Section — Merkelbach, Pastoral Questions
§ 2. Concerning the Power of the Local Ordinary
- The local Ordinary,1 especially in urgent circumstances, enjoys broad ordinary power attributed to him by law. Moreover he almost always has special faculties delegated to him by the Holy See.
1 Cfr. above, n. 59, a.
- I. Power of the local Ordinary in the ordinary course of affairs.
He can dispense: a) in banns; b) in a doubt of fact, provided there is question of impediments in which the Pope is accustomed to dispense; c) in non-reserved vows.
II. Power of dispensing in extraordinary circumstances.
- a) When danger of death is urgent.
"Ordinaries of places, for providing for conscience and, if the case should bear it, for the legitimation of offspring, can dispense both from the form to be observed in the celebration of matrimony and from all and individual impediments of ecclesiastical law, whether public or occult, even multiple, except impediments arising from the sacred order of the presbyterate and from affinity in the direct line after consummated matrimony, with respect to their own subjects dwelling anywhere and all actually staying in their own territory, scandal having been removed, and, if dispensation is granted upon disparity of worship or mixed religion, the customary cautions having been furnished." (Can. 1043.)
- Conditions required so that the Ordinary can dispense.
1° Danger of death, grave, certain or seriously probable, from whatever cause it proceeds, affecting either party.
2° Necessity of providing for conscience or for the legitimation of offspring.
Either necessity suffices according to the common sentence of doctors.
To provide for conscience, i.e., to remove sin or the proximate occasion of sin in any matter whatever.
What offspring can be legitimated?
R. Certainly natural or even incestuous offspring. More probably and more commonly they judge that sacrilegious or adulterine offspring cannot be legitimated.
3° Removal of scandal.
4° For impediments of mixed religion or disparity of worship, the furnishing of the customary cautions. Whether this condition is imposed for the validity of the dispensation is not established.
- Nature of that faculty.
- Scope of the power.
1° This power is very broad. It can dispense from all impediments established by ecclesiastical law, with only two excepted, and also from the assistance of the parish priest or of two witnesses, or of both, if this is necessary.
2° With respect to his own subjects by reason of domicile or quasi-domicile, wherever they are, and with respect to all actually staying in his own territory, the Ordinary can exercise it.
3° The possibility of having recourse to the Holy See does not remove this faculty of the Ordinary.
- b) In other urgent cases.
"§ 1. Ordinaries of places can, under the clauses established at the end of can. 1048, grant dispensation upon all impediments concerning which there is question in cited can. 1043, whenever the impediment is detected when all things are already prepared for the nuptials, and the matrimony cannot, without probable danger of grave evil, be deferred until dispensation is obtained from the Holy See.
"§ 2. This faculty is valid also for the convalidation of a matrimony already contracted, if the same danger is present in delay and time does not suffice for recourse to the Holy See." (can. 1045.)
- Conditions required so that this faculty can be exercised.
1° In each case indicated in § 1 and § 2, probable danger of grave evil, one's own or another's, spiritual or temporal.
2° If there is question of matrimony to be contracted, it is necessary that all things already be prepared for the nuptials, so that the nuptials morally cannot be deferred.
3° As in danger of death, it is prescribed that scandal be removed, and that for impediments of disparity of worship and mixed religion the customary cautions be furnished.
- Nature of this faculty.
It is altogether the same as that which belongs to the Ordinary when danger of death is urgent. Cfr. above n. 185, 2.
- Scope of the power.
This faculty is equally as broad as that which is granted in danger of death, except that the faculty is granted only when time is not present for recourse to the Holy See, and that the Ordinary cannot dispense from the customary form of celebrating matrimony.
- III. Power from pontifical indult.
Let the tenor of the indult be seen. This power is delegated.