RESCRIPT. — From the Latin *re-scribere*, a rescript is any written reply. Already in Latin sources it signified the written response or order issued by the ruler of a country (as seen in Tacitus and Pliny); subsequently it came to denote exclusively the written reply of a prince to a subject’s request, a meaning it retained even when it entered legal terminology. The term enjoyed wide usage in canon law and, above all, in the ordinary phraseology of the papal chancery. While in ancient canon law the term was used solely for the written responses of the Supreme Pontiff, in the Middle Ages it was also applied to those of a prince or head of a community in general, and its use was later further extended to include the written responses of those possessing legislative or jurisdictional authority.
Not only as a term but also as a juridical institution, the rescript developed in canon law on a normative basis; medieval canonists constructed their legal doctrine on Roman sources. From the earliest centuries, popes granted favors and introduced particular provisions of privileges or dispensations in writing, in response to petitions or requests from subjects. The earliest rescript of which we have record dates to Pope Siricius (A.D. 385). Yet it was in the Middle Ages that a marked development in practice—preceding doctrinal elaboration—occurred; the extensive use of rescripts at that time even influenced the evolution of canon law through their publication in numerous collections. In later centuries, the institution was refined in its structure and better integrated into the general framework of the canonical system, a process to which the *Regulae Cancellariae Apostolicae* (from the 15th century onward) and the reorganization of the Roman Curia under Pius V (1566–72) and Sixtus V (1585–90) contributed significantly. The last reform of this institution was carried out by Pius X, as seen in the constitution *Sapientia Consilio* of June 29, 1908, and in the *Ordo servandus in sacris Congregationibus, Tribunalibus et Officiis Romanae Curiae Normae Communes* of the same date, as well as in the *Normae peculiares* of September 29, 1908. This reorganization remains in force (can. 243 § 1) and, together with the norms established in Title IV of the first book of the *Codex Iuris Canonici* (can. 36–62), constitutes the canonical legislation on the matter.
As a reply, the rescript presupposes a request: *consulisti*, *significasti*, *postulasti* are the opening words found in the rescripts of the Supreme Pontiffs as recorded in the *Corpus Iuris Canonici*, or, as in modern rescripts of the Roman Curia, *N. N. petit, postulat*, etc. The requests typically concern favors, privileges, or dispensations, such as the legitimation of offspring, dispensation from a non-consummated marriage, conferral of a benefice, or the granting of honors.
The form of rescripts, even if external, has never been neglected, particularly in those dispatched by the papal chancery. Today, based on the legislation of Pius X and the practice of the Roman Curia, rescripts possess a precise and fixed external and internal form. The external forms vary (bull, brief, simple letter, or communication), differing in solemnity according to the subject matter, the recipient, and the circumstances. The internal form is uniform for all rescripts and regularly consists of two parts: the expository section and the dispositive section. The first summarizes the substance of the petition submitted by the petitioner—that is, the object of the request with its attendant circumstances (narrative part) and the reasoning behind it (motivational part). The second expresses the superior’s response: what is granted and under what conditions.
Rescripts also differ for internal or substantive reasons, giving rise to various types. *Ratione legis*, there are rescripts *secundum*, *praeter*, or *contra ius*, depending on the purpose of the concession, which may aim respectively to uphold the law (e.g., a rescript appointing a judge for a case) or not to address it directly (e.g., the granting of honors), or to derogate from common law (e.g., a dispensation from a matrimonial impediment). With regard to their object, rescripts are distinguished as rescripts of justice and rescripts of grace. The former grant favors for the protection and administration of justice, such as the benefit of restitutio in integrum or the declaration of new indigency in legal proceedings. The latter confer exclusively benefits, favors, or graces, such as indulgences, honors, and dispensations. With respect to their object, mixed rescripts may also exist, as they simultaneously grant favors and serve the administration of justice, such as the conferral of a benefice unlawfully held by another.
Depending on the manner in which graces are granted, rescripts are distinguished as rescripts in gracious form or in commissory form. The former grant graces or favors directly to the petitioner, who acquires the right to the concession from the date of the rescript, and are recognizable by the wording of the concession itself (e.g., *petitam gratiam benigne impertimur*, without mention of an executor or execution: cf. can. 38). In the latter, the grace is granted through an executor and does not take legal effect until communicated by the executor. If the executor is obligated to execute the rescript, he is called a necessary executor, and the rescripts are termed mixed commissory (can. 38, 54 § 1), formulated as follows: *S. Congregatio... benigne annuit, ac propterea mandavit committi Episcopo ut petitam gratiam oratori concedat*. If, on the contrary, the executor is not obligated, he is called a free or voluntary executor, meaning it is within his discretion to grant or withhold the grace as he prudently judges fit; such rescripts are termed absolute or free commissory (can. 54 § 2, 61) and are recognizable by wording such as: *S. Congregatio oratoris preces remittit arbitrio et conscientiae Episcopi cum facultatibus necessariis et opportunis*.
Rescripts may also be distinguished by their scope as general or particular.
According to can. 36 § 1, the impetration of rescripts, whether from the Holy See or from ordinaries, is free, and all persons, unless expressly prohibited, may request and thus be capable of obtaining them (cf. can. 36 § 2). This constitutes, albeit implicitly, a rejection of the *regium placet* and 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), excommunicated persons were incapable of receiving rescripts, which were therefore considered null if granted in their favor. The style of the Roman Curia had come to include the clause *absolutio a censuris ad cautelam* to avoid frustrating the effect of a rescript that might have been granted to an excommunicate. With Pius X, a radical innovation was introduced, establishing that *gratiae et dispensationes omne genus a S. Sede concessae etiam censuris irretitis ratae sint ac legitimae*, unless they pertain to those expressly excommunicated or similarly punished by the Holy See with suspension *a divinis*. The provision of Pius X was substantially incorporated into the *Codex Iuris Canonici* with minor modifications (cf. can. 36 § 2). According to the *CIC*, those incapable of receiving graces and dispensations from the Holy See are excommunicates, those personally interdicted, and those under suspicion after a condemnatory sentence or declaration (can. 2265 § 2; 2275, n. 3; 2283); outside these cases, all graces and dispensations granted by the Holy See, even to those under censure, are valid (can. 36 § 2). According to can. 2291 n. 9 and 2296 § 1, those struck by the vindictive penalty of inability to receive apostolic graces are to be considered incapable of obtaining pontifical rescripts.
BIBL.:
- *Corpus Iuris Canonici*, ed. Friedberg, I, Decretum, De rescriptis; II, Decretalium, De rescriptis.
- *Regulae Cancellariae Apostolicae*.
- *Sapientia Consilio*, 29 June 1908.
- *Ordo servandus in sacris Congregationibus, Tribunalibus et Officiis Romanae Curiae Normae Communes*, 29 June 1908.
- *Normae peculiares*, 29 Sept. 1908.
- Cappello, *De principiis generalibus iuris canonici*, Rome 1940, pp. 270–275.
- De Luca, *Theatrum veritatis et iustitiae*, Rome 1669–1673, s.V. *Rescriptum*.
- Eichmann, *Lehrbuch des Kirchenrechts*, Freiburg 1923, pp. 180–182.
- Hinschius, *Das Kirchenrecht der Katholiken und Protestanten*, Berlin 1869–1897, IV, pp. 555–560.
- Pirhing, *Jus canonicum*, Ingolstadt 1688, s.V. *Rescriptum*.
- Wernz-Vidal, *Ius canonicum*, Rome 1943, II, pp. 463–470.
It is not clearly indicated in the CIC, nor do the authors agree, regarding the ineligibility of non-Catholics, the unbaptized, heretics, and schismatics. Although the question remains theoretically controversial, the practice followed by the Roman Curia is well defined: unbaptized persons are sometimes granted, for special merits, certain honors or appropriate favors; however, it is the constant practice not to grant any kind of favor to heretics and schismatics. Those to whom the granting of favors has been prohibited by particular or common law are ineligible to receive favors from Ordinaries (can. 46; 2294 § 1; 2291, n. 9).
Before the CIC, canon law was quite strict regarding the importation of favors made not for oneself but for others, and authors debated the validity of a favor thus obtained, especially if the beneficiary had not yet been informed of it and had not yet accepted it; most inclined toward invalidity. Subsequently, however, following the more lenient practice of the Roman Curia, the legislation underwent changes, and the current discipline clearly establishes that a favor may be obtained for others even without their consent; although the recipient is free to use or not use the favor, it has full validity before and even without his acceptance, unless contrary clauses have been appended (can. 37).
Favors sometimes carry clauses or conditions upon which their validity or liceity depends. Not all conditions have the same value, nor are they always of the same formal or substantial tenor. They may be expressed or tacit, prescriptive or essential. Expressed prescriptive conditions pertain solely to liceity and are generally of the following tenor: *inimica salutari poenitentia, remoto scandalo*. Expressed essential conditions pertain to the validity of the favor itself and are exclusively those indicated by the words *si, dummodo* or others of similar import, such as, for example, *solummodo* (can. 39). In every favor, the condition *si preces veritate nitantur* (can. 40) must always be understood, even if not expressed; it is essential to the validity of the favor, as the very words—which, in the style of the Roman Curia, have been changed to others such as *si ita est, si vera sunt exposita*—reveal. With these phrases, placed as conditions, it is intended to signify that the validity of the favor is incompatible with a reticent exposition or a false motivation: the former must not conceal the truth, and the latter must not present what is false. In both cases, the judgment is to be made objectively; hence, it is of no juridical relevance whether the one or the other occurred in good or bad faith, through ignorance, or for other reasons. The first case, namely *subreptio (reticentia veri)*, occurs when the petition does not state what is necessarily required by the style of the Roman Curia; the rest, even if deliberately and maliciously withheld, does not invalidate the favor (can. 42 § 1). It is not easy to enumerate what the style of the Roman Curia requires so that the expository part does not cause the invalidity of the favor due to the concealment of truth. Some species of reticence, however, are known from common law itself, namely: 1) if a favor denied by one Congregation or Office of the Roman Curia is then requested from another Congregation or Office or from the Ordinary without mentioning the previous denial, such a request vitiates the eventual favor, except in the case of favors from the Apostolic Penitentiary, given its competence for the internal forum (can. 43); 2) if mention is not made of the denial by the vicar general of a favor that is then requested from the bishop and vice versa (can. 44 § 2, which adds that the vicar cannot grant favors already denied by the bishop without the latter’s consent); 3) if the person who is to benefit from the favor is ineligible under common law to receive it and this is withheld in the petition, as well as if local legitimate custom or a particular statute or the rights of third parties, directly contrary to what is requested, are withheld (can. 45).
*Obreptio*, on the other hand, occurs when a falsehood is asserted in the motivational part of the request. In this case, the favor is null only when the falsity of the motivation is total—that is, if a single motivating cause is false, or if the falsity extends to all the causes presented. The favor is not invalidated, however, if at least one of the motivating causes is true, even if all the others are false (can. 42 § 2). Whether a falsehood is asserted in the motivational part or the truth is withheld in the expository part regarding only a portion of the favor, the rest of the favor is not vitiated when multiple favors are granted together (can. 42 § 3). In view of the provisions of cann. 38 and 41, the truth of the prayers in the exposition and of the causes in the motivation is sufficient if it exists at the time of the execution of the favor (can. 41) or at the date of the favor if it is in gracious form (can. 38). Both *subreptio* and *obreptio* do not generate the nullity of a favor dispensing from a minor matrimonial impediment (can. 40 and 45). *Subreptio* does not produce the *inefficacy* of a favor granted *motu proprio*, unless it involves the withholding of the ineligibility of the petitioner, a contrary local custom or statute, or the rights of third parties; for these, an express derogatory clause is required for the favor to have validity (can. 45 and 46).
To resolve difficulties arising from the existence of two or more contradictory favors obtained and granted regarding the same matter (*concursus rescriptorum*), the CIC has established norms of which the first, drawn from the *regulae iuris* (34 in VI: *genera per speciem derogantur*), stipulates that the general yields to the particular or peculiar in requests and grants of a particular nature (can. 48 § 1); the second, likewise drawn from the *regulae iuris* (34 in VI: *qui prior est in tempore potior est iure*), governs the validity of two or more contradictory favors, whether general or particular, based on time or date of grant, declaring the favor of the second petitioner null so as not to violate the already acquired right of the first, unless in the second favor express mention is made of the first, which would thereby be revoked (can. 48 § 2; 46), or if the first petitioner maliciously or through continued negligence failed to avail himself of the favor received (can. 48 § 2, 46). If there is no difference in time because the favors were granted on the same day, all are null, and, if necessary, recourse must be made to the superior who granted them (can. 48 § 3).
The interpretation of favors must be literal, states the CIC in can. 49; the grant is therefore to be understood according to the usual meaning of the words by which it is expressed; hence, extensive interpretation is forbidden. In case of doubt, due to obscurity of words or ambiguity of expressions, favors of justice are to be interpreted according to common law, while those of grace are to be interpreted extensively; however, if they prejudice the rights of third parties or pertain to the acquisition of benefices or contravene a law in favor of private individuals, they must be interpreted restrictively (can. 50).
When discussing the various types of rescripts, it has been noted that they can differ according to the manner in which they are executed, with different ways of execution possible. In addition to the various modes of execution, the Code of Canon Law also establishes norms regarding the validity and legitimacy of execution, as well as the persons and time involved.
For rescripts of the Holy See issued in a gracious form or without an executor, the petitioner is required to present the rescript to his Ordinary only when the subject of the rescript is of public interest or character, or when the Ordinary must judge the existence or observance of any conditions that may have been attached to the rescript (can. 51).
When dealing with a rescript in a mixed commissorial form, execution cannot be refused unless the nullity of the rescript itself is evident due to *subreptio* or *obreptio*, or the executor has become aware of the non-observance of conditions attached to the rescript, or because, in the executor’s judgment, the petitioner is so unworthy that granting the favor of the concession would constitute a cause for indignation and offense to others. In this latter case, the executor, besides refusing execution, must notify the superior who issued the rescript (can. 54 § 1).
For execution to be valid and legitimate, it is necessary that the executor possess the rescript and verify its authenticity and integrity. Private notice of the concession does not authorize execution; in cases of urgent necessity, however, execution may proceed if the executor has received notice, even telegraphic or telephonic, from the office that issued it (can. 53).
The executor must proceed in accordance with the mandate received and observe the essential formalities of execution, fulfilling all essential conditions that may have been attached to the rescript; all this is required for the validity of the execution itself (can. 55). Execution must be committed to writing when the matter pertains to the external forum (can. 56), though this is not required for validity.
If execution has been invalid due to an error committed by the executor, the latter may repeat it (can. 59 § 1; Sacred Penitentiary, decree of 15 Jan. 1844, no. 2). Rescripts of the Holy See are generally entrusted for execution to Ordinaries; the Dataria is accustomed to entrust the execution of rescripts of benefices reserved to it to canons or other dignitaries.
If the grantor of the rescript did not intend to entrust execution *ratione personae*, the designated executor may be substituted, unless substitution has been prohibited (can. 57); the succession to the dignity or office of the executor authorizes the successor to execute, unless the executor was elected for personal reasons (can. 58; cf. can. 368 § 2; 435 § 2). The time suitable for execution is sometimes indicated by the superior who grants the rescript; if not indicated, execution may be carried out at any time, unless it has been delayed through deceit or fraud (can. 52).
The validity of rescripts is not tied to time, unless a time limit is specified within them. They may, however, cease for the following reasons:
1) by general revocation, made by a contrary law of the superior of the holder of the rescript, or when the law expressly so provides; otherwise, no contrary law renders rescripts ineffective (can. 60 § 2);
2) by revocation made by the one who granted the rescript or his successor or superior; for this to have effect, however, it must be notified to the holder of the rescript (can. 60 § 1);
3) by the cessation of the grantor’s right, if the rescript contains the clause *ad beneplacitum nostrum* or similar; the clause *ad beneplacitum Sedis Apostolicae* never causes the rescript to cease, *quia Sedes ipsa non moritur*; all others cease immediately, even in the case of a vacant see (can. 61);
4) by natural process, that is, by the cessation of the condition upon which the existence of the rescript was contingent; by the death of the holder, if the favor was purely personal; or by renunciation, if it was granted solely for the private good of the petitioner.
From a diplomatic standpoint, the rescript presents no particular features, since it assumes the extrinsic and intrinsic characteristics of the type of document it happens to resemble (bull, brief, letter).