EARLY in the life of the Church it became apparent that a confinement of effort within territorial bounds would best pro- mote the realization of world evangelization by the successors of the Apostles and their co-workers in the sacred ministry. A diocesan clergy was the result, subject in each territory to the jurisdiction of the ruling Bishop. Once thus organized, honorable reasons were not lacking from time to time for ex- changes between dioceses of their clerical personnel. _Canonical transfers of clerics and priests from one territory or diocese to another were allowed under regulation even from the early Christian centuries, as is witnessed by the canons of the pro- vincial and general councils of the period.
Since attachment to a diocese in perpetuity was secured in the first instance through the medium of ordination, the dis- engagement of a cleric and his reattachment elsewhere was like- wise considered achieved by the authorization of another Bishop to ordain the same cleric to a higher order in the new locality. Thus, sacred ordination had a close connection with canonical transfers, or with excardination and incardination as this process has since become known, and the close relationship of the two has never been severed. Legislation adopted by the Church for the latter process always involved the former. In fact, through most of the Church's history, the subject of in- cardination and excardination as such is not found at all in Church legislation, but must be sought out and gathered from various official pronouncements De Online.
It is true that much'was written in centuries past on holy orders, and in particular about the proper Bishop for ordina- tion and the ordination title, but very little was ever done in the way of abstracting from these two subjects the implicit legislation of the Church concerning excardination and incardi- nation. "Scant consideration was given to the matter by the canonists, and whatever few pertinent articles appeared in ec- clesiastical periodicals were only phase treatments.
vii
viii Foreword
Meanwhile the basic law itself became more complicated with the passage of centuries. Five distinct periods may be dis- cerned, in each of which a different discipline with reference to holy orders was enforced, and the greater part of these enact- ments were cumulative. Furthermore, every change in legis- lation potentially had four different effects according to the class of subjects to whom it was applicable, namely, to lay candidates for the clerical state, minor clerics, major clerics, and priests. Special laws, too, were enacted governing the canonical trans- fers of certain groups, such as clerics from foreign lands. A lack of uniform terminology throughout caused much con- fusion and added to the difficulty of a correct understanding of the common law. Various interpretations of the law when applied to particular cases gave rise to frequent contests in ec- clesiastical courts to determine the diocese to which a cleric owed his allegiance, and these the Holy See was called upon again and again, even in the same particular instance, to adjudicate.
The Code of Canon Law clarified the situation very definitely by giving to the Church for the first time a clear-cut division of legislation on the two subjects, incardination and ordination, dealing with each under its own proper title, even though they
still remained related subjects. This, however, did not settle all difficulties. The Code itself required interpretation in the light of a preceding legislation already ill understood, thus accentuating the long felt need for a general detailed study, both historical and canonical, of the whole field of legislation with regard to the excardination and incardination of clerics.
It is that need which the present work aims, however humbly and inadequately, to satisfy. To the writer's best knowledge it is a pioneer publication on the subject. The original purpose was to include in its scope the law concerning canonical transfers to and from Religious Institutes, but that was found in- feasible. Accordingly, as its title indicates, it is restricted to the study of the incardination and excardination of seculars only, although it may be remarked that a separate study of the same question with respect to Religious is in process of prepara- tion by another writer who himself is a member of a Religious Congregation.
Foreword ix
Because of the fact that this is the first general treatise on the subject, it was thought advisable to incorporate in the foot- notes much of the source material to invite a better criticism and evaluation of the conclusions herein reached in the more specialized and scientific studies that may follow.
The extensive treatment given to the subjects of the proper Bishop for ordination and the ordination title was made neces- sary because of the close nexus between ordination and incardi- nation, and also because at the time this work was begun, in 1927, no treatise existed in the English language on those two fundamental related subjects. Since then, in the year 1935, a doctoral dissertation in Eng it on the subject of the "Proper Bishop for Ordination" was published at the Catholic Univer- sity of America, Washington, D. C., by the Reverend John M. Moeder, J.C.D., to whom, therefore, the humble apologies of the author are tendered for seemingly having transgressed on his canonical field.
More space, too, than may seem warranted has been given to the commentary on canon 114. The reason is that virtual incardination and excardination of clerics through the reception of a residential benefice, of which this canon treats, has been the source of more litigation in ecclesiastical courts than any other phase of the excardinatory process. It is the canon which is styled by one author "dangerous for unwary Bishops," be- cause of the automatic way in which it secures its effect inde- pendently of their expressed will. It was felt, therefore, that a detailed examination of all the possible consequences of the application of canon 114 would serve to eliminate much of the previous misunderstanding about the virtual process of incardi-
'nation upon which the aforesaid conflicts were based.
Tfie research and assembly of source material for this work was accomplished during the years 1927-1929. In the long interval that elapsed between that and its final publication, dur- ing which time the writer was functioning as an assistant pastor in a busy city parish, it was inevitable that newer editions of many of the works consulted should emanate from the press. 'While some of these were proctired and incorporated, it was found impossible to do so for all, but a comparison of a few
Foreword
of them and a scrutiny of the most recent Juridical Periodical Articles leads to the conclusion that the use of the older editions has not substantially affected the argument.
It is well recognized that incardination and excardination is a very practical subject, and in this study an effort has been made to provide the reader with a practical guide in the execu- tion of these processes as well as with a basis of theoretical
-knowledge for such action. The formulae of letters and docu- ments contained herein have been drawn up according to the latest prescriptions of ecclesiastical law; they are not obligatory, but merely indicative of safe practice. The various charts provided are intended to summarize and simplify the text so as to enable the reader to ascertain at a glance the law governing the more complicated phases of the entire problem. It is sin- cerely hoped that as a result of this work the history of incardi- nation and excardination will be clarified and its present procedure simplified.
The writer is especially indebted to Rev. Clement V. Bast- nagel, J.U.D., of the Faculty of the School of Canon Law, for his painstaking care and invaluable suggestions in correcting the lengthy manuscript of this work, and to all the Faculty members of the same School for their extreme kindness and sympathetic direction. He wishes to express his appreciation likewise to the personal staffs of the John K. Mullen of Denver Memorial Library at the Catholic University of America and of the St. Charles Borromeo Seminary Library at Overbrook, Pa., for the many willing and generous courtesies extended to him, and to the Reverends William D. Bruckmann, S.T.L., and Peter J. Klekotka, J.C.D., for the special assistance they rendered. Finally, he acknowledges his sincere gratitude to the Sisters of the Immaculate Heart of Mary and the priests at- tached to the parish of St. John the Baptist, Manayunk, Pa., , including his former and present pastors, Rt. Rev. Msgr. Eugene Murphy, dec'd., and Rev. John J. McKenna, and his fellow Assistants, Revs. Connell Clinton, J.C.D., Ignatius C. Reynolds, James F. Connor, and Robert J. McVeigh, for the many sacri-, fices they made in his behalf, and also to all those who in any way helped to bring this work to a successful conclusion.
Author(s): Rev. James Thomas McBride, A.B., J.C.L.
Series: No. 145
Edition: 1
Publisher: The Catholic University of America
Year: 1941
Language: English
Pages: 609
City: Washington, D.C.
Tags: Canon Law, Catholic, Secular Clerics, Theology
FOREWORD
ARTICLE L ARTICLE II. ARTICLE IE. ARTICLE W.
ETYMOLOGY OF THE TERMS 1 SIGNIFICANCE OF THE WORD Cardinal 2 Incardinate AND ITS SYNONYMS 7 Excardinate AND ITS SYNONYMS 12
EPISCOPAL
ARTICLE
CHAPTER II
AND PAROCHIAL ORGANIZATION 14
L BEFORE 300 14
TABLE OF CONTENTS
SECTION I Historical Synopsis
CHAPTER I
PAGE
THE TERMS Incardination AND Excardination 1
1. The East 14 2. The West 16
ARTICLE B. 300 TO 500 18
1. The East 18
2. The West 21 ARTICLE EL 500 TO 1100 26 ARTICLE IV. 1100 TO THE CODE 32
CHAPTER III
THE INITIAL DIOCESAN ATTACHMENT OF LAYMEN 36
ARTICLE L REASON AND NECESSITY OF A PERMANENT BOND BETwFrx niorpsaw CLERICS AND THEIR BISHOP 36
ARTICLE II. THE PROPER BISHOP FOR THE FIRST ORDINATION
AND ATTACHMENT OF LAYMEN 40 1. Ancient Law (Before 1100: Origin) 40 2. Medieval Law (1100-1563: Origin; Acquired Domicile) 45
3. Tridentine Law (1564-1694: Origin; Acquired Domicile;
and Familiaritas) 54
4. Innocentian Law (1694-1906: Origin; Acquired Domi-
cile; and Familiaritas) 58
5. Pre-Code Law (1906-1917: Origin; Acquired Domicile; Familiaritas; and Quasi-incardination)
xi
63
ARTICLE EL TITLE OF ORDINATION FOR LAYMEN 64
1. The First Five Centuries 66 2. From 500 to 1100 71 3. 1100 to the Council of Trent 75 4. Council of Trent to the Code 79
ARTICLE IV. THE CEREMONY OF INITIAL ENLISTMENT 84
ARTICLE V. THE QUASI-EXCARDINATION AND QUASI-INCARDI- NATION OF LAYMEN 89
1. Special Requisites for the Reception of Dismissed Semi- narians 96
2. Special Reqhisites for the Reception of Foreign-born Laymen in the Dioceses of the United States of America 97
CHAPTER IV
INCARDINATION AND EXCARDINATION OF DIOCESAN CLERICS 98
ARTICLE I. THE PROPER BISHOP FOR ORDINATION OF
DIOCESAN CLERICS 98
1. Ancient Law (Prior to 1100: Origin) 98 2. Medieval Law (1100 to the Council of Trent: Origin;
Acquired Domicile; and Benefice) 103
3. Tridentine Law (1564-1694: Origin, Acquired Domi-
cile; Benefice; and Familiaritas) 108
4. Innocentian Law (1694-1898: Origin; Acquired Domi-
cile; Adequate Benefice; and Familiaritas) 111
5.he-CodeLaw(1898-1917:Origin;AcquiredDomicile;
Adequate Benefice; Familiaritas; and Incardination) 113
ARTICLE II. VARIATION AMONG PROPER BISHOPS 116
1. Ancient Period 116 2. Medieval Period 116 3. Tridentine Period 119 4. Innocentian Period 122 5. Pre-Code Period 1'26
ARTICLE III. TITLE OF ORDINATION FOR DIOCESAN CLERICS 126 1. Titles Recognized by Common Law 127 A. Benefice 127
1°. Requisites for a benefice to be a legitimate title
of ordination- 127
2°. Conditions for the resignation of a benefice held
as a title of ordination 130
B. Patrimony 131 1 0. Origin and nature of it 131
2°. Requisites for patrimony to be a legitimate title
of ordination 134 3°. Alienation of patrimony 137
C. Pension 138
1°. Origin and nature 138 2°. Requisites for canonical pension to be a legiti-
mate title of ordination 139 Titles Contrary to Common Law 139 A. Title of the Mission 140
1°. Its origin 140 2°. The required oath 142 30. Nature of the " tide of the mission" 145
B. Title of Service of the Church or Diocese 148
10. Origin and history 148
2°. Nature 151 ARTICLE IV. METHODS AND REQUISITES FOR THE EXCARDINA-
TION AND INCARDINATION OF DIOCESAN CLERICS 154
1. Ancient Period (Prior to 1100) 154 A. Minor and Major Clerics 154 B. Priests 159
2. Medieval Period (1100 to the Council of Trent) 160 A. Minor and Major Clerics 160 B. Priests 162
3. Tridentine Period (Council of Trent to 1694) 162
A. Minor and Major Clerics 162
B. Priests 171
4. Innocentian Period (1694-1898) 172
A. Factors Which Bound the Cleric to His Diocese More Securely 172 1°. Decrease in number of benefices 172 2°. New titles of ordination 174 30. Gratuitous seminary education 178
40. Oaths of diocesan service 183
B. Minor and Major Clerics 184
1 0. Their diocesan stability 184 2°. Methods of excardination and incardination 186
a) Residential benefice 187 b) Letters of excorporation 188 c) Indirect method: acquisition of a new proper
Bishop. 189
°. Special requisites for certain groups 192
a) Subdeacons and deacons ordained titulo mis-
semis 192
C. Priests
1 0. 2° .
Diocesan stability strengthened Methods of excardination and
incardination 202
b) Foreign-born clerics emigrating to the United States of America, especially from Poland
192 193 193
a) Acquisition of a residential benefice 203 b) -Letters of excorporation or excardination 204
§ 1. Acceptance in perpetuum of letters of release 204
§ 2. Formal incardination in the United States of America
208
210, 213 213
§ 3. Presumptive incardination United States of America
in
the
3°. Special requisites for certain groups
a) Priests ordained titulo mission):
b) Priests emigrating to the United States of
America from Italy 214- c) Foreign-born priests emigrating to the United States of America, especially from
Poland 216 5. Pre-Code Period (1898-1917) 216 A.TheDecree"Aprimis" 216
B. Opinions on Influence of Decree as to Abrogation
of Previous Methods 219
1 0. Affirmative opinion 219' 20. Negative opinion 225 3°. Which opinion to be followed in practice 231
C. Methods of Excardination and Incandination 231 I°. Formal letters 231 2°. Indirect method—acquisition of a new proper
Bishop 236
D. Special Requisites for Certain Groups 238
1°. Those in sacred orders titulo inissionis 238 2°. Those dismissed from other seminaries 239' 3°. Foreign-born minor clerics emigrating to the
United States of America 239 4°. Emigrating priests 240,
ARTICLE V. CONSENT OF A CLERIC TO HIS OWN EXCARDI- NATION
ARTICLE VI. STATUS OF THE ORIENTAL CLERGY IN THE UNITED STATES OF AMERICA 254
CHAPTER V
THE COMPETENT AUTHORITY FOR EXCARDINATING AND IN- CARDINATTNG DIOCESAN CLERICS 258
Coeirdinated Schemata
ARTICLE V. CONSENT OF A CLERIC TO HIS OWN EXCARDI- NATION
HISTORICAL SUMMARY OF RELATIONS BETWEEN BISHOPS AND CLERICS
SECTION II Canonical Commentary
CHAPTER VI
CANONICALASSIGNMENT (Canon 111. - § 1) 287 ARTICLE L THE MEANING OF CANONICAL ASSIGNMENT 287 ARTICLE U. ITS NECESSITY 290 ARTICLE ILL THE DEFINITION OF A Diocese 294 ARTICLE IV. AFFILIATION WITH A RELIGIOUS INSTITUTE 297
CHAPTER VII
INITIAL DIOCESAN INCARDINATION (Canon 111. - § 2) 299
ARTICLE I. FIRST TONSURE THE VALID INSTRUMENT OF INITIAL INCARDINATION 299
1. Singleness of the Process 299 2. Validity an Absolute Requisite 300
ARTICLE IL LICITNESS OF INITIAL INCARDINATION 301
1. Requisites on the Part of the Subject 301 2. The Proper Bishop (Canon 956) 302 A. For Promotion of Laymen to the Clerical State 310 10. Through original diocesan domicile still retained 310 a) Domicile 310 § 1. Meaning 310
§ 2. How secured 311 § 3. Legal or necessary domicile 318 §4. How lost 320 § S. Plurality of diocesan domiciles 321
b) Origin 322 c) How original diocesan domicile makes a
, Bishop die proper Bishop 324
20. Through simple acquired diocesan domicile fortified by an oath 330 a) The oath 330 § 1. Reason for oath 330 § 2. Nature of oath 333 b) Exceptions from the oath 337
§ 1. Clerics already incardinated by first tonsure 338
§2.Laycandidatesfortonsuredestinedfor deferred alien incardination 341
§ 3. Professed Religious of non-exempt Congregations and those belonging to non-exempt societies without vows 342
§ 4. Lay candidates for tonsure destined for immediate alien incardination 346 B. For Promotion of Laymen Who Have No Domicile 348 1°. Who come under this heading 348
2°. Reply of the Pontifical Code Commission in
1919 350 3°. The solution 353
C. For the Elevation of Tonsured Clerics to Higher Orders 355
1°. Contending opinions 356
a) The Bishop of the place of domicile alone is
the proper Bishop 356
b) The Bishop of incardination is exelusively
the proper Bishop 359 2°. The authoritative interpretation 369 m. THE Terminus OF INITIAL INGARDINATION . . 371 1. Incardination in One's Proper Dioeese 371
2. Lawful Methods by Which Proper Lay Subjects Become Incardinated in Alien Dioceses 372
A. Direct Methods 373
10. Initial incardination in a definite Alien diocese (Canon 111. - § 2) 373 a) The preliminary agreement 373
b) The reception of tonsure for its service 374 c) Exception from the oath of domicile 376
20. Deferred incardination in an indefinite alien diocese (Canon 969) 377
a) Legal procedure of canon 969, § 2 378 b) Exception from the oath of domicile 379 c) Assurance of execution of deferred incard-
ination 380
B. Indirect Method—Acquisition of a New Proper Bishop 382
CHAPTER VIII
FORMAL EXCARDINATION AND IINICARDINATION OF SECULAR CLmucs (Canon 112)
384 384
387 388
388 392 392
396
ARTICLE I. GENERAL NOTIONS ARTICLE U. THE ORDINARIES ARTICLE EL THE LETTERS
1. Their Character 2. The Signatures
3 Sample Formulae
ARTICLE IV. COMPETENCY FOR ORDERS
ORDINATION TO
HIGHER
CHAPTER IX
EXCEPTIONS TO THE POWER OF GRANTING EXCARDINATION
AND INCARDINATTON (Canon 113) 397
ARTICLE L THE VICARGENERAL 399 ARTICLE IL THE VICAR CAPITULAR OR THE ADMINISTRATOR 401
CHAPTER X
VIRTUAL EXCARDINATION AND INCARDINATION OF SECULAR CLERICS THROUGH A RESIDENTIAL -BENEFICE (Canon
114) 403
ARTICLE I. PYISTENCE OF THIS METHOD PRIOR TO THE CODE 404
1. Before 1898 404 2. Between 1898 and 1918 405
ARTICLE II. VIRTUAL EXCARDINATION 106
1. The Cleric 407
2. The Dismissing Ordinary 407
3. The Permission 408
A.ConsenttoAcceptanAlienResidentialBenefice 408 B. Permission to Depart Perpetually from the Diocese 413
ARTICLE III. VIRTUAL INGARDINATION 416
1. The Receiving Ordinary 416 2. Conferring of the Benefice 417
A. Actual Conferment 417 B. Its Formality 418 C. Perpetuity 418 D. Acceptance 420 E. Installation 421
3. The Residential Benefice 423
A. Notion of an Ecclesiastical Office 424
10. In the pre-Code legislation 424 2°. In the Code 426
B. Notion of a Benefice 448
1°. A juridical entity 449 20. Constitution by competent ecclesiastical author-
ity 451 3°. PerPetuity of constitution 453 4 0. Constitutive elements: office and revenues 455
C. The Annexed Obligation of Residence 457 4. Which Diocesan Offices Can Be Residential Benefices 461 A. The Diocesan Curia 461
1°. 2°. 3°. 4°.
5°. 6°.
70. 8°. 9°.
The Vicar General 462 The Chancellor 463 The Notaries 463 The Synodal Examiners and Parish Priest Con- sultors 463 The Officialis and Vice-Officialis 464 The Promoter of Justice and the Defender of
the Bond 465 The Synodal and Pro-Synodal Judges 466 The Auditors 468 The Court Beadles 470
B. Canons Capitular 470 C. Diocesan Consultors 473 D. Vicar Capitulat 474 E. Vicars Forane 474 F. Pastors 477 G. Parochial Vicars of Moral Persons 480 H. ParochialAdministrators 484
I. Substitute Pastors 484
J. Parochial Adjutants 485 K. Assistant Pastors 486
10. The position of an assistant pastor is an office in
the strict sense 486
2°. Can an assistant pastorate be a benefice? 488
3°. Perpetual and temporary parochial vicars in the pre-Code legislation 491
4'. Aperpetualvicaragewasabenefice 493
5°. To which class the position of an assistant pastor belonged 494 6°. Perpetual chaplaincies 495
70. How an assistant pastorate can now become a benefice when constituted as a perpetual assist-
ant vicarage 498
L. Rectors of Churches 503 M. Chaplains 504 N. Ordinary and Extraordinary Confessors 507
0.RectorsofSeminaries SO8 P. Other Seminary Positions 509 Q. Secretaryships 509
ARTICLE IV. RETROACTIVITY OF THE VIRTUAL METHOD 510 CHAPTER XI
EXCARDINATION OF SECULAR CLERICS—GENERAL REQUISITES (Canon 116) 514
ARTICLE I. FOR LICITNESS OF EXCARDINATION 515 ARTICLE II. FOR VALIDITY OF EXCARDINATION 519
Corollary—Excardinating Bishop to be notified
of the subsequent incardination 521
CHAPTER XII
INCARDINATION OF SECULAR CLERICS—GENERAL REQUISITES
FOR LICITNESS (Canon 117) 524
ARTICLE L THE CANONICAL TITLE 526
I. The Place of Service 526 2. The Source of Sustenance 527
A. Canonical Titles of Ordination in the Code 527
B. For Whom is a Canonical Title Necessary? 528
C. Substitution or Provision of a Canonical Title for an
Incardinated Major Cleric I 529
ARTICLE II. THE DOCUMENTS 531
1. Legal Document of Legitimate Excardination 531
2. Testimonial Letters 533
A. For Native-born Clerics 533 B. For Foreign-born Clerics 538
1°. In general 538
2°. Priests emigrating from Europe and the Medi- terranean countries to America and the Philip-
pine Islands 540 C. For Orientals in the United States of America 545 3. Responsibility for Truth of the Testimonial Letters 547
ARTICLE IIL THE OATH OF PERPETUAL SERVICE
1. Nature of the Oath
2. Reason for the Oath
3. The Proper Ordinary for Receiving the Oath
CONCLUSIONS BIBLIOGRAPHY
LIST OF ABBREVIATIONS BIOGRAPHICAL NOTE ALPHABETICAL INDEX CANON LAW STUDIES
54S
548
550 . . . . 553
554
557
565
567
569
589
