Thesis XXXV

The power of dispensing in ecclesiastical diriment impediments belongs by proper right to the Roman Pontiff, and to him alone. But although the power of dispensing from time to time in some divine right could belong to him, it does not follow that this power also extends to impediments which are of positive divine right or of natural right. The same Roman Pontiff can revalidate a marriage with a dispensation, as they say, in the root; and it is fitting that account be taken of this dispensation also by the secular Prince with respect to civil effects, although perhaps he is not properly bound to this.

I. Dispensation is the relaxation of a law in some particular case. That is, while the law remains, it happens that this or that person, who of himself would be bound, or even a whole community for some time, is free from the obligation of the law. Therefore dispensation is an act proper to legislative power; for the same authority which makes a law, insofar as it is such, can abrogate it, suspend it, and dispense from it. Hence the power of dispensing belongs both to those to whom it is granted by the legislator and to those who are superior to the legislator with respect to the same power of jurisdiction.

That the Pope can dispense in ecclesiastical diriment impediments is evident. For the law establishing them was constituted by ecclesiastical authority; moreover, in the Roman Pontiff there resides the fullness of this power, by which alone the universal Church can be bound, so that, since the law of impediments has bound the whole Church, it could have borrowed the force of obliging immediately only from the Roman Pontiff (cf. our Treatise on the Roman Pontiff, Thesis XIV); therefore.

Moreover, from the same demonstration it follows that this power belongs by proper right to the Roman Pontiff alone. For only the supreme Ruler of a society claims for himself the right of dispensing in laws which bind the universal society, and which have had the force of obliging which they possess from his authority alone. Of this sort are the laws concerning impediments by which the Church is now ruled. Wherefore unless the Roman Pontiff himself delegates his power - which can be done in many ways, either by perpetual or temporary concession - the other Prelates of the Church can do nothing in this matter.

II. Now, among the diriment impediments which are now in force, the bond is of positive divine right; but of natural right, besides error and fear, which take value away from all contracts, there are, or are judged to be, consanguinity in the direct line at least in the first degree, and in the collateral line more probably at least again in the first degree, and antecedent perpetual impotence for coition. With respect to this last, indeed, we do not sufficiently grasp why Pontius (On Marriage, book VII, cc. 55-56) wished marriage to be valid between impotent persons if they contract with the purpose of observing continence, on the ground that, as he himself says, for the essence of marriage there is required only that there be a mutual union of souls in a natural society of life with diversity of sex. But this natural society is a certain and determinate society, distinct from others; and it is distinguished from all others by this, that it has its foundation and reason in the natural mutual power over the body of the other in order to copula. For the definition of marriage returns to this (Theses I and II). If you remove this, you have only some free friendly society, to which I do not know how you will prove that the necessary properties of marriage belong, namely unity and indissolubility, which nevertheless cannot be absent from true marriage. Therefore, that mutual power being lacking, that society cannot have place; and therefore neither can marriage. But in impotent persons that power cannot be present. Nor did the Pontiffs, when they said that they did not separate those who had contracted with this impediment intervening, teach that a legitimate marriage stood between those same persons, but only that they could live together as brother and sister. But finally Sixtus V ordered them to be separated by the Brief Cum frequentes, June 27, 1587. Cf. Ballerini, Moral Theological Work, vol. VI, n. 1263. But the earlier Pontiffs were saying that about those who had contracted without any purpose of observing continence, but with the will of coition; yet in that hypothesis Pontius himself, in the cited place, wishes marriage between impotent persons to be invalid. Therefore this opinion of the Pontiffs, if it is taken in the sense in which Pontius wishes, namely that marriage nevertheless consists between those impotent persons, is opposed also to Pontius himself. It would have been better to observe this than to accuse adversaries of ignorance of Latinity. Cf. in the Appendix the things which we note at the Responses of Stephen III, in the year 754.

In the other impediments certainly - and more probably also of themselves in those mentioned above which are not certainly of natural or divine right - the power of dispensing of the Roman Pontiff can be exercised.

III. You will ask whether the Roman Pontiff can dispense in impediments, or at least in some impediment, of natural and divine right. If the impediment is of natural right not only advising but demanding (cf. Thesis XVI, 1), the Pontiff certainly cannot dispense, because to act against that right is always intrinsically evil. But if the matter concerns only positive divine right, an occasion of the question is furnished both by the opinion of several Theologians asserting that the Roman Pontiff can from time to time dispense in divine right (cf. Sanchez, book VIII, disputation 6), and by the practice of the Roman Pontiffs, on which that opinion also rests, of dispensing in certain things which are judged to be of divine right and even of natural right, as in vows, oaths, and ratified marriage. Why, therefore, will the Pontiff not also be able to dispense in some natural or divine impediment?

It is permitted to respond to this question in two ways. First indeed, even allowing that sometimes, in certain cases - for no one has ever dreamed this universally with respect to all things - the Pope can dispense in positive divine right or even in natural right, when the right does not arise except once some free act of man has been posited, it is simply denied that the power of the Pontiff of dispensing extends itself to those impediments of marriage which are of natural or divine right. For with respect to simply natural impediments, some of these, such as error, force, and impotence, are such that, when they exist, it is repugnant for there to be marriage, namely because of the defect of some essential element. Since, therefore, the dispensation of the Pontiff cannot supply this defect, there is no place for dispensation. But with respect to the impediment of consanguinity, the question indeed can be raised whether it is or is not of the right of nature, and whether it is of primary right or only of secondary. But once it is posited that it is of the primary right of nature, then the general rule will hold, namely that rights of this kind do not admit dispensation. Whether that impediment is from the primary right of nature or not, we leave to Jurists or Moral Theologians to dispute. For the rest, since a just cause is required for dispensing validly in the law of a superior, and since it seems that no just cause could ever underlie by reason of which it is better to dispense in this law than to urge its observance, hence also from this head there can never be any dispensation. Nor indeed have the Pontiffs ever dispensed in this matter. Finally, with respect to the impediment of the bond, which is fundamentally natural, formally divine for men, but for women is formally natural and divine, it is certain that although the Roman Pontiff can dissolve a ratified marriage - which dissolution, however, is not a dispensation (cf. the things said in Thesis XXV, IX) - nevertheless he cannot dissolve a consummated marriage, nor permit polygamy or polyandry. These things are established from Catholic tradition, which we gave in its proper place. Accordingly it is certain that the Pontiff cannot dispense in these impediments of natural or divine right.

IV. The other response would be contained in a criticism of the opinion of those Theologians or Canonists who concede to the Pope the faculty of dispensing in certain divine laws. If that opinion were demonstrated to be false, it would follow that it is also false that the Roman Pontiff can dispense in impediments of this kind. All indeed confess that the Roman Pontiff can in certain cases authentically declare that the divine right here and now does not oblige you; but whether this is only an authentic declaration, or whether it is a true dispensation, that is what comes into question. Wherefore those who defend dispensation ought not be solicitous in establishing those cases in which the Pontifical power of dispensing can be exercised validly, and those in which it cannot; for they respond, as Sanchez well notes, book VIII, cited disputation, that those cases are the very same in which others admit that the Pontiff can authentically declare that the divine right does not oblige here and now. But once these things are posited, there are those who observe that the question, with respect to practice or the practical conclusion, is useless; for whichever opinion you admit, the consequence will always be the same: in those cases the sentence of the Pontiff has force, and anyone can act most safely according to it.

But if the matter is considered speculatively, although the assertion of a power of dispensing in divine right is from time to time difficult, it is likewise not easy to conceive what an authentic declaration distinct from a dispensation is. For it is not only a doctrinal declaration, such as some learned Theologian or Jurist could supply. The difference is clear not only from this, that the declaration of the Pontiff is more certain and removes every scruple, but also because it is judged to be a certain juridical act conferring or establishing a certain right in particular; whence it is called authentic, that is, proceeding from authority, not indeed that of a simple doctor, but of the supreme ruler of the Church. This authority surely effects something which a simple doctor cannot effect. But what does it effect, unless a right conferred on someone of exempting himself from the observance of divine right? But, Sanchez adds, such an authentic declaration is an act of itself proper to the legislator, or to one having equal authority with him. Wherefore those who assert to the Pontiff the power of declaring divine right in certain cases attribute nothing less to him than those who vindicate for him the power of dispensing in divine right.

V. But to us these things are certain. 1. There is no repugnance in Christ having given to His vicar the power, for just causes, of removing some obligation which divine right itself has sanctioned. An example is the obligation of vows and the bond of ratified marriage. For since the vicar of God acts in the name and authority of God, he can certainly, if God wills, loose what God Himself would loose. But what prevents God from willing this? Therefore the remaining question will only be a question of fact: whether God has granted this power to His vicar. This question indeed must be solved from the tradition, use, and practice of the Church, or from a certain and necessary analogy of faith.

2. Likewise there is no repugnance in God having given to His vicar, in those obligations of divine right which, as is said, draw their origin from a free act of man, of which sort are vows and oaths, the power, for just causes, either of renouncing in His name the acquired right, or of removing the obligation radically, or, while the right remains, of dispensing for some time from its obligation. We distinguish two things, as is clear, which we declare by examples. Let there be a professed religious who seeks the faculty of returning to the world and marrying, in order that, offspring having been received, he may consult the good either of an illustrious family or of some kingdom. The Pontiff can conduct himself in a twofold way. Either he dispenses simply, so that as long as the man lives he can remain in the world and lead a conjugal life; or he dispenses with restriction, so that, namely, he can marry and apply himself to procreating children, but, once offspring has been received by which satisfaction can be made to the advantage of the family or kingdom, he is to abstain from seeking the debt, and, when his spouse has died, he is to return to religion and lead the religious life by force of the preceding profession, without that profession being issued again. In this latter hypothesis a true dispensation appears; for while the profession remains, there remains the law obliging to religious chastity, to which law that professed man is of himself subject; but he is exempted from its obligation for a certain time by favor of the Pontiff, again to undergo the force of the law, which has not been removed, but whose efficacy has been suspended. But in the prior hypothesis the law or obligation is really removed in the root, and therefore the matter stands as if God Himself renounced the right which belongs to Him because of the vow emitted. Now we say that there is no repugnance in God having given each power to His vicar; for they in reality do not exceed the condition of a vicar or delegate, and they contribute not a little to the right government of the Church. Nor would he be an inferior who dispenses by proper right in the law of a superior; rather he would be a vicar who, by a power received from him whose place he holds, disposes concerning those things which are proper to him. Thus surely any vicar conducts himself with respect to him whose place he fills. But whether such a power has been given to the Roman Pontiff by Christ must be demonstrated in the same way as the first, n. 1.

3. But although these things stand so, nevertheless the Pontiff cannot dispense in impediments of marriage which are of natural and divine right. The reason is that which we have already adduced (n. III). Nor is it permitted to draw an argument for affirming such a power from the power of dispensing in other cases. For as all Theologians note, this power is certainly not universal, as we are taught by revelation itself, which denies that in many cases the Church can change or suspend divine right. Then, there is not a similar reason as in the preceding cases. For if the discourse concerns impediments from the right of nature, these are established by the right of nature independently of any preceding free consent of man, otherwise than in vows and oaths. If the discourse concerns an impediment of positive divine right, God, who conceded that ratified marriage, which He established as intrinsically indissoluble, be dissolved for just causes by the Roman Pontiff, did not will that it should ever be permitted to Christians, while the known spouse is living, to bring in another.

VI. The revalidation of marriage through healing in the root is the restoration of value to an invalid marriage, and indeed such a restoration that, by a fiction of law, it is drawn back to the beginning of the same marriage, the law invalidating it having been abrogated. Such a restoration has place when the marriage was invalid by force of ecclesiastical law. But it is made by means of a dispensation in the root, which is the abrogation, in a particular case, of the ecclesiastical law which introduced the impediment, so that all effects are annulled or excluded, not only those which now exist and would afterward have followed, but also those which had already followed before from the law. Cf. Benedict XIV, On the Synod, book XIII, c. 21. Wherefore this dispensation in the root differs from a simple dispensation, which produces an effect only for future time, namely causing the marriage to be contracted validly thereafter. But the difficulty is in conceiving the efficacy of a dispensation in the root, which is said to extend also to the past; for no power is given over the past, as the common adage bears, sufficiently evident of itself.

Therefore, in order that we may briefly explain this efficacy, we observe 1. that this adage of common sense is most true, and that therefore it cannot happen that what was done should have been undone, or that it should ever be false that something once existed which in reality it was once true had existed.

Wherefore 2. the efficacy of a dispensation in the root is not situated in this, that it makes a marriage previously contracted to have been contracted validly, and offspring received from it to have arisen legitimately.

3. It remains, therefore, that the real effect of this act of power can have place only in the present and future, but with respect to the past. Namely, a) once the invalidating law has been abrogated, the persevering consent of the spouses, as is supposed, which because of the invalidating law was ineffectual for producing the conjugal bond, by that very fact becomes efficacious and by that very fact makes the marriage; and therefore there is no need of any renewal of consent, nor that the dispensation be manifested to the spouses if they are in good faith.

b) It happens that this marriage, just as it really is, is thereafter held by all as a true marriage, furnished with all rights which belong to a true marriage.

c) It happens besides that this marriage must be juridically regarded by all as legitimately contracted from the beginning, and offspring received before the dispensation as legitimately born. It is not indeed brought about that men must judge that the marriage was legitimately contracted from the beginning; this is false, and there is no power which can compel us to assert what is false. But it is brought about that the marriage must be held as if it were legitimately performed from the beginning, all the effects of the diriment impediment which is abrogated being excluded. Namely, a particular law juridically effects that no one of these effects must any longer in any way be imputed to that marriage, even with respect to the past. You see that the efficacy of a dispensation in the root is really exerted only in the present and future, but that respect is also had to the past, insofar as it is juridically effected that everyone must judge of this marriage no otherwise than if it truly had been legitimate from the beginning. This is said to be done by a certain fiction of law. Cf. the things we gave in Ballerini, Moral Theological Work, vol. VI, n. 1420 and following.

With the matter thus declared, it is sufficiently established that it is in the power of the Pontiff to grant dispensations of this kind. For they are not about an impossible thing, but about something altogether possible. Moreover, considered generically, this juridical act by which some law is abrogated in a particular case and it is brought about that all effects of that law are held as null - this act, I say - does not exceed the power of any supreme authority in a society. But on what conditions this dispensation is to be granted or is customarily granted, the Moral Theologians and those skilled in canon law will teach you.

VII. Since the effects of this dispensation (VI. 3. a, b, c) are distinct from one another, it is asked whether the third effect, for instance the legitimacy of offspring, can be obtained when the marriage has already been dissolved by the death either of one or even of both spouses. Certainly if the Pontiff is unwilling to dispense unless the spouses are still living, that will not be able to be done; but the question now is not about practice, but about the possibility of the thing considered in itself. The reason for denying that this can be seems to be that, since the marriage no longer exists, the subject which is to be revalidated is lacking, and much more, both spouses being dead, the person to whom the favor is granted is lacking. But with respect to persons, if offspring exists, there is one who can enjoy this benefit. But omitting this, I judge the reason adduced to have no force in itself. For, as we noted, the efficacy of this dispensation does not directly touch the invalid past marriage as if it really changed it with respect to the past, but directly touches present and future men, who by force of that dispensation must juridically hold that marriage, previously illegitimately performed, as legitimate from the beginning. But for this nothing is required except that at some time the marriage was contracted, even if illegitimately; and this is true however much both spouses no longer exist. Namely, the marriage previously made, or the spouses who contracted in the past, are that in whose favor the dispensation is made; but the whole force of this dispensation is really exercised upon those present or future.

You will say: if it is so, even with no offspring existing, this dispensation could be granted for a marriage long since past. Indeed I do not resist this, regard being had only to power; but because the act would be wholly useless, there is no reason why we should ever expect it from a prudent Prince.

VIII. Another question remains. Since, as we proved (Thesis XXXII), the secular Prince has no power over Christian marriage, but ought to suppose and receive it as it is made in the Church according to its laws; but, this principle posited, he can decree according to his own judgment concerning only civil effects: it is asked whether, once a dispensation has been made by the Pontiff in the root of a marriage, the Prince is bound to accept it with respect to civil effects, so that he therefore cannot, for example, deny the right of legitimate succession to a son born before the dispensation. Sanchez affirms this (book VIII, disputation 7), whose reason is this. The Prince denying civil effects to offspring because the marriage is null himself supposes that from the law of the Church; wherefore this effect of denied legitimate inheritance rests as upon a foundation on the nullity of the marriage. Moreover, once the invalidating law has been abrogated for this case, that foundation is removed; therefore there is no longer any reason why the Prince should deny the right of succession to the offspring. Sanchez cites several authors for his opinion; yet not all consent to him. Nevertheless Benedict XIV consents in the canonical questions, part I, question 174.

Although there is no doubt that it is exceedingly fitting that the Prince admit this dispensation, both because of the reverence owed to the Roman Pontiff and lest the same offspring be held legitimate in the ecclesiastical forum and illegitimate in the civil forum, which would be a grave inconvenience, there occurs a reason for doubting whether the Prince is truly bound to receive this dispensation with respect to civil effects, or whether this pontifical dispensation removes, apart from the consent of the Prince, the civil effects arisen from an illegitimate marriage. The reason for doubting is that a dispensation in the root does not make the marriage to have formerly been legitimate, but makes it to be regarded as legitimate even with respect to the past, all the effects of the diriment impediment, whose law is abrogated, having been nullified. Namely, by a fiction of law, the matter is restored to that place as if the marriage had always been true. But this restoration with respect to the past is finally situated in this: that, the law of the impediment having been abrogated, by an abrogation which is made now, absolutely all the effects which that law produced are removed, not indeed simply, because there is no power over the past, but insofar as it is juridically effected that those effects are no longer imputed to that marriage, even with respect to the past. Accordingly, with respect to the past, a dispensation in the root exercises its force insofar as by the authority of the Pontiff all are commanded to impute none of those effects to that marriage and thus to hold it as legitimate. But since, with respect to civil effects, the Prince enjoys independent authority, the command of the Pontiff, insofar as it regards civil effects, does not seem to have force apart from the consent of the same Prince.

You will say that the dispensation of the Pontiff immediately restores value to the marriage, the impeding law having been abrogated, and that from this it is consequent that the effects of the illegitimate marriage are abolished. But that indeed is a formula having a true sense; yet if the matter is looked at in the concrete and account is taken of that which is done and can be done by the Pontiff dispensing, this will finally be found: that the Pontiff abrogates the law of the impediment for the present and future, and, as regards the past, effects, insofar as he commands by authority, that the effects of the illegitimate marriage are not juridically imputed to that marriage. For he cannot change the thing or essence which once was, nor can he effect that those effects once did not exist, for example, that the offspring was not formerly illegitimate. Therefore, since with respect to the past, for instance offspring already begotten, the force of the pontifical dispensation exerts itself by commanding, the question spontaneously offers itself whether this command obliges the independent Prince with respect to civil effects. The Prince indeed receives from the Church that a certain marriage is null, and that the offspring therefore is illegitimate. This posited, by his own right he decrees that offspring which is born from such a marriage is not an heir. Since that condition always truly remains, that the offspring in reality arose from parents not legitimately joined, why will it not be permitted to him to preserve his own law? Surely if you had promised alms to legitimate children to be born, suppose in some poor village, would you believe yourself bound to give it to children indeed illegitimately born, after however a dispensation in the root had been obtained? You would certainly say that the condition established by you - who were surely free, subject to no authority in establishing it - is always lacking. Thus the Prince, decreeing civil effects by his own right, seems able to respond that the condition required by him, with the law of the Church presupposed, is in reality lacking. But is not the foundation of the civil disposition removed by the pontifical dispensation? Namely, it is not removed physically, for it will always be true that the offspring was born in an illegitimate manner; but it is removed juridically. Yet the question returns: whether the authority of the Pontiff establishing this right has force also with respect to civil effects apart from the consent of the Prince.

Wherefore it could seem that a Prince who should wish to deny, for example, the rights of succession to offspring born from an invalid marriage, even if a dispensation should afterward follow, is not to be condemned for violated ecclesiastical authority.

And indeed nothing prevents certain civil effects from being denied by civil right even to a true legitimate marriage for certain reasons. Thus, in order that nobles may be deterred from certain too-disparate marriages, it is permitted to deprive the children born from them of the right of legitimate succession, although the marriage was true. Therefore the fact that by the law of the Church a marriage is true is not a sufficient reason why a prince could not sometimes deny civil effects, if a suitable reason underlies this. But in our hypothesis too a suitable reason underlies it: namely, that the nuptials were illegitimate from the beginning, which civil right may wish to punish with a certain penalty so that access may be closed to them in society.

Nevertheless Theologians and Canonists generally follow the opposite opinion, relying on those arguments which Sanchez also brought forward. And indeed the authority of the Pontiff is the same in establishing an impediment and in dispensing; for the very authority which establishes impediments is that which can dispense, and conversely. But the Prince is subject to the authority of the Pontiff with respect to Christian marriages, so that he ought to hold as true marriages among Christians all and only those which are conformed to the laws made by the Roman See. But subjection owed to this authority demands that you equally revere every act of it, so that therefore, just as you are bound to hold that a marriage to which an impediment established by the Roman See stands opposed is null, so likewise you are bound to hold as legitimate that which the same Roman Pontiff wishes to be judged as such. But what the Pontiff directly commands is that it be judged as a legitimate marriage, from which it follows that the proper effects of a legitimate marriage, whether they are ecclesiastical or civil, cannot by right be denied to it. If the reader wishes to embrace this opinion, that is certainly permitted by us. But a recent writer, and one learned and erudite, Gasparri, On Marriage, n. 1152, concedes to our opinion.

Putting an end here to the Treatise, we judge it worth the effort to note that here there is available what can be judged opportune and necessary for refuting the errors concerning Christian marriage reproved by the Most Holy Pope Pius IX in the Syllabus, under section VIII. These errors indeed are as follows.

1. By no reason can it be maintained that Christ raised marriage to the dignity of a sacrament. Cf. Theses VII, VIII, and IX.

2. The sacrament of marriage is nothing except something accessory to the contract and separable from it, and the sacrament itself consists only in the nuptial blessing alone. Cf. Theses X and XI.

3. By the right of nature the bond of marriage is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority. Cf., with respect to the first part, Thesis XVI; with respect to the other part, insofar as it affirms divorce properly so called to be licit, cf. Theses XVII, XVIII, XIX, XXI, XXII, XXIII; insofar as it truly affirms that this can be sanctioned by civil authority, cf. Theses XXXII and XXXIII.

4. The Church does not have the power of introducing impediments diriment of marriage, but that power belongs to the civil authority, by which the existing impediments are to be removed. Cf. Praenotiones, chapter IV, and Theses XXVIII, XXIX, XXX.

5. In later centuries the Church began to introduce diriment impediments, not by proper right, but using that right which had been borrowed from the civil power. Cf. Thesis XXIX.

6. The Tridentine canons which inflict the censure of anathema on those who dare to deny to the Church the faculty of introducing diriment impediments either are not dogmatic or must be understood of this borrowed power. Cf. Thesis XXVIII, n. V, and Thesis XXX.

7. The Tridentine form under penalty of invalidity does not oblige where the civil law prescribes another form and wills the marriage to be valid when this new form intervenes. Cf. Thesis XXXII.

8. Boniface VIII was the first to assert that a vow of chastity emitted in ordination renders nuptials null. We shall speak in the Appendix to the decrees of Lateran Council III concerning this ἀνιστορησίᾳ καὶ τῶν ἐπινοιῶν συγχύσει, that is, this lack of historical knowledge and confusion of notions.

9. By force of a merely civil contract, marriage of the true name can exist among Christians; and it is false either that the contract of marriage among Christians is always a sacrament or that there is no contract if the sacrament is excluded. Cf. Thesis X.

10. Matrimonial causes and espousals by their own nature pertain to the civil forum. Cf. Thesis XXXII, VI, I say 7.