Article IV: On The Manner Of Executing Dispensation

2053. Since matrimonial dispensations are customarily granted by the Holy See only in commissory form, it follows that the impediment is not yet removed by the favorable Rescript, but that besides this the execution of it, or the fulmination of the dispensation, is required. - For fulmination, indeed for the EXTERNAL forum, an Official, Bishop, or generically Ordinary is delegated; but for the INTERNAL forum, the confessor chosen or to be chosen by the orator.

I. First of all it ought to be established for the delegate, from an authentic document, concerning the validity of the Rescript. But the Rescript is vitiated both through substantial subreption or obreption, which can easily be recognized from the things said thus far; and also through accidental subreption or obreption, for example concerning an impulsive cause, if it was alleged in bad faith.⁸ "Wherefore," says Benedict XIV,⁹ "he who executes the Letters ought to expend every care and diligence, that he may know whether what was set forth to the Major Penitentiary or Datary is true. Whether the matter itself, the circumstances, and the causes and reasons brought forward for obtaining dispensation are altogether consonant with truth." If the Apostolic Letters are found invalid, immediately care must be taken for the sanation of the same, a new Rescript being obtained, called Perinde valere, by which the prior Letters are declared valid, just as if they labored under no vice. If after sanation a new vice is detected, there is need of a new sanation, which is granted through another Rescript, which is called Perinde valere upon Perinde valere.¹⁰

For a Rescript of sanation, recourse must be made to the DATARY or to the S. PENITENTIARY, according to the nature of the matter: the whole cause is set forth summarily, the prior grace granted is mentioned, the vice detected is declared, and the grace is sought that, notwithstanding it, the prior Letters may have force. - Also firm remains the law concerning all things pertaining to the matter to be opened before one tribunal; wherefore, if recourse had been made both to the Datary and to the Penitentiary, and a new impediment is public, a double PERINDE VALERE is required: one from the Datary, because there is question of a public impediment; the other from the Penitentiary, because to this tribunal the whole cause must be declared.¹¹

2054. II. After the delegate has fulfilled all things which are prescribed as to be fulfilled in the Apostolic Letters, he ought to RELEASE the orators, in the name of the Pontiff, from the impediments mentioned in the Rescript, and declare to them that matrimony can freely be entered, notwithstanding the impediments.¹² Wherefore the DELEGATE: 1. Ought, and indeed under grave obligation, faithfully to fulfill all things prescribed in the Apostolic Letters, both because they have the nature of a true precept, and because many things are contained in them on the execution of which the validity of the dispensation depends, as will easily be clear to one reading the Rescript. 2. Ought to declare that he acts by force of Pontifical delegation. 3. Ought to release the orators from the impediments designated in the Rescript, expressing them in species, because the faculty of dispensing extends itself to those alone.

This act, which is called FULMINATION, is made in writing for the external forum; by living voice, and ordinarily in sacramental confession, for the internal forum. - Acceptance of the dispensation is indeed required. But this is sufficiently had if the recourse was made at the request of the orators. But if it was made without their knowledge, it cannot be fulminated unless they accept.¹³

N.B. We add nothing concerning the things pertaining to the external forum, since for a delegate in this forum there are many things necessary to know, for learning which he must necessarily approach authors treating of this matter in particular.¹⁴ - But for the convenience of confessors, a few things seem to be added which pertain to execution in the internal forum. - Hence the following.

2055. Questions.¹ IT IS ASKED 1. Who can EXECUTE the Letters of the S. Penitentiary?

Resp. This must be judged from their inscription. - If, as is commonly done, they are inscribed: To a confessor from those approved by the Ordinary of the place, it suffices that the confessor be approved. But if, which rarely happens, there is added to a master in Theology and doctor of Decrees, the doctor's laurel is required. - If the confessor elected is unwilling to execute the Letters, another can be chosen.

IT IS ASKED 2. What CLAUSES are customarily placed in the Letters of the S. Penitentiary?

Resp. The principal ones are the following:

1. If it is so, if the prayers rest upon truth. These words impose the necessity of investigating, as we said above. But since there is question of the internal forum, the whole investigation consists in this, that the confessor again question the penitent, seriously warning him concerning the most grave obligation, which presses, of answering sincerely.

2. We commit to your discretion, insofar as... the bearer, his sacramental confession first having been heard..., you absolve from whatever sentences, censures, and penalties in any way incurred on account of the premises. - According to this clause the dispensation cannot validly be pronounced unless sacramental confession has been premised, and in the very act of confession. Yet sacramental absolution is not required, if perhaps the penitent is not disposed. - Nor does absolution sacrilegiously received obstruct the validity of the dispensation, as has been declared several times by the S. Penitentiary.² Thus also S. C. de Propaganda Fide, 16 Jan. 1797.³ But if some urgent necessity persuades that, sacramental absolution being denied, the dispensation be fulminated: the confessor nevertheless should absolve from penalties and censures incurred perhaps on account of the delict, for example if in the diocese there were reserved cases. Yet, by force of the Rescript, he cannot absolve from other penalties and censures, for which there would be need of a penitent forum.

3. The occasion of sin being removed: this is understood if the occasion is voluntary; because if it were necessary, it suffices that means be chosen by which from proximate it becomes remote.

4. A salutary penance having been enjoined according to the measure of the fault, which is to be distinguished from sacramental penance. - "Wherefore the confessor," says Benedict XIV,⁴ "that he may rightly satisfy his office, should not exceed the bounds either of severity or of humanity. He will also have regard to the condition, age, and sex of him on whom the penalty is imposed." If the penance has been determined by the Letters themselves, for example confession once in a month, this is altogether to be imposed by the confessor. - Sometimes a grave, very grave, long, lasting, perpetual penance must be prescribed. Grave it will be, if by its weight it so presses the guilty person that he himself feels and recognizes through it the gravity of his delict: a penance of this kind, with St. Alphonsus as witness,⁵ would be, if for six months a fast once a week were imposed to be observed; the rosary to be recited three times a week; likewise frequent confession, at least once in a month; always to wear a habit with respect toward penitents. Very grave it will be, if it presses the guilty person so that he sharply feels the atrocity of the delict. Long, if it is to be continued through individual weeks for an entire year; lasting, if for three years; perpetual, if it is extended unto death, to be performed not indeed daily, but on stated days.

5. Other things to be enjoined by law having been enjoined, namely those which otherwise would have to be prescribed.

6. Provided the aforesaid impediment is occult or altogether occult. This condition was declared above (cf. n. 2041, 5).

7. Nor does any other canonical impediment obstruct, namely one concerning which dispensation has not been granted. - If a public impediment concurs with an occult impediment, this clause is customarily added besides: "provided, or after, Letters of dispensation concerning the public impediment have been obtained."

8. By Apostolic authority you mercifully dispense; in express words, and with mention made of the delegation received. - Nor is the legitimation of offspring to be received or already received to be omitted, which is ordinarily prescribed.

9. No Letters having been given concerning these things, but these presents, under penalty of excommunication latae sententiae, having been altogether torn up by you after execution. For since the impediment is occult, the dispensation also ought to remain occult. This tearing up must be done at once, but understand morally, namely at least within three days. - Nor indeed is the confessor prohibited from retaining with himself a copied text of the dispensation, for his own instruction, yet with mention of day and year omitted, which would easily be an argument for recognizing the dispensed penitent.

IT IS ASKED 3. What is the FORM of fulmination?

Resp. No determinate form is required. Hence, sacramental absolution having been imparted, the confessor will be able at once to add this or a similar formula, the things to be changed having been changed: "And besides, by the Apostolic authority committed to me in this part, I dispense with you concerning the impediment... of the first, first and second, second degree of affinity, thence arising, because you had illicit intercourse with the sister of the woman with whom you intend to contract, so that, notwithstanding it, you may contract matrimony publicly with the said woman, the form of the Council of Trent being observed, and afterward may remain in it. In the name of the Father + etc. - Besides, by the same Apostolic authority I declare the offspring to be received legitimate. In the name of the Father +... etc."

If sacramental absolution seems to have to be denied, the FORMULA can be changed in this manner: "By the Apostolic authority committed to me in this part, I absolve you from whatever ecclesiastical sentences, censures, and penalties perhaps incurred on account of illicit intercourse with the sister of the woman with whom you intend to contract, and from excesses of this kind, and I dispense with you concerning the impediment of the first degree of affinity thence arising, so that notwithstanding it... etc." as above.⁶

IT IS ASKED 4. How a dispensation is to be executed, if in the Rescript mention is made of a DELICT which is COMMON to both contracting parties?

Resp. "The first confessor, after the dispensation granted according to the form of the Letters, ought to hand over the Letters of the S. Penitentiary to the penitent, so that through him they may be handed over to the other party, who likewise is to cause the same Letters to be executed with himself by another confessor.... For the mind of the S. Penitentiary is that the Letters be put into execution toward each person, if not for removing the impediment, which is supposed already removed by the prior dispensation with one person, at least for imposing congruous salutary penances on both, which it is not fitting to exact from one only, where the fault is common." Thus the S. PENITENTIARY, 15 Nov. 1748.⁷