Rescript

RESCRIPT. - From re-scribere, it is any written reply. But already in the Latin sources it meant the reply or order, given in writing, by the lord of the land (thus in Tacitus and Pliny); later it indicated solely the written reply of the prince to the request of a subject, and it retained this meaning even when it became part of legal terminology. The term was widely used in the law of the Church and, above all, in the ordinary phraseology of the papal chancery. And if in ancient canon law the term was used solely for the written replies of the Supreme Pontiff, in the Middle Ages it was used also for those of the prince or head of a community in general, and later its use was broadened even further, inasmuch as the written replies of those who enjoyed legislative power or jurisdiction were also called r.

Not only as terminology but also as a legal institution, the r. developed in canon law on Roman-law foundations; it was on the Roman sources that the medieval canonists built the legal doctrine on the matter. Already in the first centuries the popes provided in writing for granting graces and for introducing particular provisions of favors or privileges upon reports or requests of subjects. The first r. of which there is record goes back to Pope Siricius (a. 385). It is true, however, that the notable development of the practice, even before that of the doctrine, occurred in the Middle Ages; and such was the use then made of r. as to influence even the evolution of canon law through the publication of numerous r. made in the collections. In the following centuries the institution was perfected in its structure and better fitted into the general ordering of the canonical system; to this contributed notably both the Regulae Cancellariae Apostolicae (from the 15th century onward) and the better reorganization of the Roman Curia through the work of Pius V (1566-72) and Sixtus V (1585-90). The last reform brought to this institution goes back to Pius X, as appears from the constitution Sapienti Consilio of 29 June 1908 and from the Ordo servandus in sacris Congregationibus, Tribunalibus et Officiis Romanae Curiae-Normae Communes of the same date and from the Normae Peculiares, dated 29 Sept. 1908. This reorganization is still in force (can. 243 § 1) and forms, together with the norms sanctioned in title IV of the first book of the CIC (cann. 36-62), the canon legislation on the matter.

As a reply, the r. presupposes a request: consulati, significati, postulati, are the first words read in the r. of the Supreme Pontiffs reported in the Corpus Iuris Canonici, or, as in today's r. of the Roman Curia, N. N. petit, postulati, etc.; and it is above all a request for graces, favors and privileges, as, for example, the request for legitimation of offspring, for dispensation from a ratified and unconsummated marriage, for benefices or for honors.

The form of the r., even if only external, was never neglected, especially in those that were dispatched by the papal chancery; thus today, on the basis of the Pian legislation and the practice of the Roman Curia, the r. have a precise and fixed external and internal form. The external forms are various (form of bull, of brief, of simple letter or communication), more or less solemn according to the object, the recipient and the circumstances. The internal form is the same for all r. and regularly consists of two parts: the expository part and the dispositive part. The first summarizes the substance of the libellus forwarded by the petitioner, that is, the object of the petition with the circumstances inherent in the request (narrative part) and its motivation (motivating part). The second expresses the reply of the superior: what he grants and under what conditions.

The r. are then differentiated for internal or substantive reasons: there are therefore different kinds of r. Ratione legis there are r. secundum, praeter or contra ius, according to the purpose of the concession, which may tend respectively to protect the law (for example, the r. of designation to a judge for a cause) or not to concern it directly (for example, the granting of honors); or else to be a derogation from the common law (for example, dispensation from a matrimonial impediment). In relation to the object the r. are distinguished into r. of justice and r. of grace. With the former, favors are granted for the protection and administration of justice, for example, the benefit of restitutio in integrum and of a new hearing in causes. With the latter, benefits, favors or graces are bestowed exclusively, such as indulgences, honors and dispensations. With reference always to the object there can also be mixed r., inasmuch as they at the same time grant favors and serve the administration of justice, as, for example, the granting of a benefice unlawfully possessed by others.

According to the manner in which the graces are granted, the r. are distinguished into r. in gracious form or in commissory form. The former grant graces or favors directly to the petitioner, who is entitled to avail himself of the concession from the day of the date of the r., and they are recognized by the words of the concession itself (for example, petitam gratiam benigne impertitum, without mention of an executor or of execution: cf. can. 38). In the latter, on the other hand, the grace is granted through an executor and produces no legal effect except with the communication of the executor. If the latter is bound to execution, he is called a necessary executor and the r. are said to be in mixed commissory form (cann. 38, 54 § 1) and are formulated thus: S. Congregatio... benigne annuit, ac propterea mandavit committi Episcopo ut petitam gratiam oratori concedat; if, on the contrary, he is not bound, he is called a free or voluntary executor, in the sense that it is in his power to grant or not, at his prudent judgment, the grace to the one who requested it: such r. are said to be in absolute or free commissory form (cann. 54 § 2, 61) and are recognized by the words, which are of the following tenor: S. Congregatio oratoris preces remittit arbitrio et conscientiae Episcopi cum facultatibus necessariis et opportunis.

According to their extension the r. can then be general or particular.

According to can. 36 § 1 the impetration of r. whether from the Holy See or from Ordinaries is free, and all, unless expressly forbidden, may request them and thus be in a position to obtain them (cf. can. 36 § 2). In this there is a repudiation, even if implicit, of the regium placet and of the principle, already condemned by Pius IX, according to which Gratiae a Romano Pontifice concessae existimari debent tamquam irritae, nisi per gubernium fuerint imploratae.

According to the law of the decretals (cf. c. 1 in VI. 1, 3) the excommunicated were incapable of receiving r., which were therefore held null if granted in their favor. In the style of the Roman Curia the use had prevailed of inserting the clause absolutio a censuris ad cautelam in order not to frustrate the effect of the r., perhaps granted to an excommunicated person. With Pius X there was a radical innovation in this regard, establishing gratiae et dispensationes omne genus a S. Sede concessae etiam censuris irretitis ratae sint ac legitimae, nisi de iis agatur qui nominatim excommunicati sint, aut a S. Sede nominatim pariter poena suspensionis a divinis multati. The Pian provision passed substantially into the CIC with some slight innovation (cf. can. 36 § 2). Those unable according to the CIC to receive graces and dispensations from the Holy See are the excommunicated, those interdicted personally and the suspected after a sentence of condemnation or declaration (cann. 2265 § 2; 2275, n. 3; 2283); outside these cases all graces and dispensations granted by the Holy See etiam censura irretitis are valid (can. 36 § 2). According to cann. 2291 n. 9 and 2296 § 1, those who have been struck by the vindictive penalty of inability to receive apostolic graces are to be considered unable to obtain pontifical r.

It is not clearly stated in the CIC, nor do authors agree, regarding the incapacity of non-Catholics, the unbaptized, heretics and schismatics. If, however, in theory the question remains controversial, the practice followed by the Roman Curia is well defined: to the unbaptized, rescripts of honors or appropriate graces are sometimes customarily granted for special merits; for heretics and schismatics, on the other hand, it is constant practice not to grant rescripts of any kind. Those are incapable of receiving rescripts from Ordinaries to whom this has been forbidden by particular law or by common law (cann. 46; 2294 § 1; 2291, n. 9).

Before the CIC, canonical legislation was somewhat severe regarding the impetration of rescripts made not for oneself but for others, and authors debated the validity of a rescript thus impetrated, especially if the favored party had not yet been notified of it and had not yet accepted it, and most inclined toward invalidity; afterward, however, following the practice of the Roman Curia, which had become more indulgent, the legislation also underwent modifications; and the current discipline clearly establishes that a rescript may be impetrated for others even without their assent; although it is within the power of the recipient to use it or not, the rescript has full value before and even without his acceptance, unless clauses to the contrary have been appended (can. 37).

Rescripts sometimes indeed carry clauses or conditions, to which their validity or licitness is bound. Conditions do not all have the same value and are not always of the same formal and substantial tenor. They can be expressed or tacit, preceptive or essential. Expressed preceptive conditions concern only licitness and are generally of the following tenor: iniuncto salutari poenitentia, remoto scandalo. Expressed essential conditions concern the validity of the rescript itself and are exclusively those indicated with the words si, dummodo or with others of the same value, such as, for example, solummodo (can. 39). In every rescript the condition si preces veritate nitantur must always be understood, even if not expressed (can. 40): it is essential to the validity of the rescript, as revealed by the very words which, in the style of the Roman Curia, are changed with others, such as si ita est, si vera sunt exposita. By these phrases, placed as conditions, it is meant that the validity of the rescript is incompatible with a reticent exposition or with a false motivation: the former must not conceal the truth and the latter must not set forth the false. In either case judgment must be made objectively; therefore it has no juridical relevance whether one or the other occurred in good or bad faith, through ignorance or for other reasons. The first case, that is, subreptio (reticentia veri), occurs if in the petition there was not expressed what is necessarily required by the style of the Roman Curia; the rest, even if voluntarily and maliciously concealed, does not invalidate the rescript (can. 42 § 1). It is not easy to list what the style of the Roman Curia requires so that the expository part may not be a cause of invalidity of the rescript through concealment of truth. Some species of reticence are, however, known from common law itself and are: 1) if a grace denied by one Congregation or Office of the Roman Curia is afterward requested from another Congregation or Office or from the Ordinary without mentioning the previous denial, the request thus made vitiates the eventual rescript, with the exception of rescripts of the Apostolic Penitentiary, given its competence for the internal forum (can. 43); 2) if no mention is made of the denial by the vicar general of a grace which is afterward requested from the bishop and vice versa (can. 44 § 2, where it is added that the vicar cannot grant rescripts already denied by the bishop without the latter's consent); 3) if the person who is to benefit from the grace is incapable by common law of receiving it and this is concealed in the request, as also if the legitimate local custom or the particular statute or the rights of third parties, directly contrary to what is requested, are concealed (can. 46).

Obreptio (exposition of the false), on the other hand, occurs when in the motive part of the request the false is asserted. In this case the rescript is null only when the falsity of the motivation is total, if only one motive cause was adduced and this is false, or if the falsity affects all the causes set forth. There is, however, no invalidity of the rescript if at least one of the motive causes is true, even though all the others are false (can. 42 § 2). Both the exposition of the false in the motive part and the reticence of the true in the expository part relative to only one part of the rescript do not vitiate the rest of it when several graces were granted together (can. 42 § 3). Given, moreover, the provisions of cann. 38 and 41, the truth of the petitions in the exposition and of the causes in the motivation is sufficient that it exist at the moment of the execution of the rescript (can. 41) or of its date if it is in gracious form (can. 38). Both subreptio and obreptio do not generate the nullity of a rescript of dispensation from a minor matrimonial impediment (cann. 40 and

1054). Subreptio does not produce the ineffectiveness of a rescript granted with the clause motu proprio, unless it is a matter of reticence regarding the incapacity of the petitioner, of a custom or particular statute contrary to what had been requested, or of the rights of third parties (cann. 45 and 46); for these cases it is required that a derogatory clause be expressed in order for the rescript to have value (cann. 45 and 46).

To resolve the difficulties caused by the existence of two or more contrary rescripts impetrated and granted concerning the same matter (concursus rescriptorium), the CIC has laid down norms, of which the first, drawn from the regulae iuris (54 in VI: genera per speciem derogantur), establishes that the particular or peculiar prevails over the general in requests and concessions of a particular character (can. 48 § 1); the second, likewise drawn from the regulae iuris (54 in VI: qui prior est in tempore potior est iure), regulates the validity of two or more contrary rescripts, equally general or particular, on the basis of the time or date of concession, declaring null the rescript of the second petitioner so that the right already acquired by the first may not be violated, unless in the second rescript express mention was made of the first, which would thereby be revoked (cann. 48 § 2; 46), or if the first petitioner maliciously or through continued negligence has not failed to avail himself of the rescript obtained (cann. 48 § 2, 46). In the case where there is no diversity of time, because they were granted on the same day, both or all, if there are more, are null, and, if necessary, recourse must be made to the superior who granted them (can. 48 § 3).

The interpretation of rescripts must be literal, affirms the CIC in can. 49; the concession must therefore be understood according to the usual meaning of the words with which it was enunciated; extensive interpretation is therefore prohibited. In case of doubt, due to obscurity of words or ambiguity of expressions, rescripts of justice are to be interpreted according to common law, those of grace in an extensive sense; these, however, if they are injurious to the rights of third parties or relate to the obtaining of benefices or go against a law in favor of private individuals, must be interpreted in a restrictive sense (can. 50).

In treating the various kinds of r. it has been noted how they can differ according to the manner in which they are executed, since there can be different ways of execution. Besides the various modes of execution, the CIC also lays down norms on the validity and legitimacy of execution, as well as on the persons and the time of it. For r. of the Holy See issued in gracious form or without an executor, the petitioner is bound to present the r. to his Ordinary only when the object of the r. is of public interest or character, or when the Ordinary must judge concerning the existence or observance of the conditions that may have been attached to the r. (can. 51). When it is a question of r. in mixed commissory form, execution cannot be refused, unless the nullity of the r. itself is evident through subreptio or through obreptio, or the executor has become aware of the non-observance of the conditions attached to the r., or because, in his judgment, the petitioner is so unworthy that favoring him with the grace of the concession would be a cause of indignation and offense to others; in this last case the executor, besides refusing execution, must warn the superior who issued the r. (can. 54 § 1). In order that the execution be valid and legitimate, it is necessary that the executor have the r. and ascertain its authenticity and integrity; private notice of its concession does not authorize him to execute it: in case of urgent necessity he may proceed to execution if he has received notice, even by telegram or telephone, from the office that issued it (can. 53). The executor must proceed according to the mandate he has received and must observe the formalities essential to execution and fulfill all the essential conditions that may have been attached to the r.: all this for the validity of the execution itself (can. 55). The execution must be done in writing when it is a matter of the external forum (can. 56), but this is not required for validity. If the execution has been invalid through an error committed by the executor, he may repeat it (can. 59 § 1; S. Penitenzieria, decr. of 15 Jan. 1894, n. 2). The r. of the Holy See are generally entrusted for execution to the Ordinaries; the Dataria is accustomed to entrust the execution of the r. of benefices reserved to it to canons or to other dignitaries.

If the grantor of the r. did not intend to entrust the execution ratione personae, the designated executor may have himself replaced, unless the substitution has been forbidden (can. 57); succession to the dignity or office of the executor authorizes the successor to execute, unless the executor was chosen for personal reasons (can. 58; cf. cann. 368 § 2; 435 § 2). The time allowed for execution is sometimes indicated by the superior himself who grants the r.; if it is not indicated, execution may be done at any moment and time, unless it has been delayed through deceit or fraud (can. 52).

The validity of r. is not tied to time, unless the time for which they are valid has been indicated in them. They can nevertheless cease for the following reasons: 1) through general revocation, made by a contrary law by the superior of the possessor of the r., or when it is expressly stated in the law; otherwise no contrary law produces the ineffectiveness of r. (can. 60 § 2); 2) through revocation made by him who had granted the r. or by his successor or by the superior; but for this to have its effect it is necessary that it be notified to the possessor of the r. (can. 60 § 1); 3) with the ceasing of the right of the grantor if the r. bears the clause ad beneplacitum nostrum or another similar one; the clause ad beneplacitum Sedis Apostolicae never causes the r. to cease, quia Sedes ipsa non moritur; all the others never cease, even in case of vacancy of the see (can. 61); 4) through natural process, that is, with the ceasing of the condition to which the existence of the r. was tied; with the death of the possessor, if the grace was purely personal; through renunciation if it had been granted solely for the private good of the petitioner.

From the diplomatic point of view the r. presents no particularities of its own, since it assumes the extrinsic and intrinsic characteristics of the type of document to which it conforms from time to time (bull, brief, epistle).

Vincenzo Fagiolo