Birth, THE DEFECT OF (ILLEGITIMACY), a canonical impediment to ordination. When used in this connection, the word illegitimate has, in canon law, a well-defined meaning, which is: “born out of lawful wedlock”. Illegitimate birth is an impediment to the reception of orders, and inhibits the exercise of the functions of orders already received. It is a canonical impediment, because established and laid down in the canon law as a hindrance to entering the clerical state. This prohibition does not touch the validity of orders, but makes the reception of them illicit. It extends to first tonsure. The inhibition that is set up is restricted to the functions that belong exclusively to the clergy. In the early ages of the Church no law prevented the ordination of illegitimates. They were then, sometimes, debarred from ordination, but only because of a real or supposed depravity of life. Pope Urban II (1088-99) prohibited the ordination of the illegitimate offspring of clerics, unless they became members of approved religious orders. The Council of Poitiers, under Paschal II (1099-1118), extended this prohibition to all persons of illegitimate birth. These regulations were later approved by other popes and councils.
The law as laid down 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 following classes: (I) Natural illegitimates, or the offspring of parents who at the time of the birth or conception of such offspring, were capable of contracting Christian marriage. (2) Spurious illegitimates, or those born of a known mother and an unknown father—unknown because the mother had carnal relations with several men. (3) Adulterine illegitimates, 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 impediment 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 practice of the present day also holds as illegitimates abandoned children of unknown parentage. Legitimacy may not be presumed nor established by negative proof. Positive documentary evidence must be adduced.
The law of illegitimacy directly debars all the foregoing 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. 25, 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 rendering any service in said church; and from receiving any pensions on the revenues of the paternal benefice. This law is not established and laid down as a punishment for the person to whom it is applied. It safeguards the honor 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. Therefore 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 continued 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: (I) By the subsequent marriage of the parents; (2) By a rescript of the pope; (3) By religious profession; (4) By a dispensation. (I) The subsequent 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 parents, at the time of the conception or, at least, at the birth of such offspring, must have been capable of contracting lawful marriage. Therefore, this mode of legitimation is applicable only to natural illegitimates. And these, though legitimized by the subsequent marriage of the parents, or even by an Apostolic 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) Religious profession in an approved order cures the defect of illegitimacy. Religious profession is the taking of the 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 cannot be extended to dignities or even to regular prelacies. 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 removes the defect of illegitimate birth, but only for some express purpose. It is not a mode of absolute legitimation. The purposes 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 receive 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.
JAMES H. DRISCOLL.