In law, a faculty is the authority, privilege, or permission, to perform an act or function. In a broad sense, a faculty is a certain power, whether based on one's own right, or received as a favour from another, of validly or lawfully doing some action. In a more restricted sense, it means the conferring on a subordinate, by a superior who enjoys jurisdiction in the external forum, of certain ecclesiastical rights which are denied him by common law; to act, namely, in the external or internal forum validly or lawfully, or at least safely. Faculties, then, will be classified, first of all, by reason of the object to which they relate, inasmuch as; -
- jurisdiction is granted to absolve from sins and ecclesiastical censures, to dispense in vows, in irregularities relating to the reception of orders, in matrimonial impediments;
- permission or licence is given to do something which would be otherwise forbidden, as the reading of prohibited books, saying two Masses on the same day; ordaining clerics under the prescribed age;
- to avoid worry and qualms of conscience a precautionary dispensation or permission is granted to proceed in certain cases in relation to which the opinions of theologians may not appear sufficiently well founded, as for instance, a matrimonial dispensation may be conceded as a precaution, when it is not certain that an impediment exists, or permission to anticipate at 2 p. m. the recitation of the Divine Office is granted to a person who is unwilling to accept the opinion that anticipation at that hour is lawful.
Secondly, faculties, by reason of their source, are Apostolic, episcopal, or regular. Faculties are styled Apostolic or papal when they proceed from the pope directly, or through the ordinary channels of the Sacred Roman Congregations. They are episcopal, if the power or privilege conferred proceeds from a diocesan bishop, by virtue of his own power or ordinary jurisdiction, as for instance, the faculties of the diocese, to hear confessions, say Mass, preach, etc., granted to priests who labour in the diocese for the salvation of souls. Faculties are regular when they proceed from superiors of the regular clergy by reason of their ordinary jurisdiction, or by virtue of extraordinary powers or privileges conceded to them by the Holy See. Lastly, faculties are general or particular: general, when granted for indeterminate persons, though they may be limited by time; particular, when granted to designated persons or for particular cases. General faculties conceded to bishops and other ordinaries are also called indults.
The distance of dioceses from Rome, together with peculiar local conditions, render the granting of these general faculties a matter of necessity, and in 1637 certain new grants or lists of faculties were drawn up by the Sacred Congregation of the Holy Office, and since then have been communicated by the Holy See, through the Congregation of the Propagation of the Faith, to bishops, vicars and prefects Apostolic throughout the world, according to their various needs. These indults are given for a definite period, e. g. five years (facultates quinquennales), or for a definite number of cases, and are ordinary and extraordinary; the former being issued in forms or grants under Roman numerals (Formula I, II, III . . . . X), some of the latter under capital letters (Formula A, B, C, etc.), others under small letters (Formula a, b, c,), while others, finally, without special designation, begin: "In an audience with His Holiness". Formulæ V, VII, VIII, IX are no longer in use. It has been the practice to communicate to the United States grants I, C, D, and E. Of late, however, C, D, and E, with certain modifications, are combined in form T. Favours and privileges are granted likewise by the congregations in keeping with the Constitution "Sapienti Consilio" (1908), and are classified consequently in accordance with the Congregation from which they proceed. The authority of the Propaganda is not so ample in this matter as formerly, and this too in relation to countries still subject to it. Questions pertaining to the Pauline Privilege fall in every case under the sole competency of the Holy Office, while in matrimonial dispensations, for the portions of the Western Church under its jurisdiction, the Propaganda is obliged to confer with the Congregation of the Sacraments (Cong. of the Consistory, 7 Jan., 1909). Especially through the Sacred Pœnitentiaria does the pope communicate faculties for the internal forum to bishops and others, including certain confessors, in definite forms or leaflets (pagellœ).
Graces thus received from the Holy See do not restrict the prerogatives which the one favoured may already enjoy by virtue of ordinary jurisdiction or other title (gratia non nocet gratiœ). The purpose of the Holy See is to make a concession, not to lessen one's authority. Hence, for example, a bishop is authorized by the Council of Trent to dispense his subjects from the observance of the intervals prescribed in the reception of orders; consequently he is not obliged to observe the condition laid down in Form I, art. xxix, which forbids him to use this faculty in favour of a cleric actually outside the bishop's territory. While the recent legislation of the Church has sought to prevent conflict of authority between the various Roman Congregations, tribunals and offices, yet it will happen at times that two or more of these bodies will have jurisdiction in the same case.
A petition which has been rejected by one of the congregations may not be presented lawfully to another; a favour granted by another congregation, the previous refusal of the grant being concealed, is null and void. A petition in writing is not required for validity, but is usually exacted; the same may be said of application by telegraph or telephone. The form of the supplication is not prescribed except in so far as requisite data must be expressed. Petitions addressed to the Propaganda (the same is true of most of the congregations, at least to expedite matters), should be in Latin, Italian, or French. The Sacred Pœnitentiaria will accept communications in any modern tongue. The supplication is made out in the name of the petitioner, but the rescript is sent to the ordinary. The diocesan chancery office usually deals directly with the rector of the parties concerned.
Faculties can only be used in favour of members of the Church who are not disqualified by ecclesiastical penalties or censures. Hence in marriage cases where one of the contracting parties is a non-Catholic, the dispensation is given directly to the Catholic. Hence also in Apostolic rescripts absolution from penalties and censures, as far as necessary for the rescript, to be effective, is first given. Apostolic faculties granted to a bishop, which imply an act of jurisdiction in using them, can be communicated and applied only to the subjects of the bishop, and to such determinate persons as are capable of receiving the favour given by means of this faculty. Ordinarily faculties may be exercised in behalf of a subject, while both he and the bishop, or other person making the concession, are outside their own territory. When the use of faculties is restricted to the diocese, as in Forms I and C, it means that the subject, not the bishop, must be in the diocese when the indult is made use of in his behalf. In the United States any matrimonial dispensation may be conceded to one actually outside his own diocese, if be has not acquired at least a quasi-domicile elsewhere (Holy Office per Propaganda, 20 Dec., 1894). To dispense validly and lawfully by virtue of an indult, a just cause existing at the time of the dispensation is required. He who possesses general delegated power may apply it to himself, e. g. dispensing himself from fasting. There is an obligation, especially in dispensations, to be measured by the greater or less urgency of the case, of using faculties possessed. It might be noted that the Apostolic Delegate at Washington, in common with the bishops of the United States, has possessed the Propaganda Forms I, C, D, and E, together with some others, applicable of course throughout the United States. his Excellency, aside from territorial extension, possesses no greater powers in regard to matrimonial dispensations than these diocesan bishops.
A bishop cannot dispense without a special faculty, when two or more matrimonial impediments, diriment or otherwise, exist in the same case, or affect the same persons, though by reason of indults he can dispense separately in each of the impediments involved. This restriction, however, holds good only when the impediments in question are generically different, e. g. consanguinity and affinity, or where the power to dispense is given in different indults. The special faculty covering the cumulation of matrimonial impediments is usually granted with the renewal of faculties and is effective during the duration of the same. The form of this special faculty is not always identical, greater or more restricted powers being contained therein. Moreover, a bishop cannot employ this faculty when he is granting by virtue of an indult a retroactive dispensation to render a marriage valid (sanatio in radice). This question of cumulation affects dispensations only, not absolutions: a dispensation inflicts a wound on the law, not so an absolution. It is necessary for validity that the concession of a favour be made known to the one benefited; and it ought to be applied in such manner that its execution may be established. As faculties depend upon the will of the grantor, the terms of the indult must be carefully studied, and obscure passages rightly interpreted. In this matter the general rules for the interpretation of law are to be observed with some additional ones. Hence in the use of faculties it must be noted whether power to dispense is granted for matrimonial alliances already contracted, or not yet contracted, or for both. A faculty granted for the internal forum only, particularly if jurisdictional, cannot be used in the external forum, and vice versa. Faculties are not to be extended to persons or cases not included in the same. The existing practice, especially of the Roman Curia (stylus curiœ Romanœ), will serve as a guide in this matter.
Faculties expire by the death of the grantor, his removal from office or loss of jurisdiction (certain distinctions, however, are to be borne in mind, as below); by the death of the privileged one; by lapse of time, when they are granted for a definite period; when they have been used for the number of cases specified in the grant; by revocation; by renunciation duly accepted; by the completion of the business for which one has received special authorization; by cessation of the formal cause on which the favour was based. Faculties granted absolutely (not revocable at will) by one possessing ordinary jurisdiction, and gratiœ factœ (i. e., the delegate is a necessary executor), do not expire at the death of the grantor; gratiœ faciendœ (i.e. the delegate is a voluntary executor, viz, commissioned to act, if he judge it expedient) cease at the death of the grantor, when no steps have as yet been taken leading to the concession requested (re adhuc integrâ); otherwise they do not cease. Faculties granted by one enjoying delegated power cease at the death of the one delegating, unless the Holy See expressly provides for their continuance, or unless the matter in question has already been begun (re non integrâ). The power given personally to a delegate, or subdelegate, expires at his death, which is not the case if he is chosen by reason of his dignity or office. When it is stated that faculties are "revocable at our will or judgment", they expire with the death of the grantor; when given in the name of the Holy See, a diocese, etc., they continue in force after the death of the pope, bishop, etc. Indults consequently found in the Propaganda forms or other general grants as above, since they are gratiœ factœ, do not become ineffective at the death of the pope: the same is true of the faculties conceded by the Sacred Pœnitentiaria, when the prefect of that tribunal loses his jurisdiction through death or other cause. Jurisdiction granted by a bishop to hear the confession of an individual ceases, re adhuc integrâ, when the bishop dies, is transferred, or resigns: the contrary is true, when jurisdiction is given to hear confessions in general. Notwithstanding the revocation of faculties, a case already begun may be completed; and by a general revocation of faculties special faculties do not expire. Neglect to use a favour does not destroy its force, as for example, a person dispensed from fasting or the recitation of the Holy Office does not lose the grace, if he meanwhile fast or recite the Office, even for a considerable time.
All special faculties granted habitually (habitualiter), by the Holy See to bishops and others enjoying ordinary jurisdiction within definite territorial limits, remain in force notwithstanding the loss of jurisdiction through death or other cause of the individual to whom they are granted (Cong. Holy Office, 24 Nov., 1897), but pass on to his successor in the same office. They are considered not personal but real favours, granted to the ordinary of the diocese or place, and by the ordinary are understood bishops, their vicars-general, vicars Apostolic, prelates or prefects Apostolic ruling over territory not subject to a bishop, vicars capitular or other legitimate administrators of vacant sees (Cong. Holy Office, 20 Feb., 1888). It is to be noted that since these indults are granted to the ordinary, under which appellation is included the vicar-general of a diocese, said vicar-general uses these faculties, grants dispensations and other graces contained therein, by virtue of authority received directly from Rome, equivalent to that extended to the bishop himself. The bishop may forbid the exercise of these powers, but notwithstanding the prohibition, the vicar-general would act validly, were he to use said faculties, provided nothing else were wanting to render his action invalid. (See JURISDICTION; DELEGATION; RESCRIPTS; EXECUTOR, APOSTOLIC; DISPENSATION.)
TAUNTON, The Law of the Church (London, 1906); KONINGS-PUTZER, Commentarium in facultates Apostolicas (New York, 1900).
ANDREW B. MEEHAN.