Irregularity

From the Catholic Encyclopedia

(Lat. in, not, and regula, rule, i. e. not according to rule)

A canonical impediment directly impeding the reception of tonsure and Holy orders or preventing the exercise of orders already received. It is called a canonical impediment because introduced by ecclesiastical law, for the canons prescribe certain requisites for the licit reception of orders, e.g. moral probity, proper age, legitimate birth, knowledge proportionate to each order, integrity of body, mind, will, and faith. A defect in these qualities prescribed by church regulations is rightly called an irregularity. The direct effect of an irregularity is twofold: first, it prohibits the reception of orders and, second, prevents an order received from being licitly used. Indirectly it impedes one who has become irregular from obtaining an ecclesiastical benefice.

TOTAL OR PARTIAL

Irregu1arity is total when it prohibits the reception of any order and the exercise of every order already received. Such, for example, is the irregularity arising from voluntary homicide. If partial, it interferes with some exercise of an order or prevents only the ascent to a higher order. Thus, the absence of the left eye would not prevent one from ministering as a deacon, but he could not receive the priesthood, and a priest who lost his thumb would become irregular for sacrificing at the altar, but not for hearing confessions.

PERPETUAL OR TEMPORAL

The former irregularity is of its nature enduring; the latter, existent only for a certain period, as a defect of age.

EX DELICTO OR EX DEFECTU

The main division of irregularities is into those which are the consequence of crime (ex delicto) and those which arise from defect (ex defectu), according as they have been imposed by law on account of crimes by reason of which a person becomes unworthy of the reception of orders or their exercise or have been imposed on account of certain defects which would be indecorous in a sacred minister. It is not to be supposed however that irregularity ex delicto has been directly and proximately imposed as a punishment; for when the Church declares one irregular on account of crime, she does not primarily intend the punishment of the guilty one, but rather desires to shield the sanctuary from profanation. As a consequence, irregularity ex delicto resolves itself logically into irrregularity ex defectu. The distinction, however, must be retained in practice, both on account of the laws of dispensation and because irregularity ex delicto is a result of wrongdoing. This distinction has been taken by canonists from a decree of Pope Innocent III (cap. "Accedens", xiv, X, "De purg. canon.").

(1) Irregularities ex Delicto or on Account of Crime

In the primitive Church those who had performed public penance for a crime, whether notorious or secret, were not allowed to receive orders; and if already ordained were not admitted to higher orders. This was the first form of irregularity in the legislation of the Church, if we except certain prescriptions which appear in the New Testament (I Tim., iii, 2; v, 22; Titus, i, 6). After public penance had fallen into desuetude all faults were atoned for by private penance, and then began the distinction found in the "Corpus Juris Canonici" (c. xxxii, ß 3, d. l) between public and private crimes, to the effect that the former produced irregularity, while the latter did not. This was the second form that irregularity assumed. At present, however, a different rule obtains, namely, that only those crimes which are expressly mentioned in law, whether they be public or private, can produce irregularity ex delicto; though it must be noted that crimes to which irregularity is attached on account of infamy do not make a person irregular if they remain secret, while the other crimes mentioned in law do produce irregularity, whether they be public or occult. For the incurring of irregularity ex delicto the act must be external, consummated, and of mortal gravity. Hence, if, on account of circumstances, the act be not a mortal sin, no irregularity is incurred; for while it is true that irregularity is not constituted precisely on account of crime, yet, as a matter of fact, it is never imputed unless there be a crime of mortal gravity. The exception to this rule is homicide, which may sometimes make a person irregular when the fault is only venial. It is to be noted that penance cannot prevent the incurring of an irregularity. Suppose there be question of a doubtful crime. If the doubt be one concerning the law (dubium juris), viz, whether there really exists a canonical irregularity on account of a particular crime, then an irregularity is not incurred. If the doubt concern the fact (dubium facti), viz, whether the crime was actually committed or, if so, whether the act was of mortal gravity, canonists reply with a distinction: if the doubtful fact concerns homicide, then it is probable that irregularity was contracted, on account of the peculiar incongruity of homicide with the clerical state; but if the doubt concerns any other fact, then it is probable that the irregularity has not been incurred, for the accused has the benefit of the doubt.

Homicide and Mutilation

(a) Voluntary homicide, even if occult, is a perpetual irregularity both for the reception of Sacred orders and for the obtaining of any ecclesiastical benefice or office. The same holds for procuring the actual abortion of a living fœtus. The penitential practice of the Church, however, presumes that the male fœtus is animated only after forty days, and the female after eighty days. All those who concur in the homicide as instigators or counsellors also incur irregularity, unless they retracted before the deed was committed and so that their retraction could have been known to the actual perpetrators. As for co-operators in a homicide, if several conspire together, or if in a public brawl all joined in the attack and it can not be known who inflicted the fatal wound, all become irregular, at least in the external forum. Those who are in justice bound to prevent a homicide and neglect their duty also incur irregularity. Homicide for the necessary and just defence of one's own life, when no other means would ward off the danger, is free from irregularity; but this is not the case if the killing was unnecessary or if the act was perpetrated in defence of goods or even of the life of another. Accidental homicide or that performed by a person who is irresponsible produces no irregularity. When a person performs a licit act, but omits to use all proper diligence or is not sufficiently skilled, and a death follows, he becomes irregular if he could have foreseen the consequence of his act. It is on this account that Benedict XIV declares that physicians wishing to receive Sacred orders should obtain a conditional dispensation.

(b) Mutilation, in the canonical sense, is the separation from the body of one of its principal members or of some part of the body having a distinct office, as a hand or a foot or an eye. He, therefore, who cuts off a finger is not a mutilator, unless it be the index finger or thumb, which, for a priest, are accounted principal members. Those who mutilate themselves or procure mutilation without just cause incur irregularity. In practice, these two points are to be observed concerning homicide and mutilation: first, in doubt as to the fault where the fact is certain, a conditional dispensation must be obtained; and second, in every case of homicide, even accidental, a priest must abstain from the altar until the case be passed on by proper authority.

Abuse of Baptism

This is an irregularity contracted by those who unconditionally reiterate baptism knowingly and openly. In such a case the persons baptizing, receiving baptism, and those co-operating in it all become irregular. Some authors hold that the same irregularity is contracted by those who confer conditional baptism where there is no prudent doubt that the first baptism was valid. Other canonists deny this and their opinion seems preferable. A person who allows himself to be baptized without necessity by a declared heretic falls also under this impediment. It is evident, however, that this does not affect infants baptized by heretics.

Violation of Censure

Irregularity is incurred under this head by those who presume to exercise orders while under censure, i. e. while excommunicated or suspended. It applies equally to all clerics whether in major or minor orders and to the excommunicate vitandi and tolerandi. But to incur it, the incriminating act must be one of order, not jurisdiction, and it must be performed ex officio, with full knowledge and temerity.

Abuse of Ordination

Those who in bad faith receive Sacred orders from bishops who are under censure become irregular and incur suspension from the order received. If the defect be principally in the one ordained, however, he is suspended, but probably does not incur an irregularity.

Heresy, Apostasy, and Schism

Heretics in general are irregular, whether they were born in heresy or lapsed into it from the Catholic Faith. This irregularity also includes the children of heretics to the second degree in the paternal line, and to the first degree in the maternal. If the parents embrace the Catholic Faith, their offspring is no longer irregular. Those born of Jews and pagans are not comprehended under this irregularity. Children are held irregular if born after their parents have fallen into heresy, and if the parents die in heresy. Some older canonists held that in countries where Catholics and non-Catholics live mixed together this irregularity was not contracted. A decree of the Holy Office (9 July, 1884), however, declares that the children of those who die in heresy are irregular, even in countries where heresy is rampant and unchecked. A schismatic is not irregular, unless he be at the same time a heretic. Such schismatics, however, where heresy is conjoined, even after restoration to the unity of the Church, remain irregular, as do also heretics after abjuration and apostates after penance.

Defect of Fame, or Infamy

This is defined by canonists as a state of lowered dignity, or a privation or diminution of the esteem of men. It is called infamia juris when the law declares one to be infamous either ipso facto or after judicial sentence. To the first class of infames belong those who are guilty of marriage with a prostitute, who attack cardinals, commit rape, engage in duels, embrace heresy. Children of those who commit high treason or lay hands on a cardinal are also infamous. If civil laws intend to brand a guilty person with infamy he is held as infamous by Canon law. To the second class, or those who are held infamous only after judicial sentence, belong all convicted of certain crimes expressed in law or who have been condemned to very degrading punishment. Defect of fame is called infamia facti when one perpetrates any crime which forfeits the good opinion of the community. When one's good name is lost only through a widespread suspicion this is deemed sufficient to impede the reception of Sacred orders. In ancient times certain classes of people, such as hangmen, actors, and others, were considered infamous by their very employment, but at present the actual opinion of the community must be consulted.

(2) Irregularities ex Defectu or on Account of Defect

Proper Age

The Church has prescribed a certain age at which the various ecclesiastical orders may be licitly received (see ORDERS, HOLY).

Defect of Birth

In primitive times illegitimacy was no bar to ordination. In 655 the Ninth Council of Toledo decreed that illegitimate sons of clerics in major orders should be held as serfs of the Church and not be admitted to Holy orders unless first manumitted by the bishop. In the ninth and tenth centuries those born of violated virgins or of incest began to be held as irregular. Various canons were also formed concerning different details of illegitimacy, until finally a general prohibition against all spurious children being admitted to orders was enacted, on the ground that the stain of birth would be a stain on the sacred ministry. At present, therefore, all illegitimate persons are irregular unless they have been legitimated by the subsequent marriage of their parents or by profession in a religious order or by papal rescript. Foundlings of unknown parentage should receive conditional dispensation. Those also are held to be irregular who, though sprung from valid marriage, were born while their parents were bound by solemn vow or after the reception of Sacred orders.

Defect of Liberty

Slaves are irregular unless liberated by their masters. The same irregularity affects those who are responsible to the civil government for the administration of certain offices or duties, as judges, magistrates, guardians, administrators, soldiers. These are not to be ordained until they have freed themselves from their civil duties and dispelled any suspicion of fraudulent dealings. Those, however, who administer charitable funds or have the care of the poor or orphans are not included. Owing to defect of liberty a husband cannot receive orders during the lifetime of his wife, unless she enter religion or make a vow of chastity.

Defect of Matrimony, or Bigamy

In canonical phraseology, bigamy may be of three kinds. It is called true bigamy when a man has contracted a second marriage after the death of his first wife. Such a person is considered irregular for Sacred orders, because according to Innocent III a second marriage does not signify the union of Christ with His Church in the same manner as does a first marriage. Hence this irregularity is technically called defectus sacramenti (i. e. matrimonii). The impediment is not contracted, however, if either the first or second marriage had not been consummated. Bigamy is called interpretative, when, by fiction of law, a person is accounted as having had two wives, when in reality he had but one. This is the condition of a man who marries a widow or one corrupted by another. Similitudinary bigamy is contracted by a person who, bound by solemn religious vows or by Sacred orders, enters into a so-called marriage. Such a one is considered to have contracted two marriages, the one valid and spiritual with Christ, the other carnal and invalid with his guilty partner.

Defect of Mildness

This impediment, termed in Latin defectus lenitatis, makes those persons irregular who voluntarily, actively, and proximately take part with sanction of public authority in the lawful killing or mutilating of another. The reason of this irregularity is that since Christ was the gentlest of men, and priests are His representatives, they should likewise be models of mildness. This irregularity may be contracted in war. Canonists hold generally that in an unjust war all those soldiers who take part in it fall under this impediment if any of the enemy be killed or mutilated. In a just offensive war, both clerics and laics who personally kill or mutilate others become irregular, but not those who exhort others to action, without taking part in the fighting themselves. In a just defensive war, some canonists say that no one contracts irregularity, not even a cleric who personally serves in the ranks and slays others when laymen are not in sufficient numbers to repel the enemy. Other canonists, however, hold that such a cleric would incur irregularity, and this opinion seems more in accordance with Roman decrees (S. C. C., 13 Jan., 1703; 17 Feb., 1816). Irregularity is not, however, contracted by the mere fact of a person's entering military service. Defect of mildness also constitutes an irregularity for those concerned in legal capital punishment, as judges pronouncing sentences of death, witnesses, accusers, clerks writing out the sentence, and those who carry it into actual execution. As jurymen with us are really judges, they would seem to contract this irregularity likewise. The law is so strict that a judge who decrees a death sentence which was not carried out remains irregular for the reception of Sacred orders. Clerics who prosecute a layman before a court for injuries done to themselves must protest, according to Boniface VIII, that they do not desire sentence of capital punishment, if they wish to keep clear of irregularity. Similar protestation must be made by the ordinary who allows a corpse to be disinterred from the cemetery with a view to proving that some one had committed murder. Those who only remotely concur in a death sentence, as legislators, chaplains, and the like, are not included in this irregularity. As to clerics who practice surgery there is divided opinion among canonists, and while some hold that they contract this irregularity, others deny it, unless they can be shown to have incurred the impediment of homicide or mutilation. Mere disobedience of the Church's laws as to the practice of surgery by a cleric may be a sin, without necessarily being an irregularity.

Bodily Defects

These constitute an impediment to Sacred orders, either because they render a person unfit for the ministry or because his deformity would make him an object of horror and derision. The following are, therefore, irregular: mutilated persons, those having an artificial limb or who are unable to use their hand or thumb or index finger; the blind and those whose vision is too dim to allow them to read the Missal. Some authors, e. g. Noldin, think that, owing to the present ingenious construction of artificial limbs, this defect is no longer an irregularity, as it has ceased to be a deformity. The absence of an eye, even the left eye, may not constitute an impediment if the person can read the Mass without deformity. In case of doubt the bishop is judge, and, when the defect exists, he makes his declaration to Rome, but in practice the Sacred Congregation generally inclines to the severer view. Total deafness, dumbness, and stammering to such an extent as to make it impossible to pronounce complete words are likewise impediments. Paralytics, the lame who cannot properly perform the ceremonies, those who cannot drink wine without vomiting, lepers, those afflicted with the falling sickness, and in general all whose deformity is very notable are irregular.

Defect of Reason

This irregularity includes the insane, energumens, and simpletons.

Defect of Knowledge

Those who have not acquired the knowledge prescribed by the Council of Trent for the various grades of Holy orders cannot be licitly promoted to them. This defect is one that cannot be dispensed in, say canonists, because it falls under the natural law. When its cause, ignorance, disappears, however, the irregularity disappears without any dispensation.

Defect of Confirmation in Faith

This irregularity embraces neophytes recently converted and those who have not received the Sacrament of Confirmation.

CESSATION OF IRREGULARITIES

Many of the irregularities ex defectu cease without dispensation when their cause is removed. Such are the defects of age, liberty, knowledge. The same is to be said of infamy if it is infamia facti. If it be infamia juris, however, there must be a formal restitution of fame. If the infamy was contracted owing to some civil law it ceases in the ecclesiastical forum at the same time as it does in the civil forum. If a person was accounted irregular on account of some occupation in life, the dismissal of such occupation or condition will remove the impediment without any dispensation. All other irregularities need formal dispensation. In this matter the pope has absolute jurisdiction. A limited power of dispensation is conceded to bishops either by law or special faculties. By canon law a bishop can dispense from irregularities arising from similitudinary bigamy; likewise from illegitimacy, but only for minor orders. The Council of Trent declares that bishops may also dispense in all irregularities and suspensions arising from secret crimes, except voluntary homicide and those concerning which proceedings have been instituted before legal tribunals. The bishop can use his dispensing power, however, only for his own diocesan subjects. In voluntary homicide which is public or notorious the pope himself rarely dispenses. In homicide committed for one's own defence as well as secret accidental manslaughter, the bishop can dispense. If the latter deed be public the ordinary's powers extend only to minor orders. Heresy, schism, and apostasy are reserved to the pope, and for them the bishops need special faculties. Bodily defects are to be passed on by the local bishop, but the dispensation must come from the pope. Illegitimacy as an impediment to Sacred orders is reserved to the pope, but it is also removed by a solemn religious profession. Faults committed before baptism do not produce any irregularity. From this sketch it will be seen that irregularities have been constituted by the Church to preserve the dignity and sanctity of the sacred ministry.

TAUNTON, The Law of the Church (London, 1906), s. v.; AICHNER, Compendium Juris Ecclesiastici (Brixen, 1895); FERRARIS, Bibliotheca Prompta, IV (Rome, 1888), s. v.; LAURENTIUS, Institutiones Juris Ecclesiastici (Freiburg im Br., 1908), 49-69; BOENNINGHAUSEN, De Irregularitatibus (Münster, 1863-66); RICHERT, Die Anfänge der Irregularitäten (Freiburg im Br., 1901).

WILLIAM H. W. FANNING.