Dispensations

179. Notion. 1. Dispensation is defined as the relaxation of a law in a particular case made by legitimate authority. Therefore through dispensation, while the obligation of the law remains as regards the rest, by the will of the superior its obligation is removed as regards certain particular persons.

a. Dispensation is an act of jurisdiction which is exercised by an act of the will; wherefore a superior cannot grant a dispensation unless knowingly and willingly. But a dispensation extorted by fear is valid, provided the superior had the will of dispensing, because fear does not take away the voluntary, nor does positive law declare a dispensation of this kind invalid.

b. It differs from permission, by which the law is not relaxed but rather fulfilled: for permission has place when the law prohibits some matter not absolutely, but only under a condition, namely that it not be done without the consent of the superior. Thus if a law prohibits a religious from leaving the house without the superior's permission, he who asks permission does not ask for the relaxation of the law, but observes the law. It differs from a declaration, by which it is judged that some particular case is to be excepted from the law. A declaration can be made by any private person without any power; thus a physician can declare that someone is excused from fasting, if he rightly judges that fasting can harm him on account of weakness. It differs from a privilege, which of itself is perpetual and is not always against the law; dispensation, on the contrary, of itself is granted for a time and always is against the law.

c. The distinction between dispensation and permission is especially perceived in this, that presumed dispensation is never valid, but presumed permission is valid. Suarez assigns this reason for the matter. Where something is prohibited from being done without permission, the action is not simply prohibited, but only prohibited from being done without the consent of the superior, which consent can also be presumed from common usage. But where dispensation is required, the action itself is prohibited and therefore evil; wherefore through an act of the will of the superior himself the prohibition and malice must be removed.²

2. Dispensation of itself obtains its effect at the moment at which it is granted to the petitioner; nevertheless, in order that he may licitly use the dispensation, it must be notified to him either by letters or through an intermediary, lest, presuming that a dispensation has been made, he expose himself to the danger of breaking the law if perhaps it had not been granted.

¹ Stiegler, Dispensation, Dispensationswesen und Dispensationsrecht im Kirchenrecht (Mainz. Kirchheim. 1901).

² Cf. De legibus l. 6. c. 13. n. 20.

180. Division. Of the many divisions of dispensation, only one must be noted, since others, e.g. due and not due, valid and invalid, are understood from the terms themselves, namely that by which it is divided into obreptitious, if in the petition something false is asserted, and into subreptitious, if something is kept silent which had to be manifested. But often these words are used indiscriminately.

No necessity exists in a petition of alleging a dispensation previously denied by the same superior or by another superior, predecessor or inferior. Whether the petition is subreptitious if a dispensation denied by the supreme pontiff is not alleged in a petition directed to the bishop is indeed disputed; but it must be denied, unless the supreme pontiff expressly restricts the faculty of the bishop in some case: for of itself delegated power is not restricted from the fact that the superior, from whatever cause, was unwilling to give a dispensation.¹

¹ Cf. Lehmkuhl, Casus consc. I. n. 125.

A dispensation is a relaxation of the law in a particular case for some special reason. The law still remains in force, but by a dispensation one who would otherwise be bound to conform to it is withdrawn from the operation of the law. When a law forbids something to be done without leave, as when a religious is forbidden to go out without the leave of his superior, the going out with leave is not against the law, but is in keeping with it. On the other hand, when one eats meat on a Friday, with a dispensation, the act is against the law, but the obligation of the law has been removed from the person dispensed. As jurisdiction is required to make a law, so ordinary or delegated jurisdiction is necessary for granting a dispensation. Ordinary jurisdiction is that which by law is annexed to an office; delegated jurisdiction is exercised by the commission of one who has ordinary jurisdiction (Can. 197). a good cause is always required in order that a dispensation may be lawfully asked for and granted. All should conform to the laws made for the common good, and the superior who without just cause exempts anyone from the duty of obeying a law is unfaithful to his office, and commits the sin of acceptance of persons. If such a superior uses only delegated authority to dispense, he acts not only unlawfully, but invalidly, because he received his authority to grant dispensations only for a good cause. He therefore exceeds the limits of his authority by attempting to dispense without good reason. Similarly, one who asks for a dispensation without good cause does wrong.

A good cause for granting a dispensation must not be altogether trivial, nor is it so grave that of itself it exempts from the obligation of obeying the law. Beyond saying this, it is difficult to be more precise. Much depends on the particular law in question, and on the circumstances of the case.

A legislator can dispense in his own laws, in those of his predecessors, and in those of his subordinates by his ordinary jurisdiction; he cannot dispense in the laws of his superior unless he has received delegated authority for the purpose.

(a) The Pope, then, can dispense in all ecclesiastical laws, even in those which have been made in a general council. He cannot dispense in the natural or divine law; but in vows, oaths, and in marriage which has not been consummated, the Pope can for good cause dispense in the name of God, or at least declare that in certain circumstances they have ceased to exist; for whether he then in the strict sense dispenses, or only declares the sense of the divine law, is a disputed point. In practice there is little difference between the two views.

(b) Bishops can dispense in episcopal laws, and even in those of a provincial or plenary council, unless such authority has been reserved. Although they have no authority over the common law of the Church per se, yet by custom and the presumed consent of the Pope, Bishops can in particular cases dispense from the common law in trivial and doubtful matters, in matters which are of frequent occurrence, as in abstinence, fasting, observance of days of obligation, in the divine Office, and even in other matters of greater moment which admit of no delay.¹

Bishops can dispense not only their own subjects, but strangers also, in such matters as fasting, abstinence, observance of days of obligation, vows, etc.²

(c) Regular prelates have quasi-episcopal authority over their own subjects, and can do for them what Bishops can do for their subjects. Moreover, many privileges have been granted by the Popes to regular Orders, by virtue of which they can dispense not only their own subjects but others also.

(d) Although parish priests per se cannot dispense either in general or in particular laws (Can. 83), yet the power is expressly granted to them to dispense in particular cases and for a good reason even outside their parishes particular individuals and families subject to them, and within their parishes strangers also, from the common law of observing feast days and also from the observance of fasting or abstinence or of both fasting and abstinence (Can. 1245). Those who have the cure of souls in places where there are no parish priests in the strict sense have the same authority from the necessity of the case, from custom, and often by implicit or explicit grant.³

¹ St Alphonsus, 1, n. 190.

² Can. 1245, 1313.

³ Concil. Westmon., d. 23, nn. 1, 3.

If there be a good and sufficient cause for granting a dispensation, the superior may ordinarily either grant it or refuse to do so, as he judges fit; but if serious public or private harm would follow from not granting a dispensation, charity may require that the favour should be granted. But even in that case, unless the inconvenience is so serious that it excuses from the obligation of the law, if a dispensation is refused, the law must be obeyed.

The power of granting dispensations in general but not for a particular case (Can. 85) is of wide interpretation, for it exists for the common good; a dispensation, however, is a wound inflicted on the law, for the law should be uniformly observed by all as far as possible, and so a dispensation is of strict interpretation, and when in doubt as to whether it extends to some particular case the law should be observed.

A dispensation granted for a country, province, or diocese, may be taken advantage of by all who are staying even for a time in the territory, but no one may use it outside the territory for which it is granted. The law for the time being does not bind within the territory dispensed, but it does bind outside. On the other hand, a personal dispensation, like a precept, follows the person, and may be used anywhere, unless specially restricted, as is the case with the dispensation to eat meat granted by the Bulla Cruciata, which cannot be used outside the limits named in the Bull.t

A dispensation ceases by being recalled by the legislator. One who has granted a dispensation by delegated authority may also for good reason recall his dispensation, and in that case the law begins to bind again. However, one who has been dispensed from a vow cannot again be bound by vow without his own free consent. The person dispensed may also renounce a dispensation granted in his favour, and, in the case of a dispensation granted from a vow, by renunciation of the dispensation the vow binds again. However, the obligation of a law can only be reimposed by the competent authority, so that the renunciation of a dispensation from a law must be accepted by the superior in order to be effective. A dispensation also ceases if the whole cause for granting it cease before the execution of the dispensation, or, if the cause is continuous, whenever it entirely ceases. And so if a dispensation from abstinence was granted on account of a weak state of health, the dispensation will cease and the law will again bind when the health has been completely established. If, however, a dispensation has been put in execution, or has been granted absolutely, it will not cease even though the cause no longer exists. And so a dispensation to marty, granted and already executed ad prolem legitimandam, will not cease though the child die before the marriage. * “ Intra limites tantum Hispanicae ditionis.” A.S.S. 35 p. 565.

All Catholics who have come to the use of reason are as a general rule subject to the precept of abstinence as to other positive laws of the Church. However, inasmuch as positive laws do not bind when they could not be observed without relatively serious inconvenience, those who are sick, or are recovering from illness, or those who are in weak health and cannot take abstinence fare, are excused from observing this precept, and may eat meat on days of abstinence. Children, too, of negligent Catholic parents who do not observe the law, Catholic servants in bigoted Protestant families who cannot get such food as the Church allows on days of abstinence, and must fast unless they eat meat which is put before them, may lawfully do so. Dispensations also from the obligation of abstaining may for good reason be obtained from the Bishop or from the priest.

The superiors of Religious Orders have the same powers as Bishops with regard to their own religious subjects. Ordinarily these can only dispense in particular cases or families, but on account of some great concourse of people or of public health, Ordinaries can now dispense in the law both of fasting and abstinence (Can. 1245, sec. 2, 3).

According to Canon 1251: “‘ The law of fasting prescribes that only one full meal be taken in the day; but it does not forbid the taking of some food in the morning and in the evening, nevertheless the approved custom of the place must be kept with regard to the quantity and quality of food. Nor is it forbidden to mix flesh meat and fish in the same meal, nor to change the evening collation with dinner.”

The law of fasting, then, prescribes that only one full meal may be taken in the day, and that after twelve o’clock midday. Solid food, not drink, is limited by the law of fasting, but very nutritious liquids, such as milk, soup, thick chocolate, are classed as food. Custom sanctions the taking of about two ounces of dry bread with tea, coffee, or thin chocolate at breakfast, and about eight ounces of lighter sorts of food in the evening at collation. If it is preferred the collation may be taken after midday and the full meal in the evening.

According to Canon 1252: “ The law of abstinence alone is to be observed on every Friday.

The law of abstinence and fasting also is to be observed on Ash Wednesday, on the Fridays and Saturdays of Lent, and on the Wednesdays, Fridays, and Saturdays of Ember Week, on the vigils of Whit Sunday, the Assumption, All Saints, and Christmas Day.

The law of fasting alone is to be observed on the other days of Lent. On Sundays or on feasts of obligation the law of abstinence, or of abstinence and fasting, or of fasting only, ceases, except on the feast during Lent, and the vigils are not anticipated; it also ceases on Holy Saturday after midday.”

The Holy See has dispensed English and Scotch Catholics from abstinence except during Lent, on the Saturdays of Ember Week, and on those vigils which immediately precede or follow Friday or another day of abstinence.

On June 12, 1923 the Holy See extended to England the regulations for fasting already granted to Australia. By this indult on fasting days those bound to fast are allowed one full meal at or after midday. In addition they are allowed two light meals, one of about eight ounces, at which butter, cheese, eggs or fish may be taken in small quantities; the other of two or three ounces, at which a little butter may be taken. No time is indicated for the two light meals, which may therefore presumably be taken at any time at the choice of the individual.

The obligation of publishing banns is a serious one, but for good reason the bishop or his Vicar-General may dispense with them either wholly or in part. According to approved theologians, the bishop is even obliged sometimes to dispense with banns, when charity toward his flock requires it. Thus a dispensation should be given when it is probable that otherwise the marriage will be maliciously prevented, when it is a necessary means to preserve the reputation of the parties who. are thought to be man and wife already, and when the parties are obliged to depart at once to foreign countries. For lighter reasons the bishop may dispense, but he is not obliged to do so.

A parish priest has no jurisdiction in the external forum, and so he cannot dispense of his own authority from banns. In some special case, however, it might be necessary to marry the parties without delay, and then if there were no time to have recourse to the bishop, a simple priest might declare that under the circumstances the law with regard to banns ceased to be of obligation.

Sec. 1. According to Canon 1031, when a doubt has arisen about the existence of an impediment between the parties— (1) The parish priest should investigate the matter more carefully, interrogating at least two witnesses under oath, who are worthy of credence, provided that there is no question of an impediment from the knowledge of which the reputation of the parties will suffer, and interrogating also the parties themselves if it be necessary.

(2) Let him proceed with or finish the publication of the banns if the doubt arose before they were begun or before they were finished.

(3) Let him not assist at the marriage without consulting the Ordinary if he prudently judge that the doubt still remains.

Sec. ii. When a certain impediment has been discovered— (1) If the impediment be secret, let the parish priest proceed with and finish the banns, and without mentioning names let him report the matter to the local Ordinary or to the Sacred Penitentiary.

(2) If it is public and is discovered before the publication of the banns is begun, let the parish priest not proceed further until the impediment is removed, although he may know that a dispensation has been obtained only for the forum of conscience; if it is discovered after the first or second publication of banns, let the parish priest finish the banns and report the matter to the Ordinary.

Sec. iii. Finally, if no impediment, doubtful or certain, has been discovered, let the parish priest, after the banns are published, admit the parties to the celebration of marriage.

Canon 1030 lays it down that this should not be done until the parish priest has received all the necessary documents and three days have elapsed after the last publication of the banns, unless there be some good reason to the contrary.

Canon 1026 forbids banns to be published of a marriage which is contracted by dispensation from the impediment of mixed religion or difference of worship, unless the local Ordinary deems it proper to permit them with prudence and the removal of scandal, provided that the apostolic dispensation has been granted and no mention be made of the religion of the non-Catholic party.

The Ritual prescribes that the parties should be diligently instructed how they should live in a pious and Christian way in the state of wedlock. This is done partly in the confessional, partly outside. The parish priest may make a brief discourse to them at the end of the ceremony, or if he prefer he may read to them the instruction which is inserted in the Ritual for the purpose (Can. 1033).

Canon 1034 bids parish priests seriously to warn minors not to contract marriage without the knowledge of their parents or against their reasonable wish. In case of disobedience parish priests should not assist at the marriage without consulting the local Ordinary.

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.

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.

We shall speak first of dispensation considered in itself, then of the power of dispensing, then of the granting of dispensation, and finally of the cessation of dispensation.

I. Notion. Dispensation is an act, or quasi-act, by which a law is relaxed in a special case (cf. can. 80). It is said:

1. Act, namely of the power of jurisdiction. For it belongs to the same power to relax a law as to make a law. But to make a law pertains to the power of jurisdiction.

2. Or quasi-act, because dispensation can also be granted tacitly or implicitly, suppose through legitimate custom or through an act which implicitly contains a dispensation.

3. In a special case, that is, with respect to a particular person or persons, or with respect to a community, but only for an act or at least for a time.

Dispensation differs: first, from epikeia, which is not a relaxation of law, but regards a case which, considering the benign mind of the legislator, is considered not to be included in the law; second, from excuse, which likewise is not a relaxation of law, or does not suppose an act of a superior, but regards a case in which someone, on account of extrinsic inconvenience, is not held to the observance of the law; third, from license, which also does not relax the law, but places a condition, and once it is placed, the law itself permits the act. If, for example, a law declares: "No one is to go out without license," once license is posited, going out is not opposed to the law; fourth, from abrogation or derogation of law, by which a law is removed totally or partially for the whole community and in perpetuity; fifth, from privilege, which of itself is perpetual and is not necessarily opposed to the law, whereas dispensation of itself is only for a time and is always contrary to the law.

II. Laws capable of dispensation. It is disputed whether the law of nature admits dispensation properly so called (n. 86); but in every positive law dispensation can have place.

III. Utility and necessity of dispensation. Dispensation is sometimes useful, indeed in some way necessary. This is clear both from the Council of Trent (sess. 25, ch. 18, De reformatione) and from the bull Auctorem fidei of Pius VI; likewise from the practice of the Church and from reason: namely, "since human law cannot provide for all cases, it is expedient that rulers provide in particulars; otherwise sufficient provision would not be made for the common good" (St. Alphonsus, I, 194).

I. Notion. The power of dispensing is the faculty of relaxing a law in a special case. It differs first from the power of annulling vows; for this pertains to dominative power, but the power of dispensing pertains to the power of jurisdiction; second, from the power of declaring that there is present a cause excusing from obligation.

II. Division. The power of dispensing, like the power of jurisdiction in general (n. 96), is divided especially into ordinary and delegated, according as it is annexed to an office by the law itself or has been committed to a person.

Note. As regards the acquisition, interpretation, extension, and cessation of the power of dispensing, what was said about the acquisition, interpretation, and cessation of jurisdiction in general has force (nn. 97-100).

III. Active subject. Dispensation can be granted by the founder of the law, by his successor or Superior, and also by him to whom the same have granted the faculty of dispensing (can. 80). Specifically:

1. The Supreme Pontiff, by ordinary power, can dispense in all ecclesiastical laws, even in those which have been passed by an Ecumenical Council or by the Apostles by their own authority.

Question. Whether the Supreme Pontiff can dispense in divine law.

Response I. He cannot dispense in divine law, neither natural nor positive. Not in divine-natural law, since it does not admit dispensation (n. 86). Not in divine positive law, as is sufficiently gathered from the fact that the Church never dispenses in it, for instance in the laws of Christ. Hence the stated power is not considered to be contained even in these words of Christ: "Whatever you shall loose upon earth shall be loosed also in heaven"¹ (St. Thomas, I-II, q. 97, a. 4, ad 3; St. Alphonsus, VI, n. 19).

Response II. The Supreme Pontiff, as practice confirms, can by vicarious power dissolve, or quasi-dissolve, bonds of divine law which are founded in a human act, such as vows, oaths, and ratified marriages. But it is disputed of what character the act of dissolving or quasi-dissolving placed by the Supreme Pontiff is. According to some, he can merely interpret divine law, that is, declare that it is not urged by God in this or that case. But he truly can dispense improperly, insofar as, namely, by vicarious power he is able truly to remit a right which is founded in a human act, suppose in a vow, etc.; and once the right has been remitted, the obligation ceases.² These things will be explained in the treatise on Matrimony.

2. Ordinaries³ of places⁴ can dispense: first, in diocesan laws; second, in laws of a provincial and plenary Council, but only in particular cases and for a just cause; third, in laws which the Roman Pontiff has specifically passed for that particular territory, but only to the extent that, according to what will be said in the note, all Ordinaries can dispense in general laws of the Church (can. 82).

Note. Ordinaries, both of places and others, cannot dispense, not even in a particular case, either from general laws of the Church or in laws which the Roman Pontiff has specifically passed for that particular territory, unless either this power has been explicitly or implicitly granted to them, or recourse to the Holy See is difficult, and there is danger of grave harm in delay, and there is question of a dispensation which the Apostolic See is accustomed to grant (can. 81, 82). Furthermore, what all Ordinaries can do, first, in doubt of fact, second, as regards laws about feast days, days of fast and abstinence, and irregularities; what Ordinaries of places can do as regards laws about interstices and publications before the reception of Orders or Matrimony, and also about impediments of Matrimony, will be explained in its own place.

3. Pastors cannot dispense from either a general law or a particular law unless this power has expressly been granted to them (can. 83). Now from can. 1275, § 1 pastors have power, in individual cases and for a just cause, to dispense individual faithful and individual families subject to them in laws concerning the observance of feasts, fast, and abstinence. What pastors, confessors, or all priests can do concerning impediments of Matrimony is explained by can. 1044; this will be treated in the treatise on Matrimony.

4. Superiors (Guardians, Rectors, etc.) in an exempt clerical religion have the same power as pastors of dispensing from laws concerning the observance of feasts, fast, and abstinence, as regards professed members, novices, and others living day and night in a religious house for the sake of service, education, hospitality, or infirm health (can. 1245, § 3). With sufficient probability, habitual dwelling in the religious house is not required; it suffices that they have remained for one whole day, or have the intention of remaining there for one whole day.⁵

¹ Matt. 16:19.

² Cf. Suarez, De leg., bk. 2, c. 14, n. 11; Wernz, Ius Decr., I, n. 122; Prummer, Theol. Mor., I, nn. 164, 241.

³ In law, by the name Ordinary are understood, unless someone is expressly excepted, besides the Roman Pontiff, each for his own territory: the residential Bishop, an Abbot or Prelate nullius and their Vicar General, Administrator, Vicar and Prefect Apostolic; likewise those who, when the aforesaid are lacking, succeed meanwhile in governance by prescription of law or from approved constitutions; and, for their own subjects, major Superiors in exempt clerical religions (can. 198, § 1).

⁴ By the name Ordinary of the place or of places, however, come all those listed, except religious Superiors (can. 198, § 2).

⁵ Vermeersch-Creusen, Epitome Iur. Can., I, n. 582.

IV. Passive subject. The power of dispensing can be exercised directly only over subjects (can. 201, § 4). With this principle posited, the competent person can dispense:

1. Subjects by reason of domicile or quasi-domicile who are staying in the territory of the dispenser.

2. Vagi actually staying in the territory of the dispenser, because they are truly subjects (can. 94, § 2).

3. Himself, and subjects absent from the territory, unless something else is established from the nature of things or from law (can. 201, § 3).

4. Travelers staying in the territory of the dispenser, as regards laws concerning the observance of feasts, fast, and abstinence (can. 1245); likewise as regards non-reserved vows (can. 1313); likewise as regards impediments of Matrimony, but with a restriction, as will be noted in its own place; meanwhile cf. can. 1043 sq.

Which persons religious Superiors can dispense was said under III, 4.

I. Distinction of causes. The final or motive cause and the impulsive cause are distinguished. The final cause is generally said to be one which suffices by itself alone; the impulsive cause is one which alone does not suffice, but nevertheless helps toward obtaining the dispensation. Several impulsive causes sometimes constitute a sufficient cause. Special points concerning these, however, belong in the treatise on Matrimony.

II. Necessity of a just cause. 1. The legislator, his successor, and his superior dispense validly but illicitly without a just cause (can. 84, § 1). The reason for the former is that, just as law in coming to be depends on the will of the legislator, so also it depends on it in persisting. The reason for the latter is that a legislator dispensing without a just cause would present himself as an acceptor of persons and would give occasion to complaints, by exempting one without cause from a law while others were bound by it (St. Alphonsus, I, 178).

2. An inferior dispenses illicitly and invalidly without a just cause in the law of a superior (can. 84, § 1). The reason is that the legislator is not considered to have granted the faculty of dispensing unjustly.

Corollary I. A legislator who dispenses without a just cause of himself sins only venially, but an inferior sins gravely, unless smallness of matter excuses. This follows from the fact that disordered use of a power which someone possesses is of itself only lightly evil, but usurpation of a power which someone lacks, setting aside smallness of matter, is gravely illicit (St. Alphonsus, loc. cit.).

Corollary II. If a superior errs concerning the cause, the dispensation is valid if the cause in fact exists. If it certainly does not exist, of itself it is invalid, because one dispensing who can dispense without a just cause is not presumed to have wished this; but an inferior cannot even do that (St. Alphonsus, I, 180, 181; III, 25). I said of itself, because the legislator can establish that some dispensations are always valid, as he has established concerning dispensations from lesser impediments of Matrimony (can. 1054); namely, besides the fact that in lesser impediments of this sort some cause is easily had, such a disposition conduces to order and to tranquillity of souls. Therefore in these dispensations too at least the reason of the common good is found. Finally, if it is doubted whether the cause existed, one must stand for the validity of the act (St. Alphonsus, I, 182).

III. Diverse just causes. There are customarily numbered: piety, necessity, and utility. Indeed the dignity of the petitioner, or the kindness of the superior to be shown, can also be a sufficient cause (St. Alphonsus, I, 198). Of itself a graver cause is required according as the law is graver (can. 84, § 1), and according as the damage arising to the common good from the dispensation is graver. Of course, a cause which of itself excuses from the law is not required. Besides, observe:

1. In doubt about the sufficiency of the cause, a dispensation is granted validly and licitly (can. 84, § 2), and this even by an inferior. Likewise a dispensation is licitly sought in doubt about the sufficiency of the cause (can. 84, § 2; St. Alphonsus, I, 178).

2. When a just cause is present, the superior is held to dispense as follows:

a) "If the cause is only sufficient so that the dispensation is permitted, but not owed, the superior can licitly grant it and deny it, or grant it to one and deny it to another; because although a dispensation is expedient for the good of the subject, the observance of law is expedient for the common good."

b) "But if the cause is such that it makes the dispensation owed, namely for avoiding common damage or private damage of great moment, or for common utility, or great particular utility... then the superior is held to dispense; otherwise he would sin gravely or lightly according to the matter. Yet if the dispensation is denied, even unjustly, the subject cannot act against the law, unless such a cause urges that it withdraws him from the law, that is, excuses him from it. Wherefore, if a bishop unjustly denies a dispensation from the publications before Matrimony, the Matrimony can, when a grave cause urges, be contracted without them" (St. Alphonsus, I, 179).

What if the faculty of dispensing someone is conferred upon a person, and the motive cause has ceased before the dispensation has been granted or obtained?

Response. In the case, the dispensation granted would be invalid, because the superior of himself is not considered to confer the faculty of dispensing in the case in which the motive cause has ceased. I said of himself, because the Superior can proceed otherwise, and sometimes does proceed otherwise, as will be explained in the treatise on Matrimony (St. Alphonsus, VI, 132; cf. can. 41).

I. An act truly placed. This is clear from the nature of dispensation, which is a relaxation of law. But a relaxation of law cannot have place without an act of the Superior truly placed. Therefore a merely presumed act does not suffice; in other words, in order to act licitly, it is not enough that someone persuade himself: "If the superior knew, he would dispense," or: "If I sought a dispensation, I would obtain it." But sometimes it is licit to act from presumed license, as was explained in n. 144 (St. Alphonsus, I, 187).

A dispensation extorted by fear is valid, provided a just cause of dispensing exists and "it is not established that the superior dispensed without the mind of dispensing; for fear does not remove the voluntary, as force does. Moreover, the obtaining of such a dispensation is even licit if fear is justly struck into the prelate: namely, if the subject threatens that he will complain before the supreme superior, or that he will bring a just accusation concerning some crime of his" (St. Alphonsus, I, 184). These things, however, you should not extend to absolution from censures (can. 2238).

II. An act manifested, whether orally, or in writing or by rescript, or even by silence. This latter has place: first, when the Superior sees that the law is not being observed by the subject and is silent, although he can conveniently contradict; second, when he imposes or permits something which cannot licitly be done without dispensation. Concerning rescripts, by which dispensation is more often granted, we shall speak specifically in the appendix.

I. Dispensations which refer to lawsuits, or harm rights acquired by others, or are opposed to a law for the advantage of private persons, or finally were obtained for the acquisition of an ecclesiastical benefice, are to be interpreted strictly; likewise those which were granted for a particular case. All the rest are to be interpreted broadly (can. 85, 5°).

II. A dispensation ceases, considering can. 86:¹

¹ The cited chapter speaks only of a dispensation which has successive duration; but from the nature of the matter nearly the same things must be applied to every dispensation.

I. Through revocation of the superior made known to the dispensed person (cf. can. 71 and 60); namely:

1. The legislator and his superior can validly revoke a dispensation without cause; a delegate cannot do this without a just cause. The reason for the former is that, just as the legislator can relax a law without cause, so also he is able without cause to impose it again on the dispensed person. The reason for the latter is that the one delegating is not considered to have granted that faculty to the delegate. Nevertheless, even a delegate can revoke a dispensation with a just cause, because the one delegating is presumed to have conferred this power on him (St. Alphonsus, I, 197). You should except the case in which someone has been delegated to confer an individual dispensation; for once this has been conferred, his whole power is exhausted.

2. No one licitly revokes a dispensation without cause. Nevertheless, the legislator of himself sins only lightly; by accident he can sin gravely, suppose by reason of scandal, injury to charity, etc. A delegate sins gravely, unless smallness of matter excuses.

3. One who can revoke a dispensation sometimes cannot sustain it, namely "when the motive cause has totally ceased" (St. Alphonsus, I, 197).

Note. No one can validly revoke a dispensation given in a vow or oath, because an obligation of this sort can flow again only from the proper will of the dispensed person.

II. Through renunciation by the dispensed person accepted by the competent superior (cf. can. 72). Moreover, it is required:

1. That the dispensed person can renounce the dispensation. Furthermore, each person can renounce a dispensation granted only in his own favor; but not one which was conferred on the community (cf. can. 72; St. Alphonsus, I, 198).

2. That the dispensed person has truly renounced the dispensation, whether expressly or tacitly. Nevertheless, tacit renunciation will not easily be established. Thus, for example, non-use of a dispensation does not necessarily involve renunciation (St. Alphonsus, loc. cit.).

3. That the superior has accepted the renunciation, and thus binds the subject again, since a relaxation of law proceeding from a superior cannot cease except through the superior himself.

If there is question of dispensation in a vow or oath, acceptance by the superior is not required, since each person can impose anew upon himself the obligation of a vow or oath.

III. Through death or cessation in law of the superior, a dispensation ceases only when it was given with the clause "at our good pleasure" or another equivalent clause (cf. can. 73). Hence it does not cease if it was given "at the good pleasure of the Holy See" or "of the Bishop."

IV. Through cessation of the cause. 1. A dispensation which has successive duration, that is, whose effect can conveniently be divided, as obtains in a dispensation from the law of fasting, abstinence, etc., ceases by the certain and total cessation of the motive cause; but not by its doubtful or partial cessation, nor by the cessation of the impulsive cause (can. 86). Hence, for example, a sick person dispensed in the law of fasting is held to fast again after he has certainly recovered sufficiently.

2. An obtained dispensation which does not have successive duration, that is, whose effect cannot at all, or cannot conveniently, be divided, does not cease even if the cause on account of which it was granted has ceased. Hence one dispensed from the impediment of consanguinity can enter Matrimony with the blood relative, even if the cause has ceased before Matrimony. The reason is taken both from the nature of the matter and from the intention of the legislator, who in cases of this sort is presumed to have dispensed absolutely (cf. can. 86; St. Alphonsus, I, 196; VI, 1132). Nevertheless, it is disputed whether the same can be said if someone has been dispensed from a vow or oath in order to enter Matrimony: for example, someone is dispensed from a vow of chastity solely to legitimate offspring; but the offspring dies before Matrimony is entered. Does the dispensation subsist? It seems it must be denied, since Christ is not considered to have conferred on the Church the power of dispensing in a natural obligation except continuously dependently on its cause.

Finally note these words of St. Alphonsus: "When... a dispensation has been granted absolutely, it does not cease through one act; for example, you obtained a dispensation in a vow of chastity in order to contract Matrimony; when the spouse has died, the dispensation endures: unless it was granted for a special case, namely, to marry a virgin deflowered by you. And so concerning similar things" (St. Alphonsus, I, 196).

I. Notion. Dispensation of a vow is "the absolute condonation of the obligation of a vow, made in the name of God" (St. Alphonsus, III, 250). It is said made in the name of God, because the Church, in dispensing in vows, does not condone her own right, but God's; this she cannot do except in the name of God. The difference between irritation and dispensation consists especially in this, that one irritating acts in his own name, whereas one dispensing acts as taking the place of God and therefore as using vicarious power.

IV. Cessation of a reserved vow. First compare and apply what we have said about the cessation of a vow taken generally (n. 651). But as to the dispensation and commutation of a reserved vow, certain special things must be noted.

1. Dispensation. a) Bishops and those who have episcopal jurisdiction can dispense, but only insofar as it is necessary, "if access to the Pope is not easy and there is danger of grave harm in delay" (St. Alphonsus, cited place; VI, 987). I said insofar as it is necessary; "hence if it suffices that the vow be suspended, it cannot be dispensed. Likewise, if someone is dispensed from a vow of chastity with the restriction that he marry a certain woman to repair her honor, he cannot marry another" (St. Alphonsus, III, 258).

b) Regular confessors probably can do the same as Bishops, namely by a privilege which probably persists (cf. St. Alphonsus, III, 258; VI, 987, 1128), so that at least the Church supplies. Dispensation, however, can be granted even outside confession.

2. Commutation. Insofar as those mentioned under 1 can dispense in reserved vows, to that extent they can also commute them.

Warning. The people should be advised not to emit vows without consulting the confessor. But the confessor should not permit vows so easily, especially a vow of chastity, above all of perpetual chastity, because ecclesiastical authority is not accustomed to dispense in this vow, when it has been maturely emitted, unless a very great commutation has been attached. If that vow seems fitting, let a temporary vow be permitted the first time, or several times, from one feast of the Blessed Virgin to another, and so at last, after much and serious testing, a perpetual vow¹ (cf. St. Alphonsus, Praxis Confessarii, n. 93).

¹ Lehmkuhl, Theologia Moralis, I, n. 631.

V. Cessation. From can. 1319, a promissory oath, or the obligation induced by an oath of this kind, ceases:

1. If it is remitted by him for whose advantage the oath had been emitted (St. Thomas, II-II, q. 89, a. 9, ad 2; St. Alphonsus, III, 193). And that remission quite probably is made validly and licitly even when the oath was emitted principally in honor of God. "The reason is that, although the promise was made to God, it was nevertheless always made dependently on the will of the man to whom it was sworn, namely: if he does not remit the execution" (St. Alphonsus, cited place).

2. If the thing sworn is changed substantially; or, when the circumstances have changed, becomes either evil or altogether indifferent; or finally impedes a greater good. The former is drawn from the fact that the intention of the one swearing is not judged to have extended itself to matter substantially or notably changed, as was said concerning the intention of the one vowing (n. 653). The other things follow from this: that the thing sworn, if it becomes evil, or indifferent, or an impediment to a greater good, ceases to be matter apt for an oath (n. 688). Notice, however, that honorable matter promised and accepted in favor of a third party, even if perhaps less perfect in itself, nevertheless here and now remains more perfect, indeed is commanded, on account of the right acquired by the third party (n. 688).

3. If the final cause or the condition under which perhaps the oath was given is lacking. See what was said about a vow, n. 655.

4. By irritation, dispensation, or commutation, according to the norm of can. 1320. Moreover, from the cited canon:

a) The same persons who can irritate vows can irritate promissory oaths, and for the same reason (n. 662). They can irritate them - equally as vows - even if the irritation tends to the prejudice of others, even though these refuse to remit the obligation.

b) Likewise the same persons who can dispense or commute vows can dispense or commute promissory oaths, and for the same reason (n. 671); but if the dispensation of the oath tends to the prejudice of others, the Apostolic See alone can dispense or commute the oath on account of the necessity or utility of the Church (St. Alphonsus, III, 189, 192).

I. The Supreme Pontiff can dispense in all impediments of ecclesiastical law; indeed, since he himself is the legislator, he can validly dispense in them even without a cause. He cannot dispense in impediments of absolute divine law, whether natural or positive, for example in the impediment of impotence. Nevertheless, by vicarious power he can remove certain impediments of conditioned divine law, i.e., those arising from a human will, for example in vows, betrothals, and ratified marriage (St. Alphonsus VI, nn. 1118-1120).

II. In fact the Supreme Pontiff dispenses: 1° never in impediments concerning which it is doubted whether they are of divine law, namely lest he probably strike against a higher law. But the aforesaid impediments are: consanguinity in the direct line beyond the first degree (p. 645), and consanguinity in the first degree of the collateral line (p. 645). Moreover, the Church never dispenses in the impediment of the episcopate; scarcely ever in the impediments of the presbyterate, raptus, and public spouse-murder. In the others she dispenses more or less with difficulty according to the nature of the impediment, as will be explained later.

III. The Supreme Pontiff dispenses through different organs for different impediments, namely:

1. The Congregation of the Holy Office dispenses in the impediments of disparity of cult and mixed religion (canons 247, § 3; 249, § 1), and likewise in those things which perhaps concur with the aforesaid impediments.² Moreover, it alone takes cognizance of those matters which, whether directly or indirectly, in law or in fact, turn upon the Pauline privilege (canon 247, § 3).

2. The Congregation of the Discipline of the Sacraments dispenses, for the external forum, in public impediments which are not occult in fact; likewise in public impediments which are occult in fact but exposed to danger of manifestation; likewise, according to the circumstances, in public impediments which are occult in fact and not exposed to danger of manifestation.

3. The Sacred Penitentiary dispenses for the internal forum in occult impediments; likewise, according to the circumstances, in public impediments which are occult in fact and not exposed to danger of manifestation;³ likewise it convalidates a dispensation granted by the Sacred Congregation of the Discipline of the Sacraments, but invalidly, because of a concealed circumstance which had necessarily to be manifested and which still remains occult. In addition, the Sacred Penitentiary is also the competent tribunal for the faithful of the oriental rites.⁴ Finally, recourse can also be had to the Sacred Penitentiary in the case in which the dispensation exceeds the ordinary faculties of the Major Penitentiary; for he can obtain extraordinary power from the Holy See.⁵

4. The Sacred Congregation of Propaganda Fide procures dispensations for each forum for places subject to it (cf. canon 252), although even in these places recourse can be had to the Sacred Penitentiary for the internal forum.

5. The Sacred Congregation for the Oriental Church "enjoys all the faculties which the other Congregations possess for Churches of the Latin rite, while nevertheless the right of the Congregation of the Holy Office remains intact according to the norm of canon 247" (canon 257, § 4).

6. In the case in which a twofold impediment, one public and one occult, stands in the way of marriage, or an occult circumstance which must necessarily be manifested, a twofold supplication is to be drawn up: one for the public impediment to the Congregation of the Discipline of the Sacraments, the other to the Sacred Penitentiary, as will be explained later.

¹ Although an Ecumenical Council also enjoys the power of dispensing, no discussion is undertaken concerning it, because in fact it is not exercised by a Council.

² Sacred Congregation of the Consistory, January 21, 1910 (A.A.S. 1910, p. 56).

³ Cf. Archiv fur katholisches Kirchenrecht, 1922, p. 1 sq.

⁴ Sacred Congregation for the Oriental Church, June 26, 1930 (A.A.S. 1930, p. 394).

⁵ Aertnys-Damen, II, n. 787.

As to the question whether any precepts of the Natural Law may be dispensed or not, distinction must be made between two kinds of dispensation.

(a) A dispensation in the strict sense is granted when a legislator relaxes for a particular case the obligation of a law, although the subject-matter of the law still remains. Example: Titus is in the class of those who are bound by the law of fast, but he is exempted by competent authority from the obligation of the law.

(b) A dispensation in the wide sense is granted when the subject-matter of the law is taken away by the legislator himself or by another, so that it ceases to be comprehended under the law, although the obligation of the law still remains. Example: Balbus owed money to Caius, but, as Caius forgave him the debt, he is no longer in the class of those who are bound by law as debtors to Caius; he is not exempted, however, from the obligation of the general law that one must pay one’s debts.

Dispensation.—Human law has not the immutability of the Divine Law. Hence, not only may it be changed, but it may also be dispensed. Dispensation is a relaxation of the positive law made for a particular case by him who has the competent authority.

(a) It is a relaxation of the law—that is, it takes away the obligation of the law. Thus, it differs from permission, which is fulfillment of what is conditionally allowed by the law.

(b) Dispensation is made for a particular case—that is, it is granted when the provisions of the law, though beneficial to the community as a whole, are not suitable for a particular person or case. Thus, it differs, first, from abrogation and derogation, which remove the obligation of the whole or a part of the law for the entire community; and, secondly, from privilege, which is granted permanently as a private law.

(c) Dispensation is given by competent authority—that is, by the legislator or others who have the lawful power. Thus, it differs from epieikeia and private interpretation, which are made by those who have no power to dispense.

(d) Dispensation is a relaxation of the positive law, for since the Natural Law is immutable (see 305), no dispensation can be given from its requirements. Thus, dispensation differs from the official declaration or interpretation of the Natural or Divine Law (see 315).

Those who have the power to dispense from a law are the lawgiver and others duly authorized. (a) The lawgiver himself can dispense as follows: in his own laws, since he was able to make them; in the laws of his predecessors, since his authority is equal to theirs; in the laws of his inferiors, since they are his subordinates. (b) Others can dispense who have received from the law, from their superior, or from custom the necessary authority to dispense.

Those Who May Be Dispensed from a Law.—(a) Since dispensation is an act of jurisdiction, only those can be dispensed who are in some way subject to the dispenser. Since, however, the jurisdiction used in dispensing does not impose an obligation but grants a favor, it is held that he who has the power to dispense others may also dispense himself, if his power is not restricted. (b) Since dispensation is an act of authority, it may be exercised even in favor of one who is absent, or ignorant of the dispensation or unwilling to accept it. But, since as a rule favors should not be forced, the validity of a dispensation generally depends upon the consent of the one dispensed.

The power of dispensing has for its end the common good, and therefore it must be exercised: (a) faith fully, that is, not for reasons of private interest or friendship; (b) prudently, that is with knowledge of the case and with judgment that there are sufficient reasons for dispensation.

In order that the reason for a dispensation be sufficient, it is not required that it be so grave as to constitute a physical or moral impossibility of keeping the law, since the obligation of the law ceases in the face of impossibility (see 317, 487), without the need of dispensation. Hence, lesser reasons suffice for dispensation.

A dispensation must be granted whenever the law itself or justice requires it. The following cases are usually given: (a) when there exists a reason that requires, according to law, that a dispensation be granted; (b) when the common good, or the spiritual good of an individual, or his protection from some considerable evil, demands the concession of a dispensation.

A dispensation may be either granted or denied, when the case does not demand it and the superior after careful investigation is not certain whether the reason is sufficient or insufficient; otherwise, a greater responsibility would rest on the superior than the law can be thought to impose—viz., that of attaining certainty where it cannot easily be had.

He who dispenses without a sufficient reason is guilty of the sin of favoritism, and is responsible for the discontent and quarrels that result. He is guilty of grave sin thus: (a) if serious scandal or other inconvenience is caused, even when the dispenser is the lawgiver himself; (b) if the law obliges under grave sin and the dispensation is not granted by the lawgiver, but by an inferior who usurps the right to dispense.

The subject of dispensation is guilty of sin: (a) if he asks a dispensation when he knows for certain that there is no sufficient reason for it; (b) if, having been denied a dispensation, even though unjustly, he acts against the law; or if he knowingly makes use of an invalid or expired dispensation.

Sufficient reasons for a dispensation can be reduced to two classes: (a) private welfare (e.g., the difficulty of the law for the petitioner, a notable benefit he will receive through the dispensation, etc.); (b) public welfare (e.g., the benefits that are secured to the community, or the evils that are avoided through the dispensation).

Dispensation differs from privilege: (a) because the former from its nature is temporary, the latter permanent; (b) because the former is always contrary to the law, whereas the latter may be only beyond the law.

The Pope can dispense as follows: (a) in all ecclesiastical laws he can grant a dispensation strictly so-called (Canon 81); (b) in divine laws in which the obligation depends on an act of the human will (such as the laws of oaths, vows, contracts, etc.), he can grant a dispensation improperly so-called (see above, 313 sqq., 357), In other divine laws, he can interpret or declare, but he cannot dispense.

Priests that assist at marriages can dispense from impediments as provided in Canons 1043-1045.

The manner of seeking dispensations is as follows: (a) for the usual dispensations (e.g., those from fast, abstinence, observance of feasts, and the vows that may be dispensed by confessors) no particular procedure is required; (b) for the dispensation that must be sought from the Holy See, if the matter belongs to the internal forum, the petition is sent to the Sacred Penitentiary through the Confessor or Ordinary; if it belongs to the external forum, it is sent to the competent Congregation through the parish priest or Ordinary. Dispensation from public marriage impediments must be sent through the Ordinary.

A dispensation is invalidated as follows: (a) through defect of the petition, if it contains a substantial error, and the dispensation is given on condition of substantial truth (Canon 40); (b) through defect of the petitioner, if he is incapable of receiving the favor asked (Canon 46); (c) through defect of the dispensation, as when the requisite signature or seal is omitted; (d) through defect of the dispenser, as when he lacks jurisdiction, or grants without a just and proportionate reason a dispensation for which he has only delegated power (Canon 84).

If a dispensation is unjustly refused, note the following: (a) ordinarily, the subject has not the right to hold himself free from the law; (b) in extraordinary circumstances, when the law ceases, or no longer obliges (see 487 sqq.), the subject is free.

A dispensation itself should be interpreted strictly in the following cases: (a) when the dispensation has an odious side, as when it is contrary to law and advantageous to private interest or is detrimental to a third party; (b) when wide interpretation is dangerous, as favoring injustice, promoting ambition, etc. (Canons 50, 85).

A dispensation ceases intrinsically in the following ways: (a) by the lapse of the period of time for which it was granted; (b) by the entire and certain cessation of the motive of the dispensation, if the effect of the dispensation is divisible—that is, if the motive for dispensation has to be existent each time that the law calls for an act or omission (Canon 86). Example: If one is dispensed from the fast or Office on account of ill-health, and later recovers, the dispensation ceases.

A dispensation does not cease on account of the person dispensed in the following cases:

(a) It does not cease when he leaves the territory of the dispenser, if the dispensation was personal. Example: A person dispensed from the general law of fast by indult granted to his diocese cannot use that dispensation outside the diocese; but if he has a personal dispensation, he is dispensed everywhere.

(b) It does not cease when the grantee fails to use it, or acts contrary to it, if there is no renunciation on his part. Examples: Sempronius has been dispensed from the fast of Lent, but he fasts on some days. This non-use of the dispensation on some days does not renew the obligation. Balbus has received a dispensation to marry Sempronia, but he changes his mind and marries Claudia. This act contrary to the dispensation does not take away its force, and, if Claudia dies, he will be free to marry Sempronia.

What is dispensation? - Dispensation is the relaxation of law in a particular case on account of a special cause. For it happens "that some precept, which is for the advantage of the multitude in the majority of cases, is not fitting for this person or in this case; or through this something better would be impeded, or even some evil would be introduced." S. Th. 1. 2. q. 96, a. 1. It obtains its effect as soon as it has been granted. But in order that someone may use it licitly, it is necessary that it be manifested to him, lest by presuming it he expose himself to danger of violating the law, if perhaps it has not been granted.

It differs from a declaration, by which it is declared that this or that case is not comprehended in the law. It differs from license, which has place when the law does not prohibit a thing absolutely, but only conditionally, namely without the consent and approbation of the superior. Wherefore the bond of law is not relaxed through license, but merely the condition is placed, and when it has been placed, the law no longer has place. Then the law is rather observed, for the law in reality commands that license be sought, if such or such a thing is done, namely that the consent of the superior be sought. It differs from privilege, which can be both against law and also beyond law, and, when it is against law, simply derogates from it, and therefore not only for a case, or for some cases in particular, but for all. It differs also from invalidation, abrogation, and cessation of law, because in these the law is extinguished for all. S. Th. 2. 2. q. 147, a. 4.

Note: Power of dispensing given generally falls back into a privilege beyond law, and is favorable, and therefore has a broad interpretation, but not an extensive one. Generally, for when given particularly it is of strict interpretation. For general power is necessary for the common good and looks to it; not so particular power, which is rather a certain begun dispensation. But dispensation, because it derogates from law, is odious, and is of strict interpretation; unless it is owed, or was granted motu proprio, or to a community, or for the common good, or inserted in the Body of Law. Strict, but not restrictive, unless perhaps the right of a third party is injured. But it must never be interpreted in such a way that it becomes useless or burdensome to him to whom it was granted. R. 61 de R. I. in 6. L. 187, 192, 194, 195.

What things are required for dispensation? - It is necessary that he who gives the dispensation give it knowingly and willingly, but one extorted by fear is valid; and that he to whom it is given, regularly speaking, accept it. For a benefit is not given to one unwilling. L. 1. 9 de Donat. But we must understand as unwilling also him who does not consent. L. 8 § Invitus de Procur. Hence, if another has sought an ordinary dispensation of an impediment, and the spouses, ignorant of this, contract marriage, that dispensation does not profit them. In the case, in itself, it suffices that one accept the dispensation, since a granted dispensation necessarily affects both. But it can be given and accepted even tacitly, and by the fact itself. Regularly speaking, for absolutely one can be dispensed even while ignorant and unwilling. Since it belongs to the legislator to bind and to loose. L. 184, 187; Sanch., de Matr., l. 3, c. 36, n. 3.

On the part of the one granting it, a just cause is required; otherwise the superior would not be a faithful guardian of the law, but an imprudent dissipator. Moreover, natural right dictates that a part ought to be conformed to its whole, unless a just cause excuses. Without a just cause, a dispensation given by the legislator himself is indeed valid, although illicit; but by an inferior, or by a delegate, both illicit and invalid. For the legislator has as his own the power of binding and loosing, to which that just cause is extrinsic; but he is not considered to communicate it to an inferior or delegate except that he use it reasonably. Yet both the legislator dispensing without cause sins lightly, and the dispensed person seeking it; but he who, the law having been removed by dispensation, uses it, does not sin even lightly. For neither the former in giving nor the latter in accepting do injury to anyone, although they injure legal justice. But a delegate dispensing without a just cause in a grave matter sins gravely, since he gravely abuses the power conceded to him. In a grave matter, for in a light matter it does not exceed venial fault. But on the part of the petitioner it is required, both for liceity and for validity, that a true cause be present, since the superior does not dispense unless the petitions rest upon truth. Trent, s. 25, c. 18 de R.; S. Th. 1. 2. q. 97, a. 4; 2. 2. q. 88, a. 10. Moreover, a cause probably just suffices, both for seeking and for granting a dispensation, validly and licitly, lest the matter be too anxious and liable to scruples. Nor indeed is it necessary that it be as great as would suffice of itself for excusing; otherwise the power of dispensing in the superior would become altogether useless. "A cause is the dignity of the petitioner or of the superior, so that he may show himself benign, and also common or private utility and similar things. But in dispensations of impediments for marriages, the payment of money in aid of the Church suffices as a cause, as is the practice." L. 195. Matrimonial dispensations of lesser degree are now granted from reasonable causes approved by the Holy See, and are subject to no challenge. Ord. serv. in Rom. Cur., Norm. pecul., c. 7, a. 3, n. 21. L. 178, 181, 182, 186, 192, 195; l. 3, n. 251; l. 7, n. 353; S. Th. 1. 2. q. 96, a. 6; q. 97, a. 4; 2. 2. q. 63, a. 2, ad 2; Wirceburg., c. 5, a. 2; E. M.

When a just cause exists, is the superior held to dispense? - R. Negatively: if the cause is only sufficient, so that dispensation is permitted; and the superior can either give it or deny it, or give it to one and deny it to another, for it is a mere grace, and therefore free. Moreover, just as dispensation profits the subject, so denial of the same profits the common good.

R. Affirmatively, if the cause renders the dispensation necessary for avoiding common damage, or private damage of great moment, or for procuring common utility, or great private utility; otherwise he would sin gravely or lightly according to the matter; for this is why the power was given to him. "Nevertheless, when dispensation has been denied, even unjustly, the subject cannot act against the law; unless such a case urges as to draw it out from the law. Wherefore if a Bishop unjustly denies dispensation from publications before marriage, from an urgent grave cause it can be contracted without them." L. 179; S. Th. 1. 2. q. 97, a. 4.

In doubt whether a case needs dispensation, is it necessary? - R. Negatively in positive doubt; for the extension of the law to that case remains uncertain. - R. Affirmatively in negative doubt concerning the existence and sufficiency of an excusing cause; for the certain law possesses. But negatively in negative doubt concerning the necessity of dispensation; for then, on the contrary, liberty possesses. L. 97, 180, 192, 195; l. 3, n. 325; l. 4, n. 154; H. A. tr. 2, n. 51.

Is it licit to use a tacit, presumed, interpretative dispensation?

R. To the first: Affirmatively, for the will of dispensing is truly present in the superior; since a tacit dispensation is had when the superior wills something with which dispensation is connected, or when, knowing and able to contradict, he does not contradict.

R. To the second: Affirmatively, for then also the will of dispensing is truly present in the superior, as is reasonably presumed from the hypothesis; for example, if, knowing that you are excommunicated, the prelate confers a benefice upon you. This presumed dispensation, presumed concerning the present, falls back into tacit dispensation.

R. To the third: Negatively, for there is not present, nor does any reason persuade that there is present in the superior, the will of dispensing, but only a reason is present that such a will would be present in the superior if he knew the matter. Yet in matters of lesser moment one could then more easily use epikeia. Nor does it matter that a presumed license concerning the future is valid; for for actions which require for their validity a positive act of the will, an interpretative voluntary is not sufficient, as happens in dispensation, since relaxation of law requires the positive consent of the superior. On the contrary, for actions for which it merely suffices that the superior not be unwilling, as in the case of license to be sought, an interpretative voluntary suffices. L. 187; l. 3, n. 288; Struggl, tr. 1, q. 1, n. 21; Sanch., de Matr., l. 3, d. 35, n. 16, 24.

Who can dispense, and with whom? - R. To the first: Since dispensation is the relaxation of law, it is clear that it is an act of jurisdiction. Wherefore only he can dispense by ordinary power who made the law, or his superior, or successor; but by delegated power, he who has received from these the power of dispensing. The reason is that the legislator has as much power for loosing as for binding; he has equal power with his predecessors; finally he has the power of inferiors subordinated to himself. But an inferior has no power over the law of his superior.

The legislator cannot dispense even in his own law, if the law passes into a contract. For pacts are to be observed by all. But an inferior can dispense in the law even of a superior, if dispensation is generally permitted in the law, e.g., if it is said "until he is dispensed," if custom has prescribed it, if it is commonly admitted by theologians. Hence validly and licitly an inferior, by ordinary power, dispenses from a just cause in the law of a superior: 1. Concerning light things, i.e., those which do not oblige under mortal sin, even if recourse to the superior is easy. 2. In cases which occur frequently, and in doubtful cases. 3. When there is urgent necessity, recourse to the superior is difficult, and there is danger in delay. 4. Man cannot dispense himself from divine and natural law on account of his own preservation.

By ordinary power, delegated. Ordinary power is that which belongs to someone by force of his dignity, or of his office; delegated power, that which belongs by concession of him who has ordinary power. If delegated power is granted by law, it is equated with ordinary power, as being annexed to office and dignity; but if it is only from a superior, it is purely delegated. - L. 90, 190-192; l. 6, n. 902.

R. To the second: Dispensation can be made only with those who are subject to the jurisdiction of the one dispensing; for example, with inhabitants having domicile, whether they are in their own territory or outside it, L. l. 7, n. 81; with resident strangers, as long as they have quasi-domicile in the territory, S. O., 22 Nov. 1865, A. S. S., vol. 2, p. 671, who, once a dispensation has been obtained, can use it even when they go abroad, Suarez, l. 8, c. 26, n. 12; with wanderers, as long as they are staying in the territory, Bened. XIV, Not. 33, n. 10; indeed even with travelers, since travelers also by access to the local superior sufficiently become subjects while they are in foreign territory, and since this dispensation is personal, it adheres to the person, and therefore follows the traveler even outside the territory or diocese of the one dispensing, cf. 298; finally with themselves, although they have only delegated power, but general. The reason is "because it is purely voluntary jurisdiction, which can be exercised even toward oneself. Hence one can well dispense oneself in vows, oath, fast, etc." L. 183. General, because no one is excepted in a general faculty, in whatever way it is had. But it is otherwise if someone has been delegated only for particular cases. - L. 158, 183; l. 3, n. 262; E. M.

Can the Pope dispense in divine law? - Those things which are prohibited by divine law are of a threefold class. For there are objects evil in themselves, and by reason of themselves. And these can never become not evil and licit. There are objects evil in themselves, but by reason of danger, or by reason not of the very being of order but of the perfection of this order. And these, when the danger has been removed and on account of peculiar circumstances, can become not evil and licit. Finally, there are objects evil in themselves, but on account of another's right. When this right ceases, from the fact that someone has power over that right, that which otherwise is illicit can be rendered licit.

Therefore the Pope can dispense from a just cause in those things in which divine right arises from human will, as in vows and in oaths. For it is certain that in these he acts in the place of God. Hence it is that dispensation in a vow or oath, without a just cause, even when made by the Pope, is invalid. In the rest it is disputed whether he can truly dispense from a most grave cause, or only declare that divine right then ceases. In practice it matters little. In the rest, namely in those in which he can dispense; for he cannot dispense in all, as is clear from what was set down at the beginning, but only in some, e.g., in betrothals, in ratified marriage, etc. But always except laws which pertain to the essential constitution of the Church, laws concerning the forms and matters of the sacraments, concerning the offering of sacrifice, etc. Nevertheless in doubtful matters the Supreme Pontiff can infallibly declare divine and natural right. Therefore that phrase, "Whatever you shall loose," etc., is not unlimited, but must be restricted to those things which pertain to the spiritual good of the Church and of souls. Cf. 180. L. 180, 188, 189; S. Th. 1. 2. q. 100, a. 8; 2. 2. q. 88, a. 12; q. 89, a. 9, ad 3; S. q. 65, a. 1, 2, 4; q. 67, a. 3; Quodl. 4, 13; Struggl, q. 4, n. 11; E. M.

In what laws can Bishops dispense? - By ordinary right, they can dispense in their own dioceses from laws enacted in provincial synods, since it has been so introduced by custom, C. Cum contingat 13 de For. comp., provided they are not specially reserved to the Council. Likewise they can dispense in all episcopal and synodal statutes, and indeed independently of chapter and clergy. Nor is it an obstacle that the provincial Council, or diocesan synod, was approved by the Apostolic See. For that approbation is not specific and absolute, such that the individual things are rigidly examined, known, and approved motu proprio and with certain knowledge. But it is ordinary, common, and conditional, if canonically, etc.; and this indeed gives no new right, for only the decrees of the Council, legitimately established and which of themselves have the force of obliging, are confirmed; and the review of them made by the S. C. C. is only a condition without which they cannot be promulgated. Bened. XIV, de Syn., l. 13, c. 5. Moreover Bishops dispense by their own right in Pontifical laws also enacted for their diocese, for they are held as diocesan laws. But from episcopal and synodal statutes the chapter can also dispense, when the See is vacant, since it succeeds into the place of the Bishop. The same cannot be done by the Vicar General of the Bishop, without special delegation, since he does not have this from his own ordinary right; since in a general commission the faculty of dispensing is not understood.

Bishops cannot, however, dispense in a synodal taxative law of the congrua for those to be ordained. The reason is that Innocent XII, B. Speculatores, established that "the benefice be of such income that, for suitable support of life, whether according to the synodal assessment, or, if it is lacking, according to the custom of the region for those to be promoted to sacred orders, after burdens have been deducted, it suffice by itself, and that it be peacefully possessed by the one to be ordained." Wherefore the Pontiff implicitly takes away from the Bishop the faculty of dispensing in this matter, or rather of arbitrating, or of making the calculation in his own way. But because every power, and especially spiritual power, is given not for destruction but for edification, from the very nature of ecclesiastical laws, and from the presumed will of the Roman Pontiff, as well as from custom, Bishops dispense also in common laws: 1. when the matter is light; 2. as regards doubtful cases; 3. as regards cases which often occur, as in most vows, the divine office, observance of feasts, abstinence, fasting, with private persons and in particular cases. - Likewise they dispense in other Pontifical laws also, whenever recourse to the Supreme Pontiff is not easy, and there is grave danger in delay, e.g., in impediments of marriage, in irregularities, in vows reserved, etc. But they can dispense in Pontifical laws if in the law itself it is said that dispensation can be made from it; for if these words signify anything, and permit dispensation, they certainly permit it to inferiors, namely to Bishops. - Matrimonial dispensations, however, are excepted, cf. Trent, s. 24, c. 5 de R. M., from the practice and Style of the Curia, and also from the Constitution of Pius X, Sapienti consilio, and Ord. serv. in Rom. Cur., or if by law the Ordinaries themselves were the ones to dispense, as is seen in the case of a Bishop ordaining a bigamist, C. Super eo 2 de Big. L. 180, 190, 191, 192; App. 2, n. 54 ff.; l. 6, n. 613, 902; H. A. tr. 2, c. 6, n. 57; De Iustis, de Dispensat. Matrimon., l. 2, c. 2, n. 45 ff.

Note: A Bishop is said in the preceding cases to dispense by ordinary right, because such a faculty belongs to them by force of their proper office, to which it is perpetually annexed, and therefore they can well delegate it to another. - It must be furnished gratis by whomever the dispensation pertains to. Trent, s. 25, c. 18 de R. In doubtful cases the Bishop can declare that the case does not need dispensation, or dispense for caution. - Concerning dispensation for caution, Benedict XIV notes these things, Not. 101: "Diana wisely remarks that dispensations of this sort are granted by the Sacred Penitentiary or Datary not as necessary, but so that the faithful may be rescued from every scruple and anxiety of soul." Such a dispensation will then, regularly speaking, not be necessary; but it is very useful; for if perhaps afterward the truth appears, nevertheless one truly remains dispensed. L. 190, 192, 193; l. 6, n. 613; de Priv. 57, 58; Struggl, q. 4, n. 12; Sanch., l. 8, d. 6, n. 18. Besides these ordinary faculties, Bishops often have many other extraordinary faculties for three years, for five years, etc.; these delegated faculties they can also regularly subdelegate to others. Cf. 254.

Can pastors dispense in some things? - By ordinary right they can, by reason of custom, dispense with subjects, only for particular cases, in fasts, in abstinence, in works prohibited on a feast day, and in other similar matters which frequently occur and need prompt dispensation. By reason of custom, for they do not have jurisdiction in the external forum. By ordinary right, since this faculty has been attributed to them by reason of office, as being exercised in cases which frequently occur. Indeed they can even dispense in graver matters, in which Bishops can dispense, when a most grave necessity stands, if the Bishop cannot be approached and there is danger in delay. L. 190, 192; l. 3, n. 288; l. 6, n. 613; H. A. 59.

Can regulars dispense in some things? "Regular prelates have the power of dispensing (in particular cases) with their subjects in ecclesiastical precepts, as Bishops can with their diocesans. For they themselves have quasi-episcopal jurisdiction, as the doctors commonly teach.... And the same holds as regards the rules of religion." L. de Privil., n. 106, 108. "Confessors of the Mendicants, and other regulars communicating with them, have the power of invalidating, remitting, and dispensing oaths and vows. They can besides dispense with spouses as regards the impediment to petitioning the debt, on account of incest committed with a blood relative of the spouse. But it must be noted here that the confessor must obtain special license in this matter, and at least from the lower superior of his monastery. Moreover Mendicant confessors can dispense with spouses in a vow of chastity, elicited before marriage, for petitioning the debt, just as also in a vow elicited after marriage. They themselves can dispense in all vows in which Bishops can, by ordinary right, dispense with their subjects." L. ib. 109; l. 1, n. 194; l. 3, n. 257, 258; l. 4, n. 63, 64; l. 6, n. 987, 1076, 1127, 1128; La-Croix, l. 3, p. 2, n. 1310; Struggl, q. 4, n. 13.

Whether dispensation can be given in the external forum, or in the internal forum? - Dispensation can be given in the external forum, since if the bond of law is constituted in the external forum, the loosing of that bond can also be given in the same forum. And thus dispensation from abstinence, which is given by indult during the time of Lent, is given in the external forum. - It can also be given in the internal sacramental forum; for in the sacramental forum all those things which pertain to spiritual salvation can well be treated. It can likewise be given in the internal forum of conscience, although not sacramental; for as sins properly pertain to the sacramental forum, so to the forum of conscience pertain all things which look to the spiritual salvation of each one.

But this essential difference intervenes between the sacramental internal forum and the merely internal forum of conscience: that in the former matters are treated among those present; in the latter matters can also be handled among the absent. The forum of penance is also distinguished; but this, according to some, is the sacramental forum; according to others, it is the forum of conscience. Wherefore what is committed to someone in the forum of penance, apart from absolution of sins, e.g., dispensation from fast, abstinence, etc., can also be expedited outside the sacrament of penance, although the mandate is directed to a priest confessor. - Suarez, l. 8, c. 6, n. 15, 16; Salm., tr. 18, c. 1, n. 33; Schmalz., l. 2, t. 2, n. 2; L. 194; S. Th. 1. 2. q. 97, a. 4.

When does dispensation cease? - Dispensation ceases: 1. By revocation; for by it the bond of law is restored. Wherefore a revocation made by the legislator, even without cause, is valid. Made by a delegate, even from a just cause, it is not valid; for once the dispensation has been given, he has completed the delegation accepted. Made by an inferior prelate, when he granted it by ordinary right, if from a just cause, it is valid; otherwise, however, if without a just cause, because he cannot restore the law of a superior. For the Superior is not considered to have granted a faculty for such revocation. Of law; for if the obligation depends not on law, but on one's own will, as in vows, it cannot be restored without this will. A prelate revoking a dispensation without just cause sins in itself only venially. L. 197. 2.

By renunciation, which is valid immediately in those things which have force from one's own will, in vows, oaths, etc. But in those things which obtain effect from law, e.g., in impediments of marriage, in the canonical hours, etc., it is valid when it has been accepted by the superior, who can restore the bond of law. - L. 198. 3. When the motivating cause totally ceases, if the dispensation has a successive course and was not given absolutely, as, e.g., dispensation from the law of abstinence on account of infirmity.

But otherwise, if the dispensation was given absolutely, although, with attention to the matter, it can have a successive course; or if it was perfected by one act, e.g., if someone was dispensed from irregularity on account of the poverty of parents, or on account of uprightness of morals, or on account of scarcity of ministers. Wherefore one who was absolutely dispensed from a vow of chastity, when the spouse has died, can marry another; but if the dispensation was granted for a special case, he needs a new dispensation. Absolutely; if the cause is judged perpetual, then the dispensation is considered to have been given absolutely, even if afterward by accident the cause ceases. But otherwise if the cause is judged to last only for a time. 4.

If some commutation of burden was joined to the dispensation, then also, when the cause ceases, the dispensation does not cease. - Likewise dispensation does not cease: 1. By non-use, or contrary use, whence one will always be able to use it afterward, since these cannot restore the bond of law. 2. By leaving the territory of the one dispensing, because what has legitimately been done ought not to be retracted, even if afterward that case occurs from which a beginning could not have been had. 3. By the death of the one dispensing, whoever he may be, whether a superior or inferior prelate; since dispensation is a grace made, and a grace made does not expire by the death of the one granting it, or by his removal from office. C. Si super 9 de Off. et pot. iud. del. in 6. The same holds concerning licenses granted. - R. 73 de R. I. in 6; L. 195-198.

As regards other ecclesiastical laws. - Bishops can dispense for particular cases and persons, and for a brief time, as has already been said at n. 243. For particular cases and persons; for by common law Bishops do not have the faculty of dispensing with the whole community. But whether a Bishop can dispense in canonical statutes not expressly reserved, St. Liguori judged that the negative opinion must altogether be held, l. 1, n. 191. Yet the same Holy Doctor, in the work H. A., tr. 2, c. 6, n. 58, says that the affirmative opinion is sufficiently probable. And in the Appendix de Privil., 71, he has these words: "Probably the Bishop can dispense in all things in which dispensation is not specially reserved to the Pontiff." And it can be admitted, if the matter is of lesser moment and frequently recurs. Cf. L. de Priv., n. 53. - S. Th. 1. 2. q. 97, a. 4, ad 3; Gennari, Cons., vol. 1, c. 97, n. 6; cf. here n. 1626.

Resolves: A dispensation is invalid whenever an error has crept into the petition concerning the motivating cause, or concerning the very object of the dispensation, concerning its quality or quantity, whether this has happened by fault of the petitioner or of another, or even from mere inadvertence; e.g., if you place in the petition the impediment of affinity in place of the impediment of consanguinity, or the third degree for the second; otherwise, however, if you place the second for the third, because a lesser grace is contained in a greater one of the same kind; if you place one impediment of consanguinity in place of double or triple consanguinity; or only an impediment of consanguinity without another of affinity, etc. C. Si is 2 de Fil. Presb.; L. 185, 202; l. 6, n. 1131. A dispensation is valid if the error has crept into the Rescript of the superior, e.g., by carelessness of the secretary, because it supervenes upon the concession already made, and the superior thus grants: Let it be done as is petitioned. A dispensation granted from a just cause to some dishonest person, whom the superior considered honest, is valid, even if, had the dishonesty been known, he would not have dispensed, because uprightness is not reputed a motivating cause, but merely an impulsive one. Except unless someone was moved on account of uprightness. - It is also valid if a cause false at the time of petition becomes true at the time of concession, whether this is made immediately by the superior himself or mediately through a delegate; but not vice versa. - A dispensation is likewise valid if, while the truth of the motivating cause and of other essential things stands, another truth was kept silent, or a falsehood was set forth; nevertheless the petitioner, if he proceeded in bad faith, can for his fault and fraud be deprived of the grace of dispensation, or otherwise be punished according to the gravity of the fault. C. 20 de Rescript. - Likewise it is valid even if it is granted in bad faith, as when the dispenser thinks that a cause is not present which in reality is present; for validity does not depend on subjective knowledge, but on the objective existence of the cause. - Suarez, de voto, l. 6, c. 27, n. 13; Laymann, l. 1, tr. 4, c. 22, n. 21.

Generally speaking, a dispensation granted by a superior is valid, although it had already been denied by an inferior. Indeed it is also probably valid if, denied by a superior, it is granted by an inferior and even by a delegate; because the power of the inferior is not taken away or restricted by the denial of the superior, unless the latter expressly restricts it, or this is prohibited by some law. A fortiori a dispensation denied by one superior and given by his successor ignorant of the denial is valid. The reason is that the successor has the same power as the predecessor, nor is he ruled by the judgment and will of that predecessor. Cf. vol. 2, n. 1041. Consequently a dispensation denied by one Superior and granted by another of the same authority is valid. Nevertheless Rescripts obtained against the Decree of Innocent XII, Ut occurratur, 4 June 1692, are invalid, namely if someone again proposes to another Sacred Roman Congregation petitions in a matter of grace or justice which had been offered to and rejected by one of the Sacred Roman Congregations, this circumstance having been kept silent. What is said of dispensation is to be said of any other grace.

And "although, the cumulation of rights in the Offices of the Holy See having been abrogated, its own seat has been constituted for each business; nevertheless, because in peculiar cases there can be place for doubt or error, the ancient law remains firm, by which, once a supplicatory petition has been delivered to and accepted by some Office for obtaining a matter whether pertaining to grace or to justice, it is permitted to no one, for any cause, to approach another Office on his own initiative for the same end; but there is need of the consent of the Office itself with which the matter was begun, or of a decree of the Consistorial Congregation by which permission is given for transmitting the business. Any concession proceeding from another Office, against the aforementioned law, is void." A dispensation first denied, and afterward granted by the same superior, forgetful of the matter, is also valid. For in no way is it consonant with reason that the superior should wish to deny a dispensation for this reason alone, that he denied it at another time. For, if a just cause is really present, it is more fitting to temper the prior rigor than to confirm it. But no mention of the denial is to be made; for this is commanded by no law. And if a double faculty has been granted to someone, e.g., of absolving from reserved cases and dispensing in irregularities, when one of them, even the greater, has been taken away, the other is not therefore taken away, but remains. L. l. 4, n. 50; Lugo, de Fide, d. 23, n. 130.

What things are to be furnished by a delegate in the execution of Rescripts? - The mandate, and therefore jurisdiction, is not yet had in the delegate until the autograph letters of the mandate have come to him. C. Super eo 12 de Appell.; Sanch., de Matr., l. 8, d. 29, n. 10. Nevertheless it seems to suffice if the officials of the curia have received and read letters sent to the vicar general, and have announced them to him; since the officials pertain to the same office. Whether it also suffices if it has been announced by telegraph that the Rescript was expedited? By Circular Letter of the Secretary of State, 10 Dec. 1891, it was prohibited to admit supplications for graces by telegraph. And from the Holy Office and from the Sacred Penitentiary, matrimonial dispensations have been declared invalid unless the telegraphic notice was transmitted officially, by authority of the Holy See.

But the delegate must investigate whether the things set forth are true. If the investigation is omitted, and in the mandate the clause is had: if the petitions rest upon truth, the dispensation is valid, since this clause does not introduce a new substantial form, but is tacitly present. But if the clause is had: if you shall find the petitions to rest upon truth, then the first opinion still holds that it is valid, provided they are in reality true; since the dispensation is given on account of the motivating cause, not on account of knowledge of it. Nor indeed is a new substantial form introduced by this clause; for it too is tacitly present. Navarr., c. 27, n. 37, calls this opinion very well received. But the second, more common opinion, and the one to be held, affirms that by that clause a new substantial form is introduced, and therefore, if investigation has been omitted, the dispensation is void. L. l. 6, n. 1131; C. Benedict XIV, Ad Apostolicae servitutis, 10 Mar. 1742. But the inquiry need not necessarily be made in the order of law; a summary and extrajudicial inquiry in the external forum suffices. And in the internal forum faith is to be given to the petitioner. Trent, s. 22, c. 5 de R.; Sanch., de Matr., l. 3, d. 33, n. 4; l. 8, d. 34, n. 21 ff.; De Iustis, l. 1, c. 6, n. 249; Benedict XIV, Not. 87, n. 34.

The delegate must, in itself, discharge the mandate only for that case which is expressed in the mandate, with the form of the Rescript and its essential conditions observed. C. 22 de Rescript.; C. 13 de Off. et pot. iud. deleg.; C. Susceptum 6 de Rescr. in 6; C. Cui 27 de Praeb. in 6. The Decree of execution for the external forum is to be issued in writing, but if it is made orally it is valid. Execution cannot be denied if the truth of the Rescript is evident. But if the concession of the grace is remitted to the discretion of the executor, he cannot licitly deny it without a just cause. The executor of a Rescript of the Supreme Pontiff can execute it by himself, or even through another, unless this is prohibited either expressly or implicitly, because the industry of the person appears to have been chosen. In which case, he will be able to substitute another for himself only as regards examining the truth of the Rescript and taking other necessary information. C. 43 de Off. et pot. iud. deleg.; C. 62 de Appell.; S. O., 14 Dec. 1898. - A Rescript can be committed to execution by the successor in office of the executor, unless the industry of the person appears to have been chosen in him. S. O., 28 Aug. 1885; 20 Feb. 1888. An executor given by the Pope over a grace made, after the Pope has died, can execute the grace even while the matter is entire. C. 9 de Off. et pot. iud. deleg. in 6.

Praxis Apostol. Dispens.; L. 202 ff.; Alois. Trombetta, Praxeos Regulae circa contr. rer. eccl., c. 6; E. M. If execution is committed to the Ordinary of the place, it can be made by the Bishop, or by his Official or Vicar General in spiritual matters; or even, if it has not yet been made, by the Administrator or by the Capitular Vicar. - Matrimonial dispensations committed to the Ordinary of the petitioners are to be executed by that Ordinary who gave the testimonial letters, or transmitted the petitions to the Apostolic See, whether he is the Ordinary of origin, or of domicile, or of residence of both spouses or of either of them, even if the spouses, at the time when the dispensation is to be given to execution, have departed into another diocese, and are not going to return any more. It is lawful for the aforesaid Ordinary, for the execution of the matrimonial dispensation, to delegate another Ordinary, especially him in whose diocese the spouses are actually staying. S. O., 20 Feb. 1888.

Does the observance of various clauses pertain to the validity of the act? Clauses which contain only an admonition or precept pertain only to liceity. But those which contain a condition, and which are expressed by the conditional particle if, provided that, or another equivalent, look to validity; unless perhaps that which is expressed by the clause must be observed from the very nature of the matter concerned, or by law. For if that which the clause enjoins to be done is of such a kind that even if it were not enjoined, nevertheless it would have to be furnished either from the nature of the thing or from common law, by commemorating it in the clause, nothing else is thought to be intended than to recall to mind and urge the obligation coming from elsewhere. On account of this cause, e.g., the clause, the publications having been made, which is the form of Common Law, when it is expressed in letters of dispensations, does not introduce a new form and condition, but is an admonition that the form of Common Law itself be observed.

Sanch., l. 3, d. 33, n. 3; Zitelli, de Disp. matr., c. 5; cited Praxis; Collectan. S. C. de P. F., n. 1484, 1486-1488, 1434, etc. The clause: in the forum of conscience only, excludes the grace from being valid in the external forum. The clause: sacramental confession having first been heard, or in the act of sacramental confession, renders confession necessary for the value of the grace, which is still valid although the penitent, because indisposed, cannot be absolved. The clause: Motu proprio, and with certain knowledge, and from the fullness of power, regularly supplies the defect of obreption or subreption.

How does the obligation of a promissory oath cease from without? - It ceases by annulment, dispensation, commutation, remission. Annulment is the nullification of an oath. Annulment is made by any superior having dominative power over the one swearing, concerning those things which are subject to his power, even if the matter concerns promises and contracts. For these oaths have an implicit condition: if the superior consents, if they are not revoked by him. The Supreme Pontiff has this dominative power as to ecclesiastical matters; a superior as to matters subject to his own power; a father, husband, tutor, master; and these can annul and nullify the oaths of their own in plainly the same way in which they can annul the vows of their own. Num. 30:4 seqq.; S. Th. 2. 2, q. 89, a. 9 ad 3. Cf. 599 seqq.

Dispensation is given by one having jurisdiction in the external forum; understand spiritual jurisdiction. Whoever has ordinary power of dispensing in vows can dispense in oaths and in vows, even if these are sworn. L. 189. "Dispensation which is made in an oath does not extend to this, that something be done against the oath; for this is impossible, since observance of an oath falls under a divine precept, which is indispensable. But dispensation of an oath extends to this, that what fell under the oath no longer falls under the oath, as though not existing as due matter of an oath; just as we said above concerning a vow, q. preceding, a. 10 ad 2... The matter of a promissory oath is something future, which can vary, namely in such a way that in some event it can be illicit or harmful, and consequently not be due matter of an oath; and therefore dispensation can be made in a promissory oath, because such dispensation regards the matter of the oath, and is not contrary to the divine precept concerning observance of an oath." S. Th. 2. 2, q. 89, a. 9 ad 1. "Sometimes something is promised under oath concerning which it is doubtful whether it is licit or illicit, profitable or harmful, either simply or in some case; and in this any Bishop can dispense. But sometimes something is promised under oath which is manifestly licit and useful; and in such an oath dispensation or commutation does not seem to have place, unless something better occurs to be done for the common utility, which seems especially to pertain to the power of the Pope, who has care of the universal Church; or also absolute relaxation, which also pertains to the Pope generally in all things which pertain to the dispensation of ecclesiastical affairs, over which he has fullness of power." S. Th. 2. 2, q. 89, a. 9 ad 3.

Commutation is reduced to dispensation, and is made, like it, by one having spiritual jurisdiction in the external forum. L. 191. Cf. here 566.

Remission is the relaxation of an oath made in favor of a man, by the same man, or by him to whom the one promising and the promised matter is subject. It must be noted: 1. That if a promise in favor of a man, confirmed by oath, has not yet been accepted, there is no obligation of fulfilling it, and it can be revoked; because the oath is then accessory and follows the nature of the promise. But otherwise, if the promise was principally made to God. 2. If such a promise has been accepted by the third party to whom it was made, and a right has been absolutely acquired by him, then without his consent it cannot be relaxed, not even by the Pontiff. But this latter is limited in three cases. The first is if the one swearing is a subject, and the oath concerns those things which are subject to the power of superiors. The other is if the oath cannot be kept without common harm, or is upon a contract forbidden by law. Such oaths more truly do not need relaxation, since of themselves they are null. The third is if the oath was extorted by deceit or fear; for then, even if it is valid, it can be relaxed. And this holds even if the promise is not undue, say concerning paying a true debt, but the oath was unjustly extorted; and even if the oath is extorted by light fear, at least for the internal forum, from C. Sollicite 2 and from C. Accepta 3, de Restit. spol., where only an altogether spontaneous oath cannot be relaxed. But not only the Pontiff can relax it, but also Bishops, chapters when Sees are vacant, and others having episcopal jurisdiction, and also Confessors having delegated faculty of dispensing in oaths.

3. It is certain that an oath in favor of a third party can be freely remitted by him, without relaxation of the Church, because each person can yield concerning his own right. For "from such a promise he to whom the promise was made can absolve; for it is understood that he has already paid the promise when he does concerning it according to his will." S. Th. 2. 2, q. 89, a. 9 ad 2. L. 189-193.

Can one who has delegated faculty of dispensing in vows dispense in oaths? - These words are from Suarez, de Voto, l. 6, c. 14, n. 6: "It is sufficiently probable that power delegated simply for dispensing in vows extends to dispensing in pious oaths concerning the same matter, when they stand per se and produce their own sole obligation. This is the common opinion, and without doubt can be observed in practice." And n. 19: "Even if vow and oath immediately fall upon the same matter, and each obliges per se to the honor of God, by an absolute faculty of dispensing in vows, either the vow, or the oath, or both can be removed, at the judgment of the one dispensing. For this assertion we can allege all the authors of the first, namely the preceding, assertion..., and other moderns and learned men hold it." The intrinsic reason of this opinion is that oath and vow, on account of the affinity of obligation, are equated with each other.

But others deny, because the bond of a vow and of an oath is diverse. Thus Lessius, l. 2, c. 42, n. 60, who nevertheless admits the prior opinion when the oath is accessory to the vow. For indeed, when the vow is dispensed, the oath vanishes. But an oath by its nature is accessory to the promise to which it is added. St. Alphonsus, n. 160, holds each opinion as probable; nevertheless he says that the second must altogether be held: "for the obligation of an oath already contracted, since it is certain and possesses, cannot be removed by a dispensation that is only probably valid." But if the opposite opinion is probable, it is altogether safe in practice, since, that probability standing, the superior granting the first faculty is rightly judged also to grant the latter, unless he expressly limits it. Yet S. C. de P. F., 19 May 1845, decreed: "the faculty of dispensing from vows does not per se include the faculty of dispensing from an oath." And as to sworn vows the same S. C., 3 May 1828, left the matter doubtful. L. 189, 190, 192, 254; D'Annibale, ed. 4, p. 2, n. 431, note 36; Monitore Ecclesiastico, vol. 18, pp. 139, 140; Collectan. S. C. de P. F., nn. 2085, 2087; E. M. Regulars, from special privilege, can commute oaths and also dispense in them, unless they were in favor of a third party and accepted by him. L. de Privil., 108.

What are the causes excusing from prohibited works? - There are chiefly six excusing causes: dispensation, custom, piety, charity, necessity, utility, as is clear from the common opinion of theologians. L. 288.

Dispensation. In the precept of abstaining from servile work, as also of hearing Mass, the following can dispense: 1. The Pontiff, as supreme legislator and pastor, in all festivities and for the whole Church. 2. Bishops and vicars of the chapter, the See being vacant, in their dioceses. 3. Regular Prelates toward their own religious subjects and their domestics. 4. Parish priests, even when the Bishop is present, from custom now received. But Bishops, regular Prelates, and parish priests are able to dispense only in particular cases. L. 288.

Custom. Hence from general custom received almost everywhere these are excused: 1. Barbers, who besides are also excused from this, that otherwise they would be abandoned by very many to their grave detriment. 2. Those things which pertain to the neatness of the house, for example, making beds, washing vessels, and those things which regard the arrangement of the person, such as trimming the beard, cleaning dust from clothes, and the rest of the same kind. 3. Those things which are necessary for food: slaughtering cattle, baking bread, indeed even preparing finer foods. Struggl 23; Suarez, l. 2, c. 21, nn. 3, 4; L. 289, 298; Benedict XIV, Inst. 43.

Piety toward God. Through this works are licit which proximately, not remotely, regard the worship of God; such as laying floors for a festivity, sweeping and adorning the temple, altar, roads; but by no means building a church, repairing it, cultivating the fields of the church, etc., without actual necessity. And thus it is permitted to make necessary ornaments for a needy church. For the precept of worshiping God by abstaining from servile works is of a higher order than free works of piety. L. 291-293.

Charity toward the neighbor. Hence on a feast day it is licit: 1. To do what is necessary for relieving the sick. 2. To dig a grave for burying a dead person. 3. To labor for some determinate poor person, for whom by reason of grave necessity it would be licit to labor; yet, according to grave theologians, not for poor persons in general, unless the matter concerns making clothes or other things of this sort which must serve for the use of the poor, but not for gaining money to be distributed to the poor. L. 292, 294.

Necessity, whether one's own or another's, both of soul and of body. Hence these are excused: 1. Poor persons who otherwise cannot feed themselves and their own; shoemakers, tailors, and other workers who otherwise would be abandoned by buyers, provided they labor privately and scandal is excluded; servants compelled to labor, if they cannot easily and quickly find another master without great inconvenience; wives and children compelled by the father to labor, if however this is not in contempt of religion. Likewise all these are also excused if they mend their clothes, when on working days they do not have convenient time for this. Yet masters can from a grave cause impose upon servants that they do servile works and abstain from Mass; and each then is consequently licit for the servants. 2. All those whose works once begun cannot be interrupted without great harm, such as those pouring iron; those gathering fruits lest they be corrupted, or lest they be stolen; those baking lime, bricks, glass. 3. Tailors who make funeral or nuptial garments, or others necessary for honorable dress, which they are not able to finish before the feast either by themselves or through others. 4. Farmers who, on account of past or threatening rain, cut, turn, bind, or carry hay or grain. 5. Blacksmiths who shoe horses on the road or brought by rustics, or who restore plowshares necessary for farmers on the following day; and also those who repair carts broken by accident, bridges, or public roads, if the work cannot be deferred without loss of the public good. The reason of avoiding idleness does not excuse per se, except in the rare case in which temptation would press which could not otherwise be conquered except by laboring. L. 295-304; S. Th. 2. 2, q. 122, a. 4; Struggl 15.

Utility. Hence these are excused: 1. Those who labor for the public utility, when some necessity is urgent, for example, if the matter concerns celebrating a victory, preparing a feast for the arrival of a Prince, or for the sake of another public rejoicing. 2. Those also are probably excused, on account of the circumstance of notable extraordinary gain, who sustain themselves by labors, because for these to omit such gain is the same as to suffer grave harm. L. 301, 304.

Who are judged to be excused from the law of abstinence? - 1. Begging poor; for they can eat whatever they receive as alms, as theologians commonly think. 2. Poor workers, who have nothing else except a little piece of grease or bacon for seasoning a dumpling or greens. 3. The sick, e.g., those laboring under fever, etc.; also those who are so weak in stomach that they cannot digest licit foods. 4. Those who daily give themselves to labors so arduous and fatiguing to the stomach that, like the sick, they do not experience hunger and reject foods; of this kind are those who spend life in mines or in glass and iron works. In the number of these seem also to be judged drivers who, for the space of several days, leading public carriages by day and night, can scarcely swallow one or another little piece of food; but not those who slowly lead carriages, horses, or mules and rest at inns at night. 5. Travelers who find nothing in inns besides forbidden foods, and cannot easily turn aside elsewhere. Yet they are held seriously and insistently to ask for licit foods. For the mere reason of journeying in no way exempts from the law of abstinence, even if on account of too great fatigue it perhaps dispenses from fast. Hence travelers cannot be excused on account of human fear, on account of fear of displeasing companions, on account of mockeries and other difficulties of this kind; otherwise nearly all those making a journey would be exempted from this law. 6. Those who are of a household, if the father of the household is unwilling or unable to prepare fasting foods; namely these are excused by reason of the necessity in which they are placed. 7. Soldiers living in camps or barracks, and nourished in common at the expense of the Government; and from toleration, in France, also their officers and families, Gousset 313, or from an indult, as others affirm, La France militaire et religieuse n. 3, p. 40, Mar. 1889. An Indult is given each year in Belgium. "Pius IX, at the prayers of the Bishop of Buffalo, conceded that American soldiers and sailors be exempted universally from the law of abstinence, six days excepted, namely Ash Wednesday, the three last days of holy week, and on the vigil of the Assumption of the B. V. M. and of the Nativity of the Lord. This is to be understood of those who are actually serving in camps, ships, garrisons, but not those who are absent by leave. Families using common food with them enjoy that privilege; not likewise those who live far away." Kenrick tr. 4, c. 4, n. 37. Cf. here 1626. 8.

Those who from a just cause have obtained dispensation, which besides the Supreme Pontiff, in individual cases Bishops, regular prelates, and pastors can give to their subjects. If sometimes dispensation is given to the whole household, it seems to comprehend, from the intention of the giver, also those who, in occurring cases, are guests in the same household. C. Consilium 2 de Observat. ieiunior.; L. 1008.; E. M.

Whether he who rose from the table with the intention of eating no more can sit down at the table again? Resp. Affirmatively, probably, if the guests are still eating, or if a new dish is placed on the table which he did not know was to be placed. The reason is that it is still judged morally the same dinner. By the same reason it is licit to take something before dinner for sustaining strength, e.g., for ministers and readers at table among religious; for there still remains morally one meal, and sufficient cause is present for acting thus. - L. 1020.

Who can dispense in the law of fast? These can dispense: 1. The Supreme Pontiff, in the universal Church, and his dispensation, even without cause, is valid. A just cause is required for lawfulness at least under light obligation.

2. Bishops with individuals, in particular cases, from a legitimate cause; but not with a whole community, unless from very grave and urgent necessity, and only for individual occasions. Benedict XIV, B. Prodiit iam dudum, B. Non ambigimus, B. In suprema, § 2. Benedict XIV, for dispensing as regards abstinence with private persons, requires the counsel of each physician, bodily and spiritual. Yet usage has prevailed that the faithful are content either with the counsel of the pastor alone, or confessor, or of the physician alone, or even of some prudent man, nor therefore are they to be troubled. From the Decree of the Holy Office, 5 Dec. 1894, Bishops have the faculty of anticipating or even from a very grave cause of dispensing concerning the law of fast and abstinence, when some feast to be celebrated with great concourse of people falls on Friday or Saturday, except in the time of Lent, Advent, the days of the Four Times, and vigils consecrated through the year to fast. And they can do the same for days on which extraordinary fairs with great concourse of people are held, or centenaries, pilgrimages, and similar things are celebrated, provided there is a great concourse of peoples. A very grave cause is the general danger of transgression of the law. 3. Regular superiors, by force of privileges, with their own subjects, in particular cases and from a legitimate cause. 4. Pastors, by force of custom, with individuals, and only for individual occasions, and from a just cause. But the law of one eating and of forbidden mixing is always and by all to be observed, whether dispensation as regards abstinence is given to the whole community or is given to private persons, provided no certain and dangerous reason of affected health intervenes and necessarily demands that it be done otherwise. Benedict XIV, C. In suprema § 2.; Non ambigimus, 30 May 1741.; C. Si fraternitas, 8 July 1744. The first limitation of one eating does not touch those who by age, grave labor, or weak health are not held to fast. The other limitation of mixing does not regard those who are not bound by the law of abstinence on account of illness, and consequently do not need to be dispensed. Nor indeed does it regard those who use the Bull of the Crusade; for Benedict XIV himself affirms that his Constitutions do not regard that Diploma of the Crusade. Moreover, those who use that Bull do not eat flesh merely by force of Indult, but with necessity and weakness of health intervening, as is declared there. Finally those who use that Bull do not eat flesh by force of dispensation, but by force of Privilege, which is quite different, since those consequently are exempt, not merely dispensed. 5. A physician and confessor cannot dispense, but they can by their office declare someone to be excused from fast or abstinence, when the excusing cause is manifest or doubtful. Sanch. Cons. l. 5, c. 1, d. 5, n. 3, 28.

But a superior can dispense not only when the cause is manifest, but also when it is doubtful, and then he will be able to mix with the dispensation a commutation into other pious works, prayers, alms, etc. Sanch. l. 5, c. 1, d. 5, n. 26. - Cf. n. 1601.; L. l. 6, n. 1031, 1032.; H. A. tr. 12, n. 22.; St. Thomas, 2. 2, q. 147, a. 4.; E. M. A broad Indult was conceded for Spain to common soldiers, by which, without any exception of time, they are dispensed from fast, from abstinence, and from the law of mixing. Edict. Patr. Ind. 28 Jan. 1877. - But the Brief of Pius VII, Cum in Regis, 16 Dec. 1803, has these things: "Of declaring all common soldiers and decurions, commonly corporals and sergeants, and also drummers and moreover royal guards, making some journey by reason of their office, free from the law of fast, no account of days being had, not even of Friday and Saturday of Lent and of greater week, as often as the Vicar General himself shall judge this expedient in the Lord." An Indult was conceded to the Bishops of Austria for seven years of dispensing from the law of abstinence "soldiers who actually serve in camps or garrisons, two days only excepted, namely the vigil of the Nativity of Our Lord Jesus Christ and Friday in Parasceve. But as regards dispensation from the law of fast... let them follow the doctrines of approved authors concerning the exemption of soldiers from that law by reason of labor." S. O. 7 Sept.; A. S. S. v. 37, p. 236 seq. Bishops, dispensing from abstinence by Apostolic Indult in the time of Lent, prescribe a visit to some church, prayers, alms. Under grave obligation? - There are those who affirm, because Bishops dispensing by delegation are judged to make a certain commutation, and therefore the substituted work represents the grave obligation of abstinence; and the Bishop of Montpellier declared thus in the year 1861. But others generally do not recognize this rigorous commutation. Rather, it must more probably be said that Bishops principally intend to dispense, and accessorily to impose some pious work as a certain light satisfaction; and thus among others the Bishop of Mondovi declared in the year 1844 and the Bishop of Wurzburg in 1879. S. O. 5 Feb. 1890, to the Apostolic Vicar of Southern Japan declared "that this is remitted to the prudent judgment and conscience of the Reverend Apostolic Vicar." - E. M.

Is an exception given as regards the aforesaid firmness of marriage? - A threefold case must be excepted. 1. Ratified and non-consummated marriage of Christians can be dissolved, for a grave cause, by dispensation of the Pope, from the power divinely conceded to him. This is clear from the fact that the Supreme Pontiffs have already used this power many times, as St. Gregory VII, Paul III, etc.; Benedict XIV, Const. Dei miseratione. Cf. Perrone, de Matr., t. 3, s. 2, c. 6, a. 4. Moreover, this faculty is to be extended to marriages consummated in unbelief, if the spouses after baptism, by which the union becomes ratified, have not again consummated it; and likewise to marriages consummated in unbelief, when the spouse converted and baptized is permitted, by Apostolic Authority, to remain with the wife who was converted and baptized with him, as with a legitimate wife, the others having been dismissed, although she is not his first wife; or, because the absent unbelieving spouse cannot be warned, when it is permitted by Apostolic Authority that the spouse converted to the faith and baptized contract marriage with any faithful person. Indeed this marriage is valid and firm, even if afterward it becomes known that the prior unbelieving spouse could not justly declare his or her will because of an impediment, and had also been converted to the faith at the time the second marriage was contracted. This is most clearly established from the Letters of St. Pius V, August 2, 1571; Gregory XIII, January 25, 1585; Urban VIII, October 20, 1624; September 17, 1627. - Non-consummated, namely by an act of itself suitable for the effect of generation; and consequently, St. Alphonsus 1036, St. Thomas, 4 D. 41, q. 1, a. 1, q. 4, ad 2, by an act perfect on both sides. - Consummated marriage of Christians can in no way be dissolved, Matt. 19:6; Trent, sess. 24, C. 7, de M., and the same must be said if marriage is contracted by a faithful person with an unbeliever from dispensation of the Roman Pontiff. Clement XIII, August 2, 1759; Holy Office, August 1, 1753. - L. 955, 956, 959; Collectanea S. C. de P. F., n. 1308.

Dispensation from ratified non-consummated marriage is to be obtained exclusively from the Supreme Pontiff. The Bishop in this cause cannot, without a special faculty obtained from the S. C. of Sacraments, institute the process. But in other causes the Bishop is the competent judge in first instance.

2. Ratified and non-consummated marriage can be dissolved through the solemn religious profession of one spouse, and this from a special privilege conceded by Christ and declared by the Church. C. Verum, C. Ex parte, de Convers. coniugat.; Trent, sess. 24, c. 6. Solemn: i.e., not of simple vows, even in the Society of Jesus, but solemn vows. Profession; not mere entrance into Religion. - But so that the spouses may deliberate about the use of this privilege, by the law itself they have two months conceded to them after the nuptials, during which time they are not bound to render the debt. C. Verum, C. Ex publico, de Convers. coniug. And "either spouse can licitly deny the debt within the two-month period, although he does not have the intention of entering Religion, because he uses his own right." L. 956. Indeed after that two-month period also, if the marriage has not been consummated even through illicit denial of the debt, this privilege remains. Nor is it impeded by fornication had between the spouses before the celebration of marriage, unless the marriage is necessary for legitimating offspring, or for repairing scandal, or the honor of the bride. If within the two-month period violence is applied, and the marriage is thus consummated while the bride was in fact thinking about embracing religion, although the marriage is now indissoluble, nevertheless the bride can even in this case enter Religion. But he sins who contracts marriage with the intention of entering Religion without warning the other party. - L. 870, 958; St. Thomas, Suppl. q. 61, a. 2, 3; Schmalzgrueber, l. 3, t. 32, n. 11 ff.

There are those who judge that a right of this sort is not conceded except to those who, after nuptials have been contracted and not yet consummated, deliberate about entrance into religion. But in this sense that right would be void, for then immediately after the contract of marriage each one would be bound to render the debt. For who is so mad that, while deliberating about entrance into religion, he would contract marriage?

3. Even consummated marriage of unbelievers can be dissolved from divine concession, when either spouse is converted to the Christian faith, although not Catholic but heretical, through reception of baptism, and the other refuses to cohabit peacefully with him, or does not cohabit except with injury to the Creator and contempt of the Christian Religion, or makes an attempt to draw the faithful party into mortal sin. This divine concession is drawn from the words of the Apostle, 1 Cor. 7:12-15, where he says: If any brother has an unbelieving wife and she consents to dwell with him, let him not dismiss her...; but if the unbeliever departs, let him depart, for the brother or sister is not subject to servitude in such matters; but God has called us in peace. Innocent III explains the same more fully in C. Quanto 7, de Divortiis. - L. 955, 956; St. Thomas, Suppl. q. 59, a. 3-6; E. M.

Interpellation of the unbelieving spouse is to be made, if the other, while that one remains in unbelief, is converted and wishes to enter a new marriage. Provided it is clear that the spouse is unwilling to live peacefully from that one's response, or from a process at least summary that he or she was unwilling to give any response, or dispensation from making interpellation has been obtained from the Holy See, marriage can be contracted.

Who can dispense in impedient impediments? - No one can dispense, except the Supreme Pontiff and from a just cause, from an impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice, which no one besides the supreme Prince can take away. The same must be said concerning the necessity of the consent of parents, which is to be referred back to natural law; nevertheless this naturally ceases if the parents dissent unjustly. - Bishops, or Ordinaries, Pastors of souls, enjoying full jurisdiction in the external forum, can dispense 1. in the obligation of banns; 2. as regards the contract during forbidden time, where custom also interdicts this; 3. in a vow of temporary chastity, and of virginity or of not marrying. - But they cannot dispense 1. as regards a vow of perpetual chastity; 2. as regards a vow of entering Religion; 3. as regards the impediment of disparity of worship between Catholics and heretics; 4. as regards clandestinity, or marriage to be contracted in the face of the Church; 5. as regards the solemnities of nuptials, S. R. C., August 14, 1858, Mont. Alb., ad 2; 6. as regards proof of free state. For these impediments are reserved to the Pope. - Regulars by their privileges are able to dispense merely for the internal forum in a vow of virginity, or of not marrying; for they have the same power of dispensing from vows in the internal forum which belongs to Bishops by ordinary right, according to the common opinion of the doctors. L. 987, 1119, 1128; Benedict XIV, Instr. 80, n. 15; Sanchez, l. 1, d. 61.

Note: The Bishop, when necessity urges, namely when there is danger in delay, can dispense in a vow of chastity for contracting marriage. Likewise, once marriage has been contracted, the Bishop can dispense, when necessity urges, in the same vow of chastity, for asking the debt; and the Bishop can also do this absolutely by force of quinquennial faculties, and a confessor having the schedule of the S. Penitentiary. Cf. the respective Formulas. - The Bishop can do the same in a vow of continence by which either spouse has obliged himself or herself after marriage has been contracted. For since by force of this vow one is indeed prohibited from demanding the debt, but nevertheless can and even must render it, it is not a vow of perfect chastity, and therefore is not reserved to the Supreme Pontiff. Otherwise it must be said if by common consent each spouse had vowed perpetual continence. L. 986, 987, 1126.

What is the impediment of impotence and of age? - For contracting marriage there is essentially required a thing suitable for contracting: for the substantial elements of a contract are thing, cause, consent. The thing is the right of coming together in order to the generation of offspring, to be handed over and accepted on both sides. Therefore impotence for coming together, so that man and woman cannot become one flesh, constitutes a diriment impediment of marriage, which is called impotence. C. 1, section 1, de Frigid.; Sanchez, l. 7, d. 92, n. 7. Wherefore those who are impotent for the aforesaid act "cannot satisfy even the secondary end, which is the remedy of concupiscence, for that must be had not through any intercourse whatever, but through that which from its nature is apt for the generation of offspring." Schmalzgrueber, l. 4, t. 15, n. 32.

Hence they cannot contract even as a remedy for concupiscence, since the secondary end supposes the primary; and marriage cannot be for a remedy of concupiscence unless it is marriage. For marriage "is principally for the office of nature." St. Thomas, III, q. 73, a. 2, apud Cajetan. And an accessory cannot exist without the principal. And certainly marriage instituted secondarily as a remedy for concupiscence is not another marriage of its own kind; but it is that same marriage instituted before sin, so that to that institution for the office of nature there afterward acceded another institution as a remedy for concupiscence. St. Thomas, ibid., in c., ad 2, ad 3. If therefore marriage is impossible according to the first institution, how can marriage be had according to its secondary institution? Indeed, how can a natural union, or union according to nature, of man with woman any longer be had, once the possibility of offspring and the ordering of that union to offspring has been removed? "The union," says the Angelic Doctor, Suppl. q. 55, a. 3, c., "of husband and wife is called natural principally because of the production of offspring." And this union according to the same Angelic Doctor is at the same time so natural and principal that it is what constitutes the first perfection or essential perfection of marriage. "It must be said," he says, q. 73, a. 4, c., apud Cajetan, "that integrity is twofold; one is attended according to first perfection, which consists in the very being of the thing. The other is attended according to second perfection, which consists in operation. Since therefore carnal union is a certain operation, or use of marriage, through which faculty is given for this, therefore carnal commingling will be of the second perfection of marriage and not of the first"; and faculty for it will be of the first. Wherefore, immediately ad 1, speaking of the first institution of marriage, and of those words, "they shall be two in one flesh," the holy Doctor says: "It must be said that Adam set forth the integrity of marriage as regards each perfection, because a thing is made known from its act." Whence this also appears, that according to the Angelic Doctor the aforesaid carnal commingling is commingling apt of itself for generation, or, as the same holy Doctor speaks, a commingling of seeds which can be the cause of generation. Suppl. q. 55, a. 3, ad 3. And Cajetan in cited q. 75, a. 1, defining conjugal intercourse, says: "For that is what is ordered of itself to one kinship and the education of one offspring, and one domestic life." Therefore by this intercourse the remedy of concupiscence can be sought, not by another. Intercourse from which, according to itself and not according to some accident, as in the sick, the sterile, and the elderly, generation cannot follow, is, according to the Angelic Doctor, an act against nature, and therefore in it it is altogether absurd to seek the remedy of concupiscence. "That act," says the holy Doctor, "is against nature in the genus of lust from which generation cannot follow according to the common species of the act; but not that from which it cannot follow because of some particular accident, as old age or infirmity." QQ. DD. de Malo, q. 15, a. 2, ad 14, and a. 1, c.

Therefore it is impossible to enter the contract of marriage, as certain moderns assert, by intending its secondary end, with the primary end positively excluded, in which alone that secondary end is to be sought.

Impotence is one thing natural, another accidental. The first is that which is naturally inherent, as frigidity of the man, by which intercourse of itself apt for generation cannot be perfected at all; or excessive heat, by which the man always emits seed outside the vessel before he can penetrate. The other is what is from accident, for example, from abhorrence of the man toward the woman, from disease, from cutting off, from sorcery. Likewise one is temporary, another perpetual. If it can be removed either by some licit remedy without danger of life, or by the progress of years, it is temporary; otherwise perpetual. C. 1, de Frigid.; St. Thomas, 4, d. a. 24, a. 2. And thus impotence of excessive heat is temporary, and the impotence of a sick man even in danger of death. Perpetual impotence is one thing absolute, if namely the impotence is of coming together as regards all, another relative, if it prohibits commingling only with someone.

Only perpetual impotence, if it is antecedent to marriage, whether absolute or relative, dissolves marriage, and this by natural law, and therefore even if unknown; but temporary impotence does not stand in the way of marriage. C. 1, 2, 3, 6, de Frigid.; Sanchez, l. 7, d. 92, n. 6; d. 97, n. 2; St. Thomas, Quodl. 11, a. 10, 11. - Therefore there is no marriage contracted with a castrated man or eunuch lacking both testicles, who does not have true seed, Sixtus V, Const. Cum frequenter; Sanchez, l. 7, d. 92, n. 20; with one frigid, or so worn by disease or old age that there is no power for the conjugal work; otherwise one is by no means prohibited from marriage even by extreme old age. Consequently there is no marriage, as it seems, contracted with a woman absolutely lacking both ovaries, or a uterus, or having a closed uterus; there is no marriage with her from whom someone is restrained either by sorcery, or natural repugnance, or because of excessive narrowness. C. 4, c. 33; C. 1, 5, 6, de Frigid.; Dominic Benetti, Opus Medico-Morale, Canon Eleventh, Annotations, num. 1, 2, 3.

Consequently; because in the same way as with the impotence of the man, when the impotence of the woman intervenes, an act per se apt for generation, or a conjugal act, cannot exist. Then neither husband nor wife can exist. For marriage is a marital union, or a union ordered to those things which the office of a husband requires. St. Thomas, Suppl., q. 44, a. 3, ad 1. And there, in the body, speaking of the essence of marriage and of the definition which touches the essence of marriage, namely that it is a marital union, the Angelic Doctor says that the specific difference is contained in that word "marital," "because since marriage is a union ordered to one thing, such a union receives its species from that to which it is ordered, and this is that which pertains to the husband." And there, a. 1, the Angelic Doctor says that marriage "is ordered to one generation and education of offspring, and again to one domestic life." According to that union one is and is called husband and wife; and according to this ordering there is and is called marriage, in the body and ad 3. "I wish to beget children, and therefore I have taken a husband." C. 1, de Frigid. Nor is one pubescent unless he can generate. C. Puberes 3, de Despons. impub. And L. 320, § 3, ff. de Verborum significatione: "Nature also teaches us that pious parents take wives with the intention and desire of procreating children." And L. 9, C. de Nuptiis: "If, with neighbors or others knowing it, you had a woman at home as a wife for the sake of procreating children... although no nuptial tablets were made, the reality of marriage nevertheless has its own force." And Auth. Coll. IV, tit. 1, Nov. XXII, Pref., marriage is called honorable from the procreation of children. And there, chap. VI, a man is called potent who is able to minister to the procreation of children. Therefore also a woman. Cf. Commentary, n. 150. If it were otherwise, the definition of marriage, and the object of the matrimonial contract, would indeed have to be changed.

Nor is it valid to object that the woman contributes nothing essential in generation. For this, especially at present, after the latest studies of physiology, is altogether false. For generation, on the part of the man, a zoosperm is essentially required; on the part of the woman, an ovum; and the mingling of the seed of both, as the ancients speak. And, as a consequence, on the part of the man testicles are required, by which that zoosperm is elaborated, and the penis by which the same zoosperm is ejaculated into the woman's vagina. But on the part of the woman, besides the vagina, which receives the male penis, ovaries are required, by which ova are elaborated, and the uterus, in which generation takes place, and therefore communication of the vagina with the uterus; otherwise the fertilization of the ovum in the uterus is physically impossible. Cf. the paragraph on Impotence.

Nor likewise can it be objected that nature intends nothing other than sensible copulation, with no account taken of those things which are not sensibly evident; and therefore impotence is present if copulation appears impossible, but potency is present if the possibility of material copulation is established, without inquiry into the virtue and efficacy of the copulation itself. But since eunuchs, if removal of the testicles takes place after puberty, retain the capacity of erecting the member and of coeundum, their marriage then would be wholly valid, contrary to the cited Constitution of Sixtus V.

And as regards the substance of the matter, the doctrine of the Angelic Doctor on generation agrees with this. For in it he fully recognizes as essential not only the part of the man but also the part of the woman. Speaking of affinity, Suppl., q. 55, a. 4, ad 2, St. Thomas says "that man and woman become one flesh in carnal copulation through the mingling of seeds." And this mingling of seeds, namely of the man and of the woman, is, according to the Angelic Doctor, the cause of generation. Hence there, a. 3, ad 3, he says: "It must be said that intercourse against nature does not have a mingling of seeds which can be the cause of generation; and therefore from such intercourse affinity is not caused."

Moreover St. Thomas, speaking of generation, Suppl., q. 58, a. 1, ad 6, says "that the male is active, but the female is passive." Yet she is not passive in such a way that she does nothing and contributes nothing in generation. Hence there he immediately adds: "And therefore greater heat is required in the male than in the female for the work of generation." And III, q. 15, a. 1, ad 2: actively generation is from the man, because he supplies the seminal principle; passively from the woman, because she supplies the corporeal substance. And Quodl. 5, a. 8: "Since in the generation of man," he says, "as also of other animals, the seed of the father is active, but the matter supplied by the mother is as passive, from which the human body is formed, etc." Likewise Quodl. 8, a. 5, ad 3: "For the conception of a human body two things concur: namely the matter from which the conceived body is formed, and again the formative power which forms the conceived body. The first of these Augustine calls the corporeal substance, the second the seminal principle. We are therefore said, according to both of these, to have been in Adam originally, inasmuch as the matter of the conceived body is prepared by the generative power of the mother, but the formative power is in the seed of the father." Cf. also I-II, q. 81, a. 5; II-II, q. 26, a. 10, ad 1. If the seminal principle is called the zoosperm of the man, which fertilizes the ovum of the woman, and the corporeal substance is called the ovum on the part of the woman, in what does this doctrine disagree with the opinions of recent physiologists? Besides, since according to the Angelic Doctor something essential to generation is supplied both by the man and by the woman, although principally by the man, as regards the substance his doctrine on generation in no way differs from the doctrine altogether certain among physiologists, especially after more recent observations have been made. And when physiologists say that generation is had from the fusion of the substance of the zoosperm with the germinal vesicle of the ovum in the uterus, can this not rightly be understood in other words as that mingling of seeds by which, according to the Angelic Doctor, man and woman become one flesh, and by which the production of offspring is had, Suppl., q. 55, a. 8, in the body, and a. 4, ad 2, the seed of the man descending to the womb of the woman, Quodlib. 6, a. 18?

Equally it is nothing to object that according to St. Thomas, Suppl., q. 58, a. 1, ad 1, of the essence of marriage there is not potency for the act of generation, but potency for carnal copulation. Certainly, according to the Holy Doctor, there does not pertain to the essence of marriage potency for copulation or carnal union, or union of bodies, of any sort whatever; otherwise even sodomitic copulation could be understood. Rather, it is potency for conjugal carnal copulation; and this, from the whole doctrine of the Angelic Doctor in the Supplement, is no other than that which is ordered to generation. "It must be said," says the Angelic Doctor, Suppl., q. 49, a. 2, ad 1, "that in offspring there is understood not only the procreation of offspring, but also its education, to which, as to an end, the whole communication of works which exists between man and wife, insofar as they are joined in marriage, is ordered... And thus in offspring, as in the principal end, the other is included as secondary," namely the communication of works. If the communication of all other works has no principal end except offspring, is not carnal copulation per se ordered to offspring according to the Angelic Doctor? Therefore, although this Holy Doctor does not repeat this in the cited place, nevertheless it is understood, and so that carnal copulation is copulation per se apt for generation. Nor could it be otherwise at all; for nature does not intend that copulation for its own sake, so as to stop in it, but for something else, for generation. "Nature intends offspring" in marriage. St. Thomas, Suppl., q. 49, a. 5, ad 1. And Contra Gentiles, book 3, chap. 122: "coitus," says the Angelic Doctor, "is ordered to the utility of generation... Thus, therefore, the emission of seed ought to be ordered so that both fitting generation and the education of the one generated can follow." Therefore, if generation is positively excluded, that carnal copulation is already illicit. And so also, if in marriage itself a condition is positively placed of offspring to be positively impeded, if you avoid the generation of offspring, L. 891, if you procure poisons of sterility, St. Thomas, Suppl., q. 43, a. 1, the marriage is null, because that condition is repugnant to the substance of the contract. C. fin. de Cond. appos. in despons.

Nor is it valid to press the answer of the Holy Doctor in that same article 1, q. 58, ad 1: "that old persons, although sometimes they do not have sufficient heat for generating, nevertheless have sufficient heat for carnal copulation. And therefore marriage is conceded to them insofar as it is a remedy, although it does not belong to them insofar as it is an office of nature."

For those old persons, according to the Angelic Doctor, are not impotent for an act per se apt for generation, since the Angelic Doctor says only that they sometimes do not have that power. Hence, according to the Angelic Doctor, if generation does not in fact follow from that act, as it can follow and sometimes does follow, this is only per accidens. And this fact of generation, according to the same Angelic Doctor, is sometimes lacking not because of impotence, but because of sterility; for it is lacking because of a defect of sufficient heat, which indeed does not pertain to the very physiological cause of generation, which consists in the organs of generation themselves and in copulation performed in the natural manner, cf. 995, but to sterility, namely to those favorable conditions in which that cause, like all causes, must be found in order to produce its effect.

But these favorable conditions in human generation are very many and hidden, and they depend not on the human will, but on nature itself. Hence the same Angelic Doctor, Quodl. 11, a. 11, ad 1, says that old persons are not cold with respect to the act of generation, but with respect to the generation itself of offspring.

Potency of generating, joined with the effect, fails regularly in women from the age of 45-50, and is regularly diminished in men from the age of 50. There are, however, cases in which even sexagenarian and septuagenarian women generate; and septuagenarian men generate more easily with a younger woman. But detriment to the offspring is not absent when there is a notable inequality in the age of the spouses. Antonelli, Medicina Pastoralis, 2nd ed., vol. 2, nn. 340, 363.

Hence, according to the Angelic Doctor, marriage "is conceded" to old persons and to the sterile "insofar as it is a remedy, although it does not belong to them," namely, does not in fact belong to them, "insofar as it is an office of nature"; but by no means although it cannot belong to them insofar as it is an office of nature, while there is physical impotence for generation. For this, according to the Angelic Doctor, renders marriage impossible. For, speaking of the threefold good of marriage, offspring, fidelity, and sacrament, he says that the good of offspring is more principal and more essential, indeed the most principal and most essential: "Offspring is the most essential thing in marriage." How would that most essential thing be present, if in marriage copulation per se unfit for generation sufficed? Therefore marriage can belong to old persons and to the sterile as a remedy in such a way that this most essential thing is not wanting, namely not in act, but in potency. Indeed this most essential thing is again so truly such that neither those old persons, nor all others joined in marriage, can licitly, according to the Angelic Doctor, intend the remedy in carnal copulation unless they simultaneously intend the office of nature. What then if they positively exclude it, by positively rendering that office impossible, both as regards the liceity of copulation after marriage has been contracted and as regards the validity of the marriage itself to be contracted? "When spouses," says the Angelic Doctor, "come together for the sake of procreating offspring, or in order to render the debt to each other, which pertains to the end, they are wholly excused from sin... And therefore in only two ways do spouses come together without any sin, namely for the sake of procreating offspring and of rendering the debt; in other ways there is always at least venial sin... If someone through the act of marriage intends to avoid fornication in the spouse, there is no sin, because this is a certain rendering of the debt, which pertains to the good of fidelity. But if he intends to avoid fornication in himself, then there is excess there, and according to this it is venial sin; nor was marriage instituted for this except according to indulgence, which concerns venial sins." Suppl., q. 49, a. 5, corpus and ad 2. For it was instituted for the procreation of offspring, to which that carnal copulation, constituting the conjugal debt, is per se ordered, and in which the remedy of concupiscence is constituted secondarily; so that "without the intention of offspring there cannot be marriage," ibid., a. 3, corpus, nor consequently the conjugal debt and the remedy of concupiscence. "From the principles of St. Thomas," says Billuart, diss. 7, a. 9, "you will gather, third, that for the consummation of marriage, by which man and woman are judged to be one flesh, there is required a mingling of seeds, or of those things which are in place of seed on the part of the woman." Therefore, from the principles of St. Thomas, for a ratified marriage there is required potency, natural and physical potency, Billuart, l.c., ibid., ad 1, for the aforesaid mingling of seeds, by which the spouses can become actually one flesh. Therefore a ratified marriage as a remedy, without the aforesaid potency, namely for an act per se apt for generation, cannot subsist from the principles of St. Thomas. "From this it is clear that every emission of seed in such a manner that generation cannot follow is against the good of man... But I call that manner from which generation cannot follow according to itself, as every emission without the natural mingling of male and female; for which reason sins of this kind are called against nature. But if per accidens generation cannot follow from the emission of seed, it is not for this reason against nature, nor a sin, as, for instance, if it happens that the woman is sterile." Contra Gentiles, book 3, chap. 122.

And as regards old persons, St. Thomas himself expressly tells us that that copulation of the old is not, according to itself, impotent for generation, but only per accidens, and therefore both marriage and conjugal copulation are permitted to them. Indeed, still more clearly, the Angelic Doctor tells us that that copulation of old persons is not, according to its intrinsic nature or species, impotent for generation, and therefore is per se apt for generation, although from a merely particular accidental cause generation does not follow. Let his words, brought forward above, be reported again here: "That act is against nature in the genus of lust from which generation cannot follow according to the common species of the act; but not that act from which it cannot follow because of some particular accident, such as old age or infirmity." Quaestiones Disputatae de Malo, q. 15, a. 2, ad 14. Hence, when that particular accident has been removed, generation follows even in old persons and in the infirm. Now, when ovaries and uterus are perfectly and absolutely lacking, or when the uterus is entirely closed, can the copulation which is had in such circumstances be called an act according to its common species from which generation can follow, and consequently one in which, when that accidental cause of the defect of the uterus, ovaries, and closure of the vagina is removed, generation in fact follows? If so, then indeed impotence is not had from it; but if it is not so, according to the Angelic Doctor impotence is had.

Lastly, the well-known Responses of the Sacred Penitentiary and of the Holy Office, that marriage is not to be impeded in the case of excision of an ovary and uterus, do not stand in the way at all. For, as was expressly declared to me by His Eminence Cardinal Lucido M. Parocchi himself, Secretary of the Holy Office, those Responses, given only for particular cases, supposed that generation could still per se follow in those cases, namely insofar as there had not been perfect and absolute excision and absence of the uterus and ovaries. And the same opinion was embraced, as regards matrimonial dispensations to be granted or denied, both by His Eminence Cardinal Aloisi-Masella and by His Eminence Cardinal Di Pietro, Datary of His Holiness and both belonging to the Holy Office. And, omitting other cases, the Sacred Congregation of the Council, December 19, 1899, because of a defect of the uterus, declared a marriage invalid, although the defender of the bond ex officio had sharply maintained the contrary in the Monasterien. cause. And in the Collectanea of the S.C. de Propaganda Fide, 2nd ed., 1907, n. 1733, to the Response of the Holy Office, "It is not to be impeded," there is added the note: "This response concerns the particular case with which it was dealing." And the same Congregation of the Holy Office, January 16, 1895, declared that in cases of this kind recourse must be had in each individual case, since thus far no response had been given except for particular cases. Collectanea, cited, n. 1907.

Nor is the most recent Response of the Sacred Congregation of the Sacraments, April 2, 1909, in any way decisive. For the Sacred Congregation, referring to the Response already given elsewhere by the Holy Office, June 23, 1890, answered with the usual formula: Marriage is not to be impeded.

Therefore, when a practical case occurs, recourse must be had to the Sacred Congregation, since the matter has not yet been defined. And in practice marriage is indeed not to be impeded, since it cannot be denied that the natural sciences can still progress, and that other things necessary and sufficient for generation can be found. As it was reported to me by a certain Official of the Sacred Congregation, the Supreme Pontiff Pius X said that marriage is not to be impeded; for it is not known what is within, what happens within.

There is likewise another question concerning vasectomy in the man, or the cutting of the canals which carry the male seed. And as regards impotence, the matter likewise is not altogether certain; for some say that perpetual impotence is had from it, since the potency for emitting seed cannot be restored, and consequently the marriage is null; others, on the contrary, say that the aforesaid potency can be restored, and consequently, since the impotence is only temporary, the marriage is valid.

Impotence, on the contrary, is not had from mere shortness of the vagina, because carnal copulation can still be had; and it can sufficiently receive and retain the male seed as much as is enough for generation, for which one zoosperm suffices, fertilizing one ovum in the uterus, in which it is then developed. It is developed; whether, taking the matter properly and strictly, the ovum is also fertilized in the uterus, or is fertilized in the tubes or in the ovaries, we leave to physiologists to define, since this does not pertain to us, nor does it change anything with respect to the moral doctrine on impotence, with which we are dealing.

Many and weighty doctors assert that it is enough if the man can pour out seed at the opening and entrance of the vagina, and the woman can receive it within herself; for experience itself establishes that this suffices for generation. Gury-Ballerini, 885; D'Annibale, 3rd ed., n. 431. Yet others deny this. Indeed, it is one thing for generation to be able to be had by that act; it is another thing for marriage to be able to be had by that act, or by potency only for an act of that sort, since it is not the marital act in a natural manner. And if that most imperfect act sufficed for marriage, it no longer appears how frigidity can be reckoned an impediment of marriage, as is commonly handed down. And thus La Croix, book 6, part 3, n. 793, says: "If the man cannot penetrate the female vessel, although he pours out seed at its entrance..., impotence must be judged present, because such insemination does not suffice per se for such spouses to be judged to become one flesh in the natural manner." Cf. Sanchez, book 2, disp. 21, nn. 2, 5; St. Thomas, Quodl. 6, a. 18; A.S.S., vol. 26, p. 534 ff. And this seems to be held from causes often decided by the Sacred Congregation of the Sacraments, for dispensation from a ratified but non-consummated marriage, in such a case.

This impediment of impotence, of natural and divine law, is altogether irrationally and unjustly not admitted by the French Civil Code. The Italian Civil Code admits it, 107; the Spanish Civil Code, 83; the Austrian Civil Code, 60. But it is had only implicitly and in a limited way in the German Civil Code, 1333, 1334. Moreover, since all Codes must admit the invalidity of marriage from error of person, and since, when impotence stands, there would be a substantial error in the person, marriage, according to the same Codes, if not directly, at least indirectly, must also be held null in civil law. Cf. French Civil Code, 146, 180.

Now, if a marriage is null because of this impediment of impotence, the spouses are separated by the authority of the ecclesiastical judge; other nuptials are forbidden to the impotent party, and another marriage is permitted to the potent party. C. 5, 6, 7, de Frigid. In such a case recourse must be had to the Ordinary and to the Sacred Congregation of the Council.

Only by positive law is the marriage of the impubes invalid, because they are presumed to labor under a certain natural impotence for generation, although only temporary. Puberty is had by the same canon law for males when the fourteenth year has been completed, for females when the twelfth year has been completed, because the proximate potency of generating usually begins and ceases sooner in females than in males. For the capacity of generating begins with puberty, namely when in males the testicles begin to elaborate zoosperms, which happens between the thirteenth and sixteenth year of age; and ovulation likewise begins in females, which is regularly had with menstruation, and this begins around the twelfth year. Therefore the marriage of impubes is valid if they can already generate and coire, and sufficiently understand the burden of the conjugal bond; and the marriage of an impubes who already can, with a pubescent person who cannot yet coire. Nevertheless it would always remain illicit to contract marriage without the license of the Ordinary before the lawful age. Likewise valid is the marriage of impubes who have the use of reason among unbelievers, who are not subject to the laws of the Church. C. 2, 3, 6, 7, 9, 10, 11, 14, de Despons. impub.; Benedict XIV, Const. Magnae nobis, June 29, 1748; Sanchez, book 7, disp. 104, n. 9; Schmalzgrueber, book 4, tit. 2, nn. 48-60.

For a just cause the Supreme Pontiff can dispense the faithful in this impediment, and at times has in fact dispensed. Schmalzgrueber, book 4, tit. 2, nn. 50-52; Navarrus, Cons. 4, 5, tit. de Despons. impub.; de Iustis, book 8, n. 55.

The Austrian Civil Code, 48, and the Spanish Civil Code, 83, agree with canon law as regards the required age. But since full and perfect puberty is had as regards the man in the eighteenth year, and as regards the woman in the fourteenth year, hence other more recent Codes require the eighteenth year in the man and the fifteenth in women, Italian Civil Code, 55; French Civil Code, 144. According to the German Civil Code, 1303, a man before majority and a woman before the sixteenth year cannot contract marriage. Before the eighteenth year for men and the fifteenth for women, they either are still sterile or beget only weak offspring. And in order that good effects may follow from marriage, besides the faculty of generating, it is necessary that the body of the spouses be fully developed; this happens for both woman and man after the twentieth year of age. If marriage is contracted at a lower age, not a few inconveniences for the spouses and for the children will easily follow. Antonelli, vol. 2, p. 180, nn. 360, 361, 362. L. 1064-1066, 1094-1104; St. Thomas, Suppl., q. 58; E.M.

What is the impediment of consanguinity? In contracting marriage the thing must not only be possible, whence the impediments of impotence and ligamen arise; but it must also be honorable, whence, on account of reverence for joined persons, the impediments of consanguinity, affinity, and public honesty arise, and on account of reverence for religion the impediments of order and vow are had. Now these impediments partly rest on natural law, partly on canon law. Those which are constituted by canon law do not touch unbelievers. But if, having been converted to the faith, they wish to enter marriage, then the natural bond of consanguinity and affinity, which existed before baptism and certainly endures after baptism, stands in the way of marriage. C. ult. de Divort.; St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 1; Sanchez, book 7, disp. 65, n. 4.

Consanguinity is the bond of certain persons among themselves from the fact that they descend by carnal generation from one and the same nearest common stock; and therefore it arises from the unity and participation of the same blood. Three things are to be distinguished in consanguinity: namely, 1. the stock, or the person from whom others take their origin and in whom, as in one root, they come together; 2. the degree, or the measure of the distance of one person from another, which distance is counted from the stock in which they are joined; 3. the line, or series of persons descending from the same stock. The line is twofold: one is direct, and the other collateral or transverse. The former is the series of persons of whom some descend from others, either immediately, as children from parents, or mediately, as grandchildren from grandparents, or from great-grandparents, etc. The latter is the series of persons who, although they have a common stock, nevertheless do not descend from one another, such as brothers, cousins, etc. The collateral line is equal or unequal, according as the blood relatives are equally or unequally distant from the common stock, as will be explained below. Cf. 998.

Marriages between blood relatives bring grave physical inconveniences for offspring, unless the blood relatives enjoy perfect health. The inconveniences are more grave in proportion as the degree of consanguinity is nearer. Antonelli, vol. 2, p. 181 ff.

Consanguinity dirimently impedes marriage in the direct line indefinitely, Nicholas I to the Bulgarians, C. 37, 39, and by natural law at least in the first degree. At least, for the other degrees are disputed; L. 470, 1029; Sanchez, book 7, disp. 51, n. 7; Schmalzgrueber, book 4, tit. 14, n. 30. In the collateral line, it impedes up to the fourth degree. C. 8, Non debet, de Consanguin. But whether by the law of nature marriage is dirimently impeded at least in the first degree, namely between brother and sister, is controverted. Yet it seems more true that it is impeded only by canon law, from Genesis 20:12. But this is certain, that the Church has never dispensed in this degree. Benedict XIV, Const. Aestas anni, October 11, 1754; Schmalzgrueber, book 4, tit. 14, nn. 42-48; L. 470; Lugo, Responsa Moralia, book 1, disp. 40, n. 9. As regards the other degrees, according to all, marriage is dirimently impeded only by ecclesiastical law.

Indians and Blacks. In Latin America they can contract marriages within the third and fourth degrees both of consanguinity and of affinity. To the indigenous Catholics of the three Apostolic Vicariates of the Island of Madagascar an extension was granted of the privilege of the Indians and Blacks of Latin America, namely of the impediment of consanguinity and affinity restricted to the first and second degree, yet in such a way that, as long as the said privilege for Latin America endures, it should at the same time be in force for the island of Madagascar, so that both in Latin America and on the aforesaid island the duration of the privilege may be the same. Leo XIII, Const. Trans Oceanum for Latin America, April 19, 1897; Sacred Congregation of the Sacraments, April 1, 1911, from the Audience of April 2, 1911.

Consanguinity dirimently impedes marriage also between those who were born only from the same father or only from the same mother; that is, between blood relatives only through the male line or only through the female line; as also between blood relatives born from illegitimate births. The reason is that diversity of father or mother, i.e. that the common stock is only the father or only the mother, or the illegitimacy of birth, does not prevent carnal consanguinity from truly existing. C. Pertuos, de Probat.

Consanguinity can arise between the same persons from a double or even multiple source, and then there is a double or multiple relationship, or impediment, to be disclosed in the petition for dispensation. This happens from the fact that among near ascending blood relatives either some have contracted marriages among themselves, or someone has contracted successively with several persons who are blood relatives among themselves, or blood relatives from one stock have contracted with blood relatives of another stock. And thus: 1. If someone marries a woman who is his blood relative, e.g., his cousin, their children are at once the children and grandchildren of each parent, and among themselves they are at once siblings and second cousins. 2. If someone marries a blood relative of his wife, e.g., her sister, the children of each wife will be among themselves at once consanguineous brothers and cousins. 3. If two brothers marry two sisters, the children proceeding from each marriage will be blood relatives among themselves in a double way, namely they are at once paternal cousins and maternal cousins. This circumstance of multiple consanguinity must necessarily be declared. Cf. De Iustis, de Dispens. matrim., book 2, chap. 3, n. 31 ff. But it must be noted that multiplicity of kinship is not caused by the fact that two persons are from the same father and mother. For the father and mother are considered as one stock.

And it is one thing to be brothers or paternal cousins, another thing to be blood relatives in a double way.

Therefore a distinction must be made between the quality and the quantity, or multitude, of the degrees of kinship. Quality is the first, second, third, fourth degree; a pure or mixed degree. Quantity is a simple, double, triple degree, etc. Trent, sess. 24, chap. 3; L. 1029; St. Thomas, Suppl., q. 54.

A degree of consanguinity or affinity is called simple or mixed: 1. insofar as simple excludes the admixture of an unequal degree from the other side; and thus Titius and Titia are blood relatives in the third simple degree if they are equally distant from the stock, whether they are blood relatives from one source or from a double source. On the contrary, they are blood relatives in a mixed degree if they are unequally distant from the stock, Titius in the third degree and Titia in the fourth; and then they are called blood relatives in the fourth degree touching the third, if they are blood relatives from one source. Or again, if they are unequally distant from the stock, Titius in the third degree and Titia in the fourth, Titia in the second and Titius in the third, then they are called blood relatives in the fourth degree touching the third on the part of one contracting party, and in the third degree touching the second on the part of the other contracting party, if they are blood relatives from a double source. 2. It is called simple insofar as it excludes multiplication of the same degree from any cause whatever. 3. It can be called simple insofar as it excludes the admixture of another different impediment, e.g., consanguinities mixed with affinity. 4. Finally it is called simple insofar as inequality of degrees, multiplication of the same degree, and any other impediment whatever are excluded.

There are some who hold that in consanguinity account must be taken only of the nearer stock, Gallo, Suppetiae Evang. Praecon., vol. 4, p. 149 ff. But others hold that account must also be taken of the more remote stock when marriage has intervened in the higher degrees; since then, if this marriage had not intervened, they would still be blood relatives from the more remote stock. And thus, for example, Caius, grandson, and Caia, granddaughter, of Titius the grandfather, are blood relatives to each other in the second degree in the collateral line. These contract marriage with each other. Their grandson and granddaughter, Sempronius and Sempronia, are likewise blood relatives to each other in the second degree from the nearer stock, Caius and Caia; and they are also blood relatives in the fourth degree from the more remote stock, Titius, and that doubly, namely through the paternal and maternal line, or through Caius and Caia. The Holy Office approved this second opinion on March 11, 1896, and decreed that three impediments are to be declared, namely the impediment coming from the nearer stock, and two impediments coming from the more remote stock through the lines joined in the intermediate stock. E.M. "But lest marriage be contracted within the prohibited degrees, you must publicly prohibit it, and punish presumptuous persons by ecclesiastical severity, notwithstanding custom, which must be called corruption." C. Quod per his 5, de Consanguin. et affin.

What are the rules for computing the degrees of consanguinity? Three rules are assigned from Canon Law.

First Rule. In the direct line as many degrees are counted as there are persons, the stock being removed, or there are as many degrees as there are generations. Hence between father and son there is one degree, because there is one generation, or one person of the son, the father being excluded as the stock. Between grandson and grandfather two degrees are counted, because there are two generations, although three persons intervene, namely grandfather, father, and his son, or grandson with respect to the grandfather. Similarly suppose a great-grandfather or great-great-grandfather, and you will have three or four degrees.

Second Rule. In an equal collateral line there are as many degrees as there are persons on one side, the stock being removed. Hence brother and sister are in the first degree, because if the common stock or father is set aside, one person remains on each side; and since each is distant by one degree from the stock, they are also distant by one degree from each other. Likewise paternal cousins, or children of brothers, and maternal cousins, or children of sisters, are each distant by two degrees from the common stock, or from the grandfather, and therefore are blood relatives to each other in the second degree. So also must it be said of others.

Third Rule. In an unequal collateral line there are as many degrees as there are persons on the more remote side, always with the stock removed. Hence, if one is distant from the common stock by two degrees and his blood relative by three, they will be blood relatives to each other in the third degree, according to the saying: the more remote degree draws the nearer to itself. Therefore Bertha will be a blood relative in the second degree with her paternal uncle, or the brother of her father, because she is distant by two degrees from the common stock, namely from her grandfather, although the uncle himself is separated by one degree from the same stock, since he is the son of the stock, or the brother of Bertha's father. So also must judgment be made concerning any others. Therefore no impediment is present if consanguinity is in the fifth degree touching the fourth. C. Vir qui fin., de Consang. et affin.; St. Pius V, Const. Sanctissimus, March 20, 1566; Benedict XIV, Const. Etsi pastoralis, September 30, 1755.

There are as many consanguinities as there are different ways of ascending to the same stock, or to different stocks.

The rule from Civil Law is one. For computing degrees according to Roman Civil Law, the number, or sum, of all the persons in each line is taken, the stock being removed. Therefore in the direct line they are computed in the same way as canonical degrees; in the equal collateral line, the canonical degrees are doubled; in the unequal collateral line, the lesser line is doubled and the excess of the greater is added. C. 2, c. 35, q. 5; L. 1029; St. Thomas, Suppl., q. 54, a. 2; Schmalzgrueber, book 4, tit. 14, nn. 15, 19, 60, 107.

It must be noted here that in an unequal transverse line, in the petition for dispensation, the nearer and more remote degree must be expressed on both one side and the other. If the nearer is kept back, "the marriages are indeed valid, but illicit, provided that the dispensation does not touch the first degree; and therefore, until declaratory letters, or, as they call them, letters perinde valere, are issued, the spouses must be separated." Holy Office, December 12, 1748. The first degree is excepted, because in that first degree the Pope does not intend to dispense unless it is expressed. St. Pius V, Const. Sanctissimus, August 20, 1566; L. 1031; Benedict XIV, Quaest. can., 183; De Iustis, book 1, chap. 4, n. 121 ff.

It must likewise be noted that according to the Austrian Civil Code, 41, 65, degrees are computed as in Roman Law; but marriage is not prohibited according to all the degrees constituted by Canon Law, which must be followed. The Spanish Civil Code, 84, 915, also follows Roman Law as regards computing degrees of consanguinity, except in marriage, in which, as regards matrimonial impediments, it follows Canon Law, except that it restricts the impediment of consanguinity from illegitimate copulation to the second degree in the collateral line. Therefore in this matter also Canon Law must be followed. For Trent changed nothing concerning this impediment with respect to the ancient Law, although it contracted affinity to the second degree. Schmalzgrueber, book 4, tit. 16, n. 9.

The French Civil Code, 161-164, 735 ff., and the Italian Civil Code, 48 ff., 59, 68, preserve the same rule of Roman Law in computing degrees of consanguinity. But as regards the impediments of marriage they depart from Canon Law, as also does the German Civil Code, 1310, 1327, 1589. But in this matter Canon Law alone is to be observed. And let this also be said for the other impediments.

What is the impediment of affinity? Affinity is the relationship which one contracts with the blood relatives of the person with whom he has carnal intercourse, or it is the relationship which arises from carnal copulation between one person and the blood relatives of the other, e.g., between the man and the blood relatives of the wife, and vice versa. From carnal copulation, namely one apt of itself for generation, although generation does not follow. Affinity from licit copulation dirimently impedes marriage in the transverse line up to the fourth degree, and further also in the direct line, C. Non debet 8, de Consanguin.; from illicit copulation, up to the second, Trent, sess. 24, chap. 4, de R. M., and therefore from public concubinage and from merely civil marriage it does not extend beyond the second degree. Does it also arise from a null marriage? Some affirm this, whether the man and woman have coeundum in good faith or in bad faith. Carriere, de Matr., p. 163. According to others, if the man and woman have coeundum in good faith, it extends up to the fourth degree; but if in bad faith, according to many, says Scavini, Milan, 1874, 12th ed., book 3, n. 794, it extends up to the fourth degree, according to others up to the second. And this seems more true according to Trent. The degrees and lines of affinity are taken from consanguinity, and as in consanguinity; so that one who is related by affinity to one party is in the same line and the same degree in which he is a blood relative of the other party. Hence he who is, for example, a blood relative of the wife in the first degree, whether of the direct or of the transverse line, is related by affinity to the husband in the same degree of the direct or transverse line. And as in consanguinity, so in affinity the distance is taken from the more remote degree. Therefore there is no need of a dispensation from affinity because of illicit copulation when one party is distant from the stock in the first degree and the other in the third. German Civil Code, 1310, 1327, 1590.

According to the certain opinion of all, affinity dirimently impedes marriage by ecclesiastical law alone in the collateral line, and much more probably also in the direct line, if perhaps the first degree is excepted. Concerning the first degree of the direct line, there is controversy among doctors. Yet there is no room for doubt concerning the power of the Pontiff to grant a dispensation in the first degree of affinity in the direct line, even from licit copulation between stepfather and stepdaughter. Holy Office, September 4, 1743; Schmalzgrueber, book 4, tit. 14, nn. 82-84, 101-105; Benedict XIV, Epistle Aestas anni, October 11, 1757; de Syn., book 9, chap. 13. But the Church has never dispensed in affinity arising from legitimate marriage, although she has dispensed in affinity arising from illicit intercourse, e.g., if someone marries a woman after having fornicated with her daughter or mother. For affinity from fornicarious copulation arises only because of the union of bodies; from consummated legitimate marriage it arises both because of carnal copulation and because of conjugal society in a common and individual life. St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 3; q. 4, ad 2; Lugo, Responsa Moralia, book 1, disp. 40, 43. Therefore if two unbelievers, related by affinity in the first degree of the direct line from a legitimate marriage, after contracting a legitimate marriage with each other, were converted to the faith, they could not be separated without pontifical dispensation. But cf. the following case, n. 1002 bis.

Affinity from marriage, whether it is a diriment impediment by natural law or by ecclesiastical law, is certainly a natural affinity. Therefore an unbeliever converted to the faith cannot contract with the daughter, mother, or sister of that wife whom he legitimately had during the time of unbelief. The reason is that the natural bond arises even among unbelievers from marriage, and because it perseveres after baptism, it then becomes subject to the invalidating law of the Church. Does the aforesaid natural bond also arise from illicit copulation? Sanchez, book 7, disp. 65, n. 9, Lugo, l.c., and others deny it; but many other grave doctors more truly affirm it from St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 3. For if a man and a woman, although coeundum illicitly, nevertheless necessarily and naturally become one flesh, necessarily and naturally one enters the limits of the other's kinship and is joined to that person's blood relatives. Therefore an unbeliever converted to the faith cannot, without dispensation, enter marriage with the mother, daughter, or sister of her whom he had previously known fornicariously. And this is also established from the Response of the Holy Office, August 26, 1891.

Affinity also can be multiple, namely if someone has had carnal intercourse with several blood relatives, or with a person who is related by blood to the spouse in multiple ways, but by no means if he has done so several times with the same blood relative. For affinity is multiplied not by acts, but by persons. Sanchez, book 8, disp. 24, nn. 4, 5; L. 1067, 1069; St. Thomas, Suppl., q. 55; Schmalzgrueber, book 4, tit. 14, n. 67 ff.; E.M.

1002 bis. The following case was very recently solved: "John T. and Rebecca St. of the diocese of Hagulstadensis and Novocastrensis (Hexham and Newcastle), prostrate at the feet of Your Holiness, very humbly ask for dispensation so that they may licitly contract marriage with each other, notwithstanding the impediments of affinity in the first degree and of public honesty. "The matter stands thus: "John T. contracted marriage with a woman named St., already the mother of a daughter from dishonorable copulation, named Rebecca St. "From these nuptials three or four children were born, and the wife of John T. died. But in the year 1907 John contracted a civil marriage with Rebecca St., in good faith as regards the diriment force arising from affinity. "It is certain and can be proved that Rebecca is not the daughter of John. From these second nuptials two children were born. "The causes are: 1. The legitimation of offspring. 2. The greater good of the offspring, who, still infants, are greatly in need of the care of father and mother. 3. To regularize the state of John and Rebecca. 4. To quiet the scandal arising from the cohabitation of the parties, who now can scarcely be separated because of the education of the offspring." "The Sacred Penitentiary, having maturely considered the peculiar circumstances set forth in the case, by special and express Apostolic Authority, with Our Most Holy Lord Pius X graciously thus assenting, grants to you, beloved in Christ, the Ordinary of the petitioners, the faculty, if things are so, of graciously dispensing the petitioners from the impediments listed in the prayers, so that they, the proclamations being omitted but scandal being removed, and the remaining canonical prescriptions being observed, may licitly and freely be able to contract marriage and remain in it, and of declaring and respectively announcing as legitimate the offspring either to be received thenceforth. All things to the contrary notwithstanding. But these present letters, with the attestation of the execution imparted, are to be carefully kept in the episcopal chancery, so that for any future event there may be proof concerning the validity of the marriage and the legitimacy of the offspring. Given at Rome in the Sacred Penitentiary on December 2, 1911." It is asserted that on another occasion already the same dispensation had been given.

Who can dispense in this impediment concerning the asking of the debt? "They very commonly teach that the Bishop can always and absolutely dispense.... The reason is that, granted that the Bishop could not do this from the disposition of the Law, nevertheless he can well do it by reason of custom. And he can well delegate this faculty of dispensing to another, not only in particular, but also in general. Moreover, all mendicant regular confessors, deputed by the provincial for this office, can also dispense in this impediment from several privileges." L. 1076. Bishops can indeed do this by force of the quinquennial faculties, and also approved confessors having the Form of the Sacred Penitentiary. Cf. that Form.

What is legal kinship? Legal kinship is the nearness of persons which arises from legal adoption. Adoption is a legitimate act by which one who is not such by nature is assumed as a son or grandson. In common law adoption is distinguished as twofold: 1. Perfect, which is also called arrogation, and this is that by which an outside person who is sui iuris, by Rescript of the Prince, passes into the power and family of the adopter, acquires all the rights of a legitimate son, and becomes a necessary heir. 2. Imperfect, which is called simple, is that by which an outside person who is not sui iuris, but remains in the power and family of his natural father or grandfather, by the authority of any competent judge, is assumed as a son or grandson; nevertheless he does not pass into the family and power of the adopter, and for that reason does not become his necessary heir from a testament, although he succeeds to him ab intestato. Cf. vol. 1, n. 663.

Legal kinship, namely perfect adoption, constitutes a diriment impediment by ecclesiastical law, approving Roman Law, by which this impediment was first introduced. This is drawn from the Response of Nicholas I and Paschal II, C. Ita diligere 1, c. 30, q. 3; C. Post susceptum 5, l.c.; C. un., de Cogn. leg. And the reason is that kinship stands in the way of nuptials because of the dangers of cohabitation. St. Thomas, IV Sent., d. 42, q. 2, a. 3, ad 2. Hence this impediment is in force where adoption is preserved: in Roman Law, not in the more recent law, by which the adopted person does not pass into the family of the adopter and under his paternal power. Thus Gury, 809; D'Annibale, 3rd ed., part 1, n. 65, compared with part 3, n. 433, and others, against others who hold that imperfect adoption also, and therefore also by more recent law, dirimently impedes marriage. "More probably," says St. Alphonsus, 1027, "St. Thomas, Suppl., q. 57, a. 2, Sanchez, book 7, disp. 73, n. 9, Salmanticenses, n. 41, with others, say that (legal kinship) arises only from perfect adoption." This indeed follows from L. Adoptivus 14, ff. de Adoptionib.; L. Si paterfamilias 15, ibid.; L. Quin etiam, § 2, ff. de Ritu nuptiarum, etc.

But in order that a canonical impediment be had by adoption, it must have been legitimately entered. Sacred Penitentiary, May 16, 1826. Adoption entered privately, with no solemnity of law, produces no impediment. Holy Office, April 16, 1761.

Legal kinship, after the likeness of natural kinship, dirimently impedes marriage by Roman Law between the following persons: 1. as if in the direct line, between the adopter and the adopted person and this person's children, while they are constituted under paternal power; 2. between the adopted person and the children of the adopter, as if in the collateral line, while the latter's children are under paternal power and are not emancipated; 3. between the adopter and the wife of the adopted person, and, conversely, between the adopted person and the wife of the adopter, as if in the direct line by way of affinity, as is established from the declaration of the Sacred Congregation of the Council in the Hortana case, September 25, 1734.

These kinships differ among themselves, and consequently also the impediment arising from them, in that the first and last are perpetual. Therefore the adopter, for example, cannot take an adoptive daughter or granddaughter as wife, even if the adoption has been dissolved by emancipation; nor can the stepson or daughter-in-law, understand adoptive, be joined in marriage with the stepmother or father-in-law, although the adoption has ceased either by emancipation or by the death of the adopter. Therefore a dispensation of the Apostolic See would be required, which, however, even in the last case is granted with very great difficulty. But the second, in the collateral line, lasts only as long as the adoption lasts. Lugo, de Poenit., disp. 16, n. 327.

According to Roman Law adoption is dissolved in six ways: 1. by the natural death of the adopter; 2. by the civil death of the same; 3. because of incestuous nuptials; 4. because of dignity, e.g., episcopal; 5. by sentence; 6. by emancipation.

Since this impediment is of common law, only the Supreme Pontiff can dispense. In the direct line and in legal affinity he dispenses with very great difficulty and from a grave cause. In the transverse line a dispensation is rarely sought, since this impediment is removed by emancipation, and thus without any dispensation the adopted person can contract marriage with the natural daughter of the adopter. Schmalzgrueber, book 4, tit. 12, n. 37.

Italian Civil Code, 213, etc.; French Civil Code, 353, etc.; Austrian Civil Code, 181; Spanish Civil Code, 178, 179: adoption is made by intervention of a public magistrate, and with the other prescriptions of law observed. Italian Civil Code, 211; French Civil Code, 349: adoptive parents are bound to procure, if there is need, the education of the adopted person, and to supply him the necessary supports and sustenance. But the adopted person is held by the same obligation as regards sustenance toward the adopter. The Spanish Civil Code, 176, establishes the same concerning sustenance. Italian Civil Code, 737, 806; French Civil Code, 350; Austrian Civil Code, 183, 755: the adopted person with his descendants is heir of the adopter together with legitimate children, and succeeds to him ab intestato. Nevertheless he has no right to the goods of the blood relatives or cognates of the adopter. Spanish Civil Code, 177: the adopted person acquires no right to inheritance except by testament or by special agreement. Italian Civil Code, 210; French Civil Code, 347; Spanish Civil Code, 175; Austrian Civil Code, 182: the family name of the adopter is conferred on the adopted person, who adds it to the name of his own family. Italian Civil Code, 210, 212; French Civil Code, 348, 349: the adopted person remains in his natural family and preserves in it all his rights and obligations. Therefore the adopted person does not pass into the family of the adopter, nor is he subject to his paternal power, as in perfect adoption, or arrogation, of Roman Law. Austrian Civil Code, 183; Spanish Civil Code, 177: the adopted person indeed preserves his rights in his own proper family, but passes under the paternal power of the adopter, the prior paternal power being dissolved. Nothing concerning the dissolution of adoption is contained in the Italian Civil Code and the French Civil Code, and therefore it seems to endure perpetually until death. According to the Austrian Civil Code, 185, adoption can be dissolved. According to the Spanish Civil Code, 180, an adopted minor can impugn the adoption within four years after attaining majority. Italian Civil Code, 60; French Civil Code, 348: marriage is forbidden between the adopter and the adopted person and this person's descendants; between the adopter and the spouse of the adopted person; between the adopted person and the spouse of the adopter; between the adopted person and the children of the adopter who are born after the adoption; between adopted children of the same person. Spanish Civil Code, 84: the adopting father or mother and the adopted person cannot contract marriage as incapable persons; nor the spouse of the adopting father or mother and the adopted person; nor the adopting father or mother and the spouse of the adopted person; nor the legitimate descendants of the adopter and the adopted person, while the adoption remains. German Civil Code, 1311: the adopter cannot contract marriage with the adopted person and his or her descendants as long as the adoption endures.

According to the Italian Civil Code and the French Civil Code, adoption is only imperfect, since the adopted person does not pass into the family of the adopter, nor is he placed under his paternal power. Hence more probably no diriment impediment is had from it, until the Church certainly counts an adoption of this kind among diriment impediments, as she counted perfect adoption or arrogation of Roman Law. For more probably only perfect adoption or the arrogation of the Romans is, by Canon Law, a diriment impediment. On the contrary, for the opposite reason, adoption according to the Spanish Civil Code and the Austrian Civil Code seems to be a diriment impediment. And as regards Austria, in the Instruction of Cardinal von Rauscher, commended by the Pronuncio, it is said, § 29: "Adoption of the Austrian Empire... dirimently impedes marriage whenever the adopted person is subjected to the paternal power of the adopter, or is received into his house to dwell after the manner of children of the family."

Benedict XIV, de Syn., book 9, chap. 15; Schmalzgrueber, book 4, tit. 12, nn. 3, 10, 26 ff.; L. 1027; St. Thomas, Suppl., q. 57; E.M.

What is the impediment of vow and order? The vow which dirimently impedes marriage is only the solemn vow of chastity, emitted by profession in an approved religion. C. 10, de Conv. Coniug.; C. un., de Voto, in VI. Chastity, not a religious vow as such, because religious profession dirimently impedes marriage for this reason and to this extent, insofar as it includes the solemn vow of chastity. Therefore vows, although solemn, of certain Equestrian Orders do not dirimently impede marriage, since these profess only conjugal chastity. Schmalzgrueber, book 4, tit. 6, n. 45. Solemn; for a simple vow of chastity, even perfect and perpetual, even emitted in religious Congregations of men and women, does not dirimently impede marriage, but only impedes it. By special privilege of Gregory XIII, the simple vows which are emitted after two years of novitiate in the Society of Jesus are to be excepted.

Order dirimently impeding marriage is sacred order, namely priesthood, diaconate, and subdiaconate. C. De Diacono 1; C. Ex Litterarum 2, Qui cler. vel vov.; Extravag. Antiqua, de Voto; Trent, sess. 24, chap. 9. Sacred order even among the Greeks and Italo-Greeks, Ruthenians and Maronites, dirimently impedes marriage. But the certainty is not the same for all. For as regards Italo-Greeks, Benedict XIV declared invalid such a marriage attempted by subdeacons, deacons, and priests. For Ruthenians, the Synod of Zamosc in 1720, approved in specific form by the Apostolic See, and for Maronites, the Synod of Lebanon in 1736, likewise approved by the Apostolic See, declared invalid, the former the marriage of a priest, the latter that of a deacon, priest, and bishop. As regards other Greeks, there is not yet an express definition of the Apostolic See; but the opinion is consonant both with the opinion of the Tribunals of the City and with the ancient Law itself of the Eastern Church. Benedict XIV, Const. Eo quamvis tempore, secs. 38, 39; Const. Anno vertente, sec. 13; Const. Etsi pastoralis, sec. VII, n. 27; Sacred Congregation de Propaganda Fide, March 24, 1858. Collectanea S.C. de Propaganda Fide, n. 1572. As regards Ruthenians in North America and in the Canadian Region, cf. here nn. 97 and 377.

Now as regards the vow, it must have been emitted: 1. voluntarily and deliberately; 2. with the true intention of obliging oneself; otherwise the vow would not be valid. As regards order, it is required: 1. that it have been received validly; 2. that it have been received voluntarily, and therefore not from grave fear.

The impediment of order, according to the common opinion, dirimently impedes only by ecclesiastical law. The reason is that on the one hand order of itself is not repugnant to the conjugal state; nor, on the other hand, is there any divine prohibition which is found in the Scriptures or in Tradition. L. 1059. But since the solemnity of a vow is of ecclesiastical law, for that very reason the Pope can dispense, provided that there is a sufficient cause, that is, one proportionate to the gravity of the matter. That the Pontiff can dispense from this impediment is the very commonly received opinion of the doctors, whom Sanchez, de Matr., book 8, disp. 8, n. 7, alleges in a long series; and examples of this dispensation having been granted are everywhere available, as can be seen in Schmalzgrueber, book 3, tit. 35, n. 48; Albitus, de Inconst. in fide, chap. 36, n. 132 ff. This is confirmed from the Decree of the Holy Office, February 20, 1888, by which Leo XIII granted to Bishops the faculty of dispensing, "either by themselves or through an ecclesiastical person well pleasing to them, the sick established in the gravest danger of death, when there is not time to have recourse to the Holy See, from impediments, however public, dirimently impeding marriage by ecclesiastical law, except the sacred order of priesthood and affinity of the direct line arising from licit copulation." Benedict XIV, de Syn., book 2; L. 808, 1025, 1026, 1059, book 3, n. 256; Mansella, de Impedim., etc., p. 92 ff.; St. Thomas, II-II, q. 88, a. 11; Suppl., q. 53.

Modern laws are those which admit even those ordained in sacred orders to marriage. There is indeed no law forbidding this in the Italian Civil Code and the French Civil Code. Hence they leave a free way for such persons to most shameful and sacrilegious concubinages. But it is otherwise in the Austrian Civil Code, 63, and the Spanish Civil Code, 83. E.M.

What is the impediment of disparity of cult? If the cause of marriage is considered, marriage was instituted for the mutual help of life. Lest from this there should rather be danger to the spouses in religion and life, provision has been made for each danger by the impediment of disparity of cult and of crime, by keeping Catholics away from nuptials with non-Catholics, and the criminal spouse, after the spouse has died, away from nuptials with the partner in the crime.

Disparity of cult is one thing between a Catholic and a non-Catholic, and is called mixed marriage; another is between a Christian and an unbeliever. A non-Catholic, namely from a sect, whether heretical or schismatic, whether born and educated in it, or having defected from the Catholic faith and given his name to it. A non-Catholic; not a Catholic free-thinker; nor a Catholic Mason. As regards the marriages of Masons, cf. E.M. 976, 1029.

The first disparity of cult, between a Catholic and a non-Catholic, impedes marriage, but does not dirimently impede it. Benedict XIV, Const. Singulari nobis. It belongs only to the Holy See to permit mixed nuptials, or nuptials of mixed religion between Catholics and non-Catholics. Pius VII, Letter Vix nova, February 17, 1809, to the Bishops of France. It permits them only for a grave cause, provided that nothing is to be feared for the faith of the Catholic spouse, that this spouse procure according to his or her strength the conversion of the non-Catholic, and on this express condition, that both spouses promise that they will educate all children to be born in the Catholic Religion. Gregory XVI to the Archbishop of Freiburg, May 23, 1846. The exhibition of these cautions must be established with moral certainty, and, for removing scandal, must be notorious. If the heretical party, after dispensation has been obtained, afterwards refuses to acquiesce that the children be educated in the Catholic religion, the marriage is valid, because from this the nature of a merely impedient impediment is not changed. And the Catholic party is permitted to remain in such a marriage, lest greater harm come to the offspring.

But if a Catholic contracts mixed nuptials either without having obtained a dispensation, or without observing the aforesaid law of the dispensation, he is kept from the sacraments until he has promised the confessor that he will educate the children in the Catholic Religion, and repair the scandal given to the other faithful. Pius VI, Epistle to Cardinal de Frankenberg, July 23, 1782. After dispensation has been obtained with the usual clauses, the pastor can assist at this marriage, Holy Office, December 20, 1838, the banns being omitted, unless they seem necessary and opportune in the judgment of the Ordinary for detecting impediments, with mention omitted in them of the religion of those who are to contract nuptials. Sacred Congregation de Propaganda Fide, May 11, 1871. The celebration of this marriage must take place before the pastor and two witnesses according to the prescription of the Council of Trent, and now of the decree Ne temere, but outside the church and without the blessing of the pastor. It can nevertheless be celebrated in the sacristy. Holy Office, January 17, 1877; Monit. Eccles., vol. 12, p. 469. Hence it is clear that the priest cannot then wear stole and surplice. Yet, where graver evils would be present, it is committed to the judgment of the Bishops that, with the other necessary cautions observed, "they judge when the mentioned conditions concerning contracting these mixed nuptials outside the church and without the blessing of the pastor can by no means be fulfilled, and when, in entering these mixed marriages, the custom can be tolerated of employing the rite legitimately prescribed in the Diocesan Ritual for contracting marriages, always excluding, however, the celebration of Mass." Pius IX, Instruction, November 15, 1858. Collectanea S.C. de Propaganda Fide, nn. 908, 1429, 1430, 1434, 1444.

The pastor cannot assist at the marriage: 1. If, without dispensation having been obtained, mixed nuptials are contracted, although the law prescribes his assistance, unless the pastor intervenes as a civil magistrate. Holy Office, December 20, 1838. Nevertheless the Supreme Pontiffs are accustomed to permit only the material assistance of the pastor where necessity requires it, after the promise of each party concerning the offspring to be educated in Catholicism has first otherwise been altogether required. Thus Pius VII granted the faculty to pastors living in Russia and Germany of assisting, if they were compelled, at mixed marriages entered without dispensation having been obtained. The aforesaid assistance is permitted for avoiding greater evils, lest marriage be contracted invalidly, lest the parties go to a heretical minister, etc. Nevertheless the presence of the pastor does not prevent the spouses contracting in this way from sinning gravely. Gregory XVI, May 22, 1841.

2. If each spouse is unwilling to consent to the Catholic education of the offspring, but the heretical party absolutely requires that the offspring of his or her sex follow his or her religion. Holy Office, June 17, 1829. But in the Instruction which was added to the Letters of Gregory XVI to the Primate and Bishops of Hungary, April 20, 1841, these things are contained: "His Holiness declared that it can be tolerated that, whenever from the condition of times, places, and persons the marriage of a non-Catholic man with a Catholic woman, and vice versa, although the necessary cautions have been omitted, cannot be impeded without graver danger, and moreover it seems to be expedient for the utility of the Church and the common good if that marriage, although forbidden and illicit, be contracted before a Catholic pastor rather than before a non-Catholic minister, to whom the parties would easily have recourse, the same Catholic pastor, or another priest acting in his place, may be present at the marriage itself by merely material presence, with no ecclesiastical rite employed, just as if the parties were treating him only as a mere qualified or authorizable witness, as they say; namely in such a way that, after hearing the consent of each spouse, he may afterwards, by his office, enter the validly performed act in the book of marriages." In Roskovany, vol. 2, p. 818.

3. If after the marriage the spouses also contract in a Protestant church, by Protestant rite. Holy Office, April 21, 1847. If already before marriage they contracted before a heretical minister, the pastor cannot assist at the marriage unless the Catholic party, repentant of the act, is absolved and repairs the scandal.

The other disparity of cult, which is between a baptized person and an unbeliever, dirimently impedes marriage, not from written law, but from custom having the force of universal law. Therefore it binds all who are received into the Church, even if they are in those places in which the Christian Religion is first preached. Benedict XIV, Const. Singulari nobis, sec. 10; Sanchez, book 7, disp. 71; Schmalzgrueber, book 4, tit. 6, nn. 121-124. And it dirimently impedes marriage although a baptized man marries a catechumen woman, or a non-baptized man marries an apostate or heretical woman. Benedict XIV, Const. Singulari nobis, February 9, 1749.

The conditions to be observed in dispensations as regards marriages between Christians and unbelievers are found prescribed from several Instructions of the Sacred Congregation de Propaganda Fide as follows: 1. That cohabitation with the unbeliever bring either no insult to the Creator or danger of perversion. 2. That the offspring be instructed in the Christian religion. 3. That dispensation be granted only in places, understand province, vicariate, etc., not the village in which perhaps there would be many Christians, where there are more unbelievers than Christians. 4. That the dispensation be granted only for grave causes, so that rather dispensation should be granted in the impediments of consanguinity or affinity, if in this way marriages with unbelievers would be avoided. 5. Sometimes it is added that there be a probable hope concerning the conversion of the contracting unbeliever. Collectanea, cited, nn. 1261, 1263, 1270, 1301. This dispensation is granted with far greater difficulty with Jews.

But betrothals between a baptized person and one still a catechumen are valid, just as the betrothals of impubes are valid. For betrothals concern the future, and in the future marriage can subsist between them. Schmalzgrueber, book 4, tit. 6, nn. 130-131. But the form to be observed is that established in the decree Ne temere. Lugo, de Poenit., disp. 16, nn. 336, 343; St. Thomas, Suppl., q. 59, a. 1; E.M.

It seems that the faithful who are so separated from others that they can neither marry a Christian nor ask for a dispensation are to be excepted from this impediment. Holy Office, June 4, 1851; Collectanea S.C. de Propaganda Fide, n. 1275.

Doubtful baptism, whether by doubt of law or doubt of fact, in relation to entering or having entered marriage, is to be held as valid baptism. E.M. And the marriage is valid, either insofar as this case is not comprehended in the law by legitimate epikeia, or insofar as the Church supplies the defect and tacitly dispenses.

1016 bis. Note: "A dispensation from the impediment of disparity of cult is never granted unless all the conditions or cautions have been expressed." Holy Office, April 16, 1890. "1. Whether a dispensation from the impediment of disparity of cult, imparted by one having power from the Holy See, when the prescribed cautions were not required or were refused, must be held valid or not? And insofar as negatively: "2. Whether in these cases, namely when it is evidently established concerning a dispensation thus invalidly granted, the Ordinary himself can declare by himself the nullity of the marriage from this head, or whether it is necessary each time to have recourse to the Holy See for a definitive sentence? "R. To 1. The dispensation, imparted as set forth, is null. "To 2. Affirmatively to the first part; negatively to the second part." Holy Office, June 21, 1912.

From the decree Ne temere and from the Sacred Congregation of the Council, July 27, 1908, the consent of the contracting parties must be sought and received by the Ordinary or the Pastor, for the validity of marriage, even in mixed marriages. Nevertheless, "The prescription of the decree Ne temere, n. IV, sec. 3, concerning the consent of the nupturients to be required and received by the pastor for the validity of marriage, in mixed marriages in which the parties obstinately refuse to furnish the due cautions, is not hereafter to have place; but one must stand strictly by the preceding concessions and instructions of the Holy See, and especially of Pope Gregory XVI of happy memory, Apostolic Letter of April 30, 1841, to the Bishops of Hungary, concerning the matter: after word had been had with the Most Holy." Holy Office, June 21, 1912. Cf. n. 1016.

If there is question of a marriage between one Catholic party and another who has defected from the faith, or has been enrolled in a condemned sect, the Bishop will be able to permit the pastor to be passively present at the marriage as an authorizable witness, if the marriage can in no way be impeded, and if from the marriage there is no grave scandal or harm to be feared, provided that provision has been made for the Catholic education of all the offspring and that the danger of perversion for the Catholic party is absent, every ecclesiastical rite being excluded, and the celebration of Mass being altogether excluded, unless circumstances suggest otherwise. Thus from the Holy Office, February 21, 1883; April 23, 1873. But at present, unless there is place for the aforesaid exception, the consent must be sought by the pastor, as was just said, from the decree Ne temere.

Note: The impediment of crime is an impediment and a penalty. Insofar as it is an impediment, since it is an impediment of ecclesiastical law, it has no place among unbelievers, even if they afterwards come to the faith. Baptism wipes away all crimes. The same must be said, as regards adultery alone, if either one of the two things, namely adultery or only the promise, was made after baptism, Schmalzgrueber, book 4, tit. 7, n. 3; likewise, if the believer was not a participant in the killing which the unbeliever perpetrated; for then he does not incur the impediment from homicide alone. Or if he himself did not perpetrate the same things, but the unbeliever did, who is free from such an impediment, although he himself committed adultery, because adultery without homicide does not introduce the impediment "both together." Schmalzgrueber, ibid., n. 46. On the contrary, if a believer, having promised marriage, commits adultery with an unbeliever, and likewise if the believer was a participant in the machination or killing, or also perpetrated the killing with adultery, he incurs the impediment, by which consequently, although indirectly, the unbeliever too is bound, not otherwise than happens in the impediment of disparity of cult. Indeed this has place even if the believing wife did this for the reason that the unbelieving husband, after afterwards entering marriage with her, might be converted to the faith, as is expressly contained in C. Laudabilem 1, de Convers. infid., where the Pontiff gives this reason, that the Church does not wish to compensate such loss by such gain. Schmalzgrueber, l.c., nn. 46-48.

Insofar as it is a penalty, since it certainly is an extraordinary penalty, ignorance of the impediment more probably excuses from the impediment. Yet more commonly they deny this, "but with principles neither certain nor evident." D'Annibale, 3rd ed., part 3, n. 442; Gury-Ballerini, 788; Krimer, in Decretals, book 4, nn. 1011-1029; Sanchez, book 9, disp. 32, nn. 17, 21. Nevertheless it can not without reason be denied that this impediment was constituted, at least more principally, as a penalty for the crime; but rather because, by the public sense of morality, it is indecent and dishonorable that marriage be contracted between these criminal persons. Schmalzgrueber, book 4, tit. 7, n. 61.

This impediment can be multiple, and therefore then it must be set forth in the supplicatory petition for dispensation. It is multiple by reason of adultery, if each party is married; by reason of homicide, if the spouse is killed by each; by reason of both together, if the circumstances just commemorated concur together.

Benedict XIV, Epistle Aestas anni, 1756, says that it is established by no example that the Pontiff dispenses in the public impediment of both together. "If the impediment arises from adultery, with both or one or the other plotting, and is occult, the Major Penitentiary indeed has the faculty of dispensing, but rarely, and always only for the internal forum, with these things also observed: that a grave necessity occur, or a grave danger threaten, and that the case be proposed in the full Congregation or signature of the Penitentiary." But dispensation is regularly given from the crime of adultery alone, whether public or occult. Bishops also have the faculty of dispensing from the occult impediment of crime, provided it is without any machination, by force of the quinquennial faculties; and approved confessors by force of the faculties of the Sacred Penitentiary, which see in the respective Forms. E.M. "It not rarely happens that those who have obtained from the Apostolic See a dispensation from a ratified and non-consummated marriage, or a document of liberty because of the presumed death of a spouse, wish, in order to consult the salvation of their soul, to celebrate a new marriage in the face of the Church with those with whom, while the prior bond remained, they contracted a merely civil marriage, adultery having been committed. "Now since a dispensation from the impediment arising from adultery with attempted marriage, which stands in the way in the case, is for the most part not usually sought, Our Most Holy Lord Pope Pius X, lest marriages be exposed to the danger of nullity, after consultation with the Most Eminent Fathers of this Sacred Congregation concerning the discipline of the Sacraments, has established that in the future dispensation from the said impediment in the case is to be judged granted through the dispensation given by the Holy See either from a ratified and non-consummated marriage, or through the permission of transition to other nuptials. "But as regards the past, the same His Holiness has graciously deigned to revalidate and sanate marriages which perhaps were invalidly entered from this head. "And he ordered this to be promulgated by the present decree of the same Sacred Congregation, all things to the contrary notwithstanding." Sacred Congregation of the Sacraments, June 3, 1912.

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.

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.

2. 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.

3. 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.

4. 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.

5. 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.

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.

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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

1. Leopoldus sought from his confessor a dispensation from the law of abstinence and fasting, both because he was already fifty-eight years old, and because he suffered weakness of the stomach, needing more abundant food, and experienced nausea at fasting foods. Hence not infrequently, on account of fasting, he suffered in the head, and on account of abstinence he could not take sleep at night. The confessor refused to give the dispensation, saying that he did not have such power. Hence Leopoldus went to the parish priest, seeking from him the same dispensation; but the parish priest granted it only for the days of fast already imminent in the Ember days, saying that he could not dispense except only in particular cases. Wherefore Leopoldus sought an indefinite dispensation from the bishop, who denied it. Then Leopoldus wrote to Rome, seeking a perpetual dispensation, and affirming as the cause in the supplicatory libellus both advanced age and infirmity, passing over in silence the denial of the bishop. The dispensation having been obtained, after a year Leopoldus is so well that he anxiously doubts whether he can licitly use it.

Q. 1. Who can dispense in laws? 2. What as to the case of Leopoldus?

R. To the first, cf. I. M. 241. To the second: the confessor of Leopoldus responded rightly that he could not dispense. A confessor, unless he has a special faculty delegated to him in this matter, cannot dispense either in the external forum or in the internal forum. For an inferior cannot dispense in the law of a superior. Yet where a cause is present which of itself excuses Leopoldus from abstinence and fasting, for example, infirmity, or another grave detriment, then the confessor can in a particular case declare that the law does not oblige. And in such a case Leopoldus by no means ought necessarily to seek a dispensation, although he can easily do it, since the law then does not urge. And this also holds in doubt whether the case needs dispensation, if he himself can form his conscience for himself; for otherwise then properly there has place the office of the confessor, that he declare the law, in the case, not to urge. But this was not in reality the case of Leopoldus, who was seeking a dispensation absolutely and perpetually. The parish priest also responded rightly. For the parish priest can by custom dispense in cases of this sort, which occur frequently, even if recourse to the bishop were easy. But a sufficient cause of dispensation was not lacking for Leopoldus, and it could easily still be increased, in the aforesaid particular case, on account of almost three continuous days of abstinence and fasting. The bishop also rightly denied an unlimited dispensation, since he could not give it.

But, the dispensation having been obtained from the Holy See, Leopoldus can indeed licitly use it. For although he did not manifest the denial of the bishop, as also the denial of the confessor and parish priest, nevertheless the dispensation is altogether valid. For the Supreme Pontiff uses his power absolutely, and is judged to dispense absolutely, unless something else is explicitly expressed in the rescript. In conceding a dispensation, the will of the superior is not ruled by the will of the inferior, but by the gravity of the motive cause. And furthermore this is prescribed by no law, if some peculiar cases are excepted. Cf. I. M. v. 2, n. 1041. Nor indeed was that threefold denial to be manifested, since neither the confessor, nor the parish priest, nor the bishop could concede an unlimited and perpetual dispensation.

But the twofold cause set forth by Leopoldus in the supplicatory libellus was indeed sufficient for obtaining the dispensation licitly and validly, as he in reality obtained it. Concerning sufficiently advanced age, there is indeed no difficulty. But as regards infirmity, although, strictly speaking, Leopoldus is not infirm, nevertheless nausea at fasting foods, weakness of the stomach, and difficulty of sleep can well be called infirmity; since those things certainly do not pertain to bodily health and firmness of strength. This also must be added, that in doubt concerning the value of a dispensation obtained, generally there must be a presumption for the value of the act, for which possession already stands.

But the fact that Leopoldus is well after a year does not for that reason seem to make the dispensation cease. For very probably Leopoldus was well because he constantly used foods suitable to his stomach, and in due quantity; whence perhaps Leopoldus would easily fall again into the same inconveniences if he departed from a manner of life of this sort. Moreover, with attention to his approaching old age and natural temperament, there is truly a prudent fear of relapse into the aforesaid inconveniences from the observance of fasting and abstinence. Whence the final motive cause of the dispensation has not in reality totally ceased. Finally, the dispensation was given also on account of sufficiently advanced age, and this cause of itself is perpetual. Therefore the dispensation is to be judged not conditioned, but absolute and perpetual, which does not cease, although perhaps by accident the cause ceases. But the dispensation would without doubt have been given conditionally if in it the clause had been added: on the advice of both physician and confessor; since then the confessor and the physician would have had to declare the state of infirmity; and therefore, if the infirm man had entirely recovered health, there would no longer be place for the dispensation. Cf. I. M. 1577, 1615 seqq.; G. 109-114, 120; Elbel 450-452.

2. Before the admission of a candidate to solemn vows, the superior of religious, the three-year period of simple vows having been completed, must seek the consultive vote of the chapter. Moreover, concerning the three-year period not yet completed, but shortened by apostolic dispensation, it is asked:

1. Whether, on account of the shortening of time by apostolic dispensation, the consultive vote of the chapter is transmuted into a decisive one?

2. Whether the superior must seek the vote of the chapter before supplication is made for the grace, or after the grace has already been obtained?

R. To the first: no thing can operate beyond its own nature. Moreover, the dispensation of law of which there is question in the proposed doubts is nothing else than, in a special case, the relaxation of law. Therefore it stops within the limits of the law dispensed, and is not extended beyond it. Furthermore, by the very fact that a dispensation derogates from law, speaking in itself, it has a strict interpretation, and therefore also by this special reason it stops within the limits of the law of which it is the dispensation, without progressing further.

Hence the dispensation of one law does not include the dispensation of another law, unless perhaps without the other dispensation it would be useless; for then this also is understood to have been tacitly conceded. L. 3, § 3, de Servit. praed. rust.; C. 5, de Off. et pot. iud. Del. But the transmutation of the consultive vote of the chapter into a decisive one is beyond the dispensation of the required three-year period, and indeed would be a new dispensation of another law, which in no way can be understood as virtually included in the dispensation of the three-year period of profession of simple vows required before solemn vows. But if that dispensation has not yet been sought and conceded, but would still have to be sought and conceded, how indeed could a transmutation of the consultive vote of the chapter into a decisive one be had for that reason? For this there would be need of a special faculty of the Holy See. For the chapter would acquire a new power, of which it is altogether destitute. - Wherefore to the first doubt it seems that it must be answered: Negatively.

To the second: from common law, for admission to solemn vows after the completed three-year period of simple vows, the conventual chapter must be heard only for the instruction of the mind of the superiors. S. C. super. St. RR., 7 Feb. 1862.

A fortiori, therefore, it seems that the conventual chapter must be heard before supplication is made for obtaining the grace of shortening the time before solemn vows. For first, the very fact of making supplication for such a grace is in reality virtually to admit to the profession of solemn vows. Furthermore, if that vote of the conventual chapter has been judged necessary by the Holy See for the instruction of superiors, when admission to solemn vows is made after the ordinary time, much more will a vote of this sort indeed be necessary for instruction if that ordinary time is shortened. But, the apostolic grace of shortening the time having been obtained, that vote is now useless. And certainly the execution of the apostolic grace already obtained could not impede it; since, once it has been obtained, it cannot have such authority. Moreover, a simple instruction would be sought altogether incongruously after the grace had been obtained, if, once that instruction had been had, the case can be supposed that the superior would no longer admit to solemn vows. For he would have sought from the Holy See a dispensation for one unworthy, and would have deceived the Holy See, although in good faith. For the Holy See, giving that dispensation, evidently supposes that nothing else obstructs the profession of solemn vows except the prescribed time not yet elapsed, and that the candidate to be dispensed is altogether worthy of such a favor of shortening time. Wherefore to the second doubt it seems that it must be answered affirmatively to the first part; negatively to the second part; namely, before supplication is made for the grace, the consultive vote of the chapter must be sought, and that vote must not be sought after the grace has been obtained.

3. Gerbertus, a canon, obtained from the Ordinary of the place the faculty of dispensing from the law of fasting and abstinence in the sacramental forum. Among others, he dispenses many pilgrim penitents, granting to some the faculty of a double refection and of eating meat during the journey, even if they are already outside the diocese. But he himself, with his servant, his ordinary penitent, making a journey outside the diocese, dispenses both himself and his servant from both laws.

Q. Did Gerbertus act rightly?

R. Gerbertus acted rightly by dispensing pilgrim penitents. For pilgrims can well be dispensed by the Ordinary of the place, since by access to the local superior, if they seek a dispensation from him, they become voluntarily and sufficiently subject. But Gerbertus, enjoying the faculty delegated to him by the Ordinary of the place, can indeed dispense those same persons just as the bishop himself would dispense. He also well dispenses pilgrims during the journey, even if perhaps they are staying outside the diocese, provided however that the cause of the dispensation endures; for this is personal, and therefore adheres to the person, follows him everywhere, and is not restricted by territory. Thus indeed Fr. Gury 115. But D'Annibale 232 seems to deny the same thing, saying: "But, if a dispensation has a successive tract, since it is multiple, it ceases immediately when the one dispensed has ceased to be a subject." Yet this reason is not pressing. "When a dispensation has a legitimate cause in the person itself, and always goes with the person itself, it also goes outside the territory of the one conceding." Suarez, de Legib., l. 8, c. 26, n. 15; Albitius, de Inconst. in fide, c. 30, n. 253. But he acts badly in dispensing himself, because he is neither a superior, nor is he delegated to dispense in laws in the totality of causes, but only in particular occurring cases as regards abstinence and fasting; and because he has the faculty of dispensing only in the sacramental forum. But if outside the diocese he himself had been approved by the Ordinary of the place for hearing confessions, then he could indeed have dispensed his servant, his penitent, because the penitent would then have been sufficiently subject, and he could have dispensed him in the sacramental forum. But if he himself had not had the aforesaid approval from the Ordinary of the place, then he could not have dispensed his servant; since he could not have exercised the power had in the sacramental forum. Nor indeed could he have dispensed the servant in any way in the external forum, since he was not his subject, and a dispensation of law is exercised only upon a subject; nor could he have received such a power, for the external forum, from his own Ordinary, namely so that outside his own diocese, he who in no way was his subject should become his subject. - G. 115, 116, 140; Lig. l. 1, n. 158; l. 3, n. 262; I. M. 241.

But what if the dispensation is both personal and local after the manner of a privilege, "such as is the recent concession made by the Pontiff to some dioceses of France, of eating meat on Saturday, on this condition, that each person seek the faculty from the parish priest? Is it licit to use the license conceded outside the territory? It must be denied, because the dispensation is primarily local. This is clear from the response of the S. C. of the Inquisition to the Belgian bishops, who asked the Holy See concerning a similar case. The case seems to be excepted in which someone would pass through other places in which the same grace had been conceded." G. 140. But if the dispensation is primarily local, this exception is not without difficulty.

4. Renaldus, bound by a vow of perpetual chastity, desiring to contract marriage, sought a dispensation from the Sacred Penitentiary under the fictitious name of Titius. As the cause he alleged grave temptations which he was suffering against chastity. He received a negative rescript. A year having passed, he writes again to the Sacred Penitentiary, asking the same dispensation, with the same cause alleged, the fictitious name of Titius having been changed into the name of Sempronius, and the rejection which he had previously suffered being kept silent. On this occasion he kindly obtained the desired grace.

5. Laurentius, occupied with the grave affairs of his office, requested from the bishop a dispensation from a vow he had made of pilgrimage to a certain distant sanctuary of the Blessed Virgin Mary; but he by no means obtained it. When the bishop soon died, he sought and obtained the same dispensation, the same cause having been proposed, from the successor bishop, who was entirely ignorant of the prior petition.

6. Aurelius sought from the Apostolic Datary a dispensation from the impediment of consanguinity, for entering marriage with his cousin; but he did not obtain it. But discovering that his bishop had a special power for dispensing from the same impediment, he sought and obtained the dispensation from him, the same cause having been brought forward which he had previously set forth to the Apostolic Datary, but the denial which had previously been made to him at Rome being kept silent.

Q. 1. What is required for the validity of a dispensation? 2. What as to each case?

R. To the first, cf. I. M. 237. To the second: the dispensation of Renaldus is valid. "For a dispensation of this sort is by no means surreptitious, although perhaps the superior would have denied it if he had remembered the denial previously made. The reason is that the presumption that the superior would have denied is founded on no law. For, if he grants, the same reasons having been brought forward which had already previously been alleged, from this it is argued that there are sufficient causes for dispensing. Nor does the prior denial obstruct; for it has nothing to do with the cause, and to deny the dispensation on account of that cause alone does not seem consonant with reason. The reason is clear; for if a just cause is present, it is more fitting to moderate the prior rigor than to confirm it; therefore the circumstance of the denial previously made is impertinent to the value of the subsequent dispensation. Therefore Renaldus was not held to recall it to the mind of the superior. Therefore this dispensation is not surreptitious; therefore it is valid. Nor does it obstruct that Renaldus changed the fictitious name the second time, because attention is never paid to the name in dispensations of the Sacred Penitentiary, since it is the custom that a fictitious name always be used. But it matters little whether it is Titius or Sempronius. Nor should you say that Renaldus can thus be accused of a bad will of deceiving the superior. For he is not said to deceive who uses his own right. Thus Suarez, de Legibus, l. 6, c. 22, with others against many." G. 118.

The dispensation of Laurentius is also valid. "For from what has been said in the preceding case, a dispensation denied and afterwards conceded by the same superior forgetful of the denial is valid; therefore, from parity of reason, a dispensation denied by one superior and given by his successor, ignorant of the denial, is also valid. The reason is that the successor has the same power as the predecessor, nor is he ruled by the judgment and will of the latter. Indeed in him there is a much less probable presumption of involuntariness; and furthermore the will of the predecessor in no way has anything to do with the cause." G. 119.

The dispensation of Aurelius is likewise valid. "The reason is that the power of the inferior was not restricted by the denial of the superior; therefore, if he enjoys the faculty, the cause being sufficient, the dispensation is judged valid. Therefore neither did Aurelius act surreptitiously; for he used his own right; and consequently he is not to be disturbed. Suarez, in the same place, and others against others." G. 121. Thus indeed Gury. But, "when a dispensation has been denied by the Apostolic See, it is not permitted, the same cause having been alleged, to seek a dispensation from the Ordinary, even if mention is made of this rejection in the supplicatory libellus." Zitelli, de Dispens. matr., Rome, 1887, p. 70; I. M. v. 2, n. 1041.

7. Zoilus, scrupulous, superior of a monastery, is very anxious as regards dispensing his own subjects, namely whether a sufficient cause is present. Hence it often happens that he denies the dispensation, thinking the cause is not present, when in reality it is present. But sometimes he dispenses, thinking a cause is present when in reality it is not present, and sometimes he also dispenses, although it seems to him that the cause is not present, when nevertheless in reality it is present, lest he himself become odious and sadden his subjects.

Q. Is a dispensation valid, if the superior, through error, in good faith judges there to be a just cause; or, if, thinking that the cause is not present, which nevertheless in reality is present, he rashly dispenses?

R. Affirmatively to both, if he is a primary superior; for he has a true will of dispensing, and he can validly dispense even without a just cause. Therefore his will has its effect in the first case, namely if the superior dispenses absolutely, not, if the petitions rest on truth, insofar as there is no essential obreption or surreption in the petition; and likewise, if the matter is doubtful; for it is by no means reasonably presumed that he is unwilling also to dispense if the matter is not objectively true. For this would render consciences liable to innumerable anxieties and scruples. But in the second case the matter is objectively true. Whence from this head there can be no difficulty. But negatively to the first, affirmatively to the second, if the superior is secondary. The first reason is that it is a certain principle that an inferior dispenses invalidly in the law of a superior without sufficient cause. Nevertheless D'Annibale, 3rd ed., p. 1, n. 233, holds the opposite opinion as extrinsically probable. The second reason is that the value of the dispensation does not depend on knowledge of the cause, but on the existence of it. - Lig. l. 1, n. 180, 181, 186; l. 3, 251; l. 7, n. 353.

8. "Caia, a girl, in the fifth year of her age, had uttered a vow of perpetual chastity. But, after six years had then elapsed, when the charity of God gradually and insensibly began to diminish, and on the contrary the stimuli of the flesh to increase, Caia likewise began to love and to be loved by men to such a degree that she was impregnated. But because the vow was only simple, and secretly uttered, hence she sought from Rome a dispensation in order to contract marriage, with a twofold motive alleged, namely that the offspring born might be legitimated by the subsequent marriage, and that the husband might be able to relieve the mother of Caia, who was a widow rather advanced in years. After approximately two months had elapsed, the dispensation came from Rome, directed to a discreet man, with that usual clause, that he dispense if the petitions rest on truth. But because meanwhile not only the offspring born, but also the mother of Caia died, therefore that discreet man rightly began to doubt whether he could still execute the aforesaid dispensation."

Q. 1. When does a dispensation cease? 2. What as to the case?

R. To the first, cf. I. M. 248. To the second: "If both the offspring born and also the widowed mother died before that discreet man (namely the confessor) actually executed the dispensation, he can no longer execute it. The reason is that the final motive cause must necessarily be verified at the time when the dispensation is actually given by the deputy in the rescript, as Kesslinger hands down in addit. 1 to tr. 2, dist. 4, after n. 26, theol. mor., Reiffenstuel with Covarruvias, de matr., p. 2, t. 1, c. 6, § 9, de dispensat., n. 22, where he testifies that it was so decided by the Rota. But in this species of fact the twofold motive is said to have ceased. Therefore that discreet man could no longer execute the dispensation. Consequently it must be said that Caia would indeed contract marriage validly, yet not licitly; because namely the simple vow of chastity is an impeding impediment, although not diriment of marriage.

"But what, you say, if we suppose that the offspring and the widow first died after the confessor had already dispensed with Caia, yet before the marriage had been contracted: would it be licit for her by force of the aforesaid dispensation to marry her betrothed? R. Many deny this because, at least in revocable acts, the legislator must be judged to have wished only to dispense for that time for which he could licitly and without sin dispense; whence just as one dispensed on account of infirmity in the eating of meats, or on account of weakness of the eyes in reciting the canonical hours, is held again to abstain from the eating of meats or to recite the canonical hours as soon as the infirmity has ceased, so likewise such betrothed persons are held to abstain from contracting marriage, notwithstanding the dispensation already obtained. Thus Sanchez, de Matr., l. 8, 30, n. 12 and 13, with many others, certainly not improbably. Nevertheless I judge the opposite opinion of Gobat, tr. 9, Theol. experim., n. 675 and 692; Castropalao, p. 1, tr. 3, disp. 4, p. 15; Illsung, tr. 1, disp. 3, n. 41; and Henno, de Legib., disp. 3, q. 15, a. 5, to be sufficiently probable, especially in this our case. The reason is that the dispensation of Caia had already once been conceded, and indeed absolutely, not only for a certain time, as is accustomed to be conceded to the infirm in the eating of meats, and Caia was simply dispensed from her vow." Elbel 456, 457. There is indeed an essential distinction between a dispensation from the eating of meats, from the recitation of the divine office, etc., and a dispensation of an impediment, whether impeding or diriment of marriage. For the former has divisible matter by a successive tract of time, but the latter has indivisible matter. Whence it is that the former, the cause ceasing in the tract of time, as having been given almost conditionally of itself, consequently ceases; the latter, once given and consummated by a single act, is of itself absolute and perpetual; and, the cause ceasing in the tract of time, it can no longer cease. - Cf. I. M. 248.

114. • DEFINITION. Dispensation is the relaxation of a law in a particular case.

DIVISION. Dispensation can be

1. Licit, or illicit, according as it is made for a just cause, or not.

2. Valid, or invalid, according as it either exempts from the observation of the law, or does not exempt.

3. Absolute, or conditioned, according as it is conceded simply, or with some condition added.

4. Subreptitious, or obreptitious, according as something that must be manifested is kept silent in the petition, or on the contrary something false is asserted ¹.

¹ Thus indeed many define subreption and obreption. But others use each word promiscuously in either sense, or even inversely apply each in the opposite sense. See Reiffenstuel (On book 1, title 3, no. 154).

One must treat 1. of the power of dispensing; 2. of the causes required for dispensing; 3. of the cessation of dispensation.

"77. For his own preservation, man can dispense himself from that law which God established for his benefit." Proposition of Pasquier Quesnel condemned by Clement XI.

"8. The Pope cannot dispense in the statutes of the universal Church." Proposition of the Masters of Oxford condemned by Sixtus IV.

266. I. Necessity and mode. Law does not obtain the force of obliging unless it has been intimated, or promulgated, to the subjects. For promulgation is the act by which the legislator authentically intimates his law to the community, or makes it known, with the will of obliging clearly manifested; and this he can accomplish either by himself or through another. The necessity of this promulgation is acknowledged in Canon Law:¹ "This alone suffices, that he be held to the observance of it [the law], who has known that it has been solemnly issued or publicly promulgated." And deservedly, for law cannot direct or bind the will unless it is first known.

¹ Decretal., l. I, tit. 5, De postulat., c. 1, Ad haec.

From the nature of the thing, that promulgation is required and suffices by which the law, considering all the adjuncts of times, places, and persons, can morally and in a human manner reach the knowledge of the subjects; once this is posited, the mode of promulgating the law is left to the judgment of the legislator.

267. II. Specifically concerning Pontifical laws. 1. The mode of promulgating laws used by the Pontiffs was not always the same.² (a) During the first twelve centuries, they promulgated their constitutions by sending them into the provinces, through clerics of most approved fidelity, either to individual bishops, or to metropolitans or patriarchs, who would take care that the same were transmitted to the bishops. (b) At the beginning of the thirteenth century, they began to promulgate authentic collections of canon law, sending them with a Bull to the more celebrated academies; thus Innocent III, in the year 1210, promulgated the collection of his decretals by letters directed to the University of Bologna. (c) In the course of the same century, they ordered certain Bulls to be promulgated by affixing them in the place of their residence, especially at Rome, with this clause, that such promulgation would suffice for the law to obtain its whole force: thus Martin IV, in the year 1281, issued a Bull against Michael Palaeologus.³

² Zaccaria, De varia Ecclesiae, praesertim Latinae, in promulg. sacrar. constitut. disciplina; Bouix, De princ. juris can., Parisiis, 2nd ed., 1852, p. 248 sq.

³ Bull. Rom., ed. Cocquelines, t. III, P. 2, p. 30.

268. 2. But afterward they promulgated their decrees in various ways: (a) Constitutions or Apostolic Letters, when they contained a law for the whole world, were promulgated by affixing them at Rome, in one or more of these places: at the doors of the Lateran church, of the basilica of St. Peter in the Vatican, of the Apostolic Chancery, - or in the area of Campo de' Fiori. (b) They promulgated Encyclicals by sending them, according to the ancient custom, to individual bishops, or to metropolitans or apostolic nuncios. (c) Indeed, it had almost come into custom that the acts of the Holy See and its decrees, when published by legitimate authority in the secretarial Office by which they had been issued, were held by that very fact to have been promulgated.

3. But Pius X decreed¹ that an official Commentary should be published (Acta Apostolicae Sedis), in which he willed that pontifical constitutions, laws, decrees, and other decisions both of the Roman Pontiffs and of the sacred Congregations and Offices be inserted, and thus promulgated, whenever there is need of promulgation, and no provision has otherwise been made by the Holy See.

¹ Const. Promulgandi, 29 Sept. 1908, A. A. S., I, p. 5.

Therefore the opinion of those who formerly thought that promulgation in provinces and dioceses was required for the force of pontifical laws is to be rejected; for this is in no way required from the very nature of the thing, and moreover the legislator has several times declared that the promulgation which is made at Rome suffices.

269. But today, according to the Code, can. 9, "laws are promulgated by the Apostolic See through publication in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed; and they exercise their force only after three months have been completed from the day which is affixed to the number of the Acta, unless from the nature of the thing they bind at once, or in the law itself a shorter or longer vacancy has been specially and expressly established."

Thus an end is imposed upon the controversy formerly agitated concerning the time at which a law begins to oblige. Some said that it obliges at once, namely on the day after promulgation;² but others gradually, namely from the time at which each person has known it;³ and others, finally, only after two months from the day of promulgation.

² D'Annibale, Summula, t. I, n. 202, note 21, 23.

³ Suarez, lib. III, c. 17, n. 6, and lib. IV, c. 15, n. 9 sq.

270. III. Concerning the promulgation of episcopal laws. According to the recent Code, can. 335, § 2, the matter is left to the reasonable judgment of the bishop. Thus they are sufficiently promulgated if they are publicly read in the cathedral church, or signified by the voice of a herald in the square of the city, - or, having been written, are affixed in a public place designated for this, for example at the doors of the cathedral church, - or are committed to type in the diocesan sheet. - Indeed, if the law regards only the clergy, it needs no other publication except that which is made in the synod itself, at which the principal part of the clergy is present.⁴

⁴ Benedict XIV, De synodo, lib. XIII, c. 4, n. 1.

An episcopal law obliges at once once it has been promulgated, unless otherwise declared; for common law establishes no delay for the obligation of particular laws.

312. (A) Notion. (a) Dispensation in general is prudent administration; but since it pertains to prudent administration to use moderation, and to remit certain things from benignity, the word dispensation signifies a certain lenity and condescension in the application of laws. - It is usually defined as the relaxation of law made by the superior in some particular case in which the law would otherwise oblige. Therefore it differs from epikeia, which judges that some case is not comprehended in the law; and from abrogation or derogation of law, by which a law is taken away in whole or in part for the whole community.

(b) St. Thomas thus declares the reason why it is sometimes expedient to grant a dispensation:¹ it happens sometimes that some precept, which is for the advantage of the multitude, is not suitable to this person or in this case, because through this 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 because of evident and sudden danger, it is fitting that he who has the power of ruling the multitude have the power of dispensing in human law, which rests on his authority.

¹ St. Thomas, Ia IIae, q. 97, a. 4.

313. (B) Concerning the author of dispensation. He who has the authority of making law can dispense by ordinary power, - but he who is deputed to this by the legislator himself can dispense by delegated power.

(a) By ordinary or native right, both the legislator and his superior as to this, that is, as to dispensation, can dispense. Concerning the legislator himself and his successor there is no difficulty, since the law, in its whole extent, depends on their will. Wherefore the Supreme Pontiff can dispense in all ecclesiastical laws, even those enacted by an ecumenical council; but a bishop can dispense in the statutes of his own diocese, even those enacted in synod.

The same must be said concerning the superior as to this; for he, in the ecclesiastical hierarchy, has the whole power of inferiors; thus the Pope can dispense in episcopal laws. But a metropolitan cannot dispense in the laws of a suffragan bishop, because he is not his superior as to all things, nor as to this, namely as to the granting of dispensations.

314. (b) By delegated, or borrowed, right, an inferior can sometimes dispense in the law of a superior, namely whenever he has received this power from the superior; by quasi-ordinary right, when this power is permanently annexed to some office; by merely delegated right, when it has been transiently granted by the superior.

Thus Ordinaries, by power delegated from common law, dispense in irregularities arising from occult delict, except the one which arises from voluntary homicide and except others brought to the contentious forum;¹ likewise they dispense in abstinence and fasting with particular persons, indeed sometimes with the whole community;² they dispense in certain impediments of marriage, in a case of urgent necessity.³

¹ Code, c. 990, § 1.

² Code, c. 1245.

³ What bishops can do as to impediments of marriage we explained in the Treatise on Marriage, n. 1046 sq.

Thus also pastors, who by proper right cannot grant any dispensation, by delegated common law, in particular cases, dispense in fasting and abstinence and also in servile works prohibited on a feast day; thus also confessors.⁴

⁴ Code, cc. 1044-1045.

The Roman Congregations likewise have received the power of dispensing in pontifical laws, according to predefined limits.

315. (C) Concerning the subject of dispensation. Since dispensation is an act of jurisdiction, only subjects can be dispensed by a superior. As to the Supreme Pontiff, there is no difficulty: for all the baptized are his subjects.

But as to bishops, and others whose jurisdiction is exercised within the limits of some territory, these things are to be noted: (a) they can dispense with inhabitants and newcomers who, by reason of domicile or quasi-domicile, are subject to them; indeed with vagi, who, since they are subject to the laws of the place in which they are staying, are judged subjects as to the means necessary or useful for salvation, and therefore as to dispensation in the common laws of the Church; more probably also with pilgrims, who in a case of necessity cannot have recourse to their own bishop, and this indeed from the presumed consent of the bishop proper to the pilgrims: for otherwise pilgrims would be deprived of a means very useful for salvation.

(b) Since dispensation is an act of voluntary jurisdiction, and this can be exercised outside the territory, a bishop, pastor, or delegates can dispense with inhabitants and newcomers, even those dwelling outside the territory, provided nevertheless that these remain subjects, that is, retain domicile or quasi-domicile in the territory of the one dispensing.

(c) He who possesses the faculty of dispensing can dispense with himself, unless something else is established from the nature of things or from law, as is clear from the Code, c. 201, § 3: for voluntary jurisdiction, such as the power of dispensing, of itself does not require a distinction of persons, and moreover no law requires it in the present matter. - Hence he who has ordinary or delegated general power of dispensing in laws, or in vows and oaths, can use this with regard to himself.¹

¹ Suarez, liber VI, caput 12, n. 8-12; Sanchez, de Matrimonio, liber VIII, disp. 3; Schmalzgr., in titulo de Constit., n. 65; St. Alphonsus, liber I, n. 183; liber III, n. 249, 256.

316. (D) Concerning the conditions required for dispensation. For validity, there are required:

(a) In the one granting, a just and reasonable cause, if he dispenses in the law of a Superior; but none if he dispenses in his own law or in the law of an inferior; in doubt concerning the sufficiency of the cause, a dispensation can be granted validly.²

² Code, c. 84: "§ 1. Let there be no dispensation from an ecclesiastical law without a just and reasonable cause, with account taken of the gravity of the law from which dispensation is made; otherwise a dispensation given by an inferior is illicit and invalid. - § 2. A dispensation in doubt concerning the sufficiency of the cause is licitly sought, and can be licitly and validly granted."

(b) In the petitioner, there is required the allegation of a thing necessarily to be declared, unless the rescript has been granted motu proprio (Code, c. 45); the truth of at least one final or motive cause at the time when the rescript was given or at the time of execution; and recourse to the competent Superior, especially when a dispensation has already been denied (cf. cc. 43-44).

317. For the liceity of dispensation, there is required a cause at least probably sufficient, under light obligation if the legislator dispenses, under grave obligation in a grave matter if a delegate dispenses.

As to other things, cf. in the Code the titles concerning rescripts and concerning dispensations.

— By dispensation itself the obligation of the subject is taken away.

I. Notion. Dispensation, however, is "the relaxation of law in a special case" (c. 80). Therefore it differs:

a) From excuse, which indeed takes away obligation from the mind of the Superior in making the law, but without the intervention of the Superior: wherefore any expert and prudent man can declare someone to be immune from a law. Dispensation, on the contrary, means a certain retraction or attenuation of the will first had. (Lehmkuhl, I, 254; Wernz, I, 119);

b) From invalidation of obligation, which generally arises from dominative power, and touches the law only mediately. Thus vows of children not emancipated are invalidated by the father;

c) From privilege, which positively constitutes a certain right, while dispensation operates merely negatively;

d) From license, which is a faculty made according to law; a condition, on which being posited, the act is permitted by the law itself. Therefore it is not, as dispensation is, against the law, or a wound of the law ¹. And the necessity of license is understood to have been imposed in such a way that, unless formal and express license is required, license can be presumed. That is, it is judged enough that you act dependently on the Superior: which dependence is preserved if, according to a prudent estimation of mind, the Superior would grant the matter, and it is not repugnant that, with attention to the circumstances, the petition of license be omitted. Wherefore, if dispensation cannot be presumed, because presumption does not supply a causal effect, license can of itself be presumed, since it supposes no causal effect. Dispensation requires jurisdiction; license can flow from any legitimate power.

¹ Thus, from c. 1398 itself, the faculty as to prohibited books is not a dispensation, but a license, since the prohibitions are not absolute, but are against reading, etc., "without due license."

— II. The author of dispensation. By the will of him from whose will the law obliges, the bond of law can be taken away by dispensation. Wherefore the author of the law, or one who has superior or equal power, can always loose anyone from the obligation of the law by dispensation.

Anyone, I say, except himself, since by a superior law he must observe his own law. But when a just cause accedes, he himself is exempted where another is dispensed, because the reason of the common good, on account of which the legislator must observe his law, does not require that he be bound more firmly than the subjects; indeed rather it requires that the same just causes of excuse be able to hold. (There is no question concerning God, who is not formally bound by his law.)

An inferior to the legislator cannot dispense except by derived power, and because of a just cause: for a faculty given for dispensing is not judged to have been conceded for dissipating. Power, however, is communicated by delegation, which can be universal and on account of the dispenser himself, or particular and on account of the one dispensed. This delegation again can be conceded as subdelegable or not. The greatest delegation occurs when power is communicated as ordinary. Hence they distinguish power made for dispensing by ordinary right or by delegated right.

— III. The required cause. A just cause, which is always required for liceity, and, for a Superior who is inferior to the Legislator, for validity itself, ought not to be so great that of itself it exempts from the law, nor can it be too slight: this must be prudently estimated for individual precepts.

A legislator who dispenses in his own law without cause, scandal or other grave evils being excluded, is thought to sin only venially, as also he who knowingly seeks from him a dispensation without cause. The very use of such a dispensation, which is valid, does not seem of itself to be illicit.

On the contrary, both the concession and the petition and the use knowingly made of an invalid dispensation are grave sins where there is question of a grave precept.

Furthermore the causes of dispensing can be interior or exterior to the observance of the law. Interior to the observance are difficulty, the inconvenience of the observance of the law, an impediment which in this case or in this person the observance of the law brings to a better good: for these causes dispensations from the observance of Sacred Time (fasting, hearing Mass) are generally granted. Exterior causes are drawn either from the person dispensing, when it is expedient that he show himself liberal and benign; or from the person to be dispensed, to whom the dispensation will either be useful or seems to be granted for good merit; or from the common good: for example, to prevent too many transgressions, to increase common joy. For more, cf. Suarez, Leg. l. 6, c. 18, n. 15-18; 23-26.

Yet the use of every cause, if the one dispensing is not the legislator, is not always permitted. For it must be seen in what way the faculty has been delegated, within what limits it is contained.

Such a cause can exist as obliges the Superior to dispense. Nevertheless, a dispensation unduly denied does not of itself excuse the subject from observing the law.

To amputate anxieties in this matter, it will be helpful to note these things: a) The legislator is judged to permit that even a delegate dispense in doubt concerning the sufficiency of the cause (not likewise in doubt concerning the existence of the cause), lest more frequent doubts open the way to scruples and difficulties. Hence c. 84 § 2: "A dispensation, in doubt concerning the sufficiency of the cause, is licitly sought, and can licitly and validly be granted." b) A subject who alleges his reasons to the Superior and in good faith seeks a dispensation, once the dispensation has been obtained, can be secure. c) In doubt, one can answer for the validity of a dispensation that has been made.

But what if afterwards it has become known that the cause was lacking? We suppose that it is not the case where, either from the object of the dispensation or from the form by which dispensation was given, the competent Superior established that the dispensation would be efficacious in every case.

Therefore, if there has been no cause, the dispensation falls, and from that moment the futile attempt to use the dispensation will become formally illicit. If there has been some cause but an insufficient one, a dispensation which has a successive course, that is, which permits several distinct applications, falls for the future; but one which had to be efficacious once for all, for example to make a marriage valid, does not necessarily fall, but it must be prudently estimated what the author of the dispensation, by his own or delegated authority, could and wished to do.

What happens when the cause ceases, cf. here below.

— IV. The subject of dispensation. Since it requires jurisdiction, dispensation of itself can be granted only to subjects. Yet it happens that law extends the use of dispensation to non-subjects for their greater facility, or lest they be or become of worse condition than the subjects themselves.

Can a Superior or one having faculty dispense himself? He certainly can do this indirectly; insofar as he has comprehended himself in the general faculty made, by which, for example, he looses the whole diocese from some obligation. Endowed with the power of delegating, he can also make faculty for a delegate, for example a confessor, to dispense with himself. A subordinate dispenser can also do this directly according to the mode in which faculty has been conceded to him. For an act of voluntary jurisdiction does not seem to require distinction of persons. Thus a faculty made for a confessor is sometimes restricted to penitents, while a faculty given to a Superior generally does not prohibit this use for him. A legislator, as we have said, in his own law, just as he does not bind himself, so he does not properly dispense with himself; but where there is cause for dispensing, he can have himself as dispensed. We prefer this explanation. There are, however, those who concede to the legislator a direct faculty of dispensing with himself. Cf. Wernz, I, n. 123.

Dispensation, of itself, can be sought and obtained for another. Nor do acceptance of the dispensation or formal intimation to the one dispensed seem of themselves to be required. But attention must be given to the statutes of positive law, especially where the dispensation is at the same time onerous, for example brings about a change of religious state ¹. That conscious use of a dispensation is inaccessible to one ignorant of it is self-evident.

¹ Wherefore, although petitions directed to Sacred Congregations do not of themselves have to be autograph, when there is question of dispensation from the obligations of sacred order, the Sacred Congregation of the Sacraments is accustomed to require the writing and signature of the petitioner.

— V. The force of a dispensation that has been made must be gathered from the power of the one dispensing, from the tenor of the dispensation, and from the definitions of positive law. Cf. more where there is question of ecclesiastical law.

A distinction is made between a dispensation which removes an impediment, an incapacity; and this of itself is beneficial everywhere; and a dispensation which takes away the obligation of a law. This can be only real, which benefits all within the territory, but no one outside the territory; personal, which, being proper to the person, benefits him everywhere; real and personal, which benefits all within the territory, but subjects also outside the territory.

— VI. Interpretation of dispensation. A general faculty of dispensing is judged a grace conceded to the one dispensing: wherefore it is to be interpreted broadly.

On the contrary, the dispensation itself, since it is a wound of the law, of itself requires strict interpretation, especially where the right of a third party is injured. Yet they say broad interpretation is required if the dispensation has been conceded motu proprio, or for the common good, or to the community itself, or if it is contained in the body of law ¹, that is, now in the Code or universal law: for then it has been given for the common good. On the contrary, a faculty of dispensing with some particular person or for a certain case is morally nothing but concession of the dispensation itself: wherefore it requires strict interpretation. Cf. c. 85, Wernz, I, 125.

¹ St. Alphonsus, I, 104.

— VII. Cessation of dispensation. A dispensation ceases:

1. By revocation, which, in revocable matter, the legislator always validly effects; but an inferior only because of a just cause, and insofar as he is judged to have this power from the Superior expressly or tacitly. Moreover he has this who possesses a general faculty of dispensing, but not a delegate for a particular dispensation. For when the dispensation has been made, the latter, contrary to the former, has exhausted all power. Cf. Wernz, 1, 126.

2. By renunciation of him who accepted the dispensation, provided it has been accepted by the Superior: for without his assent the obligation cannot revive. The competent Superior is to be judged from the dispensation made and the faculties conceded. Thus a confessor dispensing in fasting can retract the very will of dispensing for the future, and therefore can accept the renunciation; but a delegate for a particular dispensation of marriage will not be able to do this.

3. Sometimes by the death of the one dispensing, according to the clauses employed and positive sanctions.

4. Sometimes when the end or cause ceases. Concerning this matter these things come to be noted. If the motive cause has not entirely ceased, the dispensation does not cease. If the cause has been reduced to an irrevocable act, for example if marriage has been contracted, if a benefice has been possessed, the effect of the dispensation, when the cause ceases, is not taken away. But if the dispensation made has not yet been used or can easily be revoked, the mind of the dispenser must prudently be investigated, who could have conceded the dispensation absolutely or dependently on the perseverance of the cause. But they reasonably explain the mind of the one granting thus, that what is conceded at once and all together, and has as it were an indivisible effect, is judged to have been conceded absolutely, as when an irregularity or impediment of marriage is removed. For a law which has been taken away by dispensation cannot revive without a new will of the legislator. Hence a matrimonial dispensation conceded because of poverty, because of offspring to be legitimated, etc., remains efficacious although before the marriage poverty has ceased, the offspring has died ¹. If, on the contrary, the matter has a successive course, for example a dispensation from fasting, from the breviary, from hearing Mass, this reasonably could not have been conceded except as virtually multiple for individual cases of obligation, and subject to the condition of the persevering cause.

¹ But if at the same time an obligation toward God undertaken, for example, by vow of chastity, had to be taken away, the matter is less certain. Cf. Lehmkuhl, I, 269; Noldin, Princ. n. 189. We shall examine the matter in its own place.

— I. Directly, law ceases when a new law expressly revokes the former or is contrary to it, or entirely orders the matter anew; or also when its end ceases contrarily, or it has commonly become useless. But uselessness in a particular case will rarely be able to be alleged.

II. The bond of law is dissolved:

1. When subjection has been removed, a) because of a changed condition of the person or because of changed territory; b) because of privilege.

Privilege means a particular and non-necessary right conceded by a beneficent will to persons, whether physical or moral.

Divisions of privilege. From object, privilege beyond the law grants a faculty which is prohibited by no law; privilege contrary to law withdraws from the command of law a person or act which is subject to it: it is conceded only to subjects and of itself is of strict interpretation. Privilege according to law is had only formally, insofar as what the law concedes is given by a title distinct from law. From its motive it is gracious, remunerative, onerous. From its origin, it is obtained by direct concession, whether motu proprio or at the instance of a party: what is conceded motu proprio is to be understood more broadly. Direct concession is made by law (a privilege contained in the Code) or by indult. It is also obtained by communication, by legitimate custom, and by prescription. A privilege introduced by law or custom also follows the norms of law and custom. By prescription a subjective right is rather obtained than a norm of right constituted. Communication extends to other persons a privilege conceded to certain ones; and this either by a particular act or by a general disposition. Communication can be in principal form and in accessory form: in the former case, but not in the latter, the privilege subsists independently of the prior concession. A real privilege is annexed to a thing, place, office; a personal privilege adheres immediately to the person: among personal privileges are numbered privileges conceded to a pious cause, a religion, etc. Privilege, generally favorable, also becomes odious insofar as it is onerous to another or, for the advantage of private persons, is opposed to common right.

The interpretation of privilege requires that the tenor of the words be observed; and that the privilege always effect something. Interpretation is sometimes to be made strictly, sometimes and of itself broadly.

The use of a privilege of itself is free; by accident it becomes necessary, whether to subject persons or even to a community.

Privileges cease when the day arrives, when the person or thing to which they adhere has been extinguished, by revocation, by liberative prescription of him who bears the burden; by renunciation, which is not always licit or valid.

2. The bond is also dissolved through impediments of execution.

a) Invincible ignorance, already of itself; vincible ignorance, sometimes from the will of the legislator, excuses from obligation.

b) Impotence excuses, whether it is strictly such, or also an excessive inconvenience, accidental and not accepted in an office. From the necessity of the common good or of a connected negative precept of natural law, law obliges even with danger to life.

c) Fear always diminishes malice; indeed it can create an excusing inconvenience.

To the question whether or not it is lawful voluntarily to place a cause of impediments, one must answer with distinction, by attending to the rigor of the precept, the extension of the impediment, its utility, its distance from the precept, the relation between the impediment and the matter commanded, and thence prudently gathering the will of the legislator. The cause can be so good, for example charity toward the sick, that it is right to seek with direct intention an excuse from the precept.

3. Through dispensation, or relaxation of law in a special case. This differs from excuse, from invalidation, and also from license, which is a faculty made according to law, so that it is not a wound of the law, and which can also be presumed.

The author of the law, or his equal or Superior, dispenses others by his own right, yet not directly himself, since he is held by a superior law; but he himself is exempted where others would be dispensed. Yet he can comprehend himself in a general dispensation; indeed he can delegate power for dispensing with himself. Others dispense by delegated power, whether universal or particular. The greatest delegation occurs when power is communicated as ordinary.

A just cause, always required for liceity, is required for validity if the one dispensing is not the legislator. Causes can be interior to observance, such as excessive difficulty, inconvenience; or exterior to the same, which are drawn either from the person of the one dispensing, or from the person dispensed, or from the common good. Dispensation is licit in doubt concerning the sufficiency of the cause; just as in doubt one must answer for the validity of the dispensation, so that a subject sincerely and in good faith seeking can be secure. If it has appeared that there was no cause, the use of the dispensation becomes illicit. If it is demonstrated that the cause was insufficient, a dispensation which has a successive course ceases for the future; but one which had to be efficacious once for all falls or not according to the prudently estimated mind of the one dispensing and his power.

Of itself dispensation is conceded only to subjects. Yet law sometimes extends the benefit of dispensation to non-subjects, for instance to exempt religious. According to the mode in which power has been made for him, a delegated dispenser can or cannot dispense with himself.

Dispensation can also be sought and obtained for another, nor of itself does it require the consent of the one dispensed. A dispensation which takes away an impediment or incapacity is beneficial everywhere, as is also a personal one; a real one benefits all within the territory.

A general faculty of dispensing, since it is a grace made to the one dispensing, is to be interpreted broadly, otherwise than the dispensation itself, since it is a wound of the law, unless it has been conceded motu proprio, or for the common good, or to the community itself, or by law.

A dispensation ceases by revocation, whose author can be the legislator or one who has a general power of dispensing; it also ceases by accepted renunciation, by the death of the one dispensed, when the end or cause entirely ceases, if the matter has a successive course, but not if the cause has been brought to an irrevocable act, such as marriage. If use of the dispensation has not yet been made, the mind of the one dispensing must prudently be explored.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As such, they can dispense their subjects:

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

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

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

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

From oaths (c. 1320).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ De Matrimonio, l. 8, d. 3, n. 8-9.

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

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

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

238. Notion of dispensation.³⁹ According to the primitive notion, dispensation (oikonomia) is an equitable distribution of a common thing to individuals according to each one's necessity.⁴⁰ But since it pertains to prudent administration sometimes from benignity to remit something otherwise owed, hence dispensation is wont to signify some remission of obligation. But dispensation of law can be defined: the relaxation of a law, or of its obligation alone, made in particular cases by competent authority from a special and sufficient cause.⁴¹ Therefore the effect of dispensation is to take away in particular cases either the law itself or at least its obligation. Dispensation properly so called is always an act of jurisdiction and not of domination nor of knowledge alone; and therefore one who lacks ecclesiastical jurisdiction, as for example a superioress, cannot properly grant an ecclesiastical dispensation. To declare the notion of dispensation more clearly, it is useful to compare it with similar acts. Therefore dispensation differs:

1. from epikeia, since it is not done by a legitimate superior, but by the subject himself judging that some act is not comprehended under the law;

2. from license, which has a much broader signification than dispensation. Anyone who freely disposes of that thing whose use is sought can concede license. Thus a master gives a servant license to make a journey; thus a father gives a son license to use some thing, etc. There is given a presumed license, but there is not given a presumed dispensation; unless, however, someone in an improper sense wished to call epikeia a presumed dispensation;

3. from declaration, by which a superior or some other learned man declares that in some determined case the law does not oblige. For suitable knowledge is required and suffices for a licit declaration; but for a licit dispensation jurisdiction is required besides;

4. from invalidation, by which a superior from dominative power either annuls or suspends some obligation of a subject; for example, a husband can indeed invalidate, but not dispense, the vows of his wife.

5. from privilege, which indeed of itself is perpetual and constitutes a true private law, while on the contrary dispensation (at least ordinarily) is temporary and lacks the character of law.

³⁹ Both in ancient and in modern times rather many things have been written concerning the notion of dispensation, but nevertheless not small ambiguities and confusions concerning this notion still exist. This indeed seems to come from the fact that dispensation is not always taken in the same sense in diverse matters, nor was it so taken in past times. Authors speak in one and the same tenor concerning dispensation in fasting, in matrimonial impediments, in ratified marriage, in irregularities, in vows, etc.; and nevertheless it is clearer than light that, for example, dispensation of ratified marriage is altogether something other than dispensation of fasting or abstinence. For by means of dispensation a ratified marriage is wholly destroyed and taken away, so that each spouse can freely enter into a new marriage; but by means of dispensation the law of fasting or abstinence is by no means taken away, but, while it remains, only its obligation in a particular case is suspended. Cf. Corradus Pyrrhus, Praxis dispensationum; Thomassinus, Vetus et nova disciplina P. II, l. 2, c. 72; Stiegler, Dispensationswesen, Dispensationsrecht, Mainz 1901.

⁴⁰ Cf. Gen. 43, 16-19; Luke 12, 42.

⁴¹ Cf. Cod. iur. can. c. 80.

239. Divisions. There are several divisions of dispensation, which nevertheless we do not all bring forward for the sake of brevity. For a fuller doctrine, the canonists can be consulted. Chiefly there are distinguished:

1. Valid and invalid dispensation, according as it really produces the intended effect, or not.

2. Licit or illicit dispensation, according as it is clothed with all conditions, even accidental ones, required by law, or according as some accidentally and not essentially required things are lacking to it.

3. Subreptitious and obreptitious dispensation, according as in the petition for dispensation something true which had to be manifested was concealed, or also something false was declared.⁴² But by some ancient authors subreptitious and obreptitious dispensation are taken promiscuously for every dispensation which has been obtained in a not sincere manner.⁴³

4. Express and tacit dispensation, according as it is expressed in clear words, or is deduced from some fact. Some authors call tacit dispensation implicit dispensation.

Since the present matter of dispensation often comes into use in ecclesiastical practice, we shall discuss it a little more fully, nevertheless omitting several things which pertain to matrimonial dispensations, concerning which discussion will be below in the treatise on marriage.

⁴² Cf. Cod. iur. can. c. 42.

⁴³ Cf. Ferraris, Prompta Bibl., word "Rescriptum" n. 29.

240. Author of dispensation. "Dispensation ... can be conceded by the maker of the law, by his successor or superior, and also by him to whom they have conceded the faculty of dispensing."⁴⁴ The legislator himself or his delegate can concede dispensations; for he who freely made the law can also in a particular case remit the obligation of the law, either by himself or through his delegate.⁴⁵ It is plain of itself that the successor or superior of the legislator has the same power. The legislator, or his successor or superior, is said to dispense by proper authority. But all others cannot dispense except by delegated authority; and this, if by law or legitimate custom it is attached to some office, is wont to be called quasi-ordinary authority, or power, or jurisdiction. Thus, for example, a pastor is said to dispense by quasi-ordinary authority in lighter ecclesiastical laws, as in abstinence to be observed on some determined day.

⁴⁴ Cod. iur. can. c. 80.

⁴⁵ Cf. St. Thomas, S. theol. I-II, q. 97, a. 4.

241. The Supreme Pontiff can dispense 1. in absolutely all ecclesiastical laws; 2. in divine law, in which divine right, as it were, arises from human will, such as vows, a promissory oath, a ratified marriage.

That the Supreme Pontiff can dispense in all ecclesiastical laws is certain; for "the Pope has the fullness of power in the Church, namely in such a way that whatever things have been instituted by the Church or by the prelates of the Church are dispensable by the Pope."⁴⁶ - In ancient times some thought that the Pope was not above an ecumenical Council; but this doctrine is false, and already Sixtus IV condemned the proposition of Peter de Osma: "The Pope cannot dispense in the statutes of the universal Church."⁴⁷

That the Pope cannot properly dispense in some divine law is asserted by many. Thus St. Thomas also⁴⁸ says: "But concerning those things which are of divine right or natural right, [the Pope] cannot dispense." - Nevertheless it is certain that the Pope dispenses and can dispense in a ratified marriage; it is likewise certain that a ratified marriage is a true sacrament and indissoluble by divine right. Therefore the Pope dispenses in divine law. Since these things are so, authors now speak in this way concerning the power of the Supreme Pontiff: The Pope cannot dispense in absolute divine law, for example, concerning the number, matter, and form of the sacraments; and St. Thomas must be understood concerning this absolute law if, with many old authors, he denies the faculty of dispensing in divine law. But the Pope can sometimes dispense in divine right which is founded upon some human fact, for example, upon matrimonial consent given, upon a vow emitted.⁴⁹

⁴⁶ St. Thomas, Quodlib. 4, a. 13.

⁴⁷ Denz. n. 731.

⁴⁸ Quodlib., l. c. Ferraris (Prompta Bibl., word "Dispensatio" n. 19) calls this opinion almost common, for which he cites several grave authors. Cf. also St. Alphonsus, Theol. mor. l. 1, n. 189.

⁴⁹ Cf. above n. 164.

242. Bishops and other local Ordinaries can dispense:

1. In all particular laws and statutes of their territory. For the bishop alone is the proper legislator of those laws, even if they were made in a diocesan synod. But a legislator can by proper authority dispense in his own law. Certainly if some diocesan law has been approved by the Supreme Pontiff, and indeed not in common form, but in specific form, now it cannot be dispensed by the bishop, because it has obtained the special sanction of the Pope. - But laws of a plenary or provincial Council are held as superior with respect to bishops, who therefore cannot dispense in them except in a particular case, or if this has been conceded to them expressly or tacitly.⁵⁰

2. Also in common laws of the Church which are wont to be dispensed by the Holy See, provided there is question a) of a particular case of urgent necessity in which previous recourse to the Holy See is difficult;⁵¹ or b) of cases frequently occurring in matters not so grave, as, for example, in the law of fasting and abstinence; or c) of a doubtful law, if it is a doubt of fact. But in a doubt of law the law now does not oblige.^51a

3. In all those common laws in which the faculty of dispensing is conceded to bishops by the law itself, for example, in irregularities and suspensions arising from an occult delict, except that which arises from voluntary homicide, and except others brought to the contentious forum.⁵²

Not only by ordinary, but also by proper authority, a bishop can dispense in the particular laws of his diocese; for then he dispenses in his own law. But in the common laws of the Church a bishop cannot dispense by proper authority, as is plain of itself; nevertheless he dispenses by quasi-ordinary power in the cases indicated under n. 2 and 3, because by written or customary law itself such a faculty of dispensing has been conceded to him. Discussion of those individual cases will return in their own places. - The Gallicans and Febronians taught that a bishop can simply dispense his diocesan subjects in every ecclesiastical law, but this is false, since it lacks solid foundation and is repugnant to the constant doctrine and practice of the Holy See.⁵³

By specially delegated authority bishops can sometimes exercise very ample faculties of dispensing. But how far those faculties extend must be seen from the particular pontifical rescripts.

⁵⁰ Cod. iur. can. c. 291, § 2.

⁵¹ Ibid. c. 81.

^51a Ibid. c. 15.

⁵² Cf. Council of Trent, sess. 24, c. 6 de reform. Cf. Cod. iur. can. cc. 990, 1043, 1045, 1245, 2237.

⁵³ Cf. epist. of Pius VI to the bishop of Trier, a. 1782.

243. Religious superiors in exempt clerical institutes, by ordinary authority, can dispense in the laws and statutes of their own institute. The approved statutes of each institute must be seen. As to common ecclesiastical laws, generally it can be said that those exempt religious superiors (even local ones), since with respect to their own subjects they have quasi-episcopal jurisdiction, possess for their subjects the same ordinary power (but not delegated power) of dispensing by which bishops enjoy for their diocesan subjects. But as to the observance of feast days, abstinence, and fasting, those superiors cannot dispense all subjects together, but only individual ones.⁵⁴

⁵⁴ Cod. iur. can. c. 1245, § 3.

244. Pastors by ordinary authority can grant no dispensation in ecclesiastical law.⁵⁵ Nevertheless, since they have quasi-ordinary jurisdiction, ecclesiastical law attributes to them the faculty of dispensing in individual lighter cases, for example, in fasting, in abstinence, in servile works prohibited on a feast day, individual faithful subject to them, indeed even individual families, but not the whole parish together.⁵⁶ The scope of this faculty is wont to be determined either from legitimate custom or from diocesan statutes. When danger of death is urgent, or in another urgent case, pastors also have an ample faculty of dispensing in matrimonial impediments, as will be said below III, n. 859-860.

⁵⁵ Ibid. c. 83.

⁵⁶ Ibid. c. 1245, § 1.

245. Confessors can dispense in more urgent occult cases in which the Ordinary cannot be approached and danger of grave damage or infamy is imminent: 1. concerning all irregularities arising from delict, except a) an irregularity which has arisen from voluntary homicide or from procuration of abortion; b) an irregularity brought to the judicial forum. But this dispensation is limited to the exercise of an order received and therefore does not extend to receiving orders;⁵⁷ 2. concerning the observance of a vindictive penalty,⁵⁸ with the burden, however, of having recourse within a month to the competent superior. But if this recourse is morally impossible, the confessor can dispense absolutely; 3. concerning all matrimonial impediments introduced by ecclesiastical law, with two excepted, namely those which arise from the order of sacred priesthood and from affinity in the direct line, if that affinity arose from a consummated marriage.⁵⁹ Indeed, when danger of death is urgent, the confessor can, for the internal forum in the act of sacramental confession, dispense even from public impediments and from the form to be observed in the celebration of marriage, as will be said more broadly below III, 859.

In more urgent cases confessors also have an ample faculty of absolving from censures, as will be said in the treatise on censures. But this is not dispensation, but absolution.

Religious confessors who have the privileges of the Mendicant orders, by delegated authority, can besides dispense: 1. In all vows, except a) solemn or even public vows, that is, all public vows emitted⁶⁰ in some order or in some approved religious congregation; b) vows principally emitted in favor of a third party; c) the following two vows: of perfect chastity, and of entering an approved religion with solemn vows. It must be noted, however, that dispensation of these two vows is then only reserved if they are vows altogether absolute, certain, perfect, and emitted after the completed eighteenth year of age.⁶¹ Therefore if they are conditioned, penal, or not so certain, they can be dispensed by regular confessors. Hence, for example, if a girl in illness vowed that she would enter the order of Poor Clares if she recovered health, she can from a reasonable cause be dispensed from this vow by a regular confessor, since that vow depends on the condition of health to be recovered.⁶² - 2. In a promissory oath, and indeed whether it is joined with a vow or not.⁶³ - Also in a simple vow of perfect chastity, when immediately before marriage one or other of the betrothed declares that vow in confession, and there is no time available for obtaining dispensation from the competent authority. Thus the opinion today is certain, since in such an urgent case every confessor can dispense from that impediment of marriage.

⁵⁷ Ibid. c. 990, § 2.

⁵⁸ Ibid. c. 2290.

⁵⁹ Ibid. c. 1045.

⁶⁰ If some religious has made private vows, for example, to recite the Rosary daily, he can be dispensed by a regular confessor.

⁶¹ Cod. iur. can. c. 1309.

⁶² Some authors, among whom especially is Concina (Theol. christ. l. 4 in Decal., diss. 3, c. 11, n. 16), deny that regular confessors can dispense in vows. They concede only that they can commute vows. Ger. Oesterle, O.S.B., refutes this opinion very well in a learned way in Theologie und Glaube 1911, 389 sqq. and shows the opposite opinion to be safe in practice. (Cf. St. Alphonsus, Theol. mor. l. 4, n. 257, and below in the treatise on vows II, 423.)

⁶³ Cf. Noldin, De praecept. n. 253.

246. Note 1. Whoever has ordinary (or quasi-ordinary) power of dispensing can subdelegate it to others, unless something else is expressly provided by law. - An ample faculty of dispensing is conceded to all confessors in the so-called "Little Page of the Sacred Penitentiary," which can be obtained rather easily.

Note 2. When a just cause of dispensation exists, the superior not only can, but also sometimes must, concede dispensation. For either law, or justice, or charity can demand this. Thus, for example, a bishop must dispense from interstices if there is a great scarcity of priests and otherwise the common good would be harmed (legal justice demands this). Likewise a bishop must dispense in vows if otherwise the one vowing would be situated in grave danger of salvation (charity demands this); he must dispense in matrimonial banns if otherwise great damage or scandal would arise (justice demands this).

247. The subject of dispensation is all those who are subject at least in some way to the jurisdiction of the one dispensing. For dispensation, as was said above, is an act of jurisdiction, which cannot be exercised except upon subjects (to whom the unsettled are reckoned).⁶⁴ Hence, for example, a bishop (or pastor) can dispense with his subjects even when they are staying outside his own territory for a time. For they remain in some way subjects and nothing prevents dispensation from being conceded to the absent.⁶⁵ - But it is said: those who in some way are subject to the jurisdiction of the one dispensing. For full subjection is not required; hence, for example, a superior in an exempt clerical religious institute can dispense in fasting and abstinence even all those who dwell day and night in his religious house, such as servants, students, etc. A special difficulty arises concerning dispensation to be granted to travelers, exempt religious, and the one dispensing himself. But according to all authors, for obtaining dispensations the unsettled must have recourse to the superior of the place in which they are here and now staying.

⁶⁴ Cod. iur. can. c. 94, § 2.

⁶⁵ Ibid. c. 207, § 3.

248. Travelers cannot be dispensed in common laws by the superior of the place where they are staying. For they are not properly subjects. Thus at least of itself. But in several cases travelers can receive dispensations of common law, just as inhabitants, as will be said in the proper places. Hence generally: In lesser cases, for example, in fasting, in observance of feasts, in abstinence, etc., the bishop, pastor, or even confessor (from delegation of the bishop) can from a reasonable cause dispense travelers.⁶⁶

⁶⁶ Cf. St. Alphonsus, l. c. l. 1, n. 158; Cod. iur. can. c. 1245.

249. Exempt religious, according to the present discipline of the Church, can almost be dispensed by the Ordinary of the place like others living in the territory.⁶⁷ The reason is that otherwise those religious would be in a worse condition than the common faithful; and their exemption would turn not to their advantage, but rather to their detriment. This indeed is against Rule 61 of Law in VI: "What is conceded for the grace of someone is not to be turned back to his loss."⁶⁸ It must be noted, however, that exempt religious cannot seek dispensations from the Ordinary of the place unless previous permission of their own superior has been had. For he who seeks dispensation places himself (at least for this case) under the jurisdiction of the one dispensing. Moreover an exempt religious is prohibited, without previous legitimate permission, from placing himself under the jurisdiction of the local Ordinary.

⁶⁷ Cod. iur. can. c. 620.

⁶⁸ Thus also teach Vermeersch, De relig. instit. I, n. 382; Noldin, De princ. n. 183; Lehmkuhl, Theol. mor. I, 261.

250. The one dispensing himself, unless he has a power of dispensing limited to a certain mode or to certain persons, can also dispense with himself. Thus the common opinion. The reason is that dispensation is an act of voluntary and gracious jurisdiction, which one can ordinarily exercise upon himself. Hence, for example, a superior who can dispense his subjects in fasting can also dispense himself. If, however, the faculty of dispensing has been conceded to be exercised in the tribunal of penance alone, then certainly the one dispensing cannot dispense with himself, because no one can be judge of himself in the tribunal of penance. - In practice it is to be counseled that, for the internal forum, anyone, even the legislator himself, seek dispensation from another confessor, according to that saying: "No one is judge in his own cause."⁶⁹

Note. Since jurisdiction can be exercised even upon one absent, ignorant, and unwilling, nothing prevents dispensation from being conceded to some subject who is absent, or ignorant, or even unwilling. And thus in reality dispensation is sometimes conceded in the so-called "sanation in the root."⁷⁰

⁶⁹ Cf. S. theol. II-II, q. 185, a. 8.

⁷⁰ Cf. below III, 887.

251. Conditions required for dispensation. From the law of the Council of Trent,⁷¹ which thereafter was not changed, three conditions are required for legitimate dispensation: 1. a sufficient cause; 2. knowledge of that cause; 3. gratuitous concession of the dispensation.

1. Sufficient cause of dispensation. Internal and external causes, motive or final causes, and impulsive causes are usually distinguished.

Internal causes arise from the difficulty of observing the law itself in a particular case; for example, difficulty of observing the law of fasting because of grave labors.

External causes arise not from the law itself, but from the common good, for which better provision is made if in this particular case dispensation of the law is conceded. Such external causes are the dignity of the petitioner or of the superior dispensing, the payment of money for the utility of the Church. Thus, for example, because of an external cause a dispensation from some matrimonial impediment is conceded to a prince, namely because in this way the prince is bound more to the Church or because he gives a great sum of money to the poor. Such dispensations are sometimes called given "without cause," that is, without an internal cause, but not without an external cause. These external causes also are just and sufficient for obtaining dispensation. For in making laws the legislator first of all intends the common good. But it can be more useful for the common good if, although an internal cause is lacking, dispensation is conceded because of the dignity of the petitioner, than if it is refused. Therefore then the legislator or his delegate licitly concedes dispensation.

Motive or final causes are called those which by themselves alone suffice for obtaining dispensation. They are also customarily called canonical, because canon law admits them as sufficient.⁷²

Impulsive causes are those which indeed alone do not suffice, but nevertheless help for obtaining dispensation. The distinction of motive and impulsive causes often comes into use in matrimonial dispensations.

⁷¹ "Let all know that the most sacred canons are to be observed by all, and, so far as can be done, indiscriminately. But if an urgent and just reason and sometimes greater utility should demand that dispensation be made with some persons, this, the cause being known, and with the greatest maturity and gratuitously, is to be performed by whomever the dispensation will pertain to; and a dispensation made otherwise is to be judged subreptitious" (sess. 25, c. 18 de reform.).

⁷² Cf. below in the treatise on marriage, the canonical causes for obtaining dispensations concerning impediments, III, 871.

252. Principle. A dispensation conceded without sufficient cause is a) illicit, if it was given by the legislator himself (or his successor or superior); but it is besides b) invalid, if it was given from delegated authority.⁷³

Therefore every dispensation conceded without sufficient cause is always illicit and sometimes also invalid. The reason for the first part is that dispensation is deservedly called a "wound of the law." But just as it is not licit to inflict a wound on a man without sufficient reason, so neither is it licit to inflict a wound on the law without a proportionate cause. - Besides, just as the legislator cannot make law at his own whim, so neither ought he relax an established law without sufficient reason through dispensation. But if he acted otherwise, he would disturb the right order of society, loosen the nerve of discipline, be an accepter of persons and an unfaithful dispenser; indeed he would be rather a dissipator than a dispenser. The gravity of the sin committed by such an unfaithful dispenser is to be weighed not so much from the gravity of the law frivolously dispensed as from the detriment thereafter following either for some members of the community or for the whole community.

The reason for the second part of the stated principle is the manifest excess which is committed by the one dispensing against the will of the superior, since he is not presumed to have conceded the faculty of dispensing unless sufficient reasons are present. Therefore the delegate has exceeded the limits of the faculty obtained and consequently has dispensed not only illicitly, but also invalidly.

Gravity of the cause. The cause required for dispensing licitly is not necessarily as great as one which already of itself excuses from observance of the law. That cause suffices which, all the circumstances of the law and of the person being considered, is known to be fitting to reason, so that from the dispensation conceded both the common good is not harmed and the good of the dispensed person is increased. But which causes in individual cases are really sufficient cannot be determined by a general rule. First of all, the good and evil effects which probably will follow from the dispensation conceded must be attended to. It is never licit to concede a dispensation which would tend to the prejudice of the common good. Indeed, through dispensation the common good ought to make progress.⁷⁴ Three legitimate causes for dispensing are usually enumerated, namely: necessity, charity, utility (common or private). - If there is doubt, not indeed whether a cause exists, but whether the cause brought forward is sufficient, and that doubt persists after diligent deliberation, nevertheless the dispensation can validly and licitly be sought and conceded;⁷⁵ because otherwise many anxieties would arise, and besides, because the legislator in these circumstances is rightly presumed to concede license of dispensing. When the subject has candidly and truthfully explained to the superior all his causes for dispensing, and then has obtained the requested dispensation, now he can with safe conscience use the dispensation so obtained, unless, however, it is manifestly established that the superior dispensed frivolously without sufficient reason.

Note. Not only he who dispenses without sufficient cause commits sin, but also he who knowingly uses such a dispensation.

⁷³ Cod. iur. can. c. 84, § 1.

⁷⁴ S. theol. I-II, q. 97, a. 4 ad 1.

⁷⁵ Cod. iur. can. c. 84, § 2.

253. 2. Knowledge of the cause of dispensation. Not only must a sufficient cause really be present, but it must also be known by the one dispensing, since otherwise he would act irrationally. In the external forum, especially if there is question of dispensation from a public impediment of marriage, the mode of having this knowledge is wont to be determined accurately and is called "verification of petitions"; but in the internal forum it suffices that the one dispensing have in whatever way moral certitude concerning the existence of a sufficient cause for dispensing. Authors dispute whether this knowledge of the cause is prescribed for the validity or only for the liceity of the dispensation to be imparted. St. Alphonsus⁷⁶ calls the opinion more probable which teaches that the value of the dispensation depends not on knowledge, but on the existence of a sufficient cause. This opinion indeed is safe in practice, unless, however, from the very words of the faculty of dispensing conceded, it clearly appears that knowledge of the cause is required as a condition sine qua non.⁷⁷

⁷⁶ Theol. mor. l. 1, n. 181.

⁷⁷ Cf. below in the treatise on marriage, III, 881.

254. 3. Gratuitousness of dispensation. It would be pure and foul simony if for the dispensation itself in ecclesiastical laws something material were demanded as a price. Nevertheless it is licit to demand some remuneration for the expenses of the Chancery; for it is very fitting that he who seeks dispensation pay the expenses necessary for the writer and dispatch of the dispensation. Besides this sum of money, which is wont to be called the tax (to which there is also added the "agency"), sometimes the so-called "composition" is imposed, which is money to be paid for pious uses or as a fine because of the wound which through dispensation is inflicted upon the law.⁷⁸ Ordinaries or their Officials who, on the occasion of a dispensation conceded, demand any emolument are held to restitution.⁷⁹

⁷⁸ Cf. below concerning matrimonial dispensations III, 876.

⁷⁹ Cod. iur. can. c. 1056.

255. Defects of dispensation. There are indeed many things⁸⁰ which can vitiate an acquired dispensation, both on the part of the one dispensing and on the part of the one dispensed, but concerning several of them discussion has already been had above. It remains to speak of two defects, namely 1. concerning error and 2. concerning fear.

⁸⁰ All defects of dispensation can be reduced to three species, namely to defect of jurisdiction, of justice (if a just cause for dispensing is lacking), and of will (if error or fear is present in the one dispensing).

256. 1. Error or deception arises in the one dispensing either from the fact that something false is narrated to him, or from the fact that something true which had to be manifested is kept silent in the petition of dispensation. Error can concern the object, subject, motive, and mode of dispensation. A dispensation obtained through the narration of some false motive is called obreptitious; but if it has been obtained through silence about some true thing necessarily to be manifested, it is called subreptitious.⁸¹ A dispensation, whether obreptitious or subreptitious, is generally invalid and void.⁸² The reason is that, generally speaking, the legislator or his delegate is not presumed to will to dispense with deception or error. Hence, for example, if a dispensation has been conceded concerning the diriment impediment of consanguinity in the second degree because it was asserted that conceived offspring had to be legitimated, this dispensation is invalid and void if the assertion was false. Some species of subreption also seems to be present if someone seeks from one superior of almost the same authority a certain grace denied by another superior. Hence the Code of Canon Law cc. 43 and 44 establishes: "A grace denied by one Sacred Congregation or Office of the Roman Curia is invalidly conceded by another Sacred Congregation or Office, or by the local Ordinary, even one having power, without the assent of the Sacred Congregation or Office with which, or with whom, dealing was begun, with the right of the Sacred Penitentiary for the internal forum remaining safe. Let no one seek from another Ordinary a grace denied by his own Ordinary, no mention having been made of the denial. - A grace denied by the Vicar General and afterward obtained from the bishop, no mention having been made of this denial, is invalid; but a grace denied by the bishop cannot validly be obtained from the Vicar General, even when mention has been made of the denial, without the bishop consenting."

But in the following cases a dispensation remains valid, even if obreption or subreption has been used:

a) If the dispensation was conceded motu proprio, at least if one final cause was true.⁸³ For the things which are conceded motu proprio are not conceded on account of petitions presented, as is apparent from the words themselves. Therefore it makes no difference what motive of dispensation is contained in the petitions presented. - Indeed, even if the sole final cause is lacking, dispensations concerning lesser diriment impediments of marriage are valid according to the discipline now in force, namely concerning the impediment 1. of consanguinity in the third degree of the collateral line; 2. of affinity in the second degree of the collateral line; 3. of public propriety in the second degree; 4. of spiritual relationship; 5. of crime from adultery with promise or attempted celebration of marriage.⁸⁴

b) If the error concerns merely accidental circumstances of object and subject, or only impulsive causes, provided, however, that a true sufficient cause for dispensing exists and at least the substance of the subject and object has been rightly designated. For the Code of Canon Law c. 42, § 2 establishes: "Nor does the exposition of what is false, or obreption, stand in the way, provided either the sole cause proposed or, from several proposed, at least one motive cause is true"; and c. 47: "Rescripts are not made void because of error in the name of the person to whom or by whom they are conceded, or of the place in which he resides, or of the thing concerning which there is question, provided that, in the judgment of the Ordinary, there is no doubt concerning the person or thing itself." Therefore the old adage, "A lying petitioner ought wholly to lack what has been obtained," is restricted to the case in which the lie has been made in an essential part of the sole final cause.

⁸¹ Cf. above n. 239.

⁸² Cf. c. 7, X, 2, 22; c. 2 in VI, 1, 11.

⁸³ Cf. Cod. iur. can. c. 45.

⁸⁴ Ibid. cc. 1042 and 1054.

257. 2. Light fear does not harm the validity of a dispensation obtained. Thus all. Whether grave fear unjustly inflicted for obtaining a dispensation invalidates this dispensation is disputed. Some affirm. For it is repugnant to natural right itself that someone be freed from the obligation of law because of unjust force inflicted upon a legitimate superior. Others rightly deny. For the general rule is: "Acts placed from grave and unjustly inflicted fear are valid, unless something else is provided by law."⁸⁵ But in law nothing is provided concerning a dispensation extorted by fear (unless there is question of a dispensation remitting a penalty, c. 2238).

⁸⁵ Cod. iur. can. c. 103, § 2; cf. Concina, Theol. christ. de iure nat. et gent. diss. 6, c. 5, § 7, n. 5; St. Alphonsus, Theol. mor. l. 1, n. 184.

258. Cessation of dispensation. Concerning this matter the Code of Canon Law c. 86 establishes: "A dispensation which has successive duration ceases in the same ways as a privilege, and also by the certain and total cessation of the motive cause." How privileges cease will be said below, n. 268. A dispensation which does not have successive duration, namely one which is completed by a single act, cannot cease once it has produced its effect, according to that adage: a fact cannot be made not done. Other dispensations can cease in three ways: 1. on the part of the one dispensing; 2. on the part of the one dispensed; 3. on the part of the final cause.

259. 1. On the part of the one dispensing, dispensation ceases a) by revocation; b) sometimes also by his death.

a) As to revocation, these things must be noted: He who has dispensed by proper authority can always validly revoke the dispensation conceded, provided every obligation has not been extinguished by the prior dispensation. For he who by proper authority freely suspends some obligation can also impose it again. Thus, for example, the Pope can revoke a dispensation given concerning the law of fasting. If, however, the matter dispensed has already lost every obligation, revocation can no longer be made. Thus, for example, the Pope cannot revoke a dispensation conceded concerning a ratified marriage, since what has once been dissolved and destroyed cannot revive. - He who conceded a dispensation from delegated authority cannot revoke it without a sufficient reason; for just as he could not validly or licitly concede a dispensation without a sufficient reason, so neither can he validly or licitly revoke it once conceded without a sufficient reason. But the reason is that the power of one dispensing from delegation is bound to only licit use. But someone uses his power illicitly if he does not act from a sufficient and reasonable cause. Therefore neither can the legislator himself, or anyone who has dispensed from proper authority, licitly revoke without sufficient reason a dispensation conceded.

b) By the death of the one dispensing or cessation in office, a dispensation generally does not cease; but it ceases if it was conceded by the following or similar formulas referring to the very person of the one conceding: "at our good pleasure,"⁸⁶ "at our judgment," "until it shall have pleased"; on the contrary it does not cease if it is conceded by the following or a similar formula: "until revocation," because revocation has not in reality been made.

⁸⁶ Cod. iur. can. cc. 86 and 73.

260. 2. On the part of the one dispensed, dispensation ceases by renunciation. But for this, so that the dispensed person can validly and licitly renounce the accepted dispensation, it is required: a) that from this renunciation the right of the community or of a third person not be harmed; b) that the superior have accepted the renunciation of the dispensed person. - That the dispensed person can freely renounce the dispensation obtained is easily understood. For dispensation is some benefit, which ordinarily is not imposed upon one unwilling. If, however, the dispensation or faculty conceded was conceded not only for the utility of the recipient, but also and perhaps principally for the utility of the community or of a third person, the dispensed person now cannot freely renounce the accepted dispensation, because then he would cause detriment to others. Thus, for example, a bridegroom cannot renounce a dispensation concerning an impediment of marriage if detriment would be caused to the bride from it. - But that acceptance of the superior is required for the valid renunciation of the dispensed person is clear from this, that through dispensation the obligation of the law has been extinguished. Moreover a new obligation cannot arise unless the superior consents. This consent indeed may be explicit or at least tacit or presumed. In matters of lighter moment tacit or presumed consent always suffices. Hence he who has been dispensed from the law of fasting can freely renounce the dispensation obtained from the presumed license of the one dispensing, if he can prudently fulfill the law of fasting.

By simple non-use a dispensation does not cease,⁸⁷ because non-use can consist with the intention of using the dispensation afterward. Hence if someone has been dispensed from the law of abstinence, but nevertheless for several months has abstained from eating meats, he can afterward, the sufficient cause still subsisting, again use the dispensation. Likewise, if someone, having obtained a dispensation for contracting marriage with Tullia, a blood relative in the third degree, nevertheless married Caia, he can, Caia being dead, marry Tullia. But if the dispensation is burdensome to a third person, then through voluntary non-use prescription can prevail, which finally at some point will destroy the dispensation.

⁸⁷ Cod. iur. can. cc. 86 and 76.

261. 3. On the part of the final cause, that dispensation ceases which was not conceded absolutely. Otherwise the dispensation remains valid. Therefore two things are required for the cessation of a dispensation: 1) That the truly final cause cease. For from the cessation of an impulsive cause the dispensation does not cease, provided some final cause remains. 2) That the dispensation was not given absolutely. A dispensation whose effect is indivisible and is at once obtained totally is judged to have been given absolutely. Certainly in practice it is not rarely very difficult to discern whether some dispensation was given absolutely, or only conditionally, namely under the condition of the cause subsisting. Hence very often doubts are wont to arise concerning the value of a dispensation, because the final cause now does not exist or has been essentially changed. To eliminate these doubts at least partially, Pius X established that in matrimonial impediments of lesser degree a dispensation always be conceded from motu proprio, and therefore in these dispensations the cessation of the final cause now does not harm the value of the dispensation obtained.⁸⁸ - But in other dispensations which have "successive duration," as it is said, when the final cause ceases, by that very fact the dispensation also ceases. Thus, for example, he who because of illness had been dispensed from the law of abstinence must, health having been recovered, again observe the law of abstinence; he who at the beginning of Lent had been dispensed from the law of fasting because of grave labors to be carried out is bound to fast if during Lent those labors have ceased. Modern authors rather commonly teach⁸⁹ that dispensations concerning impediments of marriage and concerning irregularities are conceded in an absolute mode, and therefore the dispensation remains valid if before the use of the dispensation the final cause has ceased, provided it really existed at the time of the concession itself. For example, Bertha obtained a dispensation concerning the impediment of consanguinity in order to legitimate offspring already received. At the time at which the dispensation was conceded, the offspring was living, but died before the marriage was to be contracted. Nevertheless the dispensation conceded is valid.⁹⁰ - Concerning dispensation from a vow of chastity there were special difficulties and controversies, but today this dispensation is conceded with clauses added so clear that in practice no grave difficulty any longer subsists. But it seems that in vows a dispensation ceases if before its execution the sole cause of dispensing has ceased. For no one (not even the Pope) can dispense in vows without a sufficient and really existing cause, since they are of divine right. Wherefore, for example, if Bertha bound by a vow of chastity had been dispensed for entering marriage solely for the sake of legitimating offspring, and this offspring died before celebration of the marriage, the dispensation of the vow ceases, so that Bertha remains bound by the vow and needs a new dispensation.

Territorial dispensation ceases if someone has gone out of that territory; on the contrary, personal dispensation follows the dispensed person wherever he may be. Hence, for example, a German cannot outside Germany use dispensations in the law of abstinence conceded for his fatherland; but if he received a personal dispensation in the law of abstinence, he can use it everywhere on earth. The matter is plain from what was said above n. 196 sqq. concerning the obligation of travelers.

⁸⁸ Cf. above n. 256.

⁸⁹ Thus Lehmkuhl, Theol. mor. I, n. 268; Noldin, De princ. n. 189; cf. also St. Alphonsus, Theol. mor. l. 1, n. 196.

⁹⁰ Cf. below in the treatise on marriage III, 880 and 883.

262. Interpretation of dispensation. 1. The faculty itself of dispensing, if it is ordinary or delegated for a universality of affairs, is to be interpreted broadly; any other strictly. Thus the Code of Canon Law c. 200, § 1. Therefore, for example, a confessor to whom a general faculty of dispensing for the internal forum has been committed can use it not only in the forum of penance, but also outside the confessional, because the internal forum is not restricted to the tribunal of penance. - Although the faculty of dispensing conceded for a certain case is to be interpreted strictly,⁹² nevertheless it also carries with it other powers which are necessary for its use; wherefore, for example, in the faculty of dispensing there is also included the power of absolving from ecclesiastical penalties, if any perhaps stand in the way, but only for the effect of obtaining the dispensation.⁹³

2. The dispensation itself is to be interpreted strictly, because it is judged to be a wound of the law.⁹⁴ Nevertheless sometimes a dispensation is to be interpreted broadly, especially in four cases: a) if it was conceded motu proprio; b) if it was conceded for the public good; c) if it was conceded to the whole community and not to a singular person; d) if it was inserted in the Code of Canon Law.⁹⁵

⁹² Cod. iur. can. c. 85.

⁹³ Ibid. c. 66, § 3.

⁹⁴ Ibid. c. 85.

⁹⁵ Cf. Lehmkuhl, l. c., n. 266.

St. Alphonsus, I, n. 178; ed. G., I, p. 163; Suarez, de Leg., l. 6, c. 18; Mazzotta, de Leg., disp. 4; Billuart, Diss. 5; and celebrated Canonists.

227. DEFINITION. Dispensation is the relaxation of law, made for a time by legitimate authority, in some case in which otherwise the law would oblige.

It is said 1. It is the relaxation of law; for which reason it differs both from epikeia, through which it is declared that some case was never comprehended in the law; and from permission, through which only the violation of law is not impeded, for example, for avoiding a greater evil; and from license, by which law is rather fulfilled. For license is the consent of the competent Superior, under which the law itself concedes that something be done, for a few acts. Hence, if a Superior gives a nun license to go out from enclosure, or to make some expense, he does not dispense in the law or in the vow, but places the condition without which those things would not be lawful; because the law which prohibits going out and spending does not prohibit this absolutely, but only lest it be done without license. Cf. St. Alph., de Privil., n. 1. - Law of itself tends to firmness; therefore of itself it does not generally admit licenses; nevertheless it sometimes foresees and tolerates them. Therefore, in those cases, if the Superior is absent, his license can be presumed; but dispensation is not presumed (Lehmkuhl, I, n. 266). Cf. below n. 239.

2. Made by legitimate authority; because dispensation is an act of jurisdiction, and therefore differs both from excuse on account of some extrinsic cause and from cessation of the law, which is said to be from within; in which cases the obligation of the law is taken away without a new intervention of the legislator, namely by force of the will which he previously had in making the law.

3. For a time, in some case; for which reason it differs both from privilege, which is perpetual and can be according to law, and from derogation and abrogation of law, through which the law is relaxed or taken away in perpetuity, for the whole community.

228. DIVISION. Dispensation can be: 1. Valid or invalid, according as it truly exempts from the obligation of law, or not.

2. Licit or illicit, according as it is obtained with a just cause or without a just cause.

3. Subreptitious or obreptitious, according as something to be manifested is kept silent in the petition, or, on the contrary, something false is asserted.

4. Total or partial, according as it exempts from the whole law, or from a part of the same.

5. Express or tacit, according as it is expressed in words, or is deduced from some fact.

6. Free or necessary, or obligatory, according as its concession merely befits on account of a just cause, or is owed by force of some title (cf. n. 241, q. 3).

But when a dispensation has been denied, although unjustly, the subject is held to the law, because it perseveres in being in force; unless such a cause urges as of itself exempts him from the law: for example, if the necessity of contracting marriage were urging, the denunciations having been omitted, and the Bishop unjustly denied dispensation (I, 179; H. Ap., II, 52). Nevertheless the dispensation is valid if, having been denied by the Superior, it is conceded by the inferior. Except if the Superior had willed to take this also away from the inferior. Lehmkuhl, Cas. consc., 125.

With these things premised, we shall discuss a little more fully: 1. concerning the power of dispensing; 2. concerning the requisites for legitimate dispensation; 3. concerning the use and interpretation of dispensation; 4. concerning the cessation of the same.

229. NOTION. The power of dispensing is jurisdictional; for it is part of jurisdiction, or of public authority (St. Thom., 1.2, q. 97, a. 4).

And thus it differs both from the power of invalidating, which is only dominative and belongs to the master, father, husband, etc.; and from the power of declaring someone exempt from law, which is only interpretative of the will of the legislator, and belongs, for example, to the physician with respect to the sick, to the confessor with respect to penitents, etc. (cf. n. 138).

DIVISION. The power of dispensing is twofold: 1. ORDINARY, which belongs to someone by sole reason of his office, such as the legislator has in his own law, and his Superior or successor; 2. DELEGATED, which belongs to an inferior from the concession of him who is endowed with ordinary power.

But delegated jurisdiction can be conceded: a) by right, by reason of the dignity or office with which it is joined; and in this case it is equivalent to ordinary, and is called quasi-ordinary; b) by man, that is, by a Superior, in which case it is called purely delegated.

Moreover, this purely delegated power is given either absolutely for life, for a decade, for a year, etc., or at the nod or good pleasure of the person, or of the dignity (cf. n. 138, 3.).

Besides, it is sometimes conceded by way of grace, in favor of the delegate: in which way Bishops are accustomed to be given the faculties which they call quinquennial, by force of

which they can dispense in very many impediments of matrimony; sometimes by way of commission, in favor of a certain cause or of a certain person to whom the dispensation ought to be advantageous. The faculty of dispensing by way of commission can still be given in a twofold way, namely: either by way of a grace made, as they say, which happens when a true precept of dispensing is imposed on the delegate, "if, however, the prayers rest upon truth," as ordinarily happens in matrimonial dispensations, in which case the delegate who actually bestows the dispensation is said to fulminate it; or by way of a grace to be made, which happens when a precept of dispensing is not imposed on the delegate, but only the faculty of conceding a dispensation is given, "if namely it seems expedient." St. Alph., de Privil., n. 13; ed. G., I, p. 192.

230. PRINCIPLES. I. Any legislator, or his Superior, or successor in jurisdiction, can dispense with his subjects, both in his own law and in the law of an inferior. The reason is, because things are dissolved by the same means through which their cause is born (Decret. Gregor., Reg. I); and the power of an inferior is subordinated to the power of a Superior. The case is excepted in which the law has passed into a contract; for pacts should be observed by all (III, 255).

231. II. No inferior can dispense in the law of a Superior, except from delegated power; namely insofar as the faculty of dispensing has been conceded to him, either by the Superior himself, or by right, or by custom. The reason is, because an inferior has nothing of power over the will of a Superior, from which the whole force of the law exists; whence it is said in the Clementines: The law of a Superior cannot be taken away through an inferior (c. Ne Romani, de Elect.).

232. III. No delegate can subdelegate another, unless the faculty of subdelegating has been conceded to him, either by the Superior or by right. The reason is, because the power of using jurisdiction is diverse from the power of delegating it, and the one is not included in the other.

We say 1. Unless it has been conceded by the Superior; for this is not rarely conceded. Thus, besides the faculty of dispensing, the power of subdelegating this same faculty to other suitable priests is often conceded to Bishops.

2. Unless it has been conceded by right. Now, the power of subdelegating is conceded by right:

a) To one delegated by a Prince, for example, by the Supreme Pontiff, by the Sacred Congregations, by way of office, as to Nuncios, Legates a latere. We say by way of office; so that delegates who would have been chosen on account of their skill may thus be excluded, as also those whose delegated faculty is a bare ministry, or simple execution.

b) To one delegated, although not by a Prince, to a universality of causes;¹ provided that the delegation has been made to him by way of office, or at least by way of privilege annexed in perpetuity to his office or dignity. Thus, for example, a vice-pastor, universally deputed into the place of an absent or dead pastor, can subdelegate another. Yet this subdelegation cannot be for the whole, but for one or another cause only, as is common with St. Thomas (Quodl. 12, a. 22): "A vicar cannot communicate his whole power, but he can communicate part" (H. Ap., XVI, 82; 2 El. q. reform., n. 4).

As St. Alphonsus rightly notes, VI, 566; ed. G., III, p. 583: confessors furnished with peculiar faculties cannot subdelegate, and the same holds for missionaries. The reason: they are deputed only to the bare exercise of ministry.

233. IV. A delegated faculty can cease for many reasons.

Namely it ceases: 1. by revocation of the one delegating, which nevertheless does not obtain effect unless it is notified to the delegate; 2. by renunciation of the delegate accepted by the Superior; 3. by lapse of the determined time, or when the business is finished, or when the number of cases for which the delegation had been conceded is exhausted. But all special faculties habitually conceded by the Holy See to Bishops and other ordinaries of places are not suspended by their death or cessation from office, but are extended to ordinary successors (Holy Office, Nov. 24, 1897).

But whether it ceases by the death or removal of the one delegating, a distinction must be made. It ceases if it was conceded BY WAY OF GRACE in favor of the delegate, with these or other similar words: at our good pleasure, until it shall have pleased us; otherwise, if it was conceded for a determined time, or until it is revoked, or at the good pleasure of the dignity, for example, of the Holy See, of the Bishop, because a dignity does not die.² But if it was conceded IN THE FORM OF COMMISSION for a certain case, again a distinction must be made: conceded as a grace to be made for a special case, it ceases by the death or removal of the one delegating, if the matter is still untouched; but conceded as a grace made to the petitioner, it does not cease, although the matter has not yet in any way been entrusted to execution (cf. n. 246).

234. From these things it follows: I. The Supreme Pontiff can dispense: 1. in all ecclesiastical laws, even in those which the Apostles, as particular prelates of Churches, established: of which kind are the Lenten fast, the observance of Sunday, the irregularity of bigamy, etc. (H. Ap., II, 55; Istruz., II, 64); 2. in certain divine laws, in which divine right arises from human will, such as vows and oaths, if, however, a sufficient cause is present. But in other divine laws, he can only interpret, or declare, the divine will (cf. n. 135).

II. BISHOPS can dispense: 1. By ordinary right: a) in all episcopal and synodal statutes,³ independently of the chapter and clergy (Bened. XIV, de Syn., l. 13, c. 5, n. 7); b) in the laws of a provincial council, provided they are not specially reserved to the council, or confirmed in specific form by the Holy See; for this is expedient for good governance (Gennari, Quest. de Droit can., q. 328); c) in laws made by the Supreme Pontiff for that particular diocese, in which the faculty of dispensing seems to have been left to the proper prelate (I, 190; VI, 902; H. Ap., II, 57).

In general ecclesiastical laws Bishops generally cannot dispense.⁴ Nevertheless, from the decree of the Holy Office Cum recenter, they can sometimes dispense in the law of fasting and abstinence (cf. n. 1240).

2. By quasi-ordinary right, in the following cases: a) in doubts whether a dispensation is necessary or not; for then the Bishop, and any inferior prelate, can either declare that the law does not oblige in the case, or dispense for caution for the quiet of souls; and the dispensation, once given, is valid even if afterwards it were discovered that it had certainly been necessary; b) in particular cases which frequently or regularly happen, as in non-reserved vows, in fasts, feasts, canonical hours, abstinence from meats, and similar things: for it would be too grave a burden if in cases of this kind, which frequently occur, individual faithful had to recur to the Holy See; c) in a case of urgent necessity, or of great utility, when easy access to the Pope is not open, and there is danger in delay, as, for example, in impediments of matrimony, in irregularities, in reserved vows; because this is expedient for the common good, and this even if easy access is given to one having the faculty of dispensing from privilege of the Pontiff; d) if it is said in the law: until dispensation is given; for "an inferior can dispense in the laws of a Superior, if dispensation is generally permitted in the law" (St. Alph., l. c.).

3. By special and delegated right: namely, besides the ordinary faculties of dispensing which we have numbered here, most Bishops possess special quinquennial or triennial faculties communicated by the Sacred Penitentiary; indeed certain Bishops obtain very ample faculties from the Sacred Congregation of Propaganda Fide.

Here, however, let it be noted: a) Ordinary faculties, since they are at hand to Bishops by force of office, can be given to others by delegation; and when the see is vacant, the chapter, or the capitular Vicar, enjoys them. But the Vicar general does not possess them of himself. Indeed, by his general mandate ordinary dispensations are not committed to him, because they savor of grace, but they are if he is specially delegated to this by the Bishop (III, 288; ed. G., I, p. 559).

b) As regards special faculties, since they are customarily communicated to the Ordinary, they pass to successors, for example, the capitular Vicar. In view of the response of December 17, 1898 (A. S. S., 31, p. 384), by which an end was imposed on the controversy, these special faculties also, without special concession, can be subdelegated to Vicars general and other ecclesiastical men, in a general way or for a particular case, provided this is not prohibited in the faculties, nor the right of subdelegating restricted only for certain ones: for in this case the form of the rescript must be observed exactly.⁵

III. PASTORS, in many places, have from custom the faculty of dispensing, even if recourse to the Bishop is easy, in small and frequent necessities; but since they are endowed with this faculty only by force of custom, they can dispense only in those things concerning which usage has been introduced, as in fasting, abstinence, and works prohibited on a feast day (III, 288, 1032; H. Ap., II, 59).

IV. CONFESSORS in several dioceses, from special delegation, have the power of dispensing in various cases for which recourse to the Bishop would be required of itself.

V. PRELATES OF REGULARS possess rights which will be set forth below, n. 2187 and 2189.

Note, however, that those rights can be exercised only by those who are capable of jurisdiction: whence they do not belong to Superioresses, who cannot dispense (IV, 53; ed. G., II, p. 485). It must also be noted (Holy Office, Dec. 20, 1900) that faculties conceded by the Holy See to Superiors General of religious Orders do not cease on account of their death, or cessation from office, but pass to successors. The same principles are in force here as for rights conceded to a Bishop.

235. Questions. IT IS ASKED 1. With whom, therefore, can a Bishop dispense?

Resp. I. He can with all those who are subject to his jurisdiction. Therefore: with inhabitants, and indeed everywhere on earth; with newcomers, as long as they have quasi-domicile in that territory; with wanderers, as long as they are staying in the diocese, otherwise they could obtain necessary dispensations from no Bishop.

A Bishop, however, nor any delegate, cannot, for example, as regards fasting, dispense with heretics who would wish to abjure, but would desire to postpone conversion. Cf. Genicot, Cas. consc., I, p. 23.

A fortiori he cannot dispense with exempt religious, without the consent of Superiors. If, however, universally, in the name of the Supreme Pontiff, he dispenses in common law, the obligation is suspended also for exempt persons, unless they are held by a special vow or rule (Holy Office, 1871; A. A. S., IV, p. 626). But if exempt persons do not observe the statutes of the rule or a vow, they will no longer sin against a precept of the Church, since dispensation has been given, but against a particular statute.

II. With travelers, if rigorous principles are established, a Bishop cannot dispense; for they are not truly subject to episcopal jurisdiction (n. 206). They would become subjects if, ending their journey, they chose quasi-domicile in the diocese. Thus St. Alphonsus (I, n. 158; ed. G., p. 138), and others solve the question.

Nevertheless the rigor of this opinion is quite probably tempered for cases of necessity. Then the traveler, through his coming, is subject to the authority of the Bishop of the place in which he is found. Therefore, when necessity stands, the Bishop can dispense with him in canonical laws, in vows, in oaths, etc. For it is prudently presumed that the Pope or the Bishop of the traveler consents that the Bishop of the place dispense with a traveler of this kind (Mazzotta, tr. 1, disp. 4, q. 1, c. 3, q. 2.).

Note. Many modern authors indeed think otherwise (Lehmkuhl, I, n. 260; Noldin, I, n. 182; Genicot, I, n. 121). But in view of the intrinsic reason indicated above, and in view of the response of the Holy Office, Nov. 22, 1865 (Coll. S. S., n. 910), it is pleasing to restrict the aforesaid rights of the Bishop over travelers to cases of necessity.

236. IT IS ASKED 2. Whether one having the faculty of dispensing with others can dispense with himself?

Resp. Affirmatively with St. Thomas (2.2, q. 185, a. 8) and others, provided he has a universal power of dispensing, not restricted to a case or person. The reason is, because voluntary jurisdiction, or grace, can be exercised toward oneself. Therefore he who uses this jurisdiction will be able to dispense with himself in vows, ordinary ones indeed, as St. Alphonsus thinks (III, n. 256; H. Ap., II, 64). He will also be able so to order the matter that he commits the faculty of dispensing to a prudent man, to be applied to himself, the prelate.

For legitimate dispensation, that is, for dispensation which is at the same time valid and licit, several things are required: either a) on the part of the one conceding, or b) on the part of the one asking, or of the subject to be dispensed.

237. PRINCIPLES. I. For valid dispensation there is required, on the part of the subject to be dispensed: that the petition be neither subreptitious nor obreptitious, as regards the motive causes set forth, and that the dispensation be accepted by the one dispensed. The reason: otherwise the will of the one conceding is lacking (cf. n. 239).

We said 1. That it be neither subreptitious nor obreptitious, in the sense explained above, n. 228.

But in matrimonial matters, although the Sacred Congregations require that all things be faithfully declared, nevertheless a dispensation is valid if, for a lesser degree, a greater is indicated. See the things to be said n. 2051, 4. Cf. Genicot-Salsmans, II, n. 524.

2. As regards the motive causes set forth, but not as regards impulsive causes.

For motive causes are given, which pertain intrinsically to the matter, and render the dispensation legitimate and fitting in itself, for example, poverty alleged so that someone may be freed from a vow of giving 1000 gold pieces. Impulsive causes are also given, which, taken from extrinsic circumstances, dispose the Superior toward the act of dispensing, for example, nobility alleged so that someone may more easily obtain a dispensation.

But go to the point: Falsity and reticence then only render a dispensation invalid if they regard motive causes, because the consent of the Superior depends on truth, which in these alone is sought and required (I, n. 185).

These things are rightly said if the matter concerns a dispensation given. But if someone is committed to giving it, and he discovers that falsity is present in the impulsive causes, he ought to recur again to the one delegating, so that he may licitly use the faculties. Lehmkuhl, I, n. 265.

3. That the dispensation be accepted. The reason: ordinarily the Superior intends to make a grace only to one consenting. These things Sanchez, Wernz (apud Linz. Quart. Schrift, 1911, p. 127), and this opinion is more common and more conformable to the decrees of the Holy See. Therefore, if a dispensation is sought for one not knowing or unwilling, it is necessary that his consent be added (I, 186, 10.).

238. From these things you will gather: 1. A dispensation granted from a true cause to some wicked man whom the one dispensing judged upright is valid, although it would have been the case that he would not have dispensed if he had known his wickedness. The reason is, because uprightness is not held as a motive cause, but merely as impulsive; unless the opposite is positively clear.

2. A dispensation is valid if, among several false causes, one true cause is alleged which suffices for dispensing. Likewise, in doubt whether a cause obreptitiously alleged was motive or impulsive, true or false, sufficient or insufficient: because after the fact one must stand for the value of the act.

3. A dispensation is valid if a cause, false at the time of petition, has become true at the time of concession; but not vice versa (cf. n. 2052). Hence it is valid, for example, if in the rescript of the one dispensing an error has crept in from the carelessness of an amanuensis; because it supervenes upon a concession already made. Cf. Pyrrh. Corrad., Praxis dispens. Apost., l. 7, c. 6, n. 24. If the matter concerns a grace to be made, the causes ought to be true at the time when the commissary fulminates the dispensation.

4. A petition does not become subreptitious for this reason, that before a Superior of higher Order the denial on the part of the Superior of inferior grade is kept silent.

239. II. For valid dispensation, on the part of the one conceding, it is required that he could and willed to dispense. The reason is clear of itself.

It is required 1. THAT HE COULD, according to the things set forth n. 230 ff. Wherefore it must be noted that a subaltern Superior cannot validly dispense in the law of a Superior without a just cause; because he is not presumed to have received the power of dispensing rashly and inequitably. It is otherwise, however, if a Superior wills to dispense in his own law or in the law of an inferior; because the law itself depends entirely on his will. It must be noted besides that the faculty of dispensing has not been taken away from a subaltern Superior by the fact that his Superior denied dispensation to the one seeking it. Except if his express will as regards this is clear.

Hence: 1. The Supreme Pontiff dispenses validly, but a Bishop invalidly, without a just cause, in the common law of the Church, for example, in fasting, abstinence, etc. Therefore St. Thomas rightly teaches (Quodl. 4, 13, c. fin.) that the Pope can dispense that a priest consecrate the Body of Christ without sacred vestments.

2. In the law of God, for example, in vows and oaths, a dispensation made without cause is always invalid (cf. n. 135, 1.). But if a cause is indeed present, yet insufficient, the dispensation will be valid when some commutation has been added (III, 254; H. Ap., V, 40).

3. A dispensation is valid if a subaltern Superior dispenses even in bad faith, judging that a cause does not underlie, which nevertheless in reality exists. On the contrary, it is invalid if he thinks that a cause underlies, which in reality does not subsist, or certainly does not suffice; because the value of the dispensation does not depend on knowledge, but on the existence of the cause, so that the good or bad faith of the one dispensing makes nothing to the matter. Thus St. Alphonsus with Palaus, against Busenbaum and others (I, 181; III, 251; H. Ap., II, 53).

It is required 2. THAT HE WILLED, and signified his will in some way, as is commonly taught. Whence a dispensation presumed concerning the future is not valid, for example, if he knew, he would dispense; because a future will, or one which would be, is not absolutely a will, and therefore does not suffice for dispensation from law, as being strictly to be interpreted, although it suffices for license, as being broadly to be interpreted. Moreover, in matters of lesser moment, one can sometimes proceed more easily by way of epikeia.

Nevertheless, a tacit dispensation is valid, namely from a just presumption of the present will of the Superior. Thus, for example, a Superior who sees a subject act against the law and does not correct him when he could easily do so, is judged to dispense; because in these circumstances, if he does not will to dispense, he is held to speak. But it is otherwise if he cannot correct without inconvenience (I, 187; H. Ap., II, 49).

Note. 1. A dispensation mentally conceded to an absent person is not valid, unless the dispensed person has been made more certain that the one conceding, at such an hour, for example, after he had sought from the Superior the faculty of dispensing, fulminated the dispensation. This mode of acting is full of dangers: whence ordinarily illicit (Gennari, Quest. de mor., q. 262).

2. A dispensation extorted by fear is valid, whenever a just cause of dispensing exists: provided it is not clear that the Superior dispensed without the mind of dispensing; for fear does not take away the voluntary. Nor is it illicit to obtain a necessary dispensation through fear, provided fear is justly struck, for example, by threatening recourse to a Superior if the inferior denies dispensation (I, 184; H. Ap., II, 54).

Do not, however, extend the things here set forth to absolution from censures, which, if it has been given under the influence of fear unjustly struck, is invalid (n. 1287).

240. III. For licit dispensation, both in the one conceding and in the one obtaining, a just cause is required. The reason for the former is, because otherwise the Superior commits acceptance of persons, and gives occasion for complaints, while one is exempted from law without cause, but others are pressed by the same (I, 178). The reason for the latter is, because otherwise the subject asks for an illicit thing, and is guilty of that sin to which he induces the Superior. Cf. Lehmkuhl, Cas. consc., n. 118.

Things to be noted. 1. A Superior can sometimes, from a just cause, concede that which is sought without a sufficient cause. Thus, for example, an undisciplined religious who seeks without cause a relaxation of his simple vows can be dispensed by the Superior on account of the common good, and is in reality released from the vows.

2. The sin of a primary Superior who dispenses without a just cause in his own law, with scandal and notable damage of others excluded, does not exceed venial, because acceptance of persons is not of itself grave fault (I, 178).

But a Superior of inferior grade, if he dispenses in the law of a Superior without cause, except if smallness of matter is present, sins mortally. The reason is usurpation of a power not conceded to him, and especially disturbance of order, from the fact that the subject uses an invalid dispensation (cf. n. 239). St. Alph., I, 180.

3. A just cause of dispensing is that which is proportioned to the gravity of the law from which dispensation is given. Nor, however, is a cause so grave required that it already of itself exempts from the law. It is enough if it is such that the one to be dispensed can be exempted from the common obligation without acceptance of persons. For some causes of themselves excuse from the precept, say of fasting, of the Divine Office, etc.; and these do not need dispensation, if they are certainly or at least probably just (cf. n. 173). But others suffice for dispensation, yet need it. CAUSES of this kind, indeed to be weighed by prudent judgment, are generally either necessity, for example, scandal to be avoided; or piety, for example, copious alms in aid of the Church, as practice bears for matrimonial dispensations; or finally utility, whether common or private. Indeed, a sufficient cause can be the dignity of the one asking, because it pertains to the good of the Church to have eminent persons grateful; or even the dignity of the Superior, that he may show himself benign. This also must be noted, that if several causes are present, of which none suffices separately, all can suffice together (I, 195).

241. Questions. IT IS ASKED 1. Whether, when a just cause stands, the Superior is held to dispense?

Resp. Distinguish. 1. If the cause is only sufficient so that dispensation is licit, but not owed, the Superior can concede it and deny it, or concede it to one and deny it to another; because just as dispensation is expedient for the good of the subject, so also the observance of law is expedient for the common good.

2. If the cause is such that it renders dispensation owed or necessary, the Superior is held to dispense. Otherwise he would sin, gravely or lightly according to the matter (I, 179; H. Ap., II, 52).

And here it must be noted that dispensation is owed either from the disposition of right, which, when such a cause exists, decrees that it must be granted; or from the necessity of the common good, for example, for preventing scandal; or from justice, for example, for avoiding grave danger of soul; or finally from charity, when someone much needs dispensation, and this can be conceded without detriment to discipline.

IT IS ASKED 2. Whether it is lawful for a subject to seek, and for a Superior to concede, dispensation from a doubtful cause?

Resp. 1. It is lawful TO SEEK, and once dispensation has been obtained, the subject can be secure, if he has set forth the cause in good faith; because it belongs to the Superior to judge concerning the sufficiency of the cause (I, 186). But what if he obtained it illicitly? See n. 244.

2. It is lawful TO CONCEDE, in doubt whether the cause is sufficient; because the power of dispensing, unless it is of mere commission, is to be interpreted broadly; and, in doubt, the one dispensing is not obliged to an examination concerning the full sufficiency of the cause. But it is otherwise in doubt whether some cause is present. Yet in each doubt, the dispensation made is presumed valid, until the truth appears to the contrary (I, 178, 192; cf. III, 251; ed. G., I, p. 534).

Note. Since the doubt here concerns the existence of the cause of dispensation, the conclusion concerning the validity of the dispensation had to be different from before, n. 234, II, b, where the doubt concerns the cases themselves, whether namely they need dispensation.

242. I. INTERPRETATION, in the matter of dispensation, is made according to the following rules:

1. THE POWER OF DISPENSING, even delegated, since it is favorable to the public good, is to be interpreted BROADLY (cf. n. 253, 2.). Except if it has been conceded to someone by way of commission for a certain case; because then it falls back into the dispensation itself, and must be interpreted in the same way as that (I, 187).

He who has received the faculty of dispensing as a missionary can use it for the whole time of the missions, even on the journey; he who has obtained it as a confessor can exercise it even outside Confession, but only toward those over whom he possesses jurisdiction of the internal forum (Noldin, I, n. 166). Some add that the confessor can do this also in favor of travelers.

2. THE DISPENSATION ITSELF, since it is odious and a wound of the law, is to be taken STRICTLY. Whence if it is doubted whether a dispensation extends to these or those circumstances, it is judged not to extend. Except, "unless the dispensation is owed, or is from the motion proper of the prince, or is inserted in the Body of Law, or finally unless it is conceded to a community, for the common good." For in these cases it is held for a favor and must be taken broadly (I, 194). See the very useful case in Lehmkuhl, Cas. consc., I, n. 120.

A dispensation is said to be given motu proprio when it is conceded with no preceding petition, or at least independently of it, if any perhaps preceded. Now indeed: 1. If no petition at all preceded, a dispensation conceded motu proprio is to be interpreted in such a way that it is held valid, even if in the rescript of the Superior some true circumstance, and otherwise necessarily to be expressed, is kept silent.

2. If some petition preceded, it is controverted whether the clause motu proprio has the aforesaid efficacy (cf. Salmant., tr. 18, c. I, n. 73-80).

243. II. As regards the USE of dispensation, it must be noted that this use is sometimes defined by a determined place, and sometimes is circumscribed by no limits. For just as there are given local laws and personal laws, so there are given also local dispensations and personal dispensations.

1. If a dispensation has been given for some determined place, for example, if some diocese has been dispensed from a law which obliges Christians within Lent to abstain from eggs and milk foods, all who are staying in that diocese can use the dispensation, whether they are inhabitants, travelers, or wanderers; but no one outside the territory of the diocese. The reason is, because the dispensation was conceded from a special necessity of the diocese, and therefore as it were adheres to the diocese.

2. If someone personally has been dispensed in a universal law, either by the legislator himself or by his delegate, he can use the dispensation everywhere. Thus, for example, one dispensed by his Bishop in the law of abstinence can eat meat even outside his own diocese. The reason is, because the Bishop dispensed in the name of universal authority, and because the dispensation conceded is judged to have been conceded on account of a personal motive, which clings to the bones (cf. n. 1247).

244. IT IS ASKED. Whether he sins who uses a dispensation indeed VALID, but ILLICITLY obtained?

Resp. Probably he does not sin; because, although he acted fraudulently, for example, by mendaciously setting forth impulsive causes, or by striking unjust fear, nevertheless since the dispensation is valid on account of a motive cause, as is supposed, he himself is now no longer under the law (I, 178; H. Ap., II, 46).

245. The cessation of dispensation can happen in three ways: 1. through cessation of the cause; 2. through revocation by the one dispensing; 3. through renunciation by the one dispensed.

I. A dispensation, or a commission of dispensing, regularly ceases when the MOTIVE cause ceases TOTALLY and CERTAINLY. Thus, for example, the dispensation from not fasting, conceded to you at the beginning of Lent on account of illness, expires when you have fully recovered. But it endures when only the impulsive cause ceases, because this was not the reason of the dispensation; likewise, if the motive cause ceases only partially, because in the remaining part there still remains a sufficient reason of dispensation; likewise, if the motive cause ceases doubtfully, because in doubt possession stands for the dispensation (I, 196; H. Ap., II, 66).

We have said: REGULARLY; for, even when the motive cause has ceased totally and certainly, the dispensation does not therefore cease: 1. if the dispensation has already obtained its effect, for example, if the one dispensed for obtaining a benefice has already obtained it; 2. if some onerous commutation has been added to the dispensation, for example, payment of money; 3. if the dispensation has been given absolutely, that is, without that tacit condition "if the cause endures," namely when it is conceded from a cause which of itself is perpetual, or is judged perpetual, for example, on account of scarcity of priests, on account of honesty of morals, on account of poverty of parents, etc.: for once the obligation of law has been removed through such a dispensation, this obligation, according to a sufficiently probable opinion, does not return unless it is imposed again by the Superior (I, 195; Salmant., de Leg., c. 5, n. 87).

This also must be noted, that a dispensation given ABSOLUTELY is not exhausted by one act, unless it has been conceded for a special case. Thus one dispensed from a vow of chastity for contracting marriage can, when his spouse has died, pass to second nuptials; provided the dispensation was not given for that case alone, for example, for taking a virgin deflowered by him (I, 196; Lehmkuhl, I, n. 269).

246. II. A dispensation ceases through REVOCATION by the one dispensing, notified to the one dispensed (cf. 233, 1.). Yet in this case a distinction must be made: 1. If revocation is made by a Superior in his own law, it is valid, even if without

cause; because obligation and de-obligation depend on the will of the legislator. Yet he who thus revokes sins, but lightly, because he acts inordinately. 2. If revocation is made by a secondary Superior or by a delegate, when a just cause of revoking is lacking, it is not only illicit, but also invalid; because the faculty of revoking is not in his arbitrary power (I, 197; H. Ap., II, 67).

But whether a dispensation ceases by the death of the one conceding? Resp. It depends on the terms of the concession. If it has been conceded absolutely, or with the clause until it is revoked, or at the judgment of the Apostolic See or of the Bishop, IT DOES NOT CEASE. But otherwise, if it has the clause until it shall have pleased us, or at our judgment; provided, however, that the matter is still untouched, say if the confessor has not yet begun to hear the confession of the one dispensed (cf. n. 233).

247. III. A dispensation ceases through RENUNCIATION of the one dispensed, provided the renunciation has been accepted by the Superior. The reason for this is, because, although a subject can yield his own right, if the renunciation does not redound to the damage of another, nevertheless only the Superior, in his own law, can bind again the will which he had rightly and validly released from the law.

Thus, for example, if Peter, having obtained a dispensation for marrying a blood-relative, married a stranger, he can, when his spouse has died, marry the first woman; provided the Superior has not revoked the dispensation. Likewise, he who obtained a dispensation from reciting the Divine Office, from observing the fast, can use the dispensation, even if meanwhile he has observed the law of the Office and fast (I, 198).

248. What is to be done, you will ask, in doubt WHETHER THE CASE NEEDS DISPENSATION?

Resp. 1. If the doubt is OF RIGHT, that is, if it is doubted whether the case is comprehended in the law, whether the doubt is negative or positive, a dispensation is not required, because this is the same as doubting concerning the law itself, whether it has been imposed for that matter. "Therefore the subject can use his liberty. Nevertheless it is more advisable then to approach the prelate who may declare or dispense; since in such a doubt even an inferior prelate can well dispense, without concession of the legislator" (cf. n. 55). See St. Alph., I, 192; ed. G., I, p. 172; cf. Salmant., tr. XI, c. 5, n. 45, whose doctrine he reports.

2. If the doubt is OF FACT, that is, if you positively doubt whether there is present a cause excusing from law, for example, for exercising servile work on Sunday; or even whether the cause which you have is sufficient for excusing you, dispensation is of itself necessary; because, in each case, the law possesses antecedently to your liberty, and therefore it is truer that you are held to the law.¹ Yet it would be otherwise if it were truly and uniquely probable that the cause is sufficient, or grave enough, to exempt you; or if another principle were added, for example, the natural and certain right of preserving health, etc., in the case in which it is feared lest observance of the law is going to harm gravely. Recall the things said n. 223, 241, q. 2. Cf. St. Alph., III, 1036.

Note what the Holy Doctor writes, III, n. 1049 at the end; ed. G., II, p. 439: "If someone does not have a cause absolutely sufficient for excusing him from fasting, and some probable and just reason appears to him, by which he fasts only twice or thrice in the week, he is not to be urged to fast, even if that cause does not altogether suffice, but he is to be left in his good faith, lest perhaps afterwards he culpably omit all fasts."

If the matter concerns dispensation over impediments of matrimony, see n. 2046.

2049. Since dispensation is the relaxation of common law, it cannot licitly be granted except on account of a JUST CAUSE, namely one which rests upon the necessity or certain utility of the dispensation itself. Nor without such a cause is the Superior himself ever presumed to wish to dispense, since this cannot be done licitly. Such a dispensation knowingly made would indeed be valid; but the same must not be said of a dispensation granted by an inferior in the law of a Superior, from delegated or quasi-ordinary power; for if a just cause is lacking, the dispensation would not only be illicit, but also invalid (cf. n. 237 and 238).

Nor indeed must every cause be held as just; for the Council of Trent requires a grave cause, and indeed one so much graver as the impediment which stands against the celebrating of nuptials is graver.¹⁴ The PRINCIPAL CAUSES which, according to canonical sanctions, have been accustomed to be held as sufficient are set forth in the Instruction of S. C. de Propaganda Fide, 9 May 1877,¹⁵ in the following manner:

"1. 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 woman's cognation has been so propagated that she cannot find another of equal condition whom she may marry, unless a consanguine or affine; but for her to leave her country would be hard. [That place is reputed narrow which does not exceed 300 hearths, or 1500 Catholic inhabitants, from the declaration of Pius IX issued on 30 August 1847.¹⁶ Wherefore S. Cong. of the Council declared¹⁷ on 16 Dec. 1876: "Narrowness of place is not to be drawn 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 one another beyond a mile," or 20 minutes.]

"2. The over-adult age of the woman, namely if, having already passed the 24th year of age, she has hitherto 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.

"3. Deficiency or incompetence of dowry, namely if the woman does not actually have so great a dowry that she can marry, in her own place in which she dwells, an outsider of equal condition who is neither consanguine nor affine. Which cause urges more if the woman is altogether undowered, and a consanguine or affine is ready to take her as wife, or even suitably to dower her entirely. [But it is indifferent whether the dowry is offered by the bridegroom or by another, but on the condition that she marry the consanguine or affine.¹⁸]

"4. Lawsuits concerning succession of goods already arisen, or grave or imminent danger of the same. If a woman sustains a grave lawsuit concerning succession of goods of great moment, and there is no other who would take upon himself a lawsuit of this kind and pursue it at his own expense, except the one who desires to take her as wife: dispensation is customarily granted; for it is of interest to the Republic that lawsuits be extinguished. Another cause comes near to this, namely Dowry involved in lawsuits, namely when a 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 a man promises to support her. But sometimes by the remedy of dispensation aid is given to a widow for this cause only, that she is younger, and is 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 for extinguishing grave enmities which have arisen among the consanguines and affines of the contracting parties, and which would be altogether settled by the celebration of matrimony; or when grave enmities flourished among the consanguines and affines of the contracting parties, and, although peace has already been entered among them, nevertheless the celebration of matrimony would conduce greatly to the confirmation of that peace.

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

"8. Intercourse previously had with a consanguine, or affine, or another person laboring under an impediment, and pregnancy, and therefore legitimization of offspring; namely that provision may be made for the good of the offspring itself, and for the honor of the woman, who otherwise would remain unmarried. This is indeed one of the more urgent causes on account of which dispensation is customarily 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 (cf. n. 2051, end).

"9. Infamy of the woman, arisen from suspicion that she, being too familiar with her consanguine or affine, was known by the same, although the suspicion is false: namely when, unless matrimony is contracted, the woman would remain gravely defamed, or unmarried, or would have to marry a man of unequal condition, or grave harms would arise.

"10. Revalidation of matrimony which was contracted in good faith and publicly, the form of Trent having been observed: because its dissolution can scarcely happen without public scandal, and grave harm, especially of the woman (cap. 7 de consanguin.). But if in bad faith the betrothed entered the nuptials, they by no means deserve the grace of dispensation, as the Council of Trent disposes, sess. 24, cap. 5 de reform. matrim. [Therefore then dispensation is obtained with more difficulty, today nevertheless more easily than formerly.¹⁹]

"11. Danger of mixed matrimony, or of matrimony to be celebrated before a non-Catholic minister. When danger is present that persons wishing to contract matrimony in some degree, even one of the greater degrees, because of denial of dispensation, will approach a non-Catholic minister for celebrating the nuptials, with contempt of the Church's authority: there is found a just cause of dispensing, because there is present not only most grave scandal of the faithful, but also fear of perversion and defection from the faith of those acting in such a way and contemning the impediments of matrimony, especially in regions where heresies rage with impunity... The same must be said of the danger that a Catholic party may dare to celebrate matrimony with a non-Catholic.

"12. Danger of incestuous concubinage. From the Instruction of S. C. of the Holy Office, 14 Aug. 1822, it is clear that the remedy of dispensation is to be applied lest someone grow foul in concubinage with public scandal and evident danger of eternal salvation.

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

"14. Removal of grave scandals.

"15. Cessation of public concubinage.

"16. Excellence of merits, when someone has deserved 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 some other way.

"These are the more common and more powerful CAUSES which are customarily adduced for obtaining matrimonial dispensations."²⁰ - Universally, it is expedient to bring forward all reasons making matrimony desirable, which, if they are not from those enumerated, are called certain reasonable causes.

Dispensation also is sometimes granted without an expressed cause, namely when from a pious work, which is imposed by way of compensation, the cause of dispensation arises.²¹

And here it helps to NOTE that sometimes it happens that one cause, taken separately, is not sufficient, but joined with another is reputed grave, and consequently sufficient; for "things which do not help singly, many together help."²²

2050. Questions. IT IS ASKED 1. Whether when the CAUSE of dispensation CEASES, the dispensation ceases?

Resp. "Affirmatively, if the cause ceases before the dispensation is expedited, or before it is made by the Bishop or by another delegate to whom it has been committed by the Pontiff. But otherwise, if the cause ceases when the dispensation has already been expedited and made by the inferior delegate, even if it ceases before the celebration of matrimony. - The reason is that through dispensation the impediment is now removed, or the law is relaxed, whose obligation, having been extinguished, by no means revives if afterward the cause ceases."²³

IT IS ASKED 2. But what must be said if it is doubted whether a FINAL or IMPULSIVE cause has been falsely alleged; or whether a cause was TRUE or FALSE?

Resp. "In all these and similar doubts, the dispensation must be judged valid, because in doubt one must stand for the validity of the act"²⁴ (cf. n. 240).

147. • Definition. Dispensation is a relaxation from the obligation of a law, made by one who has legitimate authority, for some case in which the law otherwise would oblige.

It is said: 1° relaxation from the obligation of a law. Therefore it differs a) from a privilege, which does not necessarily exempt from law, since privileges beyond law are given; b) from a license, by which the obligation of law is not relaxed, as in dispensation, but only a condition is posited, which having been posited, the law no longer has place: thus a Bishop can with cause give license for entering monasteries of nuns, yet of himself he cannot dispense from this law.

It is said: 2° for some case in which the law otherwise would oblige. Hence it differs a) from abrogation and cessation of a law, by which a law ceases to oblige for all, or ceases to be a law; b) from being excused from a law and being dispensed from it; for the cause on account of which I can be dispensed from a law is not required to be of such a kind that by its own force the law ceases to oblige, which they call being excused from the law; otherwise dispensation would effect nothing, and would be a simple declaration. Thus he who is gravely sick is said to be excused from fasting; but he who experiences some inconvenience in fasting, but not so grave that by this very fact he is excused from fasting, will sometimes be able to be dispensed from it.

148. • Division. Dispensation can be:

1° Licit or illicit, according as it is made with just cause or not.

2° Valid or invalid, according as it either exempts from the observation of the law or does not exempt.

3° Absolute or pure, or conditioned or with a burden, according as it is given simply or with a condition added.

4° Subreptitious or obreptitious, according as in the petition something that must be manifested is kept silent, or on the contrary something false is asserted.

5° Total or partial, according as it frees one from the whole law or from a part of the same.

6° Express or tacit, according as it is granted either in express words, or is deduced from some fact.

7° Necessary or free, according as in law, such a cause existing, it is decreed that it is to be granted by the superior, or is left to his judgment.

We must treat 1° of the power of dispensing; 2° of the causes required for dispensing; 3° of the cessation of dispensation.

Preliminary matters. - That the things to be said may be rightly understood, it is helpful here to premise certain things concerning ecclesiastical jurisdiction, which is the foundation of the power of dispensing.

149. • Ecclesiastical jurisdiction is defined: the power of governing subjects in order to eternal life.

It is divided: 1° Into jurisdiction of the internal forum and of the external forum.

Jurisdiction of the internal forum is that which primarily and directly is referred to the private utility of each one of the faithful. - It is subdivided into jurisdiction of the penitential forum, which can be exercised only within the tribunal of penance, and into jurisdiction of the internal extra-penitential forum, which can be exercised outside it, when, for example, a superior dispenses in a vow, etc.

Jurisdiction of the external forum is that which primarily and directly regards the public utility of the body of the faithful: as, to make laws, to decide controversies concerning doctrine or discipline, and similar things.

2° Into universal, which is restricted by no limit, neither as to persons, nor as to places, nor as to matters: such was the jurisdiction of the Apostles, and now such is the jurisdiction of the Supreme Pontiff, - and particular, which is restricted in one of those three ways, namely either as to persons, or as to places, or as to matters.

3° Into voluntary and contentious, or into extrajudicial and judicial. Voluntary, which is also called extrajudicial, is that which a superior can exercise even toward the unwilling, without the forms prescribed by law for judgments. - But contentious or judicial is that which is exercised according to the forms prescribed by law for judgments.

Contentious jurisdiction cannot be exercised by a Prelate outside his territory either licitly or validly, because such exercise cannot be made without judicial solemnity.¹ - But voluntary jurisdiction can be exercised even outside the territory, unless the ministry of episcopal order requires that it be exercised within the diocese, as happens in Pontificals.

4° Into ordinary and delegated. Ordinary is called that which belongs to someone by his own right, by reason of his office or dignity, from law, custom, or privilege having the force of law: such is the jurisdiction of the Pastor, Penitentiary, Bishop, Chapter, Abbot, Supreme Pontiff in the whole Church, Legate, etc. Those who possess ordinary jurisdiction in the external forum are Ordinaries; by which name are called not only Bishops, but also their Vicars General, and Prelates who in certain places exercise quasi-episcopal jurisdiction. But by the said name Pastors are not designated, because they do not have jurisdiction in the external forum.²

Delegated jurisdiction is that which someone does not have by his own right, that is, not by reason of his office or dignity, from law, custom, or privilege having the force of law, but only through the commission of another; yet this commission can be given not only by man, but also by law, according as the power of absolving in the article of death is reputed to have been given from custom to all priests.

Delegated jurisdiction is of a twofold kind, one particular, another for the universality of causes. Particular is that by which one or another cause is committed. But it is for the universality of causes when all causes, or at least a certain genus of causes, are committed under one collective name, although the delegation is restricted either as to time or as to places.

One delegated for the universality of causes is called a quasi-Ordinary, and can subdelegate, not indeed his whole jurisdiction, but one or another cause. It is otherwise with one delegated for a particular cause, who cannot subdelegate unless he has been delegated by the Supreme Prince,¹ and he has not chosen in the delegate the industry of the person, as will be said at n. 150.

Someone can be delegated either by man or by law: he is delegated by man who receives his delegation immediately from the Ordinary, or from another having the faculty of delegating. He is delegated by law who has delegated jurisdiction from the commission of common law, or even from custom. You have examples in Trent.²

5° Into immediate and mediate. Immediate jurisdiction is that which can be exercised generally and independently of the case of necessity. The Supreme Pontiff in the whole Church, the Bishop in his diocese, the Pastor in his parish possess immediate jurisdiction. But mediate jurisdiction is that which cannot be exercised except in certain cases determined by law: such is the power of Archbishops over the subjects of suffragans.

I said: over the subjects; for one must speak otherwise of the suffragan Bishops themselves, over whom the Metropolitan has immediate jurisdiction.

150. Questions. - Quaer. 1° Who can delegate?

Resp. 1° Generally, whoever has ordinary power.³

2° As to delegates, they are either delegated by the Pope, or by others. If someone has been delegated by the Pope or by the Sacred Congregations, he can subdelegate. Make exception a) unless there is a presumption that the industry of the delegate himself has been chosen by the prince or by the Pope.⁴ But when the industry of the person is judged to have been chosen, Monacelli explains thus:⁶ "1° When, by reason of confidence, it is committed to another; 2° when conscience is burdened and the proper name is expressed; 3° when the rendering of counsel is required in a certain act at a certain time; 4° when an undetermined business is mandated; 5° when the delegate was given at the instance of a party; 6° when the matter is about a thing and controversy which regards the talent and expertise of the man." 7° according to Bouix, if in the rescript it is said: by himself, or personally. Make exception b) unless the delegated faculty is a bare ministry, or simple execution, as when power of dispensing in marriages or other things is given to the Vicar General. Yet even in this case the Vicar can subdelegate the inquiry and the reception of witnesses as to the question: whether the prayers rest upon truth.² (S) p. 485.

As to those delegated by others than the Pope or the Sacred Congregations, if they are delegated for the universality of causes, they themselves can delegate according to the very common opinion, provided the delegation has been made as by office, or jurisdiction is delegated to someone in perpetuity as a privilege annexed to his office or dignity.³

But if they are particular delegates, or delegates only for certain causes, they cannot subdelegate unless it has been conceded to them by the one delegating.⁵

Neither an ordinary superior nor delegates for the universality of causes, who are held as Quasi-Ordinaries, can, without consulting the Prince, commit their whole jurisdiction to another, because, as Reiffenstuel says⁴ when speaking of an ordinary Judge: "An inferior judge, without the prince, cannot by his own authority constitute another ordinary Judge in his place."

151. • Quaer. 2° In how many ways can delegated jurisdiction cease?

Resp. 1° By renunciation of the delegate, accepted by the superior.⁵

2° By revocation of the one delegating, which however does not obtain effect unless it is notified to the delegate.⁶

3° When the number of cases for which the delegation was made has been exhausted, as in Fac. E, p. lxxiv, although the time has not yet elapsed.

4° By lapse of the determined time,⁷ or when the business for which it was given is finished. (A) p. 478.

5° By the death of the delegate, if the delegation was personal; or by loss of office or dignity, if it was real; for delegation is in the manner of a privilege. But a real privilege, or one annexed to an office, passes to successors in the office; but a personal privilege, just as it follows the person, although he has lost the office, so also is extinguished with the person, although someone succeeds him in the office.

I say: although he has lost the office. Suppose, for example, that a pastor has received the personal privilege of blessing rosaries with application of indulgences, - although he ceases to be a pastor by making profession in some religious institute, he will not lose the privilege.

But whether the delegation was personal or real must be discerned: a) from the words which the one delegating used. Thus it will be real if it is said: We delegate to the See of Baltimore, or to you and your successors; but personal if the one delegating used these or similar words: to you, in whose prudence in managing affairs of this kind we greatly trust; b) from the subject matter. Thus from practice a delegation made to a pastor for absolving from certain reserved cases is judged personal, even in an indefinite mode; likewise faculties conceded by the Holy See for a time to Bishops for dispensing in certain impediments, and a transitory delegation made by the Pope to a Bishop for some particular business; c) if neither from the words, nor from the subject matter, can something be certainly defined, it will be held as real if only the dignity is expressed, as to the Archbishop of New York; personal if only the name (or, according to Sanchez,¹ the name and at the same time the dignity) of the delegate is expressed, as if it had been said: to John N. N., or even to John N. N., Archbishop of Baltimore.

6° By death or any removal of the one delegating. But in this case a distinction must be made between the contentious and the gracious forum. In the first, delegated jurisdiction expires if, the matter still being intact, the one delegating departs from life or in some other way loses his office.² But the matter ceases to be intact by citation, as is more commonly held,³ or at least by the joining of issue. - In the second, it does not expire by death or change of the one delegating,⁴ if the delegation given to someone must be held as a grace already made, unless it was conceded with the clause: "until it shall please us," or "at our judgment or good pleasure," and the matter is still intact. But in the clauses: until it is revoked; at our revocation; at the judgment of the Apostolic See, or of the Bishop; until I shall will, that force is not present. - But if it is to be held as a grace to be made, the matter being intact, jurisdiction ceases by death or change of the one delegating. (M) p. 479.

Delegation, however, is held as a grace already made whenever it is given to someone for indeterminate persons;² because in this way to have the power of conferring grace on others is a true prerogative. But if the person in whose favor the jurisdiction is to be exercised is determined, then the jurisdiction must indeed still be judged a grace already made if the delegate must be held as a necessary executor, as happens when a dispensation over an impediment of marriage is obtained from the Holy See; for the grace has then been made to him with whom dispensation is to be made; hence the delegation then does not cease by the death of the Pontiff. - But if the delegate is not a necessary executor, namely if he can impart or deny the grace at his judgment to the determined person, then the delegation is not a grace already made, but rather one to be made, and, the matter being intact, ceases by the death or change of the one delegating.

A matter of the gracious forum is held intact if the delegate has not yet begun to exercise the first act, as if he has not yet called the parties to inquire concerning the truth of the prayers.

152. • Quaer. 3° If the Bishop is delegated, is the Vicar General also judged delegated, and vice versa?

Resp. 1° Negatively, since in delegated causes they do not make one tribunal, unless the one delegating uses the words: We commit to the Ordinary; for under the name Ordinary come all those who, like the Vicar General, have ordinary jurisdiction.

With these things premised, let these be the points concerning the power of dispensing.

153. Principles. - I. The legislator can dispense: 1° in his own laws, because he has as much power for loosing as he has for binding; 2° in the laws of his predecessors, because power either is from him, or at least is subordinated to him.

Hence a) the Pope can dispense in every ecclesiastical law, both universal and particular; indeed also in those Apostolic Constitutions which it is established were issued by the Apostles themselves, inasmuch as they were Presidents of the Church. Such are those which regard the Lenten fast, the observance of Sunday, and similar things. See L. I, 188.

b) The Bishop dispenses in all diocesan statutes, unless however the statute either has been confirmed by the Pope in specific form (n. 102. 4°), or has passed into a contract, which is not dissolved unless with the prior consent of him whose interest it is.

c) Our legislative assemblies in their respective laws.

154. • II. An inferior cannot dispense in the laws of his Superior, unless from delegated power. The reason is that an inferior does not have jurisdiction over the law of his superior. - Thus all.

It is said: unless from delegated power. By force of this power the Bishop dispenses:

A) as delegated by law in the general laws of the Church:

1° If in the law itself, made by the Pope or by an Ecumenical Council, this faculty is expressly conceded to Bishops, or (excepting the power of dispensing, about which the discussion is in Trent, Sess. 24, c. 5, de Ref. Matr.) it is said in it that dispensation can be made in it: for these words, lest they be superfluous, ought to be understood not of the Pope, but of Bishops alone; since, for the Pope to be able to dispense, it is not necessary that this be expressed in the law.

2° If necessity urges (under which in morals also comes great utility), and there is danger in delay; for the Supreme Pontiff is deservedly judged then to concede the faculty.

3° If there is a custom that the Bishop dispense in this or that universal law; for as custom introduces law, so also it grants right (in the case, the right of jurisdiction).

4° If it is doubted whether the case needs dispensation: for then the Doctors commonly say that the Bishop can declare that dispensation is not necessary, or that it can be imparted by him for caution and for the quiet of souls.

5° With individuals only, and in particular cases alone, as to those things which frequently occur; as in vows not reserved, in fasting, abstinence, observance of feasts, the Divine Office, and similar things; for it cannot be presumed that the Supreme Pontiffs wished to impose upon the faithful that burden, too grave, that for businesses of this kind, which are accustomed to occur so frequently, they should recur to him.

I said: with individuals; for the Bishop cannot relax the law of a superior by some general manner, except in the cases of which in 2°. 3°. 4°.

B) Besides, Bishops are accustomed to be endowed by the Holy See for a definite time with special faculties, by force of which they can dispense also in other things than in the aforesaid. See those which are accustomed to be conceded to our Bishops at p. lxx sq.

155. • III. Since dispensation is an act of jurisdiction, which can be exercised only upon subjects, it is plain that those alone can be dispensed who are subject to the one dispensing.

Hence travelers, according to the opinion which St. Alphonsus² calls very common and to which he subscribes, cannot be dispensed by a Bishop not their own in vows and the other things which we alleged at n. 154. 5°. Yet the contrary is sufficiently probable to the Saint as to travelers arriving at another place as at the end of a journey. Indeed, and for any travelers whatsoever I would say this today, because the consent of their Ordinaries is prudently presumed. But it is certain a) that vagi can be dispensed by the Bishop in whose diocese they here and now are; otherwise they would have no one by whom they could be dispensed; b) that the legislator and those who have obtained a universal faculty of dispensing with others can dispense also with themselves; for the power of dispensing pertains to voluntary jurisdiction, which someone can exercise even upon himself.

156. • IV. Whether, when, and how a delegated faculty of dispensing 1) can be subdelegated; 2) ceases, is to be concluded from those things which we said above concerning the subdelegation and cessation of delegated jurisdiction (n. 150. 151).

157. • V. The power of dispensing, even delegated power, given as a grace already made (n. 151. 6°), since it is favorable, is to be interpreted broadly; but the dispensation itself, since it is odious and as it were a wound inflicted on the law, from whose obligation it frees, is to be interpreted strictly, unless it is necessary (n. 148. 7°), or given of one's own motion, or inserted in the Body of Law, or conceded to a community, or for the common good; for then it is held as a favor.

158. Questions. - Quaer. 1° Can the Pope - since an inferior does not have jurisdiction over the law of a superior - dispense in divine law?

Resp. He can dispense from a just cause in those things in which divine right arises from the human will, as in vows and in oaths. Whether in the rest, from a most grave cause, he can truly dispense, or only declare that divine right then ceases, is controverted. The negative opinion is more probable to St. Alphonsus; although to him it is also very probable that the Pope can declare that in some particular case divine law does not oblige.¹

159. • Quaer. 2° Can the Bishop in his diocese dispense from laws made in a Provincial or National Council?

Resp. Affirmatively, provided there is no question of laws whose dispensation the Council has specially reserved to itself. Thus St. Alphonsus² and Benedict XIV⁴ against others. The reason alleged by St. Alphonsus is that this is greatly expedient for the good of the faithful; for on the one hand there can be cases in which a dispensation of this kind is useful, indeed necessary; but on the other it seems equitable that Bishops then have the faculty of dispensing in decrees of this kind, so that another Provincial Council need not be awaited, or recourse made to the Apostolic See. Make exception if the Council was confirmed in specific form, in which case he will be able to dispense only in those cases in which he can do this in Pontifical law (n. 154).

160. • Quaer. 3° Can pastors validly dispense in some matters?

Resp. By ordinary law, by reason of custom, they can dispense with subjects, for particular cases, in fasts, in abstinence, in works prohibited on a feast day, and other things of this kind, which occur frequently and need prompt dispensation, so that recourse to the Bishop is not easy.⁵ Our priests are accustomed to have broader faculties from the Bishops; but let each one consult the letters of his jurisdiction.

161. • Quaer. 4° Can Bishops subdelegate beyond the time for which the Holy See delegated them the faculties of dispensing or other faculties which they are accustomed to obtain from the Holy See, with the power of communicating them to suitable priests laboring in their diocese?

Resp. Negatively, speaking speculatively; for no one can transfer more right to another than he himself has. Otherwise, as indeed it seems to me, if the matter is considered practically; for since Bishops are accustomed to obtain these faculties again from the Holy See before the time for which they were conceded has elapsed, they are known to concede them anew by the act of their will by this very fact, that they had conceded them before, for example, until revocation.

162. Principles. - I. For the liceity of a dispensation some cause is always required. The reason is that otherwise the Superior will not be a faithful dispenser, or he will be imprudent.¹ Therefore he sins who in such a case petitions for dispensation; for he induces the dispenser to an illicit thing, and therefore sins in petitioning by the same kind of sin by which the legislator sins in conceding.

II. But for validity no cause is required on the part of the one conceding, if he dispenses in his own law or in the law of an inferior. The reason is that in this case the Superior can simply repeal the law; otherwise, however, if he dispenses in the law of his Superior, because he is not presumed to have power of dispensing rashly.

III. For validity, on the part of the petitioner, it is required that there be no essential obreption or subreption in the petition, that is, when there is kept silent what necessarily had to be expressed (see, for example, n. 1625, q. 2°), or there is expressed what necessarily ought to have been kept silent,² for example, a false final cause (ibid. q. 1°). - Hence:

1° A dispensation is invalid whenever an error has crept into the petition concerning the motive cause, or concerning the very object of the dispensation, whether this happened by the fault of the speaker or of another, or even from mere inadvertence; if, for example, you put in the petition an impediment of affinity for an impediment of consanguinity, or the 3rd degree for the 2nd; yet otherwise if you put the 2nd for the 3rd, because a lesser grace is contained in the greater of the same genus. - It is valid if, the final cause subsisting, only the impulsive cause is false. An impulsive cause falsely alleged, in bad faith, invalidates "as a penalty of perversity,"¹ and therefore only after the sentence of a judge. Hence, T. I, p. 88, q. 89.

2° The dispensation is valid if an error has crept into the rescript of the Superior, for example, by the carelessness of the secretary, because it supervenes upon a concession already made.

3° The dispensation is valid if the cause, although not subsisting at the time of the petition, subsists at the time of concession, provided the dispensation is in gracious form (§ III after n. 1622), or also in commissary form (ibid.) and the matter is about a grace to be made (n. 151. 6°): but if about a grace already made (ibid.), it must subsist both when the commission is given and when execution is mandated. Id. ib. q. 90.

4° The dispensation is valid, although several false causes, even motive ones, have been set forth together with true and sufficient causes; because where some true motive cause is present, a sufficient foundation for dispensation is supplied.

5° The dispensation is valid in doubt whether a cause that is obreptitious or subreptitious is final or impulsive; true or false; sufficient or insufficient; for in doubt one must stand for the value of the act.

6° A dispensation granted by a Superior is valid, although it had already been denied by an inferior, and no mention was made of this denial. - Indeed, it is probably valid even if, denied by a Superior, it is granted by an inferior; because the power of the inferior is not restricted by the denial of the Superior unless the latter expressly restricted it.²

7° A dispensation obtained for someone unaware or even unwilling is valid when necessity demands this. - But those things which are obtained from the Penitentiary are not valid unless they have been petitioned either by the confessor, or by the penitent, or by blood relatives up to the 4th degree.

163. Questions. - Quaer. 1° What are the just causes for dispensing from law?

Resp. Three are commonly assigned: 1) piety: thus he is dispensed from servile works on a feast who applies himself to labors pertaining to divine worship; 2) utility: thus he is dispensed from a simple vow of chastity who is placed in great danger of violating it; 3) difficulty: thus he is dispensed from fasting who cannot observe it without a sufficiently grave inconvenience.

Quaer. 2° Does a Superior dispensing without cause in a grave matter sin GRAVELY?

Resp. 1° Negatively, probably, of itself, as to the legislator; because, prescinding from scandal or the damage of others, there does not appear in this so great a disorder.¹

Resp. 2° Affirmatively as to an inferior, because he is not judged to have been delegated to dispense except for a just cause: and therefore, if he does otherwise, he gravely abuses the power conceded to him.²

Quaer. 3° Is it licit to use a tacit or presumed dispensation?

Resp. to the 1st Affirmatively, provided it can prudently be gathered from some sign.

Resp. to the 2nd Negatively, because the Superior ought to know that concerning which there is question; nevertheless a license can be presumed,³ if from conjectures there exists a certainly probable consent of the Superior (n. 1163. R. to the 2nd).

Quaer. 4° Is it licit to petition for, or to concede, a dispensation in doubt whether the cause is sufficient?

Resp. to the 1st Affirmatively, because it does not pertain to subjects to judge concerning the sufficiency of the cause, but only sincerely to set forth the matter to the Superior.⁴

To the 2nd Affirmatively likewise. The reason is that otherwise the burden imposed upon Superiors would become intolerable, and both the one dispensing and the petitioners would be exposed to innumerable scruples.⁵

Quaer. 5° What in doubt whether the case needs dispensation?

Resp. 1° A dispensation is not required in a doubt, whether positive or negative, whether the case is comprehended under the law, as is plain from what was said on Probabilism; for the extension of the law to that case remains uncertain. Make exception for a positive doubt concerning the existence of a diriment impediment of marriage, since in ecclesiastical impediments alone, which are doubtful by a doubt of law, the Church is presumed to supply (n. 60. I.).¹

2° But in doubt whether the cause is sufficient for excusing from the law without dispensation, a distinction must be made. Namely, in a positive doubt (n. 48. under 1) a dispensation is to be petitioned (n. 66. 2°), unless at the same time there is a doubt whether perhaps the observance of the law would gravely harm (n. 67. 1°. c). - But in a doubt founding an opinion only singularly probable for liberty, it is not to be petitioned (n. 66. 2°).

Quaer. 6° Is a dispensation extorted by fear valid?

Resp. Affirmatively, provided a cause for dispensing exists, nor is it established that in the Superior the intention of dispensing was altogether lacking, and besides any other cause of nullity is absent.

Quaer. 7° Is a dispensation valid which is given in good faith, when the cause that was thought to be present and sufficient is nevertheless not really so?

Resp. If there is question of a dispensation given by an inferior, St. Alphonsus, speaking of dispensation in vows,² follows the opinion of those who deny it, and this on account of the certain principle that an inferior invalidly dispenses without sufficient cause (n. 162. II.). But this reason has force also as to human laws. Yet the one dispensed can acquiesce in the dispensation as long as he is not certain of the non-existence or insufficiency of the cause.

Dispensation can cease in multiple ways, namely 1° by cessation of the cause; 2° by revocation; 3° by renunciation.

164. Principles. - I. By cessation of the cause a dispensation ceases (but not a commutation, L. I, 195), if there has ceased: 1) the final cause, and not only the impulsive; and this 2) totally; 3) certainly; and 4) before the dispensation has obtained effect. But if it has already obtained effect, one granted absolutely does not cease; otherwise if under an express or tacit condition: if the cause endures.³

The principle is proved and explained.

It is said: if there has ceased: 1) the final cause and not only the impulsive; for the former, not the latter, is the reason of the dispensation.

It is said: 2) totally. For then the prayers do not rest on truth in any way. It is otherwise if the motive cause ceases only in part, because the cause of dispensation still remains. Hence a dispensation from fasting conceded because of infirmity ceases when you have fully recovered; otherwise, if the infirmity remains in part.¹ Hence likewise, if the final cause, for example, of dispensing in an impediment of marriage is the legitimation of offspring and the reparation of scandal or damage; - if the offspring dies, or the fetus has been miscarried, the dispensation is still sustained for repairing scandal or damage.

It is said: 3) certainly. For in doubt one must stand for the dispensation, which possesses.

It is said: 4) before the dispensation, etc. For he to whom the execution of the letters is committed cannot satisfy his office except under the tacit condition: if the prayers rest upon truth; which condition demands that the final cause persist at the time at which the dispensation obtains execution. Titius, for example, petitions for a dispensation from an impediment of consanguinity, setting forth as the sole final and total cause the legitimation of offspring already begotten from a blood relative; he obtains the dispensation, and the dispensatory letters have already been dispatched; but before the letters are given to execution by the delegate (or before the dispensation has been fulminated), the offspring dies: - the dispensation ceases.

It is added: But if it has already obtained effect, etc. But according to St. Alphonsus² an absolute dispensation is one which is given because of a cause of itself perpetual, such as, for example, in a dispensation over irregularity the poverty of parents, lack of ministers, uprightness of morals is judged to be; otherwise it is held as conditioned, such as infirmity is commonly judged to be, because of which one is dispensed from fasting, abstinence, the Divine Office. (Z) p. 484.

II. Dispensation altogether ceases by the express revocation of the Superior, because obligation or release from obligation depends on the will of the Superior. Yet revocation without just cause would be illicit. - But it does not cease because of revocation by an inferior without just cause, because the faculty of revoking is not in his arbitrary power.³

III. Renunciation must be accepted by the Superior, because he alone can again bind one loosed from the law. But a delegate cannot accept it; for, once the dispensation has been given, he has ceased to be Superior. - A dispensation does not cease by non-use or by contrary use, for example, by fasting or by not marrying the affine, if you were dispensed in fasting, affinity. L. I, 198.

St. Thomas, I-II, q. 90, a. 4.

226. Promulgation (afkondiging) is a public and authentic testimony concerning the existence of a law and its announcement (bekendmaking) made to the community. It is called:

1. authentic, that is, made solemnly or with a certain solemnity by legitimate authority, namely, by the legislator himself or his authentic mandate, so that from the solemnity it appears and cannot be doubted that the law has proceeded from him in whom the power of the society resides;

2. public, that is, so carried out that the law is seen to be directed to the knowledge of the community and that the community can easily come to knowledge of it.

227. Promulgation is necessary in order that law obligate. - For a rule, in order to direct and bind someone, must be applied and imposed upon him, which does not happen unless it becomes known to him (n. 203). But law is not a rule made for one or another person, but borne for a community. Therefore in order that it obligate, it must become known to the community. But it cannot become known to the community except from promulgation, by which it is proposed in a public mode and one proportioned to the community. Therefore law does not obligate unless it is promulgated. Otherwise law would be only in the superior regulating, but not in the subjects regulated.

Hence a) until it has been promulgated, one who would know from elsewhere that it had been established is not held by the law;

b) a doubtfully promulgated law does not obligate: for liberty is not bound except by promulgation certainly proved; in a case of doubt, namely, the doubt is sufficiently promulgated: whether there is a law; but the law itself is not sufficiently promulgated: that it is a law;

c) promulgation differs from the divulgation of law, which sometimes is called, and is as it were, promulgation "in second act," by which the law in fact comes to the knowledge of subjects. Promulgation is necessary so that law can be divulged: from the former objective obligation arises and in the external forum; but knowledge of the law is also necessary so that subjective obligation be present and in the forum of conscience: for no one can sin by violating an obligation which he does not know.

Nevertheless promulgation does not pertain to the essence of law; for 1) it is the application of a rule and measure to the thing ruled and measured, whence it supposes a rule or law already constituted; 2) without promulgation law, because it is the command of a superior, has force from his authority and is apt to direct and bind; whence obligation is not from promulgation as from a cause but as from a condition sine qua non. In the same way the application of fire to a combustible thing is the condition required for burning.

1. Haine notes, Theologia Moralis I, q. 34: "It is a required condition, such as is the proposal of the object by the intellect, in order that the object move the will to love of itself. Therefore, just as, in order that an object in second act move to love of itself, it is necessarily and indispensably required that it be proposed to the will by the intellect, since nothing is willed unless it is foreknown; nevertheless the reason or power of moving the will is not the proposal of the object but the goodness found in the object; so, in order that law in second act obligate to its observance, it is indeed indispensably required that it be proposed to subjects by promulgation; nevertheless the reason or power of obligating is not the promulgation or proposal itself, but the authority which the law has in itself, as it proceeds from the legislator as bearing the person of the republic." Nor does the principle of law stand in the way: Laws are established when they are promulgated, as the Code puts it, can. 8 § 1, from Justinian. For the sense is: through promulgation laws are definitively established and complete as obligating in second act, although they already are in first act. Besides, the intention of the Code is not to settle a scholastic question.

228. The mode of promulgation is not determined by the law of nature: any mode whatsoever suffices, whether it is done by public reading in an assembly, or by the voice of a herald in the street, or by insertion in a newspaper, or by affixing in a public place, even one which is frequented, chief, and central, provided that morally, in a human mode, the law can rather easily come to the knowledge of the community, if not simultaneously, at least successively. It is more than sufficient if notification is made to individuals in particular, as in the natural law which God has inserted into the minds of men to be known naturally.

229. Once promulgation has been made, law is perfect and complete, and of itself begins to obligate, unless its force is suspended for a time; hence:

a) if the legislator has determined some time at which obligation begins, the law does not obligate before then: for just as it depends upon him whether there is obligation or not, so too it depends upon him whether it begins sooner or later;

b) if he has not determined a time, in a community of small extent, for example, a diocese, it obligates morally at once, because the promulgation can be known at once;

c) but in a sufficiently extended society, for example, the universal Church, law obligates in various regions successively, according to the time which is morally necessary so that knowledge of the promulgation can commonly come to all in those regions by ordinary means; whence it begins to obligate at once in the place where promulgation was made and in neighboring places, but it does not at once obligate everywhere, because it cannot at once be known by all in the whole territory.

From this it follows that, if someone before that time knew the law by an extraordinary way, he would not be bound to observe it.

273. Human laws can be formed either by the imperative act of the legislator requiring observance from subjects: these are constituted or legal right, which ordinarily is written; or by the observance of subjects to which the consent of the legislator is added: these are customary right.

1. Custom from the nature of the thing is a legitimate source of right. Namely, it is conformable to reason that manners introduce law: for those things which are spontaneously observed by the members of society and are born from social development are to be held (unless something stands in the way) as accommodated to the character of the subjects and conformable to the common good; whence they cannot fail to be sanctioned by a prudent superior. Hence custom, which is usually defined as "legal right introduced by long-standing manners of the community with some consent of the legislator," was generally admitted in Roman Law; but not so in modern civil law, either for introducing, abrogating, extending, or restricting law, unless exceptionally, if it is expressly indicated in the law, as happens in the matter of contracts and commerce.

2. Written law can be issued in various forms, and by whatever forms of decree, letter, code, or collection; also of response and sentence, although these two are more fitting for interpreting a law already borne than for introducing a new one. Likewise it is formed by a various process for various times among various peoples; today the received process is the following: it is proposed by ministers of the state or by members of the legislative assembly, is publicly discussed in the assembly and accepted by vote, and is sanctioned by the supreme power.

1. Cf. Belgian Constitution, a. 27, 39, 69.

But it befits the nature of constituted law: a) that the superior not bear a law without the counsel of the prudent; b) that it be expressed in clear and brief words in the language of the society to which it is directed; c) that it be proposed in writing: indeed it could be handed down orally, yet by writing better provision is made for the perspicuity and sincerity of the law. Nevertheless all these things are not strictly required that a law obligate.

274. Promulgation has been made in various modes at various times and among various nations. In Roman Law, from the year 538, under the emperor Justinian, it had to be made in individual provinces or metropolitan cities.

Today, in cultivated regions, it is usually made by an act of the king or supreme magistrate of the republic, by which he testifies concerning the law established and the law itself becomes public right by an announcement had in the official newspaper; but it begins to obligate after the time which has been established.

Thus in Belgium, according to the law of February 28, 1845, art. 2, confirmed by the law of April 18, 1898, modified December 28, 1909, art. 4 (conformably to the Belgian Constitution, art. 129), it is done by an authentic testimony made by the king concerning the existence of the law and by public insertion commanded by him in the official newspaper of the State, Le Moniteur; and laws obligate in the whole kingdom on the tenth day after the day of publication, unless otherwise established in the law, or unless accidentally it was impossible for citizens to know it, for example, on account of war, a great inundation, etc., or for subjects who are outside the kingdom: for law openly supposes the possibility of knowing it (art. 1, law of August 2, 1822). In France, from the decree of November 5, 1870, law obligates after one full day has elapsed after the official journal has reached the capital city of each district. In Italy laws obligate on the fifteenth day from the day of publication.

275. Thesis. For the value or obligating force of human law, the approving acceptance of subjects, or acceptance of right, that is, consent to observance of the law borne, is not required per se.

It is proved: 1) The Apostle, Rom. XIII, 2, says without restriction or exception: He who resists power resists the ordinance of God; but he resists power who does not accept the law borne by it.

2. If acceptance were required, this would be either from defect of will in the legislator or from defect of power. Not the first: for if he bears a law in preceptive words and urges it with penalties, it is an open sign that he wills to obligate to it; moreover the common good can require that he break the resistances of subjects. Not the second, because power in its exercise is not restricted at the nod of subjects; otherwise the efficacious direction of society would be impossible; and moreover then it would not be a power of commanding and prescribing in the true sense, but a mere faculty of giving and proposing counsel, by which the common good cannot be sufficiently procured.

3. Whence Alexander VII condemned the proposition (28): "The people do not sin even if without any cause they do not receive a law promulgated by the prince" (cf. Syllabus, prop. 63).

Nevertheless per accidens acceptance is necessary, if the legislator does not will to obligate otherwise, or if that right is reserved to the people in the law (as in Switzerland for certain laws there is a referendum to the people); but then acceptance is not of a law already constituted, but concurs toward constituting it.

276. A fortiori, executive acceptance of fact, or the observance itself of the law, is not required for giving value to a law.

Nevertheless it can be necessary for conserving the force of law, not directly, but indirectly. For if a superior is unable to obtain fulfillment of the law from the greater or saner part of the community, it can be fitting that he not urge observance of the law; for by urging he could be an occasion of ruin to subjects without fruit. In which case the obligation does not fail directly from non-acceptance by the people, but indirectly from the tacit or presumed consent of the legislator, who is judged, if he does not urge the law, not to will the ruin of souls. But when such a law is judged revoked cannot be determined generally, but is left to the judgment of the prudent.

By difference from Roman Law, present-day civil law, because it denies all force to custom, does not admit that after promulgation a law is suspended by recourse to the legislator, nor that it ceases by non-reception or by not being brought into use; whence the consent of the legislator cannot be supposed.

329. Ecclesiastical laws can be formed just as other human laws can: either by an imperative act of the legislator requiring observance from the subjects, or by the observance or custom of subjects, to which the consent of the legislator is added.

In former times many ecclesiastical laws were introduced by custom, several of which have now been consigned to writing; but even today custom is able to introduce law, as we shall explain in q. 3, art. 7, but always with the consent of the legislator (can. 25); these laws are called customary right.

Now, however, laws are ordinarily constituted by an imperative act of the legislator; whence these laws are called constituted right, which ordinarily is written.

It belongs to the nature of constituted law: a) that the superior not make a law without the counsel of prudent persons; whence Pontiffs are accustomed to consult congregations, and bishops have the counsel of the chapter; indeed at least every ten years a diocesan synod is to be celebrated (can. 356, § 1), in which nevertheless the bishop alone is legislator, the others having a merely consultive vote (can. 362); b) that the intention of obligating be expressed in clear and brief words and in the language of the society to which it is directed, such as Latin in the Western Church; c) that it be proposed in writing, by which provision is better made for the perspicuity of the law. This can be done under various forms of decree, letter, code or collection, even response and sentence, although these two are more suited to interpreting a law already enacted than to introducing a new one; indeed under the form of an instruction, which nevertheless is rather a declarative norm and a directive rule to be observed, accessorily completing the law, in which nevertheless certain secondary points can be imposed by prescriptive ordination. Yet no determined form is to be observed by precept in the formation of laws.

330. Ecclesiastical laws take on various forms.

Today there are enumerated:

1. apostolic constitutions, which are issued in the name of the Roman Pontiff or proceed immediately from him, in the more solemn form of a Bull, and are concerned with graver business;

2. apostolic letters, which are issued under the form of a Bull or under the less solemn form of a Brief, for less grave business, especially of the order of governance or administration; letters are called encyclicals when they are directed to the bishops of the whole world, or to a notable part of them, e.g., at least of one or several nations;

Dispensation is the legitimate relaxation of an obligation arising from law, for some particular case; and therefore it differs both from epikeia and from cessation of law. - Dispensation can be: 1st, licit or illicit, according as it is made for a just cause or not; 2nd, valid or invalid, according as it either exempts from observation of the law or does not exempt; 3rd, absolute or conditioned, according as it is granted simply or with some condition added; 4th, subreptitious or obreptitious, according as in the petition something to be manifested is kept silent, or on the contrary something false is asserted.

I suppose that some promulgation is necessary for the law in order that it oblige in act: because, as was said, law is the rule of human acts, and these cannot be regulated by it unless it become known; but it becomes known through promulgation.

I said, some promulgation, because it is different according to the diversity of laws. The eternal law¹ and the natural law is promulgated to each one through the dictate of reason. The positive divine law is promulgated either by internal revelation, as in the prophets, or solemnly, as the old law on Mount Sinai, the new law on the day of Pentecost. Usage, however, has prevailed that human law be always promulgated with some solemnity, and thus reason requires. For since the human legislator bears a double person, private and public, he ought to propose the law in such a way that he signify that he proposes it as a public person, which is done by employing some solemnity. ¹ The eternal law, as such, is not promulgated, but remains hidden in the divine mind. But if it go forth outside the divine mind and be communicated to rational creatures through the intellectual light, then it is for them the natural law; and thus considered it is promulgated to each one through the dictate of reason.

If you say that promulgation is not required for the revocation of a law, I reply that the revocation of a law is not a law, but the destruction of a law. More is required, however, to constitute a thing than to destroy it. For the reply to the question

^{1 1} The eternal law, as such, is not promulgated, but remains hidden in the divine mind. But if it go forth outside the divine mind and be communicated to rational creatures through the intellectual light, then it is for them the natural law; and thus considered it is promulgated to each one through the dictate of reason.

I say: It seems more probable that promulgation is not of the essence of law, but is only a condition required irreplaceably in order that it oblige in act, just as, e.g., the proposal of the object is a condition required irreplaceably in order that it be loved.

It is proved. To the essence of law it suffices that it have an aptitude to direct and to oblige; for the essences of things are defined by first act or aptitude, not by second act, as the philosophers teach. But law before promulgation has an aptitude to direct and to oblige; for it has not this aptitude from promulgation, but its actual direction and obligation as from a condition. Therefore.

It is confirmed. Law is the rule by which we are induced to act, or withheld from acting, with some obligation. But promulgation is not a rule, nor part of the rule, nor does the force of obliging, or actual obligation, proceed from it as from a cause, since this ought to be from a superior as from a cause, but only as from a condition: just as heating is not from approximation as from a cause, but from fire, although it depends upon approximation as upon a condition.

As to St. Thomas, whose mind is disputed, he teaches here a. 4, that promulgation is related to law as the application of the rule to the thing ruled; but the application of the rule is not of its essence, but supposes it constituted. Whence, when he there says that, in order that the law obtain the virtue of obliging, it must be promulgated, he understands the virtue of obliging in second act, not in first act.

[Thus Billuart. But proceeding further and restricting the question to positive law, whether divine or human,

I say: Promulgation is of the essence of law.

It is proved. 1° That without which a thing has not its own being pertains to its essence. But before promulgation the law has not its own being. Therefore promulgation pertains to the essence of law. — The minor is proved. What is only in potency has no being. But so long as the law is not promulgated, it is only in potency. Therefore then it has not its own being. — The minor is evident; for so long as the law is not promulgated, whether it remain hidden in the mind of the legislator, or the legislator have externally manifested his intention of enacting such a law, nothing is perceived except a mere proposal. But this proposal is not law, but only the preparation of the law; and preparation indeed leads a thing toward being, but, until the last act be posited, leaves it in potency. Therefore, so long as the law is not promulgated, it is only in potency.

2° The law is not fully constituted, that is, it is not true law, unless it have the force of obliging. But the law obtains the force of obliging through promulgation, and not otherwise. Therefore, until it be promulgated, it is not true law. — I subjoin. That without which the law is not true law pertains to its essence. But the law is not true law before promulgation. Therefore promulgation is of the essence of law.

3° Law is an ordinance of reason for the common good. But it is not such unless it be made known to the community; and this making known is promulgation made by him who has the care of the community: whence promulgation is contained in the definition of law. Therefore promulgation is of the essence of law; for the definition expresses the very essence.

4° The same is proved by the authority of St. Thomas, here q. 90, a. 4.

The mind of the Master in this place was disputed. Some say with our Billuart: St. Thomas says that promulgation is related to law as the application of the rule to the thing ruled. But the application of the rule is not of its essence, but supposes it already constituted. Therefore the holy Doctor does not place promulgation in the essence of law, but declares only that it is a condition without which the law does not oblige. — If the words of the Angelic Doctor be rightly weighed, his contrary mind will clearly be perceived. In the place cited he solves the following question: « Whether promulgation is of the notion of law? » In the head of the objections the negative proposition is read: « It seems that promulgation is not of the notion of law; » whence whoever has understood the method of the author must straightway conclude that he champions the contradictory proposition, which is equivalent to our proposition; thus he proceeds in the body of the article: « Law is imposed on others by way of rule and measure. But rule and measure are imposed by the fact that they are applied to those things that are ruled and measured. Wherefore, in order that law obtain the force of obliging, which is proper to law, it must needs be applied to men who ought to be regulated according to it. Such application is made by its being brought to their knowledge through promulgation itself. Wherefore promulgation itself is necessary in order that law have its force. And thus from the four things premised may be gathered the definition of law, which is nothing else than a certain ordinance of reason for the common good, promulgated by him who has the care of the community. » This definition is the conclusion of the whole article; and after describing the law in itself and with regard to subjects whose actions he cannot rule and measure unless he reach them through promulgation, St. Thomas places this promulgation in the definition of law. But he would not have assigned this place to promulgation had he not held it essential to law. Therefore he held it as such.

It is confirmed by the axiom of law related above, dist. 4, cap. 3: « Laws are instituted when they are promulgated, » where the promulgation of the law is given as its very institution. Therefore from promulgation the law receives that it is true law. Therefore promulgation is of the essence of law. And this is intimated by Justinian, saying, c. de Legib., in leg.: « The most sacred laws ought to be understood by all, that all, their precept being more clearly understood, may decline what is forbidden and do what is commanded. »

You will say: The law obliges not only those to whom it has already become known, but also those who are ignorant of it, as appears in laws irritating contracts, which produce their effect even toward those to whom they are wholly unknown. Therefore promulgation is not necessary in order that the law oblige. Therefore consequently it is not of the essence of law.

I answer. I deny the consequence. For it is one thing the divulgation of a law, another its promulgation, as the Salmanticenses note, cap. 1, n. 74. For divulgation there is required that the law become personally known to each subject; for promulgation indeed it suffices that it have been notified generally to the community, so that any private person can easily come to know it. Further, the law does not receive its intrinsic virtue of obliging from divulgation, but from promulgation, so that as soon as it has been intimated to the community it binds all subjects at least in the external forum, since all are juridically presumed not to be ignorant of it. A distinction must be made between irritating laws, by which subjects, even though unknowing, are rendered unfit in either forum for determinate acts, on account of the motive of the public good, and laws which render certain acts illicit and bind conscience.

Laws of the latter kind are true laws once they have been intimated to the community, and toward all they hold their obligatory force. But if they have been insufficiently divulged, so that they have not become known to some, although even toward subjects of this kind they rejoice in all the marks of true law, nevertheless they do not bind them in the internal forum, because these are laboring in invincible ignorance, which excuses from formal sin; and respectively toward them such laws ought to be regarded as not promulgated. And in this sense we understood the principle: « A doubtful law is no law, » in our dissertation on moderate Probabilism.

You will ask whether a sufficiently promulgated law obliges all, even those who invincibly are ignorant of it.

I answer. More probably affirmatively: because 1° the law in promulgation is directed not only to those present, but also to the absent. Therefore it comprehends them also. 2° Because, if a credible private person denounce to an absent person a sufficiently promulgated law, he will be bound to observe the law, and will sin by transgressing it. But this obligation does not arise from that private denouncer. Therefore from the promulgated law. Therefore before the denunciation it obliged.

Nevertheless all concede that those who invincibly are ignorant are excused from fault and from punishment for transgressing the law; but if the law were not only prohibitory but also irritative of some act, the act would be invalid even in one invincibly ignorant, as, e.g., clandestine marriage in places in which the Tridentine [decree] is sufficiently promulgated.

Dispensation, insofar as it is here taken, is a relaxation of the obligation of a law.

§ I

Who can dispense in human law?

I say 2°: By ordinary power there can dispense in his own laws the lawgiver himself, his successor, and the superior to whom the lawgiver or successor is subordinate. An inferior cannot, however, except by delegated power, and so far as has been granted to him either by law, by custom, or by a superior.

The first part is plain; because the obligation of a law depends upon the power of the lawgiver. To the same power it belongs to enact a law and to exempt someone from the law: which is to dispense.

[Therefore a bishop can dispense from diocesan statutes, even if they were enacted in synod. For a synod is not above the bishop, nor does it have jurisdiction and legislative power, since the priests who come together to the synod by right or are admitted have not a definitive but only a consultative suffrage; and the bishop pronounces in all things as legislator according to those votes, or even against them.

No form is prescribed for obtaining dispensations from bishops and other Ordinaries of places, or from prelates of religious orders. This one thing is to be weighed, namely whether they enjoy the faculties necessary for dispensing in matters about which question is raised in various cases.

Since causes reserved to the Supreme Pontiff are referred from all parts of the world to his authority, a twofold tribunal was constituted at Rome for granting dispensations, namely the sacred Penitentiary and the Dataria. The matters with which the authority of the Major Penitentiary, or prefect of the Penitentiary, is concerned are: delays and commutations of simple vows, commutation of the simple obligation of reciting the canonical hours, absolutions from censures and reserved cases, dispensations over irregularities, convalidations of titles, rehabilitations to benefices as well as to offices, dignities and the like, dispensations for religious wishing to pass to a stricter or laxer institute, condonations and remissions of moneys and fruits badly exacted and received in benefice matter, unless prejudice should thence follow to a third person or a certain lord. As for impediments concerning matrimony, the Penitentiary grants dispensations for the internal forum over all occult impediments, or, for the external forum, though in forma pauperum, over public impediments, of which we shall treat in the treatise on Matrimony. Dispensations over impediments public by their nature are expedited by the Dataria. Of these likewise we shall speak in the same treatise.]

Plain also is the second part; because to dispense is an act of jurisdiction. An inferior has no jurisdiction over the law of a superior except insofar as it is conceded to him, either by that superior himself, or by law or custom.

For delegated power is twofold: one from law or custom, which, while granted or annexed in perpetuity not to the person but to the office or dignity, is equated with ordinary power. Cap. Quoniam abbas, de officio delegati, Decretal. lib. I, tit. 29, and L. I, ff de officio ejus cujus commissa est jurisdictio. The other is from man in two ways: either after the manner of grace, in favor of the delegate, and this is of broad interpretation, nor does it expire at the death of the grantor if conferred absolutely; because, according to cap. Si cui, de praebendis, in 6°, « A benefit once granted by a prince ought to endure. » Or after the manner of commission and mandate, in favor of some cause or person, and this is of strict interpretation and expires at the death of the grantor, provided the matter be entire and not yet begun to be put into execution. Cap. Relatum, de officio delegati, and the cited cap. Si cui.

Whence you gather that bishops cannot dispense by ordinary power in the laws of Supreme Pontiffs and councils, yet can in many cases by delegated power.

1° When the law expressly grants this to them: thus Trid., session XXIV, cap. 6, de Reformat., grants them power to dispense in all irregularities arising from hidden delict, excepting that which arises from voluntary homicide and from the others brought to a contentious forum.

2° They can by custom and tacit consent dispense in lighter matters and such as happen frequently, as in fasts, feasts, the Canonical Hours and the like; because this the fitting governance of the diocese requires, nor is it likely that the Pontiff wishes recourse to be had continually to himself for light matters, or such as occur frequently. In fasts and feasts pastors also can do this, by custom.

3° They can, by tacit consent, dispense in things which brook no delay, because it is presumed by law that the Supreme Pontiff wills not that the faithful remain so long in sin or in danger of sinning. Thus they dispense in occult impediments, if these be discovered after marriage contracted with good faith at least on one side; not however in those discovered before the contract, unless perchance they be detected immediately before the celebration, which cannot be deferred without grave scandal. Likewise they dispense in the impediment of seeking the debt which one party contracted through intercourse with a blood relative in the first or second degree of the other.

What I have said hitherto of bishops must be said of prelates of exempt Regulars respectively toward their subjects; because in things pertaining merely to jurisdiction they are as it were the bishops of their own men.

§ II. — Whether dispensation without legitimate cause is licit and valid?

I say 1°: A superior dispenses illicitly without legitimate cause in his own law or that of an inferior¹.

It is proved: because 1° he who dispenses without legitimate cause is an imprudent and unfaithful dispenser²: imprudent, because he acts rashly, without reasonable cause; unfaithful, because he intends not the common good, unto which the law was instituted, and which he ought by his office and implicit pact with the community to intend. 2° Because to exempt from the law him who is not to be exempted is respect of persons. 3° Because it is base and against natural reason that a part without cause fail of con-

IX. Question III. What are the legitimate causes for granting dispensation? Response: Before I assign the causes individually, I will preface a few general points, which authors commonly note must be observed in dispensation. The first is that it be lawful according to equity; the second, that it be fitting according to honorableness; and the third, that it be expedient according to utility. This too must be held as a universal and certain principle: namely, that the graver the vow, the graver a cause it requires for dispensation — such that there be a fitting proportion between the vow which is to be relaxed, and the cause of such relaxation. Vows of chastity, of religious life, of the threefold pilgrimage, of perpetual fasting, of disbursing vast alms, are most grave vows: therefore they require a grave cause for dispensation. Lesser, and more frequent, vows — such as wearing the habit of some Saint, visiting his image, undertaking a visit to some such sanctuary, and the like — since they are of lesser weight, a lesser cause too suffices for obtaining dispensation. The reason is evident: in vows of the former kind, the matter consecrated to God by vow yields greater worship. Now there is no foundation for presuming that God wishes to remit the payment of a grave tribute, when no urgent reason is present which would counsel such indulgence. Hence it is that common practice holds that an absolute dispensation is most rarely granted in the aforesaid vows; but almost all teach that commutation, or dispensation, is to be granted only integrally, and that it is not always to be inferred, that the Church, or the Pontiffs themselves, ought to intermix the power of commuting or dispensing whenever some evident cause of dispensing occurs. For the power in the Church of dispensing is never to be diminished morally; nay, an evident and just legitimate cause is always, as commonly required, to occur, so that a full and absolute dispensation may be granted... . Nor is absolute moral certainty always required in moral matters; and this can often not be had, but it suffices that the cause probably exist. It suffices, then, that the cause, all things having been seriously inspected, be recognized as expedient for the common good, and for the honest utility of the one vowing, so that the vow be relaxed.

IX. Question V. Who can dispense from reciting the office? Answer. The supreme Pontiff, as the supreme guardian of the laws and the maker of ecclesiastical law, can dispense, for a just cause, throughout the universal Church. Bishops too, in their own diocese, can dispense — not in perpetuity, but according to the variety of circumstances, a just cause occurring. Similarly, Regular Prelates can dispense their Religious for a time, a just cause pressing.

XIX. Question XVI. To whom, by ordinary law, does the faculty of dispensing in vows belong? Answer. It belongs first to the supreme Pontiff, Pastor and Head of the universal Church, and Vicar of Christ on earth; then to a general Council, to the supreme Pontiff's Penitentiary, to Legates a latere, to pontifical Nuncios with respect to the whole Province or Kingdom, to Archbishops, Bishops, the cathedral Chapter with the see vacant, Abbots having quasi-episcopal jurisdiction, and all Prelates of Regulars with respect to their own subjects. All these can, by ordinary law, dispense their subjects in vows both personal and real, reserved vows excepted. Cardinal Protectors of Orders cannot, by ordinary law, dispense in vows. The vows of a Community can be dispensed by a Bishop, a just cause occurring.

XXX. Question XXIII. What are legitimate causes of dispensation? Answer. Three things must be noted: 1. what is lawful according to equity; 2. what is fitting according to honesty; 3. what is expedient according to utility. The graver the vow, the graver the causes required for dispensation, so that there be a fitting proportion between the vow to be relaxed and the cause of relaxation. Hence it is that in the aforesaid five vows dispensations are rarely granted, but the supreme Pontiffs themselves are wont to mix in something of commutation. Nor is it to be inferred from this that a dispensation is never to be granted; but only that it is to be granted when a legitimate cause occurs. Nor is an evident cause always required, since in moral matters it can often not be had. It suffices that a likely cause appear solid, so that, all things seriously weighed, it be judged expedient, both to the common good and to the honest advantage of the one vowing, that the vow be relaxed.

Titius, the missionary rector in England, doubts whether he would incur the suspension which, in the Fourth Council of Westminster, decree XI, number 9, was enacted against ecclesiastics initiated into sacred orders who “are present at stage performances in public theaters or in places temporarily serving for the use of a public theater,” if he were present at performances which a certain confraternity of young people of both sexes was accustomed sometimes to give in the elementary schools of his mission. He therefore asks his bishop to resolve the doubt. The bishop refers the matter to a meeting of all the bishops which was to be held shortly afterward for conducting business. They decide that all performances other than those presented by boys or girls, even in elementary schools, are comprehended by the provincial law. The diocesan bishop communicates this decision to Titius and afterward to several of his other priests when occasion arises. Notwithstanding this decision, grave doubts about the proposed question still trouble Titius. Hence he asks:

1. To whom does it belong to interpret a law?

2. What kind of promulgation is required in order that a law may bind?

3. Who are subject to laws enacted in a provincial council?

4. What is to be said concerning the case?

1. To whom does it belong to interpret an ecclesiastical law?

Law is interpreted authentically by the legislator, and such interpretation has the force of law if it be duly promulgated. It is interpreted doctrinally by theologians and canonists, whose authority is worth as much as it proves. It receives a customary interpretation from the way in which it is observed, for custom is the best interpreter of law, and from the practice of the curia, or the way in which it is applied in the ecclesiastical courts.

2. What sort of promulgation is required that a law may bind?

All are agreed that due promulgation is required in order that a law may have binding force. Promulgation is not a mere diffusion of knowledge concerning the existence of a law procured through the public press or by similar means. It is a publication of the law made by lawful authority, with a view to imposing an obligation on subjects to act as the law prescribes. It is left to the legislative authority to decide how a law is to be promulgated. Sometimes a special mode of promulgation is laid down in the law itself. Thus the decree Ne temere, Aug. 2, 1907, was promulgated by the very fact of its being transmitted to the Ordinaries. By the apostolic constitution Promulgandi of Sept. 29, 1908, Pius X decreed that “henceforward the Pontifical constitutions, laws, decrees, and other ordinances of the Roman Pontiffs, of the Sacred Congregations, and of the Offices, inserted and published in the said Bulletin (Acta Apostolicae Sedis) with the authorization of the secretary or of the highest Official of the respective Congregation or

Office from which they emanate, in this, and only in this manner be considered as legally promulgated, whenever promulgation is necessary and the Holy See has not otherwise provided.”

Episcopal laws are generally promulgated by being read in synod or in the churches of the diocese.

3. Who are subject to laws made by a Provincial Council?

Laws made in a Provincial Synod after recognition by the Sacred Congregation of the Council and promulgation by the Metropolitan bind all members of the Church who have a domicil or quasi-domicil within the territory represented by the synod, and who are not exempted. Even the bishops are subject to provincial laws, although they can dispense in them in particular cases. The interpretation of provincial law made by bishops either singly or gathered together in bishops’ meetings, is not authentic, but rather doctrinal, although of course a bishop can if he pleases make a law for his own diocese.¹

1 Laurentius, Institutiones Jur. Eccles., n. 228.

4. The case. Titius, a missionary rector in England, doubted whether he would incur the suspension inflicted by provincial law by the fact itself on ecclesiastics in Sacred Orders who are present at stage plays in public theaters or in places serving for the time as public theaters, if he were to be present at a play given by a confraternity of young people of both sexes in the elementary schools of his mission. He referred the doubt to the bishop, who brought it before the other bishops at their meeting. The bishops decided that all plays given by others than mere children even in schools are comprehended in the law. The decision was communicated to Titius by his bishop, who on occasion communicated it to others as well. Notwithstanding this Titius still has grave doubts on the point.

It will be clear from what we said above that the decision of the bishops has not of itself the force of law. The main question is: Does the case come under the provincial law according to its natural signification? The chief difficulty is: Are elementary schools places serving for the time being as a public theater when a play is given in them? If private theatricals were held in a school for a few friends of the confraternity, it clearly would not be used as a public theater. But if the play is not private but public, in the sense that any one who chooses to present himself is admitted, then it would seem that the very fact of a play given there makes it a place serving the purpose of a public theater for the time. It is immaterial whether payment be required or not. So that it would seem that the decision given by the bishops was a declaration of the law according to its natural and obvious sense. Of course the sense of a positive law like the one with which we are concerned may be limited or extended by custom. This law is limited by custom in England to the extent that plays given by children do not come under it. In some dioceses it is said that custom goes further and excludes from the meaning of the law plays given by amateurs in schools and other such places. Whether in any particular diocese there exists such a custom against the law, and whether it is legitimate or not, are questions of fact to be settled by the evidence.