Chapter IV: On Dispensations and the Revalidation of Marriage

We shall speak: 1° of dispensations themselves; 2° of the revalidation of a null marriage.

Division:

On the notion and species of dispensations.
On the author of dispensations.
On the causes of dispensations.
On the manner of asking for dispensations.
On the manner of executing dispensations.

1035. 1° Notion. (A) A matrimonial dispensation is the relaxation of some ecclesiastical impediment, for a particular case, made by him who has power. - Therefore it differs from abrogation of a law, by which an impediment is removed for the whole Church and totally; and from derogation, by which an impediment is removed for the whole Church only in part, for example when consanguinity was reduced from the seventh to the fourth degree.

¹ Sanchez, lib. VIII, disp. 1; Pyrrhus Corradus, Praxis Dispensationum, lib. I, c. 1-3; Gasparri, n. 311; De Becker, p. 278-279; Brillaud, Des Empechements et des Dispenses, n. 63-65; Esmein, II, p. 316-330; N. Rousseau, Renseignements pratiques sur la legislation canonique du Mariage, Paris, 1905, p. 33 sq.

(B) St. Thomas² declares as follows the reason why it is sometimes expedient to grant a dispensation: it sometimes happens that some precept, which is for the advantage of the multitude, is not suitable for this person or in this case, because through it something better would be impeded, or even some evil would be induced; therefore it is expedient that in this particular case the law be relaxed; but because it would be dangerous to commit this to the judgment of anyone whatever, except on account of an evident and sudden danger, it is necessary that he who has power to rule the multitude have the power of dispensing in human law, which rests upon his authority.

² Sum. Theolog., 1a 2ae, q. 97, a. 4.

(C) In the earlier centuries of the Church no traces appear of dispensations concerning matrimonial impediments. St. Gregory the Great, in the sixth century, granted to the recently converted English that they might remain in marriages entered before conversion in the third degree of consanguinity: but this was not a dispensation strictly taken, but a privilege granted to a certain nation on account of special reasons. But already in the eleventh century examples of dispensation are found, for example in the case of Casimir, who, notwithstanding religious profession, received permission to contract nuptials. From the twelfth century, dispensations were given more frequently by the Roman Pontiff; from the sixteenth century, faculties of dispensing concerning some impediments were granted to Bishops, especially missionaries; and this practice became more common day by day. Leo XIII greatly extended the faculties usually granted, and at the same time abrogated or changed certain clauses which were accustomed to be added to rescripts, so that dispensations might more easily be committed to execution.

1036. 2° Species of dispensations. (A) Dispensations can be granted with regard to a public or to an occult impediment: this distinction is of the greatest importance, since often the S. Penitentiary dispenses with the clause "provided it is occult."

(a) Now certain impediments are public by their nature, insofar as they can be known without infamy or scandal, and otherwise are easily proved in the external forum, for example legitimate consanguinity, spiritual relationship, licit affinity, bond, disparity of cult, etc.; these, although known to few, are always held as public.

(b) But others are, by their nature, or by law, occult, namely because they cannot be known without infamy or scandal, nor can they so easily be proved in the external forum, such as illegitimate consanguinity, crime, etc.; concerning these it is asked when they are considered occult in fact.

Now up to this time the Roman Congregations distinguished a twofold kind of occult: altogether occult and simply occult. The former was that which is known to no one except the parties and the confessor; indeed, more probably, that which, besides the parties and the confessor, is known to only one discreet person.

The latter, that is, simply or quasi occult, was that which is known only to a few, without probable danger that the matter be proved in the external forum. But can. 1037, which used to be left to canonists to define, itself defines it, by saying simply: "An impediment is considered public which can be proved in the external forum; otherwise it is occult."

Therefore, in order that an impediment occult by its nature be public in fact, it is not required that it be juridically proved; but it suffices that it be known to those persons whose testimony in the external forum would be equivalent to juridical proof. Now such persons are, from can. 1791: 1. one sole qualified witness who gives testimony concerning things done by office; 2. two or three persons, greater than every exception, firmly agreeing among themselves, testifying from their own knowledge.

1037. Corollaries. (a) If an impediment is known in one place, for example in Ireland, and unknown in the place where the contracting parties dwell, for example in America, and knowledge of it is not foreseen as likely to come there easily, it is considered occult; nevertheless it is safer to set forth this circumstance in the petition. - Likewise if it was at one time public, but from then for a long time (for example ten years) remained occult, it can be held as occult.

(b) If an impediment is public materially, that is, insofar as it is a fact, but not formally, insofar as it is criminal (for example if a homicide is held by the community as fortuitous), in practice it is considered occult. But if it is public not only as a fact, but also as a crime, although it is commonly unknown that this is an impediment, the matter is indeed controverted; but the more common opinion, which the Penitentiary follows in practice, holds that the impediment is truly public.

1038. (B) By reason of the forum, a dispensation is granted either for the external forum, or for the internal forum only. (a) When it is granted for the external forum, it is considered to have force also for the internal forum, except in a case where the judgment was rendered from a presumption which is in reality false. - This dispensation is sought for a public impediment, with the names of the petitioners expressed.

(b) A dispensation is granted in the sacramental internal forum (the names of the petitioners being withheld), or in the non-sacramental internal forum (their names being expressed). From can. 1047 let these things be noted: "Unless the rescript of the S. Penitentiary provides otherwise, a dispensation granted in the non-sacramental internal forum concerning an occult impediment is to be noted in a book diligently kept in the secret archive of the curia... nor is another dispensation for the external forum necessary, even if afterwards the occult impediment becomes public; but it is necessary if the dispensation had been granted only in the sacramental internal forum."

1039. (C) By reason of form, a dispensation can be given (a) in gracious form, when it is granted directly to the petitioner himself and directed to him; which formerly was sometimes done; (b) in commissory form, when it is not granted to the petitioner himself, but is committed to be executed either by the Bishop, or by the confessor or another priest; today dispensations are granted in this way, by command of Leo XIII¹.

¹ Thus he decreed "that all matrimonial dispensations in the future are to be committed either to the Ordinary of the Petitioners or to the Ordinary of the place." (Collect. P. F., n. 1471.)

In either case, the dispensation does not expire by the death of the one granting it, or his cessation from office; nor by the death of the delegated person, unless to this person the faculty of dispensing had been entrusted by reason of personal quality, but not by reason of office. (Code, c. 1055.)

Since those can dispense who enjoy the power of making laws, the question can be considered with respect to the Supreme Pontiff and Bishops.

² Sanchez, l. VIII, disp. 3-15; Reiffenst., Append. ad lib. IV, § 1; Schmalzgr., lib. IV, tit. 16, n. 59-101; St. Alphonsus, n. 1118-1127; Carriere, n. 1063-1110; Ball. P., n. 918-932; Gasparri, n. 312-327; 404-431; Feije, n. 601-648; Zitelli, De Dispensationibus, p. 45-62; Brillaud, n. 66-114; Tephany, Traite des Dispenses, p. 76-118.

I. On the Power of the Supreme Pontiff with Respect to Dispensations.

1040. 1° On the power itself. The Supreme Pontiff, as the supreme head of the Church, can validly dispense from any ecclesiastical law, and therefore in all impediments of ecclesiastical law. That this may be declared more fully, these things are to be noted:

(A) No dispensation is granted concerning impediments of divine law, whether natural or positive, except in cases determined by divine law itself (for example in the Pauline case, above, n. 729). Nevertheless the Church can do two things with respect to divine law: authentically declare whether an impediment is present or not, for example whether there is sufficient certainty concerning the dissolution of a prior bond; or whether, in such and such a circumstance, divine law obliges or not, for example in the Pauline case whether an interpellation is necessary.

Hence the Supreme Pontiff cannot dispense in the first degree of consanguinity of the direct line; in antecedent and perpetual impotence; in the bond, if it is a question of a marriage of the faithful that is ratified and consummated; in error and fear, insofar as they remove the necessary liberty.

1041. (B) If it is doubted whether some impediment is of divine or ecclesiastical law, the Supreme Pontiff, following the safer way, is not accustomed to dispense in it; thus in every degree of consanguinity in the direct line; in the first degree of consanguinity of the collateral line.

(C) Rarely and only from a most grave cause does the Pontiff dispense in the impediment of age, even insofar as it is merely ecclesiastical; in the second degree of consanguinity touching the first (a niece and maternal uncle); in the first degree of licit affinity in the direct line; in a solemn vow and sacred order; in disparity of cult, outside mission places; in clandestinity.

1042. 2° On the organs through which the Roman Pontiff dispenses. Since the Roman Pontiff cannot personally dispatch all business, he uses various Congregations for granting dispensations.

Today, according to the new economy introduced by the Constitution Sapienti consilio, five Congregations are deputed to this office:

1043. (A) For the internal forum only, the S. Penitentiary can dispense, as before, for the forum of conscience:

(a) as regards marriages contracted and to be contracted, concerning all impediments, prohibiting and diriment, which by nature and in fact are occult, and concerning public honesty from occult betrothals (from the old law); (b) in order to convalidate a contracted marriage, concerning the third and fourth degree of consanguinity and of licit affinity occult in fact, and also in the second degree, if "it has remained occult at least for ten years, and the petitioners have at the same time contracted publicly and lived together, and have been reputed as legitimate spouses," likewise concerning spiritual relationship occult in fact¹.

¹ Benedict XIV, Constit. Pastor bonus, April 3, 1744; Normae peculiares, cap. VIII, art. 1. (A. A. S., I, 101). - Cf. Desmet, De Sponsalibus et Matrimonio, 1911, n. 351.

(c) Besides this it belongs to the Penitentiary to sanate dispensations concerning the third and fourth public degrees of consanguinity and affinity, which are null on account of occult subreption or obreption; likewise to sanate marriages null because of consanguinity or affinity of the first with the second degree, or of the second with the third. - Its competence extends to all Latin churches, not excepting those which are subject to the S. C. de Prop. Fide.

All things are dispatched secretly and gratis in this sacred tribunal. Nevertheless postal expenses must be paid, and if the dispensation is obtained through the episcopal Chancery, a small sum of money for the agency.

1044. (B) For the external forum: (a) The Cong. of the Holy Office dispenses in the impediments of disparity of cult and mixed religion. It also retains the faculty of knowing those things which regard the Pauline privilege and mixed marriages (between Catholics and non-Catholics). Its competence extends to all churches of the Latin rite, not excepting those which are subject to the S. Cong. de Prop. Fide. (Code, can. 247, § 3.)

(b) The Congreg. of the discipline of the sacraments, or of the sacraments, dispenses concerning the remaining impediments of the external forum, both for the poor and for the rich. To the same Congregation are attributed sanations in the root, dispensation concerning ratified and non-consummated marriage, separation of spouses, legitimation of offspring. Its competence in those things which regard marriage extends to the whole world of the Latin rite. - Nevertheless, when it is a question of dispensation concerning a ratified marriage, the prior judicial inquiry concerning the fact of non-consummation pertains to the S. Rota. (Code, can. 249, § 3.)

Scholion on taxes to be paid. When a pontifical dispensation for the external forum is granted, from the usage of the Curia, for the rich or quasi-poor, besides postal and agency expenses, a certain tax is imposed for the support of officials and for bearing other burdens of the apostolic curia; and also a composition to be converted to pious uses, when for the rich a dispensation is obtained without cause, or even with cause if it is a question of consanguinity or licit affinity; this is greater the richer the petitioners are. Wherefore in the supplicatory petition the wealth of the petitioners must be set forth. In many regions, by force of indult, the tax and composition are determined according to equity and the good by the Ordinary of the place.

But the poor obtain a dispensation gratis; nevertheless there is inserted in the rescript that a small alms is to be made, to be taxed according to the judgment of the Ordinary; but those called miserable are dispensed from it¹.

¹ The poor are reputed those who both together do not have more than 1500 francs in Italy and, outside Italy, about 3000 francs; the miserable, those who live by the labor of their hands alone; the quasi-poor, those who possess no more than about 5000 francs in Italy and, outside Italy, 10000 francs. In computing fortune, account must be taken of fortune in hope, which is customarily computed for half, and of stable revenues from the office of either of the betrothed.

Today, however, error or fraud concerning the economic condition of the petitioner does not obstruct the validity of the dispensation.

1045. (c) The S. Congreg. set over the Business of Religious Sodalities dispenses concerning the vow of chastity as regards religious of each sex, and all sodales living life in common after the manner of religious, and indeed through the whole world of the Latin rite.

(d) The S. Congreg. for the Business of the Oriental Rites dispenses, as regards regions and persons belonging to the Oriental Rites, in all impediments, except only the Pauline privilege, which is reserved exclusively to the Holy Office.

Note. From the const. Vacante Sede Apostolica, December 25, 1904, the ordinary faculties of the Congregations are not extinguished by the death of the Pontiff, but only the extraordinary ones, or those which cannot be dispatched unless the word has been had with the Most Holy. Nevertheless the Pontiff wills that, insofar as it can be done, the Congregations not use these faculties except in matters of lesser moment.

II. On the Power of Dispensing Competent to Bishops.

1046. 1° By proper and original right, Bishops cannot dispense in impediments of marriage, whether diriment or even prohibiting, if exception is made for a prohibition made by the Bishop himself, or his predecessor, or by a pastor. For a Bishop cannot by his own right dispense from a general law.

1047. 2° By ordinary power, yet vicarious, not proper:

(a) Concerning the proclamation of banns: "The proper local Ordinary, according to his prudent judgment, can for a legitimate cause dispense from publications, even those to be made in another diocese."¹

¹ Code, c. 1028.

(b) In a doubtful case: "Even invalidating and incapacitating laws do not bind in doubt of law; but in doubt of fact the Ordinary can dispense in them, provided it is a question of laws in which the Roman Pontiff is accustomed to dispense."²

² Code, c. 15.

1048. (c) "When danger of death urges, local Ordinaries, for consulting conscience and, if the case calls for it, the legitimation of offspring, can dispense their own subjects wherever they dwell, and all those actually staying in their own territory, both concerning the form to be observed in the celebration of marriage and concerning each and all 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, when the marriage has been consummated, scandal being removed, and, if the dispensation is granted concerning disparity of cult or mixed religion, the customary cautions having been furnished."³

³ Code, c. 1043.

From this canon the power of dispensing also includes affinity in the direct line, if the marriage has not been consummated. Moreover a marriage (whether true or false), "if the spouses have cohabited together, is presumed consummated until the contrary is proved."⁴

⁴ Code, c. 1015, § 2.

In the same circumstances and only for cases in which not even the local Ordinary can be approached, the same faculty of dispensing is possessed both by the pastor, and by the priest who assists at marriage... when the pastor or Ordinary or delegated priest cannot be had or approached without grave inconvenience, and also by the confessor, but he only for the internal forum in the act of sacramental confession⁵.

⁵ Code, c. 1044. But concerning a dispensation of this kind granted for the external forum, the local Ordinary is to be informed immediately, and it is to be noted in the book of marriages. Code, c. 1046.

1049. (d) In an urgent case. - "Local Ordinaries can, under the clauses indicated above, grant dispensation concerning all the impediments of which in the same number, whenever the impediment is detected when now all things are prepared for the nuptials⁶, and the marriage, without probable danger of grave evil, cannot be deferred until a dispensation is obtained from the Holy See.

⁶ From the decision of the Pontifical Commission, March 1, 1921, these things are to be understood not in a strict sense, namely that the impediment had previously been altogether unknown and then is discovered, but in this sense, that although previously known, then only it is brought to the knowledge of the pastor or Ordinary.

This faculty also has force for the convalidation of a marriage already contracted, if the same danger is present in delay and time does not suffice for recourse to the Holy See.

In the same circumstances, they enjoy the same faculty, but only for occult cases in which not even the local Ordinary can be approached, or only with danger of violation of the secret."¹

¹ Code, c. 1045.

Thus now the case which was called perplexed is easily solved.

1050. 3° By delegated power, Bishops can dispense in those impediments for which they have received special faculties²; these indeed are various for various regions.

² From the Decree of the Congreg. of Sacraments, March 7, 1910, these faculties are not to be used for marriages of kings and of princes of the royal stock. Cf. Acta Apost. Sedis, II, p. 147; Code, c. 201, § 3:

As regards common Indults which up to now were granted to Ordinaries petitioning for them (in the Brief called of 25 years, or in formulas for ten years or for three years), these things have been established (Secret. S. C. Consistorialis, April 25, 1918):

(a) In all dioceses subject to common law, all faculties for the external forum granted to Ordinaries, and which are contained in the Formulas and Brief enumerated above, will cease from May 18, 1918.

(b) Nevertheless in more remote places and others to which knowledge of the decree has not come, dispensations granted by force of the old faculties will be valid.

(c) But the faculties for the internal forum granted by the S. Penitentiary have not been abolished.

(d) Local Ordinaries in America, in the Philippine Islands, in the East Indies, in Africa outside the coasts of the Mediterranean Sea, and in Russia, for a quinquennium from May 18, 1918, are able to dispense from impediments of a lesser degree (c. 1047); and marriages nullly contracted on account of these impediments they can sanate in the root, according to the rules of the Code; likewise for a quinquennium they can dispense from impediments of a greater degree, whether occult or public, even multiple, yet of ecclesiastical law (except impediments arising from the sacred order of the presbyterate and from affinity in the direct line when the marriage has been consummated), and also from the impedient impediment of mixed religion, if the petition for dispensation has been sent to the Holy See and an urgent necessity of dispensing supervenes while recourse is pending, with those things nevertheless being observed which must be observed by law.

1051. Concerning all these faculties, whether ordinary or delegated, these things are to be noted:

1. When the contracting parties are of diverse dioceses, if the impediment is altogether proper to one, such as a vow, the contracting party so bound must have recourse to his own Bishop, and if both have contracted such an impediment, each must be dispensed by his own Bishop; but if the impediment is common to each, as consanguinity or affinity, it suffices that the dispensation be granted by either Bishop; nevertheless it is fitting that it be sought from the Bishop in whose diocese the marriage is celebrated.

2. Faculties subdelegated by the Bishop can be exercised toward subjects, even if both he himself and the subject are outside the diocese at the time when the dispensation is made; unless, however, the clause has been added, "nor can he use them outside the boundaries of the diocese," or it is otherwise clear from the mind of the Supreme Pontiff, or unless the subject matter requires it; for then the faculties can be exercised only with proper subjects actually dwelling in the diocese at the time when the favor is granted. Nevertheless it is not necessary that the Bishop himself then be in the diocese¹.

¹ Code, c. 201, § 3: "...one can exercise voluntary or non-judicial power of jurisdiction even for one's own advantage, or while existing outside the territory, or over a subject absent from the territory."

3. "In marriages either contracted or to be contracted, he who enjoys a general indult of dispensing concerning a certain impediment can, unless something else is expressly prescribed in the indult itself, dispense concerning it even if the same impediment is multiple.

He who has a general indult of dispensing concerning several impediments of diverse species, whether diriment or impedient, can dispense concerning the same impediments, even public ones, occurring in one and the same case."²

² Code, c. 1049.

4. In granting dispensations, Bishops must follow the rules which the Holy See observes with respect to the causes of dispensations.

5. Faculties habitually granted to Ordinaries do not perish, nor are they suspended on account of their death or cessation from office, but pass to the Ordinary successors; likewise those granted to the Bishop also belong to the Vicar General³.

³ Code, c. 66, § 2. Besides this, "a granted faculty also carries with it other powers which are necessary for its use; wherefore in the faculty of dispensing there is also included the power of absolving from ecclesiastical penalties, if any perhaps stand in the way, but only for the effect of obtaining the dispensation." Ibid.

6. "Through a dispensation concerning a diriment impediment granted either from ordinary power, or from delegated power by general indult, but not through a rescript in particular cases, there is also by that very fact granted the legitimation of offspring, if any has already been born or conceived from those with whom the dispensation is made, yet adulterine and sacrilegious offspring being excepted."¹

¹ Code, c. 1051.

1052-1061. I. General principles. 1° Dispensations ought not to be granted except when a grave and proportionate cause urges: "In contracting marriages," says Trent³, "let either no dispensation at all be given, or rarely, and that from cause, and let it be granted gratis." Today, however, on account of the changed conditions of times, the old law has been tempered on account of the common good of souls⁴; nevertheless a grave cause is required, and indeed one graver according as the impediment from which dispensation is sought is graver. - For liceity a just cause is always required; for validity it is also required whenever a Bishop dispenses by tacit or explicit delegation, because the Supreme Pontiff does not grant the faculty of dispensing unless a grave cause is present; but the Pope, as supreme Legislator, validly dispenses even without cause, although he is not accustomed to do this.

² Sanchez, lib. VIII, disp. 18-20; P. Corradus, lib. VII-VIII; Vincentius de Justis, De Dispens. matrim., lib. III; St. Alphonsus, n. 1129-1130; Carriere, n. 1112-1123; Ball. P., n. 933-944, ed. 3; Feije, n. 649-685; Gasparri, n. 328-349; Lehmk., n. 800-803; Planchard, n. 51-68; Tephany, n. 77-121; Joder, p. 95-104.

³ Sess. XXIV, cap. 5 de Reformat. Matrim.

⁴ Thus the Dataria, ap. Acta S. Sedis, XXXIV, p. 83.

1062. 2° Species of causes. (A) Some causes of dispensations are final, or determining by themselves, but others are impelling or impulsive: the former are the reasons why a dispensation is granted, and of themselves suffice that it be granted; the latter are reasons which move the one dispensing so that he may more easily dispense, but of themselves do not suffice for obtaining a dispensation. - Sometimes one cause taken separately is insufficient, but joined to another or to several others is judged sufficient; for things which do not profit singly, help when many.

(B) Some are defaming, which arise from a delict or injure the reputation of the petitioners; others are honorable, which imply neither delict nor defamation. Dispensation is more easily made from defaming causes than from others, on account of the necessity of averting grave evil.

(C) Certain causes are called canonical, because from the style of the Roman Curia they are accustomed to be admitted as having force and efficacy; others non-canonical, whose efficacy is not explicitly admitted. The former especially must be set forth in the supplicatory petition, but others can be added to them, so that the dispensation may be granted more easily; all the more because the Supreme Pontiff can, in a particular case, admit any rational cause approved by him¹.

¹ Thus the Dataria, Formulae reformatae, ap. Act. S. Sedis, l. c.

1063. II. Principal causes of dispensations. The Dataria formerly admitted only four; but in the Reformed Formulas² twenty-eight are enumerated:

² Ap. Acta S. Sedis, XXXIV, p. 34-35.

Narrowness of place; narrowness of places³; narrowness with the clause: and if outside, the dowry would not be competent⁴; incompetence of the dowry of the female petitioner; dowry with increase⁵, for the undowered woman; when another increases the dowry; on account of enmities (to be avoided); for the confirmation of peace, and on account of treaties between Princes and Kingdoms; on account of lawsuits concerning succession to goods; on account of a dowry involved in lawsuits; on account of lawsuits concerning matters of great moment; for a female petitioner burdened with children, or bereft of parents; for a female petitioner exceeding the twenty-fourth year of age; on account of the difficulty of men going to the place, for contracting with inhabitants of the place; on account of the small number of men, for example by reason of war; on account of the Catholic religion of the contracting party being placed in safety, and the danger of a mixed marriage; on account of the hope of conversion of the other party to the Catholic religion; that goods may be preserved in the family; for the preservation of an illustrious family; for the preservation of the royal stock; on account of excellence of merits; on account of preserving the honor of familiars; on account of infamy and scandal; on account of intercourse; on account of abduction; on account of civil marriage; on account of marriage before a Protestant minister; on account of a marriage nullly contracted; from certain rational causes, namely on account of a more abundant composition in degrees somewhat remote; or in more remote degrees on account of a cause of public good moving the mind of the Pontiff; from certain special rational causes, moving the minds of the Petitioners and set forth to His Holiness, namely on account of intercourse or dishonorable acts, which, on account of the honor of the Petitioners, their quality having been considered, it is not expedient to explain.

³ That is, both of the place of origin and of the place of domicile.

⁴ That is, if she were forced to marry outside the place of domicile, the dowry which she has would not be competent or sufficient.

⁵ Namely, the male petitioner intends to increase the insufficient dowry of the female petitioner.

1064. The S. Penitentiary and the other Congregations have already for a long time admitted many canonical reasons, but especially sixteen, which the Instruction of the S. C. de Prop. Fide¹, May 9, 1877, enumerates thus:

¹ Ap. Collect. P. F., n. 1482; Gasparri, n. 333 sq. - These causes do not substantially differ from those which the Dataria recently admitted, and therefore the explanations which we add hold good for each.

"1° Narrowness of place, whether absolute or relative (only by reason of the female petitioner), namely when in the place of origin or even of domicile the kinship of the woman has been so propagated that she cannot find another of equal condition whom she may marry, unless a blood relative or affine; but to leave the fatherland would be hard for her."

Concerning this we observe: according to the S. Congreg. of the Council, December 16, 1876, narrowness of place is not to be taken from the number of hearths of each parish, but from the number of hearths of the whole city or town, or of places which are not distant more than a mile (1500 meters); and, according to the Dataria, August 30, 1847, a place is called narrow when it does not exceed three hundred hearths, that is, about one thousand five hundred inhabitants, heretics, schismatics, and infidels being removed, but not the impious and unbelievers. - The reason why a dispensation is granted is because otherwise the female petitioner would have either to remain unmarried, or to marry a man of unequal condition, or to depart from the fatherland; these three are grave inconveniences. That the cause may be true, the female petitioner must be of an honorable family; otherwise she could find a man of equal condition. The cause is considered present, even if previously certain young men of equal condition had asked for her as wife, provided none can now be found.

1065. "2° The over-adult age of the woman, namely if, having already passed the twenty-fourth year of age, she has not found a man of equal condition whom she can marry. But this cause by no means favors a widow who desires to fly to other nuptials."

A man of equal condition is said, that is, equal in birth, wealth, character, and not unequal in age, religion, or morals, who is acceptable to the woman and her parents. - For the validity of the dispensation it is enough that there be certainty concerning over-adult age, nor is it necessary, in the verification of the cause, to inquire and prove that the woman up to that age did not find a man of equal condition².

² Thus the S. Penitentiary, April 5, 1902, ap. Acta S. Sedis, XXXV, 44.

1066. "3° Deficiency or incompetence of dowry, namely if the woman does not actually have so great a dowry that she can marry, in her own place in which she dwells, an outsider of equal condition, namely one who is neither blood relative nor affine. This cause urges more if the woman is altogether undowered, and a blood relative or affine is prepared to marry her; or even is prepared suitably to dower her entirely."

This reason exists even if the female petitioner is going to have a dowry after the death of her parents, provided these are unwilling or unable to dower her now; indeed even if there is certain hope that someone wishes to dower her, if the female petitioner does not have the right of forcing him to this; or even when she has already renounced the dowry, provided she did not do this for obtaining the dispensation.

"4° Lawsuits concerning succession to goods already arisen, or a grave or imminent danger of the same. If a woman sustains a grave lawsuit concerning succession to goods of great moment, and there is no other who would take upon himself a lawsuit of this kind and prosecute it at his own expense, besides him who desires to take her as wife, a dispensation is usually granted; for it is of interest to the commonwealth that lawsuits be extinguished. - Hence another cause closely approaches, namely a dowry involved in lawsuits, when, that is, the woman is destitute of another man by whose aid she may be able to recover her goods. But a cause of this kind suffices only for the more remote degrees."

"5° Poverty of a widow, who is burdened with numerous offspring, and a man promises to support her. But sometimes by the remedy of dispensation assistance is given to a widow only for this cause, that she is younger and is in danger of incontinence."

1067. "6° The good of peace, under which name come not only treaties between Kingdoms and Princes, but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is adduced either for extinguishing grave enmities which have arisen between the blood relatives or affines of the contracting parties, and which would be entirely settled by the celebration of the marriage, or when grave enmities have prevailed between the blood relatives and affines of the contracting parties, and although peace has already been entered into between them, nevertheless the celebration of the marriage would be of the greatest service for the confirmation of that peace."

This cause is that which is called by the Dataria "on account of enmities," and supposes two things: that the enmities have arisen from some other source than from the cause of the marriage, and that there is a founded hope of extinguishing them by the desired nuptials.

1068. "7° Excessive, suspect, dangerous familiarity, and also cohabitation under the same roof, which cannot easily be prevented."

The reason for this is that scandal may be avoided; hence it is necessary that the familiarity or cohabitation have given origin to a suspicion concerning foul carnal commerce. To this cause can be referred other things which likewise may be able to furnish scandal, such as disordered love and danger of life, when the parents of the girl threaten death to a man unless he marry her whom they suspect him to have known carnally.

"8° Intercourse previously had with a blood relative or affine or another person laboring under an impediment, and pregnancy, and therefore the legitimation of offspring, namely that provision may be made for the good of the offspring itself and for the honor of the woman, who otherwise would remain unmarried. This indeed is one of the more urgent causes, on account of which dispensation is usually given even to common people."

Since this cause is admitted on account of avoiding scandals, the intercourse must be notorious or about to be divulged very soon. If it is occult, it can be alleged for confirming the danger of incontinence or of scandal. - Formerly the clause was added: provided the intercourse was not perpetrated under hope of an easier dispensation; but this was removed by decree of the Holy Office¹, June 25, 1885.

¹ Ap. Collect. P. F., n. 1246.

"9° Infamy of the woman arising from the suspicion that she, too familiar with her blood relative or affine, has been known by him, even if the suspicion is false, namely when, unless the marriage is contracted, the woman would remain gravely defamed or unmarried, or would have to marry a man of unequal condition, or grave damages would arise."

"10° Revalidation of a marriage which has been contracted in good faith and publicly, with the Tridentine form preserved: because its dissolution can scarcely be made without public scandal and grave damage especially to the woman, cap. 7 de consanguin. But if the spouses entered nuptials in bad faith, they by no means merit the grace of dispensation, as the Council of Trent disposes, sess. XXIV, cap. 5 de Ref. Matr."

Today, however, this last restriction is no longer in force, and, in order to avoid worse evils, dispensation is given even in the case of bad faith on the part of both parties, especially if offspring has already been born, or a civil marriage contracted.

1069. "11° Danger of celebrating a mixed marriage or one before a non-Catholic minister. When there is danger that those wishing to contract marriage in some degree, even one of the greater degrees, because of the denial of dispensation, would approach a non-Catholic minister for celebrating the nuptials, with contempt for the authority of the Church, a just cause of dispensing is found; because there is present not only a very grave scandal of the faithful, but also fear of perversion and defection from the faith in those so acting and contemning the impediments of marriage, especially in regions where heresies rage with impunity... The same must be said concerning the danger that the Catholic party should dare to celebrate marriage with a non-Catholic."

"12° Danger of incestuous concubinage..., lest someone become filthy in concubinage with public scandal and evident peril of eternal salvation..."

"13° Danger of civil marriage. From what has been said it follows that the probable danger that those who seek dispensation, if it is not obtained, are going to celebrate only a civil marriage, as they say, is a legitimate cause of dispensing."

"14° Removal of grave scandals."

"15° Cessation of public concubinage."

"16° Excellence of merits, when someone has deserved exceedingly well of religion, either by battle against the enemies of the Catholic faith, or by liberality toward the Church, or by doctrine, virtue, or in some other way."

1070. There are also other causes on account of which the S. Penitentiary and the S. C. de Prop. Fide grant dispensations, e.g., if the nuptials bring a special utility, such as immunity from military service; or between the petitioners there is a special equality of condition and disposition; or the male petitioner is present at Rome and has made sacramental confession there; or the spouses, ignorant of the impediment, have prepared all things for the nuptials; or through the marriage an illustrious family is preserved; or the parents greatly desire the nuptials. But the Penitentiary does not admit for the external forum the cause without cause, or a more abundant alms, but then refers the petitioners to the competent Congregation.

1071. Corollary. The cause on account of which a dispensation is given must be true at the time when the dispensation is fulminated, or is committed to execution; otherwise it would be granted without cause, and consequently illicitly and invalidly.

(a) But since today Papal dispensations are given only in commissory form, strictly speaking it is not necessary that the cause of dispensation be true¹ at the time when the Supreme Pontiff grants the letters of dispensation, but only at the time of execution; for the Supreme Pontiff does not weigh the truth of the causes, nor does he properly dispense, but constitutes the executor (the Bishop, or confessor) as judge, that he may see whether the causes are true, and, once the truth of the causes has been posited, fulminate the dispensation¹. - But if the dispensation is granted in gracious form by the Bishop, the cause must be true also at the time of the concession.

¹ Bad faith, however, being excluded, as will be said below.

¹ Thus Santi, lib. IV, Append., n. 34, after Pyr. Corradum, lib. VII, c. 6, n. 25.

(b) Nor is it required, according to the common and safe opinion, that the cause be true at the time when the marriage is celebrated; e.g., if a woman who obtained a dispensation on account of incompetence of dowry, after the dispensation has been fulminated and before the marriage, has become rich, she contracts validly; for the impediment, already removed by dispensation, does not revive.

1072. I. To whom does it belong to seek the dispensation? (A) Regularly to the contracting parties themselves who need the dispensation; but since for the most part they are unfit to perform this, generally the petition is made by the pastor or confessor of the petitioners.

² P. Corradus, lib. VII-VIII; St. Alphonsus, n. 1131-1141; Carriere, n. 1126-1159; Ball. P., n. 945-954, ed. 3; Feije, n. 686-730; Gasparri, n. 350-362; Santi, lib. IV, Append., n. 33-45; Brillaud, n. 174-199; Planchard, n. 86-149; Zitelli, p. 67-74.

(a) If the impediment is public, the petition is made by the pastor, in the name of the petitioners. If the parties about to marry are of diverse parishes, the dispensation can be requested by the pastor of either one; but it is expedient that it be sought from the pastor of the place where the marriage is celebrated, regularly, namely, from the pastor of the bride. If, however, it is a question of a mixed marriage, the petition must be made by the pastor of the Catholic party.

(b) If the impediment is occult, the petition is made by the confessor. When the impediment affects only one of the contracting parties, one petition suffices; but when it affects two contracting parties (e.g., spouse-murder with both plotting it), a double petition is to be made by the confessor of each penitent, unless the confessor of both is the same.

(c) If there is a double impediment, one public and the other occult, a double petition must be made: one for the public impediment, with the names of the petitioners; another for the occult one, with the names suppressed, so that thus provision may be made for the seal of the sacrament and the reputation of the parties: the former is to be sent to the Congregation of the Sacraments or the Holy Office, etc.; the latter to the Penitentiary, noting that the petitioners, bound by another public impediment, have obtained or have sought a dispensation concerning it¹.

¹ That provision may be made for the reputation of the petitioners, there ought to be two officials in the Episcopal Curia, one for public impediments, the other for occult impediments; for, if the same official receives each supplicatory petition, he can easily know the names of the petitioners who have sought a dispensation for an occult impediment. Since in most dioceses of North America there is only one official, it is expedient to have recourse, for occult impediments, to the Holy See or to the Apostolic Delegate.

(B) Although the petition can be made orally, it is made better and more safely in writing. In practice the Roman Congregations admit only written petitions. By command of Leo XIII, December 10, 1891, dispensations ordinarily ought not to be sought telegraphically, on account of the inconveniences which can easily occur from this way of acting; the same rule ought to be observed in Episcopal curias.

(C) When a composition or tax is required for obtaining a dispensation, it is expedient that the pastor or confessor not send the supplicatory libellus unless the expenses have first been paid; otherwise he himself could be held to paying them. But if the petitioners are so poor that they can give no money, this should be set forth in the supplicatory libellus itself, so that the dispensation may be granted gratis.

1073. II. From whom must the dispensation be obtained? From the Bishop, or from the Holy See, or from an Apostolic Delegate.

(A) Formerly most Bishops, especially in remote regions, were accustomed to obtain very broad faculties from the Holy See; therefore for many impediments recourse could be had directly to the Bishop or his Chancellor, and indeed by a letter written in the Latin or vernacular idiom.

(B) When it is a question of an impediment in which the Bishop cannot dispense, recourse is to be had to the Roman Congregations, namely the S. Congregation of the Sacraments, the Penitentiary, the Holy Office, etc., according to the principles set forth above (n. 1042 sq.).

1074. When recourse is made to the Congregation of the Sacraments or to the Holy Office, this or a similar formula can be employed: -

Beneventan. (i.e., the name of the diocese of the petitioner)

Most Blessed Father,

It is humbly set forth to Your Holiness, on the part of those devoted
petitioners Alphridus Santangelo, man, and Maria Loiacono, woman, of
the Beneventan diocese, that, since the said woman, in the place from
which she and the aforesaid Petitioner have arisen, existing in the
said diocese, on account of the narrowness of that place, cannot find
a man of equal condition whom she can marry, and since the said
female Petitioner exists burdened with five children begotten from
another man, and the said male Petitioner intends to take her as wife
and to support and govern her said children; therefore the aforesaid
Petitioners desire to be joined to each other matrimonially. But ...
(Here is set forth the special impediment prevailing between the
petitioners)

......................................................................
......................................................................
......................................................................

Therefore the aforesaid Petitioners humbly supplicate Your Holiness,
that with the same Petitioners, as regards the impediment
....................................................... arising from
the premises, and with other things perhaps withheld in good faith, and
all other contrary things whatsoever notwithstanding, that they may be
able freely and licitly to contract marriage publicly between
themselves, the form of the Council of Trent being observed, you may
deign to dispense, of special grace, with suitable clauses.

1075. When recourse is had to the S. Penitentiary, the supplication is addressed to the Major Penitentiary¹, and can be written in Latin, or also in the vernacular idiom.

¹ To the Most Eminent Cardinal Major Penitentiary, Palazzo della Cancellaria, Rome, Italy.

Most Eminent Prince,2

Titius ... (Here the impediment is set forth, and afterward the reason
on account of which the dispensation is sought)

......................................................................
......................................................................
......................................................................

Wherefore Titius as suppliant asks Your Eminence that you may deign
kindly to grant a dispensation in the aforesaid impediment.

May it please Your Eminence to direct the letters to me, the undersigned
confessor.

Most humble Servant
                                            N. N.

² We take this formula from the work of Zitelli, p. 198.

There should be expressed there the name and surname of the confessor, the name of the town or city, in the common idiom.

Another specimen of the supplicatory libellus is recommended by the Penitentiary itself³, for a public impediment, when the petitioners are poor; and indeed it is commendable for its brevity and clarity: -

³ Ap. Acta S. Sedis, p. 61.

Most Blessed Father,

N. N., born .......... years ..........................................
and N. N., born .......... years ......................................
of the diocese N. .................., prostrate at the feet of Your
Holiness, humbly request a dispensation concerning the impediment
......................................................................
......................................................................
that they may be able to contract a legitimate marriage between
themselves.

The causes are: 1. Age of the female petitioner.
                2. Defect of dowry.
                3. Narrowness of place.
                4. Care of offspring received from a previous marriage,
                   etc.

The petitioners are poor ..............................................

We testify that the things set forth are true and we commend the
petitioners for the grace.

Given .................................................................

1076. The S. C. de Prop. Fide has published printed formulas, with empty spaces in which those things can be written which are special to each case¹; we subjoin one for the sake of a specimen: -

¹ These formulas are to be found apud Putzer, n. 96. - The petition is directed to the Most Eminent Cardinal Prefect of the S. C. de Prop. Fide, Propaganda, Rome, Italy.

Most Blessed Father,

The petitioners ......................................................
humbly ask from Your Holiness a dispensation concerning the impediment
.2.....................................................................
that they may be able to contract marriage between themselves.

The causes are3 ........................................................
and incest had between the same Petitioners ...........................

² For example: concerning the impediment of consanguinity in the second equal degree of the collateral line, by which they are bound, from the fact that both descend from a common stock, as is clear from the following stemma (here let the genealogical tree be given).

³ E.g., the age of the female petitioner, who has already reached the 25th year, and has found no other man of equal condition who wishes to marry her.

Letters to the S. C. de Prop. Fide can be written directly in the Latin, French, or Italian language.

Sometimes recourse can also be had to Apostolic Delegates, who have obtained from the Holy See the faculty of dispensing⁴.

⁴ In the United States of America, the Apostolic Delegate enjoys the same Faculties as the Bishops themselves; letters can be directed to him in this way: - His Excellency Most Rev. N. N., 201, I Street, N. W. Washington, D. C.

When a pastor or confessor writes to the Roman Congregations, it is more advisable to send the letters through the Episcopal Chancery, unless there is danger of violating the sacramental seal or of defaming the petitioners: for the petition will be set forth better and more clearly by an official accustomed to these affairs. Besides, for a public impediment petitions are not admitted unless furnished with the Episcopal seal.

1077. III. On those things which must be expressed in the supplicatory libellus. These have been declared in the cited Instr. of the S. C. de Prop. Fide, whose words it is helpful to report and explain: -

"1° The name and surname of the petitioners, each to be written distinctly and neatly and without any abbreviation of letters."

This indeed holds for public impediments; for when writing to the S. Penitentiary for an occult impediment, the names of the petitioners are suppressed, and in their place N. or Titius is put. - If one party is not Catholic, this must be expressed. - A substantial error in the name or surname probably invalidates the dispensation (e.g., Peter in place of Paul); probably, however, according to some, the rescript is not vitiated, provided that there is certainty concerning the identity of the petitioner; in practice, the style of the curia requires revalidation. But if the error is very small (e.g., Antonius for Antoninus), the dispensation is certainly valid.

"2° Diocese of origin or of actual domicile. When the petitioners have domicile outside the diocese of origin, they can, if they wish, ask that the dispensation be sent to the Ordinary of the diocese in which they now dwell."

If it is a question of an occult impediment, no mention is made of the diocese, but the confessor writes his own name and the name of the place to which the response must be directed, in the vernacular language and in clear characters. - Since there are in diverse regions several dioceses which are called by the same or almost similar name, it is expedient to add the name of the kingdom or State to which the diocese belongs. - A substantial error in the name of the diocese, e.g. (Bostoniensis in place of Baltimorensis), would vitiate the rescript, but not an error in the name of the parish, unless the dispensation was given on account of narrowness of place.

1078. "3° Also the lowest species of the impediment, whether it is consanguinity or affinity arising from licit intercourse ... public honesty deriving its origin from a ratified marriage; in the impediment of crime, whether it has proceeded from spouse-murder with a promise of marriage, or from spouse-murder with adultery, or from adultery alone with a promise of marriage; in spiritual relationship, whether it is between the one lifting and the one lifted."

An error in the species of the impediment renders the dispensation void. If it has been set forth that the impediment is doubtful, while in reality it is certain, some think the dispensation is invalid; but much more probably it is valid, for from the fact that it is given, it carries with itself the tacit condition: if the impediment is present.

1079. "4° The degree of consanguinity or affinity, or of public honesty from a ratified marriage, and whether it is simple or mixed, not only the more remote but also the nearer; and likewise the line, whether it is direct or transverse; likewise whether the petitioners are joined by a double bond of consanguinity, as much on the father's side as on the mother's side."

(a) The degree not only more remote but also nearer; if in a petition for the nearer degree the more remote is put, the dispensation is invalid, since dispensation is made with greater difficulty from the nearer than from the more remote.

But if the degrees are unequal, it does not seem altogether necessary to set forth the nearer, unless it is a question of the nearer degree of the first degree. - Indeed, whenever the first degree is touched, it is necessary to express, for liceity, not for validity, whether a nephew wishes to marry an aunt, or a maternal uncle a niece. Besides, by command of Leo XIII, June 19, 1895¹, for an impediment of the first degree touching the second degree of consanguinity, Bishops are to "explain the reasons in each case in letters written by their own hand." - If someone wishes to marry the widow of his deceased brother, he must set forth whether she had offspring from the deceased man.

¹ Ap. Acta S. Sedis, XXXIV, p. 34.

(b) Nevertheless a dispensation granted in some degree is valid, although in the petition, or in the concession, an error concerning the degree has crept in, provided the degree really existing is lower, or although another impediment of the same species in an equal or lower degree has been withheld. (Codex, c. 1052.)

(c) As regards the line, it must be expressed whether it is direct or oblique; but if this is omitted in consanguinity, the oblique is understood, since dispensation is not granted in the direct.

1080. "5° Number of impediments, e.g., if there is double or multiple consanguinity or affinity, or if, besides relationship, there is also affinity, or any other impediment whatsoever, whether diriment or impedient."

(a) Therefore, if there is present an impedient impediment of vow, betrothals, mixed religion, etc., it must be expressed at least for liceity; indeed for validity, when the dispensation is sought from the Penitentiary, since it is accustomed to add this clause: provided that between them there exists no other canonical impediment.

(b) If there are several impediments, all must be expressed in the same supplicatory libellus; for when several are found at the same time, dispensation is granted with greater difficulty. Nor is it valid to have recourse to the Bishop for one impediment, but to the Holy See for another; an exception is given when a public and an occult impediment are found at the same time, as was explained above (n. 1072). - Therefore, if, after a dispensation has been obtained, a new impediment is detected which already existed at the time of the petition, the dispensation is null.

When it is seriously feared lest, besides the impediments expressed, another unknown one be found in the case, it is helpful to set this forth; for recently the Roman Congregations, at the request of Officials, have granted a dispensation not only in impediments explicitly manifested, but in others, if there are any in the case in which the Holy See is accustomed to dispense.

(c) He who has obtained a dispensation concerning the crime of spouse-murder, and afterward, the crime having been repeated, needs a new one, must make mention of the prior crime, since on account of this the dispensation is granted with greater difficulty.

1081. "6° Various circumstances, namely whether the marriage is to be contracted or has been contracted; if already contracted, it must be disclosed whether in good faith, at least on the part of one, or with knowledge of the impediment; likewise whether after the banns had been premised; (or whether under hope of more easily obtaining a dispensation)¹; finally whether it has been consummated, if there is bad faith at least of one party, or with knowledge of the impediment."

¹ This indeed is no longer required, from the declaration of the Holy Office, June 25, 1885, ap. Collect. P. F., n. 1495.

Trent had indeed prohibited² a dispensation from being granted when a marriage had been attempted, and a fortiori consummated, with knowledge of the impediment: today, however, dispensation is granted, but these circumstances must be expressed; otherwise the dispensation would be subreptitious.

² Sess. XXIV, cap. 5 de Reformat. Matrim.

Formerly likewise incestuous intercourse had between the spouses before the execution of the dispensation had to be expressed, even when the intercourse was not the cause of dispensing; but this obligation was abrogated by the cited decree of the Holy Office, June 25, 1885¹.

¹ If, however, someone wishes to obtain the legitimation of offspring received from incest, intercourse must be declared for this effect.

1082. N. B. When the Bishop dispenses by force of an indult, he must follow the aforesaid rules, because he acts as the delegate of the Pontiff, and therefore cannot dispense except in the way in which the Pontiff dispenses. But if he dispenses by ordinary or quasi-ordinary right, he must indeed observe those things which pertain to the substance of the dispensation, but not necessarily those which regard the style of the Curia.

1083. IV. On the defects of dispensations and their sanation. 1° A dispensation can be invalid on account of extrinsic causes, e.g., defect of power in the one granting it, defect of the customary form, erasure of letters in the dispositive part of the rescript, and other things which are explained by Canonists where they treat of Rescripts; or on account of intrinsic causes, namely obreption and subreption.

Obreption is the expression of what is false in the supplicatory libellus, while subreption is the suppression of what is true and ought to have been set forth. Some, however, take these two words promiscuously.

Now if it is a question of lesser impediments, dispensations, by the new law, will be valid, notwithstanding obreption or subreption (can. 1054). Lesser impediments are: 1) Consanguinity in the third degree of the collateral line; 2) Affinity in the second degree of the collateral line; 3) Public honesty in the second degree; 4) Spiritual relationship; 5) Crime from adultery with promise or attempted marriage, even through only a civil act (can. 1042).

As regards greater impediments, a distinction must be made:

(a) the dispensation is valid if the error turns only upon the impulsive cause, provided the final cause proposed is true; (b) on the contrary it is invalid if the error turns upon the final cause which alone has been alleged; for it is granted under the condition: if the things set forth are true; (c) but if several final causes have been alleged, and only one is found false, the dispensation is valid, because the others are sufficient for moving the Superior; (d) if only impulsive causes have been proposed, and one of them is not true, the dispensation is not valid, if the remaining causes would not have been sufficient for obtaining the rescript; (e) in doubt whether the cause falsely alleged is final or impulsive, the dispensation can be held as valid, because in doubt one must stand for the value of the act; (f) the dispensation is not valid if, in the petition, those things which by the style of the Curia must be expressed for validity have not been expressed. (Can. 42.)

A slight exaggeration does not invalidate the dispensation, although it is much more advisable to set forth the matter candidly as it is. - If in the rescript itself there is read the clause "by our own motion, from certain knowledge," the defect is removed, provided that the error occurs not in the rescript but only in the petition.

1084. 2° The defect of obreption or subreption can be sanated by letters perinde valere or by a reforming decree: (a) if it is detected after the rescript has been dispatched, the petitioners in a new supplication must set forth the tenor of the prior concession, detect the defect, and humbly beseech that the Holy See may deign to revalidate the prior grace; then letters perinde valere are dispatched, i.e., by which the prior dispensation has the same force as if it had not been vitiated; but if a new defect is detected, a new grace will be needed, which is called perinde valere super perinde valere.

(b) When the rescript of dispensation has not been dispatched, the defect can be repaired through a reforming decree; for this it suffices that a new supplication be written, in which what had been omitted is supplied, or what was badly expressed is corrected; whence it is not necessary that the things already set forth be repeated, because the double supplication will be proposed at the same time to the Supreme Pontiff.

We shall speak both of the execution itself, and of the clauses of dispensations.

I. On the Execution Itself of Dispensations.

1085. Preliminary notes. One must carefully distinguish between dispensations in gracious form and in commissory form: (a) the former are already granted by the Superior, and therefore are valid without fulmination; it suffices that the dispensation be made known to the petitioners and that the clauses be observed; (b) the latter have not yet been granted, but contain only the faculty of dispensing, so that they are not valid unless first they are fulminated by the executor, after previous information concerning the truth of the petitions and the clauses having been observed.

1086. 1° On a dispensation granted by the Holy See. Today this is always granted in commissory form.

(A) "Dispensations concerning public impediments committed to the Ordinary of the petitioners are to be executed by the Ordinary who gave the testimonial letters or transmitted the petitions to the Apostolic See, even if the spouses, at the time when the dispensation is to be given to execution, having left the domicile or quasi-domicile of that diocese, have departed into another diocese, not to return any more, yet the Ordinary of the place in which they wish to contract marriage having been informed."¹ These things, however, must be observed:

¹ Can. 1055. - Cf. can. 198.

(a) A fulmination made before the original rescript has been received would be invalid, even if by another way it were certainly known that the dispensation had been granted; whence, if this becomes known by telegraph, the same cannot be used validly and licitly, unless the telegraphic notice has been transmitted officially by the authority of the Holy See². Therefore, after the authentic document has been received, a new execution of the dispensation is necessary; if the marriage has already been contracted, it must be revalidated.

² Code, c. 53: "The executor of a rescript invalidly performs his office before he has received the letters and recognized their authenticity and integrity, unless previous notice of the same has been transmitted to him by the authority of the one rescripting."

(b) The rescript must be recognized as genuine and authentic.

(c) Afterward it must be investigated whether the petitions rest upon truth, since one of the clauses is "if the things set forth are true." The Ordinary, however, can delegate another, generally the pastor, to carry out this investigation. A judicial form is not required, unless this is expressly prescribed in the rescript, or there is a contradictor; but the investigation can be completed from authentic acts, witnesses, reputation, or examination of the parties.

(d) The executor must attentively read all the clauses inserted in the rescript, and take care that they are faithfully fulfilled. "Clauses which likewise pertain to the substance of the dispensation are expressed in the Formulas by the conditional particle if, or another similar one."³ The same must be said of the particles provided that, after, not otherwise, if not in another way, otherwise let it be void; or of conditions expressed through the ablative absolute, unless nevertheless it is clear from elsewhere, from the very nature of the matter or from the style of the Curia, that these are required only for liceity.

³ Dataria, Acta S. Sedis, XXXIV, 34.

(e) The fulmination of the dispensation must be made in writing, certainly for liceity, probably also for validity. The Ordinary, namely, must declare that he, having received the rescript, has verified the truth of the petitions, and by apostolic authority dispenses concerning such impediment, so that the spouses may be able to contract validly and licitly, and legitimates offspring received (adulterine offspring excepted) and to be received; then he signs his name. The dispensation is valid at that moment at which the decree is signed, with the acceptance of the petitioners acceding, whether explicit or implicit. - Besides, if the spouses perhaps have incurred censures, let them be absolved from them before they are dispensed, for each forum, and this for validity if it is a question of those bound by a censure through a condemnatory or declaratory sentence. (Can. 2265, 2275, 2283.)

¹ Normae peculiares, c. III, n. 6; Codex, c. 36, § 2.

(f) Finally, the dispensation is carefully preserved in the diocesan archives, and its fulmination is transmitted to the pastor of the petitioners, who makes this known to them and notes in the registers the acceptance of the dispensation².

² Code, cc. 1046, 1103.

1087. (B) When a dispensation is granted by the S. Penitentiary for the internal forum, it is transmitted for execution "to a discreet man, a confessor from those approved by the Ordinary." Those things which were said above concerning the reception and recognition of the rescript, and also concerning the clauses, must be observed; but besides:

(a) Generally the Penitentiary prescribes that the dispensation be fulminated in the very act of confession, "his confession having first been heard," or "only in the act of confession"; if this clause is absent, it can be fulminated even outside confession. This or a similar formula can be employed: "By Apostolic authority specially delegated to me³, I dispense with you concerning the impediment (e.g., of crime from adultery and spouse-murder), so that, the aforesaid impediment notwithstanding, you may be able to contract marriage validly and licitly, and by the same authority I declare offspring received and to be received legitimate."

³ Code, c. 1057.

(b) The fulmination of the dispensation is completed by living voice; nevertheless the confessor can read the written formula; but he must not hand over the authentic document to the penitent, but must tear it up or burn it, at least within three days, under penalty of excommunication latae sententiae.

(c) The investigation concerning the truth of the petitions is required only for liceity: since the penitents themselves must be believed, unless the confessor knows the contrary from elsewhere, by extra-sacramental knowledge.

(d) If the impediment affects only one party, as a vow, or is culpable in only one party, as crime, it suffices to fulminate the dispensation upon that party. But if it is common to both, and each spouse is guilty and conscious of the crime, the fulmination must be made upon each, either by the same confessor or by a different one; in the latter case, the first confessor, after the dispensation has been granted to one, hands over the rescript to the same, that it may be given to the other party: but the latter will present the rescript to his own confessor, who, after the dispensation has been fulminated, will destroy it.

(e) If a double dispensation is necessary, one for a public impediment, the other for an occult one, first that which regards the public impediment must be fulminated.

1088. 2° On a dispensation granted by the Bishop. (A) If it is a question of a public impediment, generally the dispensation is granted in gracious form, and therefore is fulminated by the Bishop or diocesan official; whence the marriage would already be valid from the time of the concession, even if knowledge of it had not reached the ears of the pastor; but it is illicit to contract before notice has been received, lest perchance they contract invalidly before fulmination. If the matter were altogether urgent, notice of the fulmination could be sent telegraphically. - But once the authentic instrument has been received, the pastor makes it known to the spouses, and inserts and preserves it in the Register of marriages.

The Bishop can, however, use faculties which are communicable in commissory form: then the pastor himself is bound to fulminate the dispensation, as is done in Pontifical dispensations.

(B) When it is a question of an occult impediment, generally the Bishop dispenses in commissory form, whenever he can subdelegate: in which case the dispensation must be fulminated by the confessor himself, with the clauses carefully observed. If the question is about impediments for which the Bishop cannot subdelegate an ordinary confessor, he must dispense in gracious form, and therefore fulminate the dispensation; then the confessor, having received the instrument, has nothing further to do except make it known to the parties and commit the clauses to execution. - But the instrument is to be destroyed, as above.

II. On the Principal Clauses Annexed to Dispensations.

1089. That clauses of this kind may be more easily observed, it is helpful to explain them briefly.

1° "Absolving each of them from any ecclesiastical censures whatsoever for the effect of obtaining the present things"; by these words the petitioners are absolved from censures perhaps contracted, but only so that they may validly receive the dispensation; whence they need another absolution so that, for other effects, they may be truly immune from censures.

2° "If the things set forth are true"¹; according to the declaration of the Dataria, this clause "is referred, as regards validity, to the persons to be dispensed, to the impediment to be dispensed, to the motive cause of the dispensation, to the various clauses, to other things which might perhaps obstruct the marriage."¹

¹ Formerly this clause was added: "If through the same information you have found that the petitions rest upon truth," and therefore the dispensation was invalid if no information was made, even if the petitions rested upon truth; today, however, from the decree of the Holy Office, August 28, 1888, there is added only "If the things set forth are true," and therefore the dispensation is valid even without any information, provided the things set forth are true.

¹ Apud Acta S. Sedis, XXXIV, p. 83.

3° "You shall have presumed in no way to demand anything of gift or reward or to receive what is offered"; or "of dispensing gratis"; that is, let no money, no gift be received, except the tax of the chancery, the composition or alms, and the expenses of the agent.

4° "Decreeing the offspring received legitimate." Hence, if perhaps the dispensation cannot obtain its effect on account of the supervening death of one of the Petitioners, nevertheless the power of legitimating offspring will have force. Wherefore the dispensation and legitimation must be expressed in the decree of the Ordinary; if this has been omitted, legitimation of this kind can be made by another decree. The offspring is decreed legitimate simply, and therefore as regards all the effects of legitimation. - It is also said: "Decreeing offspring received, if there is any, and insofar as there is need, legitimate." If indeed the marriage is invalid but contracted ignorantly, publicly, and in legitimate form, legitimation would not be necessary; whence it is done as a precaution, to remove the murmuring of the ignorant².

² Ibid., p. 82.

5° "Scandal being removed, insofar as it is present, especially through separation for a time well seen by you, if it can be done." Scandal indeed must be removed, and often the separation of the spouses must be preferred to other ways; nevertheless the manner of repairing the scandal is left to the prudent judgment of the Ordinary³.

³ Thus the S. Penitentiary, April 12, 1889, ap. Acta S. Sedis, XXVI, p. 509.

6° "A grave salutary penance having been imposed upon them according to the measure of the fault, at your judgment." This penance is distinct from sacramental penance and must be grave, e.g., confession once a month for six months, recitation of the rosary twice or three times in a week for three months, performing the way of the cross once a week for four months; if a grave and long-lasting one is enjoined, it must be carried out for at least one year; if a most grave and perpetual one, even until death. Besides, the S. Penitentiary declared, April 8, 1890, that "neither the limits of severity nor of humanity are to be exceeded, and account must be taken of condition, age, infirmity, office, sex, etc."⁴ It likewise rescripted, December 14, 1891, that the omission of a penance imposed for dispensations does not render them invalid⁵; indeed, that they are not invalidated even if the penance was accepted with the intention of not fulfilling it⁶.

⁴ Ap. Acta S. Sedis, XXVI, p. 510.

⁵ Ibid., XXXI, p. 556.

⁶ Ibid., XXXI, p. 557.

7° "Some alms having been disbursed by them, to be taxed by the judgment of the Ordinary himself." The observance of this clause is not required for validity¹. Nor is it necessary, for liceity, that the alms be disbursed before the fulmination of the dispensation, but it suffices that the spouses promise to give it; indeed, if they are poor, or are unwilling to pay anything, this can be omitted, according to the prudence of the Ordinary.

¹ S. Penit., June 10, 1876, Acta S. Sedis, XXVI, p. 514.

8° "His or their confession having first been heard." This condition is satisfied through confession, even sacrilegious confession, provided it is sacramental. If it is foreseen that one of the parties is unwilling to confess, this should be stated in the supplicatory libellus, so that this clause may not be inserted.

Division.

² St. Alphonsus, n. 1109-1117; Carriere, n. 1379-1464; Ball. P., n. 892-909, ed. 3; Lehmk., n. 823-832; Planchard, n. 553-588; Feije, n. 759-779; Zitelli, p. 113-118; Haine, q. 161-163; Gasparri, II, n. 1120-1161; Genicot, n. 534-542; N. Rousseau, n. 128-138.

On Revalidation in General.

On Simple Revalidation.

On Revalidation through Sanation in the Root.

Revalidation is the act by which a marriage hitherto null is rendered valid.

1090. 1° On the manner of acting when a priest notices that a marriage is invalid. There can be four remedies:

(A) The putative spouses can be warned concerning the impediment, and it can be tolerated that they live as brother and sister, if there is no danger of incontinence; which is scarcely possible in practice when they are younger, unless they are impotent, or truly brother and sister, or father and daughter, who contracted from error.

(B) They can be left in good faith, if the impediment is indispensable, and the nullity occult, and otherwise it cannot be manifested without danger of formal fornication, or the parties cannot be separated without infamy or scandal³.

³ Gasparri, n. 1121, note 2, relates a case for illustrating the matter. Titius had relations with a mother, unknowingly indeed on the part of Titius, but not on the part of the mother, who bore a daughter: she was educated outside the maternal home, and at the age of 17 was taken as wife by Titius, her father and brother at the same time. The mother discloses all things to the confessor; he, the Bishop having been consulted, left the putative spouses in good faith, lest the mother's foulness be revealed.

(C) When the parties cannot or at least do not wish to cohabit peacefully, or when danger to faith or morals is present, a declaration of nullity can be sought from the ecclesiastical judge, if this can be juridically proved.

(D) Finally the marriage can be revalidated, if the impediment is dispensable; and this generally is more advisable both for avoiding scandals and for providing for the education of the offspring.

1091. 2° On whether the separation of the putative spouses is to be enjoined or not, before the revalidation of the marriage. One must proceed with the greatest prudence, lest scandal be caused, or the putative spouses be exposed to formal danger of sinning.

(A) If the nullity of the marriage is publicly known, e.g., because the marriage was clandestine where Tametsi has been promulgated, or because the community knows the spouses to be blood relatives: (a) regularly the parties must be separated, not only as regards bed, but also as regards dwelling, so that scandal may be avoided or repaired. But if separation as regards dwelling is not possible, e.g., on account of the poverty of the parties, scandal is to be removed in the best way in which it can be done; and, if danger of incontinence is feared, the parties are not to be warned unless a dispensation has already been obtained.

(b) But a dispensation is to be sought as quickly as possible, if it is a question of a dispensable impediment; and, if the parties have been unwilling or unable to be separated, this is to be set forth in the supplicatory libellus, so that in the rescript the clause concerning previous separation of the spouses is not placed.

1092. (B) If the nullity of the marriage is occult (e.g., on account of crime), the confessor will proceed thus: (a) both the pastor and the confessor enjoy the faculty of dispensing when there is danger of grave evil in delay and not even the local Ordinary can be approached, or can be approached only with danger of violation of the secret¹.

¹ Codex, c. 1045, § 2 and 3.

(b) If one or each party doubts concerning the value of the marriage, the confessor should prudently inquire into the reason for doubting; if, the matter having been weighed more maturely, the nullity is certain, let him act as above; if it remains doubtful, one must stand for the value, and a dispensation is to be sought as a precaution.

There is a threefold case: 1° from defect of consent; 2° from defect of the Tridentine form; 3° from another impediment.

I. On the Convalidation of a Marriage Invalid on Account of Defect of Consent.

1093. When a marriage was null from defect of natural consent, which was given fictitiously, or from error, force, or fear, it cannot be renewed except by a new consent duly furnished, i.e., with the error or fear removed, and with knowledge of the nullity of the prior marriage. Nor in this case is any dispensation required. - But the manner of proceeding for the renewal of consent is diverse according to the diverse cases which occur:

(A) If the nullity of the marriage on account of defect of consent is publicly known, the consent must also be renewed publicly, and indeed in the face of the Church, even if previously the marriage had been celebrated in the prescribed form¹.

¹ Codex, c. 1136, § 3.

(B) But when the nullity is occult: (a) if consent was deficient on the part of both, both must renew consent by an external sign, although private and secret², and indeed after they have known that the prior consent is null.

² Codex, c. 1136, § 3.

(b) If the consent was null on the part of one only, that party must freely furnish a new consent, the consent of the other party persevering; but this is judged to persevere provided it has not been revoked by a positive act³. - If the defect of consent was merely internal, it is enough that the party who had not consented consent inwardly. If it was also external, it is necessary also to manifest the consent outwardly⁴.

³ Codex, c. 1136.

⁴ Codex, c. 1136.

1094. Some besides used to say that the other party, who truly consented, must be warned concerning the nullity of the marriage, so that he might renew consent with knowledge of the invalidity. Now it is certain from the Code⁵ that this is not required; from another side, a moral union between the consent of one and the consent of the other suffices, as in every contract; but such a union exists in the case; for the consent validly furnished by one virtually perseveres, and is manifested through cohabitation and the mutual signs of conjugal love, while the other freely renews his consent. - Nor does the fear stand in the way lest the party who freely consented from the beginning, if warned concerning the nullity of the marriage, perhaps would retract consent; for a hypothetical retraction cannot destroy the force of the consent furnished before.

⁵ Codex, c. 1136.

II. On the Revalidation of a Marriage on Account of Defect of Form.

1095. A marriage, null from this head, can be revalidated, without dispensation, only by renewing consent before the pastor and witnesses. (a) This indeed regularly must be done publicly when the nullity of the marriage is publicly known, so that scandal may thus be repaired; nevertheless, if on account of special circumstances the parties are unwilling to renew consent publicly, they can be permitted to repeat it secretly, with the Bishop consenting, and scandal removed in another way.

(b) When the nullity is occult, it suffices that the consent be renewed secretly, before the pastor and witnesses, for preventing the infamy of the spouses.

(c) But if either one refuses to contract in church, consent can be renewed in any decent place. If one consents to appear before the pastor, and the other only through a proxy, or if both wish to contract privately before the confessor, this can be done with the Bishop's permission. - If one is unwilling to renew consent in any way, thinking this altogether useless, sanation in the root is to be sought. But if each absolutely refuses to appear before the pastor or confessor, nothing remains except to pray for them that they may turn themselves to better things: for the Church is not accustomed to grant dispensation to those who obstinately despise her laws.

III. On the Revalidation of a Marriage Invalid on Account of Another Impediment.

1096. A marriage contracted invalidly on account of a diriment impediment can sometimes be revalidated without dispensation, namely when the impediment ceases of itself; e.g., the bond ceases when the spouse has died, disparity of cult by the baptism of the infidel party; but if the impediment does not vanish of itself, it is necessary that a dispensation first be obtained¹. These things being posited, it remains to inquire how consent must be renewed.

¹ Codex, c. 1133.

(A) If the impediment is publicly known, consent must be repeated publicly in the form prescribed by law², even if this had been observed in the prior marriage: for this is required both for repairing scandal and so that the validity of the marriage may be established. - If, however, the putative spouses cannot be brought to contract publicly, they can be permitted to renew consent occultly, before the pastor and witnesses; yet afterward this must be published at an opportune time, so that scandal may be removed.

² Codex, c. 1135, § 1.

1097. (B) But if the impediment is occult, it suffices that the consent be renewed occultly, and indeed without the prescribed form, if this had already been observed the first time.

(a) This indeed will be easy if the impediment is known to each party: for both, conscious of the nullity of the prior marriage, express a new consent, which is altogether independent of the prior one¹.

¹ Codex, c. 1135, § 2.

(b) But if the impediment is known to only one party, and cannot be manifested to the other without grave inconvenience, it is not required that the party ignorant of the impediment renew consent; the renewal of consent made by the party conscious of the impediment suffices. Thus the Code².

² Codex, c. 1135, § 3; cf. Codex, c. 1133, § 1.

"But this renewal of consent is required by ecclesiastical law for validity, even if in the beginning each party furnished consent and did not afterward revoke it."³ Which "renewal of consent must be a new act of the will toward a marriage which is established to have been null from the beginning."⁴

³ Codex, c. 1133, § 2.

⁴ Codex, c. 1134.

1098. 1° Notion. "Sanation in the root of a marriage is its convalidation, carrying with itself, besides dispensation from or cessation of the impediment, dispensation from the law concerning renewing consent, and retrotraction, by fiction of law, concerning canonical effects to the past. - Convalidation is made from the moment of the concession of the grace; but retrotraction is understood to be made to the beginning of the marriage, unless something else is expressly provided. - Dispensation from the law concerning renewing consent can also be granted with only one party or each party unaware."⁵

⁵ Codex, c. 1138.

This can be declared thus: by force of ecclesiastical law, matrimonial consent was invalid, the marriage null, and the children illegitimate. Now dispensation in the root, by abrogating the law in this particular case, heals the defect by which the consent was invalid; therefore the marriage by that very fact becomes valid, and children born after the dispensation are truly legitimate. But besides, from the fiction of law, the Church has the consent, and therefore the marriage, as valid from the beginning; and she recognizes as legitimate those who were conceived from the beginning of the marriage up to the fulmination of the dispensation. Hence the marriage is truly sanated in the root, i.e., in the consent itself, and from the beginning.

1099. 2° Conditions required for dispensation in the root. Four are required: (A) that the diriment impediment about which it is a question be of merely ecclesiastical law; for in others the Church cannot sanate a vitiated consent.

"But a marriage contracted with an impediment of natural or divine law, even if afterward the impediment has ceased, the Church does not sanate in the root, not even from the moment of the cessation of the impediment."¹

¹ Codex, c. 1139, § 2. - Thus the opinion of certain ones saying that this impediment can be sanated in the root from the moment of the cessation of the impediment is reproved.

1100. (B) That the matrimonial consent was present, or was given with the affection of entering marriage: for he who wishes not to enter marriage, but only to abuse a woman through fornication, lays no foundation for a dispensation in the root².

² Namely, it is necessary that the marriage have been contracted "with the naturally sufficient consent of each party." (Codex, c. 1139.)

Generally the Church also requires that the union of the spouses have had the external appearance of marriage. This exists when the prescribed form was used; and, for heretics, when marriage has been celebrated before a non-Catholic preacher or civil magistrate. But where the canonical form of marriage is required, civil marriage indeed does not have a strict and canonical form, yet it does have the natural figure of marriage³; whence the Holy See can sanate it in the root, and sometimes does sanate it on account of an urgent reason, e.g., when one of the contracting parties is unwilling to renew consent.

³ Namely, the spouses appear sufficiently to wish to enter a matrimonial consortium.

1101. (C) That the consent given perseveres virtually in each party up to the time of the granted dispensation: hence a dispensation can be granted if one of the contracting parties has fallen into insanity; but not if either one has already departed from the living: in which case the marriage could nevertheless be sanated, not indeed in itself, but as regards juridical effects, namely the legitimacy of offspring.

"But if consent was indeed absent from the beginning, but afterward was furnished, sanation can be granted from the moment of the furnished consent."¹

¹ Codex, c. 1140, § 2.

1102. (D) That a grave reason be present, which can especially be threefold: (a) if one party cannot be brought to renew consent, although he wishes to remain in the marriage; (b) if each party is unaware of the nullity and there exists a grave reason for not revealing the impediment, e.g., on account of the great number of marriages which from some error have been contracted invalidly, or on account of avoiding scandal if the nullity arises from an error committed by the pastor or Ordinary; (c) if each party is conscious of the nullity, but cannot be induced to renew consent because of an insuperable prejudice; or if sanation in the root is necessary for the legitimation of offspring. - From another side, "sanation in the root can be granted only by the Apostolic See."²

² Codex, c. 1141.

1103. When the confessor must fulminate a dispensation in the root, he can use this or a similar form: "By Apostolic authority (or by authority received through the Bishop), I sanate and consolidate in the root the marriage contracted nullly by you, and I announce and declare that offspring received and to be received will be legitimate."