On dispensation

Dispensation, insofar as it is here taken, is a relaxation of the obligation of a law.

§ I

Who can dispense in human law?

I say 2°: By ordinary power there can dispense in his own laws the lawgiver himself, his successor, and the superior to whom the lawgiver or successor is subordinate. An inferior cannot, however, except by delegated power, and so far as has been granted to him either by law, by custom, or by a superior.

The first part is plain; because the obligation of a law depends upon the power of the lawgiver. To the same power it belongs to enact a law and to exempt someone from the law: which is to dispense.

[Therefore a bishop can dispense from diocesan statutes, even if they were enacted in synod. For a synod is not above the bishop, nor does it have jurisdiction and legislative power, since the priests who come together to the synod by right or are admitted have not a definitive but only a consultative suffrage; and the bishop pronounces in all things as legislator according to those votes, or even against them.

No form is prescribed for obtaining dispensations from bishops and other Ordinaries of places, or from prelates of religious orders. This one thing is to be weighed, namely whether they enjoy the faculties necessary for dispensing in matters about which question is raised in various cases.

Since causes reserved to the Supreme Pontiff are referred from all parts of the world to his authority, a twofold tribunal was constituted at Rome for granting dispensations, namely the sacred Penitentiary and the Dataria. The matters with which the authority of the Major Penitentiary, or prefect of the Penitentiary, is concerned are: delays and commutations of simple vows, commutation of the simple obligation of reciting the canonical hours, absolutions from censures and reserved cases, dispensations over irregularities, convalidations of titles, rehabilitations to benefices as well as to offices, dignities and the like, dispensations for religious wishing to pass to a stricter or laxer institute, condonations and remissions of moneys and fruits badly exacted and received in benefice matter, unless prejudice should thence follow to a third person or a certain lord. As for impediments concerning matrimony, the Penitentiary grants dispensations for the internal forum over all occult impediments, or, for the external forum, though in forma pauperum, over public impediments, of which we shall treat in the treatise on Matrimony. Dispensations over impediments public by their nature are expedited by the Dataria. Of these likewise we shall speak in the same treatise.]

Plain also is the second part; because to dispense is an act of jurisdiction. An inferior has no jurisdiction over the law of a superior except insofar as it is conceded to him, either by that superior himself, or by law or custom.

For delegated power is twofold: one from law or custom, which, while granted or annexed in perpetuity not to the person but to the office or dignity, is equated with ordinary power. Cap. Quoniam abbas, de officio delegati, Decretal. lib. I, tit. 29, and L. I, ff de officio ejus cujus commissa est jurisdictio. The other is from man in two ways: either after the manner of grace, in favor of the delegate, and this is of broad interpretation, nor does it expire at the death of the grantor if conferred absolutely; because, according to cap. Si cui, de praebendis, in 6°, « A benefit once granted by a prince ought to endure. » Or after the manner of commission and mandate, in favor of some cause or person, and this is of strict interpretation and expires at the death of the grantor, provided the matter be entire and not yet begun to be put into execution. Cap. Relatum, de officio delegati, and the cited cap. Si cui.

Whence you gather that bishops cannot dispense by ordinary power in the laws of Supreme Pontiffs and councils, yet can in many cases by delegated power.

1° When the law expressly grants this to them: thus Trid., session XXIV, cap. 6, de Reformat., grants them power to dispense in all irregularities arising from hidden delict, excepting that which arises from voluntary homicide and from the others brought to a contentious forum.

2° They can by custom and tacit consent dispense in lighter matters and such as happen frequently, as in fasts, feasts, the Canonical Hours and the like; because this the fitting governance of the diocese requires, nor is it likely that the Pontiff wishes recourse to be had continually to himself for light matters, or such as occur frequently. In fasts and feasts pastors also can do this, by custom.

3° They can, by tacit consent, dispense in things which brook no delay, because it is presumed by law that the Supreme Pontiff wills not that the faithful remain so long in sin or in danger of sinning. Thus they dispense in occult impediments, if these be discovered after marriage contracted with good faith at least on one side; not however in those discovered before the contract, unless perchance they be detected immediately before the celebration, which cannot be deferred without grave scandal. Likewise they dispense in the impediment of seeking the debt which one party contracted through intercourse with a blood relative in the first or second degree of the other.

What I have said hitherto of bishops must be said of prelates of exempt Regulars respectively toward their subjects; because in things pertaining merely to jurisdiction they are as it were the bishops of their own men.

§ II. — Whether dispensation without legitimate cause is licit and valid?

I say 1°: A superior dispenses illicitly without legitimate cause in his own law or that of an inferior¹.

It is proved: because 1° he who dispenses without legitimate cause is an imprudent and unfaithful dispenser²: imprudent, because he acts rashly, without reasonable cause; unfaithful, because he intends not the common good, unto which the law was instituted, and which he ought by his office and implicit pact with the community to intend. 2° Because to exempt from the law him who is not to be exempted is respect of persons. 3° Because it is base and against natural reason that a part without cause fail of con-

^{1 2 1} Ibid. ² Ibid.

formity with the whole; which he does who dispenses without cause. 4° Finally, because power is given unto edification, and not unto destruction; whence Bernard, lib. de Consider., c. 4, n. 18, calls dispensation of this kind « a cruel dissipation. »

I say 2°: A superior dispenses validly without legitimate cause in his own law and that of an inferior.

It is proved. A law, both in coming into being and in being preserved, depends absolutely upon the will of the lawgiver; so that if, although a legitimate cause urged, he instituted it not, or abrogated without legitimate cause a law already instituted, there would be no law, nor would anyone be bound. Therefore, if he take away the obligation of the law for someone, that man is not bound.

It is confirmed. Those who are dispensed without cause from impediments of matrimony validly contract matrimony; for no one complains against the validity of such matrimony. Therefore valid is the dispensation.

[This the Council of Trent lays down concerning dispensations, session XXV, cap. 18, de reform.: « As it publicly conduces at times to relax the bond of law, that more fully, cases and necessities arising, satisfaction may be given for the common utility; so more frequently to loose the law, indulging petitioners rather by example than by a sure selection of persons and things, is nothing else than to open to each one the way for transgressing the laws. Wherefore let all know that the most sacred canons are to be observed exactly by all, and, as far as lies within their power, indiscriminately. But if an urgent and just reason, and sometimes greater utility, require that dispensation be made with some, this shall be done by whomever the dispensation shall concern, the cause known, with the greatest maturity, and gratuitously; otherwise the dispensation thus made shall be judged surreptitious. »

You will ask 1° whether a superior dispensing without cause sins mortally, and the inferior who makes use of such dispensation.

I answer, to the first, with the Angelic Doctor, here a. 4, c.: « If without reason, out of mere will, he [the superior] grant license, he will be neither faithful in dispensing nor prudent: unfaithful indeed, if he have not intention toward the common good; imprudent, however, if he know not the reason of dispensing. » And ibid., ad 1: « When dispensation is made with anyone that he keep not the common law, it ought not to be done to the prejudice of the common good, but with the intention that it profit the common good. » Therefore, although the lawgiver be lord of his own law, he seems to sin if he dispense without cause, because he thus weakens the law and provides not sufficiently for the common good. Some say he sins mortally if the matter be grave. Others teach better that then the sin is none other than venial, scandal or grave damage of anyone being set aside; for the disorder does not appear as grave of itself. S. Lig., lib. I, n. 178.

I answer, to the second. The Salmanticenses, de Legib., cap. 5, punct. 6, § 3, n. 76, with Suarez and others, cited by S. Ligorius, lib. I, n. 178, teach commonly that one using such dispensation does not sin gravely, and to themselves also it seems probable that the sin is not even venial. This is to be understood if scandal be absent, nor damage thence accrue to anyone.

You will ask 2° whether it be licit to seek or to grant a dispensation when it is doubted whether the cause be sufficient.

I answer. 1° It is licit to seek, because it pertains not to subjects to judge of the sufficiency of the cause, but they are bound only to expose the matter sincerely to the superior.

I answer. 2° It is licit to grant, because otherwise an intolerable burden would be imposed upon superiors; for since matters are often ambiguous, superiors would be distressed by scruples and anxieties, and if then they were held to take refuge in the safer side, there would be danger lest they fall into excessive severity.]

I say 3°: An inferior neither licitly nor validly dispenses without legitimate cause in the law of a superior; because the superior is not held to grant the faculty of dispensing except for legitimate cause. Nor can the inferior do more in this matter than has been granted to him by the superior. Therefore.

Whence, if the Pope dispensed without sufficient cause in a vow or oath, which are of divine law, or a bishop in the law of a Pontiff or of councils, there would be no dispensation; unless perchance he thought the cause sufficient in good faith, since it is foundedly presumed that so the superior wills, to avoid grave scruples and continual anxieties.

[You will ask 1° whether a dispensation obtained by force or fear is valid.

I answer. Affirmatively, provided these three things stand: 1° that a cause of dispensing exist; 2° that the will of dispensing have not been wanting in the superior; 3° that no cause of nullity be present from elsewhere. So S. Ligor., lib. I, n. 184, and many cited by him.]

You will ask 2° what are the legitimate causes of dispensing.

I answer. Generally speaking, three are commonly assigned: piety, utility, especially of the common good, or such as redounds to the common good, and necessity; which ought not to be so great that it of itself takes away the obligation of the law, otherwise there would be need not of dispensation but of interpretation only.

§ III. — Of obreptive and subreptive dispensation.

Obreptive is said of what is obtained by alleging a falsehood; subreptive, by concealing the truth.

I say 1°: If the obreption or subreption fall upon the principal cause of the dispensation, the dispensation is null. So decrees Innocent III, cap. Super litteris, Decretal. lib. I, tit. 3, de rescriptis; and this at the very least is signified by the usual clause of dispensations: « Si preces veritate nitantur », which, were it not appended, must always be understood, from cap. Ex parte, same title. The reason also is plain; because the superior intends to dispense only on account of this cause, which is principal, and without which he would not dispense. Therefore, this failing, the dispensation falls. For the same reason, the same must be said if the obreption or subreption fall upon that without which, although it be not the principal cause, the superior would not dispense in such manner and form, but with an added condition and burden: as if a rich man seek dispensation in forma pauperum, as I shall say below.

I say 2°: If the obreption or subreption fall upon an impulsive cause only and less principal, from the malice of the allegant, it is more probably null; if from the simplicity and ignorance of the allegant, it is valid. Thus expressly distinguishes and ordains Innocent III, cited cap. Super litteris, de rescriptis.

I say 3°: Subreption or concealment of truth pertaining to the thing per se and intrinsically, or error concerning the moral substance of the matter, renders the dispensation null: as if you have two affinities or consanguinities on the side of either parent, and express only one; if you ask to be dispensed over an affinity and it is consanguinity, or over a consanguinity and it is affinity, or over the fourth degree and it is the third; because, although perhaps the superior would have dispensed equally had you expressed the matter as it is, he is nevertheless held to concede precisely what is asked, and nothing else. More probable, however, I judge — against certain authors — is that if dispensation be sought for the third degree, and it is the fourth, it is valid; because dispensation of the whole is dispensation of the part contained in the whole, and the fourth degree is contained in the third.

I said, « Error concerning the moral substance of the matter »; because, if there were error concerning the physical substance, and nothing pertaining to the dispensation, it would not vitiate the dispensation: as if you call yourself an advocate when you are a physician, or there be error in the name, Peter being put for Paul; for the superior intends to dispense with the petitioner himself.

I say 4°: When dispensation is sought at the Roman court, subreption or concealment of what the law or the style of this court requires vitiates the dispensation; because, although it be not the principal cause, it is nevertheless the condition sine qua the Pontiffs do not intend to dispense. Whence

You will gather 1° that, if you seek at the Roman court dispensation over consanguinity, not expressing the incestuous intercourse, if it preceded, the dispensation is null, from the style of the court; likewise, if the marriage has been contracted or consummated; likewise, if you have contracted with knowledge of the impediment and with rash hope of obtaining the dispensation more easily, and these you do not express, there is no dispensation.

It is to be observed, as to the incestuous intercourse, if it be occult, that dispensation is sought in the sacred Penitentiary, the names suppressed, to avoid infamy or other damage. But when the impediments are manifest, or easily made manifest, dispensation is granted not by the Penitentiary but by the Dataria, and the names must be expressed; because, since a public impediment is concerned, the matter can be brought to a contentious forum, and the decree of the Dataria must be published. In the Penitentiary the commission of dispensing is directed to the confessor, who shall be a master or professor in theology; in the Dataria, to the official of the place. In the Penitentiary all things are granted gratuitously; in the Dataria is paid the mulct, to be expended on the propagation of the faith, or on other pious uses.

You will gather 2° that, when there are several impediments, for instance consanguinity and affinity, or several consanguinities or affinities, there is no dispensation if it be sought separately, now for one, afterwards for the other; but it must be sought for all together. Likewise there is none, if it be not expressed in which line the relationship lies, whether direct or transverse, and in what degree, equal or unequal. Similarly in spiritual cognation, if it be not expressed whether it be spiritual daughterhood or compaternity, whether one baptized, or only stood sponsor. The same say of confirmation. Likewise none, if dispensation be sought over the crime of uxoricide, without expressing that like dispensation was already obtained. Likewise, if one dispensed over defect of birth for Orders and benefice afterwards seeks dispensation over plurality of benefices, not again expressing defect of birth. Likewise, if dispensation be sought in forma pauperum, and the petitioner be not truly poor. And all these things and certain others come from the style of the Roman court.

Dispensation is sought in a threefold form: in forma pauperum, of honest men, and of nobles. That some be judged truly poor, they must be such that they live only from their labor and industry; and therefore it must be expressed in the petition, so that, if that alone be omitted, the petition is useless. Poverty on both sides must be expressed in the petition.

Daelman, doctor of Louvain, quaest. ultima, observat. ultima, de Matrimon., writes that those should be judged poor who have two or three thousand florins, whether in movables or immovables: both because, if they petitioned in forma honestorum, they would have to be stripped of the greater part of this sum for the dispensation, for which a thousand or two thousand florins are asked, according to the closeness of the degrees, and thus they would become poor; and because these few goods are for them as it were the instrument whereby they can work fruitfully by labor and industry, drawing thence no fruits, or fruits so small that they are reputed as nothing. The theologian cited adds that the Apostolic Nuncio judges thus when petitioners are sent to him by parish priests.

You will ask 1° whether, when the Romans append in the dispensation other causes than those which the petitioner set forth, those causes must be true, that the dispensation be valid.

I answer. Negatively, but it suffices that those proposed by the petitioner be true; for it is not on account of anything else that he asks to be dispensed, and in truth on account of those he is dispensed: but others are appended from the style of the court, and lest the dispensation appear given for lighter causes.

[You will ask 2° whether a dispensation can be validly obtained not only for one who knows not, but also for one who wills not.

I answer. Affirmatively, if necessity or at least sufficient motive be present. This right reason dictates, and it seems to be drawn from cap. Si motu proprio, de praebendis in 6°. But the dispensation must be accepted by him dispensed. Otherwise, however, must it be said of dispensations impetrated from the Roman Penitentiary, unless they be sought by persons joined or blood relatives within the fourth degree, for matrimony, or at least by the confessor, on account of motives which he judges grave. So S. Ligor., lib. I, n. 186.]

You will ask 2° whether, the dispenser dying, the dispensation ceases.

I answer. Negatively; because grace does not expire at the death of the grantor, cap. Si super, de officio delegati in 6°. Which is true also although the dispensation have been conceded subject to revocation; because the living dispenser revoked not, nor does the dead man revoke. Otherwise, if he had said: « Until I will », or: « Until it please me »; for the dead man no longer wills, nor does it any longer please him.

[You will ask 4° how dispensation ceases.

I answer. It ceases in three ways, namely: by cessation of the cause, by revocation, by renunciation.

1° If the final cause cease at the time when the letters of dispensation are expedited, the dispensation has no effect. For the superior is not held to dispense without cause; and from cap. Ex parte, Decretal. lib. I, tit. 3, de rescriptis, « in letters of this kind this condition is to be understood, even if it be not appended: Si preces veritate nitantur ». — If the final cause cease after the expedition of the letters, but before their publication and execution, since the commissary cannot dispense in the name of the superior except under the same condition and restriction, although the dispensation was at first valid, it is then affected with nullity. — If the final cause cease after execution of the letters, a distinction must be made. Either the matter consists in one act, and the dispensation removes only an impediment; and then, the impediment removed, it cannot revive through a change of circumstances, according to rule 73 juris in 6°: « A deed legitimately done ought not to be recalled, although a case afterwards arise whence it could not have been begun. » Or the matter has successive course and coalesces out of several acts, as the quadragesimal fast, the recitation of the canonical hours; and then, since the dispensation is virtually multiple, it undoubtedly ceases when its cause is taken away, if namely he who obtained it on account of weak health afterwards perfectly recover. — If the final cause be held likely to endure forever, the dispensation remains. Thus he who was dispensed from irregularity to receive sacred Orders, even if for a long time he may be unwilling to receive them, can afterwards, his mind changed, be legitimately promoted. — But if only the impulsive cause have ceased, the dispensation does not vanish, unless it were expressly conceded under this condition.

2° Dispensation altogether ceases through revocation expressly made by the superior, because obligation or release from obligation hangs upon him. Revocation without just cause would indeed be illicit, but nevertheless valid. S. Ligor., lib. I, n. 197, with others, holds that the sin of the superior is then venial only. An inferior prelate who dispensed by delegation does not validly revoke the dispensation without cause.

3° The one dispensed can renounce the grace obtained, with the assent of the superior, before he has secured its effect, and can use it no longer. Excepted: if the renunciation redound to the damage of another or of the community in whose favor the dispensation was bestowed, or if the prelate, for just cause, command the subject to make use of the dispensation.]