20. On Dispensation of Law

1. Leopoldus sought from his confessor a dispensation from the law of abstinence and fasting, both because he was already fifty-eight years old, and because he suffered weakness of the stomach, needing more abundant food, and experienced nausea at fasting foods. Hence not infrequently, on account of fasting, he suffered in the head, and on account of abstinence he could not take sleep at night. The confessor refused to give the dispensation, saying that he did not have such power. Hence Leopoldus went to the parish priest, seeking from him the same dispensation; but the parish priest granted it only for the days of fast already imminent in the Ember days, saying that he could not dispense except only in particular cases. Wherefore Leopoldus sought an indefinite dispensation from the bishop, who denied it. Then Leopoldus wrote to Rome, seeking a perpetual dispensation, and affirming as the cause in the supplicatory libellus both advanced age and infirmity, passing over in silence the denial of the bishop. The dispensation having been obtained, after a year Leopoldus is so well that he anxiously doubts whether he can licitly use it.

Q. 1. Who can dispense in laws? 2. What as to the case of Leopoldus?

R. To the first, cf. I. M. 241. To the second: the confessor of Leopoldus responded rightly that he could not dispense. A confessor, unless he has a special faculty delegated to him in this matter, cannot dispense either in the external forum or in the internal forum. For an inferior cannot dispense in the law of a superior. Yet where a cause is present which of itself excuses Leopoldus from abstinence and fasting, for example, infirmity, or another grave detriment, then the confessor can in a particular case declare that the law does not oblige. And in such a case Leopoldus by no means ought necessarily to seek a dispensation, although he can easily do it, since the law then does not urge. And this also holds in doubt whether the case needs dispensation, if he himself can form his conscience for himself; for otherwise then properly there has place the office of the confessor, that he declare the law, in the case, not to urge. But this was not in reality the case of Leopoldus, who was seeking a dispensation absolutely and perpetually. The parish priest also responded rightly. For the parish priest can by custom dispense in cases of this sort, which occur frequently, even if recourse to the bishop were easy. But a sufficient cause of dispensation was not lacking for Leopoldus, and it could easily still be increased, in the aforesaid particular case, on account of almost three continuous days of abstinence and fasting. The bishop also rightly denied an unlimited dispensation, since he could not give it.

But, the dispensation having been obtained from the Holy See, Leopoldus can indeed licitly use it. For although he did not manifest the denial of the bishop, as also the denial of the confessor and parish priest, nevertheless the dispensation is altogether valid. For the Supreme Pontiff uses his power absolutely, and is judged to dispense absolutely, unless something else is explicitly expressed in the rescript. In conceding a dispensation, the will of the superior is not ruled by the will of the inferior, but by the gravity of the motive cause. And furthermore this is prescribed by no law, if some peculiar cases are excepted. Cf. I. M. v. 2, n. 1041. Nor indeed was that threefold denial to be manifested, since neither the confessor, nor the parish priest, nor the bishop could concede an unlimited and perpetual dispensation.

But the twofold cause set forth by Leopoldus in the supplicatory libellus was indeed sufficient for obtaining the dispensation licitly and validly, as he in reality obtained it. Concerning sufficiently advanced age, there is indeed no difficulty. But as regards infirmity, although, strictly speaking, Leopoldus is not infirm, nevertheless nausea at fasting foods, weakness of the stomach, and difficulty of sleep can well be called infirmity; since those things certainly do not pertain to bodily health and firmness of strength. This also must be added, that in doubt concerning the value of a dispensation obtained, generally there must be a presumption for the value of the act, for which possession already stands.

But the fact that Leopoldus is well after a year does not for that reason seem to make the dispensation cease. For very probably Leopoldus was well because he constantly used foods suitable to his stomach, and in due quantity; whence perhaps Leopoldus would easily fall again into the same inconveniences if he departed from a manner of life of this sort. Moreover, with attention to his approaching old age and natural temperament, there is truly a prudent fear of relapse into the aforesaid inconveniences from the observance of fasting and abstinence. Whence the final motive cause of the dispensation has not in reality totally ceased. Finally, the dispensation was given also on account of sufficiently advanced age, and this cause of itself is perpetual. Therefore the dispensation is to be judged not conditioned, but absolute and perpetual, which does not cease, although perhaps by accident the cause ceases. But the dispensation would without doubt have been given conditionally if in it the clause had been added: on the advice of both physician and confessor; since then the confessor and the physician would have had to declare the state of infirmity; and therefore, if the infirm man had entirely recovered health, there would no longer be place for the dispensation. Cf. I. M. 1577, 1615 seqq.; G. 109-114, 120; Elbel 450-452.

2. Before the admission of a candidate to solemn vows, the superior of religious, the three-year period of simple vows having been completed, must seek the consultive vote of the chapter. Moreover, concerning the three-year period not yet completed, but shortened by apostolic dispensation, it is asked:

1. Whether, on account of the shortening of time by apostolic dispensation, the consultive vote of the chapter is transmuted into a decisive one?

2. Whether the superior must seek the vote of the chapter before supplication is made for the grace, or after the grace has already been obtained?

R. To the first: no thing can operate beyond its own nature. Moreover, the dispensation of law of which there is question in the proposed doubts is nothing else than, in a special case, the relaxation of law. Therefore it stops within the limits of the law dispensed, and is not extended beyond it. Furthermore, by the very fact that a dispensation derogates from law, speaking in itself, it has a strict interpretation, and therefore also by this special reason it stops within the limits of the law of which it is the dispensation, without progressing further.

Hence the dispensation of one law does not include the dispensation of another law, unless perhaps without the other dispensation it would be useless; for then this also is understood to have been tacitly conceded. L. 3, § 3, de Servit. praed. rust.; C. 5, de Off. et pot. iud. Del. But the transmutation of the consultive vote of the chapter into a decisive one is beyond the dispensation of the required three-year period, and indeed would be a new dispensation of another law, which in no way can be understood as virtually included in the dispensation of the three-year period of profession of simple vows required before solemn vows. But if that dispensation has not yet been sought and conceded, but would still have to be sought and conceded, how indeed could a transmutation of the consultive vote of the chapter into a decisive one be had for that reason? For this there would be need of a special faculty of the Holy See. For the chapter would acquire a new power, of which it is altogether destitute. - Wherefore to the first doubt it seems that it must be answered: Negatively.

To the second: from common law, for admission to solemn vows after the completed three-year period of simple vows, the conventual chapter must be heard only for the instruction of the mind of the superiors. S. C. super. St. RR., 7 Feb. 1862.

A fortiori, therefore, it seems that the conventual chapter must be heard before supplication is made for obtaining the grace of shortening the time before solemn vows. For first, the very fact of making supplication for such a grace is in reality virtually to admit to the profession of solemn vows. Furthermore, if that vote of the conventual chapter has been judged necessary by the Holy See for the instruction of superiors, when admission to solemn vows is made after the ordinary time, much more will a vote of this sort indeed be necessary for instruction if that ordinary time is shortened. But, the apostolic grace of shortening the time having been obtained, that vote is now useless. And certainly the execution of the apostolic grace already obtained could not impede it; since, once it has been obtained, it cannot have such authority. Moreover, a simple instruction would be sought altogether incongruously after the grace had been obtained, if, once that instruction had been had, the case can be supposed that the superior would no longer admit to solemn vows. For he would have sought from the Holy See a dispensation for one unworthy, and would have deceived the Holy See, although in good faith. For the Holy See, giving that dispensation, evidently supposes that nothing else obstructs the profession of solemn vows except the prescribed time not yet elapsed, and that the candidate to be dispensed is altogether worthy of such a favor of shortening time. Wherefore to the second doubt it seems that it must be answered affirmatively to the first part; negatively to the second part; namely, before supplication is made for the grace, the consultive vote of the chapter must be sought, and that vote must not be sought after the grace has been obtained.

3. Gerbertus, a canon, obtained from the Ordinary of the place the faculty of dispensing from the law of fasting and abstinence in the sacramental forum. Among others, he dispenses many pilgrim penitents, granting to some the faculty of a double refection and of eating meat during the journey, even if they are already outside the diocese. But he himself, with his servant, his ordinary penitent, making a journey outside the diocese, dispenses both himself and his servant from both laws.

Q. Did Gerbertus act rightly?

R. Gerbertus acted rightly by dispensing pilgrim penitents. For pilgrims can well be dispensed by the Ordinary of the place, since by access to the local superior, if they seek a dispensation from him, they become voluntarily and sufficiently subject. But Gerbertus, enjoying the faculty delegated to him by the Ordinary of the place, can indeed dispense those same persons just as the bishop himself would dispense. He also well dispenses pilgrims during the journey, even if perhaps they are staying outside the diocese, provided however that the cause of the dispensation endures; for this is personal, and therefore adheres to the person, follows him everywhere, and is not restricted by territory. Thus indeed Fr. Gury 115. But D'Annibale 232 seems to deny the same thing, saying: "But, if a dispensation has a successive tract, since it is multiple, it ceases immediately when the one dispensed has ceased to be a subject." Yet this reason is not pressing. "When a dispensation has a legitimate cause in the person itself, and always goes with the person itself, it also goes outside the territory of the one conceding." Suarez, de Legib., l. 8, c. 26, n. 15; Albitius, de Inconst. in fide, c. 30, n. 253. But he acts badly in dispensing himself, because he is neither a superior, nor is he delegated to dispense in laws in the totality of causes, but only in particular occurring cases as regards abstinence and fasting; and because he has the faculty of dispensing only in the sacramental forum. But if outside the diocese he himself had been approved by the Ordinary of the place for hearing confessions, then he could indeed have dispensed his servant, his penitent, because the penitent would then have been sufficiently subject, and he could have dispensed him in the sacramental forum. But if he himself had not had the aforesaid approval from the Ordinary of the place, then he could not have dispensed his servant; since he could not have exercised the power had in the sacramental forum. Nor indeed could he have dispensed the servant in any way in the external forum, since he was not his subject, and a dispensation of law is exercised only upon a subject; nor could he have received such a power, for the external forum, from his own Ordinary, namely so that outside his own diocese, he who in no way was his subject should become his subject. - G. 115, 116, 140; Lig. l. 1, n. 158; l. 3, n. 262; I. M. 241.

But what if the dispensation is both personal and local after the manner of a privilege, "such as is the recent concession made by the Pontiff to some dioceses of France, of eating meat on Saturday, on this condition, that each person seek the faculty from the parish priest? Is it licit to use the license conceded outside the territory? It must be denied, because the dispensation is primarily local. This is clear from the response of the S. C. of the Inquisition to the Belgian bishops, who asked the Holy See concerning a similar case. The case seems to be excepted in which someone would pass through other places in which the same grace had been conceded." G. 140. But if the dispensation is primarily local, this exception is not without difficulty.

4. Renaldus, bound by a vow of perpetual chastity, desiring to contract marriage, sought a dispensation from the Sacred Penitentiary under the fictitious name of Titius. As the cause he alleged grave temptations which he was suffering against chastity. He received a negative rescript. A year having passed, he writes again to the Sacred Penitentiary, asking the same dispensation, with the same cause alleged, the fictitious name of Titius having been changed into the name of Sempronius, and the rejection which he had previously suffered being kept silent. On this occasion he kindly obtained the desired grace.

5. Laurentius, occupied with the grave affairs of his office, requested from the bishop a dispensation from a vow he had made of pilgrimage to a certain distant sanctuary of the Blessed Virgin Mary; but he by no means obtained it. When the bishop soon died, he sought and obtained the same dispensation, the same cause having been proposed, from the successor bishop, who was entirely ignorant of the prior petition.

6. Aurelius sought from the Apostolic Datary a dispensation from the impediment of consanguinity, for entering marriage with his cousin; but he did not obtain it. But discovering that his bishop had a special power for dispensing from the same impediment, he sought and obtained the dispensation from him, the same cause having been brought forward which he had previously set forth to the Apostolic Datary, but the denial which had previously been made to him at Rome being kept silent.

Q. 1. What is required for the validity of a dispensation? 2. What as to each case?

R. To the first, cf. I. M. 237. To the second: the dispensation of Renaldus is valid. "For a dispensation of this sort is by no means surreptitious, although perhaps the superior would have denied it if he had remembered the denial previously made. The reason is that the presumption that the superior would have denied is founded on no law. For, if he grants, the same reasons having been brought forward which had already previously been alleged, from this it is argued that there are sufficient causes for dispensing. Nor does the prior denial obstruct; for it has nothing to do with the cause, and to deny the dispensation on account of that cause alone does not seem consonant with reason. The reason is clear; for if a just cause is present, it is more fitting to moderate the prior rigor than to confirm it; therefore the circumstance of the denial previously made is impertinent to the value of the subsequent dispensation. Therefore Renaldus was not held to recall it to the mind of the superior. Therefore this dispensation is not surreptitious; therefore it is valid. Nor does it obstruct that Renaldus changed the fictitious name the second time, because attention is never paid to the name in dispensations of the Sacred Penitentiary, since it is the custom that a fictitious name always be used. But it matters little whether it is Titius or Sempronius. Nor should you say that Renaldus can thus be accused of a bad will of deceiving the superior. For he is not said to deceive who uses his own right. Thus Suarez, de Legibus, l. 6, c. 22, with others against many." G. 118.

The dispensation of Laurentius is also valid. "For from what has been said in the preceding case, a dispensation denied and afterwards conceded by the same superior forgetful of the denial is valid; therefore, from parity of reason, a dispensation denied by one superior and given by his successor, ignorant of the denial, is also valid. The reason is that the successor has the same power as the predecessor, nor is he ruled by the judgment and will of the latter. Indeed in him there is a much less probable presumption of involuntariness; and furthermore the will of the predecessor in no way has anything to do with the cause." G. 119.

The dispensation of Aurelius is likewise valid. "The reason is that the power of the inferior was not restricted by the denial of the superior; therefore, if he enjoys the faculty, the cause being sufficient, the dispensation is judged valid. Therefore neither did Aurelius act surreptitiously; for he used his own right; and consequently he is not to be disturbed. Suarez, in the same place, and others against others." G. 121. Thus indeed Gury. But, "when a dispensation has been denied by the Apostolic See, it is not permitted, the same cause having been alleged, to seek a dispensation from the Ordinary, even if mention is made of this rejection in the supplicatory libellus." Zitelli, de Dispens. matr., Rome, 1887, p. 70; I. M. v. 2, n. 1041.

7. Zoilus, scrupulous, superior of a monastery, is very anxious as regards dispensing his own subjects, namely whether a sufficient cause is present. Hence it often happens that he denies the dispensation, thinking the cause is not present, when in reality it is present. But sometimes he dispenses, thinking a cause is present when in reality it is not present, and sometimes he also dispenses, although it seems to him that the cause is not present, when nevertheless in reality it is present, lest he himself become odious and sadden his subjects.

Q. Is a dispensation valid, if the superior, through error, in good faith judges there to be a just cause; or, if, thinking that the cause is not present, which nevertheless in reality is present, he rashly dispenses?

R. Affirmatively to both, if he is a primary superior; for he has a true will of dispensing, and he can validly dispense even without a just cause. Therefore his will has its effect in the first case, namely if the superior dispenses absolutely, not, if the petitions rest on truth, insofar as there is no essential obreption or surreption in the petition; and likewise, if the matter is doubtful; for it is by no means reasonably presumed that he is unwilling also to dispense if the matter is not objectively true. For this would render consciences liable to innumerable anxieties and scruples. But in the second case the matter is objectively true. Whence from this head there can be no difficulty. But negatively to the first, affirmatively to the second, if the superior is secondary. The first reason is that it is a certain principle that an inferior dispenses invalidly in the law of a superior without sufficient cause. Nevertheless D'Annibale, 3rd ed., p. 1, n. 233, holds the opposite opinion as extrinsically probable. The second reason is that the value of the dispensation does not depend on knowledge of the cause, but on the existence of it. - Lig. l. 1, n. 180, 181, 186; l. 3, 251; l. 7, n. 353.

8. "Caia, a girl, in the fifth year of her age, had uttered a vow of perpetual chastity. But, after six years had then elapsed, when the charity of God gradually and insensibly began to diminish, and on the contrary the stimuli of the flesh to increase, Caia likewise began to love and to be loved by men to such a degree that she was impregnated. But because the vow was only simple, and secretly uttered, hence she sought from Rome a dispensation in order to contract marriage, with a twofold motive alleged, namely that the offspring born might be legitimated by the subsequent marriage, and that the husband might be able to relieve the mother of Caia, who was a widow rather advanced in years. After approximately two months had elapsed, the dispensation came from Rome, directed to a discreet man, with that usual clause, that he dispense if the petitions rest on truth. But because meanwhile not only the offspring born, but also the mother of Caia died, therefore that discreet man rightly began to doubt whether he could still execute the aforesaid dispensation."

Q. 1. When does a dispensation cease? 2. What as to the case?

R. To the first, cf. I. M. 248. To the second: "If both the offspring born and also the widowed mother died before that discreet man (namely the confessor) actually executed the dispensation, he can no longer execute it. The reason is that the final motive cause must necessarily be verified at the time when the dispensation is actually given by the deputy in the rescript, as Kesslinger hands down in addit. 1 to tr. 2, dist. 4, after n. 26, theol. mor., Reiffenstuel with Covarruvias, de matr., p. 2, t. 1, c. 6, § 9, de dispensat., n. 22, where he testifies that it was so decided by the Rota. But in this species of fact the twofold motive is said to have ceased. Therefore that discreet man could no longer execute the dispensation. Consequently it must be said that Caia would indeed contract marriage validly, yet not licitly; because namely the simple vow of chastity is an impeding impediment, although not diriment of marriage.

"But what, you say, if we suppose that the offspring and the widow first died after the confessor had already dispensed with Caia, yet before the marriage had been contracted: would it be licit for her by force of the aforesaid dispensation to marry her betrothed? R. Many deny this because, at least in revocable acts, the legislator must be judged to have wished only to dispense for that time for which he could licitly and without sin dispense; whence just as one dispensed on account of infirmity in the eating of meats, or on account of weakness of the eyes in reciting the canonical hours, is held again to abstain from the eating of meats or to recite the canonical hours as soon as the infirmity has ceased, so likewise such betrothed persons are held to abstain from contracting marriage, notwithstanding the dispensation already obtained. Thus Sanchez, de Matr., l. 8, 30, n. 12 and 13, with many others, certainly not improbably. Nevertheless I judge the opposite opinion of Gobat, tr. 9, Theol. experim., n. 675 and 692; Castropalao, p. 1, tr. 3, disp. 4, p. 15; Illsung, tr. 1, disp. 3, n. 41; and Henno, de Legib., disp. 3, q. 15, a. 5, to be sufficiently probable, especially in this our case. The reason is that the dispensation of Caia had already once been conceded, and indeed absolutely, not only for a certain time, as is accustomed to be conceded to the infirm in the eating of meats, and Caia was simply dispensed from her vow." Elbel 456, 457. There is indeed an essential distinction between a dispensation from the eating of meats, from the recitation of the divine office, etc., and a dispensation of an impediment, whether impeding or diriment of marriage. For the former has divisible matter by a successive tract of time, but the latter has indivisible matter. Whence it is that the former, the cause ceasing in the tract of time, as having been given almost conditionally of itself, consequently ceases; the latter, once given and consummated by a single act, is of itself absolute and perpetual; and, the cause ceasing in the tract of time, it can no longer cease. - Cf. I. M. 248.