RESCRIBED LETTER. — From re-scribere, this means any written reply. But already in Latin sources it signified the reply or order given in writing by the lord of the country (thus in Tacitus and Pliny); later it indicated exclusively the written reply of the prince to a request by a subject, and it retained this meaning even when it became part of juridical terminology. The term came into widespread use in the law of the Church and, above all, in the ordinary phraseology of the papal chancery. While in ancient canon law the term was used solely for the written replies of the Supreme Pontiff, in the Middle Ages it was also used for those of a prince or head of the community in general; subsequently its use was extended still further, since the written replies of those who possessed legislative or jurisdictional authority also came to be called r.
Not only as terminology but also as a juridical institution, the r. developed in canon law on Roman foundations; it was from Roman sources that medieval canonists constructed the juridical doctrine on the subject. From the earliest centuries, the popes provided in writing for the granting of favors and the introduction of particular provisions of favor or privileges in response to reports or requests from subjects. The earliest r. of which there is record goes back to Pope Siricius (a.d. 385). It is nevertheless true that the significant development of the practice, even before that of the doctrine, occurred in the Middle Ages; and such was the use then made of r. that it influenced even the development of canon law through the publication of numerous r. in the collections. In subsequent centuries the institution was perfected in its structure and more suitably incorporated into the general organization of the canonical system; to this contributed considerably both the Regulae Cancellariae Apostolicae (from the fifteenth century onward) and the more effective reorganization of the Roman Curia under Pius V (1566–72) and Sixtus V (1585–90). The last reform introduced into this institution dates from Pius X, as appears from the constitution Sapienti Consilio of 29 June 1908, the Ordo servandus in sacris Congregationibus, Tribunalibus et Officiis Romanae Curiae-Normae Communes of the same date, and the Normae Peculiares, dated 29 September 1908. This reorganization remains in force today (can. 243 § 1) and, together with the norms enacted in Title IV of the First Book of the CIC (cann. 36–62), constitutes the canonical legislation on the subject.
As a reply, the r. presupposes a question: consulati, significati, postulati are the first words found in the r. of the Supreme Pontiffs reproduced in the Corpus Iuris Canonici, or, as in the present-day r. of the Roman Curia, N. N. petit, postulati, etc.; and it is above all a request for favors, privileges, and dispensations, such as, for example, a request for the legitimation of offspring, for a dispensation from a ratified and non-consummated marriage, or for benefices or honors.
The form of the r., even in its external aspect, was never neglected, especially in those dispatched by the papal chancery; thus today, on the basis of Pius’s legislation and the practice of the Roman Curia, r. have a precise and fixed external and internal form. The external forms differ (the form of a bull, a brief, a simple letter, or a communication), with varying degrees of solemnity according to the subject, the addressee, and the circumstances. The internal form is the same for all r. and ordinarily consists of two parts: the explanatory part and the dispositive part. The first summarizes the substance of the petition submitted by the applicant, namely, the subject of the petition together with the circumstances relating to the request (the narrative part), and the grounds for it (the motivational part). The second expresses the superior’s reply: what is granted and under what conditions.
The r. also differ for internal or substantive reasons; there are therefore various kinds of r. Ratione legis, there are r. secundum, praeter, or contra ius, according to the purpose of the grant, which may respectively tend to safeguard the law (e.g., an r. appointing a judge for a case), or may not directly concern it (e.g., the granting of honors), or may constitute a derogation from the common law (e.g., a dispensation from a matrimonial impediment). In relation to their subject matter, r. are distinguished as
r. of justice and r. of grace. By the former, favors are granted for the safeguarding and administration of justice, e.g., the benefit of restitutio in integrum and of a new hearing in cases. By the latter, benefits, favors, or graces are granted exclusively, such as indulgences, honors, and dispensations. Also with reference to their subject matter, there may be mixed r., insofar as they simultaneously grant favors and serve the administration of justice, such as, for example, the granting of a benefice unlawfully possessed by another.
According to the manner in which graces are granted, r. are distinguished as r. in forma graziosa or in forma commissoria. The former grant graces or favors directly to the applicant, who is entitled to make use of the grant from the date of the r.; they are recognized by the words of the grant itself (e.g., petitam gratiam benigne imperitum, 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 juridical effect except through the executor’s communication. If he is bound to carry out the execution, he is called a necessary executor, and the r. are said to be in forma commissoria mista (cann. 38, 54 § 1); they are formulated as follows: S. Congregatio... benigne annuit, ac propterea mandavit committi Episcopo ut petitam gratiam oratori concedat; if, on the contrary, he is not bound to do so, he is called a free or voluntary executor, in the sense that it lies within his power to grant or refuse, according to his prudent judgment, the grace to the person who requested II. Such r. are said to be in forma commissoria assoluta o libera (cann. 54 § 2, 61), and are recognized by the following wording: S. Congregatio oratoris preces remittit arbitrio et conscientiae Episcopi cum facultatibus necessariis et opportunis.
According to their scope, r. may also be general or particular.
Under can. 36 § 1, the seeking of r. from the Holy See as well as from Ordinaries is free, and everyone, unless expressly prohibited, may request them and thus be in a position to obtain them (cf. can. 36 § 2). This constitutes an implicit repudiation 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), excommunicated persons were incapable of receiving r.; r. granted in their favor were therefore considered null. In the style of the Roman Curia, the practice had prevailed of inserting the clause absolutio a censuris ad cautelam, so as not to frustrate the effect of the r., perhaps granted to an excommunicated person. Under Pius X, a radical innovation was introduced in this matter by establishing that 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 a S. Sede nominatim pariter poena suspensionis a divinis multati. The Piusian provision was incorporated substantially into the CIC, with some slight innovations (cf. can. 36 § 2). Under the CIC, excommunicated persons, those personally under interdict, and those under suspicion after a condemnatory or declaratory sentence are incapable of receiving graces and dispensations from the Holy See (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). Under cann. 2291 n. 9 and 2296 § 1, those who have been subjected to the vindicatory penalty of incapacity to receive apostolic graces are to be considered incapable of obtaining pontifical r.
The CIC does not clearly indicate, nor do the authors agree, concerning the incapacity of non-Catholics, the unbaptized, heretics, and schismatics. If, in theory, the question still remains controversial, the practice followed by the Roman Curia is well defined: the unbaptized are sometimes granted, on account of special merits, rescripts conferring honors or appropriate graces; in the case of heretics and schismatics, however, it is the constant practice to grant rescripts of no kind. Those are incapable of receiving rescripts from Ordinaries to whom this has been prohibited by particular law or common law (cann. 46; 2294 § 1; 2291, n. 9).
Before the CIC, canonical legislation was rather severe regarding the petitioning of rescripts not for oneself but for others, and the authors debated the validity of a rescript petitioned for in this manner, especially if the beneficiary had not yet learned of it and had not yet accepted it; most inclined toward its invalidity. Subsequently, however, following the more indulgent practice of the Roman Curia, legislation too underwent modifications; and the present discipline clearly establishes that a rescript may be petitioned for others even without their consent. Although it remains within the recipient’s discretion whether or not to use it, the rescript has full force before and even without his acceptance, unless contrary clauses have been attached (can. 37).
Rescripts sometimes in fact contain clauses or conditions upon which their validity or liceity depends. The conditions do not all have the same value, nor are they always of the same formal and substantial character. They may be express or tacit, preceptive or essential. The express preceptive conditions concern only liceity and generally have the following wording: inuncto salutari poenitentia, remoto scandalo. The express essential conditions concern the validity of the rescript itself and are exclusively those indicated by the words si, dummodo or by others of equivalent value, such as, for example, solummodo (can. 39). In every rescript the condition si preces veritate nitantur is always to be understood, even when it is not expressed (can. 40): it is essential to the validity of the rescript, as is revealed by the very words which, in the style of the Roman Curia, have been replaced by 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 presentation or with a false statement of reasons: the former must not conceal the truth, and the latter must not state what is false. In either case the matter is to be judged objectively; consequently, 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, namely subreptio (reticentia veri), occurs if the petition did not state what is necessarily required by the style of the Roman Curia; everything else, even if intentionally and maliciously omitted, does not invalidate the rescript (can. 42 § 1). It is not easy to list what the style of the Roman Curia requires in order that the expositional part may not cause the invalidity of the rescript through concealment of the truth. Certain types of reticence, however, are known from common law itself, namely: 1) if a grace denied by a Congregation or Office of the Roman Curia is subsequently requested from another Congregation or Office, or from the Ordinary, without mentioning the previous denial, the petition so made vitiates the eventual rescript, except in the case of rescripts of the Apostolic Penitentiary, in view of its competence in the internal forum (can. 43); 2) if no mention is made of the denial by the vicar general of a grace which is subsequently requested from the bishop, or 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 petition, as also when the legitimate local custom, particular statute, or rights of third parties directly contrary to what is requested are concealed (can. 46).
Obreptio (the statement of what is false), on the other hand, occurs when a falsehood is asserted in the reasoning section of the petition. In this case the rescript is null only when the falsity of the grounds is total: if only one motivating cause was advanced and it is false, or if the falsity affects all the causes stated. The rescript is not invalid, however, if at least one of the motivating causes is true, even though all the others are false (can. 42 § 2). Both the statement of what is false in the reasoning section and the concealment of the truth in the expositional section, when relating to only one part of the rescript, do not vitiate the remainder when several graces have been granted together (can. 42 § 3). In view of the provisions of cann. 38 and 41, the truth of the petitions in the expositional section and of the causes in the reasoning section need only exist at the time of the execution of the rescript (can. 41), or at the date thereof if it is in gracious form (can. 38). Neither subreptio nor obreptio produces the nullity of a rescript dispensing from a minor matrimonial impediment (cann. 40 and 1054). Subreptio does not render ineffective a rescript granted with the clause mota proprio, unless it concerns concealment of the petitioner’s incapacity, of a custom or particular statute contrary to what had been requested, or of the rights of third parties (cann. 45 and 46); in these cases an expressly derogatory clause is required for the rescript to have force (cann. 45 and 46).
To resolve the difficulties caused by the existence of two or more contrary rescripts petitioned for and granted concerning the same matter (concursus rescriptorium), the CIC has established certain norms. The first, derived from the reguase iuris (54 in VI: genera per speciem derogantur), establishes that, in petitions and concessions of a particular character, the particular or specific prevails over the general (can. 48 § 1). The second, likewise derived from the reguase iuris (54 in VI: qui prior est in tempore potior est iure), regulates the validity of two or more contrary rescripts that are likewise general or particular, on the basis of the time or date of their concession. It declares the rescript of the second petitioner null, so that the right already acquired by the first may not be violated, unless the second rescript expressly mentions the first, which would thereby be revoked (cann. 48 § 2; 46), or unless the first petitioner has maliciously or through continued negligence failed to make use of the rescript received (cann. 48 § 2, 46). If there is no difference in time because they were granted on the same day, both, or all of them if there are more than two, are null; and, if necessary, an appeal must be made to the superior who granted them (can. 48 § 3).
The interpretation of rescripts must be literal, the CIC affirms in canon 49; the concession must therefore be understood according to the ordinary meaning of the words in which it was expressed, and an extensive interpretation is consequently prohibited. In case of doubt, owing to obscure words or ambiguous expressions, rescripts of justice are to be interpreted according to common law, while rescripts of grace are to be interpreted broadly. If, however, they injure the rights of third parties, refer to the obtaining of benefices, or run contrary to a law enacted for the benefit of private persons, they must be interpreted restrictively (can. 50).
In treating the various kinds of rescripts, it was noted how they may differ according to the manner in which they are executed, since there may be different methods of execution. In addition to the various methods of execution, the CIC also establishes norms concerning the validity and legitimacy of execution, as well as concerning the persons involved and the time of execution. For rescripts of the Holy See issued in 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 conditions that may have been attached to the rescript (can. 51). When it concerns a rescript in mixed commissorial form, execution may not be refused unless the nullity of the rescript itself through subreptio or obreptio is evident, or the executor has noticed that the conditions attached to the rescript have not been observed, or because, in his judgment, the petitioner is so unworthy that granting him the grace of the concession would constitute a cause of indignation and offense to others; in the latter case, the executor, in addition to 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 have the rescript and ascertain its authenticity and integrity; private knowledge of its concession does not authorize him to execute it: in a 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 in accordance with the mandate received and must observe the essential formalities of execution and fulfill all the 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 made in writing when it concerns a matter of the external forum (can. 56), but this is not required for validity. If execution was invalid because of an error committed by the executor, he may repeat it (can. 59 § 1; S. Penitenzieria, decree of 15 January 1894, n. 2). Rescripts of the Holy See are generally entrusted for execution to the Ordinaries; the Dataria usually entrusts the execution of rescripts concerning 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 have himself replaced, unless replacement has been prohibited (can. 57); succession to the dignity or office of the executor authorizes the successor to execute it, unless the executor was chosen for personal reasons (can. 58; cf. cann. 368 § 2; 435 § 2). The period allowed for execution is sometimes indicated by the superior who grants the rescript; if it is not indicated, execution may take place at any time, unless it has been delayed through deceit or fraud (can. 52).
The validity of rescripts is not tied to time, unless the period for which they are valid has been indicated in them. They may nevertheless cease for the following reasons: 1) through general revocation, made by a contrary law of the superior of the holder of the rescript, or when this is expressly stated in the law; otherwise, no contrary law renders rescripts ineffective (can. 60 § 2); 2) through revocation by the person who granted the rescript, or by his successor or superior; but for this to take effect, it must be notified to the holder of the rescript (can. 60 § 1); 3) upon the cessation of the grantor’s right, if the rescript bears the clause ad beneplacitum nostrum or another similar clause; the clause ad beneplacitum Sedis Apostolicae never causes the rescript to cease, quia Sedes ipsa non moritur; all the others never cease, even in the event of a vacancy of the see (can. 61); 4) through a natural process, that is, upon the cessation of the condition on which the existence of the rescript depended; upon the death of the holder, if the grace was purely personal; or through renunciation, if it had been granted solely for the private benefit of the petitioner.
From the diplomatic point of view, the rescript has no special features, since it assumes the external and internal characteristics of the type of document to which it conforms in each instance (bull, brief, epistle).