§ 5. On Privileges and Dispensations in Ecclesiastical Law

— Various rules. These few things are to be added to the notions given above, n. 209 ss. In present ecclesiastical law:

1. Privileges are perpetual, unless something else is established (c. 70). Those given with the clause "at our good pleasure," or with another equivalent clause, are extinguished when the right of the one granting is resolved (c. 73).

2. Privileges granted orally by the Holy See have force in the forum of conscience; but in the external forum they will have to be duly proved (c. 79).

3. Habitual faculties which are granted either in perpetuity, or for a prefixed time, or for a certain number of cases, are reckoned among privileges beyond the law; and faculties of this kind, unless in the concession the industry of the person was chosen, or something else was expressly provided, if they have been granted to a bishop, also belong to the vicar general, and pass to the Ordinaries who succeed the bishop in governance (c. 66).

4. Personal privileges are extinguished with the person; real or local privileges cease by the absolute destruction of the thing or place; yet if the place is restored within fifty years, local privileges revive (cc. 74, 75).

— I. What the Supreme Pontiff can do. 1. The Supreme Pontiff in every ecclesiastical law, both particular and universal, always grants a valid dispensation to the faithful. This follows clearly from what was said above, n. 223. He can loose himself in the way which was explained there.

In divine law he does not properly dispense; yet he can use the power of binding and loosing to relax, for a just cause, the bond of a vow, an oath, a ratified marriage, indeed of a marriage which after baptism was not consummated. For a just cause, I say. For without such a cause he cannot withdraw this matter from divine law.

— II. What Ordinaries can do. 1. In canons 81 and 82 this principle is set forth: From a general law of the Church, or from a law which the Pontiff has made for a special territory, Ordinaries below the Supreme Pontiff cannot validly dispense, not even in a particular case, unless power has been granted to them explicitly or implicitly; "or unless recourse to the Holy See is difficult and at the same time there is danger of grave harm in delay, and the dispensation is one which the Apostolic See has been accustomed to grant."

Therefore, in order that they may validly dispense without a positive concession of the Holy See, three things must concur: a matter in which the Holy See is accustomed to dispense (v.g. the impediment of consanguinity in the 2nd or 3rd degree of the collateral line); danger of grave harm from delay; difficult recourse to the Holy See.

The cause which before the Code writers commonly added, i.e. frequently occurring cases, is passed over in silence, and now does not seem to have force.

2. But an express faculty of dispensing is granted to Ordinaries of places in the following cases:

a) In doubt of fact, they can dispense, even in invalidating and incapacitating laws, provided there is question of laws in which the Roman Pontiff is accustomed to dispense (c. 16);

b) They can dispense from the observance of sacred times (days of fast, abstinence, or feast), in singular cases, subjects who are faithful one by one, or individual families, even outside the territory; and, in their own territory, even travelers (c. 1245).

Indeed, from a particular cause of a great concourse of people or of public health, the same Ordinaries can dispense the whole diocese or place from fast and abstinence. Thus, in the year 1919, to provide for public health, the bishops of Ireland relaxed the fast through the whole of Lent;

c) They can relax non-reserved vows for a just cause for all subjects and also travelers. Yet they cannot injure a right acquired by others (c. 1313);

d) The same faculty is granted to them in regard to oaths (c. 1320);

e) They can dispense in the interstices which are to be observed between the various ordinations, yet not in such a way that two sacred orders, or minor orders with the subdiaconate, be conferred on the same day, or four minor orders at once, or first tonsure with a minor order. Cf. c. 978;

f) They can dispense in banns, even those to be made or repeated in another diocese (cc. 1028, 1030);

g) They can dispense in matrimonial impediments when the cases concur which are set forth in the treatise on marriage;

h) They can dispense their subjects by themselves or through another from all irregularities arising from an occult delict, except that which arises from voluntary homicide or abortion, or another brought to the judicial forum (c. 990);

i) In occult cases, they can by themselves or through another remit penalties latae sententiae established by common law, excepting censures reserved to the Holy See in a most special or special manner.

Indeed, in public cases, they can remit penalties latae sententiae established by common law, excepting cases brought to the contentious forum, censures reserved to the Holy See, and certain others enumerated in canon 2237;

j) In urgent cases, for individual books they can grant permission to read, etc., prohibited books. And they can obtain a general faculty from the Holy See (c. 1402). But this is rather a license than a dispensation;

k) With the consent of the synodal examiners, they can dispense a candidate for a parish, commended by praise of doctrine, from the examination on doctrine (c. 459, 3°).

N.B. Therefore no power of dispensing in the canonical hours is granted to them. Yet they can have this from centenary custom.

They can also obtain habitual faculties from the Sacred Penitentiary for the internal forum. Moreover, not a few bishops were accustomed to obtain for the external forum various quinquennial and decennial faculties, v.g. in impediments. But faculties of this kind, saving certain temporary exceptions, have been revoked by the decree Proxima, of the S. C. Consistorialis, 25 April 1918. Yet there remain the faculties which in mission places the S. C. of Propaganda Fide has been accustomed to communicate. And new ones have begun to be granted. Thus, outside the missions, by the S. C. of the Sacraments habitual faculties are granted for dispensing, v.g. in lesser impediments of marriage.

Tacitly (of itself, or unless another intention appears from the text or custom) there is granted to Ordinaries of places the faculty of dispensing in pontifical laws to which the clause is added: "unless dispensed."

3. In particular cases and for a just cause, Ordinaries of places can dispense from the decrees of a plenary and provincial council (c. 291).

The powers granted by common law pertain to the ordinary and consequently delegable power of Ordinaries of places.

4. Finally, in diocesan laws they dispense by their own authority. And the same must be said of particular customs, since they can abrogate them.

But by the name Ordinary of the place or of places there come (besides the Roman Pontiff), each for his own territory, the residential bishop, abbot or prelate nullius and their vicar general, administrator, apostolic vicar and prefect, and likewise those who, when the aforesaid are lacking, in the interim succeed in governance by prescription of law or by approved customs (c. 198).

— III. What major Superiors of religions can do. Major Superiors in exempt clerical religions, i.e. the General, the Provincial, and in monasteries sui iuris the Abbot or Prelate, even local, come under the name Ordinary with respect to their subjects (c. 198).

As such, they can dispense their subjects:

From pontifical laws in which the Holy See is accustomed to grant dispensation, if recourse to the Holy See is difficult and at the same time there is danger of grave harm in delay (cc. 81, 82).

In doubt of fact, provided there is question of laws in which the Roman Pontiff is accustomed to dispense (c. 15).

From sacred times, in singular cases and for a just cause (c. 1245).

From non-reserved vows (c. 1313), with the right acquired by a third party remaining uninjured.

From oaths (c. 1320).

From irregularities arising from an occult delict, except voluntary homicide and the abortion of a human fetus, or another brought to the judicial forum (c. 990).

From penalties latae sententiae, as was said concerning Ordinaries of places (c. 2237).

For individual books, in more urgent cases, they can give license as regards books proscribed by the Holy See (c. 1402).

Moreover, they can exercise faculties of dispensing which, from the non-revoked privileges of their religion, are within their power.

When there is question of dispensation from sacred times, from vows and oaths, not only religious, professed or novices, are understood to be subjects, but also persons who "dwell in a religious house day and night" by reason of service, education, hospitality, or infirm health (c. 514).

— IV. What parish priests can do. Parish priests cannot dispense from any law unless power has been expressly granted to them (canon 83).

It is expressly granted to them by c. 1245, § 1, that in singular cases and for just causes they can dispense subjects, individual faithful or individual families, even outside the territory; and in their own territory even travelers, from the common law of the observance of sacred time.

In urgent cases they have the faculty of dispensing in impediments of marriage, which is set forth in its proper place (c. 1044-1046).

— V. What religious Superiors can do. Superiors of an exempt clerical religion - even those who are not major Superiors - can, like Ordinaries, dispense from sacred times to be observed, from vows, and from oaths, subjects understood as was said at the end of n. 296 (cc. 1245, 1313, 1320).

— VI. What confessors can do. Confessors duly approved can do certain things concerning indulgences, irregularities, penalties, and matrimonial impediments.

a) For those detained by a legitimate impediment they can commute the pious works enjoined for gaining indulgences (c. 935). As is clear, the substance of the principal work will have to be preserved in some way: thus they cannot join to another work an indulgence annexed to communion. It is another thing if communion is required as a condition of an indulgence granted to a different work. Thus also, without the use of a blessed crucifix, those impeded will not be able to gain the indulgences of the way of the cross. Cf. resp. S. Paenit. 14 Dec. 1917, ad V;

b) In more urgent occult cases in which the Ordinary cannot be approached, and danger of grave harm or infamy is imminent, they can dispense from all irregularities arising from an occult delict, except voluntary homicide and abortion of a human fetus, but only for this, that the penitent may be able licitly to exercise orders already received (c. 990, § 2);

c) 1. "In more urgent occult cases, if from the observance of a vindictive penalty l. s. the guilty person would betray himself with infamy and scandal, any confessor can in the sacramental forum suspend the obligation of observing the penalty, with the burden enjoined of recurring at least within a month by letter and through the confessor, if this can be done without grave inconvenience, the name being withheld, to the Sacred Penitentiary or to a bishop furnished with the faculty, and of standing by his mandates. 2. And if in some extraordinary case this recourse is impossible, then the confessor himself can grant the dispensation according to the norm of c. 2254, § 3": i.e. with those things enjoined which by law must be enjoined, and with a congruous penance and satisfaction imposed for the penalty, under the burden of falling back into it. (Cf. c. 2290.)

N.B. The confessor has the same faculty as regards censures, yet in such a way that he can never absolve without the burden of recurring a priest who has absolved an accomplice in a shameful matter or has feigned to absolve him. But censures are absolved, and here there is question of dispensations;

d) In more urgent cases they have in impediments of marriage the faculty which is explained in its proper place.

Regular confessors moreover have faculties from the privileges of the Order, v.g. of dispensing non-reserved vows; and, in certain religions, certain vows even reserved.

N.B. When the condition of intrasacramental use is not added, the confessor can exercise these faculties even outside confession toward penitents. But penitents are as many as he can here and now hear in confession.

— VII. What priests can do. A simple priest who assists at marriage has, in more urgent cases, from cc. 1044 and 1045, the faculty of dispensing in impediments of which there will be treatment in its own place.

— You will ask how a faculty restricted to individual cases is to be understood; or, what it is to dispense in individual cases?

This is the reasonable interpretation of the matter, that the one dispensing cannot prolong the dispensation beyond what the present cause requires: v.g. not beyond the time of the illness or journey for which the dispensation is sought. But, as it seems to us, no other limitation of time is of itself to be added. Yet it happens that an interval of time is expressly defined.

Thus, in Belgium, the Most Eminent Archbishop is accustomed to communicate to confessors the faculty of dispensing in fast in such a way that they cannot grant a dispensation for a time beyond a year. The formula which R. P. Maroto uses (Institutiones, n. 304), "for each one and as often as," seems to sound greater severity. St. Alphonsus, III, 288, says: "For a time and for individual cases."

— The subject of dispensation. 1. Of itself, each one dispenses his own subjects. And since dispensation means the use of gracious jurisdiction, it can be exercised everywhere toward subjects.

2. Vagi also, just as now they must obey the laws of the territory in which they are staying, so can they be dispensed by all who in that territory possess the faculty of dispensing.

3. Travelers can be dispensed, both by the Ordinary of the place and by the parish priest, when the latter is competent in the matter, in the territory of either: from sacred times (c. 1245); from vows and oaths (cc. 1313, 1320); in more urgent cases, from impediments of marriage (cc. 1043-45); from censures reserved by law (c. 2253).

Dispensation from interstices can be given by the bishop to those whom he ordains. Thus, from higher law. ¹

Dispensation from irregularities arising from delict must be given by the proper Ordinary (c. 990); just as the faculty of reading, keeping, etc., prohibited books (c. 1402 § 1).

Dispensation from penalties, since the Code in canon 2237 does not determine the subject, seems able to be given, in his own territory, by the Ordinary of the place to all.

The faculty granted for dispensing in public impediments of marriage is exercised by the Ordinary who gave the testimonial letters or transmitted the petitions to the Holy See, even if the spouses have definitively migrated elsewhere (c. 1055).

Concerning general faculties granted by indult, cf. Treatise on marriage.

Faculties to be exercised toward penitents profit all in whom that quality exists, i.e. all whom, in the place where they are, the one dispensing can absolve sacramentally.

4. From the received interpretation, he who possesses by general communication the faculty of dispensing can dispense himself. Yet a confessor will not be able to use toward himself a faculty circumscribed to penitents, since no one is the penitent of himself, nor are other confessors lacking. A Superior, on the contrary, is of himself alone, so that he would seem to be in a worse condition unless he could apply to himself the faculty conceded for subjects.

Yet some, v.g. Suarez, ² thought that the faculty of dispensing in one's own vows had not been granted; but others, v.g. Sanchez, ¹ denied that exception.

Concerning the legislator himself dispensing with himself, we spoke above, n. 223.

5. Regulars, when they can be dispensed by their proper Ordinary, cannot have recourse to the Ordinary of the place. Yet if the possibility of approaching their proper Ordinary is lacking, they seem, from the presumed faculty of the Superior, to be able to be dispensed by the Ordinary of the place.

With the Superior consenting, they can approach the same Ordinary so that he may use his voluntary jurisdiction in cases in which the proper Prelate lacks power: because, from r. 61 of Law in 6°, "That which is granted for someone's favor is not to be turned back to his disadvantage."

But this express concession is read in c. 620: "By an indult legitimately granted by the Ordinary of the place, the obligation of common law ceases also for all religious staying in the diocese, saving the vows and proper constitutions of each religion."

6. A dispensation can validly be obtained for another, and has force before his acceptance, unless something else appears from the clauses. We derive this from c. 37.

¹ Cf. resp. S. Cong. Conc. 30 July 1597 and 30 Sept. 1609, alleged in Meldensi, Collect. prop. Fid. I, 231.

² De Religione, T. VI, l. 6, c. 11, n. 4.

¹ De Matrimonio, l. 8, d. 3, n. 8-9.

— The use of a personal dispensation is of itself permitted everywhere. Whether it is given in the internal forum or in the external forum, a dispensation of itself permits acts in either forum. Yet, unless it is proved in the external forum, or legitimately presumed, a dispensation of the internal forum will not impede the action of the external forum (Cf. c. 2251). Wherefore c. 1047 provides that a matrimonial dispensation, given in the internal forum over an occult impediment, be noted in the secret archive; but if given in the sacramental forum, it be confirmed by a new dispensation in the external forum, if the impediment has become public.

— In canon 84 § 2 it is expressly established: "A dispensation in doubt concerning the sufficiency of the cause is licitly sought and can licitly and validly be granted."

— What we said above concerning the strict interpretation of a faculty granted for a certain case, and concerning the cessation of a dispensation when the motivating cause has certainly and totally ceased, is expressly confirmed by cc. 85 and 86. Yet from the latter canon it can be gathered that the dispensation does not cease, if the motivating cause subsists in part, or if the removal of the cause has been only doubtful.