§ III. On Dispensation from the Diriment Impediments of Matrimony

We set forth beforehand in this place, from Van de Burgt, de Dispens. n. 639, the terminology proper to the matter of dispensations.

Orator, oratrix, orators, exposer, exposers, are called those who ask that dispensation be granted with them.

A supplicatory libellus or supplica are called the letters by which dispensation is sought.

Style of the Curia. Here by Curia is understood the Congregation from which, or through which, dispensation is to be obtained. Style of the Curia denotes those things which are to be written in the supplicatory libellus from the will and practice of that Congregation from which, or by means of which, dispensation is sought from the Supreme Pontiff.

Subreption, obreption. Reticence of the true, or of that which, by prescription of laws, by style of the curia, by custom, must be declared, is called subreption. Expression of the false is called obreption.

A rescript of dispensation is called the epistle or letters by which the dispensation sought is conceded.

Clauses. Under the name of clauses come the orders and conditions placed on rescripts, which regard both the executor and those about to enter nuptials. Many are expressed in conditional form by the conjunction if, provided, so long as, by the ablative absolute; and these forms, for the most part, indicate that the value of the dispensation depends upon the observance of those clauses. (H. A. Tr. XVIII. 81.) Those orders and conditions arise from the very nature of the impediments, and from the circumstances which are joined to each impediment. All matrimonial dispensations have certain circumstances in common with one another, but many also have certain ones proper to themselves. Hence it happens that some clauses are accustomed to occur in all, others are written only in some.

Dispensation for the internal forum, or for the forum of conscience, or for the forum of heaven, is that which is sought under fictitious names, and which effects that the impediment be removed and that Matrimony can be contracted validly; but it does not suffice that it be proved before an ecclesiastical judge that the impediment has been dissolved.

Dispensation which they call for the external forum, or for the forum of the court, is sought with the names of the orators expressed, and effects that Matrimony can be validly contracted, and that it can be proved before an ecclesiastical judge that it was validly contracted.

Dispensation given in gracious form is said when the ecclesiastical Superior, who was asked to concede the dispensation, applies it by himself, directly, to the orators.

Dispensation is said to be conceded in commissory form when the Superior commits to another the faculty of dispensing with the orators, e.g. to the Pastor, to the confessor.

Dispensation is given in ordinary form when, on the occasion of the dispensation, a certain sum of money (tax, composition) is to be paid.

It is given in the form of the poor when a monetary tax is not exacted; and then to the rescript of dispensation there is usually added the clause: provided the orators are poor and miserable, and live only from labor and industry. For if they are not poor, they must satisfy the established tax. The distinction between dispensations in ordinary form and in the form of the poor, when it is taken in the ordinary sense, regards those regions in which matrimonial dispensations are to be obtained from the Congregations of the Sacred Penitentiary and Dataria; in which last congregation a certain tax must be paid on the occasion of dispensation of the impediments of consanguinity and affinity from licit matrimonial copula, if the orators are not poor and miserable and living only from labor and industry. As regards dioceses subject to the Sacred Congregation de Propaganda Fide, see below n. 1627. II. at the end.

Fulmination of the dispensation is called the act by which the impediment is removed. By another name it is called the application, execution of the dispensation, although this last word also has a broader signification, so that it also comprehends the verification of the petitions, the injunction of certain obligations prescribed in the Rescript, and the acceptance of the dispensation by the orators.

A public, occult, and altogether occult impediment, concerning these see the things said n. 1564.

Note. - Although among us all dispensations are obtained through the organ of the Sacred Congregation de Propaganda Fide, nevertheless in either asking or executing them there must be observed the differences which, according to the nature of the impediment, intervene between dispensations which are to be asked directly from the Dataria, and those which are to be asked directly from the Penitentiary, in regions not subject to the Sacred Congregation de Propaganda Fide.

We must treat 1° of the power of dispensing; 2° of the causes of dispensation; 3° of the manner of obtaining dispensation.

1623. Principles. - I. The Pope can dispense from all impediments of Ecclesiastical Law; 1° validly in every case, because he is the primary Superior; 2° licitly, if he does this from a just cause, as right governance requires. What he can do in those things which are of divine law, see n. 158; 1551. 1°; 1574. q. 5°. Resp. 2°.

II. A Bishop cannot ordinarily and by his own right dispense in diriment impediments (as regards impedient impediments see n. 1572). The reason is that a Bishop can do nothing in the common law of the Church unless from concession of the Council or the Pope, or from legitimate custom. But Bishops cannot vindicate for themselves the right of dispensing in such impediments from any of these reasons, as is clear both from the practice of the Church and from various Declarations of the Sacred Congregation, and especially from Pius VII in the year 1809 in the Rescript to the Bishops of France.

I said: 1° ordinarily; for he can dispense:

1) Probably in doubtful impediments, even with doubt of fact.

2) In occult ones: and

I. Indeed, according to the common opinion, in contracted ones, provided there is present a) necessity and danger in delay; b) Matrimony contracted 1) in good faith, namely from ignorance (even crass, provided rashness does not seem present), whether of law or of fact, by at least one party; 2) in the face of the Church, and the proclamations having been premised, or dispensation from them having been granted; c) an impediment in which the Pope is accustomed to dispense; d) at least doubt concerning the impediment in one party; for if each party is in good faith, this is not to be disturbed, and meanwhile recourse must be had to the Sacred Penitentiary.

II. Most probably also in those to be contracted, provided true necessity is present; danger in delay; an impediment in which the Holy See is accustomed to dispense. (A), p. 397.

I said: 2° by his own right; for in many matters our Bishops can dispense by delegated right. See p. LXX. n. 6. 7. 8. 9. 10. pp. LXXIII-LXXV. (rho), p. 397.

1624. - Quaer. If the betrothed belong to different dioceses and there is question of an impediment common to each nupturient, must dispensation be obtained from each Bishop, if each enjoys by special Indult the faculty of dispensing?

Resp. The opinion probable to St. Alphonsus denies. The reason is that, when the Bishop takes away the impediment from his subject, he renders that subject capable of contracting with the other impeded person. For one person cannot become capable of contracting with another unless that other also becomes capable of contracting with him. And indeed this opinion of the holy Doctor is confirmed by the resolution of the Holy Office, November 22, 1865, with the addition: "unless the tenor of the Apostolic concession stands in the way," and "nevertheless permission for the celebration of the Matrimony having been obtained from the Bishop of the place where the Matrimony itself is contracted." The same addition holds if each nupturient is subject to the one dispensing and the Matrimony is to be entered outside his diocese.

Recall the things said n. 162, 163 concerning causes of dispensations in general.

1625. Questions. - Quaer. 1° What causes are just, so that dispensation may be granted in diriment impediments?

Resp. From the Instruction of the Sacred Congregation de Propaganda Fide, May 9, 1877, the "commoner and weightier" causes are:

1. "Straitness of place, whether absolute or relative (by reason only of the Oratrix), when namely in the place of origin, or even of domicile, the kinship of the woman has been so propagated that she cannot find another of equal condition whom she may marry, unless a consanguineous or affine person, but to leave her country would be hard for her." [These last words do not signify that the cause does not exist when the Oratrix is going to transfer her domicile elsewhere, but that it exists although she does not wish to marry someone of equal condition by whom she is asked in Matrimony, but who inhabits another place. By the name of place there does not come precisely a parish, for in one place, in one city, several parishes can be present, and conversely in one parish several places. Wherefore by the name of place is understood a city, town, village, hamlet, indeed several places, provided they are not distant from one another beyond a mile. Sacred Congregation of the Council, December 16, 1876. Every place not having more than three hundred hearths, or 1,500 Catholic inhabitants, is reputed narrow.]

2. "The age of a superadult woman, if namely, having already passed the twenty-fourth year of age, she has not hitherto found a man of equal condition whom she can marry. But this cause does not benefit a widow who desires to pass to other nuptials."

3. "Deficiency or incompetence of dowry, if namely the woman does not actually have so great a dowry that she can marry an outsider of equal condition, who is neither consanguineous nor affine, in the proper place in which she is dwelling. This cause presses more if the woman exists wholly without dowry, and a consanguineous or affine man is prepared to take her as wife, or even suitably to dower her entirely." [It is indifferent whether the dowry is offered by the bridegroom or by another, but on this condition, that she marry the consanguineous or affine person.]

4. "Lawsuits concerning succession to goods already arisen, or grave or imminent danger of the same. If the woman sustains a grave lawsuit concerning succession to goods of great moment, and there is no other who would take upon himself a lawsuit of this kind and pursue it at his own expense besides the one who desires to take her as wife, dispensation is accustomed to be conceded; for it concerns the commonwealth that lawsuits be extinguished. Another cause approaches this closely, namely a dowry involved in lawsuits, when namely the woman is destitute of another man by whose assistance she is able to recover her goods. But a cause of this kind suffices only for more remote degrees."

5. "Poverty of a widow who is burdened with numerous offspring" [let the number and age of the children be expressed] "and a man promises to support her. But sometimes the remedy of dispensation succors a widow for this reason only, that she is younger and is placed in danger of incontinence."

6. "The good of peace, under which name come not only treaties between kingdoms and Princes, but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is adduced either for extinguishing grave enmities which have arisen among the blood-relatives or affines of the contracting parties, and which would be altogether settled by the celebration of Matrimony; or when grave enmities have prevailed among the blood-relatives and affines of the contracting parties, and, although peace has already been entered between them, nevertheless the celebration of Matrimony would especially conduce to the confirmation of that peace."

7. "Excessive, suspected, dangerous familiarity, and also cohabitation under the same roof, which cannot easily be prevented."

8. "Copula previously had with a consanguineous or affine woman or another person laboring under an impediment, and pregnancy, and therefore legitimization of offspring, namely that provision may be made for the good of the offspring itself and for the honor of the woman, who otherwise would remain unmarried. This indeed is one of the more urgent causes, on account of which dispensation is accustomed to be given even to common people, provided the copula perpetrated was not under hope of an easier dispensation; which circumstance would have to be expressed in the supplication."

9. "Infamy of the woman, arisen from suspicion that she, being too familiar with her consanguineous or affine man, has been known by him, although the suspicion is false, when namely, unless Matrimony is contracted, the woman, gravely defamed, would either remain unmarried, or would have to marry a man of unequal condition, or grave damages would arise."

10. "Revalidation of Matrimony, which was contracted in good faith and publicly, with the Tridentine form observed" [even if there is question of a place where the decree Tametsi does not oblige] "because its dissolution can scarcely be made without public scandal and grave damage, especially of the woman. C. 7 de Consanguin. But if the betrothed entered nuptials in bad faith, they by no means deserve the grace of dispensation, as the Council of Trent disposes, Sess. XXIV. cap. V. de Reform. Matrim." [And therefore then they obtain it with greater difficulty, yet today more easily than formerly.]

11. "Danger of mixed Matrimony, or of celebrating it before a non-Catholic minister." [Existing in the individual and on account of particular circumstances. But common danger, arising somewhere from the greater number of non-Catholics, can indeed have the place of an impulsive cause, but not of a final one.] "When there is present danger that those wishing to contract Matrimony even in one of the greater degrees, from denial of dispensation, would approach a non-Catholic minister for nuptials to be celebrated, the authority of the Church having been spurned, a just cause for dispensing is found, because there is present not only the most grave scandal of the faithful, but also fear of perversion and of defection from the Faith in those acting in such a way and despising the impediments of Matrimony, especially in regions where heresies rage with impunity. This Sacred Congregation taught this in the Instruction given April 17, 1820, to the Archbishop of Quebec. Likewise when the Apostolic Vicar of Bosnia had asked whether he could grant dispensation to those Catholics who put forward no other motive than mad love, and at the same time it was foreseen that, dispensation being denied, they would enter marriage before an infidel judge, the Sacred Congregation of the Holy Office, on Wednesday, August 14, 1822, decreed: 'The Orator must be answered that, in the exposed case, he may use the faculties committed to him in Form II, as he shall judge expedient in the Lord.' The same must be said concerning the danger that the Catholic party would dare to celebrate Matrimony with a non-Catholic."

12. "Danger of incestuous concubinage. From the Instruction of the year 1822 mentioned above, it is clear that the remedy of dispensation is to be employed lest someone grow filthy in concubinage with public scandal and evident danger to eternal salvation."

13. "Danger of civil Matrimony. From the things said it follows that probable danger that those who seek dispensation, if they do not obtain it, would celebrate only civil Matrimony, as they say, is a legitimate cause for dispensing."

14. "Removal of grave scandals."

15. "Cessation of public concubinage."

16. "Excellence of merits, when someone has merited very well of Religion, either by fighting against the enemies of the Catholic Faith, or by liberality toward the Church, or by doctrine, virtue, or in another way."

Sometimes it happens that one cause taken separately is not sufficient, but, joined with another, is reputed grave and consequently suffices.

Dispensation is also given "from certain reasonable causes" (i.e. without the causes needing to be expressed), or dispensation "without cause" (i.e. without a cause expressed), namely when from the pious work which is imposed by way of compensation, the cause of dispensation arises.

Quaer. 2° What things must necessarily be expressed by law, under penalty of invalidity, in the petition for dispensation?

Resp. From the same Instruction, besides the true and legitimate moving cause, the following are to be expressed:

1. "The name and surname of the Orators" [unless fictitious names are to be used, as will be said n. 1627. II], "each to be written distinctly and neatly and without any abbreviation of letters."

2. "The diocese of origin or of actual domicile. When the Orators have domicile outside the diocese of origin, they can, if they wish, ask that the dispensation be sent to the Ordinary of the diocese in which they now dwell."

3. "Also the lowest species of the impediment: whether it is consanguinity, or affinity, arisen from licit or illicit copula; public honesty drawing origin from betrothals, or from ratified Matrimony; in the impediment of crime, whether it came from spouse-killing with a promise of Matrimony, or from spouse-killing with adultery, or from adultery alone with a promise of Matrimony; in spiritual kinship, whether it is between the one lifting and the one lifted, or between the one lifting and the parent of the one lifted."

4. "The degree of consanguinity or affinity, or of honesty from ratified Matrimony, and whether it is simple or mixed, not only the more remote, but also the nearer, as also the line, whether it is direct or transverse; likewise whether the Orators are joined by a double bond of consanguinity, both from the father's side and from the mother's side." [If the Orators are in an unequal line, the nearer degree must also be expressed, and which sex is nearer to the stock. This, however, is not required for validity unless the nearer degree is the first. (upsilon) p. 399.]

5. "The number of impediments, e.g. if there is double or multiple consanguinity or affinity, or if besides kinship there is also affinity, or any other impediment whatsoever, whether diriment or impedient." [Which can be taken away only by dispensation and has not yet been removed. In order that the dispensation be valid, all impediments and circumstances necessarily to be exposed must be expressed conjointly in the same supplicatory libellus, except: a) in the case of which n. 1628. q. 1°. q. 2°; b) according to the more probable opinion of St. Alphonsus, in the case in which one impediment is not increased by the other, as vow and consanguinity; consanguinity and machination.]

6. "Various circumstances, namely whether Matrimony is to be contracted or has been contracted; if already contracted, it must be opened whether in good faith, at least on the part of one, or with knowledge of the impediment; likewise whether with the denunciations premised and according to the form of Trent; or whether under hope of obtaining dispensation more easily; finally whether it has been consummated, if in bad faith, at least of one party, or with knowledge of the impediment."

7. "Incestuous copula had between the betrothed before the execution of the dispensation, whether before or after its impetration, whether with the intention of more easily obtaining dispensation, or even with such intention excluded, and whether the copula is publicly known or even occult. If these things are kept silent, dispensations concerning any prohibited degrees whatsoever of consanguinity, affinity, spiritual and legal kinship, and also public honesty, are subreptitious and valid nowhere and in no way, as the Sacred Congregation of the Holy Office declared, Wednesday, August 1, 1866. But in asking dispensation concerning an impediment of affinity of the first or second degree of the collateral line, if the impediment arises not only from Matrimony consummated with the deceased spouse of the Orator or Oratrix, but also from ante-matrimonial or fornicatory copula perpetrated with the same deceased person before Matrimony was entered with that person, it is not necessary that mention be made of illicit copula of this kind, as is clear from the response of the Sacred Penitentiary of March 29, 1842, approved by Gregory XVI of holy memory, to the Bishop of Namur; and that this is general, the same tribunal declared by letters of December 10, 1874." [But in order that incestuous copula must be declared, it is necessary a) that it was had between those who were bound by an impediment either of consanguinity, or affinity, or spiritual or legal kinship, or public honesty; b) that the female vessel was penetrated. But it is not required that those things followed which are required both for generation of offspring and for perfect copula. Thus Leo XII apud Feije; c) that, if there is not question of dispensation in the form of the poor, it was formal, i.e. perpetrated with knowledge of the impediment. Concerning copula, unless there is suspicion, the betrothed are not to be questioned. There is no dispensation for the easier impetration of which copula has falsely been alleged. To St. Alphonsus (L. VI. 1134) it is most probable that, copula already having been exposed, the intention of more easily obtaining dispensation does not necessarily have to be expressed in the case in which other causes sufficient of themselves are set forth in the supplica.]

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

Resp. See n. 162. 5°.

Quaer. 4° When the cause of dispensation ceases, does the dispensation cease, e.g. if the offspring to be legitimated by Matrimony has died, etc.?

Resp. 1° Affirmatively, if the cause is final, and ceases totally and certainly before the dispensation is expedited, or is made by the Bishop or by another to whom it had been committed by the Pontiff. Cf. n. 164. L. VI. 1182.

Resp. 2° Negatively, if the cause ceases when the dispensation has already been expedited and communicated by the delegated person to the suppliants, even if it ceases before the celebration of Matrimony. The reason is that through the dispensation the impediment has already been removed. L. VI. 1182.

Quaer. 5° Does he who, dispensation having been obtained from the impediment of affinity from illicit copula, e.g. with a consanguineous woman of the bride, again sins with the same woman before Matrimony, need a new dispensation?

Resp. 1° Negatively, if the dispensation has not yet been committed to execution by the delegated person; because such dispensations do not take effect from the day of expedition, but from the time of execution. - Thus all.

Resp. 2° Indeed negatively, even if the dispensation has been committed to execution. The reason is that the impediment of affinity has already been removed by the dispensation as regards the effect of contracting Matrimony. - Thus, as more probable, St. Alphonsus, L. VI. 1140.

But if, the Matrimony having been contracted, he should again sin with the same consanguineous woman of the wife, he is deprived of the right of asking the debt, because the dispensation, according to the style of the Curia, was conceded for the effect of contracting Matrimony, not for sinning more freely.

But he would need a new dispensation if he sinned with another consanguineous woman of the bride before Matrimony, even after the dispensation had been expedited, because a new affinity would be contracted.

Quaer. 6° Is a new dispensation required if, dispensation having been obtained from the impediment of consanguinity, or another of those of which there has been treatment in this number q. 2. Resp. 7, incestuous copula has intervened between the betrothed?

Resp. 1° Affirmatively, if the copula was had before the execution of the dispensation. Thus from common interpretation, and from the style of the Roman Curia requiring the declaration of incest of this kind; for when this has been manifested, the Pontiff imposes a greater penance on the suppliant. It is also confirmed from the Declaration of the Sacred Congregation in the month of May in the year 1634. Then too revalidation of the prior dispensation can be sought simply, which revalidation they call: Perinde valere, and the faculty of which is accustomed to be conceded by the Holy See to Bishops asking it. Concerning this faculty see Feije.

Resp. 2° But negatively, if the copula was had after the execution of the dispensation. The reason is that, the dispensation having been conceded, and therefore the prohibition of Matrimony having been removed, the malice also of incest ceases. It is also established from the same Sacred Congregation.

Quaer. 7° Is a new dispensation required for consanguineous persons, if, dispensation having been sought and the circumstance of incest expressed in the petition, copula is repeated by the same persons?

Resp. Affirmatively, as it seems, provided a) there is question of a dispensation - not yet fulminated; - of the external forum; - in the form of the poor, or indeed ordinary, but enjoining separation, the copula having been repeated after the separation enjoined; b) the letters of dispensation do not contain the faculty "of absolving from the guilt of incest, even perhaps repeated up to the present execution." - Otherwise, it is certainly denied. Concerning the case in which the Bishop dispenses, see n. 1628. q. 6°. § Note.

Quaer. 8° If someone seeks a second dispensation in the same matter after first obtaining another, must he express the first?

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

Resp. 2° Negatively, if the impediment is not from some crime or is from a different crime. - Thus St. Alphonsus and others commonly.

1626. Resolves. - 1° As n. 162. 1°.

2° It is not necessary to say in the petition how often copula has been had with a consanguineous woman of the bride; because from various acts of copula there arises a single affinity; nevertheless copula had with several consanguineous women of the bride must be expressed; because from these so many different affinities are contracted: and, although these impediments are not diverse in species, nevertheless they are distinct in number. It is manifest from the Declaration of Benedict XIV.

3° Error in the name (if the change is minimal) or surname of the Orators, or of the diocese or parish, generally does not harm validity, provided the body is established, i.e. concerning the impediment, the cause, the identity of the person, etc. I said: generally; for sometimes it does harm, as can be seen apud Feije.

1627. - For conceding dispensations of the Holy See, according to the various quality of impediments, two tribunals have been constituted at Rome, namely the Dataria and the Penitentiary.

I. Dataria. Recourse must be had to the Dataria for all notorious impediments, or those which are foreseen as going to come into the knowledge of others, or those which can be manifested without infamy, scandal, and other inconveniences.

II. Penitentiary. Recourse must be had to the Sacred Penitentiary for dispensations and faculties which regard the internal forum alone, namely for occult impediments. But in the postulate, the proper names of the spouses being kept silent, fictitious names are placed. - At present, however, it is conceded that the Penitentiary may be approached also for notorious impediments when dispensation is requested in the form of the poor; indeed, in extraordinary and grave cases, even for Orators who are not poor. - But in dioceses which are subject to the Sacred Congregation de Propaganda Fide, all dispensations are obtained through the organ of this Congregation, and this without tax, but not always without alms. Cf. Vol. I. p. LXXV. A. VI. 4°. D. 5°.

1628. Questions. - Quaer. 1° In what way is dispensation to be sought if there are two impediments, of which one is public and the other occult?

Resp. If the occult impediment is defaming, the Orators can indeed consent that mention of it also be made in the supplication for the external forum; but then it is necessary to add to the petition of the Orators that this is being done. If their consent is not given, or cannot be sought, or does not seem to be sought, for the external forum recourse must be had to the Dataria, no mention of the occult matter having been made; but for the forum of conscience a supplication is instituted to the Penitentiary, in which for validity even the public impediment must be expressed, adding that its relaxation has been sought or will be sought from the Dataria.

Quaer. 2° Must recourse be had to the Sacred Penitentiary so that the circumstance of occult copula had among consanguineous persons, etc., may be manifested?

Resp. 1° It is certain that no obligation is given of exposing occult copula in a petition to the Dataria. The reason is that no one is held to defame himself, and besides this public revelation of occult incest is not prescribed.

Resp. 2° But this circumstance must be manifested to the Sacred Penitentiary. The reason is that it is generally prescribed that copula had between consanguineous persons, etc., who wish to enter Matrimony, be exposed. Now, since it is certain that no obligation is given of exposing occult copula in a petition to the Dataria - because no one is held to defame himself, nor is it said in the precept that public revelation of occult incest must be made - it follows that occult copula must at least be opened by secret manifestation before the Penitentiary, lest the law become altogether useless and exemption from a certain law be conceded without any cause. Several formerly held the opposite; but today there must be no further doubting concerning this, says St. Alphonsus, after the Bull Pastor bonus of Benedict XIV. The Responses of the Sacred Penitentiary of the year 1858 and July 20, 1869 confirm the doctrine of the Saint.

Quaer. 3° Is a dispensation sought in the form of the poor valid if the Orators are not poor?

Resp. Affirmatively. The reason is that obreption falls only upon the impulsive cause, not upon the motive or final cause; for poverty is not the reason on account of which dispensation is conceded, but on account of which it is conceded gratis. Hence another motive cause must always be present. - Thus St. Alphonsus, who says that this is established from the decision of the Sacred Congregation of September 9, 1679. Except: 1° a dispensation conceded by a Bishop by force of an Indult having the clause: "in favor only of those who are truly poor"; which clause is not found in the faculties which are accustomed to be conceded to our Bishops; 2° a dispensation conceded by the Sacred Penitentiary in a public impediment (n. 1627. II), in which case, according to the practice of this Sacred Tribunal, either another dispensation or a sanation is granted. - Each exception is clear from the Response of the Sacred Congregation of the Council, April 26 and June 28, 1873.

Quaer. 4° Who are to be judged poor?

Resp. From Canon Law they must be in some way miserable, since according to the style of the Curia the petition must be formed thus: "The Orators exist poor and miserable, and live from their labor and industry." In practice the state of fortune is to be exposed, or one must stand by the rules given by the Bishop.

From the Declaration of the Rectors of the Apostolic Dataria of the year 1841, this side of the mountains, those are to be reputed poor whose fortune does not exceed the value of 3,000 francs ($600); but those whose fortune does not exceed the value of 10,000 francs ($2,000) are called almost poor. - Bouvier.

Quaer. 5° In what way is dispensation to be executed?

Resp. 1° As regards dispensation of the Sacred Penitentiary, let it be done after absolution in these words, or similar ones: "By Apostolic authority I dispense with you concerning the impediment N., which you have incurred, that you may be able to enter Matrimony (or to perfect the one entered), and I render legitimate the offspring received (or to be received). In the name of the Father, etc."

No formula is prescribed under penalty of nullity, indeed not even under precept; for none is had in the Roman Ritual. If the confessor had omitted to legitimate offspring, he could repair this omission; for then he would continue the cause committed to him and not yet completed. - Bouvier.

Resp. 2° As regards dispensation of the Dataria, the one delegated to dispense 1° ought, for validity, to inquire into the truth of the petitions if the clause is present: "If you shall find that the petitions rest upon truth." Benedict XIV, const. Ad Apostolicae, seems at least always to require the verification of causes for validity. They except if, an inquiry having been made before the supplication, after the rescript there is sufficient certainty concerning the truth of the petitions; 2° he should send the dispensation by letters to the Pastor, that the latter may intimate it to the parties.

Dispensation from the Dataria must always be sought through the Bishop. But dispensation from the Penitentiary can be sought immediately by the Orator, or by another in his place. Nevertheless more securely and more easily this too is requested through the Bishop and with the name of the Orator kept silent.

Quaer. 6° In what way must dispensation be obtained from Bishops when they can dispense from an Indult?

Resp. The same rules which are held in the Roman Curia as necessary must necessarily be observed also in this case; because the mind of the Supreme Pontiff is that Bishops cannot use the Apostolic concession in another way. This is clear from the Response of the Sacred Penitentiary, May 1, 1858. (44) p. 427.

But a Bishop, dispensing by virtue of an Apostolic Indult, does not have to express, under penalty of nullity, as some wrongly suppose, that he dispenses as a delegate of the Holy See from an Indult of delegation conceded on such a day and year, and going to be valid for so many months or years. Except if this is prescribed in the Indult, and indeed under an irritating clause, of which kind is this: otherwise let them be null. - Hence it follows that matrimonial dispensations given informally by our Bishops are valid, and, with sufficient cause acceding, licit also; since form in their faculties, today at least, is not prescribed under penalty of nullity. The conclusion, otherwise evident, is confirmed from the Response of the Sacred Congregation of Inquisition, Monday, June 15, 1875, to doubt 3 from the Vicar General of St. Louis (United States), conceived in these words: "Whether dispensation concerning matrimonial impediments conceded by an Ordinary of this region according to the accustomed Apostolic faculties, although gravely illicit, is nevertheless valid when it is given informally, because the tenor of the faculty delegated by the Holy See, or the time for which, has not been expressed, or because it was conceded telegraphically in few words or only orally. This doubt arises from the omission of the clause: otherwise let them be null, in the faculties now conceded to Ordinaries of America; which clause formerly had been expressly placed in faculties of this kind."

The Sacred Congregation responded - "Affirmatively; provided the woman really has not been abducted, or if abducted, does not exist in the power of the abductor. But the clauses are to be observed to the exact rule, insofar however as the circumstances of things, times, and places can allow."

Note. - As regards the question whether a Bishop, dispensing from an Indult, can do this if incest or quasi-incest (n. 1625. q. 2. Resp. 7) or malicious intention (ib.) has intervened, of which there is no mention in the Indult, first indeed the circumstance of incest, etc., is evidently comprehended by those Indults by which the faculty of dispensing is given together with the faculty of legitimating offspring received, as is done for each part n. 6 Fac. Form. I. p. LXX, and for all and singular Extraordinary Faculties D (n. 7, p. LXXIV) and Extraordinary E (n. 4. § Besides, p. LXXV). Therefore no difficulty exists for our Bishops from this head. - But even if the Indult in no way mentions incest or malicious intention, nevertheless the celebrated Feije does not doubt that the Bishop can dispense. Consequently the same must be said concerning the repetition of incest, and concerning the revalidation of a dispensation conceded by a Bishop and invalid from some aforesaid cause. - But if in a case a double supplication is required, one in the external forum, the other in the forum of conscience, this can be made either to the Bishop or to the Major Penitentiary.

Besides, the Ordinary using an Indult of dispensing will be able to dispense with the clause: that the dispensation is going to be valid, even if incest committed or repeated is detected. But as often as this conditioned form is employed by him, penance also or other things must be conditionally enjoined by him; and these indeed afterwards, according as there is question of a public or occult matter, are imposed absolutely by the pastor or confessor detecting incest committed or repeated before Matrimony. Understand these things concerning strict power. As regards its use, prudence requires this: 1) that it not be employed spontaneously, unless perhaps for repetition of occult incest already expressed in the supplication; 2) if the confessor asks, it is indeed easily to be employed for the case just indicated, more rarely for incest not yet expressed; 3) for the external forum, or if the pastor asks, it seems altogether that one must abstain from a form of this kind. Feije, n. 720. 721.

Quaer. 7° What are the clauses which are customarily placed in dispensations from the Sacred Penitentiary?

Resp. They are the following, namely:

1° If it is so. This, unless he knows it from elsewhere, the executor is bound to inquire into, under penalty of nullity. Faith is to be given to the penitent, unless the delegated one certainly knows the opposite from knowledge received outside Confession. Feije, n. 748.

2° Sacramental Confession first having been heard. Therefore, according to this clause, Confession is necessary, and indeed before the delegated one himself.¹ - "Provided," however, "the confessor, executor of the letters of the Sacred Penitentiary, observes," thus the same Sacred Penitentiary, "the things prescribed to him in the same letters, then dispensations given by force of the same letters will be valid, even if it happens that the penitent confesses nullly and sacrilegiously and receives absolution from sins. But if the confessor notices that the penitent, from his indisposition, cannot rightly be absolved from sins, he must take care to dispose the same penitent rightly, or, if he cannot be disposed at present, together with absolution from sins also to defer the aforesaid dispensations, unless perhaps some urgent necessity counsels accelerating the same dispensations."² The dispensation must be conceded within Confession. (N) p. 409.

3° The occasion of sinning having been removed. It is understood, if the occasion is voluntary, which in fact is to be removed; but if necessary, let it at least be taken away from the soul, by rendering it remote from proximate through the due means.

4° Provided the impediment is occult. See n. 1564.

5° A grave penance having been enjoined on him, etc., besides the sacramental penance. Grave is that which corresponds to a work which is enjoined by the Church under grave obligation (n. 1382. q. 4°); gravest, if the grave penance is doubled or tripled; salutary, if it is not only proportioned to the gravity of the sin (according to the powers of the penitent), but also medicinal (n. 1389); long, if it is to be continued weekly for a year (according to the gravity of the sin); lasting, which is extended to 3 years; but perpetual, which embraces the whole life, not as regards individual days (unless this is expressly required in the Rescript), but as regards stated days.³ - Yet one must beware lest a penance be chosen from which the penitent's crime could be detected. - But if some penance imposed by the Penitentiary itself is found, it cannot be passed over.⁴

6° The present letters having been torn up, under penalty of excommunication latae sententiae. This tearing-up must be done immediately; but understand this morally, namely at least within three days after the dispensation has been executed. But if in the letters the clause of tearing-up has not been placed, as it is not placed when Matrimony has not yet been contracted, then there is no obligation of tearing them up; but a dispensation of this kind must be cautiously noted by the Pastor in a book which cannot be looked at by anyone else, so that he himself, when there is need, may be able to make proof of the dispensation obtained. (45) p. 428.

Quaer. 8° In what way can the monetary tax which is imposed on Orators be reconciled with the Decree of the Council of Trent commanding that dispensation be conceded GRATIS?

Resp. If money received on the occasion of dispensations turned to the benefit of the one dispensing, the mandate of the Council of Trent would be violated, and the dispensation would be simoniacal; but the matter does not stand thus; for the money is received only as an alms to be expended on pious works. Cf. n. 357. 6°, and, as regards us, p. LXXV. A. 1°. C. 4°. D. 5°.

Quaer. 9° In what way is a dispensation of the Sacred Penitentiary to be executed if the impediment is known and common to each contracting party?

Resp. In this case each one must be dispensed by his or her respective confessor. This is clear from the response of the Sacred Penitentiary, November 15, 1748. - But the same Rescript can serve two confessors, and is to be torn up by him who later executes it with his penitent. But if the impediment is known only to one, a single execution is required. - Collet, Traite des Dispenses. - Bouvier, etc.¹

Quaer. 10° What, especially in these Provinces of the United States, must be observed particularly as regards the mode of 1) procuring, 2) conceding, and 3) executing matrimonial dispensations?

Resp. ad 1um. 1° Let the Pastor observe the following: "The mere desire of entering some Matrimony is not sufficient, nor a greater future abundance of temporal things, nor another motive of this kind; but a cause consonant with the canons is required. Therefore the Pastor or confessor should first indeed inquire concerning the cause; if he sees that it is certainly insufficient, let him prudently declare this, and not have recourse; if it is sufficient, or perhaps sufficient, let him not immediately agree, but, if it can be done, let him gently dissuade; but if they do not desist, or the Matrimony is either necessary or advisable, let him assist the parties by his office, yet never inconsiderately making a certain hope of obtaining dispensation."¹

"If sufficient causes" seem "to the Pastor" to be present, let him "prudently" admonish the Orators, "... that no grace ... will be obtained, unless the petitions rest upon truth. Finally, if, with conscience safe, without respect to gain or favor of the suppliants, all things having been well weighed, he judges that they can legitimately be dispensed, then in the supplicatory libellus let him expose the species of the fact neatly and sincerely, and let him diligently beware lest he alter or change it in any way in substantial matters, but let him strictly adhere to those things which were exposed to him by the Orators, and much more let him abstain lest he force in, with detriment to his own soul, something false or fictitious invented from his own ingenuity for obtaining the grace more easily. Moreover, let him cautiously admonish the Orators concerning those things which we have said above" (n. 1625. q. 2°. Resp. 6. 7; q. 5°. Resp. 2°; q. 8°) "concerning copula had between them before or after the petition."²

2° "Because ... Bishops in these provinces have ample faculties of dispensing by special delegation, it will very rarely happen that application must be made immediately to the Dataria or the Sacred Penitentiary, but rather to the Bishop of the Diocese."³

But if recourse cannot be had to the Bishop, either because he lacks the faculty, or because the sacramental seal obstructs it, in the former case recourse should be had to Rome through him, in the latter directly, and indeed through the Sacred Congregation de Propaganda Fide, addressing the Pontiff for the external forum, and the Major Penitentiary for the internal forum.⁴

3° For matrimonial dispensations, even of the internal forum, a written supplication is more prudent; for thus the case and the petitions will be able to be weighed better by the Ordinary.⁵

Resp. ad 2um. 1° As often as the Ordinary dispenses from delegated faculty, let him observe those things which were said in this number, q. 6°.

2° If he dispenses by quasi-ordinary right (see n. 1623. II), he will act more prudently if he concedes the dispensation in writing; for thus he will weigh both the case and the petitions better, and will place the due clauses more certainly.⁶

3° "It seems greatly to be desired that ... the Bishop employ some officials in dispensations concerning public impediments, and others concerning occult impediments, because otherwise the secret in occult matters ... sometimes can scarcely be preserved." See other things apud Feije, de imp. n. 722.

Resp. ad 3um. Let those things be observed which were said in this number, q. 5°. 7°. 9°, and which are to be said below.

See p. 303 for formulas for requesting certain matrimonial dispensations. Concerning defects of dispensations and their sanation, (T) p. 412.