefly for the purpose that
it may be made use of by all the faithful for public

services.
The Latin term ecclesia (from eK/caAew) was the first in
1
vogue among Christians for their meeting places.
"

Temple was "

rarely used up to the fourth century,

probably to avoid confounding Christian places of wor
ship with Jewish and pagan temples.
The definition of church in the " "

Code contains three

characteristics: (a) sacred building, to distinguish it from

altars and furniture and common buildings; (b) dedi

cated to divine worship, by consecration or solemn bless
ing; and (c) chiefly for the purpose that it be open to
all the faithful. The last-named characteristic distin-

l Cfr. I Cor. ii, 12; Tertull., De the Scotch kirk, English church, and
Velandis Virg., 13; De Pudicitia, German Kirche arose. Other terms,
4. The term dominicum, from the like basilica and martyrium, have a
Greek KVpiaKOv, was also used specific meaning as to form or kind,
early; from this latter expression
12
 CANON 1163 13

guishes a church from an oratory, either domestic or

semi-public, for oratories may vie with, or even surpass
churches in size and be consecrated like them, but, un
like churches, are intended only for certain classes of
2
people or certain families.

BUILDING OF CHURCHES

CAN. 1162

i. Nulla ecclesia aedificetur sine expresso Ordi-

narii loci consensu scriptis dato, quern tamen Vicarius
Generalis praestare nequit sine mandate speciali.
2. Ordinarius consensum ne praebeat, nisi pru-
denter praeviderit necessaria non defutura ad novae
ecclesiae aedificationem et conservationem ad mini-
strorum sustentationem aliasque cultus impensas.
3. Ne nova ecclesia ceteris iam exsistentibus
detrimentum afferat, maiore fidelium spirituali utilitate
non compensatum, Ordinarius, antequam consensum
praebeat, audire debet vicinarum ecclesiarum rectores
quorum intersit, firmo praescripto can. 1676.
4. Etiam sodales religiosi, licet consensum consti-
tuendae novae domus in dioecesi vel civitate ab Ordi-
nario loci retulerint, antequam tamen ecclesiam vel
oratorium publicum in certo ac determinate loco aedi-

ficent, Ordinarii loci licentiam obtinere debent.

CAN. 1163

Benedicere et imponere primarium ecclesiae lapidem,

ad eos spectat, de quibus in can. 1156.
28. Rit. C., May 18, 1883, ad IV, 5; June 5, 1899 (Dec. Auth., nn.
3574, 4025).
 14 ADMINISTRATIVE LAW

CAN. 1164

Curent Ordinarii, audito etiam, si opus fuerit,

i.

peritorum consilio, ut in ecclesiarum aedificatione vel

refectione serventur formae a traditione Christiana
receptae et artis sacrae leges.
2. In ecclesia nullus aperiatur aditus vel fenestra
ad laicorum domus; locaque, si adsint, subter ec-
clesiae pavimentum aut supra ecclesiam, ad usum mere
profanum ne adhibeantur.
Can. 1162 provides that the consent of the Ordinary
must be obtained for building a church. No church, says
/ I, may be built without the express consent, in writing,

of the diocesan Ordinary. The Vicar General cannot

give this consent without a special mandate from the
^Ordinary.
This is partly old and partly new law, as far as the
written consent is concerned. The Council of Chalcedon
forbade religious to construct oratories without the con
3
sent of the diocesan. Other synods also insist upon this
4
formality.
2 rules that the Ordinary shall withhold his consent
until he is convinced that the necessary means for build

ing and maintaining a new church, and for supporting

the ministers and defraying other expenditures of reli
gious worship, will not be wanting. This, too, is ancient
practice. Ancient councils insisted on the necessary
5
dowry (dos) for every new church. This requirement
is also stated in the Roman Pontifical. The Ordinary is

3C. 10, C. 18, q. 2. 5 C. 26, C. 16, q. 7; c. 8, x, III,

* Cfr. c. 44, C. 1 6, q. i (Worms); 40.
c. 9, Dist. i, de cons. (Orleans). 6 P. II, tit., de benedictione et im-
positione primarii lapidis.
 CANON 1162-1164 15

therefore most solemnly charged to examine the financial

prospects of a new church.
162 adds another condition for the consent
^ 3 of can. 1 :

In order that the new church may not become a detriment

to churches already existing, if the loss would not be
compensated by the spiritual advantage of the faithful,
the Ordinary shall, before giving his consent, hear the
interested rectors of the neighboring churches, with due

regard, however, to can. 1676. This canon is a repetition

oi an old Roman Law which passed into the Decretals, 7
and rules that everyone, in our case every rector of a
church already in existence, who believes himself to be
injured by the erection of a new church, may sue for an
injunction before the judge. The effect is somewhat
similar to legal estoppel, but is only temporary, until
the judge has decided the case. But although the new
building should not be continued while the case is pend

ing, the builder may go on with the work, provided he

gives security to restore everything to the condition be
fore the work commenced in case the sentence should be
against him. Our Code grants two months to the plain
tiff or objector to prove his contention. This term may
be prolonged or shortened by the competent judge.
Hence the bishop has to listen to the objections of the
interested rectors, summon the parties and witnesses, in
fact, conduct an ecclesiastical trial, at least in summary
form.
4 mentions religious who wish to build a church or
public oratory. These, although they have already ob
tained the consent of the local Ordinary for establishing a
house in the diocese or city, must obtain the permission
of the local Ordinary before they can build a church or
7 Cfr.Dig. 39, i; Cod. VIII, 10, tiatione; Gasparri, De SSma Euch.,
14; X, V, 32, de novi operis nun- 1897, I, n. 125, p. 81.
 16 ADMINISTRATIVE LAW
public oratory in a certain and specified placej Concern
ing this we have said enough elsewhere, and nothing we
8

have said needs modification. We will only add a case:

A religious community had received permission to build a
house in a certain city. They did so, and opened a public
oratory within the boundaries of a parish church as yet in
"

catacomb
"

the or basement stage. This drew some

substantial and perhaps niggardly parishioners to the new
chapel, who
contributed neither to the oratory of the re
ligious nor to the parish church. The solution is evident.
The bishop had to stop the new chapel or else cut off part
of the parish and give it to the religious.
Note that after the promulgation of the Code no re
ligious, however exempt, can escape the law and if the ;

bishop granted permission before the promulgation, he

may now withdraw it, provided the building was not com
menced or the site changed. For the Code says: in a
certain and specified place. Besides, under I of can.
1162 written consent is required.
Can. 1163 rules that the blessing and laying of the cor-
nerstone belongs to those who are entitled to bless the
!

church. Hence the Ordinary or his delegate, or the su

perior of exempt religious or his delegate, may bless and

lay the corner-stone.
Can. 1164 admonishes Ordinaries to see to it that new
churches are built and old ones repaired in accordance
with the time-honored laws of Christian architecture and
the rules of sacred art.
This can best be explained in the school-room, where
lectures on Christian art should be given. The earliest

form of church building was the basilica, which was

8 Cfr. Vol. Ill, p. 89, can. 497. mission of the Holy See for building
Formerly they only needed the per- a monastery; c. 4, 6 , V, 7.
 CANON 1164 17

evolved from the ancient Roman dwelling-house.

9

About the eighth century the Romanesque style absorbed

the basilica, and later the Gothic style added its distinct
and pointed features. Out of these arose two mixtures,
vis., Barocco and Rococo, of which the former may have
some claim to the name of traditional architecture,
whereas the extreme Rococo can hardly be called any
thing else but a mental and architectural aberration.
Then there is the Byzantine style, which has found favor
here and there, even in our country, and certainly comes
up to the requirements of Christian art.
Our text adds that, if necessary, experts should be con

sulted. This is a dictate of common sense. The rules of

art demand that the style should fit into the landscape and
its surroundings. The financial resources also must be
considered. But a well-trained taste will be able to erect
a monument even of cheaper material. Finally the prac
ticaland acoustic side should receive attention. Too
many and heavy pillars are hardly practicable for a parish
church; too great a distance between people and altar is
not compatible with the all-absorbing idea of the sacrifice.
These are merely suggestions based on experience.
2 of can. 1164 says that no opening or window may
lead from the church into the house of lay people and that
the space underneath or above the church should not be
used for profane purposes.
As to the first clause it may be noted that an episcopal
10
palace or priest s residence may be built in such a way
that a gate or window leads into the church. Religious,
with the permission of the bishop, may have a choir built
in their house leading into the church, from which they
may assist atMass or pay their visits to the Bl. Sacrament.
9 Cfr. Lowrie, Monuments of the 10 This was formerly refused; cfr.

Early Church, 1901, p. 83 ff. Gasparri, /. c., n. 127, p. 83.

 18 ADMINISTRATIVE LAW
The next may cause surprise to more than one
clause
pastor, for would seem to affect the so-called combina
it

tion-buildings (church and school combined) so often

found here. If there is nothing else attached to such a
building, we not forbidden, for the text says,
believe it is

ad usuni mere profanum," which cannot be applied to a

"

parish school. The case is different if the basement or

the hall above the church would be used for merely pro
fane meetings or entertainments. The decisions are de

cidedly against such use, even if the basement were only

11
used as a theatre for the school-children. The reason
is that the church together with the basement is, as a
whole, consecrated (per modum unius). The decisions
have consecration in view. Do *they apply to churches
which are blessed? There is no doubt that, as stated
above, the canonical effect of consecration and blessing,
as far as the church is concerned, is the same. How
ever, there is a difference between consecration and bless

ing, and we hardly believe that a combination building

could be consecrated. Besides, as shall be seen under
can. 1172, the defilement of a church must affect the
church itself. Hence it is commonly taught that the sac
risty or tower of a church, or a crypt which has neither
chapels nor a burial place, is not polluted by acts per

formed therein. 12 From this it would seem to follow that

the basement or hall of a church is not, strictly speaking,
included in the church proper. The consequc^ ~M
be that the hall or basement of the church (if this were
merely blessed) might be used for purposes which would
otherwise be excluded.
We would also draw attention to the fact of necessity
which exists in many places. However, we must add
ll S. Rit. C, May 4, 1882 (Dec. 12 Many, /. c,, p. 78 ff.

Auth., n. 3546).
 CANON 1165 19

that the intention of the lawgiver certainly is to prohibit

merely worldly uses which have no connection with the

church. Dances, balls, and noisy banquets should not
be held in these places.
We add some decisions. A dormitory, even for cleri
cal students, is notpermitted immediately above the ceil
ing of the chapel or church only if it is separated by an
;

intervening space or room provided with solid walls, may

itbe placed above the church. 13 There should be no cellar
under the church. 14

DEDICATION OF A CHURCH

CAN. 1165

i. Divina officia celebrari in- nova ecclesia neque-

unt, antequam eadem vel sollemni consecratione vel
saltern benedictione divino cultui fuerit dedicata.
2. Si prudenter praevideatur ecclesiam conver-
sum ad usus profanes, Ordinarius consensum eius
iri

aedificationi ne praebeat, aut saltern, si forte aedificata

fuerit, earn ne consecret neve benedicat.
3. Sollemni consecratione dedicentur ecclesiae
cathedrales et, quantum fieri potest, ecclesiae collegi-
atae, conventuales, paroeciales.
4. Ecclesia ex ligno vel ferro aliove metallo
benedici potest, non autem consecrari.
~
>Mtare
j^
consecrari potest etiam sine ecclesiae
const/^atione sed una simul cum ecclesia debet saltern
;

altaremaius consecrari aut altare secundarium, si

maius sit iam consecratum.

i. Divine service may not be held in a new church

13 S. Kit. C., May u, 1641; July 14 S. Kit. C., Aug. 31, 1867 (ibid.,
27, 1878 (Dec. Auth., nn. 756, n. 3156).
346o).
20 ADMINISTRATIVE LAW
before it has been solemnly consecrated or at least dedi

cated to the worship of God by a blessing.

This law dates back to remote antiquity. Eusebius, the
Father of Church History," tells us that, soon after the
"

persecutions had ceased, churches were dedicated in the

presence of gatherings of bishops, priests, and a great
multitude of lay-people, who counted distance nothing,
being united in love and joy on the occasion. He inserts
his own discourse delivered at the dedication of a church
15
at Tyre.
No special ritual for church dedications can be traced
before the eighth or ninth century. According to the two
most ancient Ordines Romani, the chief ceremony ap
pears to have been the translation of relics. A descrip
tion of the liturgical act of dedication in use in France at
the beginning of the eighth century shows that it closely
resembled the present rite, as found in the Roman Pon
16
tifical. Thus we may say that, although at first churches
were perhaps dedicated by celebrating the divine mys
teries, yet from the eighth century onward a special ritual
was followed, which finally developed into the present
rite.

Dedication then is performed by either consecration or

blessing.
Consecration essentially consists in anointing with
chrism the twelve crosses which are placed on the walls
"

or pillars of the church, with the formula Sanctificetur :

et consecretur hoc templum in nomine Patris et Filii et

17
Spiritus Sancti, etc." The bishop should go around the
whole church three times. If this cannot be done, he
15 Hist. Eccl., X, 3, i ff. (cfr. 16 Cfr. Duchesne-McClure, Divine
Die Griech. Christl. Schriftsteller, Worship, 1903, p. 407 ff.
by Schwarz-Mommsen, Vol. II, 860 17 S. Kit. C., April 12, 1614 (Dec.

ff.) Auth., n. 319).

 CANON 1165 21

should at least goabout those parts which are accessible. 18

If (e. g., on account of bad weather) the prayers and

sprinkling of the outside walls cannot take place, what is

to be done? The S. Congregation answered as follows:
If possible, recourse should be had to the Holy See; but
ifthe consecration cannot be delayed, the solemn function

may begin in the sacristy, or in the vestibule, or in some

other convenient place, and the outside walls should be
sprinkled as well -as it can possibly be done; but the
people are not to be admitted into the church from the
19
beginning of the ceremony. One and the same bishop
must consecrate the church and the main, or at leas-t one,
20
altar.

Blessing a church consists essentially in sprinkling the

upper and lower part of the walls, either inside or outside,
with holy water. All churches and public oratories must
be at least blessed according to the formula in the Roman
Ritual. 21 Unless they are blessed no titular feast may be
22
celebrated. Nor does the fact that the cemetery is
23
blessed create a presumption in favor of the church.
Before the blessing is imparted, divine service may not be
celebrated in a church. This means that Mass may not
be said, the sacraments may not be administered, and
there is to be no preaching; for these offices especially
constitute divine warship (cfr. can. 2256).
2. If it can be reasonably foreseen that a church will

be turned to profane uses, the Ordinary shall not consent

to its being built, nor consecrate or bless it after it is
built. There would be room for prudent fear if a church

18 S. Rit. C., Sept. 19, 1665, ad i 21 S. Kit. C., June 5, 1899 (.ibid.,

(ibid., n. 1321). n. 4025).

19 S. Rit. C., Feb. 22, 1888 (ibid., 22 S. Rit. C., Sept. 2, 1871, ad II,
n. 16). 3 (ibid., n. 3255).
20 S. Rit. C., March 3, 1866 (ibid., 23 S. Rit. C., Feb. 21, 1896, ad
n. 3142). IV, (ibid., n. 3888).
 22 ADMINISTRATIVE LAW
or public oratory belonged to a private family and thus be
liable to transfer and subsequent profanation by way of
24
/ sale or alienation.

3. Cathedral churches and also, as far as possible,

collegiate,conventual, and parish churches, should be

.

solemnly consecrated.
4. Churches built of wood or iron, or some other
metal, may be blessed, but not consecrated.
As to rural chapels and oratories of confraternities or
pious associations, they may be consecrated if built o.f

stone or brick, but if the bishop does not wish to conse

crate them he may delegate a priest to bless them. 25 .

Churches built of reinforced concrete (caementum ar-

matum) may be solemnly consecrated, provided that the
places for the twelve crosses and the door posts of the
main entrance be of stone. 26
5. An altar may be consecrated even if the church is

not consecrated; but together with the church the main

altar (or, if the main altar is already consecrated), a side
altar must be consecrated. This section embodies the
substance of former decisions of the S. Congregation, as
summarized in a decree of the S. Rit. ;C, June 8, 1896.
This decree states that the consecration of a church with
out the simultaneous consecration of at least one altar is
valid but illicit if performed without Apostolic dispensa
27
tion. The reason is to be sought in the integrity of the
whole ceremony.
24 S. Rit. C., May 4, 1882, ad I 26 S. Rit. C., Nov. 12, 1909 (n.
(ibid., n. 3546). 4240).
25 S. Rit. C., Aug. 7, 1875, ad i 27 Dec. Auth., n. 3907 (also nn.
(.ibid., n. 3364). 1321, 2177).
 CANON 1 1 66 23

THE CONSECRATION OF CHURCHES AND ALTARS

CAN. 1 1 66

i. Ecclesiarum consecratio, quamvis quolibet die

fieri tamen diebus dominicis aliisve
possit, decentius
festis de praecepto peragitur.
2. Episcqpus consecrans et qui petunt ecclesiam
sibi consecrari, per eum diem qui consecrationem

praecedit, ieiunent.
3. Cum consecratur ecclesia vel altare, Episcopus
consecrator, licet iurisdictione in territorio careat, in-
dulgentiam concedit unius anni ecclesiam vel altare
visitantibus in ipsa consecrationis die; in die verb
anniversaria quinquaginta dierum, si sit Episcqpus;
centum, si Archiepiscopus ; biscentum, si S. R. E.
Cardinalis.

i. Although churches may be consecrate d on any

day, it is meet that Sundays or holydays of obligation be
chosen for that purpose.
2. The consecrating bishop as well as those who have
petitioned for consecration, shall fast on the day preced
ing the consecration.
This fast is of strict obligation. It is personal as well

as local. 28 Thus if a founder asks the bishop to conse

crate a church or public oratory, he is bound to fast the

day before; a chapter or corporation (v. g., parish) or

if

religious community ask for consecration, the whole chap

ter, etc., are bound to fast, including those who voted
29
against the consecration. But the chaplain of religious
communities of sisters who asked for the favor would not
have to fast, even though he submitted the petition to the
28 S. Rit. C M July 29, 1780; Sept. 29 Many, /. c., p. 33.
12, 1840 (Dec. Auth., nn. 2519).
24 ADMINISTRATIVE LAW

bishop. Of course, if he had asked for it

personally, he
too would be bound to fast.

3. At the consecration of a church or altar the conse

crating bishop, though he may not have jurisdiction over

the territory, grants an indulgence of one year to all
who visit the church or altar on the day of the consecra
tion; of fifty days for the anniversary of the consecra
tion of 100 days if he be an archbishop, 200 if he be a
;

cardinal.

ANNIVERSARY OP CONSECRATION

CAN. 1167

Festum consecrationis ecclesiae quotannis celebretur

ad normam legum liturgicarum.
"

/
The feast of the consecration of a church is to be cele
brated annually according to the rubrics.
The latest decrees 30 concerning this subject ar.e: Pro
vided the cathedral -church has been consecrated and not
merely blessed :

(a) The feast of th e dedication is a primary feast and

festum Domini;
(b) The anniversary must be celebrated as a first-class
feast with octave throughout the diocese by the secular

clergy and also by the religious clergy if the latter follow

the diocesan calendar; if they have their own calendar,
they must celebrate the anniversary of the dedication of
the cathedral as a feast of the first class without octave ;

(c) The -anniversary must be celebrated on the day

31
proper -and not transferred to a Sunday ;

(d) The anniversary of the dedication of the cathe-

30 S. Rit. C., Nov. i, 1911 (A. remembered, the Ordinary, with the
Ap. S., 646 f.).
Ill, advice of the chapter, may semel pro
31 If the day is not recorded or semper assign a day.
 CANON 1168 25

dral must be celebrated separately from the dedication of

all the churches of the diocese; for the latter feast (dedi-
catio omnium ecclesiarum dioeceseos) a day may be desig
nated by the Ordinary ;

(e) The same rule must be observed by religious or

ders or congregations with regard to the celebration of the
32
dedication of all the churches of their institute ;

(f) The feast of the dedication of all the churches of

a diocese (or institute) must be understood in the sense
33
that each church celebrates its own dedication.

TITLES AND TITULAR FEASTS

CAN. 1168

i. Unaquaeque ecclesia consecrata vel benedicta

suum habeat titulum; qui, peracta ecclesiae dedica-
tione, mutari nequit.
2. Etiam festum tituli quotannis celebretur ad
normas legum liturgicarum.
3. Ecclesiae dedicari Beatis nequeunt sine Sedis
Apostolicae indulto.

i. Each consecrated or blessed church must have its

own title, which cannot be changed after the dedication.

2. The titular feast is to be celebrated annually ac

cording to the rubrical laws.

3. Churches cannot be dedicated to a Beatus without
an Apostolic indult.
Titulus the name by which a church is known and
34
is

distinguished from other churches. It is not unlike the

name given in Baptism. If the name is that of a person,

32 S. Kit. C., Oct. 28, 1913, I, 3, 34Cfr. Gasparri, De SSma Euch.,

c. f. (A. Ap. S., V, 458). 1907, I, n. 137 ff.5 Many, /. c., p.
33 S. Kit. C., Feb. 12, 1914 (A. 52 fi.

Ap. S., VI, 76).

 26 ADMINISTRATIVE LAW
this person is called the patron of the church, provided
he or she be a Saint (persona creata, non increata), for
patron signifies advocate, which does not apply to a Di
vine Person.
Titles of churches may be the Blessed Trinity or one :

of the three Divine Persons, 35 Jesus Christ or one of the

biblical mysteries, the Blessed Virgin or any one of her

special attributes, the angels and saints or some conspicu

ous events in their lives, as, for instance, the conversion
of St. Paul.
When two saints are chosen as patrons for one church,
they are generally taken per modum unius, e. g., SS.
Philip and James. But if at the dedication two different
saints are chosen divisim, they are celebrated on their re
spective days. Sometimes it happens that a secondary
title or patron is added because it has been transferred
from a church forsaken or destroyed.
The text says that the title cannot be changed. For the
title being chosen at the laying of the corner-stone and
made stable or perpetual at the dedication, is the distinc
tive and permanent attribute of a church. Hence it has
been decided more than once that the bishop cannot of his
own accord change the original title, but an Apostolic
indult is required for the purpose. 36 If the Holy See
adds the title of an abandoned church to another, the title
thus added is a secondary one. 37
3 says that no church shall be dedicated to a Beatus,
i. e., one who is beatified, but not yet canonized by a for
mal decree of the Holy See. In the case of such as have
been venerated as saints by a constant tradition before the
35 God the "Father is, as far as we Sept. 12, 1857, ad 17 (/. c., nn.
know, not chosen, because of the 2719, 3050).
fact that He is not represented as 37 S. Rit. C., April 20, 1822, n. i

sent (defectu missionis divinae) .

(.ibid., n. 2619; t. IV, p. 221).
35 S. Rit. C., Sept. 6, 1834, ad 2;
 CANON 1168 27

time of Alexander III (1159-1181), the public venera

tion takes the place of the formal decree of the Apostolic
38
See, and they may therefore be chosen as patrons for
churches.
2 concerns the titular feast. The chief rules as to
that are the following:
1. The titular feast of the cathedral church must be
celebrated with octave by the whole clergy of the diocese,

including those religious who follow the diocesan calen

dar. Regulars (not religious who have no calendar of
their own) must observe the feast as one of the first class,
but without octave, if they have their own calendar. 39
This celebration includes office and Mass.
2. The church whose
clergy is obliged to observe the
feast is any consecrated or blessed church. Oratories,
either public or semi-public, are included, provided they
are either consecrated or solemnly blessed ;
likewise epis

copal chapels, oratories of seminaries, hospital chapels,

40
chapels of religious houses, etc.
3. The clergy obliged to say the office and Mass of the
41
titular feast are: (a) the pastor and his assistants. (b)
Missionaries assigned to several missions, but residing at
one, are bound only to the feast of the residential
church. 42 (c) Rectors, seminary professors, and students
who live in the seminary, must recite the office of the
43
seminary church.
4.Regulars must celebrate the feast of their own
44
church; but if they merely live in a house adjoining a
38 Many, /. c., p. 54 f. 42 S. Kit. C., Aug. 25, 1882; Feb.
39 S. Kit. C., Nov. n, 1911 (A. 27, 1883 (ibid., nn. 3554, 3571).
Ap. S., Ill, 647 .). 43 S. Kit. C , Feb. 27, 1847 (ibid.,
40 S. Kit. C., June 5, 1899 (n. n. 2939).

4025). 44 S. Kit. C, Sept. 18, 1877, ad r

41 S. Kit. C., Sept. 2, 1871; Aug. (n. 3437)-

II, 1877 (ibid., nn. 3255, 343 1 ).
28 ADMINISTRATIVE LAW
church which they do not own, they are not allowed to
recite the office of that church.
45
A religious community
in charge of a public church must recite the office of the
46
titular feast of that church with octave.

5. Chaplains of sisters are not bound to say the office

of the titular feast of the chapel which they serve.
6. The bishop must recite the office of the titular feast

of the cathedral church, and if he has two bishoprics

deque principaliter united, he has to recite the office of
both cathedral churches, if they have different titles.
"

If a church is simply called St. Mary s,"

the proper
the Assumption
title is Our Saviour ;
"

s
"

is celebrated on
the feast of the Transfiguration. 47

CHURCH BELLS
CAN. 1169

i. Cuilibet ecclesiae campanas esse convenit,

quibus fideles ad divina officia aliosque religionis actus
invitentur.
2. Etiam ecclesiarum campanae debent consecrari
vel benedici secundum ritus in probatis liturgicis libris
traditos.
3. Earum usus unice subest ecclesiasticae aucto-
ritati.

Salvis conditionibus, probante Ordinario, ap-

4.

positis abillis qui campanam ecclesiae forte dederint,

campana benedicta ad usus mere profanes adhiberi

nequit, nisi ex causa necessitatis aut ex licentia Ordi-
narii aut denique ex legitima consuetudine.
5. Quod ad campanarum consecrationem vel ben-
45 Gasparri, /. c., p. 96.
46 S. Kit. C., April 7, 1876, ad IV (n. 3397).
47 Gasparri, /. c., p. 95. 97-
 CANON 1169 29

edictionem attinet, servetur praescriptum can. 1155,

1156.

i. It is becoming that
every church have bells, by
which the faithful may be called to the divine service and
other religious acts.
2. Church bells must be either consecrated or blessed

according to the rites prescribed in approved liturgical

books.
3. Their use is regulated exclusively by the church
authorities.

4. Aside from the stipulations made by the donor

with the approval of the Ordinary, a blessed bell cannot
be used for merely profane purposes, except in case of
necessity, or by permission of the Ordinary, or by lawful
custom.
5. The consecration or
blessing of bells is governed
by can. 1155and 1156.
We need not dwell on the origin of bells. Suffice it to
say that from the word signum" used in ancient monk
"

48
ish rules, to campana, or bell proper, which appears in
the Liber Pontificalis under Stephen II (752-757), there
lie about 250 years. 49 The eighth century witnessed the
development which gave rise to the use of bells for
churches as we know it.
Complaint was made by the
regulars against prelates who forbade religious to have
church bells, and Pope Gregory IX put an end to these
molestations. 50

simply affirms the convenience and propriety of

I

having bells in every church, whether in charge of secu

lar or religious clergy. Nothing is said about their num
ber or size.

48 R*g. S. Bened., c. 43. isa reminder of the legend that St.

49 Cfr. Cath. Encyc., II, 418 ff. Paulinus of Nola invented them.
Bells are often called nolae, which 50 C. 16, x, V, 31.
30 ADMINISTRATIVE LAW
2 mentions the consecration and blessing of bells,

which, as 5 enacts, must be regulated according to can.

1155 and 1156.

The formula of consecration is found in the Pontificate
Romanum. It should be used for the bells of consecrated
churches. 51
According to can. 1155, the consecration of bells is re
served to the local Ordinary, and delegation to a simple
52
priest can only be given by the Holy See.
There is also a formulary for blessing bells in the Ro
man Ritual. 53 It is intended for bells to be used for
church or chapel purposes. 54 For this function the Ordi
nary or an exempt religious superior may delegate any
55
priest without recourse to the Holy See. If the conse
cration is performed on several bells, the washings and
anointings are made per modum unius during the recita
tion of the Psalms. The water must be blessed for each
function, but not for each bell, if several are consecrated
at the same time.
If a delegate performs the consecration and has re
ceived delegation for one bell only, whilst there are sev
eral, delegation for the others may be presumed.
If, for some reason, there is no water blessed by the
bishop available, the delegate may, in case of necessity,
56
bless water himself.
One
delegated to consecrate bells must strictly follow
the Pontificate; he must not omit the anointings or muti-

51 S. Kit. C., Jan. 22, 1908 (Dec. 55 It is not becoming that the
Auth., n. 4211). bishop in pontificalibus should climb
52 S. Rit. C., April 19, 1687 (ibid., a ladder to bless bells which cannot
n. 1781). The anointing may not be be taken down; S. Rit. C., July 16,
omitted. 1594 (/ c>,
n. 52)-
53 See ed. Pustet, 1913, p. 77* ff. 56 S. Rit. C., April 14, 1885 (
54 There is also a blessing of bells 3630).
not intended for church uses; see
ed. cit., p. 84.*
 CANON-n69 3i

late or change the formula, and he must employ a

deacon. 57
Nothing forbids the consecration of bells made of pure
58
iron or steel.

Bells consecrated or blessed for the service of churches

or chapels, are strictly sacred things and, as such, subject
to the exclusive jurisdiction of the Church. They must
not be rung for merely secular purposes, worldly fes
tivities, political meetings, executions, etc. Their guar
dian is the pastor or the sacristan canon of the cathedral
chapter, who, in case of doubt, especially when serious
consequences are to be apprehended, is bound to report to
the Ordinary.
4 leaves a wide margin in regard to the use of church
bells, (a) The will of the founder must be respected, if
any stipulations have been made with the approval of the
bishop, (b) Necessity justifies the ringing of church
bells in time of flood, fire, war, etc. 59 (c) The permis
sion of the Ordinary may be given for any laudable pur

pose, e, g., to celebrate a victory or the restoration of

peace, the return of soldiers, civic festivals, etc. (d)

Lawful custom sanctions the use of church bells for any
of the aforesaid or similar purposes.
But it must be emphasized that the ringing of bells con
secrated or blessed for church purposes cannot lawfully
be dictated by the civil authorities, since, as said above, by
consecration or blessing these objects have a sacred char
acter imprinted upon them.
The question whether bells used by a church are its
property or belong to some one else can sometimes be
57 S. Kit. C., June 23, 1853 ( n -
parishioner may ring the bell with-
3015). out asking the pastor or bishop, es-
58 S. Kit. C., Feb. 6, 1858 (n. pecially if there are no other means
3067). of communication.
59 In that case the sexton or any
32 ADMINISTRATIVE LAW
determined only by the intention of the founder, but un
less the stipulated and proved intention of the founder 60
makes an exception, the control of church bells lies solely
with the ecclesiastical authority, i. e., the Ordinary of the
diocese.

LOSS OF CONSECRATION OR BLESSING

CAN. 1170

Consecrationem vel benedictionem ecclesia non amit-

tit, nisi tota destructa fuerit, vel maior parietum pars

corruerit, vel in usus profanes ab Ordinario loci

redacta sit, ad norman can. 1187.

A church does not lose its consecration or blessing

unless it is totally destroyed, or the larger part of the
walls has collapsed, or the Ordinary has turned the
building over to profane uses, according to can. 1187.
It would be equal to entire destruction if the whole

wall, apse and roof had been removed. 61 But a partial

repair of, say, two-fifths of the walls would not require
re-consecration. Thus, e. g., if the framework or joists
of a church were consumed by fire, or the framework of
the tower had fallen upon the arch of the middle aisle and
62
damaged the walls, no reconsecration would be required.
Even if the whole church is successively repaired, re-
consecration is not required, provided each part repaired

is smaller than the parts not repaired. 63 Furthermore,

although the whole plastering (intonaco) were removed
60 Zollmann, American Civil 61 S. Rit. C., Sept. 4, 1875 (n.
Church Law, 1917, p. 374 f. If the 3372).
civil authorities should ask the 2 S. Rit. C., July 13, 1883 (n.
church authorities to moderate the 3504).
ringing of bells, no one would object 63 S. Rit. C., Aug. 31, 1872 (n.
to such a petition, provided it were 3269).
reasonable.
 CANON 1171 33

together with the crosses, and new plastering, stucco, or

marble substituted, no re-consecration or re-blessing
would be necessary; but the crosses should be painted
anew or replaced by new ones. 64 Even if the church is

considerably enlarged and interiorly embellished with

marble or stucco, as long as the old walls remain in the
proportion of 3 to 2 or 5 to 3, no re-consecration or
re-blessing is required, though the crosses, as stated
65
above, must be renewed.
As
to the reduction of a consecrated or blessed church
to profane uses we refer to can. 1187. The Ordinary
alone can do this, and hence, if a church was turned
over to profane uses by human malice or violence, it
may be called defiled, provided Can. 1172 is verified, but
it is not execrated, and execration is here to be under
stood. 66

EFFECT OF CONSECRATION OR BLESSING

CAN. 1171

In sacra aede legitime dedicata omnes ecclesiastic!

ritus perfici possunt, salvis iuribus paroecialibus,
privilegiis legitimis consuetudinibus
et Ordinarius ;

autem, praesertim horas sacrorum rituum, potest,

iusta de causa, praefinire, dummodo ne agatur de ec-
clesia quae ad religionem exemptam pertineat, firmo

praescripto can. 609, 3.

One
of the effects of consecration or blessing is that, in
every sacred edifice properly dedicated, all ecclesiastical
rites may be performed, with due regard to parochial

64 S. Rit. C., May 4, 1882; June 3651); this holds good even if the
8, 1896, ad II; Aug. 9, 1897 (/. c. t primary intention was to repair or
n -
3345. 3907, 3962). enlarge the whole church.
65 S. Rit. C., Jan. 16, 1886 (n. 6 Many, /. c., p. 66.
 34 ADMINISTRATIVE LAW
rights, privileges, and lawful customs. But the Ordinary
may, for a just cause, determine the hours of service,
provided the church does not belong to exempt religious.
This law comprises every church or public oratory duly
consecrated or blessed. The ecclesiastical rites which
may be performed in such sacred edifices are the divine
offices mentioned in can. 1165, I.

The Code adds

salvis iuribus paroecialibus, privilegiis
:

et legitimis consuetudinibus. This means that a church

or public oratory may be solemnly consecrated or blessed,
yet, aslong as it is no parish church, no parochial rights
can be exercised therein, unless the parish priest should
choose it for parochial functions. Besides it may happen
that, for instance, a confraternity enjoys certain privileges
for its members, e. g.,the burial right may be attached to
a church, even though it is not a parish church.
Lawful custom may introduce rights which might
otherwise be claimed by the parish church, for instance,
that of having a baptismal font. 67
As to the hours of service, it has been more than once
decided that the bishop may, either at a synod or outside,
determine the hour of the parochial Mass, as well as for
bid that Mass be said in secular chapels before the paro
chial Mass.
However, the S. Congregation has repeat
edly urged pastors to say Mass at hours convenient for
the faithful. The pastor is not entitled to forbid that
Mass be said before the parochial Mass. 68 It was de
clared that an archpriest has no right to forbid chaplains
of a public oratory to say Mass before the parochial
Mass, unless this oratory was subject to the parish church,
whose archpriest attempted to enforce the prohibition in
69
question.
<J7
Cfr. S. C. C., May 17, 1749 68 Bened. XIV, Inst., 44, nn. 9 ff.

(Richter, Trid., p. 131, n. 8); can. 69 S. Rit. C., July n, 1643 (n.
775- 842).
 CANON 1172 35

Exempt religious, even though warned by the bishop,

are not obliged to abstain from celebrating Mass or per

forming other functions even while the bells are ringing

for the parochial Mass. Thus the S. C. Concilii has de
70
cided several times.
Our canon refers to can. 609, 3, which has been

sufficiently explained in Vol. Ill of this Commentary.

DESECRATION OF A CHURCH

CAN. 1172

i. Ecclesia violator infra recensitis tantum acti-

bus, dummodo certi sint, notorii, et in ipsa ecclesia

positi :

i. Delicto homicidii;
2. Iniuriosa et gravi sanguinis effusione;
3. Impiis vel sordidis usibus, quibus ecclesia ad-
dicta fuerit;
4. Sepultura infidelis vel excommunicati post sen-
tentiam declaratoriam vel condemnatoriam.
2. Violata ecclesia, non ideo coemeterium, etsi
contiguum, violatum censetur, et viceversa.

By desecration (pollutio ecclesiae, as it was formerly

called) is here understood a moral violation of a church
by diverting it from a sacred to a profane use. It is in
duced only by acts described in the law and differs from
execration in as much as the latter entails the loss of con
secration or blessing, whilst desecration only requires
reconciliation or rehabilitation.

Up to the time of the Decree of Gratian no clear dis

tinction can be established between desecration and exe
cration, as may be seen from the canons the Master
TOCfr. Richter, Trid., p. 136, n. 45.
36 ADMINISTRATIVE LAW
71
alleges. The term "

pollutio" does not occur in the

classical texts of Gratian, but was probably brought
in by the glossators. Violatio is used by Pseudo-
72
Hyginus. Pollutio and reconciliatio are the terms em
73
ployed in the Decretals.
The Code has apparently omitted from the list of acts
which induce violation the seminis effusio, but instead
of it has inserted a new mode of desecration, which can
75
only be determined by subsequent practical legislation.
i. A church is violated
(or desecrated) by the fol
lowing acts, provided they are certain, notorious, and
committed in the church itself, to wit :

1. The crime of homicide;

2. Injurious and serious shedding of blood;
3. Impious or sordid use to which the church was di
verted ;

4. The burial of an infidel or one excommunicated by a

declaratory or condemnatory sentence.
2. The desecration of a church does not entail the

desecration of the cemetery, even though the latter ad

joins the church,and vice versa, desecration of the ceme
tery does not involve desecration of the church.
Homicide must here be strictly understood, as the kill

ing of any human being, whether young or old hence it ;

also covers abortion and suicide. It does not matter

whether the crime is committed by poison, or hanging, or

the use of a weapon.
The text further says delict o. A crime supposes a

71 C. 3, Dist. 68; cc. 19, 20, 27, the Irish Eccl. Record, 1919, 460,
28, Dist. i, de cons. maintains) seems doubtful, because
72 C. 19, Dist. i, de cons. usus is hardly ever employed in such
73 Cc. 7, 10, x, III, 40. connection, unless a church were
74 C. 10, x, III, 40. used for a brothel, which is a re-
75 Whether the effusio seminis hu- pulsive thought.
mani is included in i, n. 3 (as
 CANON 1172 37

grievous fault, and therefore homicide committed by a

child, or by an insane or frenzied person, would not dese
crate a church. If a drunkard perpetrates such an act,
itdepends on whether the action was in any way foreseen
or not. If it was not foreseen, it does not desecrate the
church. 76 Lynching, however, and even the judiciary
execution of a sentence of capital punishment would in
duce desecration. No crime is involved if one kills an
aggressor in self-defence.
Iniuriosa et grains sanguinis effusio means the shed
ding of human blood in such quantity that it may be
called a pouring out. Hence a few drops, or the oozing
from a light wound would not desecrate a church, and
77
the authors speak of a copious shedding of blood.
The word gravis may have another meaning, viz. grauiter
culpabilis, grievously sinful.Hence if boys would beat
one another, or would punish boys in church,
if a teacher
78
it would scarcely amount to a grievous fault. If by a
serious blow from another the nose would bleed copi
79
ously, some assert desecration, while others deny it.
The correct answer depends partly on the interpretation
of iniu-riosa, because the injury may be referred either
80
to the sacred edifice or to the person 81 injured. The
text does not decide which is meant. But most prob
ably the act must be injurious to both edifice and person,,
so that the person injured is really damaged, and the

people who witnessed the act look upon it as a serious

irreverence done to the church.
The third act which induces desecration is giving the
church over to impious or sordid uses. Here the terms
76 Cfr. Gasparri, De SSma Eu- 78 Reiffenstuel, III, 40, n. 16.
charistia, n. 250, Vol. 1, p. 177. 79 Gasparri, /. c. i

77 Gasparri, /. c., n. 251; Many, 80 Idem, I. c.

De Locis Sacris, p. 72. 81 Many, /. c., p. 71.

38 ADMINISTRATIVE LAW
require attention, because, as stated, this cause is new.
Impious has many meanings: ungodly, irreligious, ir
reverent, unnatural, detestable, etc. Hence using a
church for orgies, as happened in the French Revolu
tion, or for Masonic rites, would, in our opinion, dese
crate it. Sacrilegious robbery would also have this effect.
Sordidus may be compared with the sordid or mean
offices forbidden to the clergy. Thus a church may be
called desecrated if it was used for a barracks, especially
if it has also served to quarter horses or mules 82
;
al
83
though the S. Congregation in one instance of .a two

days occupation by soldiers decided only for provisional

reconciliation. Sordid would also be the use of a church
for merely political meetings, if this should happen fre
quently and under great agitation.
Lastly, the burial of an infidel or an excommunicated
person also desecrates a church. By infidels are here
understood persons who have never been baptized. Cate
chumens must not be classed with infidels. 84 Besides, a
more benign interpretation would, in our case, exclude
from the class of infidels all children of Catholic parents,
whether buried with the mother or not. 85 But if this be
admitted, why not extend it to the husband or wife of a
Catholic partner, since the unbelieving party, according to
I Cor. VII, 14, is sanctified by the believing party? We
make this suggestion with due reserve and because some
86
canonists interpret the term pagans and infidels as in
cluding grown persons only, or such as are wilful infidels.
Our Code, which does not receive its juridical value from
the spurious texts of Gratian s Decree, simply mentions
82 S. Kit. C., March 3, 1821 (Dec. 85 Gasparri, /. c., n. 253; Many,
Auth., n. 2612). /. c., p. 75 f.

83 S. Rit. C, Feb. 27, 1847 (.ibid., 86 Gasparri, /. c.; see, however,

. 2938). can. 1239.
84 Cfr. can. 1239, 2.
 CANON 1172 39

infidels, without distinction, thereby including all who are

destitute of baptismal grace through their own fault.
E.i-communicati must also be interpreted strictly. It
includes only those who have been declared excommu
nicated or condemned to the penalty. It does not include

those under suspension or interdict, and therefore the

burial of a suspended or interdicted person would not
desecrate a church.
E.rcommunicati are either vitandi or tolerati. Both
kinds are here included, provided a declaratory or con
87
demnatory sentence has been given.
Concerning heretics or schismatics it may be asked
whether their burial in a church would defile it. A deci
88
sion of the S. Congregation would seem to include all
89
non-Catholics. However, since the Code requires a
declaratory sentence even for a poenae latae sententiae,
itappears more probable, and more in keeping with the
spirit of the law, that a heretic or schismatic against
whom no such sentence has been passed, is net included
in the category of excommunicated persons whose burial
would desecrate a church. 90 The consequence is that
most of our present-day heretics, so called, are not
touched by this canon.
As four kinds of acts only are specified, no analogy or
extension may be admitted.
Furthermore, these acts must be certain, de iure or de
facto. De hire certain is desecration if homicide was
committed ;
uncertain de iure would be the amount of
blood shed. De facto certain is desecration if the burial
of ,an infidel took place; de facto uncertain is when the

87 Cfr. can. 2259, 2. 89 Can. 2223, 4.

88 S. Rit. C., April 23, 1875 (Dec. 90 This was, as Gasparri owns, the
Auth. f n. 3344) ; Gasparri, /. c., n. sententia communis before the pro-
254. mulgation of the Code.
40 ADMINISTRATIVE LAW
fact of infidelity is doubtful, because he may have
secretly
been baptized. The general rule is that in doubtful cir
cumstances the minimum is taken. 91 However, provi
92
sional reconciliation would not be out of place.
The acts inducing desecration must be notorious, i. e.

known and committed under circumstances that make it

93
impossible to hide them for any length of time.
Lastly, these acts must be commited in the church itself.
If a man would shoot through a window of the church
and kill a person outside, the church would not be defiled.
But if the person were killed in the church by a shot fired
from outside, desecration would take place. The mar
tyrdom of St. Thomas a Becket implied desecration. 94
Is any church liable to desecration, or only a conse
crated or blessed church f It seems the more probable
and, we may say, the more common opinion, that only a
consecrated or blessed church is to be understood. 95 This
would seem to be the more natural interpretation if we

compare can. 1165, i, and the following one. build A

ing is dedicated to divine worship by consecration or
blessing, and no divine services can be held in it before
this ceremony has taken place. Now
the effect of dese
cration, as stated in can. 1173, consists precisely in the
prohibition of divine services. What then would be the
effect of desecration with regard to churches that are
neither consecrated nor blessed?
Finally, by church is to be understood the body of the
internal church, exclusive of the roof, tower, sacristy,
vestibule and adjoining rooms. The crypt or basement is

included if it is internally connected with the upper part

96
of the church building.
91 Reg. luris 30 in 6. ^^ ^,94 Gasparri, /.
c., n. 250.
92 S. Rit. C., Feb. 27, 1847 Gasparri, /. c., n. 247.
00^S__yt^Thus
^Garoarri, n. Many,
Auth., n. 2938).
!&/
Ar/
/. c., 250;
93 Can. 2197.
N /.

LIBRARY]^
c./p. So f.
 CANON 1173 41

97
2 corrects the old lawand admits no connection
between the desecration of a church and that of a ceme
tery, even though the latter adjoins the former, and vice
versa.

CONSEQUENCES OF DESECRATION
CAN. 1173

i. In violata ecclesia, antequam reconcilietur,

nefas est divina celebrare officia,Sacramenta mini-
strare, mortuos sepelire.
2. tempore divinorum offici-
Si violatio accidat
orum, haec statim cessent si ante Missae canonem vel
;

post communionem, Missa dimittatur; secus sacerdos

Missam prosequatur usque ad communionem.
The consequences of desecration are twofold: cessa-

r ^tion
of divine services and obligation of reconciliation.
Until reconciliation is effected, it would be unlawful to
hold divine services in a desecrated church or to adminis
98
ter the sacraments or bury the dead there. Hence all
liturgical services which have been instituted by divine or
ecclesiastical law and are performed exclusively by the
99
clergy, are strictly forbidden in a desecrated church.
However, though the injunction is grievous, yet no pen

alty, either of censure or irregularity, is attached to the

1
transgression.
If the desecration happens during the divine offices,
these must cease immediately. Thus the canonical hours,
or preaching, or any function should be immediately
stopped. Yet we believe that Baptism might be finished
if the ceremony had progressed nearly to the act of
pour-
97 C. un. 6, III, 21. 99 Can. 2256, n. i.
88 Cfr. cc. 27, 28, Dist. i, de 1 Neither was a penalty contained
"

cons.; c. 10, x, III, 40. in the Constit. Apostolic ae Sedis."

42 ADMINISTRATIVE LAW
ing the water. If the desecration happens before the
Canon of the Mass, or after Communion, the Mass must
be discontinued. If it
happens between the beginning of
theCanon and Communion, Mass must be continued until
Communion, viz., until the Corpus tuum. This is the
rule of the Missal. 2
Canonists generally hold that if there is no church in a
place besides the one desecrated, and reconciliation can
not be promptly effected, the Ordinary may permit the
celebration of Mass therein for the people. In case of
necessity, for instance, for administering the Viaticum, if
no other church is available, Mass may be said in a dese
crated church without consulting the bishop, if he cannot
be approached. 3 Can. 1176 provides for emergencies.

THE RECONCILIATION OF CHURCHES

CAN. 1174

i. Ecclesia violata reconcilietur, quam citissime

poterit, secundum ritus in probatis liturgicis libris

descriptos.
2. Si dubitetur num. ecclesia sit violata, recon-
ciliari potest ad cautelam.

CAN. 1175

Ecclesia violata ob sepulturam excommunicati vel

infidelis ne reconcilietur, antequam cadaver exinde
removeatur, si remotio sine gravi incommodo fieri

possit.
2 Missale Romanum, tit. De De- 3 Gasparri, 1. c. t 243; Many, /. c.,

fcctibus, c. X, n. 2. p. 83-
 CANON 1174-1177 43

CAN. 1176

i. Ecclesiam benedictam reconciliare potest rec

tor eiusdem vel quilibet sacerdos de consensu saltern
praesumpto rectoris.
2. Ecclesiae consecratae valida reconciliatio ad
eos spectat de quibus in can. 1156.
3. In casu tamen gravis et urgentis necessitatis,
si Ordinarius adiri nequeat, rectori ecclesiae conse
cratae eandem reconciliare fas est, certiore facto postea
Ordinario.
CAN. 1177

Reconciliatio ecclesiae benedictae fieri potest aqua

lustrali communi; reconciliatio vero ecclesiae conse
cratae aqua ad hoc benedicta secundum leges litur-
fiat

gicas; quam tamen non solum Episcopi, sed etiam

presbyteri qui ecclesiam reconciliant, benedicere pos-
sunt.

The first of these four canons, all of which refer to

the matter of reconciling a desecrated church, demands,
4
like the old law, that reconciliation be performed as soon
as possible, according to the rites described in the ap

proved liturgical books. If the fact of the desecration is

doubtful, a provisional (ad cautelam) reconciliation may
take place. The books referred to are the Roman Pon
tifical and Ritual (tit. viii, c. 28). Priests and bishops
should beware of the assumption that a church is recon
ciled if Mass was said therein after desecration. Hence,
even in case Mass has been said in a desecrated church
5
reconciliation required as a matter of necessity.
is

Can. 1175 takes up the fourth case of can. 1172, viz.,

*C. 10, X, III, 10.

5 S. Rit. C., Aug. 19, 1634, ad II (Dec. Auth., n. 611).
44 ADMINISTRATIVE LAW
when a church has been desecrated by the burial of an
or excommunicated person.
infidel Before reconciliation
the body must be removed if it can be done without

great inconvenience. Itmay be difficult to recognize the

remains, especially if many were buried in the church.
6
Prudence required under such circumstances.
is But if
the expense caused by the calling of experts and witnesses
would be too great, removal would not be required.
Can. 1176 determines the ministers of reconciliation.
A church which was only blessed may be reconciled by its
rector or by any other priest with the (at least) presumed
consent of the rector. Former
decisions required that a
7
dignitary, or at least one especially appointed by the
8
Ordinary, should perform the ceremony of reconcilia
tion. Our text requires neither dignity nor faculty.

Any priest may lawfully presume the consent of the rec

tor, unless positively forbidden by the latter, or convinced
of the intention of the rector to perform the rite himself.
A consecrated church can be validly reconciled only by
those mentioned in can. 1156. Hence the Ordinary of
the diocese is entitled to reconcile consecrated churches
of his own which belong to the secular clergy or
territory,
non-exempt religious or laymen; and the higher superior
of exempt religious can reconcile churches belonging to
his order.

However, says 3 of can. 1176, in cases of serious and

urgent necessity, if the Ordinary cannot be reached, the
rector of a consecrated church may reconcile it and in
form the Ordinary afterwards. This is a liberal exten
sion unknown A grave and
urgent case would be
before.
the celebration of a festival which could not be post-

6 S. Rit. C., April 23, 1875 (" 3344>-

7 S. Rit. C., Feb. 9, 1608 (n. 246).

8 S. Rit. C., March 3, 1821 (n. 2612).
 CANON 1177 45

poned, for instance, first Holy Communion, or a wedding,

or a funeral. In that case the Ordinary should be called
either by telephone or telegraph but if it is foreseen
;

that he could not reach the place in time, it would be use

less to send a message. Hence the bishop or major ex
empt religious superior, respectively, must simply be noti
fied of the fact of reconciliation. goes without saying
It

that this information is not required for the validity of

the reconciliation.
The rite to be followed by the rector of the desecrated
church is that of the Roman Pontifical.

Can. 1177 says that reconciliation of a blessed church

may be effected with ordinary holy water, whereas for a
consecrated church water blessed according to the litur
gical laws should be used. However, not only bishops,
but also priests who perform the act of reconciliation, may
bless this water. The Roman Ritual 9 states that a priest
endowed with the faculty of reconciling a consecrated
church, hence also the rector of the church in case of
necessity, must wear amice, alb, cincture, stole and cope
of white color. He must follow the rite prescribed in the
Pontifical, and consequently use the water blessed by the
bishop. If he blesses the water himself, he must follow
the Roman Pontifical, at the beginning of Pars II: De
Benedictione Impositione Primarii Lapidis. After the
et

water has been blessed he is to proceed according to the

formulary of the Pontifical De Ecclesiae et Coemeteril Re-

conciliatione, and follow the rubrics there given. If the

desecrated church was only blessed, the priest dresses as

above, uses ordinary holy water (blessed, for instance, on
Sunday before Mass), and proceeds according to the

9 Tit. Ill, c. 28 (ed. Pustet, 1913, case of necessity; nor is any fac-
p. 247 ff.). But the faculty men- ulty required for reconciling a
tioned there is no longer needed in church only blessed.
 46 ADMINISTRATIVE LAW
Ritual, title viii, c. 28: Ritus Reconciliandl Ecclesiam
Violatam.
%

DECORUM OF THE HOUSE OF GOD

CAN. 1178

Curent omnes ad quos pertinet, ut in ecclesiis ilia

munditia servetur, quae domum Dei decet; ab iisdem
arceantur negotiationes et nundinae, quanquam ad
finem pium habitae; et generatim quidquid a sancti-
tate loci absonum sit.

All to whom it pertains shall take care that the churches

are kept neat, as becomes the house of God business and ;

fairs, even though for a pious purpose, must not be held

in them, and in general everything that is incompatible
with the holiness of the place.
10
It is unnecessary to recall all the Decretals and papal
constitutions which refer to this matter. The very fact
that a church is a sacred place, in which tremendous mys
are celebrated, ought to suffice to keep it neat.
teries

Luxury or magnificence, says Benedict XIV, are not re

quired, but neatness and cleanliness are possible every
11
where, even in the poorest church. The Pontiff adds :

You will find well-furnished and neatly adorned resi

dences, but squalid and barren churches lacking the most

necessary furniture. Lack of neatness betrays a lack of
interest and perhaps of faith on the part of the priest.
Those immediately concerned are the congregation,
especially the trustees and altar society, the clergy and
the Ordinary. The latter should make the condition of
the church a subject of examination at the time of his
canonical visit and issue regulations from which no

10 C. 2, X, I, 27; c. 12, X, III, 11 Const. "

Annus qui," Feb. 19,

i; cc. i, 5, X, III, 49. 1749, i.
 CANON 1179 47

appeal is He may inflict penalties against

admissible.
12
incorrigible pastors. Fairs and markets are not usually
held in the churches of our country; but even the vesti
bule and other places connected with the church should be
kept free of them.
IUS ASYLI

CAN. 1179

Ecclesia iure asyli gaudet ita ut rei, qui ad illam

confugerint, inde non sint extrahendi, nisi necessitas
urgeat, sine assensu Ordinarii, vel saltern rectoris ec-
clesiae.

Churches enjoy the right of asylum, which implies that

criminals seeking refuge therein may, except in case of
urgent necessity, not be taken out without the consent
of the Ordinary or at least of the rector of the church.
As the Greek term asylos indicates, an asylum was
understood to be an inviolable place. Such in the old law
was the altar of holocausts, the horns of which were held
by the one who fled to the tabernacle or temple to seek
safety from revenge or escape being killed without due
13
trial. The Greeks, too, had their statues, temples, and
marked off districts which offered safety to criminals. 14
Roman temples, if consecrated, were endowed with the
same privilege. 15 Christian churches claimed the ius
asyli before the Christian emperors enacted the same into
law. 16 The Codex lustinianus (lib. I, tit. 12) contains a
12 Bened. XIV, "Ad tm litantis," tended to one stadion or 600 feet;
March 30, 1742, 6; cfr. can. 2182- cfr. Stengel, Die Griech, Kultus-
2184. altertiimer, 1898, p. 29 f.

13 Ex. 21, 28; III Ki. i, 50; 2, 28 15 Wissova, Religion u. Kultur

ff. Besides, there were cities of der Romer, 1902, p. 405.
refuge; Jos. 20, 4; 21, 3. 10 S. Ambrose, Ep. 20, ad Mar-
14 The space of asylum in the cell., n. 20 (Migne, 16, 997); Cod.
temple of Artemis at Ephesus ex- Theod., IX, 45.
48 ADMINISTRATIVE LAW
title :
"

De Jus qui ad ecclesias confugiunt vel ibi excla-

forbidding extradition or violent seizure of

mant,"

criminals and reserving the judgment to the bishop. The

Decree and the Decretals 17 largely follow the Roman
law. Later enactments, especially in papal constitutions,
either modified or determined the extent of the right of

refuge. According to a Constitution of Gregory XIV

("Cum May 24, 1591) highway robbers and
alias
thieves who plundered the fields, those who committed
cold-blooded murder or wantonly shed blood, those guilty
of lese majeste in the person of the ruler, and those who

prevented the application of the ius asyli were excluded

from the benefit of the privilege. 18
Our
text excludes no one, but limits the right of refuge
somewhat, as not only the Ordinary (i. e. } the bishop)
can give permission to extradite, but the rector of the
church also. In cases of urgent necessity no permission is
required. Such a case would be that of threatening mob
violence, from which the officials might save the criminal
by quick action.
The churches which enjoy this privilege are those con
secrated or blessed, as all authors teach and the text
19
plainly intimates. jurisprudence would ex Common
tend it to churches and public oratories not yet blessed,
but dedicated to divine worship. This view may be ac
cepted, as the ius asyli is a favor and consequently liable
to a broad interpretation.
No penalties against violators of this right are stated in
the Code.

17 Cc. 8-10, 19, 35, C. 17, q. 4; the grant strictly to bishops, exclud-
X, III, 49. ing even the prelates nullius*
18 Benedict XIV.,
"

Officii No- 19 Cfr. Many, /. c., p. 101.

stri," March 15, 1750, 12, reserved
 CANON 1180 49

THE TITLE OF BASILICA

CAN. 1180

Nulla ecclesia potest basilicae titulo decorari, nisi

ex apostolica concessione aut inmemorabili consuetu-
dine; cuiusque vero privilegia ex alterutro capite col-
ligantur.

No church enjoys the title of basilica, except it has been

given to it by the Apostolic See or by immemorable
custom. The privileges of each church are to be deter
mined either from the concessions of the Apostolic See or
from immemorable custom.
Originally the term basilica indicated the architectural
style of the structure. However, the name also implied a
royal or stately building characterized by great splendor
or prominence. Hence the more illustrious churches,
especially those dedicated torenowned martyrs or saints,
became known as basilicas. Later a distinction was intro
duced between basilicae majores and minores. The four
major basilicas are: St. John Lateran, in which the Ro
man Pontiff used to be enthroned and which is the proper
See of Rome St. Peter s on the Vatican, which repre
;

sents Constantinople; St. Paul s on the Via Ostiense,

which designates the See of Alexandria, and S. Maria
Maggiore, as representative of the See of Antioch.
These four are also called patriarchal basilicas. Besides
these there are many minor basilicas, for instance, S.
Maria in Trastevere, Monte Cassino, St. Francis of As-
sisi, Lourdes, etc. These minor basilicas came to be
by the renown of their clergy or because
called thus either
of important events or mere antiquity or splendor. 20 But
20 S. Rit. C., Aug. 26, 1836 (Dec. Auth., n. 2744, and Vol. IV, p.
357 .).
50 ADMINISTRATIVE LAW
unless an immemorable custom has borne constant wit
ness to the existence of the title, it now requires a papal

grant. The
privileges, or rather decorative insignia, are
the use of the canopaeum, the tintinnabulum, the palma-
toria or bugia, and some vestments for the clergy.

ENTRANCE FEES NOT ALLOWED

CAN. 1181

Ingressus in ecclesiam ad sacros ritus sit omnino

gratuitus, reprobata qualibet contraria consuetudine.

Admission to divine service must be entirely free, and

every contrary custom is hereby reprobated.
Rome, and especially the S. C. Propaganda, was inex
orable in rejecting the custom of demanding admission
fees of any kind at the doors of churches. The Provin
cialCouncil of Cincinnati, held in 1861, thought it could
permit the custom in three cities of the then Cleveland
diocese. But the Prefect of the Propaganda demanded
that the custom be abolished withintwo years. A similar
amendment was prescribed for the acts of the II Plenary
Council of Baltimore, in 1866, and finally for the acts of
the Provincial Council of Australia, in 1869. From the
last-named letter of the Propaganda our text has passed
into the Code, 21 which has made the law even more em
phatic by adding the reprobation clause. This renders
the custom existing in many parts of our country juridi
cally impossible, but it will take some time to eliminate it
and to find other sources of revenue. The decree above
mentioned forbids the placing of ushers (collect ores) at
the gate for collecting money from the faithful coming to

21 Coll. Lac., t. Ill, coll. 220, 230, 506, 1085, 1086; S. C. P. F., Aug.
15 1869 (Coll. n. 1345).
 CANON 1182 51

attend divine service and to hear the word of God. But

the S. Congregation does not intend to forbid spontaneous
oblations at the Offertory, nor to abolish -seat or pew rent.

THE ADMINISTRATION OF CHURCHES

CAN 1182

i. Firmo praescripto can. 1519-1528, administra-

tio bonorum quae destinata sunt reparandae deco-
randaeque ecclesiae divinoque in eadem cultui exer-
cendo, pertinet, nisi aliud ex speciali titulo vel legitima
consuetudine constet, ad Episcopum cum Capitulo, si
de ecclesia cathedrali agatur; ad Capitulum ecclesiae
collegiatae, si de collegiata ad rectorem, si de alia ec
;

clesia.
2. Etiam oblationes factas in commodum pa-
roeciae aut missionis, aut ecclesiae sitae intra paroeciae
vel missionis fines, administrat parochus vel missiona-
agatur de ecclesia propriam administrationem
rius, nisi
habente, distinctam ab administratione paroeciae vel
missionis, aut nisi aliud ferat ius peculiare aut legi
tima consuetude.
3.Parochus, missionarius, rector saecularis ec
clesiae,sive saecularis is sit sive religiosus, debet
huiusmodi oblationes administrare ad normam sa-
crorum canonum, deque eis rationem loci Ordinario
reddere ad normam can. 1525.

i. This canon first safeguards the administration of

church property in general, as governed by can. 1519-

1528, and then states to zuhom pertains the administra
tion of the goods destined for the repair and embellish
ment of churches and of divine service in cathedral, col
legiate, and other churches. In cathedral churches it be-
52 ADMINISTRATIVE LAW
longs to the bishop and the chapter conjointly in collegiate ;

churches, to the chapter; in all other churches, to the

rector.
Whereverthere is a diocesan chapter, in the canonical
and sense of the term, the administration of the funds
full

destined for the repair and adornment of the cathedral

church lies with the bishop and the chapter conjointly.

Hence neither the bishop nor the chapter may proceed

22
alone in matters pertaining to the cathedral church.
But what if there are no cathedral chapters, as in most
of our dioceses, 23 or if they are not established along the

lines of the law, as inEngland? After having perused

the Acta Decreta of our plenary councils we could per
et

ceive nothing that would be strictly to the point in our

case. The third Council mentions (n. 266) a so-called
Apostolic canon, which in substance commits the whole
temporal affair to the bishop and then describes the mode
in which church property may be held :
by fee simple,
in trust, as corporation sole, or as personal property.
In treating of diocesan consultors (n. 20) the Council
demands the concilium of the consultors for any
(sic!)
alienation of church property the value of which exceeds

$5000. Hbwever, this applies to ecclesiastical or dio

cesan property in general, and does not per se touch ca
thedral funds. Who, then, is responsible for the repair
and decoration of the cathedrals in our country? Since
there are no chapters, properly so-called, and the diocesan
consultors certainly cannot claim any title to the adminis
tration of cathedral funds, it follows that the bishop him
self is responsible. He may entrust the cathedral pastor
with this important matter, but the ultimate responsibility
22 S. C. EE. et RR., May 23, 1662 the archdiocese of New Orleans, but
(Bizzarri, Collectanea, p. 258). their rights are unknown to the au-
23 There are honorary canons in thor.
 CANON 1182 53

is the bishop s. This is more clearly enunciated in the

ruling of the first Westminster Provincial Council, 1852,
n. 24 :
"

The right to the temporal and spiritual adminis

tration of the cathedral church remains with the bishop,
24
unless the Holy See shall have provided otherwise."

We could not find a contrary proviso. Neither is the Code

opposed to our view, for the present canon is plainly in
tended for chapters which measure up to all requirements
of the law. However, we hardly believe this holds of

English chapters.
The care for collegiate churches, our text says, belongs
to the chapter, not to the provost or pastor. The same
may justly be said concerning abbey churches, whilst
churches in care of exempt religious must be taken care
of by the respective rector, as is the case with all other
churches not in possession of a chapter or corporation.
For if a corporation (a confraternity, for instance) is
in possession of a church, the oblations of which it re
ceives and administers, the right and duty of taking care
of that church belongs to the confraternity, under the
25
supervision of the Ordinary of the diocese.
Offerings made in favor of a parish church or
2.

mission, or of a church located within the boundaries of

a parish or mission, are administered by the respective
pastor or missionary, unless the church in question has its
own separate administration, distinct from the administra
tion of the parish church or mission, or unless a particu
lar law or lawful custom rules differently.
There no difficulty to be apprehended from this
is

regulation in our country. The only trouble that might

arise would be from a sodality or confraternity. How-
24 Coll. Lac., Ill, col. 948. The chapter (Coll. Lac., Ill, 957 f.).
cathedral of Newport is an excep- 25 S. C. EE. et RR., Feb. u, 1842
tion, for it has a monastic cathedral (Bizz, /. c., p. 478).
 54 ADMINISTRATIVE LAW
ever, these are generally ruled by the pastor or mission
ary. Besides, if they form a corporation acknowledged
by the civil law, they have a solid basis, provided they
give an account to the Ordinary. For an independent
26
confraternity can hardly be imagined. Churches or
chapels governed by religious have their own administra
tion and are dependent on the bishop
only as far as the
law states.
3. The pastor, the missionary, the rector of a secular

church, be he a secular priest or a religious, must adminis

ter these offerings according to church law and render an
account to the Ordinary, as provided in can. 1525.
Those who are obliged to render an account are: (a)
pastors, no matter whether they belong to the secular or
religious clergy; (b) missionaries, whether secular or re
ligious; (c) rectors of churches which by right belong to
the secular clergy, although they are subject to religious.
A reasonable doubt might arise from can. 630, 4,
where the religious superior is said to administer the
offerings of a church that belongs pleno iure to a religious
community. We stated what we think of that enactment
under the respective canon, viz.: It is impracticable for
a community which has many expositi. But our canon
speaks of all pastors alike and draws no distinction. All,
it says, must administer the offerings made to their
churches, all must render an account to the Ordinary. In
order not to go out of the way we assume it as the logical
consequence that the pastor, and not the religious supe
rior, should administer these offerings, for which he is

responsible to the Ordinary. Otherwise, if we follow

can. 630, 4, the religious superior would have to ad
minister these offerings and render the account. There
26 S. C. C., July 7, 1736; July 27, 1737 (Richter, Trid., p. 170, nn. 8 f.

and pluries) .
 CANON 1184 55

seems to be a contradiction here. The natural explana

tion would seem to be that the pastor actually administers
those funds, and the religious superior has the supervi
sion, if he cares to exercise it.

are the offerings spoken of in our canon? The

Which
description of these may safely be taken from the Ilnd
Provincial Council of Westminster, and the Illrd
Plenary Council of Baltimore. 27 They are: pew-rent,
collections at the Offertory, seat-money, and funds raised

by lectures and house collections. Of all these, therefore,

the administrators, as far as repair and embellishment of
the church and divine service are concerned, must give an
account to the Ordinary every year. 28

TRUSTEES

CAN. 1183

i. Si alii quoque, sive clerici sive laici, in ad-

ministrationem bonorum alicuius ecclesiae cooptentur,
iidem omnes una cum administratore ecclesiastico, de
quo in can. 1182, aut eius vicem gerente, eoque
praeside, constituunt Consilium fabricae ecclesiae.
2. Huius Consilii sodales, nisi aliter legitime con-
stitutum fuerit, nominantur ab Ordinario eiusve dele-
gato et ab eodem possunt ob gravem causam re-
moveri.

CAN. 1184

Consilium. fabricae curare debet rectam bonorum

ecclesiae administrationem, servato praescripto can.

27 Tit. VIII, n. X (Coll., Lac. Ill, Baltim. Ill, n. 90 (ed. 1886, p. 48 f;

col. 982); Acta et Deer eta, Com. p. 231 f).

28 See can. 1525, i.
56 ADMINISTRATIVE LAW
1522, 1523; sed nullatenus sese ingerat in ea omnia
quae ad spirituale munus pertinent, praesertim:
i. In exercitium cultus in ecclesia;
2. In modum et tempus pulsandi campanas et in
curam tuendi ordinis in ecclesia atque in coemeterio ;

3. In definiendam rationem qua collectae, denun-

tiationes aliique actus ad divinum cultum ornatumque
ecclesiae quoquo modo spectantes in ecclesia fieri pos-
sint;
4. In dispositionem materialem altarium, mensae
pro distributione sanctissimae Eucharistiae, cathedrae
sive suggestus e quo ad populum verba fiunt, orga-
norum, loci cantoribus assignati, sedilium, scamnorum,
capsularum oblationibus recipiendis, aliarumque quae
ad exercitium religiosi cultus spectent;
5. In admissionem vel reiectionem sacrorum
utensilium aliarumque rerum quae sive ad usum, sive
ad cultum, sive ad ornatum in ecclesia vel sacrario
destinentur ;

6. In scriptionem, dispositionem, custodiam

librorum paroecialium aliorumque documentorum quae
ad archivum paroeciale pertineant.

CAN. 1185

Sacrista, cantores, organorum moderator, pueri

chorales, campanaepulsator, sepulcrorum fossores,
ceterique inservientes a solo ecclesiae rectore, salvis
legitimis consuetudinibus et conventionibus et Ordi-
narii auctoritate, nominantur, pendent, dimittuntur.

Canon 1183 says that if other administrators, either

clerical or lay, are chosen, these together with, and under
the presidency of, the ecclesiastical administrator, consti-
 CANON 1183-1185 57

tute the board of trustees or council of the church fabric.

The members of this committee, unless otherwise le

gally provided, are appointed by the Ordinary or his dele

gate and may be removed by him for weighty reasons.
The law does not command the appointment of trus
tees,but only says, if. Hence though prudence may dic
29
tate the measure, as the Illrd Baltimore Council states,
a bishop or pastor would by no means act contrary to the
law by not choosing any trustees. It cannot be denied
that trustees have at various times in the past acted des

potically and with little deference to the spirit and laws

of the Church. 30Hence the Code desires that they be

appointed and removed by the Ordinary or his delegate,

who in this case may properly be the pastor. But the text
admits another lawful way of choosing trustees, and
hence the enactments of the Illrd Council of Baltimore 32
are in perfect keeping with the present law and may be
followed as a safe guide.
Can. 1184 commands the trustees to take due care of
the church funds, according to can. 1522 and 1523, and
not to interfere with the spiritual administration. They
are especially forbidden to meddle:
1. With the functions of divine
worship in church;
2. With the manner and time of ringing the bells or

the order of services in the church and cemetery ;

3. With determining the manner of taking up collec

tions, making announcements, and other acts which refer

to divine worship or the adornment of the church, and
are performed in church.
4. With the arrangement of the altars, communion
rails, pulpit, organ and organ loft, seats and benches, col-

29 Acta et n. Me-
Decreta, 284 (ed. Ill, 20); Farley, Life of Card.
163).
cit., p. Closky, 1917.
30 Cone. Prov. Bait. I (Coll. Lac.,
58 ADMINISTRATIVE LAW
lection boxesand other things belonging to divine service.
5. With
the admission or rejection (because of unfit-
ness according to traditional usage or the laws of the
Church) of sacred utensils and other things which are
destined either for divine worship or the embellishment
of church or sacristy.
6. With the manner of writing, arranging or keeping
the parochial books and other documents which
belong to
the archives of the parish.
It may be added, from the Instruction of the S. C.
31
Propaganda from which our text is substantially taken,
that in these matters the pastor is to follow the laws of
the Church, the diocesan statutes, and episcopal rulings.
If the church funds must be used for buying or preserv

ing things required for the adornment of the church, the

board of trustees is obliged to see to it that the work is

properly done. Should a dispute arise about the neces

sity of an expenditure, the bishop shall settle it.
Can. 1185 says that the sexton, the singers, the organist,
the choir boys, the bell-ringer, the grave-diggers, and all
other servers are to be appointed by, depend on, and are to
be dismissed by the rector of the church, with due regard
to lawful customs, concordats, and the authority of the

Ordinary.

REPAIR OF CHURCHES

CAN. 1 1 86

Salvis peculiaribus legitimisque consuetudinibus et

conventionibus, et firma obligatione quae ad aliquem
spectet etiam ex constitute legis civilis:
31 S. C. P. F., July 21, 1856, n. 21 (Collectanea S. C. P. F. ed. 1917.
Vol. I, n. 1127, p. 603).
 CANON 1187 59

i. Onus reficiendi ecclesiam cathedralem incum-

bit ordine qui sequitur:
Bonis fabricae, salva ea parte quae necessaria est ad
cultum divinum celebrandum et ad ordinariam ec-
clesiae administrationem ;

Episcopo et canonicis
pro rata proventuum, detractis
necessariis ad honestam sustentationem ;

Dioecesanis, quos tamen Ordinarius loci suasione

magis quam coactione inducat ad sumptus necessa
ries, pro eorum viribus, praestandos ;

2. Onus reficiendi ecclesiam paroecialem incum-

bit ordine qui sequitur:
Bonis fabricae ecclesiae, ut supra;
Patrono ;

lis qui fructus aliquos ex ecclesia provenientes per-

cipiunt secundum taxam pro rata redituum ab Ordi-

nario statuendam;
Paroecianis, quos tamen Ordinarius loci, ut supra,
magis hortetur quam cogat;
3. Haec cum debita proportione serventur etiam
quod attinet ad alias ecclesias.

CAN. 1187

Si qua ecclesia nullo modo ad cultum divinum ad-

hiberi possit et omnes aditus interclusi sint ad earn
reficiendam, in usum profanum non sordidum ab Ordi-
nario loci redigi potest, et onera cum reditibus titu-
lusque paroeciae, si ecclesia sit paroecialis, in aliam
ecclesiam ab eodem Ordinario transferantur.

With due regard to special and lawful customs and

c
concordats, and to the duty imposed by civil law :

I. The duty
of repairing the cathedral church rests on
the following in the order named :
60 ADMINISTRATIVE LAW

a) On
the church funds after deduction of the ex
penses necessary for the upkeep of divine worship and
the ordinary administration of the church ;

b) On
the bishops and canons according to their re

spective income, after deducting the necessary support ;

c) On the faithful of the diocese, whom, however, the

Ordinary should induce by persuasion rather than com
pulsion to contribute to the necessary expenses according
to their means.
It is well known that formerly one of the three or four
32
parts of which the church revenues consisted was re
served for the maintenance and repair of the sacred edi
fices. However, in course of time the different parts
were no longer distinguished and the material care of
the church devolved either upon the beneficiary or to
gether with him on all those who derived either spiritual
or temporary benefit from the church funds. Besides the
right of advowson involved a duty which was borne by
the advowee or patron. And since this could be a cor
poration, it followed that the corporation or community
who enjoyed the right of presentation had the obligation
to provide for the material support of the church.
That local or special customs played and still play a

part in countries where the separation of Church and

State is not in effect quite intelligible and natural.
is Be
sides, in some countries the civil law provides for a spe
cial board of ecclesiastical administrators. Lastly, con
ventions or concordats may regulate the obligations of
the government concerning church repairs. Thus, e. g.,
the concordats between the Holy See and Prussia (1822)
32 See cc. 23-30, C. 12, q. 2. maintenance of the building and
These four parts were divided as divine service. In Spain, however,
follows: one for the bishop, one for the revenues were divided only into
the support of the clergy, one for three portions, see c. 10, C. 10, q.
the poor and orphans, one for the i; c. 13, C. 10, q. 10.
 CANON 1187 61

33
and Russia (1847) embody regulations to that effect.

(By the way it may be said that such concordats bind

also the new rulers.) These, then, customs, concor
dats, and civil laws are acknowledged by our Code and
may be followed where they are in force. In our country
the order according to which the obligation of repairing
the cathedral church devolves on the various beneficiaries
is : church fabric, bishop and canons, the faithful.
Church funds are moneys accruing from dowry,
1.

ordinary income, and extraordinary revenues. From

these, first and above all, the expenses for the celebration
of divine service 34 and for the ordinary or routine ad
35
ministration, in other words, the current expenses,
must be defrayed. What is left is to be employed for
repairs of whatever description to be made on the cathe
dral church.
2. If, after deducting the necessary expenses, the
church funds prove insufficient, the bishop and the canons
must contribute to the necessary repairs, proportionately,
i. e., so that the salary of each is taxed pro raid, but the
necessary support must not By this support is suffer.
understood the personal maintenance of the bishop and
canons, to the exclusion of relatives, for their salary is
not given, as Benedict XIV says, 36 for the alimentation of
the consanguine* or the upkeep of and the so-called titles

social status. Benedict XIII allowed the so-called media

annata or half of the income of the first year to be col
lected from all benefices, except such as belonged to col-

33 Cfr. Nussi, Conveniiones, 1870, 35 Includes the priest s salary, the

p. 206, p. 277 f., where the Russian support of janitor, organist, choir,
government appears to be favorable the expenses for water, heating,
to the Church. light, insurance.
34 This would include church and 36 Inst., 100, n. XIII.
altar utensils, bread and wine, sanc
tuary oil, flowers, etc.
62 ADMINISTRATIVE LAW

legiate chapters, parishes, benefices reserved to the Holy

See and benefices which paid the same at any rate. 37 In
our country the way is rather simple, because voluntary
contributions or subscriptions generally cover expenses.
But the bishop is not simply exempted from this duty if
his income is sufficient and the cathedraticum sat
"

pingue." Diocesan consultors cannot in justice be obliged

to contribute, unless the clergy as such is taxed.

3. As to the faithful, we need not add anything, except

that formerly the S. Congregation taxed all the cathedral
members who lived in or had property within the district.
This was called per aes et libram. 38
II. The duty of repairing the parish church rests upon

the following in the order named :

1. On the church funds, as described above;

2. On the advowson or patron;
3. On those who receive some income from the church,
in proportion to the rate of such income, to be fixed by the
Ordinary ;

4. On the parishioners, whom the Ordinary should ex

hort rather than compel to contribute.
III. The rules given above also apply to other churches,
with due regard to circumstances.
We will add that it would be unjust simply to call on
the Ordinary for the means of repairing a church. For,
as Benedict XIV says, such a procedure is unheard of in

law. 39 But what we have said concerning the obligation

of the bishop to contribute to the repair of the cathedral
church also applies to pastors. The salary of a pastor is
church money, not intended for his relatives. As to lay-

37 Pius May 121, n. 8 July 20, 1895 (A. S.

"

et misericors," 25, f.) ;

1725; Gasparri, De SSma Euch., n. 5"., 28, 298 ff.).

132. 39 Inst., 100, n. I f. Therefore a
38 S. C. C., Sept. 5, 1783; Jan. 10, well-to-do pastor might well think
1784 et pluries (Richter, Trid., p. of his church in his last will.
 CANON 1187 63

men or clergymen who receive some sort of pension from

the church funds, these are certainly bound to contrib
ute to the repairs. 40 If a monastery or university should
possess a parish or other church incorporated quoad tem-
poralia tantum, it would be obliged to help keep it in good
repair.
41
On hand it must also be stated that
the other
the obligation arises only from benefices, salaries, pen
sions, and revenues which are derived from the respective
church. Hence neither the bishop, nor pastors, nor bene
ficiaries are obliged to defray such expenses from their

private means or patrimony, nor are they bound to share

the burden of repairing other churches than their own.
The parishioners, as stated above, are treated very len
42
iently in our Code.
43
Can. 1187, following the tenor of a Tridentine decree,
permits a dilapidated church, which is unfit for sacred use
and has absolutely no funds from which repairs might be
made, to be used for decent profane purposes by the Ordi
nary. Whenever this happens, all liabilities and revenues
are to be transferred to another church by the Ordinary,
and the abandoned church was a parish church, its title,
if

too, must be transferred.

In usum profanum non sordidum means that the secu
lar purpose to which a church is put should be honest or
decent. If the church is sold, it should first be execrated.
If ittorn down, profanation
is is hardly possible. But
even in the latter hypothesis the title, if the church was a

parish church, should be transferred to another church,

44
which may assume it as a secondary title. The obliga-
40 Trid., Sess. 21, c. 7 de ref.; 43 Sess. 21, c. 7, de ref.
Bened. XIV, Instit., 100, n. XIII. 44 S. C. C., May 22, 1841; March
41 S. C. C., March n, 1711 31, 1708 (Richter, /. c., p. 121, n.

(Richter, Trid., p. 121, n. 6). 12 f).

42 Cfr. S. C. EE. et RR., Deq.
10, 1841 (Bizzarri, p. 477 f.).
64 ADMINISTRATIVE LAW
tions referred to in the text consist in taking over the
foundation Masses and the celebration of the titular
45
feast.

45 S C. C., May 22, 1841 (/. c.). The canons were obligated to assist at
the solemn Mass.
 TITLE X
ORATORIES

DEFINITION AND DIVISION

CAN. 1188

i. Oratorium est locus divino cultui destinatus,

non tamen eo potissimum fine ut universe fidelium
populo usui sit ad religionem publice colendam.
2. Est vero oratorium;
i. Publicum, si praecipue erectum sit in commodum
alicuius collegii aut etiam privatorum, ita tamen ut
omnibus fidelibus, tempore saltern divinorum officio-
rum, ius sit, legitime comprobatum, illud adeundi ;

2. Semi-publicum, si in commodum alicuius com-

munitatis vel coetus fidelium eo convenientium erec
tum sit, neque liberum cuique sit illud adire;
3. Privatum seu domesticum, si in privatis aedibus
in commodum alicuius tantum familiae vel personae
privatae erectum sit.

i. An a place destined for divine worship,

oratory is

not, however, principally for the purpose of having all

the faithful worship there publicly.
The term oratory occursin the fourth century and sig
nifies a house of prayer (OIKO? evKTe ptos). Later it was
1
restricted to small or private chapels. However, mere
size is not the distinctive feature. Our Code insists, like

l Cfr. Many, /. c., p. 9.

65
66 ADMINISTRATIVE LAW
former decisions, 2 upon another characteristic non uni- :

verso fidelium populo usiti, it must not be destined for the

use of all the faithful. This is the specific purpose of a
church in the technical sense of the term. An oratory is
limited to a certain class or group of people. We would
also stress the term publice colendam, although the phrase
" "

public service can have only a secondary meaning.

2. Distinguishes three kinds of oratories, public,
semi-public, and private.
i. A
public oratory is one built for the benefit of a cer
tain corporation, or of private individuals, but in such a
manner that all the faithful have the right to frequent it,
at least at the time when divine services are held there.
A founder may have had the intention of constructing a
private oratory for his family, say at a summer resort, yet
it has become public in the course of time, either by com

mon use or by opening an entrance into it from a public

street. Public here means the right of the public 3 to
make use of a chapel for divine service. What are the

signs or marks of publicity? The Code answers: the

right of the public must be lawfully proved. This proof
may be given legally in various ways. In one case a
chapel had been built in the atrium of a baron s palace.
It had a belfry with a bell, a fixed marble altar and other

marks of a public oratory, and was declared to be such by

the S. Congregation, although there was no entrance from
a public street.* If an oratory has been erected as a per
5
petual benefice, it is considered a public oratory. Also if
it has an entrance from a public street and is open to all

C. C., Sept. 9, 1724; S. Kit.

2 S. 4 S. C. C., May 31, 1704 (Richter,

C., Dec. 4, 1896; June 5, 1899 (Dec. Trid., p. 130, n. 6); Gasparri, /. c.,

Auth., nn. 3934, 4025). n. 192.

3 Cfr. fr. 72, Dig. 18, i: "Si 5 S. C. C., Feb 10, 1619; Many,
quid sacri aut religiosi out pubKci 1. c., p. 129.
est," etc.
 CANON 1188 67

the faithful. Summing up the Roman decisions we may

say: A
gate opening upon a public street or road used
by the faithful an immemorable custom or authentic doc
;

ument issued by the founder or owner of the chapel, even

though it has no public entrance or the title of benefice ;

permanently attached to an oratory, are considered suf

ficient and evident proofs that an oratory is public. It
6
goes without saying that prescription, say of thirty years,
may force a public way or entrance, for instance, upon
the grounds or possessions of a landlord. But a mere
public entrance or opening upon a public street could
7
hardly be styled sufficient proof that an oratory is public,
unless the people are accustomed to frequent it. legal A
proof would also be furnished by an express document to
that effect issued at the time of the consecration or bless

ing of the oratory. Itwould be well for the ecclesiastical

authorities to issue such documents. Finally, a legal
proof that an oratory is a public one would be the erection
or existence in it of a baptismal font, in accordance
with can. 774, 2.

2. Semi-public oratories are such as are built for the

convenience of a certain community or class of people,

but are not open to all the faithful indiscriminately.
Here on the corporate or specified class of
stress is laid

faithful who make up the ordinary attendance of a

chapel. The rest of the faithful cannot set up a claim to
be admitted, and if they are admitted, it is by mere favor,
which should prejudice neither the community itself nor
the parish at large. Such oratories, says a decree of the
S. Rit. C, of Jan. 23, 1899, are those attached to semi
naries and colleges, pious institutes livingunder a rule or
constitution, houses of retreat, boarding schools and hos-
6 Can. 1511, 2; Many, /. c., p. 7 Such a public entrance may also
I2 9- be made in a semi-public oratory.
68 ADMINISTRATIVE LAW
pices destined for the young, hospitals and orphanages,
garrisons and prisons.
3. Private or domestic oratories are those erected in

private homes for the convenience of a family or private

individuals. The term family must here be taken in its
strict sense, and excludes artificial persons and
corpora
tions. But it includes all the inhabitants of a house living
under the authority of the same paterfamilias? Private
oratories exist in private homes, which signifies exclusive

ownership, so that no public servitude or easement can

deprive them of their private character. We find such
oratories in the homes of wealthy citizens, in villas,

castles, and summer resorts.

CHAPELS OF CARDINALS AND BISHOPS

CAN. 1189

Oratoria S. R. E. Cardinalium et Episcoporum sive

residentialium sive titularium, licet privata, fruuntur
tamen omnibus iuribus et privilegiis quibus oratoria
semi-publica gaudent.

The oratories of resident or titular Cardinals and bish

ops, even though they be private, enjoy all the rights and
privileges of semi-public oratories.
Benedict XIV
solemnly declared that oratories of Car
dinals and bishops were not included in the decree of the
Council of Trent. 9 Hehomes of these dig
said that the
and con
nitaries cannot be considered as private dwellings

sequently the Tridentine decree forbidding seculars and

regulars to say Mass in private houses does not apply to
them. 10 This, however, does not mean, as our text says,
8 Becker-Metcalf, Callus, or Ro- 9 Sess. 22, de obseruandis, etc.

man Scenes Time Magno cum

"

of the of Angus- 10 animi," June 2,

tus, 1898, p. 151. 1757, i>

2.
 CANON 1190 69

that such chapels are not private oratories in the modern

sense. They are private, but enjoy the rights and privi
leges of semi-public oratories. Among these privileges
is this that other priests, especially the Vicar General,

may, even during the absence of the bishop or during the

vacancy of the episcopal see, say Mass there either on
week-days or holydays of obligation, and those who at
tend comply with the obligation of hearing Mass. 11 If
the episcopal palace maintains a school, all the chil
dren and teachers hear Mass in the chapel, said by
may
12
any priest, and thereby satisfy their Sunday duty. This
privilege was extended to the chapels of all bishops, even
13
though they were only titular bishops. Other functions
and offices are mentioned under can. 1193.

PRIVATE CEMETERY CHAPELS

CAN. 1190

Aediculae in coemeterio a familiis seu personis pri-

vatis ad suam sepulturam erectae, sunt oratoria pri-
vata.

Chapels erected on cemeteries by families or private

individuals for their burial place, are private oratories.
Tourists in Italy may have noticed such chapels in the
magnificent grave-yards of Milan and Genoa.
In a different class are the chapels erected for the
whole cemetery, e. g., in memory of a pioneer
priest or a
benefactor. If they serve the purpose of a grave-yard
chapel in general, the name private oratory cannot be
applied to them.
11 S. Rit. C, July 2, 1661 (n. 13 S. Rit. C., June 8, 1896 (n.
1196). 3906).
12 S. Rit. C., April 8, 1854 (

3021).
70 ADMINISTRATIVE LAW

PUBLIC ORATORIES

CAN. 1191

i. Oratoria publica eodem iure quo ecclesiae re-

gun tur.
2. Quare in oratorio publico, dummodo auctori-
tate Ordinarii ad publicum Dei cultum perpetuo per
benedictionem vel consecrationem, ad norman can.
1155, JI 56, dedicatum fuerit, omnes sacrae functiones
celebrari possunt, salvo contrario rubricarum prae-
scripto.

i. Public oratories are governed by the same law as

churches.
2. In a public oratory, therefore, provided it has been

dedicated for permanent divine worship by the authority

of the Ordinary through blessing or consecration, all sa
cred functions may be held which are not forbidden by
the rubrics.
The rules laid down for the building, consecration or
blessing, execration, desecration and reconciliation, rights
and privileges, administration and repairs of churches
also apply to public oratories.
The ecclesiastical functions which may be performed
in public oratories are those mentioned in can. 1171?
to wit :

a) All priestly functions, such as high and low Mass,

the blessing of candles, ashes, palms, the churching of
women, etc. ;

14
b) All the Sacraments, Baptism not excepted, may
be administered ;

c) All indulgences that can be gained by a visit to a

14 Many, /. c., p. 387, excepts doubt as to the correctness of the

Baptism, but can. 774 f. leave no statement in our text.
 CANON 1191 71

church, can be gained also in a public oratory. The pub

licoratories in the residences and hospices of the Capu
chins enjoy the same right as the churches of their
15
order.

d) As to burial, it certain that the Ordinary

is may
grant permission to bury in these oratories, as this was
16
authentically decided.
The last-named decree calls for a remark in view of
the demand of can. 1171, that the parochial rights should
be safeguarded. If canon 1191, 2, says that all ecclesi

astical functions may be performed in public oratories, it

means only those which do not clash with the strictly pa
rochial rights described in can. 462. Can. 464, 2, must
also be considered, which permits the Ordinary to exempt
some religious families from the pastor s jurisdiction.
Again the local Ordinary, according to can. 1171, may
determine the hours of divine service in these oratories,
unless they belong to exempt religious. This power he
may exercise not only at the time of consecration or bless
ing, but at any time and for any sound reason, provided,
as stated, the oratories do not belong to exempt reli
17
gious. If exempt religious should cause a disturbance

by holding services that trench upon parochial rights or

conflict with good order, recourse may be had to the Holy
See (S. C. Cone, or Rel.).
Public oratories must be blessed or consecrated and
thus forever dedicated to the service of God. Roman
practice requires that they be either consecrated according
to the Roman Pontifical or blessed according to the Ro
man Ritual.
18
An oratory so consecrated or blessed is a
15 S. C. Indulg., June n, 1732 17 Bened. XIV, "

Etsi minime,"

(Prinzivalli, /. c., n. 69). Feb. 7, 1741, 14.

16 S. Rit. C., Jan. 13, 1704, ad 20 18 S. Rit. C., June 5, 1899 (n.
(n. 2123). 4025).
72 ADMINISTRATIVE LAW
sacred place, which may not be used for profane
strictly

purposes and is endowed with the ius asyli.

Lastly, the Code states: salvo contrario rubricarum
praescripto. The only contrary rubrical laws we could
discover touch the celebration of the titular feast and the
feast of dedication. If the oratory is only blessed, no
dedication feast permitted, but only the titular feast.
is

The calendar of a public oratory must be followed by the

secular as well as the religious clergy, and the clergy at
tached to the oratory, or living in the house to which it is
19
attached, must commemorate the title of the same.
If the oratory is consecrated, the feast of the dedication
must be celebrated with octave.
It may not be amiss to draw attention to the phrase,
auctoritate Ordinarii. Can. 1155 and 1156 declare that
the term Ordinary means not only the diocesan bishop,
but also the superior of exempt religious. The diocesan
bishop has the right to consecrate a public oratory, either
personally or by a delegate the superior of exempt reli
;

gious may bless a public oratory in the same way.

SEMI-PUBLIC ORATORIES

CAN. 1192

i. Oratoria semi-publica erigi nequeunt sine Or

dinarii licentia.
Ordinarius hanc licentiam ne concedat, nisi
2.

prius per se vel per alium ecclesiasticum virum ora-

torium visitaverit et decanter instructum repererit.
3. Data autem licentia, oratorium ad usus pro-
fanos convert! nequit sine eiusdem Ordinarii auctori
tate.

4. In collegiis aut convictibus iuventuti insti-

19 S. Rit. C., Sept. 28, 1872; June 27, 1899 (nn. 3279, 4043).
 CANON 1192 73

tuendae, in gymnasiis, lyceis, arcibus, praesidiis mili-

tum, carceribus, xenodochiis, etc., praeter oratorium
principale alia minora ne erigantur, nisi, Ordinarii
iudicio, necessitas aut magna utilitas id exigat.

i forbids the erection of semi-public oratories with

out the permission of the Ordinary. This is in conform

20
ity with the Council of Trent. Anyone may build a
semi-public oratory, but only for private devotion, not for
the purpose of having public services held there, espe
cially Mass. This is the meaning of the Tridentine de
21
cree as well as of later enactments. The local Ordinary
may give permission diocesan insti
to pontifical as well -as

tutes of non-exempt religious to found and open a semi-

22
public oratory. The superior of exempt religious may
permit such an oratory to be erected for the convenience
of his subjects.
2. The Ordinary shall not grant this permission be
fore he has inspected the oratory either personally or

through an ecclesiastical delegate, and found it properly

fitted.

3. After the permission has been granted, the ora

tory may not be put to private uses without the authority

of the same Ordinary.
Since the distinction between a semi-public and a pri
vate oratory was developed, within the last three decades
(owing undoubtedly to the growth of religious communi
ties)it became necessary to define the requisites of both

more strictly. Yet it is difficult to find, either in the Ro

man practice or in the works of canonists, a clear-cut line
20 Sess. 22, de observ. ci evit. in 1900, II, n. 3. The faculties men-
celeb. Missae. tioned in S. C. P. F., Feb. 29, 1836
21 Benedict XIV, "Ad militan- (Coll., n. 846), are still valid for
tis," March 30, 1742, 6. countries subject to that S. Congre-
22 Leo XIII, "

Conditae," Dec. 8, gation.

74 ADMINISTRATIVE LAW
of demarcation. We surely interpret the mind of the
legislator correctly if we applythe general requisites for a

private oratory also to the semi-public. The Code, partly

23
rehearsing the Tridentine decree concerning private
oratories, requires inspection, but leaves the designation
of the place to the owner of the chapel. The inspection
must comprise (a) the building, which should be such as
to represent a sacred edifice and be constructed of solid
24
materials, or at least plastered; (b) the furniture and
utensils which are required for the sacred functions, also
the neatness and cleanliness of the place; (c) the sur
roundings of the oratory and its destination. 3 clearly
states that the chapel must not be used for profane pur

poses. The S. Congregation has in more than one in

stance insisted that there should be no dormitory imme
diately above the oratory or, if this can not be avoided,
that a canopy (baldachino) be placed over the altar. 25
Furthermore, the chapel must not contain wardrobes,
chests, or trunks for profane use, nor must it be al
lowed to serve as a parlor or recreation or work room;
nor as a hallway, infirmary, 26 or dormitory. 27
All these things, then, should be looked into by the
Ordinary or his delegate, who may be any inr ecclesi-
asticus (not a mutter), even if he be only in minor or
ders, provided he has read the title on oratories.
4. In colleges and boarding schools for the young,
in high schools and lyceums (intermediate classical
28
schools), in fortresses and barracks (garrisons), in
23 Sess. 22, cit. 26 An epidemic might excuse from
24 Private oratories must have at the observance of this rule,
least three walls of stone or brick; 27 Cfr. Many,
/. c., p. 157 f-

the Fourth may be supplied by a 28 This the Italian classification

is

curtain or tapestry. of schools, gymnasium standing for

25 S. Kit. C., May n, 1641; Sept. a five years high school, lyceum
12, 1840; Nov. 23, 1880 (nn. 756, for a three years collegiate course.
2812, 3525).
 CANON 1192 75

prisons and asylums, etc., but one principal oratory may

be erected, unless the Ordinary should judge that need
or great usefulness demand more. According to a de
cision of the S. Congregation of Rites a special faculty

imparted by the Holy See was required to erect other

chapels, besides the principal one, in the places men
tioned.
29
The Code dispenses ith this faculty and w (

leaves the matter to the prudent judgment of the Or

dinary. The Ordinary in this case is the diocesan bishop

for oratories belonging to secular or non-exempt religious,
and the higher superior for oratories belonging to exempt
30
religious.
The
decision quoted above also mentions some reasons
of need and utility that may prompt the Ordinary to
grant permission to erect some minor or accessory ora
tories besides the principal one. Such a reason, says
the S. Congr., would be a great number of priests who
would have to say Mass, say in a college or hospital, or
the convenience of sick persons unable to visit the main
chapel. To
this might be reasonably added the cost of
fuel.
31
A
small chapel requires less coal, and would not
only diminish expenses, but increase the comfort, espe
cially of children and persons in delicate health.
A word may also be said concerning oratories of re

ligious erected on their farms or summer resorts, which

in Latin go by the of grangiae, 32 i.e., houses or
name
villas built on the property of religious for sheltering the

oeconomits or farm boss and his subordinates, hired hands

or servants. A
laybrother was generally set up as su
perintendent, and sometimes a priest resided there to say
29 S. Rit. C., March 8, 1878, ad can. 198 may be applied.
II (n. 3484)- 31 When there is a coal famine
30 For the text
throughout this this amounts to a solid reason,
canon only speaks of the Ordinary, 32 Cfr. c. 27, X, III, 39.
not the local Ordinary, and hence
76 ADMINISTRATIVE LAW
Mass. In modern terms such an oratory would be
semi-public, as it serves the convenience of a least a
33
portion of a religious community. Then there are
religious institutions which own a college or hospital or
university with a chapel insufficient to hold the num
ber of attendants or to permit many priests to say Mass
at a convenient hour. May the superior of these re
ligious grant permission to erect, besides the principal
chapel, another accessory one? If the place is owned by
the exempt religious their major superior, i.e., the gen
eral, provincial, or conventual prior may grant this per
mission. If the place is owned by non-exempt religious,
the Ordinary in whose diocese the chapel is to be erected,
must be asked for permission. It is no longer necessary
to have recourse to a privilege granted to the Jesuits, 3 *
or a communication of privileges. Exempt religious
" "

superiors are Ordinaries for the purposes of this

canon. 35 Besides, can. 1156 dispels any misgiving in this
matter. But superiors must inspect the oratory before
granting the desired permission.

CAN. 1193

In oratoriis semi-publicis, legitime erectis, omnia

divina officia functionesve ecclesiasticae celebrari pos-
sunt, nisi obstent rubricae aut Ordmarius aliqua ex-
ceperit.

Can. 1193 provides that in semi-public oratories, law

fully erected, all divine offices and ecclesiastical func
tions may be held, as far as the rubrics and the rulings
of the Ordinary permit.

33 Sometimes these grangiae or 34 Gregory XIII,

"

Decet Ro^
granciae served as summer-resorts manum," May 3, 1575.
for a vacation colony. 35 See can. 198.
 CANON 1193 77

The lawful erection of a semi-public oratory implies,

as we have stated, inspection and permission by the

Ordinary. There
Is consecration or blessing required?
is no text which prescribes either. It would be some
what hazardous to consecrate a semi-public oratory, un
less its stability and perpetuity were guaranteed. How
ever, the blessing may be imparted, according to the
Roman Ritual, although the simple blessing (Benedictio
36
loci) is sufficient.

Concerning the divine offices and ecclesiastical func

tions that may be held in semi-public oratories, we have
only to repeat what was said under can. 1191. For, as
the text implies, the same rules hold for both public and

semi-public oratories. But the Ordinary may except

some functions, and the members of such communities
must abide by his ruling. (Remember that the Ordinary
for exempt religious is their own superior.)
The rubrics which must be observed are those of the
calendar prescribed for the principal chapel or semi-
public oratory.
37
There is no restriction as to the num
ber of Masses allowed in such chapels, or in regard to
38
the priests who wish to say Mass there. The office

may be chanted such chapels, and Mass be said on a

in
39
fixed or portable altar, even by sick or elderly priests.
If a semi-public oratory has been solemnly blessed, the
40
titular feast must be duly observed, and the oration,
36 For the solemn blessing see 39 S. Kit. C., Nov. 10, 1906, II
Rit. Rom., tit. VIII, c. 27; the (n. 4190); this decision ad II does
benedictio loci, ibid., tit. VIII, cc. not upset our contention for the
6, 7 (ed. Pustet, 1913, p. 243 ff. ; p. grangiae of regulars, because can.
224 f.). 1192, 4, is later than said declara-
37 S. Rit. C., May 22, 1876 (n. tion.

3910). 40 S. Rit. C., Nov. 29, 1878 (n.

38 S. Rit. C., March 8, 1879, ad 347O-
I, i, 2; July 2, 1661 (nn. 3484,
1196).
78 ADMINISTRATIVE LAW
or at least the name of the titular saint, recited in the
office.

PRIVATE ORATORIES

CAN. 1194

In privatis coemeteriorum aediculis, de quibus in

can. 1 1 go, Ordinarius loci permittere habitualiter
pot
est etiam plurium Missarum celebrationem in aliis
;

oratoriis domesticis, nonnisi unius Missae, per modum

actus, in casu aliquo extraordinario, iusta et ratio-
nabili de causa Ordinarius autem has permissiones ne
;

elargiatur, nisi ad norman can. 1192, 2.

CAN. 1195

i.In oratoriis domesticis ex indulto Apostolicae

Sedis, nisi aliud in eodem indulto expresse caveatur,
celebrari potest, postquam Ordinarius oratorium visi-
taverit et probaverit ad norman can. 1152, 2, unica

Missa, eaque lecta, singulis diebus, exceptis festis

sollemnioribus sed aliae functiones ecclesiasticae ibi
;

dem ne fiant.
2. Ordinarius vero, dummodo iustae adsint et
rationabiles causae, diversae ab eis ob quas indultum
concessum fuit, etiam sollemnioribus festis permit
tere potest per modum actus Missae celebrationem.

CAN. 1196

Oratoria domestica nee consecrari nee benedici

i.

possunt more ecclesiarum. ,

2. Licet oratoria domestica et semi-publica com-
muni locorum domorumve benedictione aut nulla
benedictione donentur, debent tamen esse divino tan-
 CANON 1194-1196 79

turn cultui reservata et ab omnibus domesticis usibus

libera.

Canon 1194 says, first, that in private cemetery chapels,

mentioned under can. 1190, the Ordinary of the diocese
may grant permission for several Masses to be said habit
ually. This clause marks an extension of the former
law and of the Roman practice, which required a special
faculty for the bishop from the Apostolic See. 41 The
term Ordinarius loci here excludes exempt religious
superiors.
In other domestic oratories, continues can. 1194, the
local Ordinary may permit one Mass to be said, not habit
ually, butupon occasion, in some extraordinary case, and
provided there be a just and reasonable cause. This
permission presupposes that the Ordinary has inspected
said oratory and found it fit. This, too, is a mitigation
of the former practice. The only conditions are: (a)
that only one Mass may be said on the occasion or day for
which the petition was granted; (b) that this permission
be not a habitual or perpetual grant, but effective only
for the time being and as long the reason exists; (c)
that the occasion be an extraordinary one, for instance,
a first Mass, or a jubilee, or a temporary necessity as

that caused by an epidemic or quarantine; (d) that the

cause be ju-st and reasonable, i.e., not detrimental to
others, especially to the parish organization; (e) that the
Ordinary first inspect the oratory, as required by can.
1192, 2.

Can. 1195 refers to domestic oratories erected by virtue

of a papal indult. Any one may build or construct an
oratory for private devotion, but to have Mass said there

41 Trid., Sess. 22; S. C. C., Dec. 1836 (Coll., n. 846); S. Kit. C., Sept.
20, 1856; S. C. P. F., Feb. 29, 20, 1749 ad 5 (n. 2404).
80 ADMINISTRATIVE LAW

requires a papal indult, ever since the Tridentine Coun

cil. Therefore, says our canon, unless expressly pro
vided otherwise in said indult, only one low Mass may
be said daily in such oratories, except on the more solemn
feastdays, and no other ecclesiastical functions are al
lowed. Before the indult takes effect the Ordinary must
inspect and approve the oratory, as required by can.
1192, 2. He may also, for just and reasonable causes,
other than those for which the indult was granted, per
mit a Mass to be said there even on higher feastdays,
but only per modum actus.
This canon distinguishes between the right of having
Mass said daily and the right of having Mass said
habitually in private oratories. The Council of Trent
took away the right of the bishops to permit Mass in
private oratories per modum habitus, but left them the
power of granting the permission per modum actus for
42
weighty and urgent reasons. The Code requires only
a just and reasonable cause.
Can. 1195 speaks of a papal indult, granted by the S. C.
of Sacraments. Such indults are almost invariably ad
dressed to the local Ordinary, who is therefore obliged
to read thedocument carefully and note the clausulae.
The Ordinary in this case is an executor mixtus, i.e., he
isobliged to investigate the truth of the reasons alleged
by the petitioner constito tibi de narratis and the
condition of the oratory, as required by can. 1192, 2;
but he cannot withhold execution if he finds everything to
be as required by law. 43
The text further says that 071/3; one low Mass may be
said daily in such oratories, even on Sundays, not, how
ever, on the more solemn feastdays. This restriction was
42 S. C. C., Dec. 20, 1856; Many, 43 Cfr. Gasparri, De SSma Eu-
l. c., p. 151 f. charistia, n. 235, p. 163 f.
 CANON 1195 81

no doubt made for the purpose of insinuating- to the

grantee that he should attend his parish church on those
days. After the reorganization of feasts by Pius X
and the S. C. of Rites, 44 the question naturally arose on
which feasts it was forbidden to have Mass in private
oratories. The answer was that on the feasts of the
Commemoration of St. Joseph, the Annunciation of the
B. V. Mary, Corpus Christi, the feast of the Blessed
Trinity, the Sunday within the octave of Corpus Christi,
and the Sunday on which the feast of St. John the
Baptist was celebrated, Mass may be said in private ora
45
tories. From this decision it
may safely be deduced
more solemn feasts means the holydays
" "

that the term

of obligation, which do not fall on a Sunday. The indult
may read otherwise, excepting no feastday or restricting
the number of other days (nisi aliud in eodem indulto

expresse caveatur).
Under 2 of can. 1195 the Ordinary may permit a
low Mass to be said in private oratories even on more
solemn feasts, under two conditions: (a) that there be
a just and reasonable cause not identical with the one ex
pressed in the indult; (b) that the grant be made per
modum actus. If, for instance, the reason for which
the indult was given was the merit of the petitioner,
old age or physical weakness may be alleged for obtain

ing from the Ordinary the favor of having a Mass said

also on the more solemn feasts. This instance also ex
plains the second condition. Thus, if old age was the
reason given, the petition may be granted until age has
been turned into eternity, i.e., until death. This is not
stretching the tenor of the indult, for it must be remem-
44 Pius X, "

Supremi disciplinae," 45 S. C. Sacr., April n, 1913 {A.

July 2, 1911; S. Kit. C., July 24, Ap. S., V, 183 f.).
1911 (A. Ap. S., Ill, 305 ff.; 350
82 ADMINISTRATIVE LAW
bered that the grantee or principal indultariits must be
present in the chapel, in order that the members of his
household or family may enjoy the privilege of assist
ing atMass and complying with the obligation of hear
ing Mass on the days prescribed. Besides, the indult
lasts only as long as the person in whose name it was
issued lives and can enjoy it. Finally, according to
canonists, the phrase modus actus means as long as the
reason exists (durante causa). 46
Having mentioned the principal grantee and his fam
ily, the rescript may mention also the consanguinei
and affines, those related by blood and affinity, which is

understood to extend to the fourth degree. 47 In former

rescripts, issued under Leo XIII, noble guests were also
mentioned. This term, strictly speaking, excludes all
who are not of noble rank we hardly believe that
;
but
such a rigorous interpretation could be applied to a
rescript issued for our country. Hence if guests are

mentioned, they too are benefited by the indult. Fami-

liares are servants employed in actual service at the time
of Mass, e.g., those who wait upon the Master or Lady
of the house at Mass, either as honorary ladies and
gentlemen, or by helping a feeble lady or gentleman.
Cooks, chauffeurs, or hired men in barn or field, jani
48
tors, etc., are not benefited by the indult.
No other ecclesiastical functions are permissible in

private oratories. This excludes

strictly parochial all

and other priestly or ecclesiastical functions, preaching

(though a brief exhortation would not be forbidden),
the administration of the Sacraments and sacramentals.
What about holy Communion ? No matter what can-

46 Many, /. c., p. 153. animi," June 2, 1751, ", *2, 19;

47 Ibid. Gasparri, /. c., n. 236, p. 168.
48 Benedict Magno cum
"

XIV,
 CANON 1196 83

onists we believe that, since frequent

formerly held,
communion so strongly urged, the distribution of the
is

Eucharist would not be forbidden. At any rate, the per

mission of the bishop would suffice. 49
Can. 1196 forbids domestic oratories to be consecrated
or blessed like churches. They may, however, and
should receive the so-called benedictio loci or domus
novae, as contained in the Roman Ritual. 50

Notwithstanding this defect of consecration or bless

ing, domestic oratories must be exclusively reserved for
divine service and not be used for domestic purposes,
as explained under can. 1192, 3. Nevertheless, a pri
vate oratory is, properly speaking, not a sacred, but a
profane place, and hence not liable to desecration, nor
does it enjoy the ius asyli. It also remains the private
51
property of the owner of the house.
49Cfr. Bened. XIV. /. c., 23 .; 1913, p. 224 f.) ; S. Rit. C., June 5,
Institut., 34, n. uf. ; Gasparri, 1899, VI (n. 4025).
/. c., n. 1088, II, p. 332. 61 Many, /. c., p. 174.
50 Tit. VIII, c. 6 f. (ed. Pustet,
 TITLE XI

ALTARS

DEFINITION AND SPECIES

CAN. 1197

i. Sensu liturgico intelligitur :

i. Nomine altaris immobilis seu fixi, mensa su

perior una cum stipitibus per modum unius cum eadem

consecratis ;
2. Nomine altaris mobilis seu portatilis, petra, ut
plurimum, parva, quae sola consecratur, quaeque dici-
tur etiam ara portatilis seu petra sacra; vel eadem
petra cum stipite qui tamen non fuit una cum eadem
consecratus.
2. In ecclesia consecrata saltern unum altare,
praesertim maius, debet esse immobile; in ecclesia
autem benedicta omnia altaria possunt esse mobilia.
i. In the liturgical sense of the word an immovable
or a fixed altar means the upper table\yith its supports^
consecrated together as a whole with TiKe table, A
movable or portable altar is a stone, generally of small
size, which is consecrated alone, and called portable altar
or sacred stone or the same stone with its support,
;

though the latter was not consecrated together with the

table.
2.In every consecrated church at least one, pre
ferably the main, altar must be immovable but in
;
 CANON 1197 85

churches that are only blessed all altars may be mov

able.
The earliest altar was a mere table copied after secular

patterns. rectangular and slightly ob

It consisted of a

long top, supported by one, four, or occasionally five, legs.

This simple and natural shape was retained until well
into the fifth century. From the beginning, stone as well
as wooden altars were employed. Gradually the Church
came to discriminate in favor of stone, on account of its
monumental character and greater durability. A change
in the form of the altar was brought about in the sixth

century by the new impetus given to the veneration of

relics. The Holy Eucharist was brought into close rela
tion with the tombs of the martyrs and it was regarded
as a matter of prime importance that the altar be brought
into the closest possible relation with the tomb, or at least
be located directly above it. This was done by building
J
a confessio/ i.e., a chamber surrounding the tomb and
<(

connected by a shaft or gallery with the altar. The next

stage in the development of the altar arose from the
custom, which grew rapidly during the sixth century, of
depositing the bodies of the martyrs within the churches.
This often led to the construction of a true confessio or
crypt; but more often the relics were deposited imme
diately beneath the plate of the altar and inclosed with
a stone cippus or block, roughly cubical in form, hollow
within, and ornamented on the front by a doorway, like
a miniature tomb. Finally the altar was enclosed on all
four sides by plates of stone and became a mere chest for
the preservation of relics. Sometimes a sarcophagus or
fully extended body was enclosed. The custom of erect
ing more than one altar in the same church grew out of
the cult of relics. Such secondary altars came into use
about the beginning of the fifth century, at first in side
86 ADMINISTRATIVE LAW
chapels, later in themain church, nay even in the nave. 1
These brief remarks seemed necessary to explain the
structure of the altar and the importance of relics for
the same.

REQUISITES

CAN. 1198

i. Turn mensa altaris immobilis turn petra sacra

ex unico constant lapide natural!, integro et non fri-
abili.
2. In altari immobili tabula seu mensa lapidea ad
integrum altare protendi debet, et apte cum stipite
cohaerere; stipes autem sit lapideus vel saltern latera
seu columellae quibus mensa sustentatur sint ex
lapide.
3. Petra sacra sit tarn ampla ut saltern hostiam
etmaiorem partem calicis capiat.
4. Turn in altari immobili turn in petra sacra sit,
ad norman legum liturgicarum, sepulcrum continens
reliquias Sanctorum, lapide clausum.

i. The table of an immovable altar as well as a

sacred stone must consist of one natural stone, whole and
not easily crumbled. The altar stone is to be one single
2
slab, which excludes several parts. Even if the several

parts should be compactly cemented together so as to

appear as one stone, the altar cannot be validly conse
crated.
3
A natural or pure stone is one that corresponds
to the mineralogical definition of a stone. Any hard
and compact stone is admissible, as, e.g., marble, sand
stone, travertine, etc. Even slate or schist is allowed, but
1 Cfr. Lowrie, Monuments of the 3 S. Rit. C., Sept. 28, 1872; June
Early Church, 1901, p. 159 ff. 8, 1896; Nov. 10, 1906, ad I, II
2 S. Rit. C., June 17, 1843; Nov. (nn. 3286, 4191), but the
3907,
10, 1906 (nn. 2861, 4191). church would be validly consecrated.
 CANON 1198 87
4
pumice-stone or gypsum have been rejected. Because of
their composite nature cement plates or blocks must be
considered forbidden. The S. Congregation has always
refused to admit a marble or wooden cornice or orna
ment surrounding the table like a wreath. 5 An altar, the
nucleus of which is of stone but covered with bricks over
laid with a marble crust, has also been declared uncon-
6
secrable. Integer means that the stone should be of one
piece, without fractures or crevices. Should the stone
have been perforated by cutting or chiseling the reposi
tory for relics into it, it would be sufficient to place a
piece of marble or other solid slab on the part below,
7
so that the capsula with the relics could be laid on it.
That the stone should be of a sort that will not easily
crumble (friabilis) follows from the nature of stone. If
it were so fragile that the fourth part or more would

break off in the act of consecration, the latter would be

8
invalid.
In an immovable altar the table or stone plate
2.

must extend over the whole altar and be properly joined

to the support the support itself must be of stone, or at
;

least the side props or columns which support the table

must be of stone.
3. The sacred stone (portable altar) must be so
large that at least the host and the larger part of the
base of the chalice may find room thereon.
No dimensions for an altar are prescribed by the
rubrics or the S. Congregation of Rites. It ought, how

ever, to be large enough to allow a priest conveniently

4 S. Rit. C., April 29, 1887; June 3698), but the invalidity of consecra*
*3 *899 (nn. 3675, 4032). tion is not clearly pronounced.
5 S. Rit. C., Aug. 29, 1885; April 7 S. Rit. C., -Feb. 8, 1896 (n,
23, 1893 (nn. 3640, 3797). 3884).
6 S. Rit. C., Dec. 14, 1888 (n. 8 S. Rit. C., June 8, 1894, n. U
(n. 3829).
88 ADMINISTRATIVE LAW
to celebrate the holy sacrifice upon it, in such a manner
that all the ceremonies can be decorously observed. 9 But
the S. Congregation has insisted, as does our text, that
the altar-stone should cover the whole length and width
of the fixed altar, without an ornamental addition. 10
If, for instance, the length of the whole fixed altar is ten
feet, and its width from the tabernacle to the front
twenty-two inches, the altar-stone must have the same
dimensions.
It absolutely required that the table or mensa be
is

placed immediately upon the support so as to form one

whole with it. In one case the S. Congregation de
manded that if no connection between the altar-stone and
the stipes had been made, stone stipites should be added.
The consecration was declared valid, yet only by a spe
cial favor was the addition and separate anointing of
these stipites granted. 11 From this it is evident that only
a moral, though material, conjunction is required, at
12
least for licitness. But the connection must be one of
stone with stone.
The support, therefore, (stipes) must be of stone. It

may be one solid mass of granite, marble, etc., or it may

consist of four or more columns. But it is absolutely
necessary that these sides, columns, or small piers be of
stone. 13 Columns of copper, brass, or other metal are
not allowed. If the bases are of metal, the shaft, and
more especially the capitals, must be of
stone, or a stone
layer must be placed between the columns and the table,
9Cfr. Schulte, Consecranda, 1907, n S. Rit. C., June 8, 1894; July

p. 6. 5, 1901 (nn. 3829, 4075).

10 S. Rit. C., Aug. 29, 1885 (n. 12 Many, /. c., p. 204.
3640); the altar was only 2.27 me- 13 S. Rit. C., Aug. 7, 1875; Dec.
ters in length and 0.57 meters in 14, 1888 (nn. 3364, 3698).
width, wherefore they put a marble
cornice around it.
 CANON 1198 89

14
otherwise it cannot be consecrated as a fixed altar.

The spaces between the side walls (columns or piers)

may be left open, or the spaces on the sides and back
be filled with any kind of stone, brick, or cement; but
the space between the two columns in front should be
left open, so that a reliquary can be placed beneath the
15
table.
The portable altar is sometimes also called altare vi
aticum. dimensions are approximately pointed out in
Its

3, where it is said that the table must be large enough

to hold the sacred host and the greater part of the base
of the chalice. 16 Besides, as liturgists reasonably state,
it should have room enough for the ciborium. In gen
eral the dimensions may range between 12x12, or 14 x
16 inches. 17
4. In an immovable altar as well as in an altar
stone there must be, according to the rubrical prescrip
tions,a sepulchre containing relics of saints and closed
with a stone.
The historical remarks made above explain this ven
erable custom. The
sixth synod of Carthage (401) en
acted that no memoriae martyrum should be tolerated
without their relics being present or at least without
18
some historical reminiscence connected with the place.
In this canon only the chapels of martyrs are mentioned.
Yet, as seen above, the custom of placing relics in the
altars soon extended to all churches and altars. When
some missionaries in South America claimed the privilege
19
of consecrating altars without relics, the Holy Office,

i* S. Rit. C., May 24, 1901 (n. IT Schulte, /. c., p. 232 f.

4073)- 18 Can. i7 = c. 26, Dist. i, df

15 S. Rit. C., Sept. 28, 1872; Dec. cons. (Hefele, Concil.-Gesch., II,
20, 1864 (nn. 3282, 3126). 72).
16 S. C. Indulg., March 20, 1846 19 Jan. 17, 1900 (Coll. P. F., n.
(Prinzivalli, n. 574). 2076).
90 ADMINISTRATIVE LAW
without entering into an historical discussion, insisted that
relics be placed in the altars, but allowed Mass to be
said on altars consecrated without relics. Gregory XVI,
in a time of persecution, granted to the Vicars Apos
tolic of the Chinese empire and adjoining realms the
20
faculty of consecrating altars without relics. Consecra
21
tion without relics would certainly be invalid if no
faculty to the contrary had been obtained.
The sepulchrum is a small square or oblong opening
made in the table or solid support of the altar, in which
the relics are placed. In a fixed or immovable altar the
sepulchrum may be placed either behind the altar or mid
way between its table and foot or at the front; or mid ;

way between its table and foot, or in the table at its

centre, somewhat towards the front edge, if its base be
solid or hollow ;
or in the centre on the top of the sup
22
port, if it be solid.

In portable altars the sepulchrum is located on top of

the stone, usually towards its front edge.
23
portable A
altar described as consisting of two parts, the upper one
of which was of stone, whereas the lower was of wood,
with a hollow space between both for. the relics, which
thus touched both the stone and wooden parts of which
the sepulchrum was formed, was declared inadmissible.
The sepulchrum must be of natural stone, not of metal,
or brass, or cement the lid, too, must be of stone, though
;

cement may be used for closing it.

24
If cement was em

ployed for the whole sepulchrum the altar must be recon-

20 S. C. P. F., July 8, 1838 (Coll., 24 S. Kit. C., Sept. 16, 1881; Dec.
n. 869). 15, 1882 ad I; July 28, 1883 (nn.
21 S. Rit. C., Rhedon., Oct. 6, 3532, 3567, 3585). Portable altars
1837; April 29, 1887 (nn. 2777, may not be of pumice-stone or gyp-
3674). sum; S. Rit. C., June 13, 1899 (n.
22 Schulte, Consecranda, p. 7 ff. 43 2 )-
23 S. Rit. C., Aug. 31, 1867 (n.
3162).
 CANON 1199 9*

secrated ;
but the S. Congregation granted faculties to use
25
the short formula and have it done by a delegated priest.
The cement to be used for closing the sepulchre must be
blessed by the bishop according to the formula prescribed
for fixed altars. The bishop must lay the cement on the
26
sepulchre and close it, but not place his seal on it.
As to the relics to be placed in the sepulchre, it is un
derstood that only authenticated ones are admitted. If

they are authenticated, it matters not whether they are

27
of nameless Saints. Doubtful or uncertain relics are
not to be mixed with authenticated ones. 28 If relics lie

open and no attestation of their authenticity can be

found, they must be replaced by authentic ones and re-
enclosed in the sepuchre. 29
The quality of relics is not determined, except that
they must be of Saints. However, it is the general prac
tice, official decisions, that they should be
confirmed by
relicsof at least one martyr, to which relics of con
fessors and virgins may be added. 30 Whether these
relics must be taken from the body (direct relics) or
may be obtained from objects connected with the Saint
(indirect relics), is nowhere stated, although some writ
ers, like Gardellini, insist on direct relics. 31

CONSECRATION OF ALTARS
CAN. 1199
i. Ut Missae sacrificium super illud celebrari
possit, altare debet esse, secundum liturgicas leges,
25 S. Rit. C., Aug. 30, 1901 (n. 29 S. Rit. C., Feb. 27, 1847 (n.
4082). 2941): S. C. sanavit defectus.
26 S. Rit. C., May 10, 1890 (n. 30 S. Rit. C., Oct. 6, 1837; Feb.
3726). 16, 1906 (nn. 2777, 4180).
27 S. Rit. C., Sept. 7, 1630 (n. 31 Cfr. Many, /. c., p. 208;
542). Schulte, /. c., p. 10, also rejects in-
28 S. Rit. C., Dec. 5, 1851 (n. direct relics; but c. 26, Dist. i, de
2991 ad I). cons., admits them.
92 ADMINISTRATIVE LAW
consecratum ; idest vel totum, si agatur de immobili,
vel ara tantum portatilis, si de mobili.
2. Aras portatiles, salvis peculiaribus privilegiis,
omnes Episcopi consecrare possunt quod vero ; spectat
ad altaria immobilia, servetur praescriptum can. 1155.
3. Consecratio altaris immobilis, quae fit sine ec-
clesiae dedicatione, quamvis omni die fieri possit, magis
tamen decet ut fiat die dominico aliove festo de prae-
cepto.

I. In order that the Sacrifice of the Mass may be

celebrated upon an altar, it must be consecrated accord
ing to the liturgical laws; that is to say, if the altar is

fixed, the whole must be consecrated, if it is portable,

the altar table.
The resp. rites are contained in the Roman Pontifical,
and no deviation from, or abbreviation of them is ad
missible; not even from the fast (on the day itself)
when a portable altar is to be consecrated. 32 However,
in forming the crosses from incense and putting on
the candles, the consecrator may be assisted by
33
priests.
Fixed altars may be consecrated even in a church
which is only blessed, as a church is consecrated even if
the altar was not validly consecrated. 34 The vigils must
also be observed before the consecration of an altar,
as is evident from the Roman Pontifical.
2. Besides those especially privileged, all bishops
may consecrate portable altars; as to fixed altars can.
1155 must be observed.
Those specially privileged are the Cardinals, vicars

32 S. Rit. C., May 22, 1841 (n. 34 S. Rit. C., Sept. 12, 1857, ad
2826). XV; June 17, 1843 (nn. 3059,
33 S. Rit. C., Jan. 14, 1910 2862).
(4244).
 CANON 1200 93

Apostolic and prefects Apostolic, as well as their pro-

vicars and pro-prefects during the time of vacancy,
35
abbots and prelates nullius. (For the rest, see can.

625 and 1147.) Besides these all bishops, whether resi

dential or titular, consecrate portable altars. But

may
fixed altars can be consecrated only by bishops and pre
lates or abbots nullius, if the latter have received the

blessing required.
3. The consecration of a fixed altar, if performed
apart from the dedication of the church in which it is
stationed, may take place on any day, but it is becoming
that this ceremony should be performed on a Sunday or
holyday of obligation.

LOSS OF CONSECRATION

CAN. 1200

i. Altare immobile amittit consecrationem, si

tabula seumensa a stipite, etiam per temporis mo

mentum, separetur; quo in casu Ordinarius potest
permittere ut presbyter altaris consecrationem rursus
formulaque breviore.
perficiat ritu
2. Turn
altare immobile turn petra sacra amittunt
consecrationem :

i. Si frangantur enormiter sive ratione quantitatis

fractionis sive ratione loci unctionis;
2. Si amoveantur reliquiae aut frangatur vel
amoveatur sepulcri operculum, excepto casu quo ipse
Episcopus vel eius delegatus operculum amoveat ad
35 Cfr. can. 239, i, n. 20; can. mentions no right of other abbots in
294, 2; can. 310, 2; can. 323, 2; this respect, and therefore only one
Bened. XIV, "Ex sublimi," Jan. resource remains: a directly granted
2 6, i?53, 2 >
"

Quam
ex sublimi," privilege. This is the Roman juris-
Aug. 8, 1755, i. The decree of S. prudence, not merely our individual
Rit. C., Sept. 27, 1659 ( n U3 1 ).
- an d subjective view.
94 ADMINISTRATIVE LAW
illud firmandum vel reparandum vel subrogandum, aut
ad visitandas reliquias.
3. Levis fractio operculi non inducit exsecra-
tionem et quilibet sacerdos potest rimulam cemento
firmare.
4. Exsecratio ecclesiae non secumfert exsecra-
tionem altarium sive immobilium sive mobilium; et
viceversa.

i. An immovable altar loses its consecration if the

table or mensa is removed from its support, even if only
for a moment; but in this case the Ordinary may grant
permission to a priest to reconsecrate the altar with the
short rite and formula.
Note
that the support of a fixed altar is consecrated to

gether with the table, as a whole, and therefore any re

moval, no matter for whatever reason, of the mensa
36
from support, necessitates reconsecration.
its But if
only the images, or titles, or ornaments are removed,
whilst the support and the mensa remain united, reconse
cration is not required. 37
2. A fixed as well as a portable altar loses its con
secration :

i. a fracture which is regarded as very consid

By
erable by reason either of the break itself or of the
anointed place;
2. removed, or the lid of the sepul
If the relics are
chre is broken or removed, unless it be done by the bishop
or his delegate for the purpose of fastening, repairing,
or replacing it, or for the purpose of inspecting the
relics.

The Code adopts the decision of S. Rit. C. concerning

36 S. Rit. C, May 15, 1819 (n. 37 S. Rit. C., July 7, 1759 ("

2 599) >
ft pluries. 2450).
 CANON 1200 95

the definition of a fractura enormis.

38
Two reasons de
termine the character of a fracture: its extent and the

place where it occurs. If the mensa itself were split into

two, three, or four pieces, especially touched the se if it

pulchre, the fracture would be enormous in the sense

" "

of the law. 39 If an anointed corner or cross would crack,

the fissure would be sufficient to require reconsecration, 40
provided of course the cross itself would be cracked.
For if only a corner would break off, with the cross in
tact, we hardly believe that the whole altar would have
to be reconsecrated. The mere breaking of the seal
which attached to the reliquary of the sepulchre would
is

not entail loss of consecration. 41 If the removal of the

stone covering the sepulchre is doubtful, reconsecra
tion must take place, but the S. Congregation, upon re
42
quest, grant the use of the short formula.
may If the
stone covering the reliquary was loosened, but the se
pulchre was not laid bare, and the sacristan (lay brother)
applied lime or cement to fasten it, the consecration is
43
not lost. if a priest would open the sepulchre and
But
close it
again, the consecration would be lost.
44
How
ever, this last statement now requires a modification. If

the pastor acted in the name of the bishop, as his delegate,

for the purpose of fastening, or repairing, or replacing
the lid of the sepulchre, or of inspecting it, no loss of
consecration would be entailed. The
fact of delegation,

however, would have to be expressed, either habitually or

per modum actus.

38 S. Rit. C., Oct. 6, 1837 (n. 42 S. Rit. C., May 18, 1883 (n.
2777). 3575).
39 S. Rit. C., June 23, 1879 (n. 43 S. Rit. C., Sept. 30, 1875 ( n -

3497)- 3379)-
40 S. Rit. C., Oct. 6, 1837 (n. 44 S. Rit. C., Aug. 31, 1857, ad V
2777). (n- 3 I(>2).

41 S. Rit. C., Dec. 5, 1851, n. I

(n. 2991).
96 ADMINISTRATIVE LAW
3. A
slight fracture of the cover of the sepulchre
does not involve desecration, and
any priest may fill it up
with cement.
4. The desecration of a church does not involve
desecration of either its fixed or portable altars,
and con
versely. Thus, if had desecrated a church, but
soldiers
left the altars untouched, the latter would not need recon-
secration. 45

TITLES OF ALTARS

CAN. 1 201

i. Sicut ecclesia, ita quodlibet etiam ecclesiae

altare, saltern immobile, proprium sibi titulum habeat.
2. Titulus primarius altaris maioris idem debet
esse ac titulus ecclesiae.
3. De Ordinarii licentia mutari quidem potest al
taris mobilis, non autem altaris immobilis titulus.
4. Altaria Beatis etiam in ecclesiis et oratoriis
quibus eorum officium et Missa concessa sunt, dedicari
nequeunt sine Sedis Apostolicae indulto.

i. Like the church, so also the altars of a church,

at least those that are fixed, must have each its own title.
2. principal title of the main altar must be the
The
same as that of the church. For instance, if the church
is dedicated to the Immaculate Conception, this must also
be the title of the high altar. Besides this, the altar
may also bear the name of a Saint, e.g., St. Columb-

46
3. With
the permission of the Ordinary the title

Pl.a portable altar may be changed, but not the title of

45 S. Rit. C., March 3, 1821 (n. 46 The Ordinary for exempt reli-

2612). gious is their superior major.

 CANON 1202 97

47
a fixed altar. The latter requires a papal indult. Thus,
for instance, if a new
religious congregation obtains a
church that formerly belonged to an order, the old title
of the altar, or church, respectively, must be retained for
the main altar, and even on the side altar, if this is a
fixed one, the former title under which the altar was dedi
cated must be placed, although a new title or image, e.g.,
of the founder of the congregation, may also be placed
48
there.
/"""Altars
may not be dedicated to the Blessed without
/an Apostolic indult, even in churches and oratories for
/ which the office and Mass of the resp. Beatus has been
/ granted. This law binds also exempt religious, who
are therefore not allowed to erect an altar in honor of
49
a Blessed of their order without a papal indult.

PROFANE USES NOT TOLERATED

CAN. 1202

i. Altare turn immobile turn mobile debet csse

divinis tantum officiis et praesertim Missae celebration!
reservatum, quolibet profane usu prorsus excluso.
2. Subtus altare nullum sit reconditum cadaver;
cadavera autem quae prope altare sepulta forte sunt,
distent ab eo saltern spatio unius metri secus Missam ;

in altari celebrare non licet, donee cadaver removea-

tur.

Immovable as well as portable altars are ex

I.

clusively reserved for divine service, and every pro

fane use must be excluded.

47 S. Rit. C., Nov. 10, 1906, ad 49 S. Rit. C., April 17, 1660 (n.
Ill (n. 4191)- 1156).
48 S. Rit. C., Aug. 27, 1836, ad
V, VII Tn. 2752).
98 ADMINISTRATIVE LAW
No corpses are to be entombed beneath the al
2.

tar; corpses are buried near the altar, a space of one

if

metre 50 at least must intervene, otherwise Mass may

not be celebrated on the altar until the body is removed.
A quaint custom prevailed in the archdiocese of Du-
razzo. Mohammedan women, when sick, took refuge
under the antipendium of the altar on which Mass was
said. This was promptly forbidden by the S. Congrega
tion.
51
A less offensive though also rejected custom is
that of leaving the altar cover rolled up on a stick on the
altar during Mass. 52
Altars should not be used as store-rooms, as this is
forbidden by the general rubrics.
2 forbids the saying of Mass on an altar which is

too near a tomb or grave which contains the corpse

or body of a person not canonized or beatified. The
distance of one meter (39 inches) must be taken in the
53
full, though not strictly in the mathematical sense,
and the dimensions are to be measured in every direc
tion, height, length, width, depth, including the pre-
5*
dclla. If an altar is separated from the tomb by a stone

chamber, although the distance is less than one meter,

55
Mass may be said. This distance must be observed
also in cemeteries, vaults, and subterranean chapels, no
56
matter whether they belong to religious or seculars.
Removal is morally possible. The S. Con
necessary if

gregations have permitted bodies to remain if the re-

50 One metre is equal to 39 53 S. Rit. C., Jan. 12, 1897, ad
inches. The movement for intro- II; Aug. 3, 1901 (nn. 3944, 4082).
ducing the metric system into the 54 S. Rit. C., Feb. 13, 1666, n. 5;
U. S. and England can only be wel- July 7, 1766 (nn. 1333, *479)-
corned. 55 S. Rit. C., July 27, 1878 ad II;
61 S. C. P. F., Feb. 25, 1837 July 18, 1902 (nn. 3460, 4100).
(.Coll., n. 854). 56 S. Rit. C,. Sept. 28, 1872;
52 S. Rit. C., June 2, 1883, ad II April 21, 1873 ( nn - 3283, 3 2 94)-
(n. 3576).
 CANON 1202 99

moval could be effected only with difficulty. 57 One de

58
cision reads: "If it can be done conveniently."

Piety and expenses should also be taken into considera

tion.

57 S. C. P. F., Nov. 22, 1790, ad 58 S. Kit. C, 2, 1875 (n. 3339):

3 (Coll. n. 603).
"

si commode fieri potest."

 TITLE XII

ECCLESIASTICAL BURIAL

BURIAL VS. CREMATION

CAN. 1203

i. Fidelium defunctorum corpora sepelienda

sunt, reprobata eorundem crematione.
2. Si quis quovis modo mandaverit ut corpus
suum cremetur, illicitum est hanc exsequi voluntatem ;

quae adiecta fuerit contractui, testamento aut

si alii

cuilibet actui, tanquam non adiecta habeatur.

I. The bodies of the faithful must be buried, cre

mation being reprobated.
2. Should any one in any way order his body to be
cremated, this order cannot lawfully be carried out, and
any stipulation, will, or disposition to that effect must be
disregarded.
These canons embody a constant, time-honored tradi
tion, which, while it does not directly involve a dogma,
has been repeatedly enforced, especially against the
Masons. Jews, Greeks, and Romans, various as their
customs were at various time, nearly always buried their
dead. 1 When, towards the end of the Xlllth century,
the custom was introduced of boiling the corpses of those
who had died in foreign lands, in order to render them
"

1 Cfr. Cath. EncycL, Vol. IV, s. v., Cremation."

100
 CANON 1203 101

more easily transportable, Pope Boniface VIII strictly

forbade this abuse, which he styled abominable. 2 It re
mained for the Freemasons who gathered at Naples, in
1869, to promote cremation and make it part and parcel
of their programme. Cremation is frequently practiced
in missionary countries because of various difficulties.
The Vicar Apostolic of Vizagapatam in Hindustan solic
itedan answer to the following question When a dy :

ing pagan asks to be baptized, the missionary baptizes

him without bothering himself whether the body may
be cremated or interred, being convinced that his fam
ily would not heed the desire of the deceased, even if
he insisted on burial. Is this allowable? The answer
was that the missionary should not approve of cremation,
but remain passive with regard to it, administer Baptism,
3
and Another pertinent decision is
instruct the people.
4
that rendered by the Holy Office to the effect that it is
forbidden to be enrolled in a lodge or society the pur
pose of which is to promote cremation without danger of
incurring the censures laid upon Masonic societies and ;

that it is also forbidden to order one s own body or

the bodies of others to be cremated. The decision ex

horts Ordinaries to instruct the faithful regarding the
abominable custom of cremating human bodies. An
other decision concerns amputated limbs, legs or arms.
The case was reported from a hospital in the U.. S. The
answer was that the amputated limbs of non-Catholics
may be cremated, if the physician so advises, but those
of Catholics should be buried, if possible, in consecrated
2 Cfr.c. i, Extrav. Comm., Ill, (raiapont), which the pagans
6, de sepulturis. thought would be destroyed by the
3 S. C. P. F., Sept. 27, 1884 Catholic religion.
(Coll., n. 1626). Instruction was 4 S. O., May 19, 1886 (Coll. P.
necessary because cremation was F., n. 1657); cf. also S. O., July
considered a privilege of the caste 27, 1892 (ibid., 1808).
102 ADMINISTRATIVE LAW
ground; else, anywhere. If the physician orders crema
tion, the sisters shall prudently silently obey com and his
mand. The advice
added that a small consecrated lot
is

be kept in the garden adjoining the house for the

purpose
of burying amputated limbs of Catholics. 5

ECCLESIASTICAL BURIAL

CAN. 1204

Sepultura ecclesiastica consistit in cadaveris trans-

latione ad ecclesiam, exsequiis super illud in eadem
celebratis, illius depositione in loco legitime deputato
fidelibus defunctis condendis.

Ecclesiastical burial consists in bringing the body to

the church, holding the funeral service over the same in
the church, and entombing it in a place destined for the
.burial of
departed Catholics.
The Christian funeral rite differed greatly from the
pagan, as a passage from Minuctius Felix eloquently
demonstrates. The rules laid down in our canon were
observed conscientiously and religiously by the early
Christians. They embalmed or enshrouded
the body,

.accompanied the corpse with tapers or torches, singing

psalms and hymns, bringing an oblation, (oblatio pro dor-
6
mitione) and celebrating the love feast. The whole
ceremony breathed belief in the resurrection of the body.
It is therefore not surprising to read of the insistence of
the Roman Court upon the full funeral rite. The cus
tom of burying the bodies of the faithful from their

5 S. O., Aug. 3, 1897 (ibid. n. arescentem coronam, sed Deo

a
1975). aeternis floribus vividam siistinc-
6
"

Nee mortuos coronamus ; nos mus;

"

cfr. Armellini, Lezioni di

exequies adornamns eadem tranquilli- Archeologia Cristiana, 1898, p. 8p f,

tate, qua vivimus; nee adnectimus

 CANON 1204 103

homes, without bringing them to church, is styled an

abuse to be abolished. 7 Even in missionary countries,
where superstitions are mingled with the Catholic rites,
the Roman Ritual should be observed and funeral Mass
8
be said praesente cadavere, if at all possible. This serv
ice may also be held over human ashes or bones brought
from foreign countries. 9 The Church does not abhor
modern conveyances, and hence, no matter what means
are used for carrying the dead to the cemetery, the pastor
should accompany the funeral. 10
Note well the three parts of a Christian funeral, viz.:
transfer of the body to the church funeral service in the ;

church; interment in the graveyard. All three acts are

accompanied by prayers.
1X
The Roman Ritual makes a distinction between the
burial of adults and that of children.
The Code now proceeds to treat of cemeteries, of fu
neral services, and, lastly, of the refusal of ecclesiastical
burial.

7 S. Kit. C., April 21, 1873 (n. voluntary or self-ordered cremation

3291). took place.
8 S. O., April 10, 1777, ad 2 10 S. Rit. C., July 15, 1876 (n.
(Coll. P. F., n. 521). 3405).
9S. Rit. C., Aug. n, 1883, ad I n Tit. VI, c. 3; c. 7.

(n. 3693): provided, of course, no

 CHAPTER I

CEMETERIES

BLESSED CEMETERIES

CAN. 1205

i. Cadavera fidelium sepelienda sunt in coemete-

fio quod, secundum
ritus in probatis liturgicis libris
traditos, sit benedictum, sive sollemni sive simplici
benedictione ab iis data de quibus in can. 1155, 1156.
2. In ecclesiis cadavera ne sepeliantur, nisi aga-
tur de cadaveribus Episcoporum residentialium, Ab-
batum vel Praelatorum nullius in propria ecclesia se-
peliendis vel Romani Pontificis, regalium personarum
aut S. R. E. Cardinalium. jj-JLjc^ t*$
j \
y^rf^^ i

I. The bodies of the faithful must be buried in a

cemetery, which may be solemnly or simply blessed ac
cording to the ritual books. The solemn blessing, as con
tained in the Roman Pontifical, can be imparted only by
the Ordinary of the diocese, according to can. 1155; the
simple blessing may be imparted by the local Ordinary, if
the cemetery belongs to the secular or non-exempt reli
gious clergy. However, the bishop may delegate any
*
priest for this function. If the cemetery belongs to

exempt religious, the major superior or his delegate is

2
competent.
iRit. Rom., tit. VIII, c. 29; can. 1156; S. Kit. C., Feb. 9, 1608 (n.
246).
2 Can. 1155-
104
 CANON 1205 105

The necessity of burying the bodies of deceased Cath

olics in consecrated ground has been generally insisted
upon, even for pagan provinces, where it was customary
3
to bury infants, not in the family grave, but elsewhere.
In Mossul it was customary for Catholics as well as schis
matics to be buried in one and the same family lot or vault.
This custom was tolerated, as it could not be abolished
without scandal. 4
The cemetery must not be considered as blessed merely
because the adjoining church was blessed. These two
5
blessings are entirely different rites. If the whole ceme
tery was blessed, it is not necessary that the single graves
be blessed again, and therefore the bcnedicto tumuli under
the rubric :
"

when they have reached the grave, the priest

shall bless it if it is not already blessed/ should be
omitted. 6
There is an apparent conflict between this and a deci
sion of the same Congregation, 7 which orders all graves
even in a cemetery already blessed to be blessed again if

the grave is made of new material :

quotics agitnr de
sepulcho ex nova materia confecto. The contradiction
is only apparent. For the last-mentioned decision re
gards a new grave made in the shape of a crypt or vault
of stone or cement which has been newly added to the

cemetery. A
simple grave (fossa) dug in the ground
already blessed does not need to be reblessed.
2. No bodies shall be entombed in churches except
if the civil laws permit it the bodies of resident bish-

Feb. 20, 1801 (Coll. P. F.,

3 S. O., 5 S. Kit. C., Feb. 21, 1896 (n.
n. 649): this was done because of 3888).
the belief that infants and unmar- 6 S. Rit. C., May 27, 1876, ad V
ried persons had no one to mourn (n. 3400).
or reverence them. 7 S. Rit. C., Sept. 4, 1800, ad I
4 S. O., April 1896 (Coll.
13, (n. 3524).
P. F., n. 1089).
io6 ADMINISTRATIVE LAW
ops and prelates or abbots nullius. These may be buried
in their own church. The same privilege is accorded to
the Roman Pontiff, royal personages and cardinals.
We said,
"

laws permit
if the civil for it is a well-
it"

known fact that in Rome even Cardinals must be buried

in the common city cemetery. Although this law is not
in perfect keeping with the mind of
the Church, yet it
cannot be styled iniquitous as far as the mere prohibition
of burial in churches is concerned, though in as far as it
compels the promiscuous burial of baptized with non-
baptized, and of criminals with distinguished prelates, it
certainly is unjust and savors of intolerance. The first
part of the law, to wit, forbidding burial in churches,
would not be objected to by the ecclesiastical authorities,
for, as will be seen from the following canon, the Code
only demands free possession of cemeteries, whether situ
ated inside or outside of church buildings. If a prelate
mentioned in 2, can. 1205, is buried in a church, his

grave, though made in the middle of the choir, must be

even with the floor and may not project over the altar of
8
the confessio. Besides, the distance of a meter from the
altar must be observed, as prescribed in can. 1202, 2.

RIGHTS OF THE CHURCH IN REGARD TO CEMETERIES

CAN. 1206

i. lus est catholicae Ecclesiae possidendi propria

coemeteria.
2. Sicubi hoc Ecclesiae ius violetur nee spes sit
ut violatio reparetur, curent locorum Ordinarii ut
coemeteria, societatis civilis propria, benedicantur, si,
qui in eis condi solent, sint maiore ex parte catholici,
8 S. Rit. C., Feb. 20, 1627 (n. 433).
 CANON 1206 107

aut saltern ut in eis catholici spatium habeant, idque

benedictum, sibi reservation.
3. Si ne hoc quidem obtineri possit, toties quoties
benedicantur, secundum ritus in probatis liturgicis
libris traditos, singuli tumuli.

i. The Catholic Church has the right to possess her

own cemeteries.
2. Where this right of the Church has been vio
lated, and there is no hope of recovering it, the local
Ordinaries shall take care that the civil cemeteries be
blessed, provided the majority of the persons to be buried
in them belong to the Catholic faith, or at least that Cath
olics be granted a separate space, which should be blessed.
3. If not even that much can be obtained, then the

single graves must be blessed according to the liturgical

books.
i is
nothing else but a corollary from the doctrine
of the corporate nature of the universal Church and its
autonomous parts. Besides the sacred character of the
burial grounds, the right of possessing them exclusively
and independently of any outside corporation or society
should be guaranteed to the Church. This right is evi
dent from the principle of canon law With those :
"

with whom we have had no communion when living, we

do not communicate when dead." 9 This right, inherent
as it is in her very constitution, the Church can exercise
effectively only if she possesses her own burial grounds.
2 and 3 are taken from an authentic answer of the
10
Holy Office, necessitated by the tendencies of the so-
called Liberal school. A
further declaration says that in
common cemeteries, destined for Catholics and non-
9C. 12, x, III, 28; Pius IX, 10 S. O., Feb. 12, 1862 (Coll. P.
Nunquam
""

certe," June 22, 1868. F., n. 1227).

io8 ADMINISTRATIVE LAW
Catholics alike, a separate plot with a separate entrance
should be obtained for Catholic burials. 11
In the United States the Church has so far been al
lowed to possess her own cemeteries. Rights of burial
"

under churches or in cemeteries are so far public that

private interests in them are subject to the control of the
authorities 12
public having charge of police regulations."
This, of course, also implies expropriation in case of pub
licutility or health. Otherwise no state or county or
municipal authority shall interfere with the right of the
Church in matters of cemeteries and burial. 13

INTERDICT, VIOLATION, ETC., OF CEMETERIES

CAN. 1207

Quae de interdicto, violatione, reconciliatione ec-

clesiarum canones praescribunt, etiam coemeteriis ap-
plicentur.

The regulations of canon law concerning the interdict,

the desecration and reconciliation of churches also apply
to cemeteries. Hence we refer to can. 1172 fT. Note
well can. 1172, 2, in order not to apply the old canons.
What is to be said on interdicts will find its place under
the respective heading.

OWNERS OF CEMETERIES
CAN. 1208

i. Paroeciae suum quaeque coemeterium habe-

ant, nisi unum pluribus commune ab Ordinario loci sit
legitime constitutum.
11 S. C. P. F., March 29, 1830 Church Law, 1917, Ch. XVI, p.
(ibid., n. 812). 439.
12 Zollmann, American Civil 13 Ibid.: "While thus the right
 CANON 1207-1208 109

2. Religiosi exempt! possunt habere coemeter-

ium proprium, a communi coemeterio distinctum.
3. Etiam aliis personis moralibus vel familiis
privatis permitti potest ab Ordinario loci peculiare
sepulcrum, extra commune coemeterium positum, et
ad instar coemeterii benedictum.
3. Etiam infantium corpuscula, quatenus com-V
mode fieri potest, speciales et separates ab aliis loculosj
et sepulturas habeant.

i. Each parish should have its own cemetery, un

less the local Ordinary assigns a common cemetery to
several parishes.

and duty of a cemetery owner to the tacit understanding that he is

vacate it in a proper case is per either a Roman Catholic, and as
fectly plain, his right to deter such eligible to burial, or at least
mine who may be buried in it that he applies on behalf of those
is equally clear. Without such who are in communion with the
right, church societies might find Church. The entire business is

their cemeteries interminable transacted on that basis. It fol

sources of trouble. Not only lows that the mere payment of
might the peace of the society be fees and charges confers the privi
disturbed by the burial of a per lege of burial only in the mode
son objectionable to its members, used and permitted by *the cor
"but the society itself might thereby poration. While, therefore, the
actually be disrupted. To prevent trustees of a church society who
such a result religious organiza hold a cemetery as a free burial
tions may not only establish ceme ground cannot prevent the burial of
teries exclusively denominational, a church member beside her husband
but may also guard and protect where there is space left for that
them by such rules and regula purpose; a person who has sepa
tions as make effective the objects rated himself from the society, or
and purposes of
organiza their who according to its decision had
tion. These rules and regulations ceased to be a member of it, is
will enter into and become a part not entitled as a matter of right to
of every contract for a lot in such be buried in such cemetery,
cemetery, unless the proof is clear though he had contributed to it

and convincing that a contract of while still a member. Nor may

a different kind was properly made even a member of such organiza
with the lot owner by a duly au tion bury his profligate son in such
thorized agent of the organization. cemetery over the objection of the
When a party applies for a burial organization, nor be buried himself
plot at the office of a distinctly with ceremonies which are objec
Roman Catholic cemetery, it is with tionable to it."
iio ADMINISTRATIVE LAW
2. Exempt religious may have their own cemetery,
distinctfrom the common cemetery of the faithful.
3. The Ordinary of the diocese may permit other
corporations and private families to have their own
burial places separate from the common one and blessed
like a cemetery.

CAN. 1209

i. Turn in coemeteriis paroecialibus, ex licentia

scripta Ordinarii loci eiusve delegati, turn in coeme-
terio alius personae moralis, ex licentia scripta Su-

perioris, fideles sibi suisque exstruere possunt sepulcra

particularia ; quae, de consensu eiusdem Ordinarii aut
Superioris, possunt quoque alienare.
2.Sepulcra sacerdotum et clericorum, ubi fieri
potest, a sepulcris laicorum separata sint ac decentiore
loco sita; praeterea, ubi id commodum fuerit, alia pro
sacerdotibus, alia pro inferioris ordinis Ecclesiae mi-
nistris par^ntur. xWW,
f .3, $ *./?,&
or
I permits lots vaults
./*of-^~*. rfrJ&fW
(sepulchra particulana)
to"oe

constructed with the written consent of the local Ordinary

or his delegate on the parish cemetery. The same writ
ten consent may be given by the superior, either local or
major, of the corporation on whose cemetery such a pri
vate sepulchre is chosen by the faithful. These private
sepulchres, or graves, or lots may, with the consent of the
Ordinary or Superior, be alienated. Alienation is, of
course, here to be understood of a conveyance for burial
purposes.
If suspicion of simony should arise from the term
alienation, it may be observed that this is only an appar
ent difficulty, easily removed. If a certain sum would be

charged for the grave itself, by reason of its being con-

 CANON I2IO-I2H in

secrated ground, there would indeed be simony. How

ever, here thereis question only of the exclusive right of

usufruct, which is reserved to a determined person or

family with regard to a specified lot. The cemetery itself
or any part thereof is not sold or leased. But the exclusive
right to a determined and honorable place has a material
14
value and its sale, therefore, does not imply simony.
2. Priests and clerics should, if possible, have a
special burial place, located in a more prominent part of
the cemetery; the priests lot should, if it can conven

iently be done, be distinguished from that of the lower

clerics.

3. The burial place of infants should be separated

from that of adults, as there is also a special rite for the
burial of infants. Exempt religious, too, if they have
plots for elective sepulture in their cemeteries, should set
15
apart lots for the burial of children.

KEEPING OF CEMETERIES

CAN. 1210

Quodlibet coemeterium sit undique apte clausum et

caute custoditum.

CAN. I2ii

Quodlibet coemeterium sit undique apte clausum et

ad quos spectat, ne in coemeteriis epitaphia, lauda-
tiones funebres ornatusque monumentorum quidquam
prae se ferant a catholica religione ac pietate absonum.
14 Cfr. Many, /. c., p. 253 f.
15 S. Kit. C., Dec. 12, 1620 (n. 383).
 ADMINISTRATIVE LAW
CAN. 1212

Praeter coemeterium benedictum alius, si haberi

queat, sit locus, clausus item et custoditus, ubi ii hu-
mentur quibus sepultura ecclesiastica non conceditur.

Every cemetery shall be properly closed and carefully

!
guarded.
The local Ordinaries, pastors and superiors, whom it
concerns, shall take care that the inscriptions on the tomb
stones, eulogies, and adornments of the monuments be in
keeping with Catholic faith and piety.
Besides the cemetery, or that part which is blessed,
there should be a special plot, properly enclosed and
guarded, to serve as burial-place for those who are denied
ecclesiastical sepulture.

WAITING TIME

CAN. 1213

Nullum corpus sepeliatur, praesertim si mors repen-

tina fuerit, nisi post congruum temporis intervallum,
quod satis sit ad omnem prorsus de vero obitu dubita-
tionem tollendam.

No body should be buried, especially in case of sudden

death, until sufficient time has elapsed to disperse all
doubt as to death having really set in. This admonition
16
was originally given to missionaries, probably for lack
of civil provisions on the subject. For where civil laws
and the coroner attend to this matter, this canon is super
fluous. For the rest, the process of embalming, properly
16 S. O., April 10, 1777 (Coll. P. F., n. 321).
 CANON 1214 113

performed, will obviate the danger of burying anyone

alive.

EXHUMATION
CAN. 1214

i. Nullum cadaver perpetuae sepulturae ecclesi-

asticae ubivis traditum exhumare licet, nisi de licentia
Ordinarii.
2. Ordinarius licentiam nunquam concedat, si ca
daver ab aliis corporibus certo discerni nequeat.

i. No body that has been laid to final rest by eccle

siastical burial, can be exhumed without the permission
of the Ordinary.
2. The Ordinary shall never grant this permission,
if the corpse cannot with certainty be distinguished from
other bodies.
This law is merely a corollary of the right of the
Church to possess her own cemeteries. Difficulties may
arise where the cemeteries belong to the municipality.
Yet even there the Ordinary s permission is required, be
cause a grave must be considered as sacred, since it has
been blessed, and the Church is the quasi-custodian even
of the bodies of the faithful.
In closing this chapter it
may be well to note briefly
what rights the civil government may claim with regard
to cemeteries and the burial of Catholics.
has the right (i) to confine cemeteries to a district
It

lying outside of the community of the living; (2) to de

termine the order of the graves and their depth, and to
empty the graves after a certain lapse of time; (3) to
establish a certain interval between death and burial, and
to postpone burial in case of sudden death or crime, so
ii4 ADMINISTRATIVE LAW
as to ensure an autopsy; (4) to demand exhumation

through the proper authority; (5) to ordain, through the

proper authorities, that during epidemics, or the preva
lence of contagious diseases, corpses be taken directly to
the cemeteries. 17

17 Cfr. Many, /. c,, p. 371.

 CHAPTER II

FUNERAL SERVICES AND INTERMENT

CONVEYING BODIES TO CHURCH

CAN. 1215

Nisi gravis causa obstet, cadavera fidelium, ante-

quam tumulentur, transferenda sunt e loco in quo
reperiuntur, in ecclesiam, ubi funus, idest totus ordo
exsequiarum quae in probatis liturgicis libris descri-

buntur, persolvatur.

Unless there is a weighty reason for the contrary, the

bodies of the faithful must, before interment, be taken
from the place where they are (place of death) to a
church, where the entire funeral service prescribed by
the sacred liturgy shall be held.
The clergy of Brescia, Italy, had some doubts as to the

admissibility of the ecclesiastical rites when a corpse was

conveyed from the house to the church and from there to
the cemetery by a vehicle. But the S. Congregation de
cided that the manner of conveyance does not interfere
with the sacred liturgy and that the clergy should accom
1
pany the funeral to the graveyard, as the people desired.
The text says nisi grains causa obstet.
: Since the
sacred rites involve a grievous obligation, only a real, not
an imaginary, reason can dispense from their observance,
i S. Rit. C., March 5, 1870 (n. 3212).
Ii6 ADMINISTRATIVE LAW
though we do not wish to deny that a reasonable custom
may be admitted, especially in large cities. It is more
important to bring the body to church, than to accompany
it to the grave-yard, provided the grave has been blessed.

PAROCHIAL RIGHTS IN REGARD TO BURIAL

CAN. 1216

i. Ecclesia in quam cadaver pro funere transferri

debet, ex iure ordinario est ecclesia propriae defuncti
paroeciae, nisi defunctus aliam funeris ecclesiam legi-
time elegerit.
2. Si defunctus plures habuerit paroecias pro-
prias, ecclesia funeris est ecclesia paroeciae in cuius
territorio decessit.

i. By common law the corpse of a departed Cath

olic is to be brought to the parish church of the deceased,
unless he lawfully chose another church before his death.
2. If the deceased belonged to several parishes, the
funeral should be held in the church of the parish within
which he died.
When the claim of another church is doubtful, the right
of the deceased parish church must prevail.
s

The canon law formerly distinguished three reasons

which entitled a priest to bury a deceased person elec :

2
tive sepulture, the family grave, and the parish burial.
Our Code mentions but two parish burial and elective :

sepulture. But 3, and 1229 admit the ances

can. 1218,
tral right, although a subordinate way, as is evi
only in
dent from the very position in our canon, which vindicates
the first, or at least general and ordinary right to the

2 Cfr. c. i, x, III, 28; c. 3, 60, cause, says the text, this was the
III, 12, where the sepulcrum maio- custom of the patriarchs.
rum occupies the first place, be-
 CANON 1216 117

parish church of which the deceased was a member dur

ing life. However, the right of choosing his own burial
or last resting place is acknowledged and granted to
everyone not excluded by law, as determnied by can.
1223-1226. Provided, then, that no special church was
designated before death by the persons who are allowed
to choose either for themselves or for others, the body
must be brought to the parish church, i. e., the one to
which the deceased belonged as a member when living,
and of which he was a communicant. 3 This connection
between church and parishioners is established by domi
cile or quasi-domicile, either being sufficient to render
one a member of a parish. To linguistically distin
guished parishes the same principle applies. The per
sonal right of the parishioners prevails over territorial
considerations. 4
2 of our canon provides for a case which may arise
from the fact that one belongs to several parishes. Here
a pertinent decision: A family had its domicile in the
city and belonged to St. James parish. The same family
also had a summer villa in the parish of St. Mary, where
the wife and mother lived every year for about eight
months, and where she died, after having received the
sacraments at the hands of St. Mary s pastor, and was
buried by him. The S. Congregation decided that the
pastor of St. Mary s was entitled to hold the funeral
5
service and to receive the fee. This decision was per
fectly natural. One may have two domiciles or quasi-
domiciles which suffice for contracting parish rights, and

3 Reiffenstuel (III, 28, n. 6) 4 Pignatelli, Consultationes Cano~

justly remarks: canones in
"

ss. nicae, Vol. Ill, Cons. 48, n. 22.

ordine ad sepulturam non attendant 5 S. C. C., March 12, 1881 {A.
locum, ubi quis in extremis reficitur, S. S., t. XIV, 209 ff.).
sed ubi in vivis coelesti pabulo refici
consuevit."
n8 ADMINISTRATIVE LAW
servants, hired hands, soldiers, students, nurses, teachers,
etc., may contract a quasi-domicile, although they retire
to their homes several times each year, and have no inten
tion of staying longer than necessary.
If they reside

anywhere continuously the greater part of the year this

is sufficient to contract a quasi-domicile. 6

CAN. 1217

In dubio de iure alius ecclesiae, ius propriae eccle-

siae paroecialis semper praevalere debet.
In doubtful cases, says can. 1217, the right of one s
own parish church prevails. The reason lies in the right
of the pastor, which corresponds to his duty of adminis
tering the sacraments, and he should not be deprived of
the honor and material advantage. 7 Therefore if either
the fact or the right are doubtful, the deceased s own
parish comes first. The fact is doubtful if it is uncer
tain where one died or was killed. The right is doubtful
if membership in the one or the other parish cannot be
clearly established, or the will of the deceased regarding
sepulture cannot be proved.

TRANSFER TO ONE S OWN CHURCH

CAN. 1218

i. Licet mors accident extra propriam paroe-

ciam, cadaver tamen in ecclesiam paroeciae propriae
quae vicinior sit, ob funus transferendum est, si ad earn
commode pedestri itinere asportari possit; secus in
ecclesiam paroeciae in qua mors accidit.
2. Ordinarii est pro suo territorio, inspectis pe-
6 A. S. S., 1. c., p. 214.
7 Cfr. cc. 2, 3, 6, x, III, 12; c 2, Verum ne, Clem. Ill, 7.
 CANON 1218 119

culiaribus circumstantiis, distantiam aliaque adiuncta

designare, quae translationem cadaveris ad ecclesiam
funeris aut locum sepulturae incommodam reddant ; et
si paroeciae ad diversas dioeceses pertineant, designa-
tio attenditur Ordinarii dioecesis in qua defunctus

supremum diem obiit.

3. Licet translatio ad ecclesiam funeris aut ad

locum sepulturae incommoda sit, semper tamen inte-
grum est familiae, heredibus, aliisve quorum interest,
cadaver illuc deferre, susceptis translationis expensis.

i. Even though a person has died outside his own

parish, the corpse must be brought for the funeral service
to his own parish church, if it is the nearest, and the

corpse can be conveniently carried there on foot (pedestri

itinere) otherwise it is to be carried to the church of the
;

parish in which the person died.

This section must be understood in the light of the old
law, which exempted transportation to the parish church
8
in case of Transport was by most canonists
danger.
presumed when it took a day s journey.
to be dangerous
Others more reasonably held that the judgment regarding
the existing danger must be left to the family of the de
ceased. In our country and day of automobiles and
motor hearses this canon has little practical value. How
ever, we believe that the term iter pedcstre is here to be
taken, not exclusively as the mode of conveyance, but as a
conditional supposition, as if we should say: supposing or
9
provided the funeral journey could be made on foot.
2 provides for a more practical mode of judging
distance and inconvenience. The Ordinary may, after
examining the special circumstances, determine prefer-
8 C. Extrav. Comm., III. 6.
i, church; S. Rit. C., Jan. 15, 1667
9 In Rome the bodies of prison- (n. 1346).
ers were brought on foot to the
120 ADMINISTRATIVE LAW

ably at a synod and by means of diocesan statutes when

and under what conditions the transportation of the
corpse to the church or place of burial is inconvenient.
If the parishes belong to different dioceses, the decision
lieswith the bishop in whose diocese the person died.
Supposing a man was accidentally killed in a parish of
the Des Moines diocese, but belonged to a parish of the
diocese of St. Joseph, if there were no one to defray the
transportation expenses and to claim the body, we sup
pose the Ordinary of Des Moines would decide in favor
of burial in that city recto tramite.

3 grants to the family of the deceased, his heirs, or

other interested persons, the right of having the body
conveyed to the church where the funeral services are to
be held, or to the burial place. And this even if the trans
fer were quite inconvenient, provided the relatives or
heirs are willing to pay the expenses.

BURIAL OF CARDINALS AND BISHOPS

CAN. 1219

i. Si S. R. E. Cardinalis in Urbe decesserit, cor

pus transferendum est, funeris causa, in ecclesiam

quam Romanus Pontif ex designaverit ; si extra Urbem,

in ecclesiam insigniorem civitatis seu loci ubi mors
accidit, nisi Cardinalis aliam elegerit.
6. Defuncto Episcopo residentiali, etiam cardi-
nalitia dignitate aucto, aut Abbate vel Praelato n ul-
lius, corpus, funeris causa, transferri debet in eccle
siam cathedralem, abbatialem vel praelatitiam, si id
commode fieri possit; secus, in ecclesiam insigniorem
civitatis seu loci, nisi in utroque defunctus aliam eccle
siam elegerit.
 CANON 1220 121

I. If a cardinal dies in the city (of Rome), his

body is to be brought for the funeral service to the church

which the Roman Pontiff may designate for that purpose ;

if he dies outside the city, the corpse must be carried to

the more prominent church of the city or town where the

cardinal died, unless he chose another.
2. On the death of a residential bishop, even if he
was a cardinal, or an abbot or prelate nullius, the body
must be brought for the funeral service to the cathedral
or abbatial or prelatial church, if this can be done con
veniently; if not, to the more prominent church of the
city or town, unless the prelate chose another.

FUNERAL OF BENEFICIARIES
CAN. 1220

Beneficiarii residentiales ad ecclesiam sui beneficii

transferendi sunt, nisi aliam sibi elegerint ecclesiam
funeris.

The bodies of resident beneficiaries must be brought to

the church of their benefice, unless they have selected an
other church for their funeral.
The burial of cathedral and collegiate canons and other
beneficiaries, provided they are really resident, is to take
place from the church where they held a benefice. If

they had their domicile or quasi-domicile in another par

10
ish of the city or town, the stole fee must be given to the
11
pastor of that parish.
Concerning the canons of cathedral churches in Eng-

10 Resident does not imply that 11 S. C. C., May 12, 1685 (Rich-
the canons and beneficiaries must re- ter, Trid., p. 462, n. 10); S. Rit. C.,
side at the cathedral or collegiate May 16, Dec. 18, 1756, ad n (n.
church, because this may not be a 2441).
parish church.
122 ADMINISTRATIVE LAW
land, the provincial council of Westminster (1852) de
cided nothing about their funeral but since these are not
;

really canonical prebends, as a decree of the S. C. P. F.,

12
April 21, 1852, clearly states, it follows that the present
canon cannot be applied to them. It has in view only
beneficiaries in the strict sense.

FUNERALS OF RELIGIOUS

CAN. 1221

i. Profess! religiosi ac novitii, defuncti cum sint,

transferendi sunt, funeris causa, ad ecclesiam vel ora-
torium suae domus vel saltern suae religionis, nisi no
vitii aliam ecclesiam ad suum funus elegerint; ius
autem levandi cadaver et illud deducendi ad ecclesiam
funerantem pertinet semper ad Superiorem religiosum.
2. Si longe moriantur a domo, ita ut in ecclesiam
suae domus vel saltern suae religionis nequeant com
mode asportari, funerandi sunt in ecclesia paroeciae
ubi decedunt, nisi novitius aliam ecclesiam ad funus
elegerit, et salvo Superioribus iure de quo in can. 1218,
3.

3. Quae de novitiis dicta i, 2, valent quoque

de famulis actu servientibus et intra domus septa sta-

biliter commorantibus , qui tamen, si extra religiosam
domum decesserint, funerandi sunt ad normam can.
1216-1218.

i. The bodies of professed religious and novices

must be brought for the funeral service to the church or

oratory of their house, or at least to a church of their in

stitute, unless the deceased was a novice and selected an
other church,
12 Coll, Lac., Ill, 956.
 CANON 1221 123

The right to remove the body and accompany it to the

church belongs to the religious superior. Hence the pas
tor in whose parish a religious or novice died, even

though the house or hospital be under the pastor s juris

diction, is not entitled to interfere or claim compensa
13
tion.
Note that the Code simply says
"

religious," without

drawing a distinction between exempt and non-exempt.

Not intended are those that are not religious in the sense
of the Code. 14
2. If a professed religious or novice dies in a place
so far distant from his religious house that the body can
not conveniently be conveyed to a church of his own
house, or order, or congregation, he must be buried where
he died, unless a novice has chosen another church for the
funeral service. Here again distance is mentioned with
out further determination. According to canonists, 15
"

"distance is But this term must be

one day s journey.
taken in a relative sense expenses, means of transporta
;

tion, and the condition of the corpse must be duly con

sidered. If the corpse cannot be conveniently trans
ported, it must be buried where death occurred and
religious have no right to choose the burial place. 16 Nov
ices, however, may choose.
Our canon 3, which permits the
refers to can. 1218,

family to remove the body wherever they please, provided

they defray the expenses. This right is here vindicated
to the superior, either or higher. If he should
local
choose to have the body transferred from the place of

13 Cfr. c. 16, x, V, 31; c. 5, 6, 15 Ferraris, Prompta Bibliotheca,

EE.
"

III, 12; S. C. et RR., July s. v. Sepultura," n. 41.

21, 1848 (Bizzarri, c., p. 563 f).
/. 16 Formerly the choice was not
14 Can. 673; unless of course they denied; c. 5, 6, III, 12.
enjoy a special privilege to that
effect.
124 ADMINISTRATIVE LAW
death to a church of his institute, he may do so without
consulting or excusing himself to the pastor in whose
17
parish the religious died.
The pastor, even though he may have administered the
last Sacraments to the deceased religious, is not entitled
18
to any stole fees.

Religious superiors are not exempt from this law, i. e.,

19
they are not allowed to choose their own burial place,
but are to be treated just like ordinary religious.
3. What has been established concerning novices
also applies to servants actually employed by religious and
living permanently within the premises of a religious
house (farm hands, janitors, mechanics, teachers, etc.).
To enjoy the privilege here granted they must be actually
serving the religious and live within the precincts of the
convent or religious house. 20 If they boarded outside,
the second condition would be lacking; if they worked
without being hired or employed, the former condition
would not be verified. 21 If they die outside the religious
house the privilege ceases.

GUESTS AND STUDENTS OF RELIGIOUS

CAN. 1222

Quod ad defunctos qui in domo etiam regu

attinet
lar! vel collegio degebant ratione hospitii, educationis
vel infirmitatis, et ad defunctos in hospitali, standum
est canonibus 1216-1218, nisi constet de iure particu-

17 S. C. C., June 10, 1620, ad 10; 19 Cfr. can. 1224, 2.

Ferraris, /. c., n. 35 f. 20 Cfr. Trid., Sess. 24, c. u;
18 S. C. EE. RR., May 22,
et Sess. 25, c. n, de reg. :
"

subque
1615; Ferraris, ibid.; however, com- eorum obedientia vivunt."
pensation would not be against 21 S. C. EE. et RR., July 21, 1848
either the letter or the spirit of the (Bizzarri, /. c., p. 563 ff.) Cfr. Vol.
law. Ill, p. 142 f. of this Commentary.
 CANON 1222 125

lari aut privilegio; quod vero ad illos attinet qui in

Seminario moriuntur, servetur praescriptum can. 1368.

who have lived in a

Guests, students or sick persons
religious house, even though this belong to regulars, or
in a college, and die there, as well as those who die in a

hospital, are to be buried like other secular persons, i. e.,

according to can. 1216-1218, unless a particular law or
privilegeexempts them from the common law.
Seminarians are to be buried by the authorities of the
seminary, unless the Holy See has ruled otherwise with
regard to certain seminaries.
The favor granted these persons by virtue ot can. 514
may not be extended to the funeral service, as the S.
22
Congregations have constantly decided. Of course,
these persons are allowed to choose burial in the church
of religious, provided this church is capable of being se
lected (can. 1125) and the person free to choose. But
in that case the stole fees belong to the parish priest who
23
would otherwise be perform the burial.
entitled to
The text admits exemption by reason of a particular
law or privilege. A particular law would be one issued
according to can. 464, 2, viz.: when the Ordinary ex

empts a religious family from the parish organization.

The Barnabites were granted a privilege permitting their
guests and all those who died suddenly in their houses or
24
colleges to be buried by these religious.
Our text requires that the privilege must be certain or
evident (nisi constet de privilegio). All religious, there
fore, who can claim neither a particular law nor a privi-
22 S. C. EE. et RR., Dec. 1674; 23 S. C. C, /. c.

Dec. 14, 1753 (Bizzarri, /. c., pp. 24 Greg. XV, 1621, opud Bizzarri,
271 f; 379), S. C. C., April 21, /. c., p. 564.
1742 (Richter, Trid., p. 462, n.
13).
126 ADMINISTRATIVE LAW

lege, must permit the pastor in whose parish their house

25
is situated, to perform the funeral service.

SELECTION OF SEPULTURE

CAN. 1223
i. Omnibus licet, nisi expresse iure prohibeantur,
eligere ecclesiam sui funeris aut coemeterium sepul-
turae.
2. Uxor et filii puberes in hac electione prorsus
immunes sunt a maritali vel patria potestate.

CAN. 1224

Ecclesiam funeris aut sepulturae coemeterium eli

gere prohibentur :

i. Impuberes; verum pro filio aut filia impubere,

etiam post eorum mortem, hanc electionem facere
possunt parentes vel tutor;
2. Religiosi profess! cuiuslibet gradus aut dignita-
tis, non tamen si sint Episcopi.

Canon 1223 ordains may freely choose

( i) that all
their funeral church or burial place, unless they are ex
pressly forbidden to do so by law. Those forbidden are
boyswho have not yet completed the fourteenth and girls
who have not yet completed the twelfth year. 26 In their

stead, even after their death, the parents or guardians

may make the choice. Whether the mother alone may
do so, was not
quite certain hitherto, because a Constitu
tion of Innocent X
seems to debar her if there is no local
custom in her favor. 27 Our text leaves no doubt that

25 S. C. C., April 21, 1742 IT

"

Ex injuncto," Nov. 16, 1645

(Richter, /. c., nn. 4, 13). (Richter, /. c., p. 461, n. 6).
26 See can. 88, 2.
 CANON 1225 127

mothers, too, may choose burial church and burial place

for their children.
If the parents have a family lot, the children should be
buried there, otherwise, if no contrary choice is made,
they are to be buried from the parish church and in the
28
parish cemetery.
According to 2, can. 1223, the wife as well as boys
and girls who have completed the age of fourteen or
twelve, respectively, are free to make their choice, and
are not hampered in this matter by marital or parental
29
power. If this be true, we cannot see, as stated above,

why the mother should be debarred from choosing, pro

vided, of course, the father cithers consents, oris dead,

or does not care. Guardians, too, are admitted.

Professed religious of whatever rank or dignity, except
bishops, are deprived of the right of choosing their fu
neral church or burial place. The reason is that reli
30 "

gious have no power either to

" "

velle or nolle!
Cardinals who are religious enjoy the right here denied
by virtue of can. 1219, bishops, by virtue of can. 1224.
As the text speaks of bishops in general, all, resident and
titular, are included.

CAN. 1225

Ut electio ecclesiae funeris valeat, cadat necesse est

vel in ecclesiam paroecialem, vel in ecclesiam regu-
larium, non tamen monialium (nisi agatur de mulieri-
bus quae famulatus, educationis, infirmitatis aut hos-
pitiicausa intra clausuram eiusdem monasterii non
precario commorabantur), vel in ecclesiam iuris pa-
28 S. C. C., Nov. 16, 1645; Feb. 1731 (Bizzarri, /. c., p. 343); Many,
22, 1646 (Richter, /. c., n. 2 f.) /. c., p. 267 f.

29 S. C. EE. et RR., June 8, 30 C. 5, 6, III, 12.

128 ADMINISTRATIVE LAW
tronatus, agatur de patrono, vel in aliam ecclesiam
si

funerandi iure praeditam.

Can. 1225 determines which churches may be chosen

for funeral services. They are parish churches and
churches of regulars, churches of advowson in favor of
the advowee, and any other church endowed with the ius
funerandi.
The first class, i. e., parish churches, were the exclusive
possessors of this right before the thirteenth century, ex
31
cept where the Popes had granted a special privilege.
The Friars Preachers and the Friars Minor obtained
such a privilege, and it was extended to all regulars by
way of communication.
32
Now it has ceased to be a mere
privilege but is common law. However, this law favors
only churches of regulars to the exclusion of other reli

gious, even though exempt.

The third class consists of churches which are subject
to the ius pa-tronatus, but only in favor of the patron or
advowee.
There is a fourth class consisting of such churches
as are expressly endowed with the ius junerandi.
The Code distinguishes between a church for funeral
services and a cemetery for sepulture. The two are not
identical. Ius funerandi, sometimes called jus sepeliendi,
or tumulandi, here means strictly the right to funeral
services, without the burial place. This is apparent from
the fact that the church is called ecclesia funeris, i. e.,
the church where the funeral service takes place.
Which churches have the ius funerandi besides those
mentioned in the text? Note two facts: (i) The
burial right is a strictly parochial right, and (2) all eccle-

SiCfr. c. 3, X, III, 28; c. 3, 6, III, 12.

32 Cfr. c. 2, Clem. Ill, 7.
 CANON 1225 129

siastical functions may be held in all public oratories and

also in semi-public oratories, unless excepted by the Ordi
33
nary. The funeral service is an ecclesiastical function.

Hence, unless the Ordinary forbids this function to take

place in semi-public oratories, funeral services may be
held there as well as in public oratories. This does not
interfere with strictly parochial rights because, as will be
seen under can. 1230, 4, these rights are safeguarded

by law.
Churches of nuns (monialimn) may not be used to hold
funeral services for outsiders. This was the traditional
34 35
practice of the Roman Court. However, female
servants, women who lived habitually within the enclos
ure of the convent for the sake of study, or because of
sickness, or as guests, may have their funeral services
performed in the nuns church. Moniales must here be
taken in the strict sense, excluding female religious with
simple vows only. This distinction is clearly based on
the nature of enclosure. Hence the many decisions

against the permissibility of funeral services and burial in

such churches. If anyone is buried in such a church, the
36
stole fees belong to the parish church.
Here may be
.added a decision concerning confraterni
ties inchurches of regulars. The members of these pious
societies must be buried from the parish church, unless

they have lawfully chosen the church of the regulars for

37
burial. Neither are tertiaries or oblates to be buried
from the church of the respective religious order, but

33 Cfr. can. 462, 5; can. 1191, Jan. 21, 1723, et pluries (Richter,
2; can. 1193- Trid., p. 462, n. 14).
34 Ferraris, Prompta Bibliotheca, 36 S. C. C., Nov. 28, 1711; July
s. v.
"

Sepultura," n. 137; Many, 28, 1731 (Richter, /. c., nn. 18 f.).

/. c., p. 301 f. 37 Innocent X, "Ex injuncto,"

35 Male servants are to be buried Feb. 22, 1645 (Richter, /. c., n.

from the parish church; S. C. C., 16); S. C. EE. et RR., March 13,
1744, ad 8 (Bizzarri, /. c., p. 364)-
 130 ADMINISTRATIVE LAW
their funeral services must be held in the parish church,
unless they have chosen another, i. e. f the church of the
38
regulars.
CAN. 1226
i. Ecclesiam funeris aut coemeterium sepulturae
quis eligere potest per se vel per alium cui legitimum
mandatum dederit; factamque electionem aut mandati
concessionem quolibet legitimo modo probare licet.
2. Si electio fiat per alium, hie suum mandatum
explere potest etiam post mortem mandantis.
Can. 1226 determines the manner in which the choice
of a funeral church or cemetery may be made, and how it
is to be proved. One may do this personally or through
another commissioned for that purpose. This choice is
39
similar to a last will. Hence 2 states that the manda-
tarius carry out the mandate either before or after
may
the death of the mandans or person who has made the
commission. Of course the mandatarius must abide by
the wording of the disposition.
The second clause of i says that the choice made, and
the fact of commission, may be proved in legal form.
Thus form which is required for a last will, in the
the

presence of two witnesses and a notary public, would cer

40
tainly be sufficient. Even two witnesses without a no
tary public, provided they testify under oath before the
41
parish priest, are admissible. In case the person should
be speechless, signs and nods which indicate his desire
42
shall not be rejected. Even the pastor s testimony, if it
is not in his own favor, is admissible. The Ordinary or
38 S. C. EE. et RR., Dec. u, 41 S. C. C., Dec. 19, 1739 (ibid.,

1615 (Bizzarri, /. c., p. 245). n. 9).

39 C. 13, x, III, 26. 42 S. C. C., Feb. 13, 1666, ad II
40 S. C. C., Feb. 13, 1666; April (/. c.)

24, 1723; July 4, 1722 (Richter, p.

461, n. 8).
 CANON 1227 131

the pastor may, if they wish, demand a document or proof

43
of the choice made before burial takes place. Synodal
acts may more closely determine the requisites of proof,
but if they contravene this canon, they have no force.
Thus the S. Congregation sustained a choice made by a
woman before her confessor, her father, and another wit
ness, though the synodal law required the presence of the
pastor, and the father of the woman was dead at the time
4*
of the trial.

CAN. 1227

Religiosi et clerici saeculares districte vetantur ue

quos ad vovendum, iurandum vel fide interposita seu
aliter promittendum inducant ut apud ipsorum eccle-
sias funus aut apud ipsorum coemeterium sepulturam
eligant, vel factam electionem non immutent; quod si
contra factum fuerit, electio aut immutatio sit nulla.

Can. 1227 strictly forbids all clergymen, whether secu

lar or religious, to induce any person to choose a particu
lar church for funeral service or cemetery for burial, or
to change his choice. If such an inducement was made,
the choice is null and void. Note, however, that this in
fluence or persuasion must be brought to bear on the per
son by vow
or oath, by pledging his word of honor, or by
simple promise. Our text is taken substantially from
the Decretals and contains only one penalty, to wit, the
45
nullity of the promise. It may also be noticed that only

clergymen are mentioned. This is done in order to pro

cure the necessary liberty to laymen and to prevent jeal
ousy and dissension among the clergy.
43 S. C. EE. et RR., Sept. 19, 45 C. i, 6, III, 12; C. 3, Clem,
1732, ad 2 (Bizzarri, p. 344 f.). V, 8: also interdict and excom-
44 S. C. EE. et RR., Feb. 6, munication.
1852 (ibid., p. 602 f.).
132 ADMINISTRATIVE LAW

CAN. 1228
i. Si electa fuerit sepultura in coemeterio diverse
a coemeterio propriae defuncti paroeciae, cadaver in
illo sepeliatur, dummodo nihil obstet ex parte eorum a

quibus coemeterium pendet.

2. Electa sepultura in coemeterio religiosorum,
ut cadaver inibi sepeliri queat, requiritur et sufficit
consensus Superioris religiosi, ad normam constitutio-
num cuiusque religionis.

Can. 1228 repeats in a somewhat different form the

enactment of Boniface VIII, mentioned above, concerning
the incineration or boiling of bodies. 46 The text merely
says that the body must be buried in the cemetery chosen
by the person, even though it be different from the ceme
tery of the parish to which the deceased belonged. How
ever, the authorities of the cemetery chosen by the de
ceased must give their, at least negative, consent. If the
cemetery thus specially selected belongs to religious, the
consent of the respective superior is required and suffices.
The superior is the one whom the constitution of the

religious point out as competent for giving the consent.

If the constitutions contain nothing to the contrary, or no
enactment at all on this subject, the local superior is cer

tainly competent.

ANCESTRAL TOMBS
CAN. 1229

i. Si quis, sepulcrum maiorum in aliquo coeme

terio possidens, non electa alibi sepultura, decesserit,
in eodem sepeliendus est, si illuc commode asportari

possit, salvo praescripto can. 1218, 3.

46 C. i, Extrav. Comm., Ill, 6.

 CANON 1230 133

2. Pro uxore attenditur sepulcrum viri, et, si

plures habuerit, sepulcrum ultimi.

3. Plura si sint maiorum aut viri sepulcra, de-
functi familia aut heredes sepulturae deligant.

i. If a person who has an ancestral tomb or

grave
in some cemetery dies without having chosen a burial
place somewhere else, the body, if it can be conveniently
transferred, must be buried there. The same holds good
if his family, heirs or friends insist upon burial in the
ancestral grave, and defray the expenses.
2. A
wife is to be buried in the ancestral tomb of
her husband and, if she had several husbands, in the an
;

cestral tomb of her last husband, always provided, of

course, that she had not chosen another burial place.

3. If there are several ancestral tombs or family

tombs, the family or heirs of the deceased may choose his

burial place. In Europe there used to be different ances
tral graves or tombs strictly family plots, where only
:

members of the family were buried hereditary tombs, in

;

which only heirs were buried, and mi.ved tombs for both
members of the family and heirs. 47 Our text allows the
family to choose between these different kinds of tombs
where they exist. The right to be buried in the ancestral
tomb also belongs to infants and children. 48 Hence can.
1209 cannot be urged in this case.

DUTIES AND RIGHTS OF PASTORS IN REGARD TO BURIALS

CAN. 1230

i. Proprius defuncti parochus non solum ius sed

etiam officium habet, excepto gravi necessitatis casu,
47 Many, /. c.

48 S. C. C., Oct. 21, 1613 (Richter, p. 461, n. i).

134 ADMINISTRATIVE LAW
levandi per se vel per alium cadaver, illud comitandi
ad suam ecclesiam paroecialem ibique exsequias per-
solvendi, firmo praescripto can. 1216, 2.

2. Quod si mors accident in loco alienae paroe-

ciae, etcadaver ad ecclesiam propriae paroeciae com
mode asportari possit, parochi proprii est, praemonito
parocho loci, illud levare, comitari ad suam ecclesiam
ibique exsequias peragere.
3. Si ecclesia funeris sit ecclesia regularis aliave

exempta a iurisdictione parochi, parochus, sub cruce

ecclesiae funerantis, cadaver levat ac deducit ad eccle
siam; sed exsequias rector ecclesiae celebrat.
4. Si vero ecclesia funeris non sit exempta a iuris
dictione parochi, celebratio exsequiarum, salvo pecu-
liari privilegio, pertinet non ad rectorem ecclesiae fu

nerantis, sed ad parochum in cuius territorio ecclesia

sita est, dummodo defunctus parocho subiectus fuerit.

Religiosas et novitias, in religiosa domo de-

5.

functas, ad clausurae limen deferant aliae religiosae;

indeque, si de religiosis agatur iurisdictioni parochi
non obnoxiis, ad propriam religiosae domus ecclesiam
vel oratorium deducit et exsequias peragit cappel-
lanus si de aliis religiosis, valet praescriptum
;
i ;

quod vero ad religiosas attinet extra domum defunc-

tas, serventur generalia canonum praescripta.
6. Defuncto S. R. E. Cardinali aut Episcopo ex
tra Urbem in civitate episcopali, servetur praescriptum
can. 397, n. 3.
7. Si cadaver mittatur ad locum ubi nee defunc
tus propriam paroeciam habebat, nee ecclesia funeris
legitime fuerat electa, ius levandi cadaver, peragendi
exsequias, si peragendae sint, et cadaver ad sepul-
turam deducendi, pertinet ad ecclesiam cathedralem
eiusdem loci; quae si desit, ad ecclesiam paroeciae in
 CANON 1230 135

qua coemeterium situm est, nisi aliud ferant loci con-

suetudo aut dioecesana statuta.

i. The pastor of a deceased Catholic is entitled and

obliged, unless excused by grave necessity, to go himself
or send a delegate (assistant priest, curate) to the house
to receive the body (levare corpus)** accompany it to
the parish church, and there to hold the exequies, with
due regard to can. 1216, 2. Needless to say, this is not
customary in our country, where distance often renders
it impossible to
comply with this ruling. Therefore the
law most reasonably adds excepto gravi necessitates casu*
:

2. person has died in a strange parish, and the

If a

body can be conveniently brought to his own parish, the

pastor has the right and duty to perform the ceremonies
described in I, after previously informing the pastor of

the parish where the person died. Thus, for instance, if

a person dies in a hospital or asylum located in a strange
parish, his or her pastor is entitled and obliged to
perform
the sacred rites, unless, of course, the hospital or asylum
50
enjoys exemption from the jurisdiction of the pastor.
3 draws a distinction between exempt and non-
exempt churches. In exempt churches the parochus
proprius may take up the body and accompany it to the
exempt church; but the cross behind which the funeral
procession marches must be that of the exempt church,
and the rector of the latter is entitled to hold the funeral
service. It required a great many decisions to make this
rule clear. If a church in charge of regulars was chosen
for the funeral service, the regulars had to invite the
pastor or chapter, and even accompany them to the

49 Levare corpus properly means performed by sprinkling the coffin

to raise or take up the body with Holy Water,
(compare: levare e sacro fonte), 50 S. C. C., June 22, 1907 (Anal*
and is used for the first funeral act Eccl., XV, 284 ff.).
136 ADMINISTRATIVE LAW
church. But if the pastor or chapter made the fathers
wait more than an hour, they could go to the house of
the deceased and conduct the funeral. The pastor or
chapter were allowed to sprinkle the body, but not to in
tone any antiphon or psalm, etc. In fact they had to re
main outside the church whilst the exequies were per
formed. 51 This last-mentioned ruling might reasonably
be revoked.
4. In non-exempt churches the celebration of the
funeral service belongs to the pastor in whose parish the
church selected for the funeral is located, provided the
deceased was a subject of his. Therefore the rector or
chaplain of the church in which the exequies are held
must make way for the parochus proprius of the de
ceased. If the latter refuses to perform the services
the rector or chaplain of the ecclesia funcrans may hold
them. 52 Thus, if a member of a confraternity which has
a public oratory within the limits of .a parish dies, the
pastor of the parish is entitled to hold the funeral services
in such public oratory, provided the deceased was his pa
rishioner. 53 If the deceased was not a parishioner of the

parish within the boundaries of which the ecclesia fune-

rans is situated, the chaplain of the confraternity may
54
perform the funeral rites. If the public oratory is situ
ated within the limits of a collegiate or cathedral parish,
the pastor, and not the first dignitary of the collegiate or
cathedral church, is entitled to perform the services, un
55
less the chaplain enjoys this right. This may be by
51 S. C. EE. et RR., Aug. 22, 53 S. Rit. C., Jan. 12, 1704, ad
1670; Sept. 23, 1735; April, 1717 20 (n. 2123).
(Bizzarri, /. c., pp. 263, 346 f.,
54 S. Rit. C., July 9, 1718, ad
304). 4; May 13, 17:9, ad 7 (nn. 2251,
52 S. Rit. C., Dec. 22, 1629 (n. 2263).
523). 55 S. Rit. C., Sept. 13, 1670, ad i

(n. 1409).
 CANON 1230 137

reason of exemption, or by a special privilege which is

sometimes given, especially to arch-confraternities.
5 treats of the burial of female religious and their
novices. If they die in their religious house, their bodies
must be brought to the threshold of the enclosure, whence
the chaplain conducts the funeral procession to the church
or oratory, where he holds the exequies. But the chap
lain is entitled to this privilege only if the religious are

exempt from the jurisdiction of the pastor. If they are

subject to the pastor in whose parish the religious house
is located, the latter is obliged and entitled to conduct the

funeral.
If sisters or novices die outside their religious house,
the common law takes effect. Canons appear to have
taken a particular interest in the funeral of moniales,
since the decisions, the substance of which is embodied in
our text, chiefly regard them. The confessor or chaplain
of nuns (with solemn vows) has the exclusive right of

accompanying the corpse from the threshold of the en

closure into the outer church, to hold the funeral service
there, and then to accompany the body -to the grave-yard.
If it is a custom of long standing that canons or other

priests are invited, they may continue to observe the cus

tom, but without prejudice to the confessor or chaplain,
who, on his part, should beware not to enter the papal
56
enclosure under pretext of a funeral service.
This, then, is the rule for all nuns or moniales, no mat
terwhether they are subject immediately to the Holy See
57
or to the bishops or prelates regular. The local Ordi
nary, according to can. 464, 2, may exempt certain reli

gious communities from the pastor s jurisdiction and place

56 S. C. EE. et RR., May 30, 20, 1641; May 10, 1805 (nn. 751,
1856; Sept. 17, 1858 (Bizzarri, /. c., 2559).
pp. 648, 657); S. Rit. C., April 57 S. C. C., Feb. 24, 1872 (A. S.
S., VII, 161 ff.).
138 ADMINISTRATIVE LAW
them directly under a chaplain appointed by him. 58 How
ever, it must be plainly understood and maintained that
the mere appointment of a chaplain does not derogate
from the rights of the pastor in the matter of burial. And
this is true of every non-exempt religious institute of
women, no matter whether approved by the Holy See or
59
by the Ordinary only. The consequence is that unless
the Ordinary formally exempts a religious community of
women, or of men, which belongs to the class of non-
clerical congregations, the pastor s rights in the matter of
burial must be sustained.
The last clause of 5, can. 1230, states that concern

ing female religious who die outside their religious house

the common law must be observed. What is the common
law on this point? No doubt that part of the present
title which affects secular persons, otherwise the text
would simply have referred to can. 1221, treating of male
religious. Therefore the pastor s rights are here still
more evidently safeguarded. But the question may not
be useless, whether such female religious are allowed to
choose their burial places. This, we believe, must be de
nied, for -the reason that they do not have their own will.
But the parish church or parish cemetery as well as the
ancestral tomb may safely be vindicated for them. For
the rest, a -religious community may claim the right
granted by can. 1218, 3.
Here it may be permitted to add a note which might
have been placed under can. 1221, but also fits here. If a
religious who has been pastor or teacher for years, were
buried in the place of his activity, we believe it would not
"

be reprimanded by the lawgiver, because convenient

might suffer on account of discontent on the
"

conveyance
58 Cfr. can. 514, 3, 4.
69 Leo XIII, Conditae," Dec. 8,
"

1900, II, n. 8.
 CANON 1231 139

part of the people. Piety also has its claims, provided, of

course, that the distance between the religious house and
the deceased person s last residence amounts to a good
many miles, and the superior s permission is obtained.
6. When a cardinal or bishop dies outside the city
of Rome, in his episcopal city, the cathedral canons shall
60
provide an appropriate funeral service and burial.
Note that any cardinal of the Holy Roman Church,
whether he was bishop of the city or diocese in which he
lived, or not, is entitled to this honor.

7. If a corpse is sent to a place where the deceased

person neither had parish rights nor had chosen a burial

place, the conduct of the funeral belongs to the cathedral
church of that place; supposing, of course, the body
was shipped to the episcopal city; for if the corpse is sent
to another city, the clergy of the parish in which the ceme

tery is located must attend to the funeral, unless custom

or diocesan statutes decide otherwise.

BURIAL

CAN. 1231

i. Expletis in ecclesia exsequiis, cadaver tumu-

landum est ad normam librorum liturgicorum in coeme-
terio ecclesiae funeris, salvis praescriptis can. 1228,
1229.
2. Qui exsequias in ecclesia peregit, non solum
ius,sed etiam officium habet, excepto gravi necessitatis
casu, comitandi per se vel per alium sacerdotem cada
ver ad locum sepulturae.

After the exequies held in church, the body must be

buried in the cemetery of the church in which the service
60 Can. 397, n. 3.
140 ADMINISTRATIVE LAW
was held, unless the burial in another cemetery or the
ancestral tomb was chosen by the deceased. The officiat

ing priest or his substitute is entitled and obliged to ac

company the casket to the grave-yard. The bishop cannot
issue synodal acts or diocesan statutes forbidding the of

ficiating clergy to accompany the funeral procession.

Nor may the cemetery chaplain take care of all the bodies
that are brought to the cemetery. The clergy should not
discriminate between rich and poor, but accompany all
alike,no matter what the distance, 61 provided, of course,
the cemetery belongs to the parish. Exception is made in
cases of grave necessity. Such a necessity would be
physical indisposition of the clergyman or perhaps a
long-standing tradition against accompanying funeral
processions, based on the fact that they gave rise to dis
turbances. If the clergy does go to the grave-yard, sur

plice and stole,or at least the stole, should be made use

62
of.
We may add that religious who have lost their con
vent by suppression, but continue to officiate in their for
mer church, have the right of performing the funeral
63
service and conducting corpses to the grave.

FUNERAL PROCESSIONS
CAN. 1232

i. Sacerdos qui cadaver comitetur ad ecclesiam

funeris vel ad locum sepulturae, libere transire poterit,
cum stola quoque et cruce elevata, per territorium
61 S. C. C., Jan. 26, 1907 (Anal. fers to the stole; the latter cus-

Eccl., XV, 12 ff.). torn is therefore admissible.

62 S. C. P. F., Sept. 12, 1884, ad 63 S. C. EE. et RR., May 7, Sept.
II (n. 3619) mentions stole and 17, 1880 (A. S. S., XIII, 409 ff.) ;

surplice, but S. Rit. C., April 23, S. Rit. C., Sept. 12, 1884 (

1895, ad II (n. 3854), only re- 3619)-

 CANON 1233 141

alius paroeciae vel dioecesis, etiam sine parochi vel

Ordinarii licentia.
2. Si cadaver tumulandum sit in coemeterio ad
quod commode asportari nequeat, parochus vel rector
ecclesiae funeris nequit sibi vindicare ius illud comi-
tandi extra fines civitatis vel loci.

i. The priest who conducts a body to the funeral

church or the grave-yard is entitled to pass with stole and
raised cross through a strange parish or diocese, without
the permission of either pastor or Ordinary. The term
" "

cruce elevata
is chosen in order to do
away with the
presumption that when passing through strange territory,
the cross had to be lowered, to show subordination or at

acknowledgment of the jurisdiction of the pas

least tacit
tor through whose district the procession wended its
way. This right belongs also to regulars when they con
duct a funeral through strange territory. 64 The pastor
has the same right, even when the cathedral chapter is
present. If the funeral procession has to pass through
65
strange territory, the shortest route should be taken, in
**
order not to provoke others or make a show."
2. The right of accompanying the body outside the
city or town limits cannot be claimed in case the corpse is
to be buried in a cemetery to which it cannot conveniently
be transported, for in that case the whole funeral proces
sion might easily turn into a farce.

MOURNERS AND EMBLEMS

CAN. 1233
i. Nequit parochus, sine iusta et gravi causa ab
64 S. C. EE. et RR., Nov. 24, 65 S. Rit. C., April 23, 1895 (n.
1713 (Bizzarri, /. c., p. 301); Sept. 3854).
17, 1880 (A. S. S., XIII, 410).
142 ADMINISTRATIVE LAW
Ordinario probata, excludere clericos saeculares, reli-
giosos ac pia sodalitia quae familia vel heredes advo-
care velint ad deducendum cadaver ad ecclesiam fu-
neris et ad sepulturam, et assistendum funeri; clerici
tamen ipsi ecclesiae addicti a familia vel heredibus
prae aliis omnibus invitari debent.
2. admittantur societates vel insignia
Nunquam
religioni catholicae manifeste hostilia.
3. Associantes cadaver tenentur morem gerere
parocho circa ductum funeris, salvis uniuscuiusque
praecedentiae iuribus.
4. Laici cadaver, generis aut dignitatis cuiusvis
ille fuerit, clerici ne deferant.
I. Except for a weighty and just reason approved
by the Ordinary, the pastor has no right to prevent secu
lar or religious clerics, or pious societies whom the fam

ilyor the heirs wish to invite, from accompanying the

body to the church and grave-yard and assisting at the
funeral. But the clergy of the respective church should
be invited above all others by the family of the deceased

or his heirs.
Confraternities and regulars, in particular the Friars
Minor, h^d often to recur to the Roman Court to defend
the right enunciated in our text. The pastor must consult
the Ordinary to judge whether reasons for non-compli
ance are just and weighty. But the Ordinary has no
either confra
right to issue synodal decrees forbidding
ternities or regulars to accompany the funeral procession,
if (at least implicitly) invited by the family of the
de
ceased.
66
the cathedral chapter should not have
Even if

been invited, the members of a confraternity may be

66 S. C. EE. et RR., Nov. 24, 1629; April 22, 1633; Jan. 14, 1640;
1713; May 13, 1744 (Bizzarri, /. c., Dec. 7, 1641 (nn. 516, 604, 696,

p. 307, 363), S. Rit. C., Aug. 18, 784)-

 CANON 1233 143

called and assist. The invitation to regulars or mem

67

bers of a fraternity may be issued by the family or heirs

without the pastor s knowledge. 68 No definite or pro
portionate number of
regulars, seculars and confraternity
69
members is
prescribed. Nor is it required that the secu
lar clergy should be invited before the regulars. 70 When
the regulars are called by the family to accompany a fu
neral which is to take place in the cathedral church, they
71
are allowed to enter it.These are the most important
decisions rendered in this matter. A timely admonition is
that of the last clause of our section to show respect to
one s own clergy.
2. No societies or emblems manifestly inimical to
the Catholic religion are to be admitted. Concerning the
emblems of Masonic lodges for these are here chiefly
intended the Holy Office has decided as follows: Ec
may be given only to such members
clesiastical sepulture
of a condemned sect as have received the sacraments and
have not, after receiving them, demanded to be buried
with or under these insignia, or have formally retracted
their desire. If such emblems are placed on the coffin

against the will of the deceased, they must be removed

before the funeral starts (ante associationem cadave-
72
m). The same rule applies to banners or stand
ards.
\
3. Those who accompany the funeral must obey the
\ orders of the pastor concerning the arrangement of the
\funeral cortege, with due regard, of course, to the rights
67 S. Kit. C., June 8, 1630 (n. 70 S. Kit. C., Nov. 22, 1643 (n.
533). 852).
68 S. C. EE. et RR., Dec. 10, 1729 71 S. C. EE. et RR., April 13,
(Bizzarri, /. c., p. 340). 1723 (Bizzarri, /. c., p. 313).
60S. C. EE. RR., Nov. 24,
et 72 S. O., Dec. 2, 1840; July 5,
1713; May 13, 1744 (Bizzarri, /. c., 1878 (Coll. P. F,, nn. 915, 1495).
PP. 301, 363).
144 ADMINISTRATIVE LAW
of precedence. The pastor may decide in which direction
or through which streets the funeral procession should
march. 73 Concerning regulars and members of confra
ternities, it has often been decided that they should not
join the funeral procession at some corner, but should
meet at the church and join the rest of the clergy and
march together with them. 74
As to precedence, the general rule is that the pastor
" 75
takes the last place in the procession.
precedes," i. e.,

However, if the cathedral chapter or, where custom ad

mits, the collegiate chapter assists in a body, it marches
behind the pastor. In that case the first dignitary of the
chapter should wear stole and cope, whilst the pastor
wears only the stole (and surplice). 76 With regard to the
rest of the clergy, secular and religious, the general rules
of precedence, as laid down and explained under can.
1 06 and 491, must be observed.

Clerics shall never act as pall-bearers for a de

4.
funct layman, no matter what his rank or dignity may
have been. The reason
because the clerical dignity
is

transcends every secular rank and degree.

FUNERAL FEES
CAN. 1234
Loco rum Ordinarii indicem funeralium taxa-
i.

rum seu eleemosynarum, si non exsistat, pro suo terri-

torio, de consilio Capituli cathedralis, ac, si opportu-
num duxerint, vicariorum foraneorum dioecesis et
parochorum civitatis episcopalis, confidant, attentis
et omnibus
legitimis consuetudinibus particularibus
73 S. Rit. C, Dec. 19, 1671, ad 5 75 S. C. C., May 12, 1635; May

(n. 1440). 14, i 6 44 (Coll. P. F., nn. 82, in).

74 S. Rit. C., Sept. 7, 1670; April 76 S. Rit. C., April 23-, 1895, ad
(nn. 1408, 3080). Ill (n. 385,,).
8, 1854
 CANON 1235 145

personarum et locorum circumstantiis in eoque pro ;

diversis casibus iura singulorum moderate determi-

nent, ita ut quaelibet contentionum et scandali remo-
veatur occasio.
2. Si in indice plures classes enumerentur, libe-
rum est iis quorum interest classem eligere.

CAN. 1235

i. Districte prohibetur ne quis, sepulturae vel

exsequiarum seu anniversarii mortuorum causa, quid-
quam exigat ultra id quod in dioecesano taxarum in
dice statuitur.
2. Pauperes gratis omnino ac decenter funeren-
tur et sepeliantur, cum exsequiis, secundum liturgicas
leges et dioecesana statuta, praescriptis.
i of can. 1234 provides that the local Ordinaries
shall,each one for his own territory, draw up a list of fu
neral fees, if none such exists, with the advice [not con

sent] of the Cathedral chapter, and, if deemed advisable,

with the cooperation of the rural deans and pastors of the
episcopal city. In drawing up this list they shall take into
account the lawful customs of the district as well as the

circumstances persons of The stole fees

and times.
should be moderate and so determined that every occa
sion for quarrel and scandal is removed.
2. If the list contains several classes of funeral

]
services, arranged by degrees, those interested may choose
any of these.
But, says can 1235, i, no clergyman may demand
more than is officially allowed for burial or funeral serv
ices or anniversaries.
2. The poor shall by all means be given a decent
funeral and burial, inclusive of the exequies, free of
 146 ADMINISTRATIVE LAW

charge, according to the sacred liturgy and the diocesan

^statutes. Alexander VII and Clement X enjoined espe
ciallyon the missionaries of the East Indies, that they
should bury the poor gratis, and not go about among the
"

77
neighbors and relatives to beg alms for this purpose.

PORTIO PAROECIALIS

CAN. 1236

i. Salvo iure particular!, quoties fidelis non fu-

neratur in ecclesia paroeciali propria, proprio defunct!
parocho debetur portio paroecialis, excepto casu quo
cadaver in ecclesiam propriae paroeciae commode as-
portari nequeat.
2. Si quis habeat plures paroecias proprias ad

quas cadaver commode deferri posset, et alibi fune-

retur, portio paroecialis dividenda est inter omnes
parochos proprios.

CAN. 1237
Detrahi debet portio paroecialis ex omnibus et
i.

solis emolumentis, quae statuta sunt pro funere et

tumulatione in taxa dioecesana.
2. Si quacunque de causa primum sollemne of-
ficium funebre non statim, sed intra mensem comple-
tum a die tumulationis fiat, licet hoc die non defuerint
minora publica paroecialis
ofHcia, portio tamen ex
huius etiam funeris emolumentis debetur.
Quantitas portionis paroecialis determinetur
3.
in taxa dioecesana et si ecclesia paroecialis et ecclesia
;

funerans ad diversas dioeceses pertineant, quantitas

77 Alexander VII,
"

Sacrosancti," IX," In excelso," Sept. 13, 1669,

Jan. 18, 1658, 2, n. 19; Clement n. 19-

 CANON 1237 147

portionis paroecialis attenditur secundum taxam eccle-

siae funerantis.

i. The quarta funeris, or pastor s portion, must be

given to the deceased s pastor if the funeral is not held in
the parish church. There is no exception to this rule un
less a particular law provides otherwise or unless the body
cannot conveniently be brought to the deceased s own
parish church.
2. If the deceased had several parish churches, to
which his body might be carried, yet is buried elsewhere,
the pastor s portion must be divided among the differ
ent pastors.
Our Code portion due to the pastor portio
calls the

paroecialis. Formerly it went by the name of portio

canonical because established by the canons, or quarta

funeris because one-fourth of all funeral offerings,

either in alms or candles, belonged to the parochus pro-

prius. It was justly considered meet that he who nur

tured the deceased whilst living, should also receive his

due on the occasion of his funeral. 80 The pastor s por
tion, therefore, is nothing but a material token of grati
tude and respect.
The
text says, quoties, e. whenever a deceased pa
i. t

rishioner is buried in or from a church other than his

own parish church, no matter whether he himself made
the choice or the family had him buried in the ancestral
81
chapel or tomb. Even the canons of cathedrals and
collegiate churches owe the portio canonica to their own
church within the boundaries of which they had their
domicile or quasi-domicile, though they may be buried in

78 C. 4, x, III, 28; c. 2, 6, III, soCfr. cc. i, X, III, 28; c. 2,

12. Clem., Ill, 7.
79 Trid. Sess. 25, c. 13, dc ref. 81 C. i, X, III, 28.
148 ADMINISTRATIVE LAW
82
their own But no pastor s portion is to be
cemeteries.

paid by male religious or nuns whose superior or con

fessor performs the funeral service. 83 Nor does it ap
pear proper that female religious should pay the quarta,
even though their members die outside the religious
house. Yet the law would seem to permit the pastor to
demand it, because can. 1230, 5, provides no exception
for them.
2 says that if one had several parishes, all the pastors
concerned are entitled to an equal share of the portio
paroecialis. If vagi are buried, the quarta need not be
84
paid.
Can 1237, i, determines the offerings, and the quan

tity of the same, from which the pastor s portion is to be

deducted. All the fees established by synodal decree for
funerals and burials are to be rated for subtracting the
pastor s portion. The question is reduced to simple terms
where the funeral fees are clearly fixed. Note the term
for funeral and burial (pro funere et tumulatione) . We
generally include both in the name funeral service, to wit,
the service in church and at the grave. No doubt this is
the intention of the lawgiver. Hence it is not customary
to make an itemized statement for the use of candles,
torches, utensils, etc. Neither is the pastor s share to be
deducted from the celebration of the third or seventh day,
or the month s mind." 85 Nor is any free offering which
"

the family may make to the priest who accompanies the

86
body to the grave, to be taxed or shared by the pastor.
Nor are pastors to demand a larger share if the burial

82 S. C. C., Sept. 12, 1699; i 85 S. Kit. C., July 24, 1638 (n.
and 22 March, 1766. 649).
83 Cfr. Many, /. c. t p. 322. 86 S. C. EE. et RR., Sept. 17,
84 C. 2, 6, III, 12; S. C. C, 1880 (A. S. S., XIII, 4-21).
Nov. 29, 1851; Many, /. c., p. 324.
 CANON 1237 149

takes place in or from a church of regulars, than when it

87
is held from a church in charge of secular clergy.

2. If, for any reason, the solemn funeral service is

held, not immediately, but within a month from the date
of the burial, the pastor s share must be paid from the
fees received for that solemn, though belated, service.

Suppose a man dies on Sept. I, and his body is taken

either to the door of the church, or directly to the ceme

tery, where the grave is blessed by the priest because the

civil authority for some reason or other would not permit
the corpse to be taken into the church. On Oct. i r
the exequies are held, with Mass and absohitio ad ~tum-
bam. Now, if these exequies are held in a church which
was not the deceased s parish church, and by a priest who
was not his pastor, and the regular stole fee is paid, the
88
pastor would be entitled to his share. But the stole fee
was supposed to have been offered only for the solemn
function, which means not a sung Mass, but the funeral
service, with either low or high Mass, and the absolution
or Libera. For minor services, such as accompanying
the body to the grave and blessing it, or even a private
Mass, are not liable to the portio paroecialis. The mean
ing of the text, therefore, is that the pastor is entitled to
his share of the fees even if the full funeral service is
held a month from the date of burial.
4. The quantity of the pastor s portion should be
determined by the synodal tax. If the parish church and
the funeral church are different and belong to different
dioceses, the portio poroecialis must be refunded accord
ing to the tax established in the funeral church.
It may not be amiss to add here a decision which is

87 S. C. C., April 3, 1745 23, 1907 (Anal. Eccl., XII, 330;

(Richter, /. c., 463, n. 27). XV, 58 ff.).
88 S. C. C., July 29, 1905; Feb.
150 ADMINISTRATIVE LAW
Very appropriate, and we dare say, very reasonable. It
is to the effect that where there is an immemorable cus

tom between parish churches of not demanding the quarta

funeris, it should be observed. 89 This permits us to say
that the Code is not against such a custom, as is evident
from the clause placed in i, can. 1236: salvo iure
"

particular^ and we believe it would be conducive to

peace and charity if this quarta funeris would be relaxed,
especially with regard to religious, because they, too,
work for the benefit of the diocese and religion in
gen
eral and help the secular clergy.

RECORDING OF DEATHS

CAN. 1238

Expleta tumulatione, minister in libro defunctorum

describat nomen et aetatem defuncti, nomen parentum
vel coniugis, tempus mortis, quis et quae Sacramenta
ttiinistraverit, locum et tempus tumulationis.
After the funeral services the minister shall enter m
the book of the dead the name and age
of the deceased,
the name of the parents or consort, the date of death,
who administered the. Sacraments, what Sacraments, and
the place and date of the funeral. 90

89 S. C. C., Feb. 9, 1732 90 The formula in the Rituale

(Richter, /. c., p. 463, n. 28). Rom., tit. X, c. 2, n. 7.
 CHAPTER III

ECCLESIASTICAL BURIAL, TO WHOM GRANTED OR DENIED

TO WHOM GRANTED

CAN. 1239

i. Ad sepulturam ecclesiasticam non sunt admit-

tendi qui sine baptismo decesserint.
2. Catechumeni qui nulla sua culpa sine baptismo
moriantur, baptizatis accensendi sunt.
3. Omnes baptizati sepultura ecclesiastica do-
nandi sunt, nisi eadem a iure expresse priventur.
i. Baptism, being the Sacrament of initiation and
sign of communion with the Church and membership in,
the same, is the fundamental condition of receiving a
Catholic burial. Baptism may be received by desire
baptismus naminis and this is generally supposed in
those who had received instructions in the faith (catechu-,
mens). Hence our canon in its first section states that no
person who
has died without Baptism may be admitted to
ecclesiasticalburial. This includes even unbaptized in--
fants, though it is generally admitted that a child not yet
born may be buried together with the mother in conse
crated ground. 1 Besides, it appears, at least to many,
very awkward and offensive if thislaw should be applied
to burial in the ancestral grave. Yet, unless non-compli-
1 Cfr. Many, /. c., p. 353.
151
152 ADMINISTRATIVE LAW
ance must be tolerated in order to avoid greater evils, the
law should be enforced. 2
2. Catechumens, or such as are preparing to em
brace the Catholic faith, may be given ecclesiastical burial,
if they have died without baptism
through no fault of
their own. For they are to be compared to baptized per
sons. 3 Thus if a would-be convert would die suddenly,
with no priest at hand, as may happen in places which
missionaries seldom visit, he could receive ecclesiastical
burial.

3 says that, although one may be baptized, he must

be deprived of ecclesiastical burial if he has been ex
pressly declared worthy of that penalty in law. For ec
clesiastical burial is a sign of honor and respect given by
the Church to her dead children, and a consolation and
favor to the living. Denial of that favor must be looked
upon as a post mortem penalty for the dead, and a warn

ing to the living.

However, being a penalty, the denial of ecclesiastical
burial must be strictly interpreted, and not extended
beyond the cases stated in the law. These now fol
low.

TO WHOM ECCLESIASTICAL BURIAL MUST BE DENIED

CAN. 1240

i. Ecclesiastica sepultura privantur, nisi ante

mortem aliqua dederint poenitentiae signa:
i. Notorii apostatae a Christiana fide, aut sectae
haereticae vel schismaticae aut sectae massonicae
aliisve eiusdem generis societatibus notorie addicti;
2 S. O., Jan. 4, 1888, where n. maiora mala; S. O., March 30,
389 of Cone. Bait. II is explained 1859 (Coll. P. F., n. 1173)-
as mere tolerance ad praecavenda 3 Cfr. c. 2, x, III, 43.
 CANON 1240 153

2. Excommunicati vel interdict! post sententiam

condemnatoriam vel declaratoriam ;

3. Qui se ipsi occiderint deliberate consilio;

4. Mortui in duello aut ex vulnere inde relato;
5. Qui mandaverint suum corpus cremation! tradi ;

6. Alii peccatores publici et manifest!.

2. Occurrente praedictis in casibus aliquo dubio,
consulatur, si tempus sinat, Ordinarius; permanente
dubio, cadaver sepulturae ecclesiasticae tradatur, ita
tamen ut removeatur scandalum.

i. Unless they have given signs of repentance be

fore death, the following are deprived of ecclesiastical
burial :

i. Notorious apostates from the Christian faith and

persons who notoriously belonged to a heretical or schis-
matical sect, or to the Masonic sect, or to other societies
of the same kind.
The term apostates evidently includes pagans and Jews
as well as infidels or unbelievers who have fallen away
from the Christian faith and whose defection is notorious.
A Catholic who was an unbeliever, but not known as such
to others, because he kept his unbelief to himself, or ex

pressed himself only to the one or other friend, who kept

the secret, could be buried ecclesiastically. For notoriety
implies public knowledge, or such as could not be con
4
cealed by any artifice.
Heretics and schismatics are those who have pertina
ciously forsaken the Catholic faith or abjured obedience
5
to the Pope. Heresy and schism, too, must be notorious
to have the effect here under consideration. What was
said of apostates applies also to heretics and schismatics.
4 Can. 2197, 30; Cfr. c. 12, x, III, 28.
5 Can. 1325, 2.
 154 ADMINISTRATIVE LAW
Thus a non-Catholic may be taken for a Catholic, because
he acts like one, although he is not convinced of the truth
of every Catholic dogma. Such a one might be given
ecclesiastical burial, provided, of course, that his heresy
was not notorious and he desired such a burial. The rea
son lies in the fact that by Baptism he belonged to the

body of the Church, and in his mind may even have be

longed to the soul of the Church.
The next class is that of members of Masonic sects.
The adjective damnatae
" "

being omitted, appears that it

all Masonic rites are included. Eiusdem generis means

all societies whose principal purpose is to promote crema
6
tion, or which have tendencies similar to those of Free
masonry.
What is to be done if the relatives or friends of such a
person upon his receiving ecclesiastical burial? If
insist

the priest was called and found the patient unconscious

or speechless, the relatives or friends must tell the priest
that the sick man had desired to see a priest and gave
7
signs of repentance. Besides, the body of the deceased
must not be carried into the Masonic hall or temple. If
this was desired by the deceased himself, ecclesiastical
burial must be denied, but if the Masons carry the coffin
against the will of the defunct, ecclesiastical burial may
be granted. 8
2. Persons excommunicated and interdicted after a
condemnatory or declaratory sentence. The text requires
that a sentence of excommunication or interdict has been

pronounced. Whether this sentence be one declaring that

the person had de facto incurred excommunication, or
one directly inflicted by the ecclesiastical judge, is of no
6 S. O., Dec. 15, 1886 (Coll. P. 8 S. O., Aug. i, 1855 (ibid., n.

F., n. 1665). 1116).

7 S. O., Sept. 19, 1877 (ibid.,
to.
148,3).
 CANON 1240 155

importance. It is also immaterial whether the excom-

municatus be vitandus or only tolerandus. Stress, how

ever, is laid on the sentence. 9 The interdict is here to
be understood of the personal interdict, which requires a
declaratory or condemnatory sentence and is generally
10
accompanied by a personal sentence.
3. Those who have deliberately killed themselves.
As a rule, says the Holy Office, 11 those who commit sui
cide from despair or in wrath (desperatione vel iracun-

dia) cannot be given ecclesiastical burial. But when in

sanity has been proved, or was evident, and attested by
the verdict of a conscientious physician, ecclesiastical
sepulture is permitted with all its ceremonies. When
there is a doubt as to the suicide s mental state, ecclesi
astical burial may be granted, but all pomp and solemn
exequies must be avoided. This would mean that the
funeral service may be held from the church, but that the
Requiem Mass should be omitted, as well as preaching,
for this is certainly a species of
"

pomp." A private
Mass may be said.
4. Those who died in a duel or from a wound re
ceived in a duel. The term duel (duellum, monoma-
weapons which takes
chia) signifies a contest with deadly
place by agreement between two persons on account of
some private quarrel. 12 Hence our prize-fights, in which
no deadly weapons are used, and bull-fights, cannot be
styled duels. It is otherwise with the so-called
"

Men-
"

suren of students and officers, as practiced chiefly in

Austria and Germany. 13 This
"

detestable custom," as it

9 "

Ad evitanda," of Martin V, 11 S. O., May 16, 1866 (Coll.

1418, cannot be interpreted, as P. F., n. 1290).
Many does (/. c., p. 354), so as to 12 Cfr. Cath. Encycl., V, 184 ff.
admit tolerandi; see can. 2259 f. 13 S. C. C., Aug. 9, 1890 (Coll.
IOC. i, Clem. Ill, 7. P. F., n. 1739).
 156 ADMINISTRATIVE LAW
14
is by the Council of Trent and Benedict XIV, was
called
and still is wide-spread, especially in Teutonic countries,
where it also had its origin in pagan times. The Church
tried to eradicate this savage custom and inflicted severe
15
penalties on the perpetrators. One of these is precisely
the denial of ecclesiastical burial.
Our text says that only those who died in the act of
duelling, or from a wound received in a duel, are to be
deprived of ecclesiastical burial. Benedict XIV, in a
well-known Constitution, uses a similar expression: a
"

decedente quoque extra conftictus locum ex vulnere

ibidem accepto" Therefore a connection between cause
and effect must be maintained. In other words, the
wound received in a duel must be the cause of death.
And it seems that a direct cause is required, for it may be
that a wound
received in a duel causes some other disease,
after a time, and in this case we hardly believe that the

penalty could be sustained.

5. Those who ordered their body to be cremated.
Of enough has been said under can. 1203, 2. Such
this

persons must have retracted their order before death,

otherwise they cannot receive ecclesiastical burial.
6. Other public and manifest sinners. This phrase
is rather wide, but may be contracted to a few categories

in the light offormer legislation. By sin must here be

understood a delictum publicum, or crime, which is such
intrinsically as well as in the eyes of sensible persons.
To this class belong: (a) manifest and public usurers and
16
robbers, unless they have made restitution public ;

profiteers and bank or train robbers; (b) those who ac-

14 Sess. 25, c. 19, de ref.; Bened. 5, 1582; Clement VIII, "

Illius

XIV,
"

Detestabilem," Nov. 10, vices," Aug. 17, 1592.

1752. 16 Cfr. cc. 3, 5, x, V, 19; c. 2,

15 Cfr. cc. i, 2, x, V, 13; Greg- x, V, 17; c. 2, 6, V, 5.
ory XIII "Ad tollendum," Dec.
 CANON 1240 157

tually Ivue a sinful and scandalous life, e. g., in public

concubinage, or conduct a notoriously meretricious trade,
or panderage 17 (c) those who have habitually violated
;

the precepts of annual confession and communion. As to

18
the last-named class of persons the Roman Ritual says
that their fault which means that they
must be evident,
must have omitted their Easter duty for several years and
be known to the faithful as having been guilty of serious
19
neglect.
Note that all the persons mentioned under n. 1-6 are
deprived of ecclesiastical burial only they have given noif

signs of repentance. If they have given such signs, they

may be buried like faithful Catholics, because it is the

desire of the Church that all should return to God s

grace by contrition and be restored to communion with

the mystic body of Christ. 20
Signs of repentance would be kissing the crucifix, acts
of devotion, oral prayers, etc. But these signs, especially
in case of public sinners, must be known and divulged to
the bystanders and the faithful. If this has been done,
ecclesiastical burial may be given but if possible, pomp ;

and solemn exequies should be omitted. 21

Benedict XIV excluded duellists from ecclesiastical
burial, even when they had given certain signs of pen
ance. 22 This too rigorous clause has been softened in
our code, as is manifest from the position of the phrase,
})
"

nisi ante mortem aliqiia dederint signa poenitentiae.

2. It may be in the six cases mentioned that the
pastor has a doubt, for instance, concerning a suicide, or a
wound received in a duel, whether it was the direct cause
IT Cfr. Many, /. c., p. 361. 20 S. O., Aug. i, 1855 {Coll. P.
18 Tit. II, c. 2, n. 6; c. 12, x, F. n. 1116).
V, 38. 21 S. O., July 6, 1898 l^biW.. n.
19 Many, /. c., p. 360. 2007).
22 "

Detestabilcm," g.
158 ADMINISTRATIVE LAW
of death. If time permits, he should inform the Ordi
23
nary and abide by his decision. If the doubt remains
even after the pastor has been advised by the Ordinary,
ecclesiastical burial may be granted, provided no scandal is
given. Scandal may be removed by divulging the fact
that the deceased gave public signs of repentance, or that,
for instance, the suicide was committed in a moment of
mental aberration according to the physician s verdict.

CAN. 1241

Excluso ab ecclesiastica sepultura deneganda quo-

que sunt turn quaelibet Missa exsequialis, etiam anni-
versaria, turn alia publica officia funebria.

For those who have been deprived of ecclesiastical

burial no [public] Requiem Mass, no anniversary, or
other public funeral service may be held.
We enclose the word public
" "

within brackets, but it

no doubt expresses the intention of the legislator. For
private Masses may be said for any of the persons men
tioned under n. 1-6, provided there be no communicatio
in sacris. Thus it has been decided that a private Mass
may be said for one who ordered his body to be cre
mated. 24 In cases of doubt the Ordinary, who has to
be consulted in the matter, may grant permission to have
25
solemn funeral services if he deems it expedient.
23 S. O., July 6, 1898 (/. c.); 25 S. O., Sept. 19, 1877; Dec. 15,

Sept. 19, 1877 (/. c., n. 1483). 1886; July 6, 1898 (ibid, nn. 1483,
24 S. O., July 27, 1892 ad II 1665,2007).
(Coll. P. F., n. 1808).
 CANON 1242 159

EXHUMATION OF CORPSES
CAN. 1242

Si fieri sine gravi incommodo queat, cadaver excom-

municati vitandi qui, contra canonum statuta, sepul-
turam in loco sacro obtinuit, exhumandum est, servato
praescripto can. 1214, i, et in loco profano de quo in
can. 12 12, reponendum. /7y jj

If can be done without great inconvenience, the body

it

of an excommunicatus vtiwydttS, who obtained burial in

sacred ground against the law, should be exhumed, with
the permission of the bishop, 26 and be buried in a lot
27
especially assigned for that purpose.
26 Can. 1214, i.

27 Can. 1212; see c. 12, x, III, 28.

*M~ "^t*

,^L/ ^*?*w4i^
^D
/ <;

\/v^/L>^~
//
 SECTION II

HOLY SEASONS
CAN. 1243

Tempora sacra sunt dies festi; iisque accensentur

dies abstinentiae et ieiunii.

Holy seasons are feastdays; to them must be added

days of abstinence and fast.
Already in remote antiquity civilized people found a
call to the worship of God in the changing seasons.
Sacred times and places are common to all religions.
The change of seasons, bringing with it changes in na
ture, made a religious impression upon mankind. Man
sanctified certain seasons and dedicated them to God.
The days thus consecrated to God were known as festi
vals. They were marked by two features rest from :

labor or worldly affairs, and consecration to the worship

of God. The first was expressed in the ancient Roman
term feria. Both ideas are contained in the Hebrew
word sabbath, which means a day of rest and sanctifica-
tion. The Church did not at first change the Sabbath of
the Jewish calendar, at least we have no evidence thereof.
But gradually the prima sabbati or first day of the Jewish
week commenced to be held in honor as the day of the
*
resurrection of Christ and was called the Lord s Day
(dies dominica). Besides these weekly recurring festi

vals there were others to commemorate the chief events

1 Cfr. Apoc. i, 10.

160
 CANON 1243 161

in the life of the Lord. Among these in the order of

time, Easter holds the first place. Gradually were de
veloped all the feasts as we have them now, forming that
rich and carefully thought out system of feasts which is

proper to the Catholic Church. 2 The old Canon Law

contains two lists of festivals, the one presenting the state

of things in the twelfth, 3 the other that in the thirteenth

4
century. In the course of centuries the number of feasts
increased, so much so, in fact that their multitude led to
a reaction on the part not only of civil governments but
5
also of bishops. Pope Urban VIII revised the list. The
6
present arrangement was made by Pius X.
As to days of fast and abstinence it must be said that
the fast before Easter seems to be the most ancient of all.

But duration varied according to localities.

its Some
fasted one day, others two, and yet others many days,
whilst some simply observed a fast of forty hours. The
forty days fast became the rule at Rome in the seventh

century, and was soon adopted throughout the West, ex

cept at Milan. In the eighth and ninth centuries an in
crease took place in the number of fasting vigils, nearly
7
all the feasts, especially those of the Apostles, obtaining
the dignity of a vigil. The embertides were said to be of

Apostolic origin by Leo the Great, but there is no docu

ment testifying to the feriae observed as embertides ear
lier than the Liber Pontificalis. 8
There were originally
three. In St. Leo
day four embertides were observed.
s

The present arrangement was made by Gregory VII and

is distinctly Roman. 9
2 See Kellner, Heortology (Eng. 1 Funk, Manual of Church His-
tr.) 1918, Introduction. tory, 1913, Vol. I, pp. 74, 296 f.; II,
3 C. i, Dist. 3 de cons. 164.
4 C. 5, X, II, 9 de feriis. 8 Liber Pontificalis, ed. Duchesne,
"

5 Sept. 13, 1642.

Universa," I, 141.
6 Motu proprio
"

Supremi disci- 9 Kellner, /. c., p. 183 ff.

plinae," July 2, 1911.

 162 ADMINISTRATIVE LAW

CAN. 1244

i. Dies festos itemque dies abstinentiae et ieiunii,

universae Ecclesiae communes, constituere, transferre,

abolere, unius est supremae ecclesiasticae auctoritatis.
2. Ordinarii locorum peculiares suis dioecesibus
seu locis dies festos aut dies abstinentiae et ieiunii
possunt, per modum tantum actus, indicere.
"""

The supreme
authority of the Church alone can estab
lish, transfer, or abolish holydays as well as days of absti
nence and fasting. This rule, as may be seen from the
historical note, was impressed upon the Christian people
10
ever since the Council of Trent. Hence not even a
chapter, be it cathedral or collegiate, can impose a holy-
day of obligation not observed by the Roman Church,
whereas the f eastdays appointed by the latter oblige every
11
where, unless, of course, otherwise provided. Nor can
a synod or conciliabulum transfer movable feasts to a
12
Sunday.
But the local Ordinaries may, per modum tantum
actus (i. e., for a transient reason and for the time being,
but not forever or habitually), prescribe the observance of
a feastday or of a day of fast and abstinence. Thus, for
instance, the Ordinary is not entitled to establish the
feast of the patron saint of the main or episcopal city as
13
a holyday of obligation for the whole diocese. Nor
can the Ordinary make a feastday which is ex voto obliga
tory for an exempt religious community, de praecepto for
them if the feast is not found in the list of feasts of obli-
10 Urban VIII, "

Universa," Sept. fidei," Aug. 28, 1794 (Denzinger, n.

13, 1642, 3(Dec. Auth., n. 812). 1437)-
11 S. Rit. C., June 8, 1630 (n. 13 S. Kit. C., Aug. 18, 1725 (n.
535)- 2277).
12 Prop. 74 damn, per
"

Auctorem
 CANON 1245 163

gation prescribed for the universal Church.Feasts which

have been introduced by exempt religious by reason of a
14
vow oblige only the persons bound by the latter. Of
course, since the vow of a community lasts as long as the
community itself who made the vow, these feasts must be
observed that long; as to later generations see can. 1310.
It may not be superfluous to add that our text mentions

local Ordinaries, which term does not include religious

superiors. The latter are, therefore, not entitled to
impose
a f eastday upon their communities. The vow mentioned
in the last paragraph concerns the community as such.

DISPENSATIONS

CAN. 1245

i. Non solum
Ordinarii locorum, sed etiam paro-
chi, in casibus singularibus iustaque de causa, possunt

subjectos sibi singulos fideles singulasve familias,

etiam extra territorium, atque in suo territorio etiam
peregrines, a lege communi de observantia festorum
itemque de observantia abstinentiae et ieiunii vel etiam
utriusque dispensare.
2. Ordinarii, ex causa peculiar! magni populi con-

cursus aut publicae valetudinis, possunt totam quoque

dioecesim seu locum a ieiunio et ab abstinentia vel
etiam ab utraque simul lege dispensare.
3. In religione clerical! exempta eandem dispen-
sandi potestatem habent Superiores ad modum paro-
chi, quod attinet ad personas, de quibus in can, 514,

8 1.

I. Not only the local Ordinaries, but also pastors,

may in individual cases and for a just cause dispense their

14 S. Rit. C., June 23, 1703 (n...2ii3).
 164 ADMINISTRATIVE LAW

subjects from the common law of keeping feasts and from

the observance of abstinence and fast, or from both fast
and abstinence at the same time. Ordinaries could al

ways dispense in certain circumstances and cases by law, 15

but the right of the pastor to dispense rested on custom 16
rather than on written law. Now it has become part of
the general law. But in order to act licitly, they must
observe the conditions laid down in this canon, which is
partly a repetition of the old law.
a) They can dispense only in individual cases as they
occur. Hence Ordinaries cannot issue synodal acts dis
pensing persons and families from the common law, or
grant a habitual dispensation. Each case stands for itself
and none can establish a precedent 17 each must be ex ;

amined like a physician makes his diagnosis.

b) They may dispense only single individuals and sin
gle families subject to their jurisdiction by reason either
of domicile or quasi-domicile, or by actual residence in the
territory over which their jurisdiction extends. Subjects
by reason of domicile or quasi-domicile may make use of
such a dispensation also outside of the territory of the
grantor. But peregrini or transient residents are bene
fited by the dispensation only as long as they reside in the
district of the grantor.

c) Finally there must be a just reason for dispensing,

since every dispensation involves a violation of the com
mon law. Such a cause would be sickness 18 and impossi
bility of obtaining abstinence food, although the higher
cost of such was not deemed a sufficient reason by Bene
dict XIV. 19 The climate, the nature of one s work, and
15 Urban VIII, "

Universa," 3. concedenda
"

by Bened. XIV,
"

Non
16 Cfr. Putzer, Comment. w ambigimus," May 30, 1741, 3.
Facult. Apost., p. 36, n. 24. 18 C. 2, X, III, 46.
17 Reg, luris 28 in 6. This is 19
"

Libentissime," June 10, 1745,

"

called toties quoties opus fuerit 18.

 CANON 1245 165

physical debility must be taken into consideration. The

grantor himself is the judge of the sufficiency of the rea
sons advanced. 20

,S . 2. The Ordinaries may, because of a great con

course of people, or for reasons of public health, also dis
pense the whole diocese or any place therein from the
law of fasting and abstinence, or from both combined.
This liberal concession renders special faculties (not par
ticular indults ; see can. 1253) superfluous. What is

meant by a great concourse of people has been authen

21
tically explained by the Holy Office. It is not necessary

that people from other towns or cities are present, but a

multitude of inhabitants of the same city or town assem
bled for an occasion suffices. Of course, the occasion
should be Catholic and religious, for instance, a centenary,
a pilgrimage, a large meeting of Catholic societies, etc.
As our county and State fairs offer a serious occasion for

violating the law of fast and abstinence, such a one would

constitute a sufficient reason for dispensing the partici

pants. Our Code

not against this authentic interpreta
is

tion, for simply says a great concourse of people. The

it :

danger of violating the law must be general, which is

often the case on great festivals.
We may add that another decision of the Holy Office 22
requires for a dispensation from the law of abstinence orr.
a holyday proper, that the abstinence be anticipated..
The Code is silent about anticipation, and therefore this

rule may be considered as abolished. It was, in fact, al

ready abrogated by decree of the S. C. C, which directed
the Ordinaries to make ample use of dispensation for the

20 S. C. P. F., Aug. 2, 1781 (Coll., 22 S. O., Dec. 5, 1894 (ibid., n.

n. 548). 1884), where nundinae (fairs), are
21 S. O., March 28, 1896 (Coll., especially mentioned.
P. F., n. 1922).
 1 66 ADMINISTRATIVE LAW
holydays suppressed by Pius X, without mentioning an
23
ticipation at all.

The other reason mentioned in

2 of can. 1245 is the
public health. An example which recalls the influenza
is given by Benedict XIV in his Constitution
"

Liben-
The disease, to justify a dispensation, must
tissime."

affect the people or territory, not merely a few individ

uals, in other words, it must be epidemic, as is explained

in the same
Constitution. Benedict XIV requires the
testimony of physicians to verify the existence of an epi
demic. The local or State Board of Health would be the
proper adviser in our country. 24
Note two general cases in which
that these are the only
the Ordinaries grant a general dispensation a great
may :

concourse of people and reasons of public health. Be

yond those they should not stretch the power now granted
to them by the common law, which was formerly given

only in the form of a

" "

faculty with the significant

non tamen per generale indultum, sed in casibus
<f

clause :

25
particularibus." The Code has removed this restric
tion, but, as stated above, only for two general reasons,
which cannot be extended at random.
It may be asked : How far does the power of dispens
ing in individual as well as in general cases extend?
26
Benedict XIV, in three Constitutions, drew certain

(a) that only one full meal of flesh meat

limits, to wit,
could be taken a day; (b) that no mixing of meat and
fish was permitted; (c) that the meal hours be not in

verted, e. g., dinner substituted for supper or lunch and

23 May 3, 1912 (A. Ap. S., IV, P. F., n. 1594); Facult. I, art. 27
341). (Putzer, /. c., p. 292, n. 169).
24 June 10, 1745, 23; inflamma- 20
"

Non ambigimus," May 30,

tio pectoris, which was raging in 1741; "In suprema," Aug. 22, 1741;
"

1730, 1733, 1740. Libentissime," June 10, 1745-

25 S. O., March 17, 1883 (Coll.
 CANON 1245 167

vice versa. Restrictions (b) and (c) are certainly re

moved by can. 1251, 2. But how about the unica
comestio, upon which Benedict XIV insisted so emphati
cally? The
difficulty may be solved, not by recourse to
special faculties, which have ceased in foro extcrno since
the decree of April 25, 1918, but by interpretation. The
Code grants the ordinaries power to dispense from both
fasting and abstinence. Hence the petitioner must clearly
state the extent of his demand, and if the grantor fulfils
his wishes to their full extent, there can be no doubt that
the petitioner may more than once a day.
eat fleshmeat

Everything, therefore, depends upon the tenor of the dis

pensation. The grantor can restrict the use of flesh meat
to one meal a day; see can. 1251.
3. Religious superiors of exempt clerical institutes
enjoy the same powers as pastors with regard to all the
persons mentioned in can. 514, i. A difficulty may per
haps arise from can. 1253, which says that by these canons
nothing is changed in the constitutions and rules of the
27
various religious organizations. Elsewhere we have
exempt superiors may dispense the whole com
stated that

munity from fasting and abstinence. This statement

must be restricted to the days prescribed by the rule or
constitutions, since the religious superior of exempt insti

tutes can dispense only ad modum parochi, i. e., like

a pastor, and a pastor can dispense only single individuals
and families. Hence the superior cannot dispense the
whole community as such from the duty of fasting or
abstinence as prescribed by the common law. However,
provided no vow is involved, we believe that the exempt
superiors may, in urgent cases, unless the constitutions
expressly forbid it, dispense the whole community by
27 Vol. Ill, p. 300, of this Com-mentary.
i68 ADMINISTRATIVE LAW
virtue of 1245, for reasons of public health.
2, can.
For the text simply says u ordinaries," and this term in
cludes the exempt religious superiors. The diocesan Or
dinary could not grant that dispensation to exempt reli
gious by reason of exemption, and why exempt religious
should be worse off in such extraordinary circumstances
than other peopleis not easily intelligible. Religious who
are employed in the missions, even as prefects apostolic,
and are entitled to dispense their subjects from the law of

fasting and abstinence, must apply to their superiors for

a dispensation. 28 However, this applies only to exempt
religious for non-exempt religious, as well as exempt re
;

ligious belonging to lay institutes, the competent superior

is the local Ordinary. Besides, it is evident that exempt
religious who are vicars apostolic or bishops, are not
bound to apply to their religious superiors for dispensa
tion. To do so would contravene can. 627, 2, and be

unworthy of their rank. But the rule applies to exempt

religious who
are pastors or assistants (curates), who,
therefore, must have recourse to their superiors, either
local or higher, according to the constitutions, in order to
obtain a dispensation from
fasting and abstinence which
they themselves need, though, as pastors, they may by
law dispense single individuals or families without having
recourse to their superiors.

RECKONING OF FEASTS AND FAST DAYS

CAN. 1246

Supputatio itemque diei abstinentiae et

diei festi,

ieiunii, facienda est a media nocte usque ad mediarn

noctem, salvo praescripto can. 923.
28 S. O., April 12, 1742 (Coll. P. F., n. 337).
 CANON 1246 169

Feastdays as well as the days of fasting and abstinence

run from midnight to midnight, i. e., twenty- four hours,
counting from midnight to twelve o clock of the following
night, according to the time in vogue at the time of cele
bration. If the new time has been adopted, this is to be

followed; if the old time was retained, it may be taken

as standard. The time for gaining indulgences is regu
lated in can. 923.
 TITLE XIII

HOLY-DAYS

CAN. 1247

i. Dies festi sub praecepto in uni versa Ecclesia

sunt tantum : Omnes et singuli dies dominici, f esta Na-
tivitatis,Circumcisionis, Epiphaniae, Ascensionis et
sanctissimi Corporis Christi, Immaculatae Concep-
tionis et Assumptionis Almae Genitricis Dei Mariae,
sancti Joseph eius sponsi, Beatorum Petri et Pauli

Apostolorum, Omnium
denique Sanctorum.
2. Ecclesiastico praecepto dies festi Patronorum

non subiacent; locorum autem Ordinarii possunt sol-

lemnitatem exteriorem transferee ad dominicam proxi-
me sequentem.
Sicubi aliquod festum ex enumeratis legitime
3.
sit abolitum vel translaturn, nihil inconsulta Sede Apo-
stolica innovetur.

i.Feastdays of obligation for the universal Church

are: All Sundays; Christmas (Dec. 25th) the Circum ;

cision of our Lord (New Year s Day, Jan. 1st) ; Epiph

any (Jan. 6th); the Ascension of Our Lord; Corpus

Christi (Thursday after Trinity Sunday) the Immacu
;

late Conception of the B. V. M. (Dec. 8th) the Assump ;

tion of the B. V. M. (Aug. I5th) St. Joseph s day

;

(March iQth) the festival of SS. Peter and Paul (June

;

2Qth), and All Saints Day (Nov. ist).

170
 CANON 1247 171

The holy-days of obligation for the universal Church,

therefore, are ten in number, and no Ordinary or religious
community may introduce others with equal obligation for
all the faithful.
Hence 2 provides that the patron feast of a diocese,
or city, or town does not oblige by ecclesiastical precept,
though the Ordinaries may transfer the external celebra
tion of the same to the following Sunday.
The custom of calling a church after a saint, or dedi
cating it to his honor, grew out of the old martyria. The
faithful were wont to observe the feast of a prominent

martyr as a general festival, whether it fell on a weekday

or on a Sunday. In the ninth century diocesan statutes
command this celebration. But the obligation of cele
brating the festivals of patron saints was not imposed
by the decretal of Gregory IX. Urban VIII, in his Con
"

stitution Universa," of Sept. 13, 1642, directed that the

feast of the principal patron of every kingdom, province,

city ortown be observed as a holyday of obligation. The
people at large were not pleased with the sweeping inno
vation caused by the French revolution, and consoled
themselves by transferring the abrogated holy days to the
1
following Sunday. This transfer is permitted by the
Code as far as the external celebration is concerned the ;

officium chori must be celebrated on the proper or occur

ring day, but the officium fori, or the celebration with sol
emn Mass and ceremonies, decoration of the Saint s pic
ture, etc., may be transferred to a Sunday.
3. If any of the above named (ten) holydays (of
obligation) has been anywhere abolished or transferred,
nothing shall be changed without the advice of the Apos
tolic See.

1 See Kellner, Heortology, p. 194 ff.

172 ADMINISTRATIVE LAW
In the United States, under a decree of the S. C. Propa
ganda Fide of Nov. 25, 1885, there are six holydays of
obligation, namely, the feast of the Immaculate Concep
tion,Christmas, New Year s Day (the Circumcision), the
Ascension, the Assumption of the B. V. M., and All
Saints Day. 2
In Canada the provincial council of Quebec (1854)
asked for an arrangement of feasts similar to that made
for the United States. The S. Congregation answered
affirmatively, but commanded to retain the feast of the
3
Epiphany and to omit the Assumption. Hence they, too,
have six holydays of obligation; but instead of the As
sumption they observe Epiphany.
On the islands of Trinidad and Dominica (dioceses of
Port of Spain and Roseau, or Charlottetown) the feasts
of the Assumption and of SS. Peter and Paul are trans
ferred to the following Sunday, but the office and cere
monies must be held on the day proper. 4
These examples may suffice to interpret the meaning of
3, can. 1247.

OBLIGATIONS CONNECTED WITH HOLYDAYS

CAN. 1248

Festis de praecepto diebus Missa audienda est; et

abstinendum ab operibus servilibus, actibus forensibus,
itemque, nisi aliud ferant legitimae consuetudines aut
peculiaria indulta, publico mercatu, nundinis, aliisque
emptionibus et venditionibus.
2 Cfr. Acta et Decreta Cone. Bait. Lac., Ill, 1112, 1116). Regarding
III, 1886, p. CV f. other English-speaking countries,
3 S. C. P. F., May 25, 1855 (Coll. Great Britain, Ireland, etc., we could
Lac., Ill, 614, 664). find nothing special.
4 S. C. P. F., March i, 1868 (Coll.
 CANON 1248 173

As stated in the historical note, every holyday of obli

gation is a day of rest and worship. Hence on these days

Mass must be heard. This obligation obliges all the faith
ful of the Latin Church and the inhabitants of China and
5
other missionary countries under the S. C. P. F. The
obligation is grievous, binding under mortal sin. One
does not comply with this precept by hearing two or even
four parts of Masses said simultaneously by different
6
priests. It may not be amiss to set forth here what the

S. C. P. F. answered the Vicar Apostolic of Ueskub in

Servia; for it has a general bearing. Not only distance,

but also the condition of roads, as well as age, sex, and
mental attitude of the faithful must be taken into con
sideration where there is question of excusing them from
the obligation of attending Mass on holydays of obliga
tion. If going to church would cause a great inconven

ience, one may be freed from the duty but if the distance ;

is not great, or the fatigue would be but small, the obliga

tion does not cease. 7 The decision refers to the theories

of the moralists, who may therefore be consulted. 8
The second obligation is to abstain from servile work,
including all kinds of forensic acts (unless lawful custom
or a particular indult permits them), the holding of public
markets, fairs, sales, etc. Servile works are such as are
performed by the bodily faculties and destined chiefly
for the use and support of the body. Some think that
the element of slavery or drudgery might have been
added. 9 But now-a-days there is no reason why this ele-
5 S. O., March 23, 1656 ad i ; Nov. 8 See Sabetti-Barrett, Theol. Mo-
13, 1669; S. C. P. F., Sept. 12, 1645 ralis, ed. 273, 1919, p. 240, n. 240 ff.
{Coll., nn. 126, 189, 114). 9 Thus most moralists (see Sabetti-
6 S. O., propp. 52, 53 damn., Barrett, /. c., n. 252, p. 248). The
March 4, 1679 (Denzinger, n. 1069 ancient Roman idea that such menial
.) labors were performed only by slaves
7 S. C P. F., Sept. 26, 1840, dub. had its influence upon theologians.
16 (Coll. , n. 914).
174 ADMINISTRATIVE LAW
ment should be introduced into the definition of servile
work. Farm work,
such as ploughing, planting, harvest
ing, is certainly servile; but a farmer would object to
being called a slave or mercenary. The same is true of
professional labors.
Forensic acts are all trials held in civil as well as crimi
nal (even ecclesiastical) courts and the routine business
of administration conducted therein. Extraordinary and
urgent acts of administration may be excepted. The term
forensic, at least in ecclesiastical language, also includes
10
military operations. This does not mean that the clean
ing of barracks and polishing of arms or an hour of gym
nastic exercise could not be permitted or at least tolerated.
Public markets and fairs or sales, for instance, of stock
or produce, are not allowed by the civil law in our coun
try, and a check issued on a Sunday is invalid. Benedict
XIV had to deal chiefly with Italians, who were and still
are wont to hold fairs (fiere) on holy days. These
fairs were more leniently dealt with than public mar
11
kets, which the Pope forbade. Hence the clause un :
"

less lawful custom and special indults permit." There is

nothing in the text which would forbid baseball or ath
letic games or sports. Neither can the Constitution of
Benedict XIV be invoked against them, 12 for it forbids
*
such games and plays our movie shows would "

13
perhaps deserve a severer censure for the reason of

indecency and lasciviousness. Athletic games, if prop

erly conducted, i. e., with due regard to Christian modesty,
belong rather to the liberal arts and cannot be condemned.
The S. Congregation has instructed missionaries to be
10 S. C. EE. et RR., Dec. 14/1674 WNihil profecto," Aug. 12,
"

(Bizzarri, /. c., p. 272): militari- 1742.

bus praesidiis aliisque forensibus." 13 See Koch-Preuss, Moral Theol-
11 Paternae charitatis," Aug. 24,
"

ogy, Vol. Ill, St. Louis, 1919, pp.

1744; Ab eo tempore," Nov. 5, 1745.
"

52 sqq.
 CANON 1249 175

more lenient towards servants and bakers who have to

work on holydays and therefore can not assist at Mass. 14
Equal leniency is admissible for workingmen engaged in
the service of public utilities, such as railroads, fire de
15
partments, light, power, and heat plants, etc.

WHERE MASS MAY BE HEARD

CAN. 1249

Legi de audiendo Sacro satisfacit qui Missae adest

quocunque catholico ritu celebretur sub dio aut in
quacunque ecclesia vel oratorio publico aut semi-publi-
co et in privatis coemeteriorum aediculis de quibus in
can. 1190, non vero in aliis oratoriis privatis, nisi hoc
privilegium a Sede Apostolica concessum fuerit.

of hearing Mass may be complied with by at

The law
tending a Mass said in any Catholic rite (Latin, Greek,
Syriac, Coptic, or Armenian). Hence Ordinaries or
priests are not allowed to forbid the faithful to frequent a
church of another rite, although they may exhort them to
16
come to their own
church, especially on holydays, One
restriction, or rather natural condition, must, however, be
added. The law requires that Mass be heard. If a
Catholic of the Latin rite would enter a Greek Church,
not knowing what kind of celebration or function he was
attending, he certainly could not be said to hear Mass, al
though we readily admit that external attention only is
required.
The second clause of our canon states that one may
14 There is a great deal of servile physiologically and morally objec-
work connected with running ma- tionable
"

movies."

chines which require constant atten- 15 S. C. P. F., Sept. 26, 1840, ad

tion. There is, from this point of dub. 15 (Coll., n. 914).
view, more excuse for a decent thea- 16 S. C. P. F., April 30, 1862, ad i

tre than for the psychologically, (Coll., n. 1228).

176 ADMINISTRATIVE LAW
hear Mass in the open air, or in a church or a public or
semi-public oratory. In such oratories, according to our
17
Code, all ecclesiastical functions may be held. One may
also hear Mass and fulfill the obligation in a private ceme

tery chapel, as described in can. 1190.

Domestic or private chapels erected with an indult of
the Apostolic See are only for the benefit of the grantee
and those mentioned in the indult, as explained under can.
1195, and hence others do not comply with the law by
hearing Mass in them.
As to chapels on ships or vessels, the S. Congregation
has decided that these must have a fixed or permanent
place, i. e., they must be dedicated for the purpose of di
vine worship, and form, as it were, a special and separate
compartment for that sole purpose, as long as the vessel
lasts. If this is the case, the chapel is to be considered a

public oratory, and all who assist at Mass therein, even

while the ship is in port, comply with the precept of hear
ing Mass. If the chapel has no permanent place, it is to
18
be regarded as a portable altar.

17 See can. 1191, 2; can. 1193- *, 1901 (n. 4069); Many, /. c., p.
18 S. Rit. C, March 4, 1901; May 132.
 TITLE XIV

ABSTINENCE AND FASTING

THE LAW OF ABSTINENCE
CAN. 1250

Abstinentiae lex vetat carne iureque ex carne vesci,

non autem ovis, lacticiniis et quibuslibet condimentis
etiam ex adipe animalium.

The law of abstinence forbids the eating of flesh meat

/ and broth or soup made of meat; but it does not forbid
eggs, lacticinia, and seasoning with fat of animals. The
new law here is milder than the old, for lacticinia were
not always permitted by the Church, as may be seen from
some Constitutions of Benedict XIV. 1 The term lacti
cinia includes everything that is produced from milk, as
well as the milk cheese, butter, margarine, etc.
itself,

These, therefore, may be used even on days of abstinence. 2

Fat of animals was defined as the fat, grease, or lard of
3
any animal, not only of hogs.

THE LAW OF FASTING

CAN. 1251

i. Lex ieiunii praescribit ut nonnisi unica per

diem comestio fiat; sed non vetat aliquid cibi mane et

l"Non ambigimus
"

; "In su- 2 S. O., May

13, 1896; Sept. 1899
"

prcma"; Libentissme." Cooking (Coll. P. F., nn. 1928, 2067).

with oil only was permitted. 3 S. O., May i, 1889 (ibid., n.
1704).
177
 178 ADMINISTRATIVE LAW
vespere sumere, servata tamen circa ciborum quantita-
tem probata locorum consuetudine.
2. Nee vetitum est carnes ac pisces in eadem refec-

tione permiscere ; nee serotinam ref ectionem cum pran-

dio permutare.

The law of fasting permits only one full meal a day,

but it does not forbid the taking of some food for break
fast and supper.
The quantity and quality of this repast is left to
local custom. Care must be taken that one does not take
between meals too often on days of fast,
" "

something
as this might eventually constitute a considerable quan
tityor amount almost to a full meal. 4
Those who are not obliged to fast on the days pre
scribed, and have received either a general or a particular
indult to eat meat, may eat flesh meat every time they take
a meal. 5 Thus aged or sickly persons or laborers, who
are dispensed from observing the fast, may eat flesh meat
three times or oftener a day. This, too, is a modification
of former papal constitutions. 6 Besides, the S. Peniten
tiary has decided that the head of the family (pater
if

familias) is dispensed from the law of abstinence, all

members of the family subject to him (quae sunt in po-
testate patris familias) may also eat flesh meat. How
ever, those who are bound to fast
use flesh meat only
may
once a day, at the principal or full meal. 7 If a son or
daughter, or other member of the family is lawfully
dispensed from abstinence on account of sickness, the
head of the family may extend that favor to the other
members, under the same condition as stated above, viz.,
4 S. O., prop. 29 damn. March 18, 6 Especially of those of Benedict
1666 (Denzinger, n. 1000). XIV, quoted above.
5 S. Poenit., Feb. 24, 1819; March 7 S. Poenit., Jan. 10, Jan. 16, 1834
16, 1882 (Coll. P. F., nn. 734, 1569). (Coll. P. F., n. 832).
 CANON 1252 179

that flesh meat may be used only once a day by those

8
who are otherwise obliged to fast.
Another mitigation of the law of fasting is here gen
eralized Flesh meat and fish may be taken at the same
:

meal, and dinner and supper may be interchanged. Thus,

for instance, if one, because of his studies, or for any
other reason, should prefer to take lunch at about 10 or II
o clock, and dinner at 5, there could be no reasonable
9
objection. Note also canon 1252.

DAYS OF ABSTINENCE AND FASTING

CAN. 1252

i. Lex solius abstinentiae servanda est singulis

sextis feriis.
2. Lex abstinentiae simul et ieiunii servanda est
feria quarta Cinerum, feriis sextis et sabbatis Quadra-
gesimae Quatuor Temporum, pervigiliis Pen-
et feriis
tecostes, Deiparae in caelum assumptae, Omnium
Sanctorum et Nativitatis Domini.
3. Lex solius ieiunii servanda est reliquis omnibus

Quadragesimae diebus.
4. Diebus dominicis vel festis de praecepto lex ab
stinentiae, vel abstinentiae et ieiunii, vel ieiunii tantum
cessat,nee pervigilia anticipantur item cessat Sabbato;

Sancto post meridiem.

i. The law of abstinence only must be observed on

all Fridays.
2. The law of abstinence and fasting must be ob
served on Ash Wednesday, on the Fridays and Saturdays
Slbid.; the reason why this favor 9 S. O., July 29, 1859; Sept. 17,
may be used is not the indult, but 1862 (Coll. P. F., un. 1146, 1230);
the physical inability of the filii cfr. Eccl. Review, 1920, Vol. 62, p.
familias to procure other food. 309 f.
 i8o ADMINISTRATIVE LAW
of Lent, on the emberdays, on the vigils of Pentecost, the
Assumption, All Saints Day, and Christmas.
3. The law of fasting only must be observed on all

other days of Lent

4. On Sundays and holydays of obligation (except
holy days in Lent) the laws of fasting and abstinence do
not bind ; nor must vigils of holydays of obligation,
which on a Sunday, be observed on the preceding
fall

day. Thus if the feast of the Assumption or All Saints

or Christmas should fall on a Monday, the vigil need not
be observed on the preceding Saturday or Sunday. Not
on Saturday, because, as the text says, "nee pervigilia
anticipantur ; not on Sunday, because there is no fast.
"

Only holydays of obligation are thus favored.

The Lenten fast and abstinence cease at noon on Holy
Saturday, that is to say, at 12 o clock.

PARTICULAR LAWS
CAN. 1253
His canonibus nihil immutatur de indultis particu-
laribus, de votis cuiuslibet personae physicae vel mo-
ralis, de constitutionibus ac regulis cuiusvis religionis
vel instituti approbati sive virorum sive mulierum in
communi viventium etiam sine votis.
These canons leave unchanged particular indults, the
vows relating to fasting and abstinence made by individ
uals or corporations, and the constitutions and rules of

approved orders or congregations of religious, male as

well as female, and of those who live in common without
vows.
I. As regards particular indults of the Apostolic See,
it must of all be observed that the decree of the S. C.
first

Consistorialis of April 25, 1918, cannot simply be applied

 CANON 1253 181

to particular indults, because it refers to habitual faculties

of Ordinaries granted for the external forum. Indults
are not identical with faculties, as the latter comprehend
various kinds of concessions or favors, whilst indults are
given for specific purposes, generally designated very mi
nutely,and to individual persons. It must, however, be
admitted that these two terms are frequently employed
synonymously. But there is a more stringent reason: it
would be absurd to hold that the S. Congregation would
nullify a canon without as much as specifying it in its
decree. Canon 1253 distinctly maintains and upholds
particular indults. The adjective particular must be ex
plained according to the significance of a particular law,
which implies local or provincial legislation, or such as
differs from universal legislation. Hence a particular
indult may affect a diocese or province, or even a nation,
in contradistinction to the whole Church. These consid
erations premised, the following indults may concern the
United States. 10
1. The indult of July 25, 1858, which permits the eating
of flesh meat on Saturdays when the law of fasting does
not oblige. This indult is out of date, 11 for these Satur
days are now abolished by general law, and unless a vow
is in the way, they need not be observed.

2. The indult granting the use of flesh meat on

Wednesdays of Advent, given Sept. 2, 1837, is partly out
of date, 12 for the law of abstinence no longer obliges
in Advent, except on Wednesday of embertide. However,
since the S. C. P. F. granted permission to use flesh meat
on all Wednesdays of Advent, including the Wednesday
10 Concerning Great Britain we also for the province of St. Louis
were unable to find any particular (ibid., Ill, 319, 321).
indults. 12 Coll. Lac., Ill, 61.
11 Coll. Lac., Ill, 17; it ceases
182 ADMINISTRATIVE LAW
of the emberdays, we believe that this part of the indult
still holds. But as this day is not included in the indult
13
of Aug. 3,1887, given by the Holy Office and ratified
by Leo XIII, it would seem to follow that the latter must
be considered binding, especially since Saturday was ac
cepted as exempt from abstinence.
3. The indult of Aug. 3, 1887, granted by the Holy
Office reads: (a) The use of flesh meat, eggs, and lac
ticinia is allowed on every Sunday of Lent, at every meal,
and on every Monday, Tuesday, Thursday, and Saturday
of Lent at the principal meal, except on the Saturdays of
Ember week and Holy Week. There is added a clause
forbidding the promiscuous use of meat and fish; this
clause is now abolished by can. 1251, 2. (b) Lacticinia
and eggs are permitted on every day of Lent on which no
flesh meat is allowed at the main meal and lunch (sup

per), (c) Some bread may be taken, together with cof

fee, tea or chocolate, (d) Where the principal meal can
not be taken at noon, the order of lunch and dinner may
be inverted. For this no indult is now needed, (e)
Lard or fat may be used for cooking. No indult re

quired, (f) Those exempt from the law of fasting may

eat flesh meat, eggs, and lacticinia several times a day on
all days on which their use is permitted to all the faithful

(as on the Sundays of Lent).

This indult was given for ten years, and express men
tion of it must be made each year in the Lenten regula
tions. We suppose it has been renewed, and thus remains
in force. Of practical value are only points (a) and (f),
and the ad quiet em conscientiae. Under this
latter only
indult in Lent the Wednesdays are observed instead of
the Saturdays, with the exception of Ember week and

13 Cfr. Putzer, Comment, in Fac. Ap., p. 295.

 CANON 1253 183

Holy Week, when Wednesday, Friday, and Saturday

must be observed as days of abstinence.
One more remark: the indult of Aug. 3, 1887, in the
very beginning mentions the fact that the favors it grants
are intended for Lent only. What then of the other Em
ber days ? Must all three days of the other three Ember
14
weeks be kept ? Custom, we are told, has extended this
favor the other fast days.
to all But certainly not by vir
tue of the indult for although we are allowed to interpret
;

favors broadly, we have no right to extend a favor beyond

the tenor of the indult by which it is granted. 15 We do not
deny the force of custom in the matter, nor are we obsti
Since even the
"

nately bent on enforcing the magro."

last Plenary Council of Baltimore (n. 1112) had to con

fess that uniformity in the discipline of fasting was im

possible, we fear that the conditions of custom are veri
fied. Recourse to the Holy See would certainly be safer.
4. The indult granted by Pius IX to our soldiers and
sailors is still in force. In virtue of this indult they are
obliged to abstain from flesh meat only on six days of the
year Ash Wednesday, the three last days of Holy Week
:

(or now rather only Good Friday and Holy Saturday to

twelve o clock), on the vigils of the Assumption and of
Christmas. This favor is granted to all who are in active
service, but not when they are on leave of absence. The
families who eat with these soldiers at the same table,

enjoy the same favor. The special faculties granted to

our army bishop were given only for the time of war.
II. Vows are not affected by these canons. The
Minims have a special vow of perpetual abstinence. A
municipality or government may vow to observe the fast
14 Putzer, /. c., p. 297, according to Konings and Kenrick.
15 Ibid.
1
84 ADMINISTRATIVE LAW
or abstinence on a certain day, for instance, on account of
an epidemic or earthquake. 16
III. The constitutions and rules of religious institutes
may prescribe days of fasting and abstinence besides those
appointed in the Code. If nothing specific is determined
on this head, the members are allowed to observe the days
mentioned in can. 1252. Besides, the superiors may grant
dispensations, as far as can. 1245, 3, permits, and pro
vided the constitutions do not forbid. declaration of A
the S. C. Rel., of Sept. I, 1912, says: The mitigations
and dispensations of fasting and abstinence prescribed by
the general law of the Church also benefit religious, but
fasts and abstinence prescribed by their rule and consti
tutions are not mitigated by a general indult or law, unless
such indult or law expressly includes religious. Our
Code emphatically states that the approved rules and con
stitutions of religious institutes are not changed by the
general law. Those religious, therefore, who do not ob
serve their peculiar laws concerning fasting and absti
nence transgress their rule, but not the law of the Church,
and therefore are punishment only in so far as
liable to
their constitutions declare them guilty and punishable. 17
Most constitutions do not bind under pain of sin.

WHO IS OBLIGED TO FAST AND ABSTAIN

CAN. 1254

I. Abstinentiae lege tenentur omnes qui septimum

aetatis annum expleverint.
2. Lege adstringuntur omnes ab expleto
ieiunii
vicesimo primo aetatis anno ad inceptum sexagesi-
mum.
16 See can. 1310. 17 A Ap. S., IV, 626 f.
 CANON 1254 185

The law all who have completed the

of abstinence binds
seventh year of age. This law obliges even on the vigils
of suppressed feasts if these vigils were observed by rea
18
son of a particular precept or vow.
The law of fasting obliges all Catholics from the
twenty-first year of age, completed, until the beginning
of the sixtieth year. The general tenor of this law, from
which no one in the Latin Church is exempt, was ex
19
plained above. Here two condemned propositions may
be mentioned: (i) All officials employed by the State

in physical labor are excused from the law of fasting, nor

necessary to be morally certainly whether fasting and
is it

work are compatible. (2) All those riding on horseback,

whether the journey be necessary or not, even if it lasts
20
only one day, are absolutely excused from fasting.
Concerning working men, professional men, builders,
servants, etc., employed by non-Catholics or lax Catholics,
the Holy Office has decreed that they may eat meat on
forbidden days, provided it is not purposely served to spite
the Catholic Church, and provided also they can find no
other employment. 21 For the rest the moralists should be
consulted.

18 S. C. C, Sept. 18, 1911 U. Ap. 20p r opp. 30, 31 damn. March 18,
S., Ill, 480); see can. 1310. 1666 (Denzinger, n. 1001 f.).
19 See S. O., March 23, 1656; S. 21 S. O., May 27, 1671; Dec. 14,
C. P. F., Sept. 12, 1645 (Coll., nn. 1482 (Coll. P. F., nn. 195, 960).
126, 114).
 PART III
DIVINE WORSHIP
Divine worship is an essential feature of the Church,
originating in the relation of the creature to the Creator.
Foremost, of course, in this worship is God himself. But
as the Second Person of the Blessed Trinity is, as it were,
more closely connected with the Church, in whose temples
He dwells, the Blessed Eucharist and all that is related to
it deserves closer consideration. Around the Divinity
there clusters a crown of Saints, to whom men pay hom
age. Hence a
special section of the Code is devoted to
the worship of the Saints. The worship of God being
the outcome of the virtue of religion, may show itself in
external acts, and the same is true of the veneration of
the saints. Hence mention is made of processions.
Lastly, man may bind himself more immediately to the
worship of God by vows and the solemn invocation of the
Divine Name.
The Code deals with Divine Worship logically after
treating of sacred places and seasons, because these latter
form the setting or frame of the interior picture, or, as
we might say, the continens of the contentum. We must
again remind the reader that dogmatic exposition is not
the purpose of these canons, although they offer matter
for lengthy elucidation.

186
 CANON 1255 187

CAN. 1255

i. Sanctissimae Trinitati, singulis eiusdem Per-

sonis, Christo Domino, etiam sub speciebus sacramen-
talibus, debetur cultus latriae; Beatae Mariae Virgini
cultus hyperduliae aliis cum Christo in caelo regnanti-
;

bus cultus duliae.

2. Sacris quoque reliquiis atque imaginibus vene-
ratio cultus debetur relativus personae ad
et quam
reliquiae imaginesque referuntur.

i. To the Blessed Trinity as well as to each of the

three Persons, to Christ our Lord, also under the sacra
mental species, is due the cult of latria; to the Blessed
Virgin Mary, the cult of hyperdulia; to the other Saints
reigning with Christ in heaven, the cult of dulia.
from the Greek word
Latria, Xarpcuw, means service,

worship dulia, from SouAcia, also

; signifies service. From
this it may be seen that the original etymology hardly
indicates an essential distinction between the two terms.
It was the theologians who introduced this well-known
distinction.
The difference between dulia (including hyperdulia)
and latria is as vast as the gulf that separates the
creature from its between dulia
Creator. The relation
and latria, like that between creature and Creator,
is purely analogical. Their formal objects are separate
and distinct. The formal object of latria is the virtus
religionis, or virtue of religion, which is based upon jus
tice ; that of dulia the virtus observantiae, as St. Thomas
1
says. This distinction is sufficient to disprove the odious
charge, sometimes made against Catholics, that they adore
the Virgin Mary and the Saints. Of its very nature the
1 Summa Theol., II II, q. 102 sq.
 i88 ADMINISTRATIVE LAW

worship we give to the Saints has nothing in common

with idolatry. 2
To the sacred relics and images a relative venera
2.

tionand worship are due, in as far as these relics and

images refer to persons. The dulia which we exhibit to
the person of a Saint is absolute, in contradistinction to
the merely relative worship which we give to relics and
images. Another essential difference is that relics and
images, being inanimate objects, may be venerated but not
invoked. Honor or reverence," says St. Thomas, is
" "

due solely to rational creatures; those devoid of reason

can be honored or reverenced only with respect to some
3
rational Thus it would not be impious or un
nature."

lawful to venerate the image of God the Father seated on

a throne, which may be placed in a Christian temple.*
For the veneration or worship is exhibited not to the
image as such this would be sheer idolatry or fetich-
ism but to the Sacred Person of God the Father.
Here a few be given concerning the. venera
rules may
tion of the Holy Cross and other instruments of the Pas
sion and death of our Lord. If a relic of the true Cross
is exposed publicly and in a visible or perceptible way, a
genuflection on one knee is made in accessu et recessu, as
often as the faithful or clergy pass by the middle of the
altar. The priest who incenses the sacred relics also
makes the genuflection on one knee, but incenses it stand
ing. If the sacred relic is hidden in a tabernacle or cus

tody, the head is bowed. 5 Sacred thorns receive the

6
same signs of veneration as relics of the Holy Cross.
2 Pohle-Preuss, Mariology, 1914, 5 S. Rit. C., May 7, 1846; March
p. 140. 29, 1869; May 23, 1835 (nn. 2391,
3 Summa Theol., Ill, q. 25, art. 3^ , 27^2).
4; Pohle-Preuss, /. c., p. 141. 6 S. Rit. C., Sept. 7, 1897 (n.
4 Prop. 25 damn., Dec. 7, 1690 3966).
(Denzinger, n. 1182).
 CANON 1256 189

Before the Crucifix (without relics of the Holy Cross) a

bow is sufficient (inclinatio prof -undo), but from the ado-
ratio crucis on Good Friday to the None of Holy Satur
day, inclusively, a genuflection on one knee is made. To 7

sacred linens miraculously soaked with the species of the

sacred blood, the same signs of veneration are paid as to
the relics of the true Cross, and to the same extent. 8 The
image of the Infant Jesus (Bambin Gesu), exposed on
the main altar during Christmas time, is incensed like the
9
Cross.

PUBLIC AND PRIVATE WORSHIP

CAN. 1256

Cultus, si deferatur nomine Ecclesiae a personis le-

gitime ad hoc deputatis et per actus ex Ecclesiae insti-
tutione Deo, Sanctis ac Beatis tantum exhibendos, di-
citur publicus; sin minus, privatus.

Worship exhibited to God, the Saints, and the Blessed

Virgin in frhe name
of the Church, by ministers lawfully

appointed for that purpose and through acts established

by the Church, is called public; otherwise it is private.
Note here three requisites for public worship : it must
be offered (i) in the name of the Church, (2) by her
ministers (3) by acts established by her. For instance,
veneration may be paid to a person who died in the odor
of sanctity by pious persons, but it cannot be called a

public cult before the person has been declared a Saint

10
or Blessed ;
such a cult would be purely private and of
very doubtful merit. Again prayers may be publicly re-
7 S. Rit. C., May 9, 1857 (n. 9 S. Rit. C., Feb. 15, 1873 ( n -

3049). 3288).
8 S. Rit. C., June 27, 1868 (n. 10 Cfr. Bened. XIV,
"

Quamvis
3*76). justo," April 30, 1749, 12.
190 ADMINISTRATIVE LAW
cited, but if they are not approved by the Church, they
have a private character.

APPROBATION OF THE LITURGY

CAN. 1257

Unius Apostolicae Sedis est turn sacram ordinare

liturgiam, turn liturgicos approbare libros.

The Apostolic See alone has the right to prescribe the

sacred liturgy and to approve liturgical books.
Hence neither patriarchal nor cathedral nor collegiate
chapters may change or add anything to the liturgical
books. 11 Neither archbishops nor bishops still less, of

course, inferior prelates answer

may act as judges in
12
ing doubts
concerning and sacred
ceremonies. rites

This, of course, must be understood of authentic an

swers. If one has consulted the rubrics and looked up
the authentic decrees of the S. Congregation of Rites, he
may state what in his opinion has been authentically de
cided. A bishop cannot extend to the whole diocese the
office of a Saint who is venerated in the cathedral
church. 13
Concerning the liturgical books, the following general
14
decree serves as a guide.
I. The liturgical books, as far as they require official
approbation, are: the Roman Breviary, the Missal, the
Ritual, the Pontifical and excerpts from them, as well as
the Roman
martyrology. Then, the Caeremoniale Epis-
copormn, the propria of the Breviary and the Missal of
a diocese, a religious order or a congregation, the Memo-
11 S. Rit. C., May 2, 1612 (n. 13 S. Rit. C., Jan. 16, 1607 (n.
297)- 225).
128. Rit. C., June n, 1605 ad i 14 S. Rit. C., May 17, 1911 (n.
(n. 179). 4266).
 CANON 1257 191

riale of Benedict XIII for smaller churches, the Instructio

Clementina for Forty Hours Devotion, the CoUectio De-
cretorum S. Rit. C.
2. The editions of these books are either typicae or

luxta typicas. The typical editions may be printed only

by the Vatican Press or by publishers who have obtained
that privilege from the S. Congregation of Rites. The
same Congregation revises every single sheet of the typi
cal edition, and every typical edition must contain the
decree of the S. Rit. C., certifying that this edition is a
typical one and that editors must conform their editions
to it.

Editors, after issuing a typical edition, must send two

copies thereof to the S. Rit. C., in whose archives they
are preserved.
3. Any publisher may, with the consent and approval
of the Ordinary, print editions called iuxta typicas, pro
vided they agree perfectly with the typical edition. To
make sure of this the Ordinaries shall appoint a revisor
or censor, who shall carefully compare each edition with
the typica and grant the imprimatur only after it is found
a faithful copy thereof.

4. If there is no typical edition of the propria Mis-

sarum or Officiorum of a diocese, the local Ordinary in
whose diocese they are printed, shall declare them con
formable to the original and give the imprimatur. As to
the propria of a strange diocese, and those of religious
orders and congregations, the local Ordinaries to whose
jurisdiction the editors (typographi) belong, shall give the
imprimatur, after the Ordinary of the strange diocese or
the religious superior to whom the propria pertain, shall
have declared that the edition is conformable to the orig
inal.

The rules for publishers of typical editions as well as

 192 ADMINISTRATIVE LAW

reprints of liturgical books are laid down in the Consti

tutions of Pius V, Clement VIII, and Urban VIII, which
are contained in the preface to every Roman Breviary.
These rules must be accurately followed even as to punc
tuation, grammatical rules, position and sequence of
15
hymns, chapters, and so forth.
Manuals of sisterhoods which are used for the inves
titure of novices and for making the religious profession
must be approved by the Holy See, or at least by the
16
Ordinary. The formula of profession must be con
tained in the Constitutions.

COMMIT NIC ATIO IN SACRIS

CAN. 1258

i. Haud licitum est fidelibus quovis modo active

assistere seu partem habere in sacris acatholicorum.
2. Tolerari potest praesentia passiva seu materia-

lis, civilis officii vel honoris causa, ob gravem rationem

ab Episcopo in casu dubii probandam, in acatholicorum.

funeribus, nuptiis similibusque sollemniis, dummodo
perversionis et scandali periculum absit.
It is unlawful for Catholics to assist actively in any
way or to take part in, the religious services of non-
at,

Catholics. A
passive or merely material presence may
be tolerated, for reasons of civil duty or honor, at fu
nerals, weddings, and similar celebrations, provided no
danger of perversion or scandal arises from this assist
ance. In doubtful cases the reason for assisting must
be grave, and recognized as such by the bishop.
15 S. Rit. C., April 26, 1834; changed Ps. ig: Exaudiat te Do-
March n, 1871 (nn. 2716, 3241). minus in die professionis," instead
16 S. Rit. C., Sept. 12, 1857, ad of tribulationis; in the Libera they
XVI 3059)
(n. which proves the sang:
"

Tremens facta sum."

necessity of uniformity; the Sisters

 CANON 1258 193

This is the so-called communicatio in sacris activa cum

acatholicis. The reason why the Church has always for
bidden such participation in the religious services of non-
Catholics is the intimate conviction that she herself is the

only true Church of Christ. Secondary reasons for this

prohibition are the quasi-ap probation of non-Catholic
:

worship which lies in a Catholic s participation therein

and which at the same time is an external profession of
faith. The other reason is scandal, which may be given
to Catholics who see the mixture of worship and the
deference paid to non-Catholic ministers and functions.
Finally there is the danger of perversion, or of gradually
increasing religious indifference when the faithful freely
and indiscriminately participate in heretical religious serv
ices. Even the simulation of false religion is incompat
ible with the purity of the Catholic faith. 17 Hence :

(a) The Sacrament of Baptism can never be lawfully

received from a non-Catholic minister ;
nor is it allowed
to offer a child for baptism to such a minister, even if
the child was first baptized by a Catholic minister and the
18
heretical ceremony is admitted in order to avoid a fine.

Neither are Catholics allowed to assist as sponsors, either

personally or by proxy, at a baptism conferred by a non-

Catholic minister. 19

(b) Confirmation may not be administered to such as

are compelled by a non-Catholic parent to assist at hereti
20
cal services.

(c) The Holy ^Eucharist may not be received at the

hands or in the temples of non-Catholics, nor are Cath
olics allowed to assist at the Mass of schismatics; if they
ITS. O., Aug. 28, 1780; S. C. P. 19 S. O., May 10, 1770; Jan. 3,
F., 1729 (Coll., nn. 546, 311). 1871 (nn. 478, 1362).
18 S. O., Sept. 26, 1668; Nov. 29, 20 S. O., Aug. 28, 1780 (ibid., n.
1672 (ibid., nn. 169, 205). 546).
194 ADMINISTRATIVE LAW
have no church of their own, they are not bound to hear
Mass on the days prescribed. 21 Concerning the visiting
of churches of non-Catholics, the Holy Office has decided
as follows: Catholics may enter non-Catholic temples
merely from curiosity, without participating in the serv
ices and provided they have no evil intention. An evil
intention would exist if a Catholic would visit a Protes
tant church for the purpose of assisting at a religious
function, or of participating in sacris, or if the govern
ment had commanded such visits as a sign of religious

indifference, or if the public would regard such a visit as

a sign of an interior conviction that there is no distinc
tion between Catholics and non-Catholics. 22 To the point
is another decision of the same Holy Office regarding

former conditions in schismatical Russia, where officials

compelled pupils to assist at schismatical functions.
Their assistance was declared an unlawful participatio in
sacris, which teachers of religion cannot tolerate in si
lence. Therefore they must warn the children and par
ents of the wrong, and only in case of their being in good
faith may they omit a second warning, and grant them
23
absolution, provided always that there is no scandal.
(d) Confession may be made to a heretical or schis
matic minister only when there is danger of death, pro
vided that no scandal be given, that no other priest be
present, that there be no danger of perversion, and that
the non-Catholic administer the sacrament in valid form,
i. secundum ritus Ecclesiae?*
e.,

(e) Under no conditions is it permitted to receive holy

25
orders from a non-Catholic minister.
21 S. O., Dec. 5, 1668 (n. 171). 24 S. O., July 7, 1864, ad 6 (n.
22 S. O., Jan. 13, 1818 (ib., n. 727, 1257).
ad 2). 25 S. O., Nov. 21, 1709 (n. 278):
23 S. O., April 26, 1894 (ib., n. "Alias sunt irregulares et sus-

1868). pensi"; suspension is stated in can.

 CANON 1258 195

(f) Concerning marriage enough has been said under

can. 1063.

(g) An oath imposed by the government may be ad

ministered by a non-Catholic minister and be taken by
Catholics if said minister acts merely as an official and
wears no stole or insignia of his creed. 26
27
(h) Here an instruction of practical value, not so
much in our country, as in countries where the govern
ment compels officials and also bishops to assist at reli

gious ceremonies conducted by non-Catholics, or to hold

services in Catholic churches. It is never allowed for

any bishop to go to a schismatical church to take part in

the sacred functions or to chant the doxology. Govern
ment officials are not to be disturbed if they go to these
churches, provided no Mass is said, and they take no part
in the doxology. Catholic bishops if invited by the
governor to have a celebration in the Catholic churches
"

shall content themselves with singing the Te Deuni "

and holding benediction of the Blessed Sacrament. This

may be done with the intention of praying for the spir
itual and temporal welfare of people and ruler. But
the bishops shall abstain from Pontificals or singing Mass,
lest the non-Catholic civil authorities should assist and

incense and the

"

pax should have to be offered them,

"

which is by no means allowed.

2 permits a passive or merely material assist-

2372, and irregularity follows sus- other occasion (for British India)
pension if can. 985, n. 7 is verified. the S. C. P. F. asked that the eccle-
26 S. O., April i, 1857 (n. "33)- siastical authorities should demand
In the province of Quebec (Canada) freedom to swear on the Catholic
Protestant bibles were used in admin- Bible, but as long as this could not
istering oaths; only the clergy were be obtained, they should keep silent;
permitted to give oath by holding the Sept. 8, 1869 (Coll., nn. 739, 1346);
hand to the breast. The Holy Office somewhat different Sabetti-Barrett,
declared that the faithful should not Theol. Moral., ed. 273, pp. 226 f.
be disturbed; Feb. 23, 1820. On an- 27 S. O., May 12, 1841 (n. 921).
 196 ADMINISTRATIVE LAW
ance at funerals, weddings and similar festivals. What
does that assistance involve or admit? Concerning
funerals the decisions are quite distinct. No religious act
or ritual participation is permitted. Hence Catholics are
not supposed to recite public prayers or carry torches or
candles, etc., for the souls of deceased non-Catholics. 28
At weddings there is hardly more than a mere passive as
sistance, even for witnesses. 29 In Japan and other pagan
countries, where at funerals the pagan priests are first
called in to perform their rites, the faithful must abstain
from any participation in these ceremonies, but may bury
30
their dead according to their own ritual.

causa means civil duty or re

Civilis offtcii vel honoris

spect due to the dead or to the person who is the object of

the ceremony at a wedding or similar festivity, for in
stance, the birthday of a ruler s son or a thanksgiving cele
bration. When a non-Catholic ruler dies, the clergy may
assist ina body, outside the church, at the funeral proces
sion, but without sacred vestments, i. e., without stole
and surplice, although in cassock, when no scandal
31
is given or when it may be removed. At the corona
tion of King Edward VII his Catholic subjects were al
lowed to enter Westminster Abbey because of the personal
presence of the King, but in India Catholics were not per
mitted to enter the temples of non-Catholics because the
King was not present. Besides, Catholics were permitted
32
to sing the Te Deum, but not the solemn Mass, in their
own churches. If a non-Catholic relative or a good
friend of a Catholic pastor dies, is the latter allowed to
assist at the funeral ? He may do so, but is not allowed
28 S. O., Jan. 13, 1818; June 30, 30 S. O., March n, 1868 (n.
July 7, 1864 (Coll. P. F., nn. 727; 1328).
1257 ad i). 31 S. O., Aug. i, 1900 (n. 2089).
29 S. O., June 22, 1859 (n. 1176). 32 S. C. P. F., April 25, 1902 (n.
2136).
 CANON 1258 197

towear the insignia, i. e., surplice and stole, and must take
no active part in the ceremonies of the non-Catholic rite. 33
Difficulties may arise concerning cooperation in the
divine services of Catholics who are employed by non-
Catholics as singers or organists. Although we could find
no specific decision with regard to Catholic singers at non-
Catholic services, it is evident that the Church cannot
tolerate such a formal cooperation, for to that would it

certainly amount. Besides, if it is forbidden for a Cath

olic to play the organ at non-Catholic services which
84
has been formally decided it naturally follows that

Catholics not sing at such functions. The Church

may
has been more lenient lately with regard to admitting non-
Catholics as singers and organists at Catholic services.
Thus, in 1889, the Holy Office wished the abuse to be
eliminated as soon as possible, in 1906 it made a conces
sion for Bulgaria, in favor of sisterhoods whose non-
35
Catholic pupils were admitted to sing in their chapels.
The present canon only forbids active assistance at, or
participation in, the religious services of non-Catholics.
Therefore those who contribute to the building of non-
Catholic churches or help to erect them as architects, con
tractors, or workingmen are not concerned here. The
3G
Holy Office has indeed declared that no such contribu
tions are allowed, but at the same time urged that those
who build synagogues and heretical temples are not to be

33 S. O., May 8, 1889 (n. 1705). 35 S. O., May i, 1889; Jan. 24,
34 S. C. P. F., July 8, 1889 (n. 1906 (Coll. P. F., n. 1703, 2227).
1713): ibi falsum cultum
"Cum 36 S. O., 30, July 7, 1864, ad
June
exercent."Exception might be 8-10 (ib., n.
1257). Stricter is the
made for school exercises or purely instruction of the Card. Vic. Urbis,
civil celebrations held in non-Catho- of July 12, 1878; but this concerns
lie churches, provided they have no Rome only and cannot be general-
religious feature attached; for in ized, because conditions are differ-
that case there would be no exer-
"

ent elsewhere.
cise of false worship."
 198 ADMINISTRATIVE LAW

disquieted, provided such edifices are not erected to spite

or provoke Catholics. But, as stated, even contributions
are not excluded by our canon. Besides it would be al
most impossible, in our country at least, to carry such a
prohibition into effect. Business men especially cannot be
expected to ignore or offend their non-Catholic patrons.

APPROBATION OF DEVOTIONS AND LITANIES

CAN. 1259

i. Orationes et pietatis exercitia ne permittantur

in ecclesiis vel oratoriis sine revisione et expressa Or-
dinarii loci licentia, qui in casibus difficilioribus rem
totam Sedi Apostolicae subiiciat.
2. Loci Ordinarius nequit novas litanias appro-
bare publice recitandas.

Prayers and devotions are not to be permitted in

churches and oratories without previous revision by, and
express permission of, the local Ordinary, who shall re

port more difficult cases to the Apostolic See. The local

Ordinaries cannot approve new litanies which are to be
publicly recited. A
bishop must and may revise all kinds
of devotions, and if there is doubt whether the prayers
or invocations comply with the dogmatic and traditional
requirements, he shall refer the matter to the Holy
37
Office, which, if merely ritual doubts exist, shall report
to the S. Congregation of Rites. Concerning litanies, first
and above all, no neiv ones are allowed. Only those may
be recited publicly which are contained in the Breviary
or in the new edition of the Roman Ritual, approved by
38
the Holy See.
37 The veneration of the Holy special pictures are preferred; S. O.,
Face of our Saviour is given to the May 4, 1892 (n. 1792).
traditional representation, and no 38 S. Kit. C., March 6, 1894 (Dec.
 CANON 1259 199

To these approved litanies no additions can lawfully be

made. Thus neither new u Saints," even though they be
titular or
patron saints, nor versicles or other prayers not
contained in said additions are to be added. 39 Religious
are allowed to add the name of the founder or patriarch,
but the name of no other Saint of their order or congre
40
gation. Nor is the addition of special invocations al
lowed in the litany of the Blessed Virgin. 41 Neither is
the name of any saint or invocation, as contained in the

approved editions to be omitted in the recitation. 42 Even

quasi-invocations recited in the form of a Litany are
forbidden. 43
2 of our canon says public e recitandas, to be recited
:

publicly. This term was, especially after the decree of

March 1894, made the object of doubts, which were
6,

dispersed by the S. Congregation. Thus it would be a

public recitation if several of the faithful would gather
in a church or public oratory to recite together a litany,
although the minister of the Church would assist only as
a private person, not as a minister. Thus to recite a non-
44
approved litany is, therefore, forbidden. Neither are
Sisters or nuns allowed to recite such litanies in common
in their choir, even though this be separated from the

church by a grate. 45 Single religious may recite or chant

Auth., n. 3820); no litany of St. An- Hum christianorum (S. Rit. C., Sept.
thony, or of the Holy Family, or of 15, 1815); Regina SSmi Rosarii
La Salette has so far been approved; (Dec. 10, 1883, nn. 2566, 3598); Re-
S. Rit. C., Jan. 29, 1656; Feb. n, gina pacts (May 5, 1917).
1898; May 12, 1877 nn. 995,
(ibid., 42 S. Rit. C, Sept. n, 1847 n. i

3980, 3419). (n. 2956).

39 S. Rit. C., March 8, 1631; May 43 S. Rit. C., Aug. 24, 1880 (n.
31, 1821, ad 7 (nn. 562, 2613). 3523).
40 S. Rit. C., June 16, 1674; Feb. 44 S. Rit. June
C., i, 1896 (n.
ii, 1702; Aug. 2, 1631 (nn. 1518, 3916).
2093, 576). 45 S. Rit. C., June 20, 1896 (n,
41 S. Rit. C., Aug. 2, 1631 (n.
3917).
576); additions approved are: auxi-

PI LIBRARY
200 ADMINISTRATIVE LAW
such litanies for their private devotion, but not in com
mon. 46
The approved litanies are: the Litany of All Saints,
according to the general tenor and the formula for the
Forty Hours Devotion ;
the Litany of the Holy Name of
47
Jesus the Litany of the Sacred Heart, approved April
;

2, 1899; the Litany of the Blessed Virgin Mary, known

as that of Loreto the Litany of St. Joseph, and the Litany
;

for the Dying (in or dine commendationis animae).

INDEPENDENCE FROM SECULAR INTERFERENCE

CAN. 1260

Ecclesiae ministri in cultu exercendo unice a Su-

perioribus ecclesiasticis dependere debent.

This canon is a well deserved rebuke of the arrogant

bearing of the regalists, as well as of the modern op
pressors of ecclesiastical liberty in matters of divine wor
ship. Benedict XIV, although prone to make conces
sions, admonished the hierarchy of his time never to
allow the lay power to command public prayers to be said
for them, either as a thanksgiving or in case of necessity.
And he exhorted the bishops to speak like Hosius of
Corduba emperor Constantius
to the Do not interfere :
"

in things ecclesiastical, nor command in that kind but ;

rather learn from us. God gave you the reins of govern
ment, but to us He has entrusted what pertains to the
4S
Church." The government may ask, but not command.
Neither are pastors allowed simply to comply with the

46 S. Rit. C., Feb. ii, 1898 (n. ascensionem tuam"; S. Rit. C., Feb.
3981). 8, 1905 (n. 4153)-
47 With the addition: Per "

4,8
"

Quemadmodum," March 23,

SSmae Eucharistiae institutionem 1743-
tuam libera nos, Jesu," after
"

Per
 CANON 1261 201

arrogant edicts of an ignorant board of health, or city

council, or mayor, or governor, or even president.
Everything must be done through the proper channels.
The hierarchy shall comply with the reasonable wishes of
the public or civil authorities. Authority to decide
whether and what kind of prayers are to be said, belongs
to those who are ordained in the things that appertain to
God, to offer gifts and sacrifices.
49
Pius had to comX
plain of Portugal, the so-called republic, which severed
the tie that connected it with the Church. How iniqui
was the law concerning the " "

tous associations of cult is

evident, for entrusted the whole care of divine worship

it

to associations of laymen, from which clergymen were rig

50
idly excluded. There are two societies, the spiritual and
the temporal, with entirely different spheres, rights, and
claims. What is purely spiritual, as divine worship, ap
pertains solely to the society set up for religious purposes.

DUTY OF THE ORDINARY

CAN. 1261

i. Locorum Ordinarii advigilent ut sacrorum ca-

nonum praescripta de divino cultu sedulo observentur,
et praesertim ne in cultum divinum sive publicum sive
privatum aut in quotidianam fidelium vitam supersti-
tiosa ulla praxis inducatur, aut quidquam admittatur
a fide alienum vel ab ecclesiastica traditione absonum
vel turpis quaestus speciem praeseferens.
2. Si loci Ordinarius leges pro suo territorio hac in

re tulerit, etiam religiosi omnes, exempti quoque, obli-

gatione tenentur easdem servandi; et Ordinarius pot-

49 Heb. s, i.

50 "

latndudum," May 24, 1911 (A. Ap. S., Ill, 219).

 202 ADMINISTRATIVE LAW
est eorundem ecclesias vel publica oratoria in hunc
finem visitare.

The local Ordinaries should carefully see to it (i) that

the regulations laid down in the sacred canons on divine
worship are properly observed; especially (2) that no
superstitious practices be introduced into the public or
private divine worship or into the daily life of the faith
ful (3) that nothing be admitted which is contrary to
;

faith or ecclesiastical tradition, or which savors of shame

ful money-making.
The remark concerning superstitious practices is in
tended especially for missionary countries, as is manifest
51
from the fact that most of the papal Constitutions as
well as the decisions of the Roman Congregations ad
duced here have in view the aforesaid countries.
"

Su
52 "

perstition," says St.Thomas, is a vice opposed to reli

gion by excess, not as if it would offer more worship to

God, but because it offers worship to those to whom it is

not due, or in an unlawful manner." This is the case

with ancestor worship 53 in China and other superstitious
practices mentioned in the Constitution of Benedict XIV,
"

Omnium sollicitudinum
3

Sept. 12, 1744. There is al

ways danger that missionaries will connive at such prac
tices in order to swell the number of converts. The es
sence of all these practices formal and willful coopera
is

tion in idolatry. The faithful may be present when the

pagans perform their rites for the dead, provided they
take no active part in them and protest as much as they
54
can. They may eat of the food prepared for idols if it
is dished up with other foods, and the banquet takes place

51 Cfr. Coll. P. F., nn. 347, 349. 53 S. C. P. F., Jan.. 14, I7S3 (n.
52 Summa Theol., II II, q. 92, 386).
art. i. 54 S. O., March 23, 1656 (ibid.,
n. 126).
 CANON 1261 203

55
far away from any pagan place of worship. But they
are not allowed to assist at the meals of gentiles prepared
56
in commemoration of the dead. Catholics may sell
chickens, eggs, plots for cemeteries, etc., provided the sale
is not strictly and knowingly made for superstitious pur
57
poses or with superstitious rites. But they are not al
lowed to contribute to, or aid in, the building of pagan
temples, even though they protest against compulsion and
58
comply in order to avoid persecution.
But pagan countries are not the only ones which are in
danger of superstitious practices. There are so-called
pious superstitions even in Christian communities. Thus
it is irreverent, to say the least, and
unbecoming, to throw
relics of the true Cross, or other relics, even if included
in a reliquary, into the river, or to moisten them, in order
to obtain rain.
59
New and non-approved devotions are
the cult of the heart of St. Joseph and the veneration of
the B. V. Mary under the title of the Cross. 60
61
Omitting other silly practices, which abound among
Southern people more than in the sober North, we must
mention Spiritism. It would be disastrous to regard this
serious menace as a joke. Newspapers, magazines, and
books are now making a regular propaganda for the
dangerous new sect. Hence the Holy Office has justly
forbidden Catholics to assist at spiritistic seances, whether
with or without a medium or
the use of hypnotism, even
though the sittings have an honest purpose or bear the
semblance of piety, no matter whether the souls or spirits
55 S. O., Dec. 15, 1768 (n. 470). 12, 1769 (Dec. Auth., nn. 369, 2486).
56 S. C. P. F., Jan. 14, 1753 (n. 60S. Kit. C., June 14, 1873; Feb.

386). 23, 1894 (ibid., nn. 3304, 3818).

57 S. C. P. F., Jan. 21, 1778; ei S. O., Aug. 3, 1903 (Coll. P.
April 5, 1785 (nn. 526, 575). F., n. 2173): to dissolve paper pic-
58 S. O., Sept. 5, 1736 (n. 320). tures of the B. V. Mary in water or
59 S. Rit. C., Jan. 16, 1619; Sept. form them into pills to obtain health.
204 ADMINISTRATIVE LAW
of the dead are invoked or whether the answers are sim
ply heard, or even if the parties simply look on and pro
test either tacitly or explicitly that they will have nothing
to do with evil spirits. 62 Fortune telling and clairvoyance
are also strictly forbidden.
2 obliges religious, no matter how exempt they may
be, to abide by the laws which the local Ordinary makes
for his territory. The same Ordinary is entitled to visit
their churches and public oratories for the purpose of
this canon. We
have here an old law, enforced by the
Council of Trent, 63 and no appeal is permissible. 64

SEPARATE SEATS FOR MEN AND WOMEN IN CHURCH

CAN. 1262

i. Optandum ut, congruenter antiquae disciplinae,

mulieres in ecclesia separatae sint a viris.

2. Viri in ecclesia vel extra ecclesiam, dum sacris

nudo capite sint, nisi aliud ferant pro-

ritibus assistunt,
bati populorum mores aut peculiaria rerum adiuncta;
mulieres autem, capite cooperto et modeste vestitae,
maxime quum ad mensam Dominicam accedunt.
i. Conformable to ancient discipline, it is desirable
that the women should be separated from the men in
church. The very division of the ancient basilica singled
out the vestibule for the penitents the catechumens were
;

usually admitted to the rear of the nave the faithful occu;

pied the side aisles, the men on the right side of the en
trance, the women on the left. Those who were held in
62 S. O., April 24, 1917 (/4. Ap. 3 Sess. 21, c. 8 de ref.; sess. 22
S., IX, 268) for further literature
; de observ. et evtt.
see Raupert, The New Black Magic, 64 Benedict XIV, "Ad militantis,"

1919; Liljencrants, Spiritism and March 30, 1742, 6.

Religion, 1918.
 CANON 1262 205

special honor by the congregation, as widows and virgins,

and those who, on account of age or social position, were
entitled to peculiar regard, had their place in the forward
end of the aisles or in the transept. The different orders
of the clergy were in turn distinguished, the bishop had his
seat in the middle of the apsidal circle, while the presby
ters were seated on either side of him, but at a lower level,
the deacons stood near the altar and the inferior clergy
had their place with the choir in the nave. 65 In this coun
try it will, we fear, becarry out this "desire
difficult to
"

of the Church, on account of our custom of family pews.

2. The men should assist at sacred functions, either
in or outside of the church, with their heads uncovered,
unless a reasonable national custom or special circum
stances justify a departure from this rule. The women,
on the other hand, should cover their heads and be
dressed modestly, especially when they approach the
Lord s table.
Those especially who, like our trustees, carry the can

opy over the Blessed Sacrament, or reliquaries, or sacred

66
statues, should walk bareheaded.
In China the wearing of a cap or hat is a sign of respect
and honor, and therefore the Church does not insist upon
this disciplinary rule there.
67
An old-fashioned blizzard
"

on the prairies may constitute a special circumstance,"

justifying the wearing of a warm cap in church. The
rule that women should cover their heads is doubtless
68
taken from St. Paul s Epistle. It applies whenever they

attend sacred functions, even from a window which sepa

69
rates them from the place of worship. Concerning
esLowrie, Monuments of the flT S. C. P. F., Oct. 18, 1883, nn.
Early Church, 1901, p.105 f. XV f. (Coll., n. 1606).
66 S. Kit. C., Sept. 25, 1688; June 68 i Cor. n, 4 ff.
18, 1689; Sept. 2, 1690 (nn. 1800, 69 S. Kit. C., July 7, 1876, ad IV.
1810, 1841).
206 ADMINISTRATIVE LAW

decency of dress nothing need be said, since the general

rules of Christian modesty suffice.

DISTINGUISHED SEATS IN CHURCH

CAN. 1263

Potest magistratibus, pro eorum dignitate et

i.

gradu, locus in ecclesia esse distinctus, ad normam

legum liturgicarum.
2. Sine expresso Ordinarii loci consensu nemo
locum habeat in ecclesia sibi suisque reserva-
fidelis

tum; Ordinarius autem consensum ne praebeat, nisi

ceterorum fidelium commoditati sit sufficienter con-
sultum.
3. Ea semper factis in concessionibus inest tacita
conditio, ut Ordinarius possit, ex iusta causa, concessi-
onem revocare, non obstante quolibet temporis de-
cursu.

i. A distinguished place or seat in the church may

be reserved for the civilmagistrates, according to their
dignity and rank. However, the liturgical laws must
never be disregarded. These laws are summed up in the
Ccsremoniale Episcopontm. 70 There we read that the
seats reserved for nobles and illustrious laymen, magis
trates and princes, no matter whether of the highest or the
lowest rank, should be placed outside the sanctuary or
presbytery. Some princes and governors were very arro
gant in this matter, and some bishops too lenient. The
S. Congregation of Rites has always referred to the Ccere-
moniale. Princes, magistrates, etc., may have a predella
or kneeling bench and a special seat covered with a tapes
try or upholstered, but always outside the choir or sanc-
70 Lib. i, c. XIII, n. 13 (ed, Pustet, 1886, p. 58).
 CANON 1263 207

71
tuary, and no canopy is allowed. They may also, in
pax cum instrumento
" "

their proper place, be given the

and two swings of the censer, but these must not be of
fered by the minister of the Holy Sacrifice, but by a chap
72
lain dressed in surplice. If the magistrates wish to have
a seat and kneeling bench in the choir, they must obtain a

special papal indult.

73
A concordat not ratified by the
74
Holy See can not confer It is an intoler
this privilege.

able abuse for occupy the choir stalls of the

laymen to
canons during divine service. 75 All these laws must be
observed also by exempt religious, and should they dare to
violate them, the bishop may proceed against them by
censures. 76
2. No Catholic may, without the express consent of
the diocesan Ordinary, have a seat reserved for himself
and his family in church, and the Ordinary shall not give
his consent unless he is certain that the rest of the faith
ful can be conveniently seated. This, of course, does not
mean that the renting of pews is forbidden. For the
source whence this law is taken, speaks of a citizen who

occupies two, or three, or more pews (scamna), while

others have to stand. This decision gives the bishop the
right to see to it that such unqualified disregard for the
77
rights of others is prevented. From this it is clear that
pastors need not worry about the lawfulness of pew-rent,
which iscommon in our country, but they should see to it
that all the faithful are conveniently seated.

3. All these concessions contain the tacit condition

71 S. Kit. C.,May 23, 1639; Dec. 75 S. Rit. C., Feb. 21, 1604 (n.
15, 1640 (Dec. Auth., nn. 680, 726). 157).
72 S. Rit. C., Jan. 15, 1661 (n. 76 S. Rit. C., March 13, 1688;
1187). April 22, 1690 (nn. 1792, 1831).
73 S. Rit. C., July 8 and 18, 1654 77 S. Rit. C., Dec. u, 1604 (n.
(n. 959 *). J 74).
74 S. Rit. C., March 12, 1689 ("

1808).
208 ADMINISTRATIVE LAW
that the Ordinary may revoke them for a just cause and
that no prescription confers apermanent right. For lay
men, even by paying pew-rent for a number of years,
78
acquire no personal right to pews or seats.
Conformable to this canon are most statute laws of this

country. Pew a matter of bargain, and

rights are all
"

entirely conventional between the trustees and those indi

viduals who wish to become hearers or members of the
79
society and to have seats in the church." The pew-
holder are not absolute, but subordinate to, and
s rights

limited by, the superior rights of the owner of the build

ing, and may even be affected by by-laws passed after he

has acquired his right. It follows that the civil courts
cannot decide otherwise than according to the church
law.

CHURCH MUSIC
CAN. 1264

i. Musicae in quibus sive organo aliisve instru-

mentis sive cantu lascivum aut impurum aliquid mis-
ceatur, ab ecclesiis omnino arceantur; et leges liturgi-
cae circa musicam sacram serventur.
2. Religiosae mulieres, si eisdem liceat, ad nor-
mam suarum constitutionum vel legum liturgicarum
ac de venia Ordinarii loci, in propria ecclesia aut ora
torio publico canere, tali e loco canant, ubi a populo
conspici nequeant.

All kinds of lascivious or impure music, whether

I.

accompanied by the organ or other instruments, or ren

dered vocally, must be entirely eliminated from the
78 S. Kit. C., Nov. 22, 1642 (n. 79 Cfr. Zollmann, American Civil
816). Church Law, 1917, p. 4*4 ff.
 CANON 1264 209

churches and the ; liturgical laws concerning sacred music

must be observed.
This is a repetition of an enactment of the Council of
80
Trent as well as of later papal constitutions. It is not

within the sphere of a canonist to dwell upon the devel

opment of Church music, much less upon the finer nu
"

between the different kinds of music, Gregorian 81

"

ances
or Plain Chant and polyphonic renderings. Suffice it to
say that the Church has never condemned Polyphony,
which began to come into being in the fourteenth century,
when the Plain Chant commenced to decline. 82
What is menat by lascivious and impure music? Ac
cording to a decree of Alexander VII, of April 23, 1657,
it signifies music which suggests the dance or profane
rather than ecclesiastical ideas. 83 Benedict XIV com
plains that what is lawfully permitted to be sung is often
8*
treated theatrically and operatically, like a stage play.
The same Constitution permits the following musical in
struments : violoncello and double bass, bassoon, viola and
violins; but excludes drums, hunting horns, trumpets,
85
oboes, flutes and mandolins and such like,
picolos, piano,
which savor of the theatre. Instruments are allowed only
to strengthen the voice parts, so as to lead the mind more
forcibly to the contemplation of divine things and the love
of God. Finally, the sensuous and improper qualities of
church music are negatively described in the well known
Motu proprio of Pius X, Nov. 22, 1903. There the
" "

80 Sess. 22, de observ. et evit. 84 "

Annus qui," Feb. 19, 1749,

81 We leave the question open as 2 ff.

to whether St. Gregory the Great 85 However, oboes and clarinettes

may fully claim the title of "Father are moderately permitted; S. Rit. C.,
of the Plain Chant"; adhuc sub- Nov. 13, 1908 (Dec. Auth., n. 4226) ;

iudice Us est. not allowed are chimes or peals to-

82 Cfr. R. R. Terry, Catholic gether with the organ for liturgical
Church Music, London, 1907, p. 55. service; S. Rit. C., May 18, 1917
83 Terry, /. c., p. 21. (A. Ap. S., IX, 352).
210 ADMINISTRATIVE LAW
"

great restorer of Christian ideals says: Nothing, there

fore, should have place in the temple that is calculated to
disturb, or even merely to diminish, the piety and devotion
of the faithful nothing that may give reasonable cause
;

for disgust or scandal nothing, above all, which directly

;

offends the decorum and the sanctity of the sacred func

tions, and is thus unworthy of the House of Prayer and
86
the Majesty of God."

Church music must be sacred music, and therefore ex

clude all profanity, not only in itself, but in the manner in

which it is presented. 87 The whole instruction is note

worthy. We cull from it one more sentence (n. 22) :

It is not lawful to keep the priest at the altar waiting on

"

account of the chant or the music for a length of time not

allowed by the liturgy."

The typical Vatican edition of the Graduale was ap

proved Aug. 7, 1907, and all editors have to conform to
that edition. 88 This edition must be used in the churches
89
exclusively, even to the exclusion of the Medicaea. Va
rious other decrees were issued to give weight to the
Motu proprio of Pius X. The quintessence of these is

that the Vatican edition of the Graduale Roinanum is the

typical one, with others must agree, since the

which all

rhythmic signs (signa rythmica) are fully contained in

90
said edition. Other editions which, though accurately
presenting the melodies of the Vaticana, have special
rhythmic signs appended by private authority, may be
used as subsidiary aids by the singers, and for these the
86 Dec. Auth., n. 4121; Terry, /. 90S. Kit. C., Jan. 25, 1911 (n.

c., p. 9. 4259) the Vatican edition represents

:

87 Terry, /. c., p. 12. the signs, although not especially

88 Dec. Auth., n. 4203, see also printed, by the distance of the
nn. 4166, 4168, 4229. neums, and thus indicates what is
89 S. Kit. C., April 8, 1908 (n. called the mora vocis.

4217).
 CANON 1264 211

Ordinaries may give their imprimatur, provided the other

rules laid down in the decrees referring to Plain Chant
are complied with. 91 In 1912 was approved the Anti-
phonale Diurnum Sacrosanctae Ecclesiae Romanae and
edited by the Vatican Press the same year. To this also
the liturgical rules and decrees referring to the Gradual
92
must be applied.
Religious women, if their Constitutions or the
2.

liturgical laws and the local Ordinary permit them to do

so, may sing in their own church or public oratory, but

only in a place where they cannot be seen by the public.

It is hardly probable that nuns will again sing together
with canons and monks, as was the case at the time of
93
Innocent II, who complained of this abuse, but certain

regulations have beenmade concerning women singers in

church choirs, which must be applied with discretion.
Thus congregational singing by all the people, who thus
take, as were, the place of the choir (schola cantorum),
it

does not exclude women and girls, provided they occupy

9*
a place distinct from that of the men, as far as possible.
Sisters or nuns are not supposed to mix with the congre

gation, but they sing with the children entrusted to their

if

care, there can be no reasonable objection to the practice.

However, since mixed choirs, i. e., choirs composed of
men and women, have not found favor with the S. Con
perhaps not too much to say that Sisters
95
it is
gregation,
should not take part in such choir singing.
Besides, according to the Instruction of Nov. 22, 1903,
ei S. Kit. C., April n, 1911 (n. 94 S. Rit. C., Jan. 17, 1908, ad II

4263); June 23, 1917 (A. Ap. S., (n. 4216).

IX, 396 f.). These private editions 95 S. Rit. C., Dec.1908 (n.
18,
are generally printed in modern no- 4231). We notice Card. Gas-
that
tation. parri has not quoted the two deci-
92 S. Rit. C., Dec. 8, 1912 {A. sions just mentioned. Is it perhaps

Ap. S., IV, 727). because they are impossible of exe-

93 Cfr. c. 25, i, C. 18, q. 2. cution?
212 ADMINISTRATIVE LAW
n. 12-13, since the singers in church take the place of the
ecclesiastical choir, women cannot be admitted to form
part of the choir or of the musical chapel. Their place
should be taken by boys, provided of course this regula
tion can be carried into effect. It takes time to train men

and boys and to fill

up the gaps caused by the dismissal of
women. Some of our country churches would be as
silent as a grave without the voices of women singers.
 TITLE XV
RESERVATION AND WORSHIP OF THE
BLESSED SACRAMENT
CAN. 1265

i. Sanctissima Eucharistia, dummodo adsit qui

eius curam habeat et regulariter sacerdos semel saltern
in hebdomada Missam in sacro loco celebret :

Custodiri debet in ecclesia cathedrali, in ecclesia

i.

principe Abbatiae vel Praelaturae nullius, Vicariatus

et Praefecturae Apostolicae, in qualibet ecclesia paroe-
ciali vel quasi-paroeciali et in ecclesia adnexa domui

religiosorum exemptorum sive virorum sive mulierum ;

2. Custodiri potest, de licentia Ordinarii loci, in ec

clesia collegiata et in oratorio principali sive publico
sive semi-publico turn domus piae aut religiosae, turn
collegii ecclesiastici quod a clericis saecularibus vel a
religiosis regatur.
2. Ut in aliis ecclesiis seu oratoriis Custodiri pos-

sit, necessarium est indultum apostolicum loci Ordi- ;

narius hanc licentiam concedere potest tantummodo

ecclesiae aut oratorio publico ex iusta causa et per
modum actus.
3. Nemini licet sanctissimam Eucharistiam apud
se retinere aut secum in itinere deferre.

Provided there is a guard, and provided a priest says

Mass regularly at least once a week in the sacred place :

213
 2i 4 ADMINISTRATIVE LAW
i. The Holy Eucharist must be kept in the cathedral
church, the main church of an abbatial or prelatical terri
tory nullius, of a Vicariate and Prefecture apostolic, in
every parish and quasi-parish church, and in the church
adjoining the house of exempt religious, either male or
female.
2. The Holy Eucharist may be kept, with the permis
sion of the local Ordinary, in collegiate churches, in the

principal public or semi-public oratories of charitable or

religious houses, as well as in those of ecclesiastical col
leges, in charge of either the secular or religious clergy.
In the earliest centuries, as ancient documents testify,
the Holy Eucharist was kept by private persons and in
private houses. But this custom ceased when the
churches were no longer exposed to persecution and com
munities of faithful gathered around the cathedral as well
as parish churches. The foremost reason for keeping
the Blessed Sacrament is the necessity of administering it
as viaticum to the sick. But the living also are entitled,
especially now-a-days, to the privilege of receiving the
Holy Eucharist. Lastly, the Real Presence naturally im
1
plies adoration. The present legislation mitigates the
2
former rigid laws or at least decisions, which required
papal indults.
A distinctionis made between obligation and permis

sion. The first paragraph of I says debet, the second, :

potest. The reason for this distinction is clear from the

purpose of reservation, as stated above. Among the
churches which must keep the Blessed Eucharist are those
of exempt religious of both sexes, because they are par
ish churches for the members. However, it should be
noted that canonical erection is required before a church
i Cfr. Gasparri, De SSma Euch., 2 S. C. C, quoted by Gasparri, I.

n. 972. c, n. 980.
 CANON 1265 215

is allowed to keep the Blessed Sacrament. 3 Note, also,

that the cathedral church is mentioned in general terms.
This means that every cathedral church, even though it
is not a parish church, must keep the Blessed Sacrament-
4
Hence may no
longer be looked upon as a privilege,
it

but as an obligation. This is, to say the least, becoming

because the cathedral church is, as it were, the parish
church of the whole diocese.
Among the churches in which the Blessed Sacrament
may be kept without special papal indult, and with the sole
consent, either written or oral, explicit or tacit, of the
local Ordinary, are the principal oratories of religious and
charitable institutions. In each religious institution or
house, therefore, one chapel, i. e., the main public or semi-
public oratory, may keep the Holy Eucharist. Infirmary
chapels or private oratories, even of prelates inferior to
bishops, cannot preserve the Holy Eucharist without a
special papal indult. Nor are religious allowed to keep
the Blessed Sacrament in their rural chapels without an
5
indult.

Charitable institutions in whose principal chapels the

Blessed Sacrament may be kept are, of course, those
which are under ecclesiastical government. 6
Observe the term local Ordinary. Hence the permis
sion must be obtained, not from the prelate regular under
whose jurisdiction or direction a sisterhood or brother
hood is placed, but from the diocesan Ordinary, by which
name also the Vicar General may be understood.
The canon mentions two preliminary conditions: a
guard and a priest who says Mass at least once a week,
as a rule. It is not required that the one who keeps

3 Cfr. can. 496 f. and our Com- 5 S. C. C., Sept. 3, 1703; Gas-
mentary, Vol. Ill, 82 ff.; S. Kit. C, parri, /. c., n. 978.
April 16, 1644 (n. 860). 6 Cfr. can. 1489.
4 As formerly, see Gasparri, /. c.
216 ADMINISTRATIVE LAW
watch church or chapel be a priest. He may be a
at the
7
layman, and
in religious communities no special guards
are required because the community itself is the guard.
But it is always required that a priest say Mass once a
week, unless he is prevented by an accident. This rule
was made in order to provide for the renewal of the
sacred species and to safeguard the observation of the
rubrics. Where the church is not adapted for the reser
vation of the Blessed Sacrament, either for lack of doors
or windows, or want of safety, the S. C. has decided that
the Blessed Sacrament should, on account of the sick, be
kept in the parish residence or in the house of another
8
priest.
2. To keep the Holy Eucharist in any other church
or oratory besides those mentioned requires a papal indult.
The local Ordinary may grant this permission only for
churches and public oratories, for a just cause, and per
modum actus. ^U^^^A^- (*. &+
tf^y^vJ
*
Ww/uLc^^.
Petitions asking for this privilege must be sent to the
S. C. of Sacraments. Religious may address the S. C. of
Religious, though the grant is always made by the former
Congregation.
" "

W^hich are the other churches mentioned in the text ?

They are, negatively, all churches not of the classes men

tioned in i, and the collegiate churches named in
i,

i, n. 2. The term therefore comprises the churches of

confraternities which are not erected in parish churches
or in churches of exempt religious orders or which do not
9
serve a charitable purpose, v. g., hospital or school work.
The other oratories are all private oratories, with
" "

7 S. Kit. C., Feb. 17, 1881 (n. 9 S. Rit. C., Sept. 12, 1626; June

3517). 14, 1646; Jan. 12, 1704 n. 26 (nn.

8 S. C. P. F., Aug. 23, 1852, ad 2 420, 895, 2123).
(Coll., n. 1079).
 CANON 1265 217

the exception of course of those located in the residences

of cardinals or bishops, all semi-public oratories which do
not serve as main chapel of a religious community or
charitable institute, and all public oratories which belong
to confraternities or sodalities ;not, however, the oratories
of pious associations, because these may reasonably claim
the favor of I, n. 2.

The papal indult generally contains the clause pro :

"

vided that the chapel be decently furnished, that the

Blessed Sacrament be safely kept, that a light be always
kept burning before it, and that a priest says Mass there
at least once a week. 10

The Ordinary may grant this permission only to

churches and public oratories, not to semi-public or pri
vate oratories. Besides he must demand a just reason,
and can give the permission only per modum actus (see
can. 1195). Such a reason for, and transient manner of,
granting this permission would be repair work on the
main church, or deficient seating capacity of the parish
church, or some temporary physical impediment, like a
flood, a fire, or an epidemic.

3. No one is allowed to keep the Blessed Sacrament

in his home or to carry it with him when travelling. If
one would keep the Blessed Sacrament in his home for
sinister purposes, such as magic, he would be open to the

suspicion of heresy and liable to be denounced to the Holy

11
Office.
The custom of carrying the sacred host when travelling
has long been given up, and the practice declared unlaw
ful, even for missionaries. 12
10 S. Rit. C., May 23, 1593 (n. dido." May 14, 1889 (n. 3706).
31) i. Sometimes has been added n S. C. P. F., Feb. 25, 1859
the clause: "

absque parochi, intra (Coll., n. 1171).

cuius parochiae fines existit, praeiu- 12 Gasparri, /. c., n. 971.
2i8 ADMINISTRATIVE LAW
OPEN CHURCHES

CAN. 1266

Ecclesiae in quibus sanctissima Eucharistia asserva-

tur,praesertim paroeciales, quotidie per aliquot saltern
horas fidelibus pateant.

Churches which the Blessed Sacrament is kept, espe

in

cially parish churches, should be open a few hours daily

to the faithful. For one purpose of reservation is adora
tion of the Eucharistic Christ.

CAN. 1267

Revocato quolibet contrario privilegio, in ipsa re-

ligiosa vel pia domo sanctissima Eucharistia custodiri
nequit, nisi vel in ecclesia vel in principal* oratorio nee ;

apud moniales intra chorum vel septa monasterii.

In religious houses or charitable institutions the Holy

Eucharist may be kept only in the church or principal
oratory, and nowhere else ;
nuns are not allowed to keep
it within the choir or convent enclosure. Every privi
lege to the contrary is hereby revoked.

THE BLESSED SACRAMENT ALTAR

CAN. 1268

i. Sanctissima Eucharistia continue seu habituali-

ter custodiri nequit, nisi in uno tantum eiusdem eccle-
siae altari.
Custodiatur in praecellentissimo ac nobilissimo
2.

ecclesiae loco ac proinde regulariter in altari maiore,

nisi aliud venerationi et cultui tanti sacramenti com-
modius et decentius videatur, servato praescripto le-
 CANON 1268 219

gum liturgicarum quod ad ultimos dies hebdomadae

maioris attinet.
3. Sed in ecclesiis cathedralibus, collegiatis aut
conventualibus in quibus ad altare maius chorales
functiones persolvendae sunt, ne ecclesiasticis officiis
impedimentum afferatur, opportunum est ut sanctis-
sima Eucharistia regulariter non custodiatur in altari
maiore, sed in alio sacello seu altari.
4. Curent ecclesiarum rectores ut altare in quo
sanctissimum Sacramentum asservatur sit prae omni
bus aliis ornatum, ut suo ipso apparatu magis
ita
moveat fidelium pietatem ac devotionem.

i. The Blessed Sacrament cannot be kept habitually

on more than one altar of the same church.
13
This altar should be designated by the Ordinary, and
14
the rule laid down in this canon also binds regulars.
But an exception is made in favor of churches of perpet
ual adoration, which must have another tabernacle on
another altar, where holy Communion may be distributed
15
to the faithful. Note the word habitually. During the
Forty Hours Devotion the Blessed Sacrament must also
be kept on another, for instance, a side altar for the dis
tribution of holy Communion. On this altar must be
a movable tabernacle, and if no railing surrounds
placed
the altar, benches may be placed round about it to mark
16
it off. Of course, where there is no other altar, this
expedient will not work, and the best thing to do is
to

have the other kind of Forty Hours which permits of

reposition every day, or else to construct a temporary
altar with a movable tabernacle. The term habitually
13 S. Rit. C., July 21, 1696 (Dec. 15 S. Kit. C., May 18, 1878 (n.
Auth., n. 1946). 3449)-
14 S. Rit. C., March 14, 1861 (n. 16 S. Rit. C, Nov. 23, 1880 (n.
3104). 3525).
 220 ADMINISTRATIVE LAW
admits of another departure from the general rule. Thus
it is permitted to transfer the Blessed Sacrament from

the usual to another altar during a triduum or novena,

and in the months of May and June, and, we suppose,
also in October, for the distribution of Holy Communion
and Benediction. 17
2. The Blessed Sacrament should be kept in the
most prominent place of honor, and therefore gener
ally on the main altar, unless there is one more conven
iently located and better suited for the veneration and
cult of this holy Sacrament. But the rules regarding the
last three days of Holy Week must be observed. The
Blessed Sacrament may not be kept continually on the
altar in the choir (altare chori), but it may be kept on
side altars or in side chapels. 18
The liturgical laivs referred to are the rubrics and cer
tain decrees concerning the triduum of Holy Week. One
of these says that no sacred particles may be placed in the
repository together with the Host to be used for the Missa
Praesanctificatorum on Good Friday For the rest we
must refer the student to the general rubrics.
3. In cathedral, collegiate, and conventual churches
in which the choir functions are held at the main altar,
the Blessed Sacrament may as a rule be kept in an
other chapel or on another than the high altar, in order
not to interfere with the services. text says The
oppor-
"

tunum," which per se does not imply a strict law. How

ever, the S. Congregation, in one instance at least, refused
to allow the Blessed Sacrament to be kept on the high
20
altar of the cathedral church. The Caremoniale Epis-
17 S. Kit. C., June 2, 1883 (n. 19 S. Kit. C., Dec. 9, 1899, ad IV
3576). (n. 4049)-
18 S. Rit. C, April 26, 1901 (n. 20 S. Rit. C, Feb. 6, 1875 (n.
4071). 3335).
 CANON 1269 221

coporum prescribes removal of the Blessed Sacrament

from the altar on which the bishop solemnly pontificates.
23

4. The rectors of churches shall take care that the

altar on which the Blessed Sacrament
is kept, be more

elaborately decorated than the other altars, so that its very

appearance may move the faithful to devotion.
We know of no special rules for the decoration of the
sacramental altar, except that a light should burn before
22
it and the tabernacle be curtained. The Cceremoniale
Episcoporum (i. I, c. has in view pontifical
12, n. 8, 12)
functions. It certainly is becoming that the sacramental
altar should be more elaborately decorated than the others.
More candlesticks, more steps, flowers (when permitted),
an antipendium, and similar ornaments permitted by the
rubrics will help to draw the attention of the faithful to
their Eucharistic Lord. The sacramental altar should be

clearly distinguished from the altar of the Blessed Virgin,

for the Hidden God must not stand back before even His
noblest creature.

THE TABERNACLE
CAN. 1269

i. Sanctissima Eucharistia servari debet in taber-

naculo inamovibili in media parte altaris posito.

2. Tabernaculum sit affabre exstructum, unde-

quaque solide clausum, decenter ornatum ad normam

legum liturgicarum, ab omni alia re vacuum, ac tarn
21 Tit. i, c. 12, n. 8. The reason altar, neither is the law against this
for this rule lies in the ceremonies practice, because it is
"

opportune."
to be performed before the Pontiff. 22A canopy or curtain should be
But if a cathedral church serves as over the tabernacle; Kit. Rom., tit.
parish church, it certainly is more IV, c. i, n. 6. But it may frankly
convenient for the people that the be stated that an artistic tabernacle
Bl. Sacrament be kept on the main often suffers from a cover.
 ADMINISTRATIVE LAW
sedulo custodiatur ut periculum cuiusvis sacrilegae
profanationis arceatur.
Gravi aliqua suadente causa ab Ordinario loci
3.

probata, non est vetitum sanctissimam Eucharistiam

nocturno tempore extra altare, super corporal! tamen r
in loco tutiore et decenti, asservari, servato praescripto
can. 1271.
Clavis tabernaculi, in quo sanctissimum Sacra-
4.
mentum asservatur, diligentissime custodiri debet,
onerata graviter conscientia sacerdotis qui ecclesiae vel
oratorii curam habet.
i. The Blessed Sacrament must be kept in an im
movable tabernacle in the middle of the altar.

2. The tabernacle must be skilfully constructed and

safely locked, appropriately decorated according to the
liturgical rules, be empty, and so carefully guarded that
there no danger o f sacrilegious profanation.
is
f

Concerning the material of which the tabernacle is to

be made, there are no rigid rules-. 23 But the more pre
cious the metal or stone, the more becoming it will be.
Inside the tabernacle may be draped with white cloth, or
simply gilded. On the outside
24
it must be covered with

a veil or curtain. No veil is required on the inside,

25
though this custom may be tolerated. The material of
the outside cover or veil may be silk, cotton, wool, hemp,
etc. The
color of the veil (called conopaeum, because it
is supposed to be thrown over the whole tabernacle) has
not been determined. The S. Congregation has admitted
two opinions : the one which holds that tl>e
color must

always be white, the other (Gavante) that it must change

23 The Capuchins may have a 24 S. Kit. C., Aug. 7, 1871; June
wooden tabernacle without any spe- 5, 1889 (nn. 3254, 3709).
cial painting outside; S. Kit. C., 25 S. Kit. C., April 28, 1866 (n.
Dec. 7, 1888, ad XIII (n. 3697). 3150).
 CANON 1269 223

according to the office and the seasons. This latter opin

ion was favored by the S. Congregation, 26 but no strict
rule can be deduced from its answer. Hence a white veil
is certainly admissible. However, since at funeral
masses, exequies and on All Souls Day, the antipendium
and the drapery are of black, the veil of the tabernacle
should also be, not black, but purple. 27
3. For any weighty reason which the Ordinary
deems sufficient, it is permitted to keep the Blessed Sac
rament at night away from the altar, in a more secure and
decent place, but always on a corporal and with due re
gard to can. 1271. This would undoubtedly be permitted
28
in case of churches used by Catholics and Protestants
alternately, and
also in case a missionary lives far away
from the church, especially for administering the Viati
cum. 29
4. The key of the tabernacle, in which the Blessed
Sacrament is kept, must be carefully guarded; the respon
sibility for carrying out this law rests with the priest who
has charge of the church or oratory.
In order to prevent sacrilegious theft or irreverence, the
priest, i. e., the pastor, or rector, or canon sacristan,
should
keep the key in his pocket or put it with other keys in a

cupboard or drawer, so that strangers cannot discover

and abuse it. 30 It is especially forbidden to hand the key
of the sepulchre on Holy Thursday to a layman, or to a
confraternity or sodality; and no custom to the contrary
is tolerated.
31
How serious this obligation is may be
26 S. Rit. C., July 21, 1855 (n. 29 S. Kit., C., Feb. 10, 1871, ad V,
i (n. 3234).
3035).
27 S. Rit. C, Dec. i, 1882 (n. 30 S. C. EE. et RR., Feb. 9, 1751
3562). (Bizzarri, /. c., p. 31 f-).
28 S. C. P. F., March 7, 1805 31 S. Rit. C., Dec. 6, 1631; Dec.
(Coll., n. 681): "in aedibus paro- 7, i?37 May
, 22, 1841 (nn. 579,
chi." 2335, 2833).
 224 ADMINISTRATIVE IAW
judged from the penalties threatened in the decretals and
inone letter of the S. Congregation Imprisonment, pri :

vation of the active and passive vote, and suspension.

The bishop together with the superior may proceed thus
32
against exempt religious.

THE PYX
CAN. 1270

Particulae consecratae, eo numero qui infirmorum et

aliorum fidelium communion! satis esse possit, per-
petuo conserventur in pyxide ex solida decentique ma-
teria, eaque munda et suo operculo bene clausa, co-

operta albo velo serico et, quantum res feret, ornato.

A
number of consecrated particles, sufficient for the
communion of the sick and other faithful, must always be
kept in a pyx or ciborium made of some solid and suitable
material, kept neat and well closed, covered with a veil of
silk, which may be artistically ornamented as far as the
rubrics allow.
This text is taken almost verbally from the Roman
Ritual, and is also intended for the Orientals,
should, who
like the Latins,
preserve the particles in a pyx, not in a
33
dried or unbecoming form, as if they were mere bread.
The pyx should be made of metal, not of glass or some
similar substance, even though there be danger that it be
34 35
stolen. Copper is admissible, if gilded.
The particles be kept on the corporal, even
may never
36
though there be danger of theft. They must be pre-
32 S. C. EE. et RR., c. 35 S. Rit. C., Aug. 31, 1867, ad VI
/.

33 Rit. Rom., tit. IV, c. i, n. 5; (n. 3162).

Bened. XIV,
"

Praeclaris," March 36 S. Rit. C., Feb. 17, 1881 (n.

18, 1746 (Coll. P. F., n. 356). 3527).
34 S. Rit. C., Jan. 30, 1880 (Dec.
Auth., n. 3511).
 CANON 1271 225

served perpetuo, i. e., always, even during the Corpus

Christi procession. 37
The veil or cover of the ciborium may be embroidered
or bear some suitable emblems having reference to the
Holy Eucharist but it must not be overloaded or so
;

heavy that it is difficult to open the lid.

The ciborium itself must be kept clean, especially from
rust and verdigris.

THE TABERNACLE LIGHT

CAN. 1271

Coram tabernaculo, in quo sanctissimum Sacramen-

tum asservatur, una saltern lampas diu noctuque con-
tinenter luceat, nutrienda oleo olivarum vel cera apum ;

ubi vero oleum olivarum haberi nequeat, Ordinarii loci

prudentiae permittitur ut aliis oleis commutetur, quan
tum fieri potest, vegetabilibus.

At least one lamp must burn day and night before the
tabernacle in which the Blessed Sacrament is kept. For
this lamp olive oil or beeswax should be used; if no olive
oil is available, may be used, according to the
other oils

prudent judgment of the Ordinary, but they should be

vegetable oils, if possible.
This is a grave obligation, as may be seen from the
constant insistence with which it was forced upon the
rectors of churches. The sanctuary lamp must be re
served for the sole purpose for which it is prescribed, and
not serve other purposes, for instance, illumining a dor
38
mitory. The lamp may be attached to the side wall,
like a bracket or cornucopia, provided that the light burns
37 S. Rit. C., Aug. 13, 1667, ad 2 38 S. Rit. C, Aug. 22, 1669 ^n.
(n- 1357)- 2033).
226 ADMINISTRATIVE LAW
towards and before the altar (infra et ante altar e).
Olivebest serves the mystic significance of the sanc
oil
40
tuary lamp, as expressed in the liturgy of Palm Sunday.
However, beeswax, the significance of which is pointed
out on Candlemas Day, is also permitted. So, top, is a
mixture of olive oil and beeswax. 41 Vegetable oils (lin
seed, sesame, etc.) may be used where olive oil is unavail
able. Note well that the text does not admit the use of
electric light for the sanctuary lamp, as a decree of the
on account
"

S. Rit. C. permitted about four years ago,

42
of war conditions." On the other hand it is safe to

say that this decree seems to pave the way for the use of
electric or gaslight as an aid to reading and for ornamen
tal purposes, even on the altar. Hence the former rigor
43
ous decisions may be taken with a goodly dose of dis
cretion.

ALTAR BREADS

CAN. 1272

Hostiae consecratae, sive propter fidelium commu-

nionem, sive propter expositionem sanctissimi Sacra-
menti, et recentes sint et frequenter renoventur, veteri-
bus rite consumptis, ita ut nullum sit periculum corrup-

ionis, sedulo servatis instructionibus quas Ordinarius

loci hac de re dederit.

Theconsecrated hosts reserved for the communion of

the faithful or for the exposition of the Blessed Sacra
ment mast be fresh and should be frequently renewed, the
39 S. Rit. C., June 2, 1883 ad IV 42 S. Rit. C., Nov. 22, 1907 <n.

(n. 3578). 4206); Nov. 23, 1916 (A. Ap. S.,

40 S. Rit. C., July 9, 1864 (n. VIII, 72 f.).
3121). 43 S. Rit. C., Nov. 29, 1901; May
41 S. Rit. C., Nov. 8, 1907 (n. 16, 1902; Nov. 22, 1907 (nn. 4086,
4205). 4097, 4206).
 CANON 1273 227

old ones having been duly consumed, so that there is no

danger of corruption. Upon this matter the instructions

given by the local Ordinaries should be scrupulously ob
served. See can. 815. Attention may be drawn to the
decisions of the S. Congregation of Rites, which insist

upon weekly renewal of the sacred species according to

the C&remoniale Episcoporum.**

FREQUENT ASSISTANCE AT MASS AND VISITS TO THE

BLESSED SACRAMENT

CAN. 1273

Qui in religiosam fidelium institutionem

incumbunt,
nihil omittant ut pietatem erga sanctissimam Eucha-
ristiam in eorum animis excitant, eosque praesertim
hortentur ut, non modo diebus dominicis et festis de
praecepto, sed etiam diebus ferialibus intra hebdoma-
dam, frequenter, quantum fieri potest, Missae sacri^
ficio assistant et sanctissimum Sacramentum visitent,

Those who have charge of the religious instruction of

the faithful, should endeavor to foster in their hearts de
votion to the Holy Eucharist, and exhort them to assist at
Mass not only on Sundays and holydays of obligation, but
also as often as possible on weekdays, and to visit the
Blessed Sacrament.

EXPOSITION OF THE BLESSED SACRAMENT

CAN. 1274
i. In ecclesiis aut oratoriis quibus datum est as-
servare sanctissimam Eucharistiam, fieri potest expo-
sitio privata seu cum pyxide ex qualibet iusta causa
sine Ordinarii licentia ; expositio vero publica seu cum
44 Lib. I, c. VI, n. 2; S. Rit. C., Sept. 12, 1884, n. II (n. 3624).
228 ADMINISTRATIVE LAW
ostensorio die festo Corporis Christi et intra octavam
fieri potest in omnibus ecclesiis inter Missarum sollern-
nia et ad Vesperas; aliis vero temporibus nonnisi ex
iusta et gravi causa praesertim publica et de Ordinarii
loci licentia, licet ecclesia ad religionem exemptam
pertineat.
2. Minister expositionis et repositionis sanctissimi

Sacramenti est sacerdos vel diaconus; minister vero

benedictionis Eucharisticae est solus sacerdos, nee
earn impertire diaconus potest, nisi in casu quo, ad nor-
mam can. 845, 2, Viaticum ad infirmum detulerit.
I. Private exposition of the Blessed Sacrament, i. e.,
with the ciborium, may be held for any reasonable cause
without the permission of the Ordinary in churches and
oratories in which the Blessed Sacrament is lawfully kept.
This sounds partly like a definition and is no doubt in
tended as such, to distinguish private from public ex
position, which is mentioned in the next clause. But the
definition is not complete and should be supplemented by
45
a decision of the S. Congregation of Rites. Private ex

position {ex causa privata) takes place if the Blessed

Sacrament is not taken out of the tabernacle, but remains
hidden, so that the Host cannot be seen. Hence the taber
nacle is opened and the ciborium is placed near the open
46
ing. Private exposition excludes placing the ciborium
47
or pyx, as it is called in the decisions, upon a throne or
movable tabernacle. Benediction with the ciborium is not
forbidden where there is a long-standing custom author
48 49
izing it. In fact, says Cardinal Gasparri, if this less

45 May 31, 1642 (n. 800). 28, 1902 (nn. 2725, 4096).
46 Bened. XIV, Instit., 30, n. 48 S. Kit. C, Sept. n,
1847;
XVI; Gasparri, De SSma Euch., n. March 16, 1876 (nn. 2957, 3394).
1022. 49 L. c., n. 1034; Bened. XIV, In-
47 S. Kit. C., May 23, 1835; April stit., 30, n. VI f., where the pros
 CANON 1274 229

solemn benediction can be imparted pro causa turn pub-

lica turn privata, theOrdinary should not permit solemn
and visible benediction with the ostensorium except for a
causa publica. This appears to us a very reasonable rule.
Thus during the month of October this private benedic
we believe, would be amply justified and sufficient on
tion,

weekdays.
What is a causa privata? A case of sickness or the
mere desire of pious persons or of a religious community
would be a private cause sufficient to justify private expo
50
sition.

The mode of holding this kind of exposition and im

parting the benediction is as follows: The priest wears
stole and surplice, also, if he wishes, a cope. At least six
candles must be lighted, but the incensation is omitted,
since this is not in keeping with the Roman practice. 51

Praying and singing are allowed, and the Tantum ergo*

with versicle and oration may be said or sung. After
the blessing is given the tabernacle should again be
52
closed.
Such an exposition requires no permission from the
Ordinary, and is permitted in all churches and oratories

which are entitled, either by law or by an indult, to keep-

the Blessed Sacrament, according, to can. 1265.
Public exposition, i. e., with the ostensorium or mon
strance, may be held in all churches on the feast of Cor
pus Christi and every day within its octave, at Mass and
Vespers, but not on other occasions except for a just and
weighty reason, especially of a public character, and with
the permission of the diocesan Ordinary, which is re
quired also for churches which belong to exempt religious.
and cons of frequent exposition are 51 S. Rit. C., Sept. n, 1847 (n.
set forth. 2957).
50Bened. XIV, /. c., n. XVI. 52 Gasparri, /. c., n. 1027.
230 ADMINISTRATIVE LAW
The difference between private and public exposition
lies in the manner of exhibiting the Blessed Sacrament as
well as in the reason for which it is permitted. The pre
scribed vessel here is the ostensorium with the lunula. 53
This is generally placed under a canopy on a throne, on
which isspread a palla or corporal. It is becoming that
54
twenty candles, or at least twelve, be burning on the
altar during the exposition. The color of the antipen-
dium as well as of the canopy and the vestments worn by
the ministers is white. However, if the exposition is con
nected with the office of the day, for instance, Pentecost,
the antipendium and the vestments worn by the ministers
must be of the color ofthe day, i. e., red in the case sup

posed, whilst the canopy may be white. But this is re

quired only if the priest does not leave the altar before the
exposition. If he goes to the sacristy after Mass or Ves

pers are said, he may vest in white. White is also the

color of the velum or humerale thrown over the shoul
55
ders. Black is not allowed under any circumstance at

the altar or in the chapel of exposition, even though the

58
rest of the church still bears signs of mourning.
.All relics must be removed from the altar of expo
57
sition.
The Mass
of exposition should as a rule be at least a
-missa cantata or solemnis, although the term inter Mis-
58
sanun sollemnia does not strictly require a sung Mass.
W hen the Blessed Sacrament
T
is exposed after Communion
53 A so-called custodia is not ne- 55 Gasparri, /. c., n. 1040.
cessary for the lunula. The mate- 5G 5. Rit. C., March 13, 1804 (n.
rial for the ostensorium and lunula 2558); not even if a ruler dies.
is not determined by law, but should 57 S. Rit. C., Sept. 2, 1741, ad i

be the same as for the ciborium; (n. 2365).

58 S. Rit. C., Sept. 25, 1882 (n.
Gasparri, /. c., n. 1030 f.

54 S. Rit. C., Feb. 8, 1879 (n. 3558) has permitted the custom of
3480) ; in this case the churches exposing the Bl. Sacr. with a low
-\vere poor. Mass early in the morning.
 CANON 1274 231

at Mass, the ostensorium should not be covered with a

velum. 59
The genuflections are to be made by bending both knees
60
at private as well as public expositions.
Public exposition is permitted on the feast of Corpus
Christiand within its Octave, but only in churches, which
term includes public oratories. But what about semi-
public oratories which, according to can. 1265, I, n. 2,

are allowed to keep the Blessed Sacrament habitually?

The text of our canon would seem to exclude them.
Cardinal Gasparri simply says It is evident, that exposi
:

tion can only be held in a church which is entitled to keep

the Blessed Sacrament. This would apply also to semi-
public oratories, and we believe that the term in ecclesiis
here should not be taken too strictly, provided, of course,
the functions can be carried out according to the rubrics.
At any rate, it would only require a permission from the
Ordinary to authorize public exposition in pious institu
61
tions.

The
"

last clause of 1274, mentions

I, can. other
times" at which public exposition may be held for a just

and reasonable, especially a public cause. What is a

causa publica? It is one that concerns the whole com
monwealth, or municipality, or parish, or diocese, or coun
try. But it may also be a reason of less extent, according
62
to approved authors. Such a reason would be the erad
ication of vice and fostering of virtue, public peace and

tranquillity, impending disasters, etc., or any other reason

which in one way or another, according to the judgment
of the Ordinary, affects a community, or at least the larger
part thereof. Other times are all those days which do not
fall within the Octave of Corpus Christi. On no other
59 Gasparri, /. c., n. 1036. 61 Gasparri, /. c., n. 1038.
60 Ibid., A. 1023. 62 Ibid., n. 1034.
232 ADMINISTRATIVE LAW

day of the year, except, of course, the last three days of

Holy Week, public exposition forbidden, although Ben
is

edict XIV refused to permit it on the feastdays of Saints,

when these are celebrated with more or less worldly
63
pomp. But custom may admit also those days. 64 Note
that a weighty and public reason
required and, besides,is

the express permission of the Ordinary must be obtained.

From this rule the S. Congregation would dispense neither
in favor of exempt religious, no matter how many priv
ileges they may claim, nor in favor of confraternities. 65
The latter may have an exposition, provided episcopal
permission was given, without asking or notifying the
66
pastor. Hence the faculty of keeping the Blessed Sac
rament does not include that of having an exposition of
67
it outside the feast and octave of Corpus Christi.

2. The minister of exposition is the priest or dea

con but a priest may give the benediction, whereas a dea
;

con may only impart the blessing according to can. 845,

2, viz., when administering the viaticum.
Note that no mechanism allowed for exposing the
is

Blessed Sacrament, but the minister must expose it with

68
his hands. The rather quaint manner of exposition
mentioned in one decision, where the ostensorium was
placed on the right arm of the statue of a Saint, was for
bidden. 69

63 Instit., 30, n. XIV. 67 S. Rit. CM Jan. 12, 1704 ad 27

64 S. Rit. C., Sept. 27, 1864, ad 5 (n. 2123).
(n. 3124). 68 S. Rit. C., April 3, 1873 (Gas-
65 This is the tenor of all the deci- parri, /. c., n. 1041); not contained
sions quoted by Card. Gasparri in in Dec. Auth.
his edition; cfr.Eened. XIV, Inst., 69 S. Rit. C., Aug. 2, 1884 (n.
30, n. IX f. 3615).
66 S. Rit. C., March 18, 1679 (n.
1622).
 CANON 1275 233

THE FORTY HOURS DEVOTION

CAN. 1275

Supplicatio Quadraginta Horarum in omnibus ec-

paroecialibus aliisque, in quibus sanctissimum
clesiis
Sacramentum habitualiter asservatur, statutis de con-
sensu Ordinarii loci diebus, maiore qua fieri potest
sollemnitate quotannis habeatur; et sicubi ob peculi-
aria rerum adiuncta nequeat sine gravi incommodo et
cum reverentia tanto sacramento debita fieri, curet
loci Ordinarius ut saltern per aliquot continuas horas,
statis diebus, sanctissimum Sacramentum sollemniore
ritu exponatur.

The Forty Hours Devotion should be held every year,

on the days established, with the consent of the local Or
dinary, in all parochial and other churches in which the
Blessed Sacrament is habitually kept, and with the great
est possible solemnity. When special circumstances per
mit the exposition of the Blessed Sacrament only with
great inconvenience or danger of irreverence, the local
Ordinary shall see to it that it be exposed solemnly at
least for a number of consecutive hours on stated days.
The consent of the Ordinary may be given once for all,

especially when definite churches are assigned for holding

the devotion on certain days. This consent is required also
for churches of regulars and confraternities, 70 nor may
the pastor or first dignitary of the cathedral church pre
scribe the devotion without the permission of the bishop. 71

During Holy Week, i. e., from the morning of Holy

70 S. Rit. C., Sept. 12, 1642 (n. 71 S. Kit. C, June 4, 1644 (n.
814). 869).
234 ADMINISTRATIVE LAW.

Thursday until early on Holy Saturday, the devotion must

be stopped. 72
The Forty Hours Devotion began in the sixteenth
century. It was at first held on the days preceding Lent,

which custom was approved by the Roman Pontiffs. 73

Clement VIII ordered the Forty Hours Devotion as we
know it. Clement XI not only approved it, but prescribed
perpetual exposition on the same occasion and issued the
so-called Clementina. The privileges and favors granted
by this document are attached only to perpetual exposi
74
tion, unless a special indult is obtained.

72 S. Rit. C., March 12, 1661 (n. 74 Instructio, 21, 1705; S. Kit. C.,
1190). May 27, 1911, ad III (n. 4268).
73 Bened. XIV, Jan. i, 1748.
 TITLE XVI

WORSHIP OF THE SAINTS, SACRED IMAGES,

AND RELICS
CAN. 1276

Bonumatque utile est Dei Servos, una cum Christo

regnantes, suppliciter invocare eorumque reliquias
atque imagines venerari; sed prae ceteris filiali devo-
tione Beatissimam Virginem Mariam fideles universi

prosequantur.

This canon, taken substantially from the dogmatic can

ons of the Council of Trent, 1 embodies the time-honored
practice of the Catholic Church and voices a rebuke
against ancient and modern image-breakers. It lays it

down as a good and useful practice to invoke the inter

cession of the servants of God who reign with Christ,
above all the Blessed Virgin Mary, and to venerate their
relics and images. The hyperdulia paid to the Mother of
God not in vain, 2 although she is a creature.
is Nor is
it imposture, as the so-called reformers maintained, to say
Mass honor of the Saints and to obtain their interces
in
sion with God. 3 It would be rash and pernicious to re

prove the faithful for showing particular veneration and

attributing special titles of honor to miraculous images of
4
the Saints, especially those of the Blessed Virgin Mary.

25, de invoc.
1 Sess. 3 Trid., Sess. 22, can. 5, de Sacrif.
Prop. 26 damn, a S. O., Dec.
2 7, Missae.
1690 (Denzinger, n. 1183). 4 Propp. 70, 71 damn, per
"

Auc-
235
236 ADMINISTRATIVE LAW
There is not the slightest danger that, in
venerating the
Saints and their images, we shall fail to adore God in
spirit and in truth, or that the memory of the Saints will

dislodge God from the hearts of the faithful.

5
For the
rest, the reasonableness of the veneration of the Saints is
a matter for theologians.

PUBLIC WORSHIP OF THE SAINTS

CAN. 1277

i. Cultu publico eos tantum Dei Servos venerari

licet, qui auctoritate Ecclesiae inter Sanctos vel Beatos
relati sint.
2. In album Sanctorum canonice relatis cultus
duliae debetur; Sancti coli possunt ubique et quovis
actu eius generis cultus; Beati vero non possunt, nici
loco et modo quo Romanus Pontifex concesserit.

i. Only those servants of God may be publicly wor

shiped who are counted among the Saints and Blessed
by the authority of the Church.
The history of beatification and canonization may be
studied in the classic work of Benedict XIV. Since the
Xllth century this function is reserved to the Holy See
as a causa maior. (See P. II, Book IV.)
Urban VIII,
"

in his Constitution Caelestis Hierusa-

of July 25, 1634, ruled that no images or votive tab
lem"

lets should be permitted in churches and oratories of

persons who had not yet been declared Saints or Blessed

by the Apostolic See, except such as had been venerated
torem fidei," Aug. 28, 1794 (Denzin- 6 De Servorum Dei Beatificatione
ger, n. 1433 f.). et Canonizationc, ed. Prati, 1839,
s Propfy. 18, 35, 36 damn. Nov. 20, Vols. 7. We may also refer to Part
1687 (ibid., nn. 1105, 1122 f.). II, Book IV of this Commentary.
 CANON 1277 237

by common consent of the Church, or by immem-

"

either
orable custom or in the writings of the Holy Fathers and
holy men." From this ruling it was but natural to con
clude that there was a casus exceptus from the general
rule of beatification and canonization, vis., the cult attrib
uted to a distinguished servant of God and proved by
means described in the Constitution of Urban VIII,
quoted above.
Pending the Causa, or after the Commission for the
trialhas been assigned, it is strictly forbidden to call a
servant of God Venerable and to hold any service of
" "

thanksgiving for the introductio causae or to deliver any

panegyrics.
A
person may be called Venerable only after a
" "

formal decree to this effect has been published. 7 Be

sides it must be understood that, although Saints or
Blessed were venerated publicly with Office and Mass, it
is required that their worship be approved and ratified by

the Church before a Mass or a proper office in their honor

is permitted. For the general rule is that such propria

and Mass are accorded only to such Saints and Blessed

who are mentioned in the Roman Martyrology or have
enjoyed a public cult which has been either formally de
creed or ratified by the Holy See. 8 Sometimes Saints and
Blessed are inserted in diocesan calendars (ordo) who are
neither found in the Martyrology nor endowed with a de
cree of the Holy See. This insertion in diocesan calen
dars or propria of a diocese or order can never produce
the effect or create the presumption of a formal or aequi-
pollens beatification, but leaves both title and cult in statu
Q
quo ante.
1 S. Rit. C., Aug. 26, 1913 (A. Ap. 9 S. Rit. C., April 28, 1914 (A.
S., V, 436 ff.). Ap. S., VI, 235 f.).
8 S. Rit. C., July 13, 1896 (n.
3926).
238 ADMINISTRATIVE LAW
Above a prohibition of exhibiting the images or statues
of Saints or Blessed not approved as such by the Holy See,
was mentioned. This prohibition includes any public ven
eration either outside or inside of the church or altar. 10
But it is not forbidden to paint the pictures and events
from the life of pious servants of God upon the walls of a
church, or on the stained windows, provided these repre
sentations contain no nimbus or halo that would indicate
11
canonization, beatification or a cult.
2. To those who have been canonically inserted in
the catalogue of Saints is due the worship called dulia.
Saints may be worshipped everywhere and by any act of
dulia, but the Blessed may be worshipped only in the
places and manner expressly granted by the Roman Pon
tiff.

A canonical insertion is made either by a formal or by

an equivalent (aequipollens) decree issued by the Church,
ratifying the cult offered to a Saint or Blessed person
either by a long-standing tradition, or the common con
sent of the Church, or the writings of Holy Fathers and

saintly men. These Saints, then, may receive the worship

of duliat as explained in can. 1255.
There is a difference between Saints in the strict sense
and Blessed, although the distinction of cult is hardly

perceptible. Benedict XIV 12 states three characteristics

which distinguish Saints from Blessed :

Beatification permits, canonization prescribes wor

1 i )

ship; at least this is the rule, though the Pontiff admits

exceptions.
(2) The worship of a Blessed is confined to a certain

10 S. Kit. C., Sept. 28, 1658 (n. 12 De Servorum Dei Beat, etc., 1.

1097). I, c. 39, nn. 12 ff.

11 S. Rit. C., Aug. 27, 1894 (n.

3835).
 CANON 1277 239

province, diocese, city, or religious institute, whereas the

Saints may, though they need not, be worshipped every
where throughout the whole Church.
(3) Canonization is the definitive and ultimate sentence
of the Sovereign Pontiff, by which the worship of a Saint
is prescribed for the whole Church, whilst beatification is

a less definitive pronouncement. 13 This latter feature, ac

cording to Benedict XIV, marks the real difference be

tween Saints and Blessed.
The general rules which must be observed concerning
the worship of the Blessed are the following :

1. Mass and Office must be especially granted by the

Roman Pontiff in honor of the Blessed. This indult is

not included in the grant of erecting an altar in honor of
the Blessed, nor is the public recitation of the Office per
mitted by the act which permits worship. Devotions,
however, or festa devotionis, may be celebrated in honor
of the Blessed, but not regular holy days with Mass and
14
unless there be a special indult to this effect.
office,
If a Mass and office have been granted by special indult,
the priests who celebrate Mass in chapels or churches for
which the indult was given may and must conform to the
rubrics, they should say the Mass of the Blessed,
i. e.,
if
15
prescribed according to the approved calendar.
2. As to images, votive tablets, statues, and pictures of
may be publicly exhibited for veneration
the Blessed, these
in churches and oratories if the indult for Mass and
officehas been given, because this indult includes per
mission to exhibit said objects. Otherwise the images,
13 Hence theologians are unani- 1* S. Kit. C., Sept. 27, 1659;
ious in stating the infallibility of April 17, 1660; July 24, 1915 (Dec.
.the Pope with regard to canoniza- Auth., nn. 1136, 1156; A. Ap. S.,
;tion, whilst they are more or less VII, 389).
divided concerning beatification; cfr. 15 See the decree of Dec. 9, 1895
Mazzella, De Rel. &
Eccl. n. 813. of the S. Rit. C.
240 ADMINISTRATIVE LAW
etc., may only be placed on the walls of the church or
chapel, but never on the altar; and the local Ordinary is

entitled to have them removed.

3. The names of the Blessed may not be inserted in the

general calendar, but only in the one used for the par
ticular place or institute nor may it be recited in the
;

suffragium Sanctorum, or in other prayers, except those

approved by the Holy See.
4. If the worship of a Blessed has been granted for a
certain place, it cannot be extended to another without a

papal indult.
5. These rules must also be observed by exempt relig
ious, no matter what their name or privileges may be or
have been.
PATRON SAINTS

CAN. 1278

Laudabiliter quoque, servatis servandis, Sancti na-

tionum, dioecesium, provinciarum, confraternitatum,
familiarum religiosarum aliorumque locorum et moral-
ium personarum eliguntur et, accedente confirmatione
Sedis Apostolicae, constituuntur Patroni; Beati non
item, sine peculiar! eiusdem Sedis Apostolicae indulto.

It is praiseworthy that nations, dioceses, provinces, con

fraternities,religious institutes, places and corporations
should choose patron saints with the approval of the
Apostolic See. But the Blessed can be chosen patrons
only with a special indult of the same Holy See.
The approval of the Apostolic See is also required
when a new patron Saint is chosen instead of an old one. 16
Thus it may happen that a revolution sweeps away re
ligious communities and the new occupants of a church
16 S. Kit. C., March 23, 1630 (n. 526).
 CANON 1279 241

choose another patron saint. Such a change may be made

with the consent of the S. Rit. C. 17 The patron-saint of
a place or community may differ from the one in whose
name a church is dedicated. In a large city, for instance,
there may be many patron or titular saints of different
churches, but only one patron of the city, or diocese, or
18
province.

PICTURES OF SAINTS

CAN. 1279

i. Nemini in ecclesiis, etiam exemptis,

liceat
aliisve locis sacris ullam insolitam ponere vel ponen-
dam curare imaginem, nisi ab Ordinario loci sit ap-
probata.
2. Ordinarius autem sacras imagines publice ad

fidelium venerationem exponendas ne approbet, quae

cum probato Ecclesiae usu non congruant.
3. Nunquam sinat Ordinarius in ecclesiis aliisve
locis sacris exhiberi falsidogmatis imagines vel quae
debitam decentiam et honestatem non praeseferant, aut
rudibus periculosi erroris occasionem praebeant.
4. Si imagines, publicae venerationi expositae,
sollemniter benedicantur, haec benedictio Ordinario
reservatur, qui tamen potest earn cuilibet sacerdoti
committere.

i repeats almost verbally the strict prohibition of the

19
Council of Trent against exhibiting unusual images, in
churches or sacred places, even of exempt religious, unless
the approval of the local Ordinary has first been obtained.
2. The Ordinaries shall never allow any sacred im-
17 S. Rit. C, June i, 1876, ad VI 18 S. Rit. C., May i, 1857 (n.
(n. 3400). 3048).
19 Sess. 25, de invocat.
 242 ADMINISTRATIVE LAW

ages to be publicly exhibited to the veneration of the faith

ful, unless these images are in keeping with the approved

usage of the Church.

From this paragraph may be negatively deduced what
an unusual image (insolita imago) is, namely, an image
that represents persons or events in a manner which has
no justification in either Holy Scripture or tradition.
Thus to represent the Holy Ghost in the form of a young
man has never been sanctioned, but rather reprobated, by
the Church. The Blessed Trinity may not be represented
in the shape of a man with three heads, or of one man
with two heads with a dove between them. 20 statue or A
painting similarly representing the Sorrowful Mother
dressed in black and holding a crucifix in the left hand
would be an unusual picture. 21 Pictures of the Sacred
Heart of Jesus representing the Heart alone, without the
rest of the body, are not allowed to be exhibited publicly
22
on altars, but may be used for private devotion. The
Cor Jesu Eucharisticum is neither canonical nor
" "

title

liturgical, and hence no pictures of it may be exhibited to

23
the veneration of the faithful. Chinese Christians some
times depict our Saviour with a Chinese beard and shoes.
This custom is not strictly forbidden, but should be dis
couraged.
Note that the term linages comprises all kinds of repre
sentations :
statues, pictures, medals, etc.
3. The Ordinary shall never permit the exhibition, in
churches or sacred places, of images which offend against
dogma or lack decency and propriety, or are apt to lead
20 Bened. XIV,
"

Sollicitudini," is tobe represented according to the

Oct. i, 1745, 10 ff. decree of April 26, 1875; Nov. 29,
21 S. Rit. C., Feb. 23, 1894 (n. 1878 (n. 347o).

3818). C., March 28, July 15,

23 S. Rit.
22 S. O., Aug. 26, 1891 (Coll. P. 1914 (A. Ap. S., VI, 146, 382 .).
P., n. 1767). The S. Heart of Mary
 CANON 1280 243

the ignorant into error. Undogmatic are the above-men

tioned representations of the Holy Ghost and the Blessed
Trinity. Decency is also required in the garb or dress
given to statues, which only too often offend against good
24
taste. Danger might arise from the veneration of im
ages ignorant persons would be permitted to worship
if

one who has never been declared or acknowledged as a

25
saint, or if fetichism were attached to their devotion.
4. The solemn
blessing of images which are to be ex
hibited for public veneration is reserved to the Ordinary,
who may, however, delegate this function to any priest.
There is no rule or law prescribing the blessing of images.

RESTORATION OF STATUES AND PAINTINGS

CAN. 1280

Imagines pretiosae, idest vetustate, arte, aut cultu

praestantes, in ecclesiis vel oratoriis publicis fidelium
venerationi expositae, si quando reparatione indigeant,
nunquam restaurentur sine dato scriptis consensu ab
Ordinario; qui, antequam licentiam concedat, pru-
dentes ac peritos viros consulat.

Images which possess great value by reason of their

antiquity, artistic finish or the veneration given to them,
and which have been exhibited to the worship of the faith
ful in churches and public oratories, if in need of repairs,
must not be restored without the written consent of the
Ordinary, who shall seek advice from wise and experi
enced men before he grants such a permission. This is
a very timely law which should have been enforced in the
seventeenth and eighteenth centuries when ecclesiastical
24 S. Rit. C., March 15, 1888 (n. 25 S. Rit. C, Aug. 31, 1889 (n.
3690). 3715).
244 ADMINISTRATIVE LAW
" "

dignitaries often restored

fine romanesque chinches of
Gothic or Moorish architecture and converted them into
26
whitewashed Barocco edifices.
We may also be permitted to add that some modern
statues savor very much of the
"

salon." Take, for ex

ample, a good many representations of St. Francis of
Assisi and St. Antony, which are anything but dignified
in their fancy costumes. Ecclesiastical statuaries should
be inspected before they are ecclesiastically approved.

ALIENATION OF RELICS AND IMAGES

CAN. 1281

i. Insignes imagines pretiosae

reliquiae aut
itemque aliae reliquiae aut
imagines quae in aliqua
ecclesia magna populi veneratione honorentur, ne-
queunt valide alienari neque in aliam ecclesiam per-
petuo transferri sine Apostolicae Sedis permissu.
2. Insignes Sanctorum vel Beatorum reliquiae
sunt corpus, caput, brachium, antibrachium, cor, lin
gua, manus, crus aut ilia pars corporis in qua passus
est martyr, dummodo sit integra et non parva.

Iprohibits the alienation of important relics or im

ages of great value, as well as of such relics and images
as are held in great honor by the people in some church.
To alienate such without an apostolic indul is void of ef
fect in the ecclesiastical external forum as well as in the
court of conscience. Nor may such
or images be relics

permanently transferred to another church without per

mission from Rome.
In the eighth and ninth centuries, after many relics had
26 Example: the cathedral of Amalfi in Italy.
 CANON 1281 245

been transferred from the catacombs to the churches of

Rome, a regular traffic in relics began which soon became
a public scandal. A
synod of Mayence, in 813, forbade
the transfer of bodies of saints without the permission of
the secular ruler, or bishop, or synod. 27 The fourth Lat-
eran Council prohibited the exhibition of relics for sale
as detrimental to religion and also commanded that all
ancient relics should be enclosed in reliquaries and neither
exposed nor sold without authority from the Sovereign
Pontiff. Minor prelates in whose churches relics were
venerated, were urged not to permit fraud by exhibiting
false documents to allure the faithful as, adds the coun
cil, had happened in several places, for the sake of gain. 28
Transfer from one altar to another of the same church
may be permitted by the bishop. 29
Temporary transfer is permissible because the Code
uses the term perpetuo. Hence if repairs or other rea
sons would render a temporary transfer necessary, no re
course to the Holy See would be required, provided, of
course, the relics or images are replaced.
2 defines what an important relic (insignis reliquia)
is. the entire body, head, arm, forearm, heart,
It is

tongue,
:
hand, leg of a saint or blessed person, or that
part of his body in which the martyr suffered death, pro
vided it be entire and not a small part. This paragraph
is verbally taken from a decree of the S. C. of Rites,

duly approved by the Ordi

"

which however, added :

30
nary."
This clause is omitted in our text, probably on
account of the following canon. There is a special reason
for mentioning the different parts, namely, because on the

27 Can. 51, c. 37, Dist. i de 29 S. C. Indulg., Nov. 17, 1676

cons.; Hefele, Concil-Gesch., Ill, (Prinzivalli, /. c., n. 13).
711. 80S. Kit. C., April 8, 1628 (n.
28 C. 2, X, III, 45- 46o).
246 ADMINISTRATIVE LAW
Feast of Relics the Credo is to be recited in churches
where an important relic is preserved.

After the publication or the decree of 1628 doubts arose

as to what parts of the body of a Saint were meant.
Most of the answers given in reply to questions were neg
ative. Thus, the tibia or shinbone, or femoris ossa br
thighbone, or smaller parts of the same, or the foot with
some toes on it, were not acknowledged to be an insignis
reliquia, nor even part of the head.
31
On the other hand,
the forearm and the upper arm, from the elbow to the
2
shoulder, were acknowledged as insignia*
Integra or entire is that part of the body in which the
martyr suffered, provided it be unmutilated; if it is mu
tilated, for instance, the cranium crushed, it could be gath
ered up and the parts reassembled so as to make one
whole. 33 Besides, it must be a considerable part, not a
mere splinter (non parva).

CAN. 1282

Insignes Sanctorum vel Beatorum reliquiae

i.

nequeunt in aedibus vel oratoriis privatis asservari,

sine expressa Ordinarii loci licentia.
2. Reliquiae non insignes debito cum honore
etiam in domibus privatis servari pieque a fidelibus
gestari possunt.

Important relics of saints and blessed persons may not

be preserved in private homes and oratories without the
express permission of the local Ordinary. Minor relics,
on the other hand, may be kept in private houses and rev-
si s. Kit. C., Dec. 20, 1628; June 32 S. Rit. C., June 27, 1899, ad
3, 1662 ad 2; Dec. 7, 1844 (nn. 490, II (n. 4041).
1234, 2883); S. C. Indulg., June 12, 33 S. Rit. C., Dec. 3, 1672 (n.
1822 (Prinzivalli, n. 430). 1460).
 CANON 1285 247
n
erently carried about by the faithful. The first paragraph
is undoubtedly prompted by the desire that all the faith
ful should be benefitted by the presence of such sacred

objects, and that important sacred remains should receive

a greater reverence than they ordinarily receive if in

private possession.

AUTHENTICATION OF RELICS

CAN. 1283

Publico cultu eae reliquiae in ecclesiis, quan-

i.

quam exemptis, honorari possunt, quas genuinas esse

constet authentico documento alicuius S. R. E. Car-
dinalis, vel Ordinarii loci, vel alius viri ecclesiastic!
cui facultas authenticandi indulto apostolico sit con-
cessa.
2. Vicarius Generalis nequit, sine mandate* spe-
ciali, reliquias authenticas edicere.

CAN. 1284

Locorum
Ordinarii reliquiam, quam certo non esse
authenticam norint, a fidelium cultu prudenter amo-
veant.
CAN. 1285

i. Sacrae reliquiae, quarum authenticitatis docu-

menta ob civiles perturbationes vel ob alium quem-

Hbet casum interierint, publicae veneration! ne ex-
ponantur, nisi praecedat iudicium Ordinarii loci, non
autem Vicarii Generalis sine mandate speciali.
2. Reliquiae tamen antiquae in ea veneratione qua

hactenus fuerunt, sunt retinendae, nisi in aliquo pe

culiar! casu certis argumentis constet eas falsas vel

suppositicias esse.
 248 ADMINISTRATIVE LAW

CAN. 1286

Locorum Ordinarii ne sinant, maxime in sacris con-

cionibus, libris, ephemeridibus vel commentariis fo-
vendae pietati destinatis, ex meris coniecturis, ex solis

probabilibus argumentis vel praeiudicatis opinionibus,

praesertim verbis ludibrium aut despectum sapienti-
bus, quaestiones agitari de sacrarum reliquiarum au-
thenticitate.

Only genuine relics may be exhibited for public venera

tion in churches, even those of exempt religious. The
genuineness of a relic is ascertained by an authentic doc
ument, issued either by a cardinal, or by the local Or
dinary, or by a clergyman who has obtained an apostolic
indult authorizing him to authenticate relics.
The Vicar General needs a special mandate to issue
such a document.
The authentification of ancient relicsis a delicate and

difficult task, which requires a great deal of archaeological

and palaeographical knowledge. Hence the Cardinal
, Vicar of Rome supports a special department, called lip-
sanotheca, for the purpose of authenticating relics. This
means was especially employed after 1870, when many
churches and convents were suppressed, shrines and reli
quaries scattered and sold without the knowledge of the
proper authorities and imitations were not infrequently
sold by unscrupulous persons for filthy lucre s sake.
Hence the Vicariate of Rome warned bishops against
being too credulous concerning bodies which purported
to have been taken from the catacombs, even though they
were authenticated by an Italian bishop, for these ne
" "

farious traders did not shrink from forging documents. 3 *

34Vicariatus Urbis litt. encycl., Jan. 17, 1881 (Coll. P. F., n. 1546).
 CANON 1286 249

Absolute certainty in regard to the genuineness of relics,

especially such as date back to a remote age, is next to
impossible. It would, however, be wrong for that reason

to reject all ancient relics. Many documents attesting the

transfer or translation of relics have been preserved, and,
besides, the immemorable custom of veneration must be
admitted as a living proof which amounts at least to
moral certainty. It may also be assumed that Divine
Providence watches over these sacred objects with special
35
care. Finally, even if there be fraud or erroneous
belief, the act of venerating a relic is always a relig
ious act addressed ultimately to God, and hence can never
be entirely void of effectiveness.
The ecclesiastical authority who has to authenticate
relicsmust, if possible, investigate their origin or source,
and therefore demand a document. This document must
contain the signature and seal of the one who enclosed the
relics in its container. The latter (capse)must be sealed
with the same seal which is impressed on the document
of authentification. Generally also the make of the capse,
its artistic decoration and the material from which it is
made are indications of authenticity. If the signature,
seal and capse (or shrine) all point to some degree of
36
certainty, the document may be accepted as genuine. In
the same way the bishop must proceed when relics are
transferred from one church or country to another, pro
vided, in the latter case, the Apostolic indult was obtained.
If no authentic document or no immemorable custom can
37
u shown, no document should be issued.
be
1284 obliges the local Ordinaries to withdraw
{Can.
rom public veneration all relics of which he knows for
<

35 See Ps. 33, 2. 37 S. Kit. C., July 21, 1696, ad 4

36 S. C. Indulg., Dec. 16, 1749 (n. 1946).
(Prinzivalli, n. 187).
250 ADMINISTRATIVE LAW
certain that they are not genuine. As stated, the signa
ture and seal on the document and capse may be consid
ered sufficient authentication. However, the signature
must be by hand, and not with a stamp (colla stampiglia),
unless the prelate is notoriously prevented from writing

by paralysis or other bodily infirmity.

Titular bishops are not empowered to authenticate rel
38
ics. This privilege is expressly reserved to cardinals and
ordinaries in the strict sense of the term, though Vicars
Capitular or Administrators are not excluded. Relics
which are certainly spurious, 39 the Ordinaries would do
well to withdraw and destroy.
However it may happen, as is evident from can. 1285,
that the authenticating documents are lost. This has hap
pened under the Huguenots terror in Toulouse, during the
French Revolution, 40 and in Italy after 1870. Such rel

ics may be exposed to public veneration only if the local

Ordinary deems it proper. The Vicar General is not
competent to grant this permission without being specially
commissioned to do so. If the faithful are deeply at
tached to certain, especially ancient, relics and have a
special veneration for them, they may be retained and
venerated, provided their spuriousness cannot be proved
41
by solid arguments.
The public discussion of the authenticity of relics
should be avoided and may be forbidden by the local Or
dinaries if the argument rests on mere conjectures, prob
abilities or prejudices, and if the methods employed are

apt to cast ridicule and contempt on sacred relics or their

38 S. C. Indulg., Sept. 23, 1783 (Prinzivalli, n. 582); S. Rit. C,
(Prinzivalli, n. 378). June 23, 1892 (n. 3779)-
39 For instance, relics of the 41 S. C. Indulg., Jan. 20, 1896;
Highpriest Melchisedek; S. Rit. C., Pius X,
"

Sacrorum Antistitum,"

Aug. 3, 1687 (n. 1977). Sept. i, 1910, n. VI (A. Ap. S., II,
40 S. C. Indulg., Feb. 22, 1847 664 f.).
 CANON 1287 251

veneration. Such discussions should not be conducted in

sermons, or in books, magazines, and pamphlets intended

to foster devotion rather than critical research. This
well directed and carefully worded admonition, which is

partly taken from the Motu proprio Sacrorum Antisti-

"

tum" of Sept. i, 1910, warns writers against setting up

merely probable statements for absolute truth, but it does
not forbid sober and respectful criticism based upon sci
entific research. For the rule laid down in our canon ap

plies to devotional books or periodical publications only,

not to critical disquisitions and scientific reviews. Be
sides, whilst it warns
against the propagation of purely
probable and subjective views, it leaves a large margin for
42
solid arguments. The language employed by critics

should, of course, always be moderate and respectful.

EXPOSITION OF RELICS

CAN. 1287
i. Reliquiae, cum exponuntur, in thecis seu capsis

clausae et obsignatae sint oportet.

2. Reliquiae sanctissimae Crucis nunquam in ea-

dem theca cum reliquiis Sanctorum publicae venera-

tioni exhibeantur, sed propriam thecam separatam
habeant.
3. Beatorum reliquiae, sine peculiari indulto, in
processionibus ne circumferantur, neve in ecclesiis ex-
ponantur, nisi ubi eorum officium et Missa celebretur
ex Sedis Apostolicae concessione.

When relics are exposed, they should be enclosed in a

shrine, case or capsule, and sealed with the seal of the
authenticating prelate or official.

42 The Bollandists cannot be seriously accused of making exaggerated

or unfounded statements.
 252 ADMINISTRATIVE LAW
Relics of the true Cross should never be exhibited to
public veneration together with relics of Saints, i. e., en
closed in the same chest or shrine, but in a separate case. 43
Relics of the true Cross and of other instruments of
Christ s Passion may be carried about in procession under
a canopy but no other relics of Saints or Blessed may
;

on such occasions be carried in procession under the can

opy at the same time. 4 *
Relics of Blessed persons may not be carried about in
procession without a special indult, nor may they be pub
licly exposed in churches except where the Mass and office
is permitted by the Apostolic See.

RELICS IN THE BISHOP S PECTORAL CROSS

CAN. 1288

Sanctissimae Crucis reliquiae, quas in cruce pector

al! Episcopus forte defert, ecclesiae cathedrali, ipso
defuncto, cedunt, Episcopo successor! transmittendae ;

et si defunctus pluribus praefuerit dioecesibus, eccle

siae cathedrali dioecesis, in cuius territorio supremum
diem obiit aut, si extra dioecesim mortuus est, ex qua
ultimo discessit.
r
v-_ -"

Relics of the true Cross which may be enclosed in the

pectoral cross of a bishop, after his death belong to his

cathedral church, which shall hand them to the bishop s
successor. If the deceased bishop ruled several dioceses,
the relics pass to the cathedral church of the one in which
he died; if he dies outside the diocese, the relics belong
to the cathedral church of the diocese in which he passed

away. The reason for this enactment is to be sought

43 S. C. Indulg., Feb. 22, 1847 ** S. Rit. C., May 27, 1826 (n.
(Prinzivalli, n. 589). 2647) and pluries.
 CANON 1289 253

in the scarcity of these relics which bishops should

carry
about their person as a token of their dignity. But the
law only touches the relic, not the pectoral cross, or the
theca or capsule in which the relic is contained. The
theca may, after the sacred relic has been withdrawn, be
disposed of or sold, with due precaution, of course,
45
against profanation.

PRECAUTIONS AGAINST THE SALE AND PROFANATION

OF RELICS

CAN. 1289

i. Sacras reliquias vendere nefas est; adeoque Or-

dinarii locorum, vicarii foranei, parochi aliive curarn

animarum habentes, sedulo caveant ne sacrae reliquiae,
praesertim sanctissimae Crucis, occasione maxime
hereditatum aut alienationis acervi bonorum, veneant,
neve in acatholicorum manus transeant.
2.Rectores ecclesiarum, ceterique ad quos spec-
tat, sedulo invigilent ne sacrae reliquiae ullo modo
profanentur, neve hominum incuria pereant, vel minus
decenter custodiantur.

It is forbidden to sell relics, and hence the local or

dinaries, rural deans, pastors, and all those who have

charge of souls shall take proper precautions lest sacred

relics, especially of the Holy Cross, be sold on the
occasion of hereditary transfer or public auction, and
see to it that they do not pass into the hands of non-
Catholics.
The rectors of churches, and others whom it concerns,
(e.g., the custos sacrae supellectilis) should also take

great care lest sacred relics be exposed to profanation,

45 Vic. Urbis lit. encycl., March 25, 1889 (Coll. P. F., n. 1699).
254 ADMINISTRATIVE LAW
or lost through carelessness, or preserved in an unbe
coming manner.
As mentioned above, the impious custom of selling
relics was practiced at times for gain. Often also well-
meaning Catholics bought relics from traders in order
to save them from profanation. But even this is for
bidden because of the danger of simony and of aiding this
impious traffic. All the faithful are in duty bound to
denounce to the Ordinary any place where relics are ex
hibited for sale. He will then take such steps as he
deems proper. 46
46 S. C. Indulg., Dec. 21, 1878 (Coll. P. F., n. 1505).
 TITLE XVII

SACRED PROCESSIONS
DEFINITION AND DIVISION

CAN. 1290

i. Nomine sacrarum processionum significantur

sollemnes supplicationes quae a populo fideli, duce
clero, fiunt eundo ordinatim de loco sacro ad locum
sacrum, ad excitandam fidelium pietatem, ad commem-
oranda Dei beneficia eique gratias agendas, ad divinum
auxilium implorandum.
2. Ordinariae sunt quae statis diebus per annum

fiunt ad normam librorum liturgicorum vel consuetu-

dinum ecclesiarum extraordinariae, quae aliis publi-
;

cis de causis in alios dies indicuntur.

Sacred processions are solemn invocations made by

the faithful people marching in an orderly manner, un
der the leadership of the clergy, from one sacred place to
another, for the purpose of arousing devotion, praising
God s benefits, thanking Him, and imploring His help.
Ordinary processions are those held on stated days
throughout the year, according to the sacred liturgy or the
custom of the churches extraordinary processions are
;

those held for some other public cause on other days.

Processions are a popular element in almost every form
of religious worship. 1 The Roman Ritual specifies as or-
"

1 Cfr. Cath. Encycl., XII, 446 ff. s. v. Procession."

255
256 ADMINISTRATIVE LAW
dinary processions those held on Candlemas Day (Feb.
2), on Palm Sunday,
the so-called greater Litanies of
April 25, and the Rogation Days preceding the feast of
the Ascension. Besides these, we may designate as or
dinary the procession on Maundy Thursday, the return
on Good Friday, and the procession for the holy fire
on Holy Saturday. Funeral processions may also be
called ordinary. Moreover, as the text also mentions as
ordinary the processions introduced by ecclesiastical cus
tom, it is evident that so-called field processions, as
in vogue in Switzerland, and processions from one
still

church to another in honor of a special patron, must

likewise be reckoned amongthe ordinary ones.
Extraordinary processions, according to the Roman
Ritual, are all those held for the purpose of obtaining
rain, or fair weather, of driving away storms, the three

assigned for times of famine, plague, and war, one for the
occasion of any calamity, one for thanksgiving, and one
for the translation of relics.
The essential feature of a sacred procession certainly is
that held under the leadership of the clergy.
it is Hence
a mere parade held for any purpose, even for the trans
lation of sacred images from house to house, in which
the clergy are mere participants without sacred vestments,
2
cannot be called a procession in the liturgical sense.
Besides, even a religious procession if arranged and led by
laymen, cannot be styled a sacred procession.
A sacred procession must be conducted in an orderly
manner. This rule has a double meaning, of which one
is described in can. 1295, and has reference to due rever

ence and becoming conduct, while the other is that the

order of the participants be according to the rules of
precedence, regarding which see can. 1295.
2 S. Kit. C, Aug. 20, 1870 (Dec. Auth., n. 3217).
 CANON 1291 257

CORPUS CHRISTI PROCESSIONS

CAN. 1291

i. Nisi aliter ferat immemorabilis consuetude, vel

locorum circumstantiae, prudenti Episcopi iudicio,
aliud exigant, die festo Corporis Christi unica tantum
sollemnisque per publicas vias processio in uno eo-
demque loco fieri debet ab ecclesia digniore, eique
clerici omnes religiosaeque virorum familiae, etiam
exemptae, et laicorum confraternitates interesse de-
bent, regularibus exceptis qui in strictiore clausura
perpetuo vivant, aut a civitate ultra tria millia
passuum distent.
Ceterae paroeciae et ecclesiae etiam regulares
2.

possunt, intra octavam, proprias processiones extra

ecclesiae ambitum agere sed ubi plures sunt
; ecclesiae,
Ordinarii loci est dies, horas ac vias praestituere
quibus suam quaeque processionem agant.

i. Unless there be an immemorial custom to the

contrary, or unless local circumstances in the prudent
judgment of the bishop demand a deviation from the
rule here laid down, only one solemn procession is per
mitted in the same place through the public streets on
the feast of Corpus Christi. This procession is to be
arranged and led by the more prominent church of the
respective city or town, and all the clergy and male
religious orders, including the exempt, as well as the con
fraternities of laymen, must attend it. Only those regu
lars who perpetually in strict enclosure,
live or dwell
three thousand paces from the city, are excused from par
ticipation.
The solemn Corpus Christi procession is to be held
on the following Sunday, if the feast is transferred to
 258 ADMINISTRATIVE LAW
that day, 3 as is the case in our country. Therefore, even
taking into consideration 2 of our canon, it would
clearly be against the intention of theChurch to hold
the principal on Corpus Christi Thursday
procession
and a less pompous one on Sunday.
There must be only one public procession in the same
town or city, unless an immemorial custom or special
circumstances should induce the bishop to permit more.
There is not much danger in our country, especially in
the large cities, of having too
many processions.
The dignior ecclesia, i. e., the more distinguished
church, should lead the procession. Dignior undoubtedly
is the cathedral church, which follows the collegiate
4
church, provided it is also a parochial church. It ap

pears but just that a parochial church should be pre-

.
f erred to a collegiate church if the latter is not a parish

chiwch. Among the parish churches the more ancient

one takes the lead over those established later, according
to the rule Prior in tempore prior in iure.
:

In this public procession the entire secular and regular

clergy, as well as all confraternities, of men as well as

women, are bound to participate. Religious congrega

tions and orders of women need not attend, though Sis
ters who do not live in enclosure may do so if they wish ;

at least the text does not exclude them because it only

mentions those who are obliged to assist (inter esse
debent). As to the regulars, whether exempt or not, the
Council of Trent 5 had already made it obligatory for
them to attend, with one exception, to be explained fur
ther down (see next paragraph). The Council employs
vocati accedant," which presupposes some
"

the phrase,
3 S. Kit. C., June 24, 1911 ad VI 4 S. Kit. C., Jan. n, 1681 (n.

(n. 4273)- 1657).

5 Sess. 25, c. 13, de reg.
 CANON 1291 259

kind of invitation. The Code discards this clause, and

hence no invitation required, though the leading church
is

may reasonably be expected to indicate or announce the

hour of holding the procession and the place where it is
to start.
The exception for regulars is based upon enclosure and
distance. The enclosure, of course, is to be understood

of the so-called papal enclosure, as stated under can. 597.

This was already enacted by the Council of Trent and
confirmed by later interpretations, the substance of which
is that all regulars, no matter how exempt they
may be,
must attend the Corpus Christi procession, unless they
live under strict perpetual enclosure or can show a privi

lege granted after the Council of Trent, and directly, i. e.,

not obtained by way of communication. 6 Such privileges
were granted to the Society of Jesus, to the Discalced
7
Carmelites, the Theatines and the Scolapii. The Code
does not annul these privileges by any contrary clause.
The great Mendicant Orders of St. Francis and St. Dom
8
inic are obliged to attend the Corpus Christi procession,
as are also the Augustinians, Calceati as well Discalceati,
and the Celestinians. 9 As to the Benedictines there are
two decisions worthy of note: the Cassinese monks need
not take part in any procession except that of Corpus
Christi, which they must attend, even though there be
10
but six monks living in the monastery. Note that no
communication of privileges avails in this case. But
what about enclosure? The Benedictines have a papal
6 Urban VIII, "

Nuper," Nov. 17, 9 S. Rit. C., Dec. 9, 1638; Sept. 2,

1638, i f.; S. Rit. C., Sept. 28, 1602; Aug. 4, 1674 ad i (nn. 661,
1658 (n. 1096). 1244, 1716).
7 Piatus M., Praelectiones Juris 10 S. Rit. C., June 10, 1602; Oct.
Regul., II, p. 41. 2, 1683 (nn. 99, 1716).
8 S. Rit. C., May 10, 1594; May .,

9, 1693 (nn. 48, 1895).

26o ADMINISTRATIVE LAW
enclosure, but no strict enclosure in the sense of the text,
like the Carthusians and the Camaldolese Hermits. The
decision concerning the Cassinese Benedictines mentions
custom, but the Corpus Christi procession is expressly
excepted. The same is true of the Celestinians and may
safely be applied to other monastic bodies of regulars ;

because if the enclosure means something, it certainly

must be applied to that case also, the Corpus Christi
procession, as a special token of belief in that mys
tery and a public profession of the same against
heresy.
The next reason for exception is distance. The gen
eral decree of Urban VIII, as restated by the S. Con
ff
gregation, mentions Ultra medium milliare a civitate,"
i. e., over half a mile from the city. Our text has 300
passus. A passus, according to Roman reckoning, is
485 English or American feet, so that 3000 passus would
be about 14,550 feet, or 1,290 feet less than three Eng
11
lish statute miles. In round figures, therefore, we may
say*, three English (not geographical) miles, especially
since the text says, ultra, above.
The point from which the distance must be reckoned
the city." But in a large city there
"

issimply stated as
may be a considerable difference between the different

points from which distance may be measured. If the city

limits are taken as the starting point, the three miles would
be entirely outside the boundaries. This, we believe, is
the meaning of the text, for it obliges the entire clergy
of a city or town and one de
to attend the procession,
cision says that all the Friars Preachers and Friars
Minor infra septa moenium civitatis must be present. 12
Therefore not the church from which the procession
ll Cfr. Ramsay-Lanciani, Roman 12 S. Kit. C., May 10, 1594 (n.
Antiquities, 1901, p. 462 f. 48).
 CANON 1292 261

starts, but the city limits, is the point from which the
distance is to be calculated. The direction, of course,
is intended in the direct or air line, i. e. } within a radius
of three miles outside the city limits.
It may be added that the obligation of assisting at

the Corpus Christi procession binds the secular and regu

lar clergy only if the procession is held in the open air,
per publicas vias, and the term regular must be taken in
the strict sense, to the exclusion of such religious as are
exempt by a special indult.
2. The other parishes and churches, including those
which are in charge of regulars, may have their own
processions outside the church during the Octave of
Corpus but the local Ordinary should assign the
Christi ;

day, the hour and the route for each parish. This rule
was established in order to avoid unpleasant encounters.
In some cases even the side of the wall or street had to
13
be determined and pastors were ordered not to invade
14
the boundaries of other parishes.

OTHER PROCESSIONS
CAN. 1292
Ordinarius loci, audito Capitulo cathedral!, potest
ex publica causa extraordinarias processiones indi-
cere; quibus, sicut et ordinariis ac consuetis, ii omnes
interesse debent de quibus in can. 1291, i.

The local Ordinary, after having heard the advice of

his cathedral chapter, may for a public cause order ex
traordinary processions, which, like the customary and
ordinary ones, must be attended by those mentioned in
can. 1291, i.

13 S. Rit. C., June u, 1594 (n. 14 S. Kit. C., Jan. u, 1681 (n.
49). 1657).
262 ADMINISTRATIVE LAW
If theOrdinary is obliged to hear the advice of the
chapter and cannot lawfully order a procession without
it, this is a fortiori true of the Vicar Capitular or ad
ministrator. Should a procession be ordered without
their advice, the canons cannot be compelled to attend
15
it. This rule must also be followed in our country,
where the consultors should be asked collegialiter. This
does not, however, mean that the bishop cannot order a
customary or extraordinary procession without first hear
ing the advice of the consultors. He may order a pro
cession to be held in any parish but he cannot oblige the
;

whole clergy, secular and regular, to attend it if he has

not previously asked the chapter or the consultors.

However, it is sufficient to ask their advice ;

their consent
is not required. 16 Besides the bishop no one else in the
diocese is entitled to order a procession, but in the ab
sence of the bishop the Vicar General may do so, pro
17
vided he has asked the advice of the chapter.
processions which the local Ordi
The extraordinary
nary may order must be for a public cause, or, as is
18
sometimes stated, pro bono publico et publico honore.
This means that the public interest or the welfare of
the community must be at stake, as is evident from the
enumeration of these extraordinary processions in the
Ritual. They cannot be ordered for mere display. If
a procession is customary on the occasion of the entrance
of a new bishop, this may be ordered for all, including
the regulars, though without threatening censures.
19
An
extraordinary procession may also be ordered on the

is S. C. EE. et RR., May n, 1663 " S. Rit. C., July 27, 1609 (n.

(Bizzarri, /. c., p. 261). 272)-

16 S. Rit. C., March 28, 1626 (n. 19 S. C. C, July n, 1750 (Rich-

394 ). ter, Trid., p. 416, n. 9).

17 S. Rit. C., Jan. 14, 1617, ad i;
Sept. 28, 1630 (nn. 346, 545).
 CANON 1293 263

occasion of a Eucharistic Congress, or a Congress in

honor of the Sacred Heart of Jesus, or an important
meeting of Catholics.
Those obliged to participate in these extraordinary pro
cessions are the same as mentioned in can. 1291 hence, ;

first of all, the whole secular clergy, provided the Or

dinary has duly intimated his intention to that effect.

Indie ere, to order, certainly implies a lawful summons.
The regular clergy, too, must be present, under the same
conditions as stated above. We
will add that the monks,
unless they can prove a legitimate contrary custom, must
also be present. Thus it has been decided concerning
the monks of St. Basil and St. Benedict in a case from
20
the diocese of Paderborn. The time or hour for the
procession must be announced by the Ordinary, who may
21
suit himself about it. The lay confraternities also must
attend these processions if they have been summoned by
the Ordinary. 22

RELIGIOUS NOT ALLOWED TO HOLD PUBLIC PROCESSIONS

WITHOUT THE PERMISSION OF THE ORDINARY
CAN. 1293

Religiosi etiam exempt! nequeunt extra suas ec-

clesias et claustra processiones ducere sine Ordinarii
loci licentia, salvo praescripto can. 1291, 2.

With the exception of the Octave of Corpus Christi,

religious, even though exempt, are not allowed to hold

processions outside their churches and cloisters without
the permission of the local Ordinary, who may grant this

20 S. Rit. C., June 23, 1670; Dec. 22 S. Rit. C., Sept. 2$, 1820 (n.
22, 1770, ad 2 (nn. 2116, 2490). 2608).
21 S. Rit. C., June 17, 1606 (n.
217).
264 ADMINISTRATIVE LAW

permission without asking the consent or advice of his

chapter or consultors, nay, even against the will of the
23
pastor or collegiate chapter, and once for aM. He may
also prescribe or change the route the procession has to
24
take. If the religious have obtained a special papal

indult, or can prove a legal custom, they do not need the

25
permission of the Ordinary. Also, if they have obtained
a direct privilege, or can prove that the custom existed
26
after the year 1628, no permission is required. But if
they have neither the Ordinary s permission, nor a privi
lege, indult, nor a legitimate custom in their favor,
nor an
they are allowed to hold processions only within their
church or cloister, always excepting the Octave of Corpus
Christi. However, a general decree of 1658, Sept. 28,
states that if they have no cloister they may lead a pro
cession even outside the church, provided they keep to the
walls of the church and re-enter through the same or an
other door of the same (non extra ambitum ecclesiae).

PASTORS AND THE CLERGY IN RELATION TO PROCESSIONS

CAN. 1294

i. Parochus vel quivis alius nequit processiones

novas inducere aut consuetas transferre vel abolere

sine Ordinarii loci licentia.
2. Processionibus alicuius ecclesiae propriis in-

teresse debent omnes clerici eidem ecclesiae adscript!.

i. Neither the pastor nor anyone else can introduce

new, or transfer or abolish the customary processions

without the permission of the local Ordinary.
23 S. Rit. C., March n, 1690; 25 S. Rit. C., Nov. 14, 1676;
June 13, 1673; Aug. 31, 1697; (nn. April 8, 1702 (n. 1581, 2099).
1824, 1573, 1980). 26 S. Rit. C., Sept. 28, 1658; Dec.
24 S. Rit. C., Nov. 24, 1691 (n. 19, 1671, ad i (nn. 1096, 1440).
1859).
 CANON 1295 265

The term quivis alius includes cathedral and collegiate

chapters, as well as confraternities, so that the prohibi
tion also applies to them. 27 If the Ordinary wishes to
transfer a procession, for instance, on account of rain,
the chapter would have to be asked. 28 Our canon is silent
about the advice of the chapter, we believe with good
reason. It goes without saying that also pastors or re

ligious orders or congregations must abide by this law

29
concerning processions.
2. At processions which are peculiar to any church,

j
all the clergy belonging to the respective church must be
The term adscripti means ascribed or assigned,
1

present.
and, in canonical parlance, includes all the beneficiaries
of a church. All who hold a benefice in a church, unless

they are iubilati, must attend the processions of that

church. 30In our country all the clergy assigned to a
church are under the same obligation. However, the
bishop such as are employed in other occu
may exempt
pations, for instance, in mission work, teaching, etc.
One who has been granted a vacation need not trouble
his conscience concerning this obligation.

ORDER OF PROCESSIONS

CAN. 1295

Curent Ordinarii ut sacrae processiones, exstirpatis,

si qui sint, malis usibus, ordinate procedant eaque
modestia ac reverentia ab omnibus perficiantur, quae
piis ac religiosis huiusmodi actibus maxime convenit.
27 S. Rit. C., Nov. 22, 1681, ad 2, 29 S. C. EE. et RR., March 14,
8; Jan. 12, 1704, ad 22 (nn. 1684, J 879 (A. S. S., XI, 595 ff.).
2123). 80S. C. C., Feb. 27, 1677; Bened.
28 S. Rit. C., Sept. 3, 1695; July XIV, De Syn. Dioec., Ill, 8, 9 f.

21, 1696 (nn. 1932, 1947).

 266 ADMINISTRATIVE LAW
/

The Ordinaries shall take care that any abuses that

may have crept in are eliminated and that the processions
proceed in an orderly manner, with the modesty and
reverence suited to such pious and religious acts.
An orderly procession presupposes an orderly arrange
ment according to rules. 31 The participants must walk
two by two, with the Cross leading the procession. After
the cross-bearer follow the girls and boys, then the
women and men, then the confraternities according to
rank, then the religious according to the rules of prece
dence set forth in can. 491, then the secular clergy, and
finally the officiating minister, prelate or priest. Here
may be supplied what has been omitted under canons
1 06 and 491. The cathedral chapter precedes, or rather,
strictly speaking, follows the collegiate chapter, and the
chapter or body of regulars with their abbot or prelate
must walk among the religious. 32 Among the secular
clergy priority of ordination decides the order of preced
33
ence, to which also the doctors must defer. Each of
<4 "

the religious orders or congregations must march sepa

rately under its own cross, if it carries one, and not pro
miscuously with other religious or the secular clergy.
This rule also binds magistri 3 * ( i. e., doctors of divinity)
in the order of Preachers.
There should be no dancing or righting, no eating or
35
drinking, and no unseemly noise. For this reason pro
cessions should not last too long or cover a distance of
more than six miles, especially if the roads are bad or
36
walking is difficult.

31 Cfr. Pont. Rom., 1. II, c. 32, n. 34 S. Kit. C., July 6, 1593; May

2; Kit. Rom., tit. IX, c. i. 10, 1594; July 10, 1638 (nn. 33, 48,
32 S. Rit. C., Dec. 22, 1770 (n. 647).
2490 ad 2). 35 S. Rit. C., Jan. 21, 1690 n. 5
33 S. Rit. C., April 4, 1626 (n. (n. 1821); Rit. Rom., I. c., n. 6.

397). 36 S. Rit. C., March 7, 1703 (n.

2109).
 TITLE XVIII

SACRED VESSELS, UTENSILS, VESTMENTS

ETC. (SACRA SUPELLEX)

The Latin term sacra supellex includes all sacred ves

vestments, linens, and ornaments which are
sels, utensils,
used for sacred functions, especially for the celebration
of the Mass. The reader should not expect a canonist
to go into details with regard to these objects, as they

strictly belong to the domain of liturgical writers, who,

however, curious to say, seem to evade a definition of
the term sacra supellex.
*-

CARE AND MAINTENANCE

CAN. 1296

Sacra supellex, praesertim quae, ad normam

i.

legum liturgicarum, benedicta aut consecrata esse

debet quaeque publico in cultu adhibetur, caute cus-
todiatur in ecclesiae sacrario aliove tuto ac decenti
loco, nee ad usus profanes adhibeatur.
2. Ad normam can. 1522 universae sacrae supel-
lectilis inventarium fiat etaccurate servetur.
3. Circa materiam et formam sacrae supellectilis,
serventur praescripta liturgica, ecclesiastica traditio
et, meliore quo fieri potest modo, etiam artis sacrae

leges.
l We consulted De Herdt, Van horst, and several books written in
der Stappen, Martinucci, Wapel- the vernacular.

267
268 ADMINISTRATIVE LAW
\

CAN. 1297
Nisi aliter sit provisum, qui officio tenentur reparan-
dae ecclesiae ad normam can. 1186, debent quoque ei
providere de sacra supellectili ad cultum necessaria.

Articles of sacra supellex, especially when blessed or

consecrated as required by the liturgical rules*, and used
for public worship must be carefully guarded in the
sacristy of the church or in some other safe and decent
place, and may not be used for profane purposes.
An inventory should bemade of the whole stock and
diligently preserved.
As to the material and form of the sacra supellex, the
liturgical laws, tradition, and, as far as
ecclesiastical

possible, the rules of sacred art should be observed.

Chalice and paten must be consecrated by the bishop,
or whoever is authorized to perform this function.
The following articles must be blessed: the ciborium* 2

(and most probably also the lunula? because it comes

intoimmediate contact with the Blessed Sacrament) ;

the vestments used by the priest at sacred functions,

particularly in saying Mass, to wit amice, alb, cincture, :

maniple, chasuble, palla, corporal and altar linens.

The following objects may be blessed, though it is

not prescribed by the rubrics: the ostensorium, the cus-

todia or pyx for the lunula; dalmatics, cope, and surplice.
4
Not to be blessed are the purificators, the chalice veil,
2 The formula is either that of the lunulae which so enclose the S. Host
Pontif. Rom., tit. De Bened. Taber- that the glass directly touches the
naculi svve Vasculi pro SS. Euch. sacred species. Yet, says Gasparri
Conservanda, or that of the Rit. (I. c., n. 1029), the custom is wide-
Rom., tit. VIII, c. 23 (ed. Pustet, spread in France; we may add, also
1913. P. 76*). in the U. S.
3 Gasparri, De SSma Euch., n. 4 S. Kit.- C., Sept. 7, 1816 ad 12
1031; S. Rit. C., Feb. 4, 1871 (n. (n. 2572).

3234, ad IV) forbids the use of

 CANON 1297 269

the burse, the antipendium, candlesticks, cruets, censers,

etc.

Concerning the consecration of the chalice and paten

itmay be noted that the formula requires three signs of
the cross, one at the word consecrare, the other at the
word sanctificare, the third at the bcnedictionem. If the
last were omitted, there might be a doubt as to the

validity of the consecration, although the S. Congre

5
gation would not answer
question directly. It the
is more probable that the consecration would be valid,

for the act of consecration proper is completed by the

two anointings with holy chrism, made with the twofold
sign of the cross, and the same S. Congregation has de
clared that chalice and paten are validly consecrated even

though but one sign of the cross was made on them with
holy chrism, either at the consecrare or sanctificare: 6
From this it
appears lawful to conclude that, even though
the last or third sign of the cross were omitted, the con
secration would be valid. If the cup (cuppa) of the
chalice be very deep, so that the consecrator cannot reach
the bottom, which he should do when anointing from one
rim through the center or bottom to the other rim, with
the thumb, he may reach as far as possible with the
thumb, rather than use the middle finger, and thus ob
serve the rubric. 7
The sacerdotal vestments require a special blessing.
Therefore, a priest should, in good faith, wear un
if

blessed vestments, they would not become blessed by

the mere wearing them at Mass.
act of
8
Priests who
are allowed to bless sacred vestments and linens must

5 S. Kit. C., June 14, 1873 ("

7 S. Kit. C., Sept. 12, 1884 (n.
servetur rubrica Pont. Ro-
"

3305): 3620).
mani." 8 S. Rit. C, Aug. 31, 1867, ad
6 S. Rit. C., Dec. 2, 1882 (n. VII (n. 3162).
270 ADMINISTRATIVE LAW
\

use the formula given in the Roman Ritual, and are not
allowed to use the Pontificale for single pieces. 9 Thus
a palla and corporal should be blessed together, and if
only one of them is to be blessed, the formula prescribed
in the Roman Ritual should be used. 10
For the rest we refer to the rubrics in the liturgical
books and to the authors who have written on the subject.
Can. 1297 applies the rules concerning the obligation
of repairing churches as laid down in can. 1186 also to
the support of the sacra supellex, which is necessary for
divine worship. Hence, unless other provisions have
been made, the same persons are bound to provide for the
upkeep and repair of the sacred vessels, utensils, and
vestments. There is a good rule stated in one decision,
viz., if the parishioners cannot afford to contribute money,
they should contribute their labor. 11 This is often done
by the women, especially where there is an Altar Society
which busies itself with embellishing the house of God.
If other means fail, the beneficiaries of the church are
12
obliged to share the burden pro ra/a. Finally, Catholic
storekeepers and pawnbrokers are admonished not to
buy or sell any sacred utensils, especially if there is reason
13
to suspect theft.

CARDINALITIAL, EPISCOPAL, AND CLERICAL SUPELLEX

In order to understand these canons it will be well to
take a historical note from the Constitution of Benedict
XIV, which directly refers to our subject. 14 Whilst at
Avignon, the Popes erected a magnificent chapel in their
9 S. Rit. C., March 16, 1876; Dec. 12 S. C. C., March 13, 1657;
2, 1881, ad i (nn. 3392, 3533). Bened. XIV, Instit., 100, n. 13.
10 S. Rit. C., Sept. 4, 1880 (n. 13 Bened. XIV, Instit., 69, n. 3.

3524); Rit. Rom., tit. VIII, c. 22. 14 "

Inter arduas," April 22, 1749.

11 S. C. EE. et R*R., Dec. 10,
1841 (Bizzarri, /. c., p. 477 f.).
 CANON 1298 271

palace, and after

their return to Rome, they retained this
custom Vatican palace, often performing solemn
in the
functions there which were formerly held in the basil
icas, assisted by the Cardinals and the whole papal
chapel. The Cardinals, too, held pontifical ceremonies
requiring a more than common sacra supellex, which was
partly purchased by the prelates, partly by the papal
treasurer. The former were from time immemorial ac
customed either to leave or bequeathe their vestments,
the papal chapel, 15 and thus established a prece
etc.. to

dent which might be called a juridical prescription. Ur

ban VIII formulated the written law 1S which, in sub
stance, has entered our Code.

CAN. 1298

i. Defuncti S. R. E. Cardinalis, qui in Urbe domi-

cilium habebat, quamvis Episcopus suburbicarius aut

Abbas nullius esset, quaelibet sacra supellex, exceptis
annulis et crucibus pectoralibus etiam cum sacris reli-
quiis, aliaeque res omnes stabiliter divino cultui des-
tinatae, nulla habita ratione qualitatis et naturae redi-
tuum quibus comparatae sint, cedunt pontificio sacra-
rio, nisi Cardinalis eas donaverit aut testamento reli-

querit alicui ecclesiae vel oratorio publico vel loco pio

vel alicui personae ecclesiasticae seu religiosae.
2. Optandum ut Cardinalis, qui huiusmodi facul-
tate uti velit, saltern ex parte praeferat illas ecclesias,

quas in titulum, administrationem seu commendam

obtinuerit.

This law commands :

( I ) that the entire sacra supellex
and everything that was permanently destined for divine

15 Julius III, "

Cum sicut nobis,"

16 Urban VIII,
"

Aequum est,"

June 26, 1550. July 19, 1642.

272 ADMINISTRATIVE LAV/

worship, found in the possession of a cardinal at the time

of his death, if that cardinal had his domicile in Rome,
even though he was a suburbicarian bishop or an abbot
nullius, belongs to the papal sacristy. Urban VIII
excepted some things, viz., one tunicella for each cardinal
deacon, one chasuble for each cardinal priest, one cope
for each cardinal bishop, candlesticks, ewer, and basin.
But none of these things are excepted by the new Code,
and consequently all may be claimed by the papal sac
ristan. (2) Rings and pectoral crosses, together with
the sacred relics enclosed therein, must not, but may be
ceded to the pontifical sacristy. 17 (3) The entire sacra
supellex, with the exceptions mentioned, belongs to the
papal sacristy, without any regard as to the quality and
nature of the pecuniary means from which said sacra
supellex was acquired, i. e., it matters not whether the
cardinal bought it from church revenues, or from his

patrimonial income, or obtained it by donation or be

quest. (4) But the Code permits cardinals de curia
to donate or bequeathe their sacra supellex to a church f
or a public oratory, or a pious institution, or any ecclesi
astical or religious person. This was the point which
gave occasion to the aforesaid constitution of Benedict
XIV.
2 expresses the wish that, when such a donation or
bequest is made, preference be given to the church which
the Cardinal held as titular possessor, administrator, or
commendatory abbot.
Sacra supellex here comprises the following articles :

mitres, chasubles, copes, tunics, dalmatics, sandals, gloves,

sacerdotal vestments, chalices, patens, sacred vessels of

every kind (pyx, ostensorium, thimble) especially those

17 Cfr. Pius IX,
"

Quum illud," June i, 1847 (A. S. S., Ill, 281).

 CANON 1299 273

consecrated or blessed, also oilstocks, ewer and basin,

cruets, procession cross, candlesticks, crozier, faldstool ;

also the Missal, Pontifical, Canon, and Gradual. 18

CAN. 1299

i. Defunct! Episcopi residentialis, etiamsi cardin-

alitia dignitate fulserit, sacra supellex cedit ecclesiae
cathedrali, exceptis annulis et crucibus pectoralibus
etiam cum sacris reliquiis, salvo praescripto can. 1288,
et iis omnibus utensilibus cuiusvis generis quae legi-
time probetur ab Episcopo defuncto comparata fuisse
bonis ad ipsam ecclesiam non pertinentibus neque con-
stet in ecclesiae proprietatem transiisse.
2. quando Episcopus duas vel plures dioeceses
Si
successive rexerit aut simul praefuerit duabus vel
pluribus dioecesibus unitis aut in perpetuam adminis-
trationem concessis, cathedralem ecclesiam habentibus
propriam et distinctam, quae sacra utensilia constiterit
reditibus unius tantum dioecesis fuisse comparata, ea
eiusdem cathedrali ecclesiae cedunt; secus dividi
debent, aequis partibus, inter singulas ecclesias cathe-
drales, dummodo dioecesium reditus ne sint divisi,
sed unam episcopalem mensam perpetuo constituant;
si vero reditus divisi sint ac separati, divisio fiat inter
singulas ecclesias cathedrales pro ratione fructuum
quos in singulis dioecesibus Episcopus perceperit ac
temporis quo eisdem praefuerit.
3. Episcopus obligatione tenetur inventarii sac-
rorum utensilium authentica forma conficiendi, in quo
pro rei veritate
quando acquisita sint, exprimat, dis-
tincteque describat si qua non ex ecclesiae reditibus

ac proventibus, sed ex propriis bonis vel ex donatione

IS Pius IX, Quum
"

illud," 3, III.
274 ADMINISTRATIVE LAW
sibi facta comparaverit ; secus omnia reditibus eccle-
siae comparata praesumuntur.

Can. 1299 lays down a rule concerning the sacra sup el-
lex left by a residental bishop, even though he may have
been a cardinal. It excepts the rings and pectoral crosses,
but as to the relics contained therein, it refers to can.
1288, which concerns a relic of the Holy Cross. Other
wise all articles of a bishop s sacra supellex belongs by
law to the deceased prelate s cathedral church, with the

exception, however, of such sacred appurtenances (om

nibus utensilibus) which were bought by the deceased
bishop with his own money and such utensils as have not
passed into the possession of the church. However, for
each of these two kinds of sacra supellex there must be
legal proof that the money was not church money and
that the ownership was acquired by the church. How is

that proof to be furnished?

"

following a letter of Pius IX,

3, Quum aliud"
says that bishops are strictly obliged to draw up an
inventory faithfully describing their sacred utensils, both
as to the time when they were bought because accord
ing to can. 1511, 2, thirty years possession suffices to

acquire such objects and also as to the nature of the

revenues with which they were bought. If this is done
conscientiously and accurately, there should be little dif
ficulty to carry out the present law, which, be it said by
the way, involves a strict obligation. If no inventory is

found, the presumption (praesumptio iuris) is that the

entire sacra supellex was purchased with church money.
2 describes what to be done in the case of a bishop
is

who ruled several dioceses, either as titular bishop or

perpetual administrator. The supposition is, of course,
that each of these dioceses has its own cathedral church.
 CANON 1300 275

If the bishop has made the required inventory, it will

be easy to decide which of the cathedral churches fur
nished the money for the sacra supellex. If only one
of them furnished the money, it has an exclusive claim
to the articles in question. two or three dioceses con
If
tributed to the purchase, there are two possibilities:
If no separate accounts are kept but all revenues go to
constitute the income of the bishop (mensa episcopalis),
then the sacra supellex accrues to the different cathedral
churches in equal shares. 19 But if the different dioceses
keep separate and distinct accounts of their revenues,
then the sacra supellex is to be divided and apportioned
according to the salary, cathedraticum, etc., the bishop
received from each diocese, and according to the length of
time he governed each diocese. Of course, unless books
and records are carefully kept, there may be difficulties
inmaking the division.

CAN. 1300

Quae in can. 1299 praescripta sunt, applicentur

quoque clerico qui in aliqua ecclesia beneficium saecu-
lare vel religiosum obtinuerit.

This canon applies the enactment of can. 1299 to

clergymen who held either a secular or a religious benefice
in any church during their lifetimes. It is a timely re

minder to the clergy of their legal status with regard to the

sacra supellex, which received attention from the earliest
times and is frequently mentioned in the Decretals. 20 Thus
Alexander III sanctioned a previous law which provided
that all the goods appertaining to and acquired by a
church must and may be claimed by said church. Pius V
19 We suppose this holds also with 20 Cf. Can. Apost., 40; c. 12, X,
regard to pro-cathedrals. Ill, 26.
276 ADMINISTRATIVE LAW
reiterated this regulation and explained to the papal col
lectors that they had no right to claim these
goods for the
camera spoliorum, but should leave them to the church
whose beneficiary died. 21 The same rule applied to the
canons and beneficiaries of St. Peter s basilica, no matter
whether they still held their offices at the time of their
death or not. 22
This canon is, strictly speaking, applicable only to
clergymen who held a church benefice, either secular or
religious, but we venture to say that the mind of the legis
lator also includes those who, though not beneficiaries in
the strictly canonical sense, have been employed either
as pastors or curates (assistants), or otherwise. In other
words, the law is applicable also to most clergymen of
our country. The reasons are almost the same: the
sacra supellex should not pass into profane hands and the
churches should not be deprived of the necessary furni
ture. Besides, there is no doubt that many, perhaps
most sacred vessels, utensils, vestments, etc., are bought
with money contributed by the congregation or the mem
bers of the altar society, and such supellex, therefore,
strictlybelongs to the church. On the other hand, we
would not deny that sometimes gifts are made for merely
personal motives, for instance, by parents, relatives,
friends. These could not in justice be claimed by the
church. Care must always be taken, however, to avoid
profanation.
21 S. Pius V, "

Romani Pontificis,"
22 Benedict XIV, "Ad honoran-
Aug. 30, 1567, u. dum," March 27, 1752, 27.
 CANON 1301 277

DUTY OF MAKING A VALID TESTAMENT

CAN. 1301

i. S. R. E. Episcopus residentialis
Cardinalis,
tenentur curandi
aliique clerici beneficiarii obligatione
testamento vel alio instrumento in forma iuris civilis
valido ut canonica praescripta, de quibus in can. 1298-
1300, debitum effectum etiam in foro civili sortiantur.
2. Quamobrem tempestive ac forma iure civili

valida personam integrae famae designent ad normam

can. 380, quae, adveniente ipsorum morte, non solum
sacram supellectilem, sed etiam libros, documenta ali-
aque quae ad ecclesiam pertinent et in eorum domo
reperiuntur, occupet et cui debentur, remittat.

Cardinals, residential bishops, and all other clerical

beneficiaries are in duty bound to draw up a last will or
other instrument in a form acknowledged as valid by civil
law, in order that the regulations laid down in can.

1298-1300 may be made effective also in the civil courts.

For this purpose they shall in due time and legal form
appoint some person of good character who, at the ap
proach of their death, shall take temporary possession
not only of their sacra supellex, but also of books, docu
ments, and other objects belonging to the church and
found in their residence, and deliver them to the lawful
claimants.
Since the decree of the S. C. of the Propaganda, Dec.
23
15, i84O, substantial changes have been introduced in
the laws of our country which render said decree largely
superfluous. Church property is no longer held in fee
simple, but other forms of tenure have developed, which
23 Coll. P. F., n. 916.
 27 8 ADMINISTRATIVE LAW
render the conveyance of church property more simple.
There is no doubt that the corporation sole
"

effectively
"

serves the necessities of churches whose form of gov

ernment is monarchical. 24
For the rest, the statute laws
Union differ widely. In
in the different States of the

many States bishops are authorized to become cor

porations sole by complying with certain conditions,

which are usually extremely simple, consisting merely
of the riling of some statement, certificate, or affidavit
with a certain officer of the law. Then there is the
system of quasi-corporations, which are by statute de
clared corporations for the purpose of taking over prop
25
erty.
24 Cfr. K. Zollmann, American pacity or as a corporation sole. The
Civil Church Law, 1917, p. 63. question then arises as to the nature
25 Ibid., p. 46. Here it may be of this title. Is it legal or equitable
well to allege the following passage or both? There can be no question
from the same distinguished author s that the bishop or archbishop is the
work, p. 354 f.: holder of the legal title. The prop
The Roman Catholic church in
"

erty ordinarily stands absolutely in

this country has been until recently his name. It is customary, and in
on a missionary basis. With the ex fact required by church regulation
ception of some parishes in the ter in at leastsome of the dioceses, to
ritory acquired by the Louisiana Pur eliminate from deeds to bishops all
chase, there are therefore few Cath words of trust and all words indicat
olic parishes in the United States. ing the official character of the
The theory was that the mission was grantee. Where the bishop is not
conducted from abroad. It followed a corporation sole he is required to
that the property necessary for the make a will by which he devises
purposes of the church must be sub such property to certain persons
ject to the control of the church in with a direction to convey it to the
general, rather than to that of any person appointed as his successor.
individual congregation or congrega The devisee, under such circum
tions. To achieve this condition of stances, not held responsible for
is

affairs theaim has been to place all any negligence of the devisor. . . .

the property of all the churches in It follows that money raised for the

the name of the bishop or archbishop special purpose of building a local

of the diocese to which the particu church and placed in the hands of
lar church
belongs. Consequently the bishop does not pass absolutely
the property of Catholic churches is to him, but is a trust fund which the

universally vested in some church congregation can reclaim at any time

dignitary either in his personal ca by action. It further follows that
 CANON 1302 279

CUSTODY OF THE SACRA SUPELLEX

CAN. 1302

Rectores ecclesiarum aliique quibus credita sit cura

sacrae supellectilis, sedulo debent eiusdem conserva-
tioni et decori prospicere.

Rectors of churches and others entrusted with the care

of the articles known as sacra supellex, shall diligently
preserve them and keep them clean and neat. .

Chapter churches generally have a custos among their

members. 26 Of course the Ordinary cannot be dispensed
from the duty of vigilance, and this applies also to the
27
churches of the Oriental Rite. Everything connected
with divine service should be clean, whole and decent. 28
The pastors are responsible in a particular manner for
the condition of the sacra supellex, which must not be
left exclusively in the hands of laymen or even Sisters.

The pastor may, of course, entrust his curate or assistant

with this duty. 29 Care must be bestowed not only on
pontifical vestments and utensils, but also on the things
that are worn or used by simplices sacerdotes, for tli&
law draws no distinction between the two, and the sacred,
minister, when he celebrates the sacred mysteries, is not
inferior to the pontiff, except by accident, because the
a voluntary assignment by a bishop mitted, by the S. C. C., July 29,
for the benefit of creditors does not 1911 (Eccl. Review, Vol. 45, P- 585
cover such property and that a deed f.).
or mortgage given to a purchaser 26 C. i, X, 27.
who has notice of the facts (and 27 S. C. P. F., April 13, 1807,,
who could purchase church property III (n. 692); S. C. EE. et. RR.,
without such notice) passes no bene- Feb. 9, 1751 (Bizzarri, /. c., p.
ficial title. It further follows that 31 ff.).
on the death of the bishop the court 28 S. C. EE. et RR., /. c.; Rit,
may appoint a trustee in his stead." Rom., tit. I, c. un., n. 9.
Parish corporations are recom- 29 Rit. Rom., 1. c., n. 3.
mended and corporations sole per-
280 ADMINISTRATIVE LAW
vestments he wears refer chiefly to the sacred action,
and not to the person who performs it.

FURTHER DIRECTIONS REGARDING THE SACRA SUPELLEX

CAN. 1303

Ecclesia cathedralis debet sacram supellectilem

i.

aliaque quae ad Missae sacrificium vel ad alias pon-

tificalesfunctiones necessaria sint, gratis Episcopo
subministrare etiam privatim celebranti non solum in
ecclesia cathedral!, sed in aliis quoque civitatis vel
suburbii ecclesiis.
2. Si qua ecclesia paupertate laboret, potest Or-

dinarius permittere ut a sacerdotibus qui in proprium

commodum inibi celebrant, propter utensilia ceteraque
ad Missae sacrificium necessaria, moderata stipes exi-

gatur.
3. Episcopi, non autem Vicarii Capitularis aut
Vicarii Generalis sine speciali mandate, est eandem
stipem defmire, et nemini, etiam religiosis etsi ex-
emptis, licet ea maiorem exigere.
Episcopus pro tota dioecesi eiusmodi stipem in
4.
dioecesana Synodo, si fieri possit, definiat, aut extra
Synodum, audito Capitulo.

i. The cathedral church must furnish free of charge

the sacra supellex and everything else that may be re

quired for the celebration of Mass and other pontifical

functions, no matter whether the bishop celebrates pri
vately or solemnly, in the cathedral church or in any
other church of the episcopal city or its suburbs. Hence
if the bishop celebrates within the city limits or its suburbs

he may take the pontifical vestments along with him,

 CANON 1304 281

30
and the cathedral church cannot object. But this holds

only for the episcopal city, not for the whole diocese.
2. If a church is very poor, the Ordinary may permit

that a moderate fee is paid by the priests who say Mass

there for their own
convenience, to defray the expense of
the sacred utensils and other things required for the
celebration of Mass. The S. Congregation has decided
that beneficiaries who are compelled to say Mass in a
church not their own should contribute something for
the candles, bread, and wine, and for the use of the vest
ments. 31
3. The bishop, but not the Vicar Capitular nor the
Vicar General without a special mandate, may fix the
amount of said offering, and no one, not even exempt
religious, may charge more.
4. The bishop should fix this fee for the whole dio
cese at the diocesan synod, or else with the advice of the

chapter or diocesan consultors.

BLESSING OF THE SACRA SUPELLEX

CAN. 1304

Benedictionem illius sacrae supellectilis quae ad

normam legum liturgicarum benedici debet antequam
ad usum sibi proprium adhibeatur, impertire possunt:
i. S. R. E. Cardinales et Episcopi omnes;
2. Locorum Ordinarii, charactere episcopal! caren-
tes, pro ecclesiis et oratoriis proprii territorii;
3. Parochus pro ecclesiis et oratoriis in territorio
suae paroeciae positis, et rectores ecclesiarum pro suis
ecclesiis ;

80S. Kit. C., March 14, 1643, ad 31 S. C. C, May 14, 1729 (Rich-
4f 5 (n. 831). ter, Trid., p. 137, n. 62).
282 ADMINISTRATIVE LAW

4. Sacerdotes a loci Ordinario delegati, intra fines

delegationis et iurisdictionis delegantis;
5. Superiores religiosi et sacerdotes eiusdem re-
ligionis ab ipsis delegati, pro propriis ecclesiis et ora-
toriis ac pro ecclesiis monialium sibi subiectarum.

The sacra supelle.v should be blessed before use, and it

may be blessed by the following :

i. By the cardinals and all bishops (hence also by

titular bishops) ;

2. By Ordinaries not endowed with the episcopal

local
character for the churches and oratories of their respect
ive territory ;

3. By the pastors for the churches and oratories situ

ated within their parishes, and the rectors of churches
for their own churches ;

4. By priests delegated by the local Ordinary, within

the limits of their delegation and the jurisdiction of the
delegans;
5. By superiors and by priests of
religious the
same institute delegated by the superior for their own
churches and oratories and those of the nuns subject to
them.
Notice that only blessings in which no sacred anoint
ing is required are here understood. The consecration
of chalices and patens is not included. The S. Congre
gation has clearly stated this in more than one decision,
as may be seen from the references in the footnotes.
What is said in no. 4, concerning delegation, may be
deduced from the general rules on delegation.
The finis delegationis or purpose of delegation must
be ascertained from the wording of the faculties. If
the general term sacra supellex is used, it includes
everything comprised under that name, also the vasa
 CANON 1304 283

sacra, which only need to be blessed. 32 But if the faculty

"

reads, benedicto sacerdotalium indumentorum," it ex

cludes the blessing of altar linens, corporals, palls, and
sacred vessels, which are all separate and distinct bless
ings given by means of special formulas.
Concerning religious superiors the text establishes noth
ing new, except perhaps that they require no privilege for
blessing these things. Their power is, as it always was,
restricted their own churches.
to Thus abbots, priors
(convenual not cloistral priors), guardians, rectors of
the Society of Jesus, and all others who enjoy the privi

lege of blessing sacred vestments, cannot make use of

except for the benefit of their convents and
this privilege

churches, provided always that no sacred anointing is

required.
33
When the S. C. was asked whether this
faculty could be used also for blessing things pertaining
to other churches than their own, in view of a standing
custom (stante eorum allegata consuetudine) it replied: ,

non posse, they cannot. 34 Hence the awful decree of

" "

Sept. 1659, decided nothing else but what was Roman

35
jurisprudence. The Cassinese abbots were also in
cluded in this decision. 36 If it is asked, which churches
are meant by the term propriae ecclesiae, the answer is
37
clearly contained in a decision of the S. Rit. C., of
May 1 6, 1744. They are the pleno lure subiectae, i, e.,
those churches which have been forever incorporated
with the monasteries or religious organizations both
as to temporal and spiritual matters by the Holy See.
For the rest there is no need of stretching this power.
32 S. Rit. C., Dec. 2, 1881, ad II 35 S. Rit. C., n. 1131.
(n. 3533). 36 S. Rit. C., July 30, 1689, ad II
33 S. Rit. C., March 13, 1632 (n. (n. 1815).
587). 37 S. Rit. C., May 16, 1744, ad
34 S. Rit. C., Aug. 18, 1629 (n. II (n. 2377).
Si3).
284 ADMINISTRATIVE LAW
If every pastor and every rector has the
right to bless
these articles, why should the religious superior trouble
himself ? An occasion for this assumption, and a reason
able one at that, would be if a religious community would
distribute vestments to poor churches gratis. But not
even in that case would the religious superior be author
ized to bless the vestments to be distributed to churches
outside of his jurisdiction. 38
The churches of nuns who are subject to religious,
are of course, those of such nuns as are subject to the
prelates regular therefore they are styled moniales, i. e.,
;

Sisters with solemn vows. Tertiaries are not included.

If these moniales (like the Sisters of the Visitation) are

subject to the bishop, the sacra supellex of their churches

must be blessed either by the Ordinary or the chaplain,
provided the latter has received due delegation from the
bishop. The same rule holds concerning the sacra supel
lex of ordinary sisterhoods. The chaplains should not
imagine that they are rectors of the chapels or oratories
of the religious whom they attend, for can. 479 gives a
precise definition of a rector, in which they are not in
cluded.

LOSS OF BLESSING OR CONSECRATION

CAN. 1305

i. Sacra supellex benedicta aut consecrata bene-

dictionem aut consecrationem amittit:

i. Si tales laesiones vel mutationes subierit ut pris-
tinam amiserit formam, et iam ad suos usus non
habeatur idonea;
2. Si ad usus indecores adhibita vel publicae vendi-
tioni exposita fuerit.

38 S. Rit. C., Aug. 31, 1867, ad XI (n. 3157).

 CANON 1305 285

2. Calix et patena non amittunt consecrationem

ob consumptionem vel renovationem auraturae, salva
tamen, priore in casu, gravi obligatione rursum ea
inaurandi.

i. An article of sacra supellex that has been blessed

or consecrated, loses blessing or consecration:
its

i. If it is so badly damaged or changed that its form

is lost and it becomes unfit for its proper purpose ;

2. If it has been used for unsuitable purposes or ex

hibited for public sale.
The first case would be verified if a chalice sustained

a slight break or split in the cup near the bottom. Not

so however, if the break be near the upper part, so that
consecration can take place in it without fear of spilling
the contents. 39 The same rule applies, mutatis mutandis,
to the paten, if it had holes in it. Concerning vestments
a serious damage or injury would occur if a vestment
were entirely taken apart and a relatively large portion
renewed. The form of a corporal, or palla, etc., would
be changed if, according to common parlance, the vest
ment could no longer be recognized as such, which would
be the case, e. g., if only rags remained.
Concerning indecorous use there is a synodal decree
of Auvergne (536) which prohibits the use of sacred
vestments for bridal or wedding purposes. The same
synod also forbade covering corpses with altar linens
40
(pallia et ministeria divina). Zitelli refers to a decision

according to which the consecration of a chalice would

be lost if the sacred vessel was used for drinking purposes
39 Cfr.
Schulte, Consecranda, 40 Can. 43, Dist. i, de cons.
I who also says: If the
9Q7, p. 272, Hefele, Conc.-Gesch., II, 739: min-
cup can be detached from the stem isteria divina here means sacred
by loosening the screw, consecra- vestments,
tion would not be lost.
286 ADMINISTRATIVE LAW
41
by There is no doubt that any profanation
heretics.
of a sinful character entails the loss of consecration.
Exhibition for public sale or public auction also effects
loss of consecration, no matter whether it is done by
Catholics or non-Catholics.
2 changes the former discipline or practice of the
42
Roman congregations when it states that chalice and
paten do not lose their consecration by the wearing away
of the gilding, or by the process of regilding. But if the
gold plating wears away, there is a grave obligation to
have the vessel replated. This new law undoubtedly
presupposes, not only that the whole chalice is conse
crated, but also that the consecration does not attach to
the mere surface or gilding.

HANDLING SACRED VESSELS

CAN. 1306
i. Curandum ne calix cum patena et ante lotionem
purificatoria, pallae et corporalia, quae adhibita fuere
in sacrificio Missae, tangantur, nisi a celericis vel ab
iis qui eorum custodiam habent.
2. Purificatoria, pallae et corporalia, in Missae
sacrificio adhibita, ne tradantur lavanda laicis, etiam

religiosis, nisi prius abluta fuerint a clerico in

maiori-
bus ordinibus constitute; aqua autem primae lotionis
mittatur in sacrarium vel, si hoc desit, in ignem.

i. Care must be taken that the chalice with the

paten, as well as the purificators, palls,
and corporals, be
fore being washed, after having been used in the Sacri

fice of the Mass are touched only by clerics or by those

who have charge of these things.
41 Apparatus Juris EccL, 1886, 42 S. Kit. C., June 14, 1845 (n*

p. 433; Lib. II, c. Ill, art. i, 5- 2889).

 CANON 1306 287

Pseudo-Soter says nuns and consecrated virgins were

not allowed to touch the sacred vessels and palls. 43 An
other canon says subdeacons and acolythes are allowed
to touch sacred utensils sacra mi-nisteria, as they were
then called. 44 The janitors (ostiarii) were not allowed
to wash or handle them, but had to watch that no one
touched them. 45 The general name for all who were
allowed to touch such objects was sacrati Dominoque dcdi-
6
cati homines* That the old Testament played a part
47
in this prohibition evident.
According to present-
is

day practice only those who have received the clerical

tonsure are allowed to touch the sacred objects men
tioned. A
cleric may touch the chalice and prepare it
for the holy Sacrifice in the sacristy. 48 One who has
received the clerical tonsure may act as chaplain to a prel
ate saying low Mass, or as quasi-master of ceremonies
to a priest singing high Mass without deacon and sub-
deacon. But in the latter case he has to observe the
following rules: (a) he shall not wipe the chalice before
the offertory, nor bring it to the altar uncovered; (b)
he shall not pour wine and water into the chalice; (c)
he paten with the host, nor the chalice
shall not pass the
to the celebrant; (d) he must not touch the chalice after
the canon has started, nor remove the pall from it; (e)
after the ablution he shall not clean the chalice, but may
cover with the veil and burse, and carry it to the cre
it
49
dential. If a cleric who has received only the tonsure

43 C. 25, Dist. i; the manufac- 47 C. 42, Dist. i, de cons.

turer of this canon betrays himself 48 S. Kit. C., Nov. 23, 1906, ad I
as a forger, because monachae were (n. 4194).
unknown in Soter s time. 49 Areasonable or plausible cause
44 C. 32, Dist. i. is required that one in minor orders
45 C. 40, Dist. i, de cons. or simply tonsured be admitted as
(Pseudo-Clem.). subdeacon, but one who is no
46 C. 41, Dist. i, de cons. cleric should not be admitted; S.
(Pseudo-Sixtus). Rit. C., March 10, 1906, ad I (n.
 288 ADMINISTRATIVE LAW
acts as subdeacon, dressed in amice, alb, cincture and
tunic (without maniple), he has to observe these rules, but

may carry the chalice to the altar. If an untonsured

cleric is to assist a prelate at low Mass, the chalice must
be placed on the altar before Mass, entirely covered and
the cleric must act as if he were assisting a simplex sacer-
dos. He may, however, assist the prelate at the missal,
turn the leaves, hold the candle, but he must not touch
or wipe the chalice. 50
2. Purificators, palls, and corporals, which have been

used in the Sacrifice of Mass, shall not be given to lay

persons, even though they be religious, to be washed by
them before they have been washed by a cleric in higher
orders. The water of the first washing should be
poured into the waste hole, called sacrarium, or if there is
no sacrarium, into the fire.
Religious here means lay Brothers and Sisters. Even
the Ordinary cannot grant these the permission here in
51
question. If, therefore, laymen, Sisters or Brothers,
have to handle an object which they are forbidden by
i to touch, let them use a clean purificator.
Concerning the ostensorium, ciborium, and custodia,
there is no prohibition of touching these objects, nor are

laymen obliged to use a cloth in handling them.

4181); this is the general tenor of todians are supposed to be of the

decisions. clerical rank. This is confirmed by
50 b. Rit. C., March 10, 1906, ad the last quoted decision of S. Rit.
II VII (/. c.). C. However, this seems to be un-
51 S. Rit. C., Sept. 12, 1857 (n. derstood of immediate touch; for
3059). Vel ab
"

aliis qui eorum cus- a mediate touch, i. e., by means of

a cloth, can hardly be forbidden.
"

todiam habeant may cause a doubt,

as iflaymen or Sisters were allowed Neither should Sisters have scruples
to touch
said articles. Yet it ap- if they touch the sacred vessels
pears from can. 1302 that these cus- transiently or inadvertently.
 TITLE XIX

VOWS AND OATHS

CHAPTER I

VOWS, DEFINITION AND CAPACITY

CAN. 1307

i. Votum, idest promissio deliberata ac libera Deo

facta de bono possibili e* meliore, ex virtute religionis
impleri debet.
2. Nisi iure prohibeantur, omnes congruenti ra-
tionis usu pollentes, sunt voti capaces.
3. Votum metu gravi et iniusto emissum ipso iure
nullum est.

i. A vow is a deliberate and free promise made to

God concerning something possible and better; it obliges

by reason of the virtue of religion.
The promise x must be made to God, because He is
the end of our actions, which ought indeed all to be di
rected to Him. A promise involves the obligation of keep
ing it, and hence differs from a mere resolution. A prom
ise, to entail a lasting obligation, requires full consent,

freely given. Every substantial error, therefore, in fact

every error which is the cause of a vow, renders the latter

l Cf. Suarez, De Religione, tract. (ed. Paris, 1875, Vol. II, p. 120 ff.) ;

VI, De Voto (ed. Paris., 1859, t. Lehmkuhl, Thcol. Moralis, I, n.

XIV, p. 750 ff.); S. Alphonsus, 428 ff.; Caih. Enc., Vol. XV, 511 f.
Lib. IV, tr. II c. 3, De Voto (by Vermeersch, S. J.).
290 ADMINISTRATIVE LAW
null and void. This does not, however, imply that every
circumstance or detail attending the vow must be known
in advance.
Freedom excludes fear and compulsion, which may be
brought to bear upon the will either from the outside
or from within.
From the necessity of free and deliberate consent
because every vow is a human act it
naturally follows
that the material object of the promise made must be

something that lies in man s power, an object of which

he is allowed to dispose and over which he has control.
Hence it must be something possible, namely, attainable
by his physical and moral faculties. Thus it would in
volve a physical impossibility to impose upon oneself a
fast which were incompatible with the physical labor one
has to do, or which would seriously impair one s health;
and it would be morally impossible to avoid every sin.
The object of a vow must furthermore be a bonuni
melius, i. e., something better than its omission, or some
thing which does not impede or nullify a higher or better
good. Hence no
object which is sinful in itself (ex parte
rei votae) can be made the object of a vow. Nor can
anything useless or entirely indifferent be properly speak
ing intended in a vow. Thus a matter which would dis
turb the means of higher perfection or prevent the ful
fillment of an ecclesiastical law, could not be made the

object of a vow.
Lastly, the definition says that a vow obliges by reason
of the virtue of religion. A
vow is an act that refers to
God as immediate and proper end, and therefore is
its

an act of that worship (actus latriae) which is due to

God alone. If one makes a vow to a saint," the mean
"

ing is that he makes the vow to God in honor of the

 CANON 1307 291

churches are dedicated. Such acts naturally

saint, just as

spring from the virtue of religion, which regulates the

relation between the Creator and His creature, the union
between God and man.
2. Unless prohibited by law, all who have the neces
sary use of reason, are capable of making a vow.
3. A
vow made under the influence of grave and un
just fear is null and void by law.
The general rule 2
is that everyone who has sufficient
use of reason and free will may make a vow. However,
as Suarez 3
says, for a vow to be valid before God there
is required the necessary knowledge of God and of what
the vow implies. If the latter knowledge were wanting,
the subject would not enjoy that use of reason which is
proportionate (congruens) to the object of the vow. On
the other hand, although it may be said that the use of
reason enlightened by faith is necessary, yet even a heretic
who may pronounce a
errs in certain doctrinal matters
valid vow of chastity, provided he has the intention to
make a vow and knows what it involves, at least sub
stantially.
4
And substantialknowledge is generally sup
posed to exist in those who have sufficient use of reason
to realize what a grievous sin is.
Some persons are excluded by law from making vows.
Thus those who have not attained the required age, are
forbidden to make a religious vow, and those who are sub

ject to others in the matter of the vow are forbidden to do

so. Bishops and clergymen should not take a vow to re

sign their offices or undertake a pilgrimage which would

for a long time prevent them from fulfilling their duties. 3

2 Cfr. S. Thorn., Summa Theol., 4 S, Poenit., Nov. 29, 1842 (Coll.

2 2 e P. F., n. 959).
q. 88, art. 8 f.

3 De Voto, 1. Ill, c. 2, n. 9 (I. c., 5 Cfr. Suarez, /. c. 1. Ill, c. 4.

p. 895).
292 ADMINISTRATIVE LAW
Married women should not make vows incompatible with
their state, religious should not, without the knowledge of
their superiors, vow things which would clash with their

ordinary duties.
Fear to render a vow invalid, must be grave, i. e., such
as apt to influence a man of character and constancy.
is

Such a fear would be that of torment or death. 6 It must

also be unjust, viz., threatened by such as have no author

ity or right to do so, or entirely out of proportion to the

matter of the vow. The law which declares such a
vow invalid ispresumably the ecclesiastical law, for it
would be difficult to prove that the natural law renders
such a law invalid, since the voluntarium is not entirely

wanting even under the pressure of grave fear.

KINDS OF VOWS

CAN. 1308

i. Votum est publicum, si nomine Ecclesiae a

legitimo Superiore ecclesiastico acceptetur; secus
privatum.
2. Sollemne, si ab Ecclesia uti tale fuerit agnitum ;

secus simplex.
3. Reservatum, cuius dispensationem sola Sedes
Apostolica concedere potest.
4. Personale, quo actio voventis promittitur ;

reale, quo promittitur res aliqua; mixtum, quod per-

sonalis et realis naturam participat.

A vow is public when it is accepted by a lawful ecclesi

astical superior in the name of the Church; all vows not so
accepted are private.
Therefore, the intervention of the Church through her
6 C. 6, X, 40; Suarez, De Voto, 1. I, c. 8, n. 5, thought otherwise.
 CANON 1309 293-

lawful representatives is necessary to make a vow public.

The term superior supposes authority in foro extcrno,
at least this is the usual acceptation. Hence neither the
pastor, as such, nor a confessor, as such, can accept a
public vow or render a vow public.
Private vows, of course, may be made into the hands of
pastor or confessor, nay without any intervention on the
part of the Church.
A
vow is solemn if it is acknowledged as such by the
Church ;
otherwise it is simple. This distinction has
been explained in Vol. Ill of this Commentary. A vow
is reserved if dispensation from it can be granted only by
the Apostolic See.
A vow is personal the object of the promise is art
if

act of the vowing person, for instance, to love another;

it is real if an object other than the
act itself is promised ;
it is mixed combines the elements both of a personal
if it

and of a real vow. A vow to make a pilgrimage, e. g.,

is a personal vow, but if it includes giving an alms, it is.

mixed.
RESERVED VOWS

CAN. 1309

Vota privata Sedi Apostolicae reservata sunt tan-

tummodo votum perfectae ac perpetuae castitatis et
votum ingrediendi in religionem votorum sollemnium r .

quae emissa fuerint absolute et post completum deci-

mum aetatis annum.

The only private vows which are reserved to the Apos

tolic See are that of perfect and perpetual chastity and
that of entering a religious order with solemn vows, pro
vided they are made unconditionally and after the eigh
teenth year of age has been completed.
 294 ADMINISTRATIVE LAW
St. Thomas knew two reserved vows: that of conti
nence and that of a pilgrimage to the Holy Land. But the
number was later increased, so that five were considered
as reserved: to enter a religious order, to observe perpet
ual chastity, to make a pilgrimage to Jerusalem, St. James
of Compostella (Spain), and to the tombs of St. Peter
and Paul in Rome. 7 Now the three pilgrimages are taken
away from the number of vows reserved to the Holy See,
and only two are left. These two are explicitly defined,
so that little doubt is left as to their extent.

The vow
of perfect and perpetual chastity (perfectae et
perpetuate castitatis) tends to an act that is perfect in itself
and by reason of the matter intended. If the vow is
taken from a motive lower than love of the virtue of
chastity, it is imperfect. Such a lower motive may be
vanity, physical imbecility, or even stubbornness. vow A
of chastity would be imperfect on the part of the matter
vowed, if only virginity, or integrity of the body, or not
8
marrying, was contracted.
A
vow is perpetual if it is taken not for a limited time
only, (for instance until a certain age), but forever.
The vow of entering a religious institute here refers
" "

to orders of regulars, i. e., the religious state in which sol

emn vows are pronounced.
These private vows are not reserved to the Holy See
unless made unconditionally. A condition would be, for
instance, if I receive that favor, if I am restored to
health; if approved by the Holy See;
the order is if

there is a convent of that order in such and such a

country, etc.

Besides, the person who takes such a vow must have

completed the eighteenth year of age. This is a higher
7 Bened. XIV, "Inter praeteri- 8 Cfr. Lehmkuhl, I, n, 477,
tos," Dec. 3, 1749, 42-
 CANON 1310 295

limit than was set before, in fact until now there was na
definite limit set to age in this connection.

PERSONAL OBLIGATION

CAN. 1310
i. Votum non
obligat, ratione sui, nisi emittentem.
Voti realis obligatio transit ad heredes, item,
2.

obligatio voti mixti pro parte qua reale est.

I. A vow, as such, obliges no one but the person

who makes it, for the reason that a vow involves a
strictly personal obligation, which can neither be assumed
nor fulfilled except by the one who has offered this

promise to God.
In the city of Rome the fastday of Feb. i was long ago
introduced by reason of a vow. After the promulgation
of the Constitution of Urban VIII,
"

Universa," of Sept.

13, 1642, doubts were proposed to the S. Congregation

of Rites as to whether the feasts suppressed by that con
stitution also included the feasts which had been kept

merely by reason of a vow. The answer was that the

feasts observed by reason of a vow, but now suppressed,
oblige only those who made the vow, not their succes
9
sors. then, is the 1st of February still observed in
Why,
Rome? Because there was a law, or statute, or precept
attached to the vow. Therefore it is not the vow as such
(ratione sui), but the law attached to it, which obliges the
successors of the one who made the original vow 10 pro ;

vided that law was accepted by the majority and was not
abrogated by a later law or contrary custom.
2. The obligation arising from a real vow passes
9 S. C. Kit, April 18, 1043; Nov. 10 Suarez, De Voto, 1. IV, c. 9.
19, 1650; June 23, 1703, ad i (nn.
834, 932, 2113).
296 ADMINISTRATIVE LAW
t? the heirs, that arising from a mixed vow only in so
far as the real part is concerned.
A personal vow expires with the death of the person
who made it, and hence, for instance, the obligation of
making a pilgrimage does not pass to the heirs. But if
one vowed not only a pilgrimage, but also a certain sum
of to the sanctuary, the real part of the vow, re
money
specting the donation, must be fulfilled by those who suc
ceeded the deceased in the possession of his property.
Why? Because an heir is, in virtue of justice and by
reason of an at least implied or tacit contract, obliged to

pay the debts of the one whose property he obtains either

by last will and testament or by succession ab intestato.
There is no reason why religious debts should not be paid,
even though the civil law does not compel the heirs to pay
them. 11 It is not necessary to recur to the religious as
12
pect of the question, because, as Suarez truly says, re

ligious loyalty does not strictly oblige to restitution. Of

course, if the vow was originally restricted to the lifetime
of the vovens, or made conditional upon its acceptance by
the heirs, does not oblige the latter unless they accept
it

the inheritance. It is evident that the heir must know of

such a vow, one way or the other ;

if he does not, the in
heritance must be considered free of encumbrance. A
legacy or bequest left by vow must therefore, in virtue of
justice,be delivered to the persons or pious institutes for
whom it was intended by the vovens.
11 Cfr. 1. 2, Dig. 50, 12:
"

voti The older English law left it with

fnim obligationem ad heredem the Ordinaries to dispose of goods
transire constat." left ab intestato for pious purposes.
12 De Voto, 1. IV, c. ii, n. 8 f. Cfr. Blackstone-Cooley, II, 494.
 CANON 1311 297

CESSATION OF OBLIGATION

CAN. 1311

Cessat votum lapsu temporis ad finiendam obliga-

tionem appositi, mutatione substantial! materiae prom-
issae, deficiente conditione a qua votum pendet aut
eiusdem causa finali, irritatione, dispensatione, com-
mutatione.

A vow ceases to oblige :

(a) After the time conditionally set for its fulfillment

has expired; (b) If there is a substantial change in the
thing promised; (c) if some condition on which the vow
was made to depend, is not fulfilled; (d) if the cause or
object for which the vow was made ceases to exist; (e)

by nullification, dispensation, or commutation.

Before explaining these points we must premise that the
time when an obligation commences (terminus a quo),
differs according to the character of the vow, whether
it is negative (a promise to omit something) or positive

(a promise to perform a good work). If a vow is neg

ative (for instance, not to play cards, not to gamble), it

obliges immediately (statins ac pro statim), unless it was

limited by the vovens. An affirmative vow, on the other
hand, e. g., to enter a religious order, though it also be
from the time it was made, may reasonably
gins to oblige
be postponed until a time which is more convenient ac
cording to one s own prudent judgment. 13
Now as to cessation:
Ad i. The lapse of time is here considered as ad finien
dam which signifies that a precise term was set, beyond
which the vovens had no intention to oblige himself. For
one would take the
"

from
"

instance, if pledge (to abstain

13 See Suarez, De Voto, 1. IV, c. 12.
298 ADMINISTRATIVE LAW
intoxicating drinks) in the form of a vow (in itself the
pledge implies no vow, but a mere resolution) for one
year, the obligation would cease after 365 days have
elapsed, even in a leap year. This rule holds good for
personal as well as real and mixed vows. If a vow was
made was only
for a certain time, but the time limit
a secondary or accessory consideration, and not a con
dition proper, it is generally presumed that the vow, if

personal (for instance, of fasting), ceases after the lapse

of that period. Whereas if it is real, it does not cease to
oblige even after that time and must therefore be com
14
plied with even if the time limit has expired. This, of
course, holds also of mixed vows, as to their material
object.
Ad 2. A substantial change of the thing promised also
renders a vow null and void. Such a change would occur,
one had vowed to give substantial alms for a good
e. g., if

purpose, and later became poor he would then be free of

;

his vow and need not beg to get the money. 15 The same
rule applies to a personal vow (for instance, of undertak

ing a pilgrimage or of fasting) if one s health becomes so

gravely impaired that one cannot comply with one s prom
ise. This holds even if the change has been brought
about by one own fault. 16
s

Ad. 5. A vow ceases to oblige, thirdly, if the condition

attached to it by the vovens is not fulfilled, for instance, if
one made a vow in order to obtain good health, and this
favor has not been restored; or if one vowed to enter re
ligion, provided such and such a convent would receive
him or her. In the latter case he would not be obliged to
17
ask for admission to another convent.
14 S. Alph., lib. IV, tr. II, c. 3, 16 Ibid.
De Voto, n. 220 (ed. cit., p. 132 f.). 17 Cfr. Suarez, De Voto, 1. IV,
15 Ibid., n. 225, 3 ff. c. 17.
 CANON 1312 299

Ad 4. By final cause (causa finalis) must be understood

the main and primary reason that moves or prompts one
to make a vow for instance, if the poverty of a church
;

caused one to vow a legacy to it, or if the sickness of a

friend prompted one to vow a pilgrimage for his recov

ery. Besides this final cause, there may be impulsive rea

sons, which aided one to make the vow, but
in impelling

only accidentally or secondarily; these do not constitute

the end or object for which the vow was made. 18 Now,
if the final cause or purpose of a vow ceases to exist, as in
the case of a poor institution becoming wealthy, the obliga
tion ceases. But if the poverty of the institution was only
a secondary or impelling cause ad facilius donandum (" ")

the vow obliges even after the institution ceases to be

poor. It is, therefore, somewhat similar to a condition.
Ad. 5. The nullification or irritation of vows as well as
dispensation and commutation are treated in the following
canons.

IRRITATION OF VOWS

CAN. 1312

i. Qui potestatem dominativam in voluntatem vo-

ventis legitime exercet, potest eius vota valide et, ex
iusta causa, etiam licite irrita reddere, ita ut nullo in
casu obligatio postea reviviscat.
2. Qui potestatem non quidem in voluntatem vo-

ventis, sed in voti materiam habet, potest voti obliga-

tionem tandiu suspendere, quandiu voti adimplemen-
tum sibi praeiudicium afferat.

i. Whoever lawfully exercises controlling power over

the will of the v ovens may validly and, for a reasonable

18 Suarez, De Voto, lib. IV, c. 18, n. 8.

300 ADMINISTRATIVE LAW

cause, also licitly nullify his vow, so that the obligation

ceases, never to revive.
is what is called irritation, and may be defined as
This
an by which either the object of the vow, or the act
act
of the vowing person itself, ceases to oblige. When the
matter of the vow (for instance, a pilgrimage) is imme
diately concerned, irritation is called indirect (see 2).
When the will, or, rather, the act of the vovens, is affected,
irritation is called direct, because by it the act is revoked
19
and, as it were, cancelled. This power may be exercised
only by persons to whom the will of the vovens is subject
by reason of governing or domestic power, as distin
guished from the power of jurisdiction. The dominative
or domestic power, like the paternal power, is radically
based upon the natural law, but has its formal sanction in
ecclesiastical law.
The domestic authorities here concerned are :

(i) The pope and religious superiors (and superior

esses) with regard to vows made by their subjects after
their religious profession. As to the pope, the question is
solved in can. 499, I as to the superiors, there can
;

be no doubt, since all superiors, even the female, enjoy

domestic power over their subjects by virtue of the vow
of obedience. This certainly is true with respect to all
those who rule and live in a community to which the name
"

religious
"

may be applied in the canonical sense.

Hence the superiors, higher and local, of all orders and

congregations, papal as well as diocesan, have the power

of irritating vows made by their subjects after the simple
profession, for it is by this profession that the members
are really placed under domestic power.
The answer is different for religious societies which
19 Suarez, De Voto, 1. VI, c. i, n. 4.
 CANON 1312 301

pronounce no vows, or only the one or other. For the

mere act of constituting a body or society does not yet
give rise to the dominative power in its full sense. How
ever, if the members are obliged to obey superiors who,
in the constitutions, are said to enjoy dominative power, 20
there can be no doubt that their private vows can be nulli
fied by these superiors. Vows of novices cannot be nulli
21
fied by the religious superior in virtue of direct irritation.
Neither can the superiors, per se, irritate vows made be
fore profession. Yet in virtue of the higher perfection
attached to the religious state, and by reason of the ecclesi
astical law, these private vows remain suspended, as will
be seen under can. 1315.
(2) Parents and tutors or guardians may by direct irri
tation nullify the vows taken by boys who have not yet
completed the fourteenth or by girls who have not yet
completed the twelfth year of age.
22
Some authors 23
have extended this right to grandparents, which may be

accepted as a benign interpretation, although can. 89

hardly warrants the extension.
(3) The husband, being the head of the wife according
to divine and ecclesiastical law, may nullify the vows of
his helpmate made in the married state. This rule most
probably applies to all kinds of vows made by the wife,
24
not only to such as are directly opposed to conjugal life.
The wife, on the other hand, cannot directly irritate any
vow of her husband. What if the wife has taken a vow
with the consent and approval of her husband? Even in
20 Thus the Constit. of the Pre- entiam praestare tenentur." See
cious Blood Fatliers, pro Praxi can. 675, 501.
Americana reads (art. i): Sacer-
"

21 Cfr. Lehmkuhl, /. c. I, n. 460.

dotes Provinciae Americanae sub- 22 Can. 88, 2.

iiciuntur vicario, qui auctoritate 23 S. Alph., /. c., n. 229; Lehrn-

dominativa pallet, CUT, proinde obedi- kuhl, /. c., n. 458.
24 S. Alph., De Voto, n. 234.
302 ADMINISTRATIVE LAW
this case he may nullify the vow, because his power has
not been curtailed by his former consent. 25 This rule is
extended by some authors also to the mutual vow of chas
26
tity, holding that the husband may irritate the vow, and
consequently also his own.
2. Those who have power over the object of the vow,

but not over the will of the vowing person, may suspend
the obligation accruing from the vow if its fulfillment
would be prejudicial to them. This, as stated above, is
called indirect irritation. It is based on the principle that

no one can promise anything that would violate the rights

of another. Under this heading may be enumerated the
following cases :

Ecclesiastical superiors, the pope, bishops, religious

1 i )

superiors, also in virtue of jurisdiction, may suspend the

obligation of vows that are detrimental to the welfare of
the church, either universal or particular, or of their
subjects. This holds good also of vows made before the
vowing person became dependent on the respective supe
rior.

(2) Parents and guardians may suspend the obligation

of vows made by their dependants until these are of age.

(3) A wife may suspend certain vows of her husband,

for instance, one which would cause long absence, one
of keeping severe abstinence or of not asking the debitum
27
coniugale.
(4) Authors add that masters may suspend the vows
of their servants. This applies to the ancient relation be
tween master and servant (herus et servus), but is hardly
applicable to modern conditions.
Direct irritation requires no reason for its validity, but

25 Ibid.; n. 239. n. 463, who, however, advises pro-

26 Ibid.; cfr. Lehmkuhl, I. C., I, visional dispensation.
27 St. Alph., /. c. n. 235, n. 242.
 CANON 1313 303

only for licitness. If the vovens demands the irritation

of a vow from his or her superior, the reason must be
sincerely stated, otherwise the superior would act inval-
idly, because he is make use of this power
not supposed to
without a reason. 28 Of his own accord, however, the su
perior may irritate a vow of his subject without a rea
son, though he may grievously sin by doing so, if the vow
is important.
Indirect irritation requires no reason except the fact
that a vow is detrimental to the welfare of the Church,
or to authority, or to the salvation of the vovens. Of this
the superior is the judge.

DISPENSATION FROM VOWS

CAN. 1313

Vota non reservata possunt iusta de causa dispen-

sare, dummodo dispensatio ne laedat ius aliis quaesi-
tum:
i. Loci Ordinarius quod attinet ad omnes suos
subditos atque etiam peregrines ;

2. Superior exemptae quod at

religionis clericalis
tinet ad personas quae can. 514, i, enumerantur;
3. li quibus ab Apostolica Sede delegata fuerit dis-

pensandi potestas.
Vows that are not reserved may be dispensed from,
for a just reason, provided the dispensation does not
trench on the right acquired by a third person. Such
dispensations may be granted:
i. By the local Ordinary to his own subjects as well
as to peregrini;
2. By religious superiors of exempt clerical institutes

28 Lehmkuhl, /. c., n. 465.

 304 ADMINISTRATIVE LAW
to all those persons that are mentioned in can. 514, i ;

3. By those to whom the power of dispensing has been

granted by the Apostolic See.
Dispensation here means a relaxation of the rigor of
the law in a particular case. More particularly it involves
a remission of an obligation contracted before God 29 ; for
a vow is made to God only. vow may justly be con A
sidered a law, because it is based upon the divine law,
although made by individual persons, since vows in gen
eral have always been sanctioned in Holy Writ. That the
divinely instituted Church possesses the power of condon
ing vows is evident from the universal jurisdiction granted
her by Christ. As vows, as well as the power of dis
pensing from them, are rooted in divine law, it follows
that not even the Sovereign Pontiff can validly dispense

from them without a proportionate reason. Much less,

then, those validly dispense without a cause, who en
may
joy only a limited and dependent power.
Notice the clause dummodo ne laedat ius aliis quaesi-
:

tum. A vow may be made in

favor of a third person, say
a poor girl, for the purpose of endowing her, or of a pious
or charitable institution, or it may be a religious vow
which affects a community. To dispense from a vow
made has freely
in favor of a third person, if the latter
and fully accepted the same, per se exceeds even the power
of the Pope. Yet it must be and is admitted by most
30
canonists that the Pope, in virtue of his supreme power
and government of the Church, may dispense from vows
which affect either physical persons or ecclesiastical com
munities for the reason that this is necessary for the com

mon welfare. Of course, there must be a solid reason.

29 Lehmkuhl, /. c., n. 470. been held by some; St. Alphonsus
30 Cfr. S. Alph., n. 256, where himself defends the statement made
the negative opinion is said to have in the text.
 CANON 1313 305

This power cannot, however, be vindicated to inferior

prelates, and is therefore excluded in our text.
What are
"

vota non reservata "? Reservation must be

Hence only
interpreted strictly, according to can. 1309.
those private vows are reserved which are enumerated
and comply with the conditions laid down in that canon.
Thus vow of entering a religious congregation or em
the

bracing a stricter order is not reserved.

However, some difficulty arises from the comparison

of our canon with can. 1309, because the latter mentions
private reserved vows, whilst our canon (1313) simply
vota non reservata," without making a distinction
"

says :

between private and public vows. Public vows are those

taken in a religious institute approved by the Church, 31
more especially the three that make up the religious
state, no matter whether these vows be temporary or per
petual, simple or solemn. Are these religious vows in
cluded in the power of dispensation granted by law to
those mentioned in can. 1313? It is certain that these
vows must be considered as reserved to the Holy See, at
32
least on account of the ius tertii. Hence the general
rule certainly forbids superiors, even though otherwise

empowered, to dispense from them. Yet our bishops for

merly could dispense from temporary vows of poverty
and obedience in favor of non-enclosured members of
diocesan institutes also from the vow of chastity if ;

not taken forever and absolutely. 33 The question there

fore arises, whether bishops and exempt prelates may

31 Can. 488, i. contracts oneroso acquisitum tertii,

32 S. C. P. F., Aug. 24, 1885 ipso rationabiliter invito, non laeda-
(Coll. P. F., n. 1642). tur. Quoad votum non resert atum
33 Ibid, and S. O., Aug. 2, 1876 castitatis, ex potentate ordinaria
vota
"

(Coll. cit., n. 1461): Quoad Episcopi, negative, nisi constet vo-

non reservata paupertatis et obedi- turn non fuisse perpetuwn et ab~
entiae, posse Episcopum in utroque solutum."

casu dispensare, dummodo ius ex

306 ADMINISTRATIVE LAW
still make use of this power? The answer is yes, be
cause canonists generally hold,
(can. and the Code
1309) does not deny, that vows not lasting or perfect in
themselves, are not reserved. Hence, per se loquendo, the
superiors mentioned might still use their power in favor
of members with temporary vows, did not the Code, fol
lowing a decision of the Holy Office, add the provision:
provided no right arising from the onerous contract and
3*
acquired by a third person be violated. Here, then, is
the practical rule that should guide superiors Follow can. :

647, which determines the dismissal of religious with tem

porary vows only. This certainly is the canonicallv cor
rect way, because it safeguards the rights of the third
person, viz., the religious institute.
35
Here we may supply from St. Alphonsus the informa
tion that no vow
reserved (a) if it is made with the in
is

tention of obliging oneself only sub levi, (b) if it is made

under the influence of fear, (c) if it is not complete as
to the object promised, e. g., the vow of virginity intended

only to preserve the integrity of the body; (d) if it is

made conditionally, even though the condition was ful
filled.

Concerning the persons mentioned in our text as being

endowed with the power of dispensation, we must draw
attention to the peregrini. For the purpose of this law a
peregrinus is any one (hie et nunc) sojourning in the dio
cese of the dispensing Ordinary, and no inquiry is neces
36
sary as to his future intentions. It goes without saying

that by the local Ordinary is understood also the Vicar

General and the administrator.
Those who have received delegated power to dispense
from non-reserved vows from the Apostolic See are,
34 Ibid. 36 Thus St. Alph., n. 262.
35 De Voto, n. 258; Lehmkuhl, I,

n. 477-
 CANON 1314 307

among others, the regular confessors, L e., confessors be

longing to a regular order, for, according to the common
doctrine of the school, these can dispense all the faithful
from non-reserved vows, either in or outside the confes
sional. This power, based upon privilege, is granted by
papal delegation.
37
How far it may be extended to papal
delegates, depends on their credentials.
Since none of those named in our canon can dispense
without a reason, it may be well to state some valid rea
38
sons as given by St. Alphonsus :

(1) Periculum transgressionis ac indispositionis par-

ticularis vel communis hominum fragilitas;
(2) Magna difticultas in executione, sive praevisa fuit
sive non praevisa;
(3) Si v ovens vexetur magnis scrupulis;
(4) Si votum fuit emissum ex perturbata mente vel
absque perfecta deliberatione, e. g., ex tristitia, ira, metu,
etc.

COMMUTATION OF VOWS
CAN. 1314

Opus voto non reservato promissum potest in

melius vel in aequale bonum ab ipso vovente commu-
tari; in minus vero bonum ab illo cui potestas est
dispensandi ad normam can. 1313.

Any good work promised in a non-reserved vow may

be changed by the vovens into one better or equally good ;

but only those who may dispense according to canon 1313,

can change it into a lesser work.
Commutation is the substitution of a promised good
work for another, according to the rules of (at least)
37 S. Alph., /. c., n. 257; Lehm- 38 De Voto, n. 252 f.

kuhl, I, 472.
308 ADMINISTRATIVE LAW

geometrical proportion. The quality of a good work is

measured by the spiritual profit of the vovens and the de
gree of divine pleasure and glory involved. This, of
course, cannot be determined mathematically. The safest
commutation always is a change into greater frequentation
of the Sacraments. 39 The confessor, who is supposed to
know the condition of his penitent, is the best judge in
this matter.
Note
that for a private change no reason is required,

provided the promised good work is commuted into one

that is obviously better. To commute the promised work
into one less good, the authority that is empowered to dis

pense, must intervene. Therefore all those mentioned in

can. 1313 may commute a non-reserved vow for a fust
reason, though it may be held with probability that the

commutation would be valid even if there was no just

reason because a commutation is not a complete liberation
from a vow. It is also probable that even a vow made
under oath may be commuted. 40

CAN. 1315

Vota ante professionem religiosam emissa suspen-

duntur, donee vovens in religione permanserit.

Vows made
before religious profession are suspended
as long the vovens remains in the religious institute
which he has joined. This includes the vow of en
tering a stricter, say the Carthusian, order, for this vow
41
is not reserved. -But what if this vow has been accepted
by the stricter order, or if it was made under oath ? Since

39 S. Alph., n. 243. tiff dictates a penance for the vow

40 S. Alph. /. c., De Voto, n. 245; not fulfilled,although the subject
n. 190; Lehmkuhl, I, n. 479. may remain in the more mitigated
41 C. 5, 6, III, 14, but the Pon- order.
 CANON 1315 309

the text draws no distinction, the vow would be sus

pended even in that case; in fact the stricter order could
not formally accept it until the religious had made his
profession there. But this is not intended here because it
would be a case of transfer, which is reserved. 42 After
dismissal, the vows revive.

42 Can. 632.
 CHAPTER II

OATHS

DEFINITION

CAN. 1316

i. lusiurandum, idest invocatio Nominis divini in

testem veritatis, praestari nequit, nisi in veritate, in
iudicio et in iustitia.
lusiurandum quod canones exigunt vel admit-
2.

tunt, per procuratorem praestaji valide nequit.

I. An oath, that is, the invocation of the Divine

Name in witness of the truth, cannot be taken except with
truth, judgment, and justice.
2. Oaths demanded or admitted by Canon Law can

not validly be taken by proxy.

There were heretics who rejected oaths as illicit, or min
imized their value, or depreciated their gravity, or made
1
little of perjury. The golden mean always held by the
Church is that oaths are permitted if made under the
2
conditions down in this canon, to wit
laid :

(i) They must be made in truth, for what a man sol

emnly affirms, should be in conformity with the truth,

l Cfr. Professio Fidei Waldensi- 7$ Syn. Pisotoriens. damn., Aug. 28,
bus proposita (Denzinger, n. 371); J 794 (ibid., n. 1438).

Errores Wicl. et Hus. (Denzinger, 2 Cfr. the Commentators on tit.

nn. 519, 556-558); propp. damn., 24, lib. II, de lureiurando; S.

S.
24-28, March 4, 1679 (ibid., nn. 1041 Thorn., II-II, q. 89; q. 98;
ff.); prop. 101, Quesnellii damn., Alph., 1. IV, tr. II, c. 2; Suarez,
Sept 8, 1713 (ibid., 1316); prop. De Relig., tr. V, de luramento, t.

XIV, 438 ff.

310
 CANON 1316 311

and when he makes a promise, he should have the inten

tion of keeping it.

(2) They must be made with judgment, i. e., with due

and reverent consideration of the usefulness or necessity
of an oath.
(3) They must be made in justice, because no unjust
obligation is
binding.
Of the various distinctions made by canonists we will
consider only the two especially referred to in our Code
the assertory or affirmative oath, by which God is called

upon to witness an assertion of a past or present fact and ;

the promissory oath, by which God is called upon to wit

ness the execution of a resolution, vow or agreement. In
both, the Deity must be invoked as witness and the in
tention must correspond with the words used in the invo
cation.
In judging the intention, which is always a difficult mat
ter, the formula or terms of the promise must be taken

according to the customary interpretation.

It is strictly forbidden to use a name for the Deity

which is commonly considered to mean an evil spirit. 3 It

is not necessary to couple the name of God with a verb in
the imperative, or subjunctive, or optative form, for the
indicative may have the same meaning, as in the formula :

"

God liveth, God knoweth,

speak, before God I I tell the
truth." But
these expressions were used as mere enun
if

ciations, the intention of swearing would, of course, be

4
wanting.
3 Thus deocce, with the Gallas, 4 S. Alph., /. c., n. 134.
indicates -in evil spirit; S. O., June
20, 1866, ad 37 (n. 1293).
 3 i2 ADMINISTRATIVE LAW

THE OBLIGATION ARISING FROM AN OATH

CAN. 1317
libere iurat se aliquid facturum, peculiar!
i. Qui
religionis obligatione tenetur implendi quod iureiur-
ando firmaverit.
2. lusiurandum per vim aut metum gravem ex-
tortum valet, sed a Superiore ecclesiastico relaxari
potest.
3. lusiurandum nee vi nee dolo praestitum quo
quis privato bono aut favori renuntiat lege ipsi con-
cesso, servandum est quoties non vergit in dispendium
salutis aeternae.

i. One who
freely takes an oath, promising to per
form something, under a special obligation, arising from
is

the virtue of religion, to keep what he has promised. The

reason is that in a promissory oath God is called upon as

solemn witness of our intention to keep what we promise,

and as a guarantee and pledge of executing our intention,
and hence failure to do so is a slur and an injury to His
honor and truthfulness, and involves a sin, either mortal
or venial according to the gravity of the matter, against
5
religion.
2. An oath extorted by violence or grave fear is valid,
but may be rescinded by one s ecclesiastical superior.
4i 6
This great question," as St. Alphonsus calls it, is here
solved according to the doctrine laid down in the decre
tals, viz., that an oath taken under the influence of com
7

pulsion or grave fear is valid because man is obliged to

keep what he promises under oath, lest God be found a
5 Cfr. Suarez, /. c., 1. I, c. 9; 6 L. c., II, n. 174; S. Thorn., II-
1. Ill, c. 16; cfr. c. i, C. 22, q. 2; II, q. 89, art. 7, ad 2.

cc. 8, 9, 17, 28, X, II, 24; Pius 7 Cc. 8, 15, X, II, 24.
IX, Syllabus, n. 64.
 CANON 1318 313

false witness. However, the unjust extortioner has no

just claim to the thing thus promised, and therefore the
ecclesiastical authorities have absolved even sacred minis
ters who abjured their ministry under compulsion, from
the obligation of the oath. Besides, all agree that no obli
gation of justice arises from an unjustly exacted oath,
and that if the object (money, etc.) was already delivered,

it could be claimed in court or regained by occult com

pensation.
3. An oath taken without compulsion or fraud, by
which one renounces some private good or favor granted
him by law, must be kept, if it does not imply the loss of
eternal salvation. The case is taken from the decretals. 8
Women had promised by oath to have their dowries sold.
The pope told the judges to observe the canon law, which
permitted such alienation, and to instruct the women to
keep their oath, as long as no injury was done to others
and there was no danger to their salvation.

NATURE OF OBLIGATION

CAN. 1318

i. lusiurandum promissorium sequitur naturam

et conditiones actus cui adiicitur.
2. Si actui directe vergenti in damnum aliorum

aut in praeiudicium boni publici vel salutis aeternae

iusiurandum adiiciatur, nullam exinde actus conse-
quitur firmitatem.

i. A promissory oath follows the nature and condi

tions of the act to which it is attached.

8 C. 15, 28, X, II, 24. Thus also a usurer interest would bind, but
an oath made to a meretrix, if no the money may be reclaimed; c. 6,
sin is involved, would
hold; S. X, II, 24.
Alph., n. 177; even an oath to pay
314 ADMINISTRATIVE LAW
2. If the oath is attached to an act which implies
damage to others, or prejudice to the common welfare or
to eternal salvation, the act receives no strength from the
oath.
I explains the
meaning of a promissory oath. It is
attached to a contract, stipulation, or agreement, and
lends higher sanction to the same, but the obligation of
the oath cannot be extended farther than the contract or
natural promise itself. Hence (a) a sworn promise, in
order to be valid, must be accepted before it obliges; (b)
it cannot be condoned, abated, or Besides there
forgiven.
may be other mutual or implied conditions, as is the case
in every contract; e.g., if I am able, if my superior per
9
mits, etc.
2 declares that an oath has no binding force if at
tached to an act that (a) implies injury to a third person,
for this would be evil, 10 or (b) injury to the public wel
fare, as if a judge would swear not to prosecute criminals,
or a clergyman would take a civil oath forbidden by higher
authority
1:L
or (c) endangers eternal salvation. The un
;

derlying principle is that an oath cannot be a chain of

iniquity.
CESSATION OF OBLIGATION

CAN. 1319

Obligatio iureiurando promissorio inducta desinit:

i. Si remittatur ab eo in cuius commodum iusiu-
randum emissum fuerat;
2. Si res iurata substantialiter mutetur, aut, mu
tatis adiunctis, fiat sive mala sive omnino indifferens,
aut denique maius bonum impediat;
9 Cfr. c. 25, X, II, 24; Lehm- n Cfr. c. 21, X, II, 14; c. 12, X,
kuhl, /. c., I, n. 419- II, 2; Engel, 1. II, tit. 24, n. 8.
10 C. 12, X, II, 14; not to speak
to parents or relatives.
 CANON 1319 315

3. Deficiente causa finali aut conditione sub qua

forte iusiurandum datum sit;

4. Irritatione, dispensatione, commutatione, ad

normam can. 1320.

The by a promissory oath ceases

obligation contracted :

i. condoned by the one in whose favor it was taken

If ;

2. If the thing promised is substantially changed, or

if, by reason of a change in the circumstances, the oath

becomes sinful, or entirely indifferent, or an obstacle to
attaining a higher good ;
3. If the final cause or condition under which the oath
was taken, have ceased to exist or failed ;

4. By irritation, dispensation, or commutation, accord

ing to can. 1320.
The first reason has been explained above.
The second reason is a substantial change in the thing
promised. Thus, one is not obliged to marry a girl to
whom he promised marriage under oath, if the girl has
undergone a substantial change as to her health, social
12
condition, virginal state, etc., etc., or if the change affect
the vovens so that he may incur danger of death, or in
famy, or risk the loss of a great good. No one is supposed
to have had the intention of obliging himself under oath to
1S
something that will gravely embarrass him. If the thing
becomes evil or entirely useless, for instance, if one had
sworn to punish a child and the child has amended its
conduct. Lastly, if one had taken an oath that would
-deter him from entering the religious or clerical state,
it would not be
binding, unless the public welfare were
at stake.

12 S. Alph., n. 180. 13 Ibid., n. 187; for instance, the

oath of keeping a secret.
3i6 ADMINISTRATIVE LAW

DISPENSATION FROM OATHS

CAN. 1320

Qui irritare, dispensare, commutare possunt votum,

eandem potestatem eademque ratione habent circa
iusiurandum promissorium sed si iurisiurandi dis-
;

pensatio vergat in praeiudicium aliorum qui obliga-

tionem remittere recusent, una Apostolica Sedes potest
iusiurandum dispensare propter necessitatem aut utili-
tatem Ecclesiae.

Those who are empowered to annul, dispense from, or

commute vows,, have the same power with regard to prom
issory oaths ; but in case the dispensation involves a preju
dice to a third person, who refuses to condone the obliga

tion, the Holy See alone can dispense on account of the

utility or necessity of the Church.
This power is included in the supreme power of the
Church and required for the tranquillity and peace of
individuals and society. Thus it would certainly be in
favor of the public welfare to dispense a child under age
from the oath of marrying a certain person, even though
the parents should be unwilling to have the oath an
14
nulled.

INTERPRETATION

CAN. 1321

Iusiurandum stricte est interpretandum secundum

ius et secundum intentionem iurantis, aut, si hie dolo
agat, secundum intentionem illius cui iuratur.
An oath must be interpreted strictly according to law
and the intention of the vovens, or if the latter swears de-
14 C. 19, C. 22, q. 4; c. 15; C. 22, q. 5.
 CANON 1321 317

ceitfully, according to the intention of the person to whom

the oath made.
is

Thus one who swears to keep the statutes of a certain

society or congregation is obliged to observe only those
which were issued when the oath was taken, not those
15
published later. Nor can the obligation of an oath be
extended beyond the intention of the vovens, because this
intention is But if the per
the measure of the obligation.
son swears deceitfully, he has only himself to blame if his
intention is not accepted and that of the person receiving
the oath substituted therefor. 16
15 C. 35, X, II, 24. 16 Cfr. the peculiar case stated in
c. 25, X, II, 24.
 PART IV
THE TEACHING OFFICE OF
THE CHURCH
Although the authority of teaching and preaching the
Word of God belongs to the Church by virtue of her di
vine constitution, and is therefore an inherent attribute of
ecclesiastical persons, the manner of exercising this office
constitutes part of the administrative rights of the Church.
And although the depositum fidei can receive no substan
yet its unfolding and explicit declaration are
tial increase,

evidenced through the centuries. The material increase

of the faithful and the administration of the Word of
God have necessitated methods and means which were
not so imperative in former times. Hence a certain
change is noticeable also in the spread and exposition
of the Word of God.
In Part IV the Code sets forth in a preamble the author
ity of the Church with regard to teaching the Word of
God, and what is opposed to faith as understood by the
Church. Then the text lays down rules for preaching
(can. 1327-1351) sets up regulations for the institutions
;

which hand down the Church s teaching, viz., seminaries

and other schools (can. 1352-1383) the warding off of
;

errors as exercised through the censorship of books (can.

1384-1405) and, lastly, the obligations connected with
;

the profession of faith (can. 1406-1408).

318
 CANON 1322 319

RIGHT OF THE CHURCH TO TEACH

CAN. 1322
i. Christus Dominus fidei depositum Ecclesiae
concredidit, ut ipsa, Spiritu Sancto iugiter assistente,
doctrinam revelatam sancte custodiret et fideliter ex-
poneret.
2. Ecclesiae, independenter a qualibet civili po-

testate, ius est et officium gentes omnes evangelicam

doctrinam docendi: hanc vero rite ediscere veramque
Dei Ecclesiam amplecti omnes divina lege tenentur.
i. Christ, our Lord has entrusted to the Church the
deposit of faith, in order that, by the continual assist
ance of the Holy Ghost, she might preserve the revealed
doctrine and expound it faithfully.
The term "depositum fidei" (an allusion to I Tim. 6,

20), may be taken in a twofold sense. In the strict sense

the deposit of the faith comprises all the truths which
are either implicitly or explicitly contained in the written
word of God or in tradition, and must be believed as re
vealed with divine faith. In a wider sense the deposit of
faith comprises also those truths which, though not re
vealed, bear such an intimate relation to revealed truths

that, without them, the latter could not be, at least easily
1
and fully, preserved, expounded, and defended. Both
kinds of truth are in the lawful possession of the Church,
who is entitled to make the deposit of faith in the wider
sense an object of her infallible teaching, precisely in
order to preserve the faith holy, i. e., unchanged, unsoiled,
and unadulterated. The duty of preservation is in itself
positive and affirmative and the Church complies with it
by interpretation or exposition ;
but it sometimes also re-

1 Cfr. Mazzella, De Religione et Ecclesia, 1892, p. 615.

 320 ADMINISTRATIVE LAW
quires reprobation or rejection. Hence the Church has
always claimed (a) the right of defining what belongs
to the deposit of faith, i. e., faith and morals, or the ex
tent of divine faith; (b) the right of proposing the true

meaning of revealed truth in its professions of faith; (c)

the right of rejecting or condemning whatever is contrary
to the teaching of faith and morals, either by rejecting
false interpretations of revealed truth, or reprobating
false conclusions of reason, censuring and proscribing
erroneous propositions, etc.; (d) the right of infallibly

judging dogmatic facts connected with certain doctrines,

as in the case of Jansenius.
This office of an infallible teacher belongs to the Cath
olicChurch not merely in virtue of her divine origin,
but by reason of the continual assistance of the Holy
Ghost promised to her by Christ, and which implies no
new revelation, but a special providence keeping her free
from error in the function of preserving and expounding
the deposit of faith. 2
2. The Church, independently of the civil authority,

possesses the right of teaching all nations the truth. Cor

relative to this right is the duty of teaching men, and on
their part the duty of obtaining aknowledge of the truth
and embracing the true Church of God. This obligation,
incumbent on all, is derived from the divine law. Our
Saviour not merely advised, but commanded, His Apostles
to teach all nations and to preach the Gospel to every
3
creature. This command, intended also for their succes
sors, itself forms part and parcel of the deposit of faith.
It is attached to the universal mission of the Church,
whose real object is nothing else but the union of men

2 Cf r. Matt. 28, 19 f.; John 14, human cooperation and investigation.

26; Mazzella, /. c., n. 789, p. 603. 3 Cfr. Matth. 28, 19 .; Mark 16,
The divine assistance presupposes 15 f.
 CANON 1322 321

with God, or the salvation of all mankind through intimate

union with the Creator. This mission is incumbent on
the Church to the end of time and is fulfilled first of all

by preaching the word of God, because faith is the

4
conditio sine qua non of salvation. Faith, of course,
must here be taken as including the works of faith, or, in
the usual formula, faith and morals. The law of pre
scription adds weight to the divine law which dictates that
everything directly related to the spiritual end or pur
pose for which the Church was founded, is her proper
and exclusive domain, in which she is supreme, having
no higher authority than God Himself. The Church, then,
is not at liberty to abdicate this right or to shirk this duty,
for if she did so, she would cease to exist or
give up her
divine mission.
On the other hand, as salvation is the individual concern
of every rational creature destined to the ultimate end for
which he is created, and since salvation begins with faith,
it follows that every person endowed with the necessary
faculties must cooperate in the attainment of that end by
adopting the means without which it cannot be achieved
necessitate medii. Each and everyone must hear and be
lieve those who preach the word of God by the authority
of the Church. Every preacher must have a divine call,
this is communicated to him through the organization
founded by Christ. This is the Church in which all those
who wish to be saved must be enrolled Unless one be- :
"

lieveth, he shall be condemned (Mark 16, 16). Such is,

"

if we mistake not, the meaning of I of our canon. The

term omnes certainly includes all men who have suf
ficient use of reason to realize what a grievous sin is,

when they are capable of merit and demerit, reward and

* Rom. 10, 10 ff.
 322 ADMINISTRATIVE LAW

punishment. Omnes, furthermore, includes every indi

vidual without regard to ancestral or paternal prejudice
and authority. For the ultimate end of man is not bound
up with either national or family traditions, nor is pa
ternal or maternal authority stronger than the divine com
mand. Salvation, as we have said, is a strictly individual
concern which involves a serious obligation from the time
that reason dawns upon the child. From this viewpoint
"

also to be understood the phrase

is independenter a :

qualibet civili pot estate/ For if the duty of acquiring

the necessary knowledge of the Gospel and embracing the
Church of God is individual, it necessarily follows that the
State cannot be allowed to interfere in a matter which
transcends its purpose which lies entirely within the
-sphere of man s temporal welfare, whereas the object of
the Church is spiritual and supernatural, reaching into
eternity. Those two ends cannot, per se, clash, for al
though the two societies are supreme each in its own do
main, their ends are different and only touch each other
at some points. This could not be otherwise, as the
author of both societies is one and the same God, who
5
created both the natural and the supernatural world.

THE MATERIAL OBJECT OF FAITH

CAN. 1323

Fide divina et catholica ea omnia credenda sunt

i.

quae verbo Dei scripto vel tradito continentur et ab

Ecclesia sive sollemni iudicio sive ordinario et uni-
versali magisterio tamquam divinitus revelata cre
denda proponuntur.
5 Cfr. Leo XIII,
"

Immortale tici, 1883, P- 6 ff.; Lib. IV, c. i;

Dei," Nov. i, 1885; Cavagnis, In- Bachofen, Summa luris EccL Pub. f
stitutiones luris Publici Ecclesias- 1910, p. no ff.
 CANON 1323 323

Sollemne huiusmodi iudicium pronuntiare pro-

2.

prium Oecumenici Concilii turn Romani Pon-

est turn
tificis ex cathedra loquentis.

Declarata seu definita dogmatice res nulla in-

3.

telligitur, nisi id manifeste constiterit.

i. All those truths which are contained in the writ

ten word of God, or in tradition, and proposed to our be
liefas divinely revealed either by a solemn proclamation
or by the ordinary and universal magisterium of the
Church must be believed by Divine and Catholic faith.
2. To pronounce a solemn judgment of this kind ap

pertains either to a general Council or to the Roman Pon

tiff speaking ex cathedra.

3. Nothing is to be taken as dogmatically declared or

defined, unless it is manifestly known to be such.

The
material object of faith (objectum materiale fidei),
or that which is to be believed, is contained either in Holy
Writ, as accepted by the Church, or in tradition, as pre
served by the Church. However, as Holy Writ itself,
without the acceptance of the Church, would be merely a
material or indifferent book though perhaps sacred on
account of its venerable age and contents so tradition
would lack sacred character and obligation but for the in
falliblejudgment of the Church. This infallible judg
ment is embodied in the teaching office of the Church, and
constitutes a special prerogative granted to the Church by

Christ, in virtue of which she cannot deceive nor be de

ceived in matters of faith and morals. 6
Our text distinguishes a solemn ex cathedra judgment
and the ordinary magisterium of the Church. But there
is no intrinsic difference between the two, as they derive

from the same source, viz., the divine promise and provi-
6 Mazzella, /. c., n. 782, p. 599.
324 ADMINISTRATIVE LAW
dence, and have the same object and purpose. The object
is faith and morals; the purpose, to protect the faithful
from error.
The ordinary and universal teaching body of the Church
consists of the pastors together with their head, the
Roman Pontiff, no matter where the former are found,
whether scattered over the globe, or sitting united in St.
Peter s Dome. This is called the active subject of the
infallible magisterium (subiectum activae infallibilitatis).
To body corresponds the believing body of
this teaching
the faithful, which latter, however, being the subiectum

passivae cannot be separated from the

infallibilitatis,

teaching body or be opposed to it. For the teaching

office or authority is the cause of the infallibility of the

Church, and both bodies are one in the same faith.

There is, however, a distinction, though not quite ade
quate, between the teaching office of the Sovereign Pontiff
alone, and the body of teachers or the teaching Church
united to its head, i. e., the Pontiff. Without the latter, or,
worse still, in opposition to the latter, there can be no
teaching body, whilst the authority of infallible teacher is

embodied in the Roman Pontiff alone. Both the Pontiff

sole and the body of teachers united with him, enjoy the

power of teaching infallibly.

7
The universal"

and ordinary magisterium

"

consists
of the entire episcopate, according to the constitution and
order defined by Christ, i. e., all the bishops of the uni
versal Church, dependently on the Roman Pon
8
tiff. Priests and deacons do not, iure divino, belong to
the hierarchy of jurisdiction, and therefore, are not, prop-
7 The word "

universal
"

was inherent in the Pontiff. See Coll.

added in order to distinguish it from Lac., t. VII, 176.
8 Cfr. Pius IX, Tuas
"

the official attribute of infallibility libenter,"

Dec. 21, 1863.

 CANON 1323 325

erly speaking, judges in matters of faith and morals, nor

can they be, hire ordinario, bearers of infallible teaching.
However, they exercise a certain teaching authority by
divine right, inasmuch, namely, as they are helpers and
co-workers of the bishops, from whom they receive dele
gated mission, and preach and testify to the faith preached
and expounded by the episcopate. They, too, in a wider
sense partake of the assistance of the Holy Ghost.
This teaching authority, then, proposes what must be
believed by divine and Catholic faith. It is indeed true

that what God has revealed may and must be believed

with divine faith* and that what the Church proposes as
part of divine Revelation, may and must be believed with
divine and Catholic faith, or, shortly, with Catholic faith.
But the material object of divine faith comprises more
than the object of Catholic faith, and besides there is
something in Catholic faith which is not so clearly ex
pressed or conspicuous in divine faith. For the former
is offered by the living word of the Church with a pre

cision and determination that leaves no doubt as to the

supernatural origin and medium through which it is con

veyed. This Catholic faith then commands our assent
and obedience to the full extent of a childlike belief, but
from the motive of divine veracity and truth. 10
The term proposed means not merely an official or au
thentic formulation of a given object or article, but an
authoritative promulgation of a law or rule contained in
revelation, commanding our full interior and exterior
11
assent.
2 defines, according to Vatican Council, 12 the solemn
9 The Blessed Virgin Mary cer- I, p. 324; Coll. Lac., t. VII, 72 fi.,

tainly believed the Angel with di- 159 f.

vine faith, but of Catholic faith 11 Scheeben, /. c., p. 179 f.

there can be no question. 12 Cone. Vat., Sess. VII, c. II,

10 Cfr. Scheeben, Dogmatik, 1873, De Revelatione; c. Ill, De Fide ; c.
326 ADMINISTRATIVE LAW

judgment of the Church in contradistinction to her or

dinary and universal magisterium, not as if the office of
the Supreme Pontiff were extraordinary, in the strict
sense, but because this means of proposing an infallible
truth is uncommon. Such a solemn pronunciamento or
proclamation may be made either by a general council
or by the Pope. That a council cannot be ecumenical
without the head, is evident, as explained in our Vol. II,
13
where the other requisites are also discussed.
The Pope
alone, after having been duly elected and
having accepted the election, is the lawful head of the
Church, and, in virtue of his primacy of jurisdiction,
is the supreme pastor and teacher of the whole Church,
as the Vatican Council has defined. 14 As such he may
define, or issue decrees on, points of faith and morals,
binding the whole Church. His decisions do not receive
their obligatory force from the consent of the Church,
as the Gallicans asserted, 15 but embrace the whole extent
of the object of the infallibility inherent in the teaching
Church. The term ex cathedra means (a) that the Pope :

proclaims a dogma as the supreme teacher and pastor of

the Church; (b) that it be a matter of faith and morals,
not of history or politics disconnected with the former;
(c) that he pronounce an authoritative and final sentence
with the manifest intention of obliging (d) the entire
Church, i. e., all individuals as well as the whole body
of the faithful. 16
However, as 3 intimates, there may be doubt as to

IV, De Fide et Ratione; De Re-vela- 14 Sess. IV, De EccL, c. 4 (Denz.,

tione, can. 4; De Fide, can. 6; De n. 1682).
Fide et Ratione, can. 3; Sess. IV, 15 Art. 2, Decl. Cleri Gall. dam.
c. IV, De Romani Pontificis Infal- ab Innoc. XI, April n, 1682; ab
"

libili Magisterio. Alex. VIII, Inter multiplices"

13 See can. 222 ft.; p. 217 f. Aug. 4, 1690 (Denz., 1189).
16 Mazzella, /. c., n. 1051, p. 821.
 CANON 1323 327

what is declared or defined either by the universal teach

ing Church or by means of papal ex cathedra definitions.
Therefore the theologians have laid down certain rules,
which we will briefly restate.
a) What has been solemnly defined, either by a general
council or by the Supreme Pontiff, is certainly de fide;
but not all the historical or theological assertions which
"

accompany a papal decision (for instance, the Bull In-

effabilis") are de fide.

b) What is clearly and undoubtedly contained in Holy

Scripture and Tradition as a matter of faith or morals,
must be believed, although individual errors are not en
tirely excluded;
c) What the universal and approved practice and
discipline proposes as connected with faith and morals
must also be believed ("Lex orandi, lex credendi").

d) What
Holy Fathers and the theologians hold
the

unanimously as a matter of faith and morals, 17 is also

de fide.
There may be some doubt as to the form of infallible
decisions. A test for genuine ex cathedra definitions has
been found in the following formulas: (i) if those who
assert the contrary are declared heretics; (2) if the terms
"

"si
quis" is used with
anatheina" following; (3) if it

is declared that the doctrine in question must be firmly

18
believed by all the faithful as a dogma.
If after the application of these rules a solid doubt
remains, the utterance is not infallibly binding, as is evi
dent from our text.
17 Cfr. Simar, Dogmatik, 1893, man; hence he must have a human
p. 41 ff., ii. body and a soul.
18 For instance, Christ is true
 328 ADMINISTRATIVE LAW,

DANGERS TO FAITH

CAN. 1324

Satis non est haereticam pravitatem devitare, sed

oportet quoque errores diligenter fugere, qui ad

illos
illam plus minusve accedunt; quare omnes debent
etiam constitutiones et decreta servare quibus pravae
huiusmodi opiniones a Sancta Sede proscriptae et pro-
hibitae sunt.

It is not enough to eschew heretical depravity, but those

errors also must be carefully avoided which more or

less closely approach heresy and for this reason all must
;

observe also those constitutions and decrees by which

the Holy See proscribes and forbids such perverse
opinions.
This text is very cautiously worded, no doubt in order
to avoid theological controversy. The question here evi
dently turns about certain conclusions, commonly called
theological, for thereis no doubt that truths either imme

diately and expressly, or immediately but obscurely con

tained in Revelation must be believed fide divina, and,
if properly proposed, also fide catholica et divina. But
there is a controversy as to truths which are not directly
and explicitly contained in Revelation, but only virtually
(virtualiter) deducted therefrom by logical reasoning.
Besides there are natural truths, not revealed in the
proper sense, which have such an intimate connection
with the revealed truths of faith and morals, that the
purity and integrity of faith and morals cannot be safely
maintained and defended without them. Concerning
these some writers have asserted that they must be be
lieved fide divina, whereas others (e.g., De Lugo) main-
 CANON 1325 329

19
tain that they must be believed fide ecdesiastica only.
Our Code does not decide this controversy. One thing
is which every Catholic must
certain, vis., that the assent

give to the judgment of the Church when she pronounces

on certain errors, must be internal, and that the condemna
tions issued by the S. Congregations may not be treated
as if they had no weight. 20 For even the so-called fides
mere servile silence, but a real
ecclesiastic a requires not a

assent, elicitedby the will, although the formal reason,

the auctoritas Dei loquentis, may not be implied.

PROFESSION OF FAITH

CAN. 1325

Fideles Christ! fidem aperte profited tenentur

i.

quoties eorum silentium, tergiversatio aut ratio agendi

secumferrent implicitam fidei negationem, con-
temptum religionis, iniuriam Dei vel scandalum
proximi.
2. Post receptum baptismum si quis, nomen
retinens christianum, pertinaciter aliquam ex veritati-
bus fide divina et catholica credendis denegat aut de
ea dubitat, haereticus; si a fide Christiana totaliter
recedit, apostata; si denique subesse renuit Surnmo
Pontifici aut cum membris Ecclesiae ei subiectis com-
municare recusat, schismaticus est.
3. Caveant catholici ne disputationes vel colla-

tiones, publicas praesertim, cum acatholicis habeant,

sine venia Sanctae Sedis aut, si casus urgeat, loci
Ordinarii.

i. The faithful are obliged to openly profess their

19 De Lugo, De Virtute Fidei, 20
"

Lamentabili," July 4, 1907,

disp. 20, sect. 13, n. 109; Simar, propp. VII and VIII.
/. c., p. 49 f., p. 640 ff.
330 ADMINISTRATIVE LAW
Christian faith, as often as silence, evasion, or mode
of acting would involve an implicit denial of the faith,
contempt of religion, dishonor to God, or scandal to their
neighbors.
The Apostle
says : With the heart we believe unto
"

justice; but with the mouth confession is made unto

21
salvation." This and the declaration of Christ :
"

He
that shall be ashamed of me and my words, of him the
22
Son of man shall be ashamed," clearly indicate a
double duty, namely, (i) to profess the Christian religion,
and (2) not to deny it. But as a prohibitive or negative
law obliges always, whereas an affirmative or a positive
law does not oblige at every moment or on every occasion,
so in our case the text states the negative side of the
obligation, namely not to omit the profession of faith
when it is called for. Faith may be concealed by mere
silence, which, however, is sometimes permissible, for, as
stated, we need not profess the faith all the time. Nay,
itmay even be necessary to hide it, namely, when great
23
damage, such as persecution or vexation, threatens a
whole community. On the other hand it is certain that
whenever the public and lawful authority demands a pro
fession of one s faith, it is never permitted to refuse it. 24
Besides, in no case is it allowed to conceal the faith en
tirely and to be a hidden Christian, even though there
were danger of life or loss of temporal goods. 25 Such
as wish to remain occult Christians always cannot be ad
mitted to baptism. 26
Faith may also be concealed by subterfuge, and various
deyices have been adopted for this purpose, some of them
21Rom. 10, 10. 25 S. C. P. F., Nov. 24, 1628 (n.
22Luke 9, 26; Matth. 10, 32. 44).
23Lehmkuhl, I, n. 291. 20 S. C. P. F., May 28, 1635 (n.
24 S. C. P. F., Feb. 7, i79i 84).
(Co//., n. 604).
 CANON 1325 331

despicable. Thus the custom of Christians assuming

pagan or Mohammedan names was branded as deceitful
and hypocritical and strictly forbidden by papal constitu
27
tion. While there is little or nothing in a name as
such, if it becomes a shibboleth of heresy or apostasy and
is so regarded by the
magistrate and populace, it is no
longer as sounding brass, even if the bearer interiorly
desires to retain the faith. Therefore circumstances must
be considered.
A curious kind of subterfuge was devised by cer
tain Christians who wished to graduate or take the
doctor degree in China, a ceremony accompanied by
s

religious rites, such as the offering of flowers, meat, or

incense to an idol, etc. This is never permitted. It is
" "

also forbidden to bribe the magistrate or to play sick

on the day of the ceremony, because this would amount
to a lie.
28
A somewhat similar artifice was employed in
good faith by some missionaries. The mandarins, in or
der not to lose their office, made an investigation as to
the conduct of these missionaries and, in a report to
Celestial Son," assured him that the mission
"

the
aries were not priests, had not preached the faith and
left no following. This report, together with the sen
tence of exile (instead of capital punishment), had to be
signed by the missionaries themselves, so that they, as it
were, condemned themselves in order to be treated more
leniently. The S. Congregation decided that the mission
aries were not allowed to sign the sentence thus worded.
On the other hand, however, they were not bound to
protest publicly against the magistrates, if these published
the sentence without the signature of the missionaries. 29

27 Bened. XIV,
"

Inter omni- 28 S. C. P. F., Jan. 4, 1798 (n.

36;
"

genas," Feb. 2, 1744, Quod 644).

provinciale," Aug. i, 1754; S. O., 29 S. C. P. F., Dec. 9, 1822 (n.
Nov. 29, 1729 (Coll. P. F., n. 373). 776).
332 ADMINISTRATIVE LAW
For in that case the malice of the act was imputable en
tirely to the mandarins.
It may be added that no denial of the faith is involved
in the act of hiding one s special or peculiar state (for
instance, the priesthood) nor would such an act per se
30
amount to a mortal sin.

Lastly, one s conduct, or ratio agendi, may imply a de

nial of the faith. To
belong certain acts which
this class
are indifferent in themselves, but become wrong by the end
for which they are performed, or by their object or accom
31
panying circumstances. Thus eating meat is in itself an
indifferent act, but may become
sinful through either or all
of three concomitant adjuncts. Thus to eat or prepare
meat in odium fidci, in contempt of religion, is a grievous
sin because the endand may amount to a
is sacrilegious,
denial of the faith, if the meat is taken as a signum pro-
testativitm of apostasy. If the act is performed merely

for economy s sake, without any religious motive, no

denial is involved. Christians in the Orient were per
mitted to build, or help build, a Mohammedan mosque
because compelled to do so by the Turks; at least the
S. Congregation decided that they were not to be dis

quieted.
32
A
different answer was given by the Holy
Office in reply to the question whether Christians were
allowed to build, or cooperate in building, a pagan temple
because they feared for their life or were in danger of be
33
ing exiled. This was declared forbidden.
There is an
30 Lehmkuhl, I, n. 292, according interpreted as signs of public joy,
to De Lugo, Suarez, etc. even though idolatrous customs may
31 S. O., April 19, 1635; May 27, be connected with them, but the in-
1671, n. i; June 20, 1866, n. 38 tention of contributing to idolatry is
(Coll. P. F., nn. 83, 195, 1293); never permissible. S. C. P. F.,
S. C. P. F.,26, 1820 (n. 747).
June Sept. 12, 1645, n. 114.
The end isperceptible in the
also 32 S. C. P. F., Sept. 26, 1840, n.

following case: Christians may con- 14 (Coll., n. 9*4).

tribute to public funds or public 33 S. O., Jan. 8, 1851, ad i

demonstrations, if these may be (Coll., n. 1055).

 CANON 1325 333

essential differencebetween a mosque and a pagan temple,

because the latter involves idol worship, whereas the for
mer does not. Besides, the cases are somewhat different
in this that the latter implies voluntary cooperation,
whereas the former contains an element of violence.
That circumstances, too, may change the nature of an
act is evident from the example of certain Christians who

were made to trample on the cross. To walk over or

to step on an object, is in itself a merely material and
indifferent act, but intentionally to trample on the cross,
if seen and perceived, is sacrilegious. The case was as
follows: The pagans placed crosses across the road and
in narrow gates, where Christians had to pass. The de
cision was: (a) if the Christians were not warned, they
should walk as if nothing had happened; but (b) if they
were warned, they should take care not to step on the
crosses; (c) if they were warned, but could not pass by
without stepping on them, they should protest to the by
3*
standers and pass over them as reverently as they could.
Idol worship in whatever form, for instance, in the
seat of such and such
"

shape of tablets dedicated to the

a soul," is incompatible with the Christian faith. There
fore such tablets must be destroyed, if they are in the
exclusive possession of Christians, or, if pagan families
have a share in them, may be restored to these. 35 con A
vert from the Anglican Church may not hide his faith
so as to retain a Protestant minister in his home and
assist at the prayer meetings, even though the convert
recites the Catholic prayers; nor is he allowed to leave
36
his children in the care of heretical tutors.

Concerning schismatic priests the following decisions

may be note d : Assistance at schismatic services is not
34 S. O., Inst., 1863 (Coll. P. F., 35 S. O., Aug. 20, 1778 (n. 530).
n. 1235). 36 S. O., July 29, 1699 (n. 246).
 334 ADMINISTRATIVE LAW
allowed. An Armenian priest of the Catholic faith is
not allowed to pour water secretly into the chalice in the
37
sacristy. Catholic Nestorian priests are not allowed
to hear the confessions of their schismatic
coreligionists,
even though by their refusal they risk losing their
sup
port; nor are they permitted to recite the names of Dios-
curus or Nestorius at Mass, even though they merely
intend to honor the patron saints of these two heresi-
archs. 38
As to clothes, the answer is always the same : if

they are distinctive and notorious signs or proofs of in

fidelity, heresy or apostasy, a Catholic is never allowed to
wear them. 39
For the rest, the rules on material and formal co
operation should be consulted.
2 defines three classes of Catholics who have suf
40
The first class is
"

fered shipwreck of the faith."

that of heretics who, having been baptized, retain the

name of Christians, but obstinately deny or doubt some
of the truths that must be believed by divine or Catholic
faith. The second class is that of apostates, who have
given up the Christian faith entirely and fallen away from
it. The third class is that of schismatics, who refuse to
obey the Sovereign Pontiff or to live in union with those
who submit to him. \jj(
Heresy, therefore, supposes the valid reception of Bap
tism, which is the means of Christian initiation. But
there is a difference in the attitude of different heretics.
Some have been validly baptized and raised in a sect
the truthfulness of which they have never doubted.
3T S. O., Aug.
7, 1704 (n. 267). 38 S. O., Aug. 28, 1669 (Coll., n.
They do hide their faith, be-
it to 185).
cause the Monophyites abhor a mix- 39 Cfr. Lehmkuhl, /. c., n. 294.
ture of wine with water. 40 I Tim. i, 19.
 CANON 1325 335

Such are called material heretics, who may, nay should

remain where they as long as no doubt arises in
are,
their mind concerning the truth of their sect. Others
have doubts, but make no effort to disperse them, and
are not ready to accept the truth, even though convinced
of it. Such are formal heretics. To this we may also
reckon those so-called Catholics who interiorly reject
or doubt any revealed truth, provided the rejection as
well as the doubt be obstinate (pertinax), because this
characteristic constitutes malice. Obstinacy may be as
sumed when a revealed truth has been proposed with
sufficient clearness and force to convince a reasonable
man. Of course, the character of each individual must
be taken into consideration.
Apostasy differs from heresy only as to the extent of
the material object of faith denied; the specific malice,
viz., the denial of God s truthfulness, or of the divine

authority, is the same in both.

41
An apostate, therefore,
is one who rejects the whole deposit of faith and becomes
an unbeliever, whilst a heretic is one who wilfully rejects
or doubts only the one or other truth revealed and pro
posed by the Catholic Church.
Pure schism involves mere stubbornness or disobedience
to the Roman Pontiff, or to a bishop, as the case may be ;

but in reality hardly ever occurs without heresy. The

it

Puseyites endeavored to convince the Apostolic See of

the contrary; but the Holy Office very properly decided
that separationfrom the See of Peter meant a split in the
unity and apostolicity of the Church and setting up an
other Church in place of the one founded by Christ. 42
3 warns Catholics against disputations and confer
ences with non-Catholics. To hold such a disputation
41 Cf. Lehmkuhl, /. c., I, n. 299. 42 S. O., Sept. 16, 1864 (Coll.
P. F., n. 1262).
336 ADMINISTRATIVE LAW
or conference, especially in public, requires the special
permission of the Holy See, or, in urgent cases, of the
local Ordinary. This has been the attitude of Apostolic
See ever since the beginning of the seventeenth century,
though public disputations and conferences including
the so-called congresses or parliaments of religion are
not absolutely forbidden, but may be tolerated, under the
condition mentioned, when there is hope of a greater
43
good. The S. Congregation has often expressly for
bidden them on the ground that they do more harm
than good, since false eloquence may cause error seem
44
ingly to triumph over truth. Religious superiors are
urged to forbid such public disputations and conferences
to their missionaries. 45 This rule in our opinion also
affects public disputations with Socialists, because their
tenets often contain heresies. 46
When such disputations are expressly permitted, care
should be taken that only capable and prudent speakers
47
be employed to defend the Catholic side.

BISHOPS AS JUDGES IN MATTERS OF FAITH

CAN. 1326

Episcopi quoque, licet singuli vel etiam in Conciliis

particularibus congregati infallibilitate docendi non
polleant, fidelium tamen suis curis commissorum,
sub
auctoritate Romani Pontificis, veri doctores seu magis-
tri sunt.

What is said in this canon has been partly explained

under can. 1323, where it was said that the bishops,
43 S. C. P. F., Feb. 7, 1645 (n. 46 S. C. pro Neg. Eccl. Extr.,
i I2 ). Jan. 27, 1902; n. VIII (Anal. Eccl.,
44 S. C. P. F., Feb. 7, 1625 (n. 8). X, 74).
45 S. C. P. F., Dec. 18, 1862 (n. 47 S. C. P. F., Dec. 18, 1662 (n.

148). 148).
 CANON 1326 337

dependently upon the Roman Pontiff, are true teachers of

the flock confided to them. But neither singly nor in
councils do they share the which is their
infallibility
prerogative when acting as the ordinary teaching body of
the Church under the leadership of the Sovereign Pon
tiff, or when
united under the same at a general coun
cil. One
case in particular illustrates the second clause
of our text, vis., that the bishops must be regarded as
true teachers of their flocks, as long as they obey the
ordinances and laws issued by the Roman Pontiff. It is
the question of interest taking which has repeatedly agi
48
tated the minds of confessors and bishops. To take
interest on money loaned seemed to be prohibited, espe

cially since Pius VIII Vix pervenit")

("
had forbidden
the practice to a certain extent. But his words seemed
ambiguous and did not cover various cases. Therefore
it was left to the bishops to decide in individual cases,

whether it was allowed to accept and retain interest, pro

vided they followed the principles laid down in the papal
constitution; and the confessors had to abide by their
decisions. This may be applied to disciplinary cases in
general and also to rubrics. But in case of doubt re
course may be had to the S. Congregations. 49
48 Cfr. S. O., Aug. 18, 1830, Aug. 4D S. O. May g, 1821, ad 2 (Coll.
31, 1831; Jan. 17, 1838 (Denz., nn. P. F., n. 759, Kentucky).
1470 ff.).
 TITLE XX

PREACHING THE WORD OF GOD

CAN. 1327

i. Munus fidei catholicae praedicandae commis-

sum praecipue est Romano Pontifici pro universa Ec-
clesia, Episcopis pro suis dioecesibus.
2. Episcopi tenentur per se officio praedicandi
ipsi Evangelium, nisi
legitimo prohibeantur impedi-
mento; et insuper, praeter parochos, debent alios
quoque viros idoneos in auxilium assumere ad huius-
modi praedicationis munus salubriter exsequendum.

Preaching the word of God is a necessary means of

1
spreading as well as preserving the deposit of the faith.
This office emanates from the power of jurisdiction, of
which the magisterium ecclesiasticum is a part. The
Sovereign Pontiff is the supreme teacher of the faithful
and consequently has the duty, above all others, of preach
ing the Catholic faith to the whole Church. This, of
course, means that there is no Catholic church on the
whole earth in which he is not allowed to preach without
interference from any, either ecclesiastical or civil, au
thority. But it also implies that his pastoral letters and
other instructions need no approbation or permission
from the civil government. St. Peter asked neither Nero
(54-68) nor the Jewish synagogue for permission to
l Bened. XV,
"

Humani generis/ *
June 15, 1917 (A. Ap. S., IX,
305 ).

338
 CANON 1327 339

address the faithful of Pontus, Galatia, Cappadocia,

Asia, and Bithynia, nor do we read of any such per
mission being asked for by Clement I. Up to the eleventh
century there is barely a trace of what later on came to
be called placetum regium. On the contrary, Pope
Paschal II (1099-1118) complained against Henry I of
England that letters sent by the Apostolic See were
2
subjected to the placet of his royal majesty. The quar
rel between Philip IV, the Fair, and Boniface VIII is too
well known to need repetition. Other regalistically
tainted governments followed the perverse example of
Henry and
" "

Philip up to even the enlightened nine

teenth and twentieth centuries. Government supervision
3
was, and in some countries is still, applied to the pas
toral letters of bishops. That such a course of action
isagainst the divine law needs no proof. Obedience is
due to God rather than to men. 4 Nor is there any sedi
tious inference contained in this assertion. For a law
is a law in the proper sense only if it conforms to the
eternal or natural law, which requires conformity with
the Divine Mind, the source of every right and incapable
of self-contradiction. Hence no human authority, no mat
ter on what pretext, can lawfully command what runs
counter to a divine command. A
law, therefore, human
forbidding the free and unhampered preaching of the
divine law cannot be acknowledged as binding the con
5
science. This is also evident from the nature and con
stitution of the Church as a perfect, legal, and necessary
society, independent in the choice of the means conducive
2 Cf. Friedberg, Grenzen zwischen the Lenten letters are still subject
Staat und Kirche, 1872, p. 729; to the approval of the cantonal

Bachofen, Summa luris Eccl. Pub- government!!

lid, 1910, p. 57. 4 Act. 5, 29.
3 Thus in the Canton of St. Gall, 5 Cfr. Leo XIII,
"

Sapientiae,"

Switzerland, the pastoral and even Jan. 10, 1890.

340 ADMINISTRATIVE LAW
to its spiritual and
supernatural end. Finally, if the
Vicar of Christ on earth is bound to teach the faithful,
it is his inherent right to do so, and in the exercise of
this right no human power may hinder him. This right
is inalienable because inherent in the primacy of jurisdic
tion that spans the universal Church.
The bishops, in virtue of their jurisdiction, are obliged
to preach the Catholic faith each within his own district
or diocese. This duty, as 2 states, they must perform
personally, unless they are lawfully prevented. For as
they are, as a rule, chosen for their personal qualities
(de Industrie, personae), they are in conscience bound
to break the spiritual bread for their flocks.
Some
of the lawful reasons which may prevent an
Ordinary from fulfilling this duty, are mentioned in a
6
papal decretal. are: manifold pastoral or episco
They
pal occupations, such as the diocesan visitation, attend
ance at councils or synods, bodily infirmity, hostile in
The
"

vasions, etc. decretal adds within brackets: ne

dicamus defectum scientiae, quod in eis reprobandum est

mnino, nee de caetero tolerandum"

If a bishop is legitimately prevented from preaching,
he should entrust this duty to another, 7 as Bishop Valerian
did when, on account of defective speech, he commis
sioned St. Augustine to preach in his place.
Our text continues that bishops should also employ, not
only pastors, but also others who are fit or capable (men
not women) as co-workers in preaching the word of
God. The pastor s duty is evident, and it is also clear
that the bishop is responsible for the pastors under his
jurisdiction. The S. Congregation once recommended
to an archbishop (of Antivari) to explain the catechism

6 C. 15, X, I, 31. 7 Reg. luris 68, 72 in 6.

 CANON 1328 341

on Sundays and holydays if the pastor failed to do so. 8

The reason is that the bishop
is par excellence the
pastor
of the diocese, and. the divinely constituted judge in mat
ters of faith and morals, as successor of the Apostles. 9
If the bishop is pre-occupied by other pastoral work, the

pastor of the cathedral church is obliged to preach for

him. 10
The text says that the bishop should choose idoneos

viros, fit or capable men, to assist him in preaching.

This means clergymen who possess the qualities neces
sary for sacred preachers and ministers of God, to wit,
a sufficient familiarity with sacred science and the moral
virtues that impress the people. Besides, natural gifts
are necessary, lest they appear to tempt God. 11 Preach
ers who possess these qualifications will preach with salu

tary effect (salubriter praedicabunt) because they will

not preach for the sake of showing off their eloquence or
of gaining applause. 12
It goes without saying that the bishop may call upon
any member of his diocesan clergy (secular or non-ex
empt religious) to fulfill this duty.
Concerning exempt religious see can. 608, I.

MISSIO CANONICA

CAN. 1328

Nemini ministerium praedicationis licet exercere,

nisi a legitimo Superiore missionem receperit, facili
tate peculiariter data, vel officio collate, cui ex sacris
canonibus praedicandi munus inhaereat.
8 S. C. P. F., Nov. 28, 1785 10 S. C. C., Sept. 14, 1748 (Rich-
(Coll., n. 581). ter, Trid., p. 22, n. 5).
9 Bened. XV, "

Humani generis," n Bened. XV.,

"

Humani gen-
"

June 1917 (A. Ap. S., IX, 307);

15, eris (A. Ap. S., IX, 309).
Trid., Sess. 5, c. 2, de ref. 12 Ibid., (/. c., p. 308).
342 ADMINISTRATIVE LAW
No one is allowed to preach the word of God unless
he has received the missio canonica from his legitimate
superior. This is a requirement of the divine 13 as well
as of human
law, for the latter clearly supposes that
preaching is an attribute of jurisdiction which must be
obtained from the lawful authority^-
The missio canonica may be given either by means of
a special faculty, or by virtue of an office to which the
right of preaching is attached by ecclesiastical law.
As to the special faculties required, consult Ch. II of
this Title. Here we will only state that the offices to
which the right and duty of preaching are attached by
law, are those of the Sovereign Pontiff, bishops, and
pastors. Thus a cathedral prior or collegiate provost,
to whom the care of souls is entrusted, is obliged to
14
preach.
13 Rom. 10, 15;
"

Humani gen- 26, 1639 (Richter, Trid., p. 22, nn.

ens"(A. Ap. S., IX, 307). 3 * et pluries).
14 S. C. C., July 30, 1591; May
 CHAPTER I

THE PASTOR S DUTY

CATECHETICAL INSTRUCTION

CAN. 1329

Proprium ac gravissimum officium, pastorum

praesertim animarum, est catecheticam populi chris-
tiani institutionem curare.

It is the proper and a most weighty duty, especially

of pastors of souls, to provide for the catechetical in
struction of the people.
The term catechetical known, 1
"

instruction," as is well
means oral instruction in the elements of religion, espe

cially as a preparation Church. for initiation into the

It is now though not exclusively, conducted by
usually,
means of questions and answers. We need not dwell
upon the importance of this instruction, as Pius X has
brought its necessity home to all concerned in his encycli
Acerb o
"

cal letter nimis" of April 15, 1905.

CAN. 1330
Debet parochus :

i. Statis temporibus, continent! per plures dies in-

stitutione, pueros ad sacramenta poenitentiae et con-
firmationis rite suscipienda singulis annis praeparare ;

2. Peculiar! omnino studio, praesertim, si nihil ob-

l Cath. Encycl., Vol. V, 75 ff., s. v.,
"

Doctrine, Christian."

343
344 ADMINISTRATIVE LAW
sit, Quadragesimae tempore, pueros sic instituere ut
sancte Sancta primum de altari libent.

CAN. 1331
Praeter puerorum institutionem de qua in can. 1330,
parochus non omittat pueros, qui primam commun-
ionem recenter receperint, uberius ac perfectius cate-
chismo excolere.

CAN. 1332
Diebus dominicis aliisque festis de praecepto, ea
hora quae suo iudicio magis apta sit ad populi fre-
quentiam, debet insuper parochus catechismum fideli-
bus adultis, sermone ad eorum captum accommodato,
explicare.

The pastor is obliged :

i. To
prepare the children for receiving the Sacra
ments of Penance and Confirmation each year by a con
tinuous course of instructions held at stated times;
2. To
instruct the children with special care, if noth

ing prevents him, especially, during Lent, in order that

they may worthily receive First Holy Communion.
Besides the instruction of children mentioned in the
preceding canon, the pastor shall not neglect to instruct
the boys and girls who have already received their First
Communion more fully in Christian doctrine.
On Sundays and other holydays of obligation he shall,
at an hour convenient for the people, teach catechism
also to his adult parishioners, in a manner adapted to
their capacity.
We notice some mitigation in the wording of our text,
as compared with the injunctions of Pius X. For in
stance, no mention is made in can. 1330, n. 2 of instruc-
 CANON 1332 345

tions to be given every day in Lent; in can. 1332 the

hour omitted as well as the addition that no
" "

full is

Sunday be excepted, etc. These are wise modera

shall
tions Code binding the universal Church. But
for a
even the rulings of the Code need some modification in
missionary countries, including our U. S., as we know
from experience. Take, for example, a pastor who has
to attend two missions, twelve or more miles apart. He
has perhaps to start a fire in both churches, then to hear
confessions, sing high Mass at least inone church, and
preach in both, perhaps in different languages. Then
he ought to teach catechism for another hour before
making his train and all this with an empty stomach.
These are not fanciful, but real conditions, which can
not be compared to those existing around Treviso, Man
tua, or Venice. Hence it must be left to the diocesan
Ordinaries to determine how far the prescriptions of the
code can be carried out. Meanwhile every pastor ought
to impress upon his mind what Pius X says concerning
catechetical instruction that it is the milk which St. :

Peter wished the faithful to yearn for in all simplicity

like new-born babes; that the labor of the pulpiteer pre

supposes that of the catechist that ornate and flowery ;

sermons often tickle the ears, but utterly fail to touch the
2
heart, etc.

The best opportunity for effective catechetical instruc

tion offered by the schools, which, we are happy to say,
is

flourish in our country as nowhere else. Where such a

school exists, the pastor can easily find convenient hours
for extensive catechetical work.

2
"

Acerbo nimis
"

; see Ame r..v ccl. Rev., 1905, Vol. XXXII, p.

606.
 346 ADMINISTRATIVE LAW

CATECHISTS

CAN. 1333
i. Parochus in religiosa puerorum institutione
jpotest, imo, si
legitime impeditus, debet operam
sit

adhibere clericorum, in paroeciae territorio degentium,

aut etiam, si necesse sit, piorum laicorum, potissimum
illorum qui in pium sodalitium doctrinae christianae
aliudve simile in paroecia erectum adscripti sint.
2. clerici, nullo legitimo impedi-
Presbyteri aliique
mento proprio parocho in hoc sanctissimo
detenti,
opere adiutores sunto, etiam sub poenis ab Ordinario
infligendis.

i. If the pastor is lawfully

prevented, he may, nay
should employ the help of clerics living in his district,
for the religious instruction of the children. He may also,
if need be, call especially such as
upon pious laymen,
belong to the Sodality of Christian Doctrine or a similar
organization represented in the parish.
This is an expedient for overburdened pastors and
missionaries who can visit their parishes only at intervals.
It might be good practice for seminarians of the last
year to spend a few hours in the school room, not as
hearers, but as teachers, provided the professor of pas
toral theology or homiletics has taught some method.
The Confraternity of Christian Doctrine was founded
in 1560 in Rome and approved by Pius V, in 1571. Of
late it has spread all over Italy and other countries.

Laymen, in the text, includes members of the female

sex, provided, of course, they enjoy the necessary qualifi
cations of knowledge, virtue, and strength. School-teach
ers may be supposed to be peculiarly adapted to this task.
Male and female catechists are frequently employed in
 CANON 1334 347

missionary countries. They should be chosen by the

missionaries with care and only such should be called to
this important office as are at least twenty-five
years of
age and possess the necessary moral and mental qualities.*
2. and other clerics, who are not lawfully
Priests
prevented, must assist their pastor in this most holy
work, and may be punished by the Ordinary if they fail
to do so.

It has been the general practice, also of the Roman

4
Court, not to oblige any cleric to work not prescribed
in the law or the foundation document. This rule was
upheld in principle by Benedict XIV, though the great
Pontiff strongly insisted on the necessity of proper in-
.struction in Christian doctrine.
5
He found a means of
compelling all priests and clerics, even those not charged
with the care of souls, to assist in that holy work. The
bishop should not promote clerics who are remiss in
this duty to higher orders or better positions if they
refuse to obey his commands. This is the punishment
adverted to in our canon. It is a powerful weapon in
the hands of the bishop, who may lawfully wield it under
the law, though no censure can be inflicted for refusal,
because neither the old nor the new law mentions such a
penalty sub poenis or censuris infligendis.

OBLIGATION OF RELIGIOUS

CAN. 1334
Si, Ordinarii loci iudicio, religiosorum auxilium ad
catecheticam populi institutionem sit necessarium, Su-
periores, etiam exempti, ab eodem Ordinario requisiti,
"

3 S. C. P. F., Feb. 29, 1836 (n. 5 Etsi minime," Feb. 7, 1742,

846). 6.

*S. C. C., July 15, 1882, ad 10

(A. S. S., XV, 324 f.).
348 ADMINISTRATIVE LAW
tenentur per se vel per suos subditos religiosos, sine
tamen regularis disciplinae detrimento, illam populo
tradere, praesertim in propriis ecclesiis.

If the local is convinced that the help of re

Ordinary
ligious required for
is the catechetical instruction of the

people, he may call upon the religious superiors, including

those of exempt orders, and they are obliged to comply
with his orders, either personally or through their sub
jects, especially in their own churches, provided the regu
lar discipline does not suffer. Religious, therefore, should
give catechetical instructions, especially in their own
churches. We
may repeat here what Benedict XIV said
concerning regulars, to wit, that they should not interfere
by their celebrations with instruction in Christian doc
trine,nor by their solemnities, 6 draw the people away from
their parish churches while instructions are given.

Although no penalty is attached to this law, it imposes

a moral obligation, the extent of which must be gauged
by the need of the people, as well as the scarcity and
physical inability of the secular clergy.
We wish to draw attention to the clause :
"

sine tamen
regularis disciplinae detrimento/ which also occurs in
can. 608, i. This means, first and above all, that if the
Rule or Constitution approved by the Holy See excludes
such work, the religious are not bound by this canon, and
therefore the bishop has no right to call on them. It

means, secondly, that, if the Constitutions permit

such work, the discipline must be safeguarded. Thus at
least the ordinary choir service, the school work, either
in the seminary, college or school, must not suffer any
serious detriment. And, lastly, regular discipline also
means community life. Consequently, if by frequent calls

"

6 Etsi minitne," 15.

 CANON 1335 349

the religious should sustain a serious setback in their reli

gious or common life, the religious superior would be en
titled to modify the bishop s command. It may also be

permitted to state that if the bishopand clergy wish to be

aided by the religious of the diocese, they are reasonably
expected to aid and support the diocesan institutions con
ducted by such religious. This is not only a dictate of
natural law, but
is also insinuated by can. 608, 2.

DUTIES OF PARENTS

CAN. 1335

Non solum parentes aliique qui parentum locum

tenant, sed heri quoque ac patrini obligatione adstrin-
guntur curandi ut omnes sibi subiecti vel commendati
catechetica institutione erudiantur.

Not only parents, but also those who take the parents
place, as well as masters and sponsors, are obliged to see
to it that their subjects and proteges receive catechetical
instruction.
This obligation rests on the natural as well as on a
positive law, which latter is here briefly formulated ac
cording to Benedict XIV, who urged bishops and pastors
to remind all those above mentioned of their grave obliga
tion to instruct their subjects in the catechism. 7 The
natural obligation arises from the fact that the ultimate
end of all men is God, who must be known in order to be

served and loved. It also follows from the superiority

of the soul to the body. Hence at least as much care
should be bestowed upon acquiring the knowledge of
8
salvation, as upon the acquisition of natural science.
7
"

Cum religiosi," June 26, 1754, 8 Cf r. Leo XIII,

"

Human um
4. genus," April 20, 1884.
350 ADMINISTRATIVE LAW
DIOCESAN REGULATIONS

CAN. 1336

Ordinarii loci est omnia in sua dioecesi edicere quae

ad populum in Christiana doctrina instituendum spec-
tent; et etiam religiosi exempti, quoties non exemptos
decent, eadem servare tenentur.

This canon corroborates what was said above about

the authority of the local Ordinary to regulate instruc
tion in Christian doctrine. He is entitled to issue de
crees with reference to the instruction of the people in
Christian doctrine, and these regulations must be obeyed
also by exempt religious, whenever they impart religious
instructions to anyone not possessed of the privilege of

exemption. It follows that all those persons mentioned

in can. 514, i, to wit, servants, pupils, guests, and the
sick, must, as far as their condition permits, attend the
catechetical instructions given by the pastor or his assist
ants. For these persons are not properly exempt.
 CHAPTER II

SERMONS

FACULTY REQUIRED FOR PREACHING

CAN. 1337

Turn clericis e clero saeculari, turn religiosis non

exemptis facultatem concionandi pro suo territorio
solus concedit loci Ordinarius.

The secular clergy as well as non-exempt religious

receive the faculty of preaching only from the local Or
dinary for his respective diocese.
According to a medieval decretal, some clerics usurped
the office of preaching under the cloak of piety without
1
being authorized either by the Apostolic See or -a bishop.
There is in this decretal a hint that members of the rising
religious orders were at times carried too far by their
zeal. therefore not surprising that the same papal
It is
2
constitutions which regulated the matter of hearing con
fessions, also settled the question of preaching. The
law was challenged by Wiclif and his followers, who
maintained that any deacon or priest may preach the
word of God without authority from the Apostolic See
3
or from a Catholic bishop. Therefore the Council of
Trent again insisted upon previous examination for all
4
who assume the office of preaching.

1 C. 13, 6, X, V, 7, de haereti- 3 Prop. 14 dam. (cf. Denzinger,

cis. n. 490).
2 Greg. XV,
"

Inscrutabili," Feb. 4 Sess. 5, c. 2, De Ref.; S. C.

5, 1622, 3, 6; Clement X,
"

Su- EE. and RR., July 31, 1894 (Coll.

perna," June 4, 1670, i, 3. P. F., n. 1878).
351
 352 ADMINISTRATIVE LAW
Note the word : solus loci Ordinarius. The Ordinary
alone is competent to grant the faculty of preaching.
Hence no municipality or university may grant it, al
though they may select the preacher, for instance for
Lent, as happened in certain Italian communes. 5 It also
means that the faculty given
by the bishop is sufficient,
and consequently no pastor or rector can lawfully reject
one so approved. 6

RELIGIOUS PREACHERS

CAN. 1338

i. Si concio habenda sit tan turn ad religiosos ex-

emptos aliosve de quibus in can. 514, i, facultatem

concionandi in religione clerical! dat eorum Superior

secundum constitutiones qui in casu potest earn con-
;

cedere etiam iis qui de clero saeculari vel de alia re

ligione sunt, dummodo a proprio Ordinario vel Su-

periore fuerint idonei iudicati.
2. Si concio habenda sit ad alios, vel etiam ad

moniales regularibus subiectas, facultatem religiosis

quoque exemptis impertit Ordinarius loci in quo con
cio fiet; concionator autem, verba facturus monialibus

exemptis, licentia Superioris regularis praeterea in-

diget.
3. Facultatem vero concionandi apud sodales re-
ligionis laicalis, quamvis exemptae, dat loci Ordi
narius; sed concionator nequit facultate uti sine Su
perioris religiosi assensu.
7
Formerly a distinction was drawn between churches
5 S. C. C., April 21, Aug. n, 7 Trid., Sess. 5, c. 2, De Ref.;
"

1742; Aug. 3, 1743 (Richter, Trid., Greg. XV, Inscrutabili "; Clement
"

p. 22, nn. 7 f.). X, Superna."

6 S. C. C., June 27, 1744 (ibid.,
n. 15).
 CANON 1338 353

that belonged to regulars and such as did not belong to

them, or to another religious order. Our text distin

guishes between the persons preached, or the hearers.
i rules that religious of a clerical order obtain the

faculty of preaching from their own superiors, according

to their constitutions, in case they preach to exempt re

ligious of their own order or to such who are mentioned

in can. 514, i. For these the respective superior may
also grant the faculty to the secular clergy, or to members
of another religious institute, provided, however, that the
secular cleric has been previously approved or found
by his Ordinary and the religious by his superior.
fit

This law has been widened, as is apparent from a

comparison with former regulations on the same subject.
For what was formerly considered a privilege of the
regulars in the strict sense, is here applied to all religions
clerical institutes, whether exempt or not, and the dis

tinctive character is attached to the hearers only, who

must be exempt or share exemption de facto, as is the
case with the persons mentioned in can. 514, i, i. e.,

servants, guests, students, and sick persons, besides the

professed members and novices. However, like the Tri-
8
dentine Council and various papal decrees, our text
requires fitness in the preacher, as defined in can. 1340.
The text mentions only religiosos exemptos aliosve, in
the masculine gender, thereby evidently excluding the
female sex, as is patent also from the following section.

2. If the sermon is to be delivered before others,

including nuns subject to regular prelates, the faculty

of preaching must be granted by the Ordinary in whose
diocese the sermon is to be delivered; and the preacher
who addresses exempt nuns must also have the permission
8 Sess.5, c. 2; Sess. 24, c. 4, De Ref., and the constitutions
quoted.
354 ADMINISTRATIVE LAW
of the regular superior to whom they are subject.
9

Preaching to nuns (moniales with solemn vows) is done

at the grate, so that the preacher is not obliged or per
mitted to enter the enclosure, which is here understood
to be the papal one.
The others (alios) are
all non-exempt religious, as well

as laymen and clerics who do not share the exemption

mentioned in can. 514, I.

To preach for members of a religious lay insti

3.

tute, for instance, the Christian Brothers, even though

they may enjoy exemption, a priest must obtain faculties
from the local Ordinary, in whose diocese the religious
house is located. However, he cannot make use of his
faculty unless the religious superior of the institute gives
his consent. This ruling is partly taken from the Con
Leo XIII,
"

stitution of Conditae" A. D. 1900, but has

an added clause requiring the consent of the religious
superior. The superior and his religious are here un
derstood of institutes of men, not of women, 2 having

sufficiently provided for the latter. Moreover, it would

not be proper for religious women to refuse to accept a
preacher appointed by the bishop. The consent of the
religious superior is required for reasons of discipline and
10
to maintain his authority.

RELIGIOUS VS. ORDINARIES

CAN. 1339

Ordinarii locorum religiosis qui a proprio Su-

i.

periore exhibeantur, facultatem concionandi, sine gravi

causa, ne denegent, concessamque ne revocent, prae-
9 Clement X,
"

^uperna," 3: even a knowledge of the essentials

10 Preachers were sometimes im- life, not to mention
of the religious
posed on such institutes, who lacked other defects.
 CANON 1339 355

sertim una simul universis domus religiosae sacer-

dotibus, firmo tamen praescripto can. 1340.
2. Concionatoribus religiosis, ut facultate recepta

uti liceat, opus est praeterea sui Superioris licentia.

closely resembles can. 880, which concerns the

i

faculty of hearing confessions. It commands the local

Ordinaries not to refuse the faculty of preaching to such

religious as are presentedby their superiors, nor to with
draw from them without weighty reasons. They
it

should refrain especially from refusing or withdrawing

the faculty from all religious of one house at the same
time, provided, of course, at least the one or the other
was found fit.
Religious formerly had reasons to complain against
some Ordinaries, who either had not read the decrees of
the Tridentine Council 1X or interpreted them arbitrarily
and withdrew the faculty of preaching without any
reason. The S. Congregations sustained the complaints
and ordered the nuncio (in Spain) to stop such arbi
trary proceedings, which prejudiced the Friars. There
must be for such action, says the decree in question, a
2
lawful cause proved by documents (in actis* ). Mere
caprice or dislike cannot be styled a lawful reason, and
13
a legitima causa is one which concerns preaching.
However, if a moral defect or want of knowledge render
a particular preacher undesirable, and his incapacity can
be proved, the bishop may withdraw or refuse the faculty.
But it is hardly imaginable that such defects could be
imputed to a whole community.
2. Religious, in order to make lawful use of the

faculty granted by the Ordinary, must in addition obtain

11 Sess. 5, c. ?; Sess. 24, c. 4, 128. C. EE. et RR., Jan. 13, 1610
De Ref.; Cement X, "

Sup erna," (Bizzarri, 243).

3. 13 S. C. EE. et RR., Dec. 14,
 356 ADMINISTRATIVE LAW
permission from their respective superiors. This is re
quired in virtue of the vow of obedience. Those who
take the vow
of stability, like the Benedictines, have still
another reason for asking permission, namely, because the
office of preaching may call them away from their habitual

residence.
It not be amiss to draw attention to former regu
may
lations which are now out of date. Formerly the re
ligious, before they were allowed to preach in churches
not belonging to their own institute, had to obtain a writ
ten permission from the bishop, and also to ask his bless
ing. This was particularly required for the famous
Lenten preachers employed by municipalities. 14 These
formalities are no longer required, nor need the faculty
of the bishop or the permission of the religious superior
be given in writing, though the bishop would not ex
ceed his power if he were to demand a written statement
of the religious superior as to the ability and moral
standing of the religious who wishes to preach in his
diocese.

EXAMINATION
CAN. 1340

Graviter onerata eorum conscientia, loci Or-

i.

dinarius vel Superior religiosus facultatem vel licen-

tiam concionandi cuiquam ne concedant, nisi prius
constet de eius bonis moribus et de sufficienti doctrina
per examen ad normam can. 877, i.

2. Si, concessa facultate vel licentia, compererint

necessarias dotes in concionatore desiderari, debent

earn revocare in dubio de doctrina, debent certis argu-
;

1674; S. C. C., Feb. 28, 1654 (Bizz., S. C. C., apud Richter, 7m?., p.
/. c., p. 273). 22, nn. 7 ff.

14 Clement X,
"

Superna," i,
 CANON 1340 357

mentis dubitationem executere, novo etiam examine,

si opus fuerit.

3. Ob revocatam concionandi facultatem vel licen-

tiam, datur recursus, sed non in suspensive.

I. Local Ordinaries as well as

religious superiors
are seriously charged to grant the faculty or permission
to preach only to such as have passed an examination
with regard to their moral standing and sufficiency of
knowledge, according to the rule laid down in can.
877, i-

This section of our canon must therefore be compared

to can. 877, i, which prescribes an examination, but

excepts those whose theological knowledge is otherwise

known and tried.
The examination is held to establish the moral stand
ing of the preacher and his knowledge. It was pre

scribed by the Council of Trent 15 and elaborated in an

Instruction of the S. Congregation of Bishops and Regu
16
lars of 1894.
As to moral standing, it is evident that lack of a good
name would hardly recommend a preacher to the people.
Hence, neither the bishop nor the religious superior are
allowed to give faculties to one who has been rejected
17
or disvowed by another bishop. This rule, of course,
applies especially to such clerics or religious as are
18
tainted with Modernism. But mere rumor and defama
tion should be carefully sifted from true and proved
statements.
With regard to knowledge, sacred eloquence requires:
not only piety but also familiarity with the sacred armory
15 Sess. 5, c. 2; sess. 24, c. 4, 17 S. C. Consist., Sept. 25,
de ref. ad X, XI (A. Ap. S., II, 741).
16 July 31, 1894 (Coll. P. F., n. 18 Pius X, Sacrorum Antisti-
"

1878). turn," Sept. i, 1910 (ib., II, 653 ff ).

 358 ADMINISTRATIVE LAW
of Holy Writ, with dogmatic and moral theology and
with ecclesiastical history, as well as a delivery worthy
of the subjects treated. St. Thomas says: "In order
that a preacher may really be the light of the world, he
must possess three things firmness or stability, in order
;

that he not deviate from the path of truth clearness,

may ;

in order that he may not teach with confusion and ob-

.scurity; the right intention, in order that he may seek

not his own, but God s honor and glory." 19 Therefore
he must avoid vainglory and the motive of material gain. 20
As to these points, therefore, the candidate should be ex
amined when passing through the seminary, or when he
presents himself for the faculty to preach. however, If
as can. 877, i states, his moral standing and knowledge
are sufficiently known to either the bishop or the religious

superior, the examination may be waived.

2. If a preacher shows that he lacks the necessary

requisites after the faculty or permission to preach has

been granted to him, the Ordinary and the superior must
withdraw it. If a doubt arises as to his knowledge, they
should endeavor to disperse it by gathering the necessary
information or proofs, and may also subject him to a new
examination. The prudent enforcement of this law re
quires vigilance, so much recommended with regard to the
sacred office of preaching by our Holy Father, who warns
the bishops against human respect in this regard and re-
21
.quires a strict examination as to the two requisites.
19 Comment, in Matth., V; S. C. eris," June 15, 1917 (A. Ap. S., X,
;EE. et RR., /. c., n. 5. sr^-ft.).
20 Bened. XV,
"

Humani gen- 21 Ibid.

 CANON 1341 359

EXTRADIOCESAN PREACHERS

CAN. 1341

i. Sacerdotes extradioecesani sive saeculares sive

religiosi ad concionandum ne invitentur, nisi prius
licentia ab Ordinario loci in quo concio habenda sit,
obtenta fuerit; hie autem, nisi eorum idoneitatem ali-
unde compertam habeat, licentiam ne concedat, nisi
prius bonum testimonium super concionatoris doc-
trina, pietate, moribus a proprio eiusdem Ordinario
habuerit; qui, graviter onerata conscientia, secundum
veritatem respondere tenetur.
2. Licentiam tempestive petere debet parochus,

si agatur de paroeciali ecclesia aliave eidem subiecta;

rector ecclesiae, si de ecclesia parochi auctoritati non

obnoxia; prima dignitas, de Capituli consensu, si de
ecclesia capitulari; moderator seu cappellanus confra-
ternitatis, si de ecclesia eiusdem confraternitatis
propria.
3. Si ecclesia paroecialis sit simul capitularis aut
confraternitatis propria, ille licentiam petat, qui sacras
functiones iure peragit.

The general rule is, as stated in can. 1337, that the

Ordinary in whose diocese a priest wishes to preach,
grants the faculty. This rule also binds exempt religious
who wish to preach to persons not belonging to their own
institute.
Now I
supposes that priests from another diocese are
invited to preach. Whether these be seculars or reli
gious, exempt or non-exempt, does not matter, provided
only that the hearers are not exempt religious. Such
priests need the faculty of the Ordinary in whose diocese
360 ADMINISTRATIVE LAW

.they are invited to preach. If, e. g., a Jesuit from St.

Louis University wishes to preach in the cathedral of
St. Joseph, or in the Abbey Church of Conception, to
the parishioners, he requires a faculty from the Bishop
of St. Joseph, which the latter should not grant unless
he has satisfied himself as to the preacher s knowledge,
piety, and moral standing by means of a statement from
the latter Ordinary. Therefore, in the case mentioned,
s

the Archbishop of St. Louis has to furnish the Bishop

of St. Joseph with a testimonial as to the qualifications
of said preacher, and he is bound in conscience to state
the truth. This shows how serious the sacred office of
preacher is regarded by the Church.
Yet, in order to avoid red tape, and also, we suppose,
eorum
"

mistrust, the Code adds the wise clause : nisi

idoneitatem aliunde compertam habeat" If the Or

dinary who
has to give the faculty knows the preacher,
and is convinced that he possesses the necessary quali
ties, he may dispense with the formality of demanding
testimonialsfrom the other Ordinary. Of course, the
bishop who has to impart the faculty may, though he is not
bound to, abide by the statement of the pastor who has
invited the strange priest. The superiors general are
specially cautioned against sending out their subjects to
preach, unless they are certain that these subjects are duly
qualified, and against permitting their religious to preach
22
without the knowledge of the bishop. This warning
applies also to secular priests, who should not invite an out
sider to preach without informing the bishop.
2. Pastors must, therefore, ask for the permission

in good time, if the preaching is to be done in their own

church, or in one subject to them, as may be the case

22 S. C. EE. et RR., July 31, 1894, n. 7 (/ ^.).

 CANON 1341 361

when a pastor governs two parishes, or one with several

missions. The same obligation is encumbent on rectors
with regard to churches not subject to the pastor, and
on the first dignitary (provost or dean), who has to ask

the consent of the chapter before applying to the bishop

for a faculty ; also on chaplains or directors of con
fraternities if the preaching is to be done in their own
church.

3. If the parish church is at the same time

a chapter
or confraternity church the obligation of asking for per
mission for a strange priest to preach devolves on the one
who has the right to perform the sacred functions.
In a parish church which at the same time serves as
a cathedral or collegiate chapter church the sacred func
23
tions by right belong to the pastor, who must ask the
"

consent of the chapter before he invites a preacher,"

as required by 2. It isthe pastor, therefore, and not

the first dignitary, who must ask for permission. Does
this rule apply also to monastic chapters? The text
simply says: ecclesia capitularis, a chapter church, which
term may be applied to an abbey church, which serves
at the same time as parish church, as is insinuated in
can. 609, i.

With regard to confraternities, the general decree of the

S. Congregation of Rites may be consulted. It states that

confraternities lawfully erected in parish churches de

pend on the pastor for the exercise of all, even non-

24
parochial, functions. From this it follows that the

pastor must demand permission for the preacher.

The term tempestive (in good time} has been officially
25
declared to mean two months before the preaching

23 Can. 415, 2. 25 S. C. C., April 30, 1729 (Rich-

24 S. Rit. C., Jan. 12, 1704, ad i ter, Trid., p. 22, n. 9).
(n. 2123).
362 ADMINISTRATIVE LAW
commences. However, as communication is swifter now
adays, the time must be left to the prudent judgment of
the petitioner, provided the matter is not delayed pur
posely so that the bishop cannot obtain the necessary in
formation.
WHO MAY PREACH
CAN. 1342
i.Concionandi facultas solis sacerdotibus vel dia-
conis fiat, non vero ceteris clericis, nisi rationabili de
causa, iudicio Ordinarii et in casibus singularibus.
2. Concionari in ecclesia vetantur laici omnes, etsi

religiosi.

Only priests and deacons should be given the faculty

of preaching, and no other clerics should be allowed to
preach, except in particular cases and for a cause which
the Ordinary deems reasonable.
Laymen, even though they may be religious, are for
bidden to preach in church.
It is well known that some Oriental lay monks played
a rather conspicuous part in the religious controversies
of the fifth century. We need not wonder, therefore,
that they were forbidden to preach, because this office
demands a canonical mission. 26 There is a remarkable
decretal of Innocent III, which shows the ingenuity of
some abbesses who, besides hearing confession, also de
27
livered public homilies. This appeared as a novelty to
the pope, who stopped the practice. Laymen, too, at
times went so far as to hold secret conventicles and to
28
despise the word of God when preached by priests.
Wiclif and Huss were not the first to demand permission
29
to preach to men and women alike. This prohibitive
26 See c. 10, C. 16, q. i (Leo I). 28 C. 12, 14, X, V, 7.

27 C. 10, X, III, 38. 29 Art. 37 (Denz., 581).

 CANON 1343 363

law based on the requisite of jurisdiction, of which the

is

faculty of preaching is a part.

CAN. 1343

i. Ordinarii locorum ius habent concionandi in

qualibet sui territorii ecclesia, quamvis exempta.
2. Nisi agatur de magnis civitatibus, potest
quoque Episcopus prohibere ne in aliis eiusdem loci
ecclesiis verba fiant ad fideles, quo tempore vel con-
cionem ipse habet vel coram se, ex causa publica atque
extraordinaria, convocatis fidelibus, habendam curat.

i vindicates to the local Ordinaries the right of

preaching in every church of their diocese, including the
churches of exempt religious.
2 recalls the ancient quarrel between bishops and
regulars. The latter maintained that no bishop could
forbid them to preach in their own churches and places
where the bishop could not himself preach, but engage
a preacher to deliver a sermon in his presence. The S.
30
Congregation decided substantially as our text reads,
namely, that with the exception of large cities, to which
the law does not apply, the bishop may forbid sermons
to be delivered to the faithful in other churches of a

place in which he or another by his command is preach

ing at the same time. However, this prohibition binds
only when the preaching is done for a special and public
cause and the faithful have been properly invited to
"

attend. Such a special event," as it is called in one

decision, would be a Catholic congress or solemn gather
ing to which the clergy and the faithful have been in
vited. Large cities are excepted. The size of a city

80S. C. C, April 26, 1607; 23, n. 17); Bened. XIV, De Synod.

March 10, 1646 (Richter, Trid., p. Dioec., IX, 17, 7.
364 ADMINISTRATIVE LAW
must here be gauged, not by the total number of its in
habitants, but by the number of Catholics and Catholic
congregations it contains. New York, Chicago, and St.
Louis are undoubtedly large cities in the sense of this
canon.

CAN. 1344

i. Diebus dominicis
ceterisque per annum festis
de praecepto proprium cuiusque parochi officium est,
consueta homilia, praesertim intra Missam in qua
maior soleat esse populi frequentia, verbum Dei populo
nuntiare.
2.Parochus huic obligation! nequit per alium
habitualiter satisfacere, nisi ob iustam causam ab Or-
dinario probatam.
3. Potest Ordinarius permittere ut sollemnioribus
quibusdam festis aut etiam, ex iusta causa, aliquibus
diebus dominicis concio omittatur.

Pastors are in duty bound to preach the word of God

in the customary manner on all Sundays and holy days
of obligation, especially during the Mass that is most
largely attended.
This obligation is personal and cannot be habitually
committed to another, except for reasons recognized as
sufficient by the Ordinary.
The Ordinary may allow the sermon to be omitted on
solemn feast-days, and, for good reasons, also on the
one or other Sunday.
That preaching is a personal duty of the pastor is evi
dent from the fact that he is generally appointed for his
personal qualities, and as pastor is bound by divine
law to break bread to the hungry and to feed his flock
 CANON 1344

with food. 31
spiritual Therefore the custom of not
preaching must be styled unreasonable, and has been so
32
styled by the Roman Pontiffs. Nor can the pastor be
dispensed from this sacred obligation during Lent or
Advent, when other preachers take the pulpit, or other
churches in the same city have such preachers. 33
On the other obligation, no matter how
hand every
personal, has which mitigates the rigor of the
its equity,
law. Hence 2 sets certain bounds to this otherwise
strict duty of preaching. The law merely wishes to pre
vent habitual shirking of the obligation, even though the
motive be natural shyness, timidity, or lack of confidence.
If the bishop sanctions the reason for which the pastor
shifts the burden to others, the habit or custom may be
come lawful. Where there is a natural impediment, for
instance, throat trouble, failing memory, or other ob
stacles, the Ordinary may certainly permit a pastor to let
others preach for him habitually. Where it is customary
for pastors and curates or assistants to take turns at

preaching, and the custom has been ratified by the bishop,

no breach of the law occurs.
The Ordinary the power of dis
last section gives the
3*
pensing pastors from the duty of preaching on the
more solemn feasts of the year, and even on the one or
other Sunday. If the bishop pontificates in a parish
church, e. g., he may tell the pastor not to preach. A
just reason would be the necessity of hearing many con
fessions, or the reading of a lengthy financial statement
of the parish. The text does not require an express per-

81 TVtd., Sess. 5, c. 2; Sess. 22, 33 S. C. C., Aug. 30, 1817 et

c. 8, De Sac. Missae; Sess. 23, c. i; pluries (A. S. 5., IX 465 ff.).

Sess. 24, c. 4, De Ref. 34 This is the term used by S. C.
32 Innoc. XIII,
"

Apostolici mm- C., April i, 1876 (A. S. S., IX, p.

isterii," May 23, 1723; Bened. XIII, 468).

"In supremo," Sept. 23, 1724; cfr.
Bened. XIV, Instit., X, n. 3.
366 ADMINISTRATIVE LAW

mission, nor that it be given separately for each occasion,

and consequently the bishop may do so in the synod, or
through a circular letter, or by a general statement, either
written or oral provided always that no abuses creep in
;

and no contrary custom develops.

INSTRUCTION IN CHRISTIAN DOCTRINE IN OTHER THAN

PARISH CHURCHES

CAN. 1345

Optandum ut in Missis quae, fidelibus adstantibus,

diebus festis de praecepto in omnibus ecclesiis vel
oratoriis publicis celebrantur, brevis Evangelii aut
alicuius partis doctrinae christianae explanatio fiat;
quod si loci Ordinarius id praeceperit, opportunis datis
instructionibus, hac lege tenentur non solum sacer-
dotes e clero saeculari, sed religiosi, exempti quoque,
in suis ipsorum ecclesiis.

What our text prescribes in a mildly optative form

was laid own by Benedict XIV, not as a general rule,
35
but as a guiding principle for Ordinaries. The Church
desires that in all churches and public oratories, even

though they are not parish churches, the Gospel or some

part of Christian Doctrine should be expounded during
the Masses that are attended by the faithful on holy days
of obligation. Our text continues If the Ordinary is :

sues instructions to that effect, all priests, secular as well

as religious, including those who are exempt, are bound
to obey this law in their respective churches.
The Roman Pontiff will side with Ordinaries even
36
against exempt religious.

35 "

Etsi minime," Feb. 7, 1742, 36 Ibid.

 CANON 1346 367

LENTEN AND ADVENT SERMONS

CAN. 1346

i. Curent locorum Ordinarii ut tempore quad-

ragesimae, itemque, si id expedite visum fuerit, tem
pore Adventus, in ecclesiis cathedralibus et paroeciali-
bus sacrae conciones frequentius ad fideles habeantur.
2. Canonici
aliique de Capitulo huic concioni, si
in propria ecclesia continue post chorum habeatur, in-
teresse tenentur, nisi iusto impedimento detineantur;
et illos Ordinarius, poenis quoque adhibitis, ad id adi-
gere potest.

i. The Ordinaries should

see to it that during Lent,
and expedient also during Advent, sermons are de
if

livered more frequently in cathedral and parish churches.

Pius X ordained that the young who are preparing
for first Communion, should be given daily instructions
37
during Lent. Our text speaks of sermons to the faith "

ful," but leaves the details (arrangement, frequency, etc.)

to the judgment of the Ordinaries.
2. Canons and other members of a Chapter are
obliged to attend these sermons, if held immediately after
choir service, unless they are lawfully prevented; and
the Ordinary may compel them to attend under penalties.
All the canons, except of course the Canonicus theolo-
gus and the P&nitcntiarius, and those employed in other
offices with the permission and sanction of the bishop,
must be present ;
and beneficiaries
also the prebendaries

(mansionarii) They must wear

. the choir dress (habitus
choralis) and occupy their seats, as usual. This obliga
tion binds even in case the sermon is held in another

37 "

Acerbo nimis," April 25, 1905, n. III.

368 ADMINISTRATIVE LAW
church which (for instance, on account of repairs) tem
porarily serves as cathedral or collegiate church. The
38
collegiate canons, too, are included.
penalties depend on the judgment of the Or
The
39
dinary and may consist of fines.

SUBJECTS OF SERMONS

CAN. 1347

In sacris concionibus exponenda in primis sunt

i.

quae ad salutem oportet.

fideles credere et facere
2. Divini verbi praecones abstineant profanis aut

abstrusis argumentis communem audientium captum

excedentibus et evangelicum ministerium non in per-
;

suasibilibus humanae sapientiae verbis, non in pro-

fano inanis et ambitiosae eloquentiae apparatu et leno-
cinio, sed in ostensione spiritus et virtutis exerceant,
non semetipsos, sed Christum crucifixum praedicantes.
3. Si, quod absit, concionator errores aut scandala

disseminet, servetur praescriptum can. 2317; si hae-

reses, in eum praeterea, ad normam iuris, agatur.

Sermons should be devoted above all to what is

i.

necessary for the faithful to believe and do for salvation.

2. Therefore the preachers shall abstain from pro

fane and abstruse arguments which exceed the capacity

of their hearers, and perform their evangelical ministry
40
(as the Apostle warns ) not in persuasive words of hu

man wisdom, or for the display of vain and ambitious

eloquence, but in showing of the Spirit and power;
preaching not themselves, but Christ crucified.
38 S. Kit. C, March 22, 1653; 39 Ibid., nn. 1217, 2258.
Oct. i, 1661; March 31, 1703; Dec. 40 1 Cor. II, 4.
10, 1718, ad 4 (nn. 944, 1217, 2108,
2258).
 CANON 1348 369

They should not play the role of philanthropists, limit

ing their arguments to this life and disregarding the next.
They may speak of the beauty and the blessings arising
from religion, but should also mention man s duties to
41
God, the eternal judge.
3. (what God may avert!) a preacher should
If
disseminate errors and scandals, he should be deprived of
the faculty of preaching and removed from the teaching
office, and may also be subjected to such penalties as
the Ordinary may deem necessary to repair the scan
42
dal. Should he preach heresies, the Ordinary must
proceed against him according to the law. The first step
in the latter case would be to forbid him to preach, fol

lowed by a canonical summons, or, where the Holy Office

still exercises its jurisdiction, denunciation to the same.
But the Council of Trent warns bishops to be careful
43
lest innocent priests be injured by calumny.

DUTY OF THE PEOPLE

CAN. 1348

Monendi adhortandi diligenter fideles sunt ut

et
sacris concionibus frequenter intersint.

The faithful should be diligently admonished and ex

horted to hear sermons frequently. They may also be
told that, even when they have no opportunity to hear
Mass on Sundays and holy days of obligation, the duty
of keeping holy these days by hearing the word of God
does not cease. But the exhortation or admonition must
not be so worded as if it were an ecclesiastical precept
44
obliging under sin to attend sermons.
41 S. C. EE. et RR., July 31, 43 Sess. 5, c. 2, De Ref.
1894, n. 6 (Coll. P. F., n. 1878). 44 S. C. P. F., Jan. 4, 1798
42 Can. 2317. (Coll., n. 642).
 CHAPTER III

MISSIONS

CAN. 1349

Ordinarii advigilent ut, saltern decimo quoque

i.

anno, sacram, quam vocant, missionem, ad gregem

sibi commissum habendam parochi curent.
Parochus, etiam religiosus, in his missionibus
2.

instituendis mandatis Ordinarii loci stare debet.

I. Ordinaries shall see to it that the pastors arrange

a holy mission as it is called for their flocks at least

every ten years.

2. including religious, must abide by the
Pastors,
regulations of the local Ordinaries in this matter.

Thus, if the local Ordinary orders a mission to be held

in a parish church which in charge of
exempt religious
is

and governed by them, they have no right to hinder it or

1
vex the missionary sent by the bishop.

MISSIONS TO NON-CATHOLICS

CAN. 1350

i. Ordinarii locorum et parochi acatholicos, in suis

dioecesibus et paroeciis degentes, commendatos sibi in

Domino habeant.
2. In aliis territoriis uni versa missionum cura
apud acatholicos Sedi Apostolicae unice reservatur.
l S. C. EE. et R.R., July 23, 1694 (Bizzarri, /. c., p. 281).

370
 CANON 1351 371

i.The non-Catholics living in a diocese or parish

are recommended to the benevolent attention of the

bishop and the pastors, who should ponder effective

means and ways of bringing them back to the one true
fold of Christ. This may be accomplished by spreading
2
apologetic tracts, etc. Of course, the social and intel
lectual conditions of the non-Catholic population must
be duly taken into account. Prayers for their conversion
should be offered. 3
/ 2. In all other territories the care of non-Catholics
j
is reserved exclusively to the Holy See. Therefore all
foreign missions, the superiors general of missionary so
cieties and their subjects, are under the special supervision
of the S. C. de Propaganda Fide, without the consent
of which no new mission may be founded or missionary
work started. This law binds all religious, exempt and
non-exempt, of whatever denomination, under threat of
4
ecclesiastical penalties.

CAN. 1351

Ad amplexandam fidem catholicam nemo invitus

cogatur.
No one should be compelled to embrace the Catholic
, faith against his will.
This golden rule of the great bishop of Hippo 5 was
followed in the treatment of the Donatists until they
caused troubles which led the civil rulers to interfere.
If it has been lost sight of in course of time, this was
2 S. C. P. F., Sept. 8, 1869 (Coll., lar literature may be recommended
n. 1346). The Faith of Our for this purpose.
Fathers, by Cardinal Gibbons; Fr. 3 S. C. P. F., Instructio of 1879

Conway s Question Box, the pam- (ibid., n. 1507).

phlets of the Catholic Truth So- 4 S. C. P. F., Dec. 5, 1640; Jan.
cieties, "The Antidote," and simi- n, 1656 (Coll., nn. 101, 125).
5 Cfr. cc. 3, 5, Dist. 45.
372 ADMINISTRATIVE LAW
due to themixture of ecclesiastical with political affairs.
But remains as true as it was in St. Augustine s day
it

that faith is a free gift of God, though, of course, men

may be instrumental in procuring it. The early Chris
tians were allowed to buy and retain pagan slaves who
voluntarily fled tothem in order to be more leniently
treated; they could use exhortations and persuasive
6
words, but were not allowed to exercise any compulsion.
6S. O., Sept. 12, 1776 (Col. P. F., n. 515).
 TITLE XXI

SEMINARIES
From the second century onward, i. e., as soon as the
Church was free to spread, schools were instituted which,

though called catechetical, offered more than a catecheti

cal training to such as wished to enter the clerical state
or to hold some other responsible position. The schools
of Alexandria and Antioch resembled theological acad
emies where philosophy was not neglected, though it
would be hazardous to identify them with seminaries. 1
More closely resembling our modern seminaries were
the cloistral and cathedral schools of the Middle Ages,
where clerics and laymen, especially of the nobility, re
ceived their education. These nurseries of learning and
piety, fashioned after the domestic school of St. Augus
tine, be called forerunners of the modern colleges
may
and seminaries established upon the initiative of the
Council of Trent. 2 The twenty-third session of that
council, held in July, 1563, contains a long chapter on
this important subject, in which the colleges for the train

ing of clerics are for the first time called seminaries.

The council ordained that youths of at least twelve years,
especially from among the poorer classes should be re
ceived into these schools for the
necessary scientific,
moral, and practical training qualifying them for the
priesthood. A
peculiar feature was that the pupils should
receive the tonsure when they entered the seminary. The
i Cfr. Cath. Encycl., XIII, 694 2 Sess. 23, c. 18, De Ref.
"

&., s. v. Seminary."

373
374 ADMINISTRATIVE LAW
council prescribed two school boards, to be chosen by the
bishop, one for the spiritual, the other for the temporal
administration. Such a seminary was to be established in
every diocese large enough to maintain one. The smaller
dioceses were allowed to combine. Thus the terms dio
cesan, interdiocesan, provincial, and pontifical seminaries
were introduced.
A seminary may be broadly defined as a school destined
either remotely or proximately for the preparation of
candidates for the sacred ministry, especially the priest
hood. 3
A diocesan seminary is one under the control of the
local Ordinary, an interdiocesan is one under the control,

generally in solidum, of all the bishops who send their

students there, although interdiocesan may only mean
that the control is entrusted to the local Ordinary, whilst

other bishops are merely entitled to send their candidates ;

a provincial seminary one under all the bishops of

is

an ecclesiastical province with the metropolitan as head;

a pontifical seminary is one under the immediate control
and supervision of the Holy See, who generally exercises
this right by means of the papal delegate.

RIGHT OF THE CHURCH TO EDUCATE THE CLERGY

CAN. 1352
Ecclesiae est ius proprium et exclusivum eos insti-
tuendi qui ecclesiasticis ministeriis sese devovere cu-
piunt.
3 A promiscuous college with busi- One consequence is that the semi-
ness, scientific, and classical courses, naristicum cannot be collected
even though erected by the bishop for such colleges, but at most a
and conducted by the diocesan subsidium caritatis, if no other col-
clergy, cannot be styled a seminary, lege of the same nature exists in
as is apparent from the Council of the diocese.
Trent as well as from our Code.
 CANON 1352 375

It might seem superfluous to make a law saying that

ff
the Church enjoys the native and exclusive right to train
those who wish to devote themselves to the sacred min
istry."
Yet the legislator, taught by experience, has
thought well to emphasize this right.
it He calls it a ins
proprium, or inherent right. This is evident from the
office of the Church as the divinely constituted teacher of
faith and morals. This office demands that those who
shall be the bearers of light be imbued with those mental
and moral qualities which render the exercise of the teach
ing office effective and conformable to the principles of
faith and virtue. It is a native right of the Church to

select those who are in a more particular manner the

elect of the Lord, from among the multitude of men and

place them in the shadow of the sanctuary, where they are

protected against dangerous maxims and practices. In
doing this the Church does not violate the rights of the
State or of any individual. The State has no right to
dictateany one s vocation. If God, who is the author of
civil authority, calls one to the priesthood or religious
state, no human power can hold him back. Individuals
are free to choose the clerical state because in doing so
they obey their Maker. There is now no longer any
danger, as there was in the fifth and sixth centuries, that a
wholesale flight from public office and municipal obliga
tionswould endanger the existence of an empire. Those
were abnormal times suffering from a corrupt system of
administration and taxation.
The
text says further that the right of training clerics

belongs exclusively to the Church. The Gallican, Febro-

nian, and Josephinist schools claimed the right of prescrib
4
ing the programme of studies for the clergy of the State.

n. 1594); Pius Nunquam

"

4 Syllabus Pii IX, n. 46 (Denzinger, /. c., IX,

foie," Dec., 1856.
376 ADMINISTRATIVE LAW
This claim is based on a false notion of ecclesiastical au
thority. If the Church, as an autonomous and independ
ent society, is entitled to attain her purpose by the choice
of appropriate means, she certainly has the right to train
those who are to be the living and successive bearers of
her divine mission, the sacred ministers. From this it

naturally follows that the right of choosing the means

best adapted for the training of the clergy belongs to the
Church exclusively. Her sphere of interests differs essen
tially from that of the State, though there is no contradic
tion between the two. The State may monopolize salt

and tobacco, but for it to monopolize education, and cleri

5
cal education in particular, would be usurpation. There
isno danger that the clerical training might prove detri
mental to the State. For the very fact that loyalty and
morality are the principal objects of that training guaran
tees the foundations of civil society.

THE DUTY OF PASTORS WITH REGARD TO CLERICAL

VOCATIONS

CAN. 1353

sacerdotes, praesertim parochi, ut

Dent operam
pueros, qui indicia praebeant ecclesiasticae vocationis,
peculiaribus curis, a saeculi contagiis arceant, ad pi-
etatem informant, primis litterarum studiis imbuant
divinaeque in eis vocationis germen foveant.

Priests, and especially pastors, should interest them

selves in such boys as show signs of an ecclesiastical voca
tion, keep them away, as much as possible, from worldly
contagion, instruct them in piety and the elements of sci-

5 Leo XIII,
"

lampridem," Jan. 22, 1887 (to Prussia and Bavaria

"

Dec. after the Kulturkampf

"

6, 1886; Officio sanctissimo," ") .

 CANON 1354 377

ence, and foster in them the germ of their vocation. For

it evident that by such means an ordinary or general
is

vocation may develop into a special or extraordinary one.

Suitable surroundings and a favorable atmosphere
develop
the seeds of a supernatural calling. 6

DIOCESAN SEMINARIES
CAN. 1354
i. Unaquaeque dioecesis in loco convenienti ab

Episcopo electo Seminarium seu collegium habeat in

quo, pro modo facultatum et dioecesis amplitudine,
certus adolescentium numerus ad statum clericalem
instituatur.
2. Curandum ut in maioribus praesertim dioecesi-

bus bina constituantur Seminaria: minus, scilicet, pro

pueris litterarum scientia imbuendis, maius pro alum-
nis philosophiae ac theologiae vacantibus.
3. Si constitui Seminarium dioecesanum nequeat,
aut in constitute Seminario conveniens institutio,
praesertim in philosophicis ac theologicis disciplinis,
desideretur, Episcopus alumnos in alienum Seminar
ium mittat, nisi Seminarium interdioecesanum vel
regionale, auctoritate apostolica, constitutum fuerit.

i. Every diocese should have a

seminary or college in
a convenient place selected by the bishop. There, accord
ing to the revenues and size of the diocese, a certain
number of young men should be trained for the clerical
state.

2. In the larger dioceses there should be established

two seminaries: one as a college or petit seminaire, the
other for the students of philosophy and theology.
eCavagnis, Institutions luris Publ. Eccl., 1883, 1 IV, n. 76; Vol.
HI, P. 45-
 378 ADMINISTRATIVE LAW

3. If a diocesan seminary cannot be erected, or the

philosophical and theological courses cannot be properly

given in one already existing, the bishop shall send his
students to another seminary, unless there is an interdio-
cesan or provincial seminary erected by authority of the
Apostolic See.
i prescribes that a preparatory college or petit semi-

naire be established in every diocese. But it wisely sets a

limit to this obligation, making it dependent upon the
revenues and size of the diocese. Where there is a col
lege conducted by religious, the bishop may make use of it

for his students.

2 prescribes two seminaries, a college and a clerical

seminary, for the larger dioceses. The size of a diocese

is not determined by its area, but by the number of the

faithful, for in extent some apostolic vicariates are large

enough to comprise many Italian dioceses or even arch

dioceses, yet they were told to establish central or pro

7
vincial seminaries. The revenues, also, are a determin
ing factor, as the same Instruction intimates. Besides it
is evident that an efficient staff of teachers and an ade
quate number of students cannot be expected in a small
diocese, not to speak of the expenses necessary for the
building and maintenance of the required edifices and the
cost of administration.
The two
seminaries should, if possible, be separated
and conducted as different establishments. This is de
sired mainly by reason of the different discipline required
for younger and for more advanced students. 8
3 permits bishops to send their students to another
seminary, i. e., one existing in a different diocese, but only
in case there is no interdiocesan or provincial seminary

7 S. C. P. F., Oct. 18, 1883 8 S. C. Consist., July 16, 1912,

(.Coll., n. 1606). n. i (A. S. S., IV, 492 f.).
 CANON 1354 379

erected by the Holy See. The latter may intervene either

directly or indirectly in the establishment of an interdio-
cesan or provincial seminary. Directly by a formal de
cree issued by the S. Congregation of Seminaries and Uni
9
versities, declaring an institution to be an interdiocesan
or provincial seminary; indirectly by the S. C. Cone,
approving the acts of a provincial synod erecting or ap
proving such an institution. The latter mode of approval
is intended in certain Instructions of the S. Congregation

of the Propaganda. 10 There may be a doubt whether the

"

anctoritas apostolica" is expressly required for both

provincial and interdiocesan seminaries, in other words

whether our text intends to draw a real distinction be
tween an interdiocesan and a provincial seminary.
Though there is a distinction between the two, this dis
tinction has no practical value in our case, as can. 1357,

4 simply rules that the government and administration

"

an interdiocesan or provincial seminary

"

of are to be
conducted according to the rules laid down by the Holy
See. This undoubtedly means that interdiocesan and
provincial seminaries must have and thereby
their statutes,
also their existence, approved by the S. Cong, of Sem
inaries and Universities.
Where
such an interdiocesan or provincial seminary
exists, therefore, a bishop who has no seminary of his
own, in which philosophy and theology are taught, must
send his students to that provincial seminary, but only
for the strictly clerical, not for the classical, studies.
9 Cfr. can. 256.
10 Oct. 18, 1883, IV; Aug. 28, 1893 {Coll., nn. 1606, 1848).
380 ADMINISTRATIVE LAW

THE SEMINARISTICUM
CAN. 1355
Pro constitutione Seminarii et alumnorum susten-
tatione, si proprii reditus deficiant,Episcopus potest:
i. Parochos aliosve ecclesiarum etiam exemptarum
rectores iubere ut statis temporibus in ecclesia ad hunc
finem stipem exquirant;
2. Tributum seu taxam in sua dioecesi imperare;
3. Si haec non sufficiant, attribuere Seminario ali-

qua beneficia simplicia.

If there are no endowments for the support of a sem

inary and its students, the bishop may
i. Command the
pastors and other rectors of churches,
even though they be exempt religious, to take up collec
tions for that purpose at stated times ;

2. Impose a seminary tax in the diocese;

3. If these resources do not prove sufficient, he may
attach some simple benefices to the seminary.
The first means is modern. It imposes the obligation
of taking up a collection, even in churches which are not
parish churches, and in such as belong to exempt re
ligious.
As to the incorporation of benefices, it should be ob
served that only simple benefices are intended, i. e. f such
as require no permanent residence in the place of bene
11
fice, and the duties of which may be performed by a
substitute Thus a simplex canonicatus or a
or vicar.
chaplaincy may be united with a seminary; but a paro
chial benefice may not, without apostolic indult.
Incorporation either plena iure or semipleno iure,
is

either as to the spiritual and temporal, or as to the tem-

ll Cfr. can. 1411.

 CANON 1356 381

poral benefits only; the latter element is especially in

tended here, since incorporation is permited for the pur
pose of support. But the union cannot be made without
the advice of the seminary board ;
that of the chapter or
consultors is not sufficient. 12
An incorporation of benefices made before the sem
inary is in existence, is invalid. 13

Simple benefices of any kind may be united with a sem

inary, even if the appointment to these falls within so-
called papal months, i. e. t those in which the right of ap

pointment belongs to the Holy See. But in this case the

1*
incorporation must be made before the vacancy occurs.

CAN. 1356

Tribute pro Seminario obnoxia stint, qua vis

i.

appelatione remota, reprobata qualibet contraria con-

suetudine et abrogate quolibet contrario privilegio,
mensa episcopalis, omnia beneficia etiam regularia aut
iurispatronatus, paroeciae aut quasi-paroeciae, quamvis
alios reditus, praeter fidelium oblationes, non habeant,
domus hospitalis auctoritate ecclesiastica erecta, so-
dalitates canonice erectae et fabricae ecclesiarum, si
suos reditus habeant, quaelibet religiosa domus, etsi
exempta, nisi solis eleemosynis vivat aut in ea col
legium discentium vel docentium ad commune Eccle-
siae bonum promovendum actu habeatur.
2.Hoc tributum debet esse generale eiusdemque
proportionis pro omnibus, maius vel minus secundum
Seminarii necessitatem, sed quinas quotannis centesi-
12 S. C. C., Feb. 14, 1594; March 3, 1597 (Richter, Trid., I. c., n.

3, 1594 (Richter, Trid., p. 212, n. 10 f.).

87); Bened. XIV, De Syn. Dioec., 14 S. C. C, Aug. 1586; Aug. 31,

IX, 7. 1600 (Richter, /. c., n. 13).
13 S. C. C., June 8, 1595; March
382 ADMINISTRATIVE LAW
mas partes (5%) reditus vectigalis non excedens, mi-
nuendum prout reditus Seminarii augentur.
3. Reditus tribute obnoxius is est qui, deductis
oneribus et necessariis expensis, supersit in anno nee ;

in eo reditu computari debent distributiones quoti-

dianae, vel, si omnes beneficii fructus distributionibus
constent, tertia earundem pars nee fidelium oblationes,
;

nee, omnes paroeciae reditus coalescant ndelium

si

oblationibus, tertia earundem pars.

Can. 1356 more precisely determines those persons,

either physical or corporate, who are obliged to pay the
seminary tax (ta.va seminaristica) .

(f
It starts with three clauses, the first of which quavis is

appellatione remota. The principal effect of this clause is

that no appeal is admitted in devolutivo, though a recourse

or restitutio in integrum is not prohibited. Another effect
of this clause is that, even if the seminary tax would be
only a side issue in another cause, it would affect the en
tire cause, at least as long as the secondary one remained
unsettled.
The second clause is: "reprobate, qualibet contraria

consuetudine" This clause abrogates any custom which

already exists, or has existed, i. e. f whether present or past.
As to this there is no controversy, but the question has
been raised whether this clause intends to annul future
15
customs. This seems to us to be settled by can. 27,
i,which says that every custom explicitly reprobated in
the Code is unreasonable. Therefore even a future cus
tom is made impossible with regard to the seminary tax,
because it would lack the consent of the legislator.
The last clause reads: "abrogate quolibet contrario

15 Cfr. Barbosa, Tractus Varii, Clausulae, nn. IX, 87 (ed Lugd.,

1660, p. 260 f., 450 f.)-
 CANON 1356 383

privilegiof Each and every privilege, therefore, whether

obtained directly or indirectly (by way of communica
tion), must be considered as abolished and void of effect
because contraries cannot be comprised under the same
16
subject. Hence if exempt religious have obtained a
privilege of not paying the seminaristicum, this privilege
is now void.

The following are obliged to contribute to the sem

inary :

i. The mensa episcopalis, which comprises the whole

income or salary of the bishop and is administered by
him. 17 Hither belong the cathedraticum and that part of
the pew-rent of the cathedral church that is reserved for
salary. In countries where there are endowments these
too are included, with due regard, however, to 3.
2. All benefices, including those of regulars and such
18
as are of lay or ecclesiastical advowson.
3. All parishes and quasi-parishes, even though they
have no other income than the offerings of the faithful.
Parishes not yet organized as such are probably exempt
from paying the seminaristicum because rights and duties
are correlative terms.
4. Hospitals erected by ecclesiastical authority and
provided with funds of their own, for instance, by endow
ment. Hospitals founded and governed by the civil au
thority or by private persons (Sisters, etc.), cannot be
taxed. The term ecclesiastical authority comprises the
Ordinary, the superior major of exempt religious, and
the Holy See. Hospitals which subsist on the generosity
of voluntary contributors or alms, are not taxable. 19

16 Barbosa, /. c., p. 38, n. 4. 19 S. C. C., July, 1588 (Richter,

17 Idem, De Officio et Potestate Trid., p. 213, n. 22); loca
"

pia
Episc., P. Ill, alleg. 95, 67. n. non e bonis ecclesiasticis facta non
18 S. C. C., Dec. 17, 1836, ad II tenere."

(Richter, Trid., p. 213, n. 27).

384 ADMINISTRATIVE LAW

5. Canonically erected confraternities and ecclesiasti

cal fabricae, provided they have their own income. The
term fabric a comprises the administrators of a church
buildin g, or the counselors. Thus, for instance, the
Referenda Fabrica S. Petri, means the whole administra
tion of St. Peter s Basilica. The underlying idea is that
such a building is (by fictio iuris) an artificial person, or,
rather, an ecclesiastical institution. This also applies to
confraternities which possess corporate property of their
own, either movable or immovable, such as the guilds or
confraternities in some parts of Europe. In this country,
as far as we are aware, this law does not apply to con
fraternities or sodalities, because the monthly fees of the
members do not constitute reditus or income in the proper
sense.
6. Every religious house, even though exempt. This
includes every religious community, whether formata or
not, whether belonging to men or to women. Exceptions
to this rule are :
(a) the houses of mendicant orders
and others who live from alms, 20 but not the parishes
which are entrusted to the care of mendicants; (b) all
religious who actually maintain a college of pupils or pro
fessors which promotes the common welfare of the,

church. The latter clause appears ambiguous, but its

meaning can be determined from certain official decisions.

Thus it has been declared that a monastery which supports
a college for monks and professors, or maintains a sem
21
inary of its own, is not bound to pay the seminary tax.
This was the case in former times at the universities of
20 Among these are the orlers Jesus; Barbosa, De Off. et Potest.
of St. Dominic, St. Francis (all Episc., P. Ill, alleg. 77, nn. 14 f.

three branches), the Hermits of (Vol. II, p. 315).

St. Augustine, the Carmelites, the 21 S. C. C., Sept. 9, 1594 (Rich-
Servites, the Minimi, the Society of ter, /. c., p. 213, n. 18).
 CANON 1356 385

Paris and Bologna, where the relgious orders maintained

their own colleges.
A doubt may perhaps arise as to colleges conducted by
religious in their own name, which are not seminaries in
the technical sense. However, our text does not say
but collegium, and the only condition
"

seminary," is that
such a collegium promotes the common welfare of the
Church. This, we believe, is verified in any Catholic
college worthy of the name, which is open to all Catholic

youths without discrimination, for such institutions greatly

promote the welfare of the Church at large. different A
answer must be given intended only for
if the college is

members of the respective religious family, a so-called

scholasticate, for such institutions are primarily destined
for the benefit of the respective order or congregation, not
of the Church at large. The fact that a scholasticate was
educating boys without means would not free it from the
22
seminary tax. Nor would the circumstance that the
school or scholasticate was instituted in the monastery
with some grammar school for its members. 23 Lastly, al
though a monastery may have to contribute to a seminary
of its own
order or congregation, it is not exempt from
2*
the diocesan seminary tax.
2 rules that the seminary tax must be general, equal,
and proportionate. It must be general, that is to say, no

exception may be made in favor of anyone who is obliged

to contribute. It must be equal, i.e., all are to be taxed
to the same extent, without subjective or personal con
sideration, according to the objective standard laid down
in 3. The tax must be proportionate to the needs of
the seminary, i. e., it must be diminished if the revenues of

22 S. C. C., Jan. 3, 1594 (ibid., 24 S. C. C., Sept. 7, 1714 (ibid.,

n. 20). n. 21).
23 S. C. C., April 24, 1723 (Rich-
ter, /. c., n. 19).
 386 ADMINISTRATIVE LAW
the seminary increase, and the maximum rate cannot ex
ceed 5%
of the net income or capital taxed.
3. The seminary tax can be levied only on the income
which is left after all obligations and expenditures have
been deducted. a general principle, which must
This is

be applied to the various contributors mentioned in i.

(a) As to the mensa episcopalis or episcopal income, it

must be observed that former decisions cannot be fully
adapted to modern exigencies because they apply to real
benefices with immovable property. Still these decisions

afford at least a clue as to what may be included in de

ducting obligations and expenditures. An obligation may
burden the mensa in the form of an ecclesiastical pension
which the bishop has to pay, for instance, to a disabled
priest. Yet a decision says that the bishop would be al
lowed to charge it to the pensioner. 25 However, this is
a rather complicated case. The term expenditures cov
ers the total expense of collecting the income, the wages
of hired hands and all other employees occupied in har
26
vesting the produce of estates. Applying these rules
to modern notions we may say, salvo meliore iudicio, that
the mensa is taxable on what is left after the
episcopalis
obligations and expenditures accruing from pastoral vis
its and professional occupations have been duly deducted.

Household expenses are not to be deducted. 27 For the

rest it is left to the bishop s own conscience to tax him
self in a fair amount. The idea of the law is that no one
should exempt himself.
(b) The same rules, according to the decision quoted,
apply to the holders of ecclesiastical benefices. Mass stip
ends are not taxable.
25 S. C. EE. et RR., Eugu- Dec. 17, 1836, ad VII, XI (Richter,
bina, March i, 1805 (Bizzarri, /. c., 1. c., 214, n. 27).
p.

p. 405). 27 S. C. EE. et RR., /. c.

26 S. C. C., 1673 (Bizzarri, ibid.) ,

 CANON 1356 387

(c) Hospitals, confraternities, and fabric ae as well as

religious houses are subject to the same rule. Hence, for
instance, if the obligation of maintaining a number of pa
wards free of charge, or keeping sick or sickly
tients or

clergymen free of charge, burden a hospital, this expense

may be deducted, plus the interest to be paid on capital
or mortgage. Thus
also confraternities would be justi
fied in
deducting the expenses of Masses imposed by
28
legacies and of alms imposed by their statutes. Relig
ious houses may subtract from the taxable sum the amount
which they have to spend on their own seminaries or col
29
leges. In fact a religious house burdened with heavy
debts and bound to meet its obligations, could claim either
exemption or mitigation, for the terms are general in our
text. This of course only in case they have no incorpor
ated benefice or parishes.

(d) Not taxable are the daily distributions which the

beneficiaries of cathedral and collegiate churches receive
for actual and active assistance in choir, if they have
an income besides these distributions. But if their in
come consists entirely of daily distributions, the third part
30
of these distributions is liable to the tax.
(e) Not taxable are the offerings of the faithful if the
whole income of a parish consists of such offerings. This
is the case in most of our parishes, since by offerings are
understood not merely the plate collections, but also pew-
rent, subscriptions, and house collections. Of these, then,
only two-thirds are to be taxed. However, the general
rule stated at the beginning of this section must also be

applied to these two-thirds. Therefore the debts and the

28 S. C. C., June 23, 1640 (Rich- 30 S. C. C. EE. et RR., March
ter, /. c., p. 213, n. 23). i, 1805 (Bizzarri, /. c.) ; S. C. C.,
29 S. C. C., Sept. 2, 1714 (ibid., June 23, 1640 (Richter, /. c., n. 23).

n. 21).
388 ADMINISTRATIVE LAW

necessary current expenses for the priests salary, the

maintenance of buildings and persons (organist, janitor,
housekeeper) may be deducted. There will remain very
little to be taxed in a good many churches of our country,
and no other means except what is first stated in
is left

can. 1355, viz., the taking up of a collection.

It may be noted that our pastors and curates not
being
beneficiaries in the canonical sense of the word, are ex

empt from the seminary tax.

THE BISHOP S DUTIES IN REGARD TO THE SEMINARY

CAN. 1357

i. Episcopi est omnia et singula quae ad rectam

Seminarii dioecesani administrationem, regimen, pro-

fectum necessaria et opportuna videantur, decernere,

eaque ut fideliter observentur, curare, salvis praescrip-

tionibus a Sancta Sede pro casibus peculiaribus latis.
2. Potissimum studeat Episcopus frequenter Sem-

inarium ipse per se visitare, in institutionem quae

alumnis traditur sive litterariam et scientificam sive
ecclesiasticam sedulo vigilare, et de alumnorum in-
dole, pietate, vocatione ac profectu pleniorem sibi
comparare notitiam, maxime occasione sacrarum or-
dinationum.
3. Unumquodque Seminarium suas leges habeat
ab Episcopo approbatas, in quibus quid agere, quid
observare debeant, doceantur turn qui in eodem Sem-
inario spem Ecclesiae instituuntur, turn qui in
in
horum institutionem operam suam impendunt.
4. Seminarii interdioecesani vel regionalis regi
men universum et administratio regitur normis a
Sancta Sede statutis.
 CANON 1358 389

I. The
bishop shall, with due respect to the partic
ular regulations given by the Holy See, decide what is

necessary and profitable for the proper administration,

government, and progress of the seminary, and enforce
his regulations.
2. Above all the
bishop shall try to visit the sem
inary frequently, watch over the mental and moral train
ing of the students, and, especially on the occasion of
sacred ordinations, acquaint himself more fully with the
and progress of the pupils.
character, piety, vocation,
3. Each seminary must have its statutes, approved by
the bishop, in which the rules for the conduct of students
and teachers are laid down.
4.Interdiocesan or provincial seminaries are entirely
governed by the statutes issued by the Holy See.
For Italy special rules have been issued, which may
serve as models for other interdiocesan seminaries. 31

SEMINARY OFFICIALS

CAN. 1358

Curandum ut in quolibet Seminario adsint rector

pro disciplina, magistri pro instructione, oeconomus
pro curanda re familiari, a rectore distinctus, duo
saltern confessarii ordinarii et director spiritus.

In every seminary there shall be a rector to maintain the

discipline, professors to teach the students, a procurator
to provide for the temporalities, who must be an official
distinct from the rector, at least two ordinary confessors,
and a spiritual director.
31 Cfr. Micheletti, Constitutionsf Seminariorum Clericalium, 1919, p. t
XVIII.
390 ADMINISTRATIVE LAW

DIOCESAN SEMINARY BOARD

CAN. 1359

Diocesanis Seminariis bini constituantur coetus

i.

deputatorum, alter pro disciplina, alter pro adminis-

tratione bonorum temporalium.
2. Utrumque deputatorum coetum constituunt
bini sacerdotes, ab Episcopo, audito Capitulo, electi;
sed excluduntur Vicarius Generalis, familiares Epis-
copi, rector Seminarii, oeconomus et confessarii or-
dinarii.

3. Munus deputatorum per sexennium durat, nee

electi sine gravi causa amoveantur; sed rursus eligi
poterunt.
4. Episcopus debet consilium deputatorum in ne-
gotiis maioris momenti petere.

i. Every diocesan seminary must have two boards,

one for discipline, the other for the administration of

temporal affairs.

2. Each board consists of two priests, appointed by

the bishop with the advice of the chapter or diocesan con-
suitors; excluded are the Vicar-general, members of the
bishop s household, the rector of the seminary, the pro
curator, and the ordinary confessors.
3. The term of each board member lasts for six

years, during which he should not be removed from office

without a serious reason ;

he may also be reappointed.
4. The bishop is bound to ask the advice of these

boards in important matters.

Such matters of importance are, e. g., the drawing up of
statutes, the admission of pupils, the appointment of the
rector, confessors and teachers, etc., the selection of text-
 CANON 1360 391

books, and the punishment and dismissal of unruly and

32
incorrigible students.
familiares episcopi must here be understood his
By
commensales, i. e., those who partake of the episcopal table
or household and live in the episcopal residence as de
33
pendants, and since, according to 2 only priests can be
elected deputati, they will be the bishop s chaplains, secre
taries, or chancellors, provided they live together with the

bishop.
The reason for excluding these and the Vicar General,
the rector of the seminary, etc., is theirdependence these ;

should be as independent as possible.

officials

It may not be superfluous to state that the bishop is in

duty bound to have such a seminary board and that he is

not allowed to substitute another, made up of other
persons, for instance, the rector, or the professors, or
other persons prohibited by law. 34
i

QUALIFICATION OF THE CHIEF SEMINARY OFFICIALS

CAN. 1360
i. Firmo praescripto can. 891, ad munus rectoris,
directoris spiritus, confessariorum et magistrorum
Seminarii eligantur sacerdotes non doctrina tantum,
sed etiam virtutibus ac prudentia praestantes, qui
verbo et exemplo alumnis prodesse possint.
2. Rectori Seminarii in propriis muneribus im-

plendis obtemperare omnes debent.

i. For the positions of rector, spiritual director, con
fessors, and professors in the seminary, only such priests
should be chosen as are distinguished not only by learn-
32 S. C. C., 1585; July, 1589; Episc., P. II, alleg. 5, n. 2 ff. (VoL
Jan. 19, 1595 (Richter, /. c., p. 211, I, 212 f.).

n. i ff.).
34 S. C. C., Aug. 27, 1864 04.
33 Barbosa, De Off. et Potest. S. S., I, 657 ff.).
392 ADMINISTRATIVE LAW

ing, but also by virtues and prudence, so that they may

serve as examples to the students in word and deed.
2. All must obey the rector in the discharge of their

duties.
As to the qualities of a rector, St. Charles Borromeo
demanded that he be of advanced age (aetate provectus),
of a serious disposition (auctoritate gravis), of tried in
tegrity (speciali probitate).
With regard to his external canonical status the rector
is (i) exempt from the parish organization, as per can.
1368. If a church is connected with the seminary, he is
the canonical rector of the same (see can. 480, 3). (2)
He is obliged and entitled to attend the diocesan synod, as

per can. 358, 1,3; (3) he is obliged to make the profes

sion of faith according to can. 1406.

Concerning the internal affairs of the seminary; the

rector (i) depends in everything and at all times on
the Ordinary; (2) he is the supreme authority in the
seminary, whom all others, of whatever degree, includ
ing the professors and the ceconomus and other officials,
must obey in matters that pertain to discipline, study, and

ordinary administration; (3) he is not allowed habitually

to hear the confessions of the students who live under
the same roof with him, as per can. 891 (4) he may ar ;

range and change things of minor importance according to

his good judgment. (5) In urgent and extraordinary
cases, (a) he expel a student guilty of a grievous
may
public transgression, but must inform the bishop imme
diately; (b) make changes of a serious nature after
due
deliberation with the Ordinary; (c) in serious cases which
brook no delay he shall consult with the other officials,
but not with the spiritual director or the confessors, act
35
upon their advice, and afterwards report to the bishop.
35 Micheletti, /. c., p. 14 f.
 CANON 1361 393

SEMINARY CONFESSORS

CAN. 1361

i. Praeter confessarios ordinaries, alii confessarii

designentur ad quos libere alumni accedere possint.

2. Si ii confessarii extra Seminarium degant, et
alumnus aliquem eorum acciri postulet, ilium rector
arcessat, nullo modo petitionis rationem inquirens
neque se aegre id ferre demonstrans; si in Seminario

habitent, ipsos alumnus libere adire potest, salva Sem-

inarii disciplina.

3. Quando agitur de alumno ad ordines admit-

tendo vel e Seminario expellendo, nunquam confes-
sariorum votum exquiratur.

i.Besides the ordinary confessors, others should be

appointed, whom the students may freely approach.
2. If these extraordinary confessors live outside the

seminary, and a student desires to approach one of them,

the rector shall call him, without in any way asking the
reason or showing signs of displeasure. If these extraor
dinary confessors seminary, the students may
live in the

freely approach them, with due regard, of course, to the

discipline of the house.
3. When a seminarian is to be promoted to sacred

orders, or expelled, the opinion of the confessors must

never be asked.
36
The rule that they may
for religious communities,
have extraordinary confessors at least four times a year,
may also be applied to seminaries.
A confessor may be offered salva disciplina, means that
the granting of such a petition should not constitute a
custom detrimental to good order, e. g., withdrawing from
36 See can. 566, 2, 4.
 394 ADMINISTRATIVE LAW
the lecture room, or study hall, or common exercises. In
exceptional cases, of course, a relaxation may be jus
tifiable.

SCHOLARSHIPS

CAN. 1362

Reditus legati pro clericis instituendis tribui possunt

alumnis in Seminarium sive maius sive minus rite
receptis, licet nondum clerical! tonsura initiatis, nisi
aliud in tabulis fundationis expresse caveatur.

Legacies or bequests left for the training of clerics may

be applied to students of the clerical or little seminary,
even though they have received tonsure, provided the
foundation does not forbid it.

This ruling is substantially taken from a letter of Pius

X to the Cardinal Vicar of Rome. There are some schol
arships in the Roman Seminary (near the Lateran) re
served for aspirants of the diocese of Rome. Pius X
ordered that these be reserved for students of theology,
and only in case there be none such may they be given to
students of the lyceum (or college). This also holds
for such as are Romans not by birth, but by domicile. 37
Our text is somewhat broader, leaving the choice free be
tween clerical and collegiate students, provided, of course,
they have entered the college with the intention of becom
ing priests, and provided that the terms of the bequest
do not ordain differently. It is, therefore, important
that such documents be carefully kept. If a scholarship
is intended only for students of a certain diocese or par
ish, it cannot be applied to those of another diocese or

parish. If the bequest is for university students, the

scholarship cannot be applied to college students. If it is

37 Pius X, May 5, 1904, n. 2 (.Anal, Eccl., XII, 235).

 CANON 1363 395

to be given to one student only, it cannot be divided or

distributed among several. On the other hand, if the be
quest is made in general terms
"

for a clerical student,"

without qualification, the president of the college or sem
inary may give the scholarship to any one attending the
college, the petit seminaire, or the clerical seminary
proper.
ADMISSION TO SEMINARIES

CAN. 1363

i. In Seminarium ab Ordinario ne admittantur,

nisi filii legitimi quorum indoles et voluntas spem af-
ferant eos cum fructu ecclesiasticis ministeriis per-
petuo inservituros.
2. Antequam recipiantur, documenta exhibere
debent de legitimitate natalium, de susceptis baptis-
mate et confirmatione ac de vita et moribus.

3. Dimissi ex aliis Seminariis vel ex aliqua re-

ligione ne admittantur, nisi prius Episcopus etiam se-

creto a Superioribus aliisve notitias requisierit de
causa dimissionis ac de moribus, indole et ingenio di-
missorum, et certo compererit nihil in eis esse quod
sacerdotali minus conveniat; quas notitias,
statui
veritati conformes, eorum conscientia graviter onerata,
suppeditare Superiores debent.

i. The Ordinary shall admit into the seminary only

boys of legitimate birth, whose character and inclination

justify the hope that they will devote themselves forever

to the ecclesiastical ministry.
2. These, before they are received, must submit

proofs of legitimate birth, certificates of Baptism and

Confirmation, and testimonials of their life and conduct.
These documents, to which a medical certificate might
396 ADMINISTRATIVE LAW

profitably be added, are to be presented to the rector, who

shall submit them to the Ordinary. The latter, as stated
38
above, must consult with the seminary board.
3. Such as have been dismissed from another sem
inary or from a religious institute can be admitted only
under the following conditions:
(a) The bishop must ascertain, if necessary even by
way of secret information from the superiors and other
persons, the reasons why they were discharged ;

(b) tfe must satisfy himself about their moral stand

ing, character, and intellectual capacity, and

(c) He must be morally certain that there is nothing

in them that would not be compatible with the sacer
dotal state.
The superiors who are called upon for such informa
tion are bound in conscience to tell the truth as far as
they are able. Untruthful recommendations have often
done great damage.

PLAN OF STUDIES FOR LITTLE SEMINARIES

CAN. 1364

In inferioribus Seminarii scholis:

i. Praecipuum locum obtineat religionis disciplina,
quae, modo singulorum ingenio et aetati accommo
date, diligentissime explicetur.
2. Linguas praesertim latinam et patriam alumni
accurate addiscant;
3. Ea in ceteris disciplinis institutio tradatur quae
conveniat communi omnium culturae et statui cleri-
corum in regione ubi alumni sacrum ministerium ex-
ercere debent.
38 Micheletti, /. c., p. go ff.
 CANON 1364 397

1. The first place in the

study plan of the petit seminaire
belongs to religious instruction, which should be carefully
given and adapted to the intellectual capacity and age of
the hearers. Here it may not be amiss to state what is

prescribed for the Italian schools. Each week, one period

or hour for catechism and one for Bible History in the
high school or academic grades one hour for higher cat ;

echism and apologetical instruction in the college, at least

39
in the higher grades.
2. Especially the Latin language as well as the vernac

ular should be learned correctly. Nothing is prescribed

as to the number of hours to be devoted to each; but it
goes without saying that the language of the Church
should be given such a prominent place that the pupils
realize its importance as a main branch.
A difficulty may arise in regard to mixed schools,
i. e., such as are partly secular and partly ecclesiastical.
In these, says Leo XIII as well as the above-quoted
Circular of the Consistorial Congregation, the Ordinaries
should see to it that the plan of studies be adapted as

closely as possible to that prescribed by the civil gov

ernment. 40 In other words, the colleges conducted by
and for ecclesiastics should not fall below the standard
prescribed by the State.
Should it be necessary to supplement the instruction in
certain branches in keeping with ecclesiastical tradition,
certain periods or hours may be added for those who fol
low the ecclesiastical course. This is a very wise ruling. 41

3. As
to the other branches, everything should be taught
that required by the intellectual standard of the coun
is

try in which the students expect to exercise the sacred

39 S. C. Consist., Litterae Circu- 40 Leo XIII,
"

Depuis le jour,"

lares,July 16, 1912, n. 8 (A. Ap. Sept. 8, 1879; Litt. Circ., n. 6

S,, IV, 495). (/. c.).
41 Litt. Circ,, I. c.
398 ADMINISTRATIVE LAW

ministry. This standard differs in different countries, but

everywhere a priest is looked upon as a man of culture

and the Catholic clergy in general as the light of the
"

world." To conform to this ideal students for the minis

try must acquire the knowledge and learning expected
of them and necessary to enable them to exercise a whole
some influence on their fellowmen.
This can only be ac
complished by a comprehensive and thorough training in
those branches which society at present considers the sine
qua non of culture. This is more efficaciously and pal
42
pably achieved by obtaining the usual academic degrees.
This does not mean that all clergymen are called upon
or expected to excel in secular learning, but that some
at least should be first-class all-around scholars. All,
however, are obliged to acquire such a degree of even
worldly science as is necessary to their state, in order
that there may be no prejudice and unfounded accusa
43
tions.

PHILOSOPHY AND THEOLOGY

CAN. 1365

i. In philosophiam rationalem cum affinibus dis-

ciplinis alumni per integrum saltern biennium incurn-

bant.
2. Cursus theologicus saltern integro quadriennio
contineatur, et, praeter theologiam dogmaticam et
moralem, complecti praesertim debet studium sacrae
Scripturae, historiae ecclesiasticae, iuris canonici,
liturgiae, sacrae eloquentiae et cantus ecclesiastici.
3. Habeantur etiam lectiones de theologia pas-
42 Leo XIII, "Officio sanctissimo ,"
43 Ibid.
"

Dec. 22, 1887; Depuis le jour,"

Sept. 8, 1899.
 CANON 1365 399

torali, additis practicis exercitationibus praesertim de

ratione tradendi pueris aliisve catechismum, audiendi
confessiones, visitandi infirmos, assistendi moribundis.

i. The philosophical course must last at least two

continuous years and comprise, besides philosophy proper,
also the allied branches.

Philosophy is here understood in its proper sense, as the

knowledge or science of things in their ultimate princi
44
ples. The disciplinae affines are officially described as
follows: mathematics, natural or physical science, litera
ture, Latin and Greek, history. The number of lessons
to be devoted to each is stated as one hour per day. How
ever, it must be observed that this plan was drawn up
for the Italian lyceum, which has a three years course.

Counting five periods a week (they have one full holiday

every week) this would be fifteen hours per week for
three years. Distributing these lessons over two years, we
have about 7 to 8 hours for each per week. To these must
be added, according to the same Circular, one hour for
review or repetition each week, and one hour for debate
or disputation every two weeks. 45 Thus about 8 or 9 pe
riods of philosophy proper are required to do justice to
this important branch.
2. The theological course should last at least four full
years and comprise, besides dogmatic and moral theology,
the study of Holy Scripture, Church history, Canon Law,
liturgy, sacred eloquence, and ecclesiastical chant.
The number of hours to be devoted to dogmatic the
46
ology, according to the Circular, is one a day, i. e., five

hours per week, plus one hour for disputation and one
44Cfr. Turner, History of Philos- 46 Ibid., nn. n f. (A. Ap. S.,
ophy, 1903, p. i. IV, 496 f.).
45 Lift. Circul. S. C. Consist.,
July 1 6, 1912, n. 9.
400 ADMINISTRATIVE LAW
for review, in all, seyen hours a week for dogmatic the
ology.
For moral theology no definite number of hours is as
signed, but it is added that lectures on sociology and the
elements of Canon Law should be given as supplementary
to moral theology.
For Holy Scripture four periods per week are assigned
throughout the four years course. The first two years
are to be devoted to introduction and the last two to
exegesis.
Church History has no definite number prescribed,
neither have the secondary branches of Biblical Greek,
Hebrew, sacred eloquence, patrology, liturgy, sacred ar
chaeology, sacred art, and Gregorian Chant.
It may be noted that this programme, as outlined in the

Circular, is to be taken as directive only, not as a law

in the strict sense. Details may be left to the seminary
board. Note that the same Circular 47 says that there
should not be more than four, or at most four and one-
half hours school a day, and these should not follow one
another consecutively, but should be divided up. Too
many lessons are incompatible with the discipline of the
seminary, the necessary exercises of piety, and the phys
ical well-being of the students.

3 rules that pastoral theology should also be taught.

Practical exercises should be added. These should con
sist in pedagogic instructions, in order that the candi
dates may learn how to teach catechism, to hear confes

sions, to visit the sick, and to assist the dying.

47 Ibid., n. 7.
 CANON 1366 401

QUALIFICATION OF SEMINARY PROFESSORS

CAN. 1366
i. Ad magisterii munus in disciplinis philosophi-

cis, theologicis et iuridicis, ii, ceteris paribus, iudicio

Episcopi et deputatorum Seminarii, praeferantur, qui
laurea doctorali potiti sint in Universitate studiorum
vel Facultate a Sancta Sede recognitis, aut, si agatur
de religiosis, qui simile testimonium a suis Superiori-
bus maioribus habeant.
2. Philosophiae rationalis ac theologiae studia et
alumnorum in his disciplinis institutionem professores
omnino pertractent ad Angelici Doctoris rationem,
doctrinam et principia, eaque sancte teneant.
3. Curandum ut saltern Scripturae, the
sacrae
ologiae dogmaticae, theologiae moralis, et historiae
ecclesiasticae, totidem habeantur distinct! magistri.

i. For the teaching of philosophy, theology, and

canon law, other qualifications being equal, those should
be preferred who have obtained the doctor s degree from
a university or faculty recognized by the Holy See. The
decision lies with the bishop and the seminary board.
The phrase ceteris paribus is easily understood in the light
of can. 1360, i, which demands not only learning, but

also virtue and prudence, as necessary qualities of a pro

fessor. Teachers taken from the rank of religious should
have testimonials from their superiors testifying to their
doctor s degree or recognized capacity and scholarship.
2. Mental philosophy and theology must be taught

according to the method, teaching, and principles of the

Angelic Doctor, to which the professors should religiously
adhere.
The method here understood is the scholastic form in
402 ADMINISTRATIVE LAW
which the Summa Theologica of St. Thomas and, in fact,
all the great Summae of the thirteenth century are com
posed.
The term doctrina in this connection is not so easily
defined, but, taken as a whole, no doubt means the teach
48
ing of Thomas, more especially
St. his metaphysics,
though not each and every sentence laid down in his
works need be accepted.
The principles of the Angelic Doctor are the rules or
theses around which his system clusters, and upon which
it more or less hinges, especially in metaphysics. 49
It was but natural that the Summa Theologica of St.
Thomas should be prescribed as the text-book for theolog
ical seminaries. This does not mean that no other sys
tematic text-book may be used for recitation purposes, but
only that the Summa must be used and explained for the
scholastic part, i. e., in the treatment of purely speculative
50
questions. Of modern erudition there is but little in the

Summa, and yet dogmatic theology now-a-days must be

treated with the aid of history and Holy Writ. 51 That it
will not be easy for a Scotist or a Molinist to feel at home
in the Thomistic system goes without saying but no other ;

system is condemned by the preference given to St.

Thomas.
3. Care should be taken that at least Holy Scripture,

dogmatic theology, moral theology, and Church history be

taught by different professors.
48 Pius X,
"

Doctoris Angelici," 50 Cfr. the documents already

June 29, 1914 (A. VI, 338).
Ap. S., quoted and S. C. Sem., March 7,
49 See the 24 theses proposed by 1916 (A. Ap. S., VIII, 157)-
S. C. Stud., July 27, 1914 (A. Ap. 51 S. C. Consist., Lit. Circul., n.

S., VI, 383 ff-). ii.

 CANON 1367 403

THE RELIGIOUS TRAINING OF SEMINARISTS

CAN. 1367

Current Episcopi ut alumni Seminarii:

i. Singulis diebus communiter matutinas et sero-
tinas preces recitent, per aliquod tempus mental! ora-
tioni vacent, sacrificio Missae intersint;
2. Semel saltern in hebdomada ad sacramentum
poenitentiae accedant et frequenter, qua par est pie-
tate, Eucharistico pane se reficiant;
3. Dominicis et festis diebus, sacris Missarum et

Vesperarum sollemnibus adsint, altari inserviant sa-

crasque caeremonias exerceant, praesertim in ecclesia
cathedrali si id, iudicio Episcopi, sine disciplinae et
studiorum detrimento fieri possit ;

4. Singulis annis per aliquot dies continues exer-

citiis spiritualibus vacent ;

5. Semel saltern in hebdomada adsint instruction!

de rebus spiritualibus quae pia exhortatione claudatur.

The bishops shall see to it that the students of the Sem

inary :

i.Recite their morning and evening prayers in com

mon, make a short meditation, and assist at Mass;
2. Go to confession at least once a week and fre
quently receive holy Communion with proper devotion ;

3. Assist at solemn Mass and Vespers on Sundays and

holy-days of obligation, serve at the altar, and perform

the sacred ceremonies, especially in the cathedral church,
provided the bishop thinks it can be done without dis-
advantange to discipline and study;
4. Make a retreat once a year for several successive
days ;
404 ADMINISTRATIVE LAW

5. At least once a week attend a spiritual lecture,

which may be followed by a pious exhortation.
We hardly believe that this canon applies to little "

At most some of its prescriptions

"

seminaries in globo.

may serve as a directive norm for these, as far as circum

stances permit. The practice or exercise of sacred cere
monies certainly only intended for seminarians in the
is

strict sense. Weekly confession for academic and col

legiate students cannot be prescribed as a rule. Where
there are day scholars, not even i can be enforced.
Therefore we believe that this canon is primarily intended
for clerical seminaries, but may, as stated, serve as a di
rective norm
for high schools and colleges.
To superintend the pious exercises is the special duty
of the rector who should see to it that genuine and solid
piety be fostered in the candidates to the sacred ministry.
Hence he must combat hypocrisy and watch over the free
dom of conscience. This presupposes free choice of con
fessors, according to can. 1361. The rector should be
cautious and circumspect in inquiring into the frequenta-
tion of the Sacraments, and use no compulsion or moral

persuasion in this matter. He shall also inculcate this

mode of acting in his officials.
The spiritual director conducts the daily, weekly, and

monthly devotions of the seminarists, but under the super

vision of the rector (can. 1360, 2). He should be
ready to hear confessions whenever asked by the students.
But must leave the freedom of conscience intact,
he, too,
scrupulously abstain from restricting the choice of con
fessors, and be specially careful about the seal of confes
sion.
It may be asked: If perfect liberty of conscience is

52 Micheletti, /. c., p. 26 ff.

 CANON 1367 405

guaranteed, how can the discipline, and especially the rule

laid down in our canon, be observed ? We answer as fol
lows The rector as well as the spiritual director should
:

give warning in their conferences and spiritual lectures

as to the obligation in general of
observing this rule, a
protracted violation of which can not long remain hidden
from the eyes of a vigilant rector or spiritual director.
The when perceiving any case of palpable
rector, then,

negligence, must correct the culprit, and, like a religious

superior, is bound to correct even apparently slight faults
if a serious relaxation of discipline is to be apprehended

therefrom. 53 As to individuals, the matter must first be

settled with the confessors who are the judges of con
science. may
Itbe that in cases of scrupulosity the con
fessor would advise less frequent confession. Should a
penitent say that he has nothing to confess, the rules
of materia sufficiens and necessaria must be applied. Giv
ing scandal by not going to confession would seem to form
a materia sufftciens. At least the penitent should present
himself to hear the confessor s advice and receive his
blessing. Thus freedom can be safeguarded as well as

discipline. What goes on between the confessor and the

penitent is a matter entirely subtracted from public dis
cipline.
Our canon says that the Ordinary must see to the en
forcement of this rule. This can be done especially on
the occasion of his visits, when the bishop may interpel
late the rector as to its observance. The rector is bound
to answer his questions truthfully. Of course, neither
the spiritual director nor the confessors may reveal any
thing that they know from confession only. However,
the spiritual director, who has every opportunity to watch
53 Cfr. Marc, Institutiones Morales, II, n. 2170, q. 3.
406 ADMINISTRATIVE LAW
the students,may express his judgment in general terms,
without mentioning any individual, as to the general ob
servance of our canon. The Ordinary may give weight
by threatening injunctions or
to the rule penalties, against
which no appeal is admitted. 54

EXEMPTION

CAN. 1368

Exemptum a iurisdictione paroeciali Seminarium

esto; et pro omnibus Seminario sunt, parochi
qui in
officium, excepta materia matrimoniali et firmo praes-
cripto can, 891, obeat Seminarii rector eiusve dele-
gatus, nisi in quibusdam Seminariis aliter a Sede
Apostolica constitutum.

The seminary exempt from the jurisdiction of the

is

pastor, whose place is taken by the rector or his delegate

for all who seminary in all things except mar
live in the

riage and matters concerning which the Holy See may

have differently provided. But the rule laid down in can.
891, that the rector should not habitually hear the confes
sions of boarding pupils, must not be set aside.

This canon, though quite clear in itself, raises more than

one doubt. First of all, there is the very term seminary.
Does it comprise every seminary, the little as well as the
clerical? In view of the definition given above, in the
introduction to this title, we believe exemption may be
claimed by any seminary which is such in the proper
sense of the word. For as the bishop may exempt some
religious families and charitable institutions
from parish
55
organization, so does the Code exempt the seminaries

54 Bened. XIV, "Ad militantis," tion of seminary cannot be eo ipso

March 30, 1742, 34. applied to colleges of a promiscuous
55 Can. 464, 2. But the defini- character; the clerical character
 CANON 1368 407

from the same. Besides, the general rule that, where the
law makes no distinction, neither should the interpreter,
may here be safely applied, as the law is favorable to the
seminaries. But only such seminaries, either little or cler
as are under the control of the local
ical, Ordinary, or
interdiocesan and pontificial seminaries, must be under
stood. Hence seminaries governed by religious cannot
claim this privilege, unless the Ordinary should see fit to
apply can. 464, 2, as mentioned above.

The next question is Who are all those who are in

:
<f

the seminary "? No doubt the officials as well as the pro

fessors and pupils who habitually live in the seminary,
and as long as they live there, even during vacation, should
they spend their vacation there. And we believe that this
rulemay also be applied to the so-called villeggiatura, or
summer resort, which is a desideratum for all semina-^
56
ries. This privilege doubtless also applies to laymen
working for, and living as boarders in, the seminary, for
the text admits this extension. But concerning these lay-^
men must be understood that, if they want to get
it mar-"

ried, they must do so in the parish church, according to

the law established in can. 1094 ff. All other sacraments,
including baptism and confirmation, these laymen may re
ceive in the seminary.
But what about the Sisters in the seminary? Their
presence there necessary for more than one reason, and
is

is now tolerated by Roman practice. They are subject to

57
the following rules :

I. They may be called or dismissed by the local Or

dinary according to his discretion.
must certainly be prevalent, other- July 16, 1912, n. 3 (A. Ap. S., IV,
wise any school might be called a 493).
seminary. 57 Micheletti, /. c., p. 40.
56 5. C. Consist., Litt. Circul.,
 408 ADMINISTRATIVE LAW
2. The appointment of the superioress and the selec

tion of sisters for service in the seminary is left to the

superioress general, who, however, should comply with

the wishes of the local Ordinary.
3. The government of the Sisters employed in
interior
the seminary must be left to the local superioress and
neither the rector nor any other official should interfere
therewith.
4. A
private oratory should be assigned to the Sisters
for their spiritual exercises.
5. Their habitation should be entirely separate from the
other parts of the seminary, and no one, except the rector,
vicerector,and procurator, shall be allowed to communi
cate with the Superioress or the Sisters.
6. As to confessions the common law, as stated in can.

520, must be applied.

From these observations the question with regard to the
rector s rights is easily settled. The Sisterschaplain
must be assigned by the local Ordinary, according to can.
529. Their confessors must have the requisite faculties
from the Ordinary and for the rest, especially for their
;

"

peace of conscience," the Sisters may avail themselves of

the favors granted in can. 522-523.

SEMINARY DISCIPLINE

CAN. 1369

i. Seminarii rector et alii omnes moderatores sub

eius auctoritate curent ut alumni statuta ab Episcopo
probata studiorumque rationem adamussim servant ac
spiritu vere ecclesiastico imbuantur.
2. Saepius eis verae et christianae urbanitatis

leges tradant, eosque exemplo suo ad illas colendas

excitent; hortentur praeterea ut praecepta hygienica,
 CANON 1369 409

vestium et corporis munditiam et quandam in con-

versando comitatem cum modestia et gravitate con-
iunctam, iugiter servent.
3. Sedulo vigilent ut magistri suo munere rite

fungantur.

i. The rector and all other officials subject to his

authority shall take care that the students closely observe
the statutes approved by the bishop as well as the plan of
studies, and that they be imbued with the true ecclesiasti
cal spirit.

If the students are bound to follow the programme laid

down for the various courses, it naturally follows that the
professors too should follow it ( 3). Therefore, says
the oft-quoted Circular, the professors should not waste
time in long discussions on some particular subject
" "

perhaps a hobby but finish their pensitm within the

period assigned for the same. Ordinaries are exhorted to
see to it, that the lectures on dogmatic and moral theology,
and, as far as possible, also those on philosophy, at least
the general outlines, are given in Latin. 58 This, of course
cannot mean that the vernacular is to be banished. For
the positive parts of dogmatic theology and sociological
questions are certainly more easily and profitably treated
in the vernacular language. But the speculative parts
should be treated in the accurate and precise Latin ter
minology handed down by tradition.
2. The seminary officials should insist upon the rules

of genuine Christian politeness and excite the students to

imitation by their example. They should also exhort
them to observe the rules of hygiene, be cleanly in dress
and appearance, and practice courtesy joined with modesty
and gravity.
58 Lit. Circul., n. 13.
410 ADMINISTRATIVE LAW

STUDENTS OUTSIDE THE SEMINARY

CAN. 1370

Quoties alumni ob quamlibet causam extra Sem-

inarium morentur, servetur praescriptum can. 972, 2.

When students, for whatsoever reason, live outside the

seminary, they should be placed under the care of pious
and worthy persons, who shall watch over them and lead
them on to piety, as stated under can. 972, 2.

DISMISSAL OF STUDENTS

CAN. 1371

E Seminar io dimittantur dyscoli, incorrigibile s, sedi-

tiosi, ii qui ofo mores atque ihdolem ad statum ec-
clesiasticum idonei npn videantur; itemque, qui in
studiis adeo parum proficiant ut spes non affulgeat eos
sufficientem doctrinam fore assecuturos; praesertim
vero statim dimittantur qui forte contra bonos mores
aut fidem deliquerint.

Disorderly, incorrigible, and rebellious students, such

as appear unfit for the ecclesiastical state on account of
their conduct and character, and those who make so little

progress in their studies that thereis no hope that they

will acquire a sufficientknowledge, should be dismissed.

Those who offend against faith and good morals by
which latter term the praeceptum contra sextum is chiefly
meant should be expelled at once.
 TITLE XXII

SCHOOLS
title sounds more restricted than its contents bear
This
out. Education comprises Christian training of every
kind and degree, no matter in what place or form it
is given, whereas the term school has, at least in com
mon parlance, a narrower meaning, to wit, a place or
building where education is imparted; or an institution of
learning or training, especially when the latter is carried
on in a systematic form. Education in general means
mental and moral development of the faculties of man;
school means a systematic education offered in a place or
building assigned for that purpose. Thus we also speak
of compulsory education and compulsory schooling, which
terms differ widely, since the former does not necessarily
include the latter, as shall be seen under can. 1375. The
first of the following canons refers to Christian education
in general.

THE DUTY OF CHRISTIAN EDUCATION

CAN. 1372

i. Fideles omnes ita sunt a pueritia instituendi ut

non solum nihil eis tradatur quod catholicae religion!
morumque honestati adversetur, sed praecipuum in-
stitutio religiosa ac moralis locum obtineat.
2. Non modo parentibus ad normam can. 1113,

sed etiam omnibus qui eorum locum tenant, ius et

411
412 ADMINISTRATIVE LAW
gravissimum officium est curandi christianam, libe-
rorum educationem.
i. All the faithful must from childhood be educated
in such
way that not only are they taught nothing that is
contrary to faith and morals, but that religious and moral
training takes the first place.

2. Not only parents, but all those who take their

place, have the right and the solemn duty to provide a
Christian education for their children.
It seems superfluous to add anything to this pregnant
text, which is the concrete embodiment of the many sol
emn documents which the Holy See issued against the
liberalistic tendencies of the last century. One was di
rected especially to the bishops of the U. S. by the Holy
1
Office. It says that the tender age is most susceptible
to the seeds of vice as well as virtue. Experienced teach
ers and priests could tell a thrilling story of the difference
between children brought up in the atmosphere of faith
and piety, and those who come from homes where religion
has little or no influence. 2
The right of parents and guardians under God is in
alienable and inviolable because the child belongs primar

ily and before others to the parents. This natural right

has its foundation in the very fact of procreation and in
volves the right of the parent to feed, clothe, and educate
his children physically, intellectually, and morally. 3
These rights involve their corresponding duties, which pa
4
rents may neither evade nor ignore. For by doing so
they would violate their natural duties towards their God-
1 S. O., Nov. 24, 1875 (Coll. P. * See the excellent paper of Car-
F., n. 1449). dinal OConnell in Catholic Edu-
2 Cfr. Becker, S. J., Christian cational Association Bulletin, Aug.
Education or The Duty of Parents; 1919; Cavagnis, Instit. Juris Pub.
1899, p. 128 ff. Eccl.. 1882, Vol. IV, p. 14 f.
3 See can. 1113.
 CANON 1373 413

given proteges, for whom they are responsible and ac

countable to the Creator.
From this follows that the parents are entitled and
obliged to provide, either themselves or through others,
the necessary moral and religious training and to keep
their children away from everything and every person
that would be dangerous to faith or morals.

RELIGIOUS INSTRUCTION IN SCHOOLS

CAN. 1373
i. In qualibet elementaria schla, pueris pr
corum aetate tradenda est institutio religiosa.
luventus, quae medias vel superiores scholas
2.

frequentat, pleniore religionis doctrina excolatur, et

locorum Ordinarii curent ut id fiat per sacerdetes zel*
et doctrina praestantes.

I. In every elementary school religious instruction

should be given the children according to their age.

These elementary, popular or grade schools are espe
cially destined for the building up of good character,
and an education which guarantees public peace and
since

tranquillity cannot be solid and lasting without the prin

ciples of Christian truth, moral as well as intellectual,
it follows that no schooling without religious training is
able to produce the desired effects. These words of Pius
IX to the Archbishop of Freiburg (Baden)
5
need no
further proof than a glance at the present social condition
*
of the world. The programme of the so-called Lib
erals," who propose to take the schools away from the
influence of the Church, and to limit education to the pur
6
suit of worldly happiness, has never received a more ter-
6 "

Quum non sine," July 14, 6 Syllabus of Pius IX, prop. 48

1864 (Coll. P. F.. n. 1260). (Denz., n. 1596).
414 ADMINISTRATIVE LAW
rible shock than in the late war. Unfortunately, the ene
mies of Christian education have eyes but see not. Ra
tionalism and materialism clings to their bones and often
has principal nerve in the pocket.
its

Youths who frequent the secondary or higher

2.

schools should be given fuller instruction in Christian

doctrine, and the local Ordinaries should see to it that
this instruction is given by zealous and learned priests.
Such fuller instructions are contained in the larger cate
chism as well as the so-called evidences of religion, which
should be imparted so that they may be easily grasped
and assimilated by the pupils. 7

NON-CATHOLIC SCHOOLS

CAN. 1374

Pueri catholic! scholas acatholicas, neutras, mixtas,

quae nempe etiam acatholicis patent, ne frequentent.
Solius autem Ordinarii loci est decernere, ad normam
instructionum Sedis Apostolicae, in quibus rerum ad-
iunctis et quibus adhibitis cautelis, ut periculum per-
versionis vitetur, tolerari possit ut eae scholae cele-
brentur.

Catholic children should not frequent non-Catholic,

neutral, or mixed schools, i. e., such as are open also to
non-Catholics. It is for the local Ordinary to decide, ac

cording to the instructions of the Apostolic See, in what

circumstances and with what precautions attendance at
such schools may be tolerated, without danger of perver
sion to the pupils.
There is a term used in this canon which recalls the fa
mous controversy waged about the parochial schools in

7 Pius IX,
"

Acerb o nimis," April 15, 1905, " V.

 CANON 1374 415
"

this country a generation ago. It is tolerari possit,"

which was given only for particular cases and in view of

special circumstances, and may be called an equitable
8
arrangement departing from the letter of the law. The
instructions of the Holy See for our country were con
tained in a document issued by the Holy Office, 9 Nov. 24,
1875. Others of a similar tenor were given for Canada,
10
Ireland, England and missionary countries. All of
them revolve around the question whether the influence of
the Church is entirely excluded from the public schools
and the Catholic pupils are exposed to danger to the faith ;

if so, the bishop shall provide for their instruction as far

as lies within his power, and at the same time warn the
faithful and announce to them that they cannot in con
science permit their children to frequent schools opposed
to the Catholic Church. 11
The circumstances in which attendance at non-Catho
lic schools maybe permitted are expressed in the above-
named Instruction to the bishops of the U. S. as follows :

Generally speaking, such cause will exist if there is no

"

Catholic school in a place, or if the one that is there

cannot be considered suitable to the conditions and cir

cumstances of the pupils."

This suitability must not be
identified with mere fashionableness, for there is no pro

portion between the danger to faith and

"

stylishness."

Hence said instruction continues Parents :

"

who neglect
to give this necessary Christian training and instruction to
their children, or who permit them to go to schools in

See the excellent work of Burns,

8 7, 1860; Aug. 1867 (Oxford and
6,
C. S. C., The Growth and Develop- Cambridge); July 19, 1838;
1659;
vnent of the Catholic School Sys- March 20, 1865; April 25, 1868
tern in U. S., 1912, chs. XI f. {Coll., nn. 1890; 738, 1190; 1312,
9 Coll. P. F., n. 1449. 1329).
10 S. C. P. F., March 14, 1895; 11 Pius IX,
"

Quum non sine,"

Sept. 18, 1819; Jan. 16, 1841; April July 14, 1864 (Coll. P. F. t n. 1260).
416 ADMINISTRATIVE LAW
which the ruin of their souls is inevitable, or, finally, who
send them to the public schools without sufficient cause
and without taking the necessary precautions to render
the danger of perversion remote, and do so while there is
a good and well-equipped Catholic school in the place,
and while they have the means to send them elsewhere to
be educated such parents, if obstinate, cannot be ab
;

solved, as is evident from the moral teaching of the

12
Church."

THE RIGHT OF THE CHURCH TO ESTABLISH SCHOOLS

CAN. 1375
Ecclesiae est ius scholas cuiusvis disciplinae non
solum elementarias, sed etiam medias et superiores
condendi.

The Church has the right to establish schools of every

kind, not only elementary, but also secondary and higher

schools. Note well, the Church does not claim the ex
clusive right to establish schools, as she does with re

gard to seminaries for the education of the clergy (can.

1352). Our canon claims for her the right of establish
ing schools of every kind, (cuiusvis disciplinae). By dis-
ciplina is generally understood what we call a branch
or

department of learning. Hence the term includes ele

mentary, secondary, and higher schools, colleges and uni
versities, even the special faculties of theology, philoso

phy, medicine, and law. Among the secondary schools

figure training and professional schools

and high schools
for boys and girl (academies), whatever name they may
13
go by in different countries, for the terminology varies.
To establish a school means to furnish the means
12 Coll. P. F., n. 1449.
13 See Cath. EncycL, Vol. XIII s. v.
"

Schools."
 CANON 1375 417

wherewith to commence and continue it. Such an act

does not exclude the cooperation of other persons, either
public or private, who may participate in the administra
tion or regulation of a school.
A school is a building or other place where education is

given in a more or less systematic manner. Now-a-days

education is concentrated in schools hence the
"

fight for ;

"

the schools waged in nearly every civilized country.

Yet it cannot be denied that there is not a purely mental
or abstract, but a real and well-founded distinction be
tween education and school. For education comprises the
development of the moral and mental faculties in the
whole range of science and moral principles. Schools on
the other hand are differentiated by the higher and lower

degrees of studies, these being divided into various

grades, as the appellations elementary, secondary, etc.,
clearly indicate. Besides, schools are localized and at
tached to state and municipal machinery, whilst education
may and should be the common good of all.
The Code, then, by claiming the right of establishing
schools for the Church, leaves aside the question of educa
tion in general. Whence this claim to establish schools?
Whatever has reference to the purpose or end for which
the Church was founded, belongs to her domain. Now
schools, as the universal and ordinary means of convey
ing a Christian education, undoubtedly have a natural con
nection with the end of the Church. Consequently the
Church has the right of establishing and conducting
1*
schools. The major premiss follows from the fact that
the Church an autonomous, an independent, and a per
is

fect society endowed with the right of procuring the

means necessary to attain its end. It will not do to say
14 Cfr. Cavagnis, Institut. luris Eccl. Pub., Vol. Ill, p. 69 ., 1. IV,
n. 117 ff.
418 ADMINISTRATIVE LAW
that the State offers to the Church these means, because
one sovereign society cannot be at the mercy of another,
the Church subject to the State. As to the minor, viz.,
that schools are closely connected with the end of the
Church, the following observation may suffice. In itself a
school may have a merely temporal purpose, and thus be
referred to the State, the end of which is to procure tem
poral prosperity and order, but a systematic separation be
tween and moral development results in
scientific training

a one-sided education which can bear no solid and lasting

fruits, because the unity of man requires an even evolution
of all his faculties, intellectual as well as moral. And
since true morality cannot exist without religious princi

ples, it naturally follows that the whole business of educa

tion is closely bound up with religion. To provide a relig
ious and moral training for her subjects certainly apper
tains to the Church, whose proper end is spiritual, relig
ious, binding man s temporal to his eternal destiny.
Neither is there any danger that religious schools will
breed disloyalty or disturb the peace among citizens. The
very fact that religion teaches submission and obedience to
lawful authority and love of fellowmen should be suf
ficient to dispel any misgiving in that direction. This is
15
acknowledged by honest non-Catholic politicians, and the
late war has amply proved that Catholics are as loyal as
themembers of any other denomination.
Here we may recall the law of prescription. The
Church it was who in the turmoil of barbarous invasions
held high the torch of civilization and preserved it against
the assaults of savage hordes. To her most of the higher,
cloistral and cathedral schools and universities, are in
debted for their very existence and endowments. Many
of those very chairs that have been made the catapults
is Thus Treitschke, Vorlesungen tiber Politik, I, 350.
 CANON 1376 419

from which poisonous missiles are hurled against the

Catholic Church, owe their foundation to ecclesiastical
benefices and persons.
This may suffice to illustrate can. 1375. It is not our
task to outline what the State may justly claim. This
would require an extensive investigation. Only one state
ment may be permitted. What is said in the heat of con
troversy cannot always be accepted as objective truth.
16
Cavagnis vindicates the following functions to the
State: (i) It should establish schools when private cit
izens, or other agencies, neglect to do so: (2) It should
see to it that the social and civic relations and good order
are not disturbed or subverted in private schools; (3) It
should repress and punish rebellious disturbances and dan
gerous machinations. Similar views are expressed by
many other Catholic authors, 17 viz., that compulsory edu
cation, but not compulsory schooling, may be vindicated to
the State, which, as Cavagnis also admits, has the greatest
interest in the adequate training of its citizens. It may be

quite true that these ideas are imported from the Old
18
World, as Cardinal Manning observed, and that the con
ditions of the New York are different ;
but the underlying
principles must be as true here as they are there.

UNIVERSITIES, FACULTIES, AND DEGREES

CAN. 1376
i. Canonica constitutio catholicae studiorum Uni-
versitatis vel Facultatis Sedi Apostolicae reservatur.
2. Universitas vel Facultas catholica, etiam re-

ligiosis familiis quibuslibet concredita, sua debet

habere statuta a Sede Apostolica probata.
16 Instit. Eccl, Vol.
luris Publ. 17 Th. Meyer, S. J., Institutiones
III, p. 64,IV, n. 107; for the
1. luris Nat., 1900, Vol. II, 703 ff.

rest we refer to Burns, /. c., ch. IX. 18 Burns, /. c., p. 220.

420 ADMINISTRATIVE LAW

CAN. 1377

Gradus academicos qui effectus canonicos in Ec-

clesia habeant, nemo
conferre potest, nisi ex facultate
ab Apostolica Sede concessa.

The canonical establishment of Catholic universities and

faculties is reserved to the Holy See.
These, even when
entrusted to religious institutes, must
have their statutes approved by the Apostolic See. No
academic degree produces any canonical effect unless it
has been conferred in virtue of the power granted by the
Apostolic See.
The difference between a university and a faculty con
sists in this, that a university includes a so-called studium
generate, or, in concrete words, the faculties of theology,
philosophy, law, and medicine, while the term faculty,
in its and technical sense, means only one
restricted
of these. If we say studium generate we are aware that
this term was first used to signify a school which ad
mitted students from all parts, and then was transferred
to the corporate body of teachers and students. To-day
a university in the full sense of the word means the total
of the four faculties mentioned above. 19 The term
""

fac
more general sense of sci
"

ulty was originally used in the

ence or knowledge ;
later it came to indicate some depart
ment of study, as the faculty of arts, 20 or theology, or
Canon Law. In this sense it is used in our text. Univer
sities and faculties, then, which enjoy the privilege and

power of conferring degrees and are acknowledged

as Catholic universities or faculties, can be established
"

19 See Cath. Encyc., Vol. XV, 188, 1904, Vol. XIX, s. v. Universities,"
"

s. v. Universities." p. 738.
20 See New International Encyc.,
 CANON 1378 421

only by the Holy See and must have their statutes ap

21
proved by the S. C. of Seminaries and Universities.
Can. 1377 is to be understood both of degrees conferred
after examination and of so-called honoris causa degrees.
It would seem that the mere acknowledgment and ap
proval of an institution of learning by the Holy See does
not convey the right of conferring academic degrees, but
this right must be specially mentioned in the petition and
the grant. If the Holy See grants- the honorary title of
doctor, this gives the recipient the same rights and priv
ileges as the degrees conferred by a Catholic university
after examination. 22

RIGHTS ATTACHED TO THE DEGREE OF DOCTOR

CAN. 1378

lus est doctoribus rite creatis deferendi, extra sacras

functiones, annulum etiam cum gemma, et biretum
doctorale, firmo praeterea praescripto sacrorum can-
onum, qui in collatione quorundam officiorum et bene-
ficiorum ecclesiasticorum statuunt eos, ceteris paribus,
iudicio Ordinarii, esse praeferendos, qui lauream vel
licentiam obtinuerint.

Duly created doctors are entitled to wear, outside of

ecclesiastical functions, a ring studded with a gem and the
doctor s biretta, and the ruling of the sacred canons re
mains effective which says that all other things being
equal, doctors and licentiates should be preferred in the
appointment to ecclesiastical offices and benefices.
The doctor s ring may be worn on the same finger on
23
which prelates wear theirs. The biretta here intended is

21 Pius X,
"

Sapienti Consilio,"
23 S. Kit. C., May 23, 1846, ad 5
June 29, 1908, i, n. u. (Dec, Auth., n. 2907).
22 S. C. Stud., Dec. 19, 1903.
422 ADMINISTRATIVE LAW
the four-cornered ecclesiastical headgear, 24 not the so-
called doctor s hat. These paraphernalia may not be
worn at ecclesiastical functions, especially not while say
25
ing or singing Mass.
By the way it may be stated that our text grants the
right to such distinctions to all duly created doctors,
whether of the secular or religious clergy.

CATHOLIC SCHOOLS TO BE ESTABLISHED

CAN. 1379

i. ad normam can. 1373 sive

Si scholae catholicae
elementariae sive mediae desint, curandum, praesertim
a locorum Ordinariis, ut condantur.
2. Itemque si publicae studiorum Universitates

doctrina sensuque catholico imbutae non sint, optan-

dum ut in natione vel regione Universitas catholica
condatur.
3. Fideles ne omittant adiutricem operam pro
viribus conferre in catholicas scholas condendas et
sustentandas.

i. Where there are no Catholic schools in the sense

of can. 1373, the church authorities, especially the local
Ordinary, should take care to establish such.
2. Catholic universities should also be founded in

-provinces or countries where the existing universities are

not imbued with Catholic teaching and feeling.
3. The faithful should not omit to lend their aid, ac
cording to their ability, in the establishment and support
of Catholic schools.
This has been a maxim of the Church ever since univer-

24 S. Rit. C., Dec. 7, 1844, ad i 25 S. Kit. C., /. c., and June 30,
(16 n. 2877). 1883, ad VII (n. 3580).
 CANON 1381 423

sitiesand schools have taken an unchristian turn, as es

pecially the letters of the Holy See to the Irish hierarchy
26
emphasize.

CLERICS TO PURSUE HIGHER STUDIES

CAN. 1380

Optandum ut locorum Ordinarii, pro sua prudentia,

clericos, pietate et ingenio praestantes, ad scholas mit-
tant alicuius Universitatis aut Facultatis ab Ecclesia
conditae vel approbatae, ut inibi studia praesertim
philosophiae, theologiae ac iuris canonic! perficiant et
academicos gradus consequantur.

It is desirable that the local Ordinaries should, with pru

dent judgment, send clerical students who excel in piety

and talent, to a university or faculty either founded or
approved by the Church, that they may there complete
their studies, especially in philosophy, theology, and Canon
Law, and obtain the academic degrees.
Honorius III already advised prelates and chapters to
send talented clerics to universities for at least five years,

during which teachers as well as students should be sup

ported from ecclesiastical funds, i. e., benefices, by author
ity of the Apostolic See.

RELIGIOUS INSTRUCTION UNDER CHURCH AUTHORITY

CAN. 1381
i. Religiosa iuventutis institutio in scholis qui-

buslibet auctoritati et inspectioni Ecclesiae subiicitur.

2. Ordinariis locorum ius et ofBcium est vigilandi

ne in quibusvis scholis sui territorii quidquam contra

fidem vel bonos mores tradatur aut fiat.
26 Leo XIII, "

Oificio sanctissimo," Dec. 22, 1887 et pluries.

424 ADMINISTRATIVE LAW

3. Eisdem similiter ius est approbandi religionis

inagistros et libros; itemque, religionis morumque
causa, exigendi ut turn magistri turn libri removeantur.

i. The religious instruction of the young in all

schools is subject to the authority and inspection of the
Church. This law, it would seem, should need no
special
stressing, yet it is a sad fact that the Apostolic See had
more than once to complain of encroachments on its rights
by the civil authorities. Pius IX in his Syllabus pro
scribed the proposition that the direction of the schools
in which the Christian youth are educated, should be en

tirely withdrawn from the jurisdiction of ecclesiastical

authority and given to the civil government. This is a
confusion of the sphere of the two societies, Church and
State, since religious instruction belongs without a shadow
of doubt to the teaching office of the Church by divine
27
right.
2 ascribes to the local Ordinaries the right and duty
to watch that in the schools of their territory nothing con
28
trary to faith and morals be taught or done.
There may be a difficulty concerning national or gov
ernment schools, such as existed in Ireland in the middle
of the last century, 29 or as our American public schools,
which are under municipal or State authority, entirely
withdrawn from the influence of any religious denomina
tion. Here much depends upon the local school board,
the directors, and the superintendents, but also upon legis
lation. Catholic citizens have a powerful weapon in
their hands in their vote. The ecclesiastical authorities
should prudently draw attention to obnoxious teachers
27 Syllabus Pii IX, nn. 45, 47 sine," July 14, 1864; cfr. Math. 28,
(Denzinger, nn. 1593, i595). *9 f-

28 Ibid., Pius IX, Quum non "

29 S. C. P. F., April 7, 1680

(Coll., n. 1190).
 CANON 1381 425

and books. The pastors may counteract the bad influ

ence by alertness and the intensified teaching of religion.
But all these remedies are insufficient and the necessity
of having Catholic schools of our own is imperative.
Of general interest is an instruction of the Holy Of
30
fice given Aug. 22, 1900, to the bishop of Jassy in Rou-
menia. There, on account of peculiar circumstances,
Catholic schools were permitted to receive schismatic pu
but only on several conditions, namely: (a) that no
pils,

danger to faith or morals arise from the practice to the

Catholic and schismatic students; (b) that Catholic school
boards shall not employ schismatic catechists, though they
may permit the schismatics to maintain such at their own
expense; (c) that neither Catholic nor schismatic cate
" "

chists teach the interdenominational catechism, i. e., a

doctrine which is acceptable to both; (d) that non-Cath

olics must not be admitted as teachers of metaphysics,

ethics, and allied branches though they may be permitted
;

to teach languages, mathematics, and natural sciences un

der the supervision of the Catholic schoolboard (e) that ;

no textbooks, even of profane sciences, written by non-

Catholics may be used unless they are known to contain
no error, or have been corrected. These rules, as stated,
concern only schools governed by Catholic school boards ;
but they contain some hints which may be applied to our
public schools.
3. The have the right
local Ordinaries also to ap

prove the teachers and text-books of religion and to de

mand that teachers or books that offend against faith and
morals, be removed.
The underlying always the same the teach
principle is :

ing of religion belongs to the Church, and the State can

not usurp it without infringing upon a divine right.
so Coll. F. F., n. 2093.
 426 ADMINISTRATIVE LAW
SCHOOL INSPECTION BY THE LOCAL ORDINARIES
CAN. 1382
Ordinarii locorum sive ipsi per se sive per alios pos-
sunt quoque scholas quaslibet, oratoria, recreatoria,
patronatus, etc., in iis quae religiosam et moralem in-
stitutionem spectant, visitare; a qua visitatione quo-
rumlibet religiosorum scholae exemptae non sunt, nisi
agatur de scholis internis pro professis religionis ex
emptae.
The local Ordinaries are entitled, either personally or

through a delegate, to inspect any school, oratory, asy

31
lum, orphanage, etc., in all things concerning religious
and moral education. This right of inspection includes
the schools of religious with the sole exception of purely
internal schools intended for the members of exempt re

ligious institutes.
The Council
of Trent vindicated to the bishops the

right of visiting all hospitals, colleges, and religious or

charitable institutions, except those placed under royal
32
protection. No appeal was or is allowed from this
33
law, but our text, because it concerns schools only, re
stricts this right of visitation to moral and religious in

struction. Our canon covers all schools, elementary, sec

ondary, academic and collegiate, all faculties and uni

versities none may claim exemption, for the text says
;
:

"

quaslibet scholas" The reason is because the bishops

are the judges in all matters of faith and morals. Theirs
is a doctrinal superintendence which they cannot divide

with the civil government.

31 Recreatoria,from the Italian but it may also mean any institution
ricreatori, means asylums for the of advowson.
poor or the aged; also conservatories 32 Sess. 22, c. 8, De Ref.
for boys and girls; patronatus is 33 Bened. XIV, "Ad tnilitantis,"

generally understood of orphanages, March 30, 1742, 31.

 CANON 1383 427

Universities which are under the immediate protec

tion of the See, cannot be canonically visited by
Holy
bishops, but only by the Sovereign Pontiff or his legiti
mate representative. 34
The domestic or internal schools of exempt religious,
established for the sole use of professed members, are not

subject to episcopal visitation; but all other schools, as

35
well as orphanages, colleges and faculties conducted by
these religious, including the scholasticate, may be in
spected by the local Ordinary in the points mentioned,
and none other. 36

CAN. 1383

In religiosa alumnorum alicuius collegii institutione

servetur praescriptum can. 891.

In regard to the religious training of college students,

can. 1383 recalls the rule laid down in can. 891, namely,
that the rector should not habitually hear the confessions
of the students.

34 S. C. C., Aug. i, Sept. i, 1888 36 Leo XIII,

"

Romano s Pontifi-
A. S. S., XI, 674 ff.)- ces," May 8, 1881.
35 S. C. EE. et RR., May 14, 1872
(Coll. P. F., n. 1386).
 TITLE XXIII

THE CENSORSHIP AND PROHIBITION OF

BOOKS
RIGHT OF THE CHURCH

CAN. 1384

i. Ecclesiae est ius exigendi ne libros, quos ipsa

iudicio suo antea non recognoverit, fideles edant, et a
quibusvis editos ex iusta causa prohibendi.
2. Quae sub hoc titulo de libris praescribuntur,

publicationibus diariis, periodicis et aliis editis scriptis

quibuslibet applicentur, nisi aliud constet.

The Church has the right to demand that the faithful

shall not publish books which she has not previously ap
proved by her judgment she also has the right to forbid
;

for a just reason books published by whomsoever.

The first refers to preventive censorship (praevia libro-
rum censura) which touches Catholics only; whereas the
second vindicates to the Church the right of prohibiting
any and all books which she considers objectionable. The
wording of the former clause is rather broad, for it would
seem to include all kinds of books, even such on mathe
matics, agriculture, etc. However this law must be un
derstood in the light of, and by comparison with, the can
ons of chapter i, infra.

The text says that the Church has the right to censor
and forbid books. As to previous censorship there can
428
 CANON 1384 429

be no doubt, because the faithful, as well as the matter

itself, are subject to the authority of the Church, to whom
all Catholics owe obedience in whatever refers to their
salvation. Nevertheless the censorship has often been
made the target of violent attacks. These attacks are
unfounded. Paternal as well as political authorities have
the natural right to ward off anything that may endanger
the moral and physical welfare of their subjects, and to

protect them against bad surroundings, company, litera

ture, etc., in fact anything that is apt to cause insubordina

tion, anarchy, or moral decay. The Church, being an
autonomous society, with subjects for whom she is re
sponsible within her own sphere cannot be destitute of
the authority and power which enables her to keep her
children uncontaminated and to safeguard them against
the danger of perversion. Of all the dangers that imperil
man s salvation bad literature is perhaps the most destruc
tive. Hence the right to control the reading of her chil
dren cannot be denied the Church even from the purely
natural point of vantage. Historical facts amply confirm
the necessity of preventive censorship in Church and
1
State.
The Church, by divine and
right, is the guardian
teacher of faith and morals, the shepherd who must lead
his sheep upon wholesome pasture and point out the pois
onous weeds that endanger their welfare. This office
requires repressive and preventive remedies which the
Church is certainly allowed to apply in teaching and
preserving the deposit of faith. One of these remedies
2
is the censorship of books. This has been always exer
cised by the Church, not indeed to the same extent and in

l Cfr. the work of J.

classical 2 Hilgers, /. c., p. 15 ff. ; see also

Hilgers, S. J., Der Index dcr ver- The Ave Maria, Notre Dame, lad.,
botenen Biicher, 1904. Jan. 31, 1920, pp. 148 ff.
 430 ADMINISTRATIVE LAW
the same way, but in various ways and by different meth
ods according to the exigencies of the times. 3 The Apos
tles frequently warned the faithful against the baneful
influence of a too intimate intercourse with the enemies
of Christianity either in word or writing. 4 The first ex
press prohibition of a book is that of Arius Thalia, which
was forbidden by the Council of Nicaea (325). Then fol
lowed the which look like incipient indices, of Popes
lists,

Innocent and Gelasius I, in which, besides the authentic

I

books of the Old and New Testament, certain "apocry

books are enumerated. 5
"

phal Gregory the Great (590-

604), Martin I (649-654), and Zachary (741-752) drew
up new lists, and the practice was continued in the Mid
dle Ages.

goes without saying that the invention of printing

It

called for more extensive and severer measures. Inno

cent VIII, Alexander VI, and Leo X commanded print
ers to submit all books to be printed to the ecclesiastical
authorities for approval. index of forbidden books in An
the modern sense of the word was that of Paul IV, pub
lished in 1559. It was followed by that of 1571, under

the pontificate ofSt. Pius V, and others, which later

were made superfluous by the more comprehensive index

issued together with the Constitution
in 1758. This,
"

Sollicita ac
provida" of Benedict XIV (July 9, 1753)
remained in force with scarcely any modification until
"

Leo XIII issued his well-known Constitution Officiorum

ac munerum," Jan. 25, 1897.
3 Hilgers, pp. 3 ff.; Hurley, A sius decree, see in c. 3, Dist. 16;

Commentary on the Present Index the authenticity hasgiven rise to

Legislation, 1908, p. 23 ff. doubts (Zahn, Geschichte des Neu-
4 I Tim. 6, 20; II Tim. 2, 16; Acts testam. Kanons, 1890, II, i, 259 f.),
19^ JQ. which, however, are not borne out
5 Innocent I, Ep. 6, ad Excep., c. by solid critical research.

7 (Migne P. L,, 20, 501 f.) ; Gela-

 CANON 1384 431

This constitution, as such, is now superseded

by the
Code insofar as it does not agree with the latter. At the
same time it is well to remember that the wording, and

sometimes even the substance, of the old law will assist

us in determining the nature and extension of the new
8
rules.
2 extends the meaning of the term books so as to in
clude newspapers and other periodical publications as well
as all other published writings, unless the contrary is
manifest. 7
8
Strictly speaking a consisting of a book is a volume
number of sheets of paper, now-a-days generally printed,
and either bound or stitched together, which treats of one
subject in a less coherent and systematic man
more or
ner. It
generally held that a book must have some
is

bulk (aliqua moles), that is, it should have at least 160

pages. Our text as well as the Constitution of Leo XIII
draw a between books and leaflets, etc. The
distinction
unitas objecti is an essential feature of a book. Maga
zines, as a rule, do not treat of only one subject and hence,
even if they are bound, do not constitute a book in the
technical sense. But if a treatise is published in loose
numbers (fasciculi}, so as to form one whole, the term
book applies to it. As to the manner of publication it
" "

must be observed that now-a-days by book we generally

mean a printed volume, when we use the term without any
further attribute. But a book need not necessarily be
printed to be a book, else the manuscript treatises pub
lished before 1600 could not have been prohibited as
books. Our text quite consistently applies the general
6 Hurley, /. c., p. 51. 8 Noldin, Theol. Moralis, Vol. II,
7 This is a decidedly new regula- 1914. n 7 O1 P- 7 2 6 f.
>

tion for which Card. Gasparri could

give no quotation.
432 ADMINISTRATIVE LAW

prohibition to all writings, no matter how published, so

they be but published, i. e., made accessible to all. As
long as a manuscript or book remains the exclusive private
property of the author, it cannot be called editus. A
printer is not eo ipso a publisher (editor). An author
may write a book for his own pleasure and have it
printed; as long as he keeps it entirely to himself, it is
"

not published."
 CHAPTER I

PREVIOUS CENSORSHIP

Previous censorship consists in the submission of a book

to the proper authority for inspection, examination, and
approval (or rejection). The law binds the author as
well as the publisher, placing both under the obligation
of submitting an intended publication to the proper au
thority. If the imprimatur, or permission to have the
book published, is given, this means not an approval of
its contents, but only the judgment of the respective
book may, under present circumstances,
authority that the
be read without detriment to faith or morals. 1

CAN. 1385

i. Nisi censura ecclesiastica praecesserit, ne edan-

tur etiam a laicis :

Libri sacrarum Scripturarum vel

i. eorundem ad-
notationes et commentaria;
2. Libri qui divinas Scrip turas, sacram theologiam,
historiam ecclesiasticam, ius canonicum, theologiam
naturalem, ethicen aliasve huiusmodi religiosas ac
morales disciplinas spectant; libri ac libelli precum,
devotionis vel doctrinae institutionisque religiosae,
moralis, asceticae, mysticae aliique huiusmodi, quam-
vis ad fovendam pietatem conducere videantur; ac
generaliter scripta in quibus aliquid sit quod religionis
ac morum honestatis peculiariter intersit ;

1 Noldin, /. c,, n. 708, p. 734.

433
 434 ADMINISTRATIVE LAW

3. Imagines sacrae quo vis modo imprimendae, sive

preces adiunctas habeant, sive sine illis edantur.
2. Licentiam edendi libros et imagines de quibus

in i, dare potest vel loci Ordinarius proprius auctoris,

vel Ordinarius loci in quo libri vel imagines publici

iuris fiant, vel Ordinarius loci in quo imprimantur, ita
tamen ut, si quis ex iis Ordinariis licentiam denega-
verit, earn ab
Ordinario petere auctor nequeat, nisi
alio
eundem certiorem fecerit de denegata ab alio licentia.

3. Religiosi vero licentiam quoque sui Superioris

maioris antea consequi debent.

This canon first lays down a general rule as to what

books must be submitted to ecclesiastical censorship, and
then designates the authority competent to grant the im
primatur.
i. The following books, even
though published by
laymen, must be submitted to ecclesiastical censure:
i. The Books of Holy Writ and annotations to and
commentaries on the same.
Hence the original text of each and every one of the

forty-five books of the Old Testament and the twenty-

eight books of the New Testament must be submitted to
ecclesiastical censorship. Also parts of the same (peri-
copes) and translations or versions, whether old or new.
Old versions are the Latin Vulgate as well as the Itala, the
Oriental versions of the Septuagint, the Syriac, Coptic,
and Armenian. New versions are those made into mod
ern languages. These translations must be submitted,
even if only parts or pericopes are to be published, for
instance, the Epistles and Gospels for Sundays and holy
For the text simply says libri sacrarum Scriptu-
"

days.
rarum," and can. 1384, 2 finds its application here.
Adnotationes are short explanations or glosses, either
 CANON 1385 435

continuous or partial, such as were made on single words

between the lines or in the margin, and are now generally

placed at the foot of the page (foot-notes). It does not

matter whether these notes are printed separately from, or
together with, the text, whether they are original or trans
lated, as our canon simply says, vel. Nor are foot-notes
on the pericopes exempt from this law.
Commentaries are treatises in the form of annotations
or explanations of the books of the Old and New Testa
ment, altogether or severally. What was said concerning
annotations also holds with regard to commentaries.
2. The second paragraph of I mentions three classes
of books as subject to ecclesiastical censorship, namely,
scientific, devotional,and general, especially,
(a) Books treating of Holy Scripture, sacred theology,
Church history, Canon Law, theodicy, ethics, and other
religious and moral disciplines.
Books on Holy Scripture here means the treatises
"
"

called introductions, not works of exegesis proper, for the

latter, being in the nature of a commentary, falls under

no. i. Introduction includes hermeneutics and "higher
2
criticism," so-called.
embraces treatises on dogmatic as
"

"Sacred theology
well as moral theology, either single tracts, or the whole,
written in any language, and published in any form.
Church history which is the scientific knowledge of
"

the internal and external development of the Society

founded by Jesus Christ, may be written as chronicles or
in the form of general accounts, biographies, monographs,
etc. It is true that the Church is distinct from the indi
3
viduals that compose it, but if any individual, for instance,
4
St. Augustine, is treated as the representative of a period

2 Pius X,
"

Lamentabili," July 4, 3 Hurley, /. c., p. 209.

1904, prop. i. 4 See Von Hertling s Augustinus
436 ADMINISTRATIVE LAW
or school of thought, the biography becomes part and
parcel of ecclesiastical history. Therefore such a book
must be submitted to censorship. The law does not, how
ever, apply to purely secular or political history. The
scope, then, or purpose of a book marks the dividing
line.

As to Canon Law, we all know that this is a distinctly

ecclesiastical discipline.
Natural Theology, or Theodicy is that part of philoso
phy which treats of God and His relations to His crea
tures from the standpoint of reason unaided by Revela
tion.
Ethics or moral philosophy, has for its object the moral
rectitude of human acts in accordance with the ultimate

principles of reason. To this discipline belong books on

sociology, unless they are written from the merely eco
nomical or political viewpoint.
"

would be difficult to explain the phrase, other such

It

religious or moral disciplines," since the sciences expressly

mentioned seem to exhaust the subject. Treatises on
Spiritism, hypnotism^ astrology (formerly also alchemy)
must find a place here because they usually touch religion
and morals.
(b) Liable to censorship are furthermore: large
and
small prayer-books and devotional, catechetical, moral,
ascetical, mystical, books and pamplets, even
and the like

though they seem to foster piety. To this class belong

Bible histories, missals with vernacular translation, cate
chisms, lives of Saints, the Imitation of Christ, and similar
Of a mystic character are The City of God
" "

5
books.

Weltgeschichte in Karakterbild- (Dec. Auth., n. 3427); also the

("

ern ") Mainz, 1902, without episco- translations of the Officium Parvum
pal imprimatur. B. M. V.; S. Kit. C, April 24, 1896,
5 S. C. P. F., Jan. 3, 1777 (Coll. ad i (n. 3827).
n. 519); S. Kit. C., Aug. 4, 1877
 CANON 1385 437

by Mary of Agreda, the writings of Anne Catherine

Emmerich, St. Catharine of Genoa, and others. Devotion
is not always piety and devotional writings require par

ticular vigilance. We may also place in this class ail

prophesies, private revelations, visions, etc., as well as

new devotions of every kind.
(c) The law finally subjects to ecclesiastical censorship
writings which contain anything that particularly
"

all

concerns religion and morals." No distinction is made

between books, but all are comprised that deal in any way
with religion or morality. The phrase
(<

peculiariter In
must be referred to the manner in which the sub
"

tersil
" "

ject is treated. "Peculiariter" is opposed to obiter or

"

perfund oric." The manner of treatment must be

measured by the length of the article or treatise. A long
treatise would not savor peculiarly of religion or moral

ity, if it contained only one or the other sentence bearing

on those subjects.
A question has been raised regarding so-called temper
ance leaflets* We will state our opinion fairly and
squarely. If these leaflets advocate absolute prohibition,

they should be forbidden, for prohibition is opposed to

the natural law and clearly touches ethics. If they are

merely intended to promote temperance, such leaflets

come under the category of moral writings, because tem

perance is one of the four cardinal virtues which in the

natural order belong to ethics, and in the supernatural
order, to moral theology. From every viewpoint, there
fore, these leaflets are subject to the censorship of the
Church.
\ 3. Sacred images, no matter how printed, and whether
with or without prayers, fall under ecclesiastical censor-

6 Cfr. Hurley, /. c., p. 214 f.

 438 ADMINISTRATIVE LAW
ship. It is evident that only stamped or printed
images
are intended here, because the text refers only to books
or things published in the form of printed matter. But
7
of these all kinds, new and old, are included, engrav
ings, photographs, chromos, lithographs, etc., etc. Not
included are oil or water-colors and statues. If an image
belong to the class of printed matter, it is immaterial how
customary or unusual it be; for here not the insolita
imago of can. 1279 is intended, but the image as such,
provided, of course, it be sacred. Sacred images are all
representations of the Blessed Trinity, of our Lord Jesus
Christ, of the Blessed Virgin, of the Angels, Saints, and
Blessed. Also images which represent a religious mys
tery, or a sacred scene, or groups of biblical events, or
emblems representative of mysteries. The text says it
matters not whether such images are printed with or
without prayers. If a prayer is added, either at the bot
tom or on the back, the picture also falls under no. 2 of
our canon.
2 and 3. The permission to publish books and
images mentioned in I may be granted by the local Ordi
nary of the author, or by the local Ordinary of the place
of publication, or, finally, by the local Ordinary of the

place where the books, etc., are printed. However, if any

one of these Ordinaries refuses the imprimatur, the au
thor is not allowed to ask it of another, unless the latter
has been informed of the refusal.
Religious must obtain the permission of their superiors
before applying for the episcopal imprimatur.
7 The text does not contain the (Comm., n. 20), no longer holds,
adjective novae found
" "

in the Not included are medals, because

Ofliciorum ac munerum,"
"

n. 15; these are not printed, but struck;

hence Vermeersch s view that new see Vermeersch, /. c.
designs only must be submitted
 CANON 1385 439

Our text is wider than that of the Leonine constitution 8

in admitting three Ordinaries as competent to give the

imprimatur. It is also more liberal in regard to Bible

editions, as will be seen under can. 1391. The local Or
dinary of course the bishop or the vicar-general, or
is

whoever goes by that name. Since superiors of exempt

religious are not local Ordinaries in the meaning of the
Code, it would be evident, even if it were not mentioned
in that such religious are not exempt from the obliga
3,
tion of asking the imprimatur of the diocesan bishop;
but they may do so through their publisher or printer.
If the local Ordinary himself wishes to publish a book,
he needs no imprimatur, even though the book were
9
printed and published outside of his diocese. The rea
son is that the author s Ordinary may give the imprimatur,

who, in our case, is the author himself.

Which of the three Ordinaries mentioned should be
asked to give the imprimatur is left to the judgment of
the author. But in order to prevent deception and to
uphold ecclesiastical authority, it is required that in case
one of the three Ordinaries has refused the imprimatur,
this fact must be stated to the other who is asked for
the imprimatur. The latter will probably demand the
reasons for the refusal either from the refusing Ordinary
or from the author.
Religious, exempt as well as non-exempt, also need the
permission of their superiors, who ought to subject every
book that is to be published to an examination by com
10
petent scholars.
8
"

Officiorum ac munerum," nn. his book was published outside his

7, 35. own diocese.

Formerly, as Noldin states (1. c.,
9 10 Trid., Sess. 4, De Editione et
n. an Ordinary needed the
710), Usu SS. Librorum; the superiors
imprimatur of another Ordinary if may abide by the verdict of the cen
sors.
 440 ADMINISTRATIVE LAW
Whether rule 37 of the Officiorum ac munerum
"
"

still holds, may well be doubted. This rule prescribed that

if an author residing in Rome wished to have a book
printed elsewhere than in the City, he needed only the
approval of the Cardinal Vicar and the Master of the
Sacred Palace. This rule rather restricts liberty and is
not in accord with 2 of can. 1385. Therefore we hardly
believe that one would be obliged to abide by it, unless a
local custom or written particular law would be super-
added to said 2.

OBLIGATIONS OF CLERICS AND LAYMEN

CAN. 1386

i. Vetantur consensu suo-

clerici saeculares sine
rum Ordinariorum, vero sine licentia sui Su-
religiosi
perioris maioris et Ordinarii loci, libros quoque, qui de
rebus profanis tractent, edere, et in diariis, foliis vel
libellis periodicis scribere vel eadem moderari.
In diariis vero, foliis vel libellis periodicis qui
2.

religionem catholicam aut bonos mores impetere so-

lent, nee laici catholici quidpiam conscribant, nisi iusta
ac rationabili causa suadente, ab Ordinario loci pro-
bata.

i. The secular clergy without the consent of their

Ordinary, and religious without the permission of their

superior and of the local Ordinary, are forbidden
i

publish books on secular subjects and to write for

>wspapers or
other periodicals, publications, or to act
>
The -coiisent of the Ordinary is here
editors of such.
JHgher from censorship proper, which requires a
ciearly distinct
.scientific examination, whereas the consent only means

a judgment connected with the manifestation of an act

 CANON 1386 441

of the will. However this does not take away from the
bishop the right of demanding specimen copies of a pub
lication or the title thereof nor does it prevent the bishop
;

from refusing his consent if he thinks the author or

editor incapable of treating the subject correctly and
creditably.
This consent is required even for literary products of
a purely worldly or technical character, no science or
11
topic being excepted. The reason is given in the above-
mentioned Constitution of Leo XIII, to an
"

wit, to give

example of ready obedience." Prompt submission is

also required in two other cases viz. when clerics wish ;

:

to contribute to periodic publications or if they desire to

act as managers or editors of such publications as diaria,

folia, libelli periodici. Diaria are newspapers, daily,

weekly, or biweekly. Folia are publications published
more or less irregularly, of undetermined size or number
of pages, be they leaflets or brochures. Libelli periodici
are quarterly, monthly, fortnightly, weekly, etc., maga
zines or reviews.
To
write for such publications, therefore, the secular

clergy need the permission of the bishop to whom they

are subject, regardless of where the paper or magazine
For the text simply says, su-
"

is printed or published.

orum" which refers to the clergy, not to the publication.

If we
say,
*
to whom
they are subject," we mean habitu
ally or legally, by virtue of incardination. Therefore a
clergyman on his vacation, who wishes to contribute to a

periodical publication, must obtain permission from his

own bishop, not from the Ordinary in whose diocese he
12
is sojourning.
ll S. C. pro Negot. Eccl. Ex- The local Ordinary of religious
12
traord., June 27, 1902, n. 3 (Anal. isthe bishop in whose diocese their
Eccl., X, 73). house is located; but we believe that
 442 ADMINISTRATIVE LAW
The
question naturally arises whether clergymen and re
ligious need the simple or double permission for each and
every article they contribute to any periodic publication.
From former legislation it would seem that regular cor
respondence or contributions are intended. Such at least
Sacrorum Antisiitum" of Sept. I,
"

is the tenor of the

1910, from which our

evidently taken: "Ad,
text is

sacerdotes quod attinet, qui correspondentium vel col-

laboratorum nomine vulgo veniunt, etc." would not We
" "

press the term scribere in our text, though this, too,

would seem to involve habitual writing. Hence we hardly
believe that a brief occasional article would need episco

pal consent. To
say that the publication of a notice of a
church or parish event, or funeral required
festival,
the special consent of the Ordinary or religious superior,
would render the law ridiculous. On the other hand, a
treatise or an elaborate
article on any important subject,

especially touches faith

if it and morals, or ecclesiastical
discipline, no doubt falls under the law. Also any im
portant manuscript which religious would like to publish.
Nor may religious with either simple or solemn vows pub
lish their writings anonymously or under an assumed
name, even with the local Ordinary s permission, if their
13
superior has refused to give his imprimatur.
It may be added that female religious, too, must abide
by this law.
"

Eadem moderari to direct or manage periodical pub

lications, also requires a double permission for religious,
and the permission of the ordinary for secular clerics.

This prohibition concerns the management or directorship

of all newspapers, pamphlets, and periodicals without ex-

the local Ordinary of any diocese in especially in the case of exempt re-
which a religious lives for some time, ligious.
may give the required permission, 13 Hurley, /. c., p. 228.
 CANON 1386 443

ception. The canon here is somewhat stricter, at least

in its wording, than the old law, but more logical and
consistent.
Are college papers included? The text does not make
a distinction, and hence they, too, need the permission of
the local Ordinary in whose diocese the board of managers
live, and of the religious superior, if religious are on the
board of directors. But if lay students constitute the
board, they need no permission from the local Ordinary.
Female religious, however, do, no matter how pious the
titleof their magazine may sound.
What if the Ordinary refuses to consent to the publica
tion of a book treating of secular matters only ? In that
case the author would do well to abide by the bishop s
decision, provided there is no reason to assume personal
spite. He may, however, demand the reason of the re
fusal. For although the Holy Office does not need to
state reasons, this prerogative cannot be extended to
its

the bishops, and the S. Congregation of the Index de

cided that bishops must give their reasons for refusing
the imprimatur in case a book is susceptible to correc
1*
tion.
The author has another expedient, namely that offered
in can. 1385, 2 ;
which allows him to seek another pub
lisher or printer. In doing so an author would only be
claiming a natural right.
2. Not even Catholic laymen much less clergymen
and religious may write for newspapers, pamphlets or
other periodical publications which are accustomed to at-
14 S. C. Ind., Sept. 3, 1898, and morals, he is surely also obliged
quoted by Hurley, who, in a circuit- to state his reasons for refusing to
ous way, concludes that the bishop is permit the publication of books of a
not bound to state the reasons (/. c., profane nature; the contrary opinion
p. 200, 224 f.) if he is bound to
; is frivolous and unworthy of the
give his reasons in matters of faith episcopal office.
444 ADMINISTRATIVE LAW
tack the Catholic faith or good morals. An
exception to
this rule may be made only for a
just and valid reason,
acknowledged to be such by the local Ordinary.
The publications to which even Catholic laymen should
not contribute by way of correspondence or collaboration
have been named above. Here a special class is singled
out which distinguished by its wicked purpose, i. c.,
is

chose which habitually attack the Catholic faith or good

morals. Is our so-called yellow press included in this
class of publications? It would be difficult to give a
positive answer to this question. For we cannot say that
they make it a practice to attack the Catholic faith, though,
on the other hand, their scandalous reports on suicides,

divorces, etc., are anything but favorable to good morals.

Yet as these reports are not strictly attacks on morality,
the solution depends on the general tendency of these
publications. We
think it must be admitted that regular
contributions from Catholic pens might promote the sale
of an objectionable paper and thereby further religious
indifTerentism. The law expressly permits extraordinary
or occasional contributions for solid reasons. Thus, for
instance, if a prelate or prominent priest is interviewed
on an important public question, it might be permissible,
nay even desirable, that he explain the Catholic position.
Again a correction, or the defence of Catholic teaching
against an attack might prove useful for the reason that
it would reach parties which a Catholic paper could not

reach.
VARIOUS EXCEPTIONS

CAN. 1387

Quae ad causas beatificationum et canonizationum

Servorum Dei quoquo modo pertinent, sine licentia
Sacrorum Rituum Congregationis edi nequeunt.
 CANON 1388-90 445

CAN. 1388

i. Indulgentiarum libri omnes, summaria, libelli,

folia, etc., in quibus earum concessiones continentur,
ne edantur sine licentia Ordinarii loci.
2. Requiritur vero expressa licentia Sedis
Apos-
tolicae ut typis edere liceat, quovis idiomate, turn col-
lectionem authenticam precum piorumque operum qui
bus Sedes Apostolica indulgentias annexuit, turn elen-
chum indulgentiarum apostolicarum, turn summarium
indulgentiarum vel antea collectum, sed nunquam ap-
probatum, vel nunc primum ex diversis concessionibus
colligendum.

CAN. 1389

Collectiones decretorum Romanarum Congrega-

tionum rursus edi nequeunt, nisi impetrata prius licen
tia et servatis conditionibus a Moderatoribus unius-

cuiusque Congregationis praescriptis.

CAN. 1390

In edendis libris liturgicis eorumque partibus,

itemque Htaniis a Sancta Sede approbatis, debet de
concordantia cum editionibus approbatis constare ex
attestatione Ordinarii loci in quo imprimuntur aut
publici iuris fiunt.

Matters pertaining to the canonisation and beatification

of servants of God may not be published without the

permission of the S. Congregation of Rites. Urban VIII

already ordered that the lives, deeds, and miracles of the
venerable servants of God should not be published with
out the approval of the Ordinary, who had to report each
446 ADMINISTRATIVE LAW
case to the Apostolic See, i. e., the S. Congregation of
Rites, in order that frauds, mistakes, and novelties might
be avoided. 15
Can. 1388 refers to books, summaries, booklets, leaflets,

etc.,containing grants of indulgences. These may not

be published without the permission of the local Ordinary.
The express permission of the Holy See is required for
publishing, any language, authentic collections of
in

prayers and good works enriched with indulgences by the

Apostolic See. The same express permission is required
for publishing lists of papal indulgences, and summaries
of indulgences, either already collected but not yet ap
proved, or to be made from various grants. Concerning
this we refer to can. 919, 2.

Can. 1389 demands the permission of the respective

officials for the republication of collections of the various

Roman Congregations. If such permission is granted,

the conditions laid down by the heads of the respective
congregations must be faithfully complied with. What
those conditions are is not explicitly stated. One of them
is that the original text must be reproduced ad literam.

Another one undoubtedly will be that a copy of the re

print shall be forwarded to the Cardinal Prefect or Sec
retary of the respective Congregation, provided permission
for republication is given.
" "

Notice the phrase, rursus edi ; it supposes that a

collection has already been made and published, as those
of the S. Rit. C. and the Propaganda.
Can. /Jpo concerns the publication of liturgical books,
or parts thereof, and litanies approved by the Holy See.
Reprints of these must agree with the approved text, and
the Ordinary of the place where they are printed or pub-
is S. Rit. C., July 31, 1821
"

Coelestis Hierusalem," July 5,1634, i ;

(n. 2617).
 CANON 1391 447

lished must testify to such conformity. Of this enough

has been said under canons 1257, 1259, and 1264.

BIBLE VERSIONS

CAN. 1391

Versiones sacrarum Scripturarum in linguam verna-

culam typis imprimi nequeunt, nisi sint a Sede Apos-
tolica probatae, aut nisi edantur sub vigilantia Episco-

porum et cum adnotationibus praecipue excerptis ex

sanctis Ecclesiae Patribus atque ex doctis catholicis-
que scriptoribus.
Translations of Holy Scripture into the vernacular
may not be printed, unless they are approved by the Apos
tolic See or published under the supervision of the

bishops, and are provided with notes taken chiefly from

the Holy Fathers and learned and orthodox writers.

By Holy Scripture here is understood the text of the

Old and New Testament. The plural seems to indicate
that parts of Holy Writ are also intended. Hence even
a portion of the Old Testament, say the Law, the Prophets
and Ketubim, separately taken, fall under this rule; also
the Gospels and the Epistles of St. Paul, when translated
into the vernacular. Old versions, like the Syriac and
Latin, which cannot be called vernacular in the proper
sense, are excluded. But Arabic, English, French, Ger
man, Indian, Italian, Spanish, and the modern Slavic lan
guages, also Chinese and Japanese, are vernacular, and
translations of the Bible or any part thereof into any of
these languages fall under the present canon, no matter
whether the translators are Catholics or non-Catholics.
The approving authority is twofold: the Apostolic See
and the bishop, the latter under certain conditions only.
 448 ADMINISTRATIVE LAW

(a) The Holy See may approve any versions with or

without notes ; it may even which
however, not is,

likely to occur approve translations made by non-

Catholics ;

(b) The bishop may approve any translation made un

"

der his supervision. Vigilantia episcopormn" here has

a special meaning, namely, that the translation must be
carefully compared with the original text approved by
the Church, or, at least, must substantially agree with a
translation already approved.
Of course, a difficulty may arise from the fact that,
with the exception of the Latin Vulgate, there is no
approved original text, the Greek text, and much
more so the Hebrew-Massoretic text, being subject to

many variants. The episcopal censor, therefore, had

better keep to the Latin text, but he may make use
of the original in doubtful cases. The translator as
well as the censor must keep in mind the following
canon, 1392.
But supervision is not enough notes are also required. ;

These notes should be taken from two sources, the writ

ings of the Fathers and learned Catholic authors. The
period of the "Fathers," as is generally assumed, ends
with the death of Isidore of Seville, A. D. 636. After that
time we speak of Catholic writers. The prescribed anno
tations may be taken from the original works of the
or from the current
" " "

Fathers Catenae," so they be but

genuine. The Catholic authors here intended are not

only those of the Scholastic period, but also of modern
times, provided only they be really Catholic and learned.
Purely mystic or devotional writings, where the allegorical
sense of the text is unduly emphasized, should be entirely
discarded, or at least used sparingly.
Our text employs a term which is not to be found in
 CANON 1392 449

Pope Leo s Constitution ; it is the word praecipue,

signi
fying that the notes should be taken chiefly from Catholic
authors. This seems to imply that non-Catholic writers
need not be entirely neglected. The historical and
archaeological explanations and the critical readings of
non-Catholic scholars may therefore find a place in the
translations approved by the bishops.

WHEN A NEW APPROBATION IS DEMANDED

CAN. 1392

Approbatio textus originalis alicuius operis,

i.

neque eiusdem in aliam linguam translationibus neque

aliis editionibus suffragatur quare et translationes et;

novae editiones operis approbati nova approbatione

communiri debent.
2. Excerpta e periodicis capita seorsim edita
novae editicnes non censentur nee proinde nova appro
batione indigent.

i. The approbation of the original text of a work

does not imply approbation of translations into other

languages or of new editions therefore translations as ;

well as new editions of a work already approved need a

new approbation. Thus, for instance, a translation of
the Little Office of the B. M. V. into the vernacular needs
a new approbation every time it is republished. The Or
dinary may grant this approbation if the text agrees with

that approved by the Church, which agreement is left to

the conscientious judgment of the bishop 16 to determine.
The same rule applies to translations of the Roman
Missal. 17

16 S. Kit. C., Sept. 4, 1875 (n. 17 S. Kit. C., Aug. 4, 1877 (n.
3373). 3427).
450 ADMINISTRATIVE LAW
One remark must, however, be added. Our text speaks
of editions and translations. From this it must be con
cluded that mere reprints, either phototyped or lineotyped,
accurately reproduced, require no new approbation. For
it is evident that the of the law is to
purpose prevent
fraud or corruption of the original text.
2.Extracts or excerpts from periodicals, published
separately, are not new editions and therefore require no
new approbation. 18 If these so-called reprints (in French

tirages a part) cover a series of articles and develop

into a book and are published in book form, do they re

quire ecclesiastical approbation? We

believe with Nol-
din 19 that they do, for the reason that the text mentions
only excerpta capita, single extracts or chapters. Besides,
there is always danger that such a reprinted book may
contain substantial changes from the original text as pub
lished in the periodical.

Reprints of single articles, or, if the same subject was

treated in two or three issues of a periodical, of several
articles forming one chapter or treatise, need no new

approbation.

DIOCESAN CENSORS

CAN. 1393

i. In universis Curiis episcopalibus censores ex

officio adsint, qui edenda cognoscant.
2. Examinatores in suo obeundo officio, omni per-
sonarum acceptione deposita, tantummodo prae oculis
habeant Ecclesiae dogmata et communem catholico-
rum doctrinam quae Conciliorum generalium decretis
aut Sedis Apostolicae constitutionibus seu praescri-
18 S. C. Ind., May 23, 1898, ad 3 i9 De Praeceptis, 1914, ed. u, n.

(Coll. P. F., n. 2000). 706, p. 732 f :

 CANON 1393 451

ptiohibus atque probatorum doctorum consensu conti-

netur.
3. Censores ex utroque clero eligantur aetate, eru-
ditione, prudentia commendati, qui in doctrinis pro-
bandis improbandisque medio tutoque itinere eant.
4. Censor sententiam scripto dare debet. Quae si
faverit, Ordinarius potestatem edendi faciat, cui tamen
praeponatur censoris iudicium, inscripto eius nomine.
Extraordinariis tanturn in adiunctis ac perquam raro,
prudenti Ordinarii arbitrio, censoris mentio omitti po-
terit.

Auctoribus censoris nomen pateat nunquam,

5.

antequam hie faventem sententiam ediderit.

These rules are chiefly taken from the Motu proprio
of Pius X,
"

Sacrorum Antistitum," of Sept. I, 1910,

which was directed against Modernism. 20 They are :

i. Every diocese must have officially appointed cen

sors, for the examination of writings that are to be pub

lished. Ex officio means that there should be a regular
censor, not merely one chosen for an emergency. The
diocesan censors should be mentioned in the Catholic
Directory.
2. The examiners in discharging their office, should
set aside all human
respect and guide themselves solely
by the dogmatic teaching of the Church as contained in
the decrees of the general councils, in papal constitutions
and decisions, and in the consent of approved doctors.
This does not mean, however, that any opinion or system
tolerated by the Church is to be condemned if it does not
fit in with the views of the censor.
20 Of course, these rules are not the Index, Benedict XIV, Sollicita
"

entirely new, having been to a great ac provida," July 8, 1753, etc., see
extent, embodied in former docu- Hilgers, /. c., p. 12, p. 59 f. ; p. 535
ments like that of Clement VIII on ff.; A. Ap. S., II, 661.
452 ADMINISTRATIVE LAW

3. The censors should be taken from both the secular

and the regular clergy, and be men of mature age, dis
tinguished by learning and prudence, who can safely keep
the golden mean in approving or rejecting doctrines.
4. The censor must give his verdict in writing. If
the verdict favorable, the Ordinary shall give his per
is

mission to publish (i. e., the imprimatur}, which must be

"

preceded by the censor s Nihil obstat")

verdict
(the
and his signature. Only in very rare cases and under
extraordinary circumstances, if the Ordinary deems it
prudent, may the name of the censor be omitted.
5. The censor s name must not be made known to

authors before he has given a favorable opinion. This

rule clearly presupposes thatmore than one censor is
appointed in each diocese, as I insinuates by using
the plural number (censores).
We may quote here a remark taken from the Sa~ "

crorum antistitum" namely, that the title of censor has

no juridical or canonical value and contributes no weight
to the private opinion of the official entrusted with this

duty. Therefore if the censor makes a mistake the

" "

author has no guaranty in the Nihil obstat that his

book will not be put on the index.

THE IMPRIMATUR MUST BE GIVEN IN WRITING

CAN. 1394
i. Licentia, qua Ordinarius potestatem edendi fa-

cit, in scriptis concedatur, in principio aut in fine libri,

folii vel imaginis imprimenda, expresso nomine conce-

dentis itemque loco et tempore concessionis.

2. Si vero licentia deneganda videatur, roganti

auctori, nisi gravis causa aliud exigat, rationes indi-

centur.
 CANON 1394 453

I. The imprimatur should be given in

writing and
be placed either in the beginning or at the end of the
book, leaflet or image, together with the name of the
grantor, and the place and date of the grant. It is

strongly advisable to print the year of publication on

the title page, a practice which is neglected by some,
especially English, publishers.
2. If the imprimatur is denied, the reasons should

be given to the author upon demand, unless a weighty

motive counsels the contrary. (See can. 1386.)
 CHAPTER II

THE PROHIBITION OF BOOKS

Whilst previous censorship chiefly affects authors, and

the faithful at large only indirectly, this second chapter is
directly intended to safeguard the faith and morals of all
Christians. We purposely say all Christians, not merely
Catholics, because morality is something universal and
common to all who believe in Christ. Of course, the
legislator does not concern himself with those outside the
Church; but Christians of all denominations ought to be
grateful for this directive norm, which, as law, binds all

Catholics. The censorship with which we now deal is

called repressiva, because it aims at suppressing bad litera

1
ture.

WHO HAS THE POWER TO FORBID BOOKS

CAN. 1395

i. lus et officium libros ex iusta causa prohibendi

competit non solum supremae auctoritati ecclesiasticae

pro universa Ecclesia, sed pro suis subditis Conciliis
quoque particularibus et locorum Ordinariis.
2. Ab hac prohibitione datur ad Sanctam Sedem
recursus, non tamen in suspensive.
Etiam Abbas monasterii sui iuris et supremus
3.

religionis clericalis exemptae Moderator, cum suo Ca-

pitulo vel Consilio, potest libros ex iusta causa suis
l S. C. Ind., Aug. 24, 1864 (Coll. P. F., n. 1264).

454
 CANON 1395 455

subditis prohibere; idemque, si periculum sit in mora,

possunt Superiores maiores cum proprio Consilio,
alii

ea tamen lege ut rem quantocius deferant ad supre-

mum Moderatorem.

i. The right and

duty to forbid books for a just
cause belongs to the supreme ecclesiastical authority for
the whole Church, and to particular councils and local
Ordinaries for their respective subjects.
2. Recourse from this prohibition may be had to the
Apostolic See, but only in devolutivo.
The act of forbidding books an exercise of jurisdic
is

tion, part of which is the teaching office of the Church,

which belongs to those who are judges in matters of
faith and morals. The supreme authority of the Church
exercises its influence over the entire Church, whilst the

bishops exercise theirs only over those who are subject to

"

them. Therefore the text properly says pro suis sub :

ditis." From this we naturally conclude that exempt re

ligious are not juridically bound to obey the episcopal
injunction, that is to say, no penalty can be pronounced
against them for not observing the Ordinary s edict.
Morally they may be obliged to abide by the bishop s order
because of scandal or the danger of weakening the epis
2
copal authority, especially among laymen.
If a particular council forbids a book, are the exempt
religious living within its heed that
jurisdiction obliged to
prohibition? If the council is a diocesan synod, the ex

empt religious are not obliged to obey, since the sole legis
lator isthe local Ordinary, to whom they are not subject.
If, however, a provincial or plenary council is understood,
its decrees, we believe, are binding on the whole territory,
2 Thus Vermeersch, De Prohibi- (ed. i); Noldin, De Praeceptis, ed.
tione et Censura Librorum, n. 12 n, n. 704, p. 729.
456 ADMINISTRATIVE LAW

especially if they are approved by Rome, and therefore

3
also oblige exempt religious.
2 admits recourse, not appeal, to the Holy See, but
such recourse has no suspensive character. Therefore
the prohibition remains in force until the Apostolic See
decides otherwise.
Abbots of autonomous monasteries and the su
3.

periors general of exempt clerical institutes also may, for

just reasons, forbid books to their subjects but they must ;

proceed together with their chapter or consultors. There

is a juridical difficulty in this clause, because, as said
above, the act of forbidding books rests on jurisdiction.
This text is entirely new, and seems strange, as these
superiors are not ordinarily considered to be judges in
matters of faith. 4 Yet it is only the logical consequence
of i, because the local Ordinaries have no jurisdiction

over exempt religious. Therefore the reason advanced by

the S. C. of the Index for extending the authority to
forbid books to local Ordinaries and delegates of the
Apostolic See which extension is now antiquated
(f
may be here applied. The pravorum librorum collu-
vies," the flood of perverse literature which is daily in
creasing in volume, clearly made it imperative to act
promptly and efficaciously for the protection of the faith
ful, and this could be accomplished only by instructing
the domestic authorities to stop the danger at the very be
5
ginning and, as it were, on the spot.
Whether the chapter or the counsellors have a decisive,
or merely an advisory vote, is not explicitly stated in the

This seems to follow from can.

3 mentions territorial, not personal,
291, 2, because such decrees would obligation,
affect also religious, and we hardly 4 Can. 501, 2.

believe that exemption could be 5 S. C. Ind., Aug. 24, 1864 (Coll.

claimed in this case, although we P. F., n. 1261).
readily grant that can. 291, 2 only
 CANON 1395 457

text. This would seem to be a matter for the Constitu

tions to decide. To us it appears that a decisive vote is

intended, to be given at the regular meeting, for the

matter is of great importance. If there is a regular chap
ter,such as an independent monastery generally has, it is
not enough that the abbot call the consultors; he must
convene the chapter. Capitulum refers to the abbot of an
autonomous monastery, consilium to the superior general.
The
"

text continues : If delay should be dangerous,

the other higher superiors may, with the cooperation of
their counsellors, also forbid books, but they are obliged
to report the matter immediately to the superior gen
eral." The alii superiores maiores here intended are the
provincials, as explained under can. 488, n. 8.
etc., How
ever, note the difference between the first and the second
clause. The sentence of the abbots and superiors general
is final and no further report is required, whereas that

of inferior superiors is only provisional and requires the

sanction of the superior general.
The reader may perhaps inquire whether the second
clause applies to female congregations. No, because they
lack a fundamental condition, viz., jurisdiction. But we
do not mean to say that a superioress would not be entitled
to forbid a book to one of her religious, for this would
be an exercise of domestic authority. But she could not
forbid it to all as dangerous to faith and morals. Her
prohibition would be a merely precautionary measure,
and she would have to act according to can. 1397, I.
 458 ADMINISTRATIVE LAW

BOOKS FORBIDDEN BY THE APOSTOLIC SEE

CAN. 1396

Libri ab Apostolica Sede damnati ubique locorum

et in quodcunque vertantur idioma prohibit! censean-
tur.

Books condemned by the Apostolic See must be con

sidered as forbidden everywhere and in whatsoever lan
guage they may be translated.
The term Apostolic See " "

comprises the Sovereign

Pontiff as well as the S. Congregations, especially those
directly concerned with the proscription of books.
(a) The Pope himself may forbid a book either by an
Apostolic letter," or without such a letter. There are
"

on record four examples of books forbidden by Apostolic

letterand without the cooperation of any congregation. 6
(b) The Holy Office has issued about 900 decrees for
bidding books from 1600 to IQOO.
7
To this congregation
our Code (can. 247, 4) has affiliated the famous Con

gregation of the Index, which has the special duty of

examining and prohibiting books.

(c) Other Congregations whose decrees figure in the
new Index are that of S. Rites and that of Indulgences
(the latter now
incorporated with the S. Poenitentiaria).
Besides, other S. Congregations may take cognizance
all

of and condemn books having special reference to their

8
respective departments.
As to the authority of the decisions rendered in re
gard to books the following may safely be stated :

The decisions given either by the Pope himself, or by

/. c., p. 89; Geno-

6 Cfr. Hilgers, 7 Ibid., p. 88.

vesi, Langeois des Chatellier, De 8 Ibid., p. 89.

Potter, Siegwart Miiller.

 CANON 1397 459

a congregation of the Roman Court do not, per se, con

tain a dogmatic or an ex cathedra definition, i. e., an infal
lible verdict as to the doctrine defended or proposed in
the forbidden book. It goes without saying that the Pope

may issue a decree condemning a book with infallible

authority, but in that case his intention must be apparent

from the wording of the decree. The Thursday sessions
of the Holy Office, on account of the personal presence
of the Sovereign Pontiff, are regarded as more weighty
than the others; but even the decrees issued at these
sessions cannot be called infallible or irreformable. 9
It need not be added that these decisions must be re
ceived with the greatest respect and obedience and with
internal as well as external submission.
Our canon says that the books condemned by the Apos
tolicSee must be considered forbidden everywhere. The
reason is because the Holy See is the supreme tribunal
in matters of faith and morals. Books of purely local
interest usually are left to the local Ordinaries. This
also explains why translations of forbidden books are also

forbidden, for the difference of language is merely acci

dental. The poison is the same, although the channel
may differ.

THE OBLIGATION OF DENOUNCING BOOKS

CAN. 1397

i. Omnium fidelium est, maxime clericorum et in

dignitate ecclesiastica constitutorum eorumque qui do-

ctrina praecellant, libros quos perniciosos iudicaverint,
ad locorum Ordinaries aut ad Apostolicam Sedem de-
ferre; id autem peculiari titulo pertinet ad Legates
9 Ibid., p. 74 f .
; p. 88.
460 ADMINISTRATIVE LAW
Sanctae Sedis, locorum Ordinaries, atque Rectores
Universitatum catholicarum.
2. Expedit ut in pravorum librorum denuntiatione
non solum libri inscriptio indicetur, sed etiam, quan
tum fieri potest, causae exponantur cur liber prohi-
bendus existimetur.
3. lis ad quos denuntiatio defertur, sanctum esto
denuntiantium nomina secreta servare.
4. Locorum Ordinarii per se aut, ubi opus fuerit,

per sacerdotes idoneos vigilent in libros, qui in proprio

territorio edantur aut venales prostent.

5. Libros qui subtilius examen exigant vel de qui-

bus ad salutarem effectum consequendum supremae

auctoritatis sententia requiri videatur, ad Apostolicae
Sedis iudicium Ordinarii deferant.

Denunciation savors of sycophancy, yet it

may become
an official A
prosecuting attorney, for instance,
duty.
has to denounce crimes and criminals. Every society
which cares for the observance of its laws must have
custodians and guardians of the public welfare. Protes
tant sectspromoted sycophancy by giving part of the fine
10
imposed upon the guilty to their denouncers. The
Catholic Church does not hold out any material gain, but
imposes a strict obligation on all concerned. However,
there is a gradation of duty in regard to denouncing.
Those who are bound ex officio, i. e., the official guardians
and judges in matters of faith and morals, are obliged
in justice to denounce transgressors. The obligation is
grave, as a rule, when the matter is serious, and the dam

age resulting from negligence would be great. Ordinary

Christians on the other hand are as a rule bound to make
10 Cfr. Hilgers, /. c. pp. 70, 270 and elsewhere, for inst., the Nether-
Switzerland denuncia-
"

(in
"

free lands.
tion flourished), p. 304 (Hungary)
 CANON 1397 461

denunciation only when the matter is very important, as

when a book causes great injury to faith and morals, or
if a positive law imposes denunciation. Besides, it is
evident that less educated persons are as a rule exempt
from the obligation of denouncing books, unless their
conscience raises an irresistible scruple, in which case
they may refer the matter to the confessor. But cultured
Catholics who move in the higher circles of society most
certainly are bound to perform this duty. It is a natural
11
duty enforced by positive law. Hence our canon rules:
1. That it is the duty of all the faithful, especially of

clergymen, ecclesiastical dignitaries and persons distin

guished by learning to denounce books which they deem
pernicious, to the local Ordinaries or to the Apostolic See.
More especially duty incumbent on papal legates,
is this

local Ordinaries, and the rectors of Catholic universities.

The last named organizations in the Middle Ages always
were conspicuous for their zeal in maintaining orthodoxy,
as is proved by their statutes, which forbade the pro
fessors as well as librarians to publish or sell manuscripts
that had not been corrected and examined by the fac
12
ulty. Now-a-days, too, on account of the number of
students as well as by reason of extensive literary ac
quisitions and communications, the Catholic universities
are favorably situated for watching scientific productions.
2. When denouncing a book it is expedient that not

only the title of the book be indicated, but also the ob

jectionable passages be singled out which call for a pro
hibition. Such cooperation facilitates the? work of the
consultors and censors, who are usually overburdened,
and, besides, guarantees the acumen and sincerity of the
denouncing person.
11 Cfr. "

OfKcionim ac munenim," n. 27 ff.

12 Hilgers, /. c., p. 404.

462 ADMINISTRATIVE LAW

3. Those who receive the denunciation, i. e.,

usually
the officials of either the Roman or the diocesan court,
are strictly bound to keep the name of the denouncer se
cret. This is a grievous obligation, enhanced for the
officials of the Sant Uffizio by their sacred oath. The
Secretary of the S. Congregation, however, is authorized
to communicate to the author the objections made to his

book, but he may not divulge the name of the denouncer

or censor. 13
4. The local Ordinaries, either personally, or, if nec

essary, through capable priests, should watch the books

that are published and sold in their territory. This was
the duty of the so-called vigilance commissions prescribed
by Pius X
against the Modernists.
14
Although the Code
does not enforce this law, the Holy Office has decided
that it remains in force until the Apostolic See orders
15
differently.
The members of the diocesan vigilance commission may
perform their duty at regular sessions, to be held every
16
other month, or by written communication. It is clear

that an effective control can be exercised only over Catho

lic firms, who may be deprived of their title of Catholic

book-sellers if they refuse to obey episcopal orders.

Even if a book has the imprimatur, but is proved to be
infected with modernism, it must be withdrawn from
17
sale or exhibition. Priests, especially pastors and con
fessors, should watch over the reading of the faithful,
particularly over circulating libraries and also public
libraries. Much can be accomplished by prudent vigi-
13 Benedict XIV,
"

Sollicita ac 16 S. C. Consist., Sept. 25, 1910,

pro-ifida," July 9, 1753, 12. ad II, III (A. Ap. S., II, 740 f.).
14 "

Sacrorum Antistitum," Sept. 17 "

Sacrorum Antistitum," n. Ill

i, 1910 (A. Ap. S., II, 664). (A. Ap. S., II, 660).
15 S. O., March 22, 1918 (A. Ap.
S., X, 136).
 CANON 1398 463

lance in keeping these institutions free from objectionable

books.
5. Books which require a more thorough examination
or call for the judgment of the supreme tribunal, should
be referred to the Holy See by the Ordinaries by all
Ordinaries, not only the diocesan bishops. Sometimes the
matter at issue may not be delicate or difficult, but the
author s name and reputation require an emphatic and
more solemn sentence, to produce the desired effect.

THE EFFECTS OF PROHIBITION

CAN. 1398

i. Prohibitio librorum id efficit ut liber sine debita

licentia nee edi, nee legi, nee vendi, nee retineri, nee in
aliam linguam verti, nee ullo modo cum aliis commu-
nicari possit.
2. Liber quoquo modo prohibitus rursus in lucem

edi nequit, nisi, factis correctionibus, licentiam is dede-

rit qui librum prohibuerat eiusve Superior vel suc

cessor.

i. prohibition of books has this effect that a

The
forbidden book may not be published, nor read, nor kept,
nor sold, nor translated into another language, nor com
municated to others in any way.
The term edere (to publish) concerns the author, the
editor, and the printer the author of the book is forbidden
:

to have it printed and published; the editor may not sell

it, and the printer may not print and
bind it, either per

sonally or through others. Accessory helpers and remote

cooperators are hardly affected, as otherwise there would
be an indefinite number of persons included.
Reading a book means the operation by which the
464 ADMINISTRATIVE LAW
contents of a book are conveyed to the mind through the
senses of vision or hearing. If one would employ an
other to read a forbidden book to him, he would certainly
read it himself and would incur the penalty of the law. 18
To
keep a book (retinere) means to possess it perma
nently as one s personal property or to have it in one s
possession temporarily or transiently so as to be able to
make free use of it. Librarians are not said to keep,
but rather to guard the books entrusted to their care.
The length of time is immaterial, but must amount to a
somewhat protracted action, as the reduplicative par
ticle re indicates.
Books may be sold in stores or at auction, at wholesale
or retail, of which more under can. 1404.
What translations are is generally known. Here we
will only observe that it does not matter whether the ob

jectionable passages or parts of a forbidden book are

omitted or explained in the translation; as long as the
original text is forbidden, the translation is also forbidden,
unless expressly approved.
Communicare aliis means to loan a book to others or to

exchange it for another. It may also imply making the

contents known In this latter sense the reading
to others.
of a forbidden book to others, for instance, by a teacher
19
to his pupils, is forbidden.

18 To read a book means to as- also those who read the proofsheets
similate a considerable part thereof of a book.
(Vermeersch, /. c., n. 32, n. n); 19 Under this heading as well as
the opinion of St. Alphonsus, re- under that of "

retaining
"

fall res-

ferred to by Noldin (/. c., n. 702, p. taurants, hotels, boarding houses,

728), and opposed to what we say etc.,which keep objectionable papers
in the text, is contrary to Reg. luris and magazines and place them at the
72 in 6. Of course, if one would disposal of their guests. The own-
hear some parts of a forbidden book ers of these places are certainly not
read by mere chance, he would not allowed to keep literature which is
fall under the law. Readers are manifestly contrary to faith and
morals.
 CANON 1398 465

Here may be arddedsome explanations given by the

Hoiy Office. A book may not be read, even if the con
tents are not understood or the errors are not
accepted.
This applies also to Protestant Bible translations
they :

may not be read eventhe missionaries, for instance,

if

have corrected the erroneous passages. 20 Neither may a

forbidden book be read or retai-ned for a good and holy
21
purpose.
Books which are forbidden with the clause, donee
"

^xpurg-entur," may not be retained until they have been

22
corrected.
2. A book forbidden no matter how, may not be re-

published until after it has been corrected and the one

who forbade it, or his superior or successor, has granted
permission to republish it. Therefore, if the bishop has
forbidden a book, and recourse was had to the Roman
Congregation, who granted the imprimatur, the book may
be published. Note also the term quoquo modo, in what
ever manner forbidden. The Constitution of Leo XIII
(n. 31) applied that rule to books prohibited by the Apos
tolic See. But our text says in a general way, no mat
ter how and by whom forbidden, whether by general
rules or special prohibition, whether by the Ordinaries or

by the Apostolic See. The latter is always ready to ac

cept corrections made by the author, provided he has
duly submitted himself and his corrections are accepted
by the examiners.
20 S. O., July 26, 1848 (Coll. 22 Prop. 45 damn., March 18, 1666
P. F., n. 1030). (Denzinger, n. 1016).
21 S. O., June 29, 1817 (ibid.,
n. 718).
466 ADMINISTRATIVE LAW

LIST OF FORBIDDEN BOOKS

CAN. 1399

Ipso iure prohibentur :

i. Editiones textus originalis et antiquarum versio-

num catholicarum sacrae Scripturae, etiam Ecclesiae
Orientalis, ab acatholicis quibuslibet publicatae item- ;

que eiusdem versiones in quamvis linguam, ab eisdem

conf ectae vel editae ;

2. quorum vis scriptorum, haeresim vel schi-

Libri
sma propugnantes, aut ipsa religionis fundamenta quo-
quo modo evertere nitentes ;

3. Libri qui religionem aut bonos mores, data opera,

impetunt ;

4. Libri quorum vis acatholicorum, qui ex professo

de religione tractant, nisi constet nihil in eis contra
fidem catholicam contineri;
5. Libri de quibus in can. 1385, i, n. i et can. 1391 ;

itemque ex illis de quibus in cit. can. 1385, i, n. 2,

libri ac libelli qui novas apparitiones, revelationes, vi-

siones, prophetias, miracula enarrant, vel qui novas

inducunt devotiones, etiam sub praetextu quod sint
privatae, si editi fuerint non servatis canonum prae-
scriptionibus ;

6. Libri qui quodlibet ex catholicis dogmatibus im-

pugnant vel derident, qui errores ab Apostolica Sede
proscriptos tuentur, qui cultui divino detrahunt, qui
disciplinam ecclesiasticam evertere contendunt, et qui
data opera ecclesiasticam hierarchiam, aut statum cle-
ricalem vel religiosum probris afficiunt ;

7. Libri qui cuiusvis generis superstitionem, sorti-

legia, divinationem, magiam, evocationem spirituum,
aliaque id genus decent vel commendant ;
 CANON 1399 467

8. Libri qui duellum vel suicidium, vel divortium

licita statuunt, qui de sectis massonicis vel aliis eius-
dem generis societatibus agentes, eas utiles et non per-
niciosas Ecclesiae et civili societati esse contendunt;
9. Libri qui res lascivas seu obscenas ex profcsso
tractant, narrant, aut decent;
io. Editiones librorum liturgicorum a Sede Aposto-
lica apprabatorum, in quibus quidpiam immutatum
fuerit, ita ut cum authenticis editionibus a Sancta Sede

approbatis non congruant;

n. Libri quibus divulgantur indulgentiae apocry-
phae vel a Sancta Sede proscriptae aut revocatae ;

1 2.
Imagines quoquo modo impressae Domini No-
stri lesu Christi, Beatae Mariae Virginis, Angelorum

atque Sanctorum vel aliorum Servorum Dei ab Eccle

siae sensu et decretis alienae.

By law (i. e., common law) are forbidden :

i. Editions of the original text and of ancient Catholic

versions of Holy Scripture, also of the Oriental Church,
which have been published by non-Catholics also trans ;

lations of the same into any language made or published

by non-Catholics.
The original text of the O. T. is in Hebrew, except por
tions of the Book of Esdras and about half of Daniel*
which are written in Chaldean. The Books of Judith^
Tobias, Ba-ruch, Ecclesiasticus, I Machabees and parts of
Daniel were written either in Hebrew or in Chaldean, but
are preserved only in translations, of which the Greek
Septuagint is the oldest. The book of Wisdom, II Macha
bees and the whole of the N. T. were composed in Greek\
and have come down to us in that language.
Ancient translations are several Greek and Chaldean
translations of the O. T. a Samaritan version of the
;
 468 ADMINISTRATIVE LAW

Pentateuch, some Syriac versions (especially the Peshitto

of the 1st century), several Arabic (mainly made in the
Xth century by a Jewish rabbi), one Armenian (IVth
century) one Coptic (Illrd century) one Ethiopian (IVth
century), one Slavonic, one Gothic (by Wulfilas, IVth
century) and especially the Latin versions called Itala
;

and Vulgate. 23 All these texts and versions, if published

by non-Catholics, are forbidden, for the reason that there
is danger of perversion and hypercriticism, which may

lead to the elimination of genuine texts or wrong punctua

tion, etc. By issuing this prohibition, of course, the
Church does not wish to slur well-deserving non-Catholic
editors or their work. She merely desires to safeguard the
text of S. Scripture and the faith of her children.
More liable to carelessness and perversion than the an
cient versions are the translations into modern languages,
of which the King James Bible furnishes an example.
Most of them entirely omit the so-called deutero-canonical
books and thus offer a mutilated Bible.
2 The books of writers defending or championing
heresy and schism, or attempting in any zvay to under
mine the very foundations of religion.
The text omits the term
"

apostates," found in the

Leonine legislation, for the reason, apparently, that they
are included either in this paragraph or the following two.
Propugnare means an argumentative defence. Heresy
and schism have been defined in can. 1325, 2.

The foundations of religion are the fundamental truths

of both the natural and the supernatural, i. e., revealed,
order, the existence of God, the immortality of the
soul, the possibility and reality of miracles, etc., as gen
erally set forth in handbooks of fundamental theology or
23 Seisenberger, Practical Handbook for the Study of the Bible, (Engl.
Transl.) 1911, p. 213; p. 235.
 CANON 1399 469
2*
apologetics. The undermining, evertere, may be done
by casting ridicule upon these fundamental truths hence ;

satirical, also sceptical writings would suffice.

I Books
3. which purposely attack religion
or good
morals. Data opera appears to mean the &ame as ex
profcsso, and is opposed to such expressions as per-
functorie and obiter. It may be, how.ever, that data

opera is intended to signify the intention. This woukl

have to manifest itself in some way, whereas ex professo
rather refers to the way and style of handling the argu
ments or subject. Practically the two phrases are hardly
to be distinguished from each other.
What
understood by religion is not expressly de
is

termined, but there can be no doubt that the term here

denotes first and above all the true religion of Christ, and
secondarily natural religion, which governs the relations
between God and His creatures.
Good morals comprise the principles laid down by
" "

ethics as well as moral theology, not only the system

as a w-hole, but any part of it. Thus, for instance, a book
or profiteering would no doubt
" "

defending race suicide

be opposed to good morals.
Impetere means not only to make incoherent statements,
as is done in newspapers, but to launch an elaborate or a
systematic attack.
4. Books by non-Catholics which professedly treat of
religion, unless it is certain that they contain nothing con
25
trary to the Catholic faith.
The author must be a non-Catholic, i. e. } a pagan, Jew,

24: Thus Wernz, lus Decret., Vol. ligious foundations; it is not true
III, ed. i, p. 119, n. in. Ver- that all these are included in heresy
meersch (/. c., n. 13) excludes and schism, for not all heretics and
"

schismatics attack them,

"

praecipua dogmata ipsius fidei

and seems to insist too much on the 25 Wernz, /. c.; Hurley, /. c., p.
distinction between scientific and re- 62.
470 ADMINISTRATIVE LAW

Moslem, heretic, schismatic, or an apostatized Catholic,

for our Code always uses the term non-Catholic in this
wide sense.
The phrase "

ab acatholicis quibuslibet
"

in no. I of the
present canon shows that, as in the Constitution of Leo
*

XIII, so here also the term must be

"

non-Catholic
26
interpreted in the widest sense.
The
subject rs religion, without any further determina
tion, therefore natural as well as supernatural religion,
for in the final analysis all religion affects the attributes of
God.
The modeof treating religion must be ex professo,
which, as stated before, signifies not a mere transient or
cursory statement, but a formal and developed argument
dealing with at least a notable and considerable part of
the subject in question. Such, for instance, are sermons
or discourses written by non-Catholics, histories of re
ligion, etc.
The
"

restrictive clause nisi constet . . ."

permits the
reading of such books if it is morally certain that they con
tain nothing against the Catholic faith, either by way of
assertion, innuendo, or induction. The word nihil is a
wide term, as it marks a universal negation and generally
admits of no restriction. Still stronger would be the ex
nihil omnino," which abso
" "

pressions, nihil penitus," or

27
lutely exclude everything and anything. But since the
simple term nothing used
"

is here, we may admit the

"

adage
"

parum pro nihilo putatur," and say that one or

the other sentence of little importance against the Catho
lic might be overlooked, especially if there is a
faith

palpable absence of malicious intent.

It is said that one must be morally certain that the book

26 Wernz, /. c., p. 119 f.

27 Barbosa, Tractatus Varii, Dictio 214 (ed. Lugdun., 1660, p. 7 2 5).

 CANON 1399 471

contains nothing objectionable. This certainly may be,

obtained by reading the book, either privately or officially,

on the part of persons who are capable of judging it and
possess a conscientious disposition.
5. Bibles and Biblical annotations and commentaries,
modern translations of the Bible, i. e., into the vernacular,
and all books mentioned in can. 1385, i, n. 2, books,

and booklets which narrate new apparitions, revelations,

visions, prophecies, miracles or aim to introduce new devo-.
tions,even though they pretend to be purely private, if
published without regard to the rules prescribed, i. e.^
without complying with the law of previous censorship
(can. 1393).
Note the word narrare, which is historical rather than
theological or scientific. However, a mere report in a
newspaper or magazine could hardly be intended, because,
28
the term appears to require a longer treatise. This,
rule also applies to war prophesies," of which we heard
<4

so much of late. It does not matter whether the facts,

narrated are objectively true or not.

New devotions are such as have not yet been approved
by ecclesiastical authority. In regard to new devotions, as
well as to apparitions, for instance, of the Blessed Virgin

Mary, observe that, if they were believed and tolerated

for a long time, and never disapproved by the Holy See,
theymay continue to be tolerated by the local Ordinary,
who may also approve them and thus render them per
missible. In case of episcopal approbation, the Ordinary
should add a declaration to the effect that the respective
29
devotion is tolerated on account of immemorial custom.

28 Thusalso Vermeersch, /. c., n. whether the narrator himself her

14. This seems also evident from lieves the story or not.
the opposition: books and booklets. 29 S. Kit. C., Feb. 6, 1875; May
Their chief purpose must be the nar- 12, 1877 {Dec. Auth., nn. 3336,
ration of such things, no matter 3419).
472 ADMINISTRATIVE LAW
The previous censorship, therefore, is required for all
these books, and without the Ordinary s imprimatur no
one may read them, even for private devotion.
6. This number contains several classes of books
which are best kept separate, namely:
(a) Books which attack or ridicule any dogma of the
Catholic Church. Dogma here means an article of divine
or Catholic faith. The attack may be made by argument
or in the form of a simple statement. Ridicule may be
contained in one sentence.
(b) Books which defend errors that have been pro
scribed by the Apostolic See, i. e., by the Pope himself,
or by one of the S. Congregations. 30 This law refers
principally to formally condemned errors of heretics,
e. Jansenius, Bajus, Molinos, etc., also to the proposi
g. }
tions censured in the Syllabus of Pius IX and the so-
called New Syllabus of Pius X.
Books which disparage divine worship. Cultus
(c)
divinusis here evidently to be taken in the same sense in

which the Code uses the term in can. 1255 ff., i. e., the
worship paid to God and His Saints as well as the
liturgical functions of the Church, which are nothing else
but visible manifestations of internal worship.
Detrahere signifies a kind of slander of a person or
disparagement of some object connected with that person.
Thus the worship of relics and sacred images is dis
paraged by iconoclastic propositions.
(d) Books which seek to undermine ecclesiastical disci
pline. To belong writings directed against the
this class

Canon Law and the divine liturgy. Ecclesiastical disci

pline comprises all the measures taken by the Church to

preserve and develop the society founded by Christ. The
30 It is not necessary that any spe- ria, scandalosa, piarum aurium of-
cine qualification (erronea, temera- fensiva, etc.) be added.
 CANON 1399 473

term includes the holy seasons, the sacred liturgy, the

31
duties and privileges of clergy and laymen, etc.

(e) Books which of set purpose insult the ecclesiastical

hierarchy or the clerical or religious state. The term

insult is liable to amore or less subjective interpretation.
Essentially means
it an undeserved affront or indignity
offered to one s self-respect. The insult, to bring a book
within the prohibited class, must strike at the hierarchy
as such, not at single persons. The same is true of the
clerical or religious state. Therefore an insult hurled
against a clergyman, or several clergymen, or against a
religious, or one house or congregation of religious, or
even a whole order could not be called an affront against
the religious state. 32

7. Books which teach or approve any kind of super-

stition, fortune-telling, divination, magic, the evocation
3
of spirits, and other similar practices?
Superstition seems to be here taken as a distinct and co
ordinate, not as a comprehensive term, and hence means
a specific form of belief, which manifests ignorant or ab
normal credulity, such as the belief in omens, charms,
etc. The other terms include the whole broad field of oc
cultism or Spiritism, witchcraft, sorcery, clairvoyancy,
and so forth. Hypnotism and somnambulism, if super
stitious, are also included. Books teaching or approving
such practices are forbidden, not, of course, books written
for the purpose of combatting them.
Books which defend the lawfulness of duelling or
icide or divorce; or which try to prove that Freemasonry
V8.
31 However, this must be under- 32 Thus
the commentators gener-
stood, not of single canons or rub- ally; see
Wernz, /. c., p. 123.
rics, but of the law and liturgy as a 33 Somewhat different appears to
whole, or at least some compact part
"

be the meaning in Officiorum ac

thereof. munerum," art. 12.
 474 ADMINISTRATIVE LAW
and other similar sects are useful and not detrimental to
Church and State.
Statuere, in the first clause, means literally to establish,
determine, pass judgment or demonstrate. To do this
requires no ex professo treatise, but the tendency to make
duelling, etc., appear lawful, must be manifest. Law
books which admit divorce are excepted from this pro
hibition, because they are merely repositories of laws.
But a pamphlet written to recommend a divorce bill
would certainly be prohibited.
The second class treats of Masonic and similar sects.
Masonic societies are those which have special rites, secret
oaths, and advocate subversive principles. The last men
tioned feature is now regarded as a characteristic fea
34
ture, and hence all anarchistic, Bolshevist, and extremely
35
Socialistic societies are included. However, such books
or pamphlets, to fall under the prohibition of our canon,
must make a serious attempt to prove the usefulness or
harmlessness of these sects. This requires argumentation
which is apt to convince the reader.
9. Books which of set purpose treat of, relate, or in
culcate lascivious and obscene things. Hither belongs the
Whole class of strictly so-called pornographic literature,
as well as innumerable romances, novels, and poems.
To treat of (tractare) implies a frivolous or alluring
:

style. Narrare refers to a minute or detailed account of

obscene facts, whilst docere may be taken as indicating
that the reader deduces false conclusions from the de
scription or narrative. From this it is evident that sci
on medicine, surgery, pastoral medicine,
entific treatises
and moral theology do not belong to the category of for-
34 Cfr. S. C. P. F., Sept. 24, 1867 doubts whether Socialists are in-
., n. 1320). eluded because they are, he main-
35 Vermeersch (/. c., n. 13) tains, neither a factio (une partie, a
 CANON 1400 475

36
bidden books unless they are written in a style which
clearly betrays the purpose of the author to be other than
scientific.

The term "

books
"

here excludes images, pictures,

drawings, engravings, photogravures, etc.
io. Editions of liturgical books approved by the Apos
tolic See, which have been altered so as no longer to agree

with the authentic texts.

n. Books which spread apocryphal indulgences or in
dulgences that have been proscribed or recalled by the
Holy See.
12. Images, however printed, of our Lord Jesus
Christ, the Blessed Virgin Mary, the Angels, the Saints,
and other Servants of God, if not in keeping with the
spirit or decrees of the Church.
These last three classes of publications have been suf
ficiently explained under canons 1257, 1279, 919.

EXCEPTION IN FAVOR OF THEOLOGICAL STUDENTS

CAN. 1400

Usus librorum de quibus in can. 1399, n. i, ac libro-

rum editorum contra praescriptum can. 1391, iis dum-
taxat permittitur qui studiis theologicis vel biblicis
quovis modo operam dant, dummodo iidem libri fideli-
ter et integre editi sint neque impugnentur in eorum
prolegomenis aut adnotationibus catholicae fidei dog
mata.

Editions of the original text of Holy Scripture, of the

ancient versions by non-Catholics, and translations into

party), nor a secret (occulta) sect. faction or party can certainly not
But the latter characteristic is not be denied to such Socialist bodies as
absolutely needed, according to the the Spartacists in Germany,
preceding note; and the attribute of 36 Wernz, /. c., p. 122.
476 ADMINISTRATIVE LAW
the vernacular made and published either by non-Catho
licsor by Catholics without previous censorship, are al
lowed to such as are in any way engaged in theological
or biblical studies, provided, however,
(1) that these editions are faithful and entire, and
(2) that neither the introduction nor the annotations
contain attacks on Catholic dogmas.
There is, then, a privileged class of persons, who may
make use of the aforesaid forbidden books, but not of
others mentioned in the preceding canon, namely those en
gaged in theological or biblical studies. Theology com
prises first and above
all dogmatic theology, but may be

taken as coextensive with the theological course of can.

X
365, 2, and therefore includes all branches usually
taught with theology. This interpretation is not con
tradicted by the declaration of the S. C. of the Index, of
June 21, 1898, which (ad 2am partem) excludes from
this privilege those who simply read the Hebrew or Greek
text of S. Scripture without reference to theological
37
studies. Hence one purpose of using these otherwise
forbidden books is theological study. Another is the pur
suit of biblical studies, viz., introduction, hermeneutics,
and exegesis. Now both these studies may be pursued
not only by professional theologians and biblical scholars
or professors, but also by students in seminaries, uni
versities, etc. All these share in the privilege extended
38
by can. I4OO.
Is the use of these editions allowed if one has to pre
pare a sermon or lecture? Our answer would be that for
a usual Sunday or holyday sermon no special theological
or biblical study is required, and therefore we could not

37 Cfr. Wernz, /. c., p. 120; mis- 38 Cfr. S. C. Indie., May 23, 1898,
taken is Hurley s interpretation, /. ad i (Coll. P. F., n. 2000).

c., p. 69.
 CANON 1401 477

say that these preachers are engaged in (operam dant)

such studies. 39 But if one would have to deliver an elab
orate lecture on a theological subject, say for instance, on
creation, on the Real Presence, or on Holy Orders, he
would certainly have to study his subject, and therefore
would be allowed to make use of these editions. 40

PERSONS EXEMPT FROM THE PROHIBITION

CAN. 1401

S. R. E. Cardinales, Episcopi, etiam titulares, aliique

Ordinarii, necessariis adhibitis cautelis, ecclesiastica
librorum prohibitione non adstringuntur.

Cardinals, residential as well as titular bishops, and

other Ordinaries, provided they employ the necessary
precautions, are not bound by the law of forbidden books,
(but must obey the law of previous censorship).
What precautions are to be taken is not determined by
the Code. They may be described as follows :

(a) The
natural as well as positive law requires that
one should not expose his faith and morals unnecessarily
to danger (cfr. can. 1405, i), for no one is immune from

temptations.
(b) No one is allowed to read lascivious or obscene
books unless bound to do so ex offtcio, to examine them ;

(c) If the persons mentioned retain forbidden books,

they must see to it that they do not fall into the hands of
those not permitted to read them. This does not mean,
however, that Ordinaries, etc., may not communicate
39 If one, by way of exception, 40 The best known editions by
should need a critical edition, or non-Catholic authors are those of
should have no other text at hand, Tischendorf, Tregelles, and Westcott
he would be excused. and Hort.
478 ADMINISTRATIVE LAW

among themselves or converse with their censors about

such books.
Here it may be useful to add a word about librarians.
These, being custodians, not proprietors or retainers, of
the books in their care, should see to it that forbidden
books are kept separate, or if this is impossible or im
practicable, that awarning sign be placed on the shelves
containing forbidden or dangerous books.
The prelates or superiors of exempt clerical institutes,
who, according to our canon and canon 198, are free from
the restrictions of the law regarding forbidden books,
should take care that their libraries are so managed as to
preclude danger to their subjects.
This rule may also be applied to parish libraries, though
these, as a rule, will hardly keep forbidden books, with
the exception perhaps of non-Catholic editions of the
Bible.
What we have said is nothing but a logical deduction
from can. 1403, 2, which strictly obliges those who have
obtained faculties for reading or retaining forbidden
books, to guard them carefully, so that they do not fall

into the hands of others.

FACULTIES

CAN. 1402

i. Ordinarii licentiam, ad libros quod attinet ipso

iure vel decreto Sedis Apostolicae prohibitos, conce-

dere suis subditis valent pro singulis tantum libris
atque in casibus dumtaxat urgentibus.
2. Quod si generalem a Sede Apostolica faculta-

tem impetraverint suis subditis permittendi ut libros

proscriptos retineant ac legant, earn nonnisi cum de-
lectu et iusta ac rationabili causa concedant.
 CANON 1402-1403 479

CAN. 1403

Qui facultatem apostolicam consecuti sunt

i. le-

gendi nequeunt ideo

et retinendi libros prohibitos, le-

gere et retinere libros quoslibet a suis Ordinariis pro-

scriptos, nisi in apostolico indulto expressa iisdem
facta fuerit potestas legendi et retinendi libros a qui-
buslibet damnatos.
2. Insuper gravi praecepto tenentur libros prohi

bitos ita custodiendi, ut hi ad aliorum manus non

perveniant.

Can. 1402 mentions two kinds of faculties, one granted

by the law itself, the other by the Apostolic See.
41
i. Ordinaries, i. e., all who go by that name in virtue
of can. 198, i, may grant permission to their subjects

to read books forbidden either by law (i. e., by the Code)

or by a special decree of the Apostolic See, but they can
impart this faculty only for individual books and in urgent
The term pro singulis tantum libris means that
" "

cases.
each book must be distinctly mentioned by title and no
wholesale permission be issued. The plural form,
may
singulis libris, permits the faculty to be given for more
than one book at a time, provided they are duly specified.
Urgent cases are such as arise suddenly and unex
pectedly. Thus if a writer needs a certain book for
immediate use, he may apply to his Ordinary, (either the
local Ordinary, if he is subject to him, or the exempt

religious superior, if he is an exempt religious) and ob

tain the permission needed.
It may have surprised the reader to find libri lascivi vel

41 Wernz, /. c., p. 129 correctly 8 and can. 501, i, have jurisdic-

held against Pennacchi that all or- tion in foro externo, must here be
dinaries, hence also religious supe- understood,
riors who, according to can. 488, n.
480 ADMINISTRATIVE LAW
obscoeni mentioned under n. 9 without the restriction or
mitigation found in rule 10 of the Constitution of Leo
XIII, in favor of classical writers. Does the New Code
abolish this mitigation ? It does, though I of can. 1402
permits teachers and others whose office necessitates such
reading, to apply to their superiors for the faculty, if the
case is urgent, as it generally is.
2 mentions a general faculty granted by the Apostolic
See (Holy Office). 42 If such a general faculty has been
given to Ordinaries for the benefit of their subjects, it

should be communicated to the latter with discretion and

only for a just and reasonable cause.
The term "

cum delectu
"

doubtless refers to the persons

subject to the Ordinaries. These persons are described
in the Clementine Instruction as men of learning and

piety who labor for the public welfare and that of the
Catholic Church. Being engaged in such work consti
tutes a reasonable and just cause for granting the permis
sion.

Ordinaries who have

this general (either triennial or

quinquennial) faculty, before granting either perpetual or

43
revocable permission to their subjects, should carefully
read the text of the grant, for it may be that some classes
of books (e.g., libri obscoeni or books ex professo de
fending heresy and schism or undermining the founda
tions of religion) are excepted.
Can. 1403 rules that those who have obtained a papal
faculty for reading and keeping forbidden books, are not
thereby -entitled to read and keep books proscribed by
their Ordinaries unless the indult which they have ob-

42 Secular prelates have to peti- aganda Fide. Religious prelates

tion the Holy Office if they are un- must apply to the S. C. Relig.
der the ordinary hierarchical juris- 43 Wernz, /. c., p. 129.

diction; otherwise the S. C. de Prop-

 CANON 1404 481

may read and

tained contains the express clause that they
44
keep books no matter by whom condemned.
What was said under can. 1395, also applies here and
should be compared with rule 26 of the Constitution of
"

Leo XIII, which employs the term

"

local Ordinaries

(Ordinariis locorum}, whereas our canon mentions Ordi

naries in general. The consequence is that if the local
Ordinary or bishop forbids a book, or magazine, or paper,
exempt religious are not, juridically speaking, bound to
heed the proscription, until their superior has approved it.
On the other hand, the religious superior of an exempt
clerical institute may forbid a book or pamphlet or maga
zine not forbidden by the local Ordinary. Therefore a
religious who
has obtained a papal indult to read and
keep forbidden books is not allowed to read or retain a
book forbidden by his (exempt) religious superior, unless
the above-mentioned clause is found in the papal indult.
This rule holds good even if the local Ordinary or reli
gious superior should prohibit a book already proscribed
eitherby common law or by a special decree of the Apo
stolicSee for there may be a special local or personal
;

reason why this book should be doubly forbidden.

We may finally admit a certain epikeia when an ade
quate reason of utility or necessity exists for not observ
ing the law, as far as its positive side is concerned, pro
45
vided, of course, there be no danger to faith or morals.

BOOKSELLERS

CAN. 1404

Librorum venditores libros de obscenis ex professo

tractantes ne vendant, commodent, retineant; ceteros
44 Hurley, /. c., p. 172 f. 45 Vermeersch, /. c., n. 34.
482 ADMINISTRATIVE LAW

prohibitos venales ne habeant, nisi debitam licentiam

a Sede Apostolica impetraverint, neve cuiquam ven-
dant, nisi prudenter existimare possint ab emptore le-
gitime peti.
46
Catholic booksellers are bound in conscience :

i. Not keep books which treat ex pro-

to sell, loan, or

fesso of obscene subjects. Here again no distinction is

made between classical and ordinary authors, and there
fore all obscene books are included. However, it stands
to reason that purged or corrected editions of classical
authors may be sold.
2. Not to offer for sale any other forbidden books, ex

cept with the permission of the Apostolic See (i. e., the

Holy Office), nor to sell any such books to anyone of

whom it cannot be reasonably supposed that he asks for
them lawfully.
Venales habere means to exhibit or offer for sale.
"

Since the term retinere" does not occur in this clause,

we may reasonably suppose that booksellers are allowed

to keep such books in stock, but only in a hidden or secret

place, not publicly. But they may not list them in their
catalogues or advertise them unless they have obtained a
papal indult to this effect. Even if they have such an
indult, they should be careful not to sell forbidden books

indiscriminately. If a customer asks for a forbidden

book, they are not indeed obliged to ask whether he has

permission to read and keep it, but they should be morally
certain that he does not ask unreasonably.

46 A distinction between Catholic n. 46, but it is not repeated in our

and non-Catholic booksellers was Code, because the Code legislates
drawn in "

Officiorum ac munerum," for Catholics only.

 CANON 1405 483

CAN. 1405

i. Licentia a quo vis obtenta nullo modo quis exi-

mitur a prohibitione iuris naturalis legend! libros qui

ipsi proximum spirituale periculum praestant.
2. Ordinarii locorum aliique curam animarum ha-

bentes opportune moneant fideles de periculo et damno

lectionis librorum pravorum, praesertim prohibitorum.

I. A license to read forbidden books does not in any

way exempt one from the prohibition of the natural law
against reading books which are to him a proximate occa
sion of sin. Therefore
2. The local Ordinaries and all those in charge of
souls should warn and injury
the faithful of the danger
caused by reading bad, especially forbidden, books.
It is obvious that one who disobeys the law of the
Church and neglects the precautions dictated by reason,
cannot expect supernatural help against temptations.
For completeness sake we here add can. 2318.
PENAL SANCTION
CAN. 2318
In excommunicationem Sedi Apostolicae speci-
i.

ali modo reservatam ipso facto incurrunt, opere public!

iuris facto, editores librorum apostatarum, haeretico-
rum et schismaticorum, qui apostasiam, haeresim,
schisma propugnant, itemque eosdem libros aliosve per
apostolicas litteras nominatim prohibitos defendentes
aut scienter sine debita licentia legentes vel retinentes.
2. Auctores et editores qui sine debita licentia sa-

crarum Scripturarum libros vel earum adnotationes

aut commentarios imprimi curant, incidunt ipso facto
in excommunicationem nemini reservatam.
484 ADMINISTRATIVE LAW
i.Those who publish books written by apostates,
heretics, and schismatics defending apostasy, heresy, or
schism, incur the excommunication reserved speciali modo
to the Holy See. The same penalty is incurred by those
who defend such books or others nominally forbidden by
Apostolic letter, or who knowingly read or retain them
without due permission.
2.Authors and publishers who, without due permis
sion, print books of Sacred Scripture or annotations and
commentaries thereon, incur excommunication reserved to
no one.
 TITLE XXIV

THE PROFESSION OF FAITH

WHO MUST MAKE IT

CAN. 1406

i. Obligatione emittendi professionem fidei, se-

cundum formulam a Sede Apostolica probatam, te-
nentur :

i. Coram
praeside eiusve delegate, qui Oecumenico
vel particular! Concilio aut Synodo dioecesanae inter-
sunt cum veto seu consultivo seu deliberative praeses ;

autem coram eodem Concilio Synodo; vel

2. Coram Sacri Collegii Decano, Cardinalibus pri-
mis in ordine presbyterorum et diaconorum et S. R. E.
Camerario, promoti ad cardinalitiam dignitatem;
3. Coram delegate ab Apostolica Sede, promoti ad
sedem episcopalem etiam non residentialem, vel ad re
gimen Abbatiae vel Praelaturae nullius, Vicariatus
Apostolici, Praefecturae Apostolicae ;

4. Coram Capitulo cathedrali, Vicarius Capitularis;

5. Coram loci Ordinario eiusve delegate et coram
Capitulo, qui ad dignitatem vel canonicatum promoti
sunt;
6. Coram loci Ordinario eiusve delegate et coram
aliis consultoribus, assumpti ad officium consultorum
dioecesanorum ;

7. Coram loci Ordinario eiusve delegate, Vicarius

Generalis, parochi et ii quibus
provisum fuit de bene-
485
486 ADMINISTRATIVE LAW
ficiisquibusvis, etiam manualibus, curam animarum
habentibus; rector, professores sacrae theologiae, iuris
canonic! et philosophiae in Seminariis, initio cuiuslibet
anni scholastici vel saltern initio suscepti muneris om- ;

nes promovendi ad ordinem subdiaconatus libromm ;

censores, de quibus in can. 1393; sacerdotes confessio-

nibus excipiendis destinati et sacri concionatores, ante-
quam facultate donentur ea munia exercendi ;

8. Coram Ordinario eiusve delegate Rector Uni-

versitatis vel Facultatis coram Rectore vero Universi- ;

tatis vel Facultatis eiusve delegate, professores omnes

in Universitate seu Facultate canonice erecta, initio
cuiusque anni scholastici vel saltern initio suscepti mu
neris itemque; qui, periculo facto, academicis gradibus
donantur ;

9. Coram Capitulo vel Superiore qui eos nominavit

eorumve delegate, Superiores in religionibus clericali-
bus.
Qui, priore dimisso, aliud officium vel benefi-
2.

cium aut dignitatem etiam eiusdem speciei consequun-

tur, rursus debent fidei professionem emittere ad nor-
mam huius canonis.

The profession of faith was generally connected with

the oath of obedience imposed on prelates since the Xllth
century, especially on those immediately subject to the
1
Holy See. The Pope himself used to send a kind of pub
licprofession to the patriarchs of the East soon after his
2
accession to the papal throne and documents of the ;

Vllth century testify that a public profession of faith was

made by the Pontiff on the occasion of his election or cor-
iCfr. c. 4, X, I, 6; c. 13, X, I, 2 Cfr. Reg. Greg. I, ed. Ewald-
33; c. 4, X, II, 24. The formula Hartmann, I, 5, 28, 39, 438, 448.
for the Italian bishops in Sickel,
Liber Diurnus, form 73, 75.
 CANON 1406 487

onation. 3 The Council of Trent established substantially

the present discipline, and later decrees specified more
4
closely the persons who had to make profession of faith.
The present prescribed form is contained in our Code and
must be followed always. Besides this profession, there
is no special oath prescribed in the Code, and therefore

the oath demanded by Pius X in the Sacrorum Antisti-

"

tum" (Sept. i, 1910) would be abolished (according to

can. 6, n. 6) had not the Holy Office since declared that

the Antimodernist Oath continues in force until the Holy
See expressly abrogates it. 5 Our canon deals only with
the profession of faith, which, according to I, must be

made by the following ecclesiastics :

By all those who attend a general or particular

i.

council or diocesan synod with the right to cast either an

advisory or a decisive vote. These must make their pro

fession of faith before the presiding officer or his dele

gate; the presiding officer himself before the synod or

council.
2. Newly created cardinals must make profession of
faith before the Dean
of the Sacred College, the first
inrank among the cardinal priests and deacons, and the

Camerlengo of the Holy Roman Church.

Bishops, residential as well as titular, Abbots or
3.
Prelates nullius, Vicars Apostolic and Prefects Apostolic,
before the papal delegate.
4. The Vicar Capitular before the cathedral chapter.
Since in this country the consultors supply the cathedral
chapter (can. 427), our diocesan administrators must
make their profession of faith before the consultors as a
body.
3 Wernz, IMS. Decret., Ill, n. 14, Nov. 13, 1504; S. C. C., Jan. 20,
p. IS f- 1877 (Coll. P. F., n. 1464).
4 Trid., Sess. 24, c. i, 12, De 5 S. O., March 22, 1918 (A. Ap
Ref., Pius IV,
"

Iniunctum Nobis," S., X, 136.)

 488 ADMINISTRATIVE LAW
Those who have been promoted to a dignity or can-
5.
onicatemust make their profession of faith before the
local Ordinary or his delegate, and at the same time
before the chapter. We say at the same time," for if
"

the bishop or his delegate (who propter decentiam should

"be an ecclesiastical dignitary) is not present when the

profession is made before the chapter, it would have to

6
"be made again. There cannot be any doubt that canons
of collegiate chapters, too, are now obliged to make the
profession of faith before they take possession of their
7
office or benefice.
Diocesan considtors must make their profession of
6.

faith before the localOrdinary or his delegate and, at the

same time, before the other consultors, who should there
fore meet together with the bishop in a convenient place,
the cathedral or another church, the episcopal resi
dence, or a priest s house.

The following must make profession before the

7.
local Ordinary or his delegate: (a) the vicar general;
8
(b) pastors and those provided with a benefice (even
though manual only) to which the care of souls is at
tached; (c) rectors of seminaries and professors of sa
cred theology, canon law, and philosophy, at the begin
9
ning of each scholastic year, or at least when they assume
office; (d) those about to be ordained subdeacons (e) ;

the censors of books, as mentioned in can. 1393; (f) all

priests who are to act as confessors or preachers, before
they are given their appointment or faculties. Under this
6 S. C. C, Jan. 25, Feb. g, 1726, faith on the day of installation
ad III (Richter, Trid., p. 353, before the people; S. Rit. C. July f

n. 19). 21, 1855 (Dec. Auth., n. 3035).

7 Although the decision just 9 This rule might also be observed

quoted (ad I) would exempt them, concerning the Antimodernist oath,

yet can. 405, 2, requires it. for it appears very awkward to
8 See can. 461; pastors are not say the least to repeat it every
obliged to make this profession of year.
 CANON 1406 489

heading, no doubt, also come our assistants or curates, and

10
the confessors and chaplains of nuns and religious in
stitutions.
8. Therector of a university or faculty must make his
profession of faith before the local Ordinary or his dele
gate; all the professors of a canonically established uni
versity or faculty, before the rector at the beginning of
each scholastic year, or at least when they assume the
office of teaching; the same rule applies to all those who
receive academic degrees, after they have passed their
examinations. Academic degrees, in the proper sense, are
the licentiate and the doctorate; the baccalaurate is re

garded only as a stepping-stone to the former. The time

for making the profession of faith for such graduates is
between the examinations and the ceremony of conferring
the degree. The profession may most properly be made
in the chapel or church, before the staff, board, or faculty
of the university, and in presence of the students, or in
the aula academica before the rector and some professors.
9. Superiors of clerical institutes must make their pro
fession of faith before the chapter or the superior who
has appointed them. Thus an abbot should make it be
fore the president or vice-president of his congregation
and the monastic chapter. 11 If the superior is appointed
by a higher one, this latter, or his delegate, should receive
the profession.
2 requires that the profession of faith be repeated,
according to the rules prescribed in I of this canon,
whenever one assumes a new office, benefice or dignity,
after giving up the former, even if the new office is of the
same species. If a canon or dignitary of a cathedral
10 See can. 529. turn at the benedictio abbatis; cfr.
11 The profession of faith is not Pontif. Rom., s. h. t.

to be identified with the iuramen-

490 ADMINISTRATIVE LAW
church obtains a new benefice, office, or dignity in the
same cathedral (or collegiate) church, he must renew his
profession of faith; and if the change should occur during
the vacancy of the episcopal see, the renewal must take
12
place before the vicar-capitular and the chapter.
This rule also applies to pastors who obtain another
parish in the same diocese.

CAN. 1407

Obligation! fidei professionem emittendi non satisfa-

cit qui earn per procuratorem vel coram laico emittit.

Can. 1407 declares a profession of faith made by

proxy or before a layman invalid. The validity of such
an act had been sustained by canonists of note, such as
Navarrus, Sanchez, Barbosa, Reiffenstuel, and Boekhn;
but the S. C. C. was of contrary opinion, and its view is
here espoused. 13 This is so true that if, for instance,
a prelate or canon had made his profession before the
Cardinal Vicar of Rome, he would nevertheless have to
renew itupon his return to the benefice.
A layman cannot validly receive a profession of faith
because he lacks spiritual power.

CAN. 1408

Reprobatur quaelibet consuetude contra canones hu-

ius tituli.

Every custom contrary to the canons of this title

(XXIV) is hereby reprobated.

What we said under can. 1356, i, also applies here.

12S. C. C., 1595, 1622 (n. 19); 13 S. C. C., Jan. 25, Feb. 9, 1726,
Nov. 23, 1630 (Richter, /. c. n. ad II (Richter, /. c., 19).
22).
 PART V
BENEFICES AND OTHER NON
CORPORATE ECCLESIAS
TICAL INSTITUTIONS
Part V treats
of a subject which was once of great im
portance for the Church at large and, therefore, lavishly
discussed by canonists. We
can limit ourselves to a few
observations.
The term benefice, taken from the Germanic law, sig
nifiesa grant, especially of real estate or landed property,
to subjects or vassals in recognition of services rendered.
The practice dates back to the Vth century, and benefices
were sanctioned as a permanent source of ecclesiastical
revenue by civil and ecclesiastical law. The ecclesiastical
benefice arose from the distribution of clerical support,
which was formerly held in common, under the super
vision of the bishop. The bishop was supposed, through
his deacons, to distribute ail the voluntary offerings into

four, or three, parts, one portion of which was especially

assigned for the maintenance of the clergy. With the
increase of country parishes and the growth of ecclesiasti
cal holdings, especially in land, it was but natural that the

bishops should grant to the country clergy a certain por

1
tion of the land destined for their support. This appor-
l Concerning England, see Lin- 1858, pp. 162 ff. on benefices in
gard, History and Antiquities of general; see Vetus et
Thomassin,
the Anglo-Saxon Church, ed. 2, Nova Eccles. Disciplina circa Bene-
491
492 ADMINISTRATIVE LAW
tionment was made upon a precaria or petition presented
by the clergyman concerned, which had to be renewed
every time the place became vacant. When, in the Vlth
century, the revenue or grant became legally attached to
the church itself, the precaria was turned into a perma
nent title or claim, or was attached to the property and
church served by the respective cleric.
A similar development is noticeable in the property
and revenues of cathedral churches. When the canons
ceased to live in common, about the Xth century, each re
ceived from the common stock (massa communis) a
share, which was called praebenda. When the so-called
secularization set in the ecclesiastical benefice did not lose
its character of a benefice, but was distributed in the
form of a yearly salary from the government. Thus it is
still in Italy, where the pastors, and canons, and all other

priests acknowledged by the State receive their income

from the public treasury.
In the U. S. benefices are almost unknown. solitary A
example in New Orleans figured as a notable exception
in the decrees of the Second Plenary Council. A few
parochial benefices are found in the province of San
Francisco. In England, also, benefices are the exception,
2
but in Canada they are more common.

ficia, 1688; N. Garcias, Tractatus kirche, 1895; and the commenta-

de Beneficiis, 1636; P. Lewienius, tors on X, III, 5.
Forum Beneficiale 1742; U. Stutz, 2 See Cath. Encycl., II, 474; as to

Geschichte des Kirchl. Benefisial- Canada, see Pouliot, Le Droit

wesens, 1895; Idem, Die Eigen- Paroissiale, 1918.
 TITLE XXV
ECCLESIASTICAL BENEFICES
DEFINITION

CAN. 1409

Beneficium ecclesiasticum est ens iuridicum a com-

petente ecclesiastica auctoritate in perpetuum consti-
tutum seu erectum, constans officio sacro et iure perci-
piendi reditus ex dote officio adnexos.

A benefice is a juridical entity permanently established

or erected by competent authority, and consisting of a
sacred office and the right of receiving the revenues from
theendowment attached thereto.
Ens iuridicum is the genus of all institutions, with or
without corporate character, having a legal foundation.
We may say that the material element, the beneficium
proper, is personified, inasmuch as it is presented as the
subject of rights and duties. It may also be called a ficti

tious person, but without personal rights. It is the end

(finis) alone that specifies these rights, and therefore be

comes, as it were, the subject of them. The end or pur
pose of a benefice is spiritual, viz., the sacred office, and
the revenues are granted for the sake of the service one
renders (benefieturn propter officium).*
A benefice is a juridical entity, because the ecclesiastical
2
law has, if not introduced, at least sanctioned the com-
lC. io, X, III, i; c. 15, 6, I, 3. 2 Ibid.

493
494 ADMINISTRATIVE LAW
bination of two widely different elements, the material and
the spiritual. This connection could be effected only by
ecclesiastical authority, for the end being entirely spiritual,
it cannot be attached to any material object except by the
authority which controls the spiritual element, and this
is the Church.
The revenues of a benefice are granted on account of
the sacred office, but in order that they may be given, there
is need of a source or
treasury from whence they may be
taken. This is the endowment (dos), which term has a
wide significance.

CAN. 1410

Dotem beneficii constituunt sive bona quorum pro-

prietas est penes ipsum ens iuridicum, sive certae et
debitae praestationes alicuius familiae vel personae
moralis, sive certae et voluntariae fidelium oblationes,
quae ad beneficii rectorem spectent, sive iura, ut dici-
tur, stolae intra fines taxationis dioecesanae vel legiti-
mae consuetudinis, sive chorales distributiones, ex-
clusa tertia earundem parte, si omnes reditus beneficii
choralibus distributionibus constent.

The various sources of ecclesiastical endowment are :

i. Property of any kind, movable or immovable,

owned by the benefice itself as a juridical entity or ficti

tious person; for instance, a piece of land owned by a

church, in which case the owner is the church, not the
pastor, or the trustees, or the congregation ;

2. Contributions imposed on families or corporations,

such as tithes to be paid by the persons themselves (deci-
mae personates), or on goods, produce, stock (decimae
praediales, reales, animalium) ;

3. Voluntary offerings of the faithful, which belong

 CANON 1410 495

to the rector of the benefice, such as pew-rent, at least in

part, plate collections, and subscriptions ;

4. Stole fees, to be paid according- to diocesan taxa

tion or lawful custom; but never manual mass stipends,
as is clear from the text ;
5. Choir distributions, except the third part of the
same, if the entire revenue of the benefice consists of
such distributions. This provision is manifestly intended
for canons. Note that these revenues must be connected
with the office permanently (in perpetuum).
This quality was styled by canonists the obiectiva perpe-
tuitas of a benefice and constitutes an essential element of
the same, but no longer of a parish. 3
What about our parishes? The conclusion is forced
upon us that the elements of a benefice may also be found
in them. For there can no longer be any doubt that
when the three conditions pointed out by the Code and
by the decree of the S. C. Consist, of
Aug. j, 1919, are
verified (viz., residence, endowment, and boundaries),
the rectors of such parishes are pastors. This would
mean at least objective perpetuity.
A doubt may reasonably be maintained concerning "

na
"

tional parishes, because they are actually and almost

necessarily more or less subsidiary and fluctuating. On
the other hand, the ens iuridicum, as well as the purpose
of this quasi-corporate entity, are contained in every par
ish. Besides, since our Code has considerably enlarged
the notion of endowment, it is almost impossible to deny
the character of benefices to our parishes. Yet a solid
doubt remains as to the permanent and stable character of
a separate or distinct juridical entity.
3 The law of Justinian (Cod. I, the church was dedicated was the
2) supposed that the Saint to whom quasi-proprietor.
496 ADMINISTRATIVE LAW

DIVISION OF BENEFICES

CAN. 1411

There are different kinds of ecclesiastical benefices, to

wit:
i. Consistorial benefices, i. e., such as are bestowed in
consistory (now-a-days chiefly prelatures with dignity) ;

allothers are called non-consistorial ;

Secular benefices are those which may be claimed

2.

by the secular clergy, who are, by reason of legal presump

tion, entitled to all benefices established outside a church
or house of religious, even to those which are doubtful.
But if a lawful custom or the will of the founder reads
differently, there can be no doubt. Religious benefices
are those existing in the churches or houses of relig
ious, as well as those existing outside these churches or
houses that have been given to religious by lawful cus
tom or the will of the founder.

3. Double or residential are those benefices which re

quire residence in addition to service. Those which de
mand no permanent residence are called simple or non-
residential.
Here it may be noted that a somewhat different char
double benefices, because they are
acteristic is assigned to
said to have the care of souls or jurisdiction attached.
However, since these latter functions certainly require
it was logical to draw the distinction from this
residence,
obligation.
Manual, temporary, or removable are those benefi
4.
ces which are bestowed subject to the will of the ap-
pointer perpetual or irremovable those which are not only
;

themselves perpetual, but have an incumbent who cannot

be removed at will.
 CANONS 1412-1413 497

5. Curata are benefices that involve the care of souls.

They are sometimes united with simple benefices which

oblige the holder, for instance, to recite the office or to
say Mass in some chapel or on a certain altar.

CAN. 1412 AND 1413

The following do not go by the name of benefices in law,

although they may resemble benefices :

i. The officeof parish vicar when not erected forever;

2. Lay chaplaincies not established by competent eccle
siastical authority, that is to say, founded by lay persons
from their own money with the obligation of saying Mass ;

3. The office of coadjutor, with or without the right of

succession ;

4. Personal pensions;
5. Temporary grants of income made from the prop
erty of a church or monastery to an ecclesiastic on condi
tion that if he looses his claim, the revenues shall revert
to the church or monastery.
Canons 147-195, unless the contrary is manifest, apply
only to non-consistorial benefices that are benefices in
the proper sense of the term, for these canons treat of
appointment to, and loss of, offices.
 CHAPTER I

ESTABLISHMENT OR ERECTION OF BENEFICES

COMPETENT AUTHORITY

CAN. 1414

i. Consistorial benefices are erected by the Apostolic

See alone.
2. Besides the Roman Pontiff, the local Ordinaries can
establish in their respective dioceses, non-consistorial be

nefices, with the exception of dignitaries of cathedral and

collegiate chapters (can. 394, 2).
3. The Vicar-General needs a special commission
from his Ordinary for establishing a benefice.
4. A Cardinal may erect non-curate benefices in his
own title or diaconia, unless the church belongs to exempt
clerical religious.

REQUISITES OF ERECTION

CAN. 1415-1418

These four canons sum up the conditions required for

the lawful erection of a benefice, viz., the endowment,
the cooperation of the persons concerned, and the neces

sary document; can. 1417 refers to conditions in the strict

sense.
The endowment (dos) must be stable, vis., prospec-
498
 CANONS 1415-1418 499

lively durable and sufficient for the maintenance of the

1
building, the divine worship, and the ministers.
If the endowment is made in specie or cash, the Or
dinary should, in union with the board of administration,
see to it that the money is safely invested in interest-bear

ing property or titles, i. e., stocks or bonds.

It is not forbidden to establish a parish or quasi-parish,

even if a sufficient endowment is not immediately avail

able, provided it can be reasonably foreseen that the neces
sary support will be forthcoming.
Can. 1416 rules that, before a benefice is erected, those
ivho are interested in its erection should be invited and
heard, to wit, the parishioners, and others who may have
to contribute or who will probably suffer a detriment.
But the omission of this formality does not invalidate the
establishment of a benefice or parish. 2
Can. 1417 permits the founder to lay down certain con
ditions in the charter with the consent of the Ordinary,
i. e., the diocesan
bishop or the superior of exempt clerical
religious if the benefice is to be a religious one.These
conditions may be contrary to common law, but they must
be reasonable and compatible with the nature of the
benefice. Thus, for instance, the founder may stipulate
that the holder of the benefice must be of a certain nation
or family, 3 or the youngest among a certain group. This
may contravene the common law requiring a certain age;
4
yet the law in our case upholds the will of the founder.
However, if a stipulated condition would be subversive
of ecclesiastical discipline, or derogatory to divine worship,
or contrary to sound morality, it would not bind. 5 Im-

1 Cfr. c. 9, Dist. i, de cons.; see Bury, Life of St. Patrick, 1905,

c. 26, X, III, 5; c. i, X, III, 29. p. 174 ff.
2 Cfr.
c. 3, X, III, 48. 4 Reiffenstuel, III, tit. V, n. no.
This was not infrequently done
3 5A coniugatus is unfit, and hence
in monastic foundations in Ireland; this condition would be invalid; S.
500 ADMINISTRATIVE LAW
possible conditions would be looked upon as not existing.
Concerning irregular persons mentioned in the conditions,
a distinction should be made: if the irregularity is not
plainly against the honor of the sacred ministry and is,
as a rule, dispensed from by the Holy See, we believe that
a dispensation should be asked for, provided the candi
date is otherwise fit. For to install unfit candidates
would be against the nature of an ecclesiastical benefice.
If the irregularity is great and one not easily dispensed
from, the condition should be treated as impossible.
Conditions once accepted cannot be validly suppressed
or changed by the local Ordinary, unless the change be
favorable to the Church, and even then only with the con
sent of the founder or patron if the benefice is one of
advowson. 6 This rule also holds good if the condition is
added that the benefice or beneficiary is not bound to
assume other obligations, for instance, preaching, hearing
confessions, etc. In this case the Ordinary has no right
to compel the beneficiary to accept such obligations.
Can. 1418 requires for the establishment of a benefice a
legal document, in which the place of the benefice is desig
nated, and the endowment, rights, and obligations are de
scribed. Such a paper must be drawn up by the eccle
siastical authority, in our country with the cooperation of
a notary public.
C. C, Sept. 20, 1727; Aug. 19, 6 Reiffenstuel, III, 5, n. 112 ff.

1730 (Richter, Trid,, p. 443); Santi-

Leitner, 1898, III, tit. 5, n. 40.
 CHAPTER II

UNION, TRANSFER, DIVISION, DISMEMBERMENT, TRANSFOR

MATION, AND SUPPRESSION OF BENEFICES

UNION

CAN. 1419-1420

i. A union of benefices is called extinctiva, or per con-

fusionem, when out of two or more suppressed benefices

an entirely new one is created, or when two or more bene
fices are combined with a third so that they cease entirely
to exist, i. e., as a juridical entity. In both cases the new
benefice assumes all the rights and obligations of the sup

pressed or united benefices. However, if these rights and

obligations should conflict, only the more substantial and
favorable ones are to be retained.
2. A unionis called aeque principalis if two or more

benefices, though united, remain as before, neither one be

coming subordinate to the other. In this case each bene
fice retains its nature, rights and obligations, but one and

the same cleric may hold titles to all. Two independent

dioceses held by one and the same bishop would afford an
example of such a union (e.g., Viterbo-Aoscanella).
Two dioceses thus united may hold their synods either
separately or together, have two vicars-general, distinct
1
revenues, feasts, etc. The same rule applies to two par-

1 S. C. C, Jan. ii, 1783 (Richter, Trid., p. 35 f.).

501
502 ADMINISTRATIVE LAW
ishes united aeque principaliter: their boundaries re
main marriages must be performed in the
distinct, so that

respective parish churches, etc. There is no overlapping

in this case, but one and the same pastor attends to both

parishes and holds the titles to them.

3. Minus principals a union per subiectionem or
is

per accessionem, in which the several benefices remain

distinct, but one is made subordinate or accessory to the
other. In this case the accessory benefice follows the
principal one, upon which it depends, so that the clergy
man who obtains the principal, eo ipso receives the acces

sory benefice, and is bound to comply with the obligations

incumbent on both. No doubt this is the meaning of the
term subsidiary parishes or chaplaincies, which the S.
Congregation had in view when it directed our American
bishops to create such within the boundaries of existing
parishes whenever lack of endowment or shifting of the
2
population do not permit the erection of new parishes.

TRANSFER, DIVISION, DISMEMBERMENT, ETC.

CAN. 1421

A benefice is transferred when its seat, for instance,

a chapel or church, is changed from one place to an

other, whilst the benefice remains the same as to its nature,

rights, and obligations.
A division of benefices is made if two or more benefices
are created out of one; this is also applicable to our
parishes.
Dismemberment takes place when a part of the terri

tory or the revenues belonging to one benefice is taken

away and united to another benefice, or to a charitable or
ecclesiastical institution, as, for instance, a seminary.
2 S. C. Consist., Aug. i, 1919 (Eccl. Rev., Vol. 61, p. 551 f.).
 CANONS 1422-1423 503

Transformation is a specific change of benefices, for

instance, if non cnrata would be turned into curata, or
3
a collegiate into a cathedral benefice.

Suppression is the extinction of a benefice ;

this cannot
be lawfully done by the civil government.

CAN. 1422

The extinction, suppression, and dismemberment of

benefices, when the revenues are withdrawn and no new
benefice is erected; the union, whether aeque or minus
principals , of a religious with a secular benefice, or vice
versa; and the transfer, division, and dismemberment of
benefices belonging to religious, are reserved to the Apos
tolic See.

RIGHTS OF THE LOCAL ORDINARIES

CAN. 1423

i and Local Ordinaries may, for reasons of

2.

necessity or great and evident utility of the Church, either

aeque or minus principaliter unite parish churches with
one another or with non-curate benefices. However, a
unto minus principalis of a parish with a non-curate bene
fice must be made in such a manner that the latter becomes

an accessory to the parish.

This union cannot be performed by the Vicar-Capitular,
on account of can. 436, nor by the Vicar-General, unless
he has obtained a special commission for that purpose.
3 rules that such a union must be made for good (in
perpetuum), in order to avoid a cumulation or plurality
of benefices.* Reasons of necessity or utility would be

3 S. C. C., July 24, 1875 (A. S. S., IX, 8 ff.).

4 Trid., Sess. 21, c. 5, De Ref.
504 ADMINISTRATIVE LAW

poverty, decrease of the population, the settling of quar

5
rels, increase of divine worship, etc.
Ordinaries may not unite a parish with the mensa of
the chapter or of the bishop, nor with a monastery or
church in charge of religious (this being reserved to the
Holy See), nor with any corporation, nor with cathedral
or collegiate dignities or benefices. However, they may
unite a parish with the cathedral or collegiate church if
the latter is located within the boundaries of the same,
but in doing so must provide that the parish revenues are
invested in the cathedral or collegiate benefice and the
actual pastor or his substitute is paid a decent income (the
congrua).

CAN. 1424

Can. 1424 forbids Ordinaries to unite either curate or

non-curate benefices against the will of the actual incum
bents, if the latter suffer damage by that union. It also
forbids them to unite benefices of advowson (iurispatro-
natus), either lay or ecclesiastical, with benefices of free
collation, without the advowee s consent, and to unite

benefices of one diocese with such of another diocese, even

though both are united aeque principaliter and governed
by the same bishop. Finally it forbids Ordinaries to unite
exempt benefices, or such as are reserved to the Apostolic
See, with others. The reasonfor this prohibition lies

partly in the danger of alienation, partly in the confusion

of rights and subsequent litigation.
6 Wernz, lus. Decret., II, n. 271, p. 372.
 CANON 1425 505

RELIGIOUS BENEFICES

CAN. 1425

This canon distinguishes between unions semipleno iure

and pleno iure, made by the Apostolic See. The latter
term, according to can. 1422, must be understood of per
petual union, not merely ad tempus, for a temporary
unionmay be made by the Ordinary, if it is only partial.
The law is :

6
i. If a parish has, by papal rescript, been united to
a religious house as to temporalities only, the religious
house is entitled to the revenues, and the superior must
present to the local Ordinary a member of the secular
clergy, who
then appointed pastor and receives his
is

salary from thereligious house. This arrangement was

sometimes made to support religious houses or colleges. 7
Note that the clergyman to be presented for appointment
must belong to the diocesan clergy and that he obtains
his spiritual jurisdiction from the local Ordinary, upon
whom he is entirely dependent as to pastoral rights. The
clergyman presented by the religious superior, if he has
the necessary qualifications, must be appointed by the
bishop, who would otherwise infringe upon the rights of
the religious. 8
2. If a parish is incorporated pleno iure with a re
9
ligious community by the Holy
the religious superior
See,
may designate one of his subjects to take charge of the
same but the local Ordinary has the right to subject the
;

appointee to an examination and to give him his canon-

6 See can. 452. 8 S. C. C., July 18, 1761, et
7 S. C. C., Sept. 20, 1727; Jan. pluries (Richter, n.
/. c., p. 53,
30, 1740; Sept. 20, 1692 (Richter, u ff.).

Trid., p. 367, nn. 2 ff.) 9 See can. 456.

506 ADMINISTRATIVE LAW
10
ical appointment. Besides, the pastor religiosus is sub
ject to the jurisdiction, coercive power, and visitation of
the local Ordinary in whatever belongs to the care of
souls, as explained under can. 631.

TRANSFER OF SECULAR PAROCHIAL BENEFICES

CAN. 1426

For reasons of necessity, or great and evident utility,

Ordinaries may transfer the seat of a secular parochial
benefice to another place within the boundaries of the
same parish but other benefices they may transfer to the
;

mother church, or to another church of the same or a

nearby place, only if the church in which said benefices
were founded, has collapsed and cannot be restored. If
such a transfer has to take place, the altars or chapels
should, if possible, be erected in the church to which the
benefice was transferred under the same titles which they
had in the original benefice, and all the revenues and
burdens of the former church are transferred to the latter.

DIVISION OF PARISHES

CAN. 1427

i. Possunt etiam Ordinarii ex iusta et canonica

causa paroecias quaslibet, invitis quoque earum recto-

ribus et sine populi consensu, dividere, vicariam per-
petuam vel novam paroeciam erigentes, aut earum
territorium dismembrare.
2. Causa canonica ut divisio aut dismembratio pa-

roeciae fieri possit, ea tantum est, si aut magna sit diffi-

10 If the religious has not ob- C., Nov. 10, 1734 (Richter, /. c.,
tained this appointment, the bishop p. 54, n. 21).
may recall him at any time; S. C.
 CANON 1427 507

cultas accedendi ad ecclesiam paroecialem, aut nimia

sit paroecianorum multitude, quorum bono spiritual!

subveniri nequeat ad normam can. 476, i.

3. Paroeciam dividens, Ordinarius debet vicariae

perpetuae aut paroeciae noviter erectae congruam por-
tionem assignare, servato praescripto can. 1500; quae,
nisi aliunde haberi queat, desumi debet ex reditibus ad
ecclesiam matricem quoquo modo pertinentibus, durn-
modo sufficientes reditus eidem matrici ecclesiae rema-
neant.

4. Si vicaria perpetua aut nova paroecia dotetur ex

reditibus ecclesiae a qua dividitur, debet matrici hono-
rem deferre modo et finibus ab Ordinario praestituen-
dis qui tamen vetatur baptismalem f ontem matrici ipsi
;

reservare.
5. Divisa paroecia quae ad aliquam religionem
iure spectat, vicaria perpetua aut paroecia noviter
erecta non est religiosa; pariter divisa paroecia iuris
patronatus, nova paroecia est liberae collationis.

It is evident that this canon refers not only to benefices

in the strictly canonical sense of the word, but also to par
ishes and quasi-parishes. We say, this is evident, because
not only this canon, but also can. 476, 8, expressly
mentions parishes. Hence this canon is lazv also in the
United States.
I. Ordinaries may, for a just and canonical reason,

divide parishes of any kind by establishing a perpetual

chaplaincy or a new parish, or dismembering the territory

of such parishes and they may do so even against the will
;

of the rectors of the parishes, and without the consent of

the people.
This part of our canon should create no difficulty, since
the right of the Ordinary to divide or dismember parishes
5 o8 ADMINISTRATIVE LAW
was established by the Decretals as well as by the Council
of Trent. 11 However, there is a canonical hitch concern
ing parishes which belong (pleno iure) to religious. Ac
"

cording to can. 1425, 2, such a parish is a religious

parish,"
and can. 1422 strictly reserves the division and
dismemb ration of religious benefices to the Apostolic See.
Can. 1427 speaks of quaslibet paroecias, whilst can. 1422
uses quaelibet in speaking of division or dismembration.
Here, then, two canons seem to clash. However, we may
"

apply here the juridical axiom: generi per speciem de-

rogatur,"
which finds its application whenever general
12
and specific terms occur in the same law. Taken in
this light, the genus would be benefice, and the species,
parish. Consequently, the general rule of can. 1422
would suffer an exception as to parishes. This is prob
ably the mind of the lawgiver, because Ordinaries with
regard to parishes have intentionem fundatam in iure.
This was also the guiding principle of that passage of
Romanes
"
"

which refers to parishes in Eng

Pontitices
13
land, subsequently applied to the U. S., and does not
question the right of Ordinaries to divide parishes belong
ing to regulars. The necessity of abiding by all the for
malities was the real point under discussion, and the
Constitution decided that these are not strictly required
because the missions in England (and the U. S.) are not
parishes erected according to the rules of canon law.
From this it may be seen that the practice of the Roman
Court 14 gives free sway to our Ordinaries and those of
England (and other countries, too) in the matter of di

viding or dismembering parishes of religious. However,

11 C. 3, X, III, 48; Trid., Sess. 13 May 8, 1881; extended to the
3i, c. 4; Sess. 24, c. 13, De Ref. U. S. in 1885 (Coll. P. F., n. 1552).
l2Barbosa, Tractatus Varn, 14 See S. C. C., June 22, i?43
Axioma 107 (ed. Lugd., 1660, p. (Richter, Trid., p. 117, n. 5).

72 f.).
 CANON 1427 509

since an incorporated parish of religious can only be ob

tained by the Holy See (can. 452; can. 1425), it would
seem rather presumptuous for an Ordinary to proceed
to a division or dismembration without informing the

Apostolic See. This seems at least a reasonable assump

tion, especially since the boundaries of
every religious
15
parish are accepted and sanctioned by the Holy See.
2. The sole canonical reasons for dividing or dis

membering a parish are great difficulty on the part of the

:

people to come to the parish church or impossibility of

properly attending to their spiritual needs because of too
great a number.
Note the expression ea tantum ; only the two reasons
" "

mentioned are acknowledged as canonical. Hence a

desire to create more parishes within a city or diocese
cannot be considered a canonical reason for dividing the
existing parishes. The distance has been sometimes de
scribed in Roman decisions 16 as of one or two hours (to
be walked, of course), sometimes as 1500 passus (about a
mile and a quarter), sometimes three Italian miles, some
times simply a long and arduous way, especially if im
peded by a torrent or river.
The phrase "

too great a number" is relative it means, ;

if the spiritual welfare of the faithful suffers because

there are too many souls to be taken care of. In 1905 and
17
1907 the S. Congregation decided the case of a parish in
charge of the Capuchins, which numbered about 6,500
souls and was well taken care of, but divided by the Or

dinary. The S. Congregation first refused to sanction the

15 This information, of
course, be sufficient; S. C. C., March 28,
is not required ad validitatem. 1903 (Anal. Eccl., XI, 116 ff.).
16 S. C. C., June 22, 1743; Sept. 17 S. C. C., Jan. 21, 1905; July
27, 1732; Jan. 29, 1735, etc. (Rich- 27, 1907 (Anal. Eccl., XIII, 23 ff.;
ter, Trid., 117, nn. 5 ff.); a dis- XV, 338 ff.) a legacy of 30,000
;

tance of 30 miles would certainly lire was promised to the newljr

erected church.
510 ADMINISTRATIVE LAW
decree, but new reasons advanced by the episcopal court
finally led to a ratification of the same. However, neither
18
the distance from church nor the number 19 of parish
ioners has ever been definitely settled by the Roman au
thorities,and it would be futile, therefore, to try to deter
mine either. Local circumstances must be considered and
the welfare of souls looked to as the supreme law. The
latterdoes not, however, demand that a flourishing con
gregation, say of four or five hundred or more families
be broken up for the sake of a few kickers or tcr make
" "

a vain display of parishes. The fact that old parishes

are sometimes loaded down with debts and new parishes
often require heavy sacrifices should be duly taken into ac
count. 20 The faithful should not be needlessly burdened,
such as ours.
especially in critical times parish with A
300 or 400 families who live within a radios of about one
mile and a half with good roads or streets, and sometimes
street railways and automobiles, can easily be taken care
of by the pastor with the aid of one or two assistants and
certainly does not call for dismembration, unless perhaps
dangerous tracks, or factories, or undesirable quarters
would have to be passed by a considerable number of the
parishioners.
3. The Ordinary, when he divides a parish, must as
sign sufficientrevenues or provide in some other way (see
can. 1500), for the new parish or chaplaincy. If no
other source of revenue is available to provide the new
parish with sufficient funds, these must be taken from the
ISA distance of one Italian mile pastor with his assistants to attend
has never been considered suffi- to properly; S. C. C., Jan. 25, 1879
cient for dismembration; see Anal. (A. S. S., XIII, 287 ff.)
Eccl., XIII, 27. 20 This reason was also advanced
19 One parish had 26,000 souls in the petition mentioned above of
(~ about 5,000 families), which 1905 and 1907.
number appeared too great for one
 CANON 1427 511

mother church, provided, however, that a sufficient in

come is left to the latter. Of course, this holds also if

the new parish was detached from a religious parish.
Here it is not superfluous to remark that the accounts of
a parish in charge of religious should be kept strictly
separate from those of the monastery. If there are any
accrued funds, the salary to the pastor, as well as the
expenses for the upkeep of the church and divine wor
ship must first be deducted, and if anything is then left,
the old parish is bound to share it with the newly erected
one.
But what if there are debts on the old parish? Here
the injustice of some divisions becomes apparent. As it
is entitled to a share of the revenues, the new parish has
21
to share also the debts, for it would be unjust to saddle
a debt which was calculated for 400 or more families, on
150 or even less.

4. new parish is endowed from

If the chaplaincy or
the revenues of the old, the latter, as the mother church,
is entitled to certain marks of honor, which should be de

termined by the Ordinary, who, however, is not allowed to

reserve the right of the baptismal font to the mother
church. Sometimes a candle had to be offered, some
times the baptismal water had to be gotten from the
mother church, 22 but the latter practice is now forbidden,
and justly so, for a parish without a baptismal font is
badly handicapped. The bishop may decide what signs
of honor should be paid, for instance, a procession, an in
vitation to preach, etc.

5. A
parish detached from one which belongs to re
ligious, does not become a religious parish, and the relig-

21 See can. 1500, which confirms 24, 1880 (A. S. S., XIII, 298, 514
what is said in the text. ff.).
22 S. C. C., Sept. 20, 1879; April
512 ADMINISTRATIVE LAW
ious may not claim it, but to obtain it need the recom
23
mendation of the bishop and a papal indult.

CAN. 1428

i. Locorum
Ordinarii uniones, translationes, divi-
siones, dismembrationes beneficiorum ne faciant nisi
per authenticam scripturam, auditis Capitulo cathe-
drali et iis, si qui sint, quorum intersit, praesertim rec-
toribus ecclesiarum.
2. Unio, translatio, divisio, dismembratio facta
sine canonica causa irrita est.
Adversus decretum Ordinarii unientis, transfe-
3.

rentis, dividentis aut dismembrantis beneficia, datur

in devolutivo tan,tum recursus ad Sanctam Sedem.

Can. 1428 mentions certain formalities which the local

Ordinaries must observe when they unite, transfer, di
vide, or dismember benefices. One of these is that an
authentic document be drawn up, signed, and sealed with
the diocesan seal. The other formality consists in hear
ing the advice of the chapter; or, with us, of the diocesan
consultors, which is to be given collegialiteY, i. e., at a
Besides, the bishop must also summon all
24
meeting.
those who are interested in the transaction, viz., the pa
rishioners or their representatives, and especially the rec
tors of the churches. However, if these formalities (viz.,

writing, obtaining the advice of the consultors, hearing

the parishioners and pastors) were omitted, it would not
25
affect the validity of the act.

23 Cfr. Leo XIII, Romanos (Wernz, /. c., II, n. 267, p. 367),

Pontifices, May 8, 1881; S. C. C., though in this country only the
Jan. 25, 1879, (A. S. S., XII, advice of the and the
coniultors
287 ff.). rector of the mission needed to be
24 Formerly the consent of the obtained; Cone. Bait. Ill, n. 20.
chapter was required for validity 25 Cfr. A. S. S., Ill, 396 ff.
 CANON 1429 513

2. A union, transfer, division, or dismembration

made without a canonical reason
because every is invalid,

such act involves a change in the status of a church or ben

efice, and is therefore a species of alienation which no one
inferior to the Supreme Pontiff can validly perform with
out a reason. 26 Therefore if neither the distance nor the

number of parishioners demands a division, it is invalid.

3. Ordinary deems the reason just and canon

If the

ical, whilst the greater part of the congregation and the

old pastor think it unjustified, the union, transfer, divi
sion, or dismembration takes effect, but recourse is open
to the Holy Sec. This recourse, however, is not properly
an appeal, and, therefore, does not suspend the effect of
the episcopal decree, but devolves the matter on the S. C.
27
Concilii.

PENSIONS

CAN. 1429

i. Beneficiis quibuslibet nequeunt Ordinarii loco-

frum pensiones perpetuas aut temporarias imponere

quae ad vitam pensionarii durent, sed possunt, dum
beneficium conferunt, ex iusta causa in ipso collationis
actu exprimenda, eisdem imponere pensiones tempora
rias, quae durent ad vitam beneficiarii, salva huic con-

grua portione.
2. autem paroecialibus non possunt, nisi
Beneficiis
in commodum parochi vel vicarii eiusdem paroeciae a
munere abeuntis, imponere pensiones, quae tamen ne
excedant tertiam partem reditus paroeciae, quibusvis
deductis expensis et incertis reditibus.
3. Pensiones beneficiis sive a Romano Pontifice

26 C. 8, X, III, 5. 1742, ii, 16, 32; Leo XIII,

27 C. 3, X, III, 48; Benedict
"

Romanes Pontifices," May 8, 1881.

XIV, "Ad Militantis," March 30,
514 ADMINISTRATIVE LAW
sive ab aliis collatoribus impositae, cessant morte pcn-
sionarii, qui tamen nequit eas alienare, nisi id expresse
concession sit.

An ecclesiastical pension may be called an annual allow

ance from an ecclesiastical benefice, granted by the compe
tent authority either to its former holder, or to a stranger,

generally for some service rendered to the benefice itself,

or to the beneficiary, or at least to the church.
A pension is personal if paid by the ecclesiastical ben

eficiary; real if incumbent on the benefice itself. If a

real pension is attached to a benefice in such a way that
not only the present pensionary, but after his death others
are entitled to the pension, it is a strictly perpetual pen
sion,whereas one paid during the lifetime of the pension
ary only is called relatively perpetual, and one paid during
the lifetime of the beneficiary, although paid from the
28
benefice itself, is called temporary.
i rules that the local Ordinaries may not impose on

any kind of benefice either perpetual or temporary pen

sions, which last during the lifetime of the pensionary,
but may, when conferring a benefice, for a just reason to
be mentioned in the act of bestowal, impose a temporary
pension to be paid during the lifetime of the beneficiary,
provided, however, the latter s income is safeguarded.
2. On parochial benefices the Ordinaries can impose

pensions only in favor of a pastor or substitute (coadiu-

tor) when he leaves his office (as rector or pastor emeri
tus). But the amount of this pension shall never exceed
the third part of the entire parish revenues, after all ex
penses and uncertain revenues have been deducted.
Note the expression "parish revenues" which is not

28 Traces of pensions are found after separate parish and canon s

in the acts of the Council of Chalce- benefices had been introduced;

ton, A. D. 451; they were increased Wernz, /. c., II, n. 321, p. 433.
 CANON 1430 515

pastor s revenues." Hence in our

"

synonymous with the

country only the pew-rent, plate and house collections,
sure subscriptions, and perhaps interest from money
loaned out would have to be considered. From these rev
enues the current expenses for the pastor s salary and the
upkeep of the church, etc., may be deducted.
3. Pensions imposed on benefices either by the Ro
man Pontiff, or by other collators, cease with the death of
the pensioner, who, unless expressly empowered to do so,

may not alienate his pension.

TRANSFORMATION

CAN. 1430

Benefices that have the cure of souk attached to them

cannot be transformed by the Ordinaries into such as have
no such charge, nor can religious benefices be changed
into secular ones, or vice versa. On the other hand, sim
ple benefices maybe changed into curate ones, provided
there be no express stipulation to the contrary on the part
of the founder.
 CHAPTER III

BESTOWAL OF BENEFICES

CAN. 1431

The Roman Pontiff, being the supreme authority and

endowed with universal jurisdiction, may confer benefices
in the whole Church and reserve their collation to him
self. This proposition is directed against the libelous
book of Eybel, which is full of invectives against the Holy
See from the point of view of the Febronian and Jose-
1
phinist schools.

CARDINALS AND ORDINARIES

CAN. 1432

I. Cardinals may confer benefices in their titular

churches or deaneries, and Ordinaries in their own dio
ceses, because they have the priority or right in their favor
2
(habent intentionem fundatam in iure).
2. The
vicar general, however, cannot confer bene
fices unlesshe has received a special commission for this
purpose by his bishop. The Vic or -Capitular or Adminis
trator, however, can confer parochial benefices, but only

iThe book: Was ist der Papst? that the bishop in our case is re
was put on index, and Pius
the leased from proving his right, and
VI, Nov. 28, 1876, issued a special the burden of proving it against
Brief, "Super Soliditate"; see the bishop devolves on the plain
Denzinger, n. 1303. tiff or the one who disputes the
2 This is truly called a presump bishop s right; see Reiffenstuel, II,
tion in law, which has the effect tit. 23, n. 45.

516
 CANONS 1433-1435 517

according to can. 455, 2, n. 3 other perpetual benefices

;

he may not confer at all, on account of can. 436.

3. If the Ordinary does not make
an appointment to
a vacant benefice within six months from the time when
the vacancy became known to him, the right of making the
appointment passes Apostolic See, unless (can.
to the

458) special reasons permit a delay, and an administrator

is left in the place.

CAN. 1433

Can. 1433 reserves the appointment of coadjutors to

beneficiaries, with or without the right of succession, to the
Apostolic See. But this reservation does not apply to the
temporary coadjutors and assistants mentioned in canons
475 and 476.

BENEFICES RESERVED TO THE HOLY SEE

CAN. 1434-1435

Benefices reserved to the Apostolic See cannot be val-

idly conferred by inferior prelates, for instance, bishops.
Besides all consistorial benefices and dignitaries in ca
thedral and collegiate chapters (can. 396, i) the fol
lowing are reserved to the Apostolic See, even though the
latter be vacant :

i. All benefices, including curata, which become va

cant by the promotion, resignation, or transfer of car
dinals, papal legates, the higher officials (assessor, pre
fect, secretary, subsecretary, regent) of the Roman Con
gregations, tribunals and offices of the Roman Court and
the papal household, even though they be purely hon

orary.
2. All benefices which, though founded outside the
5i8 ADMINISTRATIVE LAW
Roman Court, become vacant by the death of the bene
ficiary in the city of Rome. 3
3. All benefices invalidly conferred by reason of
simony.
4. Finally all benefices in which the Roman Pontiff,
either himself or through a delegate, is interested for one
of the following reasons :

(a) Because he had declared the election to the benefice

null and void ;

(b) Because he had forbidden the electors to proceed

to an election ;

Because he had accepted the resignation of the

(c) in
cumbent ;

(d) Because he had promoted, transferred, or deprived

the beneficiary of his benefice :

(e) Because he had given the benefice in commendam.

No manual benefices, or such of lay or mixed advowson
(inrispatronatus) are reserved, unless expressly stated.
As to the bestowal of benefices founded in Rome, the
particular laws in force there must be observed. 4

ACCEPTANCE
CAN. 1436-1437
benefice can be validly conferred on a cleric who is
No
unwilling to accept it, or who does not expressly declare
his acceptance of the same.
one can bestow a benefice upon himself, because
No
the one who bestows and the one who accepts must be
5
different persons. This is true also of a clergyman
6
whose father holds a benefice. Hence, for instance, a
3 This is oart of Regula XIX of 5 C. 7,
X, III, 7.
the Cancellaria Apostolica. 6 C. X, III, 38; there is not
15,
4 S. Pius V,
"

Intolerabilis," June much danger of this, except in

i, 1569, 8. case of advowson.
 CANONS 1438-1441 519

bishop cannot validly bestow a benefice of his own diocese

upon himself; an abbot cannot be a canon of a cathedral
or collegiate chapter, even though it be a simple canoni-
7
cate. Consequently, too, an abbot cannot confer upon
himself a parish benefice, nor could the bishop validly give
it to him, even
though he has all the necessary qualities.

PROVISION TO BE MADE FOR LIFE

CAN. 1438
All secular benefices must be conferred for life, unless
the will of the founder, or an immemorable custom, or a
special indult rules otherwise.

QUALITIES OF BENEFICIARIES

CAN. 1439

i. No clergyman is capable of accepting or

holding
several benefices, either in his own name, or in commen-
dam (see. can. 156).
2. Benefices, the obligations of which the beneficiary
cannot fulfilpersonally, as well as benefices of which one
suffices for the decent support of the incumbent, are in
compatible.

NO DEDUCTIONS PERMISSIBLE

CAN. 1440-1441
"

Ecclesiastical benefices must be conferred without

diminution," was
the complete and authentic title of one
of the Decretals (III, 12), and the commentators com
prised under this heading the imposing of new burdens,
7S. C. C, March 3, 1880 (A. S. S., XIII, 461).
520 ADMINISTRATIVE LAW

division, dismemberment and suppression of benefices. 8

Our canon exclusively intends the first only, viz., the
imposition of new burdens. These may be of two kinds :

spiritual and temporal. By law, then, the bishops may

not impose new obligations which would burden either the
officeholder or the benefice, if these obligations are not
mentioned in the original grant.
Such new burdens would be the duty of performing
more Masses than required, etc.,
pastoral work, saying
etc. No such burdens may be imposed, although the
beneficiaries may be asked to assume them, if neces
9
sary.
Temporal obligations would be the giving up of part
of the revenues, of charges for certain purposes, etc.
All such are forbidden and savor of simony.
Can. 1441 forbids and reprobates as simoniacal all de
ductions made from the revenues, all compensations and
payments in the act of preferment, no matter whether
they accrue to the appointer, or to the advowee, or
to
10
others.

ON WHOM BENEFICES MAY BE CONFERRED

CAN. 1442

Secular benefices may be conferred on secular clerics

of the institute
only, religious benefices only on religious
to which the benefice belongs.
Hence a benefice belonging, e. g., to the Franciscans
should not be conferred on a Benedictine, and vice versa.
11
This rule also holds with regard to prelacies, and must

8Cfr. Engel, III, 12, n. i f. 41, 44, V, 3; Trid., Sess. 24, c. 14,

9 Wernz, /. c., II, n. 321, p. de Ref.

ll C. i, Clem. I, 3.
430 f,

10 C. un. X, III, 12; ec. 8, 9,

 CANONS 1443-1446 521

12
be observed when a higher superior confers a benefice
by devolutive right.

INSTALLATION

CAN. 1443-1445

No one shall take possession of a benefice conferred

upon him, on his own
authority, or before he has made
profession of faith, if the benefice requires such profes
sion. In regard to non-consistorial benefices, the right
of installation belongs to the local Ordinary, who may,
however, delegate another ecclesiastic, generally the
rural dean.
The manner in which installation should take place is

prescribed by particular for instance, diocesan stat

utes, or by custom, and the prescribed rite must be ob

served unless the Ordinary has granted a written dispen
sation, in which case the dispensation takes the place of
the formal installation.
The installation may be performed by proxy if a spe
cial mandate to that effect has been issued by the ap
pointee.

PRESCRIPTION AND TITULUS COLORATUS

CAN. 1446

If a cleric who possesses a benefice is able to prove

that he has had peaceful possession of the same for three
full years and in good faith, the benefice is his by prescrip

tion,even though his title was invalid, provided, however,

that no simony was committed.
Concerning the application of prescription to benefices,
there was a controversy among canonists 13 our Code has ;

12 C. un. Clem. I, 5. 13 Cfr. Reiffenstuel II, 26, n. 35.

522 ADMINISTRATIVE LAW
adopted the affirmative view, under certain conditions,

(a) The possession must have been peaceful, with

no suit pending;
(b) This peaceful possession must have lasted three
full years, without interruption;
(c) The possessor must have been honestly ignorant
of the fact that he held the benefice unlawfully and ;

(d) No simony must have been committed either by

him or his proxy.
All this the incumbent has to prove by witnesses or doc
uments. If he succeeds, the benefice is his, even though
his original title was doubtful for some reason, for in
stance, that he was appointed by the administrator or
vicar-general against the common law. This benefit is
14
granted to avoid unnecessary litigation.

A LITIGANT BENEFICE

CAN. 1447

To understand this canon it is necessary to know what

a petitory and a possessory trial is. A petitory trial turns
about the question whether a title or claim is just and
valid, whilst in a possessory trial the plaintiff claims the
object or right, or asks that he be not disturbed in its
possession. A "

peacefully possessed benefice is one

"

that is not disputed, either as to title or as to actual posses

sion (de iure et facto possessum).
The text rules that the one who claims a benefice that
is peacefully possessed by another, on the supposition or
pretence that it is vacant, must clearly state in his peti
tion the of the possessor, how long he has been in
name
possession, and the particular reason why he has no right
14 C. un. Clem. II, 6, but only ad arguments instar.
 CANON 1447 523

to the benefice. But the benefice cannot be conferred

upon the plaintiff or claimant before a petitory trial has
cleared up the title. For the general rule is that only ben
efices which are vacant by right and in fact (de iure et

facto) can be validly conferred.

 CHAPTER IV
IUSPATRONATUS OR ADVOWSON

The iuspatronatus arose from a transfer of landlord

ism, plus feudalism, to ecclesiastical soil. The Church
accepted the protection of the civil power as well as that
of laymen who should have been her patrons (advocati,
hence advowson), but frequently played the part of op
pressors and robbers. In course of time certain spiritual
1
rights were granted to lay benefactors, chief among them
the right of presenting candidates for ecclesiastical ben
efices and some honorary and material privileges. If the
balance betwen advantages and disadvantages accruing to
the Church from advowson were fairly drawn, we believe
the latter would exceed the former. Hence we need not
be surprised that the Code is not very enthusiastic in this

matter, as is apparent from can. 1449, which defines, di

vides, and limits the iuspatronatus.

CAN. 1448

The iuspatronatus is the sum total of the privileges and

obligations that belong, by ecclesiastical authority, to
Catholic founders of churches, chapels, or benefices, and

A
l Latin verse comprises the 401 pp. There is no mention of
reasons for admitting advowson the iuspatronatus in the Ada Cone.
thus: Patronum faciunt dos, acdi- Bait. Ill; Cone. Bait. II (n. 184)
ficotio, fundus; see the commen- according to Prov. Bait. I (1829)
tators on the Decretats III, 38; rejects the iuspatronatus in this
also Wernz, lus Decret., Ill, n. country (Coll. Lac. Ill, p. 27).
524
 CANON 1449 525

also to such as have obtained a canonical title from the

founders.
The ecclesiastical authority alone can connect a mate
rial right or favor with a spiritual right, such as presen
tation radically is. Whether this is done explicitly or im-
plicity is irrelevant.
The founder must be a Catholic, as shall be seen from
can. 1543, although it must be confessed that in Hun

gary, even Jews tried to obtain the iuspatronatus. The

term founder must not be too strictly interpreted. It in
cludes not only the original or first founder, endower,
maintainer, but also those who have restored a church,
chapel, or benefice.
illis causam habent," means that the iuspatro
"

Qui ab
natus may be obtained not only by a direct privilege or
prescription, but also by succession, donation, exchange,
and sale not directly, but indirectly, by reason of another
;

right. That obligations correspond to the privileges is

evident, because these two terms are always correlative.

CAN. 1449

The is real if attached to an object or

iuspatronatus
thing, as, for instance, real estate, or a building, or an
office. It is personal if it inheres in a person. It is ec

clesiastical if the title itself is ecclesiastical, for instance,

a church, a prebend, an office. It is laical (lay patronage)
if the title is secular, for instance, a civil office or right like

that of inheritance. It is mixed if itsprings from both

an ecclesiastical and a civil title, for instance, if a pastor
has the right of presentation as pastor and as a member of
a certain family. It is hereditary if it is obtained through
succession or by last will. It is a family patronage if it

remains among, and is limited to, the next descendants.

526 ADMINISTRATIVE LAW
It is a clan patronage if it extends to all the descendants
comprised by the name gens, tribe, or clan, for instance,
all the O Rourkcs. It is mixed if one or more of the

above-mentioned titles concur. 2

CAN. 1450-1451

No patronage can be established validly on any title

in future. Local Ordinaries may, however,

(a) Grant to those of the faithful who build churches
or found benefices, either entirely or in part, a claim to
spiritual suffrages in proportion to their generosity, either
for a certain time, or forever; for instance, a founded
Mass or office ;

(b) Admit the foundation of a benefice on condition

that for the first time the founder himself, if he is a

clergyman, be appointed to the benefice or another clergy

man presented by him.
Local Ordinaries should endeavor to induce patrons to
abdicate their iuspatronatus, or at least the right of pres
entation, in exchange for spiritual suffrages for them
selves and their families. If a patron is unwilling to cede
the iuspatronatus, this can be exercised only in accordance
with the following canons.

POPULAR PATRONAGE

CAN. 1452

Elections and presentations to parochial benefices by the

people (i. e., congregations, as for instance, in Switzer
land) can be tolerated only if the people elect one of three
candidates designated by the local Ordinary. Hence
2 The distinction between fa- plained in the same way by all

miliare and gentilitium is not ex- writers.

 CANONS 1453-1455 527

neither the government, nor the municipality, nor the con

gregation as such, are allowed to reject all three candi

dates proposed by the Ordinary.

TRANSMISSION OF PATRONAGE

CAN. 1453

A personal iuspatronatus cannot be validly transmitted,

either by inheritance, donation, change or sale, to infidels,
public apostates, heretics, schismatics, members of secret
societiescondemned by the Church, or to any one who is
under a declaratory or condemnatory sentence of excom
munication.
That a personal iuspatronatus may be validly trans
mitted to others, the written consent of the Ordinary is
required, with due regard to the last will of the founder,
which, once accepted, must be kept sacred.
If a real patronage passes to any of the above-named

persons it remains suspended, viz., until said person be

comes reconciled to the Church.

AUTHENTIC PROOF REQUIRED

CAN. 1454
No iuspatronatus can be admitted unless it is estab
lished by an authentic document or other lawful proofs,
as seen in Book IV.

PRIVILEGES OF PATRONS

CAN. 1455
The privileges of patrons are the following :

i. To present a clergyman (not a layman) for a vacant

church or benefice ;
528 ADMINISTRATIVE LAW
2. To obtain support from the revenues of the church
or benefice, if there are any left, should he (the patron)
become reduced to poverty without his fault. This claim
remains even if the patron has renounced the advowson
in favor of the church, or if a pension was by mutual

agreement reserved to the patron but proves insufficient

for his support. However, this equitable right can be
claimed only if the patron has complied with his obliga
tions as advowee, and the beneficiary has a decent support.

3. To enjoy certain honorary prerogatives, where

these are customary. These prerogatives are:
(a) To have his family coat-of-arms placed in the
church ;

(b) To precede all other laymen at processions and

other similar functions;
(c) To occupy a more prominent seat in the church,
but outside the sanctuary and without a canopy.
Sometimes two swings of the censer at the incensation

are permitted.

WIFE AND MINORS

CAN. 1456

A wife exercises the iuspatronatus herself, children who

are not yet of age, through their parents or guardians;
if the parents or guardians are non-Catholics, the patron

age remains suspended until the minors come of age, or

the parents or guardians become Catholics.

TIME OF PRESENTATION

CAN. I457-I45 8

The presentation for a vacant benefice, whether lay,

ecclesiastical, or mixed, must, if there be no obstacle,
 CANONS 1459-1460 529

be made within at least four months from the day on

which the collator, i. e.,
generally the local Ordinary, has
notified the patron of the vacancy, and from among the
priests who have
successfully passed the concursus, if the
benefice requires a concursus.

Exceptions to this rule are:

(a) Any legitimate obstacle which prevents the patron
from making the presentation, e. g., illness, or suspension,
or a journey to Rome 3
;

(b) The fact that a shorter time is prescribed either by

the will of the founder or by lawful prescription.
no presentation has been made within the prescribed
If

time, the church or benefice becomes, for this time only,

one of -free collation, i. e., the Ordinary can appoint whom
he pleases, without consulting the patron. But if a quar
rel or dispute arises during the four months, concerning

the right of presentation, either between the Ordinary and

the patron, or between different advowees, or about the
candidates, who of them should be accepted, the appoint
ment must be suspended until the controversy is settled,
and, if necessary, an administrator (oeconomus} shall be
appointed by the Ordinary for the church or benefice.

COLLEGIATE PRESENTATION

CAN. 1459-1460

If several individuals are patrons, they may agree

i.

among themselves, both for themselves and for their suc

cessors, to exercise the right of presentation alternately.
2. But in order to be valid this agreement must have

the written consent of the Ordinary, which consent, when

once given, cannot be validly revoked against the will of
3 C. 5, X, III, 8; formerly ec- trons only four months for making
clesiastical patrons had six, lay pa- the presentation; c. 22, X, III, 38.
530 ADMINISTRATIVE LAW
the patrons either by the Ordinary himself or by his suc
cessor.
Whilst canon 1459 treats of patrons severally, can. 1460
mentions a body or college of patrons, which may be a
corporation, for instance, a monastery or university which
possesses the iuspatronatus. For such collegiate presen
tation the following rules are laid down:
i. If the advowson
exercised by a college or body
is

of patrons, the candidate who obtains the majority of

votes, according to can. 101, I, must be considered as

chosen or presented. After two ballots have been cast

without result, all those are to be considered as presented
who obtain a majority in the third ballot, even though they
receive the same number of votes.
2. The same principle is applied to a non-collegiate

body, i. e., when several patrons have an individual right

of presentation. If they cannot agree as to alternate

presentation, the candidate who obtains at least a relative

majority of the votes cast by the litigant patrons is re
garded as presented, and if several candidates are selected
with the same number of votes, they must all be considered
as presented.
3. He who is entitled to exercise a patronage on vari
ous grounds, (for instance as founder, endower, builder,
or by reason of inheritance) enjoys as many votes as he
has titles.
4. Every patron may, before the presentation is ac
cepted, present more than one candidate, either at once
or successively, because the ius ad rem is not yet acquired ;
but he must present these candidates within the prescribed
time and not exclude those whom he presented first.
 CANONS 1461-1464 531

CANDIDATES

CAN. 1461-1464

No one, even though he be a clergyman and the most

worthy candidate available, can present himself, nor
vote with others in order to obtain the number of votes
necessary for presentation. To do this would savor of
4
ambition, and forbidden, even by proxy.
is

The patron, even if he be a layman, can not present

for a church or benefice a cleric who has not suc
cessfully passed the concursus, whenever this is re

quired.
The candidate to be presented must be fit, i. e., he
must have the qualities required by common law, or
all

particular statutes, or the charter of foundation on the

day when the presentation is made, or at least on the
day when he accepts the presentation. The qualities
required by common law are laid down in Book II of
our Code.
The presentation must be made to the local Ordinary,
to whom it appertains to judge whether the candidate is fit.

To form judgment the Ordinary shall make inquiry

his
about the candidate, 5 and obtain information, if necessary
in secret.
The Ordinary is not obliged to manifest to the patron
the reasons for rejecting a candidate.
He may do so, but cannot be compelled, because com
pulsion might involve unnecessary odium.
4 Cc. 15, 26, X, III, 38; Reiffen- 5 See can. 149.
stuel, h. t., n. 72.
532 ADMINISTRATIVE LAW

REJECTION OF THE CANDIDATE PRESENTED

CAN. 1465

I. If the candidate is found unfit, i.e., if he lacks

the qualities required (can. 1463) and is therefore re
jected by the Ordinary, the patron (no matter whether
he be an ecclesiastical or a lay advowee), provided the
four months have not elapsed through his own negli
gence or carelessness, may present another candidate
within another four months. If this one, too, is found
unfit, the Ordinary may, for this occasion, freely ap
point one of his own choice, and we believe he not only
may but should make use of this right, unless the pa
tron has recourse to the Holy See within ten days from
the day when he was notified of the rejection. If re
course is taken, this fact must naturally be communi
cated to the Ordinary. Pending a decision, the bene
fice remains vacant. In the mean time, the Ordinary
shall, ifnecessary, appoint an oeconomus to the vacant
church or benefice.
2. A presentation tarnished with the stain of sim
ony is null and. void by law, and the same rule holds of
the subsequent installation of the candidate by the Or
dinary.

EFFECT OF ACCEPTED PRESENTATION

CAN. 1466-1468

Every candidate who has been lawfully presented and

found fit, by accepting presentation, obtains the right
(ins ad rem) to be canonically installed.
The right to grant canonical institution belongs to the
local Ordinary, but not to the Vicar-General, unless he
has obtained a special mandate to that effect.
 CANON 1469 533

have been lawfully presented, and

If several candidates
allare proved fit, the Ordinary may choose from among
them the one whom he deems most suitable or worthy.
The canonical installation for any and every benefice,
even if it has no cure of souls attached to it, should take
place two months from the date of presentation, unless
a legitimate obstacle prevents.
If the candidate presented resigns his right or dies be
fore the canonical installation has taken place, the patron
again has the right of presentation, to be exercised, as
before, within four months.

OBLIGATIONS OF PATRONS

CAN. 1469
I. The burdens or obligations of patrons are the fol
lowing:
i. To notify the local Ordinary if the property of the
church or benefice is suffering material damage, without,

however, meddling in the administration of the same ;

2. To rebuild a church if it has collapsed, or to make

the repairs that are judged necessary by the Ordinary,
if the advowson was obtained by reason of having built

the church and this burden of repairing or rebuilding is

not incumbent on others, according to can. 1186.

3. If the patronage is based upon the title of endow

ment, the patron must supply new revenues in case the old
revenues of the church or benefice become so insufficient,
that either divine worship cannot be properly kept up, or
the benefice cannot be conferred.
2. In case the church has collapsed, or is in need of
urgent repair, or if the endowment has become insuffic

ient, the iuspatronatus remains suspended until the patron

is able or willing to comply with his obligation.
534 ADMINISTRATIVE LAW
3. If the patron rebuilds or repairs the church, or

supplies the needed revenues, the iuspatronatus within the

time set by the Ordinary, revives otherwise it ceases ;

ipso lure and without any declaration after the expira

tion of the term.

LOSS OF THE IUSPATRONATUS

CAN. 1470

i. The iuspatronatus is lost, as we have seen in the

preceding canon, if the patron fails to rebuild, repair, or

re-endow the benefice. It may also cease for one of the
following reasons :

i. If the patron renounces his right; this renunciation

may be either total or partial but if one of several indi;

vidual patrons gives up his right, no prejudice is thereby

created to the others.
2. If the Holy See revokes the right or permanently
suppressed the church or benefice.
3. If there is a legitimate prescription against the

patron. This is but another form of tacit resignation.

4. If the property or office in which the iuspatronatus
inheres perishes; or the family, clan (gens) or line to
whom the advowson was reserved, dies out. In this latter
case the patronage does not become hereditary, nor can
the Ordinary validly permit it to pass over to persons
not connected by blood relationship with the patron, fam
ily, or clan.
5. If, with the consent of the patron, the church or
benefice is united with another, which is of free colla
tion, or if it becomes elective or regular. This, too, is a
6
kind of tacit resignation.

6 Cfr. Santi-Leitner, III, 38, n. 43 f.

 CANON 1471 535

6. By crime, as follows:
(a) If the patron attempts, even though unsuccessfully,
to transfer his iuspatronatus to another by simony;

(b) If he becomes an apostate, a heretic, or a schis

matic ;

(c) If he unjustly usurps or retains rights and prop

erty belonging to the church or benefice;
(d) If he, either personally or through another, kills
the rector or any other cleric attached to the advowson
church, or the beneficiary.
2. This last-named crime affects also the heirs, whilst

the three first mentioned concern only the patron himself.

3. To incur privation of advowson on account of

any of the four crimes mentioned, a declaratory sentence:

is required and suffices.

4. No one is allowed to exercise the iuspatronatus,

or to enjoy its privileges, who has incurred a censure or
infamy by law, inflicted by a condemnatory or declaratory
sentence, as long as this censure is not removed.

INDULT OF PRESENTATION

CAN. 1471

If the Apostolic See has, either by a concordat or other

wise, granted the privilege of presentation to a vacant

church or benefice, this grant must not be construed as

iuspatronatus, but the indult must be interpreted strictly

according to its tenor. This is clearly intended for coun

tries where the separation of Church and State is not yet
in effect, either totally or partially. The interpretation
must be applied in a similar manner to concordats.
 CHAPTER V
RIGHTS AND DUTIES OF BENEFICIARIES

RIGHTS IN GENERAL

CAN. 1472-1473

Every beneficiary, after having taken canonical posses

sion of his benefice, is entitled to all the rights, temporal

and spiritual, attached to the same.

These rights are, of course, the rights specially con
nected with the benefice. Besides these there are the gen
eral rights arising from the clerical state, as set forth in
can. 118-123, which are by no means curtailed through
the fact of one being installed in a benefice.
s

Of the temporal rights the foremost is that of enjoying

the revenues derived from the benefice, as far as they are
needed for the beneficiary s decent support. He is en
titled to these revenues even though he may possess other

property, but is obliged to devote the superfluous rev

enues to the poor or to charitable institutions.
Since this canon is undoubtedly intended also for pas
tors and curates who hold no strictly so called benefices,
it maybe well to recall the different kinds of clerical
property. They are:
(1) Patrimonial, if derived from the cleric s patri
mony, e. g., by inheritance ;

(2) Quasi- patrimonial, or industrial, if acquired by

the clergyman s own industry or diligence, from work
S36
 CANONS 1472-1473 537

which has no connection with his benefice, for instance, as

a lecturer, a musician, an author ;

(3) Parsimonial, if acquired from ecclesiastical or

beneficiary revenues by living very frugally, so that
something is left over and above the expenditures for
decent support ;

(4) Beneficiary, if acquired from the benefice after a

decent support has been deducted, in other words from
the surplus revenues.
What is a decent support must be decided accord
ing to the circumstances of time and place. It includes
moderate and customary hospitality, which has always
been inculcated by the Church, and suitable recreation
and provision for old age and inability, for instance, by
life insurance or interest-bearing investments. 1
Our text speaks of superfluous revenues. What are
they? Discarding the patrimonial and quasi-patrimon
ial,there can be question only of parsimonial and strictly

beneficiary income. However, since the Code mentions

congrua, it is not likely that parsimonial incomes are un
derstood, and canonists generally do not apply the law to
them. Hence only the strictly beneficiary revenues, which
are left after one has provided for his decent support, can
be understood. These are superfluous, and must there
fore be applied, as the law says, 2 to the poor or to
charitable institutions. Note that this is a strict obliga
tion, not ex mera caritate, but ex iustitia. Our text is

quite explicit on this point, since it calls the beneficiary

only the usufructary, not the possessor or lord, of his

benefice. Usufruct is the right of enjoying a thing
1 Cfr. Santi-Leitner, III, tit. 25, de Ref.; Santi-Leitner, III, tit. 25,
n. 2 f. n. 7, opposes this interpretation,
2 Cfr. c. 1 6, X, III, 5; c. 44, but without a good reason.
X, V, 3; Trid., Sess. 25, cc. i, 9,
538 ADMINISTRATIVE LAW
which is not one s property. This law is very logical,
because the right of property in case of a benefice, by a
fiction of law, is invested in the juridical entity, which is

the benefice itself.

ORDER AND CANONICAL HOURS

CAN. 1474-1475
If a benefice requires the reception of an order, be it
minor or major, the beneficiary must receive that order
before he can be installed.
I. A
beneficiary is obliged faithfully to fulfill the
special obligations connected with his benefice, and,
besides, to recite the canonical hours daily.
2. If he neglects the obligation of reciting the divine

office without a lawful reason, he is bound to make

restitution of the revenues received, in proportion to the
extent of his culpable omission, and should give the
amount due to the church building, or to the diocesan
seminary, or to the poor.
The obligation of reciting the divine office (Breviary)
has been dealt with in Vol. II of this Commentary. From
the decisions of the Holy Office we
here supply the follow

ing points : One who holds either a chaplaincy or other

ecclesiastical benefice cannot comply with the obligation of
reciting the divine office through another,
on the ground
3
that his time is occupied with literary studies. Nor is

the recitation of the entire office on one day sufficient for

the next.
4
Those who cannot recite Matin and Lauds,
but are able to recite the little hours, are obliged to say
5
the latter.
5 Prop. 21 damn, a S. O. f Sept. 5Prop. 54 damn, a S. O. t March
24, 1665 (Denzinger, n. 992). 4, 1679 (ibid., n. 1071).
4 Prop. 35 damn, a S. O., March
18, 1666 (ibid., n. 1006).
 CANONS 1476-1478 539

The proportion in which restitution is to be made has

been declared by Pius V as follows : Those who omit the
entire office, lose all their revenues corresponding to the

day or days on which this duty was entirely neglected;

those who neglect Matins only lose one-half of the rev
enues ; those who omit the rest of the hours, also one-half,
and for each hour the sixth part of the revenues of
single
the respective day. 6 These rules, however, apply only to
such beneficiaries as have no other duty than to recite the
7
divine office.

OBLIGATIONS OF ADMINISTRATION

CAN. 1476-1478

i. As guardian of his benefice, the beneficiary must

administer the goods belonging to the same according to
law.
2. If he has been culpably negligent, he is bound to

repair the damage, and the local Ordinary shall compel

him to make up for the loss. If the beneficiary is a pas

tor, he can be removed (can. 2147 ff.).

i. The ordinary expenses of administration and of

collecting the revenues must be borne by the beneficiary.

Extraordinary expenses incurred for repairing the
2.

beneficiary s residence must be borne by those who are

obliged to make these repairs, unless the charter of the
foundation or mutual stipulation and custom provide
otherwise.
3. Minor
repairs which the beneficiary has to make at
his own expenseshould be made as soon as possible, to
avoid greater ones.
6 S. Pius V,
"

Ex proximo," Sept. supposing he were a beneficiary, re-

20, 1571. ceives his salary chiefly for pastoral
7 A pastor, for instance, even work; and therefore the duty of
540 ADMINISTRATIVE LAW
The local Ordinary is obliged to see to it, through
the rural deans, that the property belonging to benefices is
preserved and properly administered.

LEASFS

CAN. 1479

In leasing property belonging to benefices it is not per

mitted, without the consent of the Ordinary, to demand
that the money be paid over six months in advance. In
extraordinary cases the Ordinary should provide by ap
propriate precepts, that such a lease does not result in
damage to a pious institution or to the beneficiary s suc
cessors.

HOW THE REVENUES ARE TO BE DIVIDED IN CASE OF THE

BENEFICIARY S DEATH

CAN. 1480

In case of death, the yearly revenues must be divided

between the beneficiary s successor and predecessor, or
their heirs, in proportion to the time either has served the
benefice, taking into account all the revenues and ex
penses. If the predecessor was in office four months, for

example, he or his heirs are entitled to one-third of the

revenues, minus any obligations that remain unpaid.
However, legitimate custom or particular statutes may
provide another mode of distribution.

restitution is reduced to a mini- maintains that barely the tenth

mum. Cfr. Noldin, De Praeceptis, part of the revenues would have to
1914, n. 758, f., p. 794, who justly be restored.
 CANONS 1481-1483 541

WHAT IS TO BE DONE IN CASE OF VACANCY

CAN. 1481-1482

All revenues accruing during the vacancy of a benefice

go in equal parts to the endowment or common fund, and
to the building or vestry (sacristy) of the Church. The
expenses, especially the salary of the administrator, may,
of course, be deducted.
Lawful custom may permit these funds to be applied to
the common good of the diocese.
As to the so-called media annata, i. e. the taxes to be
f

paid for certain benefices from the income of the first

year (fructus primi anni), this should be retained where-
ever it is in vogue, and the peculiar statutes and praise
worthy customs of each diocese or region with regard to
the media annata should be upheld.
The media annata, which originated under Boniface
VIII, was never introduced into this country.

EPISCOPAL REVENUES

CAN. 1483

The property of the mensa episcopalis shall be carefully

administered by the bishop. His residence must be kept
in good condition, and if repairs are required, the expenses
are to be paid from said inensa, unless others are obliged
to defray them.
The bishop shall also take care that an accurate in

ventory is made of the movable property belonging to

all

the episcopal residence, and that everything is safely

transmitted to his successor.
 CHAPTER VI

RESIGNATION AND EXCHANGE OF BENEFICES

RESIGNATION

CAN. 1484-1486

Thegeneral principles governing the resignation of

beneficiaries are the same as those laid down in can. 184-

191, to which we may therefore refer the reader (see

Vol. II of this Commentary). The substance of the
above three canons is as follows:
1. Since sordid occupations or begging are unbecoming
to the clerical state in general, 1 and more particularly to
clerics in higher orders, the Ordinary is not allowed to

accept the resignation of any cleric in major orders unless

he is certain that the beneficiary has other means of pro

curing a decent support. Proof to this effect must be

given before the Ordinary can lawfully accept such a res
ignation. The oath of the beneficiary alone would not
but at least one trustworthy witness is required and
suffice,
he must testify under oath. 2
2. This rule holds more especially if the benefice which

a cleric wishes to resign, constitutes the title upon which

he was ordained (titulus beneficii). Such a resignation
would be null and void, unless the beneficiary expressly
1 Trid., Sess. ar, c. 2, de Ref. 1.726, ad III and IV (Richter, Trid.,
2 S. C. P. F., April 18, 1757, ad 113, n. 7).
i (Coll., n. 405); S.
C_ C., Feb. 9,

542
 CANONS 1484-1486 543

stated that he had been ordained to that title and had sub
stituted another legitimate title with the consent of the

Ordinary. Two, or rather say, three conditions are there

fore required :

(a) An express statement of the title of ordination;

(b) Proof that another title has been substituted, and
(c) The consent of the Ordinary into whose hands the
benefice is resigned.
An express statement is one to which no qualification
(for instance, "perhaps," believe," etc.) is attached.
"I

The consent of the Ordinary must be given by means of

a declaration that the substitution has been lawfully
made. 3
A title is any one of those mentioned in can.
legitimate
979, and, no doubt, now also one of those enumerated in
can. 981, because service and mission have been legiti
mated by our Code.
A conditional resignation (canon 1486) may be made in
favor of another (in commodum aliorum) or under some
condition proper which either affects the appointment to
the benefice itself, or its revenues, or burdens imposed

upon the benefice. Such a resignation in favor of an

other strictly forbidden by reason of the danger of in
is
4
troducing hereditary succession. The other kind, too, is
here forbidden, and Ordinaries may not accept it.
The provisio benencii may be affected by a threefold
kind of resignation, which the canonists designate by
accessus, ingressus,and regressus.
A
resignation by accessus is that made by a cleric who
has obtained only the ins ad rem, i. e., a claim to the bene
fice by accepted presentation or nomination.
"

3 S. C. C., Feb. 9, 1726 (/. c.). April i, 1568; Intolerabilis," June

4 Trid., Sess. 25, c. 7 de Ref.; i, 1569; this was called a resigna-
non aliter,"
"

Pius
"

S. V, Quanta Efdesiae," tion with the clause

544 ADMINISTRATIVE LAW
A resignation by ingressus is that made by a cleric who
has the ius in re, that is to say, the right to hold the bene

fice, but has not yet taken possession thereof.

A resignation by regressus is that made by a cleric of
a benefice which he actually possesses. 5 This, too, is for
bidden, for the reason alleged above, and also because of
the restriction imposed on the bestower as well as on the
patron.
But the Code admits one conditional resignation, viz.,
that of a benefice disputed either by a petitory or a pos

sessory claim, provided the resignation is made in favor of

one of the contestants, in order to end the quarrel.

EXCHANGE OF BENEFICES
CAN. 1487-1488

An exchange is a mutual transfer of equal interests, the

one in consideration of the other 6 and if the objects are
;

ecclesiastical benefices, the exchange is a permutatio bene-

ficiorum.
Such an exchange, says can. 1487, can be made only for
a reason involving the necessity or utility of the Church,
or for some other just cause, provided, moreover, that
7
both beneficiaries really possess their benefice. Valid ex
change further requires :

(a) That no other interested persons suffer a detri

ment;
(b) That, if the benefice be one of advowson, the con
sent of the patron be obtained ;

(c) That the exchange be made with the permission

of the local Ordinary, i. e., the bishop ;
the Vicar-general

5 Santi-Leitner, I, tit. 9, n. 24. 7 C. 13, X, II, 25.

6 Blackstone-Cooley, Comment.,
II, 323.
 CANONS 1487-1488 545

needs a special mandate to ratify such an exchange and

the Vicar-Capitular cannot ratify it at all;
(d) That, finally, the exchange be made either in writ

ing or before two witnesses.

The local Ordinary must either refuse his consent or
give within a month, and the exchange is valid from the
it

date of the consent given. But the local Ordinary cannot

ratify an exchange if one or both of the benefices involved
are reserved to the Holy See because the latter s right of
;

8
free collation might thereby be injured.
An exchange supposes benefices of equal or nearly
equal value and importance. When two benefices are un
equal as to income or other value, an exchange, according
to can. 1488, is not permissible ifit is made by reserving

part of the revenues or the payment or grant of any valu

able object, because of the danger of simony. This rule,
it appears, comprises all kinds of unequal exchange, be

tween conventual as well as parish benefices, between in

9
dividuals as well as corporations.
An exchange of benefices cannot be made between more
than two beneficiaries. Hence no
triangular or quadran
gular exchanges are permitted, except by special permis
10
sion from the Supreme Pontiff.

8 Santi-Leitner, III, 19, n. 8. 10 Reiffenstuel, I, 9, n. 123 ff.

9C. 5, X, III, 19; c. 6, X, III,

19 is antiquated.
 TITLE XXVI
OTHER NON-CORPORATE ECCLESIASTICAL
INSTITUTIONS
CAN. 1489-1494

i. Local Ordinaries may erect hospitals, orphanages

and similar institutions destined for religious or charitable

(spiritual or temporal) works; they may also endow such

institutions with the character of ecclesiastical corpora
tions.
The right of the Church to found such institutions can
not be disputed. This right is setforth in Part VI, which
immediately follows. The canonical nomenclature for a
hospital, orphanage, or similar institution under ecclesias
tical control is domus religiose, a religious or rather eccle

siastical foundation or house. To

deserve this name, an
institution must be destined for works of piety or charity
by the ecclesiastical authority, i. e., the local Ordinary or
an exempt religious superior. An institution founded by
private persons without ecclesiastical authority, even
though its purpose be sacred, is called merely domus pia.
The text says: et per ems decretum persona iuridica in
ecclesia constitui. The corporate character attached to
such an institution by the decree of the Ordinary may be
taken in a twofold sense as a corporation proper and
:

as an institute or juridical entity. The corporate charac

ter can only be given if the house belongs to a community
or religious corporation which owns and administers it,
546
 CANONS 1489-1494 547

either by itself or in the name of the Church. For neither

patients nor orphans constitute a corporation they are ;

merely beneficiaries or destinatarii. In the wider sense,

the object (finis) of an institute is, by a legal fiction, the
carrier or subject of its rights and duties, i. e., generally
the officials or representatives acknowledged by law.
2. Before the Ordinary gives his approval, or
local
issues a decree, he must assure himself that the founda
tion is really useful and sufficiently endowed, or that it
has prospects of obtaining sufficient funds. If he neglects
this duty, the blame falls on the Ordinary, together with
such undesirable consequences as debts, etc.
3. In all such institutions the rector or syndic shall
administer the temporalities according to the by-laws laid
down in the charter. His rights and obligations are the
same as those of the administrators of other ecclesiastical

property.
The charter must contain an accurate description of the
constitution, purpose, endowment, administration, and
government of the institution, also of the use to be made
of the revenues and who is to succeed to the property in
case the institution goes out of existence.
Of the charter and by-laws two copies must be made,
one of which is to be kept in the archives of the institution
itself, the other in the diocesan court.
The Ordinary has the right and the duty of visit
local

ing such
all institutions, even though they are corpora
tions or otherwise exempt.
If non-corporate institutions are in charge of a re
ligious diocesan community, they are entirely (i. e,, both
in spiritual and temporal matters) subject to the jurisdic
tion of the local Ordinary; they are in charge of a
if

pontifical or papal religious community, they are under

the supervision of the local Ordinary in whatever con-
548 ADMINISTRATIVE LAW
cerns faith and morals, pious devotions, and the adminis
tration of the Sacraments.

Although a pious or ecclesiastical institution may, in

virtue of its charter, or by prescription, or by a papal priv

ilege, have obtained exemption from the jurisdiction and

visitation of the local Ordinary, the latter is entitled to
demand an account of its affairs, and every contrary cus
tom is hereby reprobated.
If a founder insists that the administrators should not
be obliged to render an account to the local Ordinary, the
foundation cannot be accepted as an ecclesiastical one.
The local Ordinary shall see to it that the pious desires
of the faithful, as set forth in the charter of such institu
tions, be fully carried out.
Without the permission of the Apostolic See such insti

tutions cannot be suppressed or incorporated with others,

or converted to purposes other than those prescribed by
the founders, unless the charter provides differently.
 PART VI
THE TEMPORAL POSSESSIONS
OF THE CHURCH
This last part of the administrative law of the Church
treats first of the property-right of the Church and then
of the mode of acquiring temporal goods and their admia-
istration. To this are added two specific kinds of obli

gation which involve some peculiarities as to form and

object, viz., contracts and pious foundations.
That this part of the Code brings the Church into closer
relation with the State and the world at large goes with
out saying, for it forms the sensible or commercial link
between the two societies, but also the necessary bridge-
between the spiritual and the temporal domain.

RIGHT OF THE CHURCH TO POSSESS PROPERTY^

CAN. 1495

i. Ecclesia catholica et Apostolica Sedes nativum

ius habent libere et independenter a civili potestate ac-
quirendi, retinendi et administrandi bona temporalia
ad fines sibi proprios prosequendos.
2. Etiam ecclesiis singularibus aliisque personis
moralibus quae ab ecclesiastica auctoritate in iuridi-
cam personam erectae sint, ius est, ad normam sacro-
rum canonum, bona temporalia acquirendi, retinendi et
administrandi.
549
 550 ADMINISTRATIVE LAW
The first of the four introductory canons of this Part
vindicates the natural and historic right of the Church
to possess material property in these words :

i. The Catholic Church and the Apostolic See have

the inherent right, freely and independently
of any civil
power, to acquire, retain, and administer temporal goods
for the pursuit of their own ends.
2. Individual churches and other
corporations estab
lished as such by ecclesiastical authority, are also en
dowed with the right of acquiring, retaining, and adminis
tering their own property, according to Canon Law.
To a practical American these propositions appear as
evident as that two and two are four. 1
i. The Catholic Church, being a perfect,
i. e., autono

mous, legal, and visible society, with its own proper end,
cannot lack the means which are necessary to attain that
Now, one of these means is the right to possess
<end.

property. For the Church is founded for men who are

endowed not only with a soul, but also with a body that
needs support and is subject to the senses. The Church
needs temples, sacrifices, and sacraments, and it needs
ministers,who also are men. All these things are essen
the society founded by the Son of One, who is at
tial to

the same time, God. His ministers cannot live on the

word alone; they need at least some bread. Divine wor
ship also requires material aid and support. Now, divine
worship certainly belongs to the Church, in virtue of her
very existence and end. Nor can we imagine that God in

1 It is not necessary to recall all Del Diritto Libcro della Chiesa di

the obnoxious laws of morte main- acquistare e di possiderc Beni Tem-
which were made from the twelfth porali si mobile che stabili, 1769; C.
to our century; see Coulondre, Des Scheys, De lure Ecclesiae ac-
acquisitions des biens par les Etab- quirendi et possidendi Bona Tern-
lissements de la Religion Chretrienne poralia, Louvain, 1892; Archiv. fur
en Droit Romain et dans I Ancien Kath. K.-R., 1904, 22 ff.
Droit Frangais, 1886; Mamacchi,
 CANON 1495 55 r

his providence should have left her destitute of the power

necessary to procure these necessary means, or that He
should have thrown her upon the mercy of the State, for
thiswould involve a handicap and a dependence which
would make her the mercenary and slave of a society
which, as to its end, is inferior to the Church.
Neither can there be, per se, any conflict between the
spiritual and the temporal society, as if the latter would
be curtailed by the acknowledgment of the property right
vested in the Church. For although the State has a ma
terial right totemporal goods, yet this right is neither ab
solute nor unlimited. It is not absolute because the State

is not independent of the Supreme Governor of the uni

verse. It is not unlimited because the State is entitled to

material goods only as far as its end requires it, and as far
as the rights of individuals are not trespassed upon. For
the individual citizen has a right to exist, and consequently
also to own what is necessary for his existence, prior to
any right of the State. And if the State interferes with
out necessity and in violation of that natural freedom
which belongs to every human being, then the individual
2
has a natural right to resist. If this is true of the indi

vidual, it is also, and a founded

fortiori, true of the society
by God, which is also made up of individuals. If we say
that per se no conflict is possible between Church and
State, we suppose, of course, that each society keeps within
its own proper sphere, claiming only what is necessary for
the pursuit of its specific and well defined end.

There is another, more specific reason for the

2.

Church s claim. The Church has the innate right and

duty to establish, foster, and protect charitable works of
2 See Fr. Cuthbert, O. S. F. C., Catholic Ideals in Social Life, 1905,
p. 27.
552 ADMINISTRATIVE LAW
all kinds, which are commanded by her divine Founder. 3
The most luminous pages in her history are those record
ing her deeds of charity. To sever these from the Church
would be the same as tearing a child away from his
mother. The exercise of charity, however, requires sub
stantial means and unhampered liberty, which again is
possible only if the Church is endowed with the inherent
right to possess property.
4
3. Not only the first Church historian, St. Luke, but
also many later writers 5 bear witness to the fact that the
Church always possessed temporal goods. Even pagan
emporers acknowledged that right. Thus Aurelian (270-
275) adjusted a question of property in favor of the
Church against Paul of Samosata. To mention the edict
of Milan 313 is sufficient to prove that Constantine did
not grant, but merely restored, the property right of the
Church. 6 It is superfluous to add further proofs. It was
but natural and logical that the Holy See condemned the
*

contrary tenet, namely, that the Church has no inherent

and lawful right to acquire and possess property." 7
The
present canon vindicates this right of holding prop
erty to the Church at large and to the Apostolic See;
then, with some limitation, also to single corporations.
The term Apostolic See must be understood according
to can. 7 of the Code. However, here it evidently has the
special meaning of the primatial See of St. Peter, and
there seems to be a covert allusion to the temporal power
of the Pope. To set forth the whole Roman Question, so-
3 See Matth. 25, 35 ff.; Acts II, 6 Cfr. Lactantius, De Mortibus
ag ft.; Gal. 2, g f.; I Cor. 16, i; Persecutorum, c. 12; Eusebius,
II Cor. 8 ff.; Rom. 15, 26. Hist. Eccl, VII, 13; S. Brandi, S.
4 Acts 2, 44 f.; 4, 34 ff. /., Di Chi Sono le Chiesef 1898, p.
5 Justin, Apol., I, nn. 14, 67; 16 ff.

Tertull., Apologet., n. 39; Cyprian, Syllabus of Pius IX,

7 n. 26;
Ep. 66, c. 16. Heiner, Der Syllabus, 1905, p. 142 f.
 CANON 1495 553

called, would require a treatise for itself. Let us empha

size but two points, namely, (i) that the temporal do
minion of the Pope, in its limited sense, i. e., as it actually
existed before 1870, cannot be said to be iuris divini,

though it may justly be called providential. Providence

and divine right are not identical terms, else the Church
would have lacked an essential feature for about 700
years; (2) that temporal dominion is compatible with
8
spiritual power ; the latter, as the superior power, may
subject to itself a temporal rule or government, but not
conversely, because the power of assimilation is wanting
in a merely temporal factor.
The Apostolic See, then, being the Church personified
or visibly vested in the Supreme Pontiff, enjoys the right
to possess property to the same extent and in the same
sense as the Church at large.
" "

Individual churches are dioceses or organizations

which have their own superiors, endowed with jurisdic
tion in foro externo, who act as representatives of the
universal Church. Parishes are not such corporations in
the ecclesiastical sense because their purpose is entirely
dependent on the superior end of the diocese, of which
they form a subordinate part, and, besides, the pastor is
not a representative in foro externo. However, by par
ticipation, parishes may share in the nature of a cor
poration proper, and thus be acknowledged by the Church
for the sake of convenience in administration. The State
may recognize them as corporations, provided the local
Ordinary is not excluded. Note that single cnurches or
corporations (for instance, religious communities) are
capable of exercising ecclesiastical property rights only
so long and in so far as they belong to the body of the

8 Syllabus Pii IX, n. 75; Heiner, /. c., p. 331 ff.

554 ADMINISTRATIVE LAW
Catholic Church. The reason is that the partial end, such
as pursued by single churches and corporations, necessar
ily follows the universal end of the Church at large, and
borrows from it its juridical entity. Hence if a particular
church or organization departs from unity of faith or
government, or adopts a worship different from that of
the universal Church, it can lay no claim to any prop
erty which it enjoyed whilst united to the entire, su
premely sovereign organism. This has also been ruled by
courts in the United States. 9
These individual churches and corporations, then, are
dependent upon the Church for their existence, for
they cannot grow except on ecclesiastical soil, and become
dead outside the pale. They depend on the universal
Church common law of the same is
also in as far as the

binding on them concerning the acquisition, possession,

and administration of property. It does not follow from
this proposition that there are two subjects of such eccle
siastical property rights, one the Church universal, and
the other an individual corporation. The Code is against
such a splitting up of the one and indivisible property
"

right. his
a right, dependent only in as far as
est" it is

the welfare of the whole Church requires. In a similar

manner our civil corporations depend on the State, but

enjoy the complete and autonomous right to possess and

10
administer their property.

CAN. 1496

Ecclesiae ius quoque est, independens a civili pote-

a fidelibus quae ad cultum divinum, ad
state, exigendi
honestam clericorum aliorumque ministrorum susten-
9 Zollmann, American Civil Eccl. Publ., 1910, p. 42; Tanquery,
Church Law, 1917, p. 194. Summa TheoL Moral., ed. 2, III,
10 Cfr. Bachofen, Summa luris p. 85.
 CANON 1497 555

tationem et ad reliquos fines sibi proprios sint necessa-

ria.

Can. 1496 is a corollary of the preceding canon, and

vindicates to the Church, independently of any civil
power, the right to demand of the faithful whatever is
necessary for divine worship, for the support of her
clergy and other servants, and for the pursuit of her
proper ends. This is a corollary, or logical deduction,

from what was stated above, because it follows from the

inherent right of the Church to possess property suf
ficient for her support. The legal standing of the Church
requires such an independent right, since the faithful be
long to her by divine right, having been consecrated to
her by baptism.
To this right, of course, corresponds a duty on the part
of the faithful. What was said under can. 463, must
here, proportionately, be applied to all the purposes men
tioned. 11
CAN. 1497

i. Bona
temporalia, sive corporalia, turn immobi-
lia turnmobilia, sive incorporalia, quae vel ad Eccle-
siam universam et ad Apostolicam Sedem vel ad aliam
in Ecclesia personam moralem pertineant, sunt bona
ecclesiastica.
2. Dicuntur sacra, quae consecratione vel bene-

dictione ad divinum culturn destinata sunt; pretiosa,

quibus notabilis valor sit, artis vel historiae vel mate-
riae causa.

i. All kinds of church property are, according to can.

1497, called ecclesiastical, no matter whether it belongs
to the universal church, or to the Apostolic See, or to an

11 See Vol. II, 539 f.

556 ADMINISTRATIVE LAW
ecclesiasticalcorporation, and no matter whether it is
corporeal (movable or immovable) or incorporeal.
" "

Right of property is taken in the subjective sense

as the moral faculty of doing something, or of holding or

exacting property. Hence it is something intellectual and

moral, not perceived by the senses. If a distinction is
drawn between corporeal and incorporeal property it is
because of the objects which these categories comprise;
they are corporeal, if they fall under the senses such are ;

landed property, buildings, chattel, objects, etc. incor ;

poreal they cannot be seen or perceived by the senses,

if

except as far as they are asserted; such are advowsons,

12
titles, franchises, pensions, rents, leases, etc.
2. If. goods or objects belonging to the Church have

received a consecration or blessing by which they were

destined for divine worship, they are called sacred. This
character, of course, adheres to corporeal things only.
Precious objects are such ecclesiastical things as have a
considerable value on account of the artistic skill with
which they are wrought, or because of their antiquity or
historical associations, or on account of the material con
tained in them.
CAN. 1498
In canonibus qui sequuntur, nomine Ecclesiae signi-
ficatur non solum Ecclesia universa aut Sedes Aposto-
lica, sed etiam quaelibet persona moralis in Ecclesia,
nisi ex contextu sermonis vel ex natura rei aliud appa-
reat.

By the term Church in the following canons are under

stood not only the universal Church, or the Apostolic See,
but any ecclesiastical corporation, unless the contrary ap
pears from the context.
12 Blackstone-Cooley, /. c., II, 15 ff.
 TITLE XXVII

THE ACQUISITION OF ECCLESIASTICAL

PROPERTY
CAN. 1499

i. Ecclesia acquirere bona temporalia potest om

nibus iustis modis iuris sive naturalis sive positivi,

quibus id aliis licet.

2. Dominium bonorum, sub suprema auctoritate

Sedis Apostolicae, ad earn pertinet moralem personam,
quae eadem bona legitime acquisiverit.
Can. 1499 vindicates to the Church the right of acquir
ing property by all just means which are permitted by
either natural or positive law to other citizens or individ
uals, i.
by contract, donation, inheritance, etc.
e.,

The titleor ownership is vested in the corporation itself,

though, of course dependently on the Holy See, i. e., on

common law.
Here it may not be amiss to point out the different
forms of holding church property. They are: (a) by
corporation sole, which consists of one person, who trans
fers it to his successor in office thus a bishop or pastor
;

holds property in the name and as officer of the diocese

or pastor; (b) by corporation aggregate, when the church
members are the incorporators and whatever property
*
they possess or acquire is vested in the body corporate ;

l Cfr. Zollmann, American Civil Church Law, 1917, p. 38 ff.

557
558 ADMINISTRATIVE LAW

(c) in fee simple, which conveys absolute and direct

ownership of the property, and was looked upon in former
2
days as vested in the bishop for all diocesan property.

DIVISION AND TRANSFER OF CHURCH PROPERTY

CAN. 1500

Diviso territorio personae moralis ecclesiasticae ita

ut vel illius pars alii personae morali uniatur, vel dis-
tincta persona moralis pro parte dismembrata erigatur,
etiam bona communia quae in commodum totius terri-
toriierant destinata, et aes alienum quod pro territorio
contractum fuerat, ab auctoritate ecclesiastica, cui di-
visio competat, cum debita proportione ex bono et

aequo dividi debent, salvis piorum fundatorum seu ob-

latorum voluntatibus, iuribus legitime quaesitis, ac le-
gibus peculiaribus, quibus persona moralis regatur.

CAN. 1501

Exstincta persona morali ecclesiastica, eius bona

fiunt personae moralis ecclesiasticae immediate supe-
rioris, salvis semper fundatorum seu oblatorum volun
tatibus, iuribus legitime quaesitis atque legibus pecu
liaribus quibus exstincta persona moralis regebatur.

If a territory, say a diocese or corporation, is divided

so that part of its territory is united to another corpora
tion, or a distinct juridical person is established out of the
dismembered part, the property that belonged to the terri
tory as a whole must be divided and the debts distributed
by the competent ecclesiastical authority. This division
must be made according to the principles of justice and
2 Blackstone-Cooley, Comment., II, 104 f. The S. C. prefers ownership by
corporation sole.
 CANON 1501 559

equity, withdue regard to the will of the founders or do

nors and to the acquired rights and the particular statutes
governing the moral person who sustained the division.
This is a corroboration of what was stated under can. 1427
concerning the division of parishes, to which also the note
of Cardinal Gasparri refers, thus hinting that this canon
must also be applied to parishes, even though they may
not come up to the notion of a corporation proper. But
persona moralis may also signify a juridical entity of the

species of benefices, and as these may be divided or dis

membered, so also parishes.
The proportion to be observed is twofold general and
:

particular. The general proportion is indicated by the

bonum But since it is a maxim
"

phrase, et aequum."

that equity follows the law, it is evident that justice must

be the first measure, to be taken not in the arithmetical,
but in the geometrical sense, for it would be next to impos
sible to make such an equal division that cent for cent and
inch for inch would be shared. The particular proportion
is to be gauged by the acquired rights (because melior est

conditio possidentis) the charter and by-laws.

,
This same
proportion in can. 1501 is applied to the case where a
moral or juridical person ceases to exist. For this partic
ular proportion means that all the property left by such an
extinct person passes to the immediate superior. Thus,
for instance, the property of an extinct parish goes to the
diocese if a diocese were suppressed, we suppose the S. C.
;

Consistorialis would provide. If a monastery or convent

of a centralized order becomes extinct, its property passes
to the province, unless the constitutions rule otherwise.
560 ADMINISTRATIVE LAW
CAN. 1502

Ad decimarum et primitiarum solutionem quod atti-

net, peculiaria statuta ac laudabiles consuetudints in

unaquaque regione serventur.
As to tithes (dimes) and first-fruits, the special statutes
and praiseworthy local customs should be observed.

BEGGING

CAN. 1503

Salvis praescriptis can. 62 1-624, vetantur privati tame

clerici quam laid sine Sedis Apostolicae aut proprii
Ordinarii et Ordinarii loci licentia, in scriptis data, sti~
pern cogere pro quolibet pio aut ecclesiastico institute
vel fine.

Private persons, whether clerics or laymen, are for

bidden to collect alms for any charitable or ecclesiastical
institution or purpose, unless they have the written per
mission of the Apostolic See or that of their own and of
the local Ordinary.
Concerning religious enough has been said under can.
621-624, which must be strictly followed. It is hardly to
be presumed that collectors will go about collecting alms,
3
as they formerly did, under false pretences, even promis

ing people eternal joy. But churches are still being built,
and hospitals and schools erected, which require an appeal
to Christian charity. Hence this regulation, which is in

tended to keep order.

Who are the private persons here intended ? All those
who beg without official or public capacity, authority or
warrant, no matter whether they belong to the ranks of
3 C. 2, Clem. V, 9.
 CANON 1504 561

the clergy or the laity. A

pastor is no private person, and
may therefore collect within the boundaries of his parish,
but not beyond without the required permission, be
cause outside his own district he has no official capacity.
It is a wise ruling, and in keeping with our canon, if dio

cesan statutes forbid priests in charge of souls to collect

either directly or indirectly, for instance, by selling tickets
or chances. 4 The so-called chain-letters belong in the
waste-basket.
Are bishops allowed to collect in another diocese than
their own? If they have obtained the written consent of
the respective Ordinary, they certainly are allowed to
do so.

The
"

text says, for any charitable or ecclesiastical

purpose."
This means that a pastor, or any other priest,
isnot allowed to collect for others, say a hospital or sis
terhood, unless he has the permission of the Apostolic
See (S. Congregatio Concilii can. 250), or of the two Or
;

dinaries concerned. Of course, if the collector does not

cross the boundary line of another diocese, he needs only
the written permission of his own Ordinary. If he has
obtained this, he requires no permission from the pastor
in whose parish he wishes to collect, although courtesy
may move him to apply for it. Besides, the diocesan
statutes must be observed.

THE CATHEDRATICUM
CAN. 1504

Omnes ecclesiae vel beneficia iurisdictioni Episcopi

subiecta, itemque laicorum confraternitates, debent
quotannis in signum subiectionis solvere Episcopo ca-
4 Thus the diocesan statutes of but the first clause must now be
Leavenworth and St. Joseph, n. 58; changed according to our canon.
562 ADMINISTRATIVE LAW
thedraticum seu moderatam taxam determinandam ad
normam can. 1507, i, nisi iam antiqua consuetudine
fuerit determinata.

In Spain and in Italy it was customary, in the sixth cen

tury, to pay two solidi to the diocesan bishop, either on
propter honorem cathedrae."
"
5
his visit or otherwise,
This tribute was, as the Latin term shows, paid as a token
or earnest of the dependence and submission of the
church and clergy. After exemptions became more nu
merous, the monasteries paid a certain tribute to the Holy
See as a sign of papal patronage and exemption from epis
copal jurisdiction. Hence exempt regulars did not pay
the cathedraticum to their diocesan bishop unless they held
incorporated benefices or parishes. 6 Those who were
wont to pay this tribute, usually offered it at the diocesan
synod, whence it came to be called synodaticum.
Our canon and benefices subject
rules that all churches
to the jurisdiction of the bishop, as well as lay confra
ternities, are obliged to pay annually, as a sign of subjec
tion, the so-calledcathedraticum, a moderate tax to be
levied according to can. 1507, I, unless some other

method exists by ancient custom.

Hence, churches and public oratories subj ect to
( i ) all

episcopal jurisdiction must pay the cathedraticum, even

though they may not have been subject to it formerly.
This certainly holds concerning all churches ruled by the
secular clergy. Churches or public oratories in which
exempt religious hold services for themselves only, and
not for outsiders, or for these only per accidens, need not
pay the cathedraticum. But if exempt religious have a
5Cc. i, 4, 6, C. 10, q. 3 the 6 C. 16, X, I, 31; c. i, X, III,
underlying idea being that all 35.
churches sprang from the cathedral
church.
 CANON 1505 563

parish church, even though it be an abbey or a convent

church, or an incorporated public oratory, and even
though one of their own number acts as pastor or chap
7
lain,they are obliged to pay this tax.
(2) All benefices not exempt from episcopal jurisdic
tion must also pay the cathedraticum. Thus canons bene
ficiaries, who
possess a distinct benefice, also the theologus
and poenitentiarins, are bound by this obligation. 8
(3) Lay confraternities must pay the cathedraticum if
they own not merely a chapel erected in honor of a saint
in some church, but a church or public oratory of their

own, even though no benefice is connected with that

church or oratory. 9
(4) The amount of this tribute was formerly estab
10
lished at two solidi (about $6.00) a year. But the Code
leaves it to be settled by provincial councils.

SUBSIDIUM CHARITATIVUM

CAN. 1505

Loci Ordinarius, praeter tributum pro Seminario, de

quo in can. 1355, 1356, aut beneficialem pensionem de
qua in can. 1429, potest, speciali dioecesis necessitate

impellente, omnibus beneficiariis, sive saecularibus sive

religiosis, extraordinariam et moderatam exactionem
imponere.
When there is particular need on the part of the dio
cese, the local Ordinary may demand, besides the semi-
naristicum and the pension mentioned in can. 1429, a con-
7 Ibid., and the commentators; 24, 1760 (Richter, /. c., n. 22).
Reiffenstuel, III, tit. 39, n. 12 f.; 8 S. C. C, March 18, 1775; April
Santi-Leitner, III, 39, n. 6; S. C. C., 7, 1742 (Richter, /. c., n. 20 f.).
Feb. 26, 1707 (Richter, Trid., p. 9 S. C. C., May 22, 1734, July
336, n. 19); also churches iuris- 24, 1734 (Richter, /. c., n. 24 f.).
patronatus laicalis; S. C. C., July 10 See cc. 4-6, C. 10, q. 3.
564 ADMINISTRATIVE LAW
tribution from all beneficiaries, secular as well religious,
but this contribution must be moderate and can be de
manded only extraordinarily, not regularly. It is called
a charitable subsidy, and, as such, differs from the
regular
diocesan taxes, though it may be demanded in justice, and
therefore under threat of penalty.
The term Ordinaries here, according to the common
opinion of canonists, based on the Decretals, 11 means only
the bishops or Ordinaries themselves, not the Vicars-Gen
eral.

Metropolitans cannot impose this tax on their en

tire province, but only on their own archdiocese. 12 Apos
tolic administrators and coadjutors appointed by the
Apos
tolic See, also Vicars Capitular (our administrators) are
13
entitled to demand this subsidy.

Those upon whom the subsidium charitativum may be

imposed are the beneficiaries, as explained under can.
1504, and to the same extent, also exempt religious if they
hold a parish church or other benefice.
The reason stated as being a special need of the dio
is

cese. Such
special needs are a large indebtedness con
:

tracted by the bishop or his predecessor for the welfare of

the diocese; extraordinary support of the Apostolic See;
expenses required for the msitatio ad limina or a journey
to a general or provincial council. 14
It must, however, be observed that the S. Congregation

has forbidden bishops to collect this subsidy if they pos

income or revenues (pingues reditus habentes)
sess a rich
or if noand urgent reason exists, or if the benefici
real
aries from whom the tax is demanded have but a bare
15
living.

11 C. 6, Prohibemus, X, III, 39. 14 Ibid., n. 31.

12 Reiffenstuel, III, tit. 37, n. 20. 15 S. C. C., Feb. 27, 1603 (Rich-
13 Ibid., n. 23. ter, Trid., p. 336, n. 27).
 CANONS 1506-1507 565

CAN. 1506

Aliud tributum in bonum dioecesis vel pro patrono

imponere ecclesiis, beneficiis aliisque institutis eccle-
siasticis, quanquam sibi subiectis, Ordinarius potest
tantummodo in actu fundationis vel consecrationis ;

sed nullum imponi tributum potest super eleemosynis

Missarum sive manualium sive fundatarum.

Can. 1506 forbids Ordinaries to impose any other tax

besides those mentioned, for the benefit of the diocese or a
patron (advowee), upon churches, benefices, and other
ecclesiastical institutions, subject to their jurisdiction, ex
cept on the occasion of their foundation or consecration.
All other taxes are against the common law (can. 1429)
and looked upon as either simoniacal or as an unjust
diminution of benefices. Never can a tax or contribution
be imposed upon either manual or foundation masses.

CAN. 1507

i.Salvo praescripto can. 1056 et can. 1234, praefi-

nire taxas pro variis actibus iurisdictionis voluntariae
vel pro exsecutione rescriptorum Sedis Apostolicae vel
occasione ministrationis Sacramentorum vel Sacra-
mentalium, in tota ecclesiastica provincia solvendas,
est Concilii provincialis aut conventus Episcoporum
provinciae sed nulla vi praefinitio eiusmodi pollet, nisi
;

prius a Sede Apostolica approbata fuerit.

2. Ad taxas pro actibus iudicialibus quod spectat,

servetur praescriptum can. 1909.

Can. 1507 governs the manner of fixing ecclesiastical

taxes. It should be done at a provincial council or meet

ing of the bishops, but needs the approval of the Holy See
 566 ADMINISTRATIVE LAW
to have legal force. The taxes here comprised are
(a)
those levied for the exercise of
voluntary jurisdiction, i. e.,
dispensations, commutations (except matrimonial dispen
sations can. 1056), and funeral taxes
;
(can. 1234); (b)
the executoriae or fees for the execution of
papal re
scripts; (c) charges for the administration of the Sacra
ments and sacramentals. Not included are taxes im
posed for ecclesiastical trials, which are subject to the
rules laid down in can. 1909.

PRESCRIPTION

CAN. 1508

Praescriptionem, tanquam acquirendi et se liberandi

modum, prout est in legislatione civili respectivae na-
tionis, Ecclesia pro bonis ecclesiasticis recipit, salvo
praescripto canonum qui sequuntur.
This canon admits for ecclesiastical property prescrip
tion, asit is current or in
vogue under the civil law in
each country the following canons limit prescription.
;

Prescription (called in Roman law usucapio) is the

mode of acquiring a title to property by long-continued
and uninterrupted possession. It also means freeing one
self from an obligation due to another, for instance, tithes
or pensions, in which case the term signifies the loss of a
property right brought about by omission to assert the
same within a given time. Finally, prescription also has
the meaning of the period or time required for legal ac
quisition or loss of this right.
The new Code accepts prescription in the same sense
and with the same conditions under which it operates
according to the laws of different countries, provided the
following canons are observed.
 CANON 1509 567

CAN. 1509

Praescriptioni obnoxia non sunt :

i. Quae sunt iuris divini sive naturalis sive posi-

tivi;
2. Quae obtineri possunt ex solo privilegio apos-
tolico ;

3. lura spiritualia, quorum laici non sunt capaces,

si agatur de praescriptione in commodum laicorum ;

Fines certi et indubii provinciarum ecclesiasti-

4.

carum, dioecesium, paroeciarum, vicariatuum apos-

tolicorum, praefecturarum apostolicarum, abbatiarum
vel praelaturarum nullius.
5. Eleemosynae et onera Missarum ;

6. Beneficium ecclesiasticum sine titulo;

7. lus visitationis et obedientiae, ita ut subditi a
nullo Praelato visitari possint et nulli Praelato iam
subsint ;

8. Solutio cathedratici.

Can. 1509 excepts from prescription the following ob

16
jects and rights :

i. Things enjoined either by the natural or by divine

law, for instance, the right of parents to their children,
the primacy of the Roman Pontiff, the Sacraments, the
constitution of the Church.

Things that can be obtained only by an Apostolic

2.

privilege, for instance, exemption of persons not com

prised by law.
3. Spiritual rights of which laymen are incapable, if

prescription concerns things or rights in favor of laymen,

for instance, lay investiture, or election of laymen to an
ecclesiastical benefice.
16 Cfr. the commentators on lib. II, tit. 26; Wernz, /. c., Ill, n. 298;
P. 333 f.J see under can. 1701 ff.
 568 ADMINISTRATIVE LAW
4. Certain and undisputed boundary lines of ecclesi
astical provinces, dioceses, parishes, vicariates apostolic
and prefectures apostolic, abbacies and prelacies nullius.

5. Alms or mass stipends and obligations; however,

although these as such cannot be prescribed against by
any contrary custom, yet they may be transferred from
one to another; thus if the canons or prebendaries of a
church were in turn obliged to say and apply Mass for
the benefactors, this obligation could be imposed upon the
dean or provost of the chapter by prescription. 17
6. Ecclesiastical benefices obtained without titlef i. e.,
without at least a tiiulus coloratus (see can. 1446).
7. The right of canonical visitation and obedience, so
that the subjects could not be visited by any prelate or
would not be under obedience to any prelate. But a mere
transfer of obedience or visitation from one prelate to
another (translativa praescriptio)may take place by pre
18
scription. The fact is that exemption rested, centuries

ago, on prescription.
8. The payment of the cathedraticum, which cannot
itself be subject to prescription, although the amount is
19
liable to prescription.

CAN. 1510

i. Res sacrae quae in dominio privatorum sunt,

praescriptione acquiri a privatis personis possunt, quae
tarnen eas adhibere nequeunt ad profanes usus; si vero
consecrationem vel benedictionem amiserint, libere ac
quiri possunt etiam ad usus profanes, non tamen sor-
didos.
2. Res sacrae, quae in dominio privatorum non
17 S. C. C., June 17, 1879; 18 Reiffenstuel, II, 26, n. 52 ff.
(Anal. Eccl. IX, 201 19 Santi-Leitner, III, 39, n. 6.
April 27, 1901
ff.).
 CANONS 1511-1512 569

sunt, non a persona privata, sed a persona morali ec-

clesiastica contra aliam personam moralem ecclesiasti-
cam praescribi possunt.

Can. 1510 concerns sacred things (res sacrae) owned

by private persons. These may be acquired by prescrip
tion, but not used for profane purposes, unless they have
lost their consecration or blessing, and even then the pur

pose must not be unbecoming (sordidus). Sacred objects

which are not owned by private persons cannot be ac
quired by prescription by a private, but only by a juridical
person, against whom only an artificial person can pre
scribe.

CAN. 1511

i. Res immobiles, mobiles pretiosae, iura et ac-

tiones sive personales sive reales, quae pertinent ad

Sedem Apostolicam, spatio centum annorum praescri-
buntur.
2. Quae ad aliam personam moralem ecclesias-
ticam, spatio triginta annorum.

Can. 1511 reasserts the ancient privilege of the Roman

Church, against which only a prescription of 100 years
is admitted, no matter whether it concerns landed prop

erty, precious movable property,

rights, or personal as well
as real actions. Against other ecclesiastical corporations
or juridical entities a term of thirty years suffices for
prescription.

CAN. 1512

Nulla valet praescriptio, nisi bona fide nitatur, non

solum initio possessionis, sed toto possessionis tem-
pore ad praescriptionem requisite.
 570 ADMINISTRATIVE LAW
No prescription, however, is valid which is not based
upon good faith at the beginning as well as
throughout
the whole period permitted for This rule
prescription.
has always been upheld by the Church
against the Roman
law, which required good faith only at the 20
beginning.
Hence modern civil law, which follows the Roman law,
cannot be accepted in this case. Good faith, which is
the prudent and sincere judgment that one holds or
pos
sesses a thing by right or without
infringement of an
other s rights, is required by natural law, because bad
faith would render the possession sinful and therefre
illicit, and no human or divine positive law could declare
it just or lawful.

DONATIONS AND LEGACIES

CAN. 1513

I. Qui ex iure naturae et ecclesiastiao libere valet

de suis bonis statuere, potest ad causas pias, sive per
actum inter vivos sive per actum mortis causa, bona
relinquere.
2. In ultimis voluntatibus in bonum Ecclesiae ser-
ventur, si fieri hae si
possit, sollemnitates iuris civilis;
omissae fuerint, heredes moneantur ut testatoris vol-
untatem adimpleant.

He who, by natural and ecclesiastical law, is free to

dispose of his property, may bequeath the same, either by
donation or last will and testament, in favor of pious
institutions or causes.

Testamentary bequests of the faithful in favor of the

Church should, if possible, be made in legal form, i. e.,
20 Cfr. cc. 5, 8, 17, 20, X, II, 26; 1. un. Inst., II, 6; 1. un., Cod.,
VII, 31.
 CANONS 1514-1515 571

according to the rules prescribed by civil law. If this pre

caution has been omitted the heirs must be admonished
to carry out the testator s will.

propositions that it would be sinful to found

Wiclif s :

convents, that to bequeath money to the clergy would be

against the teaching of Christ, and that the emperors were
mistaken in endowing the Church, were deservedly con
demned. 21 Nevertheless, the nineteenth century re
22
vamped these impious theories.
The question whether a last will or donation not drawn
up in legal form is binding in conscience was decided by
the S. Poenitentiaria, which said that it is the Roman
practice to hold such legacies valid and binding in con
science, but the heirs are easily admitted to an agreement
with the church or pious institution. 23

CAN. 1514

Voluntates fidelium facultates suas in pias causas do-

nantium vel relinquentium, sive per actum inter vivos,
sive per actum mortis causa, diligentissime impleantur
etiam circa modum administrationis et erogationis
bonorum, salvo praescripto, can. 1515, 3.

CAN. 1515

i. Ordinarii omnium piarum voluntatum tarn mor

tis causa quam inter vivos exsecutores sunt.

21 Propp. 31-33 (Denzinger, nn. Jones, Legal Forms, 7th ed. Notice
507-509). also that "contracts to procure a
22 Pius IX,
"

Quanta Cura," third person to make a will in fa-

Dec. 8, 1864. vor of a particular person or object,
23 S. Poenit, Jan. 10, 1901 (Coll. or to use his influence to procure
P. F., n. 2099). As to the legal such testamentary disposition, are
form to be observed in making wills, illegal;" see Plarriman, The Law of
see Am. Eccl. Rev., Vol. 33, 306 ff.; Contracts, 1901, 214.
also "After My Death," 1918;
572 ADMINISTRATIVE LAW
2. Hoc ex iure Ordinarii vigilare possunt, ac de-

bent, etiam per visitationem, ut piae voluntates im-

pleantur, et exsecutores delegati debent, perfuncti
alii

munere, reddere rationem.

illis

3. Clausulae huic Ordinariorum iuri contrariae,

ultimis voluntatibus adiectae, tanquam non appositae
habeantur.

Can. 1514 and 1515 emphasize the great care which

theChurch has ever bestowed on the faithful administra
tion and distribution of property left by donation or be
quest. They are specially intended for executors, who
are obliged to attend to speedy execution, according to the
term permitted by civil law. In the business of execution
they must chiefly attend to the wording of the will. They
are not allowed to substitute one pious institution for an
other, unless the document permits them to do so, nor are
"

to one
"

they permitted to apply a legacy for the poor

poor person only. Among the poor those of the deceased

person s home town should be favored and the most needy
24
selected.
These general rules should also guide the Ordinaries,

who, according to can. 1515, are the executors of all pious

gifts, by donation as well as by last will (mortis causa).

They may and must, at the canonical visitation, take cog

nizance of pious bequests, and other executors are obliged
to render an account to the Ordinaries after they have dis

charged their office. Every clause which runs counter to

this right of the Ordinary must be looked upon as non-

existing.
" "

Ordinaries here includes the superiors of exempt

religious. Religious, too, (except Friars Minor) may

24 Reiffenstuel III, tit. 26, n. 772 ff.

 CANON 1516 573

be executors of last wills, but must in each case obtain

25
previous permission from their superiors.

CAN. 1516
i. Clericus vel religiosus qui bona ad pias causas
sive per actum inter vivos, sive ex testamento fidu-
ciarie accepit, debet de sua fiducia Ordinarium cer-
tiorem reddere, eique omnia istiusmodi bona seu mo-
bilia seu immobilia cum oneribus adiunctis indicare;

quod si donator id expresse et omnino prohibuerit,

fiduciam ne acceptet.
2. Ordinarius debet exigere ut bona fiduciaria in

tuto collocentur et vigilare pro exsecutione piae volun-

tatisad normam can. 1515.
3. Bonis fiduciariis alicui religiose commissis, si

quidem bona sint attributa loci seu dioecesis ecclesiis,

incolis aut piis causis iuvandis, Ordinarius de quo in
i, 2, est loci Ordinarius secus, est Ordinarius eius-
;

dem religiosi proprius.

Can. 1516 plainly shows that not only the secular clergy
but religious, too, may be executors and trustees. If a
cleric or religious receives a donation or a bequest in

trust, he must notify his Ordinary of that fact and indi

cate to him
the property held in trust, movable as well
all

as immovable, together with the obligations attached

thereto. Should a donor have expressly forbidden the
intervention of the Ordinary, no religious or cleric can
26
accept the bequest or donation.
The Ordinary must insist that the property held in trust
is safely invested and watch over the fulfillment of the tes

tator s will, according to can. 1515. A safe investment,

according to Roman practice, is that in land.

25 Ib., n. 777 ff.
20 S. C. C., Aug. 7, 1909, (A. Ap. S., I, 766).
 574 ADMINISTRATIVE LAW
When a religious has received property in trust, the
Ordinary referred to in I and 2 of this canon is the
local Ordinary if the property is destined for a church of
the town or diocese, or for the inmates of charitable in
stitutions existing in that town or diocese in all other ;

cases the Ordinary is the superior of the exempt relig

ious for only exempt clerical superiors go by the name
;

of Ordinaries, according to can. 198.

" "

It seems doubtless that by loci seu dioecesis ecclesiis

must be understood such churches as are either incorpor

ated or parish churches. For if a donation or bequest
were made to a church belonging exclusively to exempt
religious, who use it for their own purposes only, even
though it were a public oratory, it is incredible that the
local Ordinary should have to intervene. This interpreta
tion is borne out by the obvious meaning of the term,
"

dioecesis ecclesiae" churches of the diocese, in the geni-

tivus subjections; for in that sense churches owned by re

ligious, but not as parish or beneficiary churches, are not

of the diocese, although in the diocese.

CHANGE OF LAST WILL

CAN. 1517

i. Ultimatum voluntatum reductio, moderatio,

commutatio, quae fieri ex iusta tantum et necessaria
causa debent, Sedi Apostolicae reservantur, nisi funda-
tor hanc potestatem etiam Ordinario loci expresse con-
cesserit.
2. Si tamen exsecutio onerum impositorum, ob

imminutos reditus aliamve causam, nulla administra-

torum culpa, impossibilis evaserit, tune Ordinarius
quoque, auditis iis quorum interest, et servata, meliore

quo fieri potest modo, fundatoris voluntate, poterit

 CANON 1517 575

eadem onera aeque imminuere, excepta Missarum re-

ductione quae semper Sedi Apostolicae unice corn-
petit.

i. To reduce, mitigate, or change testamentary be

quests is reserved to the Apostolic See, which can pro
ceed only for a just and necessary cause. The local Or
dinary may act only if the founder has expressly granted
this power to him,bound by reasons of
and he too is

justice and necessity, for both the natural and the divine
law, as well as positive law, demand that the last will of the
faithful be conscientiously executed and the money be

queathed by them expended for those purposes for which

it was intended. It may not be applied to a seemingly

better cause, or in a more suitable manner, because such a

change would frustrate the last will of the testator and in

jure the Church, since the faithful would hesitate to make
donations if they were not certain that the money would
be properly applied. Hence, even the Sovereign Pontiff
is bound by the law of
justice and necessity and cannot
27
validly make a change or reduction in a will without a

proportionate cause. It is therefore quite natural to find

that very rare use has been made of this power, and the

negative answers of the S. Congregatio Concilii are more

numerous than the permissive ones. Thus a change of a
mansionariatus (simple benefice of a chapter) into a can-
onicate was rejected; a proposed change of manual masses
28
into chaplaincies was rejected, etc., etc.
2. However, if, on account of decreased revenues or
for other reasons not due to faulty administration, the
obligations cannot possibly be complied with, the Ordinary,
after having heard those concerned, may equitably dimin-

275". C. P. F., 1807, (Coll., n. 27, 1734; June 26, 1772 (Richter,
689). Trid., p. 164).
28 S. C. C., Nov. 4, 1705; Feb.
576 ADMINISTRATIVE LAW
ish the burdens, but must, as well as he
able, abide by
is

the will of the founder. From this power is excluded the

reduction of Mass obligations, which is reserved to the
Holy See.
This canon makes quite a concession to the Ordinaries,
because formerly such faculties were granted only for
29
very particular reasons of distance or slow travelling.
But the local Ordinaries are obliged in conscience to make
use of this privilege only for just and solid reasons. Be
sides, since it has always been the practice of the Roman
Court to ascertain the probable or likely mind of the testa
30
tor before permitting a change, this should also be the
guiding principle for Ordinaries. Here is a case in point :

A pious Catholic had left a sum of money for the pur

pose of founding a home for poor girls exposed to danger.
The legacy proved insufficient (here the reason) and the
foundation appeared rather useless for the town in ques
tion. Hence the money was assigned to a convent for
nuns on condition that they would receive a poor girl
without the dowry otherwise required (here the interpre
31
tation of the probable desire of the founder).
From ordinary episcopal power, in which ex
this now
empt religious superiors do not participate, is excluded
the reduction of mass obligations, which is strictly re
served to the Apostolic See (S. C. Consilii), as will be
further explained in can. 1551.

29 S. C. P. F., 1807 (/. c.). 31 S. C. C., Aug. 19, 1724 (I- c.,

SOS. C. C., Feb. 12, 1735 and n. 2).

pluries (Richter, /. c., p. 135, n. 8).

 TITLE XXVIII

THE ADMINISTRATION OF CHURCH

PROPERTY
THE SOVEREIGN PONTIFF
CAN. 1518

Romanus Pontifex est omnium bonorum ecclesiasti-

corum supremus administrator et dispensator.

The Roman Pontiff is the supreme administrator and

steward of all church property.
This right flows, of course, from the plenitude of his
power, which embraces the final end of the Church as well
as its means. Waiving- the question as to the rights which
were formerly vindicated to him by reason of the relation
of vassalage that existed between some nations and the
1
Apostolic See, it is evident that the Code considers only
actual or present-day conditions. The name dispensator
was given to the Pope by St. Bernard 2 as well as by St.
Thomas. The Angelic Doctor says The possessions of :

the Church belongs to the Pope, not as their lord and

owner, but as their principal dispenser. This means that
the Pope may dispense or dispose of all church property,
even that owned by single corporations, in favor of the
universal Church if an urgent reason exists and the wel
fare or tranquillity of the Church requires it. This
power is given for the edification of the society founded
l See Hergenrother, Katli. Kirche 2 De Consideratione, 1. IV; see
und Christl. Staat, 1872-1878. Fagnani in c. 7, Relatum, III, 50.
577
578 ADMINISTRATIVE LAW

by Jesus Christ, not for its destruction, or for the enrich

ment of the Pontiff or of his family or nation. 3 There is
nothing absurd in the exercise of this power, for the State,
too, claims the right *f eminent domain, in virtue of which
it confiscates or expropriates private property. The law
is based upon the well-known maxim Bonum priva- "

tum cedere debet bono publico"

THE LOCAL ORDINARIES

CAN. 1519

Loci Ordinarii est sedulo advigilare adminis

i.

tration! omnium bonorum ecclesiasticorum quae in suo

territorio sint nee ex eius iurisdictione fuerint sub-
ducta, salvis legitimis praescriptionibus, quae eidem
potiora iura tribuant.
2. Habita ratione iurium, legitimarum consue-
tudinum et circumstantiarum, Ordinarii, opportune
editis peculiaribus instructionibus intra fines iuris

communis, universum administrationis bonorum ec

clesiasticorum negotium ordinandum curent.

i. The local Ordinaries should watch carefully over

the administration of all church property located in

their dioceses, except that which has been withdrawn

from If lawful prescription gives the
their jurisdiction.

bishop the right to administer property otherwise not sub

ject to his power, he may make use of this right. The
"

reason is that the bishop has the intent io fundata in

iure," i. e., the original right of administering all diocesan

property because he is the pastor of the whole territory.

Exemption, as the term implies, spells an exception

from the rule. Therefore, if exempt religious or other
3 Benedict XIV, "Cum, Encyclicas," May 24, 1754. 4-
 CANON 1520 579

exempt communities or individuals permit prescription

against themselves, the original right revives. But ex
emption creates a right of independent administration as
far as the canons admit. For it signifies freedom from
episcopal jurisdiction as well as from the law of the dio
cese f ror the right in dando as well as from the right in
;
i

recipiendo, with due regard, of course, to the common

law. 4 But note
well, the Ordinaries are only the admin
5
istrators, not the dispensers of diocesan property.
Therefore 2 of can. 1519 provides that the Ordinaries
should regulate the whole business of the administration
of diocesan property according to the common law of the
Church and with due regard to special, lawful cus
toms, which are the best interpreters of the law, and to
circumstances. To this effect, and with these objects in
view, they may issue, either in synod or outside, particular
statutes which bind the whole diocese, provided they
keep within the common law.

DIOCESAN BOARD OF ADMINISTRATION

CAN. 1520

i. Ad hoc munus rite obeundum quilibet Ordi-

narius in sua civitate episcopal! Consilium instituat,
quod constet praeside, qui est ipsemet Ordinarius, et
duobus vel pluribus viris idoneis, iuris etiam civilis,

quantum potest, peritis, ab ipso Ordinario, audito

fieri

Capitulo, eligendis, nisi iure vel consuetudine pecu

liar! iam alio aequivalenti modo legitime fuerit pro-
visum.
2. Citra apostolicum indultum, ii a munere admin-
istratoris excluduntur, qui cum Ordinario loci primo
4 Cf r. c. 24, C. 12, q i; c. t8, X, 5 S. C. P. F., April i, 1816 (Coll.
I, 31, and the gloss to the same. P. F., n. 712).
580 ADMINISTRATIVE LAW
vel secundo consanguinitatis vel affinitatis gradu
coniuncti sint.
3. Loci Ordinarius in administrativis actibus
maioris momenti Consilium administrationis audire ne
praetermittat huius tamen sodales votum habent tan-
;

turn consultivum, nisi iure communi in casibus

speciali-
ter expressis vel ex tabulis fundationis eorum con
sensus exigatur.
4. Sodales huius Consilii iusiurandum de munere
bene ac fideliter adimplendo coram Ordinario emittant.

I.In order that this business be properly attended

to, every Ordinary shall establish in his episcopal city a
board of administrators, consisting of the president, who
isthe bishop himself, and two or three capable men, expe
rienced also in civil law, if possible, to be appointed
by the Ordinary after having heard the advice of his
chapter (or consultors). Should there be in the diocese a
particular law or custom which provides an equally effec
tive mode of administration, this may be retained. But
some kind of a council (consilium) there must be, ac
cording to the admonition of the wise man: Do noth "

ing without counsel, and thou shalt not repent, when

6
thou hast done."

2. Excluded from this council of administrators are

all relatives in the first and second degree (affines et con-
sanguinei) of the local Ordinary, unless the Apostolic See
should grant a dispensation to the contrary.
3. Local Ordinaries shall not fail to call the council
of administrators as often as any business of importance
is to be transacted. Such business would be alienation of
property, for which a papal indult is required, the effective
exercise of supervision over the administration of tem-

6 Ecclus. 32, 24.

 CANON 1521 581

poralities, and the rendering of accounts to be given an

7
nually by those who are obliged to do so. But the vote of
these administrators is advisory only, unless a decisive
vote is required in certain cases expressed in law or in
the charter of a foundation.
4. The members of this board must take oath to the
effect that they will their duty well and faithfully.
perform
It may be observed that these administrators may also
be laymen, provided, of course, they are Catholics.

ADMINISTRATORS OF INDIVIDUAL INSTITUTIONS

CAN. 1521

i. Praeter hoc dioecesanum Consilium administra-

tionis, Ordinarius loci in administrationem bonorum
quae ad aliquam ecclesiam vel locum pium pertinent
suum non habent ad-
et ex iure vel tabulis fundationis
ministratorem, assumat viros provides, idoneos et boni
testimonii, quibus, elapso triennio, alios sufficiat, nisi
locorum circumstantiae aliud suadeant.
2. Quod si laicis partes quaedam in administra-
tione bonorum ecclesiasticorum vel ex legitimo funda
tionis seu erectionis titulo vel ex Ordinarii loci volun-
tate competant, nihilominus universa administratio
nomine Ecclesiae fiat, ac salvo iure Ordinarii visitandi,

exigendi rationes et praescribendi modum administra-

tionis.

i. According to Roman as well as ecclesiastical law

each institution should have an administrator, or, as he
8
was formerly called, syndicus. Our Code prescribes the
appointment of such syndics, in addition to the diocesan

7 S. C. P. F., Oct. 18, 1883, n. Clem., Ill, u; Trid., Sess. 7, c. 5;

XIV, (Coll., n. 1606). Sess. 25, c. 8, de Ref.
8 Cfr. Cod. lust., I, 2; c. 2,
582 ADMINISTRATIVE LAW
board of administrators. For all churches or pious in
which have no syndics either by law or charter,
stitutions
the Ordinary should choose prudent and capable men of
good repute to administer the property. The term of
these administrators lasts three years, unless local circum
stances counsel a more or less frequent change. It is
evident that our American parishes need no special admin
istrators, because the parish priests themselves, aided by
the trustees, administer the property.
2. If the charter or the will of the local
Ordinary
calls upon laymen to take part in the administration of

whole administration must nev

ecclesiastical property, the
ertheless be conducted in the name of the Church, and
the Ordinary s right of visitation and of demanding a
reg
ular account and prescribing the mode of administration
must be safeguarded.

THE GENERAL DUTIES OF ADMINISTRATORS

The following canons set forth the duties of adminis
trators appointed by law or charter or by order of the Or
dinary; first, before assuming office:

CAN. 1522

Antequam administratores bonorum ecclesiasti-

corum, de quibus in can. 1521, suum munus ineant:
i. Debent se bene et fideliter administraturos coram
Ordinario loci vel vicario foraneo iureiurando cavere;
2. Fiat accuratum ac distinctum inventarium, ab
omnibus subscribendum, rerum immobilium, rerum
mobilium pretiosarum aliarumve cum descriptione
atque aestimatione earundem; vel factum antea in
ventarium acceptetur, adnotatis rebus quae interim
amissae vel acquisitae fuerint;
 CANON 1523 583

3. Huius inventarii alterum exemplar conservetur

in tabulario alterum in archive
administrationis,
Curiae; et in
utroque quaelibet immutatio adnotetur
quam patrimonium subire contingat.

Before they assumeoffice, the administrators of church

property, (a) must take an oath before the local Ordi

nary or the rural dean, by which they promise that they
will perform their obligations properly and faithfully,

(b) They must sign the inventory, which must be made

accurately and distinctly, of all the immovable property,
as also of precious movable goods, clearly described and
appraised or accept an inventory already made, which
;

should account for things either lost or acquired in the

meantime, (c) Of this inventory two copies must be
drawn up, one of which must be kept in the archives of
the administrative council and the other in the archives
of the diocesan court, in each of which all changes in the
property must be duly noted.

CAN. 1523

Administratores bonorum ecclesiasticorum dili-

gentia boni patrisfamilias suum munus implere tenen-
tur; ac proinde debent:
i. Vigilare ne bona ecclesiastica suae curae con-
credita quoquo modo pereant aut detrimentum capiant ;
2. Praescripta servare iuris tarn canonici quam
civilis, aut quae a fundatore vel donatore vel legitima
auctoritate imposita sint;
3. Reditus bonorum ac proventus accurate et iusto
tempore exigere exactosque loco tuto servare et secun-
dum fundatoris mentem aut statutas leges vel normas
impendere ;

4. Pecuniam ecclesiae, quae de expensis supersit et

584 ADMINISTRATIVE LAW
utiliter collocari potest, de consensu Ordinarii, in
emolumentum ipsius ecclesiae occupare ;

5. Accept! et expensi libros bene ordinatos habere;

6. Documenta et instrumenta, quibus iura ecclesiae
in bona nituntur, rite ordinare et in ecclesiae archive
vel armario convenienti et apto custodire; authentica
vero eorum exemplaria, ubi commode fieri potest, in
archive vel armario Curia e deponere.

Administrators of ecclesiastical property should admin

ister their office like a good father of a family; in par

ticular,
i. They should see to it that nothing entrusted to
their care is lost or damaged ;

2. They shall down by both

observe the rules laid
ecclesiastical and and the regulations imposed by
civil law,
the founder or donor, or by lawful authority ;

3. They shall collect the revenues and fees (produce,

rent, etc.), at the proper time, keep them safely, and use
them in accordance with the will of the founder and the
rules of the charter;

4. They shall invest the surplus profitably, with the

consent of the Ordinary, and to the advantage of the
Church ;

5. They shall keep the books of income and expendi

tures in good order;
6. They shall keep the holographs and title deeds of
the church in good order and place them in the archives
or safe of the church, and copies or abstracts in the dio
cesan archives or safe.

CAN. 1524

Omnes, praesertim clerici, religiosi ac rerum ec-

et
clesiasticarum administratores, in operum locatione de-
 CANON 1524 585

bent assignare operariis honestam iustamque merce-

dem; curare ut iidem pietati, idoneo temporis spatio,
vacent; nullo pacto eos abducere a domestica cura
parsimoniaeque studio, neque plus eisdem imponere
operis quam vires ferant neque id genus quod cum
aetate sexuque dissideat.

This canon refers to a duty incumbent on administra

tors of church property,which is of a preeminently social
character because it enjoins on them the obligation of
paying fair wages to workingmen. All administrators, it
says, especially clerics and religious, must pay their em
ployees a just and adequate wage they should also see to ;

itthat the workingmen be allowed a convenient time for

fulfilling their religious duties; they should never keep

them from their domestic duties or from habits of thrift
nor impose upon them more work than their strength, age
or sex enables them to perform. The whole famous en
cyclical letter of Leo XIII On the Condition of the "

Working Classes
"

is here contained in a nutshell. 9 We

will not, although the temptation is strong, dwell on this

point. On the one hand, an example is to be set of

really religious interpenetration of work and prayer, and
on the other, the world is to be shown that the Church is
opposed to slavish drudgery, but not to wholesome social
and domestic pursuits. If priests and religious fail to do
justice to workingmen, how can the world expect enlight
enment and guidance from the Church in the solution of
the labor question ?

9
"

Rerum Novarum," May 15, This canon also applies to house-

1891; J. A. Ryan, A Living Wage. keepers and janitors.
 586 ADMINISTRATIVE LAW

SPECIAL DUTIES OF ADMINISTRATORS

CAN. 1525

i. Reprobata contraria consuetudine, administra-

tores, tarn ecclesiastic! quam laici, cuiusvis ecclesiae
etiam cathedralis aut canonice erecti aut con-
loci pii

fraternitatis, singulis annis officio tenentur reddendi

rationem administrationis Ordinario loci.
2. Si ex peculiar! iure aliis ad id
designatis ratio
reddenda sit, tune etiam Ordinarius loci vel eius dele-
gatus cum his admittatur, ea lege ut aliter factae
liberationes ipsis administratoribus minime suffra-
gentur.

i of canon
1525 reprobates any custom contrary to
the duty, established by long standing law, 10 of rendering
annual accounts to the local Ordinary. This law is bind
ing on clerical as well as lay administrators
(a) Of every church, including the cathedral church,
and every public oratory, with the exception of churches
belonging to exempt religious exclusively and solely by
reason of their own service and for their own purpose,
without being a parish or incorporated church by way of a
benefice. Parish churches governed by religious must also
render an account of their administration. 11
(b) Accounts must also be rendered of any and all

charitable or pious Institutions canonically erected, no

matter whether governed by secular or religious, even
exempt, clergymen. Thus, if religious conduct a hospital
or an asylum of any kind, an account must be given, the
reason being that such charitable institutions concern the
faithful, or the Church at large, and are often of the na-
10 C. ii, C. 10, q. i, {Synod. n C. 31, X, III, 5; see can. 532
Tolet. IV). f.; can. 1504.
 CANON 1526 587

ture of foundations connected with a last will. 12 This

rule holds also concerning institutions under royal pro
13
tection.

(c) The syndics of each and every confraternity, with

out exception, even though affiliated with an archconfra-
ternity in the City of Rome, for instance, that of the
Good Death," and even though it be erected in a
"

church of exempt religious, 14 must likewise render an ac

count to the bishop. Of course, this is to be understood
only of such confraternities as have revenues of their
own, and form at least a juridical entitiy (un ente
morale}.
2.a special statute requiring that ac
If there is

counts be rendered to others designated for that purpose,

the local Ordinary or his delegate must also be allowed to
inspect the accounts, and for the pur all stipulations made
pose of excluding the Ordinary are void. Thus, for in
stance, if a municipality is entitled to receive the account
of a pious foundation, which contains a clause to the effect
that the local Ordinary be excluded, this clause would be
invalid in the ecclesiastical court. 15 The same is true of
any custom that may have crept in against the present
canon. 16

CAN. 1526

Administratores litem nomine ecclesiae ne inchoent

vel contestentur nisi licentiam obtinuerint scripto da-
tam Ordinarii loci, aut saltern, si res urgeat, vicarii
12 Cfr.Clem. Ill, n, where
c. 2,
14 S. C. C., Sept. 20, 1710; March

xenodochia, leprosariae, eleemosyna- 24, 1725 (Richter, /. c., nn. 6 f.).

riae, hospitalia, though exempt, are 15 S. C. C., June 6, July u, 1750
mentioned; see Leo XIII, Ro- "

(Richter, /. c., n. 2).

manos Pontifices," May 8, 1881. 16 S. C. C., Jan. 18, 1757 (ibid.,
13 S. C. C., Dec. 10, 1621, and n. 3).
saepius (Richter, Trid., p. 168, n.
f -).
4
588 ADMINISTRATIVE LAW
foranei, qui statim Ordinarium de concessa licentia
certiorem reddere debet.

Administrators of church property must not institute

or contest a lawsuit in thename of the church without
having obtained written permission from the local Ordi
nary in urgent cases, from the rural dean, who
or,
shall immediately inform the Ordinary when he has
granted such a permission.
"

Nombic ecclesiae
"

means in the name of the church

or pious foundation. For going to law the administra
tors need the formal and written consent of the local Or

dinary, because he is the administrator of all church prop

erty in his diocese.

CAN. 1527

Nisi prius ab Ordinario loci facultatem impe-

i.

traverint, scriptis dandam, administratores invalide

actus ponunt qui ordinariae administrationis fines et
modum excedant.
2. Ecclesia non tenetur respondere de contracti-

bus ab administratoribus sine licentia competentis Su-

perioris initis, nisi quando et quatenus in rem suam
versum sit.

If they disregard his advice and are defeated in a law

suit, they are bound in conscience and by ecclesiastical

17
law to make up for the loss sustained. The church is

not responsible for contracts made by the administrator

without the permission of the competent superior, unless
the contract is favorable. This favor ecclesiae is to be

extended to lawsuits as well.

According to i of can. 1527, administrators per-
17 S. C. EE. et RR., Nov. 29, 1850, ad i (Bizzarri, /. c., p. 125
ff.).
 CANON 1528 589

form even otherwise legal acts invalidly if they exceed the

limitsand mode of ordinary administration without hav
ing obtained the necessary written permission of the local
Ordinary.
Ordinary administration as a rule excludes the accept
ance or refusal of legacies, bequests, donations, the pur
chase of immovable property, mortgages and rents for
more than three years, alienation of precious objects, bor

rowing a considerable sum, building new edifices and cem

eteries, making repairs of importance, suppressing par
ishes artd institutions, imposing taxes or taking up collec
18
tions. Far all these acts, therefore, the bishop s per
mission is required.

CAN. 1528

Etsi ad administrationem non teneantur titulo bene-

vel officii ecclesiastic!, administratores qui munus
ficii

expresse vel tacite susceptum arbitratu suo dimittunt

ita ut damnum ecclesiae obveniat, ad restitutionem
tenentur.

Administrators are obliged to restitution if they relin

quish an office which they have either explicitly or tacitly
assumed and thereby cause loss to the church. This rule
holds even though they were not bound to act as admin
istrators by reason of an ecclesiastical benefice or office.
Hence also laymen may be bound to make restitution
according to the rules laid down in moral theology.
18 S. C. P. F., July 21, 1856, n, 20 (Coll., n. 1127).
 TITLE XXIX

CONTRACTS
ECCLESIASTICAL AND CIVIL CONTRACTS

CAN. 1529.

Quae ius civile in territorio statuit de contractibus

tarn in genere, quam in specie, sive nominatis sive
innominatis, et de solutionibus, eadem iure canonico
in materia ecclesiastica iisdem cum effectibus ser-
ventur, nisi iuri divino contraria sint aut aliud iure
canonico caveatur.

Whatever the civil law of a country determines with

regard to contracts, general and specific, named and name
less, as well as payments, shall be observed also in ecclesi
law and with the same legal effects, unless the civil
astical
laws run counter to divine law, and, unless the canons
provide otherwise.
A contract is a formal agreement made between two or
more parties ("
duorum
plurium in idem placitum con
vel
1
sensus"). Contracts are sometimes divided into nomi-
nati and innominati, the former being such as have ob
tained special names in law, as, for instance, contracts of
sale, rent, lease, whilst nameless contracts are comprised
under the fourfold class of do ut des, facio ut facias, do
:

ut jacias, facio ut des. The third is especially applied to

pious foundations (can. 1544).
The essential elements of a contract are the consent of :

1 Cfr. Engel, I, tit. 25, n. 7 ff.

590
 CANON 1529 591

the contracting parties, their ability to contract, and the

consideration itself. The civil law prescribes formal
ities or rules which must be observed in order that a
contract be valid. These formalities may concern all

contracts in general or only a certain class of contracts.

These says our canon, must be observed
civil formalities,

even the subject matter, or the consideration, or the

if

contracting parties belong to the Church. But there are

two exceptions ( I ) provided the contract does not con
:

travene the divine positive law, and (2) provided the

canon law is not against its observance. Whether the
term divine law
" "

includes natural law is not quite evi

dent. Neither the doubt completely solved by can.
is

1513, where natural and ecclesiastical law only are men

tioned, and where a will lacking the formalities required
by civil law is held to be valid in the court of conscience.
We leave it to the theologians to decide this problem.

Clearly opposed to divine law would be a civil law ex

cluding ecclesiastical persons, either physical or moral,
from the right of making contracts. The ecclesiastical
law differs in some respects from the civil law with re
gard to religious, as may be seen in can. 536. Against
ecclesiastical law also the obligatory form of civil mar
is

riage, which, besides, violates the divine law. These

exceptions admitted, it is safe to follow the civil law, be
cause after all, a law worthy of the name should be noth
ing else than a more detailed application of the natural
law, and jurists should be grateful that the new Code
offers an illustrious
example of the conciliatory spirit of
the Church and her readiness to adapt herself to the rea
sonable demands of the State. Modern jurists define a
"

contract as a promise or agreement enforceable by law,"

but complain that the definition is not satisfactory. 2 All
2 Harriman, The Law of Contracts, 1901, 3 ff. ; 610 ff.
592 ADMINISTRATIVE LAW
more or less agree that a formal contract at least needs the
support of law. Which is true, as far as material coer
cion is concerned ;
but a contract may be binding in con
science. However, our Code accepts the formal contract
with the reservation pointed out. Formal contracts in
our law are those the existence of which can be established
by a record or a deed. Unilateral contracts impose an ob
ligation on one party only, whereas bilateral contracts im
pose obligations on both parties. Requisites for valid
contracts are set forth by the jurists as affecting the prom
ise itself, the one who makes it, and the one to whom it is

made. Yet, though all the elements of a contract be

present, there may be a law which prevents their effecting
a contractual obligation, and therefore, renders a contract
illegal. Of these there are quite a number in canon law. 3

ALIENATION
CAN. 1530
i. Salvo praescripto can. 1281, i, ad alienandas
res ecclesiasticas immobiles aut mobiles, quae servando
servari possunt, requiritur:
i. Aestimatio rei a probis peritis scripto facta;
2. lusta causa, idest urgens necessitas, vel evidens
utilitas Ecclesiae, vel pietas ;

3. Licentia legitimi Superioris, sine qua alienatio

invalida est.
Aliae quoque opportunae cautelae, ab ipsomet
2.

Superiore pro diversis adiunctis praescribendae, ne

omittantur, ut Ecclesiae damnum vitetur.

Alienation implies the turning away of a thing from its

4
proper purpose or destiny. From this it was but logical
3 Ibid., 171 ff.
4 Cfr. c. 2, C. 12, q. 2: "quae axreiigioso aliena sunt proposito."
 CANON 1530 593

to apply the term to any act by which the ownership or

usufruct or any right belonging to the Church was trans
ferred to another. However, it also implies a transfer
5
that is detrimental, which indeed is verified in any loss
of a right, but more useful than its re
may nevertheless be
tention. Besides, it must be remembered that the pur
pose of Church property is wide, and that the poor and
captives always had a special claim on the property of
the Church. Hence the alienation even of sacred vessels
was not considered forbidden if captives had to be re
deemed or the poor succored. 6 Forbidden, however, was
any unwarranted and purposeless alienation, (under the
feudal system any alienation without the consent of the
7
Lord.) This is still traceable in the present legislation,
the reason for which is stated in can. 1518.
the transfer of an object or right
Alienation, then, is

from one and partakes of the nature of an

to another
onerous contract, which involves a deterioration in the
condition of the holder. The acts by which this transfer
is made are :
sale, exchange, payment, donation, mortgage,
leases for more than three years, bailment and security,
and cessio iuris, or cession of a right acquired, such as ad
8
mitting a servitude. The objects or rights which are or
may be transferred by way of alienation are things of
material value or price (res prctio aestimabiles) hence ;

movable as well as immovable goods.

Movable goods are either such as can be preserved or
kept without loss, (quae servando servari possunt), for
instance, title deeds, books, treasures, etc. ;
or things that
5 Thus c. 52, C, 12, q. 2:
"

ut me- sources of law; see Santi-Leitner,

liora prospiciat." Ill, 13, n. i; Wernz, III, n. 154,
6 Cfr. cc. 14, 15, 70, C. 12, q. 2. who justly observes that a repudiatio
7 Blackstone-Cooley, Comment., lucri, though illicit, is no alienation,
II, 288 f. because it is not yet property ac-
8 All these acts occur in the quired.
594 ADMINISTRATIVE LAW
are easily consumed or corrupted, for 9
instance, produce.
Movable goods may be precious, or have little value, at
least for the time being. Precious things, can. 1497, 2
says, are such as have a considerable artistic value (paint
ings, sculptures by great artists) or a historical value
(manuscripts or archaeological objects) or are made of
precious material (jewelry, rare stones, pearls). The
term precious might also be applied to an entire library,
or to the sacred treasure of a church.
Immovable property consists of land, buildings, lakes,
rivers, mines, etc. These too are estimated in proportion
to their value, according to the canon
"

Terrulas" (c. 53,

10
c. Immovable, though incorporeal, property
12, q. 2).
are rights of way, the privilege of fishing or hunting,
etc. To give up such rights or privileges or to surren
der them when in dispute (cessio litis), would be alien
ation.
Alienation is not forbidden absolutely, for, as stated
above, this act signifies a deterioration of the material con
dition of a church or corporation, which the common law
endeavors to prevent by administrative restrictions or
regulations. An
absolute prohibition might involve a
summa iniuria, which the legislator certainly does not in
tend. Therefore can. 1530 sets forth certain conditions
which render alienation lawful and valid.
For the alienation of sacred relics the express permis
sion of the Holy See is required, according to can. 1281,
All other ecclesiastical goods, whether immovable or
i.

movable, may be alienated, under the following condi

tions :

9 To this class also belong: young 10 The value of this less valuable
stock, calves, lambs, chickens,
pigs, property, according to an antiquated
the right of selling which canonists opinion, would be about $50, or 268
admit, but not the entire herd at francs; Santi-Leitner, /. c., n. 6.

once.
 CANON 1530 595

i. An appraisement of the goods must be made by

conscientious experts ;

2. There must be a just cause, i. e., urgent necessity, or

evident utility on the part of the church, or piety ;

3. The competent superior must give his permission,

without which alienation would be invalid.
The superior may also prescribe other precautions and

formalities, as the circumstances of the case may demand,

in order to prevent damage to the church.
Here may be noted that perishable or easily consum
it

able goods require no formalities hence live stock or pro

;

duce may be bought, sold, or exchanged without any

scruples of conscience, unless the competent superior has
prescribed special rules, as, for instance, that no exports
shall be made
in time of public calamity beyond certain

boundaries, or nothing be bought from a place or country

infected by a contagious disease or an epidemic.
Valuation or appraisement is not required under pain of
nullity. Nor is the cause required under such a penalty.
However, if alienation were made without any reason,
the one who made it to the detriment of the church would

certainly be obliged to restitution, because administrators

of church property are not possessors, but trustees.
Just reasons for lawful alienation are these three: ne
cessity, utility, piety.Necessity must be urgent here and
now, for instance, the paying of a debt, redeeming a mort
gage, the indispensable support of the ministers, repair of
the church, etc. The utility must be evident, i. e., consid
ering all the circumstances of the case, alienation must be
more profitable than the retention of the property, for in
stance, buying a piece of property to round out one al
ready held, a rare occasion of buying a library, etc. Piety
may mean gratitude towards those from whom we have
received favors, aid and succour of the poor and captives,
596 ADMINISTRATIVE LAW
as stated above, in fact the whole field of
practical cor
poreal works of Christian mercy and charity.

CAN. 1531

i. Res alienari minore pretio non debet quam

quod in aestimatione indicatur.
2. Alienatio fiat per publicam licitationem aut sal
tern nota reddatur, nisi aliud circumstantiae suadeant;
et res ei concedatur qui, omnibus perpensis, plus
obtulerit.

3. Pecunia ex alienatione percepta caute, tuto et

utiliter in commodum Ecclesiae collocetur.

This canon rules, not, however, under pain of nullity,

i. That no thing should be alienated for less than what
itwas appraised at, because this would involve injustice
and grafting;
That alienation should take place by auction, or
2.

at leastby advertisement of a public sale, unless circum

stances advise the contrary; and the property to be dis
posed of should, everything being considered, be given to
the highest bidder ;

3. That the sum realized from alienation should be

invested safely and profitably.

Concerning the public auctioning of church property,

the rules usually given by canonists are somewhat out of
date and inapplicable to modern conditions. 11 But public
auction is still commendable, in as much as it isapt to
prevent favoritism and nepotism. For the rest, the civil
law governing public auctions may safely be followed.
Circumstances may demand less publicity, as when church
property has to be sold on account of bankruptcy, or to
ll Bened. Nov. EE. RR., March
"

XIV, Essendo," 23, 1742; S. C. et

1 8, 1835 f\Bizzarri, /. c., p. 62 f.).
 CANON 1532 597

protect the church against an iniquitous civil law, or to

12
spare the good name of an institution.

CAN. 1532

i. Legitimus Superior de quo in can. 1530, i, n.

3, est Sedes Apostolica, si agatur :

i. De
rebus pretiosis ;

2. De
rebus quae valorem excedunt triginta mil-
Hum libellarum seu francorum.
2. Si vero agatur de rebus quae valorem non ex

cedunt mille libellarum seu francorum, est loci Ordi-

narius, audito administrationis Consilio, nisi res min
imi momenti sit, et cum eorum consensu quorum in
terest.
Si denique de rebus quarum pretium continetur
3.
intra mille libellas et triginta millia libellarum seu
francorum, est loci Ordinarius, dummodo accessetit
consensus turn Capituli cathedralis, turn Consilii ad
ministrationis, turn eorum -quorum interest.
4. Si agatur de alienanda re divisibili, in petenda
licentia aut consensu pro alienatione exprimi debent

partes antea alienatae; secus licentia irrita est.

Can. 1532 determines the lazvful superior whose per

mission is required for valid alienation. This superior is :

i. The Apostolic
See, e., the S. C. Concilii (can. 250,.
i.

2), if (a) precious things of any kind or amount are to

be alienated, for they are not precisely appraised in our
12 That the investment should be cision of the S. C. C., quoted in the
made in safe securities, is a wise Irish Eccl. Record, Jan., 1920, p. 67,
ruling, but has nothing to do with the answer there given shoots be-
the validity of the act, if the sum yond the mark and is against can.
does not exceed the value stated in 153, i, n. 3.

can. 1532. Hence, despite the de-

 598 ADMINISTRATIVE LAW
canon or (b) if property is to be disposed of, the value of
;

which exceeds the sum of 30,000 lire (or francs), 13 i. e.,

about $6,000 to $10,000.
2. If the value of the
property to be alienated does not
exceed the sum of 1,000 lire (or francs), i. e., about $200,
the local Ordinary may proceed after
having heard the ad
vice of the board of administrators unless the property
isof very little value and with the consent of those con
cerned.
concerned" are the contracting
"Those
parties, who,
however, must be in a condition to give their consent.
While a benefice is vacant, or while an episcopal see is
vacant, no alienation of property belonging to the benefice
or to the mensa episcopalis is permitted, even though the
amount would be small. Hence the canon u Terrulas "

cannot be applied here, because it would be contrary to

Sede vacant e nihil innovetur." 14
"

can. 436 :

3. If the value of the property to be alienated is be

tween 1,000 and 50,000 (or francs), the local Or
lire

dinary may proceed, provided threefold consent has been

a
obtained, viz., (i) that of the cathedral chapter (or dio
cesan consultors), which must be given callegialiier, i. e.,
by vote at a meeting; (2) the consent of the board of ad
ministrators, and (3) that of the persons concerned. The
penalties are stated in can. 2347.
4. If the property to be alienated is divisible, the
parts which have been previously alienated must be men
tioned in the petition for permission or consent, under
pain of nullity. Hence no concealment is admissible, be
cause it may endanger the validity of the transaction.

13 What wassaid under can. 534 14 See C. i, X, III, g; S. C. EE.

(see this Commentary, Vol. Ill, p. ct RR., June 14, 1788 (Bizzarri, /.

1 86) must be reaffirmed, provided, c., p. 40 f.).

of course, the valuta is normal.
 CANONS 1533-1534 599

This holds concerning the papal indult as well as with

regard to anyone s consent.
We call attention to can. 81, which certainly may be ap
plied in cases that brook no delay or where delay would
entail serious loss.

FORMALITIES OF ALIENATION
CAN. 1533
Sollemnitates ad normam can. 1530-1532 requirun-
tur non solum in alienatione proprie dicta, sed etiam
in quolibet contractu quo conditio Ecclesiae peior fieri

possit.

Can. 1533 applies the formalities set forth in can. 1530-

1532 not only to alienation in the technical sense of the
word, but to any contract by which the status of the
Church might be impaired. Prelates may improve the
condition of their churches, but are not allowed to render
it worse.
15
A
deterioration, may be brought about by
mortgages or securities as well as by donations (see can.
X 535) and onerous contracts. 16 Alms or offerings col
lected by missionaries also constitute ecclesiastical prop
erty and not be acquired or disposed of at will by the
may
missionary, even though it were for the benefit of the mis
17
sion. This rule, of course, includes the making of
debts, which is always dangerous, especially if done by
such as do not know the value of money or lack business
capacity.
CAN. 1534
i. Ecclesiae
competit actio personalis contra eum
qui sine debitis sollemnitatibus bona ecclesiastica
alienaverit et contra eius heredes realis vero, si alien-
;

is C. 2, X, III, 24. ITS. C. P. F., May 27, 1881

18 C. 2, X, III, 23. (Coll., n. 1553); see can. 534.
600 ADMINISTRATIVE LAW
atio nulla fuerit, contra quemlibet possessorem, salvo
iure emptoris contra male alienantem.
2. Contra invalidam rerum ecclesiasticarum aliena-
tionem agere possunt qui rem alienavit, eius Superior,
utriusque successor in officio, tandem quilibet clericus
illi ecclesiae adscriptus, quae damnum passa sit.

The Church, each single church corporation, or

i. e.,

juridical entity (through its syndic) has the right to bring

a double action. A personal action may be brought
against anyone who has alienated church property with
out observing the formalities required by law. This ac
tion,brought to recover the damage or property itself, is
also extended to the heirs of the one who is guilty of
illegal alienation, because the heir is supposed to be iden
tical in law with the deceased who acted unlawfully.

Real action may be brought, in case of invalid alienation,

against any one who acquired church property that was
alienated illegally, even if he bought it in good faith.
However, the possessor thus brought to law may, on his
side, bring suit against the one who performed an illegal
18
alienation. But it also must be added that if the illegally
alienated property was obtained by personal action, no
real action is tobe brought against the possessor, because
the same thing cannot be demanded twice, and vice versa.
2 says that invalid alienation can be revoked either by
the alienator himself, or by his superior, or by the succes
sor of either, and, finally, by any clergyman assigned to
the church which has sustained a loss by the invalid alien
ation. The text from which our canon is taken threat
ens with penalties the clergyman who neglects to denounce
19
the illegal alienator or donator.

isCfr. c. 6, X, III, 13; I. 3, X, 14; c. 2, x, III^ 24 (against dona-

Ill, 21 ; Reiffenstuel, III, 13, n- 62.
19 C. 6, x, III, 13; c. 2, x, III,
 CANON 1535 601

DONATIONS

CAN. 1535

Praelati et rectores de bonis mobilibus suarum ec-

clesiarum donationes, praeterquam parvas et modicas
secundum legitimam loci consuetudinem, facere ne
praesumant, nisi iusta interveniente causa remunera-
tionis aut pietatis aut christianae caritatis; secus do-
natio a successoribus revocari poterit.

Prelates and rectors are allowed to make only small

and moderate donations from the movable property of
the Church, according to legitimate local custom; large
donations may be made only for a just reason, as reward,
piety, or Christian charity. Donations made against this
rulemay be revoked by the successors.
Donations are free gifts and are here understood of
movable property only, to the exclusion of immovable
20
property. Since prelates are not the owners of church
property, but only the administrators, they are not allowed
to deteriorate the condition of their church. Therefore
only small and infrequent donations are permitted. The
judgment concerning quantity and quality is left to the
donor, who must be guided by local custom and by the
circumstances of time and persons. But local custom
must not be stretched so as to cover large donations be
cause such a custom would be a corruption and therefore
unreasonable. However three reasons may justify larger
and more important donations: reward or remuneration,
piety, and charity. Reward is here understood as a re
muneration for services done to the church or to the
20 It isevident that the text in- mortis causa, made to go into effect
tends only donations inter vivos, after the donor s death; see corn-
gifts to living persons, not donations mentators on lib. Ill, tit. 24.
602 ADMINISTRATIVE LAW
prelate or rector, provided a certain equality or propor
tion be observed between the merits and the reward.

Piety, as stated, may signify gratitude and duty either to

one s relatives and friends, or to outsiders. Household,
town, and diocese should determine the gradation.
Christian charity is wider, embracing, as it does, all causae
piae of every description. But the donor must always
keep in view the condition of the church for to go beyond
;

the means at hand would be unreasonable and involve an

21
unjustice.

CAN. 1536

Nisi contrarium probetur, praesumendum ea

i.

quae donantur rectoribus ecclesiarum, etiam religioso-

rum, esse ecclesiae donata.
2. Donatio facta ecclesiae, ab eius rectore seu Su-

periore repudiari nequit sine licentia Ordinarii.

3. Repudiata illegitime donatione, ob damna quae
inde obvenerint actio datur restitutionis in integrum
vel indemnitatis.
4. Donatio ecclesiae facta et ab eadem legitime

acceptata, propter ingratum Praelati vel rectoris ani-

mum revocari nequit.

isays that donations made to rectors of churches,

secular or religious, are supposed to be made to the church,
unless there is reason to presume the contrary (see can.
22
533)-
2 and 3 lay down certain rules concerning the refusal
of donations. In order lawfully to refuse a donation
made to a church, the rector or superior of the same needs
the permission of the Ordinary. An illegal refusal, if a
21 Reiffenstuel, III, 24, n. 37 ff.
22 See this Commentary, Vol. Ill, p. 182.
 CANONS 1537-1538 603

loss is caused thereby, justifies an action for restitutio in

integrum or indemnity.
23
4 departs from the Decretals, inasmuch as the Code
does not permit a donation made to a church and lawfully
accepted by the latter, to be revoked on account of ingrat
itude or enmity on the part of the prelate or rector.

CAN. 1537

Res sacrae ne commodentur ad usum qui earundem

naturae repugnet.

Sacred things, i. e., such as have received ecclesiastical

consecration or blessing, 24 may not be loaned for a pur
pose repugnant to their nature. Thus a church should
never be turned into a concert hall, a chalice is not to be
used for banquets, 25 even though it were only by a tran
sitory loan and the money were sorely needed. The rule
is absolute and admits of no exception. 26

MORTGAGES AND DEBTS

CAN. 1538

Si ecclesiae bona, legitima interveniente causa,

i.

oppignoranda vel hypothecae nomine obliganda sint,

vel agatur de acre alieno contrahendo, legitimus Su
perior, qui ad normam can. 1532 licentiam dare debet,
exigat ut antea omnes, quorum interest, audiantur, et
curet ut, cum primum fieri poterit, aes alienum sol-
vatur.
2. Hac de causa annuae ratae ab eodem Ordi-
23 C. 10, x, III, 24 admitted revo- 24 Can. 1497, 2.
cation on account of qualified ingrat- 25 See Dan. 5, 2 f.

itude, such as violence, atrocities, 26 Reg. luris 51 in 6.

serious injury.
604 ADMINISTRATIVE LAW
nario praefiniantur quae exstinguendo debito sint de-
stinatae.

i. for a lawful reason, church property has to be

If,

pawned or mortgaged, or debts have to be made, the law

ful superior who is entitled to grant
permission, accord
ing to can. 1532, shall first hear all concerned, i. e., the ad
ministrators and rectors, or syndics, and endeavor to pay
off the debt as soon as possible.
For this purpose the Ordinary should determine
2.

the amount of annual payments. If the church has fixed

revenues, this may be done by subtracting the necessary
amount therefrom. 27 But if no fixed endowment or rev
enues are available, as is the case with most of our
"

sinking fund
"

churches, a should be established to wipe

out the debt.

SALE AND EXCHANGE

CAN. 1539

i. In venditione aut permutatione rerum sacrarunT

nulla ratio consecrationis vel benedictionis in pretii
aestimatione habeatur.
Administratores possunt titulos ad latorem,
2.

quos vocant, commutare in alios titulos magis aut sal

tern aeque tutos ac frugiferos, exclusa qualibet com-
mercii vel negotiationis specie, ac de consensu Ordi-
narii, dioecesani Consilii administrationis aliorumque
quorum intersit.

i. When
sacred- things are sold or exchanged, the
fact that they are consecrated or blessed shall not influ
ence their valuation, i. e., no higher price can be lawfully
27 S. C. P. F., July 30, 1867, n.4 (Coll., n. 1310).
 CANONS 1540-1541 605;

charged for a consecrated or blessed object merely be

cause it is consecrated or blessed. To do so would be
28
simony.
2. The administrators may convert notes payable to
bearer into other titles or investments which are safer
than, or at least equally safe and profitable as, the former.
In doing so, however, they must avoid every species of
trading or speculation, and, besides, obtain the previous
consent of their Ordinary, of the diocesan board of ad
ministrators, and other interested persons.

ADMINISTRATORS AND RELATIVES EXCLUDED

CAN. 1540

Bona ecclesiae immobilia propriis administratoribus

eorumque coniunctis in primo aut secundo consan-
guinitatis vel affinitatis gradu non sunt vendenda aut
locanda sine speciali Ordinarii loci licentia.

Immovable church property cannot lawfully be sold or

leased to the administrators themselves, or to persons re
lated to them in the first or second degree either by blood
or marriage, without special permission of the local Or
dinary.

LEASE OR RENT

CAN. 1541

i. Contractus locationis alicuius fundi ecclesiastic!

ne fiant, nisi ad norman can. 1531, 2; et in iis ad-

dantur semper conditiones de limitibus custodiendis,
de bona cultione, de rite solvendo canone, de opportuna
cautela pro conditionibus implendis.
28 See can. 730.
6o6 ADMINISTRATIVE LAW
2. Pro locatione bonorum ecclesiasticorum, ser-
vato praescripto can. 1479:
i. Si valor locationis excedat
triginta millia libel-
larum seu francorum et locatio sit ultra novennium,
requiritur beneplacitum apostolicum si locatio non sit
;

ultra novennium, servari debet

praescriptum can. 1532,
3;
2. Si valor contineatur intra mille libellas et tri
ginta millia libellarum seu francorum et locatio sit
ultra novennium, servari debet praescriptum eiusdem
can. 1532, 3; si locatio non sit ultra novennium, prae
scriptum eiusdem can. 1532, 2;
3. Si valor non excedat mille libellas seu francos
et locatio sit ultra novennium, servari debet praescrip
tum can. 1532, 2; si locatio non sit ultra novennium,
fieri potest a legitimis administratoribus, monito Or-
dinario.

i. Land
belonging to a church should not be rented
except by public auction or announcement, as stated under
can. 1531, 2, and exact conditions must be laid down
in the lease or rent contract as to the boundaries, appro
priate methods of cultivation, payment of rent, and the
necessary safeguards for the fulfillment of the conditions.
2. Anticipated payments being excluded according to
can. 1479, the following rules must be observed in leasing
or renting church property :

i. If the rental exceeds 30,000 lire (or francs) and the

lease is made for more than nine years, a papal indult is
required; if the contract is made for less than nine years,
the local Ordinary may give the permission, with the con
sent of his cathedral chapter (or diocesan consultors), the
board of administrators, and those interested.
2. If the rental is between 1,000 and 30,000 lire (or
 CANON 1542 607

francs) and the lease runs more than nine years, the local
Ordinary may grant permission, with the consent of those
just mentioned; but if the contract is made for less than
nine years, the local Ordinary has only to consult with the
board of administrators and obtain the consent of those
concerned.
3. If the rental is less than 1,000 lire (or francs) and
the contract reads for years, the local Or
more than nine
dinary has to consult with the board of administrators
and obtain the consent of those concerned; if the con
tract is for nine years or less, the administrators them
selves may sign the contract and notify the Ordinary.
The Code has extended the time limit from three to
nine years.

CAN. 1542

In emphyteusi bonorum ecclesiasticorum em-

i.

phyteuta nequit canonem redimere sine licentia legi-

timi Superioris ecclesiastici de quo in can. 1532; quod
si redemerit, earn saltern pecuniae vim ecclesiae dare

debet, quae canoni respondeat.

2. Ab emphyteuta congrua exigatur cautio pro
solutione canonis et conditionibus implendis; in ipso
instrumento pacti emphyteutici forum ecclesiasticum
arbiter statuatur ad dirimendas controversias inter
partes forte exorituras et expresse declaretur melio-
rationes solo cedere.

Emphyteusis has little practical value, at least in our

law. Ancient jurists distinguished it from locatio, de
fining the latter as an informal contract by which the usu

fruct, or use, of an object, or the labor of a person is let

or hired, 29 whereas emphyteusis was a species of indefinite
2;J Santi-Leitner, III, 18, n. i; n. .11.
6o8 ADMINISTRATIVE LAW
lease of immovable property, under which the tenant paid
rent, but had all but the nominal ownership of the land. 30
Enfeoffment would most nearly correspond to emphyteu-
sis but the general term lease conveys the idea just as
;

well. Now our canon says that the lessee of church

property cannot redeem the rent without the permission
of the competent ecclesiastical superior, and if he does
redeem the fee which is generally paid annually he
must give at least as much as the whole rent for the entire
time would amount to. Besides the lessee must give se
curity for the payment of the rent and for complying with
the other conditions. The lease itself must contain the
clause that the ecclesiastical court is the competent court to

settle disputes between the parties and that all improve

ments accrue to the soil.

INTEREST

CAN. 1543

Si res fungibilis ita alicui detur ut eius fiat et postea

tantundem in eodem genere restituatur, nihil lucri,
ratione ipsius contractus, percipi potest; sed in prae-
statione rei fungibilis non est per se illicitum de lucro
legali pacisci, nisi constet ipsum esse immoderatum,
aut etiam de lucro maiore, si iustus ac proportionatus
titulus suffragetur.
" "

Fungible goods are such as can be replaced in kind.

If such goods are given to a person in such a way that he
becomes the owner thereof, and are restored in kind to the
same amount, no interest can be demanded by reason of
the contract itself, for it would be usury to demand back
30 Blackstone-Cooley, Comment., II, 309 ff. ; Stimson s Law Dictionary,
"

1911, s. v. Emphyteusis."
 CANON 1543 609

more than was given nihil in mutuo vi mutui accipien-

("

dum ultra sortem principalem"). However, it is not

per se forbidden to make loans under the usual legal con
ditions, provided no excessive interest is charged nor is ;

itforbidden to stipulate a higher rate of interest if a just

and proportionate reason can be advanced.
The quintessence of this canon is that interest on loans
is permitted according to the usual and legal rate, not pre
cisely by reason of the contract, but by reason of the risk
incurred and other circumstances. 31
31 Cfr. Bened. XIV, Vix per-
"

the documents referring to these

venit," Nov. i, 1745; S. C. P. F., subjects are given and the question
Instr. 1873 (Coll., n. 1393, where is treated ex professo).
 TITLE XXX
PIOUS FOUNDATIONS

DEFINITION

CAN. 1544

i. Nomine piarum fundationum significantur bona

temporalia personae morali in Ecclesia quoquo
alicui
modo data, cum onere in perpetuum vel in diuturnum
tempus ex reditibus annuis aliquas Missas celebrandi,
vel alias praefinitas functiones ecclesiasticas explendi,
aut nonnulla pietatis et caritatis opera peragendi.
2. Fundatio, legitime acceptata, naturam induit

contractus synallagmatici do ut facias. :

CAN. 1545

Loci Ordinarii est normas praescribere de dotis

quantitate infra quam pia fundatio admitti nequeat et
de eius fructibus rite distribuendis.

The term " "

pious foundation signifies temporal goods

conveyed to some ecclesiastical juridical person with the
perpetual or long-continued obligation to say Masses, or
to perform certain ecclesiastical functions, or works of
piety or charity, in consideration of the revenues received
from said endowment. Hence every foundation, after it
has been duly accepted, has the nature of a bilateral con
"

tract : do ut facias/
If Title XXVI is compared with the present, the dif-
610
 CANON 1545 611

ference between them may appear very slight; however,

there is a distinction between the institutions mentioned
there and the foundations named in our canon. First,
temporal goods enter into can. 1544, in directo, whereas in
can. 1489 they are omitted as a member of the definition.
Besides, our canon presupposes an artificial person al
ready in existence, whereas can. 1489 mentions a decree
that creates such persons. In other words, there is a juri
dical person existing either really or at least
by a legal fic
tion and represented by Lastly, the pur
legal authority.
pose of a pious foundation does not constitute the legal
person, but obliges the respective person to perform cer
tain things or acts in consideration of the goods donated.
There is the temporal element on one side and the spiritual
on the other, and between both stands the mediator, viz.,
the moral person. Hence such foundations can be called
neither corporations nor institutions, but there is a jurid
ical person who accepts the object of the contract, and the
"

contract itself is called do ut facias!

: For in every
contract, whether express or implied, there must be some
thing given in exchange for something else, a mutual or
reciprocal consideration. This is the case between master
and servant, or employer and employee, when the former
agrees to give the employee a certain sum for performing
certain work. Hence the do are the temporal goods,
while the ut faciasis the performance of certain works.

But since the works to be performed are mostly spiritual,

it is necessary that the competent authority should inter
vene. Hence can. 1545 demands that the local Ordinaries
should fix the minimum endowment below which no
of
pious foundation may be accepted, as well as the manner
in which the interest is to be distributed. This is some
what similar to fixing the amount of mass stipends.
612 ADMINISTRATIVE LAW

SAFEGUARDS OF FOUNDATIONS

CAN. 1546

i. Ut huiusmodi fundationes
a persona morali ac-
ceptari possint, requiritur consensus Ordinarii loci, in
scriptis datus, qui eum ne praebeat, antequam legitime
compererit personam moralem turn novo oneri sus-
cipiendo, turn antiquis iam susceptis satisf acere posse ;

maximeque caveat ut reditus omnino respondeant one-

ribus adiunctissecundum cuiusque dioecesis morem.
In acceptatione, constitutione et administra-
2.

tione fundationis patronus ecclesiae nullum ius habet.

This canon ( i) commands that no more obligations

be accepted than can be complied with, and that none be
accepted for less than the customary tax. The written
consent of the local Ordinary is required for the accept
ance of foundations by ecclesiastical persons. This con
sent should never be given unless the Ordinary is assured
that the institution is capable of fulfilling the new as well
asany old obligations it has assumed or is to assume. The
Ordinary shall also see to it that the consideration is in
proportion to the obligations, according to local custom.
2 provides that the patron has nothing to say about the
acceptance, constitution, or administration of such pious
foundations.
It may not be amiss to state that the local Ordinary is

here intended for foundations under his jurisdiction.

CAN. 1547

Pecunia et bona mobilia, dotationis nomine assig-

eodem Ordinario desig-
nata, statim in loco tuto, ab
nando, deponantur ad eum finem ut eadem pecunia vel
 CANON 1548 613

"bonorum mobilium pretium custodiantur et quam-

primum caute et utiliter secundum prudens eiusdem
Ordinarii arbitrium, auditis et iis quorum interest et
dioecesano administrationis Consilio, collocentur in
commodum eiusdem fundationis cum expressa et indi-
vidua mentione oneris.
This canon provides for the safekeeping and safe in
vestment of pious foundations. All money and movable
property assigned as an endowment, must be deposited in
a safe place, to be designated by the local Ordinary.
This, with us, generally is a bank. Titles and other val
uable papers may be put in a safety vault. If stock or

produce were offered, the easiest way would be to sell

them.
The Ordinary shall then consult with those interested,
i. e., who have accepted the
the founder or his heirs, those
foundation, and the diocesan board of administrators, as
to the safest and most profitable way of investing the

property for the benefit of the foundation. Each invest

ment of this kind must be accompanied by express and
specific mention of the obligation resting on the invest
ment.

FORMALITIES

CAN. 1548

i. Fundationes, etiam viva voce factae, scripto

consignentur.
2. Alterum tabularum exemplar in Curiae archive,
alterum in archive personae moralis, ad quam fundatio
spectat, tuto asservetur.

Pious foundations, even when made orally, must

be set down in ivriting; one of the records must be kept in
 6i4 ADMINISTRATIVE LAW
the diocesan archives, the other in the archives of the
institution which is obliged to fulfill the obligation.

CAN. 1549

i. Servatis praescriptis can.

1514-1517 et can. 1525,
in qualibet ecclesia onerum ex piis fundationibus in-
cumbentium tabella conficiatur, quae apud rectorem in
loco tuto conservetur.
2. Pariter praeter librum de quo in can. 843, i,

apud rectorem servetur, in quo

alter liber retineatur et

singula onera perpetua et temporaria eorumque im-

plementum et eleemosynae adnotentur, ut de iis omni
bus exacta ratio Ordinario loci reddatur.

In every church there must be kept a list of the obliga

tions arising from pious foundations; this list must be

preserved in a safe place in the rectory.

Besides the book for manual stipends, 1 mentioned in
can. 843, i, there -must be another, kept by the rector,

in which each and every obligation, whether perpetual or

temporary, is duly entered, as also the record of fulfill

ment (when a mass was said) and the amount of the alms,
so that an accurate account may be rendered to the
local Ordinary.

EXEMPT RELIGIOUS
CAN. 1550

Si agatur de piis fundationibus in ecclesiis, etiam

paroecialibus, religiosorum exemptorum, iura et offiicia

l We cannot accept the theory ad- is a substantial, not merely an acci-
vanced in a magazine that a priest dental, change, the ceremony of
who receives, say, $100 for singing being a mere accident; and
masses," can satisfy his obligation
"

the priest would therefore defraud

by saying 20 high or sung masses,"
"

the donor of eighty masses. Who

intead of 100 low masses. For this can admit such a pious fraud?
 CANON 1551 615

Ordinarii loci, de quibus in can. 1545-1549, exclusive

competunt Superior! maiori.
As to pious foundations made and accepted by churches
belonging to exempt religious, even if they be parish
churches, all the rights and duties of the local Ordinary
mentioned in canons 1545-1549, devolve on the major
superior exclusively, according to the constitutions of the
respective institute.
be added that the Constitution
"

It may Nuper," of In
2
nocent XII, from which these laws are chiefly taken, re
vokes and annuls all contrary privileges granted to any
order.
REDUCTION OF OBLIGATIONS

CAN. 1551

i. Reductio onerum quae pias fundationes gra-

vant, imi Sedi Apostolicae reservatur, nisi in tabulis

fundationis aliud expresse caveatur, et salvo prae-
scripto can. 1517, 2.

2. Indultum reducendi Missas fundatas non pro-

tenditur nee ad alias Missas ex contractu debitas nee

ad alia onera piae fundationis.
Indultum vero generale reducendi onera pia-
3.
rum fundationum ita intelligendum est, nisi aliud con-
stet, ut indultarius potius alia onera quam Missas re-
ducat.

The reduction of obligations arising from pious foun

dations is reserved to the Apostolic See, unless the char

ter contains an express provision to the contrary and with

due regard to can. 1517, 2, which admits the reduction
of certain foundations under certain conditions, but ex-
cepts masses.
2 30.
616 ADMINISTRATIVE LAW
The S. C. Concilii sometimes grants an indult reducing
foundation-masses, but this indult does not extend to
masses to be said by some other species of contract differ
ent from that by which a foundation is accepted, nor to
other works imposed by a pious foundation. Hence this
particular kind of indult must be strictly interpreted. If
a general indult is granted for reducing the obligation aris

ing from a pious foundation, this must be understood and

interpreted to mean that the grantee should reduce other
works rather than the masses, unless the text of the indult
reads differently. Thus if, besides Masses, the recitation
of the divine office or certain prayers are prescribed in the
foundation, the latter should be reduced rather than the
masses. 3 Sometimes the wording of a general indult, or a
particular indult, expressly permits the reduction of
masses. Such need close inspection. For in
indults

stance, it may be that the indult mentions legata laxative

or demonstrative concepta. A legacy which is drawn up
taxative is one which first fixes the sum of the endow
ment, say $1,000, and then the obligations to be fulfilled,
say a requiem high mass every year on such and such a
day. If the obligation is mentioned first, and the endow
ment afterwards, we have a legacy worded demonstra
tive. This kind of legacy is also called approximate and
has this peculiarity that the heirs of the founder could, by
ecclesiastical law, be compelled to supply the deficient
funds so as to continue the fulfillment of the obligation,
although the value of the endowment may have de
4
creased. However, this is often impossible. Hence, if
the indult draws no distinction between the different kinds
of bequests, the heirs are not to be bothered.
3 S. C. C., May 6, 1803 (Richter, rule must be followed; S. C. C.

139, n. 80); if the will of Sept. n, 1717 (ibid., n. 81).

Trid., p.
the founder does not appear, this 4 S. C. C., Sept. 9, 1702; Bened.
XIV, De Syn, Dioec., XIII, 25, 32.
 CANON 1551 617

The Roman Court, mentioned in re

practice of the
scripts, is to
change missae cantatae into low Masses, pro
vided the funds suffice for the same number. 5 If a reduc
tion has already been granted, and another is asked for,
6
there must be new reasons to justify the request.
Reasons for granting a reduction of mass obligations
are insufficiency of funds brought about by a consid
erable decrease in the endowment and the poverty of the
;

7
priests who would be obliged to say them. In some cases
the needy condition of the patron and the necessity of re

pairing the church were considered sufficient reasons at

8
least for a temporary reduction.

5 S. C. C., Feb. 3; Aug. 4, 1725 7 S. C. C., Aug. 17, 1793, and

(Richter, /. c., p. 140, n. 83 f,). pluries (I. c., n. 82).
6 S. C. C., Sept. 7, 1793 (ibid., n. 8 S. C. C., Dec. 2, 1775; Nov. 29,
82). 1777 (ibid.).

END OF VOL. VI
 AUGUSTINE, Charles. BQV
Commentary on th* new 214
Code of Canon Law. .AS*
v.6