IRREGULARITIES A ND SIM PLE IM PEDIM ENTS

IN TH E

NEW CODE O F C A NON LA W

B"THE

H RE . H . . N . I KE" L . V JO J C , JC

DISSERTA TION

SU M IT TED TO TH E FA C ULT"OF SA C RED SC B IENC ES , C A H O IC ERS I OF A MER T L UNIV TY IC A,

‘ I WA S H NGTON, D . C ., m PA RTIA L FU LF I LM ENT OF TH E REQUIREMENTS FOR TH E DEGREE OF DOC TOR OF C A NON LAW MA RC H

B T T NIH IL O S A .

T . .D HOMA S J. S HA HA N, S T .

C ENS OR DEPUTA TUS . CONTENTS

Introduction 7

I—Definition Division Chapter and of Irregularity . 9 — Cha pter II The Subject of Irregularity

Chapter III—Irregularities Arising from Defect Chapter IV—Irregularities Arising from C rime — Chapter V Simple Impedirnents Chapter VI—The Cessation of Irregularities and Simple Impediments

INTRODUCTION .

The Church has always exercised the greatest solici tude for the members of her clergy . This fact is clearly evident in her repeated promulgation of decrees of differ ent councils and synodal enactments relative to this phase of her organization . Her eff orts in this respect have

‘ been nobly and generously seconded e verywhere and at all times by the hierarchy as may be substantiated by t e liable documentary proof . The subject of irregularity is of its very nature an im por tant one. Irregularities have been instituted by the Church to preserve the dignity and honor of her min istr y. Since a priest is to be another Christ, it is but be fitting that not only worthy candidates be admitted to the ministry, but candidates who are capable of performing their duties with that decency and decorum which the sacred character of such duties and the Church require . It is incumbent upon bishops to provide that no one be admitted to the clerical state who is not endowed with the necessary qualifications . Moreover, it is their duty to forbid to those who have contracted an irregularity or impediment subsequent to the reception of orders, the ex er cise of their office until the irregularity is removed or the impediment ceases to exist . It is moreover necessary for every priest having souls entrusted to his care to acquaint himself with the subject of irregularity, lest, peradventure, one present himself as a candidate for the priesthood who is not a fit subject .

Finally, the priest, as confessor must know the nature and effect of irregularity , how and when it is contracted , n when he may, or may ot, absolve, so as to admonish the penitent accordingly . Several important changes are to be found in the new church law on irregu larities . These changes while not very numerous are of practical importance . It is with a view of studying these that the present dissertation was written . The wr iter has endeavored to present an ao count of the origin and development of the canons deal 7 8 INTRODUCTION

f ing with this subj ect . The purpose o this is to deter mine the relations and connections existing between the hi new and old law . Studied in t s light, the exact spirit, meaning and application of the new legislation is more readily evolved .

The legislation in the new Code of Canon Law, dealing with irregularities , is to be found in the third book, (Ti

' tuluS VI , caput II , Art . II ), which treats of ecclesiastical things in general .

The title on simple impediments , which immediately follows that of irregularity in the new Code , is so inti

‘ it r o mately connected with the latter , that we deemed p per to accord it a detailed treatment . The interpretation and application of a new law al ‘ to ways gives rise a certain amount of difiiculty. Deci sions have already been given to questions proposed , or difficulties submitted . It is only a question of time when more authentic decisions will be had . DEFINITION AND DIVISION OF IRREGULARITY 9

CHAPTER I .

' DEFINITION AND DIVISION OF IRREGULARITY .

The word irregularity, etymologically considered , is “ ” a compound of the two Latin words in , which here de “ ” n notes exclusion , and regula , rule, hence not accordi g o to rule . In the can nical sense, it denotes the absence of certain qualifications necessary for initiation into the clerical state . The word also signifies a departure from the rule, hence , also , in the canonical sense , that in which a man deviates from the law of the Church on irregular d fi ity . Prior to the publication of the new Code many e nitions were to be found for an irregularity . Many au thors understood an irregularity as any impediment 1 which prohibited the reception of orders . Hence they classified as irregular all those who were not as yet con

firmed , those who had not attained the canonical age r e quired for orders , those who were destitute of canonical title, those prohibited by the bond of matrimony, etc. While this conception adhered strictly to the etymological derivation of the word , its subsequent signification grad ll m u a y became ore limited . The Church endeavored con in all t u y, in her decrees and laws , to establish the doctrine of n irregularity o a uniform and certain basis , but through various circumstances her efforts were without avail , and it was not until the appearance of the new C o La h dex of Canon w that s e accomplished her end .

- Irregularity, as it exists to day, may be defined thus an ' im ediment p which , of itself, perpetually prohibits the conferral and reception of every clerical grade, and , con sequently, the exercise of orders and acceptance of bene fi — ce, instituted by Canon Law this irregularity ar l smg from some defect or crime, and having for its motive r e spect for the divine ministry . Irregularity is an impediment or obstacle and not a or censure, punishment, as is frequently supposed . Some

1 T mb u r inu e s e r r . X r a s d ceu t e . a . , , i g , lib t a ct IV, c p I ; Van

E . m . r e . s e u s ecc es to S c . t p n , J l , I , pa t II , t I , e c 10 DEFINITION AND DIVISION or IRREGULARITY

men are incapable of per forming the offices of the cleri

cal state , or , if not absolutely incapable, cannot perform n them with propriety a d dignity . Others , again , who have been guilty of certain crimes are considered as un

worthy to exercise orders , and to lead men in the paths of virtue . Consequently, the Church has ordained that

certain defects and crimes constitute a bar to holy orders . Irregularity arising from defect can be contracted un knowingly, and unwillingly, consequently differs from censures and punishments essentially . Moreover ir r egu lar ity arising from crime does not participate of the na ture of censure or punishment, although, according to

/ 2 soce canonists , it was constituted ad instar poremug, since it always involves the commission of a mortal sin . The purpose of censure and punishment is to effect the corree tion of the delinquent, an element entirely lacking in ir regularity of any sort . Irregularity was institu ted as an inability to support the honor and dignity of the sacred ministry, which forbids latae s en tentiae the reception of orders , and the exercise of the same . Perpetuity is an element of irregularity which many d canonists , prior to the new law, either doubted or denie

Some authors , however adopted the distinction of Lay 3 who man , maintained that an impediment which could f be removed without dispensation , or could cease o itself e was not an irregularity, but a mere obstacle . An ir r gu larity was contracted , however, when the cause, e. g. , a grave physical defect, could not cease naturally even though this were possible through a miracle . While irregularity was primarily instituted to protect the priesthood , it affects every clerical grade . This is the interpretation of canonists when they call irregular it y individual , that is , comprehending the whole clerical

s . f tate Consequently it af ects even first tonsure , the ini tiation t in o the clerical order . This is the common opin ion and is borne ou t in several responses from the Holy

Office . n This prohibition is a grave o e, consequently both the

' 2 Bar illiat o i i . . t m . 0 . St. L . n 0 s . g n , N 3 3 g lib , 7, 35 , q

m I I) . I . r c . r . 1 0 . 3 Lay an , I , t a t V, pa s . V, cap IV, n DEFINITION AND DIVISION or IRREGULARITY 1 1

minister and the subject would commit grave sin ° shou ld

ordination be conferred upon a person who is irregular . In this case neither the minister nor the subject is liable

’

to any punishment latae sententzae. Irregulars , how

ever, who surreptitiously present themselves for orders " are liable to be punished A grave inconvenience would

excuse from the observance of this prohibition . A per

son irregular would be excused from grave sin , should he be coerced into the recepti on of orders through grave r fear . Likewise should one become aware of an i r egu l ar ity at the moment of ordination , because in such a case n n n he could ot, without great inconveni e ce, Withdraw

from the sanctuary . In such ins tances a dispensation

should be obtained for the subsequent exercise of o rder s . Any case of inadvertence on either the part of the subject r o the minister would excuse from sin as is evident . Since irregularity forbids the conferral and reception of every clerical grade , it necessarily follows that a cleric who is irregular may not exercise the orders he has r e ceived . For whoever is excluded from one thing is like wise barred from everything connected with it . It would plainly be absurd to permit one to exercise orders who , by reason of some irregularity, was forbidden to receive them . This prohibition does not aff ect those acts of or n ders which are not strictly reserved to o e in orders . Con sequently an irregular person may perform the duties of

' a cleric in minor orders , for the reason that these du ties are frequently performed by lay persons . One irregular commits grave sin , should he violate this prohibition , u n less parvitude of matter,necessity, or grave fear excuse

him . Irregularity prohi bits the reception and exercise of sa o o cred orders , to whi ch benefices are attached . It f ll ws ,

therefore , that irregulars are ineligible for ecclesiastical

’ n fi benefices offices or be e ces . There are several kinds of ,

some of which do not suppose sacred . orders . Irregular

ity incurred without culpability, after the reception of an o to benefice order , is not an impediment to prom tion a not 5 requiring the use of the prohibited order .

I I 1 . i i n l I . 68 r r D s r r d n at o e v o . . 4 Ga spa i , a c a o , I , Cap , N

s er . 5 Pa s ini , N 50 7 . 12 DEFINITION AND DIVISION OF IRREGULARITY

Although the common opinion of canonists is that the election of an irregular to an ecclesiastical office is ipso ju r e null and void , there does not seem to be any express 6 law on the subject . It is true indeed that the law pr o hibits the collati on of a benefice on a person who is ir

regular , but it is diffi cult to prove that such a collation would be invalid . Passerini adduces the argument that the Pope in the collation of a benefice does not dispense from irregularity , as he does in the case of ecclesiastical 7 censures . He argues that if irregularity rendered the conferral of a benefice invalid the Holy Father would dis pense from it . A person who is irregular commits gr iev s b nefi ou sin in accepting a e ce, this is the accepted opinion 8 of canonists . If an irregular desires to retain his bene fic e, it is necessary for him to obtain a dispensation . He o is not bound , h wever, in conscience to surrender his ben fi e ce, unless he be recalcitrant in the matter of seeking a

dispensation . Should it be brou ght to the attention of the ordinary that a person holding benefice is irregular, the ordinary should deprive the delinquent of the office , at

least until such a time as a dispensation is granted .

Persons irregular may be elected discr eets, electors of a general Or provincial , socii or definitor s to general and

provincial chapters , for these offices require jurisdiction

in the external forum only, and do not flow from the power of orders , nor are they ordained to it . Irregular ity does not impede the power of jurisdiction , nor its use . benefices In a certain sense , these offices could be called r e or still they do not pe 3 6 , or from th ir nature, suppose e ders , nor are they ordain d to them , as are simple bene 9 o o t . fices , which are previous disp siti ns o orders

Irregularity is essentially an institution of Canon Law. or No particular law , whether it be diocesan , provincial national , can create an irregularity . The necessity for the Church to have a uniform law upon the subject of ir f n stutin ir r e u regularity is patent, hence the power o i g g

i 1 o c o f r e S ess . ca . r r t. . 6 Ga spa i , o p. c , n 73 ; C un il T nt , XXII , p f e r e . IV, d

s s er NO . 10 . 7 Pa ini , 5

r r it . . 1 . r 1 . G s o . c 8 Pa sse ini , N . 5 7 a pa i , p , N 73

. m 6 . . r 20 . S s . 9 Pa sse ini , N 5 igi und . dub 7, n 3 DEFINITION AND DIVISION OF IRREGULARITY 13

lar it y has been reserved to the Holy See . This principle enu n ia was first t ted in C ap . 18, De s en tentia excommu ni “ ’

cationis in 6to . I s u i in eccl q esia, sangu inis au t semi ’ mls ollu ta vel u i m e p , q p sentz bu s major e excommu nica ’ tzonis nodatis sci enter cel br ar e r a u m c c , e p es u n t, li et in ho ’ r tememe agat, i r egul ar itatis tamen ( cu m id non sit ex ” r m u r e u eu p essu in j ) laq m n on in cu r r it. From this we “ l have the famous axiom I r r egu ar itas non incu r r itur , l O - nisi fue rit in jure expressa . Saurez made the as sertion

that no irregularity is to be had in the Council of Trent, on l or in p tificia constitutions , but solely in the C or pu s

Ju r is . However the Roman Pontiff is able to constitute

particular irregularities for particular places , as was the case in Portugal when descendants of Jews were denied 1 1 access to holy orders . Particular custom cannot institute a particular ir r egu

lar ity, but some maintain that a general custom can cre

ate a universal irregularity. However, in the present ’ stage of the Church s existence , this is not a practical o question . A cust m introducing any irregularity would come to the attention of the Holy See before the time of

prescription would be fulfilled , and would be either ap

proved or condemned , according as it deemed fit . The n ew law very definitely states that an irregularity is not 1 2 incurred , unless expressly contained in the canons .

Irregularity arises either from defect or crime . This

is an essential element in ever yirregularity . c i Irregularity, r ati one ausae, is div ded into irregular d licto ity ex d efectu and irregularity ex e . The former results from certain defects which would be incongruous

in a person engaged in the sacred ministry . The latter are the result Of certain crimes which render a person u n o worthy to receive , or exercise , sacred rders . This dis tinction found in the new law was first made according to ’ 1 3 h D A nn ibale by Pope Innocent III . W ile Irregularity “ n o is contracted ad instar poenae, it is t directly and

D 1 1 0 s . e t . . i p XL , s c , I , n 4 r i 1 1 1 G s r o c t. . a pa i , p . , n 59 .

1 2 Can o n 983 . ’ D A n 1 e o t. 3 nnibal , I , n . 399 , I . i i r v l I Bar ll at Pr el ectio n e o c o . . 2 . 4 g , a s Ju i s Can ni i , II , n 7 14 DEFINITION AND DIVISION OF IRREGULARITY

proximately a punishment . The Church in declaring one irregular as a result of certain crimes does not wish to

reprimand the delinquent, but to protect the sanctu ary Ration e extensio from profanation . nis , irregularity is divided into total and partial , according as it prevents the absolute reception of orders and the consequent exercise of the same, or as it prevents the exercise Of some par ticular order, or the ascent to a higher or der . The ir regularity resulting from voluntary . homicide is total . A priest who subsequent to his ordination became deaf e would be irregular as r gards the sacrament of Penance, ff but could O er the sacrifice Of the Mass . A deacon who became blind in one eye would be irregular, as regards his further advance to the p riesthood if this would prevent him from properly reading Mass , but is not pr evented from performing the duties of a deacon . is en Irregularity , r ation e gr avitatis , is divided into d p sable and indispensable . The Church, since irregularity is an institution of Canon Law, may dispense validly from all irregularities , but de facto she never exercises this right in particular instances .

A division of irregularity into perpetual . and temporal was proposed by canonists befo re the new law . But, a s was noted above , perpetuity is an essential characteristic of irregularity , hence this division no longer can be t e

tained . THE SUBJECT OF IRREGULARITY 15

CHAPTER II .

THE SUBJECT OF IRREGULARITY .

Those only are able to contract an irregularity who are capable of receiving orders . Consequently those who are forbidden by divine positive or divine natural law to r e

‘ ceive or der s cannot incur irregularity . The ordination of such as these is not only illicit, but invalid . All fe z males and unbapti ed males , even though catechumens , are incapable Of contracting an irregularity . Certain de feets and crimes which render a baptiz ed man irregular, do not produce this effect in the case of one who is not baptiz ed . Once baptism is received; all faults are washed f away, so that it is impossible or one to be irregular by reason of crime committed before Baptism . Should cer tain defects remain after Baptism, the person incurs ir f regularity, immediately upon reception O the sacrament .

Irregularity affects all baptiz ed males , whether lay or cleric, bishops not being excepted , although they are not 1 “ expressly mentioned in the law . Dices ; in episcopo ir r egular itas nequ it producere effectum pr imar iu m et di descendu n rectum, et ideo neque alios qui ex illo t, et ita episcopu s videtur sub lege ir r egu lar itatem inducente com n Res ondemu s pr ehendi no posse . p , etiam in episcopo ir — — r egu lar itatem pr ohiber e collationem r eceptionem r e l ical e isco u s ception em graduam c er ium . Quod Si p p non ec i hibiti habet quos r ip at gradus , id est per accidens ; pr o o manet et pr ohibet ordines majores r eceptos exer cer e, et l ”2 ideo beneficia exc u dit. Indeed the C ar dinals of the Church are capable of in 3 curring irregularity, since they are not excepted in law . The Pope is unable to contract an irregularity for the rea son that he is not subject to the common law Of the

Church .

D i i 1 . 1 0 r en u nt t n D e a o e et. . e x Cap , , Cap I , e s nt . e co mm. n . 60

2 G s r r o cit. . 1 . S r e s . a pa i , p , N 99 ua z , di p XL, sect . I, N . I I ' A n n l l D ba e o . c t. . 0 1 1 , p i , N 4 , n o t e 5 .

s r r c. 3 Ga pa i , I , 16 THE SUBJECT OF IRREGULARITY

Children who have not attained their seventh year can not be subject to irregularity, (ex delicto) even though 4 they have the use of reason . It is a much mooted question as to whether impu ber es f are capable o contracting irregularity ex delicto . A boy reaches the legal age of puberty when he has attained his 5 fourteenth year . Those who maintain that they cannot contract irregularity base their claims on the fact that impu ber es are not perfectly capable of doing wrong, and that they are excused from all punishments 6 latae s enten to tiae, and are be corrected with educative and per su a 7 sive means . This opinion is based on the idea that ir regularity ex delicto partakes of the nature of a punish 8 ment . While this is the common opinion , many hold the opposite . Consequently, the incurrence of irregularity in the case of impuber es as a result of crime is doubtful and a dispensation should be obtained ad cau telam . If one is forced by physical means to co mmit a crime o to which irregularity is attached , he d es not incur this obstacle . The one who forces another to commit such a cri me I ncurs the irregularity, since he alone is imputable .

One forced in this manner, even though he inwardly con sent, is excused from contracting irregularity, f or the reason that in the external forum the crime does not ex ist, and irregularity is more especially concerned with the 9 external forum .

One who commits crime by reason of moral force, as r r e u grave fear, is likewise excused from contracting i g lar ity. If the crime consists in the violation of an eccle

i l - n siast ca law, it is evident that irregularity is ot incur red, Since an ecclesiastical law does not oblige with seri ou s inconvenience . Consequently a cleric under censure sol would not contract irregularity, should he assay to l emn y exercise orders , hoping thereby to avoid scandal , 1 0 loss of good reputation , etc .

r r m o s I . 2 0 . 4 C o nt r a Nava u , C n . XXV I , n 3 5 Can o n 6 Can o n 2 2 30

s r r o it. 2 0 2 . 7 Ga pa i , p. c ,

8 . 11 . 2 0 2 Ibid , .

. 11 20 8 9 Ibid , . . 10 s r r Ga pa i , I c.

18 IRREGULARITI ES ARISING FROM DEFEC T

CHAPTER III .

IRREGULARITIES ARISING FROM DEFECT .

Irregularities ar i sIng from defect, which have existed

in the Church since Apostolic times , may be compared to the ordinances relating to priests , which were given by 1 God to Moses . Since certain qualifications were de manded of priests in the old dispensation , which was but a shadow of the new, it is befitting that priests of the new dispensation, be capable of performing their holy and sacred office with reverence and decorum . The first trace of irregularity arising from defect may n f 2 be found in the writi gs o St . Paul , when , for example, he excluded bigamists and neo phytes from the reception of the bishopric . The number of irregularities was in due time increased " “ and their nature more accurately defined . While statutes were enacted on this subject in the early history of the

Church, the word irregularity itself is not found in the early canons , and was employed for the first time by In “ nocent III in the twelfth century . Van Espen wrongly contends“that the expression alie ” nu s a canone applied by the first Council of Nicea to a cleric guilty of usury, is identical with irregularity . In this instance, the Council refers to suspension rather than “ to irregularity .

Subsequently, we find that the word irregularity as sumed a rather general signification . It was employed i al in ecclesiast c law, and in the canonical schools as a

‘ n f r syno ym o censure, especially the censure of su spen

I e - L vit . XXI XXII .

2 Ti - m. . s 2 2 I . . . 6 er i I III q , V , Tit , sq ; W nz , Ju s Decr etal u m,

Vo l . II , tit . VII . I ll C o n e. ib r e . . 0 0 2 A r l c . C o n e a 1 . e 3 Cf (a 3 . t. (a . 3 4) c. 8.

12 C o n . e . N . e o caesar . 1 c 1 2 i II , ( a 3 4 . , , 9 . C o ne. C o nc l Nicean i C o n c l . To l ent (a IV (a .

- ca . 10 De r enu ntiatio n I XX 4 In p , e, .

u r . ceel s U er s 5 In J niv t . I , 6 Bo en in hau sen De I r r e u lar itatibu s ca g , g , p. III, n . I . Ga spar r i,

0 . 1 . p 9 , n . 155 IRREGULARITIES ARISING FROM DEFECT 19

7 f s ion . In the law o the decretals no particular rubric on

irregularity is to be found . The laws concerning this subject were inserted under different rubrics in B ooks I

and V . Consequently there arose great difficulty in dis tingu ishing irregularity from the censure of suspension “ and various other punishments . of Since in the decrees the Council of Trent, and in sub o f ; sequent c nstitutions O the Roman Pontiff s , no new ir

regularities were introduced , it was necessary, p rior to

the Code, to consult very ancient authority in order to

ascertain the exact nature of any irregularity .

G A A IRRE UL RITY RISING FROM ILLEGITIMACY .

The first irregularity arising from defect, mentioned f in the Code, is that o illegitimacy . Illegitimacy denotes

f r ~ the condition o children bo n ou t of wedlock, excepting t he case of a putative marriage . In the ancient law, a person of good morals was not excluded from the priest e hood , even though he were born illegitimat ly . This was

- true not only in the Eastern , but in the Western Church 5 5 as well . In the year 6 , we find the discipline of the

Church in this matter gradually changing , for , at this

time, the Ninth Council of Toledo decreed that all illegiti mate Offspring of clerics who had received maj or orders

were to be held as serfs of the Church, and were not to be

admitted to holy orders , unless first manumitted by the

bishop . In the ninth and tenth centuries access to orders was

‘ denied tO those born of violated virgins or of incest . In

due time, various canons were introduced which dealt

with the different details of illegitimacy, until we find that all children' born out Of wedlock were considered as

irregular .

The reason f or instituting this irregularity was . three consid f old . (A) Ratione or iginis , an illegitimate was

~ i . 2 r h m cid 1 . o o . a . 2 o 7 H n III in c p 4, X de V. 8 i 1 s r r . 6 . Ga pa i , o p . c t , n 7 20 IRREGULARITIES ARISING FROM DEFECT

ered an unworthy candidate to exercise the sacr ed min

istr y. (B ) The Church wished to manifest its abhor of rence the paternal sin . (C) There is danger that the illegitimate offspring would be predisposed to commit

similar acts , by reason of the patern al incontinence .

In the present discipline of the Church, illegitimates,

both of public and occult illegitimacy, are irregular, nu ss or le they have been ,legitimated , have made solemn “ profession . Legitimate children are those who have been conceived or o r in b rn in valid marriage , o in a marriage contracted

- good faith, though invalidly . This latter is the so called putative marriage, namely, an invalid contract in which , at least one of the parties believes they are validly wed

ded . It remains putative , moreover, until both parties become certain that the marriage is invalid . A putative

marriage has all the effects of a valid marriage , conse

quently the new Code , in conformity with the ancient o discipline, states that the offspring of such a union is c n sider ed valid . This concession in favor of the children resulting from a putative marriage is based on the good

‘ faith of the supposed consorts . Should the consorts make solemn profession In a reli gions order, or should the husband receive sacred orders, the use of marriage is forbidden to them . As a result, the children conceived and born after such a vow or ordi nation are considered illegitimate . Legitimation , in such cases , can be effected only by a special mandate from the 1 0 Holy See .

In case of doubt as to the father of a child , Canon Law follows the old Roman law, by declaring that he is to be considered the father who appears to be so by valid mar r ia ge, unless the contrary be proven . m e In canon law, children born at least six onths aft r is the date of marriage, or within ten months fr om the d

solution of conjugal life , are presumed legitimate, unless "1 there be definite proof to the contr ar y . Even if the

C o 8 9 an n 9 4 n . E R 10 S . . . et e . 20 n. C p g , Ja , 1860 . 1 1 o 1 1 1 2 Can n 5 , n . . IRREGULARITIES ARISING FROM DEFECT 21 mother should confess her infidelity and acknowledge that l she had adulterous relations , the child may claim egiti macy, provided the following conditions are fulfilled . The child must be born not less than one hundred and eighty days after the parents have contracted a valid marriage , and not more than three hund red days after separation .

This , of course, is a presumption of law, and , if definite proof could be produced that the offspring was the result ille i i of adulterous relations , it would be considered g t mate . A child is legitimated by the subsequent marriage of its

parents , whether real or putative, newly contracted or validated , even though not . consumated by the conj ugal act, provided the parents were able to contract marriage

at the time of the conception , or whi le the mother was

pregnant, or at the time of the birth of the child . The

Code omits to mention legitimation by papal rescript, a method of procedure in vogue in the old law . The Pope can legitimate not only natural , but also spurious chil

dren , and the extent of a papal rescript on this subject as h to be interpreted according to the general rules . Canonists generally divide illegitimate children into two main classes , spurious and natural . The former is subdivided into adulterine, sacrilegious , incestuous and

" nefarious . The offspring is said to be adulterine , when it is the result of adulterous relations . It is called sacri l egiou s when the child is born of parents who , at the time f o r o conception , were b und by a solemn VOW of Chastity, o when the child ’s father was in sacred orders at the time of conception . An incestuous offspring is that in which the parents of the child labored under the impediment of consanguinity or affinity, at the time of conception . A nefarious offspring is had when a child is born of a mother and son, or of any direct ascendant or descendant . A natural illegitimate child is one born of parents capa ble Of contracting a licit and valid marriage . The new law does not legislate as regards children , h n w ose parents a r e unknown, he ce the common opinion that they are legitimate must be upheld unless the con

‘ tr ar y can be established . Foundlings are frequently the 22 IRREGULARITIES ARISING FROM DEFECT

result of poverty or other causes . However, a condi u t tional dispensation should be Obtained ad ca elam.

In a dispensation from this irregu larity, the clause ” dummodo paternae incontinentiae imitator non sit is

generally added to the rescript . In answer to a query as to how the bishop was to proceed in accordance with thi s “ l mm clause, the S . C . C . replied Clausulae i li (du od o pa ter nae incontinentiae imitator non sit) in litter is dispen i sationis appositae, non aliter per ep scopum satisfier i, quam inquirendo quod nihil bonis mor ibu s indignum com per erit ; quod si integro decennio dispensandu s probe x l nis m Vixit, debere e equ i itter as dispensatio , qu a vis prius incontinentiae nomine su spectu s esset sed in hoc casu de bere episcopu m accu r atiu s inquir er e ad diluendam pr ior is ” 1 “ vitae su spicionem . Sometimes in the dispensation a limiting clause is “ added) SO that a special dispensation would be required on Should e become a candidate for a higher order . When a dispensation is asked for from this irregular ity the species of irregu larity Should be mentioned m , na ely, whether the person irregular is spurious and in

what sense, or natural . The reason for this is that a dis pensation would be conceded in the former case with

greater difficulty than in the latter . This irregularity is incurred whether the illegitimacy

be public or occult, consequently if the person himself is

the only one aware that he was born out of wedlock, a dis ensation p must be Obtained .

IRREGULARITY ARISING FROMPHYSICAL DEFECT .

In the Mosaic law, men who suffered from certain physical defects , were debarred from the divine ministry . ‘ And the Lord spoke to Moses; saying : Say to Aaron : f whosoever o thy seed throughout their families, hath a blemish, he Shall not offer bread to his God , neither Shall he approach to minister to him : If he be blind, if he be lame, if he have a little, or a great, or a crooked , nose, if

B 12 D . en . e S n . 22 . XIV y , XIII , XXIV, n

D i r r . it. 1 e S e . 168 r t. . s o c 3 m t , n , We nz . , o p. c , n . 686 Ga pa i , p , IRREGULARITIES ARISING FROM DEFECT 23

his foot or his hand be broken , if he be crookbacked, or — blear eyed , or have a pearl in his eye, or a continual scab, ’ ” 1 4 or a dry scurf in his body, or a rupture . By divine law certain corporeal defects constitute an “ obstacle to orders . The Church, on the other hand , has enacted legislation as regards the matter of physical in ability, which is comprehended under the irregularity ex c r defe tu co por is . This irregularity was instituted at a very early stage ’ “ of the Church s existence . Thomassinu s maintains that in the first five centuries defect of body did not constitute m a bar to orders , unless this defect excluded a person fro holy orders by divine law . This was especially true in e th Greek Church . Sanctity and holiness of life were 1 7 considered as requisite and not physical perfection . “ Thomassinu s states that Pope Hilarius , d . 468, first ex cluded clerics from the priesthood who had labored under certain defects . Pope Gelasius confirmed this discipline in a letter to the Bishops of Lucaniae, fragments of which 5 9 “ are to be found in C . I , D . 36, and in C . , D . 5 0 : Nee fas esse confidat quisque pontificum bigamos aut conjugia n lib ni n i m sor tie tes ab aliiS derelicta, sive qu os et poe te t a , l n i i n r ios vel sive itter is, vel corpore Vitiatos, vel co d t o a , aut curiae pu blicar umque rerum nexibu s implicatos, aut passim nulla tempor is congr uentis expectatione discussos, ll divinis ser vitu r os applicare myster iis . I iter atos quo que et nonnu llapar te corporis imminutos sive ullo r e spectu ad ecclesiasticum didicimu s venire servitium, ” f etc . However, not every species o corporal defect was hi included under the Gelasian pro bition, hence we find “ ” the title De corpore vitatis or dinandis vel non .

The following were excluded , in the Gelasian decrees , to from holy orders , (A) those who were totally unable celebrate mass , (B ) those who, by reason of their physical of defect , were irreverent in the celebration mass , (C )

1 e . 1 4 L vit , XXI , 6, seq.

i t. 1 6 1 er o i . 2 . 1 10 . s r r i o . c . 5 W nz , p . c t , Tit . VII , 11 . , p Ga pa , p , p 5 , n . 2 50 .

Th m 1 . 16 o in . a s u . a . s s, p . 2 , Lib , I c p , LXXVIII , n

1 n c 18. 7 In C o stitu tio n ibu s A po st o lici s, lib . VII , . 18 h T o massin u s, I .c. 24 IRREGULARITIES ARISING FROM DEFECT

those who caused scandal or ridicule , while reading mass ; ( D) those who were unable to observe the liturgical laws “ at mass .

’ In the course of time, laws promulgated by the Roman Pontiffs and Councils more accurately defined the nature 20 and extent of this irregularity . These canonical sanc tions, which wer e r etained in the Decretum of Gratian ; in the five ancient compilations , and in the authentic compi ‘ lation of Gregory IX practically constitute the discipline

- on this irregularity as it exists in the Church to day .

- - In the present discipline of the Church , bodily defee tive men , who , by reason Of their physical inability, can not safely, Or , by reason of their deformity, cannot with due decorum, exercise the office of orders , are forbidden to engage in the sacred ministry of the altar . Should the corporal defect follow after the reception of orders, a greater defect is required to debar a cleric from exer 2 1 cising those orders he has already received .

Defect of body may be divided into four main classes , debility, mutilation , deformity and incurability . Under 1 the general head of debility is included , ( ) Blindness ,

- strictly so called , namely the state or condition of a per son destitute of all sight in both eyes . A person thus af

flicted, and who has not received orders , seldom receives “2 a dispensation . A dispensation to exercise their Office is more frequently granted to priests who have become 2 3 blind . The recipient of such a dispensation is permit ted , as a rule , to say only one par ticular mass , generally that of the Blessed Virgin . A dispensation of this kind 1 was given in Florence , 23 Aug . , 727 . Another priest x ' must be present du r ing the celebration of mass in such cases

R i Pir lin I . 1 e fi 1 S A . 11 . 0 . 9 . lph , VII , 4 4 ; g, , XX , N ; , V XXXVII,

i . 2 2 . 80 s r r o . c t. . N ; Ga pa i , p , n 5

0 D C o n r r . D r e 1 . e. 2 0 10 . . C . . C. , 34 (G g I) ; , 55 ( T ibu a A ex D o e . . . . 2 . . . n o . . 3 , . 3 3 ( C e. T l t XI , a C I C VI , q ( l II) Cap IV,

X r e r . 6 . , d c cl e . a g , III .

1 8 . 2 . 2 Can o n 9 4, N 22 A r ath er ext r a o r dina r y exceptio n to thi s r ul e is the ca se o f f he So c e o f es s who o s his s as F er . Wes s o t ath P ling, i ty J u , l t ight h r o f c e em c ex er me er t e t e esult an a c id nt in a ch i al p i nt , and lat iv s e s w a h r es o ce ed a di p n ati o n and s advan ced to t e p i tho d .

r r cit. 2 6 2 3 Ga spa i , o p . , N . 5 .

26 IRREGULARITIES ARISING FROM DEFECT

able to pronounce his words , or is unable to pronounce o them intelligibly . A person who stammers or lisps t such an extent as to cause laughter or irreverence incurs

the same irregularity . o III . Deafness , or the inability to hear, c nstitutes an

irregularity, as regards the receptou of orders , and the

\administration of the sacrament of penance . A deaf l r iest p may celebrate Mass , , even though unable to hear

the response of the server . Most canonists maintain that

a person deaf only in one ear , or whose hearing is defici

'

ent, is not irregular . A dispensation from this ir r egu l i I S ar ty more readily obtainable . f IV . Mutilation , in general , is the abscission o some f member o the human body, which Is necessary for its in tegr ity. It is the accepted teachi ng of canonists that the removal of an important part of a member has the same f juridical ef ect as the removal of the member itself . Hence a person is said to be mutilated if a principal mem ber is separated from the body, as the eye , arm , limb , etc .

In many cases , grave mutilation may be present, but irregularity is not incurred . Those irregular as a result of mutilation are : All who are destitute of limb , arm, hand or fingers (more especi ally if the missing members be the thumb and index fin ger), likewise those deprived of the use of the same . There is no record of a dispensation ever having been granted to a priest to say mass , who had lost the right arm . The contrary, however, is the case, where the left arm is in question . A dispensation in this latter case n 1864 was given by the S . C . C . in Litor ner cie , 24 Sept , .

A person having both arms , however, but unable, by rea f son O some infirmity, to utiliz e one or the other , could seldom Obtain a dispensation for his advance to the priest hood . However, he might be permitted to exercise some of ffi e r the o ces of the priesthood , should he have alr ady e ceived orders , e . g . , administer the sacrament of penance, with the mere pronouncement of the words , the other ceremonies being omitted . This irregularity is incurred in like manner by a person without one or the other hand , G A S A SI G D E 27 IRRE UL RITIE RI N , FROM EF CT or unable to u se either ; a dispensation is obtainable in practically the same instances as above .

A priest who has 'lost the palm of his hand with at least

' two finger s is irregular , as regards the celebration of the ‘ h sacrifice of the mass . Likewise, a priest w o has been deprived either totally or in an important part, through operation or accident, of his thumb and index finger, or is unable, by reason of some disease to use the same . Sev ,

' eral cases are on record in which a dispensation to r e ceive orders was granted , when only a minor portion , as, for instance , the phalanx of the thumb and index finger, was wanting . A dispensation was also granted to a per son to receive sacred orders who was destitute Of the 2 7 one whole thumb of the left hand . The absence of , or f even two, o the last fingers I S not, according to the com mon opinion , a sufficiently grave mutilation to constitute an irregularity. However, if all three of the aforesaid i fingers are removed , irregularity to receive orders is n curred , not because of the inability to administer the sac r aments, but by reason of the grave deformity . A priest, however, is not considered irregular, nor is he prohibited from offering the august sacrifice of the mass , even if all three of the posterior fingers have been abscinded . A person without the index finger will more readily Obtain a dispensation , if it can be demonstrated that the middle

finger will supply the place of the missing member . Some

- 4 8 maintain , with Ballerini Palmieri , VII , N . 7 , that a priest who has lost his index finger may employ his mid dle finger in its stead in the sacred functions , for the rea son that the whole hand of the priest is consecrated in or dination . According to Ballerini Innocent I declared that if a person should himself abscind , even a portion, of his finger he would incur irregularity, by reason of the “ sinfulness of the act . A uthors generally consider a person as I rregular who has suffered the amputation of one or the other of his e r u if one or . e limbs . feet This is esp cially t such a could l not celebrate the mass without serious difficulty . At the

2 r i s r i o c t. 26 7 Ga pa , p , 4.

2 8 r r l . Ball e ini , Th eo l . M o al . Vo . II 28 IRREGULARITIES ARISING FROM DEFECT

present time, when artificial limbs are so ingeniously and so hi to perfectly constructed , t s irregularity would seem

n n - be o existent in many cases , especially after the recep

tion of orders . It is left to the good judgment of the or ina d r y to decide in all such cases .

V . Under the general head . of defect of body, those

are irregular who are deformed , that is, those having a

notable defect in any important member .

A lame person, who is unable to walk without the help f o a cane, is irregular , both for promotion to the holy of fi ce of priesthood, and for the subsequent use of certain f ” o the orders he may have r eceiVed . One notably lame,

even though he would not require the use of a cane, is of generally considered as irregular, it being presumed

course that t he affliction is of a permanent character . 3 0 Temporary lameness does not beget this irregularity .

In the case of an ordained priest, the deformity must of

' necessity be of a much greater nature in order to prevent

him from exercising his ministry . A person who has had his nose or ears removed by em

putation , or some accident, is irregular, unless , in the

latter case, the hair can be made to cover the deformity

in a reasonable manner .

Dwarfs , giants , and hunchbacks are irregular by rea n f so O their deformity .

VI . Under the head of incurability, are I ncluded all those who are suffering from certain ailments from which

there is no hope of recovery .

Paralytics , and persons suffering from similar dis

eases , are absolutely irregular and cannot be advanced to

orders , without a special dispensation , which is very sel

dom granted . A priest suffering from any such disease

may more readily Obtain a dispensation , if the disease

does not interfere seriously with his sacred functions .

Lepers are irregular for the reception of orders , but a

priest thus afflicted may say mass privately, and in a col f ony of lepers exercise the offices o his state . f f Syphilitics are irregular, if the symptoms o their a

- 2 D 9 C . 57, . I .

. 18 D. . 30 C , 55 IRREGULARITIES ARISING FROM DEFEC T . 29

fliction are readily apparent . In the latter event, such a one may bepermitted to celebrate mass privately . Persons who are unable to drink a very small portion of wine without experiencing nausea, accompanied by

' vomiting, are irregular, even should they become thus af

flicted subsequent to the reception of orders .

In general , any notable distortion of a prominent mem f ber begets this irregularity , especially if it be o such a nature as to excite irreverence or ridicule . Her maphor odites are irregular as a result of their de

~ formity. Hermaphrodites properly speaking are human beings who possess the organs of both sexes . It is the common opinion of scientists that a person who was able to act either the part of the man or the woman in the m hor dites process of generation , never existed . Her ap

improperly speaking have existed , that 13 persons of a de ter mined sex who however possessed some specific organs x f of the opposite sex. Some individuals the exact se o whom is difficult to determine are also called her maphr o f dites . These latter are originally incapable o genera

f o tion . Every class o these pers ns is excluded from the “1 clerical state .

Those who are suffering, or have suffered , from tuber culosis are not irregular for the reason that this is now a

very readily curable disease . A person in an advanced

stage of this disease Should not be advanced to orders , be he cause it is more difficult then to effect a cure, although t

progress of the trouble may, even in this case, be arrested to such an extent as not to interfere in any way with even

the reception of holy orders .

DE IRREGULARITY ARISING FROM EPILEPSY, INSANITY AND

MONIAC AL POSSESSION .

or subject to either the affliction of epilepsy, insanity, de

moniacal possession , must obtain a dispensation from the

i . i l 11 . V . 3 1 No ld n, Op c t. , O III, . 553 IRREGULARITIES ARISING FROM DEFECT

irregularity . In the case of those already ordained,

should they become thus afflicted , the ordinary has the

right to decide whether they are cured of their ailment,

and , if so, to allow them again to perform the sacred func

' “2 ion f t S o their State in life . to f the Even prior the publication o new C ode, canon ists considered epilepsy and insanity as physical moral r diseases which rende ed a person irregular . The ir r egu lar ity arising from diabolical possession was generally c treated under a separate heading . Epilepsy is pr a ti cally an incurable malady, especially when the symptoms develop after the age of puberty . Before one has attain f f ed to that period of life, more hope o e fecting a cure by the employment of prolonged and persistent treatment, can be had . The age of puberty, as here employed , refers to that period in life at which a person becomes function f ally capable o generation . The age at which puberty in this sense is attained varies in different climates and

among different races , also among those of the same race and country . In law; as before noted , a boy reaches the age of puberty when fourteen years of age . The Code, “ ” s however, employs the term cen etur which involves a s upposition and not an absolute or general truth . Hence, i n the matter of a dispensation of this sort, medical at testation must be followed . The Holy See seldom dis penses from the irregularity incurred as a result of epi to lepsy, when the disease has been contracted subsequent the age of puberty . If the disease be contracted anterior disa to this period in life, and all attacks and symptoms p of pear for several years , so that, in the opinion medical f authorities , a total cure has been e fected , a dispensation is more readily obtainable . A priest who becomes subject to thi s malady may n ot c a say mass , even though the attacks o cur at dist nt inter vals . Before the Ordinary may exercise his right, there must be at least some medical authority to support the its r o Opinion that the malady has been cured , or that p gress has been sufficiently arrested .

The new law mentions epilepsy specifically, hence other

o 8 . 32 C an n 9 4, N 3 . IRREGULARITIES ARISING FROM DEFECT 3 1 diseases whose symptoms are Similar do not beget this ir regularity .

The insane, by reason of their total irresponsibility are in irregular . Every species of permanent insanity is cluded under this irregularity . The insanity arising as the result of certain diseases and accidents , when it is only of a temporary nature, does not beget this obstacle to the reception , or exercise, of the ministry . When men tal derangement is but temporary or transient, it is more properly termed delirium of fever, of intoxication ; it is properly called insanity, when the deranged , or perverted condition , is continuous or persistent . The principal n forms of insanity are delusional insanity, (when o e is f subject to delusions ), dementia, (unsoundness o mind to the degree of total loss , or serious impairment of the fac — u lty of coherent thought), mania, ( a form of mental un soundness . usually characteriz ed by derangement of the intellectual faculties, Shown in hallucinations and delir ium, and by passionate emotional excitement), melan cholia, (mental derangement characteriz ed by excessive gloom and depression , and usually accompanied by a ten deney to brood over a Single subject), and paranoia, chronic mental unsoundness , the symptoms of whi ch vary greatly . These, with their subdivisions , constitute the f t principal forms o permanent, or persistent, insani y, which cause an irregularity .

Man may become subject to evil spirits in various ways .

The devil may attack one from without (Obsession), or f assume control o him from within (possession). It is the common teaching Of the Fathers and Theologians that the soul can never be possessed by an evil spirit, though its ordinary control over the members of the body may be hindered by the possessing spirit . Mistakes are often made in the diagnosis of cases and results attributed to diabolical agency that are really due to natural causes .

Consequently, it must be definitely established that a per son is , or has been , possessed before he can be declared “ irregular . In ou r day, instances of demoniacal posses sion are rare, so that great caution must be employed , in deciding any particular case . It is evident that a person 32 IRREGULARITIES ARISING FROM DEFEC T who is in actual possession of an evil spirit cannot be ad n va ced to orders . This prohibition originates from di h vine, rather t an from Canon Such a one is , moreover, absolutely debarred from exercising the orders he may have received . This law was instituted by Pope “ Gelasius and is retained in C . 5 D. , 33 , Usque adeo sane c m er im s illici r um e o o p u , ta quaequ e pr o p r e, ut daem niacis, l simi ibusque passionibu s ir r etitis, ministeria sacr osancta tr actar e tr ibu atu r . Quibus Si in hoc opere positis aliquid propriae necessitatis occu r r at, quis fideliu m de sua salute i confidat, ubi ministros ipsos cu r ation s humanae tanta per spexer it calamitate vexar i ? Atque ideo necessario l r emovendi sunt, ne qu is ibet pr o quibus Christus est mor n tu u s , scandalum ge er etur infirmis,

Before the new law, it was a disputed question whether one who had been possessed but was later freed from the evil spirit co uld be advanced to orders . Some theologi ans according to Gasparri , thought that such a person could receive tonsure and minor orders . Others , indeed , were of the opinion that, barring the accidental circum

r . stance Of scandal , such a person could receive holy orde s The third opinion was that a person who had been pos sessed , could not be advanced to any clerical grade, with out a previous dispensation . This latter Opinion has been sustained in the new If it be definitely established that a person in orders has been absolutely liberated from the possessing spirit, the Ordinary may permit him to exercise the duties of hi s

Office . The term Ordinary as employed in the new Code and in the present dissertation inclu des all those enumerated u n to der canon 198 . In law the term refers the Roman Vi Pontiff , bishops, abbotts or prelates nullius , and their os car generals, administrators , vicars and prefects ap n of va tolic , in their respective territories , a d in case or caney in these offices , to those who by law legitimate cu stom succeeded them in office . In exempt clerical reli

i . s r r o . c t . 2 . 33 Ga pa i, p , N 73

G s r r I . 2 34 a pa , n 74.

a . 35 C no n 984 n 4.

34 IRREGULARITIES ARISING FROM DEFECT

a pudicos apostol s , dum non eos per mittit post secu ndos nu ptias ad ecclesiae regimen dignitatemqu e pastoris as ” Hier onomu s sumi . St . , who spent a great portion of his life among the Greeks and was imbued with their severer

interpretations , likewise comments on the words of St . ’ “ Paul . Quod autem ait, unius vir, Sic intelliger e debe u mono mus , t non omnes gamum bigamo putemu s esse me si lior em, sed quod is pos t ad monogomiam at continen r i tiam cohor ta , qui su i exemplum pr aefer at in of 6 2 In the Synod Trullo, in 9 A . D the privilege was given to priests of the Greek Church of cohabiting with the wives they had married previous to their ordination .

Should the wife die , subsequent to the reception of sacred

orders , they were forbidden to remarry, under penalty of

absolute deposition . In the Council of Trent (Sess .

XXIII , c . xvii ), we read that those persons who were big mi s a st , were forbidden to exercise the duties of minor or ders , even though, owing to a scarcity of clerics these par ticu lar functions of the clerical state were frequently per formed by lay persons . The Western Church adheres to the opinion that the in stitu tion of this irregularity was for the reason that in a h second marriage the union of the Church with C rist, its

spouse , is less perfectly represented . The Western f n Church , however, admits the secondary purpose o its i stitu tion , namely, the presumed incontinency on the part nfi ne of the bigamist, and his consequent u t ss to discharge efficiently the office of the priesthood , among a people which looked with great suspicion upon a bigamist , and n held him in little or no esteem . The division 0 1 o e body with two , instead of union with one body, is the bedrock e e the r esemb of this irregularity . This d f ct in perfect lance of the second marriage to the great type of mar r iage gives rise to the irregularity and to the name by “ ” which it is commonly known ex defectu sacramenti . It is not proper that one who has received a sacrament de f ective in its resemblance to its exemplar, should become a dispenser of sacraments to others .

m r 2 1 de . De e s . . . o u . U 36 v ti , J s Can niv h t , biga IRREGULARITIES ARISING FROM DEFECT . 35

o As is evident from t he Pauline injuncti n , there ex i sted only one particular species of bigamy, in the first

'

or . centuries , namely, true real bigamy It is generally supposed that about the fourth or fifth century a second kind of bigamy was introduced . According to Devoti

(can . univ . II , p . a third Species was added in the

Middle Ages , and which was called similar . Canonists also made a division of b igamy into bigamy from defect simu litu dinar iia and bigamy from crime . was ‘ Bigamia generally considered as bigamia ex delicto , although Theolo ia many, as St . Alphonsus g Moralis Compendium 11 436 defectu sac (lib . VII , . ) held that all three were ex i r ament . Real bigamy demands that a person has contracted a o second valid and legal marriage . It d es not matter whether the marriage takes place before or after baptism, or one before , and the other after ; the second marriage , in any event, imperfectly symbolizes the great sacrament of Christ in the Church . Interpretative bigamy exists when a man consummates an invalid marriage with a woman who is married , but separated from her husband , or with a widow known by her fo rmer husband , or by another man , out of wedlock ; o r who has carnal intercourse with his wife after she has o o h been c rrupted by an t er man . o f A man bec mes guilty of Simultaneous bigamy who, a o vo ter taking a s lemn w of chastity in religion , or by re ceivin g sacred orders , attempts and consummates mar r iage . o In the new C de, of Canon Law, bigamists are those m en who successively contracted two Or more valid mar “7 i s r age . This explanation has clarified the exact nature x of i l and e tent this r r r egu arity. This irregularity is removed neither by Baptism nor

religious profession but by dispensation . The dispensa t o oe ff h i n d s not e ace t e defect in sacrament, but the un fitness arising therefrom .

o 8 37 Can n 9 4 n . 4. 36 IRREGULARITIES ARISING FROM DEFEC T

IRREGULARITY ARISING FROM LOSS OF GOOD REPUTATION .

u the os This irregularity was introduced by St. Pa l Ap “ u as the a d tle. For a bishop must be witho t crime, stew r ” “ of God . Moreover he (bishop) must have a good tes timony of them who are without : lest he fall into r e u proach and the snare of the devil . The reason nder i t lying this precept is readily apparent . Since cler cs mus excel in integrity of life and be an example to the lay

u a a e. body, it is necessary that their rep t tion be un ssailabl of e In the early Church, those who by reason some grav crime had been subjected to public penance, even after a their reconciliation , could not be admitted to the cleric l “9 in a state . This practice was closely connected with f Ro mia ex delicto . In this the Church followed the Old man Law and to some extent the laws of the old Germa “ nic peoples . Subsequently, in the gradual development of ir r e u the Church, a distinction was made between g lar ities incurred by the commission of certain crimes even though occult, and irregularity which was incurred by the loss of reputation as the result of certain crimes . This ir r r egularity is frequently called the irr egularity i ar sing from infamy . When a loss of good reputation has been brought about by regular legal process, termi n ' ating in conviction in a court of j ustice, no injury is to done the delinquent by publishing the fact . The same thing can be said when the scandalous repute in which a person is held is a matter of common knowledge . The

Canon Law seems to require a pre- existing public opinion against an individual before the investigation in a judi cial inquiry can be narrowed to any particular person . Infamy in the canonical sense is defined as the privation

E 8 s e to I . s . 3 pi t Titu , , VI I . Tim. III, 7. l . f C . Ir I S c. e s m r . H er Ko e D De 39 pi t I ad i . cap. b , . po sit. p . 70 . _

s r r i o . C i t. 1 Ga pa , p , N. 86 .

f . - C . 2 . C . i . . . ca . A n lr . c. 1 . C VI 1 se o S e I 40 ( p g ) 7 q P ud t h . R. .

8 I n Sex . s ec m lz o . h i ma t. 1 , Sc . o . c . 0 p 7 t undu anal g g p n 7 . Phi lips, o p.

GIt. . 8. . . , er o . cit. ca . . 12 p 53 , W nz , p , p IX n 9 ’ or lessening of one s good name by reason of the commis sion of certain crimes: n amia Infamy is twofold in species , infamy of law (i f

of in amia acti . of ju r is ), and infamy fact ( f f ) Infamy law is contracted when the law itself attaches this j uri dical ineligibility and incapacity to the commission of cer tain crimes . Infamy of fact is incurred when a person has lost his good reputation , with pious and sensible Catholics, by reason of some more grievous crime which he committed , o r by reason of a wicked mode of life . The ordinary is the judge in cases of infamy of fact . ’ Neither kind of infamy will affect the person s blood relations, or relations by marriage , except in the case where the pastor keeps in his house relations who lead a scandalous life, whom he is bound to eject from his house, and if he does not do SO, after having been warned by the 4 1 Ordinary, he may be derived of hi s parish . This is one of the reasons why the pastor of an irremovable parish may be ousted from his office .

Infamy - of law is incurred ipso facto by the following

1 h - ( ) Catholics w o formally join a non Catholic sect, or 42 publicly adhere to it. There must be then an absolute defection and adoption of another religion before one can be called irregular as a result of this infamy . Mere at tendance in a sectarian church , other than Catholic , is not the formal adherence to another sect of which the new l aw speaks . (2) Desecrators of consecrated hosts are likewise i so acto p f declared infamous, and incur the resultant ir “ regularity . The reason for this is apparent and does not require further comment . (3 ) Persons who dishonor the memory of the dead by thefts or other crimes committed on the bodies or the of “ graves the deceased . Since it is the belief of C atho lies that the bodies of the dead will one day be again call ed to life and rise, it has always been the object of the

41 C an o n 2 1 17, n . 3 .

S o 2 1 . I 42 an n 3 4, se . 2 43 C ano n 230 .

44 C ano n 2 328. IRREGULARITIES ARISING FROM DEFECT

greatest solicitude to protect the remains of the deceased . (4) Those who lay violent hands on the Roman Pon “5 tiff, Cardinals , or Papal Legates . This irregularity was considered to affect the children and grandchildren , prior “ to the new law . ( 5 ) Those who fight a duel and their official wit ‘7 con nesses . A contest with weapons is essential to the e e ception of a duel . Further, the cont st must take plac of by agreement, and the weapons used must be capable inflicting wounds . Finally, it is essential to a duel that it take place on account of some private manner, such as wounded honor . Although generally demanded by cus f tom, Similarity o weapons is not essential , neither are witnesses, seconds , etc . Duelling is contrary to the ordinances of the Catholic of Church, and of most civilized countries . The Council Trent plainly indicated that duelling was essentially wrong and Since then theologians have universally char h acter iz ed it as Sinful and reprehensible . However, t ere were always a few scholars who held the opinion that cases might arise in which the unlawfulness of duelling could not be proved with certainty by mor e reason . Pope Benedict proved the untenableness of this opinion in his 1 2 “ D bil ” Bull issued in 75 , esta em. In this he condemn . ed the following propositions : (A) A soldier would be blameless and not liable to punishment for Sending, or ac cepting a challenge , if he would be considered timid and c of owardly, worthy contempt, and unfit for military duty, were he not to send a challenge and accept such and , , who would for this reason lose the position which sup ported him and his family, or who would be obliged to give up forever the hope of befitting any well earned ad v ancement . (B ) Those persons are excusable who, to e d fend their honor, or to escape the contempt of men , ac ce or pt, send , a challenge, when they know positively that the duel will not take place , but will be prevented by oth er s . (C) A general or officer who accepts a challenge

45 Can o n 2 343 6 . d e o e s Bo ni ex h . S . e au . s n . it 1 8 4 Cf Cap III , in t g e o p c , p . 5 47 Can o n 2 35 1 n . 2 p ni IRREGULARITIES ARISING FROM DEFEC T 39 through fear of the loss of his reputation and his position does not come under the ecclesiastical p unishment de creed by the Church for duellists . (D) It is permissible , under the general conditions of man , to accept or send a ’ challenge in order to save one s fortune, when the loss of it can be prevented by no other means . (E ) This per mission claimed for natural conditions can also be applied to a badly guided state in which justice is openly denied by the remissness or malevolence of the authorities . Like “ Pastor alis Of his predecessors , Leo XIII , in his letter ” 91 ficii , of 12th September, 18 , to the German and Aus

- tro Hungarian bishops , laid down the following princi “ ples : From two points of view the Divine law forbids a man as a private person to wound or kill another, ex

- cept when he is forced to do it in self defense . Both na ” tural reason and Holy Scriptures proclaim this law . The intrinsic reason why duelling is wrong is that it is ’ an arbitrary attack on God s right o f ownership , as r e gards human life . Only the owner of a thing has the

right at will to destroy it, or to expose it to the danger of

destruction . But man is not the master and owner of his

life ; it belongs , instead , entirely to his Creator . What is ’ ’ said of one s own life applies also to the life of one s fel

lowman . Every man has the right in case of necessity

to defend himself against an unlawful attack on his life ,

even if it cost the life of the assailant, but apart from such

defense no man has the right, as a private individual , to

injure the life of his fellowman , or , at pleasure , to expose own his to Similar danger . It is easy to see that a duel ' list exposes u nju stifiably both his own life and that of his

fellowman , consequently is guilty of a wrongful aSSump n of of God ' tio the right , the Lord of life and death . The to conclusion, then , be drawn is , that whoever is killed in

c of - a duel is indire tly guilty self murder, because he has . for no justifiable reason risked his life , and whoever Slays

his adversary in a duel is guilty of unjustifiable homicide . f because he has taken the risk o causing death, without to do S any right O. This holds true even though he did n ot the of intend death his enemy . The reason, then , for of \ declaring duellists guilty infamy ipso facto is evident . 40 IRREGULARITIES ARISI NG FROM DEFEC T

The new law states that not merely the participants in the actu al combat of a duel are to be declared irregu lar, u but also their Official witnesses . Witnesses is here sed in the sense of those fostering or abetting such an action, as well as the arbiter, seconds , etc . of ( 6) The following, moreover, incur infamy law a ipso facto, those who attempt a second marriage , even

- or SO called civil marriage, while their lawful husband “ wife is living . This is a species of infamy which was seldom or never found in the- complications of Canon Law existing before the Code . The Church ever solicitous to preserve the sanctity of marriage , wished to prevent the defection of the husband or wife from their lawful con sorts . A person , as is patent, who attempted marriage e b fore a sectarian minister, would also incur this infamy .

(7) Finally, we find that in the new law the following i s ac are p o f to infamous , and , therefore, irregular for the of h reception the clerical State . Lay persons w o have been in a lawful manner condemned for crimes of impur ity with minors under Sixteen years of age, or for an as sault upon women . Likewise, those lawfully condemned ’ “ of of the crimes sodomy, bawdry and incest . In the Old law, the only crime that rendered a person infamous was of fo the rape a woman r the cause of marriage . Those who aided or helped in any manner incurred the same “o punishment . We find that in the new law no mention is made of the

of h . These ver e infa accomplices and abettors eretics r y i so ac ‘ mous in law p f to, before the appearance Of the new of o Law Code Can n . Moreover, the omission of those who were cond emned to the triremes ( a system of pun ishment in whi ch those guilty of certain crimes were com elled to p work as oarsmen , and in which the culprit was usually confined in the hold of the vessel until the term of “1 imprisonment elapsed ) is to be noted .

o 2 48 Can n 356. o 2 49 Can n 357. 0 o c o f r e e s o 5 C un il T nt , S s . XXIX , ca de r ef rm.

. ec e m Ur h an . r r 5 : Cf d r tu bani VIII , 4t . , 1635 . Gaspa i , o p. cit ,

N. 6 Sc m V. 12 4 5 h alz, I , t . 7, n . 3 .

42 ‘IRREGULARITIES ARISING FROM DEFECT

licemen and others that might be ordered to assist and no help in the execution of a criminal , are t voluntary as “ Sistants . Several conditions are necessary in order that a judge contract this irregularity . (a ) The judgment itself must be a just one , otherwise , the person does not con a tract the irregularity ex d efectu lenit tis , but that which arises as the result of voluntary homicide ( ex delicto hom f of icidii ). (b) It suf ices that the sentence death be o pronounced , consequently , if the criminal should , by s me o means escape, or have the sentence c mmuted , it would not relieve the judge from the irregularity . (c ) The judge must act by public authority , since one who kills another or causes another to be killed by private author ity incurs t e irregularity ex d elicto homicidii . (d) He o must actual y pr nounce the sentence of death . It was the custom even in the early days of the Chris tian era to exclude men from the reception of orders who by reason of certain crimes were considered undesirable “ o candidates . At an early date m reover , those who had been subjected to a public penance as the result of certain crimes , whether notorious or secret , were not allowed to receive orders , if they already had received some orders not to they were be advanced farther . Gradually by dint of various circumstances the practice of performing pub lic penance disappeared , and Sins of whatsoever nature were atoned for by private penance . “ ” In Corpus Juris Canonici we find f or the first time a f o marked dif erentiati n between public and private crimes , SO in far as, the former produced irregularity while the “7 latter did not .

o 8 55 Can n 9 4 n . 6

. A . . . o s o . Or i n e r p e s co e s ca 1 . e 56 Can t l g , nt a C l I , III p 5 Mign , de I r r e u l ar itatibu s . . X1. 1 0 . Ne G 8 . . o c a r g , P 9 7 C 9 , C un il caesa , (a .

00 C o n C I l . E ao n 1 . 3 p (a . 5 7 etc

. N o . 1 57 C XXXII , 3 . d . . IRREGULARITIES ARISING FROM CRIME 43

CHAPTER IV .

I I RREGULAR TIES ARISING FROM CRIME .

This I nterpretation of an irregularity ex delicto was subsequently changed . Only those crimes whether they were public or occult, which were expressly mentioned in the law were capable of producing this species of irre l r i gu a ty. It might be noted here that crimes to which irregularity is attached on account of infamy do not a make a person irregular if they rem in secret, while the other cr imes mentioned in law do produce irregularity whether they be public o r occult provided the other con i dit ons are fulfilled . This is the present discipline of the h “ church, as found in t e new law . No perpetual impedi ment, called in law irregula rity whether ex defecto or ex delicto , is contracted unless it is expressly contained in ” the following canons .

IRREGULARITY ARISING FROM APOSTASY, HERESY AND

SCHISM .

' h f i Apostates from t e, a th, heretics and schismatics are 2 irregular as a result of their crime . h Apostacy, in its etymological sense, signifies t e giv s ing up of a particular state in life, and he who embrace

such a state cannot leave it, therefore without becoming

an apostate . Benedict XIV divided apostasy into three r er diae classes : (A) Apostasy from the faith , o p fi , when a Christian abandons his faith entirely ; (B) Apo stasy

from orders , when a cleric deserts his state of life , and

(C) Apostasy from religion , when a religious deflects

from his religious life . The Gloss on title IX , Chapter V of the fifth book of the Decretals Of Gregory IX has a in obedien tiae further divi sion of apostasy : apo stasy , dis

obedience to a command given by a lawf ul superior, and “ iter atio ba tis ma ti o of p s , the repetiti n baptism , quoniam

8 o . 1 Can n , 9 3 '

o . 2 Can n 985 n I . 44 IRREGULARITIES ARISING FROM C RIME

reitterantes baptismum videntu r apostata re dum recsb ” i i n dunt a pr iori bapt smate. A S all Sin involves a certa s en e amount of disobedience, the apostasy of di obedi c I of does not constitute a specific Offense. n the case i d f iter atio bapt sma tis, the offense falls under the hea o

heresy, rather than apostasy, and prior to the new Code

constituted a specific irregularity . If the name apostasy was given to this particular offense it was due to the fact that the decretals of Gregory IX combine into one title “ i under the rubric, De apostat s et r eiter antibus baptis ” in n : ma, the two dist ct titles of the Justi ian Code “ ” “ Ne sanctum baptisma iteretu r and De apostatis .

Apostasy from the faith , even before the new law, was

the only kind t hat gave rise to an irregular ity . If one Should apostatize from the priesthood and attempt to

contract and consummate ma r riage, according to the

common opinion of the canonists , in the old law he would incur the irregularity which arose from simultaneous i bigamy . However, as we noted in a prev ous chapter, Since this kind of bigamy no longer begets an irregu lar i ra ity, such a one while committ ng a g ve crime and sub “ n a i ject to other ca onic l prohibit ons of the Chur ch , es

capes the incurrence of this particular irregularity . This was the opinion also in regards to one who deflected “ from religion . W n n th es not ma hen an apostate aba do s his fai , it do t r ter, as rega ds contracting the irregularity , whether he

embraces Islamism , Judaism , Paganism , or simply falls r into natu alism and complete neglect of religion . “ Heresy is a pe ie of infidelity in men who ha in s c s , v "g of its a " professed the faith Christ, corrupt dogm s “ The heretical tenets may be adhered to from involun r a s : ta y c u es inculpable ignorance of the true creed , ar n r o eou s judgment, imperfect apprehension and compre h n i n f e s o o dogmas . I n none of these does the will play an appreciable part, wherefor e one of the necessar y con

e " V . titl 9 e M h “D . ii nc en as k o i h e f sc e Ger c tsv r ar u n . g Cf , an ni h g

C o d . u r . can . 8 a J Can 9 5 n . 3 t s r i II . 1 1 p We nz, o p c t. , 4 .

- m . i t. o s x 2 . 1 u S Th a , II II , Q , . IRREGULARITIES ARISING FROM C RIME 45 — — ditions of sinfulness free choice is wanting and such

i r a a . the t heresy is merely object ve, o m teri l On o her ee l the to e hand, the will may fr ly inc ine intellect adh re to tenets declared false by the divine teaching authority lhn i es ar e : te of the Chu rch . The impe g mot v many in l lectu al pride or exaggerated reliance on ones own in ns of s a the n s of sight, the illusio religiou ze l , allureme t of a in political or ecclesiastical power, the ties m terial terests and personal status ; and perhaps others more dis is to honorable . Heresy thus willed imputable the sub jcet and car ries with it variou s degrees of guilt ; it is called formal beca use to the material error it adds the informative element of freely willed . Pertinacity, that i i ar is, obst nate adhesion to a part cul tenet, is required to make heresy The Code does not specify any n wh particular species , hence o e o is heretical in any

sense, must contract this irregularity .

Schi sm is , in the langu age of theology, and Canon Law,

the ru pture of ecclesiastical discipline and unity, i . e. , either the act by which one of the faithful severs as far as in him lies the ties which bind him to the social organi f z ation o the Church , and make him a member of the

mystical body Of Chr ist, or the state of diss ociation or s h eparation which is t e result of that state . In this ety m lo ical nd o g a full meaning, the term occurs in the books Of the New Testament. By this name, St . Paul charac te r iz es and condemns the parties for med in the commu “ nit of n y Cori th , I beseech you brethr en that there be no schisms among you ; but that you be perfect in the s ame mind , and in the same The union of l l the faithfu , he says e sewhere, should manifest itself in mutual understanding and convergent action similar to the harmonious cooperation of ou r members which “ G d t re no s h o hath tempered, hat the might be chism in t e ”1 ° body. Thus understood , schism is a genus which embraces two d istinct species ; heretical or mixed schism and u an schism p re d Simple. The first has its source in he es or r y is joined with it, the second which most theo

8 C o c E c c o e r ath li n y l p dia , a t. H er esy. r 9 I . C o . I, 12 .

. r . 10 I C o . XII , 25 46 IRREGULARITIES ARISING FROM CRIME

' lo ians as s of g designate absolutely chism , is the rupture the bond Of subordination without an accompanying per

sistent error, directly opposed to a definite dogma . Schism does not necessarily imply adhesion either public o r private to a dissenting group, or a distinct sect, much

less the creation of such a gr oup . Anyone becomes a

schismatic who , though desiring to remain a Christian; rebels against legitimate authority; without going as far e W as the rej ction of Christianity as a whole, which ould

constitute the crime of apostasy . It must be assumed a o th t the Code, when it menti ns schism in general , in l c u des every species . Consequently a person is irregular who could be termed a schismatic in any sense of the

word . Since perpetuity is an essential characteristic of ir “ regularity, an apostate , heretic or schismatic , even e subs quent to his conversion , remains irregular, and must obtain a dispensation before he can be advanced to

orders , or exercise the same .

A A IRREGULARITY FROM TH E BUSE OF B PTISM .

In the old law, the subj ect of this irregularity was a

‘ 1 2 cau se of frequent disputation .

Baptism holds the first place among the sacraments ,

becau se it is the doo r o f the Spiritual life . By it we are m ade members of Christ and inco rpo rated wi th the o C hurch . Baptism o nce validly c nferred , can never be h as o r epeated . This been the c nstant teaching Of s the Church , both Eastern and Western , from the earlie t in times . On this account, baptism is said to impress an

effaceable character on the soul , which the Tridentine “ Fathers call a spiritual and indelible mark . In con n of sequence of this , the unconditional reiteratio bap

1 1 Can o n 983 .

o e r a I . 1 2 B ning, Pa s II , c p . I . n .

e r . VI " 13 H b , , 4

f r . o c o e Sess . can . 14 C un il T nt , VII , IX IRREGULARITIES ARISING FROM CRIME 47

n ns u l tism , knowi gly and willingly, co tit ted an irregu ar ‘5 - ff at ity in the old law . It a ected the person thus

- tempting to r e baptiz e, and the recipient, and the public 1 6 assistants , e. g . , the acolyte or deacon . Three conditions were necessary to constitute this ir

regularity, cul pability, publicity and an absolute confer

al of the sacrament . Many canonists held that the same irregularity was

contracted by those who conferred conditional baptism,

when a prudent doubt that the first baptism was valid , 1 7 could not be had . However, many denied this , be cause the institution of this irregularity was directed — against r e baptism . They maintained that in condi 1 8 tional baptism the crime of heresy was absent .

~ Where sin was not committed , this irregularity was

not incurred , consequently infants and children who act ed unknowingly and unwillingly were unable to be af 9 fected by this irregularity) - The new law of the Church does not mention this irre

- gular ity, consequently it is non existent . At the pr esent f time, when the administration o the sacraments is so ,

safeguarded , it is not likely that a valid baptism could be

reiterated , knowingly and willingly. The Church distingu ishes between the ordina ry and

extrao rdinary minister of baptism . The ordinary min n ister of solem baptism is first the bishop and , second ,

the priest . By delegation , a deacon may confer the sac

rament solemnly, as an extraordinary minister . In case of necessity, baptism can be administered , lawfully and

validly, by any person whatsoever who observes the es sential o o c nditi ns , whether this person be a Catholic, in

fidel or Jew .

In the Code , we find that tho se are irregular ea: de li cto of , who , outside the case extreme necessity, allow 2 0 to z - themselves be bapti ed by non Catholics .

i 1 . Wer o . c t. . 1 5 nz , p , N 35

1 . 16 Ibid . , N . 35 e e XI De s no do c 17 B n di ct V, y , I . 7, ’

r r i l . 2 . D A i s o . c t. vo . e mm 18 Ga pa i , p , I , n 3 9 nn bal , Su ula , I n

l M r l . 1 1 1 No din e o . vo . 4 0 ; th o l . , I , n 3 .

N l in i . l 1 . o d o . c t vo . . 2 19 , p , I , n 3

o . 2 . 2 0 Can n 985 , n 48 IRREGULARITIES ARISING FROM C RIME

f Many cases o extreme necessity can be conceived . It is not necessar y that a man be in imminent danger of

death, the mere fact that he is going to face death , and

a Catholic cannot be had, is sufficient to constitu te a case f o extreme necessity . It does not matter whether the baptism performed by

- a non Catholic be private or public, the offense constitu

ws an irregularity . a Prior to the appe rance of the Code, the law was somewhat mor e specific inasmuch as the incurring of this irregularity was restricted to a person who allowed himself to be baptized without necessity by a here ” tic . The new law, by the innovation of the word

n - no Catholics, wishes to include all those outside the fold

of the Catholic Church .

IRREGULARITY ARISING FROM THE ATTEMPT TO MARRY, WHEN THIS IS IMPOSSIBLE BY REASON OF C ERTAIN

IMPEDIMENTS .

We now come to the consideration of an irregular ity which was introduced for the first time in the new Code , r of Canon Law . There we find that those a e irregular r ea: delicto who have made an attempt at marriage, o only went thr ough a civil contract of marriage, while they were already lawfully wedded , or in sacred or ders , or under religious vows, even though these be simple and h tempor ar y, likewise those w o attempt marriage with a woman bound by the same vows (or with a woman bo und 2 2 by a valid marriage bond). The indissolubility of the mar r iage contract is found ed on the requirements of divine law . . A valid marriage, dis once it has been ratified and consummated, cannot be r solved by any human power, o any cause except ” death . Thi s canon merely reiterates the constant

'

er i . 1 . r s . 1 2 1 W nz, o p . c t , n . 34 Sua ez, op. t it , n 4. C a 22 n o n 985 n . 3 . C o 1 1 18 2 3 an n .

5 0 IRREGULARITIES ARISING FROM CRIME

is due to ecclesiastical legislation . The Church has de creed that some vows should be solemn and that as s uch they should be endowed wi th certain features or qualities which do not belong to simple vows . These qualities are : (A) Solemn vows enjoy greater stability because 2 6 the Church more rarely dispenses from them . (B ) While all vows bind to the extent of making an act Which is contrary to them illicit, solemn vows produce another effect by making a contra r y act also invalid . A religious attempting marriage, even if only bound by a simple, or m temporal vow, while his arriage would indeed be valid , commits a grave wrong, and would be irregular should he subsequently desire to be advanced to the clerical r state . The same irregu la ity is incurr ed by men who should attempt marriage with a woman , whose lawful husband is still alive,or with a sister who is bound by either perpetual or temporary vows .

IRREGULARITY ARISING FROM HOMICIDE A ND TH E PROCURE

MENT OF ABORTION .

It was the desire of the Church , from the earliest stages of her existence , to preserve the members of her “ ‘ “ ”2 7 clergy without crime, and irreprehensible . We

find , consequently, that the early Church enacted canons which not merely denied access to orders to those guilty f o the crime of homicide, but further prohibited those 2 8 who had received orders the exercise of their office. Since priests of the new law ought to be imitators of

Christ, the Prince of Peace, it is but befitting and proper that they be debarred from the unbloody sacrifice of the immaculate Lamb, who themselves have dared to Shed human blood .

r i l o l 11 8 1 er meer h 26 e o . o 11 6 V . . s c . W nz , p c t. , V III, . 77 IV 3 ; V l 2 2 Vo . I , n 3 7 3 9 2 St to 7 Paul Tit . I , 6 .

2 l i i r i n i le l in fidel s c. 28 8 . d e c er c s e cu t e t bu fi e s v e e Cf p s d , ,

A . D i m o s o . c . de r o cl er ic s efi u sio n s s e p t l 7 45 ; p hibit , a e anguini tia ho stiu m b n Il r . t . c v i s o essae. c e d 2 e c i itat . I , C o e. anno 5 4, ' IRREGULARITIES ARISING FROM CRIME 5 1

This irregularity is incurred by voluntary murderers , f and by those who procure abortion , if ef ective , and all 2 9 - co operators . Homicide in general signifies the killing of a human

’ n a being . It includes both intentio al and unintention l 3 0 . killing In practice, the word, generally means the u nju st taking away of human life, perpetrated by one ‘ distinct from the victim , and generally acting in a pri v ate capacity . He incurs the same irregularity who , in an unjust attack upon an innocent person , inflicts a grievous injury from which the victim subsequently dies .

In such a case, the fact that the unjust aggressor should repent before the death of the innocent par ty has occur ed , does not excuse him from incurring the irregular ity .

Homicide is said to be necessary when a person , to pre serve his own life, limb , or chastity, kills an unj ust ag gr essor . A greater value must be placed upon the life of the innocent party in such a case . He who kills another i in self defense is not guilty of s n , nor does he contract

‘ an I rregularity as a result of his action . We find this “ teaching thus enunciated C . 6, D . 5 0 . Idem (id est, nul lam ir r egu lar itatemincu r rer e) de illo censem u s qui mor tem aliter vitar e non valens suum occidit vel mutilat in

” ‘ vasor em . In the antient law moreover, we find that such a one could exercise those orders he had already r e c i e ved, but required a dispensation to be advanced to 3 2 higher orders . s o A per on who , in defense of an inn cent party, is f orc ed to . kill the unjust aggressor, is not morally culpable nor does he contract an irregularity . This is the com, m on teaching of canonists who treat of this particular 8 3 eventuality .

The right to self- defense is not annulled by the fact

2 o 8 9 Can n 9 5 , n . 4. ’ ‘ l 0 B n i . o e n h D . . u it. s . s . A o . c c e o i 3 g , p , fa II , p 5 q , nnibal p c t ,

. . 2 1 s . f . . . . o Tr es s f P I , n 4 , q C . S XIV. cap VII , de r e G s r r i 1 o t. 1 c . 3 a pa i , p . , n 4 5 .

. 6 D 0 32 C , . 5 . Sc m . 6 t . 81 Reifi 1 33 h alz , I, XII, n 3 ; Pi hing, n 77, ; , n . 46, 1 54 ’ D A n ni l . . ba e, I , n 424 5 2 IRREGULARITIES ARISING FROM CRIME

that the unj ust aggressor is not responsible . The ah it sence of knowledge saves him from moral guilt, but does not alter the character of the act considered Ob ectivel s j y ; it is an unj ust aggres ion and , in the conflict the life assailed has a superior j uridical value . Many contend that Should one fatally wound another s e who was sub equently kill d by a third person , acting independently, he would not be irregular . Faganu s de 4 nies this 3 and his opinion is borne out by other I n canonists . this case , the incurrence of irregularity is at least do ubtful . If a doubt exists as to whether the first assault caused or accelerated the death of the inno he cent par ty, t aggressor could not be excused from con 3 5 tracting the irregularity . The following morally concur in volunta r y homicide and contract irregularity : Those commanding, advising, n failing to prevent, and giving as se t to such an action . A person comm anding the death of an innocent par ty of was is guilty homicide and irregular, in the ancient V f law, acco rding to the accepted iew o the canonists . ” “ This discipline was introduced by Boniface VIII . Is qui mandat aliqu em ver ber ar i licet expresse inhibeat ne id r ll n m l occ atu u ate u s vel membro alique uti etu r , irre x d gularis efficitu r , si mandatar iu s , fines mandati e ce ens, mutilat vel occidat : cum mandando in sulpa fuerit et hoc ”3 6 evenir e posse debu er it cogitare .

In the gloss of Boniface , we find the following legisla “ r a tion : Homicidium committitur facto , consilio p ecepto , et defensione Et sic disti ngue circa hanc materiam ; aut committitur homicidium voluntate, aut o s casu aut necessitate . Si voluntate qu d fit tribus modi

dhor tatione. facto, pr aecepto , et concilio, et lingua sive a

In qu ocu mqu e ipsor u m casu um quis committ homicidium, e non solum non debet promover i , sed in perpetuum deb t r i ir r lar is fii deponi ; et etiamsi paganum inter fece t, egu e ” 7 citu r , sive Sar acenor um .

mm . 18 De o m c o . Fa an u s co . ca 34 g , in p , h i idi

11 . . 11 68 S r e s . sec . . St A . . 5 35 lph VII , 3 ; ua z , di p XLIV, t III,

. d o m c o 1 1 1 . 6 C III , X , e h i idi , I , 3 ° de o m c o III / in 37 C . VI , II , h i idi , I , , VI IRREGULARITIES ARISING FROM CRIME 5 3

In the Code of canon law3 8 we find that those who agree to co - operate in the same crime by united physical i n action are all held equally guilty, unless the c r cu msta c es increas e Or diminish the culpability of one or the other . In an offence which of its very nature requires an ac complice , both parties are held equally guilty, unless the e circumstances prove the contrary . Many cas s can be conceived in which an accomplice would be required to commit an act of homicide. The co - operation on the part of the accomplice must be of such a kind that he may be justly reputed as the co - criminal in the act o f mur 3 9 der . It is immaterial whether the act of homicide r e sulted from the physical or moral co - operation of the ac complice , as would b e implied by physical acts of violence h in the former case, or a mandate o r advice in t e latter . If as sent be of such a character as to involve physical participation in the contemplated homicide , the person h giving such assent is irregular, even though t e intend be a ed victim third party. Should a number of men conspire to cause the death of some particular individual , all incur irregularity, if the party be executed in accordance with their plans and as a result of their intrigue . m n Not only the a datariu s, (or the who orders the commission of an offence, ) and who is therefore the Of principle agent the crime, but also all who induce an or other help him in any way to commit a crime, are “ ” ceteris paribus equally culpable as the executor of the crime himself, if the deed would not have been committed

- without their co operation . Consequently since such per sons are equally guilty with the actual murderer they o c ntract irregularity . The inducements o r advice must be persuasive or instru ctive . This would be the case if the advi ce were insistent, or if one should present various arguments for the perpetr ation of such an act, or if one

C o . u r an 2 2 0 38 J C cano n , 9 fi l d o in e m . 39 C I, X e c nd . d u , III , 33 5 4 IRREGULARITIES ARISING FROM CRIME should indicate the mode of committing homicide with "l o impunity . u f Such a one is the tr e moral cause o homicide, as may 2 i be gathered in C . , X , de cler ices pugnant bu s in duello , 14 “ V, . Homicidium autem tam facto quam pr aecepto, sine defensione non est dubium per petr ar i Qui r n i i vero se asse u t an mu m regis nflammasse ad o dium , o unde h micidium fuit secutum , dure et aspere, sed non ita , severe sunt pu niendi ; nisi forte ipsum ad illu d homi cidium suis suggestionibu s provocasse

If a person who had no part in the actual murder, and who no - was t a co criminal in the conspiracy, Should se crete the body Of the victim , he is not irregular, even though he does after a manner concur in the homicide .

Various motives may actuate such a person , for ins tance , the desire to protect the murderer from being repr e 4 1 hended .

In the event that a person provokes another to anger, and kills him in a resultant conflict, the incurrence Of ir regularity is doubtful . In this case according to Su “2 arez , a dispensation ad cautelam should be obtained . “ If one should simply say to another : Your friend has ” offended against you , therefore kill him , the existence of an irregularity would at least be dou btful . The rea son is that in such cases it is extremely difficult to prove that a suggestion of this kind would cause any one to commit actual murder .

He who ceased to co- operate in a crime by timely with dr l r e awa from all participation , is f r eeded from all sponsibility, even though f o r reasons of his own , the exe cuto r of the crime perpetrated the deed ; if he did not completely withdraw his influence, his retraction dimin 4 3 ishes but does not take away responsibility altogether .

Consequently one who w ould refuse to cO- operate in the actual commission of a murder, but allowed others to be influenced by his tacit consent is not free from all r e

it S r 18 s r r o . c . 2 1 . e . c. 40 . ua z , I N ; Ga a i , p , N 4 r r o a t p 41 Gasp a i , p . , N .

S r s 10 . e . sec . s 43 ua z , di p XLVI , t VI , N q

C o d . r 2 u can . 2 0 . 43 J . Can 9, n 5 IRREGULARITIES ARISING FROM CRIME 5 5

of s sponsibility, and the incurrence irregularity i at least i u f uncerta n . The revocation m st be ef ective ; hence proper means must be employed to deter a person from ff acting on the earlier s uggestion , e . g . e ective contrary persuasion

He who co - operates in a crime by neglect of his duty is held responsible to a degree propo rtionate to his obli “4 gation of preventing the crime . One who is merely bound by chari ty to prevent the death of f another is not irregular . If one who is bound by justice, with malice and forethought, fails to prevent the death of another, he becomes irregular .

Praise Of the actual fulfillment of a crime , par ticipa tion in its fruits or concealing the delinquent, and other ' actions following after the cr ime has been accomplished , f may constitute new o fenses , namely if these actions are

punished in law by penalties , but unless there is a pre existing agreement with the Offender about such actions , 4 5 nse they do not import responsibility for the crime . C o quently persons concu r ing in an act of homicide in this manner would contract irregularity, only in the case

wher e t her e had been a previous agreement or intrigue . “ According to Gasparri , if the one commissioned to o perpetrate a murder sh uld himself be slain , either by flic r f the intended victim , or by an o e o the law, o r an ac n h cidental defender of the victim, the o e w o o rdered such I s an attempt incur s irregularity, since he the tru e and

real cause of the resultant death . It is never allowed directly to kill an innocent party;

that is , it is unlawf ul to kill the innocent when the death f ' o such a one is intended , or when it is intended as a

means to attain some other object . The direct killing of an innocent person is to be reckoned among the most

grievous crimes, and the irregularity ex homicidio in

such a case is always present . It does not matter either

as regards the malice of the act, o r as regards the con

C r . d . u . 2 2 o . can . 0 6 44 J Can 9 n .

C o . u r n . . d . ca 2 20 45 J . Can 9, n 7

r i . G s r o . c t. 2 1 . 46 a pa i , p , N 4 5 6 IRREGULARITIES ARISING FROM CRIME

n d tracti g irregularity, whether one Shoul accidentally 4 7 kill another than his intended victim . Canon law has always forbidden clerics to shed human

blood . Capital punishment has always been the work of

the state and not of the church . Even in the case of

- heresy, of which non Catholic controversialists make so

much , the function of ecclesiastics was restricted invari

ably to ascertaining the fact of heresy . The punishment, w emeL ca taL or r e fl both r e ed and aS _ b h m f _ qt is f _ p scri hgyfl o e inflic ed by civil government . Such m des of procedur t " fl n as lynChifig aFEB bSOlutely u justifiable , and all persons

participating in such an action incur irregularity .

It was the common teaching before the new law, that all soldiers who took part in an unjust war and either _ killed or physically cO- operated in the killing of the f enem y were irregular . In the new Code o Canon Law the expression volunta ry murderers is employed . The o n interpretation of this is evi dent . If a soldier v lu teers his services in a war which he personally knows to be u n u in j ust , and , as a result , kills another, irreg larity is w curred . A person forced against his ill to participate in an unj ust war, cannot be called a voluntary murderer, ’ even though he should be the cause of another s death , f nor is he a fected by the irregularity . To accelerate the death of a person who is seriously ill and whose eventual death is mor ally certain . as by the injection of a large dose of morphine , is homi m f r cide . The ere quality of hastening adds nothing o ex t nu ation as r e o in e , eve y murder is mer ly a hastening f o w evitable death . To ease pain is not c mmensurate ith n the ho rrible deordination of taki g a human life . A i physician s not a public executioner nor a j udge , with the power of life and death : his business is solely to save human life and never to destroy it . A doctor who per fo rms euthanasia (acceleration of certain death ) is cer i ta nly gu ilty of homicide and incurs irregularity .

One therefore who has killed another, under circum stances that show his act to be a mortal sin , whether he

m S r e o . it 1 8 . 2 . r c . . Sc . G s r 47 ua z , p , N , ; h alz , V, XII , N 37 a pa i , o . cit. 1 p , N . 4 5 .

5 8 IRREGULARITIES ARISING FROM CRIME

the amputation Of an impo rtant member . When a per son is weakened in a member as the result of certain dis so eases , that he is unable to use it, he is said to be de fo r med . In order to incur the irregularity the member

in question must have a distinct, complete function of its no own . To blind a man in one eye is t enough to procure and this obstacle to the reception exercise of order s , the 4 9 eye must be removed . There may be a grave Sin in a marring of any principal member and still there may not ff be mutilation , as , for instance, to cut o a part of a i finger is undoubtedly a grave s n , yet in the opinion of 5 0 canonists it is not sufficient to produce irregularity . ’ A notable and effective mutilation inflicted on one s n ow body is akin to suicide, and when perpetrated on an i other t is akin to homicide . The dominion over the members Of the body, as over the whole body, belongs to of God the Creator alone . Man is constituted parts and members , and if he were master of these , he would have a complete dominion over himself . To destroy a thing is to dispose of it as an absolute master, and to act as one having full and independent po wer over it, but man does not have power over his life or any of the elements which constitute it .

A direct mutilation has a Specific end , or, it may be , a o ac means to attain an end , it is moreover a v luntary tion . An indirect mutilation is one in which the mutila tion is the natural effect of the act, but the intention is directed to ward another end . Such an act is licit pr o i v ded the usual conditions of double effect are present . o All di r ect mutilation , unles s for the g od of the whole bo dy, implies a deordination ; it offends against the su o o d r v as preme d mini n of Go , who rese es to Himself, r ea C to r, ownership of human life and its organs . As we n may ot destroy life , which belongs to God , we may not amputate a member to suppress a vital function . The excepti on which per mits us to mu tilate a member o r or gan , is, as we have said , the adequate good of the whole body . The reason for this is that man is the admini stra

. A l h n i . 82 . t . c . St o . o . c . 49 p p , I n 3

D n s ec 2 2 . S r e e ce . s . 50 ua z , di p 44, IRREGULARITIES ARISING FROM CRIME 5 9

; fo r Of his members , to the good of the whole person

Each member is not for itself, but for the whole person . r We may not castrate a man , or perfo m vasectomy, to preser ve his continence, because there is no immediate subordination and connection between the members of the body and the salvation of the soul . d A eunuch is not irregular, according to the accepte “ f View . It does not matter whether he became af licted with this corpo real blemi sh as the result of an inj ury, Or was born with this defect . If he performs such an op eration upon himself, or another without suflicient r ea son he is affected by irregular ity . God has r eserved to himself direct dominion over life ; i n He s the owner of its substance, and He has given ma only the serviceable dominion , the right of use, with the charge of protecting the substance, that is , life itself .

Consequently, an attempt to commit suicide, is an at tempt against the dominion and right of ownership of the Creator . To this injustice is added a serious Offense against the charity which man owes himself, since by his act he deprives himself of the greatest good entrus ted to

' his care, and the possibility of attaining his final end . For a sane man to deliber ately attempt to take his own

life, he must, as a general rule , first have annihilated

himself in the spiri tual life, Since suicide is an absolute contr adiction to everything that the Christian religion a te ches us as to the end and obj ect of life, and except in of n a cases i s nity, is usually the natural termination of a

An action which has some good and immediate impor ff n tant e ect is ot unlawful , even though the performance of ma e e such an action y cause on s d ath , it being pre s ed um , of course, that suicide is not intended . We are obliged to take ordinar y precautions to pre serve our lives and to act otherwise Would be tantamount to the actu al commiss ion of suicide . There is no obliga to r tion take extraordinary, unusual , o very painful or

expensive means to preser ve o u r lives .

- er O i l . . F t t r 1 . c t. vo . 1 6 e e es C o m e 5 W nz , p , II , n 4 , p ndium Th eo l . Mo r s v l . . ali , o II , n 60 IRREGULARITIES ARISING FROM C RIME

Not ever y attempt to take ones own life will give rise

to this irregular ity . The attempt should be gravely sin

ful , consequently any circumstance that would excuse

from mortal Sin , wou ld excuse one from the incurrence of this ir regular ityfi 2

It might readily happen that, as a result of an attempt

at suicide, a person would incur other irregularities , as ,

for instance, the irregularity arising from mutilation, or

defect Of bo dy .

IRREGULARITY ARISING FROM TH E EXERCISE F D A D O ME ICINE N SURGERY .

It is fo rbidden to clerics to practice medicine or s u r 5 3 o . gery , with ut apo stolic induct Clerics practicing r medicine o surgery , in spite of this prohibition , are ir i f 5 4 regular, f thereby the death o a person is caused .

In the ea rly days of Christianity , it appears that clerics were perm itted to practice medicine o r surgery with impunity . It is true , that general laws may be found , which fo rbade clerics to engage in secular pur o in suits . H wever, Spite Of these general injunctions , it

was not uncommon for . clerics to practice the arts of y s medicine and surger . Abuse u ndoubtedly arose, and it became necessary f or the Church to legislate on the sub ject. In the fourth century, canons were enacted which condemned the excess of clerics engaged in secular sub 5 5 jects . The custom in monasteries o f teaching medi cine and public law, was first condemned in the twelfth 5 6 i r In or an on ci . centu y . the C pus Ju r is C , C . XXXII 3 , d

I . may be found legislation which forbids clerics to at tend the public lectures in medicine and law, which wer e given in the universities . The reason brought fo rward is that clerics who devote themselves to such studies

N i . d . u r an an C o C . c . . o l n i l 1 . 86 d o . t. v o 2 52 , p c , II , n . 4 J 9

o 1 n 1 . 53 Can n 39, . o 8 n 6 54 Can n o 5 , l r r n i m n 1 e t . 22 1 . . C o n e. C a e o t 1 o c 55 Cf C . 5 , , a . 39 ; W z , p , n i Wer o . c t a nz , p , IRREGULARITIES ARISING FROM CRIME 61 readily lost sight of the purpose for which they were b n elevated to their state in life . This prohi itio however forbade attendance at public lectures , hence clerics were r permitted to follow medicine privately, o teach it pub f s t licly. The council o Tours is ued a like prohibi ion , in the year to prevent regulars from departing from their C loisters under pretext of attending university courses , and to keep seculars reminded of their obliga tion of residence . Thi s law was extended by Honorious i c 5 8 III to all eccles iast s having a church dignity . This discipline was inser ted by Boniface VIII in his canonical 5 9 compilation . This discipline is not binding o n those clerics who pursue the studies of medicine and surgery pr ivately . The penalty imposed for violation was ex to communi cation ipso fac . The Fourth Council of the 2 5 Lateran , in the year 1 1 , forbade to clerics the practice a of medicine, in c ses of amputation or burn ing . It would seem that this irregularity is contracted ipso facto if death results from the ministration of a cleric . Before to the new law, a cleric , according the common o pinion , could , in case of necessity, and where danger of life was n r ot involved , practice medicine, th ough pity and cha rity f toward the poor , in default o ordinary practitioners . e o If a death result d , as a c nsequence of such practice, the c of incurren e irregularity was considered doubtful , s i o ad cau telam and a di pensat n was Obta ined . s Regulars living in a mi sionary country, where doc r to s are scarce, have , by virtue of the Bull of Clement “ ” XII, Cum Sicut, a . d . 1734, the faculty of practicing hi medicine . To make u se of t s privilege, however, they r must be skilled in the medical p ofession, and give their ser vices gratis . They may not practice medicine for the sake of gain and there must always be a dear th of doc i tors . Regulars who , accord ng to their institute , have x s ar t of car e of hospitals, may not e erci e the medicine outside of their own institutions . It is a rather difficult procedure for a cleric to obtain an apostolic indult to

C an . 8 n Thr n n sis. C o e. o e 57 ,

r . it. . 2 1 e o . c 2 . 58 W nz , p , n

er 1 . 59 W nz . c 62 IRREGULARITIES ARISING FROM CRIME

practice medicine or surger y . Generally, the ordinar y is consulted concer ning the skill and qualities of the one o seeking such an indult . The lack f lay doctors always plays an important part in the granting of such an in i dult . An indult to practice surgery is much more d ffi

cult to obtain than one for practicing medicine . and is only granted when the applicant is skilled and there is no

local surgeon . When such an indult has been obtained ,

a cleric does not become irregular, even when death r e 6 0 su lts from his administrations . f i This irregularity af ects clerics alone . Physicians , t

is tr u e , desiring to enter the clerical state , must be dis

' n d pe se ad cautelam , but only by reason of the danger of 6 1 having incurred irregularity as a result of mutilation . It might be emphasiz ed that the Code says that death must follow from the exercise of medicine and surgery b o ef re irregularity is contracted . Consequently, a cleric could exercise these forbidden arts and be the possible n occasion of death to another, however, he does ot be r come ir egular until death has actually taken place . In case of necessity and where danger to life is not involv ed , clerics can practice medicine , through charity and commiseration toward the poo r . In ca ses where a cleric

- had for merly been a physician , he may not practice medicine , except through necessity, witho ut obtaining a papal indult , which is generally not granted except for “ Di c 3 n . oe . an impelling cause . (Be ed . XIV, De Syn I, , c . 10 )

IRREGULARITY ARISING FROM THE ABUSE OF ORDERS .

u In the new law the following are irreg lar, by reason of their crime : Men who usurp the exercise of an act of who e orders , which is reserved to those have rec ived e o who exer sacred o rders , and also clerics in sacr d rders cise such an act of major orders after they have been fo r

l 11 . l n o . . 60 No di , v III , 735 “ ”

X De S n . B o ce. 1 c 10 . 61 B en edic. IV, y i I, 3 , IRREGULARITIES ARISING FROM CRIME 63

bidden to do SO by canonical penalty, either personal , or 6 2 o . local , corrective, r punitive Mention of this irregularity is not made in the decree of Gratian , or in the decretals of Gregory IX , hence , its exact origin is clouded in obscurity . It . is generally as sumed that custom introduced this canonical impedi 6 3 ment .

In the first place, it may be noted that this irregularity affects not merely those in the clerical state , but laymen ir r u as well . Consequently, a layman would become eg

- in lar should he take the part of a deacon , or sub deacon . a Solemn mass .

A person , even though only initiated into the clerical state , by tonsure, does not become irregu lar if . in an urgent case, he acts as subdeacon in a solemn Mass . The reason is that, in a case of necessity, this exercise of sa cred orders is permitted to those in minor orders and

first tonsure . It is not per mitted for such a one to em “ ploy the maniple , however, when acting as subdeacon . A usurpation of sacred orders is requir ed before this irregularity is contracted ; consequently one who exer cises minor orders which he does not po ssess does not become irregular, as, for instance, should he bless fruits and br ead , practice exorcism , etc . A perso n acting in n such a manner commits a grave sin , indeed , but is ot affected by the canonical obstacle “ It is necessary according to Nolden , in usurping the exercise of sacred orders which a person does not poss ess, that he employ solemnly all the reserved cer emoni es and peculiar ornaments of that order, before irregularity is incurred .

Solemnly, according to Laurentius , denotes such an i action as the consecrat on of the Eucharist, sacramental i absolut on , or, if the act is able substantially to be per a formed by lay person , the employment of the vest s to a ments re erved one in s cred orders . Consequently,

62 o 8 Can n 9 5 , n . 7.

6 r . i . . e 0 c t. 1 6 3 W nz, p , n 3 , no t e 334

6 . S . . R 1 u L 1 4 C , 7 J , 894, n . 3832 .

6 No ldin o i l III . c t. vo 5 , p. , . , 11 678, c. IRREGULARITI ES ARISING FROM CRIME

‘ one acting as a deacon singing the gospel in a solemn h ma ss , with a dalmatic, but without t e stole, or one act o ing as a subdeac n singing the epistle with the tunic, but o witho ut the maniple , d es not solemnly exercise an act of sacred o rders . The Code however does not say that the solemn exercise of orders is required , consequently the ” o o opini n of N ldin cannot be upheld . A priest contracts irregularity who exercises a ponti fi l o o r ca functi n , as to c nsecrate a church o chalice , confer tonsure o r mino r o rders . Likewise , a deacon who at tempts to absolve a penitent , and a subdeacon who at r w tempts to confer baptism solemnly, o ho sings the gos r h r pel with a stole , o w o supplies the ce emonies at bap tism . A cleric in minor orders is also irregular who sings the epistle with maniple . The reason of this is that all o d n these exercise a maj r order which they o ot possess .

A simple priest who , without jurisdiction , absolves

sacramentally does not incur irregularity . The same is f o true O a deac n , who , without autho rity of the pastor, h baptizes solemnly o r admi nisters holy communion . T ese

do not exercise sacred o rders which they do not posses s . The second class of persons who are affected by this

irregularity, are clerics in sacred o rders . Should such a one exercise an act of sacred o rders forbidden to him i ir r by reason of an eccles astical penalty , he becomes egu

lar .

In the ancient law , excommunication was of two kinds ,

major and minor . A mino r excommunication was a gen

er al prohibition from r eceiving the sacraments . In o r der to receive the Eucharist and the other s acraments

those who .had incurred this penalty had to be absolved

therefrom ; as it was not reserved , this could be done by

any confessor . It was the general opinion that only the violation of a major excommunication gave rise to this

xc mmu nica- tioni impediment . Sacer dotem minori e o l 6 6 igatu m non fier i ir r egu lar em celebrando . Gasparri 6 7 “ - E makes the following comment upon thi s law . t

De r e mm c o . D er co exco . 66 In cap . ult . e cl i in t

s r r 0 . cit. 67 Ga pa i , p

66 IRREGULARITIES ARISING FROM CRIME

i so , nor s there any obligation for the priest to ascertain 6 8 o . the reas n of the request By reason of this canon , a a priest who administers the sacraments , under the bove

conditions , would be excused from irregularity . The faithful may only in danger of death ask for sac a excommu n cat i ramental bsolution from an i u s v tandas , as Well as from another excommunicated priest whose excommunication was pronounced in the ecclesiastical u r e co rt by eithe condemnatory or d claratory sentence , in 2 22 2 accord with canons 88 and 5 , and also if there are no other ministers present for the other sacraments and 6 9 i . e excommu n ca tus sacramentals Cons quently priest . a a on vit nd s , or e excommunicated by a condemnatory or o declarat r y sentence , incurs irregu larity, if he exer cises f his of ice , except in the danger of death , and where re o c urse can be had to no other minister . Danger of death n is to be interpreted in a broad sense , and is not to be co

- h fuse d with t e actu al moment of death . '

(II ). An interdi ct is a censure by which the faithful ,

though remaining in communion with the Church , are 7 0 forbidden to participate in certain sacred functions .

The prohibition is made either directly, by mea ns of a perso na l interdict which forbids some par ticular indivi dual the use of the specified holy things , or indirectly, by means of a local interdict which forbids the administr a tion or reception of some sacraments or sacramentals in

cer tain places . The personal interdict follows the indi vidual wherever he may happen to go ; the local inte rdict does not bind outside the interdicted place ; however in that pa rticular place in which it is in force it affects all

persons , even outsiders and exempt persons , unless they ‘ o See lone have a Special privilege . The H ly a can issue for r of a general interdict, either local the territo y a dio diocese or countr y or personal , for the people of the ese or country ; the bishop ( not the ordinary) may issue

o 2 2 61 . 1 . 68 Can n , n

o 226 1 . 69 Can n , N . II

C o d . u r . ri c o 2 268. 70 J Ca . an n , " ' IRREGULARITIES ARISING FROM C RI ME 67

r a general interdict fo r a parish o its people , and a par ti

‘ 7 1 cular interdict both personal and local . f 7 2 According to Gas parri , a cleric who violates the pro hibition of a local interdict whether general o r par ticu m e to One lar, b y per for ing an act reserv d in sacred or o r ders , is irregular . The local interdict whether general

particular, does not forbid the administration of the Sac

r am ents, but it does forbid in that place any Divine ser

vices o r rites with the following exceptions . On Christ ’ A ssu m mas , Easter, Pentecost, Co rpus Christi , and the p r tion of the Blessed Virgin Mary, the local inte dict is

suspended , and only the conferring of o rders and the 7 3 solemn blessing of marriage are forbidden . \ A cleric not perso na lly interdicted does not incur ir regularity if he violates a local general interdict holding Divine services an d sacred functions in any church o r o o rat ry , provided this be do ne privately and behind clos “ oo o ed d rs , in silence and with ut ringing of bells . o It is certain that if a cleric pers nally interdicted , ex

‘ er cises e o e o 7 5 sacr d rders , irr gularity is c ntracted . Cardi nals do n ot incur p enalties unless they are explicitly e n h mentio n d , a d t e same applies to bishops in reference

’ to e o 7 6 ‘ susp nsi ns and interdicts latae s en tm ti cw. It is patent that a cleric aff ected by a particu lar personal in ter dict o o o would c ntract a tw f ld irregular ity, who would e f ex rcise his divine Of ice in a place under interdict , e be 7 7 wheth r the latter general o r particular .

( III ) . Irregularity arising from the violation of sus o e e pensi n was first d cre d about the twelfth century . Scitu r u s o Si su s ension qu d , p e durante , damn abiliter in ir r e u l r i i gesserit se divinis , g a tat s laqueo se involvit, se

' canonicas san c i n cundum t o es, a qua nonnisi per Sum ” mum Pontificem poter it liber ar i 7 8 In another place of

C o d . u r . c o 2 2 71 J Can an n 69 . G s r r o it . c . 6 72 a pa i , p , N . 35 .

C o d . u r can c o 2 2 0 . 2 73 J an n 7 , N .

C o d . u r . . c o 2 2 1 74 J Can an n 7 .

G s r r . it. s O c 6 . 75 a pa i , p , N . 35 C o d u r . . c o 2 2 2 76 J Can an n 7 . G s r r o i . c t . 77 , a pa i , p , . D e s e et r e u d . XI I I . 78 C I , nt j , II, V n 60 68 IRREGULARITIES ARISING FROM CRIME

the same work we read , C aveant autem ecclesiarum pr aelati et j udices universi ne pr aedictam poenam sus pensionis incu r r ant ; quoniam Si continger et eOS sic sus

‘ cia xe i pensos divi na offi e qu Sieut prius, ir r egul ar itatem ffu ien uxta canonicas n i no n e g t j sa ct ones, super qua ” Pon ifi m 7° nonnisi per Summum t ce poterit dispensar i . i r Suspension is ord na ily a censure, S ince it is gener ally a medicinal punishment, inflicted after admonitions and intended to amend the delinquent, yet it is not neces sar ily so for it is occasionally employed as a chastisement for past offenses . Many maintai ned prior to the new law that onl y the violation of suspension as a censure gave rise to this ir r 8 1 regula ity . Others were of a contrary opinion , and 8 2 “ some , as St . Alphonsu s , drew a distinction . Si sus pensio infligatu r per modum statu ti aut pr aecepti ob crimen futuru m , vel etiam praeteritum, sed habens trac i ” tum su ccess vum . If these conditions were fulfilled ac cordi ng to the tenets of the opinion of St . Alphonsus ir regularity was contracted . However they denied the nsi f r existence of an irregularity, si suspe o er tu ab ho mine per sententiam ob mer am punitionem cr iminis om ” ‘ i n nino pr aeter it . There was a very probable opinio at least that a violation of a vi ndictive suspension did not 8 3 beget this irregular ity . An exception , of course, was ma de of the ease in which a clause is explicitly added , declaring one irregular who violates such a suspension . s In the new law, canon , 987, N , states that cleric in sacred orders who exercise such an act of order s after ena lt they have been forbidden to do so by canonical p y, r either personal or local , corrective o punitive , incur ir regularity .

A lay person or a cleric who, in spite of a censure, r woul d dare to receive tonsure , o be advanced to a high

79 Ibid . ’ l i mm A o sto cae Se s . 12 D s . 80 A nnibal e, in co . co n t p di , n and in

. 86 . mm . the Su ula , I n 357, 3 Q

r e De cen su r is s sec . . . 81 Sua z , , di p . XXVI , t II , n 4

. A 11 1 . 82 S lph . , VII , . 3 4 ’ ’ 8 i vo l . . 6 D A e . 6 Gen co t 83 nnibal , I , n 3 ; , II , n 33, no t. 3 . IRREGULARITIES ARISING FROM C RIME 69

er order, by an excommunicated , suspended , or inter dicted bishop , is not irregular, even though grave Sin is committed , and the exercise of the received order pro d a i hibite . The re son of this s that the individual in ques tion does not exercise a forbidden order . This discipline 8 4 “ was introduced by Benedict XIV . Apud omnes canon istas principii loco est ir r egular itatem a sole jure et non ab homine induci posse ; a j ure autem ir r egu lar itate i r n li n u r quidem afii c u ntu , qui co tempta, qua ga t , censura , in suscepto ordine solemniter ministrant ; nunquam vero irregul ares pr onu ntiantu r qui cum ej usdem censu r ae i vinculo ad su perior em or d nem ascendere prae sumu nt. i Scimu s enimver o non def u sse doctores , quibus visum cum fuerit ascensu m ad altior em or dinem qu oddam esse i id i exer citium inferioris ordinis jam su scept , c r co do cuer e ir r egular itatem a j ure in primo casu ir r ogatam i etiam secundum complect . Sed simul non ignoramus ver ior em et commu nior em esse sententiam oppositam r i ii r quae , quamquam sac leg reum fateatu , qui sciens se m censu r ae vinculo obstri ctu , superioris ordinis gradum i n ir r e u lar ita b l au dacter conscend t, eum tame ab g te a so ” vit . A cleric exercising sacred orders who is affected by the 8 5 - u nsas Deo so called s spe a , is not irregular . The same is true of a cleric who violates a suspension imposed by

f - reason of some defect O mind or body not blame worthy .

In these cases there is no violation of a penalty . It was at one time a subject of dispute whether a per n so himself under censure incurred irregularity, if he should compel another to perform the sacred acts of the

ministr y . The more accepted opinion holds that such u a one is not affected by irregul arity, because irreg larity is incurred only by the one actually violating a canonical 8 6 penalty .

. . e e c s De s n . 11 84 B n di tu XIV, y , XII , III , 7

F an u s . r r D r e o . c er a . e ec . d e c . et 85 Cf . g , in I pa t t tii tal h abit l

u titu m . 2 n io n em Dei vo cant m r ca . aes 2 . u s e s muli e . p Q n S p , qua er o e eccatem m o r e o u amdiu n o n elu itu r im aff t qu lib t p tal , qu d , q , pedit a sacr is tu m r ecepien dis tu m admin istr an dis . ’ D e . 1 1 ensu r is A . r e D c s . nnibal , I , n 4 , n . 26 Sua z , e , di put

. . C o d . u r ec . an . . XXXIV, s t IV J Can . c . 985 n 7 70 IRREGULARITIES ARISING FROM CRIME

C ” A leric who performs an act of sacred or der s, which is forbidden under penalty of incurring a canoni cal pen n e alty, is ot irregular, ev n though he sins gravely and is affected by the punishment . A cleric must already be under a canonica l penalty, in order to contract this ir 8 7 regularity . The same holds true of a cleric violating a 8 8 suspension , which evidently is invalid . o A bishop suspended fr m conferring orders , is not ir

i e . regular, f he giv s tonsure Likewise a bishop suspend ed from conferring one specific order is not irregular, if he gives any other order, whether it be higher or lower . n i A bishop suspended from the use of po t fical insignia , is irregular if he performs any function for which the r i i r u br i cs p es cr i be such ns gnia . This holds even though he per for m such a function without his pontifical in f signia . The reason is that a suspension from the use o such insignia implies, indirectly and per accidens , a pro hibition to perform any function in which the same is a o wont to be employed . Should a bishop appe r in p nti 8 9 fical attire at other functions he is not irregular . r e Finally, a cleric must exe cise an order in a s rious manner and not j ocosely . A pri est feigning such a vi ola tion would be irregular, if the performance of the for no bidden act, was t vitiated through lack of intention in I the minister . f the act is null through defect of inten tion , the incurrence of irregularity is at least doubtful , "0 however a dispensation Should be obtained . As the Church cann ot deprive a suspended cleric of of the power sacred orders , but o nly fo rbids their u se , it follows that acts of sac r ed orders remain valid after sus pension . On the other hand , acts of j urisdiction become null and void , after a suspended cleric has been denou nc ' ed by a condemnatory o r declaratory sentence, because the Church has power to deprive one totally of ju r isdic tion . .A priest suspended from the exercise of orders

’ I A . 1 1 r . s . D e 8 S e e . 1 7 ua z , , di p XXXI , sect I , n . 7 nnibal , I , n 4 , i 2 s r r o . c t. n . 4 ; Ga pa i , p n

Ga s r r o . cit. 88 pa i , p , ’

A . 1 D A n i m . S 11 . n l 1 c ba c . S 89 lph , VII , 3 4 ; e, h alz , V, XXVII, o mm mm 1 o e c . ca D r co exco . . . G e n 3 ; nzal z , in p 4, e cl i n 4

i . G s r r o . c t . 0 . go a pa i , p , n 37 IRREGULARITIES ARISING FROM CRIME 71 b would a solve validly, in the sacrament of penance , but ff a is a ected by irregularity as the result of such ction .

NECESSARY CONDITIONS FOR THE CONTRAC TING

OF IRREGULARITY EX DELICTO .

Irregu larities arising from the comm ission of crime are not incurred unless they are mor tal sins , committed after baptism, or in Baptism , as enumerated in canon 2 ” 985 , n . , and external acts , whether public or occult . c h Therefore every ircumstance , w ich would excuse a person from the commiss ion of mortal Sin would excuse e i him from contracting an irregularity x del cto . I By the word crime , in ecclesiastical law , s meant an extern al and morally imputable violation of a law, to which a canonical Sanction has been attached , at least n 9 2 indetermi ately . Crime as here used in the Code how ever Simply denotes a serious offense . The following are incapable of committing an offense

A) those without the u se of reason , B ) those habitually n insane , even though they occasionally have lucid i ter vals, or appear to be rational on certain subj ects ; C) a person who became drunk voluntarily is somewhat r e f sponsible, but in a less degree than if the same O fense is tt t s s nu commi ed by a person fully in con rol of his sen e , less dr u nk ness was sought deliberately for the pur pose

of committing the crime , or to excuse it . Should a per n no so violate the law whi le involuntarily drunk , there is responsibility at all if the intoxication depr ived the ‘ per son altogether of the use of reason ; responsibility is di

minished if the use of reason was only impaired . The same is to be said of other similar disturbances of the

mind . Debility of mind diminishes the respo nsibility of f 9 3 an of ense , but does not take it away altogether .

o 8 9 1 Can n 9 6. o 2 1 1 92 Can n 95 , n . . o 22 0 1 93 Can n . 72 IRREGULARITIES ARISING FROM CRIME

The other circumstances excusing from irregularity have already been noted in Chapter III . e elic Irregularity x d to presupposes a grave fault, for “ s the reason that is was instituted , qua i poena gr avis ” 94 Sima, although as noted before, it is not a true and real punishment . The fault committed must be grave not merely in the u internal, but in the external forum . The j risdiction of the internal forum deals with questions concerning the welfare of individual Christians and with their relation i to God . Hence it s also called the forum of conscience ’ e (for u m cons ci ntiae). The church s j urisdiction in the external forum has reference to the matters touching the public and social good of the corporate body . It corres ponds , consequently, very closely to the power s exercised by civil magistrates in affairs belonging to their compe tence . While the external foru m may busy itself with the o so SO ffe concerns of individuals , it d es in far as these a ct the public good . The Church has declared that ir r egu lar ity shall accompany the commission of certain exter f o nal acts , since they a fect the go d of the clerical state . ma i Finally, it y be noted that provided the act s exter nal , it does not matter whether the crime is p ublic or oc if m cult . Consequently the individual com itting any of the crimes which beget irregularity, wer e the only one z cogni ant of such an action, he would still be bound by the ecclesiastical law .

. 11 . 8 S r e d e cen su r is s . s ec . S A . 94 lph , VII , 34 ; ua z , , di p XL, t III, ’ 6 m m . . i l 0 c 11 1 7 ; D A n n ba e, I , n . 4 9 ; S h alz , V, XXXVII , n 7 ; Lay an ,

. r . r s . ca . . . . lib I , t act V, pa V, p I N 4

74 SIMPLE IMPEDIMENTS

line, and to the first degree I n the maternal line , if their 5 parents were heretical . o C ncerning this impediment to orders , Pope Alexander

IV legislated thus Haer etici autem , cr edentes, recep tator es, defensores et fautores eor u m ipsor u mqu e filii usque ad secundum gener atonem ad nullum ecclesiasticum n fi be e ciu m seu Ofli ciu m publicum admittantu r . Qu odsi secum actnm fuerit, decer nimu s ir r itu m at However this decree was subsequently changed by Boni

'

~ face VIII , who enacted the following legislation : Statu f licis r ecor a ioni n n l x tum e d t s I noce tii et A e andr ii pr aed . r ne h i ost . a r e ci r s N , videlicet e t , c edentes, r eceptator e , de fensor es et fautores corum ipsor u mqu e filii usque ad se cu ndam gener ationem ad aliqu od beneficiu m ecclesiasti ff i an d cum Seu o icium publicum adm tt tu r , qu o si secus ac tum fuerit , Sit irritam at inane , primum et secundum gra cl du m per pater nam lineam compr ehender e de ar amu s , per mater nam vero primum du mtaxat volumu s hoc ex 7 tendi . The reason why this impediment was instituted was that the offspring of heretical parents is frequently influ 8 enced by the fault of its progenitors . It does not matter as regards contracting this impedi ment whether the father or mother of the child concerned

- is a non Catholic . “ The word acatholici comprehends not merely here fi tics , apostates , schismatics but in dels as well . Gonse quently a child born of Hebrew parents is affected by this o o Simple impediment . It does not matter, m re ver , o whether both the parents are in go d faith , the impedi c ment is contracted ips o fa to . Before the new law canonists generally adopted the view that children were not affected by this impediment , if they were born anterior to the deflecti on of the pa 9 rents . It would seem that this interpretation could still be applied to the new law .

i l . 1 t. v Wer o . c o . . 5 nz , p , III , n 39 IV em o r s o r din a io n em et u alitate o r din an do r u m 6 C . d e t p ibu t q , VI I , 9 , in ° 1 d e haer eti is V 2 . C . c 7 5 , , , , in Vi

i . l . . 8 We r o . c t v o 11 1 . nz , p , III , 39

9 Ibid . SIMPLE IMPEDIMENTS 5

This impediment ceases , if both parents are converted

' and renounce their error . Should the parents die in er ror, it is the common opinion that the children would ff 1 0 nevertheless be a ected by the impediment .

‘ An illegitimate son of a non - Catholic father or mother h is also subject to t is impediment, as the law does not distingu ish . In the case in which the father o r mother is unknown and there is a doubt as to whether they were

- non C atholics or not, the child would require a dispensa tion ad can telam from the irregularity ex defectu nata liu m . The Ordinary , as will be seen in a subsequent chapter, is able to dispense from the doubtful impediment . 1 On the l 6th of October , 919 , a doubt was proposed concerning canon 987 . Utrum, ad n or mam can . 987 , im n m an du s e peditis ad u er is , cujus pat r vel mater tantum li E f est acatho cu s, alter parens catholicus . t quatenus a o fir mative, an etiam eo in casu , quo matrim nium mixtum datis cau tionibu s cu m dispaensatione in hoc vetito con A fli r mative in ' tr actum fuit . The response given was : omnibus . (Acta op . Sed . )

men u h of Married , d ring t e time their marriage , are 1 1 forbidden to be advanced to o rders . Clerics in major orders , are , in the Latin Church , bound to celibacy . Among the maj o r orders are to be enumerated : The o oo Episc pate, the Priesth d , the Diaconate, and the Sub “2 diaconate .

This irregularity ceases , if the marriage is dissolved by the death of the wife and in the case where the mar ia e r g remains ratified only, by solemn religi ous pr ofes f sion . A man converted , is not at liberty by virtue o the

Pauline Privilege to be advanced to orders , if the other infidel party should consent to cohabit peacably and Should be willing to subscribe to all the conditions r equ ir c d by law , but be unwilling to be converted . If the infidel

is to . wife unwilling conform to this , the converted hus

l i . i . 1 0 No d n o c t. v o l 11 , p , . III , . 679 1 1 o 8 2 Can n 9 7, n . .

12 C o d . u r . . . c J Can an o n , 949 76 SIMPLE IMPEDIMENTS

band may be advanced to orders . Another means by which a married man may be advanced to orders is by

obtaining a dispensation . This is very seldom granted , f and never without the consent express or tacit, o the

other consort . This consent must be freely given and

definitely established . In the rescript are mentioned the

conditions which are to be observed . A married man who in good faith receives major ord ers without a dispensation from the Holy See is forbidden 1 3 to exercise such orders .

In the new law , officials and administrators holding an

office forbidden to clerics are not allowed to be ordained , until they have retired from such an office and settled all 1 4 responsibility arising from the same . The Church has always been desirous of keeping her

clergy free from secular aff airs . This desire is based on ’ “ St . Paul s exhortation to Timothy N0 man being a sol 1 5 dier to God entangleth himself with secular business .

. A S early as the year 3 48, legislation may be found con cerning clerics bound to responsibilities as the result of 1 6 “ holding certain Ofli ces . Magnus Episcopu s Auguste ‘ Pr c a r es n ensis dixit : o u r to , actores , executores seu cura ’ tores pu pillor u m si debeant o r di n ari Gratus Episcopu s dixit : Si post deposita onera et reddita r atiocinia actus m fu er in c m o vitae ipsor u t o pr bati in omnibus , debent cum f u er laude Dei , Si postulati int, honore numerari . Si enim ante liber tatem negoti orum vel Ofli cior u m f u er int ordi in famatu r x n nati , ecclesia , Universi di er u t : Recte sta ” e id tuit Sanctitas v stra eoqu e ita est nostra sententia . (Popes Gregory IX and Gelasius enacted laws upon the same Secular affairs are very apt to cause a

“ e priest to estrang himself from his divine vocation . Hence f e the prohibition o offic rs , which , in themselves , are not

. . . 1 o d u r . c o 1 2 3 C . J Can an n , 3 , N 3 1 4 Can o n

1 Tim . 5 II ; II , 4 f r 1 6 o o c o e. , Can n 8, C un il Ca thag

1 D . 7 C . I , . 53 and 54 SIMPLE IMPEDIMENTS 77

incompatible with the dignity of the clerical state, yet , because of their unwholesome effect upon the priestly of

c to . fi e, Should be accepted only in obedience the Church

In canon 139 of the new Code, we find that occupations forbidden to clerics may be divided into two classes : such as require an Apostolic indult, and such as merely de f mand the consent of the ordinary . In number three o t the same canon, we find that clerics are not permi ted , of without the consent of their ordinary, to be managers business affairs , or of properties which belong to lay per sons or necessitate the rendering of an account . A person exercising an office or administration not for bidden to clerics , may be advanced to orders , even though he may make no renunciation of his position , or settle ob “ ligations arising from the same . In the present disci pline clerics are permitted to provide for their relatives , , , to be administrators of ecclesiastical affairs , to assume control over orphans , widows and such like who especi

ally require the assistance of the Church . Some authors make a distinction between administra tors of public affairs and administrators of the interests

of particular persons . They exclude the former from or

ders , if they have not settled all responsibility arising ffi from their o ce, but allow access to the latter, even be

fore they fulfill their obligations, provided they resign

their position . In this latter case, however, if there is of or difli c l danger scandal , other u ty, the person cannot 1 9 hi be ordained . T s distinction, however, has no founda 2 0 tion in law . Hence, in general, one engaged in the ad ministration of public or private affairs cannot be or "

dained until he has rendered an account . A person r e n ouncing an office forbidden to clerics may be advanced to orders , before rendering an account, if, in the judg f ment o the Ordinary, the creditor has been sufficiently

provided for , and there is no danger of a civil procedure 2 1 which would bring defamation to the Church .

8 m . A 1 Sc 11 r S . . . Reifi h alz , I , XXX , 3 ; , n . 7 ; Pi ing, n 3 ; lph , III,

n . 8 '

B r r m I . . 1 e to . v . 9 a di , , p II , di ss IV, cap. IV

. i . 20 s r r . Ga pa i , 0 p c t , n : 553

m 1 . . 2 1 Sc . e. . r A . 11 . 8 8 h alz , , n 4 ; Pi ing, n . 3 , S lph , III, 3 78 SIMPLE IMPEDIMENTS

f i Clerics ar e forbidden to accept the Offices o pr es dent, f

director, treasurer , secretary of banks , even though these ’ be of a charitable or social type (rural or farmers banks , 2 2 etc . ) The reason of this is that such offices would r e f quire the rendering o an account . The Holy See alone has the power to permit one en gaged in a business forbidden to clerics to be advanced to has settl o orders befo re he ed his resp nsibilities . This 2 3 permissio n is not readily obtainable . Should such a person be advanced to orders without o Si dispensati on , he w uld n gravely but would not con tract censure or a new irregularity . A person o rdained under these circumstances must , as far as possible Settle e o all r sp nsibility arising from his former Office . A bishop has the p ower of compelling a cleric to r e o f linquish a f rbidden o fice , should he accept it subsequent to o rdinati on . However before the bishop takes acti on a cleric exercising such an office is not forbidden to per f ’2 5 form the duties o the ministry .

v o so o Sla es , pr perly called, are f rbidden to be ordained , 2 6 before they have obtained their liberty . The discipline of denying access to the clerical state to 2 7 s laves"has existed from the earliest times . The reason Of this prohibiti on is that the state of slavery is n ot in ac f m o c ord with the dignity o the inistry, and , sec ndly, the C hurch is unwilling to ordain a slave unless he has first been manumitted by his master . The Code excludes only

- o f slaves properly so called from the recepti n o orders . In o the Roman law , acc rding to Ramsay, this state existed , h n when a person was subjected , against nature to t e ow

2 8 I er ship of another, either by fact or birth . Servants

A . 1 10 . o s st No v . 1 8 1 1 0 A c S s S . C . C n i , , , 9 , ta p II , 9

. . m I . c . s S ch alz , , n ult

. it . 1 1 G s r r o . c . R ff . s ei , I , XIX , n ; a pa i , p , n 555

. 8 t A . 11 s S . lph , III , s Can o n

- o 8 1 A o s o . s Cf . Can n p t l

R m - c e o f Ro m A es 1 0 1 . a Cf . a s ay Lan iai , Manu l an ntiquiti , 9 , p g SIMPLE IMPEDIMENTS 79 were designated mancipia when regarded as a piece of a property ; ven les , when held as a commercial commodity u o s er vi fam li when considered as d mestics ; , when regard ed as bound to fulfil the commands and desires of the ndisc i owner . These words were interchangeable , and i r minately employed . They all denote the condition Of slavery, properly so called . From this condition of servitude must be distinguished ads cr t h another, that of ip i , w o belonged only to an estate 2 9 or piece of property and could be sold only with the land .

Another class of slaves are called mercenary, or hired slaves . The Church endeavored always to mitigate the condi tion of slaves , and admitted them to the clerical state, if they were freed or had obtained the permission of their o masters . Slavery, pr perly so called , has ceased to exist z o o e in civili ed c untries , but fl urish s in parts of Africa . In the present discipline of the Church slaves properly

" so called are never ordained . They are without that lib er ty which is necessary to the ecclesiastical state, conse o quently their condition is unbec ming the clerical life .

Men bound to ordinary military service by the govern ment may nOt be o rdained until the term Of their ser vice ”0 has elapsedfi Persons subject to a term of military service are very to o o apt bec me c rrupt in morals . Even after one has Oh in d ta e his discharge from the service , great caution Should be employed before he is advanced to s acred or der s fil

' In Canon Law, clerics enjoy personal immu nity fr om 3 2 military service . This immunity has existed f or cen tu r ies and the Council of Trent appeals to civil govern 8 3 ments to respect the privilege . The Syllabus condemns

2 M as chat Pr aecu r u su r s o i ci 1 60 . 1 9 , s Ju i Can n , 7 , p 5 .

0 o 8 . 3 Can n 9 7, n . 5

1 s r r i . 0 o . 3 Ga pa i , p . c t , n . 54

32 Can o n 12 1 .

. o f r D f. e ess . 2 20 r e 33 C T nt , S 5 , c. , e 80 SIMPLE IMPEDIMENTS the propositions that this privilege is a favor from the o o 3 4 civil auth rities , and that it Sh uld be abolished . It is but fitting and proper that the clergy be exempt from car in r y g and using arms . Their mission is one of charity o and f rbearance , which is alien to bloodshed . The sac r edotal character resembles that of Christ, the Prince of

Peace , whose hands were unstained with human blood ,

whose lips spoke nought but love, even for his enemies ,

and whose heart embraced all . o In most countries , h wever, the obligation of military c 1 ser v1 e s I ncumbent upon all , even those who are called

to serve at the altar of God . In Italy and France, even priests as well as students in actual preparation for the divine ministry are liable to military services

A person who, after volunteering his services to the

military authority, may not be advanced to orders until

the term of his enlistment has expired .

Liability to military service, as stated in the new law,

includes also service during the time of peace . or After a soldier has served his term, he . is free to be n ff r dained , provided he is ot a ected by any other i r egu

lar ity. This is true even though he may be eventually

recalled to the army . 1 The question was proposed to the Committee Of Inter

pr etation for the new Code, whether this prohibition is

in force , in the case of a person n ot yet of military age , and yet far enough advanced in studies to receive some h ami orders , or if a person as been called , and , after ex o nation , declared temp rarily unfit . Furthermore , it was doubted whether this simple prohibition forbade the r e

ception of major orders only, or included minor orders m and first tonsure . The answer was that this simple i o pediment 1s In force in the prop sed cases , and affected

even first tonsure .

Neophytes may not be advanced to orders until they

0 . 2 . 34 Syllabu s, n . 3 , n 3

82 SIMPLE IMPEDIMENTS

l In the o d law, infamy of fact , as well as infamy of law d ex de ct f pro uced an irregularity je a. In amy of fact is incurred when a person has lost his reputation with r e liable and serious minded Catholics , on account of some crime which he committed , or by reason of a wicked mode of life , The judgment in such a case is reserved to the 8 9 Ordinary . This prohibition is not a punishment inflicted for a cer tain crime, but it is the natural consequence of a crime or 4 0 punishment . It is necessary as stated in the code , that f the cause of the infamy be public , or the reason that ao tual publication among sensible persons from a hidden or 1 occult cause , is unusual . Hence we read i n C . 2 , D . “ XXVI : Propter dicta pau cor um eu m infamatum repu tare non debet (judex) cujus apud bonos et graves laesa ” xis it D r i opinio non e t ; also in C . 17 , X etempo bu s ordi n - ationu u m, I II , delictum deber et esse ordine j udicio compr obatu m vel alias notor iu m ; sed e tiam opinionem b delicti vu lgatam apud prudentes et honestas , gr avi u ssu e n n indiciis innixam onerare existimationem , ex dice dis co ” f stabit. Consequently the incurrence of this infamy o fact is based on the commission of a public Sin , which, having considered the quality and state of the delinquent, and of the community in which he lives , renders him “ despicable, in the opinion of sensible men .

A person would contract this impediment, who, having been accused of grave crime , was dismissed by the judge , “ with one of the following sentences : Novis super veni “ ” “ entib s indic i n u i s , or , Ex hactenu s dedu ctis, or No ” r e er tu s 4 2 p culpabilis , etc . If the one accused of such a crime were declared innocent by the judge , infamy of fact 4 3 o is not incurred . A person under accusation , Should n t be advanced to orders , pending the decision of the judge , 6 i as Gregory IX decr eed in Cap . 5 , De test bu s . He incurs infamy of fact who receives a just punish

2 2 39 Can 63 . n 0 T es r s De o e s i i i o S r e D v ir 4 h au u , p ni , I , XXXIII , ab n t ; ua z , e “ i i . 1 2 r l i n . . 1 e et s e o s a . tut tatu g , lib IV, c p LVI , 1

. m 1 it. 0 6 . s r r o c . V . 4 Ga pa i , p , N 3 ; Sal X , III , n 78.

2 Fr o m r es o s o f . . Vi ili r i B nev n e C e e . 1 S . S 16 e e 4 p n C in g , 23 pt 3 ,

S . . . Bi a iar n 1 h A r 1 2 C s cc o e 1 t . 43 C in , p il, 74 , etc.

r I 6 A u . 1 tu a , g , 763, etc. SIMPLE IMPE IMENTS 83

ment even from an incompetent tribunal as a cleric, who after being tried by a civil tribunal, was justly punished . Infamy of fact arises in this case not merely from the ni commission of crime, but from the pu shment inflicted . su ch a punishment would be a sentence of forced labor or imprisonment, etc. e l r In general , th n, every infamy of civil aw, penal o otherwise, constitutes an infamy of fact in Canon Law, “ ” nc except in those cases in which infamia j uris , is i ur red alike in both civil and Canon Law.

Infamy of fact admits of various degrees, according as the loss of good reputation - has been serious or no t. The commission of some crimes involves an absolute ‘ loss of good reputation, as when a person In any condition of life, and without any extenuating circumstances , commits a gr ave theft . Other crimes would cause a per son of high estate to lose his reputation, but would not produce this “ effect with others . Infamy of fact as found in the Code sign ifies infamy in i nc the proper sense , hence this impediment is not ur r ed by a person exercising an unpopular office which does not involve the commission of crime, for instance, a custodian o f the law, etc . Since the particular grave and public crimes are not mentioned in law which produce this Simple impediment, the Ordinary should determine when it affects any par l ticu ar individual . One guilty of Simony, public usuary, etc . , would surely incur loss of reputation , if his crime were public . Infamy Of fact ceases when one has Shown by a change of a I life that his repent nce is sincere. n the Old law 11 pe r iod of two or three years was deemed sufficient to es tab 4 5 lish this fact, now, however, the matter rests solely with i the Ord nar y. n I famy of fact, as is evident, does not necessarily cease with the reception of Baptism .

’ D A nnib le . 12 1 o 0 s r r o 44 a , I , n , n t e 2 ; Ga pa i , p. cit N. 30 8. D r C a . r n n r m s 45 p II , e cle ico o o dinat o ini t ant e. 84 SIMPLE IMPEDIMENTS

In the old law it was a much controverted question whether ignorance excused a person from contracting an n irregularity, o account of crime . It was generally ad mitted that irregularity arising from defect was incur red ipso facto . Most canonists maintained that a knowl edge Of the ecclesiastical law prohibiting a crime was 46 necessary before irregularity was incurred . Many au thors , moreover, were of the opinion that a knowledge of the irregularity attached to the commission of certain “ crimes was essential to contracting this obstacle . This latter opinion was based on the assumption that ir r egu lar ity was a punishment in the strict sense , and invincible ignorance, whether of the law or of the fact, exempts one from the penalty which may have been provided by posi tive legislation . Even vincible ignorance, which is not crass , excuses one from the punishment . This concep tion of an irregularity, however, as may be seen from the definition we have proposed , cannot be maintained . In the new law ignorance of the irr egu larities both ea: delicto and ex defectu , and of the simple impediments, is “ not admitted as an excu se . Ignorance in Canon Law may be classified thus (A) f Ignorance of law, when one is unaware of the existence o m the law itself, or at least that a particular case is co f prised under its provisions . (B) Ignorance o the fact, when not the relation of something to the law, but the I thing itself or some circumstance is unknown . ( C) g n nor ance of penalty, when a person is not cogniza t that a sanction has been attached to a particular crime . The law concerning irregularity and simple impedi of in ments is an inabilitating one, and no ignorance validating or inabilitating laws excuses unless the law ex “ plicitly admits ignorance as an excu se . Consequently a

- m er l . . . ll mini Vo III 0 s ec . 10 : Be ar 46 Suar ez, disp 4 , t 5, N Pal i i, ,

11 . 619, etc. ’ i l l . 12 o e Sc m Li b . at 47 D nn ba e, Vo I , N . 3 , n t 75 ; h alz , V, 37,

11 . 10 9.

48 C ano n 988.

16. u r . c o 49 C o d . J . Can an n , SIMPLE IMPEDIMENTS 85

n person who is ig orant of the existence of the law, is not excused from contracting an irregularity . However where ignorance exempts one from the commission of a mortal sin , it likewise exempts him from irregularity ea: delicto indirectly .

When there is a question of a doubtful crime , which might produce an irregularity, we must make the follow ing distinction . All laws, even those that invalidate an n li action or i habi tate a person to act, do not oblige in doubt of law (dubium juris) in a doubt of fact (dubium facti ) the Ordinary may dispense provided there is ques tion of laws from which the Roman Pontiff usually dis 5 0 penses .

Irregularities and impediments are multiplied by the multiplication of the causes which produced the ir r egu lar ities and the simple impediments , an exception must be made of the irregularity arising from voluntary homi 5 1 cide .

A priest under suspension who would commit homicide , and celebrate mass , would be affected by two distinct ir regu larities . (Irregularity arising from homicide) and irregularity as the result of violating a canonical penalty . A judge who gave a sentence of execution in two or more l cases is affected by only one ir r eg arity. A person guilty of two voluntary murders or abortions has incurred two distinct irregularities .

. . u r . c o 1 50 C o d . J Can an n 5

5 1 Can o n 989 . 86 THE CESSATION OF IRREGULARITIES

C HAPTER VI .

THE CESSATION OF IRREGULARITIES AND SIM

PLE IMPEDIM ENTS .

While irregularity is a perpetual impediment, it

n j ust as any other law . A obstacle to ordination which can never cease to exist is not an irregularity properly so n t “ called , since it does o proceed from Canon Law . This revocation of the legitimate superior ma y occur in one of the following ways : A) by abr ogation of the law of irre h gu lar ity, as for instance, t e irregularity arising from o the rebaptism ; B ) by der gation , as when law declared that only one particular species of bigamy produced an irregularity ; and C) by dispensation . A dispensation is

m - required fro all irregularities as they exist to day. Some canonists before the new law were of the opinion that irregula r ity on account of crime was removed by r baptism , howeve this opinion cannot be sustained , since a person is not capable of contracting an irregularity 2 pr ior to receiving that sacrament . Moreover, irregular ity a rising from crime does not cease by absolution , be n i cause it is ot a pun shment properly speaking . n ul ar e ur commemi Since the laws o irreg arity e x j e . , the Roman Pontiff alone is able to abrogate or derogate them .

In the matter of dispensation from irregularities , the “ ni Pope has absolute jurisdiction . Om s res per quas i i cumque causas nascitu r , per easdem d ssolv tu r . To obtain this dispensation recourse must be had to the sa cred Congr egation of the Sacraments , p rovided the irre gular ity is public , and the dispensation is sought for the external forum . When the irregularity is occult, and the dispensation concerns the internal forum , application must be made to the Sacred Penitentiary . A limited power of dispensation is conceded to Ordi

1 r i 0 . Gaspa n , o p c t. , N. 2 9

2 r r . i . . 18 . Ga spa i , o p c t , N 5 THE C ESSATION OF IRREGULARITIES 87

3 naries by law and special faculty. The Ordinaries are ei e s or e e t e s permitted to dispense th r subj ct , del gat o h r es e r e r e to do so , from all irr egular iti incurr d by sec t c im , f nd except homicide, and abortion that is ef ective, a ‘ crimes brought before cour t. This power was given to ls e bishops by the Council Of Trent. Ordinaries compris all those enumerated under canon 198, and the vicar gen erals of vicars and prefects aposto lic .

If the cr ime were public, or notorious the ordinary has not the power to act, but must appeal to the congre n gation of the Sacraments . The Ordinar y, moreover, ca only use his dispensing power for his own particular sub jects . In a voluntary homicide which is public and no torious, the Pope himself rar ely dispens es . The te rm dedu ctam ad for um (judiciale) mentioned in this canon might give rise to some difficulty . It is the more accepted opinion that the forum judiciale is a competent tribunal of justice whether lay or ecclesiasti e cal . A crime is said to be deductum ad for um ju dicial ,

when it is laid before this tribunal . This takes place through denunciation or acciu sation before a legitimate

j udge . If the person concerned was declared innocent by

the judge, even though illicit means wer e employed to

'

exact this decision , the Ordinary has power to dispense,

provided the crime remains occult, which very seldom

will occur . The Ordinary does not enjoy this power if

one received a condemnatory decision from the court,

‘ since the cr ime then becomes of its ver y nature public or

notorious. A crime is called, notorious by notor iety of

the law, after the sentence of a compete nt j udge has be

come a res judicata, that is, a sentence from which there is no a e l or af e a co ess n in c in the pp a, t r nf io made ourt “ re enc of h p t e t e j udge.

The forum contensiosum must be a competent court.

This applies to both lay and ecclesiastical tribunals. C on

f r o e o 3 Decr ee o the Sacr ed C o n si sto ial C ngr gati n, 25 th. Oct .

19 18.

4 C ano n 990 , N. 1 .

f . r f. o r e . a e 5 C uncil o T ent , S ss , XXIV, C p VI , de

6 . C o . ur 2 1 2 d J . Can . can o n 97 N . 88 TH E C ESSATION or IRREGULARITIES sequently those persons who enjoy the privilege of the ecclesiastical forum , in accordance with canons 120 , 6 14, d ed ct and 680 , wo uld not be considered as u u m a d for u m ud i e f o r j cial , if they were tried in a civil court certain crimes . In those case s o nly in which the civil autho rity w as ell as the Church has the right to j udge the case , may a crime be considered as laid befo re the for u m ju di i c al e. Ho wever when a crime has been brought to the civil court f o r adj udication , the ordinary may lo se his faculty if the case is public .

The confesso r enjoys the same faculty as the Ordinary , in mo re urgent and occult cases , in which the Ordinary cannot be asked , and there is imminent danger of great f harm or o infamy, which faculty can be made use of only f o r the purpose that the penitent may licitly exer cise the o rders he has received . This faculty enj oyed by the co nfessor differs some h f e . what from that o t Ordinary In the first place , the r case must be ve y urgent, to such an extent that reco u r se cannot be had to the Ordinar y . Secondly, there must be imminent danger of great harm o r of infamy . Finally, the confessor has power to dispense a cleric , only from irregularity , so as to allow him to licitly exercise the or 7 ders he has received . The petition f o r dispensation from irregu larities w i n should be r t te in either the Latin , Italian , French ,

English , Portugese , or German langu ages , when the case is public . In occult cases , the petition may be written in 8 o on e h any language . When the dispensati n c c rns t e ex tern al forum the real name of the pa rty may be employ i h o o ed , when t concerns t e internal f rum a fictiti us name he should be used , as in all the petitions to t Penitentiar y .

In the petition for dispensation , all irregularities and im dis n pediments must be specified , otherwise a general pe

’ sation will be valid f o r irregularities concealed in good f o faith , except voluntary homicide and ef ective ab r tion , but it will not be valid for those concealed in bad faith . When there is a question of voluntary homicide the ex

l in i . v l . . 680 . No d . t o 7 , o p c , III , n d M n m m 2 r r r m o c m de at o o . . 8 Ga spa i , T actatu Can ni u , n 35

90 THE CESSATION or IRREGULARITIES

i - sion merely to receive m nor orders or sub deaconship .

‘ A person obtaining a dispensation f r om irregularity or i r e n fi simple imped ment, to ceive a be e ce, cannot be ad vanced to an order higher than that which is neces sary to exercise the benefice. One dispensed to receive a cer tain order, may not accept a benefice which does not re

r ' quire the exe cise of that order. On the contrary, a per son dispensed to receive a benefice is able to receive and exercise the order, the use of which is required by the benefice. When a dispensation has been given to be ad vanced to an order the one dispensed may receive the or der, accept the benefice which requires the u se of that or der, and receive, moreover, all the lower orders ; j us t as one dispensed to exercise major, may exer cise minor or “ ders .

Persons bor n illegitimately, even though legitimated by the subsequent marriage of the parents , or made cap able of receiving orders and di gnities by Apostolic dis n i pe sat on, ar e excluded from the Cardinalate . Likewise, f persons irregu lar, either ex de ectu , or ex delicto, for ad vancement to orders , although rendered capable by dis 1 ° pensation . This is true of the bishopric, and abbots or prelates nullius , and major super iors in a clerical ex empt order. To obtain any of thes e offices a special dis i pensat on is required .

- Finally, a dispensation in the internal extra sacramen tal forum must be given in writing, and r ecord must be made of it in the secret archives of the Cur iae of the re spective Ordinar y . Besides the common archives there should be a strict

’ ly secret o ne . The Ordinary should provide a secret place where all documents of a private nature should be m retained. Those documents which appertain to cri inal as cases and mor al matters , and which concern dece ed n or to a se e t m s n e perso s, c s s t led by a conde natory ente c ld o t of s over ten years o , should be taken u the archive a f a each year and burned . A brief summ ry o the c se

'

x 11. xxx n 2 r e s . u sec . 1 v 1 . S 1 c m . . 5 S h alz , v, , n s ua z , di p , t

1 2 2 r . . . 6 Can o n 3 , Pa ag II , n I THE CESSATION or IRREGULARITIES 91 " of n o s with the text the se tence al ne should be pre erved .

No particular form is prescribed in the dispensation . “ s The following or imilar words may be employed . Dis i l penso tecum in r r egu ar itate, quam ob hanc causam in cu r r isti, in nomine Patris et Filii et Spiritus Sancti .

Amen . ' 1 n On October 25 th, 19 8 , the Sacred Congregation of C o sistor u y, p blished a decree concerning clerics returning from the war, in which special reference is made to cer tain irregularities . Unfortunately many priests were seriously injured in

” o the world war . As a result some were unable to perf rm e e o f e offi th duti s th ir ce with dignity and reverence , and consequently were affected with the irregularity arising from defect of body . By virtue of this decree Ordinaries of places and religious , were empowered to disp ense their priests from the irregularity arising from defect of body,

‘ o e after the latter returned from the service . H wever, b

' fore exercising this power it is incumbent on the Ordinary to conscientiously j udge the fitness of the priest in ques ti on , and this judgment is not to be made until he has pe r u sed a written testification from themaster of cer emo f nies . This latter should attest to the fact that the a flicted priest can without assistance and with decorum o bserve the liturgical rules of the Mass . When there is

' a more serious disability, or when ther e is a doubt , and in

all cases which do not concern priests , recourse must be l had to the Holy See . By the term Ordinarii ocor u m as r f found in the decree , all those a e included , mention o

which is made in canon 198 . The decree also gives this faculty to the major superiors of clerical exempt religious

orders .

In the old law as has been noted , soldiers who in battle m killed or mutilated no atter how just their cause, were ec a aff ected with the irregularity ex d ef tu l enit tis . . Some canonists maintained that an irregularity thus contracted

arose not merely ea: dejecta but ex deli cto as well . This

opinion seems to be borne out in the new law . The irregularity arising from voluntary homicide still exists

(

1 o . 1 . 7 Can n 379 , N 92 THE C ESSATION or IRREGULARITIES

but this can seldom be extended so as to include war . The probable reason why the Code abrogates the former ir

regularity arising from mutilation or homicide in war, is that it is impossible for the individual soldier to deter mine the justice or injustice of the action of his govern ment . Then , too, he is frequently subjectively convinced of the justice of the cause for which he is fighting . More over compulsory military service is nearly general so that the soldier is not a free agent . The decree under discussion grants to all Ordinaries the faculty of dispensing from this irregularity which at one time was called ex defectu lenitatis . This dispensa tion may only be obtained by those priests , clerics , semi n n ar ia s, and members of religious orders who were forced into the military service , by necessity . When there is a question of a cleric in sacred orders and who volunteered his services , the petition for dispensation must be sent to

Rome . The decree provides for the tacit resignation of clerics . This is accomplished and signified by a definite fact, upon which the law has decreed the loss of an eccle sia l stica office . If a cleric enlisted voluntarily in the army or navy contrary to the rule laid down in canon 141 ff , n . 1 , it is presumed that he resigned the o ice for merly held by him : The fact must be borne in mind when a dispensation is obtained that restoration of eccle sti al f sia c ofii ce is not ef ected . The reason that the Consistorial office gave this faculty to Ordinaries is because of the fact that it was possible to contract the irregularity ex defectu lenitatis , during the early stages of the war and until Pentecost 1918: It was necessary for the Holy See to take cognizance of this fact since an irregularity is of its nature perpetual and ceases only thr ough dispensation . Since Ordinaries may dispense from irregularities only in certain cases and not in others , it is incumbent on them to examine each particular case to decide whether r e course must be had to Rome , or whether they themselves enjoy the power to dispense. Priests who have returned from the service and are conscious of the fact that they ar e aff ected by an irr egu THE C ESSATION or IRREGULARITIES 93

lar ity reserved to the Holy See, are forbidden to exercise the sacred offices of the ministry, until the proper dispen sation is obtained . This prohibition does not seem to af f ect the validity of an action performed in contradiction to it but merely its legitimacy. The reason is that vio lation of the law on irregularity is never concerned with f the validity o the action . 94 BIBLIOGRAPH"

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