Dispensations and Revalidation

THE Church cannot grant a dispensation from those impediments which belong to the natural and divine law. She cannot, for example, allow a Christian to marry again while a former wife is still alive, nor dispense in a case of certain impotence. Although she can dispense in all impediments which have their origin in ecclesiastical law, yet as a matter of fact she but seldom does so in some of them, such as the priesthood, and affinity in the first degree arising from consummated marriage. The Council of Trent decreed universally that ‘‘ as regards marriages to be contracted, either no dispensation at all shall be granted, or rarely, and then for a cause, and gratuitously.”¹ Still, according to modern discipline it is not uncommon for dispensations to be granted in the more remote degrees of consanguinity and affinity, in spiritual relationship, in occult crime, and in some other impediments,

¹ Sess. xxiv, c. 5, de ref. Matr.

As the diriment impediments of marriage belong to the common law of the Church, per se only the Holy See can lawfully dispense in them.

However, in certain cases, whether by law or by special indult, bishops and others have power to dispense.

(a) A bishop can dispense a doubtful impediment when the doubt is about a fact (Can. 15).

(b) In pressing danger of death, local Ordinaries, to appease conscience, and, if the case admit of it, for the legitimation of offspring, can dispense both in the form to be observed in the celebration of marriage, and in each and all impediments of ecclesiastical law, whether public or occult, even though they are manifold, except the impediments arising from the sacred order of priesthood, and of affinity in the direct line when marriage has been consummated (they can dispense) their own subjects wherever they be, and all who are actually staying in their territory, but scandal must be avoided, and if the dispensation is granted for difference of religion or for a mixed marriage, the usual promises must be given (Can. 1043).

(c) In the same circumstances, and only for cases in which not even the local Ordinary can be approached, both the parish priest has the same power of dispensing, and the priest who assists at marriage contracted in danger of death in accordance with Canon 1098, n. 2, and a confessor, but the latter for the internal forum in the act of sacramental confession only (Can. 1044).

(d) Subject to the clauses laid down at the end of Canon 1043, local Ordinaries can dispense in all the impediments mentioned in that same canon, whenever the impediment is discovered when everything is ready for the marriage, and without probable danger of grave harm the marriage cannot be put off until a dispensation is obtained from the Holy See (Can. 1045).

(e) This same faculty avails also for the convalidation of marriage already contracted, if there is the same danger in delay, and there is no time to have recourse to the Holy See (ibid., sec. 2).

(f) In the same circumstances, the parish priest and other priests mentioned in Canon 1044 have the same faculty, but only for occult cases in which not even the local Ordinary can be approached or not without danger of violating the seal of confession (ibid., sec. 3).

The parish priest or the priest mentioned in Canon 1044 should at once notify the local Ordinary of the dispensation granted for the external forum; and enter it in the book of marriages (Can. 1046).

The above special faculties for particular cases are granted by law; sometimes Bishops receive other faculties for granting dispensations by indult from the Holy See. The Code lays down the following rules which govern the exercise of such faculties: In marriages already contracted or to be contracted, he who has a general indult for dispensing in a certain impediment can dispense in it even though it is manifold, unless the indult expressly prescribes otherwise (Can. 1049, sec. 1).

One who has a general indult for dispensing in several impediments of different kinds, whether diriment or prohibitory, can dispense in those same impediments even if they are public, when they occur in one and the same case (ibid., sec. 2).

If ever together with a public impediment or impediments, in which one can dispense by indult, there is another impediment in which he cannot dispense, the Holy See ought to be approached for all of them; but he can use his faculties if the impediment or impediments in which he can dispense are discovered after a dispensation has been asked for from the Holy See (Can. 1050).

By a dispensation in a diriment impediment granted either by ordinary authority or by authority delegated by general indult, but not by rescript in particular cases, legitimation of offspring is thereby also granted if any was born or conceived of those who were dispensed, with the exception of adulterous or sacrilegious offspring (Can. 1051).

A dispensation from an impediment of consanguinity or affinity granted in any degree of the impediment is valid notwithstanding a mistake about the degree in the petition or in the grant, provided that the true degree is lower, or although another impediment of the same kind in an equal or lower degree was not mentioned (Can. 1052).

A dispensation granted from a minor impediment is annulled by no defect of obreption or subreption, although the only motive cause mentioned in the petition was false (Can. 1054).

The impediments of minor degree are:

(a) Consanguinity in the third degree of the collateral line.

(b) Affinity in the second degree of the collateral line.

(e) Crime arising from adultery with a promise of marriage, or with attempted marriage even though it be only civil. All the other impediments are of greater degree (Can. 1042).

The Pope grants matrimonial dispensations through various Roman Congregations. The Congregation of the Holy Office grants dispensations in mixed marriages and in the impediment of difference of religion. The Congregation on the Discipline of the Sacraments grants dispensations from public impediments and for the external forum. The Sacred Penitentiary grants dispensations only for the internal forum. If a case occur in which there is both a public and an occult impediment, the petition for dispensation from the public impediment should be sent to the Sacred Congregation on the Discipline of the Sacraments in the ordinary way, and another petition without mentioning the real names of the parties should be sent to the Sacred Penitentiary, mentioning the public impediment in the case as well as the occult.

Dispensations are granted gratuitously by the Sacred Penitentiary, but for dispensations from public impediments granted by the Roman Congregations besides the expenses of agency a small tax is imposed on those who can afford to pay. This is lowered or altogether remitted in favour of the poor.

Matrimonial dispensations cannot be granted lawfully even by the Pope without good cause. A cause is motive or final when it is ordinarily deemed sufficient for granting a dispensation; when it only induces the superior to grant a dispensation more readily, it is said to be impulsive. When the petition for a dispensation omits to mention what should be mentioned, it has the defect of subreption; when it alleges what is false, there is obreption. When subreption or obreption occurs in the motive cause, the dispensation from the impediments of greater degree, not from those of minor degree, is invalid at least if the cause alleged was the sole cause, and even if it was not the validity of the dispensation is doubtful. Subreption or obreption in an impulsive cause does not affect the validity of the dispensation. In doubt as to whether a cause falsely alleged for a dispensation was motive or impulsive, the presumption will be in favour of the validity of the dispensation, In dubio standum est pro valore actus. If the motive for granting a dispensation from an impediment of greater degree ceases before the dispensation is executed, the dispensation will lapse; if, however, the motive cause ceases to exist after the dispensation has been executed, though before the marriage has been contracted, the impediment has been removed, and the parties may marry.

Propaganda, May 9, 1877, issued an instruction on matrimonial dispensations, which sets forth and explains the ordinary canonical causes which are accepted as sufficient for granting a dispensation. The same causes, however, are not sufficient for a dispensation from all impediments, and the party interested should put down in his petition all the grounds that he can find for granting the favour he requests. We cannot do better than give here the chief portion of this important document in Fr. Guy’s translation: (1) Smallness of the place, either absolute or relative (as regards the female petitioner alone), seeing that in the place of her birth or even domicile a woman’s relationship is so widely spread that she is unable to meet with anyone to be married to of an equal position with her own, save a relative by blood or by marriage, without leaving her country, which would be a hardship to her.

“‘(2) The advancing age of the woman. If, for instance, she is over twenty-four and has not hitherto met with one of her own position to whom she might be married. But this reason does not hold good in the case of a widow wishing to marry again. U.

“ (3) Deficiency or absence of dowry. If a woman has not actually a dowry large enough to enable her to marry another of her own position, unconnected by blood or marriage, in her own place of abode. And this reason becomes all the more weighty when the woman has no dowry at all and a relation by blood or by marriage is willing to marry her, or even to make a suitable settlement upon her.

(4) Contentions about inheritance that have already arisen or serious or imminent danger of the same. If a woman has on hand an important suit in reference to her inheriting wealth of great amount, and there is no one else to undertake a contention of this kind and carry it on at his own expense save the person who is desirous of marrying her, a dispensation is usually granted, for it is of benefit to the community at large that an end should be put to the contention. A reason of this nature, however, suffices only in cases of remote grades of relationship.

‘““(5) Poverty on the part of a widow with a numerous family which some man promises to support. But at times a widow obtains the benefit of a dispensation owing to her youth and the danger of incontinence. ““

(6) The blessing of peace; and under this head come not only treaties between realms and princes, but the cessation of serious enmities, disturbances, and ill-will between citizens.

(7) Too great, suspicious, or dangerous familiarity, as well as having, almost unavoidably, to dwell together under the same roof, (8) Previous connection with a relation by blood or by marriage, or with any other party under an impediment, and pregnancy, with consequent legitimization of the offspring, in order to provide for the well-being of the offspring and the good name of the mother, who would otherwise remain unmarried, “(g) Disgrace coming upon the woman arising from a suspicion that through over-familiarity with a relative or connection she had been seduced by him, although the suspicion should be false, in a case when unless she marries, a woman seriously defamed would either remain unmarried, or must marry beneath her, or serious loss would ensue. “‘

(10) Revalidating a marriage which has been contracted in good faith, and publicly in the way prescribed by the Council of Trent, because its dissolution could hardly be brought about without grave public scandal and heavy loss, especially on the woman’s part. But if the parties have got married in bad faith, they by no means deserve the favour of a dispensation as the Council of ‘Trent decides.

““(11) Danger of a mixed marriage, or of its being celebrated before a non-Catholic minister. When there is danger of those wishful of being married, though connected in one of the closer degrees, going before a non-Catholic minister for the marriage in defiance of the authority of the Church, by reason of the refusal of a dispensation, there are just grounds for dispensing; for there is imminent danger not only of a most serious scandal to the faithful, but also of apostasy and loss of faith on the part of those so doing and disregarding the impediment to matrimony, especially in countries where heresy flourishes unchecked. The same must be said in the case of a Catholic woman who ventures upon marriage with a non-Catholic man. “

(12) Danger of incestuous concubinage.

“(13) Danger of a civil marriage. From what has been said, it follows that probable danger of those who are petitioning for the dispensation having only a civil marriage, as it is called, if they cannot get the dispensation, is a lawful reason for dispensing. “ (14) The removal of grave scandal.

“(15) Putting a stop to open concubinage.

(16) Merit, that is in the case of one who has by resisting the enemies of the Catholic faith, or by generosity toward the Church, or by his learning, virtue, or some other means, deserved well of religion. ** Such are the more common and strong grounds which are usually brought forward when matrimonial dispensations are to be petitioned for; and theologians and canonists treat of them exhaustively. “ But this instruction now turns to those points which, in addition to the grounds for obtaining the dispensation, must, whether by law, custom, or the practice of the curia, be expressed in the petition, or the dispensation becomes null if the truth be kept back or what is untrue is advanced even in ignorance, ‘These are: (1) The name and surname of the petitioners must both be written down distinctly and clearly, without any abbreviation.

“(2) The diocese of birth or of actual domicile. When petitioners have a domicile out of the diocese of their birth they can ask, if they please, that the dispensation should be sent to the Ordinary of the diocese in which they are actually residing.

“(3) The species (in its most determinate form) of the impediment, whether it is consanguinity or affinity, public morality (honestas); in the case of an impediment by reason of crime, whether it arose from murder of the party’s spouse with the promise of marriage, or from such murder with adultery, or from adultery alone with the promise of marriage.

““(4) The degree of consanguinity or affinity or morality (honestas) arising from a marriage ceremony, and whether it is a simple or mixed degree, the more remote as well as the less, together with the line, and whether it is direct or collateral; likewise, whether the petitioners are related by a double tie of consanguinity, both on the father’s and mother’s side.

““(5) The number of impediments; for instance, is the consanguinity or affinity twofold or manifold; or is there affinity as well as relationship; or any other kind of impediment, diriment or prohibitory? “*

(6) Various circumstances, such as whether the marriage is to be or has been contracted; if contracted, it must be stated whether this was done in good faith at least on one side, or with a knowledge of the impediment; likewise, whether it was after proclamation of banns and in accordance with the prescriptions of the Council of ‘Trent, or whether with the view of more easily obtaining a dispensation; finally, whether it has been consummated, if in bad faith, at least on one side, or with knowledge of the impediment.”’!

The instruction required that mention be made of incest, if this crime had been committed between the parties who asked for the dispensation, but this obligation was abolished by a decree of the Holy Office, June 25, 1885. If a mistake occurs in the names of the petitioners, or of the diocese or parish, it does not invalidate the dispensation, provided that in the judgement of the Ordinary there is no doubt about the truth of the matter (Can. 47).

If a lower degree is put for a higher, the mistake invalidates the dispensation as a rule, otherwise if a higher or equal degree is put for a lower (Can. 1052).

As a rule the Holy See grants dispensations in forma commissoria. When the impediment is occult the commission to dispense the party labouring under the impediment is issued to the confessor. It will therefore be the confessor’s duty to verify the allegations as far as possible and faithfully to observe all the conditions laid down in the papal rescript. The observance of the conditions expressed by such terms as, provided that, if, or the ablative absolute, is necessary for the validity of the dispensation. Besides the conditions, certain things are also prescribed, such as the destruction of the rescript after it has been executed; but these matters do not affect the validity of the dispensation. One of the usual conditions is previous sacramental confession, which requires the hearing of the confession of the party, but not necessarily his absolution. If this clause is not in the rescript, it may be executed outside the confessional. No special form is prescribed for granting the dispensation, which may be done by word of mouth.

Notice of the dispensation if it was given for the internal but non-sacramental forum should be entered in the secret book (Can. 1047).

When the impediment is public the commission is issued to the Ordinary of the parties or to the Ordinary of the place where they live. After the Ordinary has received the rescript he may delegate the verification of the clauses to the parish priest of the parties, and after this has been done he may grant the dispensation according to the terms of the rescript, and on being signed by the Ordinary the dispensation will at once take its effect. The document or a copy of it should be sent to the parish priest, who will inform the parties that the dispensation has been duly granted (cf. Can. 1055, 1046, 1047, 1057).

When the bishop is able to grant the necessary dispensation, he ordinarily does so m forma gratiosa. 'This signifies that on receipt of the petition and having satisfied himself of the truth of the allegations contained in it, he grants the dispensation forthwith by signing a document drawn up in due form, and sends it to the parish priest, who will inform the parties of the terms on which it has been granted.

Vol. II, Bk. IX, Chapter XIII. Revalidation of Marriage

WHEN marriage has been contracted invalidly the ordinary thing to do is to secure its being contracted validly, if this is possible. It may have been invalid on account of clandestinity, or for want of consent, or because there was some diriment impediment between the parties.

When the marriage was invalid on account of clandestinity, it must be revalidated by supplying the defect and contracting marriage anew before the parish priest and two witnesses. If the invalidity of the first marriage was known publicly, the second must be publicly solemnized; otherwise it will be sufficient to contract it in private (Can. 1137).

When the first marriage was invalid for want of consent of both the contracting parties, the only way of revalidating it is by both renewing their consent. This, again, should be done publicly if the invalidity of the former marriage was matter of public knowledge; in other cases it will be sufficient to renew consent in private. When the former marriage was invalid for want of consent of only one of the parties, it will be sufficient if this party after becoming acquainted with its invalidity freely renews his consent if the consent of the other party still persists. This may be done validly not only by express word of mouth, but by living together as man and wife, and exhibiting the ordinary signs of matrimonial union (Can, 1136).

When the first marriage was invalid on account of some diriment impediment between the parties, the first thing to do is to remove the obstacle to marriage by obtaining a dispensation from the impediment and duly executing it. If both the parties were aware of the impediment, they must renew their consent either in public or in private, according as the nullity of the marriage was publicly known or not (Can. 1135).

This renewal of consent is a new act of the will consenting to the marriage, with knowledge of its previous invalidity, and is necessary for validity by ecclesiastical law (Can. 1133, 1134).

If the impediment is occult and not known to one of the parties, it is sufficient for the party who knows of the impediment to renew his consent privately and in secret, provided that the consent given by the other party still persists (Can. 1135, sec. 3). ‘Sometimes not even this can be done, and in such cases of special difficulty recourse may be had to a dispensation in radice, as it is called, by which the Holy See sometimes revalidates a marriage without any renewal of consent by the parties. By a dispensation in radice the diriment impediment which existed is removed, the marriage is validly contracted by the consent which was given in the former marriage and which still subsists, and the children, if any have been born, are legitimized as if the former marriage had been valid. By a fiction of law, the former marriage is held to be valid and to have all the effects of a valid marriage.

It is obvious that to enable the Church to do this the impediment must be merely of ecclesiastical origin, and so capable of being removed by the Church; the consent given in the former marriage must of itself be valid and capable of effecting a real marriage except for the impediment, and, moreover, the consent of the parties must still persist at the time when the dispensation is given, otherwise true marriage can never exist between the parties. If these conditions are fulfilled by a dispensation in radice without any renewal of consent, the parties will be truly married, and the effects of marriage will date from the first contract, though it was invalid (Can. 1138-1141).

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 1 passage

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Chapter IV. On Dispensation from Impediments

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Diriment Impediments · Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Validation

We shall speak first of the power, then of the causes of dispensing, then of the petition, and finally of the execution of the dispensation.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 11 passages (filed under the subtopics)

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Diriment Impediments

n. 2810.

Diriment Impediments to Marriage

Diriment Impediments to Marriage.—The diriment or nullifying impediments to marriage are personal incapacities in a person which render him or her incapable, from divine or ecclesiastical law, of contracting marriage with anyone (absolute impediments), or of contracting marriage with a certain individual (relative impediments).

n. 2811.

The absolute diriment impediments are the following: (a) those that are due to a personal defect making one unable to promise with sufficient discretion (impediment of age) or to perform what is promised (impediment of impotency); (b) those that are due to a voluntary act which consecrates one to God with the obligation of perpetual celibacy (the impediments of Orders and vows).

n. 2812.

The relative impediments are the following: (a) that one which is due to an obligation to one’s present husband or wife (the impediment of bond); (b) that one which is due to too great a difference between two parties (impediment of disparity of cult); those that are due to too close a kinship between two parties, whether natural (impediments of consanguinity and affinity) or like to the natural (impediments of public decency, spiritual kinship, legal kinship); (d) those that are due to a relationship caused by a crime that makes it unsuitable for two parties to marry. If one party is perpetrator and the other the victim, there is the impediment of abduction; if the two parties are accomplices, there is the impediment of crime.

n. 2813.

The Impediment of Age

The Impediment of Age.—(a) Nature.—This impediment exists in males who have not completed their sixteenth year, and in females who have not completed their fourteenth year. These ages are set by the general law, because all parts of the world have to be considered and sufficient discretion may be presumed at those ages everywhere. But substantial ignorance even after those years invalidates consent, and moreover, in colder countries where development is slower, marriage is generally inadvisable before the parties are 18 and 16 respectively. The marriageable ages according to the statute law in most of our States are 18 and 16 with parental consent, and 21 and 18 without it.

(b) Effect.—This impediment is of ecclesiastical law in so far as the precise determination of age is concerned, but of natural law in so far as the use of reason is demanded. Hence, the Church may dispense, and hence also the impediment as ecclesiastical does not bind the unbaptized, even when being underaged they marry Christians.

n. 2814.

The Impediment of Impotency

The Impediment of Impotency.—(a) Nature.—Impotency is the inability to exercise the sexual act in a way suitable for procreation. The requisites for this act are immissio membri virilis in vaginam mulieris cum seminis effusione, and hence those are impotent who lack sexual organs (such as the emasculated or spayed), or who on account of psychical or physical abnormalities are unable to have complete intercourse (e.g., anaphrodisiacs, some hermaphrodites, those who suffer from hypospadias, vaginism, etc.). Sterility, or the mere inability to procreate from sexual intercourse (as in old persons), is not the same thing as impotency, and is not an impediment to marriage. Authorities are not agreed whether or not the operations of male vasectomy and evariotomy produce impotency or sterility. But many regard the former operation as unlawful except for a most grave cause (such as the saving of life), since it takes away a power given by nature for the benefit of society, exposes the individual to very serious temptations, and opens the way to terrible abuses.

(b) Effect.—Impotency anterior to marriage and perpetual, whether in the man or in the woman, whether known to the other party or not, voids marriage from the law of nature itself, and hence is not dispensable. But impotency that arises after marriage or that is only temporary does not invalidate, and impotency that is relative (i.e., in reference to one person only) does not nullify marriage except in reference to a determinate person. In justice to the other spouse, married persons who have an easily curable impotency should have this defect removed.

n. 2815.

The Impediments of Orders and Vows

The Impediments of Orders and Vows.—(a) Orders.—Those who are in Sacred Orders (priesthood, deaconship and, in the Latin Church, subdeaconship) cannot marry validly. The impediment is decreed by ecclesiastical law alone, and hence the Church has the power to dispense. One who was ordained through compulsion or in ignorance of the duty of celibacy, is permitted to marry, if he does not wish to ratify his ordination; but he then loses all right to exercise his Order (2235).

(b) Vows.—Professed religious with solemn vows or simple vows that annul marriage cannot marry validly. It is more probable that this impediment, in so far as solemn vows are concerned, is of divine right; but the Pope, as the Vicar of Christ, is able to dispense (see 2194, 2234, 2235, 1787 e).

n. 2816.

The Impediment of Bond

The Impediment of Bond.—(a) A person who is already validly married cannot marry again until the bond of the existing marriage is removed by the death of the other spouse or by dissolution. An exception is the case of the Pauline Privilege; but even then the bond of the first marriage remains till the second is contracted (see 2787 e).

(b) This impediment is of natural and divine law, and it binds all men, the unbaptized as well as the baptized. No dispensation can be granted from the impediment as long as it continues; and moreover those who would contract a second marriage must offer proof that the bond of the first marriage was non-existent, or that it has ceased. Nullity of a previous marriage must be established by canonical process (Canons 1986 sqq.); dissolution of an unconsummated marriage through vow or Papal dispensation is proved sufficiently by an authentic document; cessation of bond through death of consort must be demonstrated with moral certainty, if it is not manifest (see 2803). The procedure to be observed in cases of the Pauline Privilege is explained by commentaries on Canons 1120 sqq. of the Code.

n. 2817.

The Impediment of Disparity of Cult

The Impediment of Disparity of Cult.—(a) A marriage of a Catholic (i.e., of a person baptized in or converted to the Catholic Church) with an unbaptized person is null and void. This impediment bars the marriage of a professed ex-Catholic with an infidel, but not the marriage of a non-Catholic with an infidel; and by infidel is understood here not only a non-Christian (such as a Jew), but also a Christian unbaptized or invalidly baptized. A person accidentally baptized by a Catholic is not considered a Catholic if born of heretical or schismatical parents and reared by them in their sect.

(b) This impediment as prohibitive is of divine ordinance, for the same reasons as in the case of mixed marriages (see 2806 c): “Bear not the yoke with unbelievers” (II Cor., vi. 14). But neither natural nor divine law nullifies such a marriage with unbelievers; for the substantial ends of marriage (i.e., procreation and education of children) can be had even in such unions, and very holy personages have contracted marriage even with pagans (e.g., Jacob with the daughters of Laban, Joseph with the daughter of Putiphar, Moses with the daughter of Jethro, Esther with Assuerus, St. Cecilia with Valerian, St. Monica with Patricius, St. Clotilda with Clovis, etc.). The Church, however, has made disparity of cult a diriment impediment on account of the special danger, and it grants no dispensation unless the precautions decreed for mixed marriages be observed (see 824, 2807).

n. 2818.

The Impediments of Kinship

The Impediments of Kinship.—(a) Consanguinity.—Marriage is null when contracted between blood relatives, that is, persons descended from one another or from one common ancestor within certain limits. In the direct line consanguinity invalidates marriage between all ascendants and descendants, legitimate or natural, that is, between a man and all his female ancestry (mother, grandmother, etc.) and posterity (daughter, etc.), and between a woman and all her male ancestors and posterity. In the collateral line it invalidates to the third degree inclusively, that is, between a man and a woman whose parents are related as first cousins or even more closely. The degree of consanguinity between this man and woman is first, second or third, according as one, two or three generations separate them (i.e., both or the one farthest removed) from the nearest ancestor of both (see Canons 96 and 1076). Consanguinity is multiplied when two parties are descended from several common stocks. This impediment is of the natural law as regards the first, and probably all the other degrees of the direct line; for reverence due to parents forbids one to marry them. Marriage between brother and sister is not opposed to the absolute or primary law of nature, but to the relative or secondary law (see 303); for natural inclination teaches that it is unbecoming for members of the same family to intermarry, and further the children of their unions are very apt to be weakly or defective. In other degrees consanguinity is an impediment of church law only, and may be dispensed for a good reason, but a more serious reason is necessary for nearer relationship.

(b) Affinity.—Marriage is null when contracted between relatives-in-law, or those who are kin by valid, even though unconsummated, marriage. But the impediment exists only between the husband and his wife’s blood relatives, and vice versa. In the direct line it includes all degrees; in the collateral line it extends to the second degree inclusive. Hence, a widower is impeded from marrying all the lineal relatives of his deceased wife (her mother, grandmother, daughter, granddaughter, etc.), and the following of her collateral relatives: her sisters, her aunts, her nieces, her first cousins. Affinity is multiplied by multiplication of the consanguinity on which it is based (e.g., when a woman is doubly related to one’s deceased wife), and by successive marriages (e.g., when a woman is the sister of a man’s two deceased wives). The impediment of affinity is justified by moral reasons—by the mutual reverence that should exist between those who are closely related by marriage, by the dangers to which their relationship would be exposed if they were able to marry, and by the good of society, which is promoted when marriage is not confined within to narrow a circle. But the impediment is entirely ecclesiastical, for the Church can dispense in all degrees, and the relationship is only an imperfect copy of consanguinity.

(c) Public Decency.—This impediment, also known as quasi-affinity, arises from an invalid, even though unconsummated, marriage, and from public or notorious concubinage; and it annuls marriage in the first and second degrees of the direct line between the man and the blood relatives of the woman, and vice versa. The reason for the impediment is the unbecomingness of marriage with the near relatives (i.e., the mother, daughter, grandmother, granddaughter of the woman, and the father, son, grandfather, grandson of the man) of a person with whom one has lived in putative marriage or concubinage. The impediment is less strict than that of affinity, and is of ecclesiastical law only.

(d) Spiritual Relationship.—This impediment nullifies marriage between a baptized person and the person who baptized him or her or who stood for him or her in Baptism. The minister and the sponsor contract a relationship of spiritual parenthood to the baptized person, since Baptism is a supernatural birth and the godparents are charged with the religious welfare of the godchild. Reasons of respect and of intimate relationship make marriage between such persons unbecoming, and hence the Church from early times has ruled against it.

(e) Legal Relationship.—Persons who in civil law are unable to marry one another on account of the relationship arising from legal adoption are also barred from marriage in Canon Law. The relations between an adopted person and the members of the family into which he is adopted are so close that human lawmakers have often felt it necessary to declare adoption an impediment to marriage.

n. 2819.

Matrimonial Impediments Produced through Misdeeds

Matrimonial Impediments Produced through Misdeeds.—(a) Abduction.—There can be no valid marriage between a man who holds a woman under restraint in order to compel her to marry him, if she has been abducted by him or is violently detained by him in her residence or elsewhere. If the woman who has been carried away or who is held against her will marries unwillingly, the marriage is invalid according to natural law; if she marries willingly, the marriage is invalid from church law. Hence the impediment of abduction is of positive law only and does not oblige infidels (see Canon 1064).

(b) Crime.—There can be no valid marriage between the following: those who during a legitimate marriage have consummated adultery together and have mutually promised future marriage or have attempted marriage, even though only civilly (Canon 1075); those who during the same lawful marriage have consummated adultery together, and of whom one has committed conjugicide; those who have cooperated physically or morally, even though they are not adulterers, to murder the spouse of one of them. The purpose of this impediment is to safeguard the fidelity and rights of married persons, and to punish those who resort to adultery or murder in the hope of a new marriage. The impediment is ecclesiastical and does not affect infidels.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Validation

n. 2830.

When an Impediment Is Discovered after Marriage

When an Impediment Is Discovered after Marriage.—A diriment impediment or other invalidating defect is sometimes discovered after the celebration of marriage. There are various solutions of this difficulty.

(a) If the marriage can be validated (or made valid), this should be done. The manner of simple validation of marriages null on account of diriment impediment, defective consent or lack of form, is declared in Canons 1133-1137.

(b) If the marriage cannot be validated simply, it may be made valid in certain cases by the special validation known as a sanatio in radice. This supposes that a consent naturally sufficient, but juridically insufficient, was given, and that a renewal of consent cannot be obtained (see Canons 1138-1141).

(c) If marriage cannot be validated in any way (as in the case of an indispensable impediment), the parties should be separated, or permitted to live together as brother and sister, or left in good faith. Thus, if the nullity of the marriage is public, the parties should be separated after a declaration of nullity; if the nullity is secret and unprovable, the parties may be permitted to live together as brother and sister, if they know the marriage is null, but are not exposed to the danger of incontinence; if the parties are in good faith about their marriage and it is foreseen that serious evils would result were they told the truth (such as bad faith, or misfortunes for the children), they may be left as they are.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 16 passages

Vol. IV, On Marriage, IV. On Dispensation from Impediments and Revalidation of Marriage

n. 1035.

Can all impediments be dispensed, and are they dispensed? Not all impediments can be dispensed, such as the impediments of impotence, infantile age, ligamen, consanguinity in the first degree of the direct line, error, and fear; nor do all need dispensation, such as abduction, clandestinity, defect or vice of consent. Likewise not all are usually dispensed, such as consanguinity in the first degree of the collateral line, affinity from licit copulation in the first degree of the direct line, public crime with both or one or the other plotting, and abduction while the woman remains under the power of the abductor. But among those which are dispensed, some are dispensed more rarely, others more frequently. More rarely and for a graver cause are dispensed clandestinity, spiritual paternity and filiation, affinity from illicit copulation in the first degree of the direct line, solemn vow, sacred order, disparity of cult, age.

Concerning spiritual paternity and filiation cf. De Iustis, de Dispens. matr., book 2, chap. 5, n. 7; Schmalzgrueber, book 4, tit. 11, n. 57; tit. 16, n. 144. But at present spiritual kinship of any kind is counted among impediments of lesser degree, although in the Forms of the Sacred Congregation of the Sacraments there is excepted, in the communication of faculties, dispensation between the one lifting and the one lifted, or vice versa between the one lifted and the one lifting, and between the baptizing person and the baptized person. Cf. the following numbers, 1036, 1038. Concerning affinity cf. Collectanea S.C. de Propaganda Fide, n. 1242. Concerning public honesty cf. Ferraris, Supplement, this word. Concerning solemn vow and sacred order cf. Benedict XIV, Quaest. Can., 200.

Others which can be dispensed and are more frequently dispensed, such as consanguinity, affinity, public honesty, spiritual kinship, apart from the degrees already excepted, legal kinship, occult crime, are not usually dispensed without grave cause. Trent, sess. 24, chap. 5, de R. M. Hence for the validity of a dispensation to be obtained, it is required that there be no obreption or subreption falling upon the motive cause. For a Superior is not judged to dispense except under the tacit condition: if the prayers rest upon truth. Motive; for if falsity is brought forward, or truth is suppressed only concerning an impulsive cause, the dispensation is valid. C. Super litteris, de Rescript.

But now impediments of lesser degree do not need a special cause. Cf. the following number. Practice of Apostolic Dispensations of the Apostolic Datary according to the reformed Forms; Pyrrhus Corradus, Prax. Dispens. Apost., book 8; L. 1118-1120, 1129; E.M.

n. 1036.

What are just causes for dispensing in diriment impediments? Some causes are honorable, others are notorious, for avoiding scandals. Formerly they were taken more strictly, today more broadly, because of changed circumstances of the times. Honorable causes are: 1. the age of the girl, who, having already passed the twenty-fourth year of age, has thus far not found a man of equal condition whom she can marry; 2. defect of dowry, if the girl has none, or not enough, to be able to marry a man of equal condition in her own place where she dwells; 3. narrowness of place, i.e., if the woman therefore cannot find a man of equal condition in the place of origin or domicile, by reason only of the female petitioner; 4. grave enmities to be settled between the parents, blood relatives, or relatives by affinity of the man and woman; 5. lawsuits to be ended concerning matters of great importance arising between the man and woman, or between their parents; 6. poverty of a widow who is burdened with numerous offspring; 7. prerogative of royal dignity; 8. preservation of an illustrious family; 9. preservation of goods in the same family; 10. excellence of merits toward the Church; 11. Christian virtues, which probably would not be found in another man; 12. a more generous alms to be poured into pious works.

Notorious causes are: 1. excessive familiarity, suspicious and dangerous, and also cohabitation under the same roof which cannot easily be impeded; 2. infamy of the woman, arising either from true or false suspicion, whence the woman is compelled either to remain defamed or unmarried, or to marry a man of unequal condition; 3. copulation having followed between those wishing to contract, and legitimation of offspring; 4. danger of civil marriage; 5. danger of mixed marriage, or marriage before a non-Catholic minister; 6. danger of incestuous concubinage; 7. cessation of public concubinage; 8. removal of grave scandals, lest they fornicate again, lest enmities flare up; 9. danger of incontinence for a younger widow; 10. revalidation of marriage. Benedict XIV, Response to the Archbishop of Tours, September 26, 1754; A.S.S., vol. 2, p. 62; Instruction of the Sacred Congregation de Propaganda Fide, May 9, 1877; L. 1129, 1130; E.M.

Dispensation was said to be without cause when none of these causes was present which are usually alleged as canonical; or when, no proper cause having been alleged, dispensation is usually sought and granted from certain rational causes, namely because of a more abundant Composition in degrees somewhat remote, or in more remote degrees because of a cause of public good moving the mind of the Pontiff, or also because, since the cause is shameful, it is not expedient to reveal it. Those causes are called canonical which, from the style and approved custom of the Curia, are regularly accustomed to be admitted for matrimonial dispensations. By no means, however, is one prohibited from setting forth other causes also, by which either other causes may be strengthened, or even the defect of others supplied, e.g., deformity of the girl, infirmity, etc. Reformed Forms of the Apostolic Datary; E.M.

After the Constitution Sapienti consilio of Pius X, June 29, 1908, matrimonial dispensations are distinguished as of greater degree and of lesser degree. The former are granted from a legitimate cause; the latter from reasonable causes approved by the Holy See. "19. Dispensations of lesser degree are from impediments: "a) of consanguinity and affinity of the third and fourth degree of the collateral line, whether equal or unequal, that is, of the fourth degree mixed with the third, and of the fourth or third mixed with the second; "b) of affinity in the first degree, and in the second simple or mixed with the first, where this impediment proceeds from illicit intercourse; "c) of spiritual kinship of any kind; "d) of public honesty, whether through betrothals or through marriage, concerning which there has already been dispensation and it has been dissolved. "20. Dispensations of greater degree usually granted, when a legitimate cause intervenes, are from impediments: "a) of consanguinity of the second degree of the equal collateral line, and of the second or third degree touching the first; "b) of affinity of the first and second degree of the equal collateral line, and of the second or third degree touching the first; "c) of crime from adultery with promise of future marriage. "21. Dispensations from lesser impediments are all granted from reasonable causes approved by the Holy See. But when granted in this way, they will have force just as if they had been imparted by motu proprio and from certain knowledge; and therefore they will be subject to no challenge either by vice of obreption or of subreption." Order to be observed in the Roman Curia, Particular Norms, chap. 7, a. 3.

As regards simple vows emitted in some Religious Congregation, dispensation is given by the Sacred Congregation of Religious with this formula: "Since he feels himself wholly unequal to sustaining the burdens of common life, etc."

n. 1037.

What things must be expressed in the supplicatory petition for the validity of a dispensation? 1. The names, surnames, and diocese or dioceses of the petitioners, from which they have their origin, or of actual domicile or quasi-domicile, or of the place in which they now dwell. Error in the name or surname of the petitioners more probably does not harm the validity of the dispensation if the error is plausible and the person is established. If there was true error in name or surname, sanation must be sought. Form of the Sacred Congregation of the Sacraments. These things must be expressed when dispensation is sought from the Sacred Congregation of the Sacraments. "But when it is sought from the Sacred Penitentiary, the names and other things are kept silent, but only the person and place to which the letters are to be directed are expressed." L. 1146.

The lowest species of the impediment or impediments, and their number, if there are several. Nevertheless the dispensation is valid if a material error has slipped in concerning the computation of impediments, provided, however, that the case is set forth as it is. Holy Office, February 22, 1899; Forms of the Sacred Congregation of the Sacraments.
The motive cause of the dispensation. Must the cause alleged be true both at the time when the rescript is issued at Rome and at the time when the dispensation is put into execution? It is enough that the cause exist at the time when the delegate executes the dispensation itself, because the Pontiff seems to commit the business according to those circumstances which the delegate will find. L. 1132. Cf. vol. 1, n. 283; here 1045. Nor is it necessary that the cause for dispensing precede the concession of the same, but it suffices that through the dispensation itself and its manner the cause itself be consummated. "For when a dispensation is given without cause, some satisfaction or fine is imposed for a pious work or for some other common utility of the Church; through which work there arises a cause of the dispensation, which then comes about by way of commutation, just as we said also happens in the concession of Indulgences." Suarez, de Leg., book 6, chap. 18, n. 26; L. 1130.
The other things which by law, custom, or the style of the Curia must be set forth, lest the petition be subreptitious. And thus it must be set forth whether a null marriage has already been contracted, whether knowingly or even in ignorance. Forms VIII, IX of the Sacred Congregation of the Sacraments; Trent, sess. 24, chap. 5, de R. M.; C. Cum inhibitio fin., de Clandest. despons.
Legitimation of offspring must be explicitly sought and granted in the Rescript. Sacred Congregation of the Sacraments, January 29, 1909. Pius VII, Const. Expositum nobis, June 18, 1816; Benedict XIV, Const. Magnae nobis; Practice of Apostolic Dispensations, nn. 116, 117; Sanchez, book 8, disp. 21; Reiffenstuel, book 4, tit. 21, app., n. 210 ff.; L. 1131; Lugo, Responsa Moralia, book 1, disp. 43; E.M.

There are no determined Forms for seeking dispensations from laws, from impediments of marriage, and for obtaining various graces from the Supreme Pontiff.

n. 1038.

Resolutions: One impediment must not be expressed for another, although greater, e.g., consanguinity for affinity.

In a vow it must be expressed whether it is of perpetual chastity, or of not marrying, or of entering religion.

In crime, whether it is adultery, or homicide, or both together. Likewise in adultery, whether a promise of marriage was present, or also whether marriage was in fact entered while the spouse of the other was still living, since dispensation is usually granted far more difficultly. Dispensation is not given unless scandal has been removed. Adulterine offspring is excluded from legitimation of offspring. Forms V, VI of the Sacred Congregation of the Sacraments.

In public honesty, if it is in the first degree, whether from marriage or from betrothals. But whether it is from marriage or from betrothals, the line must be expressed, and if from marriage, the degree. Hence it must be expressed whether public honesty proceeds from betrothals entered by the bridegroom with the mother of the woman to be betrothed, because the difficulty is greater than if there were question of betrothals entered with the sister of the woman to be betrothed, since the dishonesty is greater; for the impediment in the first case is in the direct line, in the other in the oblique line. But in an unequal degree it suffices to express the more remote. C. Vir ult., de Consang. Moreover it must be added that the prior betrothals were dissolved; for otherwise dispensation is not given by the Sacred Congregation of the Sacraments. But it is given by the Sacred Penitentiary, yet under the condition, provided that the prior betrothals were dissolved by mutual consent. Corradus, book 8, chap. 7; Forms for the communication of faculties of the Sacred Congregation of the Sacraments.

In legal kinship it is necessary to express only the line and degree.

In spiritual kinship, previously it had to be expressed whether it was paternity or maternity, or compaternity; and, more safely, whether from baptism or from confirmation. Sanchez, book 8, disp. 24, n. 15; Corradus, book 8, chap. 8, n. 15. But now, from the Constitution Sapienti consilio, spiritual kinship of any kind is numbered among impediments of lesser degree. Nevertheless, in the Forms of faculties which are communicated, dispensation between the one lifting and the one lifted, and between the baptizing person and the baptized person, is excluded. Forms of the Sacred Congregation of the Sacraments.

In natural kinship it must be expressed: 1. whether it is consanguinity or affinity, and if affinity whether from licit or illicit copulation, if it is contained within the second degree; 2. the line and degree must be expressed; and if a nearer degree has been set forth for a more remote one, the dispensation is valid. If the kinship is not simple but mixed from consanguinity and affinity, this also will have to be expressed; and if the degrees are unequal, each must be expressed both in consanguinity and, more truly, in affinity. And if the nearer is the first, the dispensation otherwise is not valid. Likewise, if the kinship is multiple, this too must be expressed for validity. St. Pius V, Const. Sanctissimus, August 20, 1566; Benedict XIV, Const. Etsi matrimonialis, September 27, 1755; Holy Office, December 12, 1748. Cf. Sanchez, book 8, disp. 24, nn. 12, 13; Schmalzgrueber, book 4, tit. 16, nn. 190, 192. "Moreover Tournely rightly notes that in a mixed degree the sex which is in the first degree must be expressed, because it is granted with more difficulty that a nephew marry his paternal aunt than that a paternal uncle marry his niece; for it is a greater perversion of order that a nephew be constituted head of his aunt." L. 1136. Nor indeed for validity must "incestuous copulation, or counsel and intention through it of more easily obtaining dispensation... concerning any prohibited degrees whatever of consanguinity, affinity, spiritual kinship, and also public honesty" be expressed. Leo XIII, June 25, 1885, Circular Letter of the Holy Office. Incestuous copulation, namely had between those blood relatives, relatives by affinity, etc., who wish to contract marriage with each other, and which previously had necessarily to be expressed. Likewise it is not necessary to say in the petition how often copulation was had with a blood relative of the bride, because from various copulations one single affinity arises; nevertheless copulation had with various blood relatives of the bride must be expressed, because from these so many different affinities are contracted; and although these impediments are not different in species, nevertheless they are distinct in number. This is manifest from the Declaration of Benedict XIV; L. 1138. Forms of the Sacred Congregation of the Sacraments.

Besides the affinity arising from licit copulation with one's own spouse, there need not be set forth in affinity the affinity also contracted from illicit prematrimonial copulation with the same spouse. Sacred Penitentiary, March 29 and June 7, 1842; December 10, 1874.

Dispensation is not usually given in a doubtful impediment of consanguinity in the first degree, both of the direct line and of the collateral line.

If someone labors under a double impediment, he must set forth together in the supplicatory petition each impediment, if they are not disparate, but several in number in the same species, or of diverse lowest species related among themselves, e.g., double consanguinity, both on the part of the father and on the part of the mother, double affinity, consanguinity and affinity, the vow of chastity and of entering Religion. And if one is public and the other occult, dispensation from the former must be sought from the Sacred Congregation of the Sacraments; but dispensation from both together must then be obtained from the Sacred Penitentiary, since the prior dispensation contains subreption and therefore must be revalidated. Benedict XIV, Const. Pastor bonus, § 41; Collectanea S.C. de Propaganda Fide, n. 1470; Suarez, de Leg., book 6, chap. 24; Sanchez, book 8, disp. 23, n. 1; Lugo, Responsa Moralia, book 1, disp. 43; L. 1139.

If someone has previously obtained another dispensation and used it, he must mention it when there is question either of the same vow of chastity, because the later dispensation is as it were an extension of the prior one, or of the same crime, because crimes do not have remission of pardon unless committed once. Suarez, de Leg., book 9, chap. 23; Sanchez, book 8, disp. 22, nn. 2, 20. Likewise it must be made manifest if the man abducted the woman, although he has already purged the abduction. Rule 49 of the Apostolic Chancery; De Iustis, book 2, chap. 15, n. 30 ff.

If a dispensation was to be granted for entering marriage because of illicit intercourse, it had to be expressed whether that intercourse was had by one or both under hope of more easily obtaining the dispensation. If a dispensation was to be granted after marriage had been entered, it likewise had to be expressed whether a null marriage had been contracted knowingly, and in bad faith at least on the part of one party, whether clandestinely, and whether afterwards it had been consummated; whether on the contrary it had been contracted in ignorance, and in good faith at least on the part of one party, whether the denunciations were neglected, and whether it had then again been consummated after the nullity became known; whether these things had been done under hope of obtaining the dispensation more easily. Trent, sess. 24, chap. 5, de R. M.; Paul IV, Const. Ab ea ipso die; Clement, un., de Consang.; Sacred Congregation de Propaganda Fide, May 9, 1877. But in the present Forms of the Sacred Congregation of the Sacraments these things are altogether passed over in silence. Sanchez, book 8, disp. 25, n. 21; book 3, disp. 42, n. 7; Schmalzgrueber, book 4, tit. 3, n. 85; Kenrick, n. 216.

If revalidation was sought of a dispensation null because of an occult vice of subreption in the first and second degrees or only in the second, it had to be expressed whether the dispensation had been issued in the form for the poor; otherwise either a composition of 50 ducats of gold of the Camera must be made, or a tax to be defined by the Major Penitentiary must be paid, according to the various cases expressed in the Constitution of Benedict XIV, Pastor bonus, §§ 41, 42. These things too are altogether passed over in silence in the present Forms of the Sacred Congregation of the Sacraments. L. 1131 ff.; Practice of Apostolic Dispensations of the Apostolic Datary; E.M.

n. 1039.

Note: In a case of doubtful dispensation, it must be judged valid, because in doubt one must stand for the validity of the act. L. 1133. When the motive cause of the dispensation ceases, e.g., if the offspring to be legitimated has died before the dispensation is issued, or before dispensation is made by the Bishop or by another to whom it had been committed by the Pontiff, the dispensation is invalid. L. 1132. If the motive cause ceases after the dispensation has already been issued and communicated to the petitioners by the delegate, the dispensation is valid, even if that cause ceases before the celebration of marriage, because by the dispensation the impediment has already been removed. L. ibid.

In the Renewed Forms of the Apostolic Datary there is a new clause, by force of which dispensation is granted not only from the impediments set forth but also from others perhaps kept silent in good faith. Cf. Practice of Apostolic Dispensations of the Apostolic Datary, nn. 28, 29, 150. An explanation is had there. But in the present Forms of the Sacred Congregation of the Sacraments there is a special form for convalidating marriage because of a newly detected impediment.

n. 1040.

Does one who, after obtaining dispensation from the impediment of affinity from illicit copulation, e.g., with a blood relative of the bride, likewise sins with the same woman before marriage, need a new dispensation? R. Negatively, if the dispensation has not yet been put into execution by the delegate, because such dispensations do not obtain effect from the day of issue, but from the time of execution. Indeed, negatively also even if the dispensation has been put into execution. The reason is that the impediment of affinity has already been removed by the dispensation with respect to the effect of contracting marriage. But if, after marriage has been contracted, he sins again with the same blood relative of the wife, he is deprived of the right of asking the debt, because the dispensation, according to the style of the Curia, was granted for the effect of contracting marriage, not for sinning more freely. But he would need a new dispensation if he sinned with another blood relative of the bride before marriage, even after the dispensation had been issued, because a new affinity would be contracted. L. 1140.

n. 1041.

From whom must dispensation from diriment impediments be sought? It must be sought per se from the Roman Pontiff alone, since this faculty properly pertains to him alone. And reserved in a special way to the Apostolic See are all dispensations of matrimonial impediments, whether impedient or diriment, to be granted to kings or princes of royal stock. Sacred Congregation of the Sacraments, March 7, 1910.

The Supreme Pontiff dispenses chiefly through the Sacred Congregation of the Sacraments, as regards the external forum, and therefore from all impediments public by their nature or by fact, of consanguinity, affinity from marriage, or from illicit but public copulation, spiritual kinship, public crime, and others not reserved to the Holy Office. At present both poor and rich must have recourse to this Congregation for dispensation from a public impediment. Recourse must be had to the Holy Office for the impediment of disparity of cult and of mixed religion, and also for those things which regard the Pauline privilege.

Dispensation must always be sought through the Bishop or his Vicar General. And if there is question of the first degree of affinity or of the second degree of consanguinity or affinity mixed with the first, the customary forms previously did not suffice, but it was required that the Bishops themselves, by letters written in their own hand, explain the canonical causes and the necessity of the dispensation; or at least add a recommendation in their own hand, especially where there was question of the first degree of consanguinity touching the second. Reformed Forms of the Apostolic Datary, at the beginning; Practice of the Apostolic Datary, n. 11. But in the present Forms of the Sacred Congregation of the Sacraments nothing of this kind explicitly appears.

The Supreme Pontiff also dispenses chiefly through the Sacred Penitentiary, in the internal forum and in occult impediments, as regards marriages either to be entered or already entered.

The Sacred Penitentiary by its own proper right dispenses: 1. In marriages to be contracted, in the forum of conscience only, from occult impedient impediments, and likewise from omission of denunciations, even for the effect of contracting secretly. Benedict XIV, Bull Pastor bonus, April 13, 1744, § 39.

In contracted marriages, it dispenses in the second degree of consanguinity or affinity, if the impediment has remained occult for at least ten years and the petitioners have contracted together and lived together and have been reputed as legitimate spouses. Likewise it dispenses in the third and fourth degrees of consanguinity or affinity when occult. Moreover it revalidates marriages in the same third and fourth public degrees, nullly contracted because of occult subreption or obreption of the Apostolic Letters, except if the falsity consists in the narration of preceding copulation which in fact had not previously intervened. Benedict XIV, ibid., § 40.
Likewise it revalidates marriages nullly contracted from a null dispensation because of subreption in the first and second, or in the second only, and also in the third and fourth degrees of consanguinity or affinity. Benedict XIV, ibid., §§ 41, 42.
It dispenses from the occult impediment of affinity from illicit copulation, in the forum of conscience, and in marriages both contracted and to be contracted. Benedict XIV, ibid., § 43.
It dispenses from the occult impediment of adultery, if it was only with faith given, with neither party plotting; or also, but rarely, with both or one or the other plotting, both in marriages to be contracted and in contracted marriages. Benedict XIV, ibid., § 44.
The Sacred Penitentiary dispenses, in the aforesaid cases, even if the impediments are multiple; and it decrees the offspring legitimate in the forum of conscience only, but not offspring conceived in adultery. Benedict XIV, ibid., § 45.
When the Apostolic See is vacant, the Sacred Penitentiary can still do whatever pertains to the forum of conscience. Benedict XIV, ibid., § 51; Pius X, Const. Vacante Sede, December 25, 1904, par. 16.

A dispensation from the Sacred Penitentiary can be sought immediately by the petitioner, or by another in his place, e.g., by a confessor. More securely and more easily, however, this dispensation too is requested through the Bishop or his Vicar General, the name of the petitioner being kept silent. There is no determined formula which must necessarily be used. It suffices to set forth the impediment for which dispensation is sought, and the cause of the dispensation. Cf. 1037.

The Supreme Pontiff also dispenses through the Holy Office in impediments of disparity of cult and mixed religion, and in those things which regard the Pauline privilege. The Sacred Congregation de Propaganda Fide must refer to the proper Congregations those things which regard marriage. It can nevertheless still grant the ancient formulas of faculties, several of which regard marriage, to distant eastern missions, the matter having however been discussed and arranged with the Sacred Congregation of the Sacraments. The Congregation for the affairs of the oriental rite preserves its duties entirely. It also has force in the future to grant matrimonial dispensations of mixed religion and disparity of cult, with the sole exception of the Pauline privilege, which pertains to the Holy Office. Second Supplement to the Enchiridion Morale, 178, 181. Trent, sess. 24, chap. 3; Innocent XIII, Const. Romanus Pontifex, April 3, 1692; Benedict XIV, Const. Pastor bonus, April 13, 1744; Notification 87, n. 7; A.S.S., vol. 7, p. 423 ff.; L. 1118, 1144.

It is prohibited under penalty of nullity, after one Congregation has been approached for obtaining a dispensation, to approach another; and, after dispensation has been denied by the Apostolic See, to seek it from the Ordinary on the same alleged cause. Innocent XII, Const. Ut occurratur, June 4, 1692; Pius X, Const. Sapienti consilio, Order to be observed in the Roman Curia, Particular Norms, chap. 1, n. 2; Zitelli, de Dispens. Matr., Rome, 1887, p. 70.

From the Holy Office, August 11, 1887, all matrimonial dispensations for the external forum are committed either to the Ordinary of the petitioners or to the Ordinary of the place. For the forum of conscience the letters are directed to a confessor from among those approved by the Ordinary, to be chosen or designated by the petitioners. Zitelli, de Dispens. Matr., p. 100; Practice of Apostolic Dispensations of the Apostolic Datary, n. 188 ff.; E.M.

n. 1042.

Note: Dispensation was formerly given by the Apostolic Datary either in the form for the poor, when dispensation was made gratis or with lesser expenses, or in common form, by exacting the established tax, which is called the composition, because it is variously defined according to the various impediments and petitioners. Therefore the state of fortune which is possessed and hoped to be possessed must be set forth. Dispensation was made entirely gratis with the miserable. Collectanea S.C. de Propaganda Fide, 2nd ed., n. 393. "The truly poor are judged to be no others than those who are so miserable that they live only by the labor of their hands and industry.... Those also can deservedly be called poor who... possess goods in capital of the value of 300 scudi, Roman money, if they dwell this side of the mountains, or, if beyond the mountains, of the value of 300 ducats of gold of the Camera, reaching the sum of 325 scudi of the said money. But if they have goods up to the quantity of 1000 scudi or respectively ducats of gold of the Camera, dispensation is nevertheless granted in the form for the poor, yet with an alms paid of four scudi for each hundred." Holy Office, September 26, 1754. These last are called almost poor. The Roman scudo equals 5.375 lire.

In the concession of dispensations from matrimonial impediments from dishonorable causes, there cannot be understood as tacitly granted to the Ordinary also the faculty of declaring legitimate the offspring received before the execution of the dispensation and the celebration of marriage; rather, it is required that legitimation of offspring be sought by the petitioners and granted in the Rescript. Sacred Congregation of the Sacraments, January 29, 1909. Instruction of Urban VIII, October 6, 1671; Collectanea S.C. de Propaganda Fide, n. 1477; Reiffenstuel, book 4, tit. 31, app., nn. 398, 402; Schmalzgrueber, tit. 16, n. 232 ff.; A.S.S., vol. 1, pp. 383, 446; E.M.

n. 1043.

Is a dispensation in the form for the poor valid when the petitioners are not poor? It is illicit, and gravely so, as is clear in itself; nevertheless it is valid, because since poverty is not the motive cause of the dispensation, it labors under neither the vice of obreption nor of subreption. But the petitioners are still bound to pay it, unless remission is obtained. Sapienti consilio, Order to be observed in the Roman Curia, Common Norms, chap. 11, n. 3. The taxes previously established by the Apostolic Datary and by the Sacred Penitentiary continue to have force. Const. Sapienti consilio, l.c., Temporary Dispositions, n. 12. But it would certainly be invalid if it were given by a Bishop having this special power of dispensing with the poor. Sacred Congregation of the Council, April 26, 1873; Monit. Eccles., vol. 11, p. 388. Sacred Penitentiary, December 1, 1852; A.S.S., vol. 7, p. 423; L.H.A. 87.

n. 1044.

Can dispensation of impediments also be sought from the Bishop, at least sometimes? It can be sought from the Bishop if he has this faculty from a special indult and delegation of the Roman Pontiff. And then the Bishop cannot exceed the limits of the mandate; otherwise he acts invalidly. Sacred Congregation of the Council, April 26, 1873; A.S.S., vol. 7, p. 297. Cf. Lugo, Responsa Moralia, book 1, disp. 43; Sanchez, book 8, disp. 2, nn. 27, 28, disp. 23, n. 10.

Now Bishops and Vicars Apostolic, by force of quinquennial faculties or faculties for a longer time, can dispense in several impediments. The same can also be done by approved confessors having the schedule of the Sacred Penitentiary. Cf. the respective Forms. Nevertheless Bishops cannot cumulate dispensations from several impediments in one and the same case without a special faculty. But this prohibition does not extend to those cases in which, with an impediment public by its nature, there occurs another occult impediment, or impediment of the internal forum. But when Bishops dispense from a faculty delegated to them by the Holy See, they can dispense also in a case in which one person is of their diocese but the other of another, because the faculty then proceeds from the Pope, and when the impediment has been removed from one side it consequently vanishes also from the other. Holy Office, March 31, 1872; Sacred Congregation de Propaganda Fide, September 19, 1861.

Dispensation can likewise be sought from the Bishop in occult impediments and in a most urgent case of necessity, which does not allow delay in approaching the Roman Pontiff or his delegate, even by letter, whether in marriages to be contracted, if the celebration of the marriage cannot be deferred without grave danger of infamy and scandal, cf. 955, or in contracted marriages, if either separation cannot be made without grave harm, or dispensation cannot be deferred without danger of incontinence, provided that the marriage was entered not knowingly, i.e., with at least one of the spouses unaware of the impediment, and not with the publications despised. C. Ubi 2, de Despons. impub.; Trent, sess. 24, chap. 5, de R. M.; L. 611, 613, 1121 ff.; Sanchez, book 2, disp. 40; De Iustis, book 2, chap. 2, n. 182 ff.; Reiffenstuel, book 4, tit. 21, app., nn. 65, 509; Pignatelli, vol. 3, Cons. 33, n. 8.

This power is commonly restricted to occult impediments in a most urgent case of necessity. Nevertheless it seems that it must be enlarged, for the article of death, to public impediments. The argument is taken from the Response of the Holy Office, April 22, 1890. Cf. Enchiridion Morale, 4th ed., n. 1044. But scarcely today can there be place for the use of such a power, since Bishops and others have other special faculties from the Supreme Pontiff.

For dispensation can also be sought, in public diriment impediments of ecclesiastical law, not excepting clandestinity, but excepting priesthood and affinity of the direct line from licit copulation, as regards the sick established in the gravest danger of death, living in civil marriage or concubinage, when there is not time to have recourse to the Holy See, according to the power made to local Ordinaries by Leo XIII through the Decree of the Holy Office, February 20, 1888, December 13, 1899. Cf. 1015. But Bishops can habitually subdelegate this faculty to pastors and others performing the duty of pastors, for cases in which there is danger in delay, Holy Office, January 9, 1889; April 23, 1890, and for a particular act to any priest. Included also is the faculty of legitimating offspring, adulterine and sacrilegious offspring being excluded. Holy Office, July 8, 1903.

Moreover "His Holiness... deigned to declare and decree that any priest who, according to the norm of art. 7 of the decree Ne temere, when danger of death is imminent, where the pastor or local Ordinary or a priest delegated by either of them cannot be had, can validly and licitly assist at marriage before two witnesses, in the same circumstances can also dispense from all impediments, even public, dirimently impeding marriage by ecclesiastical law, except the sacred order of priesthood and affinity of the direct line from licit copulation." Sacred Congregation of the Sacraments, May 14, 1909.

Therefore by force of this Decree there is only a natural obligation of sincere repentance and reparation of scandal. This faculty of dispensing from matrimonial impediments, when danger of death is imminent in the case of art. VII of the decree Ne temere, made through the Decree of the Sacred Congregation of May 14, 1909, has force not only for concubinarians, but also if there is not question of concubinarians, provided nevertheless that another cause is present, for consulting conscience and, if the case suggests it, the legitimation of offspring. Sacred Congregation of the Sacraments, August 16, 1909. By the same Decree of May 14, 1909, of the Sacred Congregation of the Sacraments, pastors also are comprehended, even if they were not habitually subdelegated by their proper Ordinaries according to the norm of the Declaration of the Holy Office, January 9, 1889. Sacred Congregation of the Sacraments, July 29, 1910.

Finally, dispensation can be sought from the Bishop in doubtful impediments, in which, although it is not then necessary where there is question of doubt of law, because a doubtful law does not oblige, nevertheless, where there is question of doubt of fact, the dispensation removes the impediment, if it truly exists. Therefore, if afterwards it appears that there was truly an impediment, a new dispensation is not needed; otherwise the dispensation would do absolutely nothing. Benedict XIV, de Syn., book 9, chap. 2; Corradus, book 8, chap. 4, n. 34 ff.; L. book 1, n. 190; book 6, nn. 613, 902, 1103, 1121-1125, 1129; de Priv., 54 ff.; Lugo, Responsa Moralia, book 1, disp. 39; E.M.

n. 1045.

How is a dispensation to be expedited? Dispensation is usually granted in commissory form, namely the dispensation is not given, but the power of dispensing is committed to the Ordinary of the petitioners, or to the Ordinary of the place, in the external forum, Trent, sess. 22, chap. 5, de R., or to a confessor approved by the Bishop, in the internal forum.

As regards a dispensation of the Sacred Penitentiary, let it be made after absolution with these or similar words: By apostolic authority I dispense with you from the impediment N. which you incurred, so that you may be able to enter marriage, or perfect the marriage entered, and I render legitimate the offspring received, or to be received. In the name of the Father, etc. But if the dispensation is from a vow of chastity, it is said: Moreover, by dispensing I commute for you the vow of chastity which you emitted, so that you may be able to contract marriage and use it, into the works which I have prescribed for you. In the name, etc. No formula is prescribed under penalty of nullity, indeed not even under precept; for none is contained in the Roman Ritual. If the confessor had omitted to legitimate the offspring, he could repair this omission; for then he would continue the cause committed to him and not yet completed.

If the impediment is known to both contracting parties and is common, each must be dispensed by his or her respective confessor. Sacred Penitentiary, November 15, 1748. The same Rescript can serve two confessors, and it is to be torn up by the one who later executes it with his penitent. But if the impediment is known to only one, one execution is required.

As regards a dispensation of the Sacred Congregation of the Sacraments, only after the Rescript has been received must: 1. the delegate for dispensing observe carefully that no error has crept in concerning the name and surname of the petitioners, in the name of the diocese or place; he must observe the various clauses inserted into the dispensation; and he must inquire concerning the truth of the causes. Nevertheless, more probably, this information is not required for validity. For from the Holy Office, August 28, 1885, in place of the words, "if through information you find that the prayers rest upon truth," which formerly were placed in the Rescript, the words to be placed are: "if the things set forth are true," and now other equivalent words are placed in the Forms of the Sacred Congregation of the Sacraments, with the cause kept before the eyes which is chiefly brought forward for obtaining the desired grace. Cf. vol. 1, n. 285. It suffices that the pastor or another be delegated for the verification of the causes; but "the dispensation and legitimation of offspring can be effected only by the executor himself." Sacred Penitentiary, April 27, 1886.

He must declare before the parties and witnesses that the impediment of marriage is removed, and command that attestation of this dispensation be written in the registers of the diocese.
He must transmit the Rescript to the pastor of one or the other party with permission that he may assist at the marriage.
It is altogether expedient to give the dispensation in express words, "We dispense," in writing, and "by Apostolic Authority," and "we declare the offspring legitimate." It should be noted that for this legitimation a special Indult is needed; and adulterine and sacrilegious offspring is excluded. And the dispensation is then perfected and the impediment is removed when the Ordinary declares this will of his to dispense, or when he signs and issues the written document. If it has been given, and the spouses, with their plan changed, have entered another marriage, after they have become widowed, they can still use it.
Although no censure is foreseen to have been contracted by the petitioners, nevertheless the Ordinary or confessor who, by force of Indult, grants a matrimonial dispensation "laudably premises absolution from censures." Sacred Penitentiary, July 2, 1891. But if the petitioners are bound by a censure, absolution must altogether be premised for the validity of the dispensation. Holy Office, December 18, 1872; A.S.S., vol. 26, p. 517. But from the Constitution Sapienti consilio, today censure does not stand in the way of the validity of a grace of the Holy See, unless there is question of those excommunicated by name or suspended from divine things by name by the Holy See. Order to be observed in the Roman Curia, Particular Norms, chap. 3, art. 1, n. 6. Pyrrhus Corradus, de Disp., book 1, chap. 4; De Iustis, book 1, chap. 6; L. book 1, n. 197 at the end, 1131, 1146; Benedict XIV, Instruction 87, n. 34.

The dispensation must be put into execution by the Ordinary, that is, the Bishop, Administrator or Vicar Apostolic, Prelate or Prefect having jurisdiction with a separate territory, and their Officials or Vicars General in spiritual matters, and, when the See is vacant, the Capitular Vicar or legitimate administrator.

If the dispensation is granted in gracious form, that is, if the Supreme Pontiff directly dispenses and mere execution of communicating the dispensation is committed to a delegate, the delegate can execute the Apostolic Letters if the Supreme Pontiff dies in the meantime, because it is a grace already made. And the grace is then understood as granted, and the impediment removed, when the Rescript is signed and issued furnished with seal. But if the dispensation is granted in commissory form, and the Supreme Pontiff dies in the meantime, the delegate can still execute the Apostolic Letters if he is a necessary executor, for it is also a grace already made. For the Supreme Pontiff then, granting the petition, gives a mandate to the delegate of dispensing, or of executing the dispensation. For then he himself does not dispense, but after knowledge of certain conditions executes the dispensation of the Holy See, which, previously conditional, then becomes absolute while remaining the same. But he cannot execute it if he is a voluntary executor, for it is a grace to be made. For the Supreme Pontiff then simply confers on him the power of dispensing; and therefore the dispensation is not really had directly except from the delegate to whom such power has been given, and when it is dispensed by the delegate. Cf. vol. 1, nn. 251, 255, 283; Practice of Apostolic Dispensations, nn. 226, 229; E.M. 1044, 1045.

n. 1046.

What are the principal clauses which are usually placed in dispensations? It must be noted first that, from the various clauses contained in the Apostolic Rescript, some contain true conditions regarding the validity of the dispensation, while others contain precepts and admonitions pertaining only to the liceity of the dispensation.

Now the principal clauses are the following:

If it is so, if the prayers rest upon truth, or another equivalent clause. This pertains only to those things which would render the dispensation subreptitious or obreptitious. But faith, as regards the confessor, is to be given to the penitent, unless he certainly knows the opposite from knowledge outside confession.
Sacramental Confession having first been heard. This is required for validly dispensing for the internal forum, although the penitent has already previously confessed to another. It suffices that only one of the spouses has confessed, unless something else is clearly expressed, because an unjust condition ought not to be imposed on one through the other. De R.I., in VI. In the tribunal of penance alone, after hearing the penitent's Confession, can the confessor execute a rescript of the Sacred Penitentiary for the internal forum. But the execution is valid, although the penitent confesses invalidly and sacrilegiously. Moreover, the dispensation must be manifested before absolution, and can be granted even if absolution is deferred. Sacred Penitentiary, May 19, 1834. And the same Sacred Penitentiary, January 4, 1839, declared: "In executing rescripts of the Sacred Penitentiary, care must indeed be taken that the penitent be disposed for absolution from sins; nevertheless absolutions from censures will be valid, provided that at least an accusation or confession of sins has preceded, which is sacramental."
The occasion of sinning having first been removed, namely the proximate and voluntary occasion; but if it is necessary, it suffices that it be removed in mind, by rendering it remote from proximate through the due means. It is an admonition, not a condition for the validity of the dispensation.
Scandal being removed, insofar as it is present, especially through separation, if this can be done. "Separation is to be preferred to other modes of repairing scandal; if this cannot be done, scandal is to be repaired, but the manner of repairing scandal is left to the prudent judgment and conscience of the Ordinary, according to the requirements of each case." Sacred Penitentiary, April 12, 1889.
Provided that the impediment is occult, namely if it is known to few, in a town to only five or six persons, in a city to only seven or eight, and from the circumstances it is prudently conjectured that it will not be divulged. But if it is known only to the contracting parties, or only to one who cannot prove it, then it is called altogether occult. L. book 1, app. 2, n. 33; book 6, nn. 593, 1111; book 7, nn. 76, 78, 141; Benedict XIV, Instruction 87, n. 39 ff.; D'Annibale, 3rd ed., part 1, n. 242.
With grave and long-lasting salutary penance; with grave salutary penance. "In defining beforehand the quality, gravity, duration, etc., of the penance, which are left to the judgment of the one dispensing or the delegate in conformity with law, neither the limits of severity nor of humanity are to be exceeded, and account must be taken of the condition, age, infirmity, office, sex, etc., of those upon whom the penalty is enjoined to be imposed." Sacred Penitentiary, April 8, 1890. Therefore a penance must be imposed, and it must be accepted and fulfilled under grave obligation. But "omitted fulfillment of it does not bring with it the invalidity of the dispensation." Sacred Penitentiary, December 14, 1891. "The clause prescribing the imposition of penance is judged satisfied, even if it is accepted with a feigned mind by those who are dispensed." Sacred Penitentiary, November 12, 1891. De Iustis, book 1, chap. 7, n. 137 ff.; Reiffenstuel, book 4, tit. 21, n. 409.
Some alms having been distributed, according to the judgment of the Ordinary. "Non-observance of this clause, which is usually placed in dispensations, does not bring with it nullity of the dispensation." Sacred Penitentiary, June 10, 1876. With the poor this clause can be omitted according to the judgment of the Bishop. Sacred Penitentiary, November 11, 1890.
The party having been informed concerning the nullity of the prior marriage; yet in such a way that the crime of the petitioner is not to be manifested. This clause imports two things, namely: 1. that the other party renew consent; 2. that he or she consequently be informed concerning the nullity of the prior consent.
And insofar as this notification cannot be made without grave danger, consent having been renewed according to the rules handed down by approved authors. Various modes are handed down. These are the principal ones assigned by various authors: 1. If the spouse simply says: Our marriage is null because of some impediment; or: The confessor told me that it is null..., and therefore let us renew consent. But in this way the other party now becomes altogether informed concerning the nullity of the marriage, and in this practically the whole difficulty consists. 2. If the spouse says: I did not have true consent when I contracted marriage; now I wish to give new consent, do you also wish to give it? This mode is commonly admitted by authors, and can rightly be used without a lie, since null consent is not true consent; and otherwise the spouse ignorant of the impediment thus knows sufficiently the nullity of the marriage. 3. If he says: I am troubled by scruples concerning the validity of our marriage, and therefore let us renew consent. This mode can be admitted according to the more common opinion with St. Alphonsus, 1117. For it suffices that the other party place consent independent of the prior; and for this it is enough that he prudently doubt concerning the validity of the first marriage. 4. Various other modes are also offered by several theologians, e.g., if the spouse says to the spouse: Tell me, please, if our marriage were null, would you not wish to contract again? Or: If you had not married me, would you not wish to marry now? etc. But these modes are rightly rejected, because thus it is uncertain whether the other party intends to repeat consent in the preceding marriage, or to consent to a new one. L. 1117. "It is necessary to distinguish between nullity and the cause of nullity. The nullity is to be manifested. For a null act cannot be ratified unless its nullity is known, C. Proposuit, C. Ad nostram, de Coniugio servorum. But as regards the cause of the nullity, it would be an error to manifest it." Benedict XIV, Epistle Accusiamo to Cardinal de Sinzendorf, Bishop of Breslau, December 29, 1742. As is clear, practically the whole difficulty lies in having that knowledge of the nullity of the marriage.

If it is morally impossible to inform the party, and thus to renew consent, either a dispensation in radice must then be sought, or after a dispensation has been sought, and with urgent necessity standing, the clause can be held as not invalidating, so that only the one conscious of the impediment renews consent, while the other, unaware of the impediment, perseveres in the consent previously given. Cf. Benedict XIV, Notification 87, n. 74 ff.; cf. here n. 1050.

These presents having been torn up, under penalty of excommunication latae sententiae. The tearing up of the Letters of the Sacred Penitentiary, which places this clause, must be done immediately, but understand morally, namely at least within three days after the dispensation has been executed. But if the clause of tearing up has not been placed in the letters, as it is not placed when marriage has not yet been contracted, then there is no obligation to tear them up, but a dispensation of this kind must be carefully noted by the pastor in a book which cannot be seen by anyone else, so that he himself, when there is need, may be able to give proof concerning the dispensation obtained. L. 1143; Schmalzgrueber, book 4, tit. 16, n. 242 ff.; Benedict XIV, Notification 87; A.S.S., vol. 28, p. 512; Practice of Apostolic Dispensations; E.M.

n. 1047.

What is revalidation of marriage? It is to render valid that which is invalid because of an essential defect, by removing the aforesaid defect. But this defect can proceed from consent, from form, or from the incapacity of persons to contract.

n. 1048.

What about revalidation because of defect of consent? Consent remains habitually, and here also virtually, for as long as, once duly placed, it has not been revoked. Therefore: 1. if one of the contracting parties did not give consent, he must altogether give it, even without the other party knowing, and this alone suffices; otherwise marriage will never be had, nor can consent be supplied in any other way and manner. Consent of this kind is signified by cohabitation and other conjugal acts. And thus both are had, interior consent and its exterior signification, which does not necessarily consist in words. Nor indeed is anything else per se required in the case for the validity of marriage. Nevertheless the one who renews consent must know that the prior consent was null, and that the marriage was null, because otherwise he does not really consent, since nothing is willed unless it is first known. And thus consent must altogether be given if it was never present, or was only simulated, erroneous, or coerced, after the error and fear have ceased. This holds if the defect is occult, although the pastor and witnesses were conscious of the impediment. The reason is that the assistance of the pastor and witnesses is required only so that they testify to the celebration of the marriage, so that it may be impeded lest the spouses contract another marriage; not so that they testify to the validity of the marriage. But if the defect was public, the marriage must then again be contracted before the pastor and witnesses, where Trent was in force, and where now marriage must be contracted according to the decree Ne temere; otherwise where the marriage is valid independently either of Trent or of the aforesaid Decree. Nor is it per se necessary that the other contracting party also renew consent. L. 1114; A.S.S., vol. 11, p. 346 ff.

If the consent of each contracting party was lacking, it is necessary that each consent. But is it necessary to place consent mutually, or does it suffice that it be placed separately? This is controverted. Some hold that it suffices if it is placed separately, because once the consent of one has been placed, the consent of the other can be added to it. Others say it must be placed mutually, because otherwise the contract is lacking. "It is certain," says St. Alphonsus, 1114, "that in the contract of marriage physical simultaneity of the consents of the spouses is not required, but moral simultaneity suffices, namely if the consent of one morally perseveres while the consent of the other is placed." And indeed it must again be renewed before pastor and witnesses if the aforesaid defect was public; but otherwise if occult, as in the preceding case.
But if the defect in each preceding case, although occult, is such that it must be dispensed in the external forum and can be proved, it is altogether necessary that the marriage be secretly revalidated before the pastor and witnesses; otherwise, if perhaps the impediment becomes manifest, the spouses could institute divorce. C. Insuper 4, Qui matrim. accusa.; C. Propositum 1, de Eo qui dux.; C. Ad id 21, de Sponsal.; Sanchez, book 2, disp. 32; L. 1109-1114; St. Thomas, Suppl., q. 47, a. 4, ad 2.

n. 1049.

What about revalidation because of defect of form? It is certain that a marriage invalid by reason of clandestinity must be entered before the pastor and witnesses, formerly according to the law of Trent, now according to the decree Ne temere, from which dispensation is rarely given. If both spouses do not refuse to present themselves before the pastor and witnesses, marriage must be contracted publicly or occultly according as its nullity is public or occult. The reason is that in the first case scandal must be removed, in the other it must be guarded against, and the whole reputation of the spouses must be preserved.

If one party or each refuses to go to the Church, they are to be joined in their own house or another place chosen by them, provided that grave witnesses are present, by whose aid convalidation of this marriage can be made public, if this is necessary for removing scandal, namely if the invalidity of the prior union is notorious. If one refuses to contract before the pastor, and the refusal arises from ignorance or some error against the laws or doctrine of the Church concerning impediments invalidating marriage, the one refusing should be instructed with due prudence and in charity. And insofar as he still refuses to convalidate his marriage in the face of the Church, then one must strive that he constitute a special procurator, who in his name will contract marriage in the customary way; or at least, with express consent de praesenti by letter directed to the proper pastor or to another priest having the license of the Ordinary or pastor, the marriage should be renewed. Cf. 963. If the indisposed party does not wish to contract even through a procurator, one can come to dispensation in the root of the marriage, or to sanation of the marriage in the root, so that at least provision is altogether made for the salvation of the soul of the innocent party, the legitimacy of the offspring, and the tranquility of the families, and so that provision can as soon as possible also be made for the salvation of the soul of the one refusing. Instruction of Cardinal Caprara, Legate a latere in France.

If a marriage was invalidly contracted by reason of clandestinity, and the spouses then go into a place in which clandestine marriage is valid, and there continue conjugal life, the marriage is convalidated if, being conscious of the nullity, they renew consent at least through conjugal copulation. But if they are ignorant of the nullity, or do not attend to it, and conjugal life is continued, the marriage remains invalid, Holy Office, August 31, 1887, because the prior invalid consent always remains, and no new consent independent from the prior one, and altogether necessary, has been added. But this reason for the resolution is not without difficulty, since the consent of the parties is naturally consent, and consent remains in whatever place, and therefore, when the extrinsic impediment of observing the extrinsic form has been removed, the consent which was naturally valid and could not produce its effect while the impediment of the law stood, once this has been removed, produces its effect. And thus, when baptism has been received by unbelievers, their marriage remains and becomes a sacrament, although consent into marriage is not renewed. And so also, by the same consent altogether, and in no way renewed after the nullity of the marriage has become known, a marriage invalid from an occult impediment is sanated in the root. Therefore the reason for the Resolution does not seem to be able to be the invalidity of consent, but rather because from the Council of Trent, sess. 24, chap. 1, de R. M., those who attempt to contract clandestinely are rendered incapable of contracting thus, and therefore even in another place they persevere incapable of contracting clandestinely. C. Propositum 1, de eo qui duxit, etc.; E.M. 859.

n. 1050.

What about revalidation because of defect of personal incapacity? If marriage must be revalidated because of the incapacity of a person, by reason of some diriment impediment which is dispensed, dispensation from the same impediment must certainly be sought. If each spouse is conscious of the impediment, each is bound to renew consent, after dispensation has been obtained for revalidating the marriage. The reason is that knowledge of the nullity of marriage because of a known diriment impediment had easily excluded true consent in the preceding contract of marriage. Cf. 1033.

If only one party knew the impediment, that party is bound to renew his or her consent, at least alone and separately. This follows from what has just been said.

The party ignorant of the impediment would not necessarily have to renew consent for the validity of the marriage if the impediment regarded only the other party. The reason is that the consent of that party was valid from the beginning, and therefore perseveres; therefore renewal of consent of the incapable party would suffice. Hence, if a believer had married a non-baptized woman who is ignorant of the impediment, it would suffice, when infidelity ceases or dispensation is obtained, that the believer renew consent; because the consent of the unbeliever was valid, since the Church could not impress personal incapacity upon her. L. 1114; St. Thomas, Suppl., q. 47, a. 4, ad 2. Cf. Monit. Eccles., vol. 11, p. 24 ff., p. 105 ff. Nevertheless, from various decisions of the Holy Office, if each party in the case was ignorant of the impediment, and the unbelieving party received baptism, and the marriage is not ratified by them, knowing its nullity, in a place where clandestine or mixed marriages are valid, the marriage remains invalid, although they persevere in conjugal cohabitation. Holy Office, May 8, 1899. In finding the reason for this Resolution, the same difficulty appears as in the preceding case, as can also be seen from the following question. The reason is brought forward that the consent which is gathered from marital custom arises from error, namely that the prior consent is judged to have force. But if this were true, whenever marriage had been contracted invalidly, marriage could never be sanated in the root without renewed consent, which is against the fact itself. Therefore it can better be said that the Church in such a case does not accept that prior consent as legitimate; and unless the Church accepts it, it remains subject to the invalidating power of the Church.

C. Propositum, de eo qui duxit, etc.; E.M. 959.

But must consent also be renewed by the party ignorant of the impediment when this touches both? There are two opinions. The first opinion affirms. The reason is that the impediment takes away the efficacy of consent from the beginning; therefore it remains ineffective, and accordingly can produce no effect, since it perseveres in the same way in which it was given; but a simple dispensation does not heal the vice which preceded, but only renders the parties capable of consenting in the future. The second opinion denies. The reason is that the prior consent, although it lacked its effect because of an impediment placed by positive law, nevertheless by natural law was valid, since it was given by a person capable by natural law toward a person capable by natural law of contracting. This is confirmed from dispensation in radice itself, which is sometimes given. For in it the Church certainly does not supply, nor can she supply, a defect of consent. Therefore, when the impediment has been removed, the prior consent suffices, which virtually perseveres in its effect, through conjugal copulation, cohabitation, or other external signs. Therefore, when the internal consent of the spouse conscious of the impediment is added, expressed at least through similar external signs, the consent of each is united, and the marriage is convalidated. C. Si infantes un., de Despons. impub., in VI; Lugo, Responsa Moralia, book 6, disp. 2, n. 2.

But practically, consent must altogether be renewed not from the nature of the thing, but because of the clause contained in a simple dispensation: "the other party having been informed concerning the nullity of the prior consent." This clause contains not an admonition, but more probably a condition. L. 1115, 1116, 1117, 895, 1145; A.S.S., vol. 26, p. 421 ff. Consent, moreover, must be renewed publicly before the pastor and witnesses if the impediment is public; but privately if it is occult. The reason is that otherwise the marriage could not be sufficiently proved before the Church; and in the first case scandal must be removed, but in the other scandal and the defamation of the parties must be impeded. Indeed, if the impediment, although occult, can be proved in the external forum and must be dispensed, the marriage must be secretly revalidated before the pastor and witnesses, lest the spouses afterwards be able to separate if the impediment becomes known. Therefore, when the impediment is so occult that it can in no way be proved in the external forum, it is not then necessary to contract marriage again before the pastor and witnesses.

St. Alphonsus, book 6, n. 1116, speaking of the second opinion just reported, says that it can serve for practice in a case of urgent necessity. "For if from knowledge of the nullity of the marriage there can prudently be feared danger of death, grave infamy, or scandal to follow from separation; and on the other hand the spouse could not avoid rendering the debt, then he can well use the second opinion as probable; because in that case, by reason of necessity, even with danger of frustration of the sacrament, it is lawful to follow an opinion only probable, as they commonly teach." Cf. here n. 1046, 9. Benedict XIV, Epistle Accusiamo to Cardinal de Sinzendorf, Bishop of Breslau, December 29, 1742, Bullarium, Naples ed., 1885; Instruction 87, n. 62 ff.; Sacred Congregation of the Council, June 8, 1610; Sacred Penitentiary in Ferraris, v. Matrimonium, a. 8, n. 9; Pyrrhus Corradus, book 7, chap. 7, nn. 8, 9, 12, 13; book 8, chap. 3, n. 44; L. 1899.

If there is danger that the other, upon knowing the nullity of the marriage, will not wish consent to be renewed; or, when each spouse is ignorant of the impediment, the same danger is present and there would be other grave inconveniences of defamation, then the Apostolic See must be approached, so that it dispense from the aforesaid condition of renewal of consent and grant the dispensation which is called in radice. Rising up to the origin, or root, of the marriage, this both renders the person capable of contracting and heals the very vice of the consent given at the beginning. For the root of marriage is consent, and the root which is sanated is consent into marriage naturally valid; and therefore the marriage begins from now to be valid. Holy Office, March 8, 1900; Monit. Eccles., vol. 12, p. 3. The marriage itself moreover is sanated as regards effects, and as regards the legitimation of offspring, from then, i.e., as if it had been valid from the beginning. Namely, in such a case that condition of renewing consent is relaxed; when this has been removed, and when the incapacity of the person has also been removed by dispensation, that consent, valid by natural law, exercises its moral force, and the marriage is perfected. But, as is clear, it is necessary that consent into marriage truly was present and perseveres, and that marriage truly was contracted, and in good faith on the part of both or at least on the part of one, and that it had and still retains the appearance of marriage. Therefore this dispensation is applied while one party, or even both parties, are ignorant of it.

Dispensation in radice is to be executed in the same way as a simple dispensation, by adding in the formula the words, "in the root." Thus, for example: "I, by apostolic authority granted to me, sanate and consolidate in its root the marriage contracted by you with N., and I declare legitimate the offspring received and to be received, in the name of the Father, and of the Son, and of the Holy Spirit." But no formula is contained in the Roman Ritual. Sanchez, book 2, disp. 35, 36, 37; book 8, disp. 7; Benedict XIV, Const. Etsi, Notifications 68, 80, 87; de Syn., book 13, chap. 21; L. 1109, 1115 ff.; E.M.

Dispensation in radice is granted by the Sacred Penitentiary, by the Sacred Congregation of the Sacraments, and by the Holy Office for various cases, and regularly must be sought through the Ordinary. Monit. Eccles., vol. 19, p. 4 ff.

According to the Holy Office, November 22, 1889, for sanation in radice it is required that the Catholic party acknowledge the nullity of the marriage. Collectanea S.C. de Propaganda Fide, n. 1721.

According to the Holy Office, March 11, 1868, marriages contracted with impediments of ecclesiastical law are revalidated in radice without renewed consent. Collectanea S.C. de Propaganda Fide, 2nd ed., 1897, n. 1326.

According to the Holy Office, August 22, 1906, a marriage null because of disparity of cult is sanated in radice after baptism has been received by the wife, without any prior admonition of the Catholic husband. Collectanea, cited, n. 2239.

Legitimation of offspring made by the Supreme Pontiff is extended by a certain consequence also to temporal effects. C. Per venerabilem 13, Qui filii sint legitimi. This is clear in two ways: as regards canonical and civil effects, and as regards the removal of the very stain and infamy of illegitimate birth.

The faculty was twice granted to me by the Supreme Pontiff Pius X of sanating in radice the marriage of two married women, without their husbands being forewarned, and with a document of this sanation left with the women themselves, if perhaps the necessity should occur of demonstrating that sanation had been obtained.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 19 passages

Vol. II, Treatise on Matrimony, Ch. VI, Art. II, § III. On Dispensation from Diriment Impediments of Matrimony · Vol. II, Treatise on Matrimony, Ch. VII, Art. III, § II. On the Revalidation of Marriage with a Dispensation in the Root

Vol. II, Treatise on Matrimony, Ch. VI, Art. II, § III. On Dispensation from Diriment Impediments of Matrimony

Three matters must be treated: 1. the power of dispensing; 2. the causes of dispensation; 3. the manner of obtaining a dispensation.

Vol. II, Treatise on Matrimony, Ch. VII, Art. III, § II. On the Revalidation of Marriage with a Dispensation in the Root

n. 901.

- A dispensation in the root is the abrogation, in a particular case, of the ecclesiastical law which introduced the impediment, joined with the invalidation of all the effects which previously followed from the law. - Benedict XIV, Institution 87, no. 80; On the Synod, book 13, chapter 21, no. 7.

n. 901.

This dispensation, therefore, produces its effect by removing the effects of the law which were produced on account of the nullity of the marriage before the dispensation was introduced, and also in the very act of contracting. Thus also the same Supreme Pontiff.

n. 901.

Hence a simple dispensation differs from a dispensation in the root in this: the former does not have its effect except from the time when it is granted, or ex nunc, and consequently cannot exempt from the renewal of consent. The latter, however, convalidates the marriage from the time of the marriage, or ex tunc; that is, through a fiction of law, it ascends to the root or origin of the marriage and places the matter in the same state as if the impediment had never existed. Hence it is called a dispensation in the root, because it destroys the effect of the impediment from the root or beginning of the marriage, namely: 1. by healing the defect of consent; 2. by bestowing validity upon the marriage; 3. by conferring legitimacy upon the children with respect to spiritual effects ¹.

¹ Understand that the child is rendered fit for benefices, sacred Orders, and ecclesiastical offices; concerning this there has never been any disagreement of opinions.

The question is, as Sanchez says (On Matrimony, book 8, disputation 7, no. 3): Whether the Pontiff, by dispensing in the root of an invalid marriage, can legitimate children born from it before the dispensation of the marriage, in places not temporally subject to him, so that they are capable of offices and of succession to temporal goods? That is, whether he can effect that the dispensation be carried back to the time when that invalid marriage was contracted, so that it is judged as though it had been validly entered from the beginning by means of that dispensation, to this effect: that offspring had from it before the dispensation are also legitimate in all respects, no otherwise than if they had been born from a legitimate marriage. And the whole difficulty arises when the impediment on account of which that marriage was invalid was introduced by pontifical law. This controversy is indeed of the greatest moment, since from it there must be determined, for example, whether a son born of an illegitimate marriage, but who has obtained legitimation by aid of this dispensation in the root, must be preferred in succession to a Majorat or a Fideicommissum either to another younger brother who was, however, legitimately born after the dispensation had been obtained, or to another blood relative.

Sanchez, moreover (ibid.), after adducing the reasons for the negative opinion and some of its patrons, then explains his own opinion thus (ibid., no. 4): But the most frequent and truer opinion holds that the Pontiff can do this. It is derived from this: the root and origin from which it arises that offspring are illegitimate and consequently incur the disabilities of illegitimacy, whether ecclesiastical or secular, is the ecclesiastical law by which it was established that the impediment found in that contract of marriage would render it void; and if that law did not stand, the marriage would have been valid and the offspring legitimate and would not have incurred those disabilities. But the Pontiff can invalidate and revoke his law with respect to effects which have followed from it by human law, and not only with respect to those to be incurred in the future, by effecting that they are not incurred, but also with respect to those already incurred, by abolishing them as if the law promulgated had never existed, as is established from the sole Clementine On the Immunity of the Church, where Clement V revokes certain Constitutions of his Predecessors even with respect to effects previously produced, in these words: "Whatever has followed from them or on account of them, we entirely revoke, and we will that they be held as undone." There the Gloss, Cardinalis, Ancharranus, Imola, and the Abbot infer from this that the power of the Pontiff concerning those things which are of positive law is so great that he can revoke them as from the time when they were promulgated, and abolish all past effects as if they had never been promulgated. Therefore the Pontiff, thus dispensing in the root of the marriage, that is, at its beginning, by revoking the impediment which invalidated it as if it had never existed, will effect that the dispensation is carried back to the beginning of the marriage and consequently is judged as though that marriage had been valid from the beginning, with no invalidating impediment existing; in which case the offspring would be truly legitimate in all respects. And it is confirmed, because this is not to dispense in civil law and its effects, but indirectly and through a certain consequence; namely, because by civil law those disabilities are incurred by the offspring on the supposition of the firmness of the ecclesiastical law invalidating the aforesaid marriage, from which it followed that the marriage was invalid and consequently the offspring conceived from it illegitimate and subject to all the disabilities of illegitimacy established by civil law. Since, therefore, the Pontiff by his dispensation in the very root of the marriage directly removes the firmness of that ecclesiastical law and wholly abolishes it, just as if that law had never been promulgated, he will effect indirectly and through a certain consequence that all those disabilities cease, since they depended upon the firmness of the ecclesiastical law. And this reason, and the other matters which can be seen there, are explained still further; where, after illuminating the reasons with still fuller light, he adds very many Doctors who handed down the same opinion.

Nevertheless, it is entirely due to this paragraph, in which he so vigorously undertook to defend and vindicate the rights of the Apostolic See - to this paragraph, I say - that the name of Thomas Sanchez was entered into the Index of Prohibited Books, and that even in catalogues of books which are offered for sale in the City you may often see this mark of infamy branded upon the name of Sanchez and his work On Matrimony. How, you will say, could this happen? Receive the explanation briefly. When this work was published at Venice in the year 1612, this paragraph offended the eyes of the petty theologians who were serving the Venetian republic in the protracted war which it did not cease for many years, indeed for centuries, obstinately to wage against the Apostolic See and its rights. It was therefore commanded by the Magistrates that the work could not be brought forth into the light there unless the hated paragraph, as though opposed to the rights of the republic, were cut out and entirely removed. But that deed did not escape the eyes of Roman vigilance; for, perceiving from that malicious omission in a most celebrated work worn by the hands of all an offense against its rights and thence a scandal to many, it willed that the corrupted edition of Sanchez's work be taken from the hands of the faithful, and therefore ordered that the third volume be entered among condemned books. Wherefore the condemnation falls not upon the genuine work of Sanchez, but upon a particular edition of the work corrupted by wicked fraud. But the fact that, in catalogues of books for sale, that mark of infamy is very often appended to the name of Sanchez without any distinction made between the genuine work and the corrupted edition is due to the ignorance or inadvertence of those who undertake the care of these catalogues.

n. 902.

Principles. - I. The Church, or the Supreme Pontiff, can dispense in the root of marriage with respect to all impediments of ecclesiastical law. The reason is: 1. because to dispense in the root is nothing other than to remove the impediment not only for the future but also for the past, or to remove the effects which it produced, so that before the Church they are held as though they had never existed. In these things, however, there is nothing which exceeds the power of the Church. Therefore, etc. 2. Because this is established and confirmed from the practice of the Church, which for several centuries has been accustomed to grant such dispensations. Boniface VIII is read to have dispensed in this manner first, in the year 1301; but in more recent times Pius VI, Pius VII, Leo XII, etc., dispensed more frequently in the same manner.

- II. Three conditions are required so that a marriage can be convalidated by aid of a dispensation in the root, namely:

That the union of the spouses have had the external appearance of a just marriage and have not been manifestly fornicarious. Thus Benedict XIV. Cardinal Caprara requires the same. The reason is that otherwise true consent would not be present, and consequently marriage could in no way be present; or the root of marriage would not be present, as Benedict XIV says.

That the consent of both have persevered; for the Church cannot convalidate consent retracted even by only one party. Moreover, the Pontiff not rarely requires in the Rescript that the persevering consent of both parties be established. Some nevertheless contradict this.

That an urgent and most grave cause be present. Thus Benedict XIV. This can be present chiefly in three cases, namely: 1. when one party cannot be brought to the renewal of consent and nevertheless exhibits present consent to remain in the marriage; thus Cardinal Caprara; 2. when the impediment is known to only one party and cannot be manifested to the other without grave inconveniences; 3. when there is an urgent reason for not warning the spouses of the nullity of the marriage.

This third condition is not required for the validity of the dispensation if the dispensation is granted by the Supreme Pontiff; otherwise, if it is granted by the Bishop from a particular Indult. - Carriere, no. 1444.

Questions. - QUESTION 1. Can a dispensation in the root be obtained and applied while both parties are ignorant of it?

Reply. Affirmatively. The reason is that knowledge of the dispensation is in no way required for the Church to be able to remove the effect of the law, or the obstacle which stood in the way of the efficacy of consent; for the power of the Church is altogether independent of such knowledge. It is confirmed from the practice of the Church. For Clement XIII, as Collet relates, granted to a certain Procopius (who appears to have been a Bishop) the faculty of sanating in the root, without the parties being warned, many marriages invalidly entered because of an excessive extension of faculties received. Other examples of a similar revalidation of marriages are also related by others.

QUESTION 2. Can a dispensation IN THE ROOT be granted if both parties knew the impediment when they contracted?

Reply 1. Negatively, according to the more common opinion, if the spouses in contracting clearly knew the nullity of the marriage. The reason is that, once the invalidity of the marriage is known, true and properly so-called consent to it cannot be given, but there is only an intention of living in concubinage; and consequently the consent cannot be healed, since it was fictitious from the beginning.

Reply 2. Affirmatively, if the spouses, although they knew the impediment when contracting, nevertheless doubted whether the marriage was null, or did not attend to its invalidity. Thus Cardinal Caprara appears to be understood, who supposes that a dispensation in the root can be obtained to convalidate a clandestine marriage when one party refuses to renew consent before the Church. It appears that one must distinguish in the same manner concerning marriages contracted only civilly.

- QUESTION 3. Can a Bishop dispense IN THE ROOT when he can dispense from diriment impediments by a particular Indult?

Reply. Negatively. The reason is that a dispensation in the root requires greater power, and therefore is not judged to be contained in other faculties. This is confirmed from the practice of the Church, which always gives a special faculty when it intends to grant the power of dispensing in the root.

QUESTION 4. How is a dispensation IN THE ROOT to be executed?

Reply. In the same manner as a simple dispensation, adding in the formula the words in the root. Thus, for example: I, by the apostolic authority granted to me, heal and consolidate in its root the marriage contracted by you with N., and declare the offspring received and to be received legitimate, in the name of the Father, and of the Son, and of the Holy Spirit. But no formula is contained in the Roman Ritual.

Bucceroni, Commentaries (1910)

Gennaro Bucceroni, S.J. — 8 passages (filed under the subtopics)

Ch. IV, Article III: On the Extrinsic Circumstances of the Use of Marriage

Note. 1. As to practice in this matter, it must be recalled to memory that the Bishop can dispense in such an impediment in the case in which easy access to the Supreme Pontiff is not open, and there is danger of incontinence in delay. This power is commonly restricted to occult impediments, in a most urgent case of necessity. Yet there are not lacking more recent authors to whom it seems to be extended to public impediments. They take their argument from a Response of the Sacred Penitentiary, 5 Jul. 1831, cf. Enchir. Moral. ed. 4. n. 131, by which the doctrine of St. Alphonsus is declared safe. Cf. L. 1122. But St. Alphonsus has these things, l. c.: "Roncaglia adds with Pignatelli and Tamburini, that even if the impediment were public the Bishop can dispense, when the same reasons (of true urgent necessity) intervene which suffice for dispensing in an occult impediment. But I think this opinion can scarcely ever have place in practice, because when the impediment is public, the reason of scandal ceases if the spouses desist from such a marriage; indeed especially to avoid scandal they are bound to abstain from nuptials." Yet the aforesaid opinion of the more recent authors is favored, for the article of death, by the Response of the Holy Office, 22 Apr. 1890, to the first, Enchir. Morale ed. 4. n. 1044. Cf. L. 1121-1125. - But today there can scarcely be place for the use of such a power, since Bishops customarily receive special faculties from the Supreme Pontiff, and furthermore the following faculty has been granted:

"Any priest who, according to the norm of art. 7 of the Decree Ne temere, when danger of death is imminent, where the parish priest, or the local Ordinary, or a priest delegated by either cannot be had, can validly and lawfully assist at marriage before two witnesses, can also in the same circumstances dispense over all impediments, even public ones, diriment of marriage by ecclesiastical law, except the sacred order of the presbyterate and affinity in the direct line from licit copulation." S. C. de Sacr. 14 May 1909. Acta Apost. Sed. v. 1. p. 468. Wherefore by force of this Decree there is only the natural obligation of sincere penitence and reparation of scandal.

"Whether the faculty of dispensing from matrimonial impediments, when danger of death is imminent in the case of art. VII of the Decree Ne temere, made by the Decree of this Sacred Congregation dated 14 May 1909, is valid only for concubinarii; or also if it is not a case of concubinarii, but another cause is present for providing for conscience, and if the case calls for it, for the legitimation of offspring? - Resp. Negatively to the first part, affirmatively to the second." S. C. de Sacram. 16 Aug. 1909. A. A. S. v. 1. p. 656.

But whether in a case in which access even to the Bishop is difficult, and in delay there is a most grave danger of incontinence, the parish priest or another confessor can declare that the law of the impediment does not oblige in that case, cf. apud the same holy Doctor n. 613.

If a woman were driven to copulation by most urgent fear of death, she could indeed conduct herself merely passively, yet with every danger of consent excluded. G. 787. Cf. here n. 63.

"Copulation had between persons whose marriage does not subsist because of an impediment, or who otherwise have been deprived of the right of asking for the debt, then receives a special malice that must necessarily be explained in confession, when the impediment was introduced by divine or ecclesiastical law chiefly because of the copulation itself, as having a special indecency and deformity between such persons against some special virtue; either of religion, as is seen in the impediment of solemn vow, or of order, or of disparity of worship; or of piety and reverence toward those joined by blood, as in the impediment of consanguinity, affinity, spiritual and legal kinship; or against the virtue of justice, as in the impediment of the bond, etc. For in these, besides the mortal sin of fornication against the virtue of continence, that copulation receives a special species of malice against that other virtue, as of sacrilege, incest, adultery, etc., which indeed must necessarily be explained in confession. But the matter stands otherwise when the impediment of marriage was introduced not because of a special indecency of carnal copulation between such persons, but because of another cause, for example because of punishment of crime, because of protecting the liberty of marriage, etc., as may be seen in the impediment of crime, abduction, fear, etc. In which case, if someone is joined with a woman as with a spouse, he commits only simple fornication, just like others; unless perhaps they did this in contempt of the Church, or with the formal intention of not obeying; for then both by contracting and by using marriage they would commit a special sin of formal disobedience, always and in every matter mortal. Thus the very common opinion. Sanchez, etc." Sporer n. 484.

Concerning consanguinity, affinity, spiritual and legal kinship, cf. here n. 73 and following.

155. Dispensation of Impediments · 156. Value of Dispensation

But concerning disparity of worship these things are furthermore to be noted for greater precision of the matter: "Fornication of a believer with an unbeliever, for instance with a Hebrew or Mohammedan woman, in the common opinion is far graver than with a Catholic woman. Indeed this circumstance of unbelief, from the continuator of Tournely, changes the species; because just as Christians are prohibited by the Church from marrying an unbeliever in honor of the Catholic faith and for removing the danger of perversion, so for the same cause any copulation with an unbeliever is judged prohibited by the Church, which always tends to the disgrace of Religion; therefore it is not only against chastity, but also against the virtue of Religion. Yet others deny that this special circumstance is mortal." Scavini, Adnot. (A) ad Tr. 4.; Billuart, diss. 6. art. 2. app. 1. And Voit says this is more probable, de praec. Decal. n. 739. - The same is to be said proportionately concerning the circumstance of marriage between a Catholic and a heretic. Cf. Lugo, de Poenit. d. 16. n. 336-341, 343.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 51 passages (filed under the subtopics)

155. Dispensation of Impediments

The faculty is customarily granted by the Holy See of dispensing in the third and fourth degrees of consanguinity and affinity, simple and mixed only, and in the second, third, and fourth mixed degrees, but not in the second degree alone as regards future marriages; but as regards past marriages, even in the second degree alone, provided that it in no way touches the first degree, with those who are converted from heresy or infidelity to the Catholic faith; and, in the aforesaid cases, of declaring legitimate the offspring received. It is asked: 1.º "Whether this faculty of dispensing in the degrees of affinity includes affinity contracted illicitly or not. And if the response be affirmative, how it can be dispensed by the said missionaries, if it always touches the first degree; and: whether this faculty of dispensing in the degrees of consanguinity and affinity is understood also for Catholics, since the privilege says: with those who are converted from heresy or infidelity to the Catholic faith?

R. As regards the first doubt, in which it is asked whether the faculty of dispensing in the degrees of affinity includes affinity contracted illicitly or not, the answer must be: Affirmatively. But in the remaining matters the answer must be: Negatively." S. O., Oct. 19, 1712, Collect. S. C. de P. F. n. 1229.

However, the following other Decision is had, which is later: "It must be answered, by way of instruction to Monsignor the Archbishop of Corfu, that by virtue of the words: of dispensing in the third and fourth degree of consanguinity and affinity, simple and mixed only, and in the second, third, and fourth mixed degrees, but not in the second degree alone as regards future marriages, he can dispense with all his diocesans. But as to the other part of the said § 6, contained in these words: but as regards past marriages, that is, marriages, even in the second degree alone, provided that it in no way touches the first degree, the aforesaid Monsignor Archbishop can dispense only with those who are converted from heresy or infidelity to the Catholic faith; warning also the above-named Monsignor Archbishop that in practice schism is joined to heresy." S. O., Mar. 13, 1736, Collect. cit. n. 1231; Comp. Priv. Soc. Iesu n. 390.

2.º Concerning the faculty of dispensing in the second degree with converted heretics, it is asked: Whether this is permitted in the case in which one party of the contracting parties is such, and presses for the favor, or whether both must be converted?

R. Either the matter is of two heretics, of whom only one has been converted to the Catholic faith, the other remaining in the state of heresy; or of two persons, of whom only one is a heretic, while the other is a born Catholic. In the first case it is required that both be converted to the Catholic faith; but in the second it is enough that one only be converted." S. O., Sept. 26, 1709, Collect. cit. 1228.

Yet there is also another Decision as regards the aforesaid faculty, of the following tenor: "By past marriages... are understood not just any unions whatever, even fornicarious ones, but only those which, according to the customs of the regions either of infidels or of heretics, have the form and figure of marriage and are held as legitimate marriages, which nevertheless are void. And there are understood marriages: 1.º of the faithful with infidels, entered without apostolic dispensation on disparity of cult; 2.º of Catholics with heretics; 3.º of heretics with infidels, or among themselves... when namely in the first and second case the other party is converted to the Catholic faith, and in the third case whether one party only or both parties are converted to the faith." S. O., Sept. 16, 1824, Collect. cit. n. 1235, 1463.

Moreover by the same faculty power is given also as regards marriages contracted invalidly after the conversion of one party on account of the aforesaid impediments; and as regards mixed marriages formerly contracted invalidly, although the heretical party is now converted. Besides, a faculty is given of dispensing with a converted infidel who before conversion contracted with a baptized non-Catholic party in the aforesaid degrees. But as regards that particle and, whether it is to be understood copulatively or disjunctively? "The words of the Formula are to be taken thus: that the granted faculty is understood as a faculty of dispensing both from the impediment of consanguinity and from the impediment of affinity, but separately; not, however, when both impediments concur in one and the same case." S. O., July 2, 1884, Collect. S. C. de P. F. n. 1245. Cf. Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31; Comp. Priv. Soc. I. n. 390.

"The petition having been reported, sent by the S. C. de P. F. to the Holy Office, of the capitular vicars of the diocese of Tuam in Ireland, who proposed the doubt whether, since they have the faculty of dispensing in the third degree, they can use it in favor of those who had already contracted marriage knowingly within the prohibited degrees and in fraud of the law, against the express prohibition of the Council of Trent, or whether a new particular dispensation of this Holy Office is required; the Eminent Lords decreed: That it should be rescribed that in the Formula of faculties a distinction is made between the faculty of dispensing from impediments for marriages to be contracted and for marriages contracted, which is restricted to those converted from heresy; and that for marriages contracted knowingly with an impediment, a special faculty is required." S. O., Dec. 22, 1723, Collect. cit. n. 1230.

Here also another much more recent Decision is had: "Whether the faculties of the Formularies, by which power is given of dispensing in matrimonial impediments, are valid also when there is question of a marriage contracted nullly, both parties, while it was being contracted, being conscious of the nullity?...

R. The faculties in question are valid also when both parties are conscious of the nullity of the marriage already entered." S. O., July 2, 1884, Collect. S. C. de P. F. n. 2187; Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31. 6.-9.º; Compend. Privil. Soc. Iesu n. 390.

With what extension is the aforesaid faculty of dispensing in consanguinity and affinity to be understood?

R. 1.º An indult of relaxing the impediment of affinity, granted without limitation, extends to relaxing both that which arises from licit intercourse and that which arises from illicit intercourse.

2.º An indult of relaxing the impediment of affinity from conjugal intercourse extends also to the impediment of public honesty, which is necessarily connected with it.

3.º A faculty delegated generally of dispensing as regards some degree of consanguinity or affinity extends to the same degree duplicated or multiplied, proceeding from both parents. S. Poenit., Apr. 20, 1883, Collect. cit. n. 1244.

4.º The word simple and mixed, as regards a degree of consanguinity or affinity, simple or mixed, can be understood in three ways. 1.º Simple excludes only the mixture of unequal degrees on either side; mixed, on the contrary, includes inequality of degrees on either side. 2.º That is called simple which excludes the multiplication of consanguinity or affinity; mixed, on the contrary, that which includes it. 3.º That is called simple which excludes another impediment diverse in species; mixed, that which includes it, e.g., consanguinity mixed with affinity, with spiritual relationship, etc.

Now in the preceding faculty the word simple and mixed degree is understood, in the first sense, of inequality of degrees; and thus those words, mixed degree, understood in that way, comprehend not the same degree mixed with some nearer one, unless this is said in express words, but with some more remote one only. Hence the faculty of dispensing in the third degree simple and mixed does not confer the power of dispensing in the third degree when, for example, on the part of one of the contracting parties it reaches the second, but only when either both contracting parties touch each other in the third degree, or one is distant from the common stock in the third degree and the other in the fourth. Likewise that word, simple and mixed degree, is understood also in the other sense, concerning multiple consanguinity and affinity.

Wherefore the Holy Office, June 15, 1875, declared that Ordinaries "who enjoy the faculty of dispensing in the third and fourth degree of consanguinity and affinity, simple and mixed only, and in the second, third, and fourth, but not in the second alone as regards future marriages, can dispense in the third and third, in the fourth and fourth, in the third mixed with the fourth, and also in the third and fourth mixed with the second, whether the degree arises from one stock or from multiple stock." Collectan. cit. n. 1243.

"Whether it is lawful for vicars apostolic in England to use the faculty of restoring the right of asking the conjugal debt when it has been lost from some cause, if the other party was heretical?

R. The vicar apostolic, by virtue of the faculties which have been granted to him by the Holy See under Form 2, n. 8, namely, of dispensing upon the impediment of crime, neither of the spouses however plotting, and of restoring the right of asking the debt when lost, can restore to the right of asking the debt the Catholic spouse who has validly married with a heretic." S. C. de P. F., July 19, 1782, Collect. cit. n. 1564; Collect. oper. apost. ad usum Soc. miss. ad ext. n. 31. 8.º; Compend. Privileg. Soc. Iesu n. 390.

"It often happens that confessors ask from the petitioner (the Vicar Apostolic) the faculty of dispensing concerning restoring the right of asking the debt when lost; but he does not know how he is to connect the final member of the faculty, and of restoring the right of asking the debt when lost, with the clause sounding thus: and in the dispensation the tenor of such faculties is to be inserted with expression of the time for which they have been granted, since nothing is given in writing.

R. Let the dispensation be given orally, provided that the faculties have not expired in the one dispensing." S. O., Dec. 3, 1765, Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31. 8.º 10.º; Compend. Priv. Soc. Iesu n. 390.

n. 6.

"Whether the faculty of dispensing in the impediment of spiritual relationship, besides between the one lifting and the one lifted, is to be understood of spiritual relationship arising from baptism only, or also of the same relationship arising from confirmation?

n. 6.

R. To arise (sic) both from baptism and from confirmation." S. O., July 2, 1884, Collect. S. C. de P. F. n. 1252. Cf. Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31. 9.º; Compend. Privileg. Soc. Iesu n. 390.

n. 7.

Anastasia, after obtaining from Mauritius a promise of marriage to be entered in the Church as soon as possible, enters a civil marriage with him. After this has been entered, Mauritius delays the fulfillment of the promise made; and when he already seemed determined to contract marriage in the Church, he has a dispute with the parish priest on account of some contract to be drawn up, so that, angered, Mauritius no longer wishes to go to the Church, nor to see the face of any priest any more. Prudently and cautiously, by exhortation, sorrow, and other efforts, Anastasia tries to bend Mauritius and bring him back to Christian sentiments, but all things fall in vain. Wherefore, several years having now passed in this unhappy state, and since they are now living in another region, Anastasia asks from the confessor that he himself be willing to bring a remedy to so great an evil by seeking a dispensation from the Holy See, yet without the husband noticing; for there is danger that, if he knows the matter, he will recede from the marriage and leave her with the children, not without grave scandal, since all in that place think them joined in legitimate marriage.

n. 7.

It is asked: What to the Case?

n. 7.

R. In the Case no dispensation can be applied except one in radice. But this, although rarely, and only when a very grave urgent cause is present, is granted even in the case of a civil marriage. The difficulty in such a case of civil marriage is only on the part of consent, namely whether the party who does not consent to an ecclesiastical marriage truly consents to marriage, and not rather to mere concubinage. Speaking absolutely, there is no doubt that in such a civil marriage sufficient consent can be present, so that afterward, with the Pontifical Dispensation acceding, it can be a true marriage. For since for marriage in itself nothing else is required except natural consent to an indissoluble union ordered to the proper end of marriage, the procreation of offspring, consent of this sort can well have place in a civil marriage, which cannot be a true marriage only on account of the extrinsic impediment of clandestinity. Therefore, this having been removed through dispensation, a true marriage arises. If therefore it is established that there is true consent to marriage, and a just and proportionate cause is present, the dispensation in radice can indeed be sought. Now, in the Case, as it seems, since no scandal is to be feared if the dispensation is granted, since one party refuses to renew consent, or at least there is grave danger that he may not again consent to marriage, since the defect of clandestinity and the civil marriage only entered are hidden, and since a cause truly and very grave is not lacking, it seems that the confessor can seek the aforesaid dispensation, explaining all the circumstances of the case and first obtaining the recommendation from the Ordinary. S. Poenit., Aug. 12, 1882, Zitelli, de Dispens. matr., pag. 105; I. M. 1050.

156. Value of Dispensation

Didacus and Aloisia sought from the Holy See a dispensation upon the impediment of consanguinity. The reason brought forward was that Aloisia was without dowry, and Didacus intended to marry her thus without dowry and at the same time to endow her sufficiently. The dispensation having been obtained, and the marriage having been entered, after quarrels arose with Aloisia, Didacus claimed that he should pass to other nuptials because of the nullity of the prior marriage, the invalidity of the aforesaid dispensation standing. For it had inadvertently been left unmentioned that Aloisia had a certain small dowry; and Didacus in reality had insufficiently endowed Aloisia before marriage, since he had assigned only the sum of 500 ducats for the children to be born from the nuptials soon to be contracted.

It is asked: What to the Case?

R. The dispensation was valid in the Case; and therefore the marriage was rightly contracted. Wherefore Didacus cannot marry another. For first, the dowry of Aloisia, considering her condition, was insufficient, and the reticence concerning it, made in simplicity without deceit, was not the cause of the concession, and consequently the concession was not invalid. It is the same that a woman be without dowry and that she be insufficiently endowed. De Iust., de Disp. matr., l. 3, c. 3, n. 20. The Supreme Pontiff is moved to succor a poor female petitioner who, since she either has no dowry or has an insufficient one, is in danger either of remaining unmarried with danger to the soul, or of being compelled to marry an unworthy or unequal man. Therefore, all deceit being removed on the part of the female petitioner, the Supreme Pontiff is equally moved to dispense, whether the petitioner has no dowry or has only a small and insufficient one. But that Didacus did not endow Aloisia in a competent quantity does not harm the validity of the dispensation, since when several causes are set forth, it is enough that the motive cause on which the Dispensation rests be true. Now the motive cause in the Case was that Aloisia had been without dowry. The other cause, that Didacus also wished to endow her, was only an impulsive cause, which does not render the dispensation null, and which besides Didacus at that time also set forth in good faith. S. C. C., July 4, 1722; Giovine, de Dispens. matr., Consult. Canon., v. 1, § 121; I. M. 1036, 1037.

"Whether the non-observance of the clause customarily appended in dispensations: some alms having been given according to the judgment of the Ordinary, imports the nullity of the dispensations?

R. Negatively." S. Poenit., June 10, 1876.

"The rescripts of the Sacred Penitentiary in matrimonial causes, when public incest has been present, contain at present the following clause: Scandal having been removed, insofar as it is present; especially through separation, if it can be done. In these most wretched times it not rarely happens that the separation of the petitioners cannot be obtained, either because they already have several children to be educated together, or because they can live nowhere else; and then it can scarcely be understood what other reparation of scandal ought to be exacted before the dispensation is granted. We therefore ask that the Sacred Penitentiary may kindly be willing to declare whether this clause, scandal having been removed, must so necessarily be fulfilled that, if it is omitted, the dispensation has been granted nullly.

R. Separation is to be preferred to other modes of reparation of scandal; if this cannot be done, the scandal is to be repaired, but the mode of repairing the scandal is remitted to the prudent judgment and conscience of the Ordinary, according to the requirements of each case. In the case in which separation has been omitted and the scandal has been repaired in another way, let him acquiesce; otherwise, if in some case he has omitted the reparation of scandal, let him be silent and conduct himself more cautiously in the future." S. Poenit., Apr. 12, 1889, Collect. S. C. de P. F. n. 1496, 1498; I. M. 1046.

"In the sheet of faculties which the Holy See grants to vicars apostolic, it is had thus: n. 10.º These matrimonial dispensations, namely 6, 7, 8, 9, are not to be granted except with the clause: provided that the woman has not been abducted, or if she has been abducted, that she is not in the power of the abductor; and in the dispensation the tenor of such faculties is to be inserted with expression of the time for which they have been granted. Now, in the time of persecutions which raged in some places, matrimonial dispensations were not even delivered in writing, but orally. But in later times, in dispensations of this sort, it has indeed been inserted that they are granted from the faculty obtained from the Holy See; but by some, neither was the time expressed for which the aforesaid faculty had been granted to the vicars apostolic, nor was the clause set forth: provided that the woman has not been abducted. But this gives rise to doubt because of what is found in Bullar. Bened. XIV, t. 2, pag. 223. It is therefore asked whether the aforesaid dispensations of this sort are licit, or at least valid?

R. The omission of the clauses does not harm the validity of the concessions, provided that in reality the woman has not been abducted, or, if abducted, that she is not in the power of the abductor." S. C. de P. F., Feb. 11, 1804, Collect. n. 1484, 1486, 1487, 1491, 1492, 1494; Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31. 10.º; Comp. Priv. Soc. Iesu n. 390.

"It has happened sometimes that, in the petitions which are made to the Holy See for matrimonial dispensations, it was set forth by the Ordinary of the male petitioner, through error, that the female petitioner belonged to the same diocese, whereas by origin and domicile she was of another diocese. Therefore, the favorable Rescript having been obtained, whether through the organ of this Sacred Penitentiary or through that of the Sacred Datary, the doubt has arisen concerning the validity or liceity of the execution. To remove it, humble supplication is made that it may deign to declare:

1.º Whether, considering the norms given by the S. U. I. on Feb. 20, 1888, the dispensation can be validly executed by the Ordinary of the male petitioner, who gave the testimonials, when through error it was said in the same testimonials that the female petitioner was of the same diocese, whereas both by origin and by domicile she belonged to a different diocese?

2.º Supposing that such a dispensation can be validly executed, can it also be executed licitly, without a new recourse to the Holy See?

R. To both, affirmatively; but if the error has been noticed, it must be corrected." S. Poenit., Feb. 6, 1895, M. E. v. 9, p. 1, p. 10.

n. 6.

Iulius, desiring to contract marriage with Iulia, his kinswoman in the fourth degree, seeks and obtains a dispensation, Iulia being unaware of Iulius's desire and of his petition for dispensation, since she was unaware also of the existing impediment.

…and 11 more passages — all of them are listed on the topic page.

Bucceroni, Moral Enchiridion (4th ed., 1905)

Gennaro Bucceroni, S.J. — 116 passages (filed under the subtopics)

Bucceroni, Moral Enchiridion (4th ed., 1905), On Matrimony

n. 1002, 1004.

On Affinity from Illicit and Licit Intercourse

Whether dispensations concerning affinity from licit or matrimonial intercourse in which no mention was made of illicit or anti-matrimonial intercourse are valid.—Response. “The dispensations in the cases set forth are valid.” Sacred Penitentiary, 7 June 1842. And this response was declared general by Letters of the same Penitentiary, 10 December 1874. Cf. C. 1236.

n. 1035.

Dispensation from Impediments

“56. The doctrine which establishes that, in canonical impediments which arise from offenses expressed in law, it seems fitting that no dispensation whatsoever is ever to be granted or admitted, is injurious to the equity and canonical moderation approved by the Sacred Council of Trent, and derogates from the authority and rights of the Church.” Proposition of the Synod of Pistoia condemned by Pius VI.

On the Causes for Obtaining Matrimonial Dispensations and on the Matters Which Must Be Expressed in Obtaining the Dispensation Itself

“Since a dispensation is a relaxation of the common law, with knowledge of the cause, made by one who has power, it is established for all that dispensations from matrimonial impediments are not to be granted unless a legitimate and grave cause intervenes. Indeed, everyone easily understands that a cause is required to be so much graver as the impediment opposed to the celebration of the nuptials is graver. But not rarely do supplicatory letters reach the Holy See for obtaining some dispensation of this kind which are supported by no canonical reason. It also sometimes happens that in supplications of this kind those things are omitted which must necessarily be expressed lest the dispensation labor under the defect of nullity. Therefore, it seemed opportune in the present Instruction to touch briefly upon those principal causes which, according to canonical enactments and the prudent judgment of ecclesiastical provision, are customarily regarded as sufficient for obtaining matrimonial dispensations, and then to indicate those things which must be expressed in petitioning for the dispensation itself.

“And, to begin with the causes of dispensations, it will first be worthwhile to observe that sometimes one cause taken separately is insufficient, but, joined to another, is judged sufficient; for things which do not avail singly assist when they are many (argument from law 5, Code, On Proofs). Causes of this kind are the following:

“1. Narrowness of the place, whether absolute or relative—with respect only to the female petitioner—namely, when, in the place of origin or even of domicile, the kindred of the woman is so propagated that she cannot find another of equal condition whom she may marry unless he is a blood relative or relative by affinity, while it would be hard for her to leave her homeland.

“2. The over-advanced age of the woman, namely, if, having already passed the twenty-fourth year of age, she has hitherto not found a man of equal condition whom she can marry. But this cause does not favor a widow who desires to pass to other nuptials.

“3. The lack or insufficiency of a dowry, namely, if the woman does not actually possess so great a dowry that she can marry, in the place where she dwells, a stranger of equal condition who is neither a blood relative nor related by affinity. This cause is more urgent if the woman is altogether without a dowry and a blood relative or relative by affinity is prepared to take her as wife or even suitably to endow her wholly.

“4. Lawsuits concerning the succession of goods already arisen, or a grave or imminent danger of them. If a woman sustains a grave lawsuit concerning the succession of goods of great importance, and no other person is present who would undertake a lawsuit of this kind and pursue it at his own expense besides the one who wishes to take her as wife, a dispensation is customarily granted; for it concerns the commonwealth that lawsuits be extinguished. Another cause closely approaches this, namely, a dowry involved in litigation, when the woman is destitute of another man by whose aid she can recover her goods. But a cause of this kind suffices only for more remote degrees.

“5. The poverty of a widow who is burdened with numerous offspring and whom a man promises to support. But sometimes a widow is aided by the remedy of a dispensation for this reason alone: that she is younger and is situated in danger of incontinence.

“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 to extinguish grave enmities which have arisen between the blood relatives or relatives by affinity of the contracting parties and which would be altogether settled by the celebration of the Marriage; or when grave enmities have flourished between the blood relatives and relatives by affinity of the contracting parties and, although peace has already been entered between them, nevertheless the celebration of the Marriage would conduce very greatly to the confirmation of that peace.

“7. Excessive, suspect, and dangerous familiarity, and likewise cohabitation under the same roof, which cannot easily be prevented.

“8. Prior intercourse with a blood relative, a relative by affinity, or another person laboring under an impediment, and pregnancy and therefore the legitimation of offspring, namely, so 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 is certainly one of the more urgent causes on account of which a dispensation is customarily given even to common people, provided that the intercourse was not perpetrated in the hope of an easier dispensation; this circumstance would have to be expressed in the supplication.

“9. The infamy of the woman arising from suspicion that she, being excessively familiar with her blood relative or relative by affinity, was carnally known by him, although the suspicion is false, when, namely, unless the Marriage is contracted, the woman, gravely defamed, would either remain unmarried, have to marry a man of unequal condition, or grave injuries would arise.

“10. The revalidation of a Marriage which was contracted in good faith and publicly, with the Tridentine form observed; because its dissolution can scarcely occur without public scandal and grave harm, especially to the woman (chapter 7, On Consanguinity). But if the betrothed parties entered the nuptials in bad faith, they by no means merit the grace of a dispensation, as the Council of Trent disposes, session 24, chapter 5, On the Reformation of Matrimony.

“11. The danger of a mixed Marriage or of one to be celebrated before a non-Catholic minister. When there is danger that those wishing to contract Marriage even in one of the greater degrees, upon denial of the dispensation, will approach a non-Catholic minister to celebrate the nuptials, in contempt of the authority of the Church, a just cause for dispensing is found, because there is present not only the most grave scandal of the faithful but also fear of the perversion and defection from the faith of those acting in this manner and despising the impediments of Matrimony, especially in regions where heresies rage with impunity. This Sacred Congregation taught this in the Instruction given to the Archbishop of Quebec on 17 April 1820. Likewise, when the Vicar Apostolic of Bosnia asked whether he could grant a dispensation to those Catholics who allege no other motive than insane love, and at the same time it is foreseen that, if the dispensation is denied, they will enter a union before an unbelieving judge, the Sacred Congregation of the Holy Office on Wednesday, 14 August 1822, decreed: ‘Response is to be made to the petitioner that in the case set forth he may use the faculties committed to him in Formula II according as he shall judge expedient in the Lord.’ The same is to be said concerning the danger that a Catholic party may dare to celebrate Marriage with a non-Catholic.

“12. The danger of incestuous concubinage. From the Instruction of the year 1822 mentioned above, it is clear that the remedy of a dispensation is to be employed lest anyone grow filthy in concubinage with public scandal and evident danger to eternal salvation.

“13. The danger of civil Marriage. From what has been said, it follows that the probable danger that those who seek a dispensation, if they do not obtain it, will celebrate only a civil Marriage, as they say, is a legitimate cause for dispensing.

“14. The removal of grave scandals.

“15. The cessation of public concubinage.

“16. Excellence of merits, when someone has deserved exceedingly well of religion, whether by fighting against the enemies of the Catholic faith, by liberality toward the Church, by learning, virtue, or in another manner.

“These are the more common and principal causes which are customarily adduced for obtaining matrimonial dispensations. Theologians and interpreters of the sacred canons treat them copiously. Among others, Pyrrhus Corradus, Practice of Apostolic Dispensations, books 7 and 8, and Vincent De Iustis, On Matrimonial Dispensations, book 3, are to be consulted.

“But now the Instruction turns to those things which, besides the causes, must be expressed by law, custom, or the style of the Curia in supplicatory letters for obtaining a dispensation, so that if the truth is concealed even through ignorance, or a falsehood is narrated, the dispensation is rendered null. These are:

“1. The first and last names of the petitioners, each to be written distinctly and clearly and without any abbreviation of letters.

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

“3. Even the lowest species of the impediment: whether it is consanguinity, or affinity arising from licit or illicit intercourse; public propriety deriving its origin from betrothals or from a ratified Marriage; in the impediment of crime, whether it arose from the killing of a spouse with a promise of Marriage, or from the killing of a spouse with adultery, or from adultery alone with a promise of Marriage; in spiritual kinship, whether it is between the sponsor and the person sponsored, or between the sponsor and a parent of the person sponsored.

“4. The degree of consanguinity, affinity, or propriety from a ratified Marriage, and whether it is simple or mixed, not only the more remote but also the nearer degree; and likewise the line, whether direct or collateral; likewise, whether the petitioners are joined by a double bond of consanguinity, both on the father’s side and on the mother’s side.

“5. The number of impediments; for example, if there is double or multiple consanguinity or affinity, or if, besides kinship, there is also affinity or any other impediment, whether invalidating or prohibitive.

“6. The 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 first been made and according to the Tridentine form, or whether in the hope of obtaining a dispensation more easily; finally, whether it has been consummated; if in bad faith, at least on the part of one, or with knowledge of the impediment.

“7. Incestuous intercourse, etc. Cf. no. 1038.

These things must be kept before their eyes not only by those who have recourse to the Holy See in order to obtain some matrimonial dispensation, but also by those who are themselves able to dispense by virtue of a Pontifical delegation, so that they may duly use, as is proper, the faculties with which they are endowed." Instruction of the Sacred Congregation for the Propagation of the Faith, 9 May 1877.

When is the narrowness of a place such that it may be adduced as a legitimate cause for obtaining a matrimonial dispensation? - Response. The norm is given by Pius IX through a circular letter of His Eminence Cardinal Spinola, Pro-Datary, sent to the archbishops on 30 August 1847. In it, moreover, those places are declared narrow in which the number of households does not exceed three hundred, or the inhabitants are not more than one thousand five hundred. - The Sacred Congregation of the Council, on 16 December 1876, gave this response: "The narrowness of a place is not to be derived from the number of households of each parish, but from the number of households of each place, or even of several places, if they are not more than one mile distant from one another." The Apostolic Datary, however, has this: "The narrowness of a place is verified when its households do not exceed the number three hundred; nor does it prevent this that the narrow place is situated at a small distance from another, provided that those two places are distinct and different from one another and have their own designation. Some distance, however, is required in suburbs which, although they constitute part of a city, are nevertheless admitted as narrow when they are distant from the city by a mile or a little less. Thus think Pyrrhus Corrado, Praxis dispensationum apostolicarum, book 7, chapter 5, and De Justis, De Dispensationibus matrimonialibus, book 3, chapter 2. The practice of this Apostolic Datary conforms exactly to a doctrine of this kind." Cf. A. S. S., vol. 9, p. 631; vol. 16, p. 544; C. 1481.

It often happens that Apostolic matrimonial dispensations are obtained for the cause (whether alone or with others) of the over-advanced age of the female petitioner, expressed simply thus, or sometimes thus: the age of the female petitioner is 25 years, or 30, or otherwise, but more than 24. Since, however, Authors are of the opinion that a cause of this kind is to be interpreted as meaning that up to that age the woman had not found a man of equal condition whom she could marry, this question is asked by this Most Reverend Episcopal Curia of Tropea: Whether, in verifying the aforesaid cause, it is also necessary to inquire into and prove that the woman of over-advanced age had not, up to that age, found a man of equal condition whom she could marry; and whether this is required for the validity of the dispensation?

Response. "It is sufficient that the over-advanced age be certainly established." Sacred Penitentiary, 5 April 1902.

"Under date of 30 March 1897, John B.... and Rosalia I.... N...., of the diocese of N...., received from the Apostolic Datary a rescript of dispensation concerning degrees of consanguinity in the second degree in the equal line from one stock, and in a double fourth degree arising from a third stock. Thus the rescript read, whereas in fact the dispensation had been requested concerning degrees of consanguinity in the second degree from one stock, the fourth from another, and finally likewise the fourth from a third stock. Since time was pressing, the Ordinary of N.... executed the rescript. 1. Whether he validly and licitly executed the rescript?

"On 1 February 1895, when a certain Ordinary had declared himself in the petition to be the Ordinary of origin, whereas in fact he was the Ordinary of domicile, the Sacred Penitentiary responded to his inquiry that the dispensation had been validly and licitly granted, but that the error was to be corrected. Hence 2. Whether the Ordinary of N.... himself must also correct the error of the rescript in the present case?

"Response. Let him rest content after making the correction." Sacred Penitentiary, 2 June 1897.

"I recently wrote to the Sacred Penitentiary that Charles D...., twenty-six years old, and Julia Louisa M...., twenty-three years and six months old, of the diocese of N...., prostrate at the feet of Your Holiness and desiring to contract a lawful Marriage, humbly implored a dispensation from the impediment of consanguinity in the second degree of the collateral line. I alleged as causes the nearly advanced age of the female petitioner (namely, twenty-three years and six months) and her condition as bereft of both parents.

"Now the Sacred Penitentiary, under date of 19 April of the current year, granted the Ordinary of N.... the faculty to dispense for the following reasons: the female petitioner's age of twenty-four years and her condition as an orphan.

"Hence I humbly ask whether I may nevertheless dispense the petitioners, since the female petitioner has not completed her twenty-fourth year.

Vol. III, Bk. II, Tr. VIII, Chapter I: General Matters on Impediments and Dispensations · Vol. III, Bk. II, Tr. VIII, Title VIII: The Convalidation of Matrimony · Vol. III, Bk. II, Tr. VIII, Tit. VIII, Article I: On Simple Convalidation · Vol. III, Bk. II, Tr. VIII, Tit. VIII, Article II: On Sanation in the Root

"The Sacred Penitentiary, in reply to the letter of the Ordinary of N.... dated 23 April of this year, concerning the doubt whether the same Ordinary may execute the rescript of matrimonial dispensation for the petitioners Charles D.... and Julia Louisa M...., since among the causes is read the female petitioner's age of twenty-four years, although the female petitioner, as had been set forth, has not yet completed her twenty-fourth year, responds:

…and 76 more passages — all of them are listed on the topic page.

Bucceroni, Moral Enchiridion

Gennaro Bucceroni, S.J. — 43 passages (filed under the subtopics)

Bucceroni, Moral Enchiridion, On Matrimony

n. ¶82.

N. 771. - On Dispensation from Impediments in the Case of Impossibility of Recurring to the Apostolic See

"A certain Parish Priest had asked from his Ordinariate the faculty of dispensing the bridegroom over a double occult impediment of affinity, in the first degree, from illicit copulas which the same man had had both with the mother and with the sister of his bride, when all things were already prepared for the nuptials, and these could not be deferred without danger of great scandal, so that dispensation might be obtained from the Apostolic See. The Ordinariate conceded the requested dispensation by force of the quinquennial faculties. It is asked whether the dispensation is valid or not? Resp. Affirmatively, that is, the faculty of dispensing, for the forum of conscience only, in marriages to be contracted, over the occult impediment of affinity from illicit copula, when all things are prepared for the nuptials and there is no time to recur to the Apostolic See, is validly and licitly exercised, even if the aforesaid impediment is multiple." S. Poenit. 30 July 1873.

n. ¶93.

N. 810. - On Affinity from Illicit and Licit Copula

Whether dispensations are valid as to affinity from licit or matrimonial copula, in which no mention has been made of illicit or anti-matrimonial copula? Resp. "The dispensations in the cases set forth are valid." S. Poenit. 7 June 1842. And this response was declared general by Letters of the same Penitentiary, 10 Dec. 1874.

n. ¶200.

N. 861. - On the Power of Bishops in Public Diriment Impediments

"The proposition asserting that Bishops can dispense in a public impediment diriment of marriage, of consanguinity for a marriage to be contracted, whether in the article of death or in another most urgent necessity in which the contracting parties cannot wait for dispensation of the Apostolic See, is false, rash, scandalous, pernicious, and seditious." S. I. C. 19 Jan. 1661. Cf. Acta S. Sed. Vol. 14, p. 155 ff.

n. ¶202.

N. 862. 863. - On Dispensations over Cumulative Impediments

"... With attention to the declarations of the Tribunal of the Holy Inquisition, it has been seen that faculties conceded for dispensing over individual impediments cannot be extended to the case in which these same impediments concur together and are accumulated." S. C. de P. F. 16 June 1868.

n. ¶203.

"Bishop N. ... up to now thought that the faculty belonged to him, by force of the indult of 15 November, of dispensing in marriages to be contracted over the impediment either of consanguinity or of affinity in the third and fourth degree, not only single, but also double and more, and also in consanguinity and affinity joined together. But since the said Bishop recently discovered that some today doubt concerning the aforesaid opinion, hence he proposes the following doubts to the Sacred Penitentiary:

n. ¶204.

Whether by force of the indult of 15 November the Bishop can dispense in consanguinity or affinity in the degrees determined there, even when the same degrees are multiplied? 2. Whether in consanguinity and affinity joined together? 3. Insofar as negatively, he asks sanation as to the past and faculty as to the future.

n. ¶205.

Resp. To the 1st: Affirmatively. To the 2nd: Provision will be made in the following. To the 3rd: The Sacred Penitentiary, by special and express apostolic authority, sanates and convalidates in the root all and singular marriages which up to now, on account of the cumulative faculty of dispensing together over consanguinity and affinity, were contracted nullly, and decrees and respectively declares the offspring either received or to be received therefrom legitimate. But the present letters are to be diligently kept in the episcopal Chancery, so that for whatever future event it may be established concerning the validity of the marriages and the legitimacy of offspring.

n. ¶206.

But as regards the future, faculty is granted to the same Bishop that he himself, or through his vicar general, can dispense over consanguinity and affinity joined together, in the degrees determined in the second article of the indult of 15 November, for ten cases only." S. Poenit. 18 Jan. 1883. Cf. Acta S. Sed. Vol. 7, p. 290 ff. Cf. Declaration N. 826.

n. ¶209.

N. 866. 867. - On the Causes for Obtaining Matrimonial Dispensations, and on Those Things Which Must Be Expressed in Obtaining the Dispensation Itself

"Since dispensation is a relaxation of common law, made with knowledge of the cause by him who has power, it is evident to all that dispensations from matrimonial impediments are not to be indulged unless a legitimate and grave cause intervenes. Indeed everyone easily understands that a cause so much the graver is required as the impediment which is opposed to celebrating the nuptials is graver. But not rarely suppliant letters reach the Holy See for obtaining some dispensation of this sort which are supported by no canonical reason. It also sometimes happens that in supplications of this sort those things are omitted which must necessarily be expressed, lest the dispensation labor under the defect of nullity. Therefore it seemed opportune in the present Instruction briefly to touch upon those principal causes which, according to canonical sanctions and the prudent judgment of ecclesiastical provision, have been accustomed to be held sufficient for obtaining matrimonial dispensations; then to indicate those things which must be expressed in asking for the dispensation itself.

n. ¶210.

And, to begin from the causes of dispensations, it will first be worthwhile to observe that sometimes one cause taken separately is insufficient, but joined to another is judged sufficient; for many things help which individually do not profit. Arg. l. 5, C. De probat. But causes of this sort are the following:

n. ¶211.

Narrowness of place, whether absolute or relative, only by reason of the Oratrix, 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 to whom she may marry except a blood-relative or affine; but to leave her fatherland is hard for her.

n. ¶212.

Over-adult age of the woman, namely if, having already passed the 24th year of age, she has up to now not found a man of equal condition to whom she can marry. But this cause does not support a widow who desires to fly to other nuptials.

n. ¶213.

Deficiency or incompetence of dowry, namely if the woman does not actually have so great a dowry that she can marry a stranger of equal condition, who is neither blood-relative nor affine, in her own place in which she lives. This cause urges more if the woman exists wholly undowered, and a blood-relative or affine is prepared to take her as wife, or even conveniently to endow her entirely.

n. ¶214.

Lawsuits over succession of goods already arisen, or grave or imminent danger of them. If the woman sustains a grave lawsuit over succession of goods of great moment, and there is no other who will take a lawsuit of this sort upon himself and prosecute it at his own expense except the one who desires to take her as wife, dispensation is customarily conceded; for it concerns the Commonwealth that lawsuits be extinguished. Another cause comes very close to this, namely, a Dowry involved in lawsuits, when the woman is destitute of another man by whose help she could recover her goods. But a cause of this sort suffices only for more remote degrees.

n. ¶215.

Poverty of a widow who is burdened by numerous offspring, and a man promises to support her. But sometimes a widow is assisted by the remedy of dispensation for this cause alone, that she is younger and is situated in danger of incontinence.

n. ¶216.

The good of peace, under which name come not only treaties among 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 among the blood-relatives or affines of the contracting parties, and which would be altogether settled by the celebration of marriage; or when grave enmities have flourished among the blood-relatives and affines of the contracting parties, and, although peace has already been entered among them, nevertheless the celebration of the marriage would greatly conduce to the confirmation of that peace.

n. ¶217.

Excessive, suspect, dangerous familiarity, and also cohabitation under the same roof, which cannot easily be impeded.

n. ¶218.

Copula previously had with a blood-relative, or affine, or another person laboring under an impediment, and Pregnancy and therefore legitimation of offspring, namely that provision may be made for the good of the offspring itself and 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 customarily given even to commoners, provided that the copula was not perpetrated under the hope of an easier dispensation: which circumstance would have to be expressed in the supplication.

n. ¶219.

Infamy of the woman arisen from suspicion that she, being too familiar with her blood-relative or affine, was known by him, although the suspicion is false, namely when, unless 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.

n. ¶220.

Revalidation of marriage which in good faith and publicly, with the Tridentine form observed, was contracted: because its dissolution can scarcely happen without public scandal and grave damage, especially of the woman (chap. 7, De consanguin.). But if the spouses entered the nuptials in bad faith, they by no means merit the grace of dispensation, the Council of Trent so disposing, sess. 24, ch. 5, De reform. matrim.

n. ¶221.

Danger of mixed marriage, or of celebrating before a non-Catholic Minister. When there is danger that those wishing to contract marriage in some degree even of the greater degrees, from the denial of dispensation, will approach a non-Catholic Minister for celebrating the nuptials, with the authority of the Church spurned, a just cause of dispensing is found, because there is present not only most grave scandal of the faithful, but also fear of perversion and defection from the faith of those so acting and contemning the impediments of marriage, especially in regions where heresies rage with impunity. This Sacred Congregation taught this in the Instruction given on 17 Apr. 1820 to the Archbishop of Quebec. Likewise when the Apostolic Vicar of Bosnia had asked whether he could grant dispensation to those Catholics who allege no other motive than mad love, and at the same time it is foreseen that, dispensation being denied, they are going to enter marriage before an infidel Judge, the S. C. of the Holy Office, on Wednesday, 14 Aug. 1822, decreed: Response is to be made to the Orator that in the case set forth he should use the faculties committed to him in form II, as he shall have judged expedient in the Lord. The same must be said concerning the danger that the Catholic party may dare to celebrate marriage with a non-Catholic.

n. ¶222.

Danger of incestuous concubinage. From the above-mentioned Instruction of the year 1822 it is clear that the remedy of dispensation must be applied lest someone grow filthy in concubinage with public scandal and evident danger of eternal salvation.

n. ¶223.

Danger of civil marriage. From the things said it follows that a probable danger that those who seek dispensation, not obtaining it, will celebrate only civil marriage, as they say, is a legitimate cause of dispensing.

n. ¶224.

Removal of grave scandals.

n. ¶225.

Cessation of public concubinage.

n. ¶226.

Excellence of merits, when someone has deserved very well of religion, either by fighting against the enemies of the Catholic faith, or by liberality toward the Church, or by doctrine, virtue, or in another way.

n. ¶227.

These are the more common and stronger causes which are customarily adduced for obtaining matrimonial dispensations; concerning these Theologians and interpreters of the sacred Canons treat copiously. Among the others to be consulted are Pyrrhus Corradus, Praxis dispensationum apostolicarum, books 7 and 8, and Vincentius De Iustis, De dispensationibus matrimonialibus, book III.

n. ¶228.

But now the Instruction turns itself to those things which, besides the causes, in suppliant letters for obtaining a dispensation must be expressed by law or custom, or the style of the Curia, so that if even ignorantly the truth is kept silent, or falsehood is narrated, the dispensation is rendered null. These are:

n. ¶229.

The Name and Surname of the Orators, each to be written distinctly and clearly, and without any abbreviation of letters.

n. ¶230.

The Diocese of origin or actual domicile. When the Orators 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 live.

n. ¶231.

The species, even the lowest, of the impediment: whether it is consanguinity, or affinity arisen from licit or illicit copula; public honesty deriving origin from betrothals or from ratified marriage; in the impediment of crime, whether it came from killing of the spouse with promise of marriage, or from killing of the spouse with adultery, or from adultery alone with promise of marriage; in spiritual relationship, whether it is between the one lifting and the one lifted, or between the one lifting and the parent of the one lifted.

n. ¶232.

The degree of consanguinity, or affinity, or honesty from ratified marriage, and whether it is simple or mixed, not only the more remote but also the nearer; and also the line, whether it is direct or transverse; likewise whether the Orators are joined by a double bond of consanguinity, both on the side of the father and on the side of the mother.

n. ¶233.

The number of impediments, for example, if there is double or multiple consanguinity or affinity, or if besides kinship there is also affinity, or any other impediment whatsoever, whether diriment or impeding.

n. ¶234.

Various circumstances, namely whether the marriage is to be contracted or has been contracted; if already contracted, it must be opened whether in good faith, at least on the part of one, or with knowledge of the impediment; likewise, whether with denunciations premised and according to the Tridentine form; or whether under the hope of more easily obtaining dispensation; finally, whether it has been consummated; if in bad faith, at least of one party, or with knowledge of the impediment.

n. ¶235.

Incestuous copula, etc. Cf. N. 867.

n. ¶236.

These things must be kept before the eyes not only by those who recur to the Holy See for obtaining some matrimonial dispensation, but also by those who, from Pontifical delegation, can dispense by themselves, so that they may duly use, as is fitting, the faculties which they possess." Instr. S. C. de P. F. 9 May 1877.

n. ¶237.

When is narrowness of place such that it can be adduced as a legitimate cause for obtaining matrimonial dispensation?

n. ¶238.

Resp. A norm is handed down by Pius IX through the circular letter of the Most Eminent Pro-Datary Cardinal Spinola sent to the Archbishops on 30 Aug. 1847. Moreover in it those places are declared narrow in which the number of hearths does not exceed three hundred, or the inhabitants are not beyond one thousand five hundred. S. C. C. on 16 Dec. 1876 gave this response: "Narrowness of place is not to be taken from the number of hearths of each parish, but from the number of hearths of each place or even of several places, if they are not distant from each other beyond a mile." But the Apostolic Datary has these things: "Narrowness of place is verified when its households do not exceed the number three hundred; nor is it an obstacle that the narrow place exists a little distant from another, provided that those two places are distinct and diverse among themselves and have their own name. But some distance is required in Suburbs, which, although they constitute part of the city, nevertheless Narrowness is admitted in them when they are distant from the city by a mile or a little less. Thus think Pyrrhus Corrado in Praxis dispens. apost., l. 7, ch. 5, and De Iustis, de dispens. matrim., l. 3, ch. 2. Moreover the practice of this Apostolic Datary conforms exactly to doctrine of this sort." Cf. Acta S. Sed. Vol. 9, p. 631; Vol. 16, p. 544.

n. ¶239.

N. 867. - On the Validity of Matrimonial Dispensation When Incestuous Copula Has Been Kept Silent

"The holy Church of God has always pursued the unspeakable crime of incest with special hatred, and the Supreme Roman Pontiffs established that those who did not blush to defile themselves with it, if they fled to the Apostolic See for the sake of seeking dispensation over impediments diriment of marriage, unless mention of the admitted crime had been made in their prayers, these prayers would be held infected by the defect of obreption and subreption, and therefore the dispensation would be invalid; and this was provided for that most holy cause, that the Christian faithful be kept away from this most grave crime.

n. ¶240.

The mind of this Holy See is witnessed both by other documents and by the decree which most recently the supreme council of the holy Roman and universal Inquisition, with the Roman Pontiff himself approving, issued on Wednesday, 1 August 1866, which is of this sort: 'that dispensations are subreptitious and nowhere and in no way valid, whether they are conceded directly by the Apostolic See or from pontifical delegation over whatsoever prohibited degrees of consanguinity, affinity, spiritual relationship, and also public honesty, if the spouses before the execution of the same dispensations, whether before or after their impetration, committed the guilt of incest; and, whether questioned or even not questioned, maliciously or even ignorantly kept silent the incestuous copula entered between them, whether it is publicly known or even occult, or kept silent the counsel and intention by which they entered the same copula so that they might more easily obtain dispensation.' The Sacred Penitentiary, insisting on the footsteps of the supreme Inquisition, established the same thing on 20 July 1879.

…and 3 more passages — all of them are listed on the topic page.

Tanquerey

Adolphe Tanquerey, S.S. — 14 passages

Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), Chapter IV: On Dispensations and the Revalidation of Marriage

n. 1035.

§ I. On the Notion and Species of Dispensations.

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.

n. 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.

n. 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.

n. 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."

n. 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.)

n. 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.

n. 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.

n. 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.

n. 1098.

§ III. On the Revalidation of Marriage through Sanation in the Root.

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.

n. 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.

n. 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.

n. 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.

n. 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.

n. 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."

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 23 passages (filed under the subtopics)

Vol. III, Bk. II, Tr. VIII, Chapter I: General Matters on Impediments and Dispensations

n. 750.

— Notion of impediment. In the broadest sense, an impediment is whatever stands in the way of the validity or liceity of matrimony: even natural inability for any contract whatever, such as insanity gives, and the state of sin itself. - In a broad sense, it is whatever externally, by divine or human law, stands in the way of the validity or liceity of matrimony: then it is also a defect of substantial or accidental form, as if matrimony is made without the pastor, without banns. - In the proper sense, it is whatever externally, by divine or human law, makes a person unable, not for any contract whatever, but for matrimony, or forbids him to contract marriage. Then a defect of form is not an impediment. And thus it is understood in the Code. Wherefore defect of solemnities is not numbered among impediments (cf. d'Annibale, III, 429; Gasparri, I, 265-266).

n. 751.

— Division of impediments. 1. An impedient impediment "contains a grave prohibition of contracting marriage": yet this does not render it invalid (c. 1036, §1). A diriment impediment, on the contrary, stands in the way of the very validity of marriage, which at the same time it gravely prohibits (c. 1036, §2).

An impediment is judged public which can be proved in the external forum; otherwise it is occult (c. 1037).

You should observe that in the Code itself, marriage and delict are said to be occult and public in a diverse manner, so that the notion handed down here is by no means general. Therefore a case occult or public is one thing; an impediment public or occult is another. It can well happen that an impediment can be proved in the external forum, which nevertheless is so commonly unknown that its case can and must be said to be occult.

Public and occult impediments can be such either by their nature (c. 1971, §2), or by fact. By their nature public are said those to which origin was given by a fact which must occur before the forum of the Church or in an assembly of the faithful, such as the impediment of order; or which must be entered in public registers: age, legitimate consanguinity, and mixed religion itself; or which can be proved by the testimony of a qualified witness testifying from his office or of two immediate witnesses: ligamen.

By fact, an impediment will be public whose proofs of the external forum are truly at hand, even if it is widely unknown. But the question controverted before the Code, whether an impediment should be called occult or rather public which is known materially in its elements but not formally in its juridical force, or whose cause indeed is known but not the effect of producing an impediment, can today be passed over. For the fact which is known can be proved in judgment, where the law is not unknown (cf. Cappello, III, 200, 3).

According to their origin, impediments of divine law are distinguished, which the Church authentically declares, and those of positive human law, which the Church establishes, or, for the non-baptized, the competent power establishes.
According to the discipline of dispensation, impediments are of lesser grade and of greater grade. Dispensation from the former is not invalidated because of the vice of obreption or subreption. They are: consanguinity in the third degree of the collateral line, affinity in the second degree of the collateral line, public honesty in the second degree, spiritual kinship, crime from adultery or from attempted marriage, even by a civil act only (c. 1042).

n. 752.

— Author of impediments. 1. Impediments of divine law are at the same time of natural law.

Impediments of human law for the baptized are established by ecclesiastical law alone. Their constitution is now reserved to the Holy See, with custom also excluded, insofar as a custom inducing an impediment is reprobated (c. 1041). For non-baptized persons, the power of inducing even diriment impediments does not seem to be removed from civil authority.
A bishop or local Ordinary can forbid some particular marriage in his territory, but only for a time and while a just cause endures.

The pontifical authority alone also, with even a custom contrary to impediments by abrogation or derogation reprobated (c. 1041), can suppress or relax impediments of ecclesiastical law.

n. 753.

— Subject of impediments. Only the baptized are directly bound by canonical impediments; only infidels by the impediments of civil law. But an impediment in only one or the other party renders the marriage illicit or invalid for both parties (c. 1036, §3).

As regards the form of celebration, the exempt party would of itself communicate its exemption with the other party, unless now it had been established otherwise by positive law (cf. Gasparri, I, n. 297).

After conversion and baptism, a fact before baptism brings forth an impediment if it subsists or perseveres in a natural bond, but not in a bond in the canonical manner.

n. 754.

— Dispensation or relaxation of impediments.

The Supreme Pontiff possesses the fullest faculty of dispensing in all impediments of ecclesiastical law, and of declaring divine law concerning the same matter. The civil power can relax its impediments for the non-baptized. Dispensation from occult impediments is sought from the Sacred Penitentiary; for public impediments the Sacred Congregation of the Sacraments is to be approached, excepting the impediments of disparity of cult and mixed religion, for which the Holy Office is to be approached.
Those inferior to the Supreme Pontiff cannot dispense in impediments, unless Ordinaries, when the fact is doubtful and it is a question of laws in which the Roman Pontiff is accustomed to dispense (c. 15); or when recourse to the Holy See is difficult and at the same time there is in delay danger of grave harm, and it is a question of a dispensation which is customarily conceded by the Apostolic See (c. 81); - or unless by indult or by the common law itself this faculty has been given.

n. 755.

— Faculties granted to Ordinaries. 1. General faculties have customarily been granted to Nuncios or Apostolic Delegates; to bishops, Vicars Apostolic, and Prefects Apostolic.

By force of c. III of their faculties, Nuncios or Apostolic Delegates can dispense from impedient impediments; for a certain number of cases, from diriment impediments of ecclesiastical law, whether public or occult, excepting those which arise from affinity in the direct line, after consummated marriage, from sacred order, and from solemn religious profession; they can sanate in the root, for a certain number of cases, marriages null because of a diriment impediment, when renewal of consent is morally impossible, yet the party conscious of the impediment having been warned concerning the effect of the sanation. The clauses to be observed, and the communication with an auditor or secretary acting in the place of the Nuncio, are indicated in the formula (cf. Epitome Iuris, I, p. 363 s.).
As regards local Ordinaries, by decree indeed of the S. C. Consistorial, April 25, 1918 (Per., IX, 116), the faculties of the external forum which before had customarily been granted were first abrogated; but since the necessity of arming Ordinaries with habitual faculties was soon demonstrated, the same Sacred Congregation, by letters of March 17, 1922, sent various lists to the bishops, of quinquennial faculties which local Ordinaries not subject to the S. C. de P. F., in the year in which they must report to the Holy See, can obtain from the respective Congregations or from the Sacred Penitentiary. After the Motu proprio of April 20, 1923, all these faculties are bestowed by the S. C. Consistorial itself, the right of the individual Offices to draw up and change formulae remaining intact.

To Ordinaries outside Europe, and also to many Ordinaries of Europe, the S. C. of the Sacraments grants the faculty of dispensing in diriment impediments of lesser grade and in impedient impediments arising from a vow; besides this, in more urgent cases, of dispensing from impediments: a) of consanguinity in the second degree or in the third mixed with the first, provided no scandal or wonder arises from it; in the second degree of the collateral line; b) of affinity in the first degree of the collateral line equal or mixed with the second; c) of public honesty in the first degree, provided it is certainly established that the spouse cannot be offspring generated by the other of the contracting parties.

Besides this, at the time and in the act of sacramental visitation or of sacred missions and no further, they can dispense from all matrimonial impediments mentioned above with those who are found to be living in concubinage; they can sanate in the root marriages contracted invalidly because of impediments of lesser grade, if there would be great inconvenience in requiring from the party ignorant of the impediment a renewal of consent, provided the former consent perseveres and the danger of divorce is absent.

By that distinction between consanguinity in the third degree and that which is in the third mixed with the first, the Sacred Congregation in no way thinks to convert consanguinity of a mixed degree into an impediment of greater grade, or to change the computation of the Code; it restricts only the delegated faculty.

From the Holy Office, the same Ordinaries can obtain the faculty of dispensing over the impediment of mixed religion and, if the case calls for it, also over disparity of cult as a precaution, the due cautions having been furnished; of sanating in the root marriages attempted before a civil official or a non-Catholic minister with the impediment of mixed religion or disparity of cult.

The faculties of both Congregations can be exercised everywhere toward subjects, with non-subjects, within the limits of the territory; they are delegable; yet in such wise that the faculty of sanating in the root proceeding from the Holy Office can be subdelegated only to pastors, in individual instances.

The Sacred Penitentiary, in the internal forum, even extrasacramental and outside the diocese, for the flock committed to him [faculty!], also for five years, gives the faculty of dispensing for seeking the debt with a transgressor of a private vow of perfect and perpetual chastity emitted after completing the eighteenth year of age, who has contracted marriage with such a vow; of dispensing over the occult impediment of crime, yet without machination (of death), whether marriage has been contracted or is to be contracted, a grave and lasting salutary penance having been enjoined. The faculty can be subdelegated, within the boundaries only of the diocese, to the Canon Penitentiary and to vicars forane for the forum of conscience and in the act of sacramental confession, even habitually; likewise also to some confessors for special causes; to others it cannot be subdelegated except in individual cases where they have recourse.

To bishops, Vicars Apostolic, and Prefects Apostolic of its jurisdiction, the S. C. of Propaganda Fide also grants matrimonial faculties through formulae which after the Code have been newly drawn up; and there are three in kind, yet in such a way that Formulae II and III are distinguished as greater (for Prelates increased by episcopal character) and lesser (cf. our Commentarium on these formulae).

Excepting the first formula, which is restricted to impediments of lesser grade, the others delegate a communicable faculty of dispensing "over matrimonial impediments, whether of lesser or of greater grade, as much public as occult, even multiple, yet of ecclesiastical law; excepting impediments arising from the sacred order of Presbyterate, from defect of the prescribed age, and from affinity in the direct line after consummated marriage"; and of sanating in the root marriages invalidly contracted because of some one of the impediments in which they can dispense.

But when a petition has been sent to the Holy See, Ordinaries are not to use their faculties unless from a grave and urgent cause, and they are at once to warn the Holy See concerning the matter (cc. 1048; 204, §2).

From the common law itself, cc. 1043 and 1045:

a) when danger of death is urgent, for consulting conscience and, if the case calls for it, for the legitimation of offspring;

b) whenever an impediment is detected when all things have already been prepared for the nuptials, and marriage cannot be deferred, without probable danger of grave evil, until a dispensation is obtained from the Holy See (the case which was called perplexed);

c) for the convalidation of a marriage already contracted, if the same danger is in delay and there is not time to have recourse to the Holy See; provided scandal is removed, and, if dispensation is granted over disparity of cult or mixed religion, the customary cautions are furnished (which latter condition is required for validity);

d) in these circumstances, I say, local Ordinaries can dispense both over the form to be observed in the celebration of marriage, and over all and individual impediments of ecclesiastical law, whether public or occult, even multiple, excepting the impediments of presbyterate and affinity in the direct line after consummated marriage.

Moreover, they can dispense their own subjects wherever dwelling, and all those actually staying in their own territory. They must see to it that scandal is removed, and, if it is a question of disparity of cult or mixed religion, that the customary cautions are furnished.

That faculty, annexed by the common law to their office, according to the definition of c. 197, can be considered as ordinary and therefore delegable.

n. 756.

— Faculties of pastors. In urgent danger of death, if not even the local Ordinary can be approached, the pastor assisting at the marriage possesses the same faculty, ordinary and therefore delegable.

But in a perplexed case, or for convalidating a marriage (in a quasi-perplexed case), if the local Ordinary cannot be approached, at least without danger of violating secrecy, the pastor can do the same as the Ordinary, but for occult cases only (cc. 1044, 1045).

But the pastor must at once inform the local Ordinary concerning a dispensation granted for the external forum, and note it in the book of marriages (c. 1046).

n. 757.

— Faculties of the priest who assists at a marriage which is validly contracted before only two witnesses, according to the norm of c. 1098. This priest is furnished with the same power as the pastor by cc. 1044 and 1045; and he is held by the same obligation of notifying the Ordinary.

Faculties of the confessor. He can do the same as the pastor and the priest just mentioned, but for the internal forum, in the act of sacramental confession.

n. 758.

— Things to be observed concerning these faculties. a) Concerning the faculty in danger of death. - The danger of death can be either of the person who is bound by the impediment or of the other party. In that danger no difficulty of approaching the Holy See is required. A twofold just cause of dispensing is indicated: the necessity of conscience, if by marriage an occasion of sin is suppressed, or scandal is removed, or material damage is repaired, or hatred is extinguished, etc.; the legitimation of offspring born or to be born, provided it is not adulterine or sacrilegious, because this is not legitimated by marriage.

Provision will chiefly have to be made for removing scandal if a deacon or a professed religious afterward recovers. If there is hope of recovery, a promise of departing into a distant region is to be required, or at least of correcting by fervor of life the bad edification of the contracted marriage. When it is a question of the impediment of disparity of cult or of mixed religion, the customary cautions or promises (cf. n. 767) must be required. If they do not seem able to be fully obtained or prudently demanded, the Ordinary more probably acts validly who, in these extreme matters, is content with the conditions required by divine law (cf. Pigui, n. 90, 6; Cerato, Matrimonium, p. 47; Cappello, III, n. 232). Yet we gather this less from the present faculty than from c. 81, by which, where there is in delay a danger of grave harm, the Ordinary is permitted to dispense according to the mind of the Holy See. Wherefore, contrary to what Cerato thinks, p. 50, outside danger of death, even in a perplexed case, we judge with Cappello, n. 233, that the cautions are to be required for the validity of the dispensation.

b) Concerning the faculty in a perplexed case. Here it is required that the Holy See cannot be approached in time. And by the response of the Pontifical Commission, March 1, 1921, both the Ordinary and the pastor can use their power in a perplexed case when the impediment, even if known before, is nevertheless detected by them only then, when all things are prepared for the nuptials.

c) Concerning the faculty of the pastor and assisting priest. This supposes that the Ordinary cannot be approached at least by letters. For the Pontifical Commission itself, November 12, 1922, to V, judged that the Ordinary cannot be approached if he cannot be approached except by telephone or telegraph (Per., XI, 193). And by analogy from c. 1045, §3, if the matter must be covered with secrecy with respect to the Ordinary, then also he seems unable to be approached (Gen., II, 523 bis). Outside danger of death the faculty is restricted to occult cases. But whether the case is occult by its nature or only in fact, it seems comprehended by the faculty of the pastor and assisting priest. The secrecy whose danger excuses from approaching the Ordinary is not only sacramental secrecy, but also committed or natural secrecy: when grave damage or inconvenience stands in the way of revelation. Because the office of pastor comprises no jurisdiction of the external forum, the faculty given here does not seem annexed to the office. Wherefore it is not ordinary nor can it be subdelegated (Vlaming, op. c., n. 415). Yet this is probably disputed. But the faculty extends to all impediments from which he can dispense in danger of death, so that even (if the case occurs, for example where a marriage is to be convalidated) he seems able to dispense in the form of marriage.

What if, for example, a vicar forane can be approached to whom the Ordinary has delegated his power? Vlaming judges (op. c., n. 312) that recourse must then be had to that delegate, so that otherwise the pastor would dispense invalidly. That severity does not seem to us able to be drawn from the Code. Yet the Ordinary could prescribe recourse to the delegate for liceity.

d) Concerning the faculty of the confessor. Several, for example P. Cappello, III, 258, deny that this faculty extends to impediments public by their nature, even if the case is occult. And indeed, in urgent danger of death, there will scarcely occur a case where the Confessor cannot either obtain that the penitent seek a dispensation in the external forum from the pastor or assisting priest then intervening according to c. 1044, §2, or himself grant it as assisting priest. But if a case of necessity has intervened (as if an occult subdeacon does not wish to be known to the pastor as a violator of his vow), it does not seem to be ours to circumscribe the force of the general canon. But if danger of divulgation, or of conflict between the internal and external forum, is to be feared, the confessor will require from the penitent promises which remove the danger: of seeking a dispensation in the external forum, of permitting entry in the secret archive, or recourse to the Sacred Penitentiary, which perhaps may consent that the marriage be noted in one secret archive, or otherwise provide (cf. concerning this matter the full discussion in Monitor, 1920, p. 59 ss., which P. Arendt called back to examination: Du cas perplexe et des pouvoirs du confesseur d'après le Code, Nouv. Rev. Théol., 1920, p. 261 ss.; Cappello, III, 238).

What if a marriage is celebrated before a delegated priest, and at that moment an impediment is detected in circumstances in which neither pastor nor Ordinary can be approached nor the marriage deferred?

Then either you will say with some, for example Cappello, III, 236, that the delegated priest has the power of dispensing which belongs to the pastor, so that, according to the norm of c. 200, §1, he has all those things without which he could not exercise the power. And indeed it would seem wonderful that a duly delegated priest could do less than any priest assisting when marriage is permitted to be contracted before witnesses alone. Or at least you will permit him to handle the perplexed case as before the Code, that is, to declare that the impediment has ceased, with the obligation added of recurring to the Ordinary.

n. 759.

— The notation of dispensations in the internal forum. "Unless the rescript of the Sacred Penitentiary carries something else, a dispensation granted in the non-sacramental internal forum over 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 afterward the occult impediment has become public; but it is necessary if the dispensation had been granted only in the sacramental internal forum" (c. 1047).

n. 760.

— Things to be noted concerning the faculty of dispensing and its use.

Concerning a multiple impediment. A general principle is now established, according to which those who enjoy a general indult of dispensing can use it whether the same impediment is multiple or several impediments occur at the same time, even public impediments, and this both in marriages to be contracted and in marriages already contracted (c. 1049).

Yet where, for one out of several public impediments, the faculty is lacking, recourse must be had to the Holy See for all. But if, after a dispensation over others has been granted by the Holy See, an impediment or impediments are detected over which the faculty of dispensing was had, use of this faculty is to be made, with a new recourse omitted (c. 1050).

Concerning the legitimation of offspring. Whenever a dispensation over a diriment impediment is granted, by ordinary power or by power which has been bestowed through a general indult, by that very fact there is also granted the legitimation of offspring which has already been born or conceived from those who are dispensed, excepting, however, adulterine and sacrilegious offspring (c. 1051).

Therefore every dispensation, when the Holy See itself has granted it, whether in gracious form or by committing the execution to the local Ordinary, since it remains from ordinary power, brings this legitimation. It must be said otherwise concerning a dispensation which, in a particular case, is permitted to be made by the Ordinary^¹. For then the faculty does not extend to legitimation, unless it is expressly said. But if the Ordinary dispenses by force of a general indult, the legitimation is contained in the dispensation itself. Hence it also follows that offspring are legitimated by the dispensations granted by force of cc. 1043-1045, unless dispensation is made from a vow or the offspring has been adulterine.

Concerning error in the supplicatory petition or incomplete exposition. a) "A dispensation from a lesser impediment once granted is invalidated by no vice either of obreption or subreption, even if the only final cause set forth in the prayers had been false" (c. 1054).

But obreption is had in suggesting a false cause; subreption in concealing a matter which would stand in the way of the dispensation and therefore, from the style of the curia, ought to have been stated.

Therefore the petition itself suffices, so that a sufficient cause for the dispensation is considered to be present. Wherefore even if the one dispensing, for example the Ordinary, had been conscious of the error or fraud of the parties, he will have the right of dispensing.

Nevertheless other causes of nullity subsist, for example if the dispensation had been extorted by force and fear.

b) "A dispensation from the impediment of consanguinity or affinity 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 inferior, or although another impediment of the same species in an equal or inferior degree had been kept silent" (c. 1052).

Therefore a twofold case is considered: a) they were affines in the second degree or consanguineous in the third, for whom a dispensation in the first degree of affinity or in the second of consanguinity was obtained: the dispensation is valid; nothing must be corrected; b) they were impeded by multiple consanguinity or affinity. One has been declared. Provided the omitted degree is not superior, the dispensation is valid; nor does the Code require the condition of good faith in the one keeping silent. Therefore for validity it is enough to have indicated a simple impediment in the nearer degree (De Smet, De Spons., n. 47). But if affinity concurring with alleged consanguinity was kept silent, the dispensation is not valid, for the impediments are disparate or of diverse species.

This rule again is general: it is to be applied whoever the author of the dispensation is. But the Code deliberately speaks of an error which has crept into the petition or concession. For it can happen that the supplicatory petition itself was incomplete; and it also occurs that an imperfect response is given to a well-drafted petition, even from an error of the copyist. Yet each error of itself vitiates the rescript (cf. De Smet, De Spons., 920, 3 and note 1).

Virtual dispensation from an impediment. A dispensation given by the Holy See over a ratified and non-consummated marriage, or a permission made for passage to other nuptials because of the presumed death of a spouse, always carries with it a dispensation from the first form of the impediment of crime, that is, adultery with promise or attempted marriage, but not from the other forms, where killing of the spouse has intervened.

Here you should observe that it is necessary that the dispensation be given by the Holy See, whether in gracious form or in imperative commissory form (mandamus, committimus). Other virtual dispensations, since none are mentioned, no longer seem to exist, even if they existed before the Code. Thus a dispensation in the impediment of disparity of cult used to carry with it a dispensation of the Catholic party from impediments to which the other party was immune.

¹ We deliberately abstain from the words, in forma commissoria, which are not always used with the same meaning. De Smet, De Spons., n. 740, p. 204, note 2. This must be attended to, whether the Holy See dispenses by itself or by a mandatary, or whether the bishop dispenses through granted faculties.

n. 761.

— Execution of a dispensation. Dispensations over public impediments granted to the Ordinary of the petitioners are always to be executed by the Ordinary who gave the testimonial letters or transmitted the prayers, yet the Ordinary of another place in which perhaps the marriage is contracted having been warned (c. 1055).

Mention of the faculty delegated by the Holy See is always to be made in the dispensation to be granted (c. 1057).

You should observe that this mention is commanded, yet not for validity. A dispensation for the extrasacramental internal forum is also committed to other persons, for example to the pastor; for the sacramental forum, to the confessor.

n. 762.

— The gratuitousness of dispensation in the diocesan Curia. Saving an express concession of the Holy See, for dispensations which the Ordinary himself grants, every emolument is forbidden to be received, under penalty of restitution, "excepting some modest prestation by title of expenses of the Chancery," and this only from those who are not poor.

For dispensations which the Ordinary executes, the rescript itself often indicates what can be sought for the execution. And also, from c. 1507, §1, after the approval of the Holy See has been obtained, in a provincial council or convention, the tax of execution for the whole province can be predefined.

For dispensations which Nuncios and Apostolic Delegates grant by force of their faculties, it is said: "The persons about to marry should pay some offering, if it can be done, according to their means," to be transmitted to the S. C. of the Holy Office, if it is a question of disparity of cult, to the S. C. of the Sacraments, if there were other impediments.

In conceding dispensations from the faculties of the S. C. of the Sacraments, Ordinaries must see to it that those who are found able to pay should pay an equitable offering according to their means, in service of the Holy See. By the indult of the Holy Office we are taught that the tax customarily sought for any dispensation "which the Right Reverend Lord Ordinary will exact, unless because of the diversity of cases it must be moderated or remitted because of the poverty of the petitioners or other just causes" is 15 francs. The Ordinary is permitted by the Holy Office to retain the fifth part of the taxes which they exact for his own necessities and those of his diocese.

n. 763.

— Principle concerning capacity and liceity of marriage. "All can contract marriage who are not prohibited by law" (c. 1035).

Therefore, 1. when it is a question of marriage in general, the impediment must be proved, and in a doubtful impediment one must respond in favor of liberty. This rule is universal when it is a question of impedient impediments; when it is a question of diriment impediments, the right acquired by a third party must remain safe; wherefore it is not lawful to contract a new marriage if the invalidity of the prior marriage, or its dissolution, for example by death, is only probable. But an application of the rule is had in c. 1068, §2: "If the impediment of impotence is doubtful, whether by doubt of law or by doubt of fact, marriage is not to be impeded." De Smet (De Spons., 472) not undeservedly restricts this application to absolute impotence; for when it is a question of relative impotence, we fall under n. 2. (Yet we do not wish to deny the probability, at least extrinsic, of the more benign opinion.)

The rule is less universal when it is a question of the faculty of nuptials between definite persons. Even then it holds concerning impedient impediments, and concerning impediments of ecclesiastical law which are doubtful by law. In impediments of ecclesiastical law which are doubtful by fact, the Ordinary can dispense in those impediments in which the Holy See is accustomed to dispense. But neither before this kind of dispensation, nor when it is a question of a doubtful impediment of natural or divine law, is marriage licit between persons thus doubtfully impeded. Wherefore c. 1076, §3: "Marriage is never to be permitted if there is any doubt whether the parties are consanguineous in any degree of the direct line or in the first degree of the collateral line."

The reason for the distinction between each kind of doubt is manifest. In the former, you would oblige an unwilling person to continence: the common good itself requires that this not be done without manifest reason; in the latter, the faculty of marriage with all persons not prohibited by a similar impediment is permitted to remain.

What must be said after the fact, we shall see below. Now the individual impediments must be proposed, yet the rule of communication of impediments having been recalled.

n. 764.

— Communication of impediments. "Although an impediment has itself on the part of only one party, nevertheless it renders the marriage either illicit or invalid" (c. 1036).

Therefore if an infidel contracts with a faithful person, or a non-Catholic with a Catholic, the impediments by which the Catholic is affected impede the marriage even with the free party: the immunity of the free party is not communicated.

n. 764 bis.

Summary

— I. What. Of how many kinds. An impediment properly, and in the Code, is not whatever, even internally or externally, stands in the way of marriage, but is whatever external, by divine or human law, renders a person unable, not for every contract, but for matrimony, or forbids him to contract marriage. For there is an impedient impediment, which contains a grave prohibition, and a diriment impediment, which at the same time prohibits and invalidates.

It is public which can be proved in the external forum; otherwise it is occult, and that either by its nature or by fact.

According to origin, it is of divine law, which the Church merely declares authentically, and of positive human law: that is, for the baptized, of ecclesiastical law alone; for the non-baptized, of civil law alone.

According to the discipline of dispensation, an impediment is of lesser grade, whose dispensation is not weakened because of the vice of obreption or subreption, and an impediment of greater grade.

The Holy See alone establishes or removes impediments. The Ordinary can forbid a marriage for a time, while a just cause endures.

II. Subject. Only the baptized are directly bound by canonical impediments, only the non-baptized by civil impediments. But an impediment existing in either party makes the marriage illicit or invalid for both. For whom the form must be observed will be said later.

After conversion and baptism, a fact before baptism creates an impediment if it subsists or perseveres in a natural bond, but not in a merely canonical one. When it is a question of marriage in general, those doubtfully impeded preserve the right of contracting marriage; but if it is a question of marriage between definite persons, this rule does not hold except concerning impedient impediments or concerning impediments of ecclesiastical law which are doubtful by law.

III. Dispensation. 1. Those dispensing. The power belongs to the Supreme Pontiff for all canonical impediments; to the civil power for impediments of civil law. For occult impediments the Penitentiary is approached; for public impediments, the S. C. of the Sacraments, excepting the impediments of disparity of cult and mixed religion, for which the Holy Office must be approached.

Local Ordinaries, when the fact is doubtful, or when recourse to the Holy See is difficult and, in delay, there is danger of grave harm, dispense in impediments which the Holy See is accustomed to relax.

They also dispense by force of a general indult granted by the S. C. of Propaganda Fide or by a competent Congregation.

From the common law, they can dispense their own subjects wherever dwelling, and all others in their own territory, by a faculty granted as ordinary, both over the form of celebration and over all impediments of ecclesiastical law, excepting presbyterate and affinity in the direct line after consummated marriage: when danger of death is urgent, for consulting conscience and, if the case calls for it, for the legitimation of offspring; besides this, if the Holy See cannot be approached in time, in the case which is called perplexed, that is, whenever an impediment is detected when all things are prepared for the nuptials and the marriage cannot be deferred without probable danger of grave evil until dispensation has been sought from the Holy See; similarly, when the convalidation of a marriage already contracted is urgent. Scandal must be removed, and, if dispensation is made over disparity of cult or mixed religion, the customary cautions must be required.

The pastor assisting at marriage in urgent danger of death can do the same if not even the Ordinary can be approached, at least by letters. In a perplexed case or for convalidating a marriage, he can do the same for occult cases only.

The priest who, when a marriage is validly contracted before two witnesses, assists at the marriage, enjoys the same power as the pastor.

The confessor can do the same, but only for the internal forum and in the act of sacramental confession.

N. B. Of itself, after a dispensation has been granted in the non-sacramental internal forum, a dispensation in the external forum, which is only a mode of recognizing what had already been validly done, is no longer necessary.

Concerning the use of the faculty. a) By a general indult, dispensation of a multiple impediment, or of several impediments concurring at the same time, is permitted. Yet if the faculty is lacking for one public impediment, the Holy See must be approached for all. But if, after dispensation over others has been granted by the Holy See, impediments are detected over which the faculty is had, its use is permitted without new recourse; b) a dispensation bestowed from ordinary power or through a general indult, by that very fact legitimates offspring born or conceived, excepting adulterine or sacrilegious offspring; c) a dispensation granted in some degree of consanguinity or affinity is valid, although in the petition or concession an error concerning the degree has crept in, provided the degree really existing is inferior, or an impediment of the same species in an equal or inferior degree had been kept silent; d) a dispensation over public impediments is always to be executed by the Ordinary who gave the testimonial letters or transmitted the prayers; e) saving an express concession of the Holy See, the Ordinary can receive no emolument for dispensations which he grants, excepting, from non-poor persons, a modest prestation by title of expenses of the Chancery.

Vol. III, Bk. II, Tr. VIII, Title VIII: The Convalidation of Matrimony

n. 823.

— A twofold mode of convalidation of matrimony is distinguished: one ordinary, simple, when, the impediment having been removed, of itself or by dispensation, or the defect having been supplied, the matrimony, the things to be observed having been observed, from that moment becomes and is considered valid; and sanation in the root, when, without new consent, from the former consent having been healed, the matrimony is convalidated. The peculiar juridic effects belong to this later mode. Hence the division of the chapter into two articles.

Vol. III, Bk. II, Tr. VIII, Tit. VIII, Article I: On Simple Convalidation

n. 824.

— Principle concerning the necessity of new consent. One must proceed from this principle. Although consent which would of itself suffice may have been given before, nevertheless by the removal alone of the cause of nullity (different from deficient consent) the matrimony is not convalidated, but new consent to matrimony is required, given by the person who is conscious of the nullity (cc. 1133, 1134).

And this is required for validity by ecclesiastical law (c. 1133, §2).

n. 825.

— Who must renew consent and in what manner. 1. If the impediment is public, the consent must be renewed in the form prescribed by law (c. 1135, §1) for the first celebration of matrimony.

What if the impediment is public by its nature, but occult in fact?

Since no exception of this kind can be gathered from the Code, even then the same form of renewal seems to have to be observed. But, with the permission of the Ordinary added, if the case requires it, the form of a marriage of conscience can be employed. If the matter must be hidden from the pastor, the confessor can be delegated by the Ordinary so that he himself, with two witnesses, may assist at the marriage. Of itself, however, the very reason of avoiding scandal demands that at least from publication the celebration become known. But per accidens it can happen that the publication itself becomes more scandalous (cf. De Smet, 729).

If the impediment is occult and known to both parties, it is enough that the consent be renewed privately and secretly by both parties (c. 1135, §2).

We understand occult both by its nature and in fact. Wherefore the marriage is supposed to have been celebrated in due form. But if otherwise, it must again be contracted in the legitimate form (c. 1137).

If the occult impediment is unknown to one party, it suffices that the party alone conscious of the impediment renew consent privately and secretly, which will be joined with the persevering consent of the other.

It is indeed necessary that the other party have persevered in consent. But, when contrary arguments are lacking, that perseverance is sufficiently demonstrated by the presumption itself from c. 1093. Therefore, if the other party had consented fictitiously, it is enough that he or she renew consent internally, c. 1136, §2. If the defect of consent was also external, as for example if it was vitiated by fear, an external manifestation of consent will be necessary, whether occult or even public, according as the defect was occult or became public.

What if both parties are ignorant of the nullity? From c. 1133 we gather that it does not suffice that the impediment have ceased or have been removed by dispensation, but consent must be renewed at least by one party who is made more certain concerning the impediment, unless recourse is had to sanation in the root. This has been authentically declared concerning impediments removed by the Code (cf. declaration of June 2-3, 1918, IV, 7, Periodica, IX, 150).

N.B. Before matrimony is convalidated, the parties must be warned, if it can be done, that they procure for themselves or carefully preserve the state of grace, in order to receive the sacrament worthily and fruitfully.

Vol. III, Bk. II, Tr. VIII, Tit. VIII, Article II: On Sanation in the Root

n. 826.

— Notion. "Sanation in the root of a marriage is the convalidation of the same, carrying with it, besides dispensation from or cessation of the impediment, dispensation from the law concerning renewing consent, and retrotraction, by a fiction of law, concerning canonical effects, to the past" (c. 1138, §1). Therefore, sanation in the root:

is contained under the common genus of convalidation, which supposes either cessation of the impediment or its dispensation, under which name here also comes dispensation from observing the solemn form;
has as its proper or specific thing a twofold effect, one connatural: dispensation from the law of renewing consent; the other artificial (which is ascribed to a fiction of law), by which canonical effects are considered to have been produced before the moment at which the matrimony began to be valid.

The convalidation itself cannot be earlier than the concession. But from what moment are the canonical effects computed? From the beginning of the matrimony, unless something else is expressly provided (c. 1138, §2).

And because no consent is to be renewed, the dispensation itself from renewing consent and the sanation in the root can be conceded while one party, or even both, are unaware.

n. 827.

— Necessary condition. 1. Of itself it is altogether required that naturally valid consent have been given from some moment, not necessarily from the very beginning, and that it have not been revoked before the sanation.

From the will of the Church it is necessary that the matrimony not have been contracted with an impediment of natural or divine law (c. 1139).

Excluded, therefore, from this benefit is the fairly frequent case of a marriage civilly contracted after civil divorce. Before the Code, it happened that the Sacred Penitentiary (April 25, 1890) sanated a marriage of this kind from the moment at which the impediment of the bond had been removed. Today this is opposed to the law of the Code. But the power of the Supreme Pontiff remains intact.

And the same must be said if an impediment of natural or divine law supervened upon a marriage which before was null on account of an impediment of ecclesiastical law alone. Indeed, as long as that impediment perseveres, there is no place for sanation. De Smet, n. 736, p. 202, note, alleges a case where perpetual impotence supervened upon a clandestine marriage.

n. 828.

— Power of sanating. Sanation in the root is reserved to the Holy See (c. 1141), which nevertheless concedes delegated power, for example through faculties conceded to Nuncios or Apostolic Delegates and to Ordinaries of places, especially in missions.

n. 829.

Summary

— I. Simple convalidation, the impediment having been removed, demands new consent from the party who is conscious of the nullity; and this, by ecclesiastical law, for validity.

Is the impediment public, whether by its nature or in fact: the consent must of itself be renewed in the form prescribed by law. Is it occult and known to both parties: it is enough that consent be renewed privately and secretly by both parties. If it is known to one party only, it is enough that this party renew consent. If it is known to neither, one or the other party must be made more certain concerning the defect, that he or she may renew consent. Before convalidation, the parties are to be warned, if it can be done, concerning having the state of grace.

II. Sanation in the root is the convalidation of matrimony which, besides dispensation from or cessation of the impediment, carries with it dispensation from the law concerning renewing consent, and whose canonical effects are considered to have been produced from the beginning of the matrimony, unless something else is expressly provided (c. 1138).

The essential condition is naturally valid consent given from some moment and persevering at the moment of the sanation.

And, from the will of the Church, it is necessary that the matrimony not have been contracted with an impediment of natural and divine law.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 3 passages

Vol. III, Pt. II, Tr. X, Ch. IX, Article IV. On the Cessation of the Impediments of Matrimony · Vol. III, Pt. II, Tr. X, Ch. IX, Art. IV, § 1. On the Notion and Division of a Matrimonial Dispensation

Vol. III, Pt. II, Tr. X, Ch. IX, Article IV. On the Cessation of the Impediments of Matrimony

n. ¶114.

Preliminary Note. After all impedient and diriment impediments have been explained, and after it has been said briefly and summarily concerning each how they cease, it remains for us to give the general rules for the cessation of impediments. In general, impediments can cease in three ways:²³³

By lapse of time. In this way there can cease age, a temporary vow, the bond through the death of the spouse, abduction through the liberation of the abducted woman, mixed religion and disparity of worship through the conversion of the other party.
By the consent of the contracting parties legitimately given. In this way there cease the impediment of error, namely, if the party led into error, after the truth is known, consents to the matrimony; and the impediment of force and fear, if, when the fear has ceased, free consent is given.
By a legitimate dispensation. Several impediments of ecclesiastical law cannot cease except through a legitimate dispensation, for example, affinity, consanguinity, spiritual relationship, etc.

Enough has already been said above concerning the first and second modes of the cessation of impediments; but concerning the dispensation from impediments several things remain to be added. For the sake of clarity, we divide all these things into five paragraphs: 1. on the notion and division of dispensation, 2. on its author, 3. on its causes, 4. on the methods of seeking a dispensation, 5. on the methods of executing a dispensation.

²³³ Some authors added a fourth mode, namely, legitimate custom. But today "a custom introducing a new impediment or contrary to existing impediments is reprobated." Code of Canon Law, can. 1041.

Vol. III, Pt. II, Tr. X, Ch. IX, Art. IV, § 1. On the Notion and Division of a Matrimonial Dispensation

n. 853.

853. Notion. The name dispensation is not always taken in the same sense; for sometimes it signifies the total abolition of a law for a particular case, but sometimes the suspension of the obligation of a law while the law remains. Thus, for example, a dispensation from a ratified matrimony totally removes that matrimony, but a dispensation from a solemn vow does not always remove that vow, but sometimes only suspends its obligation in relation to matrimony. In a general manner a matrimonial dispensation can be defined: a relaxation of a law invalidating or prohibiting matrimony, legitimately made in a particular case by a legitimate superior.

n. 854.

854. Divisions. 1. A dispensation for the internal forum and for the external forum. - The internal forum regards conscience and comprises both the penitential forum strictly so called and the private and occult forum. A dispensation for this forum has place especially in occult impediments of crime and of vows emitted privately. The external forum regards the external polity and the public good of ecclesiastical society. According to the prescription of the Code of Canon Law, can. 258, § 1, no dispensations for the external forum can now be given by the Sacred Penitentiary. - A dispensation given for the external forum is valid also in the internal forum, but not conversely; and therefore, if a dispensation from an occult impediment was granted in the internal forum, nevertheless a dispensation for the external forum must regularly be requested if perhaps this impediment afterward became notorious; at least this is so if the dispensation was granted in the sacramental internal forum alone. But if a dispensation from an occult impediment was granted in the non-sacramental internal forum, it is to be noted in the secret book of the archive of the diocesan curia, and no other dispensation for the external forum is necessary, even if the occult impediment afterward became public. Thus it is, unless a rescript of the Sacred Penitentiary provides otherwise.²³⁴

2. A dispensation for contracting matrimony and for convalidating a matrimony invalidly contracted. In the first case a simple dispensation is granted, but in the second case sometimes a dispensation is granted which is called a radical sanation.²³⁵

3. A dispensation in gracious form and in commissorial form. According to the discipline now in force, the former is granted immediately to the petitioners themselves, for example, to persons of great dignity; the latter is committed to a bishop, parish priest, or confessor to be executed. This second method is now almost always in use.²³⁶

4. A dispensation of the greater and of the lesser degree. There are five impediments of the lesser degree: 1. consanguinity in the third degree of the collateral line, 2. affinity in the second degree of the collateral line, 3. public propriety in the second degree, 4. spiritual relationship, 5. crime from adultery with a promise or attempted celebration of matrimony. All other impediments are of the greater degree.²³⁷

Scholion 1. Before the Constitution Sapienti consilio, a dispensation in the form of nobles, in the common form, and in the form of the poor was also distinguished. All these now seem to have been abolished, since no matrimonial dispensation is now granted by the Dataria.²³⁸

Scholion 2. As regards the history of matrimonial dispensations, several things are still obscure. From the first centuries no certain matrimonial dispensations are known. Nevertheless, it is not yet permissible to conclude therefrom that dispensations of this kind were never granted at all at that time. The first example of a dispensation seems to be an Indult granted to John, son of Henry II, King of England (1154-1189), so that he could contract matrimony with a blood relative. The glossators of the Decree of Gratian in the twelfth century clearly acknowledge that the Supreme Pontiff can not only convalidate a matrimony invalidly contracted because of an impediment of ecclesiastical law, but also dispense for contracting matrimony notwithstanding such an impediment.²³⁹ From the time of Innocent III, the discipline of dispensations now in force gradually obtained, according to which a dispensation from all diriment impediments is reserved to the Supreme Pontiff. Nevertheless, by delegation bishops today are wont to have broad faculties of dispensing, as will be said below.

²³⁴ Code of Canon Law, can. 1047.

²³⁵ Cf. below, n. 878.

²³⁶ Cf. below, n. 871, where the execution or fulmination of dispensations will be treated.

²³⁷ Code of Canon Law, can. 1042.

²³⁸ Cf. Regolamento, c. 11, n. 13.

²³⁹ Cf. Freisen, Gesch. d. kan. Eherechtes, § 77; Leitner, Lehrb. d. kirchl. Eherechtes, 389.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 4 passages

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. VI, Art. II, § 2. On The Revalidation Of Matrimony Through Sanation In The Root

n. ¶2084.

SANATION IN THE ROOT is the abrogation of the ecclesiastical law which induced the impediment, in a particular case, with retroactive force, so that dispensation from the impediment now conceded is to be had as if it had been conceded before the matrimony was contracted, and the matrimony is revalidated without new consent.

And indeed, just as because of dispensation conceded before the nuptials were entered mutual consent duly furnished would have effected valid matrimony: so through dispensation now conceded with retroactive force it is effected that the same prior consent virtually persevering exercises its force and effects matrimony, which for this reason obtains the same effects just as if it had been valid from the beginning.⁹ - For the dispensation, by fiction of law, is drawn back to the root of the matrimony, and replaces things in that state in which they would have been if the impediment had never existed; and hence it is why it is called sanation in the root.

From the things said it follows that sanation in the root has a twofold EFFECT: one from now, i.e. the validity of the matrimony by force of the first consent; the other from then, namely the annulling of all the effects that followed from the nullity, first of all as regards children, who obtain the fullest legitimacy, so that they are altogether to be held as born from legitimate matrimony. This effect indeed can be obtained even when the parents are deceased.

Hence the difference between sanation in the root and ordinary revalidation is clear, since the latter requires new consent, and extends its effects only to future time, but not to the past.

n. ¶2085.

I. That the Church possesses the POWER of revalidating matrimony through sanation in the root is of certain law, and is evinced both from constant practice and from the nature of the matter. For just as the civil legislator can so remove his law that he annuls its effects even as to past time: so similarly the Supreme Pontiff can abrogate his own law as to all its effects.¹⁰

n. ¶2086.

II. The CONDITIONS required for sanation in the root are FOUR, namely:¹¹

That the impediment be of ecclesiastical law.
That true matrimonial consent was given in the beginning; for the root which did not exist cannot be healed. Wherefore it is required that, at least at the time of celebration, the conjunction had the appearance of matrimony and was not manifestly fornicary. - Matrimonial consent indeed does not regularly consist with knowledge of an impediment, since no one can seriously will what he knows cannot be done; nevertheless it can consist, if one does not sufficiently attend to its invalidating force, or if this force is unknown, or is not believed, or is not held as sufficiently seen through. If one party is in good faith as to the validity of the matrimony, the consent of this one can be healed, the consent of the other party having been renewed. Hence it is concluded that civil matrimony can be healed in the root, provided true matrimonial consent was furnished.
That the consent of each party persevered. This condition is customarily expressed, for the most part, in the Pontifical Rescript; but if it has not been expressed, it ought to be supposed by full right. For if the consent, the matrimony not yet having been convalidated, has been revoked, it can no longer be healed, since it has already been destroyed; otherwise one would have to say that the Sacrament of matrimony can be received by one formally unwilling. - But interpretative dissent does not impede sanation in the root, because it does not fight with true consent (cf. n. 2082). Besides, one must not inquire anxiously concerning the perseverance of consent; it suffices if revocation is not established.
That a grave and urgent cause be present: which is had if the matrimony cannot be revalidated otherwise, or in no way, or at least not without danger of grave damage. Yet the dispensation would be valid if the Pope knowingly conceded it without cause; otherwise, if the Ordinary conceded it (cf. n. 238).

n. ¶2087.

For practice, the following still come to be NOTED: - 1. Sanation in the root is commonly conceded only for the internal forum; nevertheless, necessity demanding it, it can also be obtained for the external forum; in which case, inscription of the convalidated matrimony is to be made either in the parochial book, if prudence permits this, or in a secret book to be preserved in the episcopal Curia, according to the things said in n. 2080 (Note 3). - 2. In whatever way revalidation is made, scandal, if perhaps it is present, is to be removed through knowledge of the valid matrimony prudently made known. 3. Sanation can be made with each party unaware, and thus is to be made whenever danger of grave damage is feared from warning. - 4. If one party can prudently be warned, the dispensation in the root ought to be fulminated according to the norm described above for ordinary dispensation (n. 2054), the things to be changed having been changed, and those things which are prescribed in the Rescript being diligently observed.

This or a similar Formula can be employed: I, by the Apostolic authority conceded to me, heal and strengthen in its root the matrimony contracted by you with N., and I declare the offspring received or to be received legitimate. In the name of the Father, etc.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 4 passages

Vol. II, Treatise on Matrimony, Ch. VII, Art. III, § II. On the Revalidation of Matrimony with Dispensation in the Root

n. ¶1635.

1635. - Dispensation in the root is the abrogation of an ecclesiastical law which introduced an impediment, in a particular case, joined with the rendering void of all effects which even before had followed from the law.

Therefore this dispensation produces its effect by removing from the midst the effects of the law, which, because of the nullity of the Matrimony, before the dispensation was granted, and even in the very act of contracting, were produced. - Thus Benedict XIV.³

Hence simple dispensation differs from dispensation in the root in this, that the former has its effect only from the time at which it is conceded, or from now, and therefore cannot exempt from renewal of consent. But the latter convalidates Matrimony from the time of Matrimony, or from then, not in this sense, that it effects that Matrimony, contracted nullly from the beginning because of an impediment, was not so contracted, but by removing from the midst those effects which, because of the nullity of a Matrimony of this kind, before the dispensation was granted, and even in the very act of contracting Matrimony, were produced (namely, defect of consent, nullity of the contract, illegitimacy of offspring, that is, its spiritual and temporal effects), so that, the defect of consent having been healed (which contract is the root), through a fiction of law [T. I. p. 478. col. 1. (6)] these effects before the Church are held as if they had never existed. Heiss, § 64. I.

n. ¶1636.

1636. Principles. - I. The Church, or the Supreme Pontiff, can dispense in the root of Matrimony as regards all impediments of Ecclesiastical Law. The reason is, 1° because to dispense in the root is nothing else than to take away an impediment not only for the future, but also for the past, or to take away the effects which it produced, so that before the Church they are held as if they had never existed. But in these things there is nothing which exceeds the power of the Church. Therefore. 2° Because this is established and confirmed from the practice of the Church, which for several centuries has been accustomed to concede such dispensations. Boniface VIII is read to have dispensed thus first, in the year 1301; but in more recent times Pius VI, Pius VII, Leo XII, etc., dispensed more frequently in the same mode.

II. But four conditions are required so that Matrimony can be convalidated by the aid of dispensation in the root, namely:

1° That the conjunction of the spouses had an extrinsic species of just Matrimony, and was not manifestly fornicarious. Thus Benedict XIV. The same also Cardinal Caprara requires. The reason is to be sought, not from the essence of the thing, as some wish, but from the pontifical will, as the celebrated Feije proves by examples.¹ - But the extrinsic species of Matrimony is present even in nuptials which, in a place where the diriment law of clandestinity did not oblige one or the other, were contracted invalidly because of an occult impediment - whether before a civil magistrate, or before a minister, or in another mode attesting the intention of Matrimony. Indeed the extrinsic species of Matrimony cannot be excluded from those Matrimonies concerning which it is seriously doubted whether in the place of celebration they were bound by the Tridentine law, and which were contracted in one or another mode said above. Feije.¹

2° That the consent of each has persevered; for the Church cannot convalidate consent retracted even from one party only. Otherwise, not rarely the Pontiff requires in the Rescript that it be established concerning the permanent consent of each party. But if that is not required, it suffices that no argument of revocation of consent is had, concerning which inquiry must be made not imprudently.²

3° That an urgent and grave cause be present. But this can especially be had in a threefold case, namely: 1° when one party cannot be brought to renewal of consent, and nevertheless exhibits consent de praesenti of remaining in Matrimony; thus Cardinal Caprara; 2° when the impediment is known to one party only, which could not be manifested to the other without grave inconveniences; 3° when an urgent reason is present for not admonishing the spouses concerning the nullity of the Matrimony.

This third condition is not required for the validity of the dispensation, if the dispensation is knowingly conceded without it by the Supreme Pontiff; otherwise, if it is conceded by a Bishop from a particular Indult, as among us.

4° That there is question of an impediment of Ecclesiastical Law; "for the Pontiff cannot heal consent vitiated by an impediment of natural or divine law, for example, of bond. But if an impediment of this kind has supervened after Matrimony celebrated invalidly because of an ecclesiastical impediment, for example, perpetual impotence, nevertheless the Matrimony can be sanated in the root; for with respect to future Matrimony this impotence would be antecedent, but with respect to the one already contracted it is subsequent. It is indeed difficult to conceive sanation in the root, since Matrimony truly does not become valid except from now, or when the sanation is applied, and therefore the impotence can truly seem to precede the Matrimony; but the reason of explaining is to be sought from the peculiar nature of sanation in the root, by which consent once actually furnished is healed through the abrogation of the impediment from then. We have at hand a sanation in the root of this kind conceded by Our Most Holy Lord Pius IX in the year 1848. Nevertheless the parties certainly cannot use Matrimony." Thus the celebrated Feije.³

Note. - Although ordinarily sanation in the root is given for occult nullity, nevertheless in some very difficult circumstances, and certain conditions being posited, it is also conceded for public nullity.¹ See n. 1632. q. 3°.

n. ¶1637.

1637. Questions. - Quaer. 1° Can dispensation in the root be obtained and applied, each party being ignorant of it?

Resp. Affirmatively. The reason is that knowledge of the dispensation is in no way required so that the Church can take away the effect of the law, or the obstacle which was standing in the way of the efficacy of consent; for the power of the Church is altogether independent of such knowledge. It is confirmed from the practice of the Church. For Clement XIII, as Collet reports, conceded to a certain Procopius (who seems to have been a Bishop) the faculty that he might sanate in the root, the parties not having been admonished, many Matrimonies entered invalidly because of too great an extension of faculties received. Other examples also of similar revalidation of Matrimonies are reported by others.

Quaer. 2° Can dispensation IN THE ROOT be conceded if both parties, when they contracted, knew the impediment?

Resp. 1° Negatively, according to the more common sentence, if the spouses in contracting clearly knew the nullity of the Matrimony. The reason is that, the invalidity of the Matrimony being known, true and properly so-called consent cannot be given into it, but only an intention of living in concubinage is had; and therefore consent cannot be healed, since from the beginning it was fictitious.

Resp. 2° Affirmatively, if the spouses in contracting, although they knew the impediment, nevertheless did not doubt that the Matrimony was null, or did not attend to its invalidity. Thus Cardinal Caprara seems to be understood, who supposes that dispensation in the root can be obtained for convalidating a clandestine Matrimony, when one party refuses to renew consent before the Church. In the same mode one seems to have to distinguish concerning Matrimonies contracted only civilly in places where the Tridentine Decree is in force.

Quaer. 3° Can a Bishop dispense IN THE ROOT, when he can dispense concerning diriment impediments from a particular Indult?

Resp. Negatively. The reason is that dispensation in the root requires greater power; and therefore it is not judged to be contained in other faculties. It is also proved from the practice of the Church, which always gives a special faculty when it intends to concede the power of dispensing in the root, as is given to our Bishops. See p. LXXIV. n. 6.

Quaer. 4° In what way is dispensation IN THE ROOT to be executed?

Resp. In the same mode as simple dispensation, adding in the formula the words: in the root. Thus, for example: "I, by Apostolic authority conceded to me, sanate and consolidate in its root the Matrimony contracted by you with N., and I declare legitimate the offspring received and to be received. In the name of the Father, and of the Son, and of the Holy Ghost." But no formula is had in the Roman Ritual. - But execution of this kind is not necessary per se. Hence it is to be omitted if it is better that neither spouse be made certain concerning the nullity of the Matrimony. Otherwise let it be done for the forum of conscience as regards that party which is conscious of the impediment and prepared to submit himself or herself to the execution of the dispensation; but publicly, or at least in such a way that it become publicly known, if the nullity of the Matrimony is public.¹

Corollary from the Things Said Concerning the Revalidation of Matrimony.

There are impediments which can cease by some fact. From the things said it is gathered, and in the following things it is more fully explained, in what way renewal of consent then ought to have place.

I. Concerning the case in which the impediment of fear ceases, the cause of fear having been removed, see n. 1599. I. Note, and n. 1630. q. 1°.

II. By change of domicile the impediment of clandestinity can cease, namely, when the parties celebrated clandestinely in a place where both were bound by the Decree Tametsi, and afterwards acquired domicile or quasi-domicile in a place where at least one party is not bound by it. In that case either sanation in the root is to be sought from the Holy See, if a sufficient cause is present (n. 1636. II. under 3°), or consent must be renewed, and this - by both or by one party only, according to the rules handed down in n. 1633 and 1634. q. 1° - publicly or occultly according as the circumstances (see n. 1634. q. 2°) demand either one; and, if there is question of a mixed Matrimony clandestinely contracted in a place where even heretics are bound by the Tridentine Decree, a dispensation concerning the impedient impediment of disparity of cult having been obtained. - Whether the nuptials of which there is question are convalidated by marital cohabitation alone, if the parties are ignorant of their nullity, is controverted. That the Apostolic See in practice applies the denying sentence is clear from the responses of the Sacred Office, 1842 and 1848, apud Perrone, De Matrim. Christ. Ed. Rom. T. II. p. 249-251.

If the parties have before contracted valid betrothals, and in the place where afterwards they obtained domicile or quasi-domicile they have had copula, there will be, for the external forum, presumed Matrimony. I say: "valid ... betrothals"; for invalid ones (for example, between a Catholic party and a heretical one) cannot induce a presumed Matrimony of this kind (n. 1525. § It is said: 5°; n. 1546. 3°. n. 1548 q. 1°. Note).

III. The diriment impediment of disparity of cult ceases through the reception of Baptism by the infidel party; in which case concerning the revalidation of Matrimony a determination must be made as above under II.

IV. By the death of the prior spouse the impediment of bond ceases between parties who, while that one was living, contracted. But nuptials in this case are not convalidated through sanation in the root, since this cannot be conceded while there is question of consent vitiated by an impediment of divine law, whether positive or natural (n. 1636 under 4°, compared with n. 1561 § The consent, p. 243 col. 2). Hence new consent is necessary, and that, according to the common doctrine (see Feije, n. 761) and according to the mind of St. Thomas,¹ must be furnished by each spouse, the party ignorant of the impediment having been certified,² publicly or secretly according as the circumstances (n. 1634. q. 2°) have demanded. - Note that in this case the impediment of crime can be present, namely when someone, while a legitimate consort was living, attempted and consummated Matrimony with another, each having previously known that bond.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 14 passages

Ch. VI, Article I: Concerning Matrimonial Dispensation in General

n. 177.

- I. Notion.

n. ¶6380.

Dispensation, as it regards the impediments of matrimony, can be defined: the relaxation of an ecclesiastical impediment invalidating or prohibiting matrimony, in a particular case, made by the legislator or by his delegate.

n. 178.

- II. Division.

n. ¶6382.

Dispensation from impediments of matrimony is distinguished in many ways:

n. ¶6383.

a) For the external forum, which is granted for a public impediment.

n. ¶6384.

For the internal forum, which is granted for an occult impediment.

n. ¶6385.

Again, dispensation for the internal forum is subdivided: for the sacramental forum and for the non-sacramental forum, according as it is given within or outside the administration of the sacrament of penance.

n. ¶6386.

A dispensation given in the external forum is valid also for the internal forum.

n. ¶6387.

Given in the internal forum, it is valid only in conscience.

n. ¶6388.

If afterwards the impediment becomes public, unless the dispensation was given only in the sacramental forum or unless a rescript of the Sacred Penitentiary provides otherwise, a new dispensation in the external forum is not necessary. (Can. 1047.)

n. ¶6389.

b) A dispensation for contracting matrimony, and the convalidation of a matrimony already contracted.

n. ¶6390.

c) A pontifical dispensation, which is given by the Roman Pontiff immediately or through the organ of the Sacred Congregations; and a non-pontifical dispensation, which is given by others.

n. ¶6391.

d) In gracious form, which is immediately granted to the petitioner himself and directed to him;

n. ¶6392.

In commissory form: which is committed to a third person to be executed.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 4 passages

Vol. III, Special Moral Theology: On…, Treatise: On Matrimony, Third Part: On the Impedim…, Question Four: On Dispensation from Impediments

918. Dispensation is the relaxation of a law in a special case; whence, in the matter of impediments of matrimony, it is the relaxation of a canonical impediment irritating or prohibiting matrimony in a particular case, made by the legislator or by his delegate.

One is granted in order to contract matrimony, another in order to convalidate a contract. One is given in the external forum, which is granted for a public impediment; another in the internal forum, which is granted for an occult impediment, and indeed in the sacramental or extra-sacramental forum according as it is given within or outside the administration of the sacrament of Penance.

One given in the external forum also has force in the internal forum; one given in the internal forum has force only in conscience; but if afterward the impediment becomes public, unless the dispensation was given only in the sacramental forum or unless the rescript of the S. Penitentiary states otherwise, a new dispensation in the external forum is not required (can. 1047).

Vol. II, Tr. XVIII, Ch. III, Article I. On the Nature of Marriage · Vol. II, Tr. XVIII, Ch. VI, Art. II, § I. On Diriment Impediments in General · Vol. II, Tr. XVIII, Chapter VII. On the Celebration of Marriage · Vol. II, Tr. XVIII, Chapter VIII. On Matrimonial Dispensations · Vol. II, Tr. XVIII, Chapter IX. On the Revalidation of Marriage · Vol. II, Tr. XVIII, Ch. IX, Article I. On the Revalidation of Marriage through Simple Dispensation · Vol. II, Tr. XVIII, Ch. IX, Article II. On the Revalidation of Marriage through Dispensation in the Root

It is granted in gracious form, if it is granted immediately to the petitioner himself and directed to him; or in commissory form, if it is committed to a third person to be executed.

Palmieri, On Christian Marriage

Dominic Palmieri, S.J. — 39 passages

Ch. IV, Thesis XXXV

n. ¶780.

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

n. XXXV, I.

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

n. ¶782.

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

n. ¶783.

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

n. XXXV, II.

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

n. ¶785.

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

n. XXXV, III.

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

n. ¶787.

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

n. XXXV, IV.

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

n. ¶789.

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

n. XXXV, V.

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

n. ¶791.

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

n. ¶792.

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

n. XXXV, VI.

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

n. ¶794.

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

n. ¶795.

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

n. ¶796.

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

n. ¶797.

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

n. ¶798.

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

n. ¶799.

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

n. XXXV, VII.

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

n. ¶801.

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

n. XXXV, VIII.

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

n. ¶803.

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

n. ¶804.

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

n. ¶805.

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

n. ¶806.

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

n. ¶807.

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

n. ¶808.

Corollary

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

n. ¶809.

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

n. ¶810.

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

n. ¶811.

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

n. ¶812.

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

n. ¶813.

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

n. ¶814.

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

n. ¶815.

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

n. ¶816.

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

n. ¶817.

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

n. ¶818.

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

Billuart, Summa Summae

Charles-René Billuart, O.P. — 23 passages (filed under the subtopics)

Billuart, Summa Summae, Tomus II. On the Prima Sec…, On Laws, On the Change of Laws, On dispensation

n. 37.

§ III. — Of obreptive and subreptive dispensation.

n. 38.

Obreptive is said of what is obtained by alleging a falsehood; subreptive, by concealing the truth.

n. 39.

I say 1°: If the obreption or subreption fall upon the principal cause of the dispensation, the dispensation is null. So decrees Innocent III, cap. Super litteris, Decretal. lib. I, tit. 3, de rescriptis; and this at the very least is signified by the usual clause of dispensations: « Si preces veritate nitantur », which, were it not appended, must always be understood, from cap. Ex parte, same title. The reason also is plain; because the superior intends to dispense only on account of this cause, which is principal, and without which he would not dispense. Therefore, this failing, the dispensation falls. For the same reason, the same must be said if the obreption or subreption fall upon that without which, although it be not the principal cause, the superior would not dispense in such manner and form, but with an added condition and burden: as if a rich man seek dispensation in forma pauperum, as I shall say below.

n. 40.

I say 2°: If the obreption or subreption fall upon an impulsive cause only and less principal, from the malice of the allegant, it is more probably null; if from the simplicity and ignorance of the allegant, it is valid. Thus expressly distinguishes and ordains Innocent III, cited cap. Super litteris, de rescriptis.

n. 41.

I say 3°: Subreption or concealment of truth pertaining to the thing per se and intrinsically, or error concerning the moral substance of the matter, renders the dispensation null: as if you have two affinities or consanguinities on the side of either parent, and express only one; if you ask to be dispensed over an affinity and it is consanguinity, or over a consanguinity and it is affinity, or over the fourth degree and it is the third; because, although perhaps the superior would have dispensed equally had you expressed the matter as it is, he is nevertheless held to concede precisely what is asked, and nothing else. More probable, however, I judge — against certain authors — is that if dispensation be sought for the third degree, and it is the fourth, it is valid; because dispensation of the whole is dispensation of the part contained in the whole, and the fourth degree is contained in the third.

n. 42.

I said, « Error concerning the moral substance of the matter »; because, if there were error concerning the physical substance, and nothing pertaining to the dispensation, it would not vitiate the dispensation: as if you call yourself an advocate when you are a physician, or there be error in the name, Peter being put for Paul; for the superior intends to dispense with the petitioner himself.

n. 43.

I say 4°: When dispensation is sought at the Roman court, subreption or concealment of what the law or the style of this court requires vitiates the dispensation; because, although it be not the principal cause, it is nevertheless the condition sine qua the Pontiffs do not intend to dispense. Whence

n. 44.

You will gather 1° that, if you seek at the Roman court dispensation over consanguinity, not expressing the incestuous intercourse, if it preceded, the dispensation is null, from the style of the court; likewise, if the marriage has been contracted or consummated; likewise, if you have contracted with knowledge of the impediment and with rash hope of obtaining the dispensation more easily, and these you do not express, there is no dispensation.

n. 45.

It is to be observed, as to the incestuous intercourse, if it be occult, that dispensation is sought in the sacred Penitentiary, the names suppressed, to avoid infamy or other damage. But when the impediments are manifest, or easily made manifest, dispensation is granted not by the Penitentiary but by the Dataria, and the names must be expressed; because, since a public impediment is concerned, the matter can be brought to a contentious forum, and the decree of the Dataria must be published. In the Penitentiary the commission of dispensing is directed to the confessor, who shall be a master or professor in theology; in the Dataria, to the official of the place. In the Penitentiary all things are granted gratuitously; in the Dataria is paid the mulct, to be expended on the propagation of the faith, or on other pious uses.

n. 46.

You will gather 2° that, when there are several impediments, for instance consanguinity and affinity, or several consanguinities or affinities, there is no dispensation if it be sought separately, now for one, afterwards for the other; but it must be sought for all together. Likewise there is none, if it be not expressed in which line the relationship lies, whether direct or transverse, and in what degree, equal or unequal. Similarly in spiritual cognation, if it be not expressed whether it be spiritual daughterhood or compaternity, whether one baptized, or only stood sponsor. The same say of confirmation. Likewise none, if dispensation be sought over the crime of uxoricide, without expressing that like dispensation was already obtained. Likewise, if one dispensed over defect of birth for Orders and benefice afterwards seeks dispensation over plurality of benefices, not again expressing defect of birth. Likewise, if dispensation be sought in forma pauperum, and the petitioner be not truly poor. And all these things and certain others come from the style of the Roman court.

n. 47.

Dispensation is sought in a threefold form: in forma pauperum, of honest men, and of nobles. That some be judged truly poor, they must be such that they live only from their labor and industry; and therefore it must be expressed in the petition, so that, if that alone be omitted, the petition is useless. Poverty on both sides must be expressed in the petition.

n. 48.

Daelman, doctor of Louvain, quaest. ultima, observat. ultima, de Matrimon., writes that those should be judged poor who have two or three thousand florins, whether in movables or immovables: both because, if they petitioned in forma honestorum, they would have to be stripped of the greater part of this sum for the dispensation, for which a thousand or two thousand florins are asked, according to the closeness of the degrees, and thus they would become poor; and because these few goods are for them as it were the instrument whereby they can work fruitfully by labor and industry, drawing thence no fruits, or fruits so small that they are reputed as nothing. The theologian cited adds that the Apostolic Nuncio judges thus when petitioners are sent to him by parish priests.

n. 49.

You will ask 1° whether, when the Romans append in the dispensation other causes than those which the petitioner set forth, those causes must be true, that the dispensation be valid.

n. 50.

I answer. Negatively, but it suffices that those proposed by the petitioner be true; for it is not on account of anything else that he asks to be dispensed, and in truth on account of those he is dispensed: but others are appended from the style of the court, and lest the dispensation appear given for lighter causes.

n. 51.

[You will ask 2° whether a dispensation can be validly obtained not only for one who knows not, but also for one who wills not.

n. 52.

I answer. Affirmatively, if necessity or at least sufficient motive be present. This right reason dictates, and it seems to be drawn from cap. Si motu proprio, de praebendis in 6°. But the dispensation must be accepted by him dispensed. Otherwise, however, must it be said of dispensations impetrated from the Roman Penitentiary, unless they be sought by persons joined or blood relatives within the fourth degree, for matrimony, or at least by the confessor, on account of motives which he judges grave. So S. Ligor., lib. I, n. 186.]

n. 53.

You will ask 2° whether, the dispenser dying, the dispensation ceases.

n. 54.

I answer. Negatively; because grace does not expire at the death of the grantor, cap. Si super, de officio delegati in 6°. Which is true also although the dispensation have been conceded subject to revocation; because the living dispenser revoked not, nor does the dead man revoke. Otherwise, if he had said: « Until I will », or: « Until it please me »; for the dead man no longer wills, nor does it any longer please him.

n. 55.

[You will ask 4° how dispensation ceases.

n. 56.

I answer. It ceases in three ways, namely: by cessation of the cause, by revocation, by renunciation.

n. 57.

1° If the final cause cease at the time when the letters of dispensation are expedited, the dispensation has no effect. For the superior is not held to dispense without cause; and from cap. Ex parte, Decretal. lib. I, tit. 3, de rescriptis, « in letters of this kind this condition is to be understood, even if it be not appended: Si preces veritate nitantur ». — If the final cause cease after the expedition of the letters, but before their publication and execution, since the commissary cannot dispense in the name of the superior except under the same condition and restriction, although the dispensation was at first valid, it is then affected with nullity. — If the final cause cease after execution of the letters, a distinction must be made. Either the matter consists in one act, and the dispensation removes only an impediment; and then, the impediment removed, it cannot revive through a change of circumstances, according to rule 73 juris in 6°: « A deed legitimately done ought not to be recalled, although a case afterwards arise whence it could not have been begun. » Or the matter has successive course and coalesces out of several acts, as the quadragesimal fast, the recitation of the canonical hours; and then, since the dispensation is virtually multiple, it undoubtedly ceases when its cause is taken away, if namely he who obtained it on account of weak health afterwards perfectly recover. — If the final cause be held likely to endure forever, the dispensation remains. Thus he who was dispensed from irregularity to receive sacred Orders, even if for a long time he may be unwilling to receive them, can afterwards, his mind changed, be legitimately promoted. — But if only the impulsive cause have ceased, the dispensation does not vanish, unless it were expressly conceded under this condition.

n. 58.

2° Dispensation altogether ceases through revocation expressly made by the superior, because obligation or release from obligation hangs upon him. Revocation without just cause would indeed be illicit, but nevertheless valid. S. Ligor., lib. I, n. 197, with others, holds that the sin of the superior is then venial only. An inferior prelate who dispensed by delegation does not validly revoke the dispensation without cause.

n. 59.

3° The one dispensed can renounce the grace obtained, with the assent of the superior, before he has secured its effect, and can use it no longer. Excepted: if the renunciation redound to the damage of another or of the community in whose favor the dispensation was bestowed, or if the prelate, for just cause, command the subject to make use of the dispensation.]

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 40 passages (filed under the subtopics)

Vol. II, Tr. XVIII, Ch. III, Article I. On the Nature of Marriage

n. 855, Q. 7.

Question 7. Is consent presumed to persevere?

Resp. Even if marriage has been entered invalidly by reason of an impediment, the consent given is presumed to persevere until its revocation has been established (Can. 1093).

Vol. II, Tr. XVIII, Ch. VI, Art. II, § I. On Diriment Impediments in General

n. 874, Q. 12.

Question 12. Who can abrogate impediments, derogate from them, and dispense in them?

Resp. The Roman Pontiff alone, in whom alone there is supreme power. And just as it belongs to the supreme power alone to found them, whether diriment or impeding, so it belongs to him alone to abrogate them, etc., unless this has been conceded by common law or by special indult. Thus Canon 1040 of the Code established.

Apart from the Roman Pontiff, no one can abrogate impediments of ecclesiastical law, whether impeding or diriment, or derogate from them; likewise neither can anyone dispense in the same, unless by common law or by special indult from the Apostolic See this power has been conceded (Can. 1040).

Vol. II, Tr. XVIII, Chapter VII. On the Celebration of Marriage

n. 913, Q. 9.

Question 9. Can any priest assisting according to the norm of this canon in danger of death dispense from impediments diriment by ecclesiastical law?

Resp. Affirmatively by force of Canon 1044, for consulting for conscience and the legitimation of offspring. - Cf. Can. 1043.

Vol. II, Tr. XVIII, Chapter VIII. On Matrimonial Dispensations

n. 919.

Point I. On the Power of Dispensing

I say 1°. The Pope can dispense from all impediments of ecclesiastical law, validly indeed in every case, because the whole force of the impediment proceeds from his will; but licitly, if he does this for a just cause, as right governance requires.

I say 2°. When danger of death is urgent, local Ordinaries, in order to provide for conscience and, if the case bears it, for the legitimation of offspring, can dispense both over the form to be observed in the celebration of marriage, and over all and singular 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, the marriage having been consummated; and they can dispense their proper subjects wherever dwelling and all persons actually staying in their proper territory, scandal being removed, and, if the dispensation is granted over disparity of cult or mixed religion, with the customary cautions having been furnished (Can. 1043).¹

This canon truly grants the most ample faculties of dispensing in the article of death, in order to provide for conscience and, if the case bears it, for the legitimation of offspring; an ample field indeed; in a word, whatever truly urges that marriage be entered, and that by it provision be made for conscience, and, if the case bears it, for the legitimation of offspring, even offspring not yet born, suffices. It is not required that the co-parties be in concubinage; one cause simply suffices, from the two aforesaid causes, for the faculty here conceded to be rendered into use. To local Ordinaries, as they are understood in law, the faculty of dispensing is conceded: 1. over the form to be observed in the celebration of marriage; therefore they can grant a dispensation so that the betrothed simply furnish consent between themselves; 2. over all and singular impediments of ecclesiastical law, impeding and diriment, public or occult, single and multiple.

Two impediments are not contained in this most ample faculty: one from the sacred order of the presbyterate, the other from affinity in the direct line, arisen from consummated marriage. The faculty extends to subjects, wherever they dwell, and to all, even non-subjects, actually dwelling in one's proper territory. Nevertheless scandal must be removed; and in cases in which dispensation is made in disparity of cult and mixed religion, the cautions must be furnished. It makes no difference whether the impediment directly affects the sick person or the well person. With relation to affinity, that which the New Code decreed concerning its source must be kept before the eyes. The impediment from affinity in the direct line, from consummated marriage, is excluded, not another impediment of affinity of the direct line.

I say 3°. In the same circumstances of things of which in can. 1043, and only for cases in which not even the local Ordinary can be approached, the same faculty of dispensing belongs both to the pastor, and to the priest who assists at marriage according to the norm of can. 1098, n. 2, and to the confessor, but this last only for the internal forum in the act of sacramental confession (Can. 1044).²

In danger of death, on account of the same causes, but when the Ordinary cannot be approached, the same faculty is given to the pastor; to the priest who assists at marriage according to the norm of Can. 1098, § 2; and also to the confessor, but to this one only for the internal forum, in which case, when the sick person recovers, a dispensation for the external forum must necessarily be sought. - Cf. Can. 1047.

Titius, dying, with a Catholic family, opens to the priest that he is not joined in marriage with Bertha. In youth they went to the nearer city, and, having returned, told their own that they had already contracted marriage; they never dared to speak about this matter. The case is contained in the canon.

Titius, dying, now lives in concubinage with Martina, the daughter of the widow Martha. Martha, having Martina from a prior marriage, had married Titius, with whom she never consummated marriage. Then, Martha having died, Titius began to exercise concubinage with Martina. Affinity is had in the direct line from a valid marriage. This case also is comprehended in this concession.

I say 4°. § 1. Local Ordinaries, under the clauses established at the end of Can. 1043, can grant a dispensation over all impediments of which in the cited can. 1043, as often as an impediment is discovered when now all things have been prepared for the nuptials, and marriage cannot be deferred, without probable danger of grave evil, until a dispensation is obtained from the Holy See.

§ 2. This faculty also avails for the convalidation of a marriage already contracted, if there is the same danger in delay and time is not available for recurring to the Holy See.

§ 3. In the same circumstances of things, all those of whom in Can. 1044 enjoy the same faculty, but only for occult cases in which not even the local Ordinary can be approached, or not except with danger of violation of secrecy (Can. 1045).

Outside the article of death, when now all things have been prepared, and an impediment is discovered, and marriage cannot be deferred without probable danger of grave evil until a dispensation is obtained from the Holy See, or in a perplexed case, as was said, then local Ordinaries can dispense, precisely as in the article of death, over all impediments of which in Can. 1043. This faculty avails also for the external forum. It must be noted that here it is not a question of the form to be observed in the celebration of marriage. But scandal must be turned away and the cautions, if necessary, furnished.

Indeed the same faculty avails also for the convalidation of marriage in the same danger of delay and difficulty of approaching the Holy See. This surely is a faculty very much desired.

But when a perplexed case arises, and the local Ordinary cannot be approached, or not except with danger of violation of secrecy, the pastor, the priest who assists at marriage according to the norm of can. 1098 n. 2, and the confessor enjoy the same faculty for occult cases only, but not for public cases.

I say 5°. The pastor or priest of whom in can. 1044 should at once make the local Ordinary more certain concerning a dispensation conceded for the external forum; and it is to be noted in the book of marriages (Can. 1046).

I say 6°. Unless the rescript of the S. Penitentiary bears otherwise, a dispensation conceded in the non-sacramental internal forum over an occult impediment is to be noted in the book carefully preserved in the secret archive of the Curia of which in can. 379; nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public; but it is necessary if the dispensation had been conceded only in the sacramental internal forum (Can. 1047).

In canons 1046 and 1047 provision is made for marriages themselves, so that the parties are made secure and other unions to be contracted invalidly are rendered difficult and, insofar as can be done, morally impossible.³

I say 7°. § 1. In marriages whether contracted or to be contracted, one who enjoys a general indult of dispensing over a certain impediment can, unless something else is expressly prescribed in the indult itself, dispense over it even if the same impediment is multiple.

§ 2. One who has a general indult of dispensing over several impediments of diverse species, whether diriment or impeding, can dispense over the same impediments, even public ones, occurring in one and the same case (Can. 1049).

In paragraph 1, both for marriages to be contracted and for those contracted, there is declared the extension of the general faculty of dispensation over a certain impediment, so that it comprehends cases in which the same impediment is multiplied, unless the indult expressly establishes otherwise.

In paragraph 2 there is had a general concession, desired and most welcome; namely, the faculty of cumulating matrimonial dispensations in one and the same case is now declared to be contained in the general indult of dispensing over several impediments of diverse species, whether diriment or impeding, even public. Thus an Ordinary who has a general indult of dispensing in the impediment of consanguinity and of disparity of cult and of mixed religion can now cumulate dispensations in a case, for instance, in which consanguinity and mixed religion occur, and so concerning others.

I say 8°. If at any time with a public impediment or impediments over which someone can dispense by indult, there concurs another impediment over which he cannot dispense, the Apostolic See must be approached for all; if, however, the impediment or impediments over which he can dispense are discovered after a dispensation has been obtained from the Holy See, he will be able to use his faculties (Can. 1050).

The reason for the necessity of approaching the Holy See for all is the known principle: the whole gravity of the matter must become known to the one dispensing, and a greater number of impediments renders dispensation more difficult; and hence both must be set forth to the Holy See so that dispensation may be made by it in both, notwithstanding the indult of dispensing which an inferior may enjoy for one impediment. But now, otherwise than before, provided that the new impediment contained in his indult be found after a dispensation has been obtained from the Holy See over another impediment, the Ordinary can use his faculty. In his indult the Ordinary has a faculty for impediment A, but not for impediment B. A case occurs in which impediments A and B coexist together. The Ordinary, having read the supplicatory libellus, recognizes that he can furnish nothing. He must send to Rome a petition of dispensation for both. Let there be another example of the same impediments, and of the same faculty of dispensing over one, but not over the other. The Ordinary seeks a pontifical dispensation for one, not thinking that a pontifical dispensation for both is necessary. The dispensation over impediment B having been obtained, he himself concedes one for impediment A. Invalid, as it seems to us, is the dispensation which he gives. A third case. It is set forth to the Ordinary himself that impediment B stands in the way of some marriage. A pontifical dispensation has been obtained, and then, after the dispensation has been obtained, it is discovered that impediment A also is present; in these circumstances, now, otherwise than before, he can use his faculty. S. C. de Prop. Fide, 10 May 1887.

I say 9°. A dispensation from an impediment of consanguinity or affinity, conceded in some degree of the impediment, avails, although in the petition or in the concession an error concerning the degree has crept in, provided the degree really existing is inferior, or although another impediment of the same species in an equal or inferior degree was passed over in silence (Can. 1052).

Reg. 35, R. J. in VI°. That which is greater always contains in itself what is less. Reg. 53 R. J. in VI°. He to whom that which is greater is licit, to him surely that which is less is licit. It is a special concession, with account taken of the difficulty arising from a double impediment of consanguinity or affinity; an error is made in the petition relative to the degree; or some impediment is passed over in silence. The dispensation avails if the existing degree is inferior, or if the impediment passed over in silence was of the same species in an equal or inferior degree.⁴

I say 10°. A dispensation given by the Holy See over a ratified and non-consummated marriage, or permission made for passage to other nuptials on account of the presumed death of a spouse, always carries with it a dispensation from the impediment proceeding from adultery with a promise or attempted marriage, if any such is needed, but by no means a dispensation from the impediment of which in can. 1075, nn. 2, 3 (Can. 1053).

For it not rarely happens that those who have obtained from the Holy See a dispensation over a ratified and non-consummated marriage, or a document of liberty on account of the presumed death of a spouse, wish to enter a new marriage with a co-party with whom, during the prior bond, they were guilty of the deed of adultery with a promise of marriage, or contracted civil wedlock; and therefore, for example, an impediment stands in the way. Once the aforesaid dispensation or document of liberty has now been conceded, a dispensation from the first species of crime is considered conceded. - Cf. S. C. de Sacr. 3 June 1912.

I say 11°. A dispensation conceded from a lesser impediment is invalidated by no defect either of obreption or subreption, even if the one final cause set forth in the prayers was false (Can. 1054).

Therefore a dispensation simply avails for lesser impediments; nor does the concealment of truth, or subreption, stand in the way, nor the exposition of falsehood, or obreption, in consanguinity in the 3rd degree of the collateral line, in affinity in the 2nd degree of the collateral line, in public honesty in the 2nd degree, in spiritual kinship, and in crime from adultery with a promise of marriage or attempted marriage, even by a civil act only.

I say 12°. Dispensations over public impediments committed to the Ordinary of the petitioners are to be executed by the Ordinary who gave the testimonial letters or transmitted the prayers to the Apostolic See, even if the betrothed, at the time when execution must be given to the dispensation, having abandoned the domicile or quasi-domicile of that diocese, have departed into another diocese no longer to return, with the Ordinary of the place in which they desire to contract marriage nevertheless having been warned (Can. 1055).

Therefore he who transmitted the prayers to the Apostolic See, the same Ordinary must fulminate the dispensation committed to himself; and this even if the betrothed at the time of fulmination have departed from the diocese, not going to return there, with the Ordinary of the place in which they desire to contract marriage nevertheless having been warned.

I say 13°. Except for some moderate prestation under the title of chancery expenses in dispensations for non-poor persons, local Ordinaries or their officials, any contrary custom being reprobated, cannot, on the occasion of a conceded dispensation, demand any emolument, unless this faculty has been expressly given to them by the Holy See; and if they have demanded it, they are bound to restitution (Can. 1056).

Wherefore in no way can fines or taxes be demanded by Ordinaries on the occasion of dispensations, except for a moderate sum for sustaining the chancery, unless the Holy See has expressly conceded the faculty; besides, if they have demanded them, they are bound to restitution.

I say 14°. Those who concede a dispensation by power delegated by the Apostolic See are to make, in the same dispensation, express mention of the pontifical indult (Can. 1057).

Nevertheless, the validity of the concession seems in no way to depend upon this mention.

I say 15°. When from a certain and authentic document, which is subject to no contradiction or exception, it has been established concerning the existence of the impediment of disparity of cult, order, solemn vow of chastity, bond, consanguinity, affinity, or spiritual kinship, and at the same time with equal certitude it has appeared that a dispensation over these impediments has not been given, in these cases, with the solemnities heretofore reviewed having been omitted, the Ordinary, the parties having been cited, will be able to declare the nullity of the marriage, with nevertheless the intervention of the defender of the bond (Can. 1990).

Against this declaration the defender of the bond, if he has prudently judged that the impediments of which in can. 1990 are not certain or that a dispensation over the same has probably intervened, is bound to provoke to the judge of the second instance, to whom the acts must be transmitted and who must be warned in writing that it is a question of an excepted case (Can. 1991).

The judge of the other instance, with the sole intervention of the defender of the bond, will decree in the same manner of which in can. 1990 whether the sentence is to be confirmed, or rather whether one must proceed in the cause according to the ordinary course of law; in which case he remits it to the tribunal of first instance (Can. 1992).

¹ Cf. Addenda, p. 1137, n. 96.

² Cf. Addenda, pp. 1151, 1111, 1120, nn. 127, 53, 73.

³ Cf. Addenda, p. 1091, n. 19; p. 1120, n. 74; p. 1121, n. 76.

⁴ Cf. Addenda, p. 1119, n. 71.

n. 920.

Questions

Question 1. What are the impediments in which the Pope himself can properly give no dispensation?

Resp. There are at least three, namely: consanguinity in the first degree of the direct line, bond, and impotence, because these are certainly of natural and divine law. Nevertheless, on account of most urgent causes, he can declare in some particular case that the Marriage is valid, notwithstanding some impediment concerning which it is doubted whether it is of natural or divine law, just as Clement XI and Urban VIII in fact declared. - Cf. S. Alphonsus, nn. 902 and 1119.

n. 920, Q. 2.

Question 2. What must be said concerning the Matrimonial Faculties which are conceded to Ordinaries by force of general concessions?

Resp. The Sacred Consistorial Congregation issued a decree concerning certain faculties of Ordinaries.

... Our Most Holy Lord Benedict XV, Pope, after consultation with a special meeting of the Most Eminent Cardinal Fathers, by this decree of the S. Consistorial Congregation established and sanctioned those things which follow:

(1) with the exception of places subject to the S. Congregation de Propaganda Fide, for which in their own time those things which will be opportune will be decreed, elsewhere, namely in all dioceses subject to common law, all faculties for the external forum conceded to Ordinaries, and which are contained in the Formularies and Brief reviewed above, will cease from the day 18 May of this year, and will no longer be able to be in use;

(2) nevertheless in more remote places and others to which, whether on account of the present war or for any other reason, notice of the present decree shall not have arrived in useful time, the Most Holy Lord holds ratified dispensations and ordinations perhaps conceded by Ordinaries by force of the old faculties; with this nevertheless remaining firm, that from the day of received notice, if the matter is still whole, they conform themselves to this decree;

(3) faculties for the internal forum given by the S. Penitentiary, and others conceded by reason of the present war, or obtained by Ordinaries for peculiar causes, are not comprehended under the disposition of this decree, and therefore are not abolished;

(4) concerning matrimonial dispensations, although by force of canons 1043-1045 Ordinaries can bestow opportune dispensations "when danger of death is urgent" and "as often as an impediment is discovered when now all things have been prepared for the nuptials, and marriage cannot be deferred without probable danger of grave evil," nevertheless the Most Holy Lord, with attention to the adjuncts of times and places, decreed that these things should further be indulged:

(a) that local Ordinaries in America, in the Philippine Islands, in the East Indies, in Africa outside the shores of the Mediterranean Sea, and in Russia, for five years from the day 18 May of this year, may be able to dispense from impediments of lesser degree which are reviewed in can. 1042, with the rules established in that chapter of the Code being observed; and likewise that they may be able to sanate in the root marriages invalidly contracted on account of some impediment of the same lesser degree, according to the rules laid down in chapter XI, title VII, book III of the Code "concerning the convalidation of marriage," the party conscious of the impediment having been warned concerning the effect of the sanation;

(b) that the same local Ordinaries may likewise be able, for five years, to dispense from impediments of greater degree, whether public or occult, even multiple, yet of ecclesiastical law, with the exception of impediments proceeding from the sacred order of the presbyterate and from affinity in the direct line from consummated marriage, as well as from the impeding impediment of mixed religion, if the petition for dispensation has been sent to the S. See and an urgent necessity of dispensing has supervened while recourse is pending. Nevertheless, in conceding dispensations in these cases, the Ordinary should always have before his eyes the rules established in the Code, book III, title VII, chapters 2, 3, and 4, concerning impediments in general and in species, and likewise the clauses customarily appended in marriages with Hebrews and Mohammedans; nor should he concede the dispensation unless he has taken care concerning the full observance of all these things according to the prescriptions of the sacred canons, and provides for the rights of the S. Congregation for the discipline of the Sacraments concerning payment of taxes;

(c) that the Ordinaries of France, of the three kingdoms of Great Britain, of Germany, Austria, and Poland, during the war, as often as access to the S. See is foreseen to be difficult or impossible for at least a month, may be able to use the same faculties which are reviewed above under letters (a) and (b).

The present things to avail by mandate of the Most Holy, anything contrary notwithstanding.

Given at Rome, from the Secretariat of the S. Consistorial Congregation, on the day 25 April 1918.

C. Card. De Lai, Bishop of Sabina, Secretary.
V. Sardi, Archbishop of Caesarea, Assessor.

In the Decree of the S. Consistorial Congregation of the day 2 August 1918, On the Extension of the Faculties of Certain Ordinaries During the War, among other things these are had:

But on the part of many Ordinaries of America it was observed that, from the lack of security of the sea on account of the present war, they were placed in a condition even worse than the Ordinaries of Europe reviewed under letter (c); and therefore they offered humble prayers that they might be fortified with an equal indult as those: for it is certain in the present state of affairs that more than a month is required for approaching the S. See from America. Moreover, the Most Holy Lord judged that these requests, which seemed just to him, should be granted; and therefore by the present decree of the S. Consistorial Congregation he benignly indulges, for the time of the present war, that the Ordinaries of the more remote places, of which under letter (a), may be able to dispense from greater impediments and from the impeding impediment of mixed religion, and to sanate in the root marriages invalidly contracted on account of a diriment impediment of which above, without being obliged to observe that condition and restriction placed under letter (b), that is, if the petition for dispensation has been sent to the S. See and an urgent necessity of dispensing has supervened while recourse is pending. Nevertheless individual Ordinaries must, at the end of any year, as long as this hard condition of things shall persevere, render an account to the S. Congregation of Sacraments concerning the species and number of dispensations which they themselves have conceded, and on that occasion satisfy the rights of the S. Congregation concerning payment of taxes. The present things to avail, while the adjuncts which now exist endure, and anything at all contrary notwithstanding. Given at Rome from the S. Consistorial Congregation, on the day 2 August 1918.¹

¹ Cf. Addenda, p. 1091, n. 20.

n. 920, Q. 3.

Question 3. When a dispensation has been conceded, is legitimation of offspring conceded?

Resp. Through a dispensation conceded over a diriment impediment, whether from ordinary power or from power delegated by general indult, but not through a rescript in particular cases, there is also conceded by that very fact legitimation of offspring, if any shall have already been born or conceived from those with whom dispensation is made, excepting nevertheless adulterine and sacrilegious offspring (Can. 1051).

In this canon the disposition of law concerning legitimation of offspring is declared. For either a dispensation over a diriment impediment is conceded from ordinary power, and then through the dispensation there is also conceded legitimation of offspring already born or conceived, excepting adulterine or sacrilegious offspring; or the dispensation is conceded from power delegated by general indult, and then through the dispensation legitimation is also conceded as above; or it is conceded from power by rescript in particular cases, and then through the dispensation legitimation is not conceded by that very fact.

n. 921.

Point II. On the Causes of Dispensation

I say 1°. For the liceity of a dispensation, a cause is always required, both on the part of the one conceding, whoever he may be, and on the part of the one asking. The reason is taken from this, that otherwise the power would not be applied for governing rightly. Besides, it is established from the Council of Trent, sess. 24, cap. 5, de Reform. Matrim., where it is said: "In marriages to be contracted either let no dispensation at all be given, or rarely, and let it be conceded for a cause and gratis."

I say 2°. For the validity of dispensations of greater degree, it is required that there be no subreption or obreption falling upon the motive or final cause, or also none simply essential, namely suppression of truth or expression of falsehood concerning those things which by law, custom, or style of the Roman Curia must necessarily be opened. The reason is that the superior is not judged to dispense except under the tacit condition: if the prayers rest upon truth.

A dispensation conceded from a lesser impediment is invalidated by no defect either of obreption or subreption, even if the one final cause set forth in the prayers was false.

n. 922.

Questions

Question 1. What are the just causes, namely canonical causes, that dispensation be made in diriment impediments?

Resp. To remove every doubt concerning this matter, the S. Congr. de Prop. Fide on the day 9 May 1877 issued an Instruction, where it enumerates these causes thus:

"1. Narrowness of place, whether absolute or relative, by reason only of the female petitioner, namely when in the place of origin or even domicile the woman's kinship has been so propagated that she cannot find another of equal condition whom she may marry, except a consanguineous or affine person, and for her to leave the fatherland would be hard.

Over-adult age of the woman, namely if she has already passed the 24th year of age and hitherto has not found a man of equal condition whom she can marry. But this cause does not support a widow who desires to pass to other nuptials. Now it is enough that it be established concerning over-adult age, nor is it necessary to prove that up to that age she did not find a man of equal condition whom she could marry. S. Pen. 11 Mar. 1902.
Deficiency or incompetence of dowry, namely if the woman does not actually have so great a dowry that she can marry an outsider of equal condition, who is neither consanguineous nor affine, in the proper place in which she dwells. This cause urges more if the woman exists wholly undowered, and a consanguineous or affine man is prepared to take her as wife, or even conveniently to endow her wholly from his own resources.
Lawsuits over succession of goods already arisen, or grave or imminent danger of the same. If the woman sustains a grave lawsuit over succession of goods of great moment, and there is no other who would take up a lawsuit of this kind upon himself and pursue it at his own expense, except the one who desires to take her as wife, a dispensation is usually conceded; for it is of interest to the commonwealth that lawsuits be extinguished. To this another cause comes very near, namely Dowry involved in lawsuits, when, that is, the woman is destitute of another man by whose help she may be able to recover her goods. But a cause of this kind suffices only for the more remote degrees.
Poverty of a widow who is burdened with numerous offspring, and the 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 placed in danger of incontinence.
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 consanguineous or affine relatives of the contracting parties, and which would be wholly composed by the celebration of Marriage; or when grave enmities have flourished between the consanguineous and affine relatives of the contracting parties and, although peace between them has already been entered, nevertheless the celebration of Marriage would contribute greatly to the confirmation of that peace.
Excessive, suspect, dangerous familiarity, and also cohabitation under the same roof, which cannot easily be impeded.
Intercourse previously had with a consanguineous or affine woman or another person laboring under an impediment, and pregnancy, and therefore legitimation of offspring, namely that provision be made for the good of the offspring itself and 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 plebeians, provided the intercourse was not perpetrated under hope of an easier dispensation; which circumstance would have to be expressed in the supplication. Those things which are said here concerning the necessity of manifesting this circumstance were recently abrogated by the Supreme Pontiff Leo XIII, as is clear from the Response of the S. Office given on the day 25 June 1885. - Cf. Third Plenary Council of Baltimore, p. 253.
Infamy of the woman, arisen from suspicion because she, too familiar with her consanguineous or affine relative, is thought to have been known by the same, although the suspicion is false, namely when, unless 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.
Revalidation of Marriage.
Danger of mixed Marriage, or of being celebrated before a non-Catholic minister. When there is danger that those wishing to contract Marriage in some even of the greater degrees, from denial of dispensation, may approach a non-Catholic minister for celebrating nuptials, the authority of the Church being spurned, there is found a just cause of dispensing; because there is present not only very grave scandal of the faithful, but also fear of perversion and defection from the faith of those acting thus and despising the impediments of Marriage, especially in regions where heresies rage with impunity. This S. Congregation taught in the Instruction given on the day 17 April 1820 to the Archbishop of Quebec. Likewise, when the Apostolic Vicar of Bosnia had asked whether he could bestow a dispensation on those Catholics who allege no other motive than insane love, and at the same time it is foreseen that, the dispensation being denied, they are about to enter wedlock before an infidel judge, the S. Congregation of the S. Office, in Feria IV, 14 Aug. 1822, decreed: 'it must be answered to the petitioner, that in the case set forth he should use the faculties committed to him in Form II, according as he shall judge expedient in the Lord.' The same must be said concerning the danger that the Catholic party with a non-Catholic may dare to celebrate Marriage.
Danger of incestuous concubinage. From the Instruction of the year 1822 recalled above, it shines forth that the remedy of dispensation must be applied lest someone become filthy in concubinage with public scandal and evident danger of eternal salvation.
Danger of civil Marriage. From the things said it follows that the probable danger that those who seek a dispensation, if it is not obtained, are going to celebrate Marriage merely civilly, as they say, is a legitimate cause of dispensing.
Removal of grave scandals.
Cessation of public concubinage.
Excellence of merits, when someone, either by struggle against the enemies of the Catholic faith or by liberality toward the Church or by doctrine, virtue, or in another way, has deserved very well of Religion."

n. 922, Q. 2.

Question 2. What things must necessarily be expressed in the petition for dispensation?

Resp.

The name and surname of the petitioners; the diocese of origin or of actual domicile or quasi-domicile. Canon 47 is to be recalled: Rescripts are not rendered invalid on account of an error in the name of the person to whom or by whom they are conceded, or of the place in which the person dwells, provided that in the judgment of the Ordinary there is no doubt concerning the person or the matter itself.
The species, even the lowest, of the impediment: whether it is consanguinity, or affinity, or public honesty; whether the direct or collateral line; in the impediment of crime, whence it proceeds; filiation in spiritual kinship.
The degree of consanguinity or affinity. A dispensation avails in these impediments, although in the petition or in the concession an error concerning the degree has crept in, provided the degree really existing is inferior, or although another impediment of the same species in an equal or inferior degree was passed over in silence. - Cf. Can. 1052. Impediments of lesser degree are: 1°. Consanguinity in the third degree of the collateral line; 2°. Affinity in the second degree of the collateral line. Cf. Can. 1042. A dispensation conceded from a lesser impediment is invalidated by no defect either of obreption or subreption, even if the one final cause set forth in the prayers was false (Can. 1054).
The degree of public honesty. - Cf. above, N. 874, Q. 14.
The number of impediments, for example, if there is double or multiple consanguinity or affinity, or if besides kinship there is also affinity, or any other impediment whatever, whether diriment or impeding.
Various circumstances, namely whether the Marriage is to be contracted or has been contracted; if already contracted, it must be opened whether in good faith, at least on the part of one, or with knowledge of the impediment; likewise whether with denunciations premised, and according to legitimate form; or whether under hope of more easily obtaining the dispensation.

Here also it will be worth the labor to recall canon 37, placed above, n. 123, which perhaps in certain more difficult cases could be of use. A rescript can be obtained for another even besides his assent; and although he himself can choose not to use the grace conceded by rescript, nevertheless the rescript avails before his acceptance, unless something else appears from the clauses appended.

Concerning certain abuses and irregularities in the concession of matrimonial dispensations, let the letters given by the Sacred Congregation de Propaganda Fide on the day 2 Aug. 1901 be consulted. Amer. Eccl. Rev., vol. 26, p. 200.

n. 922, Q. 3.

Question 3. Does the dispensation cease, the final cause of the dispensation totally ceasing, for example, if the offspring to be legitimated through Marriage has died?

Resp. Negatively, if the cause ceases when the dispensation has already been expedited and communicated by the delegate to the supplicants, even if it ceases before the celebration of Marriage, namely before the begun use of the dispensation. The reason is that as soon as the dispensation was communicated either to the betrothed themselves or to another person, for example, to the Pastor acting in their name, the impediment was already removed. But otherwise one must say if the cause ceases at any other moment before the removal of the impediment, unless the dispensation is pontifical from an impediment of lesser degree.

n. 923.

Point III. On the Mode of Petitioning a Dispensation

The Holy See has committed the business of granting matrimonial dispensations to certain Roman Congregations, as is clear from the Constitution previously commemorated, Sapienti Consilio: I. 1. 5. "The faculty of the Holy Office remains entire for taking cognizance of those things which are involved concerning the Pauline privilege, and the impediments of disparity of cult and mixed religion," besides those things which touch dogmatic doctrine concerning marriage, just as also concerning the other Sacraments. I. 3°. 2. 3. To the Congregation for the discipline of the Sacraments are attributed all those things which up to this point were accustomed to be decreed and conceded by other Congregations, Tribunals, or Offices of the Roman Curia, "as dispensations in the external forum both for the poor and for the rich, sanations in the root, dispensation over ratified marriage, separation of spouses, restitution of birth or legitimation of offspring"; it resolves questions concerning the validity of marriage, with the right of the Holy Office preserved. II. 1. The Tribunal of the Sacred Penitentiary bestows dispensations, absolutions, sanations for the internal forum. I. 6°. 6. The S. Cong. de Prop. F. had united to itself the congregation for the affairs of oriental rites, for which power remains entire, as before; an example of this is the Decree of 17 Aug. 1914 concerning the Greek-Ruthenians in the federated states. I. 5°. 1. The S. C. for Religious dispenses in the vow of chastity as regards religious members. Cf. Can. 246-258.

n. 924.

Questions

Question 1. In what way must a dispensation be sought if two impediments are present, of which one is public, the other occult?

Resp. The dispensation of the public impediment must be sought from the S. C. Sacr., the other being kept silent, which must remain secret, and both must be expressed in the supplication to the Penitentiary, at the same time setting forth the other dispensation obtained from the S. C. Sacr. - Cf. S. Alphonsus, n. 1139.

n. 924, Q. 2.

Question 2. In what way must the dispensation be executed?

Resp. No formula is prescribed under pain of invalidity or under precept, for none is had in the Roman Ritual. Nevertheless it can be done in the following manner: (a) As regards a dispensation of the S. Penitentiary, after absolution these or similar words are to be said: By apostolic authority I dispense thee over the impediment N., which thou hast incurred, so that thou mayest be able to enter Marriage, or to perfect it once entered, and I render legitimate the offspring received, or to be received. In the name of the Father, etc. But if the dispensation is from a vow of chastity, let it be said: Moreover, the vow of chastity which thou hast emitted, by dispensing I commute into the works which I have prescribed to thee, so that thou mayest be able to contract Marriage and to use it. In the name, etc. (b) As regards a dispensation of the S. C. Sacr., it is conceded either in gracious form or in commissorial form. If the dispensation is of lesser degree, there is no difficulty from the cause. But when the truth of the motive cause is required for validity, that cause must exist then, when the dispensation is actually conceded.

§ 1. If in a rescript the mere ministry of execution is committed, the execution of the rescript cannot be denied, unless either it is manifestly clear that the rescript is null by defect of subreption or obreption, or in the rescript there are appended conditions which the executor knows have not been fulfilled, or the one who obtained the rescript seems so unworthy, in the judgment of the executor, that the concession of grace will be for the offense of others; if this last thing happens, the executor, execution having been interrupted, should at once make the rescriber more certain concerning this matter.

§ 2. But if in the rescript the concession of the grace is committed to the executor, it belongs to him, according to his prudent judgment and conscience, to concede or deny the grace (Can. 54).

The executor of a rescript functions invalidly in his office before he has received the letters and recognized their authenticity and integrity, unless prior notice of the same has been transmitted to him by authority of the rescriber (Can. 53).

You Will Resolve. What if a confessor in confession detects that the marriage of the penitent is null on account of an occult impediment and unknown to the penitent himself? Let him prudently be silent; indeed to admonish the one confessing can bring forth very grave inconveniences; meanwhile let him skillfully and energetically inquire, in the sacred tribunal itself, into the mind of the penitent with relation to his family life. But if he finds him not disposed to those things which would have to be done in order that the marriage be validated, let him continue to be silent, and dispose him by frequent use of the Sacraments, although a rather long time may be required; at length, when the penitent is found wholly prepared to renew consent, let him narrate the matter to him in kindly words, extolling the grace of the Sacrament, and obtain the dispensation.

But if the penitent is conscious of some occult impediment, let him altogether admonish him of his obligation of avoiding the rendering of the debt until the dispensation is obtained. Once it has been obtained and notified, that spouse should duly furnish consent, if it is a simple dispensation; but if it is a sanation in the root, he should do those things which are enjoined. But what if the person cannot withdraw from the co-party, the husband, nor avoid the debt, except with danger of most grave harm? Surely the case is difficult. If it is a question of entering or convalidating marriage, let the following canon 1045 be seen:¹

§ 1. Local Ordinaries, under the clauses established at the end of can. 1043, can grant a dispensation over all impediments of which in the cited can. 1043, as often as an impediment is discovered when now all things have been prepared for the nuptials, and marriage cannot be deferred, without probable danger of grave evil, until a dispensation is obtained from the Holy See.

§ 2. This faculty also avails for the convalidation of a marriage already contracted, if there is the same danger in delay and time is not available for recurring to the Holy See.

§ 3. In the same circumstances of things, all those of whom in can. 1044 enjoy the same faculty, but only for occult cases in which not even the local Ordinary can be approached, or not except with danger of violation of secrecy. Let canons 1043 and 1044 be accurately read.

¹ Cf. Addenda, p. 1150, n. 125.

Formulae — For Petitioning Matrimonial Dispensations — I. - To the S. C. Sacr. — For Petitioning a Dispensation from a Public Impediment over Which the Bishop Cannot Dispense

Most Blessed Father,

John N. and Anna N., of the parish commonly called N., Diocese N., desire to enter Marriage with one another, but because there stands in the way the impediment (here is placed the impediment, whatever it may be), therefore they humbly beg from Your Beatitude the dispensation necessary for them. The reasons are: 1°. the age of the girl, who, now having been born twenty-five years, would probably not find another man whom she could suitably marry; 2°. the Christian virtues existing in each petitioner (let other causes be placed if they are present).

Most humbly kissing the feet of Your Holiness, with the highest reverence and devotion by which it is fitting, I remain,

Of Your Holiness Most submissive, N. N.

Given at N., on day N., in year N.

Note 1°. If the petitioners are poor, after the reasons have been set forth, let it be added: The petitioners exist poor and miserable, and live only from their own labor and industry.

Note 2°. The supplication composed by the Pastor of the petitioners must be sent to the Bishop. But the Bishop, or in his place the Vicar General, sends it, furnished with testimony, seal, and episcopal signature, to Rome to his mandatary who solicits the dispensation, and transmits it to the Bishop.

II. - To the S. Penitentiary — For Petitioning a Dispensation in a Marriage to Be Contracted

Most Eminent Prince,

It is most humbly set forth to Your Eminence, on the part of the petitioners Titius and Caia, that they intend to contract Marriage, but that Titius, being married, carnally knew Caia by perfect intercourse while his own wife Sempronia was still living, and they mutually gave faith to each other concerning Marriage to be contracted between them, if Sempronia, the wife of Titius, should die first; and she also died first through poison administered by Titius. But since from the premises the impediment of crime has arisen, and therefore they cannot contract Marriage either licitly or validly, the petitioners supplicate for the grace of dispensation over that impediment of crime, so that they may be able publicly to contract Marriage between themselves and afterward remain in it licitly and freely, and the offspring may be decreed legitimate. The impediment is wholly occult, and there is urgent danger of perseverance in sin, indeed even of grave scandal, if they cannot be coupled in legitimate Marriage. Wherefore, for the quiet of their conscience, grieving exceedingly over the premises, they humbly supplicate Your Eminence, that concerning these matters you may deign to provide, by Apostolic authority, an opportune remedy.

Reverently kissing the hands of Your Eminence, with the highest devotion by which it is fitting, I remain,

Of Your Eminence, Most obedient and most devoted, N. N. Pastor N. N.

Given at Baltimore, N. N. N.

III. - To the S. Penitentiary — For Petitioning a Dispensation in a Marriage Already Contracted

Most Eminent Prince,

Titius, being married, carnally knew Caia by perfect intercourse while his own wife Sempronia was still living, and they mutually gave faith to each other concerning Marriage to be contracted between them, if Sempronia, the wife of Titius, should die first; and, after Sempronia had died first through poison administered by Titius, conscious (or ignorant, or Titius conscious or ignorant, or Caia conscious or ignorant) of the impediment, in the face of the Church, with proclamations premised (or dispensed), or, with no proclamations premised, before a civil Magistrate or a heretical herald, they contracted Marriage and consummated it by carnal intercourse (if each party or either party still perseveres in good faith, let that be expressed; likewise whether each party or either party, conscious of the impediment, now abstains from intercourse or nevertheless has persisted in it). Wherefore, since the impediment is wholly occult and separation cannot be made without scandal, I most humbly beg Your Eminence that you benignly indulge a dispensation to them, insofar as they may be able validly to contract.

Of Your Eminence, etc.

Note. Externally, when the letter has been signed, the inscription should be placed thus: To the Most Eminent and Most Reverend Lord D. S. R. E. Cardinal Major Penitentiary, Rome. It will be useful to give the letter to one's own Bishop, who will take care concerning transmission.

The formulae which follow will be useful for petitioning dispensations from our Ordinaries according to the faculties conceded to them.

IV. - To the Bishop — For Petitioning a Dispensation in a Public Impediment

Most Illustrious and Most Reverend Lord,

John N. and Anna N. of this my parish, or of the parish or mission N., of this Diocese, or Diocese N., consanguineous in the third equal degree in the transverse line, desire to enter Marriage with one another, and therefore they humbly beg from Your Most Illustrious Lordship the dispensation necessary for them. - The reasons are (here let the reasons and the circumstances necessarily to be expressed, if any are present, be set forth).

Reverently kissing the hands of Your Lordship, with the highest devotion by which it is fitting, I remain,

Of Your Most Illustrious Lordship, Most devoted servant, N. N. Pastor N. N.

Given at N. N.

Note 1°. If the betrothed belong to diverse Dioceses, this is more rightly expressed, and indeed immediately after the family name of each. Besides, the dispensation is more suitably petitioned through the Pastor of the bride, if the impediment is common to each of the contracting parties, as is the impediment of consanguinity.

Note 2°. If the degree of consanguinity is diverse or mixed, or several public impediments are given at the same time, all, as is clear, must be clearly expressed.

Note 3°. If the circumstances necessarily to be expressed are occult, they cannot, as is clear, be expressed in this same supplicatory libellus.

V. - To the Bishop — For Petitioning a Dispensation in an Occult Impediment Without Any Danger of Injuring the Seal

Most Illustrious, etc.,

Titius and Caia, while the first wife of Titius was still living, carnally knew one another and mutually gave faith to each other concerning Marriage to be contracted between them, if the wife of Titius should die first; she now being dead, but with neither of the petitioners plotting against her death, they desire to contract Marriage between themselves. But since the impediment of crime proceeding from adultery and promise is occult, and unless Marriage is contracted between them there threatens danger of scandals or of perseverance in sin, therefore, for avoiding these things and for the quiet of their conscience, they humbly supplicate that Your Most Illustrious Lordship may deign most clemently to impart to them the grace of dispensation.

Of Your Lordship, etc.

VI. - To the Bishop — For Petitioning a Dispensation for a Marriage Already Contracted in Good Faith with an Impediment Public of Itself

Most Illustrious, etc.,

It is humbly set forth to Your Most Illustrious Lordship on the part of the devout petitioners John N. and Anna N. of the parish ... Diocese ... (see above), that they, formerly ignorant that some impediment existed between them by which they could not be matrimonially coupled to each other, with no impediment detected or denounced, contracted, and solemnized it in the face of the Church and consummated it by carnal intercourse. But afterward it came to their notice that they are joined to each other in the third degree of consanguinity touching the second, on account of which they abstained from carnal intercourse (or - and nevertheless persisted in the same carnal intercourse). But since the aforesaid petitioners cannot remain in a Marriage of this kind without dispensation, and if separation were made between them, grave scandals could arise therefrom, they supplicate that, the pardon of the ecclesiastical law having been most clemently given to them, they may be able to enter Marriage in the face of the Church and afterward live in it licitly and freely.

Of Your Lordship, etc.

VII. - To the Bishop — For Petitioning a Dispensation for a Marriage Already Contracted in Bad Faith with a Public Impediment

Most Illustrious, etc.,

It is humbly set forth to Your Most Illustrious Lordship, in the name of the petitioners John N. and Anna N. of the parish N., Diocese N., that they, formerly knowing themselves to be joined in the second (or third, etc.) equal (or unequal) degree of consanguinity, petitioned from Your Most Illustrious Lordship a dispensation for validly contracting Marriage between themselves, the said impediment notwithstanding; but having suffered refusal, blinded by insane lust, they contracted and consummated incestuous Marriage before a civil magistrate (or heretical herald), from which already (let the number be placed) they have received children. But now by the grace of God, greatly fearing the danger of eternal salvation, they weep over the life passed before and desire to repair it. But since, if separation were made between them, grave scandals would arise therefrom and great harm for their children; and since they cannot remain in Marriage without dispensation, they supplicate that Your Most Illustrious Lordship may deign to dispense with them, insofar as, in the face of the Church, yet with the public denunciations omitted, they may contract Marriage with each other, consent having been renewed, and may licitly remain in it.

Of Your Lordship, etc.

VIII. - To the Bishop — For Petitioning a Dispensation in an Occult Impediment, and Indeed with Sanation of the Marriage in the Root

Most Illustrious, etc.,

Caia, of the Diocese N., ignorant of the impediment of crime arisen from adultery with a promise of marriage, contracted Marriage in the face of the Church and with denunciations premised, in good faith, with a man bereaved of his wife. Wherefore, since they cannot be separated without scandal, and danger of incontinence lies beneath, the putative husband being wholly ignorant of the impediment, and therefore matrimonial consent cannot be renewed without grave danger of disagreements; hence she humbly supplicates for the remedy of dispensation over an impediment of this kind, wholly occult, in the root of the Marriage, so that without renewal of consent the Marriage may be able to be sanated.

Of Your Lordship, etc.

IX. - To the Bishop — For Petitioning a Dispensation over Banns

Most Illustrious, etc.,

John N. and Anna N., desiring to enter Marriage between themselves, earnestly ask that a dispensation over the three proclamations be conceded to them. The reasons are (let them be set forth sincerely).

Of Your Lordship, etc.

Note. If the causes for petitioning the dispensation are not honorable, or at least not public, let no names be placed except fictitious ones, namely: TITIUS AND BERTHA.

X. - To the Bishop — For Petitioning a Dispensation over the Impediment of Mixed Religion

Most Illustrious, etc.,

Anna N., a Catholic of parish N., desires to enter Marriage with Robert N. from place N., attached to sect N. (or a baptized non-Catholic). - The non-Catholic party before me under faith of oath promised that all infants of each sex to be born from that Marriage are to be baptized and educated in the Catholic faith, and that for them, as also for the co-party, the exercise of the Catholic religion will be wholly free. Besides, the Catholic party promised that she, with her powers, would take care that, insofar as it will be in her, the other party be converted to the true Faith. Wherefore she humbly supplicates Your Most Illustrious Lordship, that you may deign to concede to her, by Apostolic authority, a dispensation over this impediment. The causes are (let the causes be set forth, for example, various attempts that the female petitioner renounce such a Marriage; founded hope of conversion of the non-Catholic party, etc.).

Of Your Lordship, etc.

Pontifical Commission — For Authentically Interpreting the Canons of the Code — Dubia — Resolved in the Plenary Meetings of the Days 2-3 June 1918 — On Marriage

If someone claims his right from validly contracted betrothals against a party about to enter marriage with another, must the marriage be suspended until there has been action concerning the just cause of dispensation from the prior betrothals and concerning reparation of damages, if any is due? (Can. 1017, § 3).

Resp. Negatively, or that an action concerning the just cause of dissolution of betrothals is no longer admitted; but that an action of reparation of damages does not suspend the celebration of marriage.

Whether the action of reparation of damages, of which in can. 1017, § 3, pertains to the ecclesiastical forum or to the civil?

Resp. The action of reparation of damages, of which in can. 1017, § 3, is of mixed forum.

If the bride or bridegroom are found ignorant of Christian doctrine, is there place for rejecting them from marriage, or for deferring marriage until instruction? (Can. 1020, § 2.)

Resp. Let the pastor observe the prescription of canon 1020, § 2; and while he performs those things which the Code prescribes to be performed, let him diligently teach to the ignorant betrothed at least the first elements of Christian doctrine; but if they refuse, there is no place for rejecting them from marriage according to the norm of canon 1066.

If the party after attained puberty has dwelt for more than six months in very distant and separated shores, from which a longer time is required in order that regular attestation of liberty of status be had, yet the celebration of marriage is urgent, does there suffice in the case, for making certain the liberty of status, the oath of the party with the testimony of two, or, if two cannot be had, of at least one, who had dwelt with him in those regions? (Can. 1023, § 2.)

Resp. The matter is remitted to the prudent judgment of the Ordinary, who can prescribe other proofs, not excluding a supplementary oath, according to the norm of canon 1023, § 2.

What if illicit and occult intercourse preceded the birth of the woman to be married, concerning whom it could be doubted whether she is the daughter or sister of the other party? (Cann. 97, § 1, 1077, etc.).

Resp. Provision has been made by can. 1076, § 3.

Is the force of the new Code retroactive in these things which are modified concerning betrothals and impediments both impeding and diriment of marriage, so that any right acquired by force of valid betrothals can in no way be claimed, except insofar as the new Code concedes, and contracted impediments modified by the new Code need no dispensation? (Cann. 4, 10.)

Resp. The Code, even as regards betrothals and impediments, does not have retroactive force; but betrothals and marriages are governed by the law in force when they were contracted or will be contracted, yet with canon 1017, § 3 preserved as regards an action from betrothals.

What must be said concerning marriages, if any are null from the head of impediments abrogated by the new Code: do those marriages become valid by the very promulgation of the new Code, or even after the said promulgation do they need dispensation, sanation, etc.? (Cann. 4, 10.)

Resp. Negatively to the first part; affirmatively to the second.¹

Whether spiritual kinship contracted before the day of Pentecost of the year 1918 beyond the limits now defined by the new Code in can. 768, from the aforesaid day of Pentecost ceases by the fact itself as regards all effects, or only ceases to be an impediment to marriage? (Cann. 768, 1079.)

Resp. Negatively to the first part; affirmatively to the second.

(A. A. S. Year X, n. 8 - 1 August 1918.)

¹ Cf. Addenda, p. 1138, n. 97.

Vol. II, Tr. XVIII, Chapter IX. On the Revalidation of Marriage

n. 926.

A marriage can be invalid 1°. on account of defect of consent; 2°. on account of defect of the prescribed form, namely on account of clandestinity; 3°. on account of the inability of the parties induced by force of some ecclesiastical impediment. - Hence:

n. 927.

I say 1°. § 1. For convalidating a marriage invalid on account of a diriment impediment, it is required that the impediment cease or be dispensed, and that at least the party conscious of the impediment renew consent.

§ 2. This renewal is required by ecclesiastical law for validity, even if at the beginning each party furnished consent and did not afterward revoke it (Can. 1133).

The reason for the first is that marriage must be between capable persons who consent; therefore it is necessary that the diriment impediment either cease or be dispensed, and thus the parties become capable persons who may consent into marriage.

The reason for the second is ecclesiastical law itself, demanding this renewal, which from the nature of the thing, once the impediment ceases, is not required, as becomes clear from sanation in the root, by force of which the Church holds the old consent as sufficient.

Therefore two things are required for convalidating: the capability of the parties through cessation of the diriment impediment or dispensation, and renewal of consent at least by the party conscious of the impediment.

I say 2°. Renewal of consent must be a new act of the will into the marriage which is established to have been null from the beginning (Can. 1134).

I say 3°. § 1. A marriage invalid on account of defect of consent is convalidated if the party who had not consented now consents, provided the consent furnished by the other party perseveres.

§ 2. If the defect of consent was merely internal, it is enough that the party who had not consented consent internally.

§ 3. If it was also external, it is necessary also to manifest the consent externally, either in the form prescribed by law, if the defect was public, or in another private and secret mode, if it was occult (Can. 1136).

I say 4°. A marriage null on account of defect of form, in order that it become valid, must be contracted anew in legitimate form (Can. 1137).

The reason is that the law prescribing the form of celebration urges all subjects. If the invalidity is public, it must be convalidated publicly before the Pastor and witnesses, but it can be entered privately before the same, with reparation of scandal made through publication of the convalidation. But if one party wished to approach the Pastor and the other refused, the latter is to be induced to renew consent through a proxy before the Church in the form prescribed by canon 1095. If the invalidity is occult, it must be convalidated occultly in the customary form. Finally, if one party obstinately refuses, recourse must be had to dispensation in the root in favor of the innocent party. - Cf. Heiss, parag. 62. - Wernz, v. 4, 649. But if the party wishing to convalidate the marriage, together with the other party, should proceed even in fraud of the law to a region of which in Canon 1098, n. 1°, and there, with the conditions fulfilled, should renew formal matrimonial consent before two witnesses after the nullity of the marriage had been known, the marriage would be convalidated. - Cf. S. C. Sacr. 12 March 1910 ad III.

Vol. II, Tr. XVIII, Ch. IX, Article I. On the Revalidation of Marriage through Simple Dispensation

n. 928.

I say 1°. A simple dispensation removes the inability induced by law; conceded by one who enjoys legitimate power, it renders the person to whom it is given capable of entering marriage; and therefore it effects that consent furnished by the incapable person himself, and on that account ineffective, can now be effective. "As often as a law invalidates an act, it renders the will of the subject ineffective and impotent for contracting, for example, for transferring dominion, and this is to make the act incapable for contracting or ... for contracting thus." Examples: "the law makes ... a person incapable for some act in species," as one solemnly professed for contracting marriage; or it makes incapable relatively, "as, for contracting with a consanguineous woman"; or "it makes incapable for contracting thus," as happens in the Tridentine form. "And in all these cases the act itself is invalidated and the consent of the will is rendered ineffective for producing such an effect. But by this and not otherwise a person becomes incapable for the same effect." Suarez, De Leg. l. 5, c. 19, n. 4. A law invalidating surely does not remove the physical act of the will, but effects that that act or consent lacks juridical force for producing the contract. Therefore, when two consanguineous persons furnished conjugal consent, it is the law of the Church which rendered that consent ineffective; then by its dispensation it removes the ineffectiveness of the act, and the parties can now, because capable, enter marriage. But indeed the Church can so dispense in its invalidating law that all effects following from it are invalidated at the same time. And therefore, even without any renewal of consent, the marriage is immediately considered valid, and the other effects cease, as if it had been valid from the very beginning; the validity is from now, the legitimacy from then. That is to say, that consent, naturally sufficient, with the invalidating law of the Church removed and, by power of the same, the necessity of renewal removed, exercises its full effect of the act of the will and constitutes marriage. Such a dispensation is sanation in the root. Wherefore renewal of consent must not be called necessary from nature, but only from the law of the Church. When it removes the ineffectiveness of consent but demands its renewal for contracting marriage validly, its action is called a simple dispensation. - Cf. below n. 930.

I say 2°. Once a simple dispensation has been obtained, the party conscious of the impediment is now rendered capable for contracting and is bound by the law of the Church to renew consent. But if each party is conscious of the impediment, each must renew consent. When it is required that one, when that each party renew consent, will be said below in n. 929, Question 1.

I say 3°. Therefore there follows the necessity of that renewal, but from the positive law of the Church. But the Church requires that a new consent be furnished by the spouses knowing the nullity of the prior contract in the case of a marriage null on account of an impediment ceasing without dispensation. - Cf. above n. 927. Thus the S. Off. concerning the following case:

A certain Amalia, a non-Catholic not baptized, married John, a baptized heretic. During the marriage Amalia was baptized in some heretical sect and for some time lived maritally with John. Afterward, once the adultery of her husband had been known, she obtained a civil divorce. Finally she sought the faculty of entering second nuptials with a Catholic man. The S. Office on 8 Mar. 1899 responded: "A prior oath having been furnished by Amalia in the Curia NN, by which she declares that the marriage contracted with John after the baptism of Amalia herself was not ratified by the same persons knowing its nullity in a place where clandestine or mixed marriages are held valid, and provided that the Most Reverend Lord Archbishop is morally certain concerning the asserted ignorance of the spouses regarding the impediment of disparity of cult, let a document of liberty be given to the woman from the head of disparity of cult itself?" Cf. S. Off. 31 Aug. 1887; Pontif. Comm. for authentically interpreting the Code of Canon Law, 2-3 June 1918 - Card. Gennari, Consultazioni, v. 1, p. 633 - Card. Gasparri, De Matrimonio, n. 1138.

n. 929.

Questions

Question 1. Must consent be renewed before the Pastor and witnesses?

Resp. § 1. If the impediment is public, the consent must be renewed by each party in the form prescribed by law (Can. 1135).

The reason is both because then the reason for removing or preventing scandal urges, and because otherwise the validity of the Marriage could not be proved before the Church, since it is publicly established that the Pastor and witnesses were not present except at the celebration of an invalid Marriage, and thus the end intended by the Council of Trent would not be obtained; for the spouses, after the Marriage had been clandestinely revalidated, could separate and enter new nuptials with others with impunity.

§ 2. If it is occult and known to each party, it is enough that consent be renewed by each party privately and secretly.

§ 3. If it is occult and unknown to one party, it is enough that the party alone who is conscious of the impediment privately and secretly renew consent, provided the other perseveres in the consent furnished (Can. 1135).¹

The reason is that the Council of Trent, by prescribing the presence of the Pastor and witnesses, is deservedly presumed not to have wished to comprehend this case. For the Council wished only to meet the inconveniences which arose from nuptials celebrated secretly; but in our case the Marriage has already been publicly contracted, and therefore that danger is absent; therefore it suffices to place the new consent secretly. Besides, not only would extension of the law to this case be useless, but also harmful; indeed it would provide place for many scandals, expose the parties to defamation, and induce many other inconveniences. - Cf. S. Alphonsus, n. 1110.

¹ Cf. Addenda, p. 1138, n. 98.

n. 929, Q. 2.

Question 2. In how many ways can consent be renewed, or exacted from the party ignorant of the impediment, after a dispensation has been obtained?

Resp. These are the principal modes assigned by various authors:

I. If the spouse simply says: Our Marriage is null on account of some impediment, or: The confessor told me that it is null, and therefore let us renew consent.

II. If the spouse says: I did not have true consent when I contracted Marriage; I now wish to furnish new consent; do you also wish to furnish it? - This mode is commonly admitted by authors, and can rightly be applied without a lie, since null consent is not true consent; and on the other hand the spouse ignorant of the impediment thus sufficiently knows the nullity of the Marriage.

III. If he says: I am troubled by scruples concerning the value of our Marriage, and therefore let us renew consent. This mode can be admitted according to the more common opinion with S. Alphonsus; for it suffices that the other party place consent independent from the prior one; but for this it is enough if he prudently doubts concerning the value of the first Marriage.

Various other modes are also exhibited by many theologians, for example, if the spouse says to the co-party: Say, I ask you, if our Marriage were null, would you not wish to contract again? Or: If you had not married me, would you not wish to marry now? etc. But these modes are deservedly rejected, because thus it is uncertain whether the other party intends to repeat consent into the preceding Marriage, or truly to consent into a new one. - Cf. S. Alphonsus, n. 1117.

Vol. II, Tr. XVIII, Ch. IX, Article II. On the Revalidation of Marriage through Dispensation in the Root

§ 1. Sanation of marriage in the root is the convalidation of the same, carrying with it, besides dispensation or cessation of the impediment, dispensation from the law concerning renewing consent, and retrotraction, by a fiction of law, concerning canonical effects, to the past.

§ 2. Convalidation is made from the moment of concession of the grace; but the retrotraction is understood to have been made to the beginning of the marriage, unless something else is expressly provided.

§ 3. Dispensation from the law concerning renewing consent can also be conceded with only one party or each party unaware (Can. 1138).

n. 930.

Dispensation, or rather sanation in the root, consists in this: that Marriage is revalidated by force of consent previously given. That is to say, the consent previously given therefore produced no effect, because it labored under some defect, which, since it was placed by the Church, nothing can or ought to impede from being removed by the Church itself. But with this defect removed, the consent as it were revives, or rather is sanated, and immediately Marriage arises. Therefore the difference between simple dispensation and dispensation in the root consists in this: that through the first the Church only removes the diriment impediment and thus renders the spouses capable for contracting; but through the other, besides the removal of the impediment, it accepts the consent previously given, proceeding to the very root of the Marriage; and consequently in the first case renewal of consent is required, and in the second it is not required. Behold therefore the process by which the Church sanates Marriage in the root: first it removes the impediment, which is supposed to be of ecclesiastical law; then it accepts the sanated consent by taking it in the very root; and because this acceptance now takes place, now Marriage properly begins; finally it annuls all juridical effects which flowed from that defective consent, and indeed from its very beginning, unless something else is expressly provided. - Cf. Benedict XIV, Institut. 87, n. 80; and de Synod. dioeces. lib. 13, cap. 21, n. 7. - Heiss, § 64. - Lehmkuhl, n. 828.

n. 931.

I say 1°. The Supreme Pontiff can sanate in the root all Marriages which are invalid by force of some impediment of ecclesiastical law. The reason is taken both from this, that according to the explanation lately given, nothing is had in a sanation of this kind which is repugnant to the matter or passes beyond the power of the Church, and because in fact for many centuries the Roman Pontiffs have been accustomed to concede such dispensations. Boniface VIII is read to have dispensed thus first in the year 1301; but in more recent times Pius VI, Pius VII, Leo XII, etc., dispensed more frequently in the same mode. - Cf. Benedict XIV, de Synod. dioeces. lib. 13, cap. 21, n. 7.

Sanation in the root can be conceded only by the Apostolic See (Can. 1141).

I say 2°. Three conditions are required so that Marriage can be convalidated by the help of dispensation in the root, namely:

1°. That the conjunction of the spouses have had the external species of a just Marriage: this condition either pertains to the very essence of the thing, namely if the matrimonial conjunction was openly fornicary and was apprehended as such by the spouses, for then necessarily the consent itself must have been lacking, namely the very root of the Marriage, as Benedict XIV speaks; or if true consent was present, because the spouses did not know the nullity of the Marriage, it must be said that this condition is required from positive Pontifical will for avoiding scandal. - Cf. Feije, n. 768. - Acta S. Sedis, vol. 1, Append. 7, p. 182.

Nevertheless this is not to be taken wholly strictly, for "for the effect of which there is question" (of sanation), says Benedict XIV, "it is enough that marriage was in fact contracted and that marital affection intervened." - Quaest. Can. 174.

2°. § 1. If consent is lacking in each or either party, marriage cannot be sanated in the root, whether consent was lacking from the beginning, or, furnished from the beginning, was afterward revoked.

§ 2. But if consent was indeed lacking from the beginning, but was afterward furnished, sanation can be conceded from the moment of furnished consent (Can. 1140).

Observe, however, that for destroying the force of consent previously given, a certain present wishfulness of departing in one or even in each spouse does not suffice, but a positive and absolute will is required. - Cf. Lehmkuhl, n. 831.

Real and moral perseverance of consent can be had in a co-party who, if conscious of the impediment, would be ready to dissolve the marriage; or who in the same ignorance sought separation from bed and cohabitation; or when two remain in marital life, as in a civil marriage, and one wishes to compose the matter before the Church and the other does not wish to do this.

3°. That an urgent and very grave cause be present. But this can be had especially in a threefold case, namely: 1°. when one party cannot be brought to renewal of consent, and nevertheless exhibits present consent of remaining in Marriage; 2°. when the impediment is known only to one party, and could not be manifested to the other without grave inconveniences; 3°. when there is an urgent reason for not admonishing the spouses concerning the nullity of the Marriage.

Observe, however, that only in this third case is there had a perfect sanation in the root; for when one of the spouses renews consent as is supposed in the first and second case, the sanation will be imperfect, namely on the part of only one spouse.

n. 932.

Questions

Question 1. Whether dispensation in the root can be given only for sanating a Marriage which is invalid by force of some impediment of ecclesiastical law?

Resp. Affirmatively, and the reason is that the Roman Pontiff can do nothing concerning impediments of divine or natural law, and consequently cannot sanate consent which was defective by such law. But if, some Marriage having been invalidly contracted by force of some impediment of ecclesiastical law, afterward another impediment of the law of nature, for example, of impotence, has supervened from the fact that the man, having received a wound, became absolutely incapable of the conjugal act, nevertheless the Church will be able to sanate that Marriage, and consequently legitimate the children who were born from the time of the celebration of the Marriage up to the reception of the wound, and remove the other effects of the nullity of the Marriage. The reason is taken from the very nature of sanation in the root. Cf. Feije, n. 769.

In this case rather only an imperfect sanation was given, namely the effect of the invalidity of the marriage was removed, and thus the offspring was made legitimate. According to the opinion now received, that marriage could not be sanated, because the party was incapable by the law of nature; but legitimation of the offspring was conceded.

n. 932, Q. 2.

Question 2. Can sanation of a marriage civilly entered be made?

Resp. It can be made. For these spouses can truly place conjugal consent which is ineffective, which, if it perseveres, can be sanated.

n. 932, Q. 3.

Question 3. Can any marriage invalidly entered be sanated in the root?

Resp. § 1. Any marriage entered with the naturally sufficient consent of each party, but juridically ineffective on account of a diriment impediment of ecclesiastical law or on account of defect of legitimate form, can be sanated in the root, provided consent perseveres.

§ 2. But a marriage contracted with an impediment of natural or divine law, even if the impediment afterward ceased, the Church does not sanate in the root, not even from the moment of cessation of the impediment (Can. 1139).

n. 932, Q. 4.

Question 4. Can there be sanated in the root a concubinary union, to which after many years civil marriage succeeded, in a case in which before this civil wedlock one party had been made impotent by a surgical operation?

Resp. "In the case set forth, sanation in the root cannot be conceded; and to the mind. The mind is that since the marriage cannot be revalidated, the putative spouses ought immediately to be separated. But if this is morally impossible, let them at least, with cautions applied, cohabit under the same roof as brother and sister. But as regards canonical legitimation of offspring, it can be conceded through a rescript of the prince duly to be expedited." Thus the S. Off., 8 March 1900. It is an example of offered legitimation of offspring for ecclesiastical effects.

n. 932, Q. 5.

Question 5. Can a dispensation in the root be obtained and applied with each party ignorant of it?

Resp. Affirmatively, altogether, because in no way is knowledge of the dispensation required in order that the Church can remove the effect of the law or the obstacle which stood in the way of the efficacy of consent; for the power of the Church is wholly independent of such knowledge. It is confirmed from the practice of the Church. For Clement XIII conceded to a certain Procopus, who seems to have been a Bishop, the faculty that he might sanate in the root, the parties not having been warned, many Marriages invalidly entered on account of excessive extension of the faculties received. Other examples also are reported by others concerning similar revalidation of Marriages. - Cf. Heiss, p. 246.

n. 932, Q. 6.

Question 6. In what way must a dispensation in the root be executed?

Resp. In the same mode as a simple dispensation, by adding in the formula the words in the root; wherefore it can be said thus: "I, by Apostolic authority conceded to me, sanate in its root the Marriage contracted by thee with N., and I declare the offspring received and to be received legitimate, in the name of the Father and of the Son and of the Holy Spirit." - I said, it can be said, because no formula is properly necessary, since none is prescribed in the Roman Ritual. - Cf. Heiss, § 64, n. III.

Note. If at any time it happens that one or each spouse, instead of sanation, seeks a declaration of nullity of Marriage, one must proceed altogether cautiously, whether as confessor or as Pastor, not only on account of civil laws and scandal which perhaps could arise from separation, but also because neither confessor nor Pastor has any power over a Marriage once celebrated, however certain its nullity may seem to them. Wherefore then recourse must be had to the special curia which recently among us has been instituted in individual dioceses for treating and resolving matrimonial causes. - Cf. Third Plenary Council of Baltimore, nn. 297, 304 and seq.; and Append., pp. 262 and seq.¹

¹ Cf. Addenda, p. 1091, n. 21.

Concina, Compendium

Daniele Concina, O.P. — 12 passages

Diss. II, Chapter III — On the power and causes of dispensing in the impediments recounted

n. I.

I. QUESTION I. Who has power of dispensing from diriment impediments? ANSWER. The common opinion of theologians is that, use and custom acceding, the Roman Pontiff alone by ordinary right dispenses from the aforesaid impediments, bishops and Legates a latere being excluded.

n. II.

II. QUESTION II. Whether bishops, urgent necessity pressing, can dispense from some diriment impediment before matrimony is contracted? ANSWER. The common opinion affirms it, provided the necessity be urgent and grave, and access to the Supreme Pontiff be not open, and there be danger of infamy or of incontinence or of another evil in delay. No express law, no canon declares that a bishop cannot perform in his diocese in these cases those things which are necessary for the salvation of his sheep. From custom and use alone do the Supreme Pontiffs dispense in impediments of this kind. Therefore, when such necessity urges, who hinders a dispensation from being sought from the Pontiff, and being granted otherwise by a bishop? Two extremes in this as in the rest are to be declined: both an excessive facility of dispensing without a lawful cause, and an excessive severity of straitening the authority of bishops, which of its own nature is only for the common good of the Church, restricted by the Supreme Pontiffs. Therefore as often as the common good demands, and the Pontiff cannot be approached, and there is danger in delay, bishops can dispense, both before and after matrimony contracted.

n. III.

III. QUESTION III. Is it required that the matrimony contracted be in good faith, that a bishop may dispense from an impediment? ANSWER. Good faith in one spouse alone suffices, as the common opinion teaches. Several also contend that a bishop can dispense even if bad faith preceded in both. The more probable opinion nevertheless requires good faith at least in one spouse.

n. IV.

IV. QUESTION IV. From what impediments can a bishop dispense outside the case of necessity? ANSWER. Bonacina, Henríquez, Sánchez, Castropalao, and the Salmanticenses teach that bishops can dispense in an impediment supervening upon matrimony on account of affinity and spiritual kinship, and in a simple vow of chastity, that the spouses may ask the debt of one another, although there be no urgent necessity; and this, they say, is established from lawful custom.

n. V.

V. Several privileges are wont to be alleged as granted to Mendicant Friars of dispensing in an impediment supervening upon matrimony on account of copulation had with a blood-relation of a spouse in the first or second degree, or on account of a simple vow of chastity emitted before matrimony, that they may be able mutually to render and to ask. All these privileges to me are fictitious, because I have been able to find no authentic document by which it may be evinced that these privileges are lawful.

n. VI.

VI. QUESTION V. Do superiors sin who dispense from impediments without a cause? ANSWER. It is agreed among all that both those granting and those seeking a dispensation without a cause sin. Authors dispute whether it be a mortal or a venial sin. Suárez, Bellarmine, Toletus, and other graver theologians affirm that it is mortal. This opinion is true. St. Bernard calls a dispensation without a cause a cruel dissipation. Who does not see that to trample down at pleasure laws passed for the common good of the Church is a deadly sin? Smallness of matter can excuse from grave fault.

n. VII.

VII. QUESTION VI. Is a dispensation of this kind granted without a cause valid? ANSWER. Theologians commonly teach that a dispensation of an inferior in a superior's law without a cause is null. Hence they infer that a bishop dispenses invalidly in a pontifical law without a cause. Similarly that the Pope dispenses invalidly in a vow, in an oath, or in any other divine law, a just cause being taken away.

n. VIII.

VIII. Some teach that a legislator can validly dispense in a law passed by himself without a just cause: because, they say, in his own law the Legislator operates as lord. Therefore, just as a prodigal, they say, validly transfers the dominion of his own goods, although in squandering he sins, so a legislator validly dispenses in his own law with others, otherwise with himself. This opinion is to me false. The distinction of dispensation in respect of himself and of others seems to me fictitious. Every law is passed for the common good. By natural and divine law a legislator is bound to promote the common good as much in respect of himself as of his subjects. Legislators are subject to the laws directively, subjects coercively. Therefore by the same reason by which the more recent authors affirm that he dispenses invalidly with himself, they ought to affirm that he dispenses invalidly with others.

n. IX.

IX. QUESTION VII. What are the just causes of dispensation? ANSWER. Several are assigned. 1. The removal of suits, scandals, and quarrels, and the good of peace; 2. If in the town in which a woman dwells she cannot conveniently find an equal whom she may marry; 3. A defect of dowry, when a girl finds a blood-relation who will espouse her without a dowry; 4. The preservation of riches in the same family; 5. The repairing of a matrimony contracted in good faith; 6. The request of Kings and great Princes; 7. Excellence of merits toward the Church; 8. The furnishing of money in aid of the Church.

n. X.

X. Whether all these causes be lawful, let those judge whom it concerns; the last does not approve itself to me, concerning which Fr. Viva, question 11, article 2, no. 4, says: Sánchez nevertheless notes that he who seeks matrimonial dispensations without a cause by exhibiting a copious alms does not sin, just as neither does he who without a cause uses what he has sought. The reason, because although they be sought without a cause, they are nevertheless not granted without a cause. Is this a robust reason? They are not granted without a cause, because they are granted on account of money. What will Lutherans and Protestants not prate, reading such things? Will they not blurt out that these laws are money-making? But we shall shake their calumny by opposing the Tridentine Synod, which established that dispensations are to be granted: 1. Rarely; 2. From a cause; 3. Gratis. Nor does it matter that some interpret the laws less rightly.

n. XI.

XI. When at the time of the dispensation a cause existed, even if afterwards it cease, the dispensation subsists: because as soon as a valid dispensation was granted, the impediment is taken away. Otherwise it is to be said of a dispensation from those things which have a successive course. You obtained a dispensation from fasting on account of debility: the debility ceasing, the dispensation ceases.

n. XII.

XII. QUESTION VIII. What is a subreptitious dispensation? ANSWER. It has already been said above that it is that which is granted either on account of a falsity expressed, or on account of a truth concealed. If you desire more, read Vol. X, Book 2, dissertation 3, chapter 5.

Slater, Cases II

Thomas Slater, S.J. — 10 passages

Slater, Cases II, Matrimony, Case 32. A Complicated Case

Caius, after contracting marriage with Martha at Dublin, went to America a few years later, leaving his wife at home. Shortly afterwards Martha, seized by a blind love for Titius, a non-Catholic and a relative of Caius in the third degree, conducted herself lustfully with him. When ten years had now elapsed and they had heard nothing about Caius, Titius strongly urged that they leave Dublin and go to Liverpool. The woman at length consents, and there, in a Protestant church, they contracted marriage in order to avoid troublesome questions about their free state. Afterwards, when they had lived in the city for six years and had children, Martha heard from several witnesses—mediate indeed, but trustworthy—that Caius had died in America. During a mission, stricken with sorrow, the most wretched woman approaches John, a confessor. He hears Martha’s history and, after carefully weighing the testimony for Caius’s death, judges that nothing prevents her from entering marriage with Titius after the dispensations have been obtained. Therefore, to set the matter in order, he writes a letter to the Bishop, relates that Titius and Martha are concubinarians, and petitions for the required dispensations, but intimates nothing about Caius perhaps still surviving or about the marriage already attempted in bad faith. Hence it is asked:

n. ¶2.

When a doubt arises concerning the impediment of bond, upon whom does it devolve to judge the free state of those who are about to contract marriage?

n. ¶3.

What dispensations are required, and what circumstances must be explained in the case for the validity of the dispensations?

n. ¶4.

What is to be said of John’s manner of acting?

n. ¶5.

Solution

The first question was answered above, p. 273.

n. ¶6.

What dispensations are required and what circumstances must be explained in the case for the validity of the dispensations?

n. ¶7.

Titius was not a Catholic, and he was related in the third degree of consanguinity to Caius, the first husband of Martha. Moreover, as there was adultery and attempted marriage by the parties, there exists between them the impediment of crime. Dispensations, therefore, for a mixed marriage, for affinity in the third degree, and for the crime of adultery with attempted marriage will be required. Besides, the evidence cited in the case is not sufficient to produce moral certainty of the death of Caius by itself; and at any rate in such circumstances it is for the bishop to judge whether the party is free or not; a simple priest is incompetent in such a case.¹

1 Génicot, vol. ii, 492.

n. ¶8.

The circumstance that marriage was attempted in bad faith in the Protestant Church must be mentioned in the petition for a dispensation, and this is required for its validity according to the Instruction S. C. de P. F., May 9, 1877.

n. ¶9.

The case. John did very wrong and made several serious blunders. He usurped the office of the bishop by deciding that the parties were free to marry, though

n. ¶10.

COMPLICATED CASE there was not conclusive and first hand evidence of the death of the first husband of Martha. He made no mention of the attempted marriage in bad faith and in the Protestant Church, and from this we may gather that he failed to detect the existence of the impediment of crime between the parties. He should take the earliest opportunity of repeating his Moral Theology.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 19 passages

Vol. I, Case XXXVII: A Recent Papal Dispensation “Regarding a Ratified and Unconsummated Marriage.”