paragraph — Noldin, Summa of Moral Theology
§ 1. On the Power of Dispensing.
181. Who can dispense. 1. A legislator by proper power can dispense in his own law and in the law of his predecessors: for just as the obligation of a law is induced through the will of the legislator, so through the same will it is also removed.
An inferior cannot dispense in the law of a superior unless he has received vicarious power from him. But the superior is judged to communicate this power only on this condition, that the dispensation be made for just causes.
The power of dispensing, since it is a favor, is to be interpreted broadly; but a dispensation, at least a particular one, since it is odious, is of strict interpretation; nevertheless, a dispensation granted to an entire community is sometimes judged favorable and therefore of broad interpretation.
He who has received the power of dispensing from fasting can also dispense from abstinence, because fasting accepted in the full sense comprehends both; but he who has been dispensed from fasting has not likewise been dispensed from abstinence, because this is not necessarily contained in that.
182. In what laws one can dispense. 1. The supreme pontiff can dispense: a. by proper power in all ecclesiastical laws, both general and particular, whether they were issued by a council or by another pontiff or by the apostles; b. by vicarious power in certain divine laws, namely in those in which the obligation of divine law depends upon the human will, as in vows, in oaths, in a ratified but non-consummated marriage, and in religious profession. But in other divine laws he can only interpret or declare the will of the supreme legislator.
- A bishop by proper power can dispense in all laws and statutes of his diocese; by ordinary vicarious power also in certain universal laws of the Church, but only in a particular case, therefore neither with the whole community nor without limit in perpetuity; finally by delegated vicarious power in those matters for which he has received a special faculty from the supreme pontiff.
a. By ordinary power he can dispense in the following cases:
a. In doubts whether the matter needs dispensation: for in these he can either dispense as a precaution or declare that the law does not oblige; for properly a dispensation is not required, since the use of a probable opinion is licit.
b. In frequently occurring cases, as in fasting, abstinence, canonical hours, feasts, and indeed also in vows and non-reserved oaths: for it would be too hard for the faithful if in such frequent cases they always had to recur to the holy see; custom confirms this power.
c. In cases of urgent necessity, when there is danger in delay, as in impediments of marriage, in irregularities, in reserved vows: for the common good requires this.
d. If in the law it is said indefinitely that dispensation can be given: for thus the faculty of dispensing is implicitly handed over.
e. If in the law the faculty of dispensing is expressly conceded, as in the proclamation of banns and in occult irregularities (except homicide).1
b. Besides these ordinary faculties bishops generally have other extraordinary faculties delegated from the special concession of the supreme pontiff for three, for five, for ten, or for more years.
Bishops can delegate their ordinary faculties to others; the same seems to be said concerning extraordinary faculties, unless this power has been taken away from them in the indults, both because they are delegates of the supreme pontiff, and because they are delegated for a universality of causes.
- A parish priest by ordinary vicarious power can dispense in the lighter and frequently occurring universal laws of the Church, as in fasting, in abstinence, and in works prohibited on a feast day, even if recourse to the bishop would be easy, but only in particular cases. Nevertheless, since this power of dispensing is derived from custom, for determining its extent in individual regions attention must be given to the usage of the diocese.
Parish priests can also delegate this power of theirs, as ordinary, to others; therefore, e.g., a chaplain can be delegated to grant a dispensation from abstinence, from servile works, etc.
- Regular prelates by ordinary vicarious power can dispense with their subjects in some universal laws of the Church: of reciting the office, of fasting, of abstinence, of servile works, of prohibited books, and of irregularities, but only in particular cases,2 because they have quasi-episcopal power over their subjects.
a. Those are called regular prelates who exercise jurisdiction in an exempt order; of this kind are the superiors of an entire order, of individual provinces, and of individual houses (local superiors): priors, guardians, rectors.
b. Because they have quasi-episcopal power over their subjects, they can generally exercise over them that power which bishops exercise over their own diocesans by ordinary right (not likewise by force of special faculties). Generally: because in some cases they have a broader power, in others a stricter power, than bishops, as will be indicated where there is discussion of individual precepts.
- Confessors cannot dispense unless they have received delegated power for this. But where a sufficient cause exists, they can doctrinally declare that penitents in their peculiar circumstances are not bound to observe the law.
If the delegated faculty of dispensing is conceded to a confessor to be chosen by the petitioner, nothing prevents the petitioner from being able to change and, once one has already been chosen, to choose another, who may either confirm or correct the disposition of the first. For this is judged to be the intention of the sacred Penitentiary granting the faculty, because power granted for the forum of conscience follows the nature of this forum, in which the penitent can freely approach another confessor.3
1 Cf. Council of Trent, sess. 24. c. 1. 6.
2 S. C. C. 17 December 1725.
3 Cf. Schmalzgrueber, Titl. XVI. n. 243. Sanchez, De matrimonio l. 8. disp. 27. n. 40.
183. Whom bishops can dispense. Since dispensation is an act of jurisdiction, it is clear that no one can be dispensed by them except a subject. But specifically these things must be noted:
- A bishop can dispense: a. with his own subjects, even if they are staying outside the diocese; b. with those who have quasi-domicile in the diocese; c. with vagi, so long as they are staying in the diocese; d. with pilgrims, who in a case of necessity cannot recur to their own bishop, and this from the tacit consent of the proper bishop of the pilgrims.
a. Pilgrims of themselves cannot be dispensed in common laws, in vows, or in oaths by the bishop of the place in which they are staying, because they are not his subjects, over whom he therefore cannot exercise jurisdiction; therefore, if they are validly dispensed, this can be done only from delegation of the proper bishop of the pilgrims. But he is not judged to delegate the power of dispensing as he delegates the power of absolving, except in the case in which recourse cannot be had to the proper bishop, because the presence of the penitent is required for absolving, but an absent person can also be dispensed. Wherefore in a case of necessity, namely where they need a dispensation but cannot recur to their own bishop, he is judged tacitly to consent.
b. Parish priests also can exercise the power of dispensing with pilgrims, i.e. with the faithful who are not their own parishioners, in those things in which they themselves enjoy the right of dispensing, as in abstinence and fasting.
Bishops cannot properly dispense with exempt religious, since they are not their subjects; nevertheless, with the consent of superiors, religious can use episcopal dispensations, e.g. in abstinence or fasting.
A dispensation can be granted to an absent person, and indeed also to one who is ignorant of it and, absolutely speaking, even to one unwilling; but ordinarily for a valid dispensation the consent or acceptance of him with whom dispensation is made is required: for grace and benefit is not granted except to one willing, which especially holds concerning matrimonial dispensations. Anyone is judged to accept a dispensation asked for, unless the contrary will is established.
a. A confessor having the power of dispensing can also dispense with pilgrims, whether he has the power from the supreme pontiff or from the bishop: for neither is judged to delegate power restricted to certain persons, but power which extends to all whom the delegators themselves can dispense.
b. A faculty of dispensing which is granted to someone as confessor is valid only for those over whom he has jurisdiction; and a power which is granted to someone as missionary is valid for the whole time during which he has been destined for giving missions, even if he is not actually occupied in giving a mission.
184. Whether one having the power of dispensing with others can dispense with himself. He who has a general power (not for a particular case), whether ordinary or delegated, of dispensing with others can also dispense with himself, and this directly: for dispensation is not an act of contentious jurisdiction nor of voluntary jurisdiction by which an obligation is enjoined, but of voluntary jurisdiction by which a grace is granted; but for acts of this jurisdiction a distinct person is not required.
He who has a general faculty of dispensing, by the consensus of all, can also dispense with himself. Yet not all explain this dispensation in the same manner. Some judge that the superior can dispense with himself only indirectly, and this in a twofold manner. For either he dispenses with the whole community; but if the whole community is released from the law, equity postulates that the head of it also be released from it. Or the superior grants to someone the faculty of dispensing, and then he himself asks dispensation from him. They are led to embracing this opinion by this argument: dispensation is an act of jurisdiction; but no one can exercise jurisdiction upon himself, because the exercise of jurisdiction requires a subject and therefore a distinct person. Nevertheless others more rightly contend that a superior can dispense with himself directly, because for conferring a grace a distinct person is not required.