The Power of Local Ordinaries

608. To local ordinaries in the new Code a very ample power is granted.

By ordinary power he can dispense:

1. In the impedient impediment of vow arising from non-reserved vows, and indeed his subjects and travelers.

Non-reserved vows are: the vow of virginity, the vow of not marrying, of receiving sacred orders, of embracing the religious state in a congregation. Even the vows of perfect chastity and of entering a religion of solemn vows are not reserved if they were emitted before the eighteenth year or not absolutely, Cn. 2309.

608. By ordinary power he can dispense:

2. In danger of death, for providing for conscience, and, if the case bears it, for the legitimation of offspring, he can dispense a. over the form to be observed in the celebration of matrimony; b. in each and every impediment of ecclesiastical law, whether public or occult, even multiple, with two exceptions; c. his proper subjects wherever they are staying and all actually dwelling in his own territory; d. scandal being removed and, if dispensation is granted in disparity of cult or mixed religion, the customary cautions having been furnished,¹ without the requiring or furnishing of which the dispensation would be invalid.

a. Danger of death, whether it comes from disease or from an external cause of nature or of man.

b. The faculty has force even if the person who is affected by the impediment is not ill.²

c. Provision is made for conscience by this, that sin or a proximate occasion of sin or a great temptation is removed, from whatever source these are derived, whether from lust, or from avarice, or from hatred, or from another cause.

d. Provision is made for offspring by this, that afterward it is more easily legitimated, without its being necessary to obtain for legitimation a new favor of the Holy See, whether the offspring is natural or incestuous (but not adulterine or sacrilegious).³

e. Two impediments are to be excepted, those arising from the sacred order of priesthood and from affinity in the direct line (when the matrimony has been consummated).

f. Scandal must be removed if the impediment is public; moreover, it is removed by this, that the dispensation is granted before witnesses, to whom the reasons for the same are explained.

g. If the local ordinary cannot be approached, the parish priest, the priest assisting at the matrimony, and the confessor possess the same faculty, but the latter only for the internal forum.⁴

h. This faculty can be used both for the external forum and for the internal forum, and since it is ordinary, it can also be delegated habitually to others, Cn. 202, 3.

3. In urgent necessity, namely, when all things have already been prepared for the nuptials and the matrimony cannot be deferred without probable danger of grave evil until dispensation is obtained from the Holy See, he can dispense in the same impediments and under the same conditions as in danger of death. This faculty has force also for the convalidation of a matrimony already contracted, if the same danger is present and there is no time for recourse to the Holy See.⁵

a. Grave evil would be infamy, scandal, notable temporal harm, etc. If the matter concerns convalidation, grave evil could be the danger of incontinence, namely if only after matrimony has been contracted an occult impediment is detected and the spouses can neither be separated without scandal or infamy nor cohabit without danger of sinning.

b. In order that dispensation of the Holy See can be obtained, a time of about fifteen days is required, since no one is held to have recourse by telegraph.

4. In impediments doubtful by a doubt of fact, whether occult or public, he can and is accustomed to dispense, provided the matter concerns impediments in which the Roman pontiff is accustomed to dispense; in a doubt of law he declares that the matrimony can be celebrated safely.⁶

¹ Cn. 1043.

² S. Office, July 1, 1891.

³ S. Office, July 8, 1903.

⁴ Cn. 1044.

⁵ Cn. 1045.

⁶ Cn. 15.

609. By delegated power he can dispense in those impediments, whether diriment or impedient, for which he has received special delegation. Formerly, from diverse offices of the Roman curia, faculties were granted to ordinaries which were called quinquennial or triennial, and which, after the very ample faculties granted by the new Code, have almost become superfluous.¹

The Holy Office grants the faculty of dispensing (either for a certain time or in a certain number of cases) in mixed religion and, in mission places, also in disparity of cult.

The Sacred Penitentiary grants the faculty of dispensing for the internal forum only, subjects (whether they themselves and the ordinary are within or outside the diocese) in the occult impediment of crime with neither party perpetrating, if the matter concerns matrimony already contracted. This faculty can be delegated habitually, but only for the sacramental forum.

¹ Therefore by decree of the Consistorial Congregation, April 25, 1918, in all dioceses subject to the common law all faculties of the external forum which are customarily called triennial, quinquennial, and decennial were abrogated, so that it is no longer licit to use them.

Preliminary note. Besides the Roman Pontiff, no one can abrogate impediments of ecclesiastical law, whether impeding or diriment, or derogate from them; likewise no one can dispense in the same impediments, unless this power has been granted by common law or by a special indult from the Apostolic See (canon 1040). Moreover:

I. By force of common law, local Ordinaries can dispense as follows:

1. The Ordinary of the place can dispense in impediments which are doubtful by doubt of fact, if there is question of impediments in which the Roman Pontiff is accustomed to dispense (canon 15). He can use this faculty with regard to subjects by reason of domicile or quasi-domicile wherever they are staying, and likewise with regard to vagi actually staying in his territory (canons 201 and 94).

2. When danger of death urges, local Ordinaries can dispense, for providing for conscience and, if the case warrants, for the legitimation of offspring: 1° concerning the form to be observed in the celebration of marriage; 2° concerning all impediments of ecclesiastical law, except the impediments of sacred presbyterate and of affinity in the direct line when the marriage has been consummated. They can dispense their own subjects dwelling anywhere and all actually staying in their own territory. Nevertheless it is required that scandal be removed, and, if the dispensation is granted concerning disparity of cult or mixed religion, that the customary cautions be furnished before the dispensation (canon 1043). It is said:

a) When danger of death urges. The article of death, or a most grave danger of it, is not required; but a grave danger suffices, i.e., such as is required for administering Viaticum. Nor does it matter whether the danger arises from disease or threatens from another cause, for example from shipwreck or from a dangerous operation to be undergone. Finally, it suffices that the danger threaten one or the other contracting party, whether the one who is bound by the impediment or the other.¹ It is no longer required, as formerly, that approaching the Holy See be impossible, since that limitation is no longer added.

b) They can dispense, and indeed both for contracting and for convalidating marriage; but they cannot, by force of common law, sanate a marriage in the root (canon 1141).

c) For providing for conscience and, if the case warrants, for the legitimation of offspring. Therefore it is required that provision be able to be made either for conscience or for the legitimation of offspring, or for both. Either cause taken separately suffices, as is already clear from the words of the canon: "and, if the case warrants, for the legitimation of offspring." I said:

Alpha) Either provision can be made for conscience, namely of both parties or of one or the other party. Moreover, this reason will occur for the most part if the parties about to marry are joined in a merely civil marriage or at least are living in concubinage. It is likewise present if, granted that they neither live in concubinage nor are joined merely civilly, nevertheless such bad relations exist between them that separation has become impossible or difficult. Nor, however, should it be deduced from this that in such a case only sins of the flesh are to be attended to; for the reason of providing for conscience can also arise from another source, for example if it is hoped that the dying person, once marriage has been contracted, will lay aside hatred against the other party or against the other party's blood-relatives, etc.² Indeed it is rightly said that the case is present as often as an obligation of marrying has been contracted in itself, for example by contracting betrothals or by seducing the other party under promise of marriage, even if accidentally the obligation should be absent. The Sacred Congregation of the Sacraments³ declared that the faculty which it had granted on May 14, 1909 was valid not only concerning concubinarii, but also if another cause is present for providing for conscience.

Beta) Or provision can be made for the legitimation of offspring. For legitimation, whether in the ecclesiastical forum or, a few add, in the civil forum alone. Of offspring, i.e., either already born or only conceived. Provision can be made; now from the marriage to be contracted, offspring already conceived and not yet born is born legitimate (canon 1116); by dispensation from the impediment, provision is made for offspring already born, except adulterine or sacrilegious offspring (canon 1031). Yet there are those who in the case do not exclude even adulterine or sacrilegious offspring from legitimation.

d) Concerning the form and concerning all impediments of ecclesiastical law, both diriment and merely impedient, both public and occult, and also multiple, except the impediments of sacred presbyterate and of affinity in the direct line when the marriage has been consummated. Likewise they cannot dispense in impediments concerning which it is doubted whether they are of divine law or not, i.e., in consanguinity in the direct line beyond the first degree, and in consanguinity in the first degree of the collateral line (p. 645). In addition:

Alpha) The power conferred regards each forum, or the dispensation granted is valid for each forum (canon 203, § 3).

Beta) The power also extends itself to vows, for example of not marrying, of virginity, of perfect chastity, etc., although these too are impediments of divine law, yet founded on a human act. The reason is that the Church herself has power over vows, and is judged to have conferred it in these circumstances. A solemn vow, as diriment, is of merely ecclesiastical law.⁴

Gamma) Finally, the power also extends itself to betrothals, because in these circumstances the Church is not undeservedly presumed to have provided for the dying person insofar as she can prudently provide for him; once this is posited, it is reasonably affirmed that the power which the Church has over betrothals has also been conferred. Moreover, betrothals in the posited hypothesis commonly do not bind, because for the most part the other party can be presumed to yield his or her right.

e) Their own subjects dwelling anywhere, i.e., subjects by reason either of domicile or of quasi-domicile.

f) And all actually staying in their own territory, whether vagi or peregrini.

If the parties about to marry are of different dioceses, and there is question of an impediment common to each, such as consanguinity, it suffices that one or the other party be subject to the one dispensing by reason of domicile or quasi-domicile, or be staying in the territory of the one dispensing (St. Alphonsus VI, 1142).⁵

g) That scandal be removed. These words involve only a circumstance of granting the dispensation, and therefore are not judged to be required for validity.

h) That the customary cautions be furnished before the dispensation, if the dispensation is granted concerning disparity of cult or mixed religion. But the cautions are required for the validity of the dispensation (p. 606).

What if the non-Catholic party refuses to furnish the cautions?

Response. Dispensation from the impediment seems excluded, when, besides the tenor of canon 1043, those things which we noted on p. 605 are considered; but recourse to epikeia is not excluded. Once this is admitted, if the Catholic party promises that he or she will provide according to his or her powers for the whole offspring to be educated in a Catholic manner, it is permitted, the cautions of the non-Catholic party being passed over, to proceed to marriage. Thus, saving a better judgment.

¹ Holy Office, July 1, 1891 (Collectanea de Propaganda Fide, n. 1758).

² Cf. Sacred Congregation of the Discipline of the Sacraments, May 14, 1909 (A.A.S. 1909, p. 468^†) and August 16, 1909 (A.A.S. 1909, p. 656).

³ August 16, 1909 (A.A.S. 1909, p. 656).

⁴ We note these things more by reason of the pastor, the priest assisting according to the norm of canon 1098, n. 2, and the confessor, concerning whom there will soon be discussion, than by reason of the local Ordinary, who even in ordinary circumstances can dispense in most vows.

⁵ Sacred Congregation of Propaganda Fide, September 9, 1861 (Collectanea, n. 1222).

3. As often as an impediment is detected when all things are already prepared for the nuptials, local Ordinaries can dispense, the things that must be posited being posited, concerning all impediments of which in canon 1043, the same persons and under the same clauses of which in the cited canon (canon 1045, § 1). It is said:

a) As often as an impediment is detected when all things are already prepared for the nuptials. Ecclesiastical nuptials are understood, to be celebrated according to the norm of ecclesiastical law, with publications, examination of the betrothed, etc., having first been made; not civil nuptials or nuptials to be entered before a non-Catholic minister. Moreover, it is not required that the impediment had previously been altogether unknown; it suffices that then for the first time it has been brought to the knowledge of the pastor or Ordinary. Nor is the power of dispensing absent in the case in which the parties about to marry in bad faith concealed the impediment, even in order to obtain a dispensation more easily at the last moment. For the end of the law is not only the good of the parties about to marry, but also the avoidance of grave public evil.

b) They can dispense, and indeed both for contracting and, as canon 1045, § 2 establishes, for convalidating marriage.

c) The things that must be posited being posited; namely, it is required that the marriage cannot be deferred without probable danger of grave evil until a dispensation is obtained from the Holy See. It is said:

Alpha) Of grave evil; but an evil of any kind is understood: infamy, scandal of a merely civil marriage, impossibility of obtaining separation if there is question of concubinarii, etc.

Beta) Until a dispensation is obtained from the Holy See. Therefore recall that there is no obligation of recurring by telegraph or telephone,¹ or of using an automobile or airplane; but that a suitable time can be held to be about fifteen days for Italy, twenty to thirty for other regions of Europe, and forty to fifty days for overseas regions.²

d) Concerning all impediments of which in canon 1043 (p. 657). It is disputed whether they can dispense also concerning the form. Some deny this, both because clandestinity is not numbered among the impediments by the Code, and because the preceding canons (1043 and 1044) distinguish the form from impediments. Others affirm it; first because clandestinity was formerly counted among impediments; then because canon 1045 seems to be nothing other than an application of canon 81, by force of which an Ordinary can dispense from all ecclesiastical laws where recourse to the Holy See is difficult and at the same time there is danger of grave harm in delay, provided there is question of a dispensation which the Holy See is accustomed to grant. This opinion is sufficiently probable, and therefore the Church at least supplies.

e) The same persons of whom in canon 1043, i.e., both their own subjects dwelling anywhere and all actually staying in their own territory. With regard to the latter, there is indeed dispute concerning peregrini; but it is affirmed sufficiently probably, because the power seems to regard all whose marriage the Ordinary validly assists, all the more because, in the posited hypothesis, the nuptials are imminent. But he validly assists at the marriage of peregrini.

f) Under the same clauses of which in canon 1043, i.e., it is required that scandal be removed and that cautions be furnished if the dispensation is granted concerning disparity of cult or mixed religion (p. 658).

4. In ordinary circumstances, the Ordinary of the place by force of common law:

a) Can dispense in the impediment of a non-reserved vow, provided the dispensation does not injure a right acquired by others (canon 1313). Now the non-reserved vows impeding marriage are: the vow of virginity, of not marrying, of receiving sacred orders, and of embracing the religious state (canon 1058, § 1); likewise the private vow of perfect chastity and the vow of entering a religion of solemn vows which were not emitted both absolutely and after the completed eighteenth year of age (canon 1309). But the local Ordinary can use this faculty with regard to subjects dwelling anywhere, and with regard to peregrini and vagi actually staying in his territory (canon 1313, n. 1, compared with 94, § 2 and 201, § 3).

b) He can dispense by a certain epikeia, but only insofar as it is necessary, in private reserved vows, "if there is not easy access to the Pope, and in delay there is danger of grave harm; either spiritual, as of violation of the vow, scandal, quarrels, or another sin; or danger of temporal harm, one's own or another's, namely grave infamy of the woman, and similar things" (St. Alphonsus III, 258; cf. canon 81). We said insofar as it is necessary; hence, "if one bound by a vow of chastity is dispensed so that he may marry a certain woman in order to repair her honor, he cannot marry another" (St. Alphonsus, loc. cit.). But the private vows reserved to the Apostolic See are only the vow of perfect and perpetual chastity, and the vow of entering a religion of solemn vows, which were emitted absolutely and after the completed eighteenth year of age (canon 1309). But the power extends itself to the same persons whom we designated under a).

¹ Pontifical Commission, March 1, 1921 (A.A.S. 1921, p. 178).

² Secretariat of State, December 16, 1891; Holy Office, August 14, 1892; Pontifical Commission, November 12, 1922 (A.A.S. 1922, p. 662).

II. What local Ordinaries can do by force of special indults must be drawn from the tenor of the indults themselves, whether general or particular. General indults are granted for the internal forum by the schedule of the Sacred Penitentiary, which generally are for five years; for the external forum, by the Holy Office for mixed religion, disparity of cult, and sanation in the root; for other impediments, by the Sacred Consistorial Congregation, or through the Sacred Congregation of Propaganda Fide for those subject to it.

Question. Whether the Ordinary of the place can delegate faculties to another, whether in whole or in part, whether habitually or for an act.

Response 1. Certainly he can delegate faculties granted by special indults, whether general or particular, unless the industry of the person has been chosen or subdelegation prohibited (canon 199, § 2).

Response 2. There is dispute with regard to faculties of common law. Some deny it, because the aforesaid faculties, as not emanating from the nature of the office, are not formally annexed to the office, and therefore are not ordinary but delegated by law. But it seems that it must be affirmed, because, with canon 197, § 1 considered, it suffices that the faculty be annexed to the office by the law itself, whether it is said to emanate or is said not to emanate from the nature of the office. But the faculties concerning which there is question are annexed to the office by the law itself. At least the Church supplies.

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

"It is not necessary that, when those contracting Marriage dwell in different places, they be dispensed by both Ordinaries, namely that of the woman and that of the man, but by only one or the other, just as the Sacred Penitentiary declared. We deem it fitting that a response of this kind concerning the matter, which we add here, be made known as occasion requires. - Response of the Sacred Penitentiary: Any Ordinary, acting with a faculty which is not ordinary but is delegated by the Holy See absolutely, simply, and without any condition, to dispense his own diocesans, can (express mention of the delegation being made in each act) dispense from some canonical impediment even in a case in which one person bound by the impediment belongs to his diocese, while the other belongs to another; because the faculty proceeds from the Pope, and, when the impediment has been removed on the part of the person with whom he is able to dispense, the other party also becomes free, since the bond no longer exists between the two parties." And on 13 March 1886 it declared to the Bishop of Cambrai: "A bishop can execute in the external forum a matrimonial dispensation committed by the Holy See, even if one of those to whom the dispensation was granted, while it was being issued, departed from his diocese and established a domicile elsewhere, provided that the other remained in it." Sacred Congregation for the Propagation of the Faith, 19 September 1861.

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

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

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

¹ Code, c. 1028.

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

² Code, c. 15.

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

³ Code, c. 1043.

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

⁴ Code, c. 1015, § 2.

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

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

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

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

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

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

¹ Code, c. 1045.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

² Code, c. 1049.

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

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

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

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

¹ Code, c. 1051.

857. 2. The faculty of dispensing belonging to local Ordinaries. For the sake of clarity, we distinguish the faculty of dispensing which belongs to bishops or local Ordinaries: 1. in urgent danger of death, 2. in other cases of urgent necessity, 3. in ordinary cases.

1. "When danger of death is urgent, local Ordinaries,²⁴³ in order to provide for conscience and, if the case calls for it, for the legitimation of offspring, can dispense their own subjects wherever they are staying and all persons actually residing in their own territory, both from the form to be observed in the celebration of matrimony and from each and every impediment of ecclesiastical law, whether public or occult, even if multiple, except impediments arising from the sacred order of the priesthood and from affinity in the direct line when the matrimony has been consummated, scandal having been removed,²⁴⁴ and, if the dispensation is granted from disparity of worship or mixed religion, the customary guarantees having been given."²⁴⁵ Thus the Code of Canon Law, can. 1043.

Therefore, in order that a local Ordinary may use this faculty, it is required: a) that scandal be removed; b) that the customary guarantees be given if it is a question of a dispensation from disparity of worship or mixed religion; c) that there be no impediment of natural or divine law, nor an impediment of the priesthood, nor affinity in the direct line arising from a consummated matrimony,²⁴⁶ nor an impediment from which not even the Supreme Pontiff is accustomed to dispense, for example, consanguinity in the first degree of the collateral line.²⁴⁷ If these requirements are present, the Ordinary's faculty of dispensing is truly unlimited. Accordingly, the local Ordinary can then dispense, for example, from the presence of the witnesses or the parish priest at the celebration of matrimony, and from all impedient and diriment impediments, whether public or occult, simple or multiple; he can dispense not only his own subjects, wherever they are staying, but also all travelers and vagrants residing in his territory. He cannot, however, sanate a matrimony in its root.

²⁴³ By the name of Ordinary are understood not only diocesan bishops but also all those enumerated above, n. 759.

²⁴⁴ When a dispensation is granted to those who are marked with the sacred order of the subdiaconate or diaconate, or who have emitted solemn religious profession, notice of the dispensation imparted must be sent to the Holy Office, and meanwhile care must be taken, so far as possible, that any scandal which exists be removed, both by inducing those persons to betake themselves to places where their ecclesiastical or religious condition is unknown and, if that cannot be obtained, by imposing at least special salutary penances for expiating past excesses and for present good example. Thus the Holy Office, February 20, 1888.

²⁴⁵ Unless these guarantees, indicated above, n. 788, are given, the dispensation is always invalid. Holy Office, June 21, 1912 (Acta Apost. Sed. IV, 442 sq.).

²⁴⁶ Therefore, if affinity arose from a matrimony only ratified, it is not excluded from dispensation.

²⁴⁷ Code of Canon Law, can. 1076, § 3.

921. The power of the Ordinary of the place. - The Ordinary of the place cannot dispense in matrimonial impediments, except insofar as this has been granted to him by common law or special indult.

A. By common law: 1° In ordinary circumstances, the Ordinary of the place can dispense a) in doubts of fact concerning the existence of an impediment, for those impediments in which the Supreme Pontiff is accustomed to dispense (can. 15); b) in a non-reserved vow, provided the acquired right of a third party is not harmed (can. 1313).

2° When danger of death urges, "Ordinaries of places, in order to provide for conscience and, if the case warrants, for the legitimation of offspring, can dispense their own subjects wherever they are staying and all actually dwelling in their own territory, both over the form to be observed in the celebration of matrimony and over all and singular impediments of ecclesiastical law, whether public or occult, even multiple, except impediments proceeding from the sacred order of the presbyterate and from affinity in the direct line, matrimony having been consummated, scandal being removed, and, if the dispensation is granted over disparity of cult or mixed religion, the usual cautions having been furnished." Thus can. 1043.

It is said: a) when danger of death urges, i.e., not only at the moment of death, but in every proximate or grave danger from whatever cause it may come; and indeed even if the impediment does not affect the dying person but the party in good health;

b) in order to provide for conscience, i.e., to remove sin or an occasion of sin, e.g., to take away concubinage or repair damage or extinguish hatred; and if the case warrants, for the legitimation of offspring, even if conscience cannot be provided for on account of the impenitence of the dying person: the offspring to be legitimated is natural or incestuous, already begotten or still to be begotten, but not, as it seems, adulterous or sacrilegious, on account of can. 1051;

c) both over the form... and over all impediments of ecclesiastical law, even impedient ones, with only two excepted; but not over impediments of natural and divine law, even doubtful ones: nevertheless a vow is included, which is subject to the ministerial ecclesiastical power, and as an impediment can be taken away by the Church in the way which was declared, n. 892;

d) scandal being removed, in the case of a public impediment; and it is removed by the dispensation granted before witnesses;

e) and the usual cautions having been furnished, if the dispensation is granted over disparity of cult or mixed religion; which cautions are required for validity, as was said n. 867.

They can dispense their own subjects everywhere, and all others while they are actually dwelling in their own territory, and they can subdelegate their power to delegate, and use it in order to contract matrimony or to revalidate a contracted one; nevertheless the faculty of sanating in the root is not included in the power.

3° In urgent necessity: a) Ordinaries of places can grant a dispensation over all the same impediments as in danger of death and under the same clauses, namely, whenever an impediment is detected when everything has already been prepared for the nuptials, and the matrimony cannot be deferred without probable danger of grave evil until a dispensation is obtained from the Holy See. Thus from can. 1045, § 1.

It is said: a) over all the same impediments, but not over the form to be observed in the celebration of matrimony, since in the present canon it is not indicated, nor does an equally grave reason urge as for impediments; nevertheless some judge that impediment can be understood in a broader sense and therefore comprehend a defect of form;

b) and under the same clauses, namely, scandal being removed and cautions having been furnished;

c) whenever an impediment is detected, for which it is not required that it had previously been altogether unknown, but it suffices that, though previously known, only then it is brought to the knowledge of the pastor or Ordinary (com. int., March 1, 1921);

d) when everything (required by the precept of the Church) has been prepared for the nuptials and the matrimony cannot be deferred without probable danger of grave evil, namely, so that the nuptials morally cannot be deferred, and if they were deferred there would likely be danger of grave evil, one's own or another's, spiritual or temporal. 1

They can dispense by themselves or through another their own subjects, and also probably travelers, but only if there is not time to have recourse to the Holy See, in order to contract matrimony; indeed also to revalidate a contract, for can. 1045, § 2 adds: "this faculty also has force for the convalidation of a matrimony already contracted, if there is the same danger in delay and time does not suffice to have recourse to the Holy See."

b) Ordinaries of places can, if the case is not urgent from the fact that everything has been prepared for the nuptials, dispense by force and within the limits of canon 81, establishing the general power of dispensing of Ordinaries (cf. Response of the Commission for the Interpretation of the Code, July 27, 1942): "Ordinaries below the Roman Pontiff cannot dispense from the general laws of the Church, not even in a particular case, unless this power has been explicitly or implicitly granted to them, or unless recourse to the Holy See is difficult and at the same time in delay there is danger of grave harm and it is a matter of a dispensation which is accustomed to be granted by the Apostolic See."

B. By special indult, whether general, by which a habitual faculty of dispensing is granted for a time, or particular, by which it is granted in a particular case, Ordinaries can dispense according to the tenor of the indult; which in various regions or in various cases can be diverse.

General indults were revoked after the code, by decree of the S. Consistorial Congregation, April 25, 1918, excepting the faculties of the S. Penitentiary; but afterward, the bishops petitioning, they were granted anew under new formulas, which must be sought from the one S. Consistorial Congregation (April 20, 1923) by all who are not subject to the S. Congregation of Propaganda Fide or for the Oriental Church.

1. The distinguished Cappello, o. c. n. 232-233, judges that the words: when everything has already been prepared for the nuptials, do not indicate a condition without which not, so that even in other circumstances, on account of a grave and urgent cause, one can dispense for contracting matrimony. - But a) he does not prove this sufficiently; indeed b) it seems to be said against the natural sense of the words; besides c) from the Response of the Commission for the Interpretation of the Code, July 27, 1942, there is admitted, as regards matrimonial dispensations, the use both of canon 1045 and of canon 81, which in general determines the power of dispensing of Ordinaries, and it is explicitly asserted that there is place for the application of canon 81 if not yet everything has been prepared for the nuptials. From this it seems that one must conclude that the opinion proposed by Cappello is at least implicitly reprobated.