Point I. On the Power of Dispensing

861. Principles. - I. The Pope can dispense from all impediments of ecclesiastical law: 1. validly in every case, because he is the primary Superior; 2. licitly if he does so for a just cause, as right governance requires.

II. A Bishop cannot ordinarily and by his own right dispense from diriment impediments. The reason is that a Bishop can do nothing against the common law of the Church except from the concession of a Council or of the Pope, or from legitimate custom. But Bishops can claim for themselves the right of dispensing from such impediments for none of these reasons, as is evident both from the practice of the Church and from various Declarations of the Sacred Congregation, and especially from the Rescript of Pius VII to the Bishops of France in the year 1809. In it the Pontiff complains that not all the Bishops of France had recourse to the Holy See for obtaining faculties to renew marriages invalidly contracted during the time of the disturbance in France ¹.

¹ Formerly, several Bishops in France, from a privilege annexed to the See, were accustomed to dispense from diriment impediments. But these privileges were suppressed together with the sees themselves in the new circumscription of dioceses made by Pius VII in the year 1802 through the Bull Qui Christi Domini, in which the following is contained: We suppress, annul, and perpetually extinguish the title, lordship, and entire present state of the archiepiscopal and episcopal Churches, together with their respective chapters, rights, privileges, and prerogatives of every kind.

862. Questions. - QUESTION 1. If the spouses are from different dioceses, must a dispensation be obtained from each Bishop if each enjoys the faculty of dispensing by special Indult?

Reply. It is disputed, and there is a twofold probable opinion:

The first opinion denies it. The reason is that when a Bishop removes an impediment from his own subject, he renders that subject capable of contracting with another impeded person. For one cannot become capable of contracting with another unless the other also becomes capable of contracting with the first. Moreover, by delegating the Bishop the Pope gives him his whole right; therefore the dispensation of the Bishop is valid just as if it were granted by the Pope himself. St. Ligorius, no. 1142, calls this opinion probable ².

² Since it is probable that there is no need of another dispensation, it is lawful to contract in this manner according to the general principle that the Church supplies where perhaps there is need.

The second opinion affirms it. The reason is that the Bishop of one party has no jurisdiction over the subject of another, while the faculty of dispensing is restricted to his own subjects.

863. • QUESTION 2. Can Bishops dispense from doubtful diriment impediments?

Reply. More probably, yes. The reason is that although dispensation from diriment impediments is reserved to the Pope, nevertheless, since reservation is odious, it must be interpreted strictly and restricted only to certain cases. But if there is question of a doubt or of probability of law, dispensation appears useless, according to what was said above concerning impediments in general, since in this case the Church is considered to supply ³.

³ The resolution of the Author, as is evident, comes to this: that in the case neither a dispensation of the Pontiff nor of a Bishop is necessarily required.

QUESTION 3. Can a Metropolitan dispense his suffragans' subjects in a case of necessity or of an Indult?

Reply. No, because a dispensation is an act of voluntary and gracious jurisdiction and is granted from the indulgence and mercy of the one dispensing; but recourse to the Metropolitan cannot be had except in matters pertaining to the contentious forum. Therefore, etc. ⁴.

⁴ If there is question of a faculty of dispensing granted by a Pontifical indult, it will be necessary to consider the form of words in which it is conceived and from this to judge whether it is restricted to subjects alone.