The Power of the Supreme Pontiff

606. 1. The Roman pontiff cannot dispense in diriment impediments of absolute divine law; but he can dispense in impediments of conditioned divine law, whose existence depends on an act of the human will (vow, ratified matrimony).

2. The Roman pontiff can dispense in all impediments which certainly are of ecclesiastical law; nevertheless he does not in reality dispense in all.

a. There are three impediments in which he never dispenses: affinity in the first degree of the direct line (cf. however n. 575); episcopal order for entering matrimony; public spouse-killing.

b. There are seven impediments in which he dispenses most rarely, especially if it is a matter of entering matrimony: spouse-killing with adultery, abduction, age, solemn vow, sacred order, disparity of cult in regions of the faithful.

c. There are three impediments in which he dispenses rarely: consanguinity in the collateral line touching the first degree, spiritual relationship between the one lifting and the one lifted.

607. He does not grant dispensations himself by himself, but uses for this purpose his congregations and tribunals, which are:

a. The Congregation of the Holy Office. This dispenses in the impediments of disparity of cult and mixed religion and judges in all things which directly or indirectly turn upon these and the Pauline privilege.¹

b. The Congregation de Sacramentis. This dispenses for the external forum in all remaining impediments and grants sanation in the root for the whole world, except the Orientals.²

c. The Congregation for the Eastern Church. This dispenses Orientals in all impediments, even if only one party is of the Eastern rite, the right of the Holy Office nevertheless being saved.³

d. The Sacred Penitentiary. This dispenses in all occult impediments for the internal forum only, both sacramental and extrasacramental.⁴

¹ Cn. 247, 3.

² Cn. 249, 2.

³ Cn. 257.

⁴ Cn. 258.

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.

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

"Most Illustrious and Most Reverend Lord, - As the flood of evils increases, the abundance of petitions for obtaining matrimonial dispensations from an impediment of the first degree touching the second degree of consanguinity has struck the mind of Our Most Holy Sovereign Lord Pope Leo XIII. For he has observed that, by indulging concessions of this kind, unbridled license, which increases from day to day, is in no way restrained, because the continual opportunity and convenience of satisfying it with impunity entice those intending marriage with the hope that, now under the guise of conjugal life, they will conceal the unhappy effects and the guilt which have already preceded.

"But lest the indulgence of His Holiness provide an occasion for undermining the salutary discipline which is commanded by the sanctity of the Sacrament and contributes so greatly to integrity of morals, the good of society, and the increase of more vigorous bodies, he charges the consciences of the bishops to watch diligently lest petitioners approach the Holy See unless true canonical causes commend them in law, and to explain, in letters written in their own hand, the reasons in each case and also the circumstances on account of which they think the favor should be granted. In this way the Supreme Pontiff will more safely assent to petitions whenever he recognizes a necessity that is more constraining in proportion as the means of providing for it in another way are fewer.

"I hold it certain that Your Excellency will labor with all your strength so that the wishes of His Holiness may attain their greatly desired end. Meanwhile I profess to you the sentiments of my respect and pray for all things from the Lord.

"Given at Rome, from our residence, on 19 June 1895."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. On the Power of Dispensing Competent to Bishops.

919. The power of dispensing. - Since to the Supreme Pontiff exclusively it belongs to establish impediments for matrimony, whether impedient or diriment, and since impediments are laws prohibiting or even invalidating, of the universal Church, the Pontiff himself alone by proper and native right can dispense in them; others only if they have received the power from him, whether by disposition of common law or by special indult.

But the power is granted not only to Ordinaries, but in special circumstances also to pastors and confessors.

920. The power of the Supreme Pontiff. - The Supreme Pontiff:

1° In impediments of natural and divine law cannot dispense by his proper power, because it is the law of a superior; nor by ministerial power granted by God and to be exercised in the name of God in impediments of absolute law, but only in those which are of conditional law and whose existence depends upon an act of the human will and an obligation freely undertaken: nor always, but insofar as it has been granted by God, namely in a vow and in the bond of ratified matrimony, and also in the bond of consummated matrimony in the case in which it is granted by force of the Pauline privilege, as was declared above.

Nevertheless this is not a dispensation properly so called; but the Supreme Pontiff in the name of God remits or dissolves the obligation of the vow, and dissolves or declares dissoluble the bond of matrimony, and thus changes the matter of the law; and once this is posited, the natural law is no longer applicable in the case, and by that very fact the matrimonial impediment ceases.

2° In impediments of exclusively ecclesiastical law, whatever they are, he can dispense by proper power, as in his own law.

There are, however, impediments in which he never or almost never, or only rarely, dispenses, as was said n. 857, D.

3° In doubtful impediments of natural or divine law, he never dispenses, because he cannot expose the dispensation and the matrimony to the danger of nullity.

Let it be noted that the Supreme Pontiff does not regularly exercise his power by himself, but through the organ of the Sacred Congregations and Roman tribunals.

a. The Holy Office dispenses in impediments which have a special connection with the faith, namely in the impediments of disparity of cult and mixed religion, and judges concerning all things which directly or indirectly concern these and the Pauline privilege.

b. The S. Congregation concerning Religious dispenses religious from the vow of chastity.

c. The S. Congregation concerning the Sacraments grants all other dispensations for the external forum, provided it is not a matter concerning Orientals.

d. The S. Congregation for the Oriental Church is competent concerning all impediments whenever at least one party is of an oriental rite; excepting those things which pertain to the Holy Office.

e. The S. Penitentiary dispenses in all occult impediments for the internal forum only, both sacramental and extra-sacramental, and is also competent for Orientals (July 26, 1930).

Occult impediments are here taken in a broader sense than in the definition given in can. 1037 (n. 857, E), so that under this name there also come those which are known only to a few, according to the character of the place, and to discreet persons, without danger of divulgation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• C. Card. De Lai, Bishop of Sabina, Secretary.

• V. Sardi, Archbishop of Caesarea, Assessor.

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

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

¹ Cf. Addenda, p. 1091, n. 20.

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

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

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