§ 1. On the Power of Dispensing

229. NOTION. The power of dispensing is jurisdictional; for it is part of jurisdiction, or of public authority (St. Thom., 1.2, q. 97, a. 4).

And thus it differs both from the power of invalidating, which is only dominative and belongs to the master, father, husband, etc.; and from the power of declaring someone exempt from law, which is only interpretative of the will of the legislator, and belongs, for example, to the physician with respect to the sick, to the confessor with respect to penitents, etc. (cf. n. 138).

DIVISION. The power of dispensing is twofold: 1. ORDINARY, which belongs to someone by sole reason of his office, such as the legislator has in his own law, and his Superior or successor; 2. DELEGATED, which belongs to an inferior from the concession of him who is endowed with ordinary power.

But delegated jurisdiction can be conceded: a) by right, by reason of the dignity or office with which it is joined; and in this case it is equivalent to ordinary, and is called quasi-ordinary; b) by man, that is, by a Superior, in which case it is called purely delegated.

Moreover, this purely delegated power is given either absolutely for life, for a decade, for a year, etc., or at the nod or good pleasure of the person, or of the dignity (cf. n. 138, 3.).

Besides, it is sometimes conceded by way of grace, in favor of the delegate: in which way Bishops are accustomed to be given the faculties which they call quinquennial, by force of

which they can dispense in very many impediments of matrimony; sometimes by way of commission, in favor of a certain cause or of a certain person to whom the dispensation ought to be advantageous. The faculty of dispensing by way of commission can still be given in a twofold way, namely: either by way of a grace made, as they say, which happens when a true precept of dispensing is imposed on the delegate, "if, however, the prayers rest upon truth," as ordinarily happens in matrimonial dispensations, in which case the delegate who actually bestows the dispensation is said to fulminate it; or by way of a grace to be made, which happens when a precept of dispensing is not imposed on the delegate, but only the faculty of conceding a dispensation is given, "if namely it seems expedient." St. Alph., de Privil., n. 13; ed. G., I, p. 192.

230. PRINCIPLES. I. Any legislator, or his Superior, or successor in jurisdiction, can dispense with his subjects, both in his own law and in the law of an inferior. The reason is, because things are dissolved by the same means through which their cause is born (Decret. Gregor., Reg. I); and the power of an inferior is subordinated to the power of a Superior. The case is excepted in which the law has passed into a contract; for pacts should be observed by all (III, 255).

231. II. No inferior can dispense in the law of a Superior, except from delegated power; namely insofar as the faculty of dispensing has been conceded to him, either by the Superior himself, or by right, or by custom. The reason is, because an inferior has nothing of power over the will of a Superior, from which the whole force of the law exists; whence it is said in the Clementines: The law of a Superior cannot be taken away through an inferior (c. Ne Romani, de Elect.).

232. III. No delegate can subdelegate another, unless the faculty of subdelegating has been conceded to him, either by the Superior or by right. The reason is, because the power of using jurisdiction is diverse from the power of delegating it, and the one is not included in the other.

We say 1. Unless it has been conceded by the Superior; for this is not rarely conceded. Thus, besides the faculty of dispensing, the power of subdelegating this same faculty to other suitable priests is often conceded to Bishops.

2. Unless it has been conceded by right. Now, the power of subdelegating is conceded by right:

a) To one delegated by a Prince, for example, by the Supreme Pontiff, by the Sacred Congregations, by way of office, as to Nuncios, Legates a latere. We say by way of office; so that delegates who would have been chosen on account of their skill may thus be excluded, as also those whose delegated faculty is a bare ministry, or simple execution.

b) To one delegated, although not by a Prince, to a universality of causes;¹ provided that the delegation has been made to him by way of office, or at least by way of privilege annexed in perpetuity to his office or dignity. Thus, for example, a vice-pastor, universally deputed into the place of an absent or dead pastor, can subdelegate another. Yet this subdelegation cannot be for the whole, but for one or another cause only, as is common with St. Thomas (Quodl. 12, a. 22): "A vicar cannot communicate his whole power, but he can communicate part" (H. Ap., XVI, 82; 2 El. q. reform., n. 4).

As St. Alphonsus rightly notes, VI, 566; ed. G., III, p. 583: confessors furnished with peculiar faculties cannot subdelegate, and the same holds for missionaries. The reason: they are deputed only to the bare exercise of ministry.

233. IV. A delegated faculty can cease for many reasons.

Namely it ceases: 1. by revocation of the one delegating, which nevertheless does not obtain effect unless it is notified to the delegate; 2. by renunciation of the delegate accepted by the Superior; 3. by lapse of the determined time, or when the business is finished, or when the number of cases for which the delegation had been conceded is exhausted. But all special faculties habitually conceded by the Holy See to Bishops and other ordinaries of places are not suspended by their death or cessation from office, but are extended to ordinary successors (Holy Office, Nov. 24, 1897).

But whether it ceases by the death or removal of the one delegating, a distinction must be made. It ceases if it was conceded BY WAY OF GRACE in favor of the delegate, with these or other similar words: at our good pleasure, until it shall have pleased us; otherwise, if it was conceded for a determined time, or until it is revoked, or at the good pleasure of the dignity, for example, of the Holy See, of the Bishop, because a dignity does not die.² But if it was conceded IN THE FORM OF COMMISSION for a certain case, again a distinction must be made: conceded as a grace to be made for a special case, it ceases by the death or removal of the one delegating, if the matter is still untouched; but conceded as a grace made to the petitioner, it does not cease, although the matter has not yet in any way been entrusted to execution (cf. n. 246).

234. From these things it follows: I. The Supreme Pontiff can dispense: 1. in all ecclesiastical laws, even in those which the Apostles, as particular prelates of Churches, established: of which kind are the Lenten fast, the observance of Sunday, the irregularity of bigamy, etc. (H. Ap., II, 55; Istruz., II, 64); 2. in certain divine laws, in which divine right arises from human will, such as vows and oaths, if, however, a sufficient cause is present. But in other divine laws, he can only interpret, or declare, the divine will (cf. n. 135).

II. BISHOPS can dispense: 1. By ordinary right: a) in all episcopal and synodal statutes,³ independently of the chapter and clergy (Bened. XIV, de Syn., l. 13, c. 5, n. 7); b) in the laws of a provincial council, provided they are not specially reserved to the council, or confirmed in specific form by the Holy See; for this is expedient for good governance (Gennari, Quest. de Droit can., q. 328); c) in laws made by the Supreme Pontiff for that particular diocese, in which the faculty of dispensing seems to have been left to the proper prelate (I, 190; VI, 902; H. Ap., II, 57).

In general ecclesiastical laws Bishops generally cannot dispense.⁴ Nevertheless, from the decree of the Holy Office Cum recenter, they can sometimes dispense in the law of fasting and abstinence (cf. n. 1240).

2. By quasi-ordinary right, in the following cases: a) in doubts whether a dispensation is necessary or not; for then the Bishop, and any inferior prelate, can either declare that the law does not oblige in the case, or dispense for caution for the quiet of souls; and the dispensation, once given, is valid even if afterwards it were discovered that it had certainly been necessary; b) in particular cases which frequently or regularly happen, as in non-reserved vows, in fasts, feasts, canonical hours, abstinence from meats, and similar things: for it would be too grave a burden if in cases of this kind, which frequently occur, individual faithful had to recur to the Holy See; c) in a case of urgent necessity, or of great utility, when easy access to the Pope is not open, and there is danger in delay, as, for example, in impediments of matrimony, in irregularities, in reserved vows; because this is expedient for the common good, and this even if easy access is given to one having the faculty of dispensing from privilege of the Pontiff; d) if it is said in the law: until dispensation is given; for "an inferior can dispense in the laws of a Superior, if dispensation is generally permitted in the law" (St. Alph., l. c.).

3. By special and delegated right: namely, besides the ordinary faculties of dispensing which we have numbered here, most Bishops possess special quinquennial or triennial faculties communicated by the Sacred Penitentiary; indeed certain Bishops obtain very ample faculties from the Sacred Congregation of Propaganda Fide.

Here, however, let it be noted: a) Ordinary faculties, since they are at hand to Bishops by force of office, can be given to others by delegation; and when the see is vacant, the chapter, or the capitular Vicar, enjoys them. But the Vicar general does not possess them of himself. Indeed, by his general mandate ordinary dispensations are not committed to him, because they savor of grace, but they are if he is specially delegated to this by the Bishop (III, 288; ed. G., I, p. 559).

b) As regards special faculties, since they are customarily communicated to the Ordinary, they pass to successors, for example, the capitular Vicar. In view of the response of December 17, 1898 (A. S. S., 31, p. 384), by which an end was imposed on the controversy, these special faculties also, without special concession, can be subdelegated to Vicars general and other ecclesiastical men, in a general way or for a particular case, provided this is not prohibited in the faculties, nor the right of subdelegating restricted only for certain ones: for in this case the form of the rescript must be observed exactly.⁵

III. PASTORS, in many places, have from custom the faculty of dispensing, even if recourse to the Bishop is easy, in small and frequent necessities; but since they are endowed with this faculty only by force of custom, they can dispense only in those things concerning which usage has been introduced, as in fasting, abstinence, and works prohibited on a feast day (III, 288, 1032; H. Ap., II, 59).

IV. CONFESSORS in several dioceses, from special delegation, have the power of dispensing in various cases for which recourse to the Bishop would be required of itself.

V. PRELATES OF REGULARS possess rights which will be set forth below, n. 2187 and 2189.

Note, however, that those rights can be exercised only by those who are capable of jurisdiction: whence they do not belong to Superioresses, who cannot dispense (IV, 53; ed. G., II, p. 485). It must also be noted (Holy Office, Dec. 20, 1900) that faculties conceded by the Holy See to Superiors General of religious Orders do not cease on account of their death, or cessation from office, but pass to successors. The same principles are in force here as for rights conceded to a Bishop.

235. Questions. IT IS ASKED 1. With whom, therefore, can a Bishop dispense?

Resp. I. He can with all those who are subject to his jurisdiction. Therefore: with inhabitants, and indeed everywhere on earth; with newcomers, as long as they have quasi-domicile in that territory; with wanderers, as long as they are staying in the diocese, otherwise they could obtain necessary dispensations from no Bishop.

A Bishop, however, nor any delegate, cannot, for example, as regards fasting, dispense with heretics who would wish to abjure, but would desire to postpone conversion. Cf. Genicot, Cas. consc., I, p. 23.

A fortiori he cannot dispense with exempt religious, without the consent of Superiors. If, however, universally, in the name of the Supreme Pontiff, he dispenses in common law, the obligation is suspended also for exempt persons, unless they are held by a special vow or rule (Holy Office, 1871; A. A. S., IV, p. 626). But if exempt persons do not observe the statutes of the rule or a vow, they will no longer sin against a precept of the Church, since dispensation has been given, but against a particular statute.

II. With travelers, if rigorous principles are established, a Bishop cannot dispense; for they are not truly subject to episcopal jurisdiction (n. 206). They would become subjects if, ending their journey, they chose quasi-domicile in the diocese. Thus St. Alphonsus (I, n. 158; ed. G., p. 138), and others solve the question.

Nevertheless the rigor of this opinion is quite probably tempered for cases of necessity. Then the traveler, through his coming, is subject to the authority of the Bishop of the place in which he is found. Therefore, when necessity stands, the Bishop can dispense with him in canonical laws, in vows, in oaths, etc. For it is prudently presumed that the Pope or the Bishop of the traveler consents that the Bishop of the place dispense with a traveler of this kind (Mazzotta, tr. 1, disp. 4, q. 1, c. 3, q. 2.).

Note. Many modern authors indeed think otherwise (Lehmkuhl, I, n. 260; Noldin, I, n. 182; Genicot, I, n. 121). But in view of the intrinsic reason indicated above, and in view of the response of the Holy Office, Nov. 22, 1865 (Coll. S. S., n. 910), it is pleasing to restrict the aforesaid rights of the Bishop over travelers to cases of necessity.

236. IT IS ASKED 2. Whether one having the faculty of dispensing with others can dispense with himself?

Resp. Affirmatively with St. Thomas (2.2, q. 185, a. 8) and others, provided he has a universal power of dispensing, not restricted to a case or person. The reason is, because voluntary jurisdiction, or grace, can be exercised toward oneself. Therefore he who uses this jurisdiction will be able to dispense with himself in vows, ordinary ones indeed, as St. Alphonsus thinks (III, n. 256; H. Ap., II, 64). He will also be able so to order the matter that he commits the faculty of dispensing to a prudent man, to be applied to himself, the prelate.