§ II. On the Revalidation of Marriage with a Dispensation in the Root

901. • A dispensation in the root is the abrogation, in a particular case, of the ecclesiastical law which introduced the impediment, joined with the invalidation of all the effects which previously followed from the law. - Benedict XIV, Institution 87, no. 80; On the Synod, book 13, chapter 21, no. 7.

This dispensation, therefore, produces its effect by removing the effects of the law which were produced on account of the nullity of the marriage before the dispensation was introduced, and also in the very act of contracting. Thus also the same Supreme Pontiff.

Hence a simple dispensation differs from a dispensation in the root in this: the former does not have its effect except from the time when it is granted, or ex nunc, and consequently cannot exempt from the renewal of consent. The latter, however, convalidates the marriage from the time of the marriage, or ex tunc; that is, through a fiction of law, it ascends to the root or origin of the marriage and places the matter in the same state as if the impediment had never existed. Hence it is called a dispensation in the root, because it destroys the effect of the impediment from the root or beginning of the marriage, namely: 1. by healing the defect of consent; 2. by bestowing validity upon the marriage; 3. by conferring legitimacy upon the children with respect to spiritual effects ¹.

¹ Understand that the child is rendered fit for benefices, sacred Orders, and ecclesiastical offices; concerning this there has never been any disagreement of opinions.

The question is, as Sanchez says (On Matrimony, book 8, disputation 7, no. 3): Whether the Pontiff, by dispensing in the root of an invalid marriage, can legitimate children born from it before the dispensation of the marriage, in places not temporally subject to him, so that they are capable of offices and of succession to temporal goods? That is, whether he can effect that the dispensation be carried back to the time when that invalid marriage was contracted, so that it is judged as though it had been validly entered from the beginning by means of that dispensation, to this effect: that offspring had from it before the dispensation are also legitimate in all respects, no otherwise than if they had been born from a legitimate marriage. And the whole difficulty arises when the impediment on account of which that marriage was invalid was introduced by pontifical law. This controversy is indeed of the greatest moment, since from it there must be determined, for example, whether a son born of an illegitimate marriage, but who has obtained legitimation by aid of this dispensation in the root, must be preferred in succession to a Majorat or a Fideicommissum either to another younger brother who was, however, legitimately born after the dispensation had been obtained, or to another blood relative.

Sanchez, moreover (ibid.), after adducing the reasons for the negative opinion and some of its patrons, then explains his own opinion thus (ibid., no. 4): But the most frequent and truer opinion holds that the Pontiff can do this. It is derived from this: the root and origin from which it arises that offspring are illegitimate and consequently incur the disabilities of illegitimacy, whether ecclesiastical or secular, is the ecclesiastical law by which it was established that the impediment found in that contract of marriage would render it void; and if that law did not stand, the marriage would have been valid and the offspring legitimate and would not have incurred those disabilities. But the Pontiff can invalidate and revoke his law with respect to effects which have followed from it by human law, and not only with respect to those to be incurred in the future, by effecting that they are not incurred, but also with respect to those already incurred, by abolishing them as if the law promulgated had never existed, as is established from the sole Clementine On the Immunity of the Church, where Clement V revokes certain Constitutions of his Predecessors even with respect to effects previously produced, in these words: "Whatever has followed from them or on account of them, we entirely revoke, and we will that they be held as undone." There the Gloss, Cardinalis, Ancharranus, Imola, and the Abbot infer from this that the power of the Pontiff concerning those things which are of positive law is so great that he can revoke them as from the time when they were promulgated, and abolish all past effects as if they had never been promulgated. Therefore the Pontiff, thus dispensing in the root of the marriage, that is, at its beginning, by revoking the impediment which invalidated it as if it had never existed, will effect that the dispensation is carried back to the beginning of the marriage and consequently is judged as though that marriage had been valid from the beginning, with no invalidating impediment existing; in which case the offspring would be truly legitimate in all respects. And it is confirmed, because this is not to dispense in civil law and its effects, but indirectly and through a certain consequence; namely, because by civil law those disabilities are incurred by the offspring on the supposition of the firmness of the ecclesiastical law invalidating the aforesaid marriage, from which it followed that the marriage was invalid and consequently the offspring conceived from it illegitimate and subject to all the disabilities of illegitimacy established by civil law. Since, therefore, the Pontiff by his dispensation in the very root of the marriage directly removes the firmness of that ecclesiastical law and wholly abolishes it, just as if that law had never been promulgated, he will effect indirectly and through a certain consequence that all those disabilities cease, since they depended upon the firmness of the ecclesiastical law. And this reason, and the other matters which can be seen there, are explained still further; where, after illuminating the reasons with still fuller light, he adds very many Doctors who handed down the same opinion.

Nevertheless, it is entirely due to this paragraph, in which he so vigorously undertook to defend and vindicate the rights of the Apostolic See - to this paragraph, I say - that the name of Thomas Sanchez was entered into the Index of Prohibited Books, and that even in catalogues of books which are offered for sale in the City you may often see this mark of infamy branded upon the name of Sanchez and his work On Matrimony. How, you will say, could this happen? Receive the explanation briefly. When this work was published at Venice in the year 1612, this paragraph offended the eyes of the petty theologians who were serving the Venetian republic in the protracted war which it did not cease for many years, indeed for centuries, obstinately to wage against the Apostolic See and its rights. It was therefore commanded by the Magistrates that the work could not be brought forth into the light there unless the hated paragraph, as though opposed to the rights of the republic, were cut out and entirely removed. But that deed did not escape the eyes of Roman vigilance; for, perceiving from that malicious omission in a most celebrated work worn by the hands of all an offense against its rights and thence a scandal to many, it willed that the corrupted edition of Sanchez's work be taken from the hands of the faithful, and therefore ordered that the third volume be entered among condemned books. Wherefore the condemnation falls not upon the genuine work of Sanchez, but upon a particular edition of the work corrupted by wicked fraud. But the fact that, in catalogues of books for sale, that mark of infamy is very often appended to the name of Sanchez without any distinction made between the genuine work and the corrupted edition is due to the ignorance or inadvertence of those who undertake the care of these catalogues.

902. Principles. - I. The Church, or the Supreme Pontiff, can dispense in the root of marriage with respect to all impediments of ecclesiastical law. The reason is: 1. because to dispense in the root is nothing other than to remove the impediment not only for the future but also for the past, or to remove the effects which it produced, so that before the Church they are held as though they had never existed. In these things, however, there is nothing which exceeds the power of the Church. Therefore, etc. 2. Because this is established and confirmed from the practice of the Church, which for several centuries has been accustomed to grant such dispensations. Boniface VIII is read to have dispensed in this manner first, in the year 1301; but in more recent times Pius VI, Pius VII, Leo XII, etc., dispensed more frequently in the same manner.

903. • II. Three conditions are required so that a marriage can be convalidated by aid of a dispensation in the root, namely:

1. That the union of the spouses have had the external appearance of a just marriage and have not been manifestly fornicarious. Thus Benedict XIV. Cardinal Caprara requires the same. The reason is that otherwise true consent would not be present, and consequently marriage could in no way be present; or the root of marriage would not be present, as Benedict XIV says.

2. That the consent of both have persevered; for the Church cannot convalidate consent retracted even by only one party. Moreover, the Pontiff not rarely requires in the Rescript that the persevering consent of both parties be established. Some nevertheless contradict this.

3. That an urgent and most grave cause be present. Thus Benedict XIV. This can be present chiefly in three cases, namely: 1. when one party cannot be brought to the renewal of consent and nevertheless exhibits present consent to remain in the marriage; thus Cardinal Caprara; 2. when the impediment is known to only one party and cannot be manifested to the other without grave inconveniences; 3. when there is an urgent reason for not warning the spouses of the nullity of the marriage.

This third condition is not required for the validity of the dispensation if the dispensation is granted by the Supreme Pontiff; otherwise, if it is granted by the Bishop from a particular Indult. - Carriere, no. 1444.

904. Questions. - QUESTION 1. Can a dispensation in the root be obtained and applied while both parties are ignorant of it?

Reply. Affirmatively. The reason is that knowledge of the dispensation is in no way required for the Church to be able to remove the effect of the law, or the obstacle which stood in the way of the efficacy of consent; for the power of the Church is altogether independent of such knowledge. It is confirmed from the practice of the Church. For Clement XIII, as Collet relates, granted to a certain Procopius (who appears to have been a Bishop) the faculty of sanating in the root, without the parties being warned, many marriages invalidly entered because of an excessive extension of faculties received. Other examples of a similar revalidation of marriages are also related by others.

QUESTION 2. Can a dispensation IN THE ROOT be granted if both parties knew the impediment when they contracted?

Reply 1. Negatively, according to the more common opinion, if the spouses in contracting clearly knew the nullity of the marriage. The reason is that, once the invalidity of the marriage is known, true and properly so-called consent to it cannot be given, but there is only an intention of living in concubinage; and consequently the consent cannot be healed, since it was fictitious from the beginning.

Reply 2. Affirmatively, if the spouses, although they knew the impediment when contracting, nevertheless doubted whether the marriage was null, or did not attend to its invalidity. Thus Cardinal Caprara appears to be understood, who supposes that a dispensation in the root can be obtained to convalidate a clandestine marriage when one party refuses to renew consent before the Church. It appears that one must distinguish in the same manner concerning marriages contracted only civilly.

905. • QUESTION 3. Can a Bishop dispense IN THE ROOT when he can dispense from diriment impediments by a particular Indult?

Reply. Negatively. The reason is that a dispensation in the root requires greater power, and therefore is not judged to be contained in other faculties. This is confirmed from the practice of the Church, which always gives a special faculty when it intends to grant the power of dispensing in the root.

QUESTION 4. How is a dispensation IN THE ROOT to be executed?

Reply. In the same manner as a simple dispensation, adding in the formula the words in the root. Thus, for example: I, by the apostolic authority granted to me, heal and consolidate in its root the marriage contracted by you with N., and declare the offspring received and to be received legitimate, in the name of the Father, and of the Son, and of the Holy Spirit. But no formula is contained in the Roman Ritual.