§ 2. What The Bishop Can Do

2045. Principles. I. A Bishop CANNOT, from his ORDINARY power, dispense concerning diriment impediments. This is clear from the Letters of Pius VI given to the Archbishop of Trier on 2 February 1782,¹³ and from the Rescript of Pius VII to the Bishops and Vicars general of France, dated 27 February 1809.¹⁴ The reason is that episcopal authority does not extend to making, by proper right, dispensations in the general laws of the Church, without at least express or tacit concession of the Superior by whom those laws were sanctioned.

Nevertheless the most common opinion teaches that the Bishop can dispense concerning doubtful impediments.¹⁵ In doubt of LAW, a declaration suffices that one can proceed safely; but in doubt of FACT, a dispensation is given for caution (cf. n. 1997, q. 4).

2046. II. A Bishop CAN, from QUASI-ORDINARY power, dispense, when necessity is urgent, concerning OCCULT impediments in which the Pope is accustomed to dispense. Thus the Doctors most commonly. For when necessity is urgent, "the Pontiff is to be presumed to delegate to the Bishop the faculty which, if asked, he certainly would not deny."¹⁶

But it is REQUIRED: 1. That there be present urgent necessity, which is judged to be present if the Pope cannot be approached without too much delay, nor can the matrimony be deferred without scandal, infamy, or another most grave harm: for instance if there is question of matrimony in extremis, or all things are already prepared for the nuptials. Likewise, if spouses, after matrimony has been contracted, cannot be separated without danger of scandal or infamy, and, staying under the same roof, are in danger of incontinence. But if they are in good faith, they are to be left in it until a dispensation has been obtained from the Holy See.¹⁷

2. That the impediment be occult, as is clear from the declarations of S. C. of the Council issued on 13 March 1660 and on 19 January 1661, likewise of the Holy Office in 1660 and 3 August 1873, and of the S. Penitentiary on 10 August 1872.¹⁸ The reason is "because when the impediment is public, the reason of scandal ceases, if the betrothed desist from such matrimony; indeed, especially to avoid scandal they are bound to desist from the nuptials."¹⁹ - Probably, nevertheless, the Bishop can dispense from an impediment public by its nature, but occult by reason of circumstances, provided it is of the number of those concerning which the Major Penitentiary has ordinary faculties.²⁰

3. That the Pope is accustomed to dispense; for otherwise his consent cannot be presumed. And from this it follows that the Bishop does not enjoy quasi-ordinary power of dispensing from those impediments in which not even the Major Penitentiary himself, by force of his ordinary faculties, can dispense.²¹

Another condition is also required if there is question of matrimony ALREADY CONTRACTED, namely that it was contracted in good faith, at least on the part of one spouse, with the prescribed solemnities, for example proclamations, unless there was dispensation. "The reason is both because in Trent it is said: if anyone knowingly shall presume to contract matrimony within prohibited degrees, let him be separated, and let him lack hope of obtaining dispensation; and because otherwise occasion would be given that daily, in hope of dispensation, marriages would be celebrated with contempt for impediments."²² But ignorance of the impediment, even crass, excuses from bad faith, provided it is not so crass that it would seem to be temerity.²³

Note. Since the aforesaid power of the Bishop is not annexed to the person, but to the dignity and office, and therefore must be called quasi-ordinary, it follows that it can be delegated not only for a particular case, but also for all occurring cases, both present and future. - Yet special delegation is required, even for the Vicar general, who does not obtain this faculty from the general commission of the Vicariate.²⁴

2047. III. A Bishop ordinarily receives from the Supreme Pontiff DELEGATED power of dispensing from certain impediments in which difficulties occur more frequently. This power is customarily granted through quinquennial, or triennial, or annual faculties, and for a certain number of cases. The same faculties are not granted to all Bishops; wherefore each one ought most carefully to weigh the tenor of the faculties committed to him, the conditions appended, and the clauses under which the dispensation is to be granted, and to communicate opportune instructions to the clergy subject to him (cf. Appendix I).¹

And here it does not seem alien to NOTE the following things concerning the use of an Apostolic Indult:

1. The same rules which are held as necessary in the Roman Curia must necessarily also be observed by the Bishop who grants a dispensation by force of an Indult. For such is the mind of the Supreme Pontiff, as is clear from the Response of the S. PENITENTIARY given on 1 May 1858.²

2. The prescribed clauses, for example the notation of the Apostolic Indult, must altogether be observed; not however under penalty of nullity, unless this is clearly expressed in the Indult, for example by the words: otherwise they are null. - Thus from the Response of the Holy Office, 15 June 1875.³

3. A Bishop can, by force of the Indult, dispense from the impediment either of consanguinity or of affinity, even if the degrees are multiple, Holy Office, 15 June 1875;⁴ S. Penitentiary, 18 January 1883;⁵ but not from several impediments concurring in the same case, unless this is expressly granted in the Indult. This is drawn from the words of the Indults, and from the Response of S. C. C., 26 April 1873, and of the S. Penitentiary, 14 July 1881.⁶

4. A Bishop can use his faculty of dispensing, for example in affinity, even if incest had been committed with the intention of obtaining dispensation more easily. - Thus S. Penitentiary, 10 May 1876.⁷ (cf. n. 2051, Note).

5. A Bishop cannot dispense except with his own subjects, namely those who have domicile or quasi-domicile in his diocese; or with wanderers who are staying in his diocese and do not have domicile elsewhere (cf. n. 235, q. 2).

2048. Questions. IT IS ASKED 1. What is the power of the Bishop concerning PROHIBITING impediments?

Resp. He can dispense from proclamations of banns, and from a vow not reserved to the Supreme Pontiff. As regards other things, a pontifical dispensation is required, as is clear from what was said in n. 1987, 1989, and following.⁸ In this matter, those things also have force which were said concerning the quasi-ordinary power of the Bishop, in a case of necessity (n. 2046).

IT IS ASKED 2. Whether if the contracting parties are of DIFFERENT DIOCESES, each one must be dispensed by his own Bishop?

Resp. Distinguish. 1. Impediments altogether personal and without relation to the other party, for example the impedient impediment of vow, can be dispensed by the Bishop of the nupturient alone; wherefore if each party is detained by such an impediment, dispensation is required from the Bishop of each (cf. n. 2064).⁹

2. But if the impediment is common to both, for example cognation, affinity, it suffices if the Bishop of either party dispenses, "because, the impediment having been removed from one side, the other party also becomes free, since the bond no longer exists between both parties." - But it is fitting that the dispensation, regularly, be granted by that Bishop in whose diocese the matrimony ought to be contracted by law, that is, by the Bishop of the bride. Thus from the Responses of the S. Penitentiary given on 4 September 1839 and 15 April 1853;¹⁰ confirmed by the Response of the Holy Office, 22 November 1865.¹¹

IT IS ASKED 3. What must be done by the PARISH PRIEST or CONFESSOR, if he detects an impediment when ALL THINGS ARE ALREADY PREPARED for the nuptials, and no time remains for obtaining a dispensation?

Resp. 1. If the impediment is public, the matrimony must altogether be deferred until dispensation is obtained, since from delay no scandal can arise.

2. If the impediment is occult, and of those concerning which the Holy See is not accustomed to dispense, one must abstain from celebration of the matrimony, since the cessation of the law cannot be supposed in such a case.

3. If the impediment is occult, and of those in which dispensation is accustomed to be given, and the matrimony cannot be deferred without scandal or infamy of the betrothed: the celebration of matrimony is to be permitted; and meanwhile the betrothed are to be left in their invincible ignorance, until dispensation, or sanation in the root, is obtained.

4. If, the same circumstances standing, either betrothed or both are in vincible ignorance, or have knowledge of the impediment: a great difficulty arises, for avoiding which some teach that different ways must be entered: namely some by prescribing delay of the matrimony, others by permitting simulation of the Sacrament (cf. n. 1430), others finally by advising celebration under condition of a dispensation to be obtained (cf. n. 1973, q. 3). There is also the opinion of certain persons, which St. Alphonsus calls not unfounded, which holds that the law of the Church concerning impediments does not oblige in such great straits, and consequently that celebration of the matrimony can be permitted, and then recourse must be made as soon as possible to the S. Penitentiary, so that from it either dispensation or sanation in the root may be obtained.¹²

IN PRACTICE, every difficulty would cease if the Bishop expressly delegated to all priests to whom care of souls is committed the faculty which he has for a case of this kind (n. 2046).¹³