Summa summae S. Thomae, Tomus II

DISSERTATION V ON THE MUTATION OF LAWS

St. Thomas, g. 97.

A law can be mutated in many ways: 1° by abrogation, if it be taken away in whole, or by derogation, if in part;

2° by cessation of its end; 3° by custom; 4° by dispensation; 5° by interpretation. Of all which we shall treat in this last dissertation.

Whence be it

I say 1°: The legislator, his successor or superior can abrogate a law, and a fortiori derogate from it; because it belongs to the same power to destroy and to build up.

[Benedict XIV, de Synodo dicc., lib. XIII, c. 5, n. 9, proposes this question, namely: « Whether it be within the competence of the bishop either to delete entirely the synodal constitutions made by himself, or to exempt anyone from them for a just cause, when the same have been confirmed by the authority of the supreme Pontiff? » Having related various opinions, he proceeds, n. 11: « The opinion of Fagnanus seems to be preferred to the others, in cap. Si quis, from n. 11 up to 24, de Confirmatione utili vel inutili, where he teaches that a distinction must be made between confirmation which they call in forma communi and confirmation in forma specifica. It is said to take place in forma specifica in the case of one to which is premised the examination of the cause and each statute is diligently weighed, and then, no condition being added, it is confirmed with apostolic authority, with the clause: motu proprio atque ex certa scientia. Statutes which are not examined singly, nor approved by the Pontiff motu proprio and ex certa scientia, and to which the strength of apostolic authority is not added absolutely but only conditionally, namely if they were made justly, canonically or providently, and provided that they do not run counter to the sacred canons, the Council of Trent, the decrees and apostolic constitutions, are said to be confirmed in forma communi; that latter condition, as the same Fagnanus testifies, n. 18, is wont today to be expressed and set before all confirmations of statutes in forma communi. But now, Fagnanus proceeds, once a statute has been confirmed in forma specifica, since it has put on the nature of a pontifical law, it is not lawful for any inferior to derogate from it. A statute however confirmed in forma communi remains within the competence of those standing to delete, and to withdraw anyone from its obligation for a just cause. For such confirmation bestows on them nothing of law or efficacy which they previously lacked. »]

I say 2°: A general law is considered revoked by a contrary general law. But a particular law, such as are the special customs, statutes and privileges of places, even if there is placed in the general law this general derogatory clause: « Notwithstanding any custom whatsoever, » etc., is not considered revoked unless special mention is made of it, or unless it is otherwise evident that this is the mind of the legislator. So Boniface VIII, cap. Licet, de constit. in 6°,

[Where he says: « Although the Roman Pontiff, who is considered to have all laws in the shrine of his heart, is known to revoke the prior constitution by enacting a later one, although he makes no mention of it; yet since the customs and statutes of special places and individual persons, being matters of fact and consisting in fact, he can probably be ignorant of them, he is not understood by a constitution newly issued by himself to derogate anything from them, so long as they are reasonable, unless provision is expressly made in it. »]

I say 3°: The adequate end of the law simply and absolutely ceasing, and in common, the law ceases; because 1° that is not a law which is not useful to the common good. Therefore, the reason for which it was useful ceasing, it ceases. 2° Because, the reason for which the legislator enacted the law ceasing altogether, he is considered no longer to will it to oblige.

I said: « The adequate end ceasing, and in common; » because, if a law is enacted concerning some work because it is apt to conduce and for the most part does conduce to the common good, although in some particular case, per accidens, de facto it does not conduce, nevertheless the law does not therefore cease, because the end of the law does not cease adequately. E. g., the law prohibits the reading of condemned books, because of the danger of perversion: although you are so disposed that you do not fear perversion in yourself, yet since thence it is apt to follow and for the most part follows, the end of the law remains, nor are you exempted from it.

[You will ask whether the obligation of the law ceases in the particular case if its end then ceases contrarily, that is, if the observance of the law redounds against its end.

I answer. Affirmatively. The reason is, because what is instituted for the common good ought not to fight against it; which would happen if the law were made harmful to the common good, or even to the good of some private person, whose evil redounds against it: as if the law of fasting, which binds when other foods are lacking, or binds anyone because of ill health, were too burdensome; for it concerns the interest of the common good that private persons be kept unharmed.]

[Custom is twofold¹ : one of fact, the other of right. Custom of fact is defined by St. Thomas : « Frequent acting freely in the same manner. » Custom of right, which follows from custom of fact, is defined by Isidore, book V Etymol., c. 3, cited chapter 5, dist. 1 : « A certain right instituted by manners [that is, by frequent acts], which is taken for law when law fails. » Here chiefly custom of fact is treated.]

St. Thomas attributes three things to custom² : first, that it introduce law, namely when it exists apart from law and presupposes none; secondly, that it abrogate a law laid down and received; thirdly, that it interpret it. But custom can obtain these three in a twofold way : 1° by way of connivance, when the superior personally consents tacitly or expressly to the custom, to which no determined time is required; 2° by way of prescription, when the custom has prevailed for a certain time, with consent concurring, if not personal, at least juridical or legal, of the superior, as will be explained below.

Whether therefore and how custom can obtain these three things, we inquire. Wherefore

I say 1° : Reasonable custom can introduce law where there is none, as well by way of connivance as by prescription³.

[It is proved from both laws. From canonical law, cap. In his, dist. 11, where it is said from Aug. ad Casulanum, epist. 36 : « In those matters concerning which divine Scripture has established nothing certain, the custom of the people of God or the institutes of our forefathers are to be held for law. And as corrupters of divine laws, so despisers of ecclesiastical customs are to be coerced. » Likewise cap. Illa, dist. 12, from the same Aug. ad Januarium, epist. 54 ; who in each epistle reports the celebrated saying of Ambrose : « Whichever church you come to, keep its custom. » And elsewhere. From civil law. L. De quibus, ff de legibus, and elsewhere.]

It is proved by reason. In reasonable custom can concur all the things required for law, namely honest matter useful to the common good, the intention of binding oneself and legitimate authority, whether of the community, if it be free, or of the prince manifestly approving, either personally or legally, that custom and intention. Therefore.

I said : « Of the prince approving, either personally or legally, » because a twofold consent of the prince is distinguished, one personal, the other juridical or legal : Personal, when the superior, aware of the custom, approves it, either expressly by word or by some manifest act, or tacitly, by not resisting it while he easily could. Juridical or legal consists in this, that the laws or predecessors of the present superior have declared and enacted that such custom introduces law; to which consent, as is plain, it is not required that the custom become known to the superior. That therefore custom may introduce law by way of connivance, personal consent is required, at least tacit; but that it may introduce it by way of prescription, legal consent suffices.

[You will ask whether all customs long-lasting and general obtain the force of law.

Answer. Customs which consist in the frequent repetition of the same acts, however long-lasting and general they be, do not obtain the force of law unless they were observed with the mind of binding oneself. The reason is, because custom is taken for law. But law is constituted through the will of obliging. Therefore. Whence the custom of saluting B. M. V. thrice a day at the tolling of the bell, of purifying oneself with blessed water at the entrance of the church, etc., never obtained obligatory force of law, because these acts were always frequented from mere devotion. It is known moreover whether a custom was introduced with the mind of binding oneself, if it be observed constantly and universally and not without considerable inconvenience; if transgressors are punished; if pious men commonly so judge. But in doubt whether a custom be from devotion or obligation, whether under grave or under light matter, whether it oblige under sin or only under penalty, the more benign part is to be held; for no law obliges unless it stand established concerning it. So St. Ligor., lib. I, n. 107.]

I say 2° : Reasonable custom can abrogate human law, even irritant, or derogate from it, as well by way of connivance as by prescription⁴.

Of the way of connivance there is no difficulty, because law hangs upon the will of the legislator; whence, the will of the legislator being changed, and this manifested outwardly, the law ceases. But through free connivance toward a custom contrary to the law is manifested in fact the change of will in the legislator. Therefore. I said : « Free connivance, » so that the legislator can easily hinder it and does not hinder it; for if he tolerate it because he cannot resist, or defer to another time, it is not free consent sufficient to abrogate law by way of connivance.

The second part is proved from both laws. From canonical law. Cap. Cum tanto de consuetudine, Decretal. lib. I, tit. 4, c. 11, it is said : « Although long-standing custom has no mean authority, yet it shall not prevail so far as to generate prejudice against positive law itself, unless it be reasonable and legitimately prescribed. » By which exception the canon plainly signifies that reasonable custom legitimately prescribed can derogate from human law. From civil law, L. De quibus, ff de legibus : « Most rightly has this been received, that laws are abrogated not only by the suffrage of the legislator, but also by the tacit consent of all, through disuse. »

It is proved by reason. Human laws are subject to the authority and will of men, no otherwise than other human things and rights. But human things and rights can be changed and transferred independently of the will of their lords through the authority of law, as happens in prescription. Therefore likewise human laws can be changed through the authority of law, independently of the personal will of legislators. — I subjoin. But the laws decree that reasonable custom legitimately prescribed prevail over human law, as is plain from the laws praised above. Therefore.

Hence you will infer that no determined time is required in order that custom abrogate law by way of connivance, but that it suffice that connivance or personal consent of the legislator stands established; because the law ceases not by right but by the changed will of the legislator himself. When however one proceeds by way of prescription, determined time is required; because then it ceases not from the changed will of the legislator, but from the disposition of law, and therefore time determined by law is required in order to prescribe legitimately. Whence the common opinion is, that in order that custom prescribe against civil law, ten years are required; against ecclesiastical law, forty years; because thus common law disposed for the prescription of other civil and ecclesiastical rights.

[Prescription of forty years seems required against ecclesiastical laws, from cap. De quarta, lib. II Decretal., tit. 26 de praescript. and cap. Ad aures, ibid., where is read : « Prescriptions of forty years exclude every action altogether. » But Lessius, lib. II, chapter 6, dub. 14, n. 17, and others cited among the Salmanticenses, de Legib., chapter 6, punct. 3, § 2, n. 17, say probatively that ten years suffice, whether the laws be received or not; because no greater reason is to be had of custom against ecclesiastical law than against civil, since no law distinguishes between these laws. Lessius answers moreover to the texts cited, that they speak not of laws, but of rights and goods immovable of the Church to be prescribed; but under the name of rights the laws of the Church do not come. So St. Ligor., lib. I, n. 139.

You will ask 1° whether good faith be required in order to prescribe against law.

Answer negatively, with St. Ligorio, lib. I, n. 107. Even by sinning can custom be made. Salmant., de Legib., chapter 6, punct. 3, § 1, n. 11, with Suarez. For custom holds a threefold state. In the beginning, all sin who introduce custom against law. In progress, those sin not who now use it, already introduced by their forebears, but they can be punished by the prince. At the end they sin not, nor can they be punished, who use it now prescribed. So Salmant., ibid. n. 13, and others. The reason is, because, when custom is clothed with all the conditions required, among them is found the consent of the legislator such as was described above.

You will ask 2° whether custom can prevail, if a law be passed with the clause : « Notwithstanding any custom whatsoever. »

Answer. The clause is commonly understood of a contrary custom already existing, not indeed of a future one. Salmant., de Legib., chapter 6, punct. 4, § 2, n. 43, and others. But if the clause reject any custom whatsoever, even future, Salmant., ibid., n. 43, with Suarez, say it is more probable that such a custom can abrogate the law. For if some custom must be judged unreasonable at the time the law is passed, it can become reasonable at future time, unless it be adverse to natural or divine law. St. Ligor., ibid., n. 108.]

I say 3° : Custom can interpret law⁵.

It is plain from law, cap. Cum dilectus, Decretal. lib. I, tit. 4, de consuetudine, etc. L. Si de interpretatione, ff de legibus. In both custom is called « the best interpreter of laws. »

[Interpretation moreover is twofold : one doctrinal, according to the mind and sense of the legislator; the other authentic, which proceeds from a superior and has the force of introducing some sense which is received for new law, although perchance it agree not with the first intention of the legislator. In both ways custom can interpret human law; but in the former way only natural and divine law.]

Dispensation, insofar as it is here taken, is a relaxation of the obligation of a law.

§ I

Who can dispense in human law?

I say 2°: By ordinary power there can dispense in his own laws the lawgiver himself, his successor, and the superior to whom the lawgiver or successor is subordinate. An inferior cannot, however, except by delegated power, and so far as has been granted to him either by law, by custom, or by a superior.

The first part is plain; because the obligation of a law depends upon the power of the lawgiver. To the same power it belongs to enact a law and to exempt someone from the law: which is to dispense.

[Therefore a bishop can dispense from diocesan statutes, even if they were enacted in synod. For a synod is not above the bishop, nor does it have jurisdiction and legislative power, since the priests who come together to the synod by right or are admitted have not a definitive but only a consultative suffrage; and the bishop pronounces in all things as legislator according to those votes, or even against them.

No form is prescribed for obtaining dispensations from bishops and other Ordinaries of places, or from prelates of religious orders. This one thing is to be weighed, namely whether they enjoy the faculties necessary for dispensing in matters about which question is raised in various cases.

Since causes reserved to the Supreme Pontiff are referred from all parts of the world to his authority, a twofold tribunal was constituted at Rome for granting dispensations, namely the sacred Penitentiary and the Dataria. The matters with which the authority of the Major Penitentiary, or prefect of the Penitentiary, is concerned are: delays and commutations of simple vows, commutation of the simple obligation of reciting the canonical hours, absolutions from censures and reserved cases, dispensations over irregularities, convalidations of titles, rehabilitations to benefices as well as to offices, dignities and the like, dispensations for religious wishing to pass to a stricter or laxer institute, condonations and remissions of moneys and fruits badly exacted and received in benefice matter, unless prejudice should thence follow to a third person or a certain lord. As for impediments concerning matrimony, the Penitentiary grants dispensations for the internal forum over all occult impediments, or, for the external forum, though in forma pauperum, over public impediments, of which we shall treat in the treatise on Matrimony. Dispensations over impediments public by their nature are expedited by the Dataria. Of these likewise we shall speak in the same treatise.]

Plain also is the second part; because to dispense is an act of jurisdiction. An inferior has no jurisdiction over the law of a superior except insofar as it is conceded to him, either by that superior himself, or by law or custom.

For delegated power is twofold: one from law or custom, which, while granted or annexed in perpetuity not to the person but to the office or dignity, is equated with ordinary power. Cap. Quoniam abbas, de officio delegati, Decretal. lib. I, tit. 29, and L. I, ff de officio ejus cujus commissa est jurisdictio. The other is from man in two ways: either after the manner of grace, in favor of the delegate, and this is of broad interpretation, nor does it expire at the death of the grantor if conferred absolutely; because, according to cap. Si cui, de praebendis, in 6°, « A benefit once granted by a prince ought to endure. » Or after the manner of commission and mandate, in favor of some cause or person, and this is of strict interpretation and expires at the death of the grantor, provided the matter be entire and not yet begun to be put into execution. Cap. Relatum, de officio delegati, and the cited cap. Si cui.

Whence you gather that bishops cannot dispense by ordinary power in the laws of Supreme Pontiffs and councils, yet can in many cases by delegated power.

1° When the law expressly grants this to them: thus Trid., session XXIV, cap. 6, de Reformat., grants them power to dispense in all irregularities arising from hidden delict, excepting that which arises from voluntary homicide and from the others brought to a contentious forum.

2° They can by custom and tacit consent dispense in lighter matters and such as happen frequently, as in fasts, feasts, the Canonical Hours and the like; because this the fitting governance of the diocese requires, nor is it likely that the Pontiff wishes recourse to be had continually to himself for light matters, or such as occur frequently. In fasts and feasts pastors also can do this, by custom.

3° They can, by tacit consent, dispense in things which brook no delay, because it is presumed by law that the Supreme Pontiff wills not that the faithful remain so long in sin or in danger of sinning. Thus they dispense in occult impediments, if these be discovered after marriage contracted with good faith at least on one side; not however in those discovered before the contract, unless perchance they be detected immediately before the celebration, which cannot be deferred without grave scandal. Likewise they dispense in the impediment of seeking the debt which one party contracted through intercourse with a blood relative in the first or second degree of the other.

What I have said hitherto of bishops must be said of prelates of exempt Regulars respectively toward their subjects; because in things pertaining merely to jurisdiction they are as it were the bishops of their own men.

§ II. — Whether dispensation without legitimate cause is licit and valid?

I say 1°: A superior dispenses illicitly without legitimate cause in his own law or that of an inferior¹.

It is proved: because 1° he who dispenses without legitimate cause is an imprudent and unfaithful dispenser²: imprudent, because he acts rashly, without reasonable cause; unfaithful, because he intends not the common good, unto which the law was instituted, and which he ought by his office and implicit pact with the community to intend. 2° Because to exempt from the law him who is not to be exempted is respect of persons. 3° Because it is base and against natural reason that a part without cause fail of con-

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formity with the whole; which he does who dispenses without cause. 4° Finally, because power is given unto edification, and not unto destruction; whence Bernard, lib. de Consider., c. 4, n. 18, calls dispensation of this kind « a cruel dissipation. »

I say 2°: A superior dispenses validly without legitimate cause in his own law and that of an inferior.

It is proved. A law, both in coming into being and in being preserved, depends absolutely upon the will of the lawgiver; so that if, although a legitimate cause urged, he instituted it not, or abrogated without legitimate cause a law already instituted, there would be no law, nor would anyone be bound. Therefore, if he take away the obligation of the law for someone, that man is not bound.

It is confirmed. Those who are dispensed without cause from impediments of matrimony validly contract matrimony; for no one complains against the validity of such matrimony. Therefore valid is the dispensation.

[This the Council of Trent lays down concerning dispensations, session XXV, cap. 18, de reform.: « As it publicly conduces at times to relax the bond of law, that more fully, cases and necessities arising, satisfaction may be given for the common utility; so more frequently to loose the law, indulging petitioners rather by example than by a sure selection of persons and things, is nothing else than to open to each one the way for transgressing the laws. Wherefore let all know that the most sacred canons are to be observed exactly by all, and, as far as lies within their power, indiscriminately. But if an urgent and just reason, and sometimes greater utility, require that dispensation be made with some, this shall be done by whomever the dispensation shall concern, the cause known, with the greatest maturity, and gratuitously; otherwise the dispensation thus made shall be judged surreptitious. »

You will ask 1° whether a superior dispensing without cause sins mortally, and the inferior who makes use of such dispensation.

I answer, to the first, with the Angelic Doctor, here a. 4, c.: « If without reason, out of mere will, he [the superior] grant license, he will be neither faithful in dispensing nor prudent: unfaithful indeed, if he have not intention toward the common good; imprudent, however, if he know not the reason of dispensing. » And ibid., ad 1: « When dispensation is made with anyone that he keep not the common law, it ought not to be done to the prejudice of the common good, but with the intention that it profit the common good. » Therefore, although the lawgiver be lord of his own law, he seems to sin if he dispense without cause, because he thus weakens the law and provides not sufficiently for the common good. Some say he sins mortally if the matter be grave. Others teach better that then the sin is none other than venial, scandal or grave damage of anyone being set aside; for the disorder does not appear as grave of itself. S. Lig., lib. I, n. 178.

I answer, to the second. The Salmanticenses, de Legib., cap. 5, punct. 6, § 3, n. 76, with Suarez and others, cited by S. Ligorius, lib. I, n. 178, teach commonly that one using such dispensation does not sin gravely, and to themselves also it seems probable that the sin is not even venial. This is to be understood if scandal be absent, nor damage thence accrue to anyone.

You will ask 2° whether it be licit to seek or to grant a dispensation when it is doubted whether the cause be sufficient.

I answer. 1° It is licit to seek, because it pertains not to subjects to judge of the sufficiency of the cause, but they are bound only to expose the matter sincerely to the superior.

I answer. 2° It is licit to grant, because otherwise an intolerable burden would be imposed upon superiors; for since matters are often ambiguous, superiors would be distressed by scruples and anxieties, and if then they were held to take refuge in the safer side, there would be danger lest they fall into excessive severity.]

I say 3°: An inferior neither licitly nor validly dispenses without legitimate cause in the law of a superior; because the superior is not held to grant the faculty of dispensing except for legitimate cause. Nor can the inferior do more in this matter than has been granted to him by the superior. Therefore.

Whence, if the Pope dispensed without sufficient cause in a vow or oath, which are of divine law, or a bishop in the law of a Pontiff or of councils, there would be no dispensation; unless perchance he thought the cause sufficient in good faith, since it is foundedly presumed that so the superior wills, to avoid grave scruples and continual anxieties.

[You will ask 1° whether a dispensation obtained by force or fear is valid.

I answer. Affirmatively, provided these three things stand: 1° that a cause of dispensing exist; 2° that the will of dispensing have not been wanting in the superior; 3° that no cause of nullity be present from elsewhere. So S. Ligor., lib. I, n. 184, and many cited by him.]

You will ask 2° what are the legitimate causes of dispensing.

I answer. Generally speaking, three are commonly assigned: piety, utility, especially of the common good, or such as redounds to the common good, and necessity; which ought not to be so great that it of itself takes away the obligation of the law, otherwise there would be need not of dispensation but of interpretation only.

§ III. — Of obreptive and subreptive dispensation.

Obreptive is said of what is obtained by alleging a falsehood; subreptive, by concealing the truth.

I say 1°: If the obreption or subreption fall upon the principal cause of the dispensation, the dispensation is null. So decrees Innocent III, cap. Super litteris, Decretal. lib. I, tit. 3, de rescriptis; and this at the very least is signified by the usual clause of dispensations: « Si preces veritate nitantur », which, were it not appended, must always be understood, from cap. Ex parte, same title. The reason also is plain; because the superior intends to dispense only on account of this cause, which is principal, and without which he would not dispense. Therefore, this failing, the dispensation falls. For the same reason, the same must be said if the obreption or subreption fall upon that without which, although it be not the principal cause, the superior would not dispense in such manner and form, but with an added condition and burden: as if a rich man seek dispensation in forma pauperum, as I shall say below.

I say 2°: If the obreption or subreption fall upon an impulsive cause only and less principal, from the malice of the allegant, it is more probably null; if from the simplicity and ignorance of the allegant, it is valid. Thus expressly distinguishes and ordains Innocent III, cited cap. Super litteris, de rescriptis.

I say 3°: Subreption or concealment of truth pertaining to the thing per se and intrinsically, or error concerning the moral substance of the matter, renders the dispensation null: as if you have two affinities or consanguinities on the side of either parent, and express only one; if you ask to be dispensed over an affinity and it is consanguinity, or over a consanguinity and it is affinity, or over the fourth degree and it is the third; because, although perhaps the superior would have dispensed equally had you expressed the matter as it is, he is nevertheless held to concede precisely what is asked, and nothing else. More probable, however, I judge — against certain authors — is that if dispensation be sought for the third degree, and it is the fourth, it is valid; because dispensation of the whole is dispensation of the part contained in the whole, and the fourth degree is contained in the third.

I said, « Error concerning the moral substance of the matter »; because, if there were error concerning the physical substance, and nothing pertaining to the dispensation, it would not vitiate the dispensation: as if you call yourself an advocate when you are a physician, or there be error in the name, Peter being put for Paul; for the superior intends to dispense with the petitioner himself.

I say 4°: When dispensation is sought at the Roman court, subreption or concealment of what the law or the style of this court requires vitiates the dispensation; because, although it be not the principal cause, it is nevertheless the condition sine qua the Pontiffs do not intend to dispense. Whence

You will gather 1° that, if you seek at the Roman court dispensation over consanguinity, not expressing the incestuous intercourse, if it preceded, the dispensation is null, from the style of the court; likewise, if the marriage has been contracted or consummated; likewise, if you have contracted with knowledge of the impediment and with rash hope of obtaining the dispensation more easily, and these you do not express, there is no dispensation.

It is to be observed, as to the incestuous intercourse, if it be occult, that dispensation is sought in the sacred Penitentiary, the names suppressed, to avoid infamy or other damage. But when the impediments are manifest, or easily made manifest, dispensation is granted not by the Penitentiary but by the Dataria, and the names must be expressed; because, since a public impediment is concerned, the matter can be brought to a contentious forum, and the decree of the Dataria must be published. In the Penitentiary the commission of dispensing is directed to the confessor, who shall be a master or professor in theology; in the Dataria, to the official of the place. In the Penitentiary all things are granted gratuitously; in the Dataria is paid the mulct, to be expended on the propagation of the faith, or on other pious uses.

You will gather 2° that, when there are several impediments, for instance consanguinity and affinity, or several consanguinities or affinities, there is no dispensation if it be sought separately, now for one, afterwards for the other; but it must be sought for all together. Likewise there is none, if it be not expressed in which line the relationship lies, whether direct or transverse, and in what degree, equal or unequal. Similarly in spiritual cognation, if it be not expressed whether it be spiritual daughterhood or compaternity, whether one baptized, or only stood sponsor. The same say of confirmation. Likewise none, if dispensation be sought over the crime of uxoricide, without expressing that like dispensation was already obtained. Likewise, if one dispensed over defect of birth for Orders and benefice afterwards seeks dispensation over plurality of benefices, not again expressing defect of birth. Likewise, if dispensation be sought in forma pauperum, and the petitioner be not truly poor. And all these things and certain others come from the style of the Roman court.

Dispensation is sought in a threefold form: in forma pauperum, of honest men, and of nobles. That some be judged truly poor, they must be such that they live only from their labor and industry; and therefore it must be expressed in the petition, so that, if that alone be omitted, the petition is useless. Poverty on both sides must be expressed in the petition.

Daelman, doctor of Louvain, quaest. ultima, observat. ultima, de Matrimon., writes that those should be judged poor who have two or three thousand florins, whether in movables or immovables: both because, if they petitioned in forma honestorum, they would have to be stripped of the greater part of this sum for the dispensation, for which a thousand or two thousand florins are asked, according to the closeness of the degrees, and thus they would become poor; and because these few goods are for them as it were the instrument whereby they can work fruitfully by labor and industry, drawing thence no fruits, or fruits so small that they are reputed as nothing. The theologian cited adds that the Apostolic Nuncio judges thus when petitioners are sent to him by parish priests.

You will ask 1° whether, when the Romans append in the dispensation other causes than those which the petitioner set forth, those causes must be true, that the dispensation be valid.

I answer. Negatively, but it suffices that those proposed by the petitioner be true; for it is not on account of anything else that he asks to be dispensed, and in truth on account of those he is dispensed: but others are appended from the style of the court, and lest the dispensation appear given for lighter causes.

[You will ask 2° whether a dispensation can be validly obtained not only for one who knows not, but also for one who wills not.

I answer. Affirmatively, if necessity or at least sufficient motive be present. This right reason dictates, and it seems to be drawn from cap. Si motu proprio, de praebendis in 6°. But the dispensation must be accepted by him dispensed. Otherwise, however, must it be said of dispensations impetrated from the Roman Penitentiary, unless they be sought by persons joined or blood relatives within the fourth degree, for matrimony, or at least by the confessor, on account of motives which he judges grave. So S. Ligor., lib. I, n. 186.]

You will ask 2° whether, the dispenser dying, the dispensation ceases.

I answer. Negatively; because grace does not expire at the death of the grantor, cap. Si super, de officio delegati in 6°. Which is true also although the dispensation have been conceded subject to revocation; because the living dispenser revoked not, nor does the dead man revoke. Otherwise, if he had said: « Until I will », or: « Until it please me »; for the dead man no longer wills, nor does it any longer please him.

[You will ask 4° how dispensation ceases.

I answer. It ceases in three ways, namely: by cessation of the cause, by revocation, by renunciation.

1° If the final cause cease at the time when the letters of dispensation are expedited, the dispensation has no effect. For the superior is not held to dispense without cause; and from cap. Ex parte, Decretal. lib. I, tit. 3, de rescriptis, « in letters of this kind this condition is to be understood, even if it be not appended: Si preces veritate nitantur ». — If the final cause cease after the expedition of the letters, but before their publication and execution, since the commissary cannot dispense in the name of the superior except under the same condition and restriction, although the dispensation was at first valid, it is then affected with nullity. — If the final cause cease after execution of the letters, a distinction must be made. Either the matter consists in one act, and the dispensation removes only an impediment; and then, the impediment removed, it cannot revive through a change of circumstances, according to rule 73 juris in 6°: « A deed legitimately done ought not to be recalled, although a case afterwards arise whence it could not have been begun. » Or the matter has successive course and coalesces out of several acts, as the quadragesimal fast, the recitation of the canonical hours; and then, since the dispensation is virtually multiple, it undoubtedly ceases when its cause is taken away, if namely he who obtained it on account of weak health afterwards perfectly recover. — If the final cause be held likely to endure forever, the dispensation remains. Thus he who was dispensed from irregularity to receive sacred Orders, even if for a long time he may be unwilling to receive them, can afterwards, his mind changed, be legitimately promoted. — But if only the impulsive cause have ceased, the dispensation does not vanish, unless it were expressly conceded under this condition.

2° Dispensation altogether ceases through revocation expressly made by the superior, because obligation or release from obligation hangs upon him. Revocation without just cause would indeed be illicit, but nevertheless valid. S. Ligor., lib. I, n. 197, with others, holds that the sin of the superior is then venial only. An inferior prelate who dispensed by delegation does not validly revoke the dispensation without cause.

3° The one dispensed can renounce the grace obtained, with the assent of the superior, before he has secured its effect, and can use it no longer. Excepted: if the renunciation redound to the damage of another or of the community in whose favor the dispensation was bestowed, or if the prelate, for just cause, command the subject to make use of the dispensation.]

I. Interpretation generally taken is the explanation of an obscure law, whereby it is declared whether in such a case it obliges or does not oblige. It is twofold: one verbal, which is called simply interpretation, and is the explanation of words conformably to the mind which the legislator had when enacting the law; the other, which is called epiikia, is the explanation of the mind, not which the legislator had when enacting the law, but which he would have had if he had attended to the present case, and would have, if he were interrogated here and now.

[II. Simple interpretation is authentic, usual and doctrinal.

Authentic interpretation, or that pronounced with authority, is that given by the legislator himself, or by his successor or superior. But whether such interpretation ought to be promulgated in order to oblige? A distinction must be made. Either it is purely such, or it is a mere declaration, and promulgation is not required, since it is not a new law: it binds those to whom it de facto becomes known, inasmuch as it determines the sense of the law, and thus the law must be observed. Or it is not purely such, that is, it somewhat changes the received sense of the law; and then, since at least in part it is a new law, it needs promulgation.

Usual interpretation is sought from custom, whereby, as said in cap. Cum dilectus, Decretal. lib. I, tit. 4, de consuetudine, « it is the best interpreter of laws. » Custom interprets the law when it is at least in part according to the law, which it can also in part change; for, if it be against, it abrogates the law, and if beside [the law], it induces a new law.

Doctrinal interpretation is made through the glosses of theologians, canonists and jurists. Of itself it has not the force of law, since it only expounds the sense of the law, and doctors have not legislative power. However, if an interpretation commonly admitted deviate more or less from the pristine sense of the law, herein it introduces new right, and under this respect becomes usual.]

III. In simple interpretation of laws the proper, common and more received sense of words is to be kept unless some inconvenience follow; because by law it is presumed that the legislator spoke in this sense.

A favorable law harming no one must be amplified; an odious one restricted, according to rule of law 16 in 6°.

In human laws argument from parity is not regularly made: because in things depending on free will there is no conclusion from parity; but the obligation of human law depends not so much upon the reason of the law as upon the free will of the legislator, which was about that case and not about this, although similar. Otherwise in natural law, on account of the opposite reason: because its obligation is from the nature of the thing and from reason itself, which while fighting for one case fights equally for a similar one.

I said, « regularly; » because in correlatives, as husband and wife, in things equilibrated by law, as the executor and the mandator, and in those whereof one is subordinated to the other as imperfect to perfect, as eggs to flesh, with respect to him to whom permission to eat flesh is granted, argument from similitude is made.

IV. As to epiikia, it is certain that it likewise has place in human laws ¹ ; because laws are enacted generally for the common utility and according to what happens in the majority of cases, nor can the legislator foresee and except all cases. Yet it often happens that something whose observance is useful to the common good in most cases is nevertheless harmful in some cases. Whence, if a case emerge in which literal observance of the law is harmful to the common good, or brings notable detriment to the observer or another in health, reputation or fortune — for this redounds against the common good — or be contrary to natural law or higher human law, or become unjust or too hard through some circumstance, then per epiikia it is not to be observed; because it is deservedly presumed not to have been the legislator's mind that the law oblige in these cases.

You will ask whether it be likewise lawful to use epiikia in laws invalidating contracts.

Resp. More probably negatively, on account of the grave inconveniences which would thence arise against public good, and which prevail over the evil, howsoever grave, of some particular person. For if it were permitted to use epiikia in an invalidating law, e.g., clandestine marriage, contracts of minors, or made without tabellion, concubinage and frauds would rage everywhere to the ruin of the republic. Add that a contract does not stand without the form prescribed by those laws.

You will ask 1° what a privilege is.

I answer. Privilege, as to its name, is a private law, or, as others will have it, though less well founded, quasi privans lege, as it were depriving of law; but as to the thing and taken formally, it is a singular right, granted by the prince to certain persons on account of some utility, of doing or not performing something, against or beyond the law.

The definition is explained. It is called right, by way of genus, in which it agrees with law, since after the manner of law it obliges. It is called singular, because it is given to one or another singular person, or to a lesser community taken as a singular person, although consequently it obliges the whole community subject to the prince not to impede the privileged one in the use of his privilege. By this is also expressed the subjective cause of privilege: concerning which it must be noted that, although strictly privilege ought to be granted only to a subject of the prince, that is, to him who is such either permanently or transiently, as pilgrims, nevertheless taken widely it can be granted even to one not subject, since it is an act of mere liberality and beyond right. It is said, of doing or not performing something against or beyond the law, by which words are expressed the object or material cause of properly so-called privilege, which is an act commanded or forbidden by common right, so that with respect to the privileged person it ceases to be commanded or forbidden. It is said, on account of some utility, in which words you have the final cause; for the general end of privilege is some utility redounding to the good of the commonwealth. Finally, in the words granted by the prince is expressed not only the efficient cause, but also the extrinsic formal cause of privilege, by which, as of law, it is an act of the prince legitimately manifested; for the whole value of the privilege depends upon the will of the prince. From which it follows that he alone and every one who can make a law can also found and grant privileges.

You will ask 2° in what privilege differs from dispensation.

I answer. To differ in this, that dispensation indeed relaxes the common right, but without duration and stability, or for a single act only, e.g., to receive order, or is mostly granted limitatively for some acts. On the contrary, privilege is indulged with some stability and perpetuity, and for many acts not limitatively.

You will ask 3° how manyfold privilege is.

I answer. Privilege is divided many ways: 1° Into affirmative, by force of which it is lawful to do something not permitted by common right, as to celebrate in pontificals; and negative, from which it is lawful to omit what by right one ought to do, as not to pay certain taxes. 2° Into personal, which is granted directly and immediately in view of the individual person, and coheres with him; and real, which is directly and immediately attached to a thing, or indulged to a person with respect to a thing, e.g., an office, dignity, and thence coheres with the thing, and all who hold the office or dignity may enjoy it. Certain add mixed, which is partly personal and partly real, and is granted to persons with the addition of place. Privilege is personal when the words of concession are directed to the person, with expression of his own name, e.g.: « To thee Peter, archbishop of Paris, we grant, etc. » It is real if the words be directed to the person with expression of the thing or dignity, e.g.: « To the bishop of Autun we grant the use of the pallium. » 3° Into gratuitous, which is indulged from mere liberality, without singular merit; and remuneratory, which is bestowed as reward and compensation of signal merits. This latter is personal by its nature; nothing however stands against its being extended and communicated to sons, grandsons, and the whole family, if the paternal and ancestral merits be so many and so great that it be fitting that such honor become hereditary, and so be perpetuated. 4° Into pure, which is granted without reciprocal obligation; and conventional, which is conferred with pact and obligation of doing something; yet this does not seem to be comprehended under the name of privilege in odious matter, because onerous conventions are not rightly drawn to gracious matter. 5° Into common, which per se regards the good of the community, and consequently derives into individuals, as the privilege of forum and canon; sometimes it belongs, as to use only, to the community as such, as the privilege of free election; sometimes to individual members, as many privileges of religious; and into private privilege, which per se regards the convenience of one or another person, yet verges consequently into the common good, as the privilege of restitution in integrum. 6° Into privilege closed in the body of law, which is inserted among other laws, and puts on the nature of law and is favorable; and that which is granted by special rescript, and is held somewhat odious to others, receives therefore a stricter interpretation, and has against it a presumption of law. 7° Into singular, or granted in singular form with special clauses, e.g., « motu proprio, ex certa scientia, ex plenitudine potestatis, » and vulgar, or at the prayers of the privileged one, without the aforesaid clauses. The first is favorable, nor can it be accused of obreption or subreption, with which the second can labor, since there is always subunderstood in it the condition, « if the prayers rest upon truth. » 8° Into written, which is granted through the rescript of the prince; and unwritten, which is granted orally, or, as is said, by oracle of living voice. 9° One kind is given for the forum of conscience, and is not acknowledged in the contentious forum; another for the external forum, and profits even in public judgments. 10° Finally, one is absolute, which is favorable only to the privileged person; and another respective, which favors the privileged one in such wise that at the same time it verges to the burden of others.

You will ask 4° in how many ways privilege is acquired.

I answer. Privilege is commonly said to be acquired four ways: by custom, prescription, concession, and communication. But since custom and prescription are not so much [motes, because he who is protected by custom or prescription obtains that right which another holds adorned with privilege], hence the modes of acquiring privileges are reduced to concession and communication. Concession of privilege is its original collation made by the legislator who made the law from which the exemption is indulged, or by his successor or superior. Communication is the extension of a privilege from one subject to another. It takes place simply, or with peculiar clauses added. If it take place simply, it gives the faculty of exercising all privileges granted to the subject from whom or in view of whom they are communicated, unless they be plainly singular, wont to be more rarely granted, or prohibited from being communicated. But if it take place with clauses added, according to their diversity there is diverse communication. For it takes place one way relatively and ad instar, that is indirectly, accessorily, as many privileges indulted to religious are communicated to nuns, to their familiars, physicians, advocates, etc.; and communicated in that way, they are diminished and lost if the original privileges happen to be diminished or lost. Second way, absolutely or pariformiter and equally principally as if they were granted directly and specially to those to whom they are communicated; and these privileges are neither diminished nor lost, even if the original privileges happen to be diminished or lost, because they no longer depend per se on the former. That these terms must be thus taken is established from several pontifical constitutions, signally from the bull of Gregory XV Ad uberes fructus, where the term ad instar is opposed to the term pariformiter, and from the bull of Clement XIV Supremi apostolatus, where the same term is opposed to the term principaliter.

You will ask 5° what are the effects of privilege.

I answer. 1° It confers on the privileged one the right of using his privilege according to its tenor and right interpretation, and imposes on others the obligation of not impeding the use of the privilege. But the privileged one must observe the place, time, mode, and other conditions expressed in the concession. But if place and time were not expressed, nor the subject matter persuade otherwise, the grace granted extends to every time, and equally to the whole territory of the granter: nay, if the grace remove only an incapacity, or permit an act prohibited by no special right of the place, the use of it is licit even outside the territory of the granter, as to read prohibited books everywhere, to celebrate before dawn, etc. 2° The privileged one is not bound to use his privilege, because favor cannot pass into burden; unless perchance there arise from it per accidens an obligation which he must personally satisfy, as hearing Mass on Sunday during the time of interdict, or an obligation toward another to be fulfilled, e.g., a confessor who obtained the faculty of absolving from reserved cases, after having heard confession, is bound to use it. But if the privilege be public from its end, e.g., privilege of forum, he may not renounce it, because public order does not suffer it. 3° In the concurrence of two privileges, several things are to be discerned. If the privileges be respective and opposed concerning the same object, the special prevails over the general, because species derogates from genus, from rule 34 of Law in 6°. But if each be equally general or special, the stronger prevails, that is, the older or granted by greater power. If the privileges apparently contradict one another only, the more absolute prevails, while the other yields to it as tacitly conditioned: thus a church exempted from paying tithes enjoys its privilege against the church to which the right of exacting tithes from all churches was granted by privilege. If from the very law the privilege have prelation, it prevails over the other.

You will ask 6° how it be lawful to use a privilege by way of interpretation.

I answer. 1° Not at arbitrement, but according to the rules commonly received from doctors, so that the words of concession, as far as the matter suffers, be understood properly and generally as they sound. Odious privileges, that is, adverse to common right or to a right acquired by a third party, are restricted; merely favorable ones, as a benefit of the prince, must be taken most widely; personal ones are limited to the person, real ones extend even to successors. In doubt, a favorable privilege is held real, as also conventional follows from the pact, whose nature it follows. But a prejudicial privilege is held personal, as also remuneratory, although this frequently, on account of the merits of ancestors, is real. 2° Privileges admit comprehensive interpretation; for the person not expressed in the privilege, for whom nevertheless the identity of reason militates entirely, seems contained in it virtually, insofar as that person was comprehended in the mind of the privileging prince: whence the privileges of male religious are common to nuns, provided the matter be accommodated to them. What is said of persons must likewise be understood of cases. Extensive interpretation is not admitted, however, on account of parity or even greater reason, because the force of privilege arises not from reason but from the will of the prince.

You will ask 7° in how many ways privilege is lost.

I answer. It is lost in several ways: 1° By the death of the subject in which it inheres. Thus personal perishes with the person perishing, real with the thing wholly perishing, as if a church be destroyed without hope of rebuilding, unless the privilege inhere in the pavement or place itself, or the community translated elsewhere draws the privilege with it. 2° By the cause ceasing. Further, the cause ceases contrarily or negatively: contrarily, when the use of the privilege, on account of the change of circumstances, becomes unjust, in which case the privilege is lost; negatively, if the use of the privilege do not become unjust, but the sole reason of granting no longer subsist, and then the privilege is not lost: thus the privilege of the right of tithing granted to religious on account of poverty does not expire, even if with progress of time the monastery obtain fat revenues. 3° By lapse of time for which the privilege was obtained, or by not keeping the condition under which it was granted. 4° By free renunciation, if the privilege be not common, as was said. 5° By non-use, or contrary use, only those privileges perish which contain the burden of a third party. If this happen through tacit renunciation, so much time is required as suffices to induce the presumption that someone abdicated himself of the privilege; but if this be done through prescription, the times and other requisites for prescribing legitimately must be observed. 6° By abuse, because he deserves to be deprived of the privilege who abuses it, either extending its limits, or taking from it occasion of sinning more freely, or acting against the end of the privilege. Yet this loss, except in the case where one acts against the end of the privilege, is not induced ipso jure, but, being penal, presupposes the sentence of a judge. 7° By revocation. The prince alone, or his successor or superior, can revoke privileges. For licit revocation, not truly for valid, is required a reasonable cause; and if the privilege be onerous, without violation of commutative justice it cannot be revoked for any other cause than necessity or public utility. Revocation takes place either expressly, while the prince removes the granted privilege by open words; or tacitly, when he posits a contrary act, or brings a law opposed to the privilege. Further, revocation through universal law does not obtain its effect unless the law have been sufficiently promulgated; likewise through a general clause, « notwithstanding any privileges whatsoever, » privileges fortified with special clauses are not revoked, by force of which they cannot be revoked unless special mention be made of them, since the general clause does not contradict special clauses. But if revocation be made specially, then it obtains its effect, when duly intimated to the privileged one. Moreover, as special privilege derogates from general, a posterior contrary law derogates from the prior privilege closed in the body of common law, because the prince is not held ignorant of this; but not from privileges wandering outside common law, unless mention be made also of these, because these the superior probably ignores.

Let these things suffice concerning privileges in common. Most usefully is read the appendix on Privileges placed at the end of the Theologia moralis of St. Alph. de Ligorio, where, the general principles being exposed, many things are treated concerning privileges in particular.]