IV. On Dispensation from Impediments and Revalidation of Marriage

Can all impediments be dispensed, and are they dispensed? Not all impediments can be dispensed, such as the impediments of impotence, infantile age, ligamen, consanguinity in the first degree of the direct line, error, and fear; nor do all need dispensation, such as abduction, clandestinity, defect or vice of consent. Likewise not all are usually dispensed, such as consanguinity in the first degree of the collateral line, affinity from licit copulation in the first degree of the direct line, public crime with both or one or the other plotting, and abduction while the woman remains under the power of the abductor. But among those which are dispensed, some are dispensed more rarely, others more frequently. More rarely and for a graver cause are dispensed clandestinity, spiritual paternity and filiation, affinity from illicit copulation in the first degree of the direct line, solemn vow, sacred order, disparity of cult, age.

Concerning spiritual paternity and filiation cf. De Iustis, de Dispens. matr., book 2, chap. 5, n. 7; Schmalzgrueber, book 4, tit. 11, n. 57; tit. 16, n. 144. But at present spiritual kinship of any kind is counted among impediments of lesser degree, although in the Forms of the Sacred Congregation of the Sacraments there is excepted, in the communication of faculties, dispensation between the one lifting and the one lifted, or vice versa between the one lifted and the one lifting, and between the baptizing person and the baptized person. Cf. the following numbers, 1036, 1038. Concerning affinity cf. Collectanea S.C. de Propaganda Fide, n. 1242. Concerning public honesty cf. Ferraris, Supplement, this word. Concerning solemn vow and sacred order cf. Benedict XIV, Quaest. Can., 200.

Others which can be dispensed and are more frequently dispensed, such as consanguinity, affinity, public honesty, spiritual kinship, apart from the degrees already excepted, legal kinship, occult crime, are not usually dispensed without grave cause. Trent, sess. 24, chap. 5, de R. M. Hence for the validity of a dispensation to be obtained, it is required that there be no obreption or subreption falling upon the motive cause. For a Superior is not judged to dispense except under the tacit condition: if the prayers rest upon truth. Motive; for if falsity is brought forward, or truth is suppressed only concerning an impulsive cause, the dispensation is valid. C. Super litteris, de Rescript.

But now impediments of lesser degree do not need a special cause. Cf. the following number. Practice of Apostolic Dispensations of the Apostolic Datary according to the reformed Forms; Pyrrhus Corradus, Prax. Dispens. Apost., book 8; L. 1118-1120, 1129; E.M.

What are just causes for dispensing in diriment impediments? Some causes are honorable, others are notorious, for avoiding scandals. Formerly they were taken more strictly, today more broadly, because of changed circumstances of the times. Honorable causes are: 1. the age of the girl, who, having already passed the twenty-fourth year of age, has thus far not found a man of equal condition whom she can marry; 2. defect of dowry, if the girl has none, or not enough, to be able to marry a man of equal condition in her own place where she dwells; 3. narrowness of place, i.e., if the woman therefore cannot find a man of equal condition in the place of origin or domicile, by reason only of the female petitioner; 4. grave enmities to be settled between the parents, blood relatives, or relatives by affinity of the man and woman; 5. lawsuits to be ended concerning matters of great importance arising between the man and woman, or between their parents; 6. poverty of a widow who is burdened with numerous offspring; 7. prerogative of royal dignity; 8. preservation of an illustrious family; 9. preservation of goods in the same family; 10. excellence of merits toward the Church; 11. Christian virtues, which probably would not be found in another man; 12. a more generous alms to be poured into pious works.

Notorious causes are: 1. excessive familiarity, suspicious and dangerous, and also cohabitation under the same roof which cannot easily be impeded; 2. infamy of the woman, arising either from true or false suspicion, whence the woman is compelled either to remain defamed or unmarried, or to marry a man of unequal condition; 3. copulation having followed between those wishing to contract, and legitimation of offspring; 4. danger of civil marriage; 5. danger of mixed marriage, or marriage before a non-Catholic minister; 6. danger of incestuous concubinage; 7. cessation of public concubinage; 8. removal of grave scandals, lest they fornicate again, lest enmities flare up; 9. danger of incontinence for a younger widow; 10. revalidation of marriage. Benedict XIV, Response to the Archbishop of Tours, September 26, 1754; A.S.S., vol. 2, p. 62; Instruction of the Sacred Congregation de Propaganda Fide, May 9, 1877; L. 1129, 1130; E.M.

Dispensation was said to be without cause when none of these causes was present which are usually alleged as canonical; or when, no proper cause having been alleged, dispensation is usually sought and granted from certain rational causes, namely because of a more abundant Composition in degrees somewhat remote, or in more remote degrees because of a cause of public good moving the mind of the Pontiff, or also because, since the cause is shameful, it is not expedient to reveal it. Those causes are called canonical which, from the style and approved custom of the Curia, are regularly accustomed to be admitted for matrimonial dispensations. By no means, however, is one prohibited from setting forth other causes also, by which either other causes may be strengthened, or even the defect of others supplied, e.g., deformity of the girl, infirmity, etc. Reformed Forms of the Apostolic Datary; E.M.

After the Constitution Sapienti consilio of Pius X, June 29, 1908, matrimonial dispensations are distinguished as of greater degree and of lesser degree. The former are granted from a legitimate cause; the latter from reasonable causes approved by the Holy See. "19. Dispensations of lesser degree are from impediments: "a) of consanguinity and affinity of the third and fourth degree of the collateral line, whether equal or unequal, that is, of the fourth degree mixed with the third, and of the fourth or third mixed with the second; "b) of affinity in the first degree, and in the second simple or mixed with the first, where this impediment proceeds from illicit intercourse; "c) of spiritual kinship of any kind; "d) of public honesty, whether through betrothals or through marriage, concerning which there has already been dispensation and it has been dissolved. "20. Dispensations of greater degree usually granted, when a legitimate cause intervenes, are from impediments: "a) of consanguinity of the second degree of the equal collateral line, and of the second or third degree touching the first; "b) of affinity of the first and second degree of the equal collateral line, and of the second or third degree touching the first; "c) of crime from adultery with promise of future marriage. "21. Dispensations from lesser impediments are all granted from reasonable causes approved by the Holy See. But when granted in this way, they will have force just as if they had been imparted by motu proprio and from certain knowledge; and therefore they will be subject to no challenge either by vice of obreption or of subreption." Order to be observed in the Roman Curia, Particular Norms, chap. 7, a. 3.

As regards simple vows emitted in some Religious Congregation, dispensation is given by the Sacred Congregation of Religious with this formula: "Since he feels himself wholly unequal to sustaining the burdens of common life, etc."

What things must be expressed in the supplicatory petition for the validity of a dispensation? 1. The names, surnames, and diocese or dioceses of the petitioners, from which they have their origin, or of actual domicile or quasi-domicile, or of the place in which they now dwell. Error in the name or surname of the petitioners more probably does not harm the validity of the dispensation if the error is plausible and the person is established. If there was true error in name or surname, sanation must be sought. Form of the Sacred Congregation of the Sacraments. These things must be expressed when dispensation is sought from the Sacred Congregation of the Sacraments. "But when it is sought from the Sacred Penitentiary, the names and other things are kept silent, but only the person and place to which the letters are to be directed are expressed." L. 1146.

2. The lowest species of the impediment or impediments, and their number, if there are several. Nevertheless the dispensation is valid if a material error has slipped in concerning the computation of impediments, provided, however, that the case is set forth as it is. Holy Office, February 22, 1899; Forms of the Sacred Congregation of the Sacraments.

3. The motive cause of the dispensation. Must the cause alleged be true both at the time when the rescript is issued at Rome and at the time when the dispensation is put into execution? It is enough that the cause exist at the time when the delegate executes the dispensation itself, because the Pontiff seems to commit the business according to those circumstances which the delegate will find. L. 1132. Cf. vol. 1, n. 283; here 1045. Nor is it necessary that the cause for dispensing precede the concession of the same, but it suffices that through the dispensation itself and its manner the cause itself be consummated. "For when a dispensation is given without cause, some satisfaction or fine is imposed for a pious work or for some other common utility of the Church; through which work there arises a cause of the dispensation, which then comes about by way of commutation, just as we said also happens in the concession of Indulgences." Suarez, de Leg., book 6, chap. 18, n. 26; L. 1130.

4. The other things which by law, custom, or the style of the Curia must be set forth, lest the petition be subreptitious. And thus it must be set forth whether a null marriage has already been contracted, whether knowingly or even in ignorance. Forms VIII, IX of the Sacred Congregation of the Sacraments; Trent, sess. 24, chap. 5, de R. M.; C. Cum inhibitio fin., de Clandest. despons.

5. Legitimation of offspring must be explicitly sought and granted in the Rescript. Sacred Congregation of the Sacraments, January 29, 1909. Pius VII, Const. Expositum nobis, June 18, 1816; Benedict XIV, Const. Magnae nobis; Practice of Apostolic Dispensations, nn. 116, 117; Sanchez, book 8, disp. 21; Reiffenstuel, book 4, tit. 21, app., n. 210 ff.; L. 1131; Lugo, Responsa Moralia, book 1, disp. 43; E.M.

There are no determined Forms for seeking dispensations from laws, from impediments of marriage, and for obtaining various graces from the Supreme Pontiff.

Resolutions: One impediment must not be expressed for another, although greater, e.g., consanguinity for affinity.

In a vow it must be expressed whether it is of perpetual chastity, or of not marrying, or of entering religion.

In crime, whether it is adultery, or homicide, or both together. Likewise in adultery, whether a promise of marriage was present, or also whether marriage was in fact entered while the spouse of the other was still living, since dispensation is usually granted far more difficultly. Dispensation is not given unless scandal has been removed. Adulterine offspring is excluded from legitimation of offspring. Forms V, VI of the Sacred Congregation of the Sacraments.

In public honesty, if it is in the first degree, whether from marriage or from betrothals. But whether it is from marriage or from betrothals, the line must be expressed, and if from marriage, the degree. Hence it must be expressed whether public honesty proceeds from betrothals entered by the bridegroom with the mother of the woman to be betrothed, because the difficulty is greater than if there were question of betrothals entered with the sister of the woman to be betrothed, since the dishonesty is greater; for the impediment in the first case is in the direct line, in the other in the oblique line. But in an unequal degree it suffices to express the more remote. C. Vir ult., de Consang. Moreover it must be added that the prior betrothals were dissolved; for otherwise dispensation is not given by the Sacred Congregation of the Sacraments. But it is given by the Sacred Penitentiary, yet under the condition, provided that the prior betrothals were dissolved by mutual consent. Corradus, book 8, chap. 7; Forms for the communication of faculties of the Sacred Congregation of the Sacraments.

In legal kinship it is necessary to express only the line and degree.

In spiritual kinship, previously it had to be expressed whether it was paternity or maternity, or compaternity; and, more safely, whether from baptism or from confirmation. Sanchez, book 8, disp. 24, n. 15; Corradus, book 8, chap. 8, n. 15. But now, from the Constitution Sapienti consilio, spiritual kinship of any kind is numbered among impediments of lesser degree. Nevertheless, in the Forms of faculties which are communicated, dispensation between the one lifting and the one lifted, and between the baptizing person and the baptized person, is excluded. Forms of the Sacred Congregation of the Sacraments.

In natural kinship it must be expressed: 1. whether it is consanguinity or affinity, and if affinity whether from licit or illicit copulation, if it is contained within the second degree; 2. the line and degree must be expressed; and if a nearer degree has been set forth for a more remote one, the dispensation is valid. If the kinship is not simple but mixed from consanguinity and affinity, this also will have to be expressed; and if the degrees are unequal, each must be expressed both in consanguinity and, more truly, in affinity. And if the nearer is the first, the dispensation otherwise is not valid. Likewise, if the kinship is multiple, this too must be expressed for validity. St. Pius V, Const. Sanctissimus, August 20, 1566; Benedict XIV, Const. Etsi matrimonialis, September 27, 1755; Holy Office, December 12, 1748. Cf. Sanchez, book 8, disp. 24, nn. 12, 13; Schmalzgrueber, book 4, tit. 16, nn. 190, 192. "Moreover Tournely rightly notes that in a mixed degree the sex which is in the first degree must be expressed, because it is granted with more difficulty that a nephew marry his paternal aunt than that a paternal uncle marry his niece; for it is a greater perversion of order that a nephew be constituted head of his aunt." L. 1136. Nor indeed for validity must "incestuous copulation, or counsel and intention through it of more easily obtaining dispensation... concerning any prohibited degrees whatever of consanguinity, affinity, spiritual kinship, and also public honesty" be expressed. Leo XIII, June 25, 1885, Circular Letter of the Holy Office. Incestuous copulation, namely had between those blood relatives, relatives by affinity, etc., who wish to contract marriage with each other, and which previously had necessarily to be expressed. Likewise it is not necessary to say in the petition how often copulation was had with a blood relative of the bride, because from various copulations one single affinity arises; nevertheless copulation had with various blood relatives of the bride must be expressed, because from these so many different affinities are contracted; and although these impediments are not different in species, nevertheless they are distinct in number. This is manifest from the Declaration of Benedict XIV; L. 1138. Forms of the Sacred Congregation of the Sacraments.

Besides the affinity arising from licit copulation with one's own spouse, there need not be set forth in affinity the affinity also contracted from illicit prematrimonial copulation with the same spouse. Sacred Penitentiary, March 29 and June 7, 1842; December 10, 1874.

Dispensation is not usually given in a doubtful impediment of consanguinity in the first degree, both of the direct line and of the collateral line.

If someone labors under a double impediment, he must set forth together in the supplicatory petition each impediment, if they are not disparate, but several in number in the same species, or of diverse lowest species related among themselves, e.g., double consanguinity, both on the part of the father and on the part of the mother, double affinity, consanguinity and affinity, the vow of chastity and of entering Religion. And if one is public and the other occult, dispensation from the former must be sought from the Sacred Congregation of the Sacraments; but dispensation from both together must then be obtained from the Sacred Penitentiary, since the prior dispensation contains subreption and therefore must be revalidated. Benedict XIV, Const. Pastor bonus, § 41; Collectanea S.C. de Propaganda Fide, n. 1470; Suarez, de Leg., book 6, chap. 24; Sanchez, book 8, disp. 23, n. 1; Lugo, Responsa Moralia, book 1, disp. 43; L. 1139.

If someone has previously obtained another dispensation and used it, he must mention it when there is question either of the same vow of chastity, because the later dispensation is as it were an extension of the prior one, or of the same crime, because crimes do not have remission of pardon unless committed once. Suarez, de Leg., book 9, chap. 23; Sanchez, book 8, disp. 22, nn. 2, 20. Likewise it must be made manifest if the man abducted the woman, although he has already purged the abduction. Rule 49 of the Apostolic Chancery; De Iustis, book 2, chap. 15, n. 30 ff.

If a dispensation was to be granted for entering marriage because of illicit intercourse, it had to be expressed whether that intercourse was had by one or both under hope of more easily obtaining the dispensation. If a dispensation was to be granted after marriage had been entered, it likewise had to be expressed whether a null marriage had been contracted knowingly, and in bad faith at least on the part of one party, whether clandestinely, and whether afterwards it had been consummated; whether on the contrary it had been contracted in ignorance, and in good faith at least on the part of one party, whether the denunciations were neglected, and whether it had then again been consummated after the nullity became known; whether these things had been done under hope of obtaining the dispensation more easily. Trent, sess. 24, chap. 5, de R. M.; Paul IV, Const. Ab ea ipso die; Clement, un., de Consang.; Sacred Congregation de Propaganda Fide, May 9, 1877. But in the present Forms of the Sacred Congregation of the Sacraments these things are altogether passed over in silence. Sanchez, book 8, disp. 25, n. 21; book 3, disp. 42, n. 7; Schmalzgrueber, book 4, tit. 3, n. 85; Kenrick, n. 216.

If revalidation was sought of a dispensation null because of an occult vice of subreption in the first and second degrees or only in the second, it had to be expressed whether the dispensation had been issued in the form for the poor; otherwise either a composition of 50 ducats of gold of the Camera must be made, or a tax to be defined by the Major Penitentiary must be paid, according to the various cases expressed in the Constitution of Benedict XIV, Pastor bonus, §§ 41, 42. These things too are altogether passed over in silence in the present Forms of the Sacred Congregation of the Sacraments. L. 1131 ff.; Practice of Apostolic Dispensations of the Apostolic Datary; E.M.

Note: In a case of doubtful dispensation, it must be judged valid, because in doubt one must stand for the validity of the act. L. 1133. When the motive cause of the dispensation ceases, e.g., if the offspring to be legitimated has died before the dispensation is issued, or before dispensation is made by the Bishop or by another to whom it had been committed by the Pontiff, the dispensation is invalid. L. 1132. If the motive cause ceases after the dispensation has already been issued and communicated to the petitioners by the delegate, the dispensation is valid, even if that cause ceases before the celebration of marriage, because by the dispensation the impediment has already been removed. L. ibid.

In the Renewed Forms of the Apostolic Datary there is a new clause, by force of which dispensation is granted not only from the impediments set forth but also from others perhaps kept silent in good faith. Cf. Practice of Apostolic Dispensations of the Apostolic Datary, nn. 28, 29, 150. An explanation is had there. But in the present Forms of the Sacred Congregation of the Sacraments there is a special form for convalidating marriage because of a newly detected impediment.

Does one who, after obtaining dispensation from the impediment of affinity from illicit copulation, e.g., with a blood relative of the bride, likewise sins with the same woman before marriage, need a new dispensation? R. Negatively, if the dispensation has not yet been put into execution by the delegate, because such dispensations do not obtain effect from the day of issue, but from the time of execution. Indeed, negatively also even if the dispensation has been put into execution. The reason is that the impediment of affinity has already been removed by the dispensation with respect to the effect of contracting marriage. But if, after marriage has been contracted, he sins again with the same blood relative of the wife, he is deprived of the right of asking the debt, because the dispensation, according to the style of the Curia, was granted for the effect of contracting marriage, not for sinning more freely. But he would need a new dispensation if he sinned with another blood relative of the bride before marriage, even after the dispensation had been issued, because a new affinity would be contracted. L. 1140.

From whom must dispensation from diriment impediments be sought? It must be sought per se from the Roman Pontiff alone, since this faculty properly pertains to him alone. And reserved in a special way to the Apostolic See are all dispensations of matrimonial impediments, whether impedient or diriment, to be granted to kings or princes of royal stock. Sacred Congregation of the Sacraments, March 7, 1910.

The Supreme Pontiff dispenses chiefly through the Sacred Congregation of the Sacraments, as regards the external forum, and therefore from all impediments public by their nature or by fact, of consanguinity, affinity from marriage, or from illicit but public copulation, spiritual kinship, public crime, and others not reserved to the Holy Office. At present both poor and rich must have recourse to this Congregation for dispensation from a public impediment. Recourse must be had to the Holy Office for the impediment of disparity of cult and of mixed religion, and also for those things which regard the Pauline privilege.

Dispensation must always be sought through the Bishop or his Vicar General. And if there is question of the first degree of affinity or of the second degree of consanguinity or affinity mixed with the first, the customary forms previously did not suffice, but it was required that the Bishops themselves, by letters written in their own hand, explain the canonical causes and the necessity of the dispensation; or at least add a recommendation in their own hand, especially where there was question of the first degree of consanguinity touching the second. Reformed Forms of the Apostolic Datary, at the beginning; Practice of the Apostolic Datary, n. 11. But in the present Forms of the Sacred Congregation of the Sacraments nothing of this kind explicitly appears.

The Supreme Pontiff also dispenses chiefly through the Sacred Penitentiary, in the internal forum and in occult impediments, as regards marriages either to be entered or already entered.

The Sacred Penitentiary by its own proper right dispenses: 1. In marriages to be contracted, in the forum of conscience only, from occult impedient impediments, and likewise from omission of denunciations, even for the effect of contracting secretly. Benedict XIV, Bull Pastor bonus, April 13, 1744, § 39.

2. In contracted marriages, it dispenses in the second degree of consanguinity or affinity, if the impediment has remained occult for at least ten years and the petitioners have contracted together and lived together and have been reputed as legitimate spouses. Likewise it dispenses in the third and fourth degrees of consanguinity or affinity when occult. Moreover it revalidates marriages in the same third and fourth public degrees, nullly contracted because of occult subreption or obreption of the Apostolic Letters, except if the falsity consists in the narration of preceding copulation which in fact had not previously intervened. Benedict XIV, ibid., § 40.

3. Likewise it revalidates marriages nullly contracted from a null dispensation because of subreption in the first and second, or in the second only, and also in the third and fourth degrees of consanguinity or affinity. Benedict XIV, ibid., §§ 41, 42.

4. It dispenses from the occult impediment of affinity from illicit copulation, in the forum of conscience, and in marriages both contracted and to be contracted. Benedict XIV, ibid., § 43.

5. It dispenses from the occult impediment of adultery, if it was only with faith given, with neither party plotting; or also, but rarely, with both or one or the other plotting, both in marriages to be contracted and in contracted marriages. Benedict XIV, ibid., § 44.

6. The Sacred Penitentiary dispenses, in the aforesaid cases, even if the impediments are multiple; and it decrees the offspring legitimate in the forum of conscience only, but not offspring conceived in adultery. Benedict XIV, ibid., § 45.

7. When the Apostolic See is vacant, the Sacred Penitentiary can still do whatever pertains to the forum of conscience. Benedict XIV, ibid., § 51; Pius X, Const. Vacante Sede, December 25, 1904, par. 16.

A dispensation from the Sacred Penitentiary can be sought immediately by the petitioner, or by another in his place, e.g., by a confessor. More securely and more easily, however, this dispensation too is requested through the Bishop or his Vicar General, the name of the petitioner being kept silent. There is no determined formula which must necessarily be used. It suffices to set forth the impediment for which dispensation is sought, and the cause of the dispensation. Cf. 1037.

The Supreme Pontiff also dispenses through the Holy Office in impediments of disparity of cult and mixed religion, and in those things which regard the Pauline privilege. The Sacred Congregation de Propaganda Fide must refer to the proper Congregations those things which regard marriage. It can nevertheless still grant the ancient formulas of faculties, several of which regard marriage, to distant eastern missions, the matter having however been discussed and arranged with the Sacred Congregation of the Sacraments. The Congregation for the affairs of the oriental rite preserves its duties entirely. It also has force in the future to grant matrimonial dispensations of mixed religion and disparity of cult, with the sole exception of the Pauline privilege, which pertains to the Holy Office. Second Supplement to the Enchiridion Morale, 178, 181. Trent, sess. 24, chap. 3; Innocent XIII, Const. Romanus Pontifex, April 3, 1692; Benedict XIV, Const. Pastor bonus, April 13, 1744; Notification 87, n. 7; A.S.S., vol. 7, p. 423 ff.; L. 1118, 1144.

It is prohibited under penalty of nullity, after one Congregation has been approached for obtaining a dispensation, to approach another; and, after dispensation has been denied by the Apostolic See, to seek it from the Ordinary on the same alleged cause. Innocent XII, Const. Ut occurratur, June 4, 1692; Pius X, Const. Sapienti consilio, Order to be observed in the Roman Curia, Particular Norms, chap. 1, n. 2; Zitelli, de Dispens. Matr., Rome, 1887, p. 70.

From the Holy Office, August 11, 1887, all matrimonial dispensations for the external forum are committed either to the Ordinary of the petitioners or to the Ordinary of the place. For the forum of conscience the letters are directed to a confessor from among those approved by the Ordinary, to be chosen or designated by the petitioners. Zitelli, de Dispens. Matr., p. 100; Practice of Apostolic Dispensations of the Apostolic Datary, n. 188 ff.; E.M.

Note: Dispensation was formerly given by the Apostolic Datary either in the form for the poor, when dispensation was made gratis or with lesser expenses, or in common form, by exacting the established tax, which is called the composition, because it is variously defined according to the various impediments and petitioners. Therefore the state of fortune which is possessed and hoped to be possessed must be set forth. Dispensation was made entirely gratis with the miserable. Collectanea S.C. de Propaganda Fide, 2nd ed., n. 393. "The truly poor are judged to be no others than those who are so miserable that they live only by the labor of their hands and industry.... Those also can deservedly be called poor who... possess goods in capital of the value of 300 scudi, Roman money, if they dwell this side of the mountains, or, if beyond the mountains, of the value of 300 ducats of gold of the Camera, reaching the sum of 325 scudi of the said money. But if they have goods up to the quantity of 1000 scudi or respectively ducats of gold of the Camera, dispensation is nevertheless granted in the form for the poor, yet with an alms paid of four scudi for each hundred." Holy Office, September 26, 1754. These last are called almost poor. The Roman scudo equals 5.375 lire.

In the concession of dispensations from matrimonial impediments from dishonorable causes, there cannot be understood as tacitly granted to the Ordinary also the faculty of declaring legitimate the offspring received before the execution of the dispensation and the celebration of marriage; rather, it is required that legitimation of offspring be sought by the petitioners and granted in the Rescript. Sacred Congregation of the Sacraments, January 29, 1909. Instruction of Urban VIII, October 6, 1671; Collectanea S.C. de Propaganda Fide, n. 1477; Reiffenstuel, book 4, tit. 31, app., nn. 398, 402; Schmalzgrueber, tit. 16, n. 232 ff.; A.S.S., vol. 1, pp. 383, 446; E.M.

Is a dispensation in the form for the poor valid when the petitioners are not poor? It is illicit, and gravely so, as is clear in itself; nevertheless it is valid, because since poverty is not the motive cause of the dispensation, it labors under neither the vice of obreption nor of subreption. But the petitioners are still bound to pay it, unless remission is obtained. Sapienti consilio, Order to be observed in the Roman Curia, Common Norms, chap. 11, n. 3. The taxes previously established by the Apostolic Datary and by the Sacred Penitentiary continue to have force. Const. Sapienti consilio, l.c., Temporary Dispositions, n. 12. But it would certainly be invalid if it were given by a Bishop having this special power of dispensing with the poor. Sacred Congregation of the Council, April 26, 1873; Monit. Eccles., vol. 11, p. 388. Sacred Penitentiary, December 1, 1852; A.S.S., vol. 7, p. 423; L.H.A. 87.

Can dispensation of impediments also be sought from the Bishop, at least sometimes? It can be sought from the Bishop if he has this faculty from a special indult and delegation of the Roman Pontiff. And then the Bishop cannot exceed the limits of the mandate; otherwise he acts invalidly. Sacred Congregation of the Council, April 26, 1873; A.S.S., vol. 7, p. 297. Cf. Lugo, Responsa Moralia, book 1, disp. 43; Sanchez, book 8, disp. 2, nn. 27, 28, disp. 23, n. 10.

Now Bishops and Vicars Apostolic, by force of quinquennial faculties or faculties for a longer time, can dispense in several impediments. The same can also be done by approved confessors having the schedule of the Sacred Penitentiary. Cf. the respective Forms. Nevertheless Bishops cannot cumulate dispensations from several impediments in one and the same case without a special faculty. But this prohibition does not extend to those cases in which, with an impediment public by its nature, there occurs another occult impediment, or impediment of the internal forum. But when Bishops dispense from a faculty delegated to them by the Holy See, they can dispense also in a case in which one person is of their diocese but the other of another, because the faculty then proceeds from the Pope, and when the impediment has been removed from one side it consequently vanishes also from the other. Holy Office, March 31, 1872; Sacred Congregation de Propaganda Fide, September 19, 1861.

Dispensation can likewise be sought from the Bishop in occult impediments and in a most urgent case of necessity, which does not allow delay in approaching the Roman Pontiff or his delegate, even by letter, whether in marriages to be contracted, if the celebration of the marriage cannot be deferred without grave danger of infamy and scandal, cf. 955, or in contracted marriages, if either separation cannot be made without grave harm, or dispensation cannot be deferred without danger of incontinence, provided that the marriage was entered not knowingly, i.e., with at least one of the spouses unaware of the impediment, and not with the publications despised. C. Ubi 2, de Despons. impub.; Trent, sess. 24, chap. 5, de R. M.; L. 611, 613, 1121 ff.; Sanchez, book 2, disp. 40; De Iustis, book 2, chap. 2, n. 182 ff.; Reiffenstuel, book 4, tit. 21, app., nn. 65, 509; Pignatelli, vol. 3, Cons. 33, n. 8.

This power is commonly restricted to occult impediments in a most urgent case of necessity. Nevertheless it seems that it must be enlarged, for the article of death, to public impediments. The argument is taken from the Response of the Holy Office, April 22, 1890. Cf. Enchiridion Morale, 4th ed., n. 1044. But scarcely today can there be place for the use of such a power, since Bishops and others have other special faculties from the Supreme Pontiff.

For dispensation can also be sought, in public diriment impediments of ecclesiastical law, not excepting clandestinity, but excepting priesthood and affinity of the direct line from licit copulation, as regards the sick established in the gravest danger of death, living in civil marriage or concubinage, when there is not time to have recourse to the Holy See, according to the power made to local Ordinaries by Leo XIII through the Decree of the Holy Office, February 20, 1888, December 13, 1899. Cf. 1015. But Bishops can habitually subdelegate this faculty to pastors and others performing the duty of pastors, for cases in which there is danger in delay, Holy Office, January 9, 1889; April 23, 1890, and for a particular act to any priest. Included also is the faculty of legitimating offspring, adulterine and sacrilegious offspring being excluded. Holy Office, July 8, 1903.

Moreover "His Holiness... deigned to declare and decree that any priest who, according to the norm of art. 7 of the decree Ne temere, when danger of death is imminent, where the pastor or local Ordinary or a priest delegated by either of them cannot be had, can validly and licitly assist at marriage before two witnesses, in the same circumstances can also dispense from all impediments, even public, dirimently impeding marriage by ecclesiastical law, except the sacred order of priesthood and affinity of the direct line from licit copulation." Sacred Congregation of the Sacraments, May 14, 1909.

Therefore by force of this Decree there is only a natural obligation of sincere repentance and reparation of scandal. This faculty of dispensing from matrimonial impediments, when danger of death is imminent in the case of art. VII of the decree Ne temere, made through the Decree of the Sacred Congregation of May 14, 1909, has force not only for concubinarians, but also if there is not question of concubinarians, provided nevertheless that another cause is present, for consulting conscience and, if the case suggests it, the legitimation of offspring. Sacred Congregation of the Sacraments, August 16, 1909. By the same Decree of May 14, 1909, of the Sacred Congregation of the Sacraments, pastors also are comprehended, even if they were not habitually subdelegated by their proper Ordinaries according to the norm of the Declaration of the Holy Office, January 9, 1889. Sacred Congregation of the Sacraments, July 29, 1910.

Finally, dispensation can be sought from the Bishop in doubtful impediments, in which, although it is not then necessary where there is question of doubt of law, because a doubtful law does not oblige, nevertheless, where there is question of doubt of fact, the dispensation removes the impediment, if it truly exists. Therefore, if afterwards it appears that there was truly an impediment, a new dispensation is not needed; otherwise the dispensation would do absolutely nothing. Benedict XIV, de Syn., book 9, chap. 2; Corradus, book 8, chap. 4, n. 34 ff.; L. book 1, n. 190; book 6, nn. 613, 902, 1103, 1121-1125, 1129; de Priv., 54 ff.; Lugo, Responsa Moralia, book 1, disp. 39; E.M.

How is a dispensation to be expedited? Dispensation is usually granted in commissory form, namely the dispensation is not given, but the power of dispensing is committed to the Ordinary of the petitioners, or to the Ordinary of the place, in the external forum, Trent, sess. 22, chap. 5, de R., or to a confessor approved by the Bishop, in the internal forum.

As regards a dispensation of the Sacred Penitentiary, let it be made after absolution with these or similar words: By apostolic authority I dispense with you from the impediment N. which you incurred, so that you may be able to enter marriage, or perfect the marriage entered, and I render legitimate the offspring received, or to be received. In the name of the Father, etc. But if the dispensation is from a vow of chastity, it is said: Moreover, by dispensing I commute for you the vow of chastity which you emitted, so that you may be able to contract marriage and use it, into the works which I have prescribed for you. In the name, etc. No formula is prescribed under penalty of nullity, indeed not even under precept; for none is contained in the Roman Ritual. If the confessor had omitted to legitimate the offspring, he could repair this omission; for then he would continue the cause committed to him and not yet completed.

If the impediment is known to both contracting parties and is common, each must be dispensed by his or her respective confessor. Sacred Penitentiary, November 15, 1748. The same Rescript can serve two confessors, and it is to be torn up by the one who later executes it with his penitent. But if the impediment is known to only one, one execution is required.

As regards a dispensation of the Sacred Congregation of the Sacraments, only after the Rescript has been received must: 1. the delegate for dispensing observe carefully that no error has crept in concerning the name and surname of the petitioners, in the name of the diocese or place; he must observe the various clauses inserted into the dispensation; and he must inquire concerning the truth of the causes. Nevertheless, more probably, this information is not required for validity. For from the Holy Office, August 28, 1885, in place of the words, "if through information you find that the prayers rest upon truth," which formerly were placed in the Rescript, the words to be placed are: "if the things set forth are true," and now other equivalent words are placed in the Forms of the Sacred Congregation of the Sacraments, with the cause kept before the eyes which is chiefly brought forward for obtaining the desired grace. Cf. vol. 1, n. 285. It suffices that the pastor or another be delegated for the verification of the causes; but "the dispensation and legitimation of offspring can be effected only by the executor himself." Sacred Penitentiary, April 27, 1886.

2. He must declare before the parties and witnesses that the impediment of marriage is removed, and command that attestation of this dispensation be written in the registers of the diocese.

3. He must transmit the Rescript to the pastor of one or the other party with permission that he may assist at the marriage.

4. It is altogether expedient to give the dispensation in express words, "We dispense," in writing, and "by Apostolic Authority," and "we declare the offspring legitimate." It should be noted that for this legitimation a special Indult is needed; and adulterine and sacrilegious offspring is excluded. And the dispensation is then perfected and the impediment is removed when the Ordinary declares this will of his to dispense, or when he signs and issues the written document. If it has been given, and the spouses, with their plan changed, have entered another marriage, after they have become widowed, they can still use it.

5. Although no censure is foreseen to have been contracted by the petitioners, nevertheless the Ordinary or confessor who, by force of Indult, grants a matrimonial dispensation "laudably premises absolution from censures." Sacred Penitentiary, July 2, 1891. But if the petitioners are bound by a censure, absolution must altogether be premised for the validity of the dispensation. Holy Office, December 18, 1872; A.S.S., vol. 26, p. 517. But from the Constitution Sapienti consilio, today censure does not stand in the way of the validity of a grace of the Holy See, unless there is question of those excommunicated by name or suspended from divine things by name by the Holy See. Order to be observed in the Roman Curia, Particular Norms, chap. 3, art. 1, n. 6. Pyrrhus Corradus, de Disp., book 1, chap. 4; De Iustis, book 1, chap. 6; L. book 1, n. 197 at the end, 1131, 1146; Benedict XIV, Instruction 87, n. 34.

The dispensation must be put into execution by the Ordinary, that is, the Bishop, Administrator or Vicar Apostolic, Prelate or Prefect having jurisdiction with a separate territory, and their Officials or Vicars General in spiritual matters, and, when the See is vacant, the Capitular Vicar or legitimate administrator.

If the dispensation is granted in gracious form, that is, if the Supreme Pontiff directly dispenses and mere execution of communicating the dispensation is committed to a delegate, the delegate can execute the Apostolic Letters if the Supreme Pontiff dies in the meantime, because it is a grace already made. And the grace is then understood as granted, and the impediment removed, when the Rescript is signed and issued furnished with seal. But if the dispensation is granted in commissory form, and the Supreme Pontiff dies in the meantime, the delegate can still execute the Apostolic Letters if he is a necessary executor, for it is also a grace already made. For the Supreme Pontiff then, granting the petition, gives a mandate to the delegate of dispensing, or of executing the dispensation. For then he himself does not dispense, but after knowledge of certain conditions executes the dispensation of the Holy See, which, previously conditional, then becomes absolute while remaining the same. But he cannot execute it if he is a voluntary executor, for it is a grace to be made. For the Supreme Pontiff then simply confers on him the power of dispensing; and therefore the dispensation is not really had directly except from the delegate to whom such power has been given, and when it is dispensed by the delegate. Cf. vol. 1, nn. 251, 255, 283; Practice of Apostolic Dispensations, nn. 226, 229; E.M. 1044, 1045.

What are the principal clauses which are usually placed in dispensations? It must be noted first that, from the various clauses contained in the Apostolic Rescript, some contain true conditions regarding the validity of the dispensation, while others contain precepts and admonitions pertaining only to the liceity of the dispensation.

Now the principal clauses are the following:

1. If it is so, if the prayers rest upon truth, or another equivalent clause. This pertains only to those things which would render the dispensation subreptitious or obreptitious. But faith, as regards the confessor, is to be given to the penitent, unless he certainly knows the opposite from knowledge outside confession.

2. Sacramental Confession having first been heard. This is required for validly dispensing for the internal forum, although the penitent has already previously confessed to another. It suffices that only one of the spouses has confessed, unless something else is clearly expressed, because an unjust condition ought not to be imposed on one through the other. De R.I., in VI. In the tribunal of penance alone, after hearing the penitent's Confession, can the confessor execute a rescript of the Sacred Penitentiary for the internal forum. But the execution is valid, although the penitent confesses invalidly and sacrilegiously. Moreover, the dispensation must be manifested before absolution, and can be granted even if absolution is deferred. Sacred Penitentiary, May 19, 1834. And the same Sacred Penitentiary, January 4, 1839, declared: "In executing rescripts of the Sacred Penitentiary, care must indeed be taken that the penitent be disposed for absolution from sins; nevertheless absolutions from censures will be valid, provided that at least an accusation or confession of sins has preceded, which is sacramental."

3. The occasion of sinning having first been removed, namely the proximate and voluntary occasion; but if it is necessary, it suffices that it be removed in mind, by rendering it remote from proximate through the due means. It is an admonition, not a condition for the validity of the dispensation.

4. Scandal being removed, insofar as it is present, especially through separation, if this can be done. "Separation is to be preferred to other modes of repairing scandal; if this cannot be done, scandal is to be repaired, but the manner of repairing scandal is left to the prudent judgment and conscience of the Ordinary, according to the requirements of each case." Sacred Penitentiary, April 12, 1889.

5. Provided that the impediment is occult, namely if it is known to few, in a town to only five or six persons, in a city to only seven or eight, and from the circumstances it is prudently conjectured that it will not be divulged. But if it is known only to the contracting parties, or only to one who cannot prove it, then it is called altogether occult. L. book 1, app. 2, n. 33; book 6, nn. 593, 1111; book 7, nn. 76, 78, 141; Benedict XIV, Instruction 87, n. 39 ff.; D'Annibale, 3rd ed., part 1, n. 242.

6. With grave and long-lasting salutary penance; with grave salutary penance. "In defining beforehand the quality, gravity, duration, etc., of the penance, which are left to the judgment of the one dispensing or the delegate in conformity with law, neither the limits of severity nor of humanity are to be exceeded, and account must be taken of the condition, age, infirmity, office, sex, etc., of those upon whom the penalty is enjoined to be imposed." Sacred Penitentiary, April 8, 1890. Therefore a penance must be imposed, and it must be accepted and fulfilled under grave obligation. But "omitted fulfillment of it does not bring with it the invalidity of the dispensation." Sacred Penitentiary, December 14, 1891. "The clause prescribing the imposition of penance is judged satisfied, even if it is accepted with a feigned mind by those who are dispensed." Sacred Penitentiary, November 12, 1891. De Iustis, book 1, chap. 7, n. 137 ff.; Reiffenstuel, book 4, tit. 21, n. 409.

7. Some alms having been distributed, according to the judgment of the Ordinary. "Non-observance of this clause, which is usually placed in dispensations, does not bring with it nullity of the dispensation." Sacred Penitentiary, June 10, 1876. With the poor this clause can be omitted according to the judgment of the Bishop. Sacred Penitentiary, November 11, 1890.

8. The party having been informed concerning the nullity of the prior marriage; yet in such a way that the crime of the petitioner is not to be manifested. This clause imports two things, namely: 1. that the other party renew consent; 2. that he or she consequently be informed concerning the nullity of the prior consent.

9. And insofar as this notification cannot be made without grave danger, consent having been renewed according to the rules handed down by approved authors. Various modes are handed down. These are the principal ones assigned by various authors: 1. If the spouse simply says: Our marriage is null because of some impediment; or: The confessor told me that it is null..., and therefore let us renew consent. But in this way the other party now becomes altogether informed concerning the nullity of the marriage, and in this practically the whole difficulty consists. 2. If the spouse says: I did not have true consent when I contracted marriage; now I wish to give new consent, do you also wish to give it? This mode is commonly admitted by authors, and can rightly be used without a lie, since null consent is not true consent; and otherwise the spouse ignorant of the impediment thus knows sufficiently the nullity of the marriage. 3. If he says: I am troubled by scruples concerning the validity of our marriage, and therefore let us renew consent. This mode can be admitted according to the more common opinion with St. Alphonsus, 1117. For it suffices that the other party place consent independent of the prior; and for this it is enough that he prudently doubt concerning the validity of the first marriage. 4. Various other modes are also offered by several theologians, e.g., if the spouse says to the spouse: Tell me, please, if our marriage were null, would you not wish to contract again? Or: If you had not married me, would you not wish to marry now? etc. But these modes are rightly rejected, because thus it is uncertain whether the other party intends to repeat consent in the preceding marriage, or to consent to a new one. L. 1117. "It is necessary to distinguish between nullity and the cause of nullity. The nullity is to be manifested. For a null act cannot be ratified unless its nullity is known, C. Proposuit, C. Ad nostram, de Coniugio servorum. But as regards the cause of the nullity, it would be an error to manifest it." Benedict XIV, Epistle Accusiamo to Cardinal de Sinzendorf, Bishop of Breslau, December 29, 1742. As is clear, practically the whole difficulty lies in having that knowledge of the nullity of the marriage.

If it is morally impossible to inform the party, and thus to renew consent, either a dispensation in radice must then be sought, or after a dispensation has been sought, and with urgent necessity standing, the clause can be held as not invalidating, so that only the one conscious of the impediment renews consent, while the other, unaware of the impediment, perseveres in the consent previously given. Cf. Benedict XIV, Notification 87, n. 74 ff.; cf. here n. 1050.

10. These presents having been torn up, under penalty of excommunication latae sententiae. The tearing up of the Letters of the Sacred Penitentiary, which places this clause, must be done immediately, but understand morally, namely at least within three days after the dispensation has been executed. But if the clause of tearing up has not been placed in the letters, as it is not placed when marriage has not yet been contracted, then there is no obligation to tear them up, but a dispensation of this kind must be carefully noted by the pastor in a book which cannot be seen by anyone else, so that he himself, when there is need, may be able to give proof concerning the dispensation obtained. L. 1143; Schmalzgrueber, book 4, tit. 16, n. 242 ff.; Benedict XIV, Notification 87; A.S.S., vol. 28, p. 512; Practice of Apostolic Dispensations; E.M.

What is revalidation of marriage? It is to render valid that which is invalid because of an essential defect, by removing the aforesaid defect. But this defect can proceed from consent, from form, or from the incapacity of persons to contract.

What about revalidation because of defect of consent? Consent remains habitually, and here also virtually, for as long as, once duly placed, it has not been revoked. Therefore: 1. if one of the contracting parties did not give consent, he must altogether give it, even without the other party knowing, and this alone suffices; otherwise marriage will never be had, nor can consent be supplied in any other way and manner. Consent of this kind is signified by cohabitation and other conjugal acts. And thus both are had, interior consent and its exterior signification, which does not necessarily consist in words. Nor indeed is anything else per se required in the case for the validity of marriage. Nevertheless the one who renews consent must know that the prior consent was null, and that the marriage was null, because otherwise he does not really consent, since nothing is willed unless it is first known. And thus consent must altogether be given if it was never present, or was only simulated, erroneous, or coerced, after the error and fear have ceased. This holds if the defect is occult, although the pastor and witnesses were conscious of the impediment. The reason is that the assistance of the pastor and witnesses is required only so that they testify to the celebration of the marriage, so that it may be impeded lest the spouses contract another marriage; not so that they testify to the validity of the marriage. But if the defect was public, the marriage must then again be contracted before the pastor and witnesses, where Trent was in force, and where now marriage must be contracted according to the decree Ne temere; otherwise where the marriage is valid independently either of Trent or of the aforesaid Decree. Nor is it per se necessary that the other contracting party also renew consent. L. 1114; A.S.S., vol. 11, p. 346 ff.

2. If the consent of each contracting party was lacking, it is necessary that each consent. But is it necessary to place consent mutually, or does it suffice that it be placed separately? This is controverted. Some hold that it suffices if it is placed separately, because once the consent of one has been placed, the consent of the other can be added to it. Others say it must be placed mutually, because otherwise the contract is lacking. "It is certain," says St. Alphonsus, 1114, "that in the contract of marriage physical simultaneity of the consents of the spouses is not required, but moral simultaneity suffices, namely if the consent of one morally perseveres while the consent of the other is placed." And indeed it must again be renewed before pastor and witnesses if the aforesaid defect was public; but otherwise if occult, as in the preceding case.

3. But if the defect in each preceding case, although occult, is such that it must be dispensed in the external forum and can be proved, it is altogether necessary that the marriage be secretly revalidated before the pastor and witnesses; otherwise, if perhaps the impediment becomes manifest, the spouses could institute divorce. C. Insuper 4, Qui matrim. accusa.; C. Propositum 1, de Eo qui dux.; C. Ad id 21, de Sponsal.; Sanchez, book 2, disp. 32; L. 1109-1114; St. Thomas, Suppl., q. 47, a. 4, ad 2.

What about revalidation because of defect of form? It is certain that a marriage invalid by reason of clandestinity must be entered before the pastor and witnesses, formerly according to the law of Trent, now according to the decree Ne temere, from which dispensation is rarely given. If both spouses do not refuse to present themselves before the pastor and witnesses, marriage must be contracted publicly or occultly according as its nullity is public or occult. The reason is that in the first case scandal must be removed, in the other it must be guarded against, and the whole reputation of the spouses must be preserved.

If one party or each refuses to go to the Church, they are to be joined in their own house or another place chosen by them, provided that grave witnesses are present, by whose aid convalidation of this marriage can be made public, if this is necessary for removing scandal, namely if the invalidity of the prior union is notorious. If one refuses to contract before the pastor, and the refusal arises from ignorance or some error against the laws or doctrine of the Church concerning impediments invalidating marriage, the one refusing should be instructed with due prudence and in charity. And insofar as he still refuses to convalidate his marriage in the face of the Church, then one must strive that he constitute a special procurator, who in his name will contract marriage in the customary way; or at least, with express consent de praesenti by letter directed to the proper pastor or to another priest having the license of the Ordinary or pastor, the marriage should be renewed. Cf. 963. If the indisposed party does not wish to contract even through a procurator, one can come to dispensation in the root of the marriage, or to sanation of the marriage in the root, so that at least provision is altogether made for the salvation of the soul of the innocent party, the legitimacy of the offspring, and the tranquility of the families, and so that provision can as soon as possible also be made for the salvation of the soul of the one refusing. Instruction of Cardinal Caprara, Legate a latere in France.

If a marriage was invalidly contracted by reason of clandestinity, and the spouses then go into a place in which clandestine marriage is valid, and there continue conjugal life, the marriage is convalidated if, being conscious of the nullity, they renew consent at least through conjugal copulation. But if they are ignorant of the nullity, or do not attend to it, and conjugal life is continued, the marriage remains invalid, Holy Office, August 31, 1887, because the prior invalid consent always remains, and no new consent independent from the prior one, and altogether necessary, has been added. But this reason for the resolution is not without difficulty, since the consent of the parties is naturally consent, and consent remains in whatever place, and therefore, when the extrinsic impediment of observing the extrinsic form has been removed, the consent which was naturally valid and could not produce its effect while the impediment of the law stood, once this has been removed, produces its effect. And thus, when baptism has been received by unbelievers, their marriage remains and becomes a sacrament, although consent into marriage is not renewed. And so also, by the same consent altogether, and in no way renewed after the nullity of the marriage has become known, a marriage invalid from an occult impediment is sanated in the root. Therefore the reason for the Resolution does not seem to be able to be the invalidity of consent, but rather because from the Council of Trent, sess. 24, chap. 1, de R. M., those who attempt to contract clandestinely are rendered incapable of contracting thus, and therefore even in another place they persevere incapable of contracting clandestinely. C. Propositum 1, de eo qui duxit, etc.; E.M. 859.

What about revalidation because of defect of personal incapacity? If marriage must be revalidated because of the incapacity of a person, by reason of some diriment impediment which is dispensed, dispensation from the same impediment must certainly be sought. If each spouse is conscious of the impediment, each is bound to renew consent, after dispensation has been obtained for revalidating the marriage. The reason is that knowledge of the nullity of marriage because of a known diriment impediment had easily excluded true consent in the preceding contract of marriage. Cf. 1033.

If only one party knew the impediment, that party is bound to renew his or her consent, at least alone and separately. This follows from what has just been said.

The party ignorant of the impediment would not necessarily have to renew consent for the validity of the marriage if the impediment regarded only the other party. The reason is that the consent of that party was valid from the beginning, and therefore perseveres; therefore renewal of consent of the incapable party would suffice. Hence, if a believer had married a non-baptized woman who is ignorant of the impediment, it would suffice, when infidelity ceases or dispensation is obtained, that the believer renew consent; because the consent of the unbeliever was valid, since the Church could not impress personal incapacity upon her. L. 1114; St. Thomas, Suppl., q. 47, a. 4, ad 2. Cf. Monit. Eccles., vol. 11, p. 24 ff., p. 105 ff. Nevertheless, from various decisions of the Holy Office, if each party in the case was ignorant of the impediment, and the unbelieving party received baptism, and the marriage is not ratified by them, knowing its nullity, in a place where clandestine or mixed marriages are valid, the marriage remains invalid, although they persevere in conjugal cohabitation. Holy Office, May 8, 1899. In finding the reason for this Resolution, the same difficulty appears as in the preceding case, as can also be seen from the following question. The reason is brought forward that the consent which is gathered from marital custom arises from error, namely that the prior consent is judged to have force. But if this were true, whenever marriage had been contracted invalidly, marriage could never be sanated in the root without renewed consent, which is against the fact itself. Therefore it can better be said that the Church in such a case does not accept that prior consent as legitimate; and unless the Church accepts it, it remains subject to the invalidating power of the Church.

C. Propositum, de eo qui duxit, etc.; E.M. 959.

But must consent also be renewed by the party ignorant of the impediment when this touches both? There are two opinions. The first opinion affirms. The reason is that the impediment takes away the efficacy of consent from the beginning; therefore it remains ineffective, and accordingly can produce no effect, since it perseveres in the same way in which it was given; but a simple dispensation does not heal the vice which preceded, but only renders the parties capable of consenting in the future. The second opinion denies. The reason is that the prior consent, although it lacked its effect because of an impediment placed by positive law, nevertheless by natural law was valid, since it was given by a person capable by natural law toward a person capable by natural law of contracting. This is confirmed from dispensation in radice itself, which is sometimes given. For in it the Church certainly does not supply, nor can she supply, a defect of consent. Therefore, when the impediment has been removed, the prior consent suffices, which virtually perseveres in its effect, through conjugal copulation, cohabitation, or other external signs. Therefore, when the internal consent of the spouse conscious of the impediment is added, expressed at least through similar external signs, the consent of each is united, and the marriage is convalidated. C. Si infantes un., de Despons. impub., in VI; Lugo, Responsa Moralia, book 6, disp. 2, n. 2.

But practically, consent must altogether be renewed not from the nature of the thing, but because of the clause contained in a simple dispensation: "the other party having been informed concerning the nullity of the prior consent." This clause contains not an admonition, but more probably a condition. L. 1115, 1116, 1117, 895, 1145; A.S.S., vol. 26, p. 421 ff. Consent, moreover, must be renewed publicly before the pastor and witnesses if the impediment is public; but privately if it is occult. The reason is that otherwise the marriage could not be sufficiently proved before the Church; and in the first case scandal must be removed, but in the other scandal and the defamation of the parties must be impeded. Indeed, if the impediment, although occult, can be proved in the external forum and must be dispensed, the marriage must be secretly revalidated before the pastor and witnesses, lest the spouses afterwards be able to separate if the impediment becomes known. Therefore, when the impediment is so occult that it can in no way be proved in the external forum, it is not then necessary to contract marriage again before the pastor and witnesses.

St. Alphonsus, book 6, n. 1116, speaking of the second opinion just reported, says that it can serve for practice in a case of urgent necessity. "For if from knowledge of the nullity of the marriage there can prudently be feared danger of death, grave infamy, or scandal to follow from separation; and on the other hand the spouse could not avoid rendering the debt, then he can well use the second opinion as probable; because in that case, by reason of necessity, even with danger of frustration of the sacrament, it is lawful to follow an opinion only probable, as they commonly teach." Cf. here n. 1046, 9. Benedict XIV, Epistle Accusiamo to Cardinal de Sinzendorf, Bishop of Breslau, December 29, 1742, Bullarium, Naples ed., 1885; Instruction 87, n. 62 ff.; Sacred Congregation of the Council, June 8, 1610; Sacred Penitentiary in Ferraris, v. Matrimonium, a. 8, n. 9; Pyrrhus Corradus, book 7, chap. 7, nn. 8, 9, 12, 13; book 8, chap. 3, n. 44; L. 1899.

If there is danger that the other, upon knowing the nullity of the marriage, will not wish consent to be renewed; or, when each spouse is ignorant of the impediment, the same danger is present and there would be other grave inconveniences of defamation, then the Apostolic See must be approached, so that it dispense from the aforesaid condition of renewal of consent and grant the dispensation which is called in radice. Rising up to the origin, or root, of the marriage, this both renders the person capable of contracting and heals the very vice of the consent given at the beginning. For the root of marriage is consent, and the root which is sanated is consent into marriage naturally valid; and therefore the marriage begins from now to be valid. Holy Office, March 8, 1900; Monit. Eccles., vol. 12, p. 3. The marriage itself moreover is sanated as regards effects, and as regards the legitimation of offspring, from then, i.e., as if it had been valid from the beginning. Namely, in such a case that condition of renewing consent is relaxed; when this has been removed, and when the incapacity of the person has also been removed by dispensation, that consent, valid by natural law, exercises its moral force, and the marriage is perfected. But, as is clear, it is necessary that consent into marriage truly was present and perseveres, and that marriage truly was contracted, and in good faith on the part of both or at least on the part of one, and that it had and still retains the appearance of marriage. Therefore this dispensation is applied while one party, or even both parties, are ignorant of it.

Dispensation in radice is to be executed in the same way as a simple dispensation, by adding in the formula the words, "in the root." Thus, for example: "I, by apostolic authority granted to me, sanate and consolidate in its root the marriage contracted by you with N., and I declare legitimate the offspring received and to be received, in the name of the Father, and of the Son, and of the Holy Spirit." But no formula is contained in the Roman Ritual. Sanchez, book 2, disp. 35, 36, 37; book 8, disp. 7; Benedict XIV, Const. Etsi, Notifications 68, 80, 87; de Syn., book 13, chap. 21; L. 1109, 1115 ff.; E.M.

Dispensation in radice is granted by the Sacred Penitentiary, by the Sacred Congregation of the Sacraments, and by the Holy Office for various cases, and regularly must be sought through the Ordinary. Monit. Eccles., vol. 19, p. 4 ff.

According to the Holy Office, November 22, 1889, for sanation in radice it is required that the Catholic party acknowledge the nullity of the marriage. Collectanea S.C. de Propaganda Fide, n. 1721.

According to the Holy Office, March 11, 1868, marriages contracted with impediments of ecclesiastical law are revalidated in radice without renewed consent. Collectanea S.C. de Propaganda Fide, 2nd ed., 1897, n. 1326.

According to the Holy Office, August 22, 1906, a marriage null because of disparity of cult is sanated in radice after baptism has been received by the wife, without any prior admonition of the Catholic husband. Collectanea, cited, n. 2239.

Legitimation of offspring made by the Supreme Pontiff is extended by a certain consequence also to temporal effects. C. Per venerabilem 13, Qui filii sint legitimi. This is clear in two ways: as regards canonical and civil effects, and as regards the removal of the very stain and infamy of illegitimate birth.

The faculty was twice granted to me by the Supreme Pontiff Pius X of sanating in radice the marriage of two married women, without their husbands being forewarned, and with a document of this sanation left with the women themselves, if perhaps the necessity should occur of demonstrating that sanation had been obtained.