BIRTHA
580
BIRTHA
illi'.'t. It extends to first tonsure. The inhibition
that is set up is restricted to the functions that belong
cxcUisively to the clergy. In the early ages of tlie
Church no law prevented the ordination of illegiti-
mates. They were then, sometimes, debarred from
ordination, but only because of a real or supposed
depravity of life. Pope Urban II (1088-99) pro-
hibited the ordination of the illegitimate offspring
of clerics, unless they became members of approved
religious orders. The Council of Poitiers, under
Paschal II (1093-1118), extended this prohibition
to all persons of illegitimate birth. These regula-
tions were later approved by other popes and councils.
The law as laid do^^^l in the Decretals of Gregory
IX (I, X) mentions only the offspring of clerics and
those begotten in fornication. But in the sixth book
of the Decretals all persons of illegitimate birth are
expressly included. These may be ranged in the
folloning classes: (1) Natural illegitimates, or the
offspring of parents who at the time of the birth or
conception of such offspring, were capable of contract-
ing Christian marriage. (2) Spurious illegitimates,
or those born of a known mother and an unknown
father — unkno«ii because the mother had carnal
relations with several men. (3) Adulterine illegiti-
mates, those begotten of parents, one or both of
whom, at the time of the conception and birth of such
offspring, were lawfully married to a third person.
(4) Incestuous illegitimates, or persons whose parents
could not marry because of an invalidating impedi-
ment of consanguinity or affinity. (.5) Sacrilegious
illegitimates, or the offspring of parents who are
restrained from marriage because of the impediment
of Holy orders or solemn religious vows. The prac-
tice of the present day also holds as illegitimates
abandoned cliildren of unknown parentage. Legiti-
macy may not be presumed nor established by nega-
tive proof. Positive documentary e\-idence must be
adduced.
The law of illegitimacy directly debars all the fore- going classes of persons from promotion to orders, and the exercise of the functions proper to the orders already received; and it indirectly prevents such persons from obtaining a benefice. Directly, also, it prevents them from obtaining certain benefices, for the Council of Trent (Sess. 2.5, c. 15 de ref.) decreed that the illegitimate children of clerics should be incapacitated from obtaining any kind of a benefice in the Church where their fathers held one; from Tendering any ser\nce in said church; and from re- ceiving any pensions on the re\'enues of the paternal benefice. This law is not established and laid do\\'n as a punishment for the person to whom it is applied. It safeguards the honour and dignity of Holy orders. The clerical state which has the dispensing of the mysteries of God must be beyond reproach. No stain should be upon it, no blame possible. There- fore the Church raises the barrier of illegitimacy before the entrance to the priesthood. Thus the crime of the parents is held up to just reprobation, and is condemned even in the lives of their offspring. The danger of the father's incontinence being con- tinued in the life of the son is greatly lessened, for strong indications of purity of life must be given before the door of God's ministry can be opened.
The defect of illegitimate birth may be cured in four ways: (1) By the subsequent marriage of the parents; (2) By a rescript of the pope; (3) By religious profession; (4) By a dispensation. (1) The subse- quent marriage of the parents of an illegitimate has, by a fiction of law, a retroactive power which carries the marriage back to the time of the birth of the off- spring and covers it with lawful wedlock. In order that the fiction of law may produce this effect, the narents, at the time of the conception or, at least, at ilie birth of such offspring, must have been capable of contracting lawful marrisige. Therefore, this mode
of legitimation is applicable only to natural iUegiti
mates. And these, though legitimized by the sub-
sequent marriage of the parents, or even by an Apos-
tolic dispensation, are forever excluded from the
dignity of the cardinalate. (2) A rescript of the
pope confers legitimacy in so far as it is required
for spiritual affairs throughout the universal Church.
(3) ReUgious profession in an approved order cures
the defect of illegitimacy. Religious profession is
the taking of tlie solemn religious vows; but the
simple vows taken after the novitiate in some orders
produce a like effect. This mode of legitimation only
renders illegitimates capable of ordination. It can-
not be extended to dignities or even to regular prela-
cies. Hence, illegitimates thus legitimized are still
debarred from the position of abbot; and women of
illegitimate birth, for like reasons, cannot hold the
position of abbess or prioress. (4) A dispensation
granted by a lawful superior lemovcs the defect of
illegitimate birth, but only for some express purpose.
It is not a mode of absolute legitimation. The pur-
poses for which it is granted must be specified; as
for promotion to minor orders, to major orders, to
a specified benefice.
A dispensation of this kind runs counter to the common law. It is of strict interpretation, and therefore cannot be extended from like to like or from greater to less, unless the one is included in, and presupposes, the other. Such is the case when a dispensation is conceded to an illegitimate to re- ceive Holy orders. Such orders require a title, and this title is, in canon law, a benefice. The pope is the lawful superior for the universal Church, and as such he can dispense in all cases where a dispensation is possible. Bishops and other prelates having quasi-episcopal jurisdiction can dispense their own subjects, in this matter, for first tonsure, minor orders, or a simple benefice; but not for major orders, even though the illegitimacy be occult. This episcopal, or quasi-episcopal, jurisdiction does not extend to a benefice which was immediately possessed by the father of the person seeking the dispensation, nor to a benefice which by custom or privilege requires its possessor to be in major orders.
Ferr.\ris, PrompUi Biblwtheca; Schmalzgruber, Jiis Ecdesiasticum; S-\nti-Leitner, Pralfctionfs Juris Canonici (New York, 1905); Dizionario di Casuistica Morah (Venice, 1S41); S.1BETTI, Theologia MoralU (New York, 18S9); KoN- DJGS, Theologia Moratis (Boston, 1S74): Bq:nningh.4usen, Tractatus J uridico-canon. de irregularitatibus (Miinster. 1S63).
James H. Driscoll.
Birtha, a titular see of Osrhaene, probably iden- tical with Birejik (Zegma) on the left bank of the Euphrates, c. 62 miles west of Orfa (Edessa), and 95 miles north of Aleppo. Birtha (Aramaean, Birthd "castle") is spoken of as a castle by ancient authors (Hierocles, 715, 2). There was also a see called by the Greeks Macedonopolis, the foundation of the city being attributed by legend to Alexander the Great (Ainnt. Marcell., XX, vii, 17). That Macedonopolis and Birtha are one see is proved by the subscriptions at the Council of Nicsea, where we see that Bjrt' in both SjTiac and Arabic lists corre- sponds mth Macedonopolis in Greek and Latin lists (Gelzer, Patrum Nicienorum nomina, 242). The true name of the bishop present at the council is Mareas, not Marcus. Daniel, Bishop of Macedonop- olis, is said to have been present at the Council of Chalcedon (451). From the sixth century only the name Birtha sur\'ives (Georgius Cj'prius, n. 899). Emperor Anastasius, after his victories over thf Persians in 505, entrusted Sergius, Bishop of Birtha. with the work of repairing the city (Wright, ed.. The Chronicle of Joshua the Stylite, XCI, Ixxi), an undertaking that was completed by Justinian (Pro- cop., De Eedific. Just., II, 4). The oldest "Tacticon" of the Patriarchate of Antioch, issued under Anasta- sius I (599) places Birtha first among the suffragan
