Point II. On the Causes of Dispensation

864. • The causes which are adduced for obtaining a dispensation are: 1. grave or light; 2. motive or final, or merely impulsive; 3. true or false. - See the Treatise On Laws, no. 117 and following.

If in a petition a truth which must necessarily be expressed is concealed, for example, some impediment or a circumstance to be declared, etc., it is called subreption in the dispensation, or a subreptitious dispensation. But if something false is asserted as true, it is obreption, or an obreptitious dispensation.

When dispensations are said to be without cause, this signifies that none of those causes customarily alleged as canonical is present.

865. Principles. - I. A cause is required for the liceity of a dispensation. This is established from the Council of Trent, session 24, chapter 5, On the Reformation of Matrimony: In marriages to be contracted, either let no dispensation at all be given, or let it be granted rarely, for a cause, and gratuitously.

II. For the validity of a dispensation it is required that in the petition there be no obreption or subreption falling upon the motive or final cause. The reason is that the Superior is not considered to dispense except under the tacit condition: if the prayers rest upon truth.

866. Questions. - QUESTION 1. What are the just causes for dispensing from diriment impediments?

Reply. They are the following:

1. The narrowness of the place, that is, if it is feared that because of the narrowness of the place the girl will not suitably marry another. Every place not having three hundred hearths is regarded as narrow; and this holds even if the bride will transfer her domicile elsewhere ¹.

¹ Anyone easily sees that this cause for dispensing is that in that place it is difficult to find a man whom the girl can suitably marry. Nor is consideration given to whether perhaps this difficulty could cease by seeking a husband elsewhere, since that is infrequent and foreign to common customs.

2. The lack of a suitable dowry, which otherwise is offered to the girl by a relative, or by a stranger, but on the condition that she marry the relative. 3. The already advanced or over-mature age of the woman, namely, when she has already exceeded her twenty-fourth year and does not find another man of her condition whom she can marry ². 4. Carnal intercourse already had with a female relative or another person laboring under an impediment, when there is otherwise danger that infamy may follow, etc. 5. Excessive familiarity of the parties, from which scandal is feared unless they marry. 6. The legitimization of offspring born or conceived from fornication. 7. The allaying of grave enmities, or the ending of a lawsuit between the parents, relatives, or relatives by affinity of the petitioners. 8. Christian virtues which probably would not be found in another man. 9. Excellence of merits toward the Church. 10. The preservation of goods in an illustrious family. 11. A large alms to be expended upon pious works. 12. The poverty of a widow burdened with children, whom the man intends and promises to support.

² The same standard does not hold for all places in this matter. For in some places a girl who has attained her twentieth, or even her eighteenth, year is regarded as so over-mature that she finds with difficulty anyone whom she may marry.

It sometimes happens that one cause taken separately is not sufficient, but, joined with another, is regarded as grave and therefore suffices.

The causes now admitted as canonical for the second and third degree are: narrowness of the place, lawsuits to be avoided, intercourse already had, scandal to be removed, and the over-mature age of the woman. - Bouvier.

The suppression of the truth, or the expression of what is false, concerning those things which by law, custom, or the style of the Roman Curia must be disclosed, is always regarded as substantial.

867. • QUESTION 2. What things must necessarily be expressed by law, under pain of invalidity, in a petition for a dispensation?

Reply. They are the following: 1. The true and legitimate cause moving one to obtain the dispensation. 2. Even the lowest species of the impediments, for example, affinity from licit or illicit intercourse; public propriety from betrothals or from a ratified marriage. 3. The number of impediments, for example, if besides relationship there is also affinity, or if there is double or multiple consanguinity or affinity. 4. Filiation or co-parenthood in spiritual relationship. 5. The degree of consanguinity, affinity, or public propriety from a ratified marriage; indeed, if the petitioners are in an unequal line, the nearer degree must also be expressed. This, however, is not required for validity unless they are joined in the second degree touching the first. 6. Incestuous intercourse had between the petitioners, whether with the intention of obtaining the dispensation more easily or even apart from such an intention ³. This is proved from the Bull Pastor bonus of Benedict XIV.... 7. The various circumstances of a marriage celebrated with an impediment, namely, whether clandestinely; whether with the required proclamations; whether with the good or bad faith of both parties, or of only one of them; whether with the hope of obtaining the dispensation more easily; and whether the marriage was consummated.

³ 1. In this place the Author followed St. Alphonsus, who (book 6, no. 1135) judged that this controversy, which until that time the Doctors had customarily disputed on both sides, must now be called entirely settled; and therefore he hands it down as indubitable that, if the circumstance of incest is kept silent, although it was not committed for the purpose of obtaining the dispensation more easily, the Rescript is so vitiated that the dispensation is void, and consequently the marriage invalid.

Thus the Holy Doctor (book 6, no. 1135): But it must altogether be held (that the marriage is null).... And concerning this there is no longer any doubt today from the Bull Pastor bonus of Benedict XIV, where section 41 says: "But if the petitioners shall have obtained from Our Datary a dispensation upon a prohibited degree in the first and second, or in the second only, and also in the third or fourth, with the intercourse which followed between them kept silent, which they cannot disclose without detriment to honor; and by reason of such silence they seek a dispensation for contracting marriage, or a revalidation of one contracted; the same Major Penitentiary may, if the intercourse is still secret, grant a dispensation of this kind, or respectively a revalidation, in the forum of conscience only; a composition of fifty gold ducats of the Camera being made, when there is question of the first and second, or the second degree only, to be transmitted to the Datary for the purpose (as is the unshaken custom) of being expended in alms, etc." To these words St. Alphonsus adds: From these things observe that the Pope, by saying, "may grant a revalidation," does not hold as valid marriages contracted with such concealment.

And again (Homo Apostolicus, treatise 18, no. 85): Concerning this today (says the Holy Doctor) every doubt ceases, since it was declared by Benedict XIV in the Bull Pastor bonus (section 41), where a marriage from a dispensation obtained with INCEST kept silent is pronounced void.

2. But the opinion of Blessed Alphonsus (which some afterward copied), as well as the argument drawn from the Constitution of Benedict XIV, does not appear to be without its difficulties.

And indeed, to set aside for the moment the foregoing words of Benedict's Constitution, it must not be denied that the opinion which afterward pleased St. Alphonsus at one time also pleased Benedict XIV, or, to speak more precisely, Lambertini. For in Instruction 87, which he published for the Confessors of his diocese of Bologna so that they might know fully those matters for which recourse must necessarily be had to the Cardinal Penitentiary, he has the following (no. 13): Writers indeed contend among themselves whether these things must be openly set forth (namely, the intercourse which occurred, or the will and design that they might obtain the dispensation more easily) in order that the impediment of consanguinity or affinity may be dispensed by the Apostolic See; yet in reality no room for doubt remains, since the Supreme Pontiffs have most clearly declared their mind concerning this matter. For in their Letters, when they impart some dispensation, under pain of subreption or obreption they indicate that not only the intercourse, if it occurred previously, but also with what design and will it was entered into, must be explained. For this he cites Corradus, Practice of Dispensations, book 8, chapter 1, no. 36 and following, and Father Syrus on the Constitution of Innocent XII, faculty 32, section 26, and faculty 33, section 27.

3. But from these citations no slight difficulty now arises. For Corradus (loc. cit., no. 37) gives as the reason why the dispensation is null that incest is by law an impediment; and he tries to confirm this by a Declaration of the Sacred Congregation which we reported elsewhere (above, note to no. 776), in which it is read: For this reason, that such relatives by consanguinity and affinity, through this intercourse, were rendered incapable of contracting marriage, from the fact that they are said to have committed incest, which prevents incestuous persons from contracting marriage.

But according to St. Alphonsus this reason adduced by Corradus is altogether defective. For we have already shown elsewhere (note to no. 776) that according to St. Alphonsus both the impediment of incest and the others which were comprehended under the prohibitory impediment of Crime were so removed by force of custom that they no longer need dispensation. Thus the Holy Doctor (Homo Apostolicus, treatise 18, no. 53): Under this name (CRIME) certain offenses were formerly comprehended, namely INCEST with one's own mother (the Canon must be understood not of a mother but of a godmother), the abduction of another man's betrothed, etc.; but this impediment also became obsolete through desuetude. And again (book 6, no. 857): Other impediments (namely, INCEST, the abduction of another man's betrothed, etc.) TODAY ARE NOT IN FORCE, NOR DO THEY NEED A DISPENSATION. Nor, as we have already seen (note to no. 776), must this be called a singular opinion of St. Alphonsus; for it was shown there that this is the most common opinion of all. Indeed, the same Holy Doctor (book 6, no. 905) calls it the common opinion that the impediments of incest and other crimes have been removed through non-use: Thus (he says) also Concina and the Salmanticenses with Sanchez and the COMMON opinion. Therefore, in the judgment of St. Alphonsus together with the most common opinion of all, this argument of Lambertini, if indeed he wished to rest upon the testimony and authority of Corradus, already plainly collapses.

4. Nor is the other citation of Father Syrus from a manuscript work for the use of the office of the Sacred Penitentiary, bearing the title On the Constitution of Innocent XII, etc., of any greater force. Lambertini cites from that manuscript faculty 32, section 26, and faculty 33, section 27. Nothing need be said at present about the latter citation, because there it treats of those who in committing incest proposed to themselves this end, that they might obtain the dispensation more easily. Therefore, a few words about the former, in which Father Syrus appears to have wished to avoid the difficulty which we noticed arising in Corradus's reason. Father Syrus therefore writes thus: It must be observed that although incestuous intercourse between relatives by consanguinity or affinity does not present any impediment to marriage, nevertheless a dispensation obtained from the Datary is subreptitious and invalid if, in obtaining it, mention is not made of the said intercourse previously had between them. Having excluded in this way the reason adduced by Corradus, Syrus substitutes the little reason employed by Sanchez, from whom he had also copied the foregoing. For he continues thus: For such is the style of the Curia which has prevailed, that this incest be declared for this purpose, that through fear of having to make this disclosure relatives by consanguinity and affinity may be deterred from incestuous intercourse, as Sanchez notes, book 8, disputation 25, no. 8.

5. But how wretched these things also are! Syrus premises that incestuous intercourse between relatives by consanguinity or affinity does not present any impediment to marriage.

Let pass for the moment what Syrus intermingles concerning incest between blood relatives. Since the laws merely make provision concerning incest between relatives by affinity, this addition is due to empty reasonings drawn from the fact that incest was mentioned generally in the verses denoting crimes which impede marriage; and indeed it is due to reasonings drawn contrary to the very well-known maxim of Law that odious things are to be restricted. Against this addition Giraldi (Notes to the Thesaurus, On Penalties, part 2, word Incest, chapter 1) suitably warns that the Canon If anyone with his mother, canon 17, cause 33, question 2, from which some inferred that incest between blood relatives also was comprehended by that law, treats of a godmother, and by no means of a mother who is a blood relative.

But what pertains more closely to the matter: does not Syrus himself show most plainly that his assertion is false when he reports the formulas of Dispensations? For (On the Formulas of Matrimonial Dispensations, part 2, chapter 2, formula 3) he thus reports the formula of a Dispensation For contracting, upon incest not expressed in the letters obtained from the Datary: Moreover, by Apostolic Authority specially delegated to me, I dispense you FROM THE IMPEDIMENT ARISING FROM INCESTUOUS INTERCOURSE which you had with your relative by consanguinity or affinity, so that, notwithstanding THE AFORESAID IMPEDIMENT, you may and can licitly contract marriage with her.... And again (ibid., formula IV), he himself thus reports the formula of a Dispensation Upon a marriage contracted, concerning incest concealed in the Datary: Moreover, by Apostolic Authority specially delegated to me, I dispense you FROM THE IMPEDIMENT ARISING FROM INCESTUOUS KNOWLEDGE not expressed in the letters of Dispensation by virtue of which you contracted, so that, notwithstanding it, you may licitly contract marriage anew with her, with consent renewed, and consummate it, and remain in it. What, then, is more wretched and monstrous than for someone to deny that incest presents any impediment to marriage, and not hesitate to appeal to the style of the Curia to prove this, and afterward himself to report the formulas of Dispensation in which incest is exhibited as an IMPEDIMENT OF MARRIAGE and then dispensed as an impediment? Can the style of the Curia, to which Father Syrus appeals, be known better from any other source than from the formulas of Dispensation?

It must therefore again be concluded that Lambertini rests upon the testimony of a man who shamefully contradicts himself in this matter. But here again it must be recalled that, in the judgment of St. Alphonsus together with the most common opinion of the Doctors, the argument drawn from this has no force, since the prohibitory impediments of incest or other crimes were removed by ancient custom and do not need a dispensation. Therefore, the argument which Lambertini draws from the citation of Syrus also has no force.

6. We called it a little reason, however, namely, the reason which, as we indicated above (no. 4), Syrus copied from Sanchez in order to substitute it for the argument which others used to establish the necessity of expressing the incest, and which Lambertini in turn appears to have copied from Syrus; for he himself also writes (loc. cit.): But the Supreme Pontiffs wisely established this, that they might keep the most grave crime of incest far from blood relatives. And to these words Lambertini indeed appends the aforesaid citation of Corradus and Syrus. That citation can further displease for a twofold reason: first, because he cites two men of whom one contradicts the other, while one denies that incest introduces an impediment to marriage, but the other affirms this very thing and indeed establishes it as the foundation of his thesis; and then because, while he substitutes blood relatives for relatives by affinity, he follows the opinion of certain persons founded upon an empty deduction rather than the prescriptions of Law. For that which we reported from Navarrus (note to no. 776) is sufficiently well known: almost all theologians hold that from incest with a blood relative there indeed arises the impediment of affinity, BUT NO OTHER, whether it is committed before or after the marriage has been contracted. Among these are St. Thomas, Sotus, St. Antoninus, and Sylvester, whom Covarruvias also follows, etc.; and Sanchez, as we shall presently see, confirms this.

Whatever may be the case concerning this, Sanchez certainly observes (book 8, disputation 25, no. 6) that the truer opinion holds that FROM INCEST WITH BLOOD RELATIVES NO IMPEDIMENT OF MARRIAGE ARISES; and also that incest with relatives by affinity, although it produces that impediment, has nevertheless been removed by contrary custom and NEEDS NO DISPENSATION. From this he concludes that there is no reason why a dispensation from the impediment of consanguinity or affinity, with that incest kept silent, should be subreptitious. Therefore, in order nevertheless to defend against the other opinion, which he calls probable, the necessity of disclosing incest not only with relatives by affinity but also with blood relatives, he has recourse to the aforesaid reason. The legitimate foundation of this opinion, he says (loc. cit., no. 8), is not that this incest presents some impediment to marriage. FOR THE CONTRARY IS TRUER. But the foundation is the style of the Curia..., and its reason is that through fear of having to make this disclosure relatives by consanguinity and affinity may be deterred from incestuous intercourse. Hence also are those words of Lambertini (loc. cit.): They wisely established this (the Pontiffs), that they might keep the most grave crime of incest far from blood relatives.

But perhaps others will with difficulty admire the marvelous wisdom of the Pontiffs in a law described in these colors. A remedy and restraint against the crime of incest was sought, namely, as they say. Now such a remedy and restraint can indeed be perceived in that law which was customarily deduced from the old Law expressed in title 13, book 4, On Him Who Has Known a Blood Relative of His Wife. For a penalty was inflicted upon incestuous persons of this kind, by force of which they were to be deprived perpetually of the hope of contracting marriage with any person, since the crime of adultery was also added to that incest. Therefore, everyone guilty of this crime was prohibited from marriage without a dispensation, to be obtained at least from the Bishop. But to what, finally, does a remedy of this kind come according to this new theory, which confines any penalty only to those few among all incestuous persons who might wish to contract marriage with one another? And indeed in such a way that the penalty no longer consists in a prohibition of marriage between them, which could be relaxed or not relaxed according to the just judgment of ecclesiastical authority, but resides in the mere disclosure of the crime, which disclosure, moreover, imposes no burden of itself whenever the matter is to be transacted with the Sacred Penitentiary under fictitious names? Does there shine forth in this new remedy for restraining incest that wisdom which could be found in the penalty imposed by the old law?

7. But another difficulty of no little weight also occurs in that paragraph of Lambertini's Instruction. No room for doubt remains (he says), since the Supreme Pontiffs have most clearly declared their mind concerning this matter. For in their letters, when they impart some dispensation, under pain of subreption or obreption they indicate that not only the intercourse, if it occurred previously, but also with what design and will it was entered into, must be explained.

Let the latter point pass, concerning which no one doubts. St. Alphonsus writes excellently after all the others (book 6, no. 1134): It is common among all that, if intercourse was had on the part of both for obtaining the dispensation more easily, and intercourse is alleged as the sole cause for obtaining the dispensation, then that evil intention must necessarily be expressed; otherwise the marriage will be null, because no one ought to profit from his own crime.

The difficulty remains in the other member, namely, when intercourse was had entirely without that depraved intention. Lambertini appeals to the letters by which a dispensation is imparted. But it does not sufficiently appear how he effectively derives his conclusion from letters of Dispensation of this kind. For this conclusion could be deduced by him from these Letters of Dispensation insofar as incest is spoken of in them as an impediment of marriage, which therefore must necessarily be mentioned by those who seek a dispensation from another impediment, for example, affinity, and the concealment of which impediment therefore renders the dispensation subreptitious. For in fact, in the formulas of dispensations which we transcribed above (no. 5) from Father Syrus, incest is exhibited as an impediment of marriage. And we discern this very same thing in the formulas of Letters which Father Paul Marcus Leo presents in his Practice Concerning Apostolic Letters and Those of the Sacred Penitentiary. Thus, for example, in the Dispensation given to those who, before the Ordinary executing the letters of Dispensation, falsely denied that intercourse had occurred, although in reality it had occurred between them, it is read (op. cit., part 2, page 309): Provided that THE IMPEDIMENT ARISING FROM THE AFORESAID INCESTUOUS KNOWLEDGE is occult, etc. And again:

(Ibid., page 316): But since the aforesaid Dispensation (from the third degree of consanguinity) is invalid because of the aforesaid carnal intercourse not expressed in the letters..., provided that THE IMPEDIMENT ARISING FROM THE AFORESAID INCESTUOUS KNOWLEDGE is occult..., mercifully dispense, etc. But if Lambertini is to be considered to have drawn his conclusion from this (and certainly he could not have drawn it from elsewhere), behold, on the contrary, Father Syrus, to whom he himself refers the reader in this matter, absolutely denies (above, no. 4) that incestuous intercourse between relatives by consanguinity or affinity presents any impediment to marriage! And to Father Syrus may be added both St. Alphonsus, who (above, no. 3) teaches absolutely that the impediment of incest is no longer in force and does not need a dispensation, and (see note to no. 776) the most common opinion of the Doctors, which professes that an impediment of this kind was entirely removed by long-standing and therefore legitimate custom. It remains, therefore, that the conclusion of Lambertini's Instruction rests upon the little reason which Father Syrus, cited there, had taken from Sanchez, and by which Sanchez (above, no. 6), having excluded the reason drawn from the antiquated impediment of incest, nevertheless endeavored probably to prove the necessity of expressing incestuous intercourse. But even if what we indicated above is now passed over, namely, that a reason of this kind appears plainly unhappy and less worthy of the wisdom of legislators, the context of the Apostolic Letters to which Lambertini there appeals stands entirely in the way besides. For in them the whole reason for subreption, as we have already seen, is established in this: that the petitioners, while seeking a dispensation from the impediment of affinity and keeping silent about the incestuous intercourse, conceal this other impediment of marriage, which no less than the first needs a dispensation, as Corradus, cited there together with Father Syrus, openly holds. Therefore, the little reason taken from Father Syrus and Sanchez is also overthrown by the appeal to the Apostolic Letters.

It is therefore already sufficiently clear that this part of Lambertini's instruction to his clergy of Bologna is burdened by most grave difficulties. It is therefore no wonder that his own clergy of Bologna deferred so little to this doctrine of their Archbishop that, during that very time, as we shall see, in a solemn Resolution of Cases of conscience they departed into the opposite opinion.

8. But enough now concerning the argument which someone might perhaps draw from that Instruction of Lambertini, all the more because below (no. 30) we shall see the same Lambertini excellently refuting the arguments which are drawn from Apostolic letters of Dispensations. Let us now return to the argument which the Holy Doctor Alphonsus (above, no. 1) draws from Benedict's Constitution Pastor bonus, and which he proposes as the sole and decisive argument.

It was said above (no. 2) that this opinion of the Holy Doctor is not without its difficulties. And indeed, in the first place, this occurs: the Holy Doctor himself freely concedes that before Benedict XIV this controversy was freely disputed on both sides in the schools. Indeed, in the Naples edition of his work of the year 1748, he himself did not hesitate to follow as truly probable the opinion opposed to Lambertini's (book 6, treatise 6, chapter 3, doubt 4, note C, question 3). And for other reasons also it is worthwhile to report the text of the Holy Doctor. To the question, namely, When a dispensation is sought for a marriage between relatives, must incestuous intercourse had between them be expressed? he replies: There is a twofold probable opinion. The first affirms that it must be expressed in the Sacred Penitentiary if the intercourse was occult, but in the Datary if it was public. Thus Palaus, Sanchez, Laymann, Coninck, etc., among the Salmanticenses. And they testify that the Sacred Congregation declared this to be the style of the Roman Curia. The second opinion, however, denies it, because incest of itself is not a diriment (understand prohibitory) impediment of that marriage, nor does it render the dispensation more difficult. Thus the Salmanticenses with Ledesma, Hurtado, Henriquez, Perez, Rodriguez, Basilius, Villalobos, Praepositus, and others. And Sanchez RIGHTLY calls it probable. From this they infer that, if a dispensation is committed to the Bishop and he asks about the intercourse, the contracting parties can deny it even with an oath, since the interrogation is probably not legitimate. And this, EVEN IF IN THE PONTIFICAL RESCRIPT IT IS SAID: PROVIDED THAT INTERCOURSE HAS NOT OCCURRED BETWEEN THEM. Because this is understood, etc.

9. Let these latter consequences now be set aside; they can certainly appear of great moment to those who judge that this opinion, which St. Alphonsus held as truly probable, should be preferred to the opinion toward which he afterward inclined (above, no. 1). Meanwhile, let these points be noted: 1. St. Alphonsus judged that nothing should be deferred here to the judgment of Sanchez, who (book 8, disputation 25, no. 8) had called that first opinion far truer; 2. he judged the little reason by which Sanchez defended his opinion (above, no. 6), which Father Syrus and Lambertini afterward copied, not even worthy of mention; 3. here also the Holy Doctor repeats that incest is not an impediment of marriage which needs a dispensation, and since he constantly retained this thesis even after he departed from the foregoing opinion, it does not easily appear by what intrinsic foundation the Holy Doctor could fortify his new doctrine (above, no. 1); 4. but it was to be desired that in this place, just as for the first opinion he indicated the Declaration that such is the style of the Curia, so for the second he had not kept silent about what, as Sanchez also reports (loc. cit., no. 6), Gutierrez has (Canonical Questions, book 1, question 15, no. 11), writing: With the same opinion agree two other distinguished theologians of this city; indeed, I was informed THAT ACCORDING TO IT JUDGMENT WAS GIVEN TWICE IN ONE CASE. And after the first edition of this work, Navarrus, one of the aforesaid, advised that a dispensation upon the impediment of consanguinity or affinity, without mention being made of intercourse previously had, is valid and that another dispensation of the Pope is not required.

10. But what is chief, while the Holy Doctor plainly professes both in words and in deeds that until his own time this question was freely disputed on both sides in the schools and within the bounds of probability, by that very fact someone will rightly conclude that almost all the force is cut away from the argument which he thought could be deduced for his new opinion from the aforesaid Constitution of Benedict XIV (above, no. 1).

And indeed, whatever may be drawn and urged from the Constitution Pastor bonus of Benedict XIV, these same things are read in the Constitution Romanus Pontifex (September 3, 1692), by which Innocent XII, no less than Benedict XIV in his own Constitution, enumerates and establishes the faculties of the Major Penitentiary and the Office of the Penitentiary, so that the words of Benedict XIV plainly appear to have been copied from the Constitution of Innocent. For Innocent XII thus says (cited Constitution, section 34): But if the petitioners who shall have obtained from Our Datary a dispensation upon a prohibited degree both in the first and second and in the second only, and also in the third or fourth, with the intercourse which followed between them kept silent, which they cannot disclose without detriment to honor, and by reason of this concealment seek a dispensation for contracting marriage or a revalidation of a marriage contracted, the same Major Penitentiary may, if the intercourse is still secret, grant it in the forum of conscience only; a composition of fifty gold ducats of the Camera being made, when there is question of the first and second, or the second degree only, to be transmitted to the Datary for the purpose, as is the unshaken custom, of being expended in alms, etc.

From this, however, someone will reason by an obvious argument in this way: Either it is contended that by these words of the Constitution of Innocent the necessity of expressing incest is defined and, consequently, that if the incest is kept silent the Rescript of dispensation is invalid; or it is contended that these things are in no way defined there. If it is contended that this question must be held as defined from the words of Innocent, then it is held and asserted with less consistency that the matter was freely disputed by both theologians and canonists in the schools, and could be disputed without censure, until Benedict XIV settled the contest by his Constitution; for the question ought then to be said to have been settled earlier by Innocent. But if it is contended that this controversy was not resolved by the Constitution of Innocent, it must be conceded, whether they wish it or not, that the controversy was in no way defined by the Constitution of Benedict either. And the reason for this conclusion is sufficiently manifest. For the sentence of each Constitution is wholly one and the same, and moreover their authority is at the same time one and the same. Indeed, does not St. Alphonsus himself hold the Constitution Pastor bonus as a mere confirmation of the Bull of Innocent XII? For the Holy Doctor writes thus (book 6, no. 1144): It is asked in what impediments the Sacred Penitentiary has the faculty of dispensing. For the explanation of this question, which can be of great profit for the practice of Pastors and Confessors, I have judged it worthwhile to note here those things which are contained in the Bull of the Supreme Pontiff Benedict XIV which begins Pastor bonus, issued on April 13 in the year 1744, where the Bull of Innocent XII, issued on April 3, 1692, beginning Romanus Pontifex, IS CONFIRMED AND INSERTED. Therefore, wherever you finally turn, that new assertion of the same St. Alphonsus, that TODAY AFTER BENEDICT XIV there is no longer any room for doubt concerning this controversy, can in no way be admitted.

11. Hence also that appears to collapse which the distinguished man Peter Giovine has in the very recent work On Matrimonial Dispensations, Naples, 1866, where (consultation 27, section 9, no. 8) he writes: Today the matter is settled, that the dispensation remains void... if incestuous intercourse is concealed...; and this... was definitively declared by Benedict XIV through the celebrated Constitution which begins "Pastor bonus." For we find nothing in the words of Benedict which declares those things more than was said in the Constitution of Innocent. And if you do not contend that the controversy is defined by the words of Innocent XII, then indeed, since Benedict XIV merely repeats the sentence of his Predecessor, no new declaration which defines the matter can be conceived there. Indeed, since Benedict knew very well that by the Constitution of Innocent the controversy had so little been held as defined that it was disputed most freely on both sides in the Catholic schools, as he himself testifies in his Instruction 87, as we have seen, certainly if he had wished to declare anything further, if he had wished to define anything, he ought to have added something to the sentence of his Predecessor and changed something in it, so that at last the theologians and canonists might understand the sense and force of the Constitution of Innocent. But he added nothing and changed absolutely nothing in it. Therefore, by the very fact that he added nothing further to the Constitution of Innocent but merely repeated Innocent's words and sentence, he showed sufficiently and more than sufficiently by the fact itself that he wished to define or declare nothing, and wished to preserve the whole matter in the status quo, as they say, that is, to permit it, no less than his Predecessors the Pontiffs, to the free disputation of theologians and canonists.

12. And this reason indeed draws a certain greater force from the fact that Benedict XIV himself, while still in a lower dignity, had shown himself persuaded that the Roman Pontiffs had openly declared, under pain of subreption, the necessity of expressing the intercourse. See what was said above concerning his Instruction 87. For the graver and grosser the common error of all the Doctors could appear to him, not one of whom until that day had suspected, as will appear below, that the Roman Pontiffs had interposed any judgment on this question, the more vehemently did reason urge him, once made Pontiff, to declare in at least some manner what sense underlay the words of Innocent XII. Yet he did nothing of this kind.

13. But this also must be added here: from that Instruction 87 it is sufficiently deduced that Benedict XIV himself found nothing in the Constitution of Innocent XII which effectively contributed to the resolution of this controversy. And indeed, why is it that, while in that Instruction he strains every nerve to prove the necessity of expressing incestuous intercourse, he nevertheless does not take an argument from the Constitution of Innocent, but has recourse to the Apostolic letters of Dispensations which are customarily given by the Offices of the Sacred Penitentiary and the Datary, and refers to Father Syrus and Corradus, who report these formulas and add to them whatever commentary they can? Shall we suspect that the Constitution of Innocent was unknown to Lambertini himself, when for several years he exercised the office of Doctor of the Sacred Canons in the very Office of the Sacred Penitentiary? Or shall we think that he regarded as more effective an argument drawn from formulas of dispensing of this kind rather than from that Pontifical Constitution, although elsewhere, as we shall see, he himself defends most keenly and invincibly that no effective argument can be deduced from them? Or, finally, was Benedict XIV so slow of mind that in the Constitution of Innocent, which in this very Instruction (loc. cit.) he cites merely in order to indicate the faculty of dispensing handed down by Innocent, he did not even from afar and dimly perceive anything of that argument which St. Alphonsus believed himself to have discovered most clearly and decisively in those words for ending the question? And if Benedict XIV found nothing in that Constitution suited to settling this controversy, so that in that Instruction he expressly testifies (above, no. 2) that after the Constitution of Innocent and down to his own days a question of this kind was customarily discussed on both sides, how can anyone suspect that Benedict XIV, by employing the same words which he knew had been employed by his Predecessor Innocent XII, wished to settle this controversy?

14. To this is added that, after that Instruction 87 had been issued, among the clergy of Bologna whom he himself then governed as Archbishop, the opinion defended and inculcated by him had so little prevailed that, when in the ecclesiastical meetings customarily held in the metropolitan Church for discussing moral questions, and at which he himself testifies that he was accustomed to be present (Instruction 87, no. 1), the case of which we now speak was proposed, an opinion contrary to his persuasion and encyclical Instruction was adopted, as we shall see a little below. I said, after that Instruction had been issued; for the meeting in which the case was resolved was held in September of the year 1740, while the Instructions had appeared first at Bologna, each separately at the time when it was proposed; then all collected together in the same city; and again in the year 1740 at Venice according to the model of the Bologna edition. Therefore, the more difficult he saw it to have his opinion received even by his own clergy, the more necessary some declaration must have appeared to him, by which an opinion which in his judgment contradicted Apostolic Rescripts of dispensations might at last be abolished. Yet no trace of such a Declaration appeared. Therefore, by this very fact Benedict's later intention discloses itself, namely, to define nothing concerning this matter.

15. And the force of this conclusion also appears to be increased from this: if Benedict XIV had really wished by his Constitution to define something and to correct the common opinion which, according to the opinion stated above, was erroneous, he certainly would have chosen a less suitable manner of executing his design. For not only would a mere repetition of the words of Innocent have been an inept mode of declaring Innocent's words, but besides, the condition of an error common among all the gravest Doctors would altogether have required that the Declaration or Definition be issued and promulgated in that manner by which the correction of the error could easily be obtained. But a promulgation suited to attaining this purpose will scarcely be found in Letters given to the Major Penitentiary in which his faculties are enumerated; and, on the hypothesis of such a Declaration, the facts confirm this, for, as will be openly evident below, no one in the City of Rome itself, so long as Benedict XIV held the Pontificate, had knowledge or even suspicion of this supposed Declaration or Definition.

16. But one could suspect such a Definition all the less because no one is ignorant that it was the most constant custom of the same Pontiff, if ever he determined to interpose his judgment in some grave controversy concerning which the Doctors had previously disagreed among themselves, never to omit to set forth, or at least to indicate, the state of the controversy, nor was he accustomed to pass over in silence the reasons persuading either side; but he always added some express indication of his mind and purpose by which it was openly established that by his own Authority he wished to put an end to the controversy. Yet not the least trace of all these things can be found in his words cited above.

17. Furthermore, that in reality nothing concerning this controversy was defined by the Constitution of Innocent can be gathered not obscurely from another source. For once it becomes known, first, that most Authors who afterward fought for the necessity of expressing incest nevertheless, no differently than others had generally done before Innocent, proposed their thesis within the bounds of probability; second, that there were others, and very many of them, who after the Bull of Innocent was issued contended, at least as more probable, that there was no need for the circumstance of incest to be expressed in petitions for dispensations; and third, finally, that whichever of the contrary opinions the Authors supported, none of them, either for or against, brought forward the Constitution of Innocent, which otherwise they did not ignore, or even made any mention of it; it must certainly appear sufficiently manifest that, according to the common understanding of the Doctors, the aforesaid Constitution contributed nothing toward resolving the present question. And a reading of the Authors who flourished from the time of Innocent XII easily shows that the matter stands thus with respect to each of those three points.

18. And to begin with the first, among those who, although they defended the necessity of expressing intercourse, nevertheless after Sanchez held it only as more probable, or inclined more to neither side, let there be, for example, Mazzotta, who writes thus (treatise 7, disputation 1, question 3, chapter 3, section 3, no. 3): But whether one seeking a dispensation from consanguinity or affinity with Bertha ought also to express the incestuous intercourse committed with her is a dispute among the Doctors. And after saying that Sanchez affirms it with many, while others contradict, he himself adds nothing further.

Thus Collet (Treatise on Dispensations in Particular, part 1, chapter 17, article 1), who, after adducing the opinion of Sanchez, adds: I think this opinion, as the safer and at least equally probable with the opposite, must be adhered to.

Thus La Croix (book 6, part 3, no. 922): If you have known your relative by consanguinity or affinity in a diriment degree, and afterward, wishing to contract with her, seek a dispensation but do not express that intercourse occurred, Navarrus, Gutierrez, Ledesma, Rebellus, Laymann..., Sanchez very probably say that the dispensation is void.... Others, however, hold the opposite with Henriquez, Salas, Vega, Rodriguez, Diana, Pontius, Hurtado, Krimer, Perez, and Aversa, who calls it safe in practice....

Thus Simonnet (treatise 18, disputation 5, section 23), while adhering to the opinion of Sanchez, nevertheless also reports without any censure the opposite opinion of the others.

Thus also Kugler (On Matrimony, no. 259) holds with Sanchez as more probable that the dispensation is surreptitious if the incest is concealed. But he observes that the betrothed are not to be questioned about this where the practice does not prevail.

Add to these also Louis Habert, who (On Laws, chapter 10) teaches that a dispensation is not surreptitious if through ignorance the circumstance of incest is not expressed.

19. But as regards the many more others who after the Constitution of Innocent maintained, at least as more probable, that there was no need for the circumstance of incest to be expressed, let Vincentius De Iustis lead their line. He was somewhat near to and almost contemporary with Innocent XII, and he treated this argument expressly and deliberately (On Matrimonial Dispensations, book 1, chapter 4, nos. 250-364); and after he had fundamentally, most fully, and at the same time most learnedly examined this matter on every side, he concludes thus: From all these things taken together it is sufficiently and more than sufficiently established that the expression of the intercourse is not necessary... if the petitioners have another cause which moves the Pontiff to grant the dispensation, since concealment of the intercourse itself does not intrinsically affect the dispensation... and it is not commanded to be expressed by any law, style, custom, Council, Canon, Decree, Rule, or Constitution. Moreover, he had premised (no. 317) that many Doctors... most openly taught this opinion in their treatises to be probable and safe in practice, AND DAY BY DAY CONTINUE TO TEACH IT.

Not long after Innocent XII and Vincentius De Iustis, Constantinus Roncaglia wrote his moral work. Having premised (treatise 21, question 4, chapter 3, question 10) that according to the more common opinion the intercourse must be expressed if it is public, although, as he says, not a few assert the contrary, he then adds: The foregoing holds if the intercourse is public, for it must not be expressed if it is occult. And although Sanchez wills that occult intercourse must be disclosed when a dispensation for an impediment is sought from the Sacred Penitentiary, nevertheless others affirm that this is not necessary; for just as the Datary or Chancery dispenses even for the internal forum although occult intercourse is not expressed, so the same must be said of the Penitentiary when, besides the intercourse, there is another legitimate cause for seeking the dispensation, all the more because incest with one's own blood relative does not need a dispensation.

Near the time of Innocent's Constitution was also Dominicus Viva. Yet to the proposed question whether a dispensation is valid if the intercourse is kept silent (On Matrimony, question 6, article 3, no. 8), he replies: Sanchez with others denies it... but Pontius... and others cited by Perez probably TEACH that the dispensation in the case adduced is valid, because neither does incest need a dispensation, nor is it commanded by any law that it be expressed; and besides, if the incest is expressed, the dispensation is rendered easier, not more difficult.

John Reuter was about their contemporary, and he writes thus concerning this matter (Moral Theology, part 4, treatise 8, no. 583): One who seeks a dispensation in order to marry a blood relative or relative by affinity whom he has known, and does not express the intercourse, has an invalid dispensation according to Sanchez and others; a valid one according to Krimer and others, because if he had expressed the intercourse the dispensation would have been easier. Nor does the contrary style of the Curia stand in the way when it is not confirmed by a Decree of the Pontiff, which does not exist.

Likewise John Clericatus, who (On Matrimony, decision 40, no. 11) discusses this question thus: If carnal intercourse has occurred between betrothed persons having the diriment impediment of consanguinity or affinity, must it be expressed to the Pope under pain of a subreptitious dispensation? There is a great dispute among the Doctors, whom the Salmanticenses report as asserting each opinion to be probable, but the negative to prevail; this is also embraced by Vincentius De Iustis (On Matrimonial Dispensations, chapter 4), where he calls this Question great and difficult; but at no. 259 he limits it to when in the Bull of dispensation there is the clause, "Provided that intercourse has not occurred," which, however, he says at no. 263 is not inserted today in Bulls of matrimonial dispensations; and Pyrrhus Corradus, book 8, chapter 8, no. 20, testifies to this, inveighing against Vicars who execute those dispensations and ask the petitioners whether they have had intercourse together, when they do not have this in their mandate. It is true, however, that concerning this question the Doctors suppose the dispensation to be sought and obtained from some other reasonable cause, namely, because of the narrowness of the place...; in view of these, or of any one of them, there is no need to express the intercourse which perhaps the betrothed blood relatives had with each other, as Vincentius De Iustis himself concludes after a long disputation.

Thus also Schmalzgrueber (book 4, title 16, no. 197): If the intercourse is occult, its expression is not necessary, as Sanchez teaches with others.... Nor in this case is there need to set forth the occult intercourse before the Sacred Penitentiary and petition that it supply the defect of the dispensation, both because incest with one's own blood relative does not need a dispensation, and because no solid foundation for this expression appears.

Reiffenstuel has nearly the same (appendix to book 4, section 4, nos. 191-192): It is said (he says) notably, If the intercourse is now public; for if it is occult, Sanchez rightly teaches with others that its expression is not necessary.... And although Sanchez wills that occult intercourse must at least be set forth before the Sacred Penitentiary, and it must be petitioned to supply the defect of the dispensation, nevertheless no solid foundation for this expression appears... especially since incest with one's own blood relative does not need a dispensation.

Thus also Maschat (at the end of book 4, treatise On Dispensations, section 3, no. 24): If intercourse is alleged as the cause, it must be expressed whether it was had in the hope of obtaining the dispensation more easily; and if another cause is alleged, nevertheless public intercourse must be expressed according to the style of the Curia, but not occult intercourse.

To this must be referred the fact that Cardinal Gotti (On Matrimony, question 7, doubt 2, section 3, no. 17) presents the expression of intercourse merely as something safer and fitted for removing scruples, even if the incest was committed for obtaining the dispensation more easily: Nevertheless, for removing (he says) all doubts and scruples, it is safer that those who seek a dispensation faithfully and sincerely set forth all things which can assist or delay the dispensation, namely, expressly and distinctly the degree of consanguinity or affinity, and the incest, if it was committed for the purpose of obtaining the dispensation more easily. A fortiori, however, as is evident, according to the distinguished Cardinal the expression of intercourse is not necessary if it was not had for that end, that the dispensation might be obtained more easily.

Vitus Pichler is no different (book 4, title 16, no. 37), where he writes: It must nevertheless be noted that mention of the intercourse, if it is occult while the impediment is public, ought not to be made in the petition to the Datary; but according to many it should be made if the intercourse also were notorious. Some think that recourse must be had to the Penitentiary so that the defect of the dispensation may be supplied because of occult intercourse not expressed in the Datary; but this does not appear necessary. Yet from the words cited no one should persuade himself that, according to Pichler, mention of the intercourse is necessary, at least if it was public. For a little afterward he adds:

If some legitimate cause is alleged, and the intercourse was not had under the said hope (namely, of a more easily obtained dispensation), there is an immense controversy whether intercourse which is not occult must be expressed in an impediment of consanguinity.

To these is added Giribaldi, who (Treatise X, On Matrimony, chapter 18, no. 9), after proposing the question, Must incestuous intercourse perhaps had between relatives by consanguinity and affinity necessarily be expressed when a dispensation is sought for contracting marriage?, replies (no. 58): The first opinion teaches that it must necessarily be expressed, lest the dispensation be subreptitious and lest the marriage afterward contracted be null.... But he adds (no. 59): The second, truer and more probable opinion teaches that intercourse had between relatives by consanguinity and affinity who wish to contract marriage need not necessarily be expressed, and that through this the dispensation is not rendered subreptitious, nor the marriage afterward contracted rendered null. The reason is that incest is not a diriment impediment which by reason of itself needs a dispensation, nor perhaps a prohibitory one, since it has already been abrogated by custom.

Finally, in the Resolutions of Cases of Conscience which on the title page of the volume are said to have been proposed and resolved by command of His Eminence Prosper Lambertini, then Archbishop of Bologna and afterward our Most Holy Lord Pope Benedict XIV, you will find the same doctrine. For after the necessity of expressing the depraved intention in committing incest, namely, to obtain the dispensation more easily, was established there (case 2, September 1740), these things are added: Yet I think this must be understood, first, when the aforesaid intention was manifested, since the Church does not judge internal things; second, when the same intention was reciprocal between those having intercourse, since it is not equitable that the offense of one harm the other; and third, finally, when another sufficient cause of dispensation was not related, since otherwise the obligation of manifesting either the fault or the intention had in the intercourse no longer appears to urge.

It is therefore sufficiently manifest that the theologians and canonists after Innocent XII not only did not hold as certain and established by Pontifical authority the necessity of expressing incest, or the nullity of a dispensation because the same circumstance was kept silent, but that most of them regarded as more probable, truer, and safe the doctrine which denies that necessity.

20. But as regards the third point, namely, that theologians and canonists who discussed this question after the Constitution of Innocent judged that no account was to be taken of it, this can be dispatched briefly. Let anyone who wishes to learn the matter with his own eyes read through the Doctors whom he has cited here. He will certainly see that neither those who teach that incest must be explained in the petition draw an argument for that opinion from the Constitution of Innocent, nor again do those who oppose that opinion have the authority of the Constitution of Innocent objected to them. And you will find altogether the same silence concerning the Constitution of Innocent among the few others who, without making any mention of the opposite opinion, teach that incest must be expressed; such are Billuart (On Laws, dissertation 5, article 3, section 4), Cuniliati (treatise 14, chapter 7, section 29, no. 6), and Catalani (part 3, question 14, chapter 19, no. 13). Moreover, the hypothesis is altogether incredible and manifestly repugnant which imagines, on the one hand, that the controversy was defined by Pontifical authority through a solemn Constitution, but, on the other, that all theologians and canonists, otherwise Catholic and most obedient toward the Apostolic See, took so little account of the Pontifical Constitution and Pontifical oracle that, in treating that controversy, they did not regard it even as worthy of mention, and indeed, while the Apostolic See looked on, some at most held the doctrine supposedly defined as probable, while others openly attacked it.

21. And to this certainly pertain the things which Vincentius De Iustis discusses concerning the same matter (loc. cit., no. 317): Although these Treatises (in which, namely, the necessity of expressing incest is denied) have been printed, circulated everywhere, publicly held and read in the hands of many, and are daily held, maintained, and publicly read, nevertheless this opinion has not until now been condemned by any Constitution publicly and authentically known; whereas, if it were false and erroneous, it must be presumed that it would have been condemned in some manner, so that such condemnation would be publicly and authentically known before Ecclesiastical Tribunals. For there is question of a most grave matter; because if the contrary opinion were certain, from the concealment of intercourse of this kind there would arise invalidity of the dispensation, nullity of the marriage, invalidation of the Sacrament, illegitimacy of the offspring, perpetual concubinage and incest, and consequently innumerable sins, crimes, and most grave scandals.... Therefore, it can and must be presumed that if this opinion were not probable, defensible, and safe, it would have been condemned in some manner by the Church, and in such a manner that its condemnation would everywhere be published legitimately and authentically.

22. Moreover, we said that if, from the unanimous suffrage of the Doctors, nothing concerning the proposed controversy was defined by force of the Constitution of Innocent, a judgment not dissimilar can be made concerning the Constitution of Benedict XIV. For, as is readily evident, it is not lawful to attribute more authority and weight to the Constitution of Benedict than to that of Innocent; and otherwise nothing is declared concerning the present matter in Benedict's Bull which was not declared, and perhaps more effectively, in Innocent's.

But this very thing can be confirmed by an argument not dissimilar to that which we used in drawing out the sense of the Constitution of Innocent, namely, by the testimonies of those who could more conveniently know the sense of Benedict's Bull and disclose it to us. It may indeed have belonged to Blessed Alphonsus, certainly a most learned man but far distant from Rome, to attribute by reasoning such a sense to the words of Benedict's Bull that he could consider the controversy already settled by Benedict. But certainly not so with those who, dwelling at Rome during the very age of Benedict XIV, could learn something better about this matter in the light of that City, and indeed, because of the offices they held, necessarily ought to have known it, and therefore can be more suitable witnesses concerning the sense of Benedict's Constitution. These men, namely, no less than those who wrote before Benedict XIV, we find either asserting the necessity of expressing incest as merely probable or even probably attacking it.

23. First there occurs to us Daniel Concina, who in the year 1751, namely, the ninth year after the Constitution Pastor bonus was issued, at Rome, in a volume whose title page is adorned with the coat of arms of Benedict XIV, proposed to himself this question (On Matrimony, book 2, dissertation 3, chapter 5, no. 17): When a dispensation is sought between relatives by consanguinity or affinity, must the incestuous intercourse had between them be expressed? He appeals neither to the names nor the Bulls of Innocent or Benedict, but replies thus: Authors dispute on both sides concerning this question. Pontius, Henriquez,... to whom Viva is added,... defend the negative opinion.... On the contrary, Sanchez, Diana,... defend that it must be manifested, and testify that the Congregation of Cardinals declared it so.... Others reply that the Congregation of Cardinals declared that the intercourse must be expressed as something safer and more secure, not as something more probable. But these are mere probabilistic inventions and therefore must be rejected; wherefore the latter opinion is MORE PROBABLE.

Father Philip of Carboneano follows, Professor in the College of the Propagation of the Faith, Consultor of the Sacred Congregation of the Index, and Qualificator of the Supreme and Universal Inquisition. And his testimony appears to be all the more weighty because he dedicated to Benedict XIV himself the work in which he professes his opinion concerning this controversy; and the Pontiff so approved the labors of the Friar Minor that he entrusted to him the task of adding also those things which could be useful to Missionaries. What, then, does Father Philip say concerning our question? Namely (appendix I to the treatise On Matrimony, article 1), he establishes first that intercourse must be set forth if it is notorious.

Then he continues thus: I said that the intercourse must be expressed if it is notorious, because if it remained occult, it cannot be presumed that the pious mother Church intends that this be divulged with enormous defamation of oneself...; and in this sense the arguments just adduced must be understood.... But must recourse then be had to the Penitentiary? Pichler and Reiffenstuel deny it, because, they say, incest does not need its own dispensation; and besides, the Penitentiary neither can nor is accustomed to demand any composition, since whatever it issues it issues gratuitously. Several theologians and canonists teach the same.... But Sanchez judges that in this case recourse must be had to the Penitentiary.... M. Paul Leo teaches the same. I think this opinion, as the safer and at least equally probable with the opposite, must be adhered to, and I have known Bishops who adhered to it. From these things it is evident that this writer also, distinguished at that time by reputation and by the offices which he held, however much he adhered more to the opinion establishing the obligation, nevertheless, no differently from Concina, attributed mere probability to it, and did not in the least suspect that this controversy had been defined by force of Benedict's Constitution.

Let Ubaldus Giraldi be the third witness. He was an Examiner of the Roman clergy and published at Rome, ten years after the death of that Pontiff, his celebrated Exposition of Pontifical Law, notably adorned especially with the doctrines of Benedict XIV. Concerning the present question, he judged it useful to bring forward nothing else (see part II, section 122) than what Rhemigius Maschat had written concerning it, whose Canonical Institutions he himself had enriched with his additions. But from the words of this writer adduced above, it is evident that he stood with those denying the obligation of expressing the intercourse if it had remained occult.

From these things someone will sum up the argument thus. It must appear altogether improbable that this was the mind of Benedict XIV; and again it can scarcely be believed that his Constitution Pastor bonus was understood at Rome in such a way as to define the obligation of expressing incest, and yet the aforesaid writers could, in the City itself, while the same Pontiff looked on, and even in writings published at Rome without objection from the Master of the Sacred Apostolic Palace or any other of the Revisers, indeed dedicated to the same Pontiff, and indeed so praised by him that by his command they were used in the schools, dispute in so uncertain a manner concerning a doctrine notoriously, as is supposed, defined by the Pontiff himself, that they either held and maintained it as merely probable or even adhered to the opposite as more probable; while they utterly disregarded, and judged not even worthy of mention, as if it did not exist, the Pontifical Constitution which by its own authority would have put an end to uncertain disputes concerning it. But, as can be gathered from the testimonies brought forward, the aforesaid Authors discussed the proposed argument altogether in this manner in books published at Rome; and the writings of Philip of Carboneano, dedicated by the Author to the Pontiff himself, were deemed worthy, by the will of the same Pontiff, to be taught in the schools of the College of the Propagation of the Faith, and indeed were adopted by command of the Bishops in several Seminaries of Italy. Therefore.

24. And the things which we read in the Lucan Resolutions of cases also impel us to judge thus concerning this Constitution. For when, in July of the year 1743, a question was proposed concerning Caius and Bertha, blood relatives, who had obtained a dispensation without the intercourse being expressed, the reply was: That dispensation is valid, as indeed is probable; for first, that the intercourse must be expressed is nowhere provided in law. Then, the intercourse is not the final cause of dispensing. Next, when a doubt arises, that interpretation must rather be made which sustains the act than that which destroys it.... Moreover, if anyone wishes to adhere to the contrary opinion, a dispensation must be sought from the Sacred Penitentiary (Solutions of the Lucan Conferences, volume 1, page 183, Lucca, 1762).

But perhaps the resolution (ibid., volume 3, page 366) whose Author was John Dominic Mansi in March of the year 1760 bears more upon our matter. For when the same case was proposed, he indeed set aside the opinion of Vincentius De Iustis and adhered to the opposite, citing Pyrrhus Corradus, M. Paul Leo, and also Instruction 87 of Lambertini, afterward Pope Benedict XIV. Nevertheless, he concludes the matter thus: The things hitherto adduced have no place when the dispensation has obtained its desired effect and the marriage has already been contracted. For this he again cites the aforesaid Instruction of Lambertini. Now it is most manifest that the case in which Mansi exempts one from the obligation of seeking a Dispensation again from the Sacred Penitentiary is precisely that in which, according to St. Alphonsus, the Constitution of Benedict XIV would have defined that recourse must be had to the Sacred Penitentiary for a dispensation. Otherwise, since the distinguished Mansi strives to fortify his whole resolution with the doctrines and authority of Benedict XIV, why, in order to strengthen, and indeed to resolve decisively, the first part of the question, does he not turn to the Constitution Pastor bonus, but appeal to Instruction 87 of Lambertini, which is so far from having the force to settle the question that it presents this doctrine fortified by such an array of arguments, as we saw above, that it appears to betray the cause? Indeed, why is it that in the other part of the resolution he goes over to an opinion which, according to St. Alphonsus, the same Lambertini, now Pontiff, had condemned? It must therefore be concluded that, apart from St. Alphonsus, no one had even the slightest suspicion of this definition of Benedict XIV.

And this may be confirmed by the testimony of another anonymous theologian of the Order of Preachers, who in the year 1797 published at Venice, in the Italian language, a work entitled: Decisions of Cases of Conscience and of Canonical Doctrine Made in the Diocese of Bologna by Order and According to the Mind of His Eminence Cardinal Lambertini, and Afterwards Supreme Pontiff. An Edition Corrected Again and Enlarged through the Work of a Dominican Religious, etc. For under the title Consanguinity, case III, he discusses the present question thus (volume 3, page 144): I said that the incest committed must be expressed in the petition if it is notorious; because if it has remained occult, it cannot and ought not to be presumed that the compassionate mother Church intends that such a shameful sin be divulged with most grave infamy of the persons.... But at least in such a case must recourse be had to the Sacred Penitentiary, and the impediment of consanguinity together with the occult incest be manifested to it under fictitious names, in order to seek from it a dispensation in the forum of conscience? Some theologians reply that it must not, because, they say, incest does not need its own dispensation.... But Sanchez is of the opinion that in this case recourse must be had to that Penitentiary.... M. Paul Leo is of the same opinion.... One ought to yield to a man of such experience in matters of this kind and in practice adhere to this opinion, which is safer and at least of equal probability with the contrary, all the more because the continuator of Tournely also testifies that he knew Bishops who adhered to this opinion. At which words it again occurs to ask: Would this theologian have remained hesitating in some uncertainty, and finally undertaken to resolve the question with the sole support of Sanchez and M. Paul Leo, who opined thus, if at least some report or suspicion had spread through the theological schools that a definition of the controversy had already been issued by the most celebrated Constitution of Benedict XIV?

To these must be added the distinguished theologian from the Order of the Servants of the Blessed Virgin Mary, namely, Marcus M. Struggl, all the more because on the very title page of his book he testifies that he hands down Theology according to the canonical and moral doctrine which shines forth in the excellent Works of Benedict XIV happily reigning; indeed, in the Notice to the Reader he expressly professes that he composed his work in all things according to the universal Constitutions of the Supreme Pontiff Benedict XIV which pertain, even reductively, to Moral Theology. And since elsewhere he cites Constitutions of the same Pontiff which are contained in the first volume of the Bullarium published in the year 1746, he certainly knew the Constitution Pastor bonus very well.

He therefore writes thus (treatise 12, question 4, article 2, no. 22): If the marriage has not yet been contracted and the petitioners are relatives by consanguinity or affinity..., then it must be expressed whether carnal intercourse, which, for example, is alleged in the Penitentiary as a cause of dispensation, did not occur under the hope of obtaining the dispensation more easily. But if, on account of a public impediment of consanguinity or affinity, a dispensation is sought from the Datary for other causes, mention must not be made of the carnal intercourse... unless this also was public; as Reiffenstuel teaches with the more common opinion of others (see his opinion above, no. 19). Struggl, therefore, no differently from Reiffenstuel, judged that the depraved intention in having intercourse must indeed be expressed when the intercourse is alleged as a cause of dispensing, and likewise that it must be expressed if it was public; but in other cases, nowhere. And again (ibid., article 4, no. 57), where he teaches that a dispensation is invalid when the petitioners deceitfully do not express some obstacle to the dispensation, he certainly mentions that the petitioners had intercourse under the hope of a future marriage; but concerning mere intercourse had apart from an intention of this kind, not even a word.

25. And this historical exposition of the sense which both theologians and canonists universally attributed to the Constitutions either of Innocent XII or Benedict XIV, for it makes no difference of which one there is question, can suffice for someone to conclude that it must be greatly doubted whether that new interpretation of them which Blessed Alphonsus introduced against the unanimous opinion of all Catholic schools can be regarded as legitimate. It therefore remains to inquire whether it rests upon some solid foundation.

But this in reality resides wholly in these words of his (book 6, no. 1135): Observe that the Pope, by saying, "may grant a revalidation," does not hold as valid marriages contracted with such concealment. This argument, which had never before been drawn from the words of Innocent, must rest upon this general principle: a superior can never delegate any power unless the cause of necessity is altogether certain, in which subjects seek to be aided through the exercise of such delegated power.

But a principle of this kind will easily appear fallacious, and even daily practice convicts it of falsity. For who does not know that recourse to Superiors lies open and is customarily had both when certain laws impose the necessity of this recourse and when the laws appear so uncertain that they leave that necessity also less certain? And since one delegated by a Superior for providing for the necessities of subjects ought to possess power in each hypothesis, what wonder is it if the Superior delegates to him faculties of absolving, dispensing, convalidating, condoning, remitting, relaxing, composing, derogating, revalidating, etc., even when the laws are not so certain as to render altogether necessary the absolution, dispensation, convalidation, condonation, remission, relaxation, composition, derogation, revalidation, etc., which the subjects nevertheless seek?

And to illustrate the matter by some example: some Doctors contend that, on account of incest, excommunication latae sententiae is incurred; others, only excommunication ferendae sententiae; and others that not even excommunication ferendae sententiae is established for this crime. Nevertheless, in the formula of absolution from incest with a dispensation (in M. Paul Leo, Practice of the Office of the Sacred Penitentiary, part 2, page 329), a faculty is given of absolving from censures on account of incest. Shall we therefore conclude that the Pontiff from whom this faculty of absolving comes has already declared or defined that censures are incurred on account of incest?

There are those who judge it probable or even most probable (see above, note to no. 65, question 5) that the Matins of the following day can licitly be recited at the second hour after noon and that the precept is thereby satisfied; others deny this. Suppose now that someone sought and obtained the faculty of reciting Matins at the second hour, which certainly is granted by an inferior only by force of a faculty delegated by the Pontiff. Will you therefore conclude that the Pontiff thereby defined or declared that Matins is recited invalidly if this faculty is absent? But elsewhere (above, page 47, in the note) we reported these words of Suarez: This argument is weak, because many things are granted in privileges, not because they are necessary, but because they are sought either because of fear or scruple, or in order to remove a doubt arising from various opinions. We also transcribed these words from Diana (ibid.): You will say: The Pontiffs grant privileges so that Matins can be recited two hours after noon. Therefore. I reply: those who seek this privilege are a sign that they hold the contrary opinion; and many things are sought from the Pontiff for greater caution and because of scruple; but from these things it does not follow that the cited opinion of the Doctors is not probable, nor that it cannot be followed.

26. Indeed, in this very matter of which there is question, and in the very Constitutions both of Innocent XII (Constitution Romanus Pontifex) and of Benedict XIV (Constitution Pastor bonus), a most luminous example concerning our matter presents itself to us.

And indeed, in the Constitution of Innocent (section 32) these words are contained: In marriages to be contracted, the same Major Penitentiary may, in the forum of conscience only, dispense, or command a dispensation to be granted, FROM OCCULT IMPEDIMENTS which do not render marriage null.

Likewise, in the Constitution Pastor bonus of Benedict XIV (section 39), it is read thus: In marriages to be contracted, the same Major Penitentiary may, in the forum of conscience only, dispense, or command a dispensation to be granted, FROM OCCULT IMPEDIMENTS which do not render marriage null; and likewise from the omission of proclamations, even for the purpose of contracting secretly, etc.

But what, finally, are these occult impediments of marriage, yet not diriment, for relaxing which the faculty is here granted to the Major Penitentiary? St. Alphonsus, who (book 6, no. 1144) in the foregoing section 39 incorrectly read concerning OCCURRING impediments, added: But merely prohibitory impediments of this kind today, as we said above, are reduced to three, namely, a vow, betrothals, and the prohibition of the Church. But that reading is manifestly erroneous, and it must be read, Concerning occult impediments. What, therefore, are these occult, non-diriment impediments? Certainly not a vow, for each Constitution treats below of dispensation from a vow. Not betrothals, because the Apostolic See does not dispense to the prejudice of a third party. Not time, because nuptials are prohibited at no time, but only the solemnities of nuptials are forbidden at certain times; moreover, this is not an occult impediment, just as neither the Catechism nor the prohibition of the Church are occult impediments, of which exclusively there is discussion in the cited texts of the Pontifical Constitutions. It remains, therefore, that in the cited texts the Major Penitentiary is given the faculty of dispensing from those merely prohibitory impediments which elsewhere we said (above, note to no. 776) were comprehended under the name Crime, and the first of which is incest, which Paul Marcus Leo in his Practice of the Sacred Penitentiary (part 2, page 205) designates with these most noteworthy words: Incest with a male or female blood relative of one's spouse or betrothed, from canon 1 and canon Transmissae 4, On Him Who Has Known a Blood Relative of His Wife.

And in fact the same Paul Marcus Leo (loc. cit., page 329) reports the formula of a dispensation from this impediment thus: Title: Absolution from incest with a dispensation for one who has known a mother and daughter and intends to contract marriage WITH AN UNRELATED WOMAN OTHERWISE PROHIBITED TO HIM BY NO LAW; the letters of absolution and dispensation are made as below. Friar Antonius Barberinus, etc. Insofar as it is so, after first hearing his sacramental Confession, absolve the said bearer on this occasion from whatever sentences, censures, and ecclesiastical penalties he has in any manner incurred on account of the foregoing matters, and from incest and excesses of this kind, etc., a salutary penance according to the measure of the fault, and other things, etc., to be imposed upon him on that account, etc.; and with the same bearer, so that, notwithstanding the said incest, he may, with SOME OTHER WOMAN OTHERWISE PROHIBITED TO HIM BY NO LAW, contract marriage in the forum of conscience, with the form of the Tridentine Council observed, mercifully dispense, etc. Leo himself then adds in a Note the reason why a dispensation of this kind is necessary: An incestuous person is prevented from contracting marriage with any person..., and therefore needs a dispensation.

With these things premised, let it now be asked: From the fact that, besides Innocent XII, Benedict XIV also in the Constitution Pastor bonus grants to the Major Penitentiary the faculty of dispensing concerning the aforesaid occult impediment of Incest, does an effective argument arise by which it may indubitably be concluded that an incestuous person is so prohibited from contracting marriage with any other person otherwise prohibited to him by no law that for this purpose a dispensation from an impediment of this kind by the Apostolic See is necessary for him? But was it not shown elsewhere (above, note to no. 776), according to the most common opinion of the Doctors, that the non-diriment impediments both of incest and of the other crimes were removed and became obsolete through desuetude? Did not St. Alphonsus himself, already from his own time (above, no. 4), proclaim: The impediments of incest, etc., TODAY ARE NOT IN FORCE, NOR DO THEY NEED A DISPENSATION? And if these impediments do not need a dispensation, to what purpose is the Major Penitentiary given the faculty of dispensing in the Constitution of Benedict XIV, as though this dispensation were necessary? And if a faculty of dispensing from these impediments is granted by the Pontiff, why do we not conclude by the same argument as St. Alphonsus that those impediments need a dispensation? How, I ask, does this reasoning differ from the foregoing reasoning of St. Alphonsus?

It must therefore be concluded that the principle upon which St. Alphonsus's argument rests is altogether fallacious: that no power is ever delegated by a Superior unless the cause of necessity is certain, in which subjects seek to be aided through the exercise of such power.

27. But the fallacy of this principle and argument can be known nowhere better than from those things which Benedict XIV himself discusses in the one hundred eighty-third of his Canonical Questions.

These matters are most opportune, not only because for knowing the force and sense of the Constitutions both of Innocent XII and of Benedict XIV himself we are permitted in a certain manner to employ him as interpreter, but also because, on account of the similarity of the cause and the arguments, they pertain especially to our matter.

There was question, namely, of those who, joined in the mixed third and fourth degree of consanguinity, had afterward obtained a dispensation upon the fourth, with the third concealed. But after a marriage had thus been contracted and consummated, dissensions arose between the spouses; the invalidity of the dispensation, and therefore the nullity of the marriage, began to be treated, as indeed grave Doctors held, and the controversy was brought before the Sacred Congregation of the Council. But what especially pertains to the present matter must be examined attentively: how and by what arguments the Officials of the Sacred Datary undertook to defend the nullity of the marriage. The distinguished Officials of the Datary (as it is said in the exposition of the Question), having read through the Registers from the time of St. Pius V to the present, drew up a discourse together with a justificatory Summary, and tried once and for all to prove that marriages, etc., had always been held null and invalid.

Of their arguments Benedict XIV, then Secretary of the Sacred Congregation of the Council, reports the last thus in the discourse which he appends (no. 8): The final argument is that whatever the Apostolic Datary does is said to be performed by the Pope himself. And since in the printed Discourse twenty-four examples are adduced by the distinguished Officials of the Datary, from which the nullity of a marriage is shown... when the nearer degree was concealed..., it appears that nothing clearer can be adduced concerning the matter at issue. For how could St. Pius V have granted in letters a declaration of equal validity in the terms of marriage..., how could other Pontiffs have commanded that Ordinaries publicly declare the nullity of the prior marriage and that the spouses contract anew, if the preceding marriage had been held valid? And again, how could the same Roman Pontiffs in other letters have declared equal validity in the terms of a marriage contracted and consummated..., that, with the form of the Council observed, the marriage be contracted anew; that the contracting parties be absolved from incest and from the excommunication imposed in the single Clementine decree On Consanguinity; that the offspring be declared illegitimate; and that, on account of the incest committed, the surviving spouse remain perpetually without hope of marriage, if the marriage contracted had been valid by law?

Who, moreover, does not see that arguments of this kind, which we see the Officials of the Sacred Datary using in this cause, are altogether similar to that argument by which St. Alphonsus afterward deduced the nullity of marriages from the faculty given to the Penitentiary to revalidate them? For it was certainly necessary that a faculty for this be granted to the Officials of the Sacred Datary by the Pontiff so that they could HEAL AND REVALIDATE marriages which in the case were considered void or at least doubtful, and in addition impose a repeated celebration of the marriage and the other things to be imposed according to the style of the Curia; no differently than in our case the Major Penitentiary is given the faculty of revalidating the marriages of which there is question.

28. What, then, did Benedict XIV say to these things? He roundly denied that an argument for the nullity of the marriage could be drawn from them. For (loc. cit., no. 21), after a preliminary protestation of the obedience owed to the style of the Datary, Benedict replies thus to the foregoing argument (no. 26): Finally, it is most clearly recognized that nothing is adduced which directly strikes the controversy now at issue. For in all the examples in which the Supreme Pontiffs

ABSOLVED FROM THE PENALTIES OF INCEST, DECLARED THE OFFSPRING LEGITIMATE, AND PRESCRIBED THE RENEWAL OF CONSENT with the form of the Council observed, the petitioners were supplicating for a dispensation and thus showed themselves ready to remain in the marriage, so that it is not surprising if the Supreme Pontiffs, GRANTING THE REQUESTS IN ABUNDANCE to the same persons supplicating for absolution from censures and for the legitimization of the offspring, both absolved them from censures, declared the offspring legitimate, AND PRESCRIBED THE RENEWAL OF CONSENT.

Benedict XIV therefore concedes that the Curia of the Datary conducted itself in all those things as though the marriages had been void. But he plainly denies the consequence; namely, against the Officials of the Datary, he denies that it follows from those Acts that the marriage was void. But from these things (he says) an argument cannot be drawn toward a declaration of the nullity of the marriage. Why? Because, namely, as he had premised, the Supreme Pontiffs, and therefore the Officials both of the Sacred Datary and of the Sacred Penitentiary, in accordance with the faculties granted to them, both dispense from incest and absolve from penalties and censures, and, with the tax imposed, prescribe the renewal of consent as though the marriage were void. But all these things have place also hypothetically when the petitioners supplicate for obtaining them; and, GRANTING THE REQUESTS IN ABUNDANCE, as Benedict XIV says, they are furnished to those asking, since all these things leave untouched the theoretical question whether they are altogether necessary.

29. Benedict XIV also confirms his intent, which likewise pertains to our matter, by other examples (ibid., no. 27): There can be an example in dispensations which are granted to petitioners as a precaution, or concerning irregularities, or concerning censures. For just as from these dispensations an argument is not valid for the incurrence of an irregularity or censure even in a similar case fortified by all the circumstances which were present in the cases in which the said dispensations were granted, when there is a formal dispute whether the irregularity or censure was incurred; so FROM WORDS OF THE SUPREME PONTIFFS SUPPOSING THE NULLITY OF THE MARRIAGE IN THE HYPOTHESIS in which the petitioners supplicate and are ready to remain in the marriage, AN INFERENCE TO THE POSITIVE NULLITY OF THE MARRIAGE IS NOT VALID.

Thus far Benedict XIV. His reply, as is evident, destroys all force of the argument by which St. Alphonsus wished, from the same premises proposed even in the Constitution of the same Benedict XIV, to infer against him the nullity of marriages. Nor is there perhaps any place here for objecting that Benedict XIV wrote these things before he was elevated to the summit of the Pontificate. For the authority of the writer is not to be weighed here, although, even if it were weighed, indeed it would have its own weight, and no slight one, and ought especially to have it with those who in the present controversy object to us Instruction 87 of the same Benedict XIV; rather, the outcome of the case which the Sacred Congregation decided must be examined. For to the Question: Whether the nullity of the marriage is established, the Sacred Congregation replied: Negatively. Therefore, since the Sacred Congregation finally rendered a judgment for the validity of the marriage, by that very fact it showed by its authority that the reply of Benedict XIV was of invincible force, and, on the contrary, that the argument adduced above, to which the one produced by St. Alphonsus is similar, was of no force, by which the Officials of the Sacred Datary, arguing from the style of the Curia, contended that those marriages must be held invalid.

30. And this Reply of Benedict XIV, plainly invincible from the suffrage of the Sacred Congregation, not only breaks all the force of that argument which St. Alphonsus used, but in the same manner also removes all force from the reason by which the same Benedict XIV in his Instruction 87 wished to prove as we saw above that a dispensation from the impediment of consanguinity is invalid if the preceding incest was concealed in the petition. For he himself sought the argument (above, no. 2) from Apostolic Letters of Dispensation. But can we imagine in these Apostolic Letters anything suited to expressing the invalidity either of the dispensation or of the marriage contracted which does not appear in the arguments alleged above (no. 27) for the same end by the Officials of the Sacred Datary? But Benedict XIV himself, as we have just seen with our own eyes, judged and proclaimed all those arguments altogether ineffective for inferring the nullity of the dispensation or marriage; and the Sacred Congregation plainly ratified his judgment. Therefore, from that Instruction 87 of Benedict no valid support for the conclusion of St. Alphonsus can be drawn, Benedict XIV himself and the Sacred Congregation being judges.

31. It will be useful, however, to append here also the reply which in the same Canonical Question 183 Benedict XIV made to those objecting to the style of the Curia. The other things (he says at no. 20) which were weighed to the contrary regard the style of the Datary; and by the said style some of the aforesaid Authors were induced to maintain the nullity of the marriage.... But speaking of this style, it is marvelous what and what kind of things have been said by other Authors who hold for the validity of the marriage.... Father Sisius, Apostolic Penitentiary in the Sacred Lateran Basilica, says in his manuscript Annotations on the Constitution of Innocent XII concerning the faculties of the Major Penitentiary: To the style of the Curia, however, it is replied that it indeed makes law, but not when it is contrary to the law itself. But the style in the subject matter, that the marriage is null unless the nearer degree is expressed in the dispensation, which style we saw observed in the Datary, does not make law and cannot be observed, because it would be opposed to the same Motu proprio of St. Pius V. Thus Father Sisius. Yet Benedict XIV prefers to his reply this other one (no. 21), namely, that nothing is adduced to the contrary which directly strikes the controversy, which we have already reported above from no. 28, and in reality comes to the same thing, since he denies that the style of the Curia rests upon law.

Nevertheless, could not the reported reply of Father Sisius also be given to those who, after Sanchez, especially urged the style of the Curia to defend the necessity of expressing incestuous intercourse, namely, of holding a dispensation as subreptitious if the preceding incest was concealed? Why could it not also be replied to these Authors that the style of the Curia indeed makes law, but not when it is contrary to the law itself? But if you ask what that law is, the answer is indeed easy. Let that new little reason which Sanchez contrived for proving the necessity of expressing incest, as we saw (no. 6), be banished, plainly as it deserves; and let the most true reason for this practice be recalled, the genuine and certain character of which is presented to us both by the testimony of the Doctors (note to no. 776), by the Declaration of the Sacred Congregation of the Council (ibid.), and by the very style of the Sacred Penitentiary, which appears most clearly in the formulas of Dispensations adduced above (nos. 5 and 26). From these it will manifestly appear that the necessity of expressing incest arose from and was founded upon the fact that incest by the old law presented a non-diriment impediment of marriage, on account of which an incestuous person was prohibited from contracting marriage with any woman otherwise prohibited to him by no law. From this, however, a dispensation was held subreptitious if an incestuous person sought a dispensation from another impediment and kept silent about the incest, because according to the style of the Curia there is the defect of subreption whenever one laboring under a twofold impediment sets forth only one while concealing the other. These things are altogether certain.

Moreover, the matter is confirmed by the unanimous testimony of the Doctors: through contrary custom the non-diriment impediments of crime, and therefore also the impediment of incest, were removed; and this, as we have seen, the Holy Doctor Alphonsus also affirms repeatedly. And if, in order to admit the existence of a custom as true, according to the judgment of St. Alphonsus (book 3, no. 1025), it suffices that some fewer recent Authors testify concerning it, since they can more suitably than the ancients testify concerning a matter which consists in some fact, then a fortiori it must be admitted when the Doctors agree unanimously in testifying to that very thing. But that the Doctors agree unanimously in this was clearly shown in the note to no. 776. Who, moreover, does not know that, according to the opinion of all theologians and canonists, a custom which has flourished through a long series of years and indeed centuries prescribes even against ecclesiastical laws? And if there is prescription by a custom of this kind, does not the custom itself now make law? It is therefore no wonder that St. Alphonsus expressly affirmed that both incest and the remaining non-diriment impediments of crime are no longer in force in such a manner that they do not need a dispensation. Behold, therefore, a sufficiently obvious reason why the reply of Father Sisius adduced by Benedict XIV for his own matter can also pertain to the present matter, and indeed a fortiori. For, as is evident from the exposition of the cause concerning which Benedict XIV treats in Canonical Question 183, there were some Doctors and there were also reasons upon which the style of the Datary rested, which held marriages invalid if, in seeking a dispensation concerning a mixed degree, the nearer degree had been concealed; but no one can now be cited who defends that incest has the character of an impediment to contracting marriage, so settled is the matter, as St. Alphonsus also testifies.

32. Concerning this conclusion, perhaps this one thing could move someone: how does it happen that the Apostolic See granted to the Major Penitentiary a certain special faculty of dispensing and even revalidating marriages where there is an uncertain and perhaps no necessity for a dispensation or revalidation?

To this difficulty it must first be replied that neither this nor any other difficulties can cause facts to be denied when the facts are certainly established. Moreover, did we not see above (nos. 26-27) that in the Constitution Pastor bonus the Major Penitentiary was also granted the faculty both of absolving from censures plainly obsolete and of dispensing from impediments which, even according to the Holy Doctor Alphonsus, do not need a dispensation? But otherwise there is a reason of its own, and a most grave one, why the Apostolic See wills the Office of the Sacred Penitentiary to be fortified with faculties of this kind also. For besides the general reason which can be seen indicated above (no. 26), namely, the necessity of providing for the tranquility of consciences in perhaps doubtful causes, there is another and twofold reason which required this faculty in the Major Penitentiary concerning the present matter.

33. The first is the extreme gravity of the anxiety by which the minds not only of the faithful but also of Confessors are tormented in doubts concerning the validity of marriages. For there is not question of the mere honesty of an act, when tranquility can easily be restored to consciences from that principle that an act must be considered honest whenever no certain law stands against it; but there is question of the validity of an act, namely, a matrimonial contract, which in no manner depends upon the dictate of conscience. But although, even when there is question of the validity of a marriage, if the cause of the doubts concerns impediments of merely ecclesiastical law, anxieties can be met through a doctrine sufficiently received in the schools (see above, no. 789), which exempts one from seeking a dispensation if that which appears to stand in the way of the validity of the marriage is something doubtful or merely probable. Yet no one is ignorant that there are those whose minds can scarcely enjoy any peace unless by means of a dispensation they cast aside every scruple. To this pertain those words of Cardinal Petra (Commentary on Constitution 8 of Gregory XI, no. 13): Setting aside the opinions of the Moral Doctors..., with our Canonists it must more safely be said that one wavering in a doubt of this kind is bound to inform himself and his conscience according to the disposition of the law before he attempts the prohibited act; then either to put aside the scruple altogether according to the judgment of a prudent man, or, if he cannot quiet his wounded conscience, to have recourse to the Holy Apostolic See for a dispensation at least as a precaution, which he will easily obtain, as Fagnanus advises.

34. The second reason resides in the singular condition of this cause or question. Namely, as we pursued at length above (see also the note to no. 776), the genuine origin and legitimate reason which introduced the necessity of expressing incest if one guilty of this crime wished to contract nuptials arose from this: incest, no differently from certain other grave crimes, was punished by the sacred canons with this penalty, that the guilty person was perpetually barred from any nuptials with any person unless he obtained the benefit of a dispensation from the Apostolic See or from the Bishop.

And let it now pass how it happened that, while all the graver theologians and interpreters of the Sacred Canons, as we also indicated elsewhere in the note just cited, clearly show that this penalty was inflicted by the Pontifical Constitutions only upon incest committed with a relative by affinity in the first or second degree, or indeed committed with a blood relative but only when the incestuous persons obstinately and with contempt for ecclesiastical authority persevered in that crime under the appearance of marriage or without such appearance, some persons nevertheless, contrary to the best-known principles of law which command that odious things be restricted and that penalties not be extended beyond the cases clearly expressed in the law, transferred it not only to every properly so-called incest, that is, with a relative by affinity or consanguinity, and even in the fourth degree, but further to less properly so-called incest, namely, with persons joined only by spiritual or legal relationship.

Whatever may be the case concerning this, the aforesaid laws prohibiting nuptials to incestuous persons caused them to need a dispensation for contracting with any person, but to need a twofold dispensation if they wished to contract with a blood relative or a relative by affinity. And from this, as we saw elsewhere in the cited note, arose the most true reason why a dispensation was held subreptitious when the incest was kept silent, namely, because, with two impediments concurring, one was concealed in the petition.

But when contrary custom gradually destroyed the force of the impediment by which an incestuous person was bound through those laws, behold the Doctors already disagreeing about the necessity of expressing incest, and at the same time behold this controversy covered with other darkness by those who inopportunely and unskillfully mixed elements altogether foreign with its foundations set forth above.

Meanwhile, however, what was the Apostolic See to do in a matter which enters daily practice, amid so great a disagreement of the Doctors and especially amid so great a confusion added to the dispute after Sanchez?

35. I said, after Sanchez, because in reality it is owing to Sanchez that this controversy was altogether disturbed and removed from its native condition and its own foundations. For he himself rightly and clearly set forth the genuine state of the controversy when (book 8, disputation 25, nos. 6-7) he reported two opinions, of which one denied and the other affirmed the necessity of expressing incest, but in such a way that the resolution of the controversy depended upon one and the same prior question, namely, whether that law and impediment by which an incestuous person was barred from nuptials without a dispensation was still in force.

But behold, afterward Sanchez, thoroughly disturbing the state of the question, most inopportunely undertook to bring forward a third opinion, which he called more probable (ibid., no. 8). And indeed, while he expressly admits that the aforesaid impediment of incest is no longer in force, you would now conclude that he adjudicates the cause to the authors of the first opinion, which for this reason denies the necessity of expressing that circumstance. Nevertheless, behold, he attributes the stronger position, at least as more probable, to the defenders of the second opinion, and for the reason which they sought from the aforesaid penalties imposed upon an incestuous person by the old law he substitutes the empty little reason above (no. 6), adding the style of the Curia, as though this style of the Curia did not rest upon that old law which he himself proclaims already obsolete by force of custom. And indeed from this we see an opportunity afterward given to writers to hunt out other empty little reasons (see note to no. 776), by which they might provide some foundation for the aforesaid style. Meanwhile, however, as we have already said, what policy did the Apostolic See observe in this confusion of affairs?

36. For even if only the true hinge of the controversy and its true and whole foundation is kept before the eyes - whether the impediment of incest, from which alone comes the true reason for expressing this crime in the petition, is in force, and universally whether those prohibitory impediments imposed upon certain crimes are still in force - Pichler (book 4, title 1, no. 92) will certainly reply that the Doctors commonly contend that all impediments of crime, or those arising from an offense, were removed by universal custom; Reiffenstuel (Moral Theology, treatise 14, distinction 14, question 2, no. 11), that they appear removed by contrary and long-standing custom and are no longer in use; Pirhing (book 4, title 16, no. 12), that today they are altogether removed by long-standing custom; John Dominic Mansi (Moral Theology, book 5, treatise 10, part 4, chapter 15), that the Doctors testify that these impediments of crimes were altogether removed by long-standing custom; Babenstuber (treatise 8, part 7, disputation 3, article 1, no. 5), that all these impediments of crime were abrogated through non-use, as the Authors most commonly teach and the practice of the Churches proves; Cardinal Gotti (On Matrimony, question 8, doubt 2, section 2, no. 11), that several of the aforesaid impediments are no longer in force but were abrogated by contrary custom; and, lest we add others fruitlessly, St. Alphonsus himself (book 6, no. 985) calls this opinion absolutely common. Nevertheless, Fortunatus Veneri in the last century (On Matrimony, question 7, article 1) discusses these impediments as though they were then in force at least in some manner. But Clericatus (On Matrimony, decision 38, no. 35) reports three opinions: the first holds that they are no longer in their force and therefore, as abrogated by use and custom with the Prelates of the Churches knowing and consenting, no longer impede; the second holds that they are even now in their force; but the third, which was Mastrius's, reconciles the two in such a way that the first is true when the impediments are occult, but the latter if they are brought into the contentious forum. The praised Peter Giovine also mentions these opinions (op. cit., section 376, no. 2), adding that the second pleased Cardinal Ursinus, Archbishop of Benevento, afterward Benedict XIII, while the third pleased Lambertini, afterward Benedict XIV.

Likewise, then, if, setting aside this hinge and foundation of the controversy, we seek the opinions of the Doctors concerning the controversy itself, not only, as we have already seen, do some affirm and others deny that this circumstance of incest must be expressed, but in addition it is found that, according to the diversity of opinions, a diverse practice also prevailed. Thus already from his own age Peter Ledesma (On Matrimony, question 56, article 4, conclusion 3) distinguishes where there is or is not a custom of seeking a dispensation even from incest.

John Praepositus (On Matrimony, question 7, doubt 24, no. 227) mentions the custom that this dispensation is not necessary. - And Pirhing (loc. cit.): Those thus impeded commonly enter marriage, without any dispensation sought, with the prelates knowing and seeing. And Giribaldi (On Matrimony, chapter 18, doubt 9, no. 59): It is not always expressed on the advice of learned men, although sometimes it is expressed on the advice of others. And, omitting others, Vincentius De Iustis (loc. cit., no. 343): For this intercourse, as Diana and Trullench weigh, is not always expressed on the advice of learned men, although sometimes it is expressed on the advice of others adhering to the contrary opinion.

37. It will be useful, however, to ask again here: What indeed was the Apostolic See to do amid so great an uncertainty and variety not only of opinions but also of practice? For the Curia, which, as Maschat says (Treatise on Dispensations, section 3, no. 34), does not so easily depart from its ancient formulas, preserves its style, as though, namely, the impediment and penalty of incest were in force, although, as Giraldi observes concerning this (section 714), the impediment appears removed by desuetude, unless in some place such a penalty has been received by use, as he adds with Thesaurus. But the Apostolic See, since it had not yet judged that it should be declared that those impediments had ceased through non-use and by force of contrary custom, nevertheless ought and wished to provide for those who, either on account of a custom perhaps still in force somewhere, or on account of persuasion introduced into them by those who held thus, sought from it a remedy for their conscience. Therefore, most wisely both Innocent XII and Benedict XIV, while defining nothing about this controversy either as to theory or as to practice, nevertheless grant the Major Penitentiary the faculty that, if some think they need a dispensation either for contracting marriage or for convalidating one contracted, he can grant what is sought. And it appears for this reason to have been done that, just as in the Constitution of Benedict XIV, section 43, it is said, if they have recourse to it, because recourse to the Datary also lay open, so in section 41 it is said, if they seek; because it certainly both could and can happen that others, following another opinion, abstain from seeking in the same circumstances.

38. Finally, this does not appear to be passed over concerning practice, namely, that the doctrine commonly handed down concerning impediments which appear to have the character of a penalty can be recalled here also. And if according to that doctrine (see above, note to no. 788, question 2) it can be considered probable that an impediment of crime, even a diriment one, is not incurred by those ignorant of it, then certainly with stronger reason this can be held concerning a merely prohibitory impediment of crime. And since this impediment consists in the penalty inflicted upon the crime of incest, namely, that without a dispensation one must be perpetually deprived of the hope of any marriage; but this penalty, also on account of the confusions introduced into this question, remains almost unknown through desuetude even to most students of Theology; a fortiori it must be considered unknown to the people of the faithful. Therefore, even if this impediment had to be said to be in force, which hypothesis otherwise has no place from the foregoing, scarcely any person could now be found who, on account of ignorance of this impediment, could not and therefore ought not to be held probably excused from it; and who, for this reason, since he would need no dispensation for contracting marriage because of this cause, would validly be dispensed perhaps from another impediment, even if in seeking the dispensation he made no mention of the incest.

39. And concerning these things let what has hitherto been said suffice to this extent, so that no one may be unaware of what the opinions of the Doctors, set forth and weighed in a most simple and historical manner, can contribute toward the resolution of the question proposed. For finally we wish to subject all things to the judgment of those to whom it belongs to pronounce a legitimate and definitive sentence both concerning all other things and concerning this controversy also, which can rightly appear merely disciplinary. And for the same reason we say that it must further be added that account must be taken in this matter also of the Responses of the Sacred Penitentiary, which at one time, as it was given to me to learn from the custodian of the Registry or secret Archive of the Sacred Penitentiary, replied to a certain Bishop who asked that expressing the disputed circumstance in petitions for dispensations was merely safer; but at another time it inclined to the opinion of St. Alphonsus. For whatever it finally judged, we all certainly know that, although even its private Responses to private persons do not have, as is admitted among all theologians and canonists, the force of a definitive sentence, nevertheless, from the consent of all the Doctors, they are, as St. Alphonsus says (book 1, no. 106), of great weight and rightly worthy of obedience. See the Response in appendix IV at the end of this volume.

There is no need to reply to anything in the ten columns which the VV. wrote (pages 817-822) concerning this Note, since they had nothing by which they might in any manner weaken the reasons adduced in the Note. It is permissible to ask this one thing of them: that before they clamor that an end has already been imposed upon this theoretical controversy, they not neglect to weigh attentively the things which the Holy Doctor Alphonsus has (book 6, no. 556), and which we reported above (note to no. 588, page 542).

868. • QUESTION 3. What must be done in a doubt whether a cause falsely alleged was final or impulsive, or whether it was true or false?

Reply. In all these and similar doubts, the dispensation must be regarded as valid. The reason is that in a doubt one must stand for the validity of the act. - St. Ligorius, no. 1133.

QUESTION 4. When the cause of a dispensation ceases, does the dispensation cease, for example, if the offspring to be legitimated by the marriage has died, etc.?

Reply 1. Affirmatively, if the cause ceases before the dispensation is issued or granted by the Bishop or by another to whom it was committed by the Pontiff. - St. Ligorius, no. 1132.

Reply 2. Negatively, if the cause ceases when the dispensation has already been issued and communicated to the petitioners by the delegate, even if it ceases before the celebration of the marriage. The reason is that through the dispensation the impediment has already been removed. - St. Ligorius, ibid. - See volume 1, note to no. 120.

869. • QUESTION 5. What must specifically be set forth when there is question of a marriage to be contracted for the first time?

Reply 1. The impediment for which a dispensation is sought must be expressed in its own proper species, not one for another, not even a greater one for a lesser; for example, consanguinity for affinity. The reason is that in dispensations an argument from the greater to the lesser is not valid, nor does the Superior will to dispense in that of which he is ignorant.

Reply 2. If a dispensation from an impediment arising from illicit intercourse is sought, it must be set forth whether that intercourse was had by one or both under the hope of obtaining the dispensation more easily.

870. • QUESTION 6. What generally must be expressed in a petition for a dispensation concerning a marriage invalidly contracted? Reply. It must be set forth: 1. whether both parties, or only one or the other, entered the marriage in good or bad faith, namely, with knowledge of the impediment; 2. whether under the hope of obtaining the dispensation more easily; 3. whether they consummated the marriage; 4. whether they contracted clandestinely or in the face of the Church, whether after the proclamation of the banns or with these omitted. For a dispensation is customarily obtained more or less easily according to these various circumstances.

Hence, if some persons contracted before a civil magistrate so that a dispensation might thereby be granted to them more easily, this must be expressed, since bad faith was present, which renders a dispensation more difficult to obtain. If they contracted civilly with the intention of not contracting before the Church, this also must be expressed, because they attempted a clandestine marriage. But if they contracted in good faith and with the intention of seeking a dispensation from the Church, this circumstance does not appear absolutely required to be expressed, although it is better not to omit it. - Bouvier.

871. • QUESTION 7. If one who has obtained a dispensation from the impediment of AFFINITY arising from illicit intercourse, for example, with a blood relative of his betrothed, again sins with the same woman before marriage, does he need a new dispensation?

Reply 1. No, if the dispensation has not yet been put into execution by the delegate; because such dispensations take effect not from the day of issue but from the time of execution. - Thus all.

Reply 2. Indeed, no, even if the dispensation has been put into execution. The reason is that the impediment of affinity has already been removed by the dispensation as regards the effect of contracting marriage. - Thus commonly against some.

But if, after the marriage has been contracted, he sins again with the same blood relative of his wife, he is deprived of the right of seeking the debt, because the dispensation according to the style of the Curia was granted for the purpose of contracting marriage, not for sinning more freely.

But he would need a new dispensation if, before the marriage, he sinned with another blood relative of his betrothed, even after the dispensation had been issued, because a new affinity would be contracted.

872. • QUESTION 8. Is a new dispensation required if, after a dispensation has been obtained from the impediment of CONSANGUINITY, incestuous intercourse occurs between the betrothed?

Reply 1. Affirmatively, if the intercourse was had before the execution of the dispensation. Thus from the common interpretation ⁴ and from the style of the Roman Curia requiring a declaration of incest of this kind; for when this is manifested, the Pontiff imposes a greater penance upon the petitioner. It is also confirmed from a Declaration of the Sacred Congregation in the month of May 1634. - St. Ligorius, no. 1141. ⁵

⁴ Concerning these things compare what was said in the preceding Note; from them you will also conclude that this is wrongly attributed to the common interpretation, as the Author says. For besides St. Alphonsus, and anyone else who copied these things from him, where are all those Authors, so that their interpretation can be called common?

But concerning what is said of the style of the Curia, besides those things which you already have noted in the preceding Note and at no. 776, observe what Vincentius De Iustis (On Matrimonial Dispensations, chapter 4, no. 344) skillfully warns with several others: the existence of this style, which requires the expression of incest, still must be proved; and otherwise this style would not induce necessity upon others unless it is written, proved, and confirmed by a special Decision and Declaration of the Pontiff, as the canonists cited by the same De Iustis teach (ibid., no. 345).

⁵ Concerning these Declarations, Vincentius De Iustis writes thus after others (On Matrimonial Dispensations, chapter 4, no. 355): I say first that the asserted Declarations do not prove anything, nor must they be regarded, since they are not authentically established. And it is certainly worthwhile to add those things which he himself subjoins (ibid., no. 362), since he also touches upon that Garcia whom the Author cites a little later: From what has been said, it is inferred that, concerning Declarations of this kind, faith neither can nor ought to be given to Doctors who cite them in their treatises, as Garcia, Friar Leo, Bellarmine, Barbosa, Possevinus, and others commonly do; because unless they are presented authentically, they do not prove and are not to be regarded, especially since the same

Sacred Congregation, through its particular Decrees, by the express mandate and command both of Gregory XV on June 6, 1621, and of Urban VIII on August 2, 1633, so disposes. At that time, when many Declarations were being circulated through the tribunals and were asserted to have been made by the Sacred Congregation, many of which were erroneous, mutilated, and altered, the Sacred Congregation, by the express order of the said Most Holy Lord Urban, commanded and expressly prescribed that no faith in judgment or outside it was to be given by anyone to Declarations of this kind, printed, to be printed, or manuscript. Vincentius De Iustis reports this command of the Sacred Congregation issued by order of Urban VIII (ibid., no. 363).

Jerome Nicolius had previously written thus concerning the same matter (Theory and Practice of Both Laws, etc., part 2, book 5, title 39, page 319): On April 27, 1721, the Most Illustrious Fathers of the Sacred Congregation of the Council decreed that all and every collection of declarations, decisions, or interpretations of the same Congregation of the Council of Trent, whether printed or to be printed, must be added to the Index of prohibited books; both because they are for the most part false, and because they are diverse and very much beneath the gravity of the style of the same Sacred Congregation, and therefore not worthy of this Sacred Tribunal. Gregory XV of holy memory approved this.

Nor let anyone ask us here why, then, in the note to no. 776, we also did not hesitate to employ one of these Declarations for our matter. We shall reply that it was not unknown to us that it also was taken from the catalogue of Declarations which Rebellus, in a most unfortunate work worthy of no price and no trust, collected up to no. 166 at the end of book IV, part II. But it could readily be admitted for a twofold reason. First, because at least in some part it presented the doctrine then unanimously received in the schools and founded upon certain laws. Then, because, since it was also adduced by Pyrrhus Corradus, it was most suited to removing those things which he had attempted altogether ineptly and most wretchedly concerning this question.

But the Declaration which the Author borrowed from St. Alphonsus was taken from Pittonius, namely, an Author who stands out singularly among writers who heap together and patch together Declarations of this kind with no selection and judgment, and whose collections therefore can be of no use.

Reply 2. Negatively, however, if the intercourse was had after the execution of the dispensation. The reason is that, once the dispensation has been granted and therefore the prohibition of marriage removed, the malice of incest also ceases. - This is also established from the same Sacred Congregation.

873. • QUESTION 9. Is a new dispensation required for blood relatives if, after a dispensation has been obtained, intercourse is repeated by them?

Reply. No, because the incest is morally the same, nor must the number of acts of intercourse be declared, as was just said. Hence a new act of intercourse does not invalidate the dispensation, whether it occurs before its issue or afterward, just as was resolved above concerning the similar case at no. 871; for there is parity of reason.

874. • QUESTION 10. If someone seeks a second dispensation in the same matter after another was previously obtained, ought he to express the first?

Reply 1. Affirmatively, if the impediment contracted arose from some crime. The reason is that relapse into the same crime draws the Superior back from dispensing.

Reply 2. Negatively, if the impediment does not arise from some crime, or arises from a different crime. - Thus St. Ligorius, no. 1137, and others commonly.

875. Resolutions. - 1. A dispensation would be invalid if affinity were expressed in the petition instead of consanguinity, and conversely, etc., even if this were done from inculpable error. For the Superior grants the dispensation according to the things set forth in the petition, which, since they are false in fact, necessarily effect no dispensation. On the contrary, the dispensation would be valid if the error were found in the Pontifical Rescript, for example, through the fault of the copyist.

2. Likewise, the dispensation would be invalid if the third degree were expressed for the second, or the fourth for the third; the reason is that a dispensation is granted with much greater difficulty for a nearer degree than for a more remote one. But otherwise it would have to be said if through error the third degree were put for the fourth, because a dispensation in the greater contains a dispensation in the lesser of the same species. - Thus commonly against a few.

3. It is not necessary to say in the petition how many times intercourse was had with a blood relative of the wife, because from several acts of intercourse there arises one affinity. Nevertheless, intercourse had with several blood relatives of the wife must be expressed, because from these so many different affinities are contracted; and although these impediments are not diverse in species, they are nevertheless distinct in number. It is manifest from a Declaration of Benedict XIV. - St. Ligorius, no. 1138.

4. An error in the name or surname of the petitioners, or of the diocese or parish, more probably does not prejudice the validity of the dispensation, provided the substance is established, that is, the impediment and the cause. - Thus Sanchez, book 8, disputation 21, no. 37, and others commonly.