not to fall under the regulation-for this whole section (1035-57) deals with 'impediments in general,' and, in the Code, banns (1022-31) are not classified as an impediment at all. The concluding injunction (in Canon 1057) is one of the commonplaces of matrimonial Indults. When stated in this simple form, it may be disregarded, not without sin, but without any voiding effect on the dispensation granted.1

2

Changes summarized.—Taking up the sections in Lehmkuhl's text-book (1012-50), we may add, by way of hurried comment :

1012. Unchanged, except in so far as some of the impediments have been abolished. In view of cc. 1043-5, n. 1 (6), in the new terminology, and n. 2 might be stated more mildly.

1013-18. The whole section has been considerably modified. Vide supra. 1019-24. These sections were never of much importance in this country, except as throwing some light on the interpretation of the Formula Sexta. Since April 25th, 1918, their importance is still less-here or anywhere else. But, of course, they may resume their old position any day. 1025. Unchanged (except the note). Cf. Canons 249 and 258. 1026. The changes have been noted above (pp. 191-2).

1027-30. Unchanged.

1031. Possibly the statement on occult' impediments requires revision (1037). See above (p. 193, note 3).

1032-4. Unchanged.

1035. Nn. 1-2 must be taken in the light of Canon 47 an error in the name of person, place, or thing, will not invalidate if, in the judgment of the Ordinary, there is no doubt about the identity (47). Some of the impediments mentioned in n. 3 no longer hold. Note 1 (p. 598) is obsolete in so far as it speaks of Confirmation (1079). On note 2 see above (p. 202). As for the degree' and 'number of impediments' (nn. 4-5), cf. Canon 1052 (ibid.). Note 1 (p. 599), on 'mixed' degrees seems to be true still (1052); note 2, on the change effected in 1885, certainly is.

1036. Much of this must be modified in connexion with 'minor' impediments (1054); the author calls attention to the fact in a note (2). The statement about 'declaring all the impediments' must be changed slightly (1050).

1037-8. Same remark as on n. 1036. And the statements on 'illegitimate affinity' must be disregarded (97).

1039-42. Unchanged. In the case stated in n. 1040, there is no affinity now (97); there may be 'propriety' (1078).

1043-44. Unchanged.

1045. The regulation of Pius X (29th September, 1908) must be replaced by Canon 36, § 2; the excepted classes now are all those excommunicated, suspended, or interdicted, by sentence (2265-75-83). 1046-50. Some little points may have to be changed: the statement, e.g., about occult impediments in n. 1047. But substantially, we may take it, the clauses will be the same as before, and will be interpreted in the same manner.

M. J. O'DONNELL.

1 Lehmkuhl, n. 1017 (note).

2 11th edition.

THE NEW CODE OF CANON LAW

JURISDICTION

BY REV. J. KINANE, D.C.L.

It is unnecessary to dilate upon the importance of jurisdiction, the subject of our present article. Suffice it to say that nearly all the ecclesiastical acts, which affect most intimately the lives of the clergy and faithful alike, are dependent upon it for lawfulness and very often for validity. Without this power, for example, absolutions cannot be granted, marriages cannot be contracted, dispensations cannot be given, punishments cannot be inflicted, judicial proceedings cannot be held. Since, then, such practical matters are involved, the section on jurisdiction is evidently one in which even the missionary priest has a deep interest. Fortunately, the Code has not dealt too severely with the old discipline, so that there will not be too much to unlearn. There are, indeed, some important changes in detail, but the main principles have been retained.

Divisions. Although the Code mentions the principal divisions of jurisdiction with which pre-Code commentators have familiarized us, it undertakes the definition of only one, viz., ordinary and delegated. Ordinary jurisdiction, it states, is that which is attached by law itself to an office : it further adds that one may possess it in one's own right or merely as the representative of another (propria sive vicaria). Delegated jurisdiction, on the other hand, is that which is committed to a person (c. 197). According to the definition hitherto generally accepted, all ordinary jurisdiction was propria;1 in other words, it was not merely attached to the office by law, but it was also demanded by the very nature of the office itself. Jurisdiction, not inherent in the office, but superadded to it by law, and consequently

1 Wernz, Jus. Decret. tom. ii. n. 4. Illa (jurisdictio ordinaria) vi officii ex juris dispositione jure proprio alicui competit.' Cf. Branbandere, Comp. Jures Can., tom. i. n. 88 etc.

possessed by the incumbent of the office not in his own right, but as the representative of the legislator, was usually called quasi-ordinary. For example, the power of a Bishop to legislate for his subjects, inherent in the nature of the episcopacy itself, was called ordinary; whereas his power of dispensing from certain irregularities of general law, attached to the episcopal office by the Council of Trent, was called quasi-ordinary. This distinction has now disappeared; but the practical differences involved are of little importance. So, too, the old controversy regarding the nature of a Vicar-General's jurisdiction will find no place in the new discipline.

The term 'Ordinary.'-Not every one who possesses ordinary jurisdiction is called an Ordinary. Canon 198 enumerates those to whom this term is applicable, unless an express exception has been made in any particular case: the Pope, a residential Bishop, an Abbot or Prelate with a distinct territory, a Vicar-General, an Administrator, a Vicar and Prefect Apostolic, the ad interim successors of the foregoing, and finally for their own subjects the greater Superiors in exempt clerical Institutes. With the exception of the last class, all the preceding are also called local Ordinaries.

This, we think, is in full accord with the old teaching, in accordance with which all superiors who possessed ordinary jurisdiction in both fora were entitled to this term. It is true, indeed, that in an enumeration of Ordinaries contained in a decree of the Holy Office, issued in 1888, there is no mention of religious Superiors; but the omission is quite intelligible, if it is remembered that this decree purported to give only the Ordinaries to whom the execution of matrimonial dispensations was committed. For the secular clergy it is important, therefore, to remember that, in accordance with this canon, the Vicar-General and Vicar-Capitular, as well as the Bishop, are included under this term, and, consequently, they have all the rights, and are subject to all the obligations, of Ordinaries, apart from express exceptions in particular matters. In this connexion it may be as well to point out that, just as in the past, habitual faculties from the Holy See, even though they are granted nominatim to the Bishop, may be utilized also by the Vicar-General (c. 66, § 2).

Delegation and Subdelegation.-The general principle in

1 Cf. Putzer, Comm. in Fac. Ap., n. 24.

regard to the power of delegating is unchanged. A person who has ordinary jurisdiction can delegate it either partially or totally, unless in any particular case there is an express prohibition of law (c. 199, § 1). The best known of these prohibitions is that in regard to jurisdiction to hear confessions. For those who maintained, under the old discipline, the distinction between jurisdiction and approbation, theoretically, this prohibition did not exist. Theoretically, all who had ordinary jurisdiction to hear confessions could delegate it. But, the need of approbation from the Ordinary of the place rendered delegations by anyone else useless, so that for all practical purposes the prohibition really existed. In the Code the distinction between jurisdiction and approbation has disappeared, and the power of delegating is expressly restricted to the Ordinary of the place (c. 874, § 1).

There is an important restriction also in regard to delegation to assist at marriage. Canon 1096 states that permission to assist at marriage Ishould be given expressly to a determinate priest for a determinate marriage, all general delegations being excluded, unless there is question of Curates for the parish to which they are attached; otherwise it is invalid.'

Hitherto in discussing this question, most canonists stated that one who had ordinary jurisdiction could not delegate it_totally, without the consent of a competent superior. From the reasons which they gave, however, it was clear they meant to exclude only such delegation as would deprive the person delegating of all power, and make the delegate independent and perpetual. Understood in this way, this teaching will still hold under the Code.

The principles regarding the power to subdelegate are also little changed: 1°. Jurisdiction delegated by the Holy See can be subdelegated either for a single act or habitually (c. 199, § 2). The last chapter of the title De off. et pot. judicis del. in the Decretals of Gregory IX contained almost as clear a statement of this principle as the Code itself. Notwithstanding this fact, however, there was considerable doubt as to whether faculties from the Holy See to dispense and grant other favours could be sub

1 Cf. Wernz, op. cit. n. 552. At nequeunt ordinarii magistratus ecclesiastici inconsulto competente superiore ecclesiastico totam suam jurisdictionem alteri delegare. Eo enim in casu potius renuntiant officio suo novumque constituunt magistratum ecclesiasticum.'

delegated. A considerable body of canonists—the majority, we think-relying especially upon certain decisions of the Roman Curia in particular cases, held that they could not. Others, however, maintained that they could, and sought support for their contention mainly by an appeal to this decretal to which we have just referred. The controversy was set at rest by a reply of the Holy Office, in December, 1898. Asked whether such faculties could be delegated either in a general manner, or at least for a particular case, it replied: 'In the affirmative, provided it is not forbidden in the faculties, nor the right of subdelegating is not restricted to certain persons only; for in this case the form of the rescript must be observed to the letter.'

To the general rule that jurisdiction delegated by the Holy See can be subdelegated, the Code, in harmony with the old discipline, makes two exceptions. Subdelegation may not take place (a) when it is forbidden; (b) when the delegate is appointed on account of his special personal qualifications (nisi electa fuerit industria personae). The first exception presents no difficulty. Sometimes the prohibition to delegate is absolute, and sometimes it is confined within certain limits; sometimes, too, it is express, and sometimes implicit. Thus, for example, the permission to communicate the faculties of the Formula VI to two priests, etc., was regarded as implicitly restricting the Ordinary's power of subdelegation. In all cases, in accordance with the reply of the Holy Office just referred to, the form of the concession should be observed to the letter.

To determine when a delegate has been selected on account of his personal qualifications, and consequently when delegation is forbidden for this reason, we must have recourse to the old discipline. Commentators taught that this contingency was verified in three cases :

(a) When very grave matters were contained in the delegation, such, for example, as inquisition against heresy, provision of churches and benefices, etc.

(8) When the rescript contained some such words as the following: per te ipsum; personaliter; tuis manibus ; de industria, etc.

(y) When what is called a nudum ministerium, or, in

1 For an account of this controversy, vide Wernz, Jus. Decret. tom. iv. n. 622, note 104.

2 Cf. Branbandere, op. cit. n 103.