§ 1. What The Roman Pontiff Can Do

2042. I. The SUPREME PONTIFF can DISPENSE in all impediments of ecclesiastical law, but not in impediments of natural and divine law; but concerning these also he can DECLARE that they do not oblige in certain circumstances. Declarations of this kind indeed are accustomed to be called dispensations; but such an appellation is improper. All these things are clear from what was said in the Treatise on Laws (cf. n. 135 and 234).

But that dispensation be licit, a just cause is REQUIRED, namely a cause proportioned to the gravity of the impediment. Besides, there are certain impediments in which, although they are of ecclesiastical law, the Pope is not accustomed to dispense.

From these things it is easily gathered what must be thought concerning dispensation from individual impediments.

1. Error and force are altogether indispensable. - Condition and abduction are indeed absolutely dispensable, but dispensation is never granted. - Similarly age is a dispensable impediment; but the Pontiff dispenses in it very rarely, and only on account of a public cause. Impotence and Bond are indispensable. The Church sometimes dissolves a ratified matrimony, so that it does not stand in the way of new nuptials (cf. n. 1982); but while a valid matrimony stands, even if only ratified, she has never tolerated another, nor can she tolerate it. - In Vow and Order, only on account of a most grave cause, and therefore very rarely, is dispensation granted.

2. Concerning crime a dispensation is obtained; but if both or either have contrived murder, it is granted only rarely, and only from a most grave cause; but never, if the contrivance is public.⁵ - In disparity of cult a dispensation is likewise granted, but with greatest difficulty in Christian regions.⁶ - Finally, in clandestinity a dispensation is never given for contracting matrimony; the law ceases, however, if there is in the place a general impossibility, whether physical or moral, of observing it;⁷ but it is given, although most rarely, after matrimony has already been contracted, and this through sanation in the root.⁸

3. Cognation, according to the diversity of cases, is an impediment either dispensable or indispensable. For dispensation cannot be given concerning consanguinity in the direct line; but neither in the first degree of the collateral line has the Church ever dispensed (cf. n. 2019, end). But in more remote degrees dispensation can be had. - The Church dispenses in spiritual cognation; but more easily between the one lifting and the father or mother of the one lifted, than between the one lifting and the one lifted. - She likewise dispenses in legal cognation, yet with greatest difficulty in paternity.

4. In affinity which is in the collateral line, dispensation is granted, whether the affinity comes from licit intercourse or from illicit; indeed, if it comes from illicit intercourse, it is granted in the first degree of the direct line, although with more difficulty, and "provided that no doubt underlies that the spouse is offspring begotten by the other of the contracting parties." But if it comes from licit intercourse, the Church has never dispensed in the direct line⁹ (cf. n. 2031, qu. 2). - In the impediment of public honesty dispensation is granted more easily, other things equal, than in the preceding impediment.

From what has been said it is clear that the impediments in which dispensation is more frequently had are cognation, affinity, and public honesty.

2043. II. The Roman Pontiff is accustomed to exercise his power of dispensing through the tribunals of the DATARY and of the S. PENITENTIARY. Thus from various documents pertaining to the erection and jurisdiction of the said tribunals, and first of all from the Constitutions of Benedict XIV, Pastor bonus, 13 April 1744, and Gravissimum Ecclesiae, 26 November 1745. It is said: is accustomed to exercise, because dispensations concerning disparity of cult, and mixed religion, are granted through the Holy Office; dispensations for supreme princes through the Secretariat of Briefs; and for regions which are subject to the S. Congregation de Propaganda Fide, all affairs are treated through this same Congregation. Besides, the Supreme Pontiff sometimes uses, on account of peculiar circumstances, the work of some determinate Congregation.

The DATARY dispenses for the EXTERNAL FORUM, namely in public impediments, and also in those which are foreseen soon to become public: of this kind are consanguinity, affinity from licit intercourse, spiritual cognation, public honesty. Wherefore, recourse is made more safely and efficaciously to this Sacred Tribunal through the Ordinaries of places.

But the SACRED PENITENTIARY dispenses for the INTERNAL FORUM, or in occult impediments: such as often are those which come from crime, and especially from illicit intercourse. Likewise, it convalidates a dispensation granted by the Datary, but invalidly because of an occult delict, necessarily to be declared, having been kept back, if this is still secret (cf. n. 2051, 6).

It also sometimes dispenses in impediments which indeed by their nature are public, but which still lie hidden. Hence: 1) It dispenses concerning the impediment of public honesty from occult betrothals. - 2) As regards marriages already contracted and to be revalidated, it dispenses concerning occult impediments of spiritual cognation, of consanguinity and of affinity in the third and fourth degree; indeed also in the second degree, if the impediment remained occult through a decade, and those joined contracted publicly and were reputed as legitimate spouses. 3) It can besides in the same third and fourth public degrees, revalidate marriages contracted invalidly from the cause of subreption and occult obreption of Apostolic Letters; except if the falsity consists in the narration of preceding intercourse, which in reality had not previously intervened.¹⁰

For the EXTERNAL forum also, or in strictly public impediments, the S. PENITENTIARY dispenses as regards poor supplicants, concerning whose poverty there is certainty from testimonial Letters of the Ordinary. But if there is given an extraordinary and urgent case, recourse can also be made to the S. Penitentiary for those not poor, all things pertaining to the matter being set forth clearly: if the S. Tribunal cannot provide for the prayers set forth by its ordinary faculties, nevertheless it looks after the same by the force of faculties which it implores from the Supreme Pontiff in the customary audience which the Cardinal Major Penitentiary has every week.¹¹

2044. Let it be noted: 1. When the Apostolic See is vacant, the jurisdiction of the Datary ceases; but not the jurisdiction of the S. Penitentiary as regards the internal forum.

2. In the Datary a Tax is to be paid, to be determined from the nature of the impediment and the pecuniary condition of the Orators, not indeed as the price of the dispensation, which is granted gratis, but both for the stipend of the Officials of the Datary and the expenses to be undergone, and for the alms called the composition: which is imposed for this reason, that it may serve somewhat for repairing the wound inflicted upon discipline, and for lessening marriages between consanguines and affines, especially in the first and second degrees, in which a greater composition is imposed. - In the Penitentiary no TAX is paid. But if there is question of public impediments, and the orators are not altogether poor, some slight alms is required, to be transmitted to the Datary, so that its rights may remain whole and intact.

3. According to the practice of the Datary, those are to be reputed truly poor whose fortune does not exceed about three thousand francs, if they are beyond the Mountains; one thousand five hundred, if on this side of the Mountains; but those whose fortune does not exceed the value of ten thousand francs are called almost poor.¹²