BX
1935
IRREGULARITIES
463
SIMPLE
AND
IMPEDIMENTS
IN THE
NEW CODE OF CANON LAW
BY THE
REV. JOHN J. HICKEY, S.T.B., J.C.L.
DISSERTATION
SUBMITTED TO THE FACULTY OF SACRED SCIENCES,
CATHOLIC UNIVERSITY OF AMERICA,
WASHINGTON, D. C.,
IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR
THE DEGREE OF DOCTOR OF CANON LAW
MARCH 18, 1920. -
IRREGULARITIES
AND
SIMPLE
IMPEDIMENTS
IN THE
NEW CODE OF CANON LAW
BY THE
REV. JOHN J. HICKEY, S.T.B., J.C.L.
DISSERTATION
SUBMITTED TO THE FACULTY OF SACRED SCIENCES,
CATHOLIC UNIVERSITY OF AMERICA,
WASHINGTON, D. C.,
IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR
THE DEGREE OF DOCTOR OF CANON LAW
MARCH 18, 1920.
+ NIHIL OBSTAT.
THOMAS J. SHAHAN, S.T.D.
CENSOR DEPUTATUS.
CONTENTS
Introduction
Chapter
.7
I-Definition and Division of Irregularity. 9
Chapter II-The Subject of Irregularity
.15
Chapter III-Irregularities Arising from Defect....18
Chapter IV-Irregularities Arising from Crime.....43
Chapter V-Simple Impediments
..73
Chapter VI-The Cessation of Irregularities and
Simple Impediments
.86
Bibliography
..93
Tituli
..95
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 efforts in this respect have
been nobly and generously seconded everywhere and at
all times by the hierarchy as may be substantiated by re-
liable documentary proof.
The subject of irregularity is of its very nature an im-
portant one. Irregularities have been instituted by the
Church to preserve the dignity and honor of her min-
istry. 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-
ercise 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,
when he may, or may not, absolve, so as to admonish the
penitent accordingly.
Several important changes are to be found in the new
church law on irregularities. 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 writer has endeavored to present an ac-
count of the origin and development of the canons deal-
7
8
INTRODUCTION
ing with this subject. The purpose of this is to deter-
mine the relations and connections existing between the
new and old law. Studied in this 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-
mately connected with the latter, that we deemed it pro-
per to accord it a detailed treatment.
The interpretation and application of a new law al-
ways gives rise to a certain amount of difficulty. 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-
notes exclusion, and "regula," rule, hence not according
to rule. In the canonical 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-
ity. Prior to the publication of the new Code many defi-
nitions were to be found for an irregularity. Many au-
thors understood an irregularity as any impediment
which prohibited the reception of orders.1 Hence they
classified as irregular all those who were not as yet con-
firmed, those who had not attained the canonical age re-
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-
ually became more limited. The Church endeavored con-
tinually, in her decrees and laws, to establish the doctrine
of irregularity on a uniform and certain basis, but
through various circumstances her efforts were without
avail, and it was not until the appearance of the new Co-
dex of Canon Law that she accomplished her end.
Irregularity, as it exists to-day, may be defined thus:
an impediment which, of itself, perpetually prohibits the
conferral and reception of every clerical grade, and, con-
sequently, the exercise of orders and acceptance of bene-
fice, instituted by Canon Law-this irregularity arising
from some defect or crime, and having for its motive re-
spect for the divine ministry.
Irregularity is an impediment or obstacle and not a
censure, or punishment, as is frequently supposed. Some
I Tamburinus, de ceus, et irreg., lib. X tract IV, cap. I; Van
Espen, Jus eccles., tom. I, part II, Sect. I, etc.
1
10
DEFINITION AND DIVISION OF IRREGULARITY
men are incapable of performing the offices of the cleri-
cal state, or, if not absolutely incapable, cannot perform
them with propriety and 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 irregu-
larity arising from crime does not participate of the na-
ture of censure or punishment, although, according to
soce canonists, it was constituted ad instar poenae,² since
it always involves the commission of a mortal sin. The
purpose of censure and punishment is to effect the correc-
tion of the delinquent, an element entirely lacking in ir-
regularity of any sort. Irregularity was instituted as an
inability to support the honor and dignity of the sacred
ministry, which forbids latae sententiae the reception of
orders, and the exercise of the same.
3
Perpetuity is an element of irregularity which many
canonists, prior to the new law, either doubted or denied.
Some authors, however adopted the distinction of Lay-
man, who maintained that an impediment which could
be removed without dispensation, or could cease of itself
was not an irregularity, but a mere obstacle. An irregu-
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-
ity individual, that is, comprehending the whole clerical
state. Consequently it affects even first tonsure, the ini-
tiation into the clerical order. This is the common opin-
ion and is borne out in several responses from the Holy
Office.
This prohibition is a grave one, consequently both the
2 Bargilliat, tom.I, N. 303. St. Lig. lib., 7, n. 350, sq.
3 Layman, lib. I, tract. V, pars. V, cap. IV, n. 10.
DEFINITION AND DIVISION OF IRREGULARITY
11
4
minister and the subject would commit grave sin should
ordination be conferred upon a person who is irregular.
In this case neither the minister nor the subject is liable
to any punishment latae sententiae. 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 reception of orders through grave
fear. Likewise should one become aware of an irregu-
larity at the moment of ordination, because in such a case
he could not, without great inconveninence, withdraw
from the sanctuary. In such instances a dispensation
should be obtained for the subsequent exercise of orders.
Any case of inadvertence on either the part of the subject
or 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 re-
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 affect those acts of or-
ders which are not strictly reserved to one in orders. Con-
sequently an irregular person may perform the duties of
a cleric in minor orders, for the reason that these duties
are frequently performed by lay persons. One irregular
commits grave sin, should he violate this prohibition, un-
less parvitude of matter, necessity, or grave fear excuse
him.
Irregularity prohibits the reception and exercise of sa-
cred orders, to which benefices are attached. It follows,
therefore, that irregulars are ineligible for ecclesiastical
offices or benefices. There are several kinds of benefices,
some of which do not suppose sacred orders. Irregular-
ity incurred without culpability, after the reception of an
order, is not an impediment to promotion to a benefice not
requiring the use of the prohibited order.5
4 Gasparri, "D sacra ordinatione,” vol. I, Cap. III, N. 168.
5 Passerini, N. 507.
12
DEFINITION AND DIVISION OF IRREGULARITY
6
Although the common opinion of canonists is that the
election of an irregular to an ecclesiastical office is ipso
jure null and void, there does not seem to be any express
law on the subject. It is true indeed that the law pro-
hibits the collation of a benefice on a person who is ir-
regular, but it is difficult 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
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 griev-
ous sin in accepting a benefice, this is the accepted opinion
of canonists. If an irregular desires to retain his bene-
fice, it is necessary for him to obtain a dispensation. He
is not bound, however, in conscience to surrender his ben-
efice, unless he be recalcitrant in the matter of seeking a
dispensation. Should it be brought 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.
8
Persons irregular may be elected discreets, electors of a
general or provincial, socii or definitors 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.
In a certain sense, these offices could be called benefices
still they do not per se, or from their nature, suppose or-
ders, nor are they ordained to them, as are simple bene-
fices, which are previous dispositions to orders."
Irregularity is essentially an institution of Canon Law.
No particular law, whether it be diocesan, provincial or
national, can create an irregularity. The necessity for
the Church to have a uniform law upon the subject of ir-
regularity is patent, hence the power of instuting irregu-
6 Gasparri, op. cit., n. 173; “Council of Trent," Sess. XXII, cap.
IV, de ref.
7 Passerini, No. 510.
8 Passerini, N. 517.
9 Passerini, N. 520.
Gasparri, op. cit., N. 173.
Sigismund, dub. 67, n. 3.
DEFINITION AND DIVISION OF IRREGULARITY
13
larity has been reserved to the Holy See. This principle
was first enuntiated in Cap. 18, De sententia excommuni-
cationis in 6to. "I's qui in ecclesia, sanguinis aut semi-
nis polluta, vel qui praesentibus majore excommunica-
tionis nodatis, scienter celebrare praesumunt, licet in hoc
temerie agat, irregularitatis tamen (cum id non sit ex-
pressum in jure) laqueum non incurrit." From this we
have the famous axiom "Irregularitas non incurritur,
nisi fuerit in jure expressa.' Saurez¹º made the assertion
that no irregularity is to be had in the Council of Trent,
or in pontificial constitutions, but solely in the Corpus
Juris. 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
access to holy orders.11
Particular custom cannot institute a particular irregu-
larity, 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
question. A custom 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
new law very definitely states that an irregularity is not
incurred, unless expressly contained in the canons.¹2
Irregularity arises either from defect or crime. This
is an essential element in every irregularity.
Irregularity, ratione causae, is divided into irregular-
ity ex defectu and irregularity ex delicto. 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 un-
worthy to receive, or exercise, sacred orders. This dis-
tinction found in the new law was first made according to
D'Annibale¹³ by Pope Innocent III. While Irregularity
is contracted ad instar poenae, it is not directly and
10 Disp. XL, sect., I, n. 14.
II Gasparri, op. cit., n. 159.
12 Canon 983.
13 D' Annibale, I, n. 399, not. I.
14
14 Bargilliat, Praelectiones Juris Canonici, vol. II, n. 72.
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 sanctuary
from profanation. Ratione extensionis, 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 order. The ir-
regularity resulting from voluntary homicide is total. A
priest who subsequent to his ordination became deaf
would be irregular as regards the sacrament of Penance,
but could offer the sacrifice of the Mass. A deacon who
became blind in one eye would be irregular, as regards his
further advance to the priesthood if this would prevent
him from properly reading Mass, but is not prevented
from performing the duties of a deacon.
Irregularity, ratione gravitatis, is divided into dispen-
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 before the new law. But, as
was noted above, perpetuity is an essential characteristic
of irregularity, hence this division no longer can be re-
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 re-
ceive orders cannot incur irregularity. The ordination
of such as these is not only illicit, but invalid. All fe-
males and unbaptized males, even though catechumens,
are incapable of contracting an irregularity. Certain de-
fects and crimes which render a baptized man irregular,
do not produce this effect in the case of one who is not
baptized. Once baptism is received, all faults are washed
away, so that it is impossible for one to be irregular by
reason of crime committed before Baptism. Should cer-
tain defects remain after Baptism, the person incurs ir-
regularity, immediately upon reception of the sacrament.
Irregularity affects all baptized males, whether lay or
cleric, bishops not being excepted, although they are not
expressly mentioned in the law.¹ "Dices; in episcopo ir-
regularitas nequit producere effectum primarium et di-
rectum, et ideo neque alios qui ex illo descendunt, et ita
episcopus videtur sub lege irregularitatem inducente com-
prehendi non posse. Respondemus, etiam in episcopo ir-
regularitatem prohibere collationem-receptionem-re-
ceptionem graduum clericalium. Quod si episcopus non
habet quos recipiat gradus, id est per accidens; prohibitio
manet et prohibet ordines majores receptos exercere, et
ideo beneficia excludit."2
Indeed the Cardinals of the Church are capable of in-
curring irregularity, since they are not excepted in law.³
The Pope is unable to contract an irregularity for the rea-
son that he is not subject to the common law of the
Church.
I Cap. 10, "De renuntiatione," et. Cap. I, "De sent. excomm."
n. 60.
2 Gasparri, op. cit., N. 199. Suarez, disp. XL, sect. I, N. 11:
D' Annibale, op. cit., N. 401, note 15.
3 Gasparri, 1, c.
16
THE SUBJECT OF IRREGULARITY
Children who have not attained their seventh year can-
not be subject to irregularity, (ex delicto) even though
they have the use of reason.*
5
It is a much mooted question as to whether impuberes
are capable of contracting irregularity ex delicto. A boy
reaches the legal age of puberty when he has attained his
fourteenth year. Those who maintain that they cannot
contract irregularity base their claims on the fact that
impuberes are not perfectly capable of doing wrong, and
that they are excused from all punishments latae senten-
tiae, and are to be corrected with educative and persua-
sive means. This opinion is based on the idea that ir-
regularity ex delicto partakes of the nature of a punish-
ment. While this is the common opinion, many hold the
opposite. Consequently, the incurrence of irregularity
in the case of impuberes as a result of crime is doubtful
and a dispensation should be obtained ad cautelam.
8
If one is forced by physical means to commit a crime
to which irregularity is attached, he does not incur this
obstacle. The one who forces another to commit such a
crime incurs the irregularity, since he alone is imputable.
One forced in this manner, even though he inwardly con-
sent, is excused from contracting irregularity, for the
reason that in the external forum the crime does not ex-
ist, and irregularity is more especially concerned with the
external forum.9
One who commits crime by reason of moral force, as
grave fear, is likewise excused from contracting irregu-
larity. If the crime consists in the violation of an eccle-
siastical law, it is evident that irregularity is not incur-
red, since an ecclesiastical law does not oblige with seri-
ous inconvenience. Consequently a cleric under censure
would not contract irregularity, should he assay to sol-
emnly exercise orders, hoping thereby to avoid scandal,
loss of good reputation, etc.10
4 "Contra Navarrum," Cons. XXVII, n. 230.
5 Canon 88.
6 Canon 2230.
7 Gasparri, op. cit., 202.
8 Ibid., n. 202.
9 Ibid., n. 208.
10 Gasparri, I c.
THE SUBJECT OF IRREGULARITY
17
Even when one compelled by such fear (moral fear)
violates the divine law irregularity is not incurred. Al-
though in such a case the sin is grave, nevertheless, since
irregularity was instituted ad instar poenae, it is to be
presumed that the Church does not wish to have those
compelled by grave fear to commit sin, affected by irregu-
larity.
18
IRREGULARITIES ARISING FROM DEFECT
CHAPTER III.
IRREGULARITIES ARISING FROM DEFECT.
Irregularities arising from defect, which have existed
in the Church since Apostolic times, may be compared to
the ordinances relating to priests, which were given by
God to Moses.¹ 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.
2
The first trace of irregularity arising from defect may
be found in the writings of St. Paul, when, for example,
he excluded bigamists and neophytes from the reception
of the bishopric.
3
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.*
5
Van Espen wrongly contends that the expression “alie-
nus 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
in ecclesiastical law, and in the canonical schools as a
synonym for censure, especially the censure of suspen-
I
Levit. XXI-XXII.
2 I Tim. III sq., V. 22, Tit., I-6 sq.; Wernz, Jus Decretalium,
Vol. II, tit. VII.
3 Cf. Conc. Illiber. (a. 300-306); c. 2. Conc. Arelat. (a. 314) c. 8.
II. 12. Conc. Neocaesar, (a. 314-325); c. 1, 2, 9. Conc. Concil Nicean
(a. 325); Concil. Tolent IV (a. 633).
4 In cap. 10, De renuntiatione, I-XX.
5 In Jur. eccls. Univers. t. I, p. 2.
6 Boeninghausen, De Irregularitatibus, cap. III, n. I. Gasparri,
op. cit., p. 91, n. 155.
IRREGULARITIES ARISING FROM DEFECT
19
sion." In the law of the decretals no particular rubric on
irregularity is to be found. The laws concerning this
subject were inserted under different rubrics in Books I
and V. Consequently there arose great difficulty in dis-
tinguishing irregularity from the censure of suspension
and various other punishments.
8
Since in the decrees of the Council of Trent, and in sub-
sequent constitutions of the Roman Pontiffs, no new ir-
regularities were introduced, it was necessary, prior to
the Code, to consult very ancient authority in order to
ascertain the exact nature of any irregularity.
I.
IRREGULARITY ARISING FROM ILLEGITIMACY.
The first irregularity arising from defect, mentioned
in the Code, is that of illegitimacy. Illegitimacy denotes
the condition of children born out of wedlock, excepting
the case of a putative marriage. In the ancient law, a
person of good morals was not excluded from the priest-
hood, even though he were born illegitimately. This was
true not only in the Eastern, but in the Western Church
as well. In the year 655, 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 major 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 for instituting this irregularity was three-
fold. (A) Ratione originis, an illegitimate was consid-
7 Honor. III in cap. 24, X de homicid. V. 12.
8 Gasparri, op. cit., n 176.
20
IRREGULARITIES ARISING FROM DEFECT
ered an unworthy candidate to exercise the sacred min-
istry. (B) The Church wished to manifest its abhor-
rence of the paternal sin. (C) There is danger that the
illegitimate offspring would be predisposed to commit
similar acts, by reason of the paternal incontinence.
In the present discipline of the Church, illegitimates,
both of public and occult illegitimacy, are irregular, un-
less they have been legitimated, or have made solemn
profession.⁹
Legitimate children are those who have been conceived
or born in valid marriage, or in a marriage contracted in
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
discipline, states that the offspring of such a union is con-
sidered 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-
gious 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
Holy See.10
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-
riage, unless the contrary be proven.
In canon law, children born at least six months after
the date of marriage, or within ten months from the dis-
solution of conjugal life, are presumed legitimate, unless
there be definite proof to the contrary.¹¹ Even if the
9 Canon 984 n. I.
10 S. C. Ep. et Reg. 20, Jan., 1860.
II Canon 1115, n. 2.
IRREGULARITIES ARISING FROM DEFECT
21
mother should confess her infidelity and acknowledge that
she had adulterous relations, the child may claim legiti-
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 hundred days after separation.
This, of course, is a presumption of law, and, if definite
proof could be produced that the offspring was the result
of adulterous relations, it would be considered illegiti-
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 conjugal
act, provided the parents were able to contract marriage
at the time of the conception, or while 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
has 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-
legious when the child is born of parents who, at the time
of conception, were bound by a solemn vow of chastity, or
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
whose parents are unknown, hence the common opinion
that they are legitimate must be upheld unless the con-
trary can be established. Foundlings are frequently the
22
IRREGULARITIES ARISING FROM DEFECT
1
result of poverty or other causes. However, a condi-
tional dispensation should be obtained ad cautelam.
In a dispensation from this irregularity, 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 this
clause, the S. C. C. replied "Clausulae illi (dummodo pa-
ternae incontinentiae imitator non sit) in litteris dispen-
sationis appositae, non aliter per episcopum satisfieri,
quam inquirendo quod nihil bonis moribus indignum com-
pererit; quod si integro decennio dispensandus probe
vixit, debere exequi litteras dispensationis, quamvis prius
incontinentiae nomine suspectus esset; sed in hoc casu de-
bere episcopum accuratius inquirere ad diluendam prioris
vitae suspicionem."12
Sometimes in the dispensation a limiting clause is
added,¹³ so that a special dispensation would be required
should one become a candidate for a higher order.
When a dispensation is asked for from this irregular-
ity the species of irregularity should be mentioned,
namely, 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-
pensation must be obtained.
IRREGULARITY ARISING FROM PHYSICAL 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:
whosoever of 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
12 Ben. XIV., De Syn., XIII, XXIV, n. 22.
13 De Smet, n. 168, Wernz., op. cit., n. 686. Gasparri, op. cit.,
n. 243.
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,
or a dry scurf in his body, or a rupture.' "'14
By divine law certain corporeal defects constitute an
obstacle to orders.15 The Church, on the other hand, has
enacted legislation as regards the matter of physical in-
ability, which is comprehended under the irregularity ex
defectu corporis.
This irregularity was instituted at a very early stage
of the Church's existence. Thomassinus maintains¹6 that
in the first five centuries defect of body did not constitute
a bar to orders, unless this defect excluded a person from
holy orders by divine law. This was especially true in
the Greek Church. Sanctity and holiness of life were
considered as requisite and not physical perfection.17
Thomassinus states18 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
are to be found in C. I, D. 36, and in C. 59, D. 50: "Nec
fas esse confidat quisque pontificum bigamos aut conjugia
sortientes ab aliis derelicta, sive quoslibet poenitentiam,
vel sive litteris, vel corpore vitiatos, vel conditionarios,
aut curiae publicarumque rerum nexibus implicatos, aut
passim nulla temporis congruentis expectatione discussos,
divinis servituros applicare mysteriis. Illiteratos quo-
que et nonnullaparte corporis imminutos sive ullo re-
spectu ad ecclesiasticum didicimus venire servitium,
etc." However, not every species of corporal defect was
included under the Gelasian prohibition, hence we find
the title "De corpore vitatis ordinandis vel non."
The following were excluded, in the Gelasian decrees,
from holy orders, (A) those who were totally unable to
celebrate mass, (B) those who, by reason of their physical
defect, were irreverent in the celebration of mass, (C)
14 Levit., XXI, 16, seq.
15 Wernz, op. cit., Tit. VII, n. 2, p. 110. Gasparri, op. cit., p. 156,
n. 250.
16 Thomassinus, p. 2, Lib., I cap., LXXVIII, n. i.
17 In Constitutionibus Apostolicis, lib. VII, c. 18.
18 Thomassinus, í. 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.19
In the course of time, laws promulgated by the Roman
Pontiffs and Councils more accurately defined the nature
and extent of this irregularity.20 These canonical sanc-
tions, which were retained 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-defec-
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-
cising those orders he has already received.21
Defect of body may be divided into four main classes,
debility, mutilation, deformity and incurability. Under
the general head of debility is included, (1) 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
a dispensation.22 A dispensation to exercise their office
is more frequently granted to priests who have become
blind.23 The recipient of such a dispensation is permit-
ted, as a rule, to say only one particular mass, generally
that of the Blessed Virgin. A dispensation of this kind
was given in Florence, 23 Aug., 1727. Another priest
must be present during the celebration of mass in such
cases.
19 S. Alph., VII, n. 404; Pirling, I, XX, N. 1; Reiff, V. XXXVII,
N. 80; Gasparri, op. cit., n. 252.
20 C. 10, D. 34. (Greg. I); C. 10, D. 55 (Conc. Tribur. a. 895); C.
3, D. 33 (Conc. Tolet. XI, a. 675.) C. I. C. VI, q. 2 (Alex. II). Cap. IV,
X., de cler. aegr., III 6.
21 Canon 984, N. 2.
22 A rather extraordinary exception to this rule is the case of
Father P. Wessling, of the Society of Jesus, who lost his sight as
the result of an accident in a chemical experiment, and later re-
ceived a dispensation and was advanced to the priesthood.
23 Gasparri, op. cit., N. 256.
IRREGULARITIES ARISING FROM DEFECT
25
A person so nearly blind that he cannot read mass with
becoming dignity is likewise irregular, unless by means of
strong glasses, or other instrument, he can overcome this
defect. Ordinarily such a one is permitted to celebrate
regularly the mass of the Blessed Virgin Mary; or, to
celebrate the aforesaid Mass on feast days and doubles,
and, on ferials, the Mass of the dead. The Ordinary has
the power of revoking this permission, if the priest should
become totally blind. When total blindness is feared in
the immediate future, a dispensation is seldom given for
the reception of orders. Dispensations were refused in
cases of this kind on several occasions.24
One who suffers from squint eyes is not irregular, un-
less this affliction prevents his reading mass. This is
true also of one who is cross-eyed.25
Those who enjoy sight in only one eye are ordinarily
not irregular. It is necessary, however, that the person
be able to read the canon of the mass without too great
an effort. Some canonists maintain that a man blind in
the so-called canonical eye (namely, the left eye) is ir
regular as regards his advance to orders. This opinion,
however, is not borne out in law, so that the more com-
mon view must be upheld, namely, that so long as one is
able to read sufficiently in one eye, whether it be the left
or right, he is not irregular. Should a person suffer the
loss of an eye by operation, or accident, he would incur
this irregularity, by reason of the resultant deformity.
The same must be said of one who has a notable mark or
blemish on one of his eyes.26 It is possible, frequently,
however, to remove these two deformities by means of
an inserted glass eye.
II. Dumbness, or the lack of power to speak. This
irregularity was constituted by divine law, so that the
Roman Pontiff is unable to dispense from it. Some, in-
deed, contend that the ordination of a mute would be in-
valid, but this is not the common opinion of canonists.
This irregularity arises, likewise, when one is totally un-
24 S. C. C. in Vercelen., 28, Jan., 1860; in Carcassounem., 27,
Feb., 1860; in Colonien., 13, Sept., 1863.
25 Gasparri, op. cit., N. 258.
26 Gasparri, op. cit., N. 258.
26
IRREGULARITIES ARISING FROM DEFECT
able to pronounce his words, or is unable to pronounce
them intelligibly. A person who stammers or lisps to
such an extent as to cause laughter or irreverence incurs
the same irregularity.
III. Deafness, or the inability to hear, constitutes an
irregularity, as regards the recepton of orders, and the
administration of the sacrament of penance. A deaf
priest 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 irregu-
larity is more readily obtainable.
IV. Mutilation, in general, is the abscission of some
member of the human body, which is necessary for its in-
tegrity. It is the accepted teaching of canonists that the
removal of an important part of a member has the same
juridical effect 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
was given by the S. C. C. in Litornercien, 24 Sept., 1864.
A person having both arms, however, but unable, by rea-
son of some infirmity, to utilize 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 the offices of the priesthood, should he have already re-
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,
IRREGULARITIES ARISING FROM DEFECT
27
or unable to use 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 fingers is irregular, as regards the celebration of the
sacrifice of the mass. Likewise, a priest who 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 re-
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
whole thumb of the left hand.27 The absence of one, or
even two, of the last fingers is not, according to the com-
mon opinion, a sufficiently grave mutilation to constitute
an irregularity. However, if all three of the aforesaid
fingers are removed, irregularity to receive orders is in-
curred, not because of the inability to administer the sac-
raments, 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
maintain, with Ballerini-Palmieri, VII, N. 478, 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.28
Authors generally consider a person as irregular who
has suffered the amputation of one or the other of his
limbs or feet. This is especially true if such a one could
not celebrate the mass without serious difficulty. At the
27 Gasparri, op. cit., 264.
28 Ballerini, Theol. Moral. Vol. II.
28
IRREGULARITIES ARISING FROM DEFECT
present time, when artificial limbs are so ingeniously and
so perfectly constructed, this irregularity would seem to
be non-existent in many cases, especially after the recep-
tion of orders. It is left to the good judgment of the or-
dinary 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
of a cane, is irregular, both for promotion to the holy of-
fice of priesthood, and for the subsequent use of certain
of the orders he may have received.29 One notably lame,
even though he would not require the use of a cane, is
generally considered as irregular, it being presumed of
course that the affliction is of a permanent character.
Temporary lameness does not beget this irregularity.30
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 am-
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-
son of their deformity.
VI. Under the head of incurability, are included 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-
ony of lepers exercise the offices of his state.
Syphilitics are irregular, if the symptoms of their af-
29 C. 57, D. I.
30 C. 18, D. 55.
IRREGULARITIES ARISING FROM DEFECT
29
fliction are readily apparent. In the latter event, such a
one may be permitted 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-
ber begets this irregularity, especially if it be of such a
nature as to excite irreverence or ridicule.
Hermaphorodites 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
process of generation, never existed. Hermaphordites
improperly speaking have existed, that is persons of a de-
termined sex who however possessed some specific organs
of the opposite sex. Some individuals the exact sex of
whom is difficult to determine are also called hermaphro-
dites. These latter are originally incapable of genera-
tion. Every class of these persons is excluded from the
clerical state.31
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-
cause it is more difficult then to effect a cure, although the
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.
IV.
IRREGULARITY ARISING FROM EPILEPSY, INSANITY AND DE-
MONIACAL POSSESSION.
The new law states that those who are, or have been,
subject to either the affliction of epilepsy, insanity, or de-
moniacal possession, must obtain a dispensation from the
31 Noldin, op. cit., vol. III, n. 553.
30
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-
tions of their state in life.32
Even prior to the publication of the new Code, canon-
ists considered epilepsy and insanity as physical moral
diseases which rendered a person irregular. The irregu-
larity arising from diabolical possession was generally
treated under a separate heading. Epilepsy is practi-
cally an incurable malady, especially when the symptoms
develop after the age of puberty. Before one has attain-
ed to that period of life, more hope of effecting 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-
ally capable of 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,
however, employs the term "censetur" which involves a
supposition and not an absolute or general truth. Hence,
in 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-
lepsy, when the disease has been contracted subsequent to
the age of puberty. If the disease be contracted anterior
to this period in life, and all attacks and symptoms disap-
pear for several years, so that, in the opinion of medical
authorities, a total cure has been effected, a dispensation
is more readily obtainable.
A priest who becomes subject to this malady may not
say mass, even though the attacks occur at distant inter-
vals. Before the Ordinary may exercise his right, there
must be at least some medical authority to support the
opinion that the malady has been cured, or that its pro-
gress has been sufficiently arrested.
The new law mentions epilepsy specifically, hence other
32 Canon 984, N. 3.
IRREGULARITIES ARISING FROM DEFECT
31
diseases whose symptoms are similar do not beget this ir-
regularity.
The insane, by reason of their total irresponsibility are
irregular. Every species of permanent insanity is in-
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
forms of insanity are delusional insanity, (when one is
subject to delusions), dementia, (unsoundness of mind to
the degree of total loss, or serious impairment of the fac-
ulty of coherent thought), mania,- (a form of mental un-
soundness usually characterized by derangement of the
intellectual faculties, shown in hallucinations and delir-
ium, and by passionate emotional excitement), melan-
cholia, (mental derangement characterized by excessive
gloom and depression, and usually accompanied by a ten-
dency to brood over a single subject), and paranoia,
chronic mental unsoundness, the symptoms of which vary
greatly. These, with their subdivisions, constitute the
principal forms of permanent, or persistent, insanity,
which cause an irregularity.
Man may become subject to evil spirits in various ways.
The devil may attack one from without (obsession), or
assume control of 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 our 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 DEFECT
who is in actual possession of an evil spirit cannot be ad-
vanced to orders. This prohibition originates from di-
vine, rather than from Canon Law.33 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
comperimus, illicita quaeque prorumpere, ut daemoniacis,
similibusque passionibus irretitis, ministeria sacrosancta
tractare tribuatur. Quibus si in hoc opere positis aliquid
propriae necessitatis occurrat, quis fidelium de sua salute
confidat, ubi ministros ipsos curationis humanae tanta
perspexerit calamitate vexari? Atque ideo necessario
removendi sunt, ne quislibet pro quibus Christus est mor-
tuus, scandalum generetur infirmis, etc."34
Before the new law, it was a disputed question whether
one who had been possessed but was later freed from the
evil spirit could 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-
stance of scandal, such a person could receive holy orders.
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 law.35
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 his
office.
The term Ordinary as employed in the new Code and in
the present dissertation includes all those enumerated un-
der canon 198. In law the term refers to the Roman
Pontiff, bishops, abbotts or prelates nullius, and their vi-
car generals, administrators, vicars and prefects apos-
tolic, in their respective territories, and in case of va-
cancy in these offices, to those who by law or legitimate
custom succeeded them in office. In exempt clerical reli-
33 Gasparri, op. cit., N. 273.
34 Gasparri, n. 274.
35 Canon 984 n. 4.
IRREGULARITIES ARISING FROM DEFECT
33
gious orders the major superiors also come under the
term ordinaries. On the 8th of December, 1919, vicars
and prefects apostolic, were given the power of choosing
their vicar generals. These latter moreover were en-
dowed with the power of ordinary jurisdiction, and hence
are now comprehended under the term Ordinary. (Acta.
Ap. Sedis Jan. 1920.)
The new law refers to possession, consequently, one
who has been obsessed by an evil spirit does not incur ir-
regularity.
IRREGULARITY ARISING FROM BIGAMY.
V.
The word bigamy is a compound of the Latin word bis,
twice, and the Greek word gamos, marriage. In the com-
monly accepted meaning of the word, it denotes the crime
of marrying any other person while having a legal spouse
living. According to Blackstone, "Commentaries on
English Law" (Lib. IV, n. 163) this is a corruption of the
true meaning of the word. In the strict meaning, the
word bigamy signifies the marrying of a second, after the
death of the first wife, in contradistinction to polygamy,
which is having two simultaneous wives. This is its pre-
cise meaning, as it exists in the new Code of Canon Law.
This defect gives rise to an irregularity, which impedes
the reception of orders.
This irregularity existed at a very early date in the his-
tory of the Church. St. Paul, in his first Epistle to Tim-
othy, enumerates the qualifications with which a bishop
and deacon should be endowed. (I Tim. III, 2, sq.) “It
behoveth, therefore, the bishop to be blameless, the hus-
band of one wife." "Let deacons be the husband of one
wife." At that stage of the Church's existence, few men
practiced the virtue of celibacy, consequently it was neces-
sary to admit married men to the ministry. This irregu-
larity was considered by the Apostles and early Fathers,
to have been instituted for the reason that bigamists were
suspected of grave incontinence. St. Chrysostom, com-
menting on the words of the Apostle, says: "Castigat im-
34
IRREGULARITIES ARISING FROM DEFECT
pudicos apostolus, dum non eos permittit post secundos
nuptias ad ecclesiae regimen dignitatemque pastoris as-
sumi." St. Hieronomus, 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 intelligere debe-
mus, ut non omnes monogamum bigamo putemus esse me-
liorem, sed quod is possit ad monogomiam at continen-
tiam cohortari, qui sui exemplum praeferat in docendo."36
In the Synod of Trullo, in 692 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-
amists, were forbidden to exercise the duties of minor or-
ders, even though, owing to a scarcity of clerics these par-
ticular functions of the clerical state were frequently per-
formed by lay persons.
The Western Church adheres to the opinion that the in-
stitution of this irregularity was for the reason that in a
second marriage the union of the Church with Christ, its
spouse, is less perfectly represented. The Western
Church, however, admits the secondary purpose of its in-
stitution, namely, the presumed incontinency on the part
of the bigamist, and his consequent unfitness to discharge
efficiently the office of the priesthood, among a people
which looked with great suspicion upon a bigamist, and
held him in little or no esteem. The division of one body
with two, instead of union with one body, is the bedrock
of this irregularity. This defect in the perfect resemb-
lance of the second marriage to the great type of mar-
riage 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-
fective in its resemblance to its exemplar, should become
a dispenser of sacraments to others.
36 Devoti, Jus Can. Univers. h. t. 21, de bigam.
IRREGULARITIES ARISING FROM DEFECT
35
As is evident from the Pauline injunction, there ex-
isted only one particular species of bigamy, in the first
centuries, namely, true or 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. 206), a third species was added in the
Middle Ages, and which was called similar. Canonists
also made a division of bigamy into bigamy from defect
and bigamy from crime. Bigamia simulitudinariia was
generally considered as bigamia ex delicto, although
many, as St. Alphonsus Theologia Moralis Compendium
(lib. VII, n. 436), held that all three were ex defectu sac-
ramenti.
Real bigamy demands that a person has contracted a
second valid and legal marriage. It does 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 former husband, or by another man, out of wedlock;
or who has carnal intercourse with his wife after she has
been corrupted by another man.
A man becomes guilty of simultaneous bigamy who, af-
ter taking a solemn vow of chastity in religion, or by re-
ceiving sacred orders, attempts and consummates mar-
riage.
In the new Code, of Canon Law, bigamists are those
men who successively contracted two or more valid mar-
riages.37 This explanation has clarified the exact nature
and extent of this irrregularity.
This irregularity is removed neither by Baptism nor
religious profession but by dispensation. The dispensa-
tion does not efface the defect in sacrament, but the un-
fitness arising therefrom.
37 Canon 984 n. 4.
36
IRREGULARITIES ARISING FROM DEFECT
VI.
IRREGULARITY ARISING FROM LOSS OF GOOD REPUTATION.
This irregularity was introduced by St. Paul the Apos-
tle. "For a bishop must be without crime, as the steward
of God." "Moreover he (bishop) must have a good tes-
timony of them who are without: lest he fall into re-
proach and the snare of the devil." The reason under-
lying this precept is readily apparent. Since clerics must
excel in integrity of life and be an example to the lay
body, it is necessary that their reputation be unassailable.
In the early Church, those who by reason of some grave
crime had been subjected to public penance, even after
their reconciliation, could not be admitted to the clerical
state.39
This practice was closely connected with infa-
mia ex delicto. In this the Church followed the old Ro-
man Law and to some extent the laws of the old Germa-
nic peoples. Subsequently, in the gradual development
of the Church, a distinction was made between irregu-
larities 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 irrregularity is frequently called the irregularity
arising from infamy. When a loss of good reputation
has been brought about by regular legal process, termi-
nating in conviction in a court of justice, no injury is
done to 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
38 Epistle to Titus, I., VI. I. Tim. III, 7.
39 Cf. Siric. epist. I ad Himer. cap. 13., Kober, D. Deposit. p. 70.
Gasparri, op. cit., N. 186.
40 Cf. C. 2. (cap. Angilr.) c. 17. C. VI. q. 1. Pseudo-Steph. R. I.
87, in Sext. secundum analog. Schmalzg. op. cit. n. 170. Phillips, op.
cit., p. 538. Wernz, op. cit., cap. IX. n. 129.
IRREGULARITIES ARISING FROM DEFECT
37
or lessening of one's good name by reason of the commis-
sion of certain crimes.
Infamy is twofold in species, infamy of law (infamia
juris), and infamy of fact (infamia facti). Infamy of
law is contracted when the law itself attaches this juri-
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,
or 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
Ordinary, he may be derived of his parish. This is one
of the reasons why the pastor of an irremovable parish
may be ousted from his office.
41
Infamy of law is incurred ipso facto by the following:
(1) Catholics who formally join a non-Catholic sect, or
publicly adhere to it.42 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
law speaks.
(2) Desecrators of consecrated hosts are likewise
ipso facto declared infamous, and incur the resultant ir-
regularity. The reason for this is apparent and does
not require further comment.
43
(3) Persons who dishonor the memory of the dead by
thefts or other crimes committed on the bodies or the
graves of the deceased. Since it is the belief of Catho-
lics 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 Canon 2117, n. 3.
42 Sanon 2314, SC. I.
43 Canon 2302.
44 Canon 2328.
38
IRREGULARITIES ARISING FROM DEFECT
greatest solicitude to protect the remains of the deceased.
(4) Those who lay violent hands on the Roman Pon-
tiff, Cardinals, or Papal Legates.45 This irregularity was
considered to affect the children and grandchildren, prior
to the new law.46
(5) Those who fight a duel and their official wit-
nesses.47
A contest with weapons is essential to the con-
ception of a duel. Further, the contest must take place
by agreement, and the weapons used must be capable of
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-
tom, similarity of weapons is not essential, neither are
witnesses, seconds, etc.
Duelling is contrary to the ordinances of the Catholic
Church, and of most civilized countries. The Council of
Trent plainly indicated that duelling was essentially
wrong and since then theologians have universally char-
acterized it as sinful and reprehensible. However, there
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 mere reason. Pope
Benedict proved the untenableness of this opinion in his
Bull issued in 1752, "Destabilem." 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
cowardly, worthy of 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-
vancement. (B) Those persons are excusable who, to
defend their honor, or to escape the contempt of men, ac-
cept, or send, a challenge, when they know positively that
the duel will not take place, but will be prevented by oth-
(C) A general or officer who accepts a challenge
ers.
45 Canon 2343.
46 Cf. Cap. III, de poenis in Sext. Boenighausen op. cit., p. 158.
47 Canon 2351 n. 2.
IRREGULARITIES ARISING FROM DEFECT
39
through fear of the loss of his reputation and his position
does not come under the ecclesiastical punishment 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
his predecessors, Leo XIII, in his letter "Pastoralis Of-
ficii," of 12th September, 1891, 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 of ownership, as re-
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
his own to similar danger. It is easy to see that a duel-
list exposes unjustifiably both his own life and that of his
fellowman, consequently is guilty of a wrongful assump-
tion of the right of God, the Lord of life and death. The
conclusion, then, to be drawn is, that whoever is killed in
a duel is indirectly guilty of 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,
because he has taken the risk of causing death, without
any right to do so. This holds true even though he did
not intend the death of his enemy. The reason, then, for
declaring duellists guilty of infamy ipso facto is evident.
40
IRREGULARITIES ARISING FROM DEFECT
The new law states that not merely the participants in
the actual combat of a duel are to be declared irregular,
but also their official witnesses. Witnesses is here used
in the sense of those fostering or abetting such an action,
as well as the arbiter, seconds, etc.
(6) The following, moreover, incur infamy of law
ipso facto, those who attempt a second marriage, even a
so-called civil marriage, while their lawful husband or
wife is living.48 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
before a sectarian minister, would also incur this infamy.
(7) Finally, we find that in the new law the following
are ipso facto infamous, and, therefore, irregular for the
reception of the clerical state. Lay persons who 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 the crimes of sodomy, bawdry and incest.49 In the old
law, the only crime that rendered a person infamous was
the rape of a woman for the cause of marriage. Those
who aided or helped in any manner incurred the same
punishment.50
We find that in the new law no mention is made of the
accomplices and abettors of heretics. These were infa-
mous in law ipso facto, before the appearance of the new
Code of Canon Law. Moreover, the omission of those
who were condemned to the triremes (a system of pun-
ishment in which those guilty of certain crimes were com-
pelled to work as oarsmen, and in which the culprit was
usually confined in the hold of the vessel until the term
of imprisonment elapsed) is to be noted.51
48 Canon 2356.
49 Canon 2357.
50 Council of Trent, Sess. XXIX, cap. 6, de reform.
51 Cf. decretum Urbani VIII, 4th. Jan., 1635. Gasparri, op. cit.,
N. 465. Schmalz, I. V., t. 7, n. 123.
IRREGULARITIES ARISING FROM DEFECT
41
VII.
Christ, the Master, taught mildness and mercy not only
by word, but by example. "Take up my yoke upon you,
and learn of me because I am meek and humble of heart;
and you shall find rest to your souls."52 It is only befit-
ting, therefore, that priests of the new law should imi-
tate the great exemplar. St. Paul, when he used the ex-
pression, "non percussorrem," in regard to the mode of
life of a bishop and deacon, wished to emphasize the
teaching of our Lord.53 The Church, in the early cen-
turies, debarred from the clerical state all those who had
caused the effusion of another's blood even though they
had done so inculpably.54 Consequently, the custom arose
of declaring soldiers irregular who voluntarily offered
their services in a just offensive war, and who killed or
mutilated another in that war. One who engaged in a
defensive warfare voluntarily, provided the cause was
just, did not incur this irregularity. It was necessary to
have killed or mutilated another personally, so that even
though one led other men into battle and exhorted them
by words of inspiration he did not incur this irregularity.
The new law makes no mention of the former irregu-
larity or defect arising from voluntary service in an of-
fensive war, which is just. In a war which is known to
be unjust, those who volunteer for service and are instru-
mental in killing others may be considered as voluntary
participants. In this case, they would be irregular as a
result of the commission of a crime of voluntary homi-
cide. Should they be forced to take part in such a war,
they could not be called voluntary participants.
At present, the following alone incur the irregularity
ex defectu lenitatis. (A) A judge who has pronounced
the sentence of death against some individual brought to
trial. (B) Persons who held the office of executor, and
who, of their own accord, undertook the office of immedi-
ate assistants in the execution of a death sentence.
52 Math. XI-29.
53 I Tim. III. 3; Tit. I-7.
54 Cf. c. 64. Apost. Conc. Tolet. IV, a. 633, D. 51, etc.
Po-
42
IRREGULARITIES ARISING FROM DEFECT
licemen and others that might be ordered to assist and
help in the execution of a criminal, are not voluntary as-
sistants.55
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-
tract the irregularity ex defectu lenitatis, but that which
arises as the result of voluntary homicide (ex delicto hom-
icidii). (b) It suffices that the sentence of death be
pronounced, consequently, if the criminal should, by some
means escape, or have the sentence commuted, 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 the irregularity ex delicto homicidii.
must actually pronounce the sentence of death.
(d) He
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
candidates.56 At an early date moreover, 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
they were not to 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 for the first time a
marked differentiation between public and private crimes,
in so far as the former produced irregularity while the
latter did not.57
55 Canon 984 n. 6.
56 Can. Apostol. 60.; Origenes, contra Cels. I, III. cap. 51. Migne,
de irregularitatibus, P. G. XI. 987. C. 9, 10. Council Neacaesar, (a.
300-306). Concil. Epaon. (a. 517.), etc.
57 C. XXXII, No. 3. d. 1.
IRREGULARITIES ARISING FROM CRIME
43
CHAPTER IV.
IRREGULARITIES ARISING FROM CRIME.
This interpretation 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-
gularity. It might be noted here that crimes to which
irregularity is attached on account of infamy do not
make a person irregular if they remain secret, while the
other crimes mentioned in law do produce irregularity
whether they be public or occult provided the other con-
ditions are fulfilled. This is the present discipline of the
church, as found in the new law. "No perpetual impedi-
ment, called in law irregularity whether ex defecto or ex
delicto, is contracted unless it is expressly contained in
the following canons."
IRREGULARITY ARISING FROM APOSTASY, HERESY AND
SCHISM.
Apostates from the faith, heretics and schismatics are
irregular as a result of their crime.2
Apostacy, in its etymological sense, signifies the giv-
ing up of a particular state in life, and he who embraces
such a state cannot leave it, therefore without becoming
an apostate. Benedict XIV divided apostasy into three
classes: (A) Apostasy from the faith, or perfidiae, when
a Christian abandons his faith entirely; (B) Apostasy
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
further division of apostasy: apostasy inobedientiae, dis-
obedience to a command given by a lawful superior, and
iteratio baptismatis, the repetition of baptism, "quoniam
I Canon, 983.
2
Canon 985 n. I.
44
IRREGULARITIES ARISING FROM CRIME
reitterantes baptismum videntur apostatare dum rece-
dunt a priori baptismate." As all sin involves a certain
amount of disobedience, the apostasy of disobedience
does not constitute a specific offense. In the case of
iteratio baptismatis, the offense falls under the head of
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
under the rubric, "De apostatis et reiterantibus baptis-
ma," (1) the two distinct titles of the Justinian Code:
"Ne sanctum baptisma iteretur" and "De apostatis." (2) *
3
4
Apostasy from the faith, even before the new law, was
the only kind that gave rise to an irregularity. If one
should apostatize from the priesthood and attempt to
contract and consummate marriage, according to the
common opinion of the canonists, in the old law he would
incur the irregularity which arose from simultaneous
bigamy. However, as we noted in a previous chapter,
since this kind of bigamy no longer begets an irregular-
ity, such a one while committing a grave crime and sub-
ject to other canonical prohibitions of the Church, es-
capes the incurrence of this particular irregularity.
This was the opinion also in regards to one who deflected
from religion.º
5
When an apostate abandons his faith, it does not mat-
ter, as regards contracting the irregularity, whether he
embraces Islamism, Judaism, Paganism, or simply falls
into naturalism and complete neglect of religion.
"Heresy is a species of infidelity in men who, having
professed the faith of Christ, corrupt its dogmas."
"The heretical tenets may be adhered to from involun-
tary causes: inculpable ignorance of the true creed, er-
roneous judgment, imperfect apprehension and compre-
hension of dogmas. In none of these does the will play
an appreciable part, wherefore one of the necessary con-
34567
V. title 9.
Cf. München, "Das kanonische Gerichtsverfarung.
Cod. Jur. Can. can. 985 n. 3.
6 Wernz, op. cit., n. 141.
St. Thomas, II-II, Q. xi, a. I.
IRREGULARITIES ARISING FROM CRIME
45
ditions of sinfulness-free choice-is wanting and such
heresy is merely objective, or material. On the other
hand, the will may freely incline the intellect to adhere
to tenets declared false by the divine teaching authority
of the Church. The impelling motives are many: intel-
lectual pride or exaggerated reliance on ones own in-
sight, the illusions of religious zeal, the allurements of
political or ecclesiastical power, the ties of material in-
terests and personal status; and perhaps others more dis-
honorable. Heresy thus willed is imputable to the sub-
ject and carries with it various degrees of guilt; it is
called formal because to the material error it adds the
informative element of freely willed. Pertinacity, that
is, obstinate adhesion to a particular tenet, is required
to make heresy formal." The Code does not specify any
particular species, hence one who is heretical in any
sense, must contract this irregularity.
Schism is, in the language of theology, and Canon Law,
the rupture 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-
zation of the Church, and make him a member of the
mystical body of Christ, or the state of dissociation or
separation which is the result of that state. In this ety-
mological and full meaning, the term occurs in the books
of the New Testament. By this name, St. Paul charac-
terizes and condemns the parties formed in the commu-
nity of Corinth, "I beseech you brethren.....that there
be no schisms among you; but that you be perfect in the
same mind, and in the same judgment." The union
of the faithful, he says elsewhere, should manifest itself
in mutual understanding and convergent action similar
to the harmonious cooperation of our members which
God hath tempered, "that there might be no schism in the
body."10
Thus understood, schism is a genus which
embraces two distinct species; heretical or mixed schism
and schism pure and simple. The first has its source in
heresy or is joined with it, the second which most theo-
8 Catholic Encyclopedia, art. Heresy.
9 I. Cor. I, 12.
10 I. Cor. XII, 25.
46
IRREGULARITIES ARISING FROM CRIME
logians designate absolutely as schism, is the rupture of
the bond of subordination without an accompanying per-
sistent error, directly opposed to a definite dogma.
Schism does not necessarily imply adhesion either public
or private to a dissenting group, or a distinct sect, much
less the creation of such a group. Anyone becomes a
schismatic who, though desiring to remain a Christian,
rebels against legitimate authority, without going as far
as the rejection of Christianity as a whole, which would
constitute the crime of apostasy. It must be assumed
that the Code, when it mentions schism in general, in-
cludes 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,¹¹ an apostate, heretic or schismatic, even
subsequent to his conversion, remains irregular, and
must obtain a dispensation before he can be advanced to
orders, or exercise the same.
II.
IRREGULARITY FROM THE ABUSE OF BAPTISM.
In the old law, the subject of this irregularity was a
cause of frequent disputation.¹
12
Baptism holds the first place among the sacraments,
because it is the door of the spiritual life. By it we are
made members of Christ and incorporated with the
Church. Baptism once validly conferred, can never be
repeated.13 This has been the constant teaching of
the Church, both Eastern and Western, from the earliest
times. On this account, baptism is said to impress an in-
effaceable character on the soul, which the Tridentine
Fathers call a spiritual and indelible mark.¹
In con-
sequence of this, the unconditional reiteration of bap-
II Canon 983.
Boening, Pars II, cap. I. n. 1.
14
12
13
Hebr., VI, 4.
14
Council of Trent, Sess. VII, can. IX.
IRREGULARITIES ARISING FROM CRIME
47
tism, knowingly and willingly, constituted an irregular-
ity in the old law.15 It affected the person thus at-
tempting to re-baptize, and the recipient, and the public
assistants, e. g., the acolyte or deacon.16
Three conditions were necessary to constitute this ir-
regularity, culpability, 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,
could not be had.17 However, many denied this, be-
cause the institution of this irregularity was directed
against re-baptism. They maintained that in condi-
tional baptism the crime of heresy was absent.¹
18
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-
fected by this irregularity.19
The new law of the Church does not mention this irre-
gularity, consequently it is non-existent. At the present
time, when the administration of the sacraments is so
safeguarded, it is not likely that a valid baptism could be
reiterated, knowingly and willingly.
The Church distinguishes between the ordinary and
extraordinary minister of baptism. The ordinary min-
ister of solemn 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 conditions, whether this person be a Catholic, in-
fidel or Jew.
In the Code, we find that those are irregular ex de-
licto, who, outside the case of extreme necessity, allow
themselves to be baptized by non-Catholics.20
15 Wernz, op. cit., N. 135.
16 Ibid., N. 135.
17 Benedict XIV, De synodo, 1. 7, c. 6, n. 3.
18 Gasparri, op. cit., vol. I, n. 329. D' Annibale, Summula, I n
410; Noldin theol. Mor., vol. I, n. 131.
19 Noldin, op. cit., vol. I, n. 132.
20
Canon 985, n. 2.
48
IRREGULARITIES ARISING FROM CRIME
Many cases of extreme necessity can be conceived.
It
is not necessary 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 constitute a case
of extreme necessity.
It does not matter whether the baptism performed by
a non-Catholic be private or public, the offense constitu-
tes an irregularity.
Prior to the appearance of the Code, the law was
somewhat more 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.21 The new law, by the innovation of the word
non-Catholics, wishes to include all those outside the fold
of the Catholic Church.
III.
IRREGULARITY ARISING FROM THE ATTEMPT TO MARRY,
WHEN THIS IS IMPOSSIBLE BY REASON OF CERTAIN
IMPEDIMENTS.
We now come to the consideration of an irregularity
which was introduced for the first time in the new Code
of Canon Law. There we find that those are irregular
ex delicto who have made an attempt at marriage, or
only went through a civil contract of marriage, while
they were already lawfully wedded, or in sacred orders,
or under religious vows, even though these be simple and
temporary, likewise those who attempt marriage with a
woman bound by the same vows (or with a woman bound
by a valid marriage bond).22
The indissolubility of the marriage contract is found-
ed on the requirements of divine law.. A valid marriage,
once it has been ratified and consummated, cannot be dis-
solved by any human power, or any cause except
death.23 This canon merely reiterates the constant
21 Wernz, op. cit., n. 134. Suarez, op. cit., n. 14.
22
Canon 985 n. 3.
23 Canon 1118.
IRREGULARITIES ARISING FROM CRIME
49
teaching and discipline of the Church. A validly mar-
ried man commits a grave fault when he attempts a sec-
ond valid marriage, and is, as stated above, irregular.
This attempt may be made in various ways. He may
deceive the priest as to the existence of a former mar-
riage, or may resort to other means less honorable. The
Code specifically states that even if he attempt a civil
ceremony he contracts the irregularity.
A marriage is invalid when attempted by clerics in
sacred orders, 24 and those who attempt such a mar-
riage are irregular. In the Western Church, the major
or sacred orders, are the priesthood, the diaconate, and
the sub-diaconate. The reception of any of these orders
constitutes a diriment impediment to marriage. This
has been the discipline in the Latin Church, since the sec-
ond Latern Council, in 1139.
Marriage, when attempted by religious who are bound
by solemn vows, or by simple vows which have an an-
nulling power by special disposition of the Holy See, is
null.25 Marriage is forbidden to those who take the
simple vow of virginity, or of perfect chastity, or of not
marrying, likewise to those who vow to receive Holy Or-
ders, or to embrace the religious state. Simple vows do
not invalidate the marriage, unless the Holy See has at-
tached this annulling power to it.
When a religious joins a community, he surrenders
himself, as it were, with the object of striving therein
for his own sanctification, and for that of the members
of the community. This surrender of one's self is dis-
tinct from the taking of vows, although both are accom-
plished by a simultaneous action. When one surrenders
himself he does so to the community, when one takes his
vows, he makes them to God. The profession of a reli-
gious may be either perpetual or temporary, solemn or
simple. It is perpetual when the vows taken bind for
life, temporal, when they bind only for a definite period
of time. It is solemn or simple according as the vows
are solemn or simple. The solemnity attached to a vow
24 Canon 1072.
25 Canon 1073.
50
IRREGULARITIES ARISING FROM CRIME
is due to ecclesiastical legislation. The Church has de-
creed that some vows should be solemn and that as such
they should be endowed with certain features or qualities
which do not belong to simple vows. These qualities
are: (A) Solemn vows enjoy greater stability because
the Church more rarely dispenses from them.28 (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 contrary act also invalid. A religious
attempting marriage, even if only bound by a simple, or
temporal vow, while his marriage would indeed be valid,
commits a grave wrong, and would be irregular should
he subsequently desire to be advanced to the clerical
state. The same irregularity is incurred 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.
IV.
IRREGULARITY ARISING FROM HOMICIDE AND THE PROCURE-
MENT OF ABORTION.
It was the desire of the Church, from the earliest
stages of her existence, to preserve the members of her
clergy "without crime," and "irreprehensible."27 We
find, consequently, that the early Church enacted canons
which not merely denied access to orders to those guilty
of the crime of homicide, but further prohibited those
who had received orders the exercise of their office.28
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.
26 Wernz, op. cit., Vol. III, n. 677. Vol. IV. n. 381; Vermeers ch.
Vol. I, n. 327-329.
27 St. Paul to Tit. I, 6.
28 Cf. de clericis percutientibus fideles vel infideles, c. 28,
Apostol. c. 7. D. 45; de prohibit, a clericis effusione sanguinis etiam
hostium civitatis obessae. c. I, Conc. Ilerd. anno 524, etc.
IRREGULARITIES ARISING FROM CRIME
51
This irregularity is incurred by voluntary murderers,
and by those who procure abortion, if effective, and all
co-operators.29
Homicide in general signifies the killing of a human
being. It includes both intentional and unintentional
killing.30 In practice, the word generally means the
unjust taking away of human life, perpetrated by one
distinct from the victim, and generally acting in a pri-
vate 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 party has occur-
ed, does not excuse him from incurring the irregular-
ity.31
Homicide is said to be necessary when a person, to pre-
serve his own life, limb, or chastity, kills an unjust ag-
gressor. A greater value must be placed upon the life of
the innocent party in such a case. He who kills another
in self defense is not guilty of sin, nor does he contract
an irregularity as a result of his action. We find this
teaching thus enunciated C. 6, D. 50. "Idem (id est, nul-
lam irregularitatem incurrere) de illo censemus qui mor-
tem aliter vitare non valens suum occidit vel mutilat in-
vasorem." In the antient law moreover, we find that
such a one could exercise those orders he had already re-
ceived, but required a dispensation to be advanced to
higher orders.32
A person who, in defense of an innocent party, is forc-
ed to kill the unjust aggressor, is not morally culpable
nor does he contract an irregularity. This is the com-
mon teaching of canonists who treat of this particular
eventuality.33
The right to self-defense is not annulled by the fact
29 Canon 985, n. 4.
30 Boenniugh, op. cit., fasc. II, p. 5 sq., D' Annibale op. cit.,
P. I, n. 421, sq. C. of Tr. Sess. XIV. cap. VIÍ, de ref.
31 Gasparri, op. cit., n. 415.
32 C. 6, D. 50.
33 Schmalz, I, XII, n. 36; Pirhing, n. 77, 81; Reiff, n. 146, 154;
D'Annibale, I, n. 424.
52
IRREGULARITIES ARISING FROM CRIME
that the unjust aggressor is not responsible. The ab
sence of knowledge saves him from moral guilt, but it
does not alter the character of the act considered ob
jectively; it is an unjust aggression and, in the conflict,
the life assailed has a superior juridical value.
Many contend that should one fatally wound another
who was subsequently killed by a third person, acting
independently, he would not be irregular. Faganus de
nies this 34 and his opinion is borne out by other
canonists. In this case, the incurrence of irregularity is
at least doubtful. If a doubt exists as to whether the
first assault caused or accelerated the death of the inno-
cent party, the aggressor could not be excused from con-
tracting the irregularity.
35
The following morally concur in voluntary homicide
and contract irregularity: Those commanding, advising,
failing to prevent, and giving assent to such an action.
A person commanding the death of an innocent party
is guilty of homicide and was irregular, in the ancient
law, according to the accepted view of the canonists.
This discipline was introduced by Boniface VIII. "Is
qui mandat aliquem verberari licet expresse inhibeat ne
occidatur ullatenus vel membro alique mutiletur, irre-
gularis efficitur, si mandatarius, fines mandati excedens,
mutilat vel occidat: cum mandando in sulpa fuerit et hoc
evenire posse debuerit cogitare."36
In the gloss of Boniface, we find the following legisla-
tion: "Homicidium committitur facto, consilio praecepto,
et defensione..
.Et sic distingue circa hanc
materiam; aut committitur homicidium voluntate, aut
casu aut necessitate. Si voluntate quod fit tribus modis
facto, praecepto, et concilio, et lingua sive adhortatione.
In quocumque ipsorum casuum quis committ homicidium,
non solum non debet promoveri, sed in perpetuum debet
deponi; et etiamsi paganum interfecerit, irregularis effi-
citur, sive Saracenorum."37
34 Faganus, in comm. cap. 18, De homicidio.
35 St. Alph. VII, n. 368; Suarez, disp. XLIV, sect. III, n. 5.
36 C. III, X, de homicidio, I, III.
37 C. VI, II, de homicidio, I, III, in VIº.
IRREGULARITIES ARISING FROM CRIME
53
In the Code of canon law38 we find that those who
agree to co-operate in the same crime by united physical
action are all held equally guilty, unless the circumstanc-
es increase 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
circumstances prove the contrary. Many cases 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 of mur-
der.39 It is immaterial whether the act of homicide re-
sulted from the physical or moral co-operation of the ac-
complice, as would be implied by physical acts of violence
in the former case, or a mandate or advice in the latter.
If assent be of such a character as to involve physical
participation in the contemplated homicide, the person
giving such assent is irregular, even though the intend-
ed victim be a 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.
Not only the mandatarius, (or the who orders the
commission of an offence,) and who is therefore the
principle agent of the crime, but also all who induce an-
other or 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
contract irregularity. The inducements or advice must
be persuasive or instructive. This would be the case if
the advice were insistent, or if one should present various
arguments for the perpetration of such an act, or if one
38 Co. Jur. Can. canon, 2209.
39 C. I, X de cond. infidelum, III, 33.
1
54
IRREGULARITIES ARISING FROM CRIME
should indicate the mode of committing homicide with
impunity.10
Such a one is the true moral cause of homicide, as may
be gathered in C. 2, X, de clerices pugnantibus in duello,
V, 14. "Homicidium autem tam facto quam praecepto,
sine defensione non est dubium perpetrari. . . . . . Qui
vero se asserunt animum regis inflammasse ad odium,
unde homicidium fuit secutum, dure et aspere, sed non
ita, severe sunt puniendi; nisi forte ipsum ad illud homi-
cidium suis suggestionibus provocasset."
If a person who had no part in the actual murder, and
who was not 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 instance,
the desire to protect the murderer from being repre-
hended.41
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-
arez,42 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 doubtful. 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-
drawal from all participation, is freeded from all re-
sponsibility, even though for reasons of his own, the exe-
cutor of the crime perpetrated the deed; if he did not
completely withdraw his influence, his retraction dimin-
ishes but does not take away responsibility altogether.43
Consequently one who would 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 re-
40 Suarez, I. c. N. 18; Gasparri, op. cit., N. 421.
41 Gasparri, op. cit., N. 428.
42 Suarez, disp. XLVI, sect. VI, N. 10. sq.
43 Cod. Jur. Can. can. 2209, n. 5.
IRREGULARITIES ARISING FROM CRIME
55
sponsibility, and the incurrence of irregularity is at least
uncertain. The revocation must be effective, hence
proper means must be employed to deter a person from
acting on the earlier suggestion, e. g. effective contrary
persuasion.
44
He who co-operates in a crime by neglect of his duty
is held responsible to a degree proportionate to his obli-
gation of preventing the crime.“ One who is merely
bound by charity to prevent the death of 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, participa-
tion in its fruits or concealing the delinquent, and other
actions following after the crime has been accomplished,
may constitute new offenses, namely if these actions are
punished in law by penalties, but unless there is a pre-
existing agreement with the offender about such actions,
they do not import responsibility for the crime.45 Consc-
quently persons concuring in an act of homicide in this
manner would contract irregularity, only in the case
where there had been a previous agreement or intrigue.
According to Gasparri, if the one commissioned to
perpetrate a murder should himself be slain, either by
the intended victim, or by an officer of the law, or an ac-
cidental defender of the victim, the one who ordered such
an attempt incurs irregularity, since he is the true and
real cause of the resultant death.
46
It is never allowed directly to kill an innocent party,
that is, it is unlawful to kill the innocent when the death
of 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, or as regards the con-
44 Cod. Jur. Can. can. 2209 n. 6.
45
Cod. Jur. Can. can. 2209, n. 7.
46 Gasparri, op. cit., N. 421.
56
IRREGULARITIES ARISING FROM CRIME
tracting irregularity, whether one should accidentally
kill another than his intended victim.47
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,
whether capital or otherwise, was both prescribed and
inflicted by civil government. Such modes of procedure
as lynching are absolutely unjustifiable, 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
enemy were irregular. In the new Code of Canon Law
the expression voluntary murderers is employed. The
interpretation of this is evident. If a soldier volunteers
his services in a war which he personally knows to be un-
just, and, as a result, kills another, irregularity is in-
curred. A person forced against his will to participate
in an unjust war, cannot be called a voluntary murderer,
even though he should be the cause of another's death,
nor is he affected by the irregularity.
To accelerate the death of a person who is seriously ill
and whose eventual death is morally certain..
as by the injection of a large dose of morphine, is homi-
cide. The mere quality of hastening adds nothing for ex-
tenuation, as every murder is merely a hastening of in-
evitable death. To ease pain is not commensurate with
the horrible deordination of taking a human life. A
physician is not a public executioner nor a judge, with
the power of life and death: his business is solely to save
human life and never to destroy it. A doctor who per-
forms euthanasia (acceleration of certain death) is cer-
tainly guilty 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
47 Suarez, op. cit., N. 1, 8; Schmalz., V, XII, N. 237. Gasparri,
op. cit., N. 415.
IRREGULARITIES ARISING FROM CRIME
57
directly, or only indirectly, intended the fatal result, and
whether he was the physical or moral cause, contracts
this canonical impediment.
Abortion in its general sense is the expulsion of the
product of conception, at any period of gestation before
the fetus becomes viable. In a stricter sense, it is the ex-
pulsion of the ovum before the third month of gestation,
as distinguished from miscarriage. The word abortion
is used here to signify criminal abortion.
A pathologic condition or an accident may induce
abortion. When such an interruption is inevitable, the
treatment has moral qualities which involve the mother
and the physician. Criminal abortion is never allowed
and all male persons co-operating in such an action are
irregular. No action is lawful which directly destroys
fetal life, and any one who performs such an action
effecto secuto is irregular. It is clear the extracting of
the living fetus, before it is viable, is destroying life as
directly as it would be killing a grown man directly to
plunge him into a medium in which he cannot live, and
hold him there until he expires.
In certain conditions, as when the life of the mother
is in evident danger from a uterine tumor, an operation
may be permissible, or even obligatory, which has for its
direct end the removal of the tumor. This is a case of
double effect, where all the requirements are fulfilled.
As regards the co-operation, the same principles hold
as were enunciated above. Abortion is homicide and
anyone co-operating effectively, morally or physically in-
curs irregularity.
V.
IRREGULARITY ARISING FROM MUTILATION
AND ATTEMPTED SUICIDE.
In the new law we find that the following incur an ir-
regularity ex delicto: men who mutilated themselves or
others and those who attempted suicide.48 Mutilation is
48 Canon 985 n. 5.
58
IRREGULARITIES ARISING FROM CRIME
the amputation of an important member. When a per-
son is weakened in a member as the result of certain dis-
eases, so that he is unable to use it, he is said to be de-
formed. In order to incur the irregularity the member
in question must have a distinct, complete function of its
own. To blind a man in one eye is not enough to procure
this obstacle to the reception and exercise of orders, the
eye must be removed.49 There may be a grave sin in a
marring of any principal member and still there may not
be mutilation, as, for instance, to cut off a part of a
finger is undoubtedly a grave sin, yet in the opinion of
canonists it is not sufficient to produce irregularity.50
A notable and effective mutilation inflicted on one's
own body is akin to suicide, and when perpetrated on an-
other it is akin to homicide. The dominion over the
members of the body, as over the whole body, belongs to
God the Creator alone. Man is constituted of 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 power 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
means to attain an end, it is moreover a voluntary ac-
tion. An indirect mutilation is one in which the mutila-
tion is the natural effect of the act, but the intention is
directed toward another end. Such an act is licit pro-
vided the usual conditions of double effect are present.
All direct mutilation, unless for the good of the whole
body, implies a deordination; it offends against the su-
preme dominion of God, who reserves to Himself, as
Creator, ownership of human life and its organs. As we
may not destroy life, which belongs to God, we may not
amputate a member to suppress a vital function. The
exception which permits us to mutilate a member or or-
gan, is, as we have said, the adequate good of the whole
body. The reason for this is that man is the administra-
49
St. Alphon. op. cit., I. c. n. 382.
50 Suarez, De cen., disp. 44, sec. 22.
IRREGULARITIES ARISING FROM CRIME
59
tor of his members, to the good of the whole person.
Each member is not for itself, but for the whole person.
We may not castrate a man, or perform vasectomy, to
preserve his continence, because there is no immediate
subordination and connection between the members of
the body and the salvation of the soul.
A eunuch is not irregular, according to the accepted
view.5 It does not matter whether he became afflicted
with this corporeal blemish as the result of an injury, or
was born with this defect. If he performs such an op-
eration upon himself, or another without sufficient rea-
son he is affected by irregularity.
God has reserved to himself direct dominion over life;
He is the owner of its substance, and He has given man
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 entrusted to
his care, and the possibility of attaining his final end.
For a sane man to deliberately attempt to take his own
life, he must, as a general rule, first have annihilated
himself in the spiritual life, since suicide is an absolute
contradiction to everything that the Christian religion
teaches us as to the end and object of life, and except in
cases of insanity, is usually the natural termination of a
life of disorder, weakness and cowardice.
An action which has some good and immediate impor-
tant effect is not unlawful, even though the performance
of such an action may cause ones death, it being pre-
sumed, of course, that suicide is not intended.
We are obliged to take ordinary precautions to pre-
serve our lives and to act otherwise would be tantamount
to the actual commission of suicide. There is no obliga-
tion to take extraordinary, unusual, or very painful or
expensive means to preserve our lives.
51 Wernz, op. cit., vol. II, n. 146. Ferreres, Compendium Theol.
Moralis, vol. II, n. 899.
60
IRREGULARITIES ARISING FROM CRIME
Not every attempt to take ones own life will give rise
to this irregularity. The attempt should be gravely sin-
ful, consequently any circumstance that would excuse
from mortal sin, would excuse one from the incurrence
of this irregularity.52
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 body.
VI.
IRREGULARITY ARISING FROM THE EXERCISE
OF MEDICINE AND SURGERY.
It is forbidden to clerics to practice medicine or sur-
gery, without apostolic induct.53 Clerics practicing
medicine or surgery, in spite of this prohibition, are ir-
regular, if thereby the death of a person is caused.54
In the early days of Christianity, it appears that
clerics were permitted to practice medicine or surgery
with impunity. It is true, that general laws may be
found, which forbade clerics to engage in secular pur-
suits. However, in spite of these general injunctions, it
was not uncommon for clerics to practice the arts of
medicine and surgery. Abuses undoubtedly arose, and it
became necessary for 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-
jects.5 The custom in monasteries of teaching medi-
cine and public law, was first condemned in the twelfth
century.56 In the Corpus Juris Canonici, C. XXXII 3, d.
I, may be found legislation which forbids clerics to at-
tend the public lectures in medicine and law, which were
given in the universities. The reason brought forward
is that clerics who devote themselves to such studies
55
52 Noldin, op. cit., vol. II, n. 421. Cod. Jur Can. can. 986.
53 Canon 139, n. I.
54 Canon 985, n. 6.
55 Cf. C. 5, Conc. Claremont, a. 1139; Wernz, op. cit., n. 221.
56 Wernz, op. cit., 1. c.
IRREGULARITIES ARISING FROM CRIME
61
readily lost sight of the purpose for which they were
elevated to their state in life. This prohibition however
forbade attendance at public lectures, hence clerics were
permitted to follow medicine privately, or teach it pub-
licly. The council of Tours issued a like prohibition, in
the year 1163,57 to prevent regulars from departing from
their cloisters under pretext of attending university
courses, and to keep seculars reminded of their obliga-
tion of residence. This law was extended by Honorious
III to all ecclesiastics having a church dignity.58 This
discipline was inserted by Boniface VIII in his canonical
compilation.59 This discipline is not binding on those
clerics who pursue the studies of medicine and surgery
privately. The penalty imposed for violation was ex-
communication ipso facto. The Fourth Council of the
Lateran, in the year 1215, forbade to clerics the practice
of medicine, in cases of amputation or burning. It
would seem that this irregularity is contracted ipso facto
if death results from the ministration of a cleric. Before
the new law, a cleric, according to the common opinion,
could, in case of necessity, and where danger of life was
not involved, practice medicine, through pity and charity
toward the poor, in default of ordinary practitioners.
If a death resulted, as a consequence of such practice,
the incurrence of irregularity was considered doubtful,
and a dispensation ad cautelam was obtained.
Regulars living in a missionary country, where doc-
tors are scarce, have, by virtue of the Bull of Clement
XII, "Cum Sicut," a. d. 1734, the faculty of practicing
medicine. To make use of this privilege, however, they
must be skilled in the medical profession, and give their
services gratis. They may not practice medicine for the
sake of gain and there must always be a dearth of doc-
tors. Regulars who, according to their institute, have
care of hospitals, may not exercise the art of medicine
outside of their own institutions. It is a rather difficult
procedure for a cleric to obtain an apostolic indult to
57 Can. 8, Conc. Thronensis.
58 Wernz., op. cit., n. 221.
59 Wernz. 1. c.
62
IRREGULARITIES ARISING FROM CRIME
practice medicine or surgery. Generally, the ordinary
is consulted concerning the skill and qualities of the one
seeking such an indult. The lack of lay doctors always
plays an important part in the granting of such an in-
dult. An indult to practice surgery is much more diffi-
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 re-
sults from his administrations.60
This irregularity affects clerics alone. Physicians, it
is true, desiring to enter the clerical state, must be dis-
pensed ad cautelam, but only by reason of the danger of
having incurred irregularity as a result of mutilation.61
It might be emphasized that the Code says that death
must follow from the exercise of medicine and surgery
before irregularity is contracted. Consequently, a cleric
could exercise these forbidden arts and be the possible
occasion of death to another, however, he does not be-
come irregular 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 poor. In cases where a cleric
had formerly been a physician, he may not practice
medicine, except through necessity, without obtaining a
papal indult, which is generally not granted except for
an impelling cause. (Bened. XIV, "De Syn. Dioec." I, 3,
c. 10).
VII.
IRREGULARITY ARISING FROM THE ABUSE OF ORDERS.
In the new law the following are irregular, by reason
of their crime: Men who usurp the exercise of an act of
orders, which is reserved to those who have received
sacred orders, and also clerics in sacred orders who exer-
cise such an act of major orders after they have been for-
60 Noldin, vol. III, n. 735.
61 Benedic. XIV, "De Syn. Dioec." I, 13, c. 10.
IRREGULARITIES ARISING FROM CRIME
63
-
bidden to do so by canonical penalty, either personal, or
local, corrective, or punitive.62
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-
ment.63
In the first place, it may be noted that this irregularity
affects not merely those in the clerical state, but laymen
as well. Consequently, a layman would become irregu-
lar should he take the part of a deacon, or sub-deacon in
a solemn mass.
A person, even though only initiated into the clerical
state, by tonsure, does not become irregular 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 permitted for such a one to em-
ploy the maniple, however, when acting as subdeacon.*
A usurpation of sacred orders is required before this
irregularity is contracted; consequently one who exer-
cises minor orders which he does not possess does not
become irregular, as, for instance, should he bless fruits
and bread, practice exorcism, etc. A person acting in
such a manner commits a grave sin, indeed, but is not
affected by the canonical obstacle
It is necessary according to Nolden,65 in usurping the
exercise of sacred orders which a person does not poss-
ess, that he employ solemnly all the reserved ceremonies
and peculiar ornaments of that order, before irregularity
- is incurred.
Solemnly, according to Laurentius, denotes such an
action as the consecration of the Eucharist, sacramental
absolution, or, if the act is able substantially to be per-
formed by a lay person, the employment of the vest-
ments reserved to one in sacred orders. Consequently,
62 Canon 985, n. 7.
63 Wernz, op. cit., n. 136, note 334.
64 S. C. R., 17 Jul., 1894, n. 3832.
65 Noldin, op. cit., vol. III, n. 678, c.
64
IRREGULARITIES ARISING FROM CRIME
one acting as a deacon singing the gospel in a solemn
mass, with a dalmatic, but without the stole, or one act-
ing as a subdeacon singing the epistle with the tunic, but
without the maniple, does not solemnly exercise an act of
sacred orders. The Code however does not say that the
solemn exercise of orders is required, consequently the
opinion of Noldin cannot be upheld.
A priest contracts irregularity who exercises a ponti-
fical function, as to consecrate a church or chalice, confer
tonsure or minor orders. Likewise, a deacon who at-
tempts to absolve a penitent, and a subdeacon who at-
tempts to confer baptism solemnly, or who sings the gos-
pel with a stole, or who supplies the ceremonies at bap-
tism. A cleric in minor orders is also irregular who sings
the epistle with maniple. The reason of this is that all
these exercise a major order which they do not possess.
A simple priest who, without jurisdiction, absolves
sacramentally does not incur irregularity. The same is
true of a deacon, who, without authority of the pastor,
baptizes solemnly or administers holy communion. These
do not exercise sacred orders which they do not possess.
The second class of persons who are affected by this
irregularity, are clerics in sacred orders. Should such
a one exercise an act of sacred orders forbidden to him
by reason of an ecclesiastical penalty, he becomes irregu-
lar.
In the ancient law, excommunication was of two kinds,
major and minor. A minor excommunication was a gen-
eral prohibition from receiving the sacraments. In or-
der to receive the Eucharist and the other sacraments
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
impediment. Sacerdotem minori excommunica-tioni
ligatum non fieri irregularem celebrando.66 Gasparri
makes the following comment upon this law.67 "Et
66 In cap. ult. De clerico excomm. in Decreto.
67 Gasparri, op. cit.
IRREGULARITIES ARISING FROM CRIME
65
proinde supponimus secus esse, si fuerit majori excom-
municatione irretus."
Minor excommunication was practically identical with
the condition of the penitent in the early stages of the
Church's existence, who, before he could be reconciled,
was admitted to public penance. Unlawful intercourse
with the excommunicated persons gave rise to the so-
called minor excommunication. By dint of various cir-
cumstances, however, great difficulties arose, especially
after excommunications had become so numerous. Mar-
tin V, by the constitution, "Ad evitanda scandala,”
(1418), restricted the aforesaid unlawful intercourse to
that held with those who were formally known as per-
sons to be shunned, and who were, therefore, known as
vitandi, and with those who were notoriously guilty of
striking a cleric. But as this twofold category was in
modern times greatly reduced but little attention was
paid to minor excommunication, and eventually it ceased
to exist after the publication of the constitution, "Apo-
stolicae Sedis". The latter declared that all excommuni-
cations "latae sententiae" that it did not mention were'
abolished, and, as it was silent concerning minor excom-
munications (by its nature, an excommunication "latae
sententiae" of a special kind), canonists concluded that
minor excommunication no longer existed. This conclu-
sion was formally ratified by the Holy Office (6, Jan.,
1884).
Major excommunication is the only kind which now
remains in force, and gives rise to an irregularity, if an
excommunicated person in sacred orders exercises his of-
fice.
In the new law, an excommunicated priest is prohibit-
ed from celebrating the sacrifice of the mass and admin-
istering the sacraments and sacramentals, with the fol-
lowing exceptions:
The faithful are permitted, to ask, for any good rea-
son, an excommunicated priest to administer the sacra-
ments and sacramentals, especially when there are no
other ministers, in which case the excommunicated
priest who is asked to administer the sacraments may do
66
IRREGULARITIES ARISING FROM CRIME
so, nor is there any obligation for the priest to ascertain
the reason of the request.68 By reason of this canon, a
priest who administers the sacraments, under the above
conditions, would be excused from irregularity.
The faithful may only in danger of death ask for sac-
ramental absolution from an excommunicatus vitandus,
as well as from another excommunicated priest whose
excommunication was pronounced in the ecclesiastical
court by either condemnatory or declaratory sentence, in
accord with canons 882 and 2252, and also if there are
no other ministers present for the other sacraments and
sacramentals.69 Consequently priest excommunicatus
vitandus, or one excommunicated by a condemnatory or
declaratory sentence, incurs irregularity, if he exercises
his office, except in the danger of death, and where re-
course can be had to no other minister. Danger of death
is to be interpreted in a broad sense, and is not to be con-
fused with the actual moment of death.
(II). An interdict is a censure by which the faithful,
though remaining in communion with the Church, are
forbidden to participate in certain sacred functions.70
The prohibition is made either directly, by means of a
personal interdict which forbids some particular indivi-
dual the use of the specified holy things, or indirectly, by
means of a local interdict which forbids the administra-
tion or reception of some sacraments or sacramentals in
certain places. The personal interdict follows the indi-
vidual wherever he may happen to go; the local interdict
does not bind outside the interdicted place; however in
that particular place in which it is in force it affects all
persons, even outsiders and exempt persons, unless they
have a special privilege. The Holy See alone can issue
a general interdict, either local for the territory of a
diocese or country or personal, for the people of the dio-
ese or country; the bishop (not the ordinary) may issue
68 Canon 2261, n. I.
69 Canon 2261, N. II.
70 Cod. Jur. Can. canon, 2268.
IRREGULARITIES ARISING FROM CRIME
67
a general interdict for a parish or its people, and a parti-
cular interdict both personal and local."¹
71
According to Gasparri," a cleric who violates the pro-
hibition of a local interdict whether general or particu-
lar, by performing an act reserved to one in sacred or-
ders, is irregular. The local interdict whether general or
particular, does not forbid the administration of the Sac-
raments, but it does forbid in that place any Divine ser-
vices or rites with the following exceptions. On Christ-
mas, Easter, Pentecost, Corpus Christi, and the Assump-
tion of the Blessed Virgin Mary, the local interdict is
suspended, and only the conferring of orders and the
solemn blessing of marriage are forbidden.73
A cleric not personally interdicted does not incur ir-
regularity if he violates a local general interdict holding
Divine services and sacred functions in any church or
oratory, provided this be done privately and behind clos-
ed doors, in silence and without ringing of bells.74
It is certain that if a cleric personally interdicted, ex-
ercises sacred orders, irregularity is contracted.75 Cardi-
nals do not incur penalties unless they are explicitly
mentioned, and the same applies to bishops in reference
to suspensions and interdicts latae sententiae.76 It is
patent that a cleric affected by a particular personal in-
terdict would contract a twofold irregularity, who would
exercise his divine office in a place under interdict,
whether the latter be general or particular."
(III). Irregularity arising from the violation of sus-
pension was first decreed about the twelfth century.
"Sciturus quod si, suspensione durante, damnabiliter in-
gesserit se divinis, irregularitatis laqueo se involvit, se-
cundum canonicas sanctiones, a qua nonnisi per Sum-
mum Pontificem poterit liberari"78 In another place of
71 Cod. Jur. Can. canon 2269.
72 Gasparri, op. cit., N. 356.
73 Cod. Jur. can. canon 2270, N. 2.
74 Cod. Jur. Can. canon 2271.
75 Gasparri, op. cit., N. 356.
76 Cod. Jur. Can. canon 2227.
77 Gasparri, op. cit., 1. c.
78 C. I, De sent. et re jud., II, IXIV in 60.
68
IRREGULARITIES ARISING FROM CRIME
the same work we read, "Caveant autem ecclesiarum
praelati et judices universi ne praedictam poenam sus-
pensionis incurrant; quoniam si contingeret eos sic sus-
pensos divina officia exequi sicut prius, irregularitatem
non effugient juxta canonicas sanctiones, super qua
nonnisi per Summum Pontificem poterit dispensari."79
Suspension is ordinarily a censure, since it is gener-
ally a medicinal punishment, inflicted after admonitions
and intended to amend the delinquent, yet it is not neces-
sarily so for it is occasionally employed as a chastisement
for past offenses.
Many maintained prior to the new law that only the
violation of suspension as a censure gave rise to this ir-
regularity.80 Others were of a contrary opinion,81 and
some, as St. Alphonsus, drew a distinction.82 "Si sus-
pensio infligatur per modum statuti aut praecepti ob
crimen futurum, vel etiam praeteritum, sed habens trac-
tum successivum." If these conditions were fulfilled ac-
cording to the tenets of the opinion of St. Alphonsus ir-
regularity was contracted. However they denied the
existence of an irregularity,"si suspensio fertur ab ho-
mine per sententiam ob meram punitionem criminis om-
nino praeteriti." There was a very probable opinion at
least that a violation of a vindictive suspension did not
beget this irregularity.83 An exception, of course, was
made of the case in which a clause is explicitly added,
declaring one irregular who violates such a suspension.
In the new law, canon, 987, N, 7., states that clerics
in sacred orders who exercise such an act of orders after
they have been forbidden to do so by canonical penalty,
either personal or local, corrective or punitive, incur ir-
regularity.
A lay person or a cleric who, in spite of a censure,
would dare to receive tonsure, or be advanced to a high-
79 Ibid.
80 D' Annibale, in comm. const. Apostolicae Sedis, n. 12 and in
the Summula, I. n. 357, 386.
81 Suarez, De censuris, disp. XXVI, sect. II, n. 4.
82 S. Alph., VII, n. 314.
83 D' Annibale, I, n. 386; Genicot, theol._moral., vol. II, n. 633,
not. 3.
IRREGULARITIES ARISING FROM CRIME
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-
hibited. The reason of this is that the individual in ques-
tion does not exercise a forbidden order. This discipline
was introduced by Benedict XIV.84 "Apud omnes canon-
istas principii loco est irregularitatem a sole jure et non
ab homine induci posse; a jure autem irregularitate
quidem afficiuntur, qui contempta, qua ligantur, censura,
in suscepto ordine solemniter ministrant; nunquam vero
irregulares pronuntiantur qui cum ejusdem censurae
vinculo ad superiorem ordinem ascendere prae sumunt.
Scimus enimvero non defuisse doctores, quibus visum
cum fuerit ascensum ad altiorem ordinem quoddam esse
exercitium inferioris ordinis jam suscepti, idcirco do-
cuere irregularitatem a jure in primo casu irrogatam
etiam secundum complecti. Sed simul non ignoramus
veriorem et communiorem esse sententiam oppositam
quae, quamquam sacrilegii reum fateatur, qui sciens se
censurae vinculo obstrictum, superioris ordinis gradum
audacter conscendit, eum tamen ab irregularitate absol-
vit."
A cleric exercising sacred orders who is affected by the
so-called suspensus a Deo,85 is not irregular. The same
is true of a cleric who violates a suspension imposed by
reason of some defect of 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-
son himself under censure incurred irregularity, if he
should compel another to perform the sacred acts of the
ministry. The more accepted opinion holds that such
a one is not affected by irregularity, because irregularity
is incurred only by the one actually violating a canonical
penalty.86
84 Benedictus XIV, De syn., XII, III, n. 7.
85 Cf. Faganus, in I. part. tertii Decretal. de cohabit. cler. et
mulier. cap. Quaestitum n. 22. Suspensionem Dei vocant, quam
affert quolibet peccatem mortale, quod, quamdiu non eluitur, im-
pedit a sacris tum recepiendis tum administrandis.
86 D' Annibale, I, n. 411, n. 26. Suarez, De censuris, disput.
XXXIV, sect. IV. Cod. Jur. Can. can. 985 n. 7.
70
IRREGULARITIES ARISING FROM CRIME
A cleric who performs an act of sacred orders, which
is forbidden under penalty of incurring a canonical pen-
alty, is not irregular, even though he sins gravely and is
affected by the punishment. A cleric must already be
under a canonical penalty, in order to contract this ir-
regularity.87 The same holds true of a cleric violating a
suspension, which evidently is invalid.88
A bishop suspended from conferring orders, is not ir-
regular, if he gives 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.
A bishop suspended from the use of pontifical insignia,
is irregular if he performs any function for which the
rubrics prescribe such insignia. This holds even though
he perform such a function without his pontifical in-
signia. The reason is that a suspension from the use of
such insignia implies, indirectly and per accidens, a pro-
hibition to perform any function in which the same is
wont to be employed. Should a bishop appear in ponti-
fical attire at other functions he is not irregular.89
Finally, a cleric must exercise an order in a serious
manner and not jocosely. A priest feigning such a viola-
tion would be irregular, if the performance of the for-
bidden act, was not vitiated through lack of intention in
the minister. If the act is null through defect of inten-
tion, the incurrence of irregularity is at least doubtful,
however a dispensation should be obtained.⁰⁰
As the Church cannot deprive a suspended cleric of
the power of sacred orders, but only forbids their use, it
follows that acts of sacred orders remain valid after sus-
pension. On the other hand, acts of jurisdiction become
null and void, after a suspended cleric has been denounc-
ed by a condemnatory or declaratory sentence, because
the Church has power to deprive one totally of jurisdic-
tion. A priest suspended from the exercise of orders
87 Suarez, I. c., disp. XXXI, sect. I, n. 71. D' Annibale, I, n. 411,
n. 24; Gasparri, op. cit. n. 366.
88 Gasparri, op. cit., I. c.
89 S. Alph., VII, n. 314; D'Annibale, 1. c. Schmalz., V, XXVII,
n. 31; Gonzalez, in comm. cap. 4, De clerico excomm. n. 4.
90 Gasparri, op. cit., n. 370.
IRREGULARITIES ARISING FROM CRIME
71
would absolve validly, in the sacrament of penance, but
is affected by irregularity as the result of such action.
VIII.
NECESSARY CONDITIONS FOR THE CONTRACTING
OF IRREGULARITY EX DELICTO.
Irregularities arising from the commission of crime
are not incurred unless they are mortal sins, committed
after baptism, or in Baptism, as enumerated in canon
985, n. 2, and external acts, whether public or occult.91,
Therefore every circumstance, which would excuse a
person from the commission of mortal sin would excuse
him from contracting an irregularity ex delicto.
By the word crime, in ecclesiastical law, is meant an
external and morally imputable violation of a law, to
which a canonical sanction has been attached, at least
indeterminately.92 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 use of reason, B) those habitually
insane, even though they occasionally have lucid inter-
vals, or appear to be rational on certain subjects; C) a
person who became drunk voluntarily is somewhat re-
sponsible, but in a less degree than if the same offense is
committed by a person fully in control of his senses, un-
less drunkness was sought deliberately for the purpose
of committing the crime, or to excuse it. Should a per-
son violate the law while involuntarily drunk, there is no
responsibility at all if the intoxication deprived 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 responsibility of
an offense, but does not take it away altogether.93
91 Canon 986.
92 Canon 2195, n. I.
93 Canon 2201.
72
IRREGULARITIES ARISING FROM CRIME
The other circumstances excusing from irregularity
have already been noted in Chapter III.
Irregularity ex delicto presupposes a grave fault, for
the reason that is was instituted, "quasi poena gravis-
sima," although as noted before, it is not a true and
real punishment.
The fault committed must be grave not merely in the
internal, but in the external forum. The jurisdiction of
the internal forum deals with questions concerning the
welfare of individual Christians and with their relation
to God. Hence it is also called the forum of conscience
(forum conscientiae). The church's jurisdiction 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 powers exercised
by civil magistrates in affairs belonging to their compe-
tence. While the external forum may busy itself with the
concerns of individuals, it does so in so far as these affect
the public good. The Church has declared that irregu-
larity shall accompany the commission of certain exter-
nal acts, since they affect the good of the clerical state.
Finally, it may be noted that provided the act is exter-
nal, it does not matter whether the crime is public or oc-
cult. Consequently if the individual committing any of
the crimes which beget irregularity, were the only one
cognizant of such an action, he would still be bound by
the ecclesiastical law.
94 S. Alph., VII, n. 348; Suarez, de censuris, disp. XL, sect. III,
n. 17; D'Annibale, I, n. 409; Schmalz, V, XXXVII, n. 76; Layman,
lib. I, tract. V, pars. V, cap. I. N. 4.
SIMPLE IMPEDIMENTS
73
CHAPTER V.
SIMPLE IMPEDIMENTS.
In the new law we find a distinction made between ir-
regularities and simple impediments. This division was
adopted by some authors,¹ even prior to the publication
of the new law. However, many of the recognized can-
onists adhered to the older interpretation, and failed to
make the distinction as we find it to-day.2
The essential difference between irregularity and a
simple impediment to ordination consists in this: Irregu-
larity is a perpetual obstacle to ordination and can only
cease through dispensation, a simple impediment is of a
temporary nature and may cease ipso facto without dis-
pensation, when the cause which gave rise to such an im-
pediment no longer exists.
No one but the Roman Pontiff is able to constitute ir-
regularities, for the reason that they perpetually exclude
one from the reception of orders. A bishop may for a
just cause, and for the good of the clerical state, demand
certain qualifications of aspirants to the priesthood, in
his own diocese. He may likewise exercise special pre-
caution in particular cases. In the present chapter, we
shall confine ourselves to a discussion of the simple im-
pediments found in the new code of Canon Law.
3
I.
4
The following are forbidden to be ordained as a result
of an existing impediment: The sons of non-Catholics, as
long as their parents persist in their error. In the old
law, this simple impediment was comprehended under the
irregularity arising from heresy. Children were held to
be irregular as far as the second degree in the paternal
I Gasparri, op. cit., N. 156.
2 Wernz., op. cit., N. 95, sq.
3 Gasparri, op. cit., N. 478.
4
Canon 987, n. 1.
}
74
SIMPLE IMPEDIMENTS
line, and to the first degree in the maternal line, if their
parents were heretical.5
Concerning this impediment to orders, Pope Alexander
IV legislated thus: "Haeretici autem, credentes, recep-
tatores, defensores et fautores eorum ipsorumque filii
usque ad secundum generatonem ad nullum ecclesiasticum
beneficium seu officium publicum admittantur. Quodsi
secum actum fuerit, decernimus irritum at innane."
However this decree was subsequently changed by Boni-
face VIII, who enacted the following legislation: "Statu-
tum felicis recordationis Innocentii et Alexandrii praed.
Nostr., ne videlicet haeretici, credentes, receptatores, de-
fensores et fautores corum ipsorumque filii usque ad se-
cundam generationem ad aliquod beneficium ecclesiasti-
cum seu officium publicum admittantur, quodsi secus ac-
tum fuerit, sit irritum at inane, primum et secundum gra-
dum per paternam lineam comprehendere declaramus,
per maternam vero primum dumtaxat volumus hoc ex-
tendi.'
The reason why this impediment was instituted was
that the offspring of heretical parents is frequently influ-
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-
tics, apostates, schismatics but infidels as well. Conse-
quently a child born of Hebrew parents is affected by this
simple impediment. It does not matter, moreover,
whether both the parents are in good faith, the impedi-
ment is contracted ipso facto.
Before the new law canonists generally adopted the
view that children were not affected by this impediment,
if they were born anterior to the deflection of the pa-
rents.⁹ 9
It would seem that this interpretation could still
be applied to the new law.
5 Wernz, op. cit., vol. III, n. 139.
6 C. IV, de temporibus ordinationem et qualitate ordinandorum,
I, 9, in VI°.
7 C. 15, de haereticis, V, 2, in Vi°.
8 Wernz, op. cit., vol. III, n. 139.
9 Ibid.
SIMPLE IMPEDIMENTS
75
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
nevertheless be affected by the impediment.10
An illegitimate son of a non-Catholic father or mother
is also subject to this impediment, as the law does not
distinguish. In the case in which the father or mother is
unknown and there is a doubt as to whether they were
non-Catholics or not, the child would require a dispensa-
tion ad cantelam from the irregularity ex defectu nata-
lium. The Ordinary, as will be seen in a subsequent
chapter, is able to dispense from the doubtful impediment.
On the 16th of October, 1919, a doubt was proposed
concerning canon 987. Utrum, ad normam can. 987, im-
peditis adnumerandus is, cujus pater vel mater tantum
est acatholicus, alter parens catholicus. Et quatenus af-
firmative, an etiam eo in casu, quo matrimonium mixtum
datis cautionibus cum dispaensatione in hoc vetito con-
tractum fuit. The response given was: Affirmative in
omnibus. (Acta op. Sed.)
II.
Married men, during the time of their marriage, are
forbidden to be advanced to orders.11 Clerics in major
orders, are, in the Latin Church, bound to celibacy.
Among the major orders are to be enumerated: The
Episcopate, the Priesthood, the Diaconate, and the Sub-
diaconate.12
This irregularity ceases, if the marriage is dissolved
by the death of the wife and in the case where the mar-
riage remains ratified only, by solemn religious profes-
sion. A man converted, is not at liberty by virtue of 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 requir-
ed by law, but be unwilling to be converted. If the infidel
wife is unwilling to conform to this, the converted hus-
10 Noldin, op. cit., vol. III, n. 679.
II Canon 987, n. 2.
12 Cod. Jur. Can. canon, 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,
and never without the consent express or tacit, of 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
to exercise such orders.¹
13
III.
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
responsibility arising from the same.¹4
The Church has always been desirous of keeping her
clergy free from secular affairs. This desire is based on
St. Paul's exhortation to Timothy: "No man being a sol-
dier to God entangleth himself with secular business.15
As early as the year 348, legislation may be found con-
cerning clerics bound to responsibilities as the result of
holding certain offices.16 "Magnus Episcopus Auguste-
nensis dixit: 'Procuratores, actores, executores seu cura-
tores pupillorum si debeant ordineri' Gratus Episcopus
dixit: Si post deposita onera et reddita ratiocinia actus
vitae ipsorum fuerint comprobati in omnibus, debent cum
laude Dei, si postulati fuerint, honore numerari. Si enim
ante libertatem negotiorum vel officiorum fuerint ordi-
nati, ecclesia infamatur, Universi dixerunt: Recte sta-
tuit Sanctitas vestra ideoque ita est nostra sententia."
(Popes Gregory IX and Gelasius enacted laws upon the
same subject).17 Secular affairs are very apt to cause a
priest to estrange himself from his divine vocation. Hence
the prohibition of officers, which, in themselves, are not
13 Cod. Jur. Can. canon, 132, N. 3.
14 Canon 987/3.
15 II Tim., II, 4.
16 Canon 8, Council of Carthage.
17 C. I, D. 53 and 54.
SIMPLE IMPEDIMENTS
77
incompatible with the dignity of the clerical state, yet,
because of their unwholesome effect upon the priestly of-
fice, should be accepted only in obedience to 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-
mand the consent of the ordinary. In number three of
the same canon, we find that clerics are not permitted,
without the consent of their ordinary, to be managers of
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.18 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
from their office, 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
danger of scandal, or other difficulty, the person cannot
be ordained.19 This distinction, however, has no founda-
tion in law.20 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 re-
nouncing an office forbidden to clerics may be advanced
to orders, before rendering an account, if, in the judg-
ment of the Ordinary, the creditor has been sufficiently
provided for, and there is no danger of a civil procedure
which would bring defamation to the Church.21
18 Schmalz, I, XXX, n. 3; Reiff, n. 7; Piring, n. 3; S. Alph., III,
n. 838.
19 Berardi, tom. IV, p. II, diss. IV, cap. IV.
20 Gasparri, op. cit., n. 553.
21 Schmalz, 1. c., n. 4; Piring, n. 3, S. Alph., III, n. 838.
78
SIMPLE IMPEDIMENTS
Clerics are forbidden to accept the offices of president,
director, treasurer, secretary of banks, even though these
be of a charitable or social type (rural or farmers' banks,
etc.) 22
The reason of this is that such offices would re-
quire the rendering of an account.
The Holy See alone has the power to permit one en-
gaged in a business forbidden to clerics to be advanced to
orders before he has settled his responsibilities.
permission is not readily obtainable.23
This
Should such a person be advanced to orders without
dispensation, he would sin gravely; but would not con-
tract censure or a new irregularity.24 A person ordained
under these circumstances must, as far as possible settle
all responsibility arising from his former office.
A bishop has the power of compelling a cleric to re-
linquish a forbidden office, should he accept it subsequent
to ordination. However before the bishop takes action a
cleric exercising such an office is not forbidden to per-
form the duties of the ministry.25
IV.
Slaves, properly so called, are forbidden to be ordained,
before they have obtained their liberty.2
26
The discipline of denying access to the clerical state to
slaves has existed from the earliest times.27 The reason
of this prohibition is that the state of slavery is not in ac-
cord with the dignity of the ministry, and, secondly, the
Church is unwilling to ordain a slave unless he has first
been manumitted by his master. The Code excludes only
slaves properly so called from the reception of orders. In
the Roman law, according to Ramsay, this state existed,
when a person was subjected, against nature to the own-
ership of another, either by fact or birth.28 Servants
22 S. C. Consist., Nov., 18, 1910, Acta Ap. S., II, 1910.
23 Schmalz, 1. c., n. ult.
24 Reiff, I, XIX, n. 11; Gasparri, op. cit., n. 555.
25 St. Alph., III, n. 838.
26 Canon 987/4.
27 Cf. Canon 81-Apostol.
28 Cf. Ramsay-Lanciai, Manuel of Roman Antiquities, 1901, p.
134.
SIMPLE IMPEDIMENTS
79
were designated mancipia when regarded as a piece of
property; venales, when held as a commercial commodity;
famuli when considered as domestics; servi, when regard-
ed as bound to fulfil the commands and desires of the
owner. These words were interchangeable, and indiscri-
minately employed. They all denote the condition of
slavery, properly so called.
From this condition of servitude must be distinguished
another, that of adscripti, who belonged only to an estate
or piece of property and could be sold only with the land.29
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
masters. Slavery, properly so called, has ceased to exist
in civilized countries, but flourishes in parts of Africa.
In the present discipline of the Church slaves properly
so called are never ordained. They are without that lib-
erty which is necessary to the ecclesiastical state, conse-
quently their condition is unbecoming the clerical life.
V.
Men bound to ordinary military service by the govern-
ment may not be ordained until the term of their service
has elapsed.30
Persons subject to a term of military service are very
apt to become corrupt in morals. Even after one has ob-
tained his discharge from the service, great caution
should be employed before he is advanced to sacred or-
ders.31,
In Canon Law, clerics enjoy personal immunity from
military service.32 This immunity has existed for cen-
turies and the Council of Trent appeals to civil govern-
ments to respect the privilege.33 The Syllabus condemns
29 Maschat, Praecurusus Juris Canonici, 1760, p. 15.
30 Canon 987, n. 5.
31 Gasparri, op. cit., n. 540.
32 Canon 121.
33 C. of Trent, Sess. 25, c. 20, De ref.
80
SIMPLE IMPEDIMENTS
the propositions that this privilege is a favor from the
civil authorities, and that it should be abolished.34 It is
but fitting and proper that the clergy be exempt from car-
rying and using arms. Their mission is one of charity
and forbearance, which is alien to bloodshed. The sac-
redotal 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.
In most countries, however, the obligation of military
service is incumbent 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 service.
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.
After a soldier has served his term, he is free to be or-
dained, provided he is not affected by any other irregu-
larity. This is true even though he may be eventually
recalled to the army.
The question was proposed to the Committee of Inter-
pretation for the new Code, whether this prohibition is
in force, in the case of a person not yet of military age,
and yet far enough advanced in studies to receive some
orders, or if a person has been called, and, after exami-
nation, declared temporarily unfit. Furthermore, it was
doubted whether this simple prohibition forbade the re-
ception of major orders only, or included minor orders
and first tonsure. The answer was that this simple im-
pediment is in force in the proposed cases, and affected
even first tonsure.
VI.
Neophytes may not be advanced to orders until they
34 Syllabus, n. 30, n. 32.
SIMPLE IMPEDIMENTS
81
are, according to the judgment of the Ordinary, suffici-
ently tried in their faith.35
The term neophyte is sometimes applied in theology to
persons who have lately entered upon a new and higher
condition or state of life, as those who have entered the
clerical state, made profession in a religious order. In
the present Canon, it denotes the state or condition of
those in adult life who have recently been converted to
Christianity and have been transplanted, by the sacra-
ment of Baptism, into the Church.
Prohibitions were decreed in the earliest days of the
Church against neophytes, in this latter sense, being ad-
vanced too quickly to the clerical state. St. Paul forbade
neophytes to be advanced to the bishopric, "Not a neo-
phyte; lest being puffed up with pride, he fall into the
judgment of the devil."36
The First Council of Nicaea, in the second Canon, lays
down rules on this subject, on the ground that some time
is necessary for the state of a catechumen, and for fuller
probation after Baptism. This period of probation, as
noted in the Code, is left to the discretion of the Ordi-
nary, and will vary with the individual case.
In the old law the condition or state of a neophyte con-
stituted an irregularity, "ex defectu fidei ratione baptismi
in aetate adulta recepti."37
This prohibition does not affect a person converted to
Christianity, if he has been baptized for a long time, and
is sufficiently instructed in the faith, and otherwise
worthy to be advanced to the clerical state.
VII.
The last class of persons affected by simple impedi-
ments are those who have lost their good reputation, as
the result of committing some public crime. If in the
judgment of the Ordinary they have regained their repu-
tation, they may receive orders.38
35 Canon 987, n. 6.
36 I. Tim. III, 6.
37 Gasparri, op. cit., n. 267, cumaliis.
38 Can. 987, n. 7.
82
SIMPLE IMPEDIMENTS
In the old law, infamy of fact, as well as infamy of law
produced an irregularity ex defectu.
Infamy of fact
is incurred when a person has lost his reputation with re-
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
Ordinary.39
This prohibition is not a punishment inflicted for a cer-
tain crime, but it is the natural consequence of a crime or
punishment.40 It is necessary as stated in the code, that
the cause of the infamy be public, for the reason that ac-
tual publication among sensible persons from a hidden or
occult cause, is unusual. Hence we read in C. 21, D.
XXVI: "Propter dicta paucorum eum infamatum repu-
tare non debet (judex) cujus apud bonos et graves laesa
opinio non existit"; also in C. 17, X Detemporibus ordi-
nationuum, I-II, "delictum deberet esse ordine judicio
comprobatum vel alias notorium; sed etiam opinionem
delicti vulgatam apud prudentes et honestas, gravibussue
indiciis innixam onerare existimationem, ex dicendis con-
stabit." Consequently the incurrence of this infamy of
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.41.
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 superveni-
entibus indiciis," or, "Ex hactenus deductis," or "Non
repertus culpabilis," etc.42 If the one accused of such a
crime were declared innocent by the judge, infamy of fact
is not incurred.43 A person under accusation, should not
be advanced to orders, pending the decision of the judge,
as Gregory IX decreed in Cap. 56, De testibus.
He incurs infamy of fact who receives a just punish-
39 Can. 2293, n. 3.
40 Thesaurus, De poenis, I, XXXIII, ab initio; Suarez, De vir-
tute et statu religionis, lib. IV, cap. LVÍ, n. 21.
41 Gasparri, op. cit., N. 306; Salm. X, VIII, n. 78.
42 From response of S. C. C. in Vigilieri, 23 Sept. 1613, Beneven-
43 S. C. C. in Bisacciarone, 11th. April, 1742, etc.
tura, 16 Agu., 1763, etc.
SIMPLE IMPEDIMENTS
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
commission of crime, but from the punishment inflicted.
such a punishment would be a sentence of forced labor or
imprisonment, etc.
In general, then, every infamy of civil law, penal or
otherwise, constitutes an infamy of fact in Canon Law,
except in those cases in which "infamia juris," is incur-
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 not. 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
grave theft. Other crimes would cause a person of high
estate to lose his reputation, but would not produce this
effect with others.44
Infamy of fact as found in the Code signifies infamy in
the proper sense, hence this impediment is not incurred
by a person exercising an unpopular office which does not
involve the commission of crime, for instance, a custodian
of 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-
ticular 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 life that his repentance is sincere. In the old law a pe-
riod of two or three years was deemed sufficient to estab-
lish this fact,45 now, however, the matter rests solely with
the Ordinary.
Infamy of fact, as is evident, does not necessarily cease
with the reception of Baptism.
44 D'Annibale, I, n. 121, note 20; Gasparri, op. cit., N. 308.
45 Cap. II, De clerico non ordinato ministrante.
84
SIMPLE IMPEDIMENTS
VIII.
In the old law it was a much controverted question
whether ignorance excused a person from contracting an
irregularity, on 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 à crime was
necessary before irregularity was incurred.46 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 irregu-
larity 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.
47
In the new law ignorance of the irregularities both ex
delicto and ex defectu, and of the simple impediments, is
not admitted as an excuse.48
(A)
Ignorance in Canon Law may be classified thus:
Ignorance of law, when one is unaware of the existence of
the law itself, or at least that a particular case is com-
prised under its provisions. (B) Ignorance of the fact,
when not the relation of something to the law, but the
thing itself or some circumstance is unknown. (C) Ig-
norance of penalty, when a person is not cognizant that
a sanction has been attached to a particular crime.
The law concerning irregularity and simple impedi-
ments is an inabilitating one, and no ignorance of in-
validating or inabilitating laws excuses unless the law ex-
plicitly admits ignorance as an excuse.49 Consequently a
46 Suarez, disp. 40, sect. 5, N. 10: Bellarmini-Palmieri, Vol. III,
n. 619, etc.
47 D'Annibale, Vol. I, N. 312, note 75; Schmalz, Lib. V, țit. 37,
n. 109.
48 Canon 988.
49 Cod. Jur. Can. canon, 16.
SIMPLE IMPEDIMENTS
85
person who is ignorant 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 ex
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
action or inhabilitate a person to act, do not oblige in
doubt of law (dubium juriş); 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-
penses.50
IX.
Irregularities and impediments are multiplied by the
multiplication of the causes which produced the irregu-
larities and the simple impediments, an exception must be
made of the irregularity arising from voluntary homi-
cide.51
A priest under suspension who would commit homicide,
and celebrate mass, would be affected by two distinct ir-
regularities. (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
cases is affected by only one irreglarity. A person guilty
of two voluntary murders or abortions has incurred two
distinct irregularities.
50 Cod. Jur. Can. canon 15.
51 Canon 989.
86
THE CESSATION OF IRREGULARITIES
CHAPTER VI.
THE CESSATION OF IRREGULARITIES AND SIM-
PLE IMPEDIMENTS.
While irregularity is a perpetual impediment, it
may cease through revocation by the legitimate superior,
just as any other law. An obstacle to ordination which
can never cease to exist is not an irregularity properly so
called, since it does not proceed from Canon Law. This
revocation of the legitimate superior may occur in one of
the following ways: A) by abrogation of the law of irre-
gularity, as for instance, the irregularity arising from
rebaptism; B) by derogation, as when the law declared
that only one particular species of bigamy produced an
irregularity; and C) by dispensation. A dispensation is
required from all irregularities as they exist to-day.
Some canonists before the new law were of the opinion
that irregularity on account of crime was removed by
baptism, however this opinion cannot be sustained, since
a person is not capable of contracting an irregularity
prior to receiving that sacrament. Moreover, irregular-
ity arising from crime does not cease by absolution, be-
cause it is not a punishment properly speaking.
2
Since the laws on irregularity are ex jure communi,
the Roman Pontiff alone is able to abrogate or derogate
them.
In the matter of dispensation from irregularities, the
Pope has absolute jurisdiction. "Omnis res per quas-
cumque causas nascitur, per easdem dissolvitur." To
obtain this dispensation recourse must be had to the sa-
cred Congregation of the Sacraments, provided the irre-
gularity 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-
I Gasparri, op. cit., N. 209.
2 Gasparri, op. cit., N. 185.
•
THE CESSATION OF IRREGULARITIES
87
3
naries by law and special faculty. The Ordinaries are
permitted to dispense their subjects, or delegate others
to do so, from all irregularities incurred by secret crime,
except homicide, and abortion that is effective, and
crimes brought before court. This power was given to
bishops by the Council of Trent. Ordinaries comprise
all those enumerated under canon 198, and the vicar gen-
erals of vicars and prefects apostolic.
5
If the crime were public, or notorious the ordinary
has not the power to act, but must appeal to the congre-
gation of the Sacraments. The Ordinary, moreover, can
only use his dispensing power for his own particular sub-
jects. In a voluntary homicide which is public and no-
torious, the Pope himself rarely dispenses.
The term deductum ad forum (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-
cal. A crime is said to be deductum ad forum judiciale,
when it is laid before this tribunal. This takes place
through denunciation or accusation before a legitimate
judge. If the person concerned was declared innocent by
the judge, even though illicit means were 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 crime then becomes of its very nature public or
notorious. A crime is called, notorious by notoriety of
the law, after the sentence of a competent judge has be-
come a res judicata, that is, a sentence from which there
is no appeal, or after a confession made in court in the
presence of the judge."
The forum contensiosum must be a competent court.
This applies to both lay and ecclesiastical tribunals. Con-
3 Decree of the Sacred Consistorial Congregation, 25th. Oct.,
1918.
4 Canon 990, N. 1.
5 Council of Trent, Sess., XXIV, Cap. VI, de ref.
6 Cod. Jur. Can. canon 2197 N. 2.
88
THE CESSATION OF IRREGULARITIES
sequently those persons who enjoy the privilege of the
ecclesiastical forum, in accordance with canons 120, 614,
and 680, would not be considered as deductum ad forum
judiciale, if they were tried in a civil court for certain
crimes. In those cases only in which the civil authority
as well as the Church has the right to judge the case,
may a crime be considered as laid before the forum judi-
ciale. However when a crime has been brought to the
civil court for adjudication, the ordinary may lose his
faculty if the case is public.
The confessor enjoys the same faculty as the Ordinary,
in more urgent and occult cases, in which the Ordinary
cannot be asked, and there is imminent danger of great
harm or of infamy, which faculty can be made use of
only for the purpose that the penitent may licitly exer-
cise the orders he has received.
This faculty enjoyed by the confessor differs some-
what from that of the Ordinary. In the first place, the
case must be very urgent, to such an extent that recourse
cannot be had to the Ordinary. Secondly, there must be
imminent danger of great harm or of infamy. Finally,
the confessor has power to dispense a cleric, only from
irregularity, so as to allow him to licitly exercise the or-
ders he has received.'
8
The petition for dispensation from irregularities
should be wrtiten in either the Latin, Italian, French,
English, Portugese, or German languages, when the case
is public. In occult cases, the petition may be written in
any language. When the dispensation concerns the ex-
ternal forum the real name of the party may be employ-
ed, when it concerns the internal forum a fictitious name
should be used, as in all the petitions to the Penitentiary.
In the petition for dispensation, all irregularities and im-
pediments must be specified, otherwise a general dispen-
sation will be valid for irregularities concealed in good
faith, except voluntary homicide and effective abortion,
but it will not be valid for those concealed in bad faith.
When there is a question of voluntary homicide the ex-
7 Noldin, op. cit., vol. III, n. 680 d.
8 Gasparri, Tractatum Canonicum de Matrimonio, n. 352.
THE CESSATION OF IRREGULARITIES
89
9
act number of crimes must be specified, otherwise the
dispensation is invalid. A general dispensation is in-
valid therefore in those cases in which irregularities or
simple impediments were concealed in bad faith, and in
which the irregularities arising from voluntary homicide
or effective abortion were concealed even in good faith.
It expediates matters greatly if the petition for dis-
pensation has the recommendation of the Ordinary who
is to confer the orders. The brief or rescript is sent to
the Ordinary, when the case is public. When the rescript
concerns the external forum the execution must be made
in writing.10 The executor should observe all the condi-
tions found in the rescript. He is obliged moreover to
proceed as if he had received a mandate, and unless he
complies with the essential conditions found in the re-
script, and followed in substance the required mode of
procedure, the execution is invalid."
There must always be a just and reasonable cause,
when a dispensation from irregularity and simple impe-
diments is desired. Moreover due regard must always
be had to the importance of the law from which the dis-
pensation is given. When there is doubt as to the suffi-
ciency of the cause, a dispensation may be lawfully
sought, and licitly and validly granted.¹2
When a general dispensation is given to receive orders
it is generally valid for major orders also, and the per-
son who is dispensed can receive nonconsistorial bene-
fices, even those to which the care of souls is attached,
but he cannot be made a Cardinal, Bishop, Abbott or
Prelate Nullius, nor a major superior in clerical exempt
orders.13
A benefice is called consistorial if it is conferred in
consistory, others are known as nonconsistorial.14
Sometimes a limited dispensation is contained in the
rescript, as for instance, a person may receive permis-
9 Cod. Jur. Can. canon, 991, N. 1 and 2.
10 Cod. Jur. Can. canon, 56.
II Cod. Jur. Can. canon, 55.
12 Cod. Jur. Can. canon, 84.
13 Cod. Jur. Can. can. 991 N. 3.
14 Cod. Jur. Can. canon, 1411 N. 1.
90
THE CESSATION OF IRREGULARITIES
sion merely to receive minor orders or sub-deaconship.
A person obtaining a dispensation from irregularity or
simple impediment, to receive a benefice, cannot be ad-
vanced to an order higher than that which is necessary
to exercise the benefice. One dispensed to receive a cer-
tain order, may not accept a benefice which does not re-
quire the exercise 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 use of that or-
der, and receive, moreover, all the lower orders; just as
one dispensed to exercise major, may exercise minor or-
ders.15
Persons born illegitimately, even though legitimated
by the subsequent marriage of the parents, or made cap-
able of receiving orders and dignities by Apostolic dis-
pensation, are excluded from the Cardinalate. Likewise,
persons irregular, either ex defectu, or ex delicto, for ad-
vancement to orders, although rendered capable by dis-
pensation.¹ This is true of the bishopric, and abbots or
prelates nullius, and major superiors in a clerical ex-
empt order. To obtain any of these offices a special dis-
pensation is required.
Finally, a dispensation in the internal extra-sacramen-
tal forum must be given in writing, and record must be
made of it in the secret archives of the Curiae of the re-
spective Ordinary.
Besides the common archives there should be a strict-
ly secret one. The Ordinary should provide a secret
place where all documents of a private nature should be
retained. Those documents which appertain to criminal
cases and moral matters, and which concern deceased
persons, or to cases settled by a condemnatory sentence
over ten years old, should be taken out of the archives
each year and burned. A brief summary of the case
15 Schmalz., V, XXXVII, n. 125. Suarez, disp. XLI, sect. III.
16 Canon 232, Parag. II, n. I.
THE CESSATION OF IRREGULARITIES
91
with the text of the sentence alone should be preserved.¹r
No particular form is prescribed in the dispensation.
The following or similar words may be employed. "Dis-
penso tecum in irregularitate, quam ob hanc causam in-
curristi, in nomine Patris et Filii et Spiritus Sancti.
Amen.
On October 25th, 1918, the Sacred Congregation of Con-
sistory published 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
the world war. As a result some were unable to perform
the duties of their office 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 dispense their
priests from the irregularity arising from defect of body,
after the latter returned from the service. However, be-
fore exercising this power it is incumbent on the Ordinary
to conscientiously judge the fitness of the priest in ques-
tion, and this judgment is not to be made until he has pe-
rused a written testification from the master of ceremo-
nies. This latter should attest to the fact that the af-
flicted priest can without assistance and with decorum
observe the liturgical rules of the Mass. When there is
a more serious disability, or when there is a doubt, and in
all cases which do not concern priests, recourse must be
had to the Holy See. By the term Ordinarii locorum as
found in the decree, all those are included, mention of
which is made in canòn 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
killed or mutilated no matter how just their cause, were
affected with the irregularity ex defectu lenitatis.. Some
canonists maintained that an irregularity thus contracted
arose not merely ex defectu but ex delicto as well. This
opinion seems to be borne out in the new law. The
irregularity arising from voluntary homicide still exists
17 Canon 379, N. 1.
92
THE CESSATION OF 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-
narians, 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-
siastical office. If a cleric enlisted voluntarily in the
army or navy contrary to the rule laid down in canon
141, n. 1, it is presumed that he resigned the office for-
merly held by him: The fact must be borne in mind
when a dispensation is obtained that restoration of eccle-
siastical office is not effected.
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 through 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 re-
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 are affected by an irregu-
THE CESSATION OF IRREGULARITIES
93
larity 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-
fect 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
the validity of the action.
94
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its Practical aspects, Philadelphia, 1918.
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1901.
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rum et Curiarum Ecclesiasticarum, Romae, 1905.
Augustine, A Commentary on the New Code of Canon
Law, Vol. II. St. Louis, 1918.
Ballerini-Palmieri, Tractatus De Censuris et Irregulari-
tatibus, Vol. III, Prati, 1893.
Bargilliat, Praelectiones Juris Canonici, Paris, 1915.
Boenninghausen, Tractus De Irregularitatibus, Monas-
terii, 1863.
Capellmann, Medicina Pastoralis, Aquisgrani, 1890.
Capello, De Curia Romana, Romae, 1913.
D'Annibale, Summa Theologiae Moralis, Romae, 1891.
De Angelis, Praelectiones Juris Canonici, Romae, 1872.
Decretales Gregorii Papae IX, Romae, 1582.
Decretum Gratiani, Roma, 1582.
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Faganus, Jus Canonicum, Coloniae, 1676-1682.
Feige De Irregularitatibus, Louvanii, 1874.
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Ferreres, Institutiones Canonicae, Barcinonae, 1917.
Ferreres Compendium Theologiae Moralis, Barcinine,
1918.
Gasparri, Tractatus Canonicus De Sacra Ordinatione,
Paris, 1893.
Genicot, Theologiae Moralis Institutiones. Vol II, Lo-
vanii, 1912.
Gennari-Boudinhon, Consultations de Morale, de Droit
Canonique, et De Liturgie, Paris, 1907.
Hergen rother-Hollweck, Lehrbuch des Katholischen
Kirchenrechts, Freiburg I. B. 1905.
Hilling, Die Romische Curie, Paderborn, 1906.
Hollweck, Die Kirchenchen Strafgesetze, Mainz, 1899.
Laurentius, Institutiones Juris Ecclesiastici, Freiburg,
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Lehmkuhl, Theolgia Moralis, Vol. II, Freiburgi, Brisgo-
viae, 1910.
Maiolus, De Irregularitatibus, Romae, 1565.
Mansi, Amplissima Coll. Concil, Paris and Leipsig,
1901-1913.
Milash, Das Kirchenrecht der Morgenlandischen Kirche,
Mostar, 1905.
Noldin, Summa Theologiae Moralis, Vol. III, Oeniponti,
1919.
Ojjetti, Synopsis Rerum Moralium et Juris Pontificii,
Romae, 1911.
Omalley, The Ethics of Medical Homicide and Mutila-
tion, New York, 1919.
Papi, Religious Profession, New York, 1918.
Papi, The Government of Religious Communities, New
York, 1919.
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ersten christlichen, Jahrhunderten, Tubingen, 1872.
Reiffenstuhl, Jus Canonicum Universum, Venetiis, 1726.
Richert, Die Anfange Der Irregularitäten Freiburg, im.
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Sabetti-Barrett, Compendium Theologiae Moralis, New
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Sagmüller, Lehrbuch des Katholischen Kirchenrechts,
Freiburg, I. B., 1909.
Salmanticenses, Cursus Theologiae Moralis, Lugduni,
1879.
Schmalzgrüber, Jus Ecclesiasticum, Universum, Romae,
1845.
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Schulte, Handbuch des katholischen Kirchenrechts,
Giessen, 1855.
Slater, A Manuel of Moral Theology, Vol. II, New York,
1908.
Smith, Elements of Ecclesiastical Law, New York, 1878.
Taunton, The Law of the Church, London, 1906.
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UNIVERSITAS CATHOLICI AMERICAE
WASHINGTON, D. C.
S. FACULTAS-THEOLOGICA
1919-20
NO. 7.
DEUS LUX MEA
TITULI
QUOS AD DOCTORATUS GRADUM IN JURE CANONICO
CONSEQUENDUM PUBLICE PROPUQNABIT
JOANNES JOSEPHUS HICKEY
SACREDOS ARCHIDIOCESIS PHILADELPHIENSIS
JURIS CANONICI LICENCIATUS
Hora IX A. M. Die II Junii, A. D. MCMXX
TITULI.
1.
Introduction can. 1-7.
II.
De rescriptis can. 36-62.
III. De privilegiis can. 63-79.
IV.
De dispensationibus in genere can. 80-86.
V. De personis in genere can. 87-90.
VI. De domicilio can. 91-95.
VII. De clericorum adscriptione alicui diocesi
can. 111-117.
VIII. De juribus et privilegiis clericorum can.
118-123.
IX. De potestate ordinaria et delegata can. 196-
210.
X. De Vicario Generali can. 366-371.
XI.
De sacramentis in genere can. 731-736.
XII. De ministro baptismi can. 738-744.
XIII. De subjecto baptismi can. 745-754.
XIV. De ministro, subjecto, tempore, et loco con-
firmationis et de patrinis in confirmatione
adhibitis can. 755-769.
XV. De ordine in genere can. 948-950.
XVI. De ministro sacrae ordinationis can. 951-
967.
XVII. De requisitis in subjecto sacrae ordinationis
can. 973-982.
XVIII. De irregularitatibus et impedimentis in ge-
nere can. 983.
XX.
XIX. De irregularitabus ex defectu can. 984.
De irregularitatibus ex delicto can. 985.
XXI. De pecatis mortalibus in irregularitate ex
delicto can. 986.
XXII. De ignorantia in irregularitate et simplici
impedimento can. 988.
XXIII. De multiplicatione irregularitatum et impe-
dimentorum can. 989.
XXIV. De potestate dispensandi in irregularitati-
bus can. 990.
XXV. De precibus pro irregularitatum ac impedi-
mentorum dispensatione can, 991.
XXVI. De matrimonii natura ejusque divisione can.
1012-1015.
XXVII. Definibus matrimonii ejusque essentialibus
proprietatibus can. 1013.
XXVIII. De competentia in rebus matrimonialibus
can. 1016.
XXX.
XXIX. De iis quae matrimonii celebrationi prae-
mitti lebent praesertim de publicatione-
bus matrimonialibus can. 1019-1034.
De impedimentis in genere can. 1035-1042.
XXXI. De potestate dispensandi in urgenti mortis
periculo, et in casibus quando iam omnia
parata sunt ad nuptias can. 1043-1046.
XXXII. De impedimentis votorum simplicium et
adoptionis can. 1058-1059.
XXXIII. De impedimento mixtae religionis can. 1060-
1066.
XXXIV. De impedimento aetatis can. 1067.
XXXV. De impedimento impotentiae can. 1068.
XXXVI. De impedimento ligaminis can. 1069.
XXXVII. De impedimento disparitatis cultus can.
1070-1071.
XXXVIII.
XXXIX.
De impedimento raptus can. 1074.
De impedimento criminis can. 1075.
XL. De impedimento consanguinitatis can. 1076.
XLI. De impedimento affinitatis can. 1077.
XLII.
XLIII.
De impedimento publicae honestatis can.
1078.
De impedimento cognationis spiritualis et de
impedimento dirimenti adoptionis can.
1079-1080.
XLIV. De consensu matrimonii can. 1081-1093.
XLV. De matrimonii conscientiae can. 1104-1107.
XLVI. De separatione tori, mensae et habitationis
can. 1128-1132.
XLVII. De convalidatione simplici can. 1133-1137.
XLVIII. De sanatione in radice can. 1138-1141.
XLIX.
De secundiis nuptiis can. 1142-1143.
L.
LI.
LII.
LIII.
De oratoriis can. 1188-1196.
De iis quibus sepultura ecclesiastica con-
cedenda est aut denegranda can. 1239-
1242.
De causis matrimonialibus can. 1960-1998.
De causis contra sacram ordinationem can.
1993-1998.
LIV. De natura delicti ejusque divisione et impu-
tabilitate can. 2195-2211.
LV. De poenarum notione, speciebus, interpreta-
tione atque applicatione can. 2215-2219.
LVI. De censuris in genere can. 2241-2254.
LVII. De excommunicatione can. 2257-2267.
LVIII. De interdicto can. 2268-2277.
LVIX.
De suspensione can. 2278-2285.
LX. De crimine falsi can. 2360-2363.
Vidit Sacra Facultas:
JOANNES A. RYAN, S.T.D. p. t. Decanus.
PETRUS GUILDAY, Ph.D. p. t. a secretis.
Vidit Rector Universitatis,
THOMAS J. SHAHAN, S.T.D.
UNIVERSITY OF MICHIGAN
3 9015 06863 2127
484 <
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