Chapter III — On the power and causes of dispensing in the impediments recounted

I. QUESTION I. Who has power of dispensing from diriment impediments? ANSWER. The common opinion of theologians is that, use and custom acceding, the Roman Pontiff alone by ordinary right dispenses from the aforesaid impediments, bishops and Legates a latere being excluded.

II. QUESTION II. Whether bishops, urgent necessity pressing, can dispense from some diriment impediment before matrimony is contracted? ANSWER. The common opinion affirms it, provided the necessity be urgent and grave, and access to the Supreme Pontiff be not open, and there be danger of infamy or of incontinence or of another evil in delay. No express law, no canon declares that a bishop cannot perform in his diocese in these cases those things which are necessary for the salvation of his sheep. From custom and use alone do the Supreme Pontiffs dispense in impediments of this kind. Therefore, when such necessity urges, who hinders a dispensation from being sought from the Pontiff, and being granted otherwise by a bishop? Two extremes in this as in the rest are to be declined: both an excessive facility of dispensing without a lawful cause, and an excessive severity of straitening the authority of bishops, which of its own nature is only for the common good of the Church, restricted by the Supreme Pontiffs. Therefore as often as the common good demands, and the Pontiff cannot be approached, and there is danger in delay, bishops can dispense, both before and after matrimony contracted.

III. QUESTION III. Is it required that the matrimony contracted be in good faith, that a bishop may dispense from an impediment? ANSWER. Good faith in one spouse alone suffices, as the common opinion teaches. Several also contend that a bishop can dispense even if bad faith preceded in both. The more probable opinion nevertheless requires good faith at least in one spouse.

IV. QUESTION IV. From what impediments can a bishop dispense outside the case of necessity? ANSWER. Bonacina, Henríquez, Sánchez, Castropalao, and the Salmanticenses teach that bishops can dispense in an impediment supervening upon matrimony on account of affinity and spiritual kinship, and in a simple vow of chastity, that the spouses may ask the debt of one another, although there be no urgent necessity; and this, they say, is established from lawful custom.

V. Several privileges are wont to be alleged as granted to Mendicant Friars of dispensing in an impediment supervening upon matrimony on account of copulation had with a blood-relation of a spouse in the first or second degree, or on account of a simple vow of chastity emitted before matrimony, that they may be able mutually to render and to ask. All these privileges to me are fictitious, because I have been able to find no authentic document by which it may be evinced that these privileges are lawful.

VI. QUESTION V. Do superiors sin who dispense from impediments without a cause? ANSWER. It is agreed among all that both those granting and those seeking a dispensation without a cause sin. Authors dispute whether it be a mortal or a venial sin. Suárez, Bellarmine, Toletus, and other graver theologians affirm that it is mortal. This opinion is true. St. Bernard calls a dispensation without a cause a cruel dissipation. Who does not see that to trample down at pleasure laws passed for the common good of the Church is a deadly sin? Smallness of matter can excuse from grave fault.

VII. QUESTION VI. Is a dispensation of this kind granted without a cause valid? ANSWER. Theologians commonly teach that a dispensation of an inferior in a superior's law without a cause is null. Hence they infer that a bishop dispenses invalidly in a pontifical law without a cause. Similarly that the Pope dispenses invalidly in a vow, in an oath, or in any other divine law, a just cause being taken away.

VIII. Some teach that a legislator can validly dispense in a law passed by himself without a just cause: because, they say, in his own law the Legislator operates as lord. Therefore, just as a prodigal, they say, validly transfers the dominion of his own goods, although in squandering he sins, so a legislator validly dispenses in his own law with others, otherwise with himself. This opinion is to me false. The distinction of dispensation in respect of himself and of others seems to me fictitious. Every law is passed for the common good. By natural and divine law a legislator is bound to promote the common good as much in respect of himself as of his subjects. Legislators are subject to the laws directively, subjects coercively. Therefore by the same reason by which the more recent authors affirm that he dispenses invalidly with himself, they ought to affirm that he dispenses invalidly with others.

IX. QUESTION VII. What are the just causes of dispensation? ANSWER. Several are assigned. 1. The removal of suits, scandals, and quarrels, and the good of peace; 2. If in the town in which a woman dwells she cannot conveniently find an equal whom she may marry; 3. A defect of dowry, when a girl finds a blood-relation who will espouse her without a dowry; 4. The preservation of riches in the same family; 5. The repairing of a matrimony contracted in good faith; 6. The request of Kings and great Princes; 7. Excellence of merits toward the Church; 8. The furnishing of money in aid of the Church.

X. Whether all these causes be lawful, let those judge whom it concerns; the last does not approve itself to me, concerning which Fr. Viva, question 11, article 2, no. 4, says: Sánchez nevertheless notes that he who seeks matrimonial dispensations without a cause by exhibiting a copious alms does not sin, just as neither does he who without a cause uses what he has sought. The reason, because although they be sought without a cause, they are nevertheless not granted without a cause. Is this a robust reason? They are not granted without a cause, because they are granted on account of money. What will Lutherans and Protestants not prate, reading such things? Will they not blurt out that these laws are money-making? But we shall shake their calumny by opposing the Tridentine Synod, which established that dispensations are to be granted: 1. Rarely; 2. From a cause; 3. Gratis. Nor does it matter that some interpret the laws less rightly.

XI. When at the time of the dispensation a cause existed, even if afterwards it cease, the dispensation subsists: because as soon as a valid dispensation was granted, the impediment is taken away. Otherwise it is to be said of a dispensation from those things which have a successive course. You obtained a dispensation from fasting on account of debility: the debility ceasing, the dispensation ceases.

XII. QUESTION VIII. What is a subreptitious dispensation? ANSWER. It has already been said above that it is that which is granted either on account of a falsity expressed, or on account of a truth concealed. If you desire more, read Vol. X, Book 2, dissertation 3, chapter 5.