Who can dispense from diriment impediments

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

¹ Sess. xxiv, c. 5, de ref. Matr.

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § I. On the Power of the Supreme Pontiff · Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § II. On the Power of Local Ordinaries · Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § III, N. 2 · Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § IV. On the Power of the Confessor · Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § IV, Scholion. Things to Be Noted Regarding the Power of Dispensing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The impediments of minor degree are:

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

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

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

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

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

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 8 passages (filed under the subtopics)

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § I. On the Power of the Supreme Pontiff

n. 803.

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:

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).
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.
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
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.
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).
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.

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § II. On the Power of Local Ordinaries

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:

n. 804.

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

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).
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).

n. 805.

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).

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).

n. 806.

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.

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § III, N. 2

n. 807.

I. When danger of death urges, both the pastor and the priest who assists at marriage according to the norm of canon 1098, n. 2, can dispense, the things that must be posited being posited, concerning the form and all impediments of which in canon 1043. They can dispense, I say: the pastor his own subjects dwelling anywhere and all actually staying in his own territory; the assisting priest those whose marriage he assists; nevertheless, by both, the things to be observed being observed (canon 1044). It is said:

They can dispense, and indeed both for contracting and for convalidating marriage.
The things that must be posited being posited; namely, it is required that not even the local Ordinary can be approached. If the Vicar General can be approached, this must be done, because he comes under the name of the local Ordinary. If another delegated by the Ordinary, who can dispense, is present or can be approached, they are not bound to have recourse to him, because he is not the Ordinary of the place.
Nevertheless, by both, the things to be observed being observed, i.e., they can dispense with scandal removed and cautions furnished, if the dispensation is granted concerning disparity of cult or mixed religion (p. 658).

Note. The pastor or assisting priest dispenses for both the external and internal forum.

If the impediment is public, the dispensation is to be granted publicly, i.e., at least before witnesses, unless it is granted concerning the form; and then the pastor or assisting priest is immediately to inform the local Ordinary about the dispensation granted, and it is to be noted in the marriage book (canon 1046).

If the impediment is occult, the pastor or assisting priest dispenses in the non-sacramental internal forum; and the dispensation granted is to be noted in the secret book of marriages, preserved in the episcopal curia, nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public (canon 1047).

II. As often as an impediment is detected when all things are already prepared for the nuptials, the pastor, and likewise the priest assisting at marriage according to the norm of canon 1098, n. 2, can dispense, the things that must be posited being posited, concerning all impediments of which in canon 1043, but only for occult cases. They can dispense, I say, the same persons of whom in canon 1044, nevertheless by both, the things to be observed being observed (canon 1045, § 3, compared with 1045, §§ 1 and 2).

They can dispense both for contracting and for convalidating marriage (canon 1045, § 3, compared with 1045, § 2).
The things that must be posited being posited; namely, it is required that the marriage cannot be deferred without probable danger of grave evil, and that the local Ordinary either cannot be approached, or cannot be approached without danger of violation of secrecy.
Concerning all impediments of which in canon 1043; likewise, sufficiently probably, concerning the form (p. 657).
But only for occult cases. By occult cases are understood cases in which the impediment, of whatever nature it may be, is at least occult in fact.²
Nevertheless, by both, the things to be observed being observed, i.e., they can dispense with scandal removed and cautions furnished, if the dispensation is granted concerning disparity of cult or mixed religion (p. 658).

Note. The pastor or assisting priest dispenses for both the external and internal forum. But since there is question of occult cases, the dispensation is to be granted in the non-sacramental internal forum; and the dispensation granted is to be noted in the secret book of marriages, preserved in the episcopal curia, nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public (canon 1047).

Question 1. Whether a priest delegated by the pastor to assist at marriage has the same faculty of dispensing as the pastor himself.

Response. Some affirm, because the delegate as it were puts on the person of the one delegating, and therefore in these circumstances the same power is presumed to have been granted to him. Others better deny it, because canons 1044 and 1045 are silent concerning him, indeed implicitly exclude him by determining to whom the faculty of dispensing is granted. In practice, when delegating someone to assist, the pastor should grant him the faculty of dispensing as a precaution.

Question 2. Whether the pastor can delegate his faculty to another.

Response. Some deny it, because the aforesaid faculty does not emanate from the office itself, and therefore is not formally annexed to it, but is delegated by law. But it seems that it must be affirmed, because, with canon 197, § 1 considered, for ordinary power it suffices that the faculty be annexed to the office by the law itself, whether it emanates from it or does not emanate from it. At least the Church supplies.

Question 3. Whether the priest assisting according to the norm of canon 1098, n. 2 can delegate his faculty to another.

Response. It must be denied, because as such he lacks an office, and therefore has only delegated power; and because he is delegated by law, he cannot subdelegate. Moreover, a faculty of delegating of this sort would not come into use for him, because another priest assisting in this way also receives the faculty from law; these things also hold concerning the confessor.

¹ There is discussion of the cases in which marriage can be contracted before witnesses alone (n. 738 sq.).

² Pontifical Commission, December 28, 1927, ad III (A.A.S. 1928, p. 61).

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § IV. On the Power of the Confessor

n. 808.

The confessor sufficiently probably enjoys the same power of dispensing as the pastor and the priest assisting at marriage according to the norm of canon 1098, n. 2. The reason is taken from the fact that canon 1044 declares: "The same faculty of dispensing is possessed both by the pastor and by the priest who assists at marriage according to the norm of canon 1098, n. 2, and by the confessor." And canon 1045, § 3: "In the same circumstances of things, all of whom in canon 1044 enjoy the same faculty." According to this opinion, therefore, this one distinction is held between the confessor and the pastor and assisting priest: that the confessor can dispense in the internal forum alone, and that sacramental (canon 1044). This opinion, because of the reason adduced, is at least probable with probability of law, and therefore, the Church supplying, safe in practice. Nevertheless observe:

A dispensation granted in the sacramental internal forum is not valid for the external forum, even if perhaps the impediment becomes public. Hence:
If the impediment is public in fact, and likewise if it is public by nature but occult in fact, yet disclosure is feared, the confessor should see to it that the penitent seeks a dispensation for the external forum, and therefore has recourse to the pastor or his delegate, unless the confessor himself can arrange the whole matter in some way, for example by asking for the manifestation of the impediment outside confession; once this has been done, he will be able to dispense him either as pastor, or, delegation having been requested, as one delegated by the pastor, or, according to the circumstances, as the priest assisting according to the norm of canon 1098, n. 2.
If the impediment is occult in fact and disclosure is not feared, the confessor should at least bring it about that the penitent permits the informing of the Ordinary and the notation of the marriage in the secret book preserved in the episcopal curia. But it is better to arrange the whole matter as was said under 2.
Finally, the confessor cannot delegate his faculty to another, because as such he lacks a canonical office and therefore ordinary power, as was said of the priest assisting according to the norm of canon 1098, n. 2.

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. III, Ch. IV, Art. I, § IV, Scholion. Things to Be Noted Regarding the Power of Dispensing

n. 809.

I. Regarding the interpretation of power.

Ordinary power of dispensing and power delegated for the whole range of affairs is to be interpreted broadly; any other power strictly (canons 50; 66, § 1; 200, § 1).
To one to whom power has been delegated are also understood to have been granted those things without which the same power could not be exercised (canon 200, § 1); 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 (canon 66, § 3). Nevertheless, when a declaratory or condemnatory sentence has been issued, one excommunicated, personally interdicted, or suspended cannot validly obtain any pontifical favor unless mention of the excommunication is made in the pontifical rescript (canons 2265, § 2; 2275, 3°; 2283).
In marriages either contracted or to be contracted, one who enjoys a general indult of dispensing concerning some certain impediment can, unless something else is expressly prescribed in the indult itself, dispense concerning it even if the same impediment is multiple (canon 1049, § 1).
One 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 (canon 1049, § 2).

II. Regarding the use of power.

Power conferred for the internal forum can also be exercised in the extra-sacramental internal forum, unless the sacramental forum is required (canon 202, § 2).
If the forum for which the power was given has not been expressed, the power is understood to have been granted for each forum, unless from the nature of the matter itself something else is clear (canon 202, § 3).
If at any time, with an impediment or public impediments concerning which someone can dispense from an indult, another impediment concurs concerning which he cannot dispense, the Apostolic See must be approached for all; if, however, the impediment or impediments concerning which he can dispense are discovered after the dispensation has been obtained from the Holy See, he will be able to use his faculties (canon 1050).
If a petition for dispensation has been sent to the Holy See, local Ordinaries are not to use their faculties, if they have any (canon 1048), unless from a grave and urgent cause; and in this case they should immediately warn the Superior about the matter (canon 204, § 2).
If an Ordinary dispenses from an Apostolic indult, he should observe all the rules which the Roman Curia is accustomed to observe.¹
Those who grant a dispensation from power delegated by the Apostolic See should make express mention in the same dispensation of the pontifical indult (canon 1051).
Unless the rescript of the Sacred Penitentiary provides otherwise, a dispensation granted in the non-sacramental internal forum concerning an occult impediment is to be noted in a book to be preserved diligently in the secret archive of the Curia of which in canon 379 (canon 1047).

III. Regarding the forum for which the dispensation is valid. A dispensation granted for the external forum is valid also for the internal forum, but not conversely (cf. canon 202, § 1). Nevertheless canon 1047, after the words just cited, "Unless the rescript of the Sacred Penitentiary provides otherwise, a dispensation granted in the non-sacramental internal forum concerning an occult impediment is to be noted in a book to be preserved diligently in the secret archive of the Curia of which in canon 379"; after these words, I say, continues thus: "nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public; but it is necessary if the dispensation had been granted only in the sacramental internal forum."

IV. Regarding cessation of power. Unless in their grant the industry of the person has been chosen, or something else has been expressly provided, habitual faculties granted by the Apostolic See to a Bishop or to others of whom in canon 198, § 1 do not vanish when the right of the Ordinary to whom they were granted has been resolved, even if he himself had begun to execute them, but pass to the Ordinaries who succeed him in governance (canon 66, § 2). The cited canon adds: Likewise those granted to a Bishop also belong to the Vicar General.

¹ Sacred Penitentiary, June 1, 1858.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 10 passages

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

n. 2810.

Diriment Impediments to Marriage

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

n. 2811.

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

n. 2812.

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

n. 2813.

The Impediment of Age

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

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

n. 2814.

The Impediment of Impotency

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

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

n. 2815.

The Impediments of Orders and Vows

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

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

n. 2816.

The Impediment of Bond

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

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

n. 2817.

The Impediment of Disparity of Cult

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

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

n. 2818.

The Impediments of Kinship

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

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

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

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

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

n. 2819.

Matrimonial Impediments Produced through Misdeeds

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

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

Bucceroni, Moral Enchiridion

Gennaro Bucceroni, S.J. — 5 passages

Bucceroni, Moral Enchiridion, On Matrimony

n. ¶202.

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

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

n. ¶203.

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

n. ¶204.

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

n. ¶205.

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

n. ¶206.

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

Bucceroni, Commentaries (1910)

Gennaro Bucceroni, S.J. — 8 passages

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

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

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

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

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

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

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

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

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

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

Gennaro Bucceroni, S.J. — 21 passages

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

n. 1035.

Dispensation from Impediments

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

On the Power of Bishops over Public Diriment Impediments

"The proposition asserting that bishops can dispense from the public diriment impediment of consanguinity for a Marriage to be contracted, whether at the point of death or in another most urgent necessity in which the contracting parties cannot await a dispensation of the Apostolic See, is false, rash, scandalous, pernicious, and seditious." Sacred Congregation of the Roman and Universal Inquisition, 19 January 1661; A. S. S., vol. 14, p. 155 ff.

"By command of Our Most Holy Lord Leo XIII, two classes of questions were very recently proposed to the Sacred Congregation of the Holy Roman and Universal Inquisition for consideration. The first concerns the faculties with which, when danger of death is urgent and there is not time to have recourse to the Holy See, it is fitting to augment the Ordinaries of places so that they may dispense from public impediments invalidating Marriage those who are joined according to the civil laws or otherwise live in concubinage, in order that those about to die, in such straits of time, may be duly joined in the sight of the Church and take counsel for their own conscience; the second concerns the execution of dispensations which are customarily imparted by the Apostolic See.

"With regard to the first, after the matter had been seriously and diligently considered and the vote of the Most Eminent Fathers, General Inquisitors together with me, had been approved and confirmed, His Holiness kindly assented to the favor by which Ordinaries of places may, either by themselves or through an ecclesiastical person acceptable to them, dispense sick persons situated in most grave danger of death, when there is not time to have recourse to the Holy See, from impediments, however public, that invalidate Marriage by ecclesiastical law, except the sacred order of priesthood and affinity in the direct line arising from licit intercourse.

"It is, however, the intention of the same His Holiness that if at any time, which God forbid, necessity requires that dispensation be given to those who are marked with the sacred order of subdiaconate or diaconate, or who have emitted solemn religious profession, and after the dispensation and the Marriage duly celebrated they recover, in extraordinary cases of this kind the Ordinaries are to inform the Supreme Congregation of the Holy Office of the dispensation imparted; and meanwhile they are to take every measure so that any scandal that may be present may be removed in the best manner possible, both by inducing the same persons to go to places where their ecclesiastical or religious condition is unknown, and, if this cannot be obtained, by enjoining upon them at least spiritual exercises and other salutary penances, and that manner of life which may seem suitable for expiating past excesses and which may be an example to the faithful for living rightly and in a Christian manner.

"But with regard to the second class of questions, the vote of the same Most Eminent Fathers having likewise been approved and confirmed, His Holiness decreed:

"1. That all matrimonial dispensations are in the future to be committed either to the Ordinary of the petitioners or to the Ordinary of the place.

"2. That under the designation of Ordinary are included bishops, administrators or Vicars Apostolic, prelates or prefects having jurisdiction with a separate territory, and their officials or Vicars General in spiritual matters, and, while the see is vacant, the Vicar Capitular or lawful administrator.

"3. That the Vicar Capitular or administrator can also execute those Apostolic dispensations which were remitted to the bishop or to his Vicar General or official and have not yet been put into execution, whether they had begun to execute them or not. And conversely, after the see has then been provided for, the bishop or his Vicar General in spiritual matters or official can execute dispensations which had been remitted to the Vicar Capitular for execution, whether the latter had begun to execute them or not.

"4. That matrimonial dispensations committed to the Ordinary of the petitioners are to be executed by that Ordinary who gave the testimonial letters or transmitted the prayers to the Apostolic See, whether he is the Ordinary of origin or of domicile, whether of both spouses or of either of them; even if, at the time when the dispensation is to be put into execution, the spouses, having abandoned domicile in his diocese, have departed to another diocese with no intention of returning, provided, however, that he notify, if he judges it expedient, the Ordinary of the place in which the Marriage is contracted.

"5. That it is lawful for the aforesaid Ordinary, if he likewise judges it expedient, to delegate another Ordinary for the execution of the dispensation, especially the one in whose diocese the spouses actually reside." Sacred Congregation of the Holy Office, 20 February 1888.

"Whether Ordinaries, in cases of extreme necessity, can subdelegate in a general manner to parish priests and universally to approved confessors the faculty of dispensing from public matrimonial impediments in danger of death, granted by the letters of the Sacred Congregation of 20 February 1888, or not?" After this doubt had been maturely considered, the Most Eminent Fathers on Wednesday, 9 January 1889, said: "Petition is to be made to His Holiness that he deign to decree and declare that the Ordinaries to whom the aforesaid faculty was given by the cited letters of 20 February 1888 can habitually subdelegate it to parish priests only, but for cases in which time to have recourse to the Ordinaries themselves is lacking and there is danger in delay." On the same weekday and date, Our Most Holy Lord Pope Leo XIII kindly deigned to assent according to the vote of the Most Eminent Fathers. Holy Office, 9 January 1889; C. 1471 ff.

"1. Whether the Sacred Congregation, by the words from impediments however public, intended to confirm the common opinion of theologians, and especially of Saint Alphonsus, which holds that bishops can in cases of urgent necessity dispense from occult impediments and can probably delegate that faculty even generally as an ordinary faculty, so that the intention of the Congregation was to signify that, a fortiori, bishops can dispense from occult impediments in the aforesaid circumstances. - 2. Whether, in most grave danger of death, assistants of a parish priest, when on account of the immense size of the parishes of that diocese they cannot have recourse to him, can in the name of the parish priest dispense from public impediments. - 3. Whether, under the designation of parish priests in the Decree of 9 January 1889, there are also included temporary Vicars who are substituted after the death of parish priests or in their absence.

"Response. To 1. By force of the Decree, affirmative for the point of death. - To 2 and 3. Let the response given on this same Wednesday to the Right Reverend Lord Abbot of the Most Holy Trinity of Cava be given, which is the following, namely: 'The following doubts having been proposed by the Right Reverend Lord Abbot praised above: I. Whether, under the designation of parish priests in the subdelegation of the faculty mentioned in the petition, there are to be understood also vice-parish priests or administrator-curates removable at will, in which parishes parish priests strictly so called and of the true name have not been created? And if negative: - II. Whether at least in dioceses in which, as also in the Abbey Nullius of the Most Holy Trinity of Cava, by privilege or by most ancient and immemorial custom, there are some parishes whose curates are appointed as Vicars of the Abbot under the designation of administrators or archpriest-curates, removable at will, the aforesaid faculty can be extended also to these.' - Response. To I. All who actually exercise the care of souls are included, with vice-parish priests and chaplains excluded. - To II. Provided for in the preceding response." Sacred Congregation of the Holy Office, 22 April 1890.

"Whether under the word parish priests, to whom Ordinaries can subdelegate the faculty of dispensing in cases of extreme necessity from public matrimonial impediments in danger of death, by virtue of the indult of the Supreme Congregation of 1 March 1889, missionaries having the care of souls, although they cannot strictly be called parish priests, can and ought to be understood. - Response. Affirmative for those missionaries who exercise parochial duties." Sacred Congregation of the Holy Office, 23 April 1890.

"Concerning the understanding of the words sick persons situated in most grave danger of death, no slight disagreement has arisen among certain persons. For there are those who assert that there is place for a dispensation only when the impediment directly affects the sick person, but not when the sick person is free and the impediment directly affects only the person in good health. Others, on the contrary, think that the faculty to dispense was granted to Ordinaries even if the sick person does not have the impediment in himself, but it directly exists only in the person in good health. Hence, when they are joined civilly or otherwise live in concubinage, for example, if an unmarried woman and a deacon, she being sick and he in good health, could the Ordinary dispense them? Or if a sick nun lived in concubinage with a deacon in good health, would there be place for dispensation, since the deacon is not situated in most grave danger of death? - Response. By force of the Decree of 20 February 1888, Ordinaries of places can dispense in each of the two cases adduced, and in each case likewise must inform the Sacred Congregation of the Holy Office of the dispensation imparted and meanwhile take care of those things prescribed in the same Decree. His Holiness approved." Sacred Congregation of the Holy Office, 1 July 1891.

"Whether by force of the Decrees of 20 February 1888 and 1 March 1889, Ordinaries, by themselves or through parish priests, can dispense from public impediments of ecclesiastical law, excepting priesthood and affinity in the direct line, all persons situated at the point of death, although they have not celebrated what they call a civil Marriage and do not live in concubinage. - Response. Negative." Holy Office, 17 September 1890. - And negative also if the sick persons situated in danger of death do not presently live in concubinage but nevertheless lived in it and begot offspring which ought to be legitimated. Holy Office, 3 March 1899.

"Whether the Decrees of 20 February 1888 and 1 March 1889 also include the faculty of dispensing from the impediment of clandestinity, such that, for example, a parish priest delegated by the bishop can, in his parish, join either those who are not his subjects but are strangers present there by chance, dispensing from the presence of their own parish priest, to whom recourse can in no way be had; or even join his own subjects, but without witnesses, likewise dispensing from their presence, when there are absolutely no persons who can fulfill the office of witnesses. - Response. Affirmative." Holy Office, 13 December 1899.

"Whether by the letters of 20 February 1888, by which the faculty is granted to Ordinaries of places to dispense sick persons situated in most grave danger of death from impediments invalidating Marriage by ecclesiastical law, the conditions and exceptions expressed in those same letters remaining firm, and by the later letters of 1 March 1889, by which it is declared that a faculty of this kind can be subdelegated to parish priests, there is understood to be granted also the faculty of declaring and pronouncing legitimate any illegitimate offspring perhaps begotten by the concubinaries who are to be dispensed by virtue of the said faculty, just as it is customary for this to be granted by the Holy See in individual particular cases of matrimonial dispensations; or whether, on the contrary, it is necessary afterward to obtain a new favor from the Holy See for the legitimation of the offspring already begotten?

"Response. Affirmative as to the first part, excepting adulterine offspring and offspring born of persons bound by sacred order or solemn religious profession, the matter having been mentioned to His Holiness. As to the second part, provided for in the first." Holy Office, 8 July 1903.

With regard to disparity of worship and mixed religion, "the cautions are to be required even at the point of death; disparity of worship, as a diriment impediment, is included in the encyclical of the Holy Office of 20 February 1888; but mixed religion, as a prohibitive impediment, is not included." Holy Office, 18 March 1891.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 26 passages

155. Dispensation of Impediments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Vol. II, Treatise on Matrimony, Ch. VI, Art. II, § III, Point I. On the Power of Dispensing · Vol. II, Treatise on Matrimony, Ch. VII, Art. III, § II. On the Revalidation of Marriage with a Dispensation in the Root

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

n. 4.

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

n. 4.

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

n. 5.

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

n. 5.

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

n. 6.

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

n. 6.

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

n. 7.

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

n. 7.

It is asked: What to the Case?

n. 7.

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

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

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 14 passages

Vol. II, Treatise on Matrimony, Ch. VI, Art. II, § III, Point I. On the Power of Dispensing

n. 861.

Principles. - I. The Pope can dispense from all impediments of ecclesiastical law: 1. validly in every case, because he is the primary Superior; 2. licitly if he does so for a just cause, as right governance requires.

n. 861.

II. A Bishop cannot ordinarily and by his own right dispense from diriment impediments. The reason is that a Bishop can do nothing against the common law of the Church except from the concession of a Council or of the Pope, or from legitimate custom. But Bishops can claim for themselves the right of dispensing from such impediments for none of these reasons, as is evident both from the practice of the Church and from various Declarations of the Sacred Congregation, and especially from the Rescript of Pius VII to the Bishops of France in the year 1809. In it the Pontiff complains that not all the Bishops of France had recourse to the Holy See for obtaining faculties to renew marriages invalidly contracted during the time of the disturbance in France ¹.

¹ Formerly, several Bishops in France, from a privilege annexed to the See, were accustomed to dispense from diriment impediments. But these privileges were suppressed together with the sees themselves in the new circumscription of dioceses made by Pius VII in the year 1802 through the Bull Qui Christi Domini, in which the following is contained: We suppress, annul, and perpetually extinguish the title, lordship, and entire present state of the archiepiscopal and episcopal Churches, together with their respective chapters, rights, privileges, and prerogatives of every kind.

Questions. - QUESTION 1. If the spouses are from different dioceses, must a dispensation be obtained from each Bishop if each enjoys the faculty of dispensing by special Indult?

Reply. It is disputed, and there is a twofold probable opinion:

The first opinion denies it. The reason is that when a Bishop removes an impediment from his own subject, he renders that subject capable of contracting with another impeded person. For one cannot become capable of contracting with another unless the other also becomes capable of contracting with the first. Moreover, by delegating the Bishop the Pope gives him his whole right; therefore the dispensation of the Bishop is valid just as if it were granted by the Pope himself. St. Ligorius, no. 1142, calls this opinion probable ².

² Since it is probable that there is no need of another dispensation, it is lawful to contract in this manner according to the general principle that the Church supplies where perhaps there is need.

The second opinion affirms it. The reason is that the Bishop of one party has no jurisdiction over the subject of another, while the faculty of dispensing is restricted to his own subjects.

- QUESTION 2. Can Bishops dispense from doubtful diriment impediments?

Reply. More probably, yes. The reason is that although dispensation from diriment impediments is reserved to the Pope, nevertheless, since reservation is odious, it must be interpreted strictly and restricted only to certain cases. But if there is question of a doubt or of probability of law, dispensation appears useless, according to what was said above concerning impediments in general, since in this case the Church is considered to supply ³.

³ The resolution of the Author, as is evident, comes to this: that in the case neither a dispensation of the Pontiff nor of a Bishop is necessarily required.

QUESTION 3. Can a Metropolitan dispense his suffragans' subjects in a case of necessity or of an Indult?

Reply. No, because a dispensation is an act of voluntary and gracious jurisdiction and is granted from the indulgence and mercy of the one dispensing; but recourse to the Metropolitan cannot be had except in matters pertaining to the contentious forum. Therefore, etc. ⁴.

⁴ If there is question of a faculty of dispensing granted by a Pontifical indult, it will be necessary to consider the form of words in which it is conceived and from this to judge whether it is restricted to subjects alone.

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

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

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

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

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

Tanquerey

Adolphe Tanquerey, S.S. — 12 passages

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

n. 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.

n. 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.

n. 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:

n. 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.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Chapter IV: On Dispensation From Diriment Impediments Of Matrimony · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Article I: On The Power Of Dispensing · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Art. I, § 1. What The Roman Pontiff Can Do · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Art. I, § 2. What The Bishop Can Do · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Article II: On The Causes Of Legitimate Dispensation · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Article III: On The Manner Of Obtaining Dispensation · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Article IV: On The Manner Of Executing Dispensation

(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.

n. 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.

n. 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.

n. 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.

n. 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.

n. 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.

n. 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.

(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.

n. 1051.

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

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.
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."

"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.

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

"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.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 16 passages

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

n. 750.

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

n. 751.

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

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

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

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

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

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

n. 752.

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

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

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

n. 753.

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

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

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

n. 754.

— Dispensation or relaxation of impediments.

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

n. 755.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

n. 756.

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

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

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

n. 757.

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

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

n. 758.

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

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

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

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

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

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

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

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

n. 759.

— The notation of dispensations in the internal forum. "Unless the rescript of the Sacred Penitentiary carries something else, a dispensation granted in the non-sacramental internal forum over an occult impediment is to be noted in a book diligently kept in the secret archive of the curia: nor is another dispensation for the external forum necessary, even if afterward the occult impediment has become public; but it is necessary if the dispensation had been granted only in the sacramental internal forum" (c. 1047).

n. 760.

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

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

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

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

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

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

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

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

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

b) "A dispensation from the impediment of consanguinity or affinity granted in some degree is valid, although in the petition or in the concession an error concerning the degree has crept in, provided the degree really existing is inferior, or although another impediment of the same species in an equal or inferior degree had been kept silent" (c. 1052).

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

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

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

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

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

n. 761.

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

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

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

n. 762.

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

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

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

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

n. 763.

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

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

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

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

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

n. 764.

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

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

n. 764 bis.

Summary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 6 passages

Vol. III, Pt. II, Tr. X, Ch. IX, Art. IV, § 2. On the Authority to Dispense

n. 855.

855. The Supreme Pontiff possesses the faculty of dispensing from all impediments which are not certainly of natural or divine law. Hence, for example, a dispensation cannot be granted from the impediment of the bond if it is a question of a consummated matrimony of Christians, since this is indissoluble by divine law. Likewise, the Supreme Pontiff cannot dispense from impediments arising from a defect of consent, for example, from substantial error or from a defect of the use of reason. For these impediments are of natural law. But although, speaking absolutely, the Pope could dispense from all impediments of ecclesiastical law, since he is above the whole of ecclesiastical law, nevertheless he is not accustomed to dispense from certain impediments, for example, from affinity in the direct line arising from a consummated matrimony, from consanguinity in the direct line and in the first degree of the collateral line, or from the impediment of crime arising from publicly known spouse-murder.

The Supreme Pontiff is not accustomed to exercise this faculty of dispensing immediately by himself,²⁴⁰ but a) through the Sacred Congregations of Cardinals and the Tribunal of the Sacred Penitentiary, b) through local Ordinaries, and c) through simple priests or delegated confessors. The old discipline of dispensing was greatly changed by the new Code of Canon Law. Hence, with the old abolished statutes omitted, the following things are observed according to the discipline now in force:

²⁴⁰ In extraordinary cases, especially when the dispensation must remain wholly occult, the Supreme Pontiff grants the dispensation orally.

n. 856.

856. 1. Dispensations granted by the Roman Curia.

a) The Sacred Congregation of the Holy Office grants dispensations from the impediments of mixed religion and disparity of worship, and likewise concerning the interpellations to be made in the application of the Pauline privilege.²⁴¹

b) The Sacred Congregation of the Sacraments grants a dispensation from the other public impediments; it grants a radical sanation and a dispensation from a ratified matrimony; it declares the legitimation of offspring. If, however, it is a question of the impediment of religious profession, the dispensation must be sought from the Sacred Congregation of Religious. All petitions for matrimonial dispensations coming from places which are still under the jurisdiction of the Sacred Congregation for the Propagation of the Faith must indeed be directed to that Congregation; nevertheless, it does not itself grant the dispensations sought, as was formerly done, but proposes the petitions to the other Congregations named above.

c) The Sacred Congregation for the Oriental Church grants all matrimonial dispensations, except those which pertain to the Holy Office, for faithful of an Eastern rite who contract matrimony either among themselves, with a faithful person of the Latin rite, or with an unbeliever.²⁴²

d) The Tribunal of the Sacred Penitentiary grants all dispensations from occult impediments and for the internal forum alone. What an occult impediment is was said above, n. 778. If an occult impediment is present together with a public impediment, and the petitioners consent to the disclosure of the matter, the dispensation must be sought from the Sacred Congregation of the Sacraments, which then grants a dispensation from both impediments. But if the petitioners refuse disclosure of the matter, the dispensation from the public impediment must be sought from the Sacred Congregation of the Sacraments, and the dispensation from the occult impediment from the Sacred Penitentiary. It is then required, however, that in the petition presented to the Sacred Penitentiary mention be made of the public impediment from which a dispensation has already been sought, or is still to be sought, from the Sacred Congregation of the Sacraments, or even from a duly delegated bishop. From the things said thus far it is evident that neither the Dataria, the Congregation for Extraordinary Ecclesiastical Affairs, nor the Secretariat of Briefs now grants matrimonial dispensations.

²⁴¹ Code of Canon Law, can. 247, § 3.

²⁴² Ibid., can. 257.

n. 857.

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.

n. 858.

858. 2. In other cases of urgent necessity, namely, a) when an impediment of matrimony is discovered after all things are already prepared for the nuptials and the matrimony cannot be deferred without probable danger of grave evil, that is, for approximately two weeks or even a longer time outside Italy, until a dispensation is obtained from the Holy See; b) when it is a question of convalidating a matrimony already contracted, if the same danger exists in delay and there is not time to have recourse to the Holy See, bishops or local Ordinaries can dispense from all the impediments of which there was discussion in the preceding number.²⁴⁸ It is required, however, that any scandal which exists be removed and that the customary guarantees be given before a dispensation is granted from the impediments of mixed religion and disparity of worship.

Note. In these cases of urgent necessity, the Ordinary cannot dispense from the legitimate form of celebrating matrimony, that is, from the presence of the parish priest and two witnesses,²⁴⁹ although he possesses this faculty in danger of death, as was said.

3. In ordinary cases, bishops and other local Ordinaries can dispense: a) from the proclamations to be made, b) from non-reserved vows, c) from the closed time, d) from doubtful impediments.²⁵⁰ It makes no difference whether the impediment is doubtful in fact or in law. Thus the common and certain opinion. But due diligence must first be employed to resolve the doubt.²⁵¹

For practice. Unless secrecy stands in the way or there is a danger of violating the sacramental seal, it is very advantageous to direct all petitions for dispensations to the episcopal curia, which will almost always grant the dispensation sought, or obtain it from the Roman Curia, both more easily and more quickly, by virtue of special faculties.^251a

²⁴⁸ Thus the Code of Canon Law, can. 1045, §§ 1 and 2.

²⁴⁹ Thus also Linneborn, Grundriß d. Eherechtes, 2nd ed., § 14 (II). The contrary opinion of certain writers, for example, De Smet, loc. cit., n. 764, does not seem probable.

²⁵⁰ Cf. Code of Canon Law, can. 75.

²⁵¹ Cf. Benedict XIV, De syn. dioec., bk. 9, c. 12, n. 1.

^251a Cf. the admonition of the Sacred Apostolic Penitentiary (Acta Apost. Sed. XXVII, 62).

n. 859.

859. 3. The faculty of dispensing granted to simple priests. All priests inferior to the local Ordinary have no faculty of dispensing from matrimonial impediments. There are, however, two cases in which they can grant certain dispensations:

1. In urgent danger of death, when the local Ordinary cannot be approached, the same faculty of dispensing which would then belong to the Ordinary belongs to the parish priest or priest.²⁵² The parish priest or priest validly and licitly assisting at such a matrimony can dispense from matrimonial impediments for both the external and internal forum; he must, however, immediately, that is, within three days, inform the local Ordinary of the dispensation granted for the external forum, so that this dispensation may be noted in the matrimonial register.²⁵³ The confessor then validly and licitly dispenses from impediments only in the act of sacramental confession and for the internal forum alone.²⁵⁴ According to the present ecclesiastical discipline, therefore, an invalid matrimony can easily be convalidated if either of the contracting parties is in danger of death. For since there is then rarely time to approach the local Ordinary either personally or by letter,²⁵⁵ or the parish priest or his delegate, any priest can receive the matrimonial consent of the contracting parties and dispense both from the presence of the witnesses and from all impediments of ecclesiastical law except the two indicated above.

²⁵² Cf. above, n. 857.

²⁵³ Code of Canon Law, can. 1046.

²⁵⁴ Ibid., can. 1044. If the confessor must dispense from impediments which are public or can easily become public, he should seek from the penitent permission to speak about the dispensation granted with the competent authority, or he should convalidate the matrimony outside the sacrament of penance before two witnesses according to can. 1098, n. 2. Certain authors, such as Hilling, De Smet, and Wernz-Vidal, deny that a confessor can dispense from public impediments in danger of death; but since he possesses the same faculty as the parish priest, the affirmative opinion is probable.

²⁵⁵ The Ordinary is judged unable to be approached even though there exists the possibility of approaching him by telephone or telegraph. Thus the Pontifical Commission, November 12, 1922 (Acta Apost. Sed. XIV, 663).

n. 860.

860. 2. In two cases of urgent necessity, namely, if an impediment is discovered a) when all things are already prepared for the nuptials and the matrimony cannot be deferred without probable danger either of grave evil or of violation of secrecy until the local Ordinary, or the parish priest or his delegate,^255a can be approached; b) when a matrimony has already been contracted and the same danger in delay as under a) is present, the priests enumerated in n. 1 can dispense from impediments, but not from the presence of two witnesses, just as in danger of death, though only for occult cases. If the case is public, that is, if the impediment is public in law and in fact, the celebration of matrimony must be deferred, since defamation does not then arise. If the impediment is public of its nature, for example, consanguinity or the diaconate, but occult in fact, a dispensation can then also be granted, since such a case is truly occult and an occult case is not the same thing as an occult impediment. Thus the opinion today is certain.²⁵⁶ But if the occult impediment which was dispensed afterward becomes public, the Ordinary should either grant a new dispensation or ratify the dispensation previously granted. This faculty of dispensing now removes the difficulties which formerly arose in a perplexing case,²⁵⁷ but it does not extend to the external form of the celebration of matrimony.

Note. If in danger of death or in other urgent cases, according to the faculties described above, an Ordinary or priest legitimately dispenses from impediments, by that very fact the legitimation of offspring perhaps born or conceived is also granted, except, however, adulterine and sacrilegious offspring.²⁵⁸

^255a Thus, if the one assisting is not a confessor.

²⁵⁶ Pontifical Commission, December 28, 1927 (Acta Apost. Sed. XX, 61).

²⁵⁷ Cf. above, n. 731.

²⁵⁸ Code of Canon Law, can. 1051.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 16 passages

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Chapter IV: On Dispensation From Diriment Impediments Of Matrimony

n. ¶2041.

Before all things we judge it opportune to premise the genuine signification of words which frequently occur in the matter of dispensations.³¹

ORATOR, ORATRIX, EXPONENT, EXPONENTS are called those who seek a dispensation for themselves. - A supplicatory libellus or supplication are the letters by which a dispensation is sought.

The STYLE OF THE CURIA, in this matter, denotes the complex of those things which must be observed in the supplicatory libellus, from the will and practice of the Roman Congregation before which the matter is transacted.

SUBREPTION is the reticence of the true, namely of some circumstance necessarily to be opened. OBREPTION is the expression of the false, for example in the causes alleged which persuade that the dispensation should be granted.

A RESCRIPT of dispensation is called the epistle or letters by which the sought dispensation is granted. CLAUSES are the conditions appended to rescripts, referring both to the executor of the dispensation and to the nupturients themselves; some occur uniformly in all dispensations, others are diverse according to the diversity of impediments.

A dispensation FOR THE INTERNAL FORUM, or for the forum of conscience, or for the forum of heaven, is that which is sought under fictitious names, and which effects that the impediment be removed, and that matrimony can be validly contracted; but it does not suffice for proving the celebration of the nuptials before an ecclesiastical judge. The dispensation which they call FOR THE EXTERNAL FORUM, or for the forum of the court, is sought with the names of the orators expressed, and effects that matrimony can be validly contracted, and be proved to have been validly contracted, before an ecclesiastical judge.
A dispensation is said to be given in GRATUITOUS FORM, when the ecclesiastical Superior, having been asked to grant the dispensation, applies it directly to the orators by himself. - It is said to be granted in COMMISSORY FORM, when the Superior commits to another the faculty of dispensing with the orators, for example to a parish priest or confessor. A dispensation is given in ordinary form when, on the occasion of the dispensation, a certain sum of money, tax or composition, is to be paid. - It is given in the form of the poor when a money tax is not required; in which case, to the Rescript this clause is customarily added: "provided that the orators are poor and miserable, and live only from labor and industry." For, if they are not poor, they ought to satisfy the established tax.
The FULMINATION of a dispensation is called the act by which the impediment is removed. By another name it is also called the application or execution of the dispensation, although this last word also admits a broader signification, according to which it comprehends all things which must be done on the occasion of the fulmination.
One impediment is called OCCULT, another PUBLIC; and this distinction indeed is, in the present matter, of the greatest moment.

OCCULT is sometimes taken more strictly, sometimes more broadly:¹ Occult strictly so called, or altogether occult, is that which cannot be proved by two witnesses. Occult broadly so called, or quasi-occult, or occult simply, is that which can be hidden by some tergiversation, even if it can be proved by some witnesses. - But to how many persons an impediment can be known, without thereby ceasing to be OCCULT, must be left to the judgment and sentence of a prudent judge. Especially in this matter, attention must be paid to the circumstances of place and of persons. That is still judged occult which in a town has become known to six persons, in a city to seven or eight. Indeed the S. PENITENTIARY has sometimes held as occult an impediment known to about ten persons. - "Therefore attention must be paid not only to how many persons, but to what sort of persons, the impediment is known: because it can well happen that with respect to five prudent and God-fearing persons who know the impediment, there is altogether no danger of further divulging; and, on the contrary, with respect to two or three, for example talkative persons, or enemies, etc., the danger of divulging may seem truly present, especially if other circumstances also threaten such danger."² But when true danger of divulging is present, the impediment can no longer be held as occult.³

A PUBLIC impediment is that which has so become known that it can no longer be hidden by any tergiversation.

Let it be noted: 1) The fact which induces the impediment can be public materially and occult formally: for instance if the fact of killing is known, but culpability lies hidden, because the killing is believed to have happened by chance. And in such a case indeed the impediment is still judged occult. Likewise, if the thing itself is known, but is unknown according to the reason of impediment, that is, if the impediment is not public insofar as it is an impediment, although it is known by two or three persons.⁴ 2) Other impediments by their nature are PUBLIC, such as consanguinity, affinity from licit intercourse, public honesty, spiritual cognation. And although by accident they lie hidden, in order to matrimony to be contracted they must be held as public.
CAUSES of dispensation are called some infamous or dishonest, namely those which have origin from the delict of the orators, or which lean upon their defamation; others not infamous or honest, namely those which have no note of either delict or defamation attached to themselves. - These things premised,

We shall treat: 1. of the power of dispensing; 2. of the causes of legitimate dispensation; 3. of the manner of obtaining dispensation; 4. of the things to be observed in executing the same.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Article I: On The Power Of Dispensing

The power of dispensing in the Church is with those to whom legislative power belongs, namely with the Pope and the Bishop. - What, therefore, in this matter, both the Roman Pontiff and the Bishop are able to do must be briefly investigated.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Art. I, § 1. What The Roman Pontiff Can Do

n. ¶2042.

I. The SUPREME PONTIFF can DISPENSE in all impediments of ecclesiastical law, but not in impediments of natural and divine law; but concerning these also he can DECLARE that they do not oblige in certain circumstances. Declarations of this kind indeed are accustomed to be called dispensations; but such an appellation is improper. All these things are clear from what was said in the Treatise on Laws (cf. n. 135 and 234).

But that dispensation be licit, a just cause is REQUIRED, namely a cause proportioned to the gravity of the impediment. Besides, there are certain impediments in which, although they are of ecclesiastical law, the Pope is not accustomed to dispense.

From these things it is easily gathered what must be thought concerning dispensation from individual impediments.

Error and force are altogether indispensable. - Condition and abduction are indeed absolutely dispensable, but dispensation is never granted. - Similarly age is a dispensable impediment; but the Pontiff dispenses in it very rarely, and only on account of a public cause. Impotence and Bond are indispensable. The Church sometimes dissolves a ratified matrimony, so that it does not stand in the way of new nuptials (cf. n. 1982); but while a valid matrimony stands, even if only ratified, she has never tolerated another, nor can she tolerate it. - In Vow and Order, only on account of a most grave cause, and therefore very rarely, is dispensation granted.
Concerning crime a dispensation is obtained; but if both or either have contrived murder, it is granted only rarely, and only from a most grave cause; but never, if the contrivance is public.⁵ - In disparity of cult a dispensation is likewise granted, but with greatest difficulty in Christian regions.⁶ - Finally, in clandestinity a dispensation is never given for contracting matrimony; the law ceases, however, if there is in the place a general impossibility, whether physical or moral, of observing it;⁷ but it is given, although most rarely, after matrimony has already been contracted, and this through sanation in the root.⁸
Cognation, according to the diversity of cases, is an impediment either dispensable or indispensable. For dispensation cannot be given concerning consanguinity in the direct line; but neither in the first degree of the collateral line has the Church ever dispensed (cf. n. 2019, end). But in more remote degrees dispensation can be had. - The Church dispenses in spiritual cognation; but more easily between the one lifting and the father or mother of the one lifted, than between the one lifting and the one lifted. - She likewise dispenses in legal cognation, yet with greatest difficulty in paternity.
In affinity which is in the collateral line, dispensation is granted, whether the affinity comes from licit intercourse or from illicit; indeed, if it comes from illicit intercourse, it is granted in the first degree of the direct line, although with more difficulty, and "provided that no doubt underlies that the spouse is offspring begotten by the other of the contracting parties." But if it comes from licit intercourse, the Church has never dispensed in the direct line⁹ (cf. n. 2031, qu. 2). - In the impediment of public honesty dispensation is granted more easily, other things equal, than in the preceding impediment.

From what has been said it is clear that the impediments in which dispensation is more frequently had are cognation, affinity, and public honesty.

n. ¶2043.

II. The Roman Pontiff is accustomed to exercise his power of dispensing through the tribunals of the DATARY and of the S. PENITENTIARY. Thus from various documents pertaining to the erection and jurisdiction of the said tribunals, and first of all from the Constitutions of Benedict XIV, Pastor bonus, 13 April 1744, and Gravissimum Ecclesiae, 26 November 1745. It is said: is accustomed to exercise, because dispensations concerning disparity of cult, and mixed religion, are granted through the Holy Office; dispensations for supreme princes through the Secretariat of Briefs; and for regions which are subject to the S. Congregation de Propaganda Fide, all affairs are treated through this same Congregation. Besides, the Supreme Pontiff sometimes uses, on account of peculiar circumstances, the work of some determinate Congregation.

The DATARY dispenses for the EXTERNAL FORUM, namely in public impediments, and also in those which are foreseen soon to become public: of this kind are consanguinity, affinity from licit intercourse, spiritual cognation, public honesty. Wherefore, recourse is made more safely and efficaciously to this Sacred Tribunal through the Ordinaries of places.

But the SACRED PENITENTIARY dispenses for the INTERNAL FORUM, or in occult impediments: such as often are those which come from crime, and especially from illicit intercourse. Likewise, it convalidates a dispensation granted by the Datary, but invalidly because of an occult delict, necessarily to be declared, having been kept back, if this is still secret (cf. n. 2051, 6).

It also sometimes dispenses in impediments which indeed by their nature are public, but which still lie hidden. Hence: 1) It dispenses concerning the impediment of public honesty from occult betrothals. - 2) As regards marriages already contracted and to be revalidated, it dispenses concerning occult impediments of spiritual cognation, of consanguinity and of affinity in the third and fourth degree; indeed also in the second degree, if the impediment remained occult through a decade, and those joined contracted publicly and were reputed as legitimate spouses. 3) It can besides in the same third and fourth public degrees, revalidate marriages contracted invalidly from the cause of subreption and occult obreption of Apostolic Letters; except if the falsity consists in the narration of preceding intercourse, which in reality had not previously intervened.¹⁰

For the EXTERNAL forum also, or in strictly public impediments, the S. PENITENTIARY dispenses as regards poor supplicants, concerning whose poverty there is certainty from testimonial Letters of the Ordinary. But if there is given an extraordinary and urgent case, recourse can also be made to the S. Penitentiary for those not poor, all things pertaining to the matter being set forth clearly: if the S. Tribunal cannot provide for the prayers set forth by its ordinary faculties, nevertheless it looks after the same by the force of faculties which it implores from the Supreme Pontiff in the customary audience which the Cardinal Major Penitentiary has every week.¹¹

n. ¶2044.

Let it be noted: 1. When the Apostolic See is vacant, the jurisdiction of the Datary ceases; but not the jurisdiction of the S. Penitentiary as regards the internal forum.

In the Datary a Tax is to be paid, to be determined from the nature of the impediment and the pecuniary condition of the Orators, not indeed as the price of the dispensation, which is granted gratis, but both for the stipend of the Officials of the Datary and the expenses to be undergone, and for the alms called the composition: which is imposed for this reason, that it may serve somewhat for repairing the wound inflicted upon discipline, and for lessening marriages between consanguines and affines, especially in the first and second degrees, in which a greater composition is imposed. - In the Penitentiary no TAX is paid. But if there is question of public impediments, and the orators are not altogether poor, some slight alms is required, to be transmitted to the Datary, so that its rights may remain whole and intact.
According to the practice of the Datary, those are to be reputed truly poor whose fortune does not exceed about three thousand francs, if they are beyond the Mountains; one thousand five hundred, if on this side of the Mountains; but those whose fortune does not exceed the value of ten thousand francs are called almost poor.¹²

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Art. I, § 2. What The Bishop Can Do

n. ¶2045.

Principles. I. A Bishop CANNOT, from his ORDINARY power, dispense concerning diriment impediments. This is clear from the Letters of Pius VI given to the Archbishop of Trier on 2 February 1782,¹³ and from the Rescript of Pius VII to the Bishops and Vicars general of France, dated 27 February 1809.¹⁴ The reason is that episcopal authority does not extend to making, by proper right, dispensations in the general laws of the Church, without at least express or tacit concession of the Superior by whom those laws were sanctioned.

Nevertheless the most common opinion teaches that the Bishop can dispense concerning doubtful impediments.¹⁵ In doubt of LAW, a declaration suffices that one can proceed safely; but in doubt of FACT, a dispensation is given for caution (cf. n. 1997, q. 4).

n. ¶2046.

II. A Bishop CAN, from QUASI-ORDINARY power, dispense, when necessity is urgent, concerning OCCULT impediments in which the Pope is accustomed to dispense. Thus the Doctors most commonly. For when necessity is urgent, "the Pontiff is to be presumed to delegate to the Bishop the faculty which, if asked, he certainly would not deny."¹⁶

But it is REQUIRED: 1. That there be present urgent necessity, which is judged to be present if the Pope cannot be approached without too much delay, nor can the matrimony be deferred without scandal, infamy, or another most grave harm: for instance if there is question of matrimony in extremis, or all things are already prepared for the nuptials. Likewise, if spouses, after matrimony has been contracted, cannot be separated without danger of scandal or infamy, and, staying under the same roof, are in danger of incontinence. But if they are in good faith, they are to be left in it until a dispensation has been obtained from the Holy See.¹⁷

That the impediment be occult, as is clear from the declarations of S. C. of the Council issued on 13 March 1660 and on 19 January 1661, likewise of the Holy Office in 1660 and 3 August 1873, and of the S. Penitentiary on 10 August 1872.¹⁸ The reason is "because when the impediment is public, the reason of scandal ceases, if the betrothed desist from such matrimony; indeed, especially to avoid scandal they are bound to desist from the nuptials."¹⁹ - Probably, nevertheless, the Bishop can dispense from an impediment public by its nature, but occult by reason of circumstances, provided it is of the number of those concerning which the Major Penitentiary has ordinary faculties.²⁰
That the Pope is accustomed to dispense; for otherwise his consent cannot be presumed. And from this it follows that the Bishop does not enjoy quasi-ordinary power of dispensing from those impediments in which not even the Major Penitentiary himself, by force of his ordinary faculties, can dispense.²¹

Another condition is also required if there is question of matrimony ALREADY CONTRACTED, namely that it was contracted in good faith, at least on the part of one spouse, with the prescribed solemnities, for example proclamations, unless there was dispensation. "The reason is both because in Trent it is said: if anyone knowingly shall presume to contract matrimony within prohibited degrees, let him be separated, and let him lack hope of obtaining dispensation; and because otherwise occasion would be given that daily, in hope of dispensation, marriages would be celebrated with contempt for impediments."²² But ignorance of the impediment, even crass, excuses from bad faith, provided it is not so crass that it would seem to be temerity.²³

Note. Since the aforesaid power of the Bishop is not annexed to the person, but to the dignity and office, and therefore must be called quasi-ordinary, it follows that it can be delegated not only for a particular case, but also for all occurring cases, both present and future. - Yet special delegation is required, even for the Vicar general, who does not obtain this faculty from the general commission of the Vicariate.²⁴

n. ¶2047.

III. A Bishop ordinarily receives from the Supreme Pontiff DELEGATED power of dispensing from certain impediments in which difficulties occur more frequently. This power is customarily granted through quinquennial, or triennial, or annual faculties, and for a certain number of cases. The same faculties are not granted to all Bishops; wherefore each one ought most carefully to weigh the tenor of the faculties committed to him, the conditions appended, and the clauses under which the dispensation is to be granted, and to communicate opportune instructions to the clergy subject to him (cf. Appendix I).¹

And here it does not seem alien to NOTE the following things concerning the use of an Apostolic Indult:

The same rules which are held as necessary in the Roman Curia must necessarily also be observed by the Bishop who grants a dispensation by force of an Indult. For such is the mind of the Supreme Pontiff, as is clear from the Response of the S. PENITENTIARY given on 1 May 1858.²
The prescribed clauses, for example the notation of the Apostolic Indult, must altogether be observed; not however under penalty of nullity, unless this is clearly expressed in the Indult, for example by the words: otherwise they are null. - Thus from the Response of the Holy Office, 15 June 1875.³
A Bishop can, by force of the Indult, dispense from the impediment either of consanguinity or of affinity, even if the degrees are multiple, Holy Office, 15 June 1875;⁴ S. Penitentiary, 18 January 1883;⁵ but not from several impediments concurring in the same case, unless this is expressly granted in the Indult. This is drawn from the words of the Indults, and from the Response of S. C. C., 26 April 1873, and of the S. Penitentiary, 14 July 1881.⁶
A Bishop can use his faculty of dispensing, for example in affinity, even if incest had been committed with the intention of obtaining dispensation more easily. - Thus S. Penitentiary, 10 May 1876.⁷ (cf. n. 2051, Note).
A Bishop cannot dispense except with his own subjects, namely those who have domicile or quasi-domicile in his diocese; or with wanderers who are staying in his diocese and do not have domicile elsewhere (cf. n. 235, q. 2).

n. ¶2048.

Questions. IT IS ASKED 1. What is the power of the Bishop concerning PROHIBITING impediments?

Resp. He can dispense from proclamations of banns, and from a vow not reserved to the Supreme Pontiff. As regards other things, a pontifical dispensation is required, as is clear from what was said in n. 1987, 1989, and following.⁸ In this matter, those things also have force which were said concerning the quasi-ordinary power of the Bishop, in a case of necessity (n. 2046).

IT IS ASKED 2. Whether if the contracting parties are of DIFFERENT DIOCESES, each one must be dispensed by his own Bishop?

Resp. Distinguish. 1. Impediments altogether personal and without relation to the other party, for example the impedient impediment of vow, can be dispensed by the Bishop of the nupturient alone; wherefore if each party is detained by such an impediment, dispensation is required from the Bishop of each (cf. n. 2064).⁹

But if the impediment is common to both, for example cognation, affinity, it suffices if the Bishop of either party dispenses, "because, the impediment having been removed from one side, the other party also becomes free, since the bond no longer exists between both parties." - But it is fitting that the dispensation, regularly, be granted by that Bishop in whose diocese the matrimony ought to be contracted by law, that is, by the Bishop of the bride. Thus from the Responses of the S. Penitentiary given on 4 September 1839 and 15 April 1853;¹⁰ confirmed by the Response of the Holy Office, 22 November 1865.¹¹

IT IS ASKED 3. What must be done by the PARISH PRIEST or CONFESSOR, if he detects an impediment when ALL THINGS ARE ALREADY PREPARED for the nuptials, and no time remains for obtaining a dispensation?

Resp. 1. If the impediment is public, the matrimony must altogether be deferred until dispensation is obtained, since from delay no scandal can arise.

If the impediment is occult, and of those concerning which the Holy See is not accustomed to dispense, one must abstain from celebration of the matrimony, since the cessation of the law cannot be supposed in such a case.
If the impediment is occult, and of those in which dispensation is accustomed to be given, and the matrimony cannot be deferred without scandal or infamy of the betrothed: the celebration of matrimony is to be permitted; and meanwhile the betrothed are to be left in their invincible ignorance, until dispensation, or sanation in the root, is obtained.
If, the same circumstances standing, either betrothed or both are in vincible ignorance, or have knowledge of the impediment: a great difficulty arises, for avoiding which some teach that different ways must be entered: namely some by prescribing delay of the matrimony, others by permitting simulation of the Sacrament (cf. n. 1430), others finally by advising celebration under condition of a dispensation to be obtained (cf. n. 1973, q. 3). There is also the opinion of certain persons, which St. Alphonsus calls not unfounded, which holds that the law of the Church concerning impediments does not oblige in such great straits, and consequently that celebration of the matrimony can be permitted, and then recourse must be made as soon as possible to the S. Penitentiary, so that from it either dispensation or sanation in the root may be obtained.¹²

IN PRACTICE, every difficulty would cease if the Bishop expressly delegated to all priests to whom care of souls is committed the faculty which he has for a case of this kind (n. 2046).¹³

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Article II: On The Causes Of Legitimate Dispensation

n. ¶2049.

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

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

"1. Narrowness of place, whether absolute or relative, only by reason of the oratrix, namely when in the place of origin, or even of domicile, the woman's cognation has been so propagated that she cannot find another of equal condition whom she may marry, unless a consanguine or affine; but for her to leave her country would be hard. [That place is reputed narrow which does not exceed 300 hearths, or 1500 Catholic inhabitants, from the declaration of Pius IX issued on 30 August 1847.¹⁶ Wherefore S. Cong. of the Council declared¹⁷ on 16 Dec. 1876: "Narrowness of place is not to be drawn from the number of hearths of each parish, but from the number of hearths of each place or even of several places, if they are not distant from one another beyond a mile," or 20 minutes.]

"2. The over-adult age of the woman, namely if, having already passed the 24th year of age, she has hitherto not found a man of equal condition whom she can marry. But this cause does not support a widow who desires to pass to other nuptials.

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

"4. Lawsuits concerning succession of goods already arisen, or grave or imminent danger of the same. If a woman sustains a grave lawsuit concerning succession of goods of great moment, and there is no other who would take upon himself a lawsuit of this kind and pursue it at his own expense, except the one who desires to take her as wife: dispensation is customarily granted; for it is of interest to the Republic that lawsuits be extinguished. Another cause comes near to this, namely Dowry involved in lawsuits, namely when a woman is destitute of another man by whose aid she can recover her goods. But a cause of this kind suffices only for more remote degrees.

"5. The poverty of a widow who is burdened with numerous offspring, and a man promises to support her. But sometimes by the remedy of dispensation aid is given to a widow for this cause only, that she is younger, and is in danger of incontinence.

"6. The good of peace, under which name come not only treaties between kingdoms and princes, but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is adduced either for extinguishing grave enmities which have arisen among the consanguines and affines of the contracting parties, and which would be altogether settled by the celebration of matrimony; or when grave enmities flourished among the consanguines and affines of the contracting parties, and, although peace has already been entered among them, nevertheless the celebration of matrimony would conduce greatly to the confirmation of that peace.

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

"8. Intercourse previously had with a consanguine, or affine, or another person laboring under an impediment, and pregnancy, and therefore legitimization of offspring; namely that provision may be made for the good of the offspring itself, and for the honor of the woman, who otherwise would remain unmarried. This is indeed one of the more urgent causes on account of which dispensation is customarily given even to plebeians, provided the intercourse was not perpetrated under hope of an easier dispensation: which circumstance would have to be expressed in the supplication (cf. n. 2051, end).

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

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

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

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

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

"14. Removal of grave scandals.

"15. Cessation of public concubinage.

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

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

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

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

n. ¶2050.

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

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

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

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

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Article III: On The Manner Of Obtaining Dispensation

n. ¶2051.

A dispensation is obtained through supplicatory Letters directed to the DATARY or to the S. PENITENTIARY, according as there is question of dispensation for the external forum or for the internal forum (cf. n. 2043). - If the Bishop, by force of an Indult or of quasi-ordinary power, can dispense, recourse is to be made to him, observing the same things which must be observed before the Roman Curia (cf. n. 2047, 1).

Dispensation for the EXTERNAL forum is sought by the parish priest, through the mediation of the episcopal Curia, to which also the response of the Roman Tribunal, to be communicated to the parties, is directed.

Dispensation for the INTERNAL forum is sought by the confessor, through the mediation of the episcopal Curia, if nothing prevents, but by letters closed and secured by seal; but by direct recourse to the S. Penitentiary if there is danger of otherwise injuring the sacramental seal in some way.

Dispensation is sought in the name of the Orators: even without their knowledge, if reason persuades it.

"But now," again bringing forward the words of the aforesaid INSTRUCTION of S. C. de Propaganda Fide, "let us come to those things which, besides the causes, must be EXPRESSED in the supplicatory letters for obtaining dispensation, by law or custom or the style of the Curia, so that, if even ignorantly the truth is kept silent or falsity is narrated, the dispensation is rendered null. - These things are:

"1. The name and surname of the orators, each to be written distinctly and clearly and without any abbreviation of letters." [If an error in the name is accidental, so that the identity of the person is indubitably established, it is not a cause of nullity; but otherwise new recourse is required. Dispensation for the internal forum is sought under fictitious names.]

"2. The diocese of origin or of actual domicile. When the orators have domicile outside the diocese of origin, they can, if they wish, seek that the dispensation be sent to the Ordinary of the diocese in which they now live." [Mention of the diocese of the orators is not to be made in a supplication to the S. Penitentiary for the forum of conscience.]

"3. Also the lowest species of the impediment, whether it is consanguinity or affinity, arisen from licit or illicit intercourse; public honesty deriving origin from betrothals or ratified matrimony; in the impediment of crime, whether it came from conjugicide with promise of matrimony, or from conjugicide with adultery, or from adultery alone with promise of matrimony; in spiritual cognation, whether it is between the one lifting and the one lifted, or between the one lifting and the parent of the one lifted." [Error in species renders the dispensation invalid.]

"4. The degree of consanguinity or affinity or honesty from ratified matrimony, and whether it is simple or mixed; not only the more remote, but also the nearer; and also the line, whether it is direct or transverse; likewise, whether the orators are joined by a double bond of consanguinity, both on the father's side and on the mother's side." [In an unequal line, if the nearer degree is the first, it must also be expressed whether the bridegroom or bride is nearer to the stock: for it is dispensed with more difficulty that a grandson marry an aunt than that an uncle marry a niece. If an error increases the gravity of the impediment, it is not a cause of nullity; but otherwise, if it diminishes it. Hence, when a lesser degree is expressed for a greater, the dispensation is invalid; but when a greater is expressed for a lesser, it is commonly affirmed valid.]

"5. The number of impediments, for example if there is present double or multiple consanguinity or affinity; or if besides cognation there is also affinity or any other impediment whether diriment or impedient... Yet in seeking dispensation concerning the impediment of affinity of the first or second degree of the collateral line, if the impediment arises not only from matrimony consummated with the deceased spouse of the orator or oratrix, but also from ante-matrimonial or fornicary intercourse perpetrated with the same deceased person before entering matrimony with that person: it is not necessary that mention be made of illicit intercourse of this kind, as is clear from the response of the S. Penitentiary, dated 20 March 1842, approved by Gregory XVI of holy memory, to the Bishop of Namur, which same Tribunal declared to be general by letters dated 10 Dec. 1874."

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

"7. Finally, the state of fortune of the orators ought truthfully to be set forth, so that according to the diversity of circumstances, the composition or tax can rightly be determined, or also so that the dispensation may be expedited gratis (cf. n. 2044)."

Note. Formerly, for the validity of dispensation "concerning whatever prohibited degrees of consanguinity, affinity, spiritual and legal cognation, and also of public honesty," "INCESTUOUS INTERCOURSE had between the betrothed before the execution of the dispensation" had to be expressed, "whether before or after its obtaining, whether with the intention of obtaining dispensation more easily, or even such intention being excluded, and whether the intercourse is publicly known, or even occult." Thus from various responses of the Holy Office and S. Penitentiary, and from the cited Instruction of S. C. de Propaganda Fide.¹ But, these and similar Decrees and Declarations having been abrogated, His Holiness Pope Leo XIII, through the Decree of 25 June 1885, established and declared: "matrimonial dispensations to be granted henceforth, even if incestuous intercourse, or the plan and intention of obtaining dispensation more easily through it, have been kept back, are going to be valid."² - Yet sanation of the past is still desired.

n. ¶2052.

Questions. IT IS ASKED 1. How dispensation is to be sought, if SEVERAL impediments concur, some PUBLIC, others OCCULT; or if to a public impediment there is annexed an OCCULT CIRCUMSTANCE necessarily to be declared?

Resp. 1. If the orators consent to manifestation of the matter, dispensation is sought for the external forum, all circumstances being expressed, but mention being made of the consent of the orators.

If the orators do not consent to manifestation, which they are by no means obliged to do, since no one is bound to defame himself, recourse is made to the Datary for public impediments, the occult impediments or circumstances being kept back; but recourse is made to the S. Penitentiary for occult impediments or circumstances, yet with the public impediments also set forth at the same time, since all things must be opened before one Tribunal, and mention moreover being made of the relaxation of these already sought or to be sought from the Datary.³ - It is more advisable first to have recourse to the Penitentiary, lest, after dispensation concerning a public impediment has been granted by the Datary and denied by the Penitentiary concerning the occult one, suspicions arise, and the expenses made in the Datary become useless.

IT IS ASKED 2. Whether he needs a NEW DISPENSATION who, after obtaining dispensation concerning an occult impediment of affinity, again had intercourse with the same consanguine of the bride before he married her?

Resp. Negatively, if the dispensation has not yet been fulminated by him to whom it is committed; "because such dispensations do not receive effect from the day of expedition, but from the time of execution." Indeed, if it has already been executed, the S. Penitentiary denies, in the Rescript issued on 21 September 1752, that a new dispensation is required. "The reason is that that affinity has already been removed through the dispensation with regard to this effect of contracting matrimony."⁴ But if he had intercourse with another consanguine of the bride, a new dispensation certainly is required, since a new affinity has been contracted (cf. n. 786).

IT IS ASKED 3. "If someone seeks a SECOND dispensation in the same matter after a first one was previously obtained, whether he ought to express the first?"

Resp. 1. "Affirmatively, when the impediment is from the same crime, because relapse draws the Superior back from dispensing. 2. Negatively, if the impediment is not from some crime, or is from a diverse crime." Thus commonly.⁵

IT IS ASKED 4. Whether a dispensation sought as FOR THE POOR is VALID, if the orators are not poor?

Resp. Affirmatively, as S. C. C. declared on 9 September 1679;⁶ because poverty is not the reason on account of which the dispensation is granted, but on account of which it is granted gratis. Therefore, when the cause of gratuity is lacking, for that reason the cause of dispensation does not fail. Yet false allegation of poverty renders the dispensation INVALID: 1) if it is granted by the Bishop by force of an Indult having the clause: "only in favor of those who are truly poor"; 2) if it is granted by the S. Penitentiary for the external forum; in which case, according to the practice of this S. Tribunal, either another dispensation or sanation is required. Each exception is clear from the declaration of S. C. C., 26 April and 28 June 1873.⁷

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. IV, Article IV: On The Manner Of Executing Dispensation

n. ¶2053.

Since matrimonial dispensations are customarily granted by the Holy See only in commissory form, it follows that the impediment is not yet removed by the favorable Rescript, but that besides this the execution of it, or the fulmination of the dispensation, is required. - For fulmination, indeed for the EXTERNAL forum, an Official, Bishop, or generically Ordinary is delegated; but for the INTERNAL forum, the confessor chosen or to be chosen by the orator.

I. First of all it ought to be established for the delegate, from an authentic document, concerning the validity of the Rescript. But the Rescript is vitiated both through substantial subreption or obreption, which can easily be recognized from the things said thus far; and also through accidental subreption or obreption, for example concerning an impulsive cause, if it was alleged in bad faith.⁸ "Wherefore," says Benedict XIV,⁹ "he who executes the Letters ought to expend every care and diligence, that he may know whether what was set forth to the Major Penitentiary or Datary is true. Whether the matter itself, the circumstances, and the causes and reasons brought forward for obtaining dispensation are altogether consonant with truth." If the Apostolic Letters are found invalid, immediately care must be taken for the sanation of the same, a new Rescript being obtained, called Perinde valere, by which the prior Letters are declared valid, just as if they labored under no vice. If after sanation a new vice is detected, there is need of a new sanation, which is granted through another Rescript, which is called Perinde valere upon Perinde valere.¹⁰

For a Rescript of sanation, recourse must be made to the DATARY or to the S. PENITENTIARY, according to the nature of the matter: the whole cause is set forth summarily, the prior grace granted is mentioned, the vice detected is declared, and the grace is sought that, notwithstanding it, the prior Letters may have force. - Also firm remains the law concerning all things pertaining to the matter to be opened before one tribunal; wherefore, if recourse had been made both to the Datary and to the Penitentiary, and a new impediment is public, a double PERINDE VALERE is required: one from the Datary, because there is question of a public impediment; the other from the Penitentiary, because to this tribunal the whole cause must be declared.¹¹

n. ¶2054.

II. After the delegate has fulfilled all things which are prescribed as to be fulfilled in the Apostolic Letters, he ought to RELEASE the orators, in the name of the Pontiff, from the impediments mentioned in the Rescript, and declare to them that matrimony can freely be entered, notwithstanding the impediments.¹² Wherefore the DELEGATE: 1. Ought, and indeed under grave obligation, faithfully to fulfill all things prescribed in the Apostolic Letters, both because they have the nature of a true precept, and because many things are contained in them on the execution of which the validity of the dispensation depends, as will easily be clear to one reading the Rescript. 2. Ought to declare that he acts by force of Pontifical delegation. 3. Ought to release the orators from the impediments designated in the Rescript, expressing them in species, because the faculty of dispensing extends itself to those alone.

This act, which is called FULMINATION, is made in writing for the external forum; by living voice, and ordinarily in sacramental confession, for the internal forum. - Acceptance of the dispensation is indeed required. But this is sufficiently had if the recourse was made at the request of the orators. But if it was made without their knowledge, it cannot be fulminated unless they accept.¹³

N.B. We add nothing concerning the things pertaining to the external forum, since for a delegate in this forum there are many things necessary to know, for learning which he must necessarily approach authors treating of this matter in particular.¹⁴ - But for the convenience of confessors, a few things seem to be added which pertain to execution in the internal forum. - Hence the following.

n. ¶2055.

Questions.¹ IT IS ASKED 1. Who can EXECUTE the Letters of the S. Penitentiary?

Resp. This must be judged from their inscription. - If, as is commonly done, they are inscribed: To a confessor from those approved by the Ordinary of the place, it suffices that the confessor be approved. But if, which rarely happens, there is added to a master in Theology and doctor of Decrees, the doctor's laurel is required. - If the confessor elected is unwilling to execute the Letters, another can be chosen.

IT IS ASKED 2. What CLAUSES are customarily placed in the Letters of the S. Penitentiary?

Resp. The principal ones are the following:

If it is so, if the prayers rest upon truth. These words impose the necessity of investigating, as we said above. But since there is question of the internal forum, the whole investigation consists in this, that the confessor again question the penitent, seriously warning him concerning the most grave obligation, which presses, of answering sincerely.
We commit to your discretion, insofar as... the bearer, his sacramental confession first having been heard..., you absolve from whatever sentences, censures, and penalties in any way incurred on account of the premises. - According to this clause the dispensation cannot validly be pronounced unless sacramental confession has been premised, and in the very act of confession. Yet sacramental absolution is not required, if perhaps the penitent is not disposed. - Nor does absolution sacrilegiously received obstruct the validity of the dispensation, as has been declared several times by the S. Penitentiary.² Thus also S. C. de Propaganda Fide, 16 Jan. 1797.³ But if some urgent necessity persuades that, sacramental absolution being denied, the dispensation be fulminated: the confessor nevertheless should absolve from penalties and censures incurred perhaps on account of the delict, for example if in the diocese there were reserved cases. Yet, by force of the Rescript, he cannot absolve from other penalties and censures, for which there would be need of a penitent forum.
The occasion of sin being removed: this is understood if the occasion is voluntary; because if it were necessary, it suffices that means be chosen by which from proximate it becomes remote.
A salutary penance having been enjoined according to the measure of the fault, which is to be distinguished from sacramental penance. - "Wherefore the confessor," says Benedict XIV,⁴ "that he may rightly satisfy his office, should not exceed the bounds either of severity or of humanity. He will also have regard to the condition, age, and sex of him on whom the penalty is imposed." If the penance has been determined by the Letters themselves, for example confession once in a month, this is altogether to be imposed by the confessor. - Sometimes a grave, very grave, long, lasting, perpetual penance must be prescribed. Grave it will be, if by its weight it so presses the guilty person that he himself feels and recognizes through it the gravity of his delict: a penance of this kind, with St. Alphonsus as witness,⁵ would be, if for six months a fast once a week were imposed to be observed; the rosary to be recited three times a week; likewise frequent confession, at least once in a month; always to wear a habit with respect toward penitents. Very grave it will be, if it presses the guilty person so that he sharply feels the atrocity of the delict. Long, if it is to be continued through individual weeks for an entire year; lasting, if for three years; perpetual, if it is extended unto death, to be performed not indeed daily, but on stated days.
Other things to be enjoined by law having been enjoined, namely those which otherwise would have to be prescribed.
Provided the aforesaid impediment is occult or altogether occult. This condition was declared above (cf. n. 2041, 5).
Nor does any other canonical impediment obstruct, namely one concerning which dispensation has not been granted. - If a public impediment concurs with an occult impediment, this clause is customarily added besides: "provided, or after, Letters of dispensation concerning the public impediment have been obtained."
By Apostolic authority you mercifully dispense; in express words, and with mention made of the delegation received. - Nor is the legitimation of offspring to be received or already received to be omitted, which is ordinarily prescribed.
No Letters having been given concerning these things, but these presents, under penalty of excommunication latae sententiae, having been altogether torn up by you after execution. For since the impediment is occult, the dispensation also ought to remain occult. This tearing up must be done at once, but understand morally, namely at least within three days. - Nor indeed is the confessor prohibited from retaining with himself a copied text of the dispensation, for his own instruction, yet with mention of day and year omitted, which would easily be an argument for recognizing the dispensed penitent.

IT IS ASKED 3. What is the FORM of fulmination?

Resp. No determinate form is required. Hence, sacramental absolution having been imparted, the confessor will be able at once to add this or a similar formula, the things to be changed having been changed: "And besides, by the Apostolic authority committed to me in this part, I dispense with you concerning the impediment... of the first, first and second, second degree of affinity, thence arising, because you had illicit intercourse with the sister of the woman with whom you intend to contract, so that, notwithstanding it, you may contract matrimony publicly with the said woman, the form of the Council of Trent being observed, and afterward may remain in it. In the name of the Father + etc. - Besides, by the same Apostolic authority I declare the offspring to be received legitimate. In the name of the Father +... etc."

If sacramental absolution seems to have to be denied, the FORMULA can be changed in this manner: "By the Apostolic authority committed to me in this part, I absolve you from whatever ecclesiastical sentences, censures, and penalties perhaps incurred on account of illicit intercourse with the sister of the woman with whom you intend to contract, and from excesses of this kind, and I dispense with you concerning the impediment of the first degree of affinity thence arising, so that notwithstanding it... etc." as above.⁶

IT IS ASKED 4. How a dispensation is to be executed, if in the Rescript mention is made of a DELICT which is COMMON to both contracting parties?

Resp. "The first confessor, after the dispensation granted according to the form of the Letters, ought to hand over the Letters of the S. Penitentiary to the penitent, so that through him they may be handed over to the other party, who likewise is to cause the same Letters to be executed with himself by another confessor.... For the mind of the S. Penitentiary is that the Letters be put into execution toward each person, if not for removing the impediment, which is supposed already removed by the prior dispensation with one person, at least for imposing congruous salutary penances on both, which it is not fitting to exact from one only, where the fault is common." Thus the S. PENITENTIARY, 15 Nov. 1748.⁷

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 26 passages

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

Ch. VI, Article II: Concerning the Authority of Dispensing · Ch. VI, Art. II, § 1. Concerning the Power of the Roman Pontiff · Ch. VI, Art. II, § 2. Concerning the Power of the Local Ordinary

We set forth beforehand in this place, from Van de Burgt, de Dispens. n. 639, the terminology proper to the matter of dispensations.

n. ¶2.

Orator, oratrix, orators, exposer, exposers, are called those who ask that dispensation be granted with them.

n. ¶3.

A supplicatory libellus or supplica are called the letters by which dispensation is sought.

n. ¶4.

Style of the Curia. Here by Curia is understood the Congregation from which, or through which, dispensation is to be obtained. Style of the Curia denotes those things which are to be written in the supplicatory libellus from the will and practice of that Congregation from which, or by means of which, dispensation is sought from the Supreme Pontiff.

n. ¶5.

Subreption, obreption. Reticence of the true, or of that which, by prescription of laws, by style of the curia, by custom, must be declared, is called subreption. Expression of the false is called obreption.

n. ¶6.

A rescript of dispensation is called the epistle or letters by which the dispensation sought is conceded.

n. ¶7.

Clauses. Under the name of clauses come the orders and conditions placed on rescripts, which regard both the executor and those about to enter nuptials. Many are expressed in conditional form by the conjunction if, provided, so long as, by the ablative absolute; and these forms, for the most part, indicate that the value of the dispensation depends upon the observance of those clauses. (H. A. Tr. XVIII. 81.) Those orders and conditions arise from the very nature of the impediments, and from the circumstances which are joined to each impediment. All matrimonial dispensations have certain circumstances in common with one another, but many also have certain ones proper to themselves. Hence it happens that some clauses are accustomed to occur in all, others are written only in some.

n. ¶8.

Dispensation for the internal forum, or for the forum of conscience, or for the forum of heaven, is that which is sought under fictitious names, and which effects that the impediment be removed and that Matrimony can be contracted validly; but it does not suffice that it be proved before an ecclesiastical judge that the impediment has been dissolved.

n. ¶9.

Dispensation which they call for the external forum, or for the forum of the court, is sought with the names of the orators expressed, and effects that Matrimony can be validly contracted, and that it can be proved before an ecclesiastical judge that it was validly contracted.

n. ¶10.

Dispensation given in gracious form is said when the ecclesiastical Superior, who was asked to concede the dispensation, applies it by himself, directly, to the orators.

n. ¶11.

Dispensation is said to be conceded in commissory form when the Superior commits to another the faculty of dispensing with the orators, e.g. to the Pastor, to the confessor.

n. ¶12.

Dispensation is given in ordinary form when, on the occasion of the dispensation, a certain sum of money (tax, composition) is to be paid.

n. ¶13.

It is given in the form of the poor when a monetary tax is not exacted; and then to the rescript of dispensation there is usually added the clause: provided the orators are poor and miserable, and live only from labor and industry. For if they are not poor, they must satisfy the established tax. The distinction between dispensations in ordinary form and in the form of the poor, when it is taken in the ordinary sense, regards those regions in which matrimonial dispensations are to be obtained from the Congregations of the Sacred Penitentiary and Dataria; in which last congregation a certain tax must be paid on the occasion of dispensation of the impediments of consanguinity and affinity from licit matrimonial copula, if the orators are not poor and miserable and living only from labor and industry. As regards dioceses subject to the Sacred Congregation de Propaganda Fide, see below n. 1627. II. at the end.

n. ¶14.

Fulmination of the dispensation is called the act by which the impediment is removed. By another name it is called the application, execution of the dispensation, although this last word also has a broader signification, so that it also comprehends the verification of the petitions, the injunction of certain obligations prescribed in the Rescript, and the acceptance of the dispensation by the orators.

n. ¶15.

A public, occult, and altogether occult impediment, concerning these see the things said n. 1564.

n. ¶16.

Note. - Although among us all dispensations are obtained through the organ of the Sacred Congregation de Propaganda Fide, nevertheless in either asking or executing them there must be observed the differences which, according to the nature of the impediment, intervene between dispensations which are to be asked directly from the Dataria, and those which are to be asked directly from the Penitentiary, in regions not subject to the Sacred Congregation de Propaganda Fide.

n. ¶17.

We must treat 1° of the power of dispensing; 2° of the causes of dispensation; 3° of the manner of obtaining dispensation.

n. ¶18.

Point I. On the Power of Dispensing.

n. ¶1623.

1623. Principles. - I. The Pope can dispense from all impediments of Ecclesiastical Law; 1° validly in every case, because he is the primary Superior; 2° licitly, if he does this from a just cause, as right governance requires. What he can do in those things which are of divine law, see n. 158; 1551. 1°; 1574. q. 5°. Resp. 2°.

II. A Bishop cannot ordinarily and by his own right dispense in diriment impediments (as regards impedient impediments see n. 1572). The reason is that a Bishop can do nothing in the common law of the Church unless from concession of the Council or the Pope, or from legitimate custom. But Bishops cannot vindicate for themselves the right of dispensing in such impediments from any of these reasons, as is clear both from the practice of the Church and from various Declarations of the Sacred Congregation, and especially from Pius VII in the year 1809 in the Rescript to the Bishops of France.

I said: 1° ordinarily; for he can dispense:

1) Probably in doubtful impediments, even with doubt of fact.

2) In occult ones: and

I. Indeed, according to the common opinion, in contracted ones, provided there is present a) necessity and danger in delay; b) Matrimony contracted 1) in good faith, namely from ignorance (even crass, provided rashness does not seem present), whether of law or of fact, by at least one party; 2) in the face of the Church, and the proclamations having been premised, or dispensation from them having been granted; c) an impediment in which the Pope is accustomed to dispense; d) at least doubt concerning the impediment in one party; for if each party is in good faith, this is not to be disturbed, and meanwhile recourse must be had to the Sacred Penitentiary.

II. Most probably also in those to be contracted, provided true necessity is present; danger in delay; an impediment in which the Holy See is accustomed to dispense. (A), p. 397.

I said: 2° by his own right; for in many matters our Bishops can dispense by delegated right. See p. LXX. n. 6. 7. 8. 9. 10. pp. LXXIII-LXXV. (rho), p. 397.

n. ¶1624.

1624. - Quaer. If the betrothed belong to different dioceses and there is question of an impediment common to each nupturient, must dispensation be obtained from each Bishop, if each enjoys by special Indult the faculty of dispensing?

Resp. The opinion probable to St. Alphonsus denies. The reason is that, when the Bishop takes away the impediment from his subject, he renders that subject capable of contracting with the other impeded person. For one person cannot become capable of contracting with another unless that other also becomes capable of contracting with him. And indeed this opinion of the holy Doctor is confirmed by the resolution of the Holy Office, November 22, 1865, with the addition: "unless the tenor of the Apostolic concession stands in the way," and "nevertheless permission for the celebration of the Matrimony having been obtained from the Bishop of the place where the Matrimony itself is contracted." The same addition holds if each nupturient is subject to the one dispensing and the Matrimony is to be entered outside his diocese.

n. ¶19.

Point II. On the Causes of Dispensation and on Those to Be Expressed in the Supplica.

Recall the things said n. 162, 163 concerning causes of dispensations in general.

n. ¶1625.

1625. Questions. - Quaer. 1° What causes are just, so that dispensation may be granted in diriment impediments?

Resp. From the Instruction of the Sacred Congregation de Propaganda Fide, May 9, 1877, the "commoner and weightier" causes are:

1. "Straitness of place, whether absolute or relative (by reason only of the Oratrix), when namely in the place of origin, or even of domicile, the kinship of the woman has been so propagated that she cannot find another of equal condition whom she may marry, unless a consanguineous or affine person, but to leave her country would be hard for her." [These last words do not signify that the cause does not exist when the Oratrix is going to transfer her domicile elsewhere, but that it exists although she does not wish to marry someone of equal condition by whom she is asked in Matrimony, but who inhabits another place. By the name of place there does not come precisely a parish, for in one place, in one city, several parishes can be present, and conversely in one parish several places. Wherefore by the name of place is understood a city, town, village, hamlet, indeed several places, provided they are not distant from one another beyond a mile. Sacred Congregation of the Council, December 16, 1876. Every place not having more than three hundred hearths, or 1,500 Catholic inhabitants, is reputed narrow.]

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

3. "Deficiency or incompetence of dowry, if namely the woman does not actually have so great a dowry that she can marry an outsider of equal condition, who is neither consanguineous nor affine, in the proper place in which she is dwelling. This cause presses more if the woman exists wholly without dowry, and a consanguineous or affine man is prepared to take her as wife, or even suitably to dower her entirely." [It is indifferent whether the dowry is offered by the bridegroom or by another, but on this condition, that she marry the consanguineous or affine person.]

4. "Lawsuits concerning succession to goods already arisen, or grave or imminent danger of the same. If the woman sustains a grave lawsuit concerning succession to goods of great moment, and there is no other who would take upon himself a lawsuit of this kind and pursue it at his own expense besides the one who desires to take her as wife, dispensation is accustomed to be conceded; for it concerns the commonwealth that lawsuits be extinguished. Another cause approaches this closely, namely a dowry involved in lawsuits, when namely the woman is destitute of another man by whose assistance she is able to recover her goods. But a cause of this kind suffices only for more remote degrees."

5. "Poverty of a widow who is burdened with numerous offspring" [let the number and age of the children be expressed] "and a man promises to support her. But sometimes the remedy of dispensation succors a widow for this reason only, that she is younger and is placed in danger of incontinence."

6. "The good of peace, under which name come not only treaties between kingdoms and Princes, but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is adduced either for extinguishing grave enmities which have arisen among the blood-relatives or affines of the contracting parties, and which would be altogether settled by the celebration of Matrimony; or when grave enmities have prevailed among the blood-relatives and affines of the contracting parties, and, although peace has already been entered between them, nevertheless the celebration of Matrimony would especially conduce to the confirmation of that peace."

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

8. "Copula previously had with a consanguineous or affine woman or another person laboring under an impediment, and pregnancy, and therefore legitimization of offspring, namely that provision may be made for the good of the offspring itself and for the honor of the woman, who otherwise would remain unmarried. This indeed is one of the more urgent causes, on account of which dispensation is accustomed to be given even to common people, provided the copula perpetrated was not under hope of an easier dispensation; which circumstance would have to be expressed in the supplication."

9. "Infamy of the woman, arisen from suspicion that she, being too familiar with her consanguineous or affine man, has been known by him, although the suspicion is false, when namely, unless Matrimony is contracted, the woman, gravely defamed, would either remain unmarried, or would have to marry a man of unequal condition, or grave damages would arise."

10. "Revalidation of Matrimony, which was contracted in good faith and publicly, with the Tridentine form observed" [even if there is question of a place where the decree Tametsi does not oblige] "because its dissolution can scarcely be made without public scandal and grave damage, especially of the woman. C. 7 de Consanguin. But if the betrothed entered nuptials in bad faith, they by no means deserve the grace of dispensation, as the Council of Trent disposes, Sess. XXIV. cap. V. de Reform. Matrim." [And therefore then they obtain it with greater difficulty, yet today more easily than formerly.]

11. "Danger of mixed Matrimony, or of celebrating it before a non-Catholic minister." [Existing in the individual and on account of particular circumstances. But common danger, arising somewhere from the greater number of non-Catholics, can indeed have the place of an impulsive cause, but not of a final one.] "When there is present danger that those wishing to contract Matrimony even in one of the greater degrees, from denial of dispensation, would approach a non-Catholic minister for nuptials to be celebrated, the authority of the Church having been spurned, a just cause for dispensing is found, because there is present not only the most grave scandal of the faithful, but also fear of perversion and of defection from the Faith in those acting in such a way and despising the impediments of Matrimony, especially in regions where heresies rage with impunity. This Sacred Congregation taught this in the Instruction given April 17, 1820, to the Archbishop of Quebec. Likewise when the Apostolic Vicar of Bosnia had asked whether he could grant dispensation to those Catholics who put forward no other motive than mad love, and at the same time it was foreseen that, dispensation being denied, they would enter marriage before an infidel judge, the Sacred Congregation of the Holy Office, on Wednesday, August 14, 1822, decreed: 'The Orator must be answered that, in the exposed case, he may use the faculties committed to him in Form II, as he shall judge expedient in the Lord.' The same must be said concerning the danger that the Catholic party would dare to celebrate Matrimony with a non-Catholic."

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

13. "Danger of civil Matrimony. From the things said it follows that probable danger that those who seek dispensation, if they do not obtain it, would celebrate only civil Matrimony, as they say, is a legitimate cause for dispensing."

14. "Removal of grave scandals."

15. "Cessation of public concubinage."

16. "Excellence of merits, when someone has merited very well of Religion, either by fighting against the enemies of the Catholic Faith, or by liberality toward the Church, or by doctrine, virtue, or in another way."

Sometimes it happens that one cause taken separately is not sufficient, but, joined with another, is reputed grave and consequently suffices.

Dispensation is also given "from certain reasonable causes" (i.e. without the causes needing to be expressed), or dispensation "without cause" (i.e. without a cause expressed), namely when from the pious work which is imposed by way of compensation, the cause of dispensation arises.

Quaer. 2° What things must necessarily be expressed by law, under penalty of invalidity, in the petition for dispensation?

Resp. From the same Instruction, besides the true and legitimate moving cause, the following are to be expressed:

1. "The name and surname of the Orators" [unless fictitious names are to be used, as will be said n. 1627. II], "each to be written distinctly and neatly and without any abbreviation of letters."

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

3. "Also the lowest species of the impediment: whether it is consanguinity, or affinity, arisen from licit or illicit copula; public honesty drawing origin from betrothals, or from ratified Matrimony; in the impediment of crime, whether it came from spouse-killing with a promise of Matrimony, or from spouse-killing with adultery, or from adultery alone with a promise of Matrimony; in spiritual kinship, whether it is between the one lifting and the one lifted, or between the one lifting and the parent of the one lifted."

4. "The degree of consanguinity or affinity, or of honesty from ratified Matrimony, and whether it is simple or mixed, not only the more remote, but also the nearer, as also the line, whether it is direct or transverse; likewise whether the Orators are joined by a double bond of consanguinity, both from the father's side and from the mother's side." [If the Orators are in an unequal line, the nearer degree must also be expressed, and which sex is nearer to the stock. This, however, is not required for validity unless the nearer degree is the first. (upsilon) p. 399.]

5. "The number of impediments, e.g. if there is double or multiple consanguinity or affinity, or if besides kinship there is also affinity, or any other impediment whatsoever, whether diriment or impedient." [Which can be taken away only by dispensation and has not yet been removed. In order that the dispensation be valid, all impediments and circumstances necessarily to be exposed must be expressed conjointly in the same supplicatory libellus, except: a) in the case of which n. 1628. q. 1°. q. 2°; b) according to the more probable opinion of St. Alphonsus, in the case in which one impediment is not increased by the other, as vow and consanguinity; consanguinity and machination.]

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

7. "Incestuous copula had between the betrothed before the execution of the dispensation, whether before or after its impetration, whether with the intention of more easily obtaining dispensation, or even with such intention excluded, and whether the copula is publicly known or even occult. If these things are kept silent, dispensations concerning any prohibited degrees whatsoever of consanguinity, affinity, spiritual and legal kinship, and also public honesty, are subreptitious and valid nowhere and in no way, as the Sacred Congregation of the Holy Office declared, Wednesday, August 1, 1866. But in asking dispensation concerning an impediment of affinity of the first or second degree of the collateral line, if the impediment arises not only from Matrimony consummated with the deceased spouse of the Orator or Oratrix, but also from ante-matrimonial or fornicatory copula perpetrated with the same deceased person before Matrimony was entered with that person, it is not necessary that mention be made of illicit copula of this kind, as is clear from the response of the Sacred Penitentiary of March 29, 1842, approved by Gregory XVI of holy memory, to the Bishop of Namur; and that this is general, the same tribunal declared by letters of December 10, 1874." [But in order that incestuous copula must be declared, it is necessary a) that it was had between those who were bound by an impediment either of consanguinity, or affinity, or spiritual or legal kinship, or public honesty; b) that the female vessel was penetrated. But it is not required that those things followed which are required both for generation of offspring and for perfect copula. Thus Leo XII apud Feije; c) that, if there is not question of dispensation in the form of the poor, it was formal, i.e. perpetrated with knowledge of the impediment. Concerning copula, unless there is suspicion, the betrothed are not to be questioned. There is no dispensation for the easier impetration of which copula has falsely been alleged. To St. Alphonsus (L. VI. 1134) it is most probable that, copula already having been exposed, the intention of more easily obtaining dispensation does not necessarily have to be expressed in the case in which other causes sufficient of themselves are set forth in the supplica.]

Quaer. 3° What must be done in doubt whether a cause falsely alleged was final or impulsive, or whether it was true or false?

Resp. See n. 162. 5°.

Quaer. 4° When the cause of dispensation ceases, does the dispensation cease, e.g. if the offspring to be legitimated by Matrimony has died, etc.?

Resp. 1° Affirmatively, if the cause is final, and ceases totally and certainly before the dispensation is expedited, or is made by the Bishop or by another to whom it had been committed by the Pontiff. Cf. n. 164. L. VI. 1182.

Resp. 2° Negatively, if the cause ceases when the dispensation has already been expedited and communicated by the delegated person to the suppliants, even if it ceases before the celebration of Matrimony. The reason is that through the dispensation the impediment has already been removed. L. VI. 1182.

Quaer. 5° Does he who, dispensation having been obtained from the impediment of affinity from illicit copula, e.g. with a consanguineous woman of the bride, again sins with the same woman before Matrimony, need a new dispensation?

Resp. 1° Negatively, if the dispensation has not yet been committed to execution by the delegated person; because such dispensations do not take effect from the day of expedition, but from the time of execution. - Thus all.

Resp. 2° Indeed negatively, even if the dispensation has been committed to execution. The reason is that the impediment of affinity has already been removed by the dispensation as regards the effect of contracting Matrimony. - Thus, as more probable, St. Alphonsus, L. VI. 1140.

But if, the Matrimony having been contracted, he should again sin with the same consanguineous woman of the wife, he is deprived of the right of asking the debt, because the dispensation, according to the style of the Curia, was conceded for the effect of contracting Matrimony, not for sinning more freely.

But he would need a new dispensation if he sinned with another consanguineous woman of the bride before Matrimony, even after the dispensation had been expedited, because a new affinity would be contracted.

Quaer. 6° Is a new dispensation required if, dispensation having been obtained from the impediment of consanguinity, or another of those of which there has been treatment in this number q. 2. Resp. 7, incestuous copula has intervened between the betrothed?

Resp. 1° Affirmatively, if the copula was had before the execution of the dispensation. Thus from common interpretation, and from the style of the Roman Curia requiring the declaration of incest of this kind; for when this has been manifested, the Pontiff imposes a greater penance on the suppliant. It is also confirmed from the Declaration of the Sacred Congregation in the month of May in the year 1634. Then too revalidation of the prior dispensation can be sought simply, which revalidation they call: Perinde valere, and the faculty of which is accustomed to be conceded by the Holy See to Bishops asking it. Concerning this faculty see Feije.

Resp. 2° But negatively, if the copula was had after the execution of the dispensation. The reason is that, the dispensation having been conceded, and therefore the prohibition of Matrimony having been removed, the malice also of incest ceases. It is also established from the same Sacred Congregation.

Quaer. 7° Is a new dispensation required for consanguineous persons, if, dispensation having been sought and the circumstance of incest expressed in the petition, copula is repeated by the same persons?

Resp. Affirmatively, as it seems, provided a) there is question of a dispensation - not yet fulminated; - of the external forum; - in the form of the poor, or indeed ordinary, but enjoining separation, the copula having been repeated after the separation enjoined; b) the letters of dispensation do not contain the faculty "of absolving from the guilt of incest, even perhaps repeated up to the present execution." - Otherwise, it is certainly denied. Concerning the case in which the Bishop dispenses, see n. 1628. q. 6°. § Note.

Quaer. 8° If someone seeks a second dispensation in the same matter after first obtaining another, must he express the first?

Resp. 1° Affirmatively, if the impediment was contracted from some crime. The reason is that relapse into the same crime draws the Superior back from dispensing.

Resp. 2° Negatively, if the impediment is not from some crime or is from a different crime. - Thus St. Alphonsus and others commonly.

n. ¶1626.

1626. Resolves. - 1° As n. 162. 1°.

2° It is not necessary to say in the petition how often copula has been had with a consanguineous woman of the bride; because from various acts of copula there arises a single affinity; nevertheless copula had with several consanguineous women of the bride must be expressed; because from these so many different affinities are contracted: and, although these impediments are not diverse in species, nevertheless they are distinct in number. It is manifest from the Declaration of Benedict XIV.

3° Error in the name (if the change is minimal) or surname of the Orators, or of the diocese or parish, generally does not harm validity, provided the body is established, i.e. concerning the impediment, the cause, the identity of the person, etc. I said: generally; for sometimes it does harm, as can be seen apud Feije.

n. ¶20.

Point III. On the Mode of Asking and Executing Dispensation.

n. ¶1627.

1627. - For conceding dispensations of the Holy See, according to the various quality of impediments, two tribunals have been constituted at Rome, namely the Dataria and the Penitentiary.

I. Dataria. Recourse must be had to the Dataria for all notorious impediments, or those which are foreseen as going to come into the knowledge of others, or those which can be manifested without infamy, scandal, and other inconveniences.

II. Penitentiary. Recourse must be had to the Sacred Penitentiary for dispensations and faculties which regard the internal forum alone, namely for occult impediments. But in the postulate, the proper names of the spouses being kept silent, fictitious names are placed. - At present, however, it is conceded that the Penitentiary may be approached also for notorious impediments when dispensation is requested in the form of the poor; indeed, in extraordinary and grave cases, even for Orators who are not poor. - But in dioceses which are subject to the Sacred Congregation de Propaganda Fide, all dispensations are obtained through the organ of this Congregation, and this without tax, but not always without alms. Cf. Vol. I. p. LXXV. A. VI. 4°. D. 5°.

n. ¶1628.

1628. Questions. - Quaer. 1° In what way is dispensation to be sought if there are two impediments, of which one is public and the other occult?

Resp. If the occult impediment is defaming, the Orators can indeed consent that mention of it also be made in the supplication for the external forum; but then it is necessary to add to the petition of the Orators that this is being done. If their consent is not given, or cannot be sought, or does not seem to be sought, for the external forum recourse must be had to the Dataria, no mention of the occult matter having been made; but for the forum of conscience a supplication is instituted to the Penitentiary, in which for validity even the public impediment must be expressed, adding that its relaxation has been sought or will be sought from the Dataria.

Quaer. 2° Must recourse be had to the Sacred Penitentiary so that the circumstance of occult copula had among consanguineous persons, etc., may be manifested?

Resp. 1° It is certain that no obligation is given of exposing occult copula in a petition to the Dataria. The reason is that no one is held to defame himself, and besides this public revelation of occult incest is not prescribed.

Resp. 2° But this circumstance must be manifested to the Sacred Penitentiary. The reason is that it is generally prescribed that copula had between consanguineous persons, etc., who wish to enter Matrimony, be exposed. Now, since it is certain that no obligation is given of exposing occult copula in a petition to the Dataria - because no one is held to defame himself, nor is it said in the precept that public revelation of occult incest must be made - it follows that occult copula must at least be opened by secret manifestation before the Penitentiary, lest the law become altogether useless and exemption from a certain law be conceded without any cause. Several formerly held the opposite; but today there must be no further doubting concerning this, says St. Alphonsus, after the Bull Pastor bonus of Benedict XIV. The Responses of the Sacred Penitentiary of the year 1858 and July 20, 1869 confirm the doctrine of the Saint.

Quaer. 3° Is a dispensation sought in the form of the poor valid if the Orators are not poor?

Resp. Affirmatively. The reason is that obreption falls only upon the impulsive cause, not upon the motive or final cause; for poverty is not the reason on account of which dispensation is conceded, but on account of which it is conceded gratis. Hence another motive cause must always be present. - Thus St. Alphonsus, who says that this is established from the decision of the Sacred Congregation of September 9, 1679. Except: 1° a dispensation conceded by a Bishop by force of an Indult having the clause: "in favor only of those who are truly poor"; which clause is not found in the faculties which are accustomed to be conceded to our Bishops; 2° a dispensation conceded by the Sacred Penitentiary in a public impediment (n. 1627. II), in which case, according to the practice of this Sacred Tribunal, either another dispensation or a sanation is granted. - Each exception is clear from the Response of the Sacred Congregation of the Council, April 26 and June 28, 1873.

Quaer. 4° Who are to be judged poor?

Resp. From Canon Law they must be in some way miserable, since according to the style of the Curia the petition must be formed thus: "The Orators exist poor and miserable, and live from their labor and industry." In practice the state of fortune is to be exposed, or one must stand by the rules given by the Bishop.

From the Declaration of the Rectors of the Apostolic Dataria of the year 1841, this side of the mountains, those are to be reputed poor whose fortune does not exceed the value of 3,000 francs ($600); but those whose fortune does not exceed the value of 10,000 francs ($2,000) are called almost poor. - Bouvier.

Quaer. 5° In what way is dispensation to be executed?

Resp. 1° As regards dispensation of the Sacred Penitentiary, let it be done after absolution in these words, or similar ones: "By Apostolic authority I dispense with you concerning the impediment N., which you have incurred, that you may be able to enter Matrimony (or to perfect the one entered), and I render legitimate the offspring received (or to be received). In the name of the Father, etc."

No formula is prescribed under penalty of nullity, indeed not even under precept; for none is had in the Roman Ritual. If the confessor had omitted to legitimate offspring, he could repair this omission; for then he would continue the cause committed to him and not yet completed. - Bouvier.

Resp. 2° As regards dispensation of the Dataria, the one delegated to dispense 1° ought, for validity, to inquire into the truth of the petitions if the clause is present: "If you shall find that the petitions rest upon truth." Benedict XIV, const. Ad Apostolicae, seems at least always to require the verification of causes for validity. They except if, an inquiry having been made before the supplication, after the rescript there is sufficient certainty concerning the truth of the petitions; 2° he should send the dispensation by letters to the Pastor, that the latter may intimate it to the parties.

Dispensation from the Dataria must always be sought through the Bishop. But dispensation from the Penitentiary can be sought immediately by the Orator, or by another in his place. Nevertheless more securely and more easily this too is requested through the Bishop and with the name of the Orator kept silent.

Quaer. 6° In what way must dispensation be obtained from Bishops when they can dispense from an Indult?

Resp. The same rules which are held in the Roman Curia as necessary must necessarily be observed also in this case; because the mind of the Supreme Pontiff is that Bishops cannot use the Apostolic concession in another way. This is clear from the Response of the Sacred Penitentiary, May 1, 1858. (44) p. 427.

But a Bishop, dispensing by virtue of an Apostolic Indult, does not have to express, under penalty of nullity, as some wrongly suppose, that he dispenses as a delegate of the Holy See from an Indult of delegation conceded on such a day and year, and going to be valid for so many months or years. Except if this is prescribed in the Indult, and indeed under an irritating clause, of which kind is this: otherwise let them be null. - Hence it follows that matrimonial dispensations given informally by our Bishops are valid, and, with sufficient cause acceding, licit also; since form in their faculties, today at least, is not prescribed under penalty of nullity. The conclusion, otherwise evident, is confirmed from the Response of the Sacred Congregation of Inquisition, Monday, June 15, 1875, to doubt 3 from the Vicar General of St. Louis (United States), conceived in these words: "Whether dispensation concerning matrimonial impediments conceded by an Ordinary of this region according to the accustomed Apostolic faculties, although gravely illicit, is nevertheless valid when it is given informally, because the tenor of the faculty delegated by the Holy See, or the time for which, has not been expressed, or because it was conceded telegraphically in few words or only orally. This doubt arises from the omission of the clause: otherwise let them be null, in the faculties now conceded to Ordinaries of America; which clause formerly had been expressly placed in faculties of this kind."

The Sacred Congregation responded - "Affirmatively; provided the woman really has not been abducted, or if abducted, does not exist in the power of the abductor. But the clauses are to be observed to the exact rule, insofar however as the circumstances of things, times, and places can allow."

Note. - As regards the question whether a Bishop, dispensing from an Indult, can do this if incest or quasi-incest (n. 1625. q. 2. Resp. 7) or malicious intention (ib.) has intervened, of which there is no mention in the Indult, first indeed the circumstance of incest, etc., is evidently comprehended by those Indults by which the faculty of dispensing is given together with the faculty of legitimating offspring received, as is done for each part n. 6 Fac. Form. I. p. LXX, and for all and singular Extraordinary Faculties D (n. 7, p. LXXIV) and Extraordinary E (n. 4. § Besides, p. LXXV). Therefore no difficulty exists for our Bishops from this head. - But even if the Indult in no way mentions incest or malicious intention, nevertheless the celebrated Feije does not doubt that the Bishop can dispense. Consequently the same must be said concerning the repetition of incest, and concerning the revalidation of a dispensation conceded by a Bishop and invalid from some aforesaid cause. - But if in a case a double supplication is required, one in the external forum, the other in the forum of conscience, this can be made either to the Bishop or to the Major Penitentiary.

Besides, the Ordinary using an Indult of dispensing will be able to dispense with the clause: that the dispensation is going to be valid, even if incest committed or repeated is detected. But as often as this conditioned form is employed by him, penance also or other things must be conditionally enjoined by him; and these indeed afterwards, according as there is question of a public or occult matter, are imposed absolutely by the pastor or confessor detecting incest committed or repeated before Matrimony. Understand these things concerning strict power. As regards its use, prudence requires this: 1) that it not be employed spontaneously, unless perhaps for repetition of occult incest already expressed in the supplication; 2) if the confessor asks, it is indeed easily to be employed for the case just indicated, more rarely for incest not yet expressed; 3) for the external forum, or if the pastor asks, it seems altogether that one must abstain from a form of this kind. Feije, n. 720. 721.

Quaer. 7° What are the clauses which are customarily placed in dispensations from the Sacred Penitentiary?

Resp. They are the following, namely:

1° If it is so. This, unless he knows it from elsewhere, the executor is bound to inquire into, under penalty of nullity. Faith is to be given to the penitent, unless the delegated one certainly knows the opposite from knowledge received outside Confession. Feije, n. 748.

2° Sacramental Confession first having been heard. Therefore, according to this clause, Confession is necessary, and indeed before the delegated one himself.¹ - "Provided," however, "the confessor, executor of the letters of the Sacred Penitentiary, observes," thus the same Sacred Penitentiary, "the things prescribed to him in the same letters, then dispensations given by force of the same letters will be valid, even if it happens that the penitent confesses nullly and sacrilegiously and receives absolution from sins. But if the confessor notices that the penitent, from his indisposition, cannot rightly be absolved from sins, he must take care to dispose the same penitent rightly, or, if he cannot be disposed at present, together with absolution from sins also to defer the aforesaid dispensations, unless perhaps some urgent necessity counsels accelerating the same dispensations."² The dispensation must be conceded within Confession. (N) p. 409.

3° The occasion of sinning having been removed. It is understood, if the occasion is voluntary, which in fact is to be removed; but if necessary, let it at least be taken away from the soul, by rendering it remote from proximate through the due means.

4° Provided the impediment is occult. See n. 1564.

5° A grave penance having been enjoined on him, etc., besides the sacramental penance. Grave is that which corresponds to a work which is enjoined by the Church under grave obligation (n. 1382. q. 4°); gravest, if the grave penance is doubled or tripled; salutary, if it is not only proportioned to the gravity of the sin (according to the powers of the penitent), but also medicinal (n. 1389); long, if it is to be continued weekly for a year (according to the gravity of the sin); lasting, which is extended to 3 years; but perpetual, which embraces the whole life, not as regards individual days (unless this is expressly required in the Rescript), but as regards stated days.³ - Yet one must beware lest a penance be chosen from which the penitent's crime could be detected. - But if some penance imposed by the Penitentiary itself is found, it cannot be passed over.⁴

6° The present letters having been torn up, under penalty of excommunication latae sententiae. This tearing-up must be done immediately; but understand this morally, namely at least within three days after the dispensation has been executed. But if in the letters the clause of tearing-up has not been placed, as it is not placed when Matrimony has not yet been contracted, then there is no obligation of tearing them up; but a dispensation of this kind must be cautiously noted by the Pastor in a book which cannot be looked at by anyone else, so that he himself, when there is need, may be able to make proof of the dispensation obtained. (45) p. 428.

Quaer. 8° In what way can the monetary tax which is imposed on Orators be reconciled with the Decree of the Council of Trent commanding that dispensation be conceded GRATIS?

Resp. If money received on the occasion of dispensations turned to the benefit of the one dispensing, the mandate of the Council of Trent would be violated, and the dispensation would be simoniacal; but the matter does not stand thus; for the money is received only as an alms to be expended on pious works. Cf. n. 357. 6°, and, as regards us, p. LXXV. A. 1°. C. 4°. D. 5°.

Quaer. 9° In what way is a dispensation of the Sacred Penitentiary to be executed if the impediment is known and common to each contracting party?

Resp. In this case each one must be dispensed by his or her respective confessor. This is clear from the response of the Sacred Penitentiary, November 15, 1748. - But the same Rescript can serve two confessors, and is to be torn up by him who later executes it with his penitent. But if the impediment is known only to one, a single execution is required. - Collet, Traite des Dispenses. - Bouvier, etc.¹

Quaer. 10° What, especially in these Provinces of the United States, must be observed particularly as regards the mode of 1) procuring, 2) conceding, and 3) executing matrimonial dispensations?

Resp. ad 1um. 1° Let the Pastor observe the following: "The mere desire of entering some Matrimony is not sufficient, nor a greater future abundance of temporal things, nor another motive of this kind; but a cause consonant with the canons is required. Therefore the Pastor or confessor should first indeed inquire concerning the cause; if he sees that it is certainly insufficient, let him prudently declare this, and not have recourse; if it is sufficient, or perhaps sufficient, let him not immediately agree, but, if it can be done, let him gently dissuade; but if they do not desist, or the Matrimony is either necessary or advisable, let him assist the parties by his office, yet never inconsiderately making a certain hope of obtaining dispensation."¹

"If sufficient causes" seem "to the Pastor" to be present, let him "prudently" admonish the Orators, "... that no grace ... will be obtained, unless the petitions rest upon truth. Finally, if, with conscience safe, without respect to gain or favor of the suppliants, all things having been well weighed, he judges that they can legitimately be dispensed, then in the supplicatory libellus let him expose the species of the fact neatly and sincerely, and let him diligently beware lest he alter or change it in any way in substantial matters, but let him strictly adhere to those things which were exposed to him by the Orators, and much more let him abstain lest he force in, with detriment to his own soul, something false or fictitious invented from his own ingenuity for obtaining the grace more easily. Moreover, let him cautiously admonish the Orators concerning those things which we have said above" (n. 1625. q. 2°. Resp. 6. 7; q. 5°. Resp. 2°; q. 8°) "concerning copula had between them before or after the petition."²

2° "Because ... Bishops in these provinces have ample faculties of dispensing by special delegation, it will very rarely happen that application must be made immediately to the Dataria or the Sacred Penitentiary, but rather to the Bishop of the Diocese."³

But if recourse cannot be had to the Bishop, either because he lacks the faculty, or because the sacramental seal obstructs it, in the former case recourse should be had to Rome through him, in the latter directly, and indeed through the Sacred Congregation de Propaganda Fide, addressing the Pontiff for the external forum, and the Major Penitentiary for the internal forum.⁴

3° For matrimonial dispensations, even of the internal forum, a written supplication is more prudent; for thus the case and the petitions will be able to be weighed better by the Ordinary.⁵

Resp. ad 2um. 1° As often as the Ordinary dispenses from delegated faculty, let him observe those things which were said in this number, q. 6°.

2° If he dispenses by quasi-ordinary right (see n. 1623. II), he will act more prudently if he concedes the dispensation in writing; for thus he will weigh both the case and the petitions better, and will place the due clauses more certainly.⁶

3° "It seems greatly to be desired that ... the Bishop employ some officials in dispensations concerning public impediments, and others concerning occult impediments, because otherwise the secret in occult matters ... sometimes can scarcely be preserved." See other things apud Feije, de imp. n. 722.

Resp. ad 3um. Let those things be observed which were said in this number, q. 5°. 7°. 9°, and which are to be said below.

See p. 303 for formulas for requesting certain matrimonial dispensations. Concerning defects of dispensations and their sanation, (T) p. 412.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 61 passages

Ch. VI, Article II: Concerning the Authority of Dispensing

n. 179.

- Since it belongs to the Roman Pontiff alone to constitute impediments to matrimony, whether merely prohibiting or diriment, he alone also dispenses by proper and native right, as in his own law.

n. ¶6394.

But in fact, whether by a disposition of common law or by special indults, the Supreme Pontiff grants to others part of his dispensatory power, and therefore now we must treat of the competence of diverse persons for granting dispensations from matrimonial impediments.

Ch. VI, Art. II, § 1. Concerning the Power of the Roman Pontiff

n. 180.

- I. Scope of his power.

n. ¶6396.

a) His power of dispensing extends to all impediments of ecclesiastical law. For the supreme legislator of the Church, by that very fact, can dispense in any law of the Church.

n. ¶6397.

b) Neither the Pope nor any man can dispense from impediments of absolute divine law, whether natural or positive.

n. ¶6398.

c) But if the impediment arises from an obligation freely undertaken, which is not altogether indissoluble from divine law, the Pope, as vicar of Christ, can remove it. And by acting thus he does not properly dispense in divine law, but only improperly, namely by changing the matter of the obligation.

n. ¶6399.

Thus he dispenses from the impediment of vow and from bond, when there is question of a matrimony ratified only.

n. ¶6400.

d) To him alone belongs the declaration of doubtful divine law.

n. 181.

- II. Exercise of that power.

n. ¶6402.

a) The Roman Pontiff never dispenses in impediments concerning which it is disputed whether they are of the law of nature or of positive divine law, for example in the impediment of consanguinity in every degree of the direct line and in the first degree of the collateral line.

n. ¶6403.

b) Even with respect to merely ecclesiastical impediments, in practice he does not use his whole faculty of dispensing.

n. ¶6404.

He never dispenses in the impediment of the episcopate, and from the impediment of public conjugicide only in danger of death.

n. ¶6405.

Very rarely, and only from a most grave cause, does he grant dispensation in the first degree of affinity of the direct line after consummated matrimony, in raptus, and in the presbyterate.

n. ¶6406.

Rarely and from a grave cause he dispenses in occult conjugicide, in disparity of worship outside mission regions, in age, sacred order, and solemn profession.

n. ¶6407.

More frequently, and on account of less grave causes, in the other impediments of ecclesiastical law.¹

¹ Cfr. Capello, cited work, n. 224.

n. 182.

- III. Competence of the Sacred Congregations.

n. ¶6409.

Almost always the Roman Pontiff uses the organ of the Sacred Congregations for dispensing in a matrimonial matter.

n. ¶6410.

a) The Holy Office dispenses any faithful whatsoever from impediments which have a special connection with the faith, i.e., from the impediments of disparity of worship and mixed religion.

n. ¶6411.

b) The Sacred Congregation of Religious dispenses religious from the vow of chastity.

n. ¶6412.

c) The Sacred Congregation for the Discipline of the Sacraments grants all other dispensations for the external forum, provided there is not question of Orientals.

n. ¶6413.

d) The Sacred Congregation for the Oriental Church is competent for all impediments, except those which pertain to the Holy Office, whenever at least one party is of an oriental rite.

n. ¶6414.

e) The Sacred Penitentiary has its jurisdiction extended to all impediments whatever, but only for the internal forum.

n. ¶6415.

To the internal forum belongs an impediment occult by nature and by fact.

n. ¶6416.

Nevertheless, probably the Sacred Penitentiary is competent also with regard to certain impediments not altogether occult by fact, or indeed public by nature, but occult by fact. Therefore the Sacred Penitentiary can be approached until the Holy See declares otherwise:

n. ¶6417.

If, with respect to matrimony to be contracted, the impediment of vow, of crime, and of consanguinity from illicit copula is known to a few and altogether discreet persons (which must be declared in the petition).

n. ¶6418.

When there is question of a matrimony contracted, for occult spiritual kinship and consanguinity even in the second degree, "if it has remained occult for at least ten years and the petitioners contracted publicly together and lived together and were held as legitimate spouses."

n. ¶6419.

For such power belonged to the Sacred Penitentiary before the Code, nor is it certain that it has been revoked.²

² Cfr. Vermeersch-Creusen, cited work, n. 304, 4. - Capello, cited work, n. 227.

Ch. VI, Art. II, § 2. Concerning the Power of the Local Ordinary

n. 183.

- The local Ordinary,¹ especially in urgent circumstances, enjoys broad ordinary power attributed to him by law. Moreover he almost always has special faculties delegated to him by the Holy See.

¹ Cfr. above, n. 59, a.

n. 184.

- I. Power of the local Ordinary in the ordinary course of affairs.

n. ¶6422.

He can dispense: a) in banns; b) in a doubt of fact, provided there is question of impediments in which the Pope is accustomed to dispense; c) in non-reserved vows.

n. ¶6423.

II. Power of dispensing in extraordinary circumstances.

n. 185.

- a) When danger of death is urgent.

n. ¶6425.

"Ordinaries of places, for providing for conscience and, if the case should bear it, for the legitimation of offspring, can dispense both from the form to be observed in the celebration of matrimony and from all and individual 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 after consummated matrimony, with respect to their own subjects dwelling anywhere and all actually staying in their own territory, scandal having been removed, and, if dispensation is granted upon disparity of worship or mixed religion, the customary cautions having been furnished." (Can. 1043.)

n. ¶6426.

Conditions required so that the Ordinary can dispense.

n. ¶6427.

1° Danger of death, grave, certain or seriously probable, from whatever cause it proceeds, affecting either party.

n. ¶6428.

2° Necessity of providing for conscience or for the legitimation of offspring.

n. ¶6429.

Either necessity suffices according to the common sentence of doctors.

n. ¶6430.

To provide for conscience, i.e., to remove sin or the proximate occasion of sin in any matter whatever.

n. ¶6431.

What offspring can be legitimated?

n. ¶6432.

R. Certainly natural or even incestuous offspring. More probably and more commonly they judge that sacrilegious or adulterine offspring cannot be legitimated.

…and 21 more passages — all of them are listed on the topic page.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 24 passages

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

n. 919.

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.

n. 919.

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.

923. Observations. - 1. The pastor, or the priest assisting at matrimony, should immediately inform the Ordinary of the place concerning a dispensation granted for the external forum; and it should be noted in the book of marriages (can. 1046).

Unless the rescript of the S. Penitentiary states otherwise, a dispensation granted in the internal non-sacramental forum over an occult impediment should be noted in a book diligently kept in the secret archive of the Curia; in which case another dispensation for the external forum is not necessary, even if afterward the occult impediment should become public (can. 1047).

A dispensation granted by a confessor in the sacramental internal forum can in no way be noted; but if an occult impediment thus dispensed should become public, another dispensation for the external forum is necessary (ibid.).

To guard against this inconvenience, the confessor in practice should not use his power, as far as possible, except concerning impediments occult by nature and in fact. For others which could become public, he should send the penitent to the pastor or his delegate; or ask from the penitent permission to approach the pastor and seek a dispensation; or, if he himself is pastor or the assisting priest, with the penitent's permission, outside confession he should dispense, not as confessor but as pastor or assistant; only if these things are impossible, and the case urges, should he dispense in confession, with the promise of seeking a dispensation for the external forum or of committing the matter to the S. Penitentiary.

If the petition for dispensation has been sent to the Holy See, the Ordinary should not use his faculties except from a grave and urgent cause; and in this case he should immediately warn the Holy See of the matter (can. 1048, coll. 204).

Concerning the faculty of cumulating dispensations, or of dispensing in several impediments occurring together in the same case, the following norms have force:

a. In matrimonies whether contracted or to be contracted, one who enjoys a general indult of dispensing over a certain impediment can, unless something else is expressly prescribed in the indult itself, dispense over it even if the same impediment is multiple (can. 1049, § 1).

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

Vol. II, Tr. XVIII, Ch. VI, Art. II, § I. On Diriment Impediments in General · Vol. II, Tr. XVIII, Chapter VII. On the Celebration of Marriage · Vol. II, Tr. XVIII, Chapter VIII. On Matrimonial Dispensations

c. If at some time with the public impediment or impediments over which someone can dispense from indult there concurs another impediment over which he cannot dispense, the Apostolic See must be approached for all; - if, however, the impediment or impediments over which he can dispense are discovered after a dispensation has been impetrated or obtained from the Holy See, he will be able to use his faculties (can. 1050), i.e., once the rescript has been sent or only signed, although not yet received or committed to execution.

Palmieri, On Christian Marriage

Dominic Palmieri, S.J. — 39 passages

Ch. IV, Thesis XXXV

n. ¶780.

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

n. XXXV, I.

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

n. ¶782.

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

n. ¶783.

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

n. XXXV, II.

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

n. ¶785.

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

n. XXXV, III.

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

n. ¶787.

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

n. XXXV, IV.

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

n. ¶789.

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

n. XXXV, V.

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

n. ¶791.

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

n. ¶792.

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

n. XXXV, VI.

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

n. ¶794.

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

n. ¶795.

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

n. ¶796.

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

n. ¶797.

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

n. ¶798.

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

n. ¶799.

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

n. XXXV, VII.

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

n. ¶801.

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

n. XXXV, VIII.

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

n. ¶803.

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

n. ¶804.

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

n. ¶805.

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

n. ¶806.

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

n. ¶807.

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

n. ¶808.

Corollary

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

n. ¶809.

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

n. ¶810.

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

n. ¶811.

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

n. ¶812.

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

n. ¶813.

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

n. ¶814.

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

n. ¶815.

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

n. ¶816.

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

n. ¶817.

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

n. ¶818.

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

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 3 passages

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

n. 874, Q. 12.

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

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

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

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

n. 913, Q. 9.

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

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

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

n. 919.

Point I. On the Power of Dispensing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ Cf. Addenda, p. 1137, n. 96.

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

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

⁴ Cf. Addenda, p. 1119, n. 71.

Concina, Compendium

Daniele Concina, O.P. — 5 passages

Diss. II, Chapter III — On the power and causes of dispensing in the impediments recounted

n. I.

I. QUESTION I. Who has power of dispensing from diriment impediments? ANSWER. The common opinion of theologians is that, use and custom acceding, the Roman Pontiff alone by ordinary right dispenses from the aforesaid impediments, bishops and Legates a latere being excluded.

n. II.

II. QUESTION II. Whether bishops, urgent necessity pressing, can dispense from some diriment impediment before matrimony is contracted? ANSWER. The common opinion affirms it, provided the necessity be urgent and grave, and access to the Supreme Pontiff be not open, and there be danger of infamy or of incontinence or of another evil in delay. No express law, no canon declares that a bishop cannot perform in his diocese in these cases those things which are necessary for the salvation of his sheep. From custom and use alone do the Supreme Pontiffs dispense in impediments of this kind. Therefore, when such necessity urges, who hinders a dispensation from being sought from the Pontiff, and being granted otherwise by a bishop? Two extremes in this as in the rest are to be declined: both an excessive facility of dispensing without a lawful cause, and an excessive severity of straitening the authority of bishops, which of its own nature is only for the common good of the Church, restricted by the Supreme Pontiffs. Therefore as often as the common good demands, and the Pontiff cannot be approached, and there is danger in delay, bishops can dispense, both before and after matrimony contracted.

n. IV.

IV. QUESTION IV. From what impediments can a bishop dispense outside the case of necessity? ANSWER. Bonacina, Henríquez, Sánchez, Castropalao, and the Salmanticenses teach that bishops can dispense in an impediment supervening upon matrimony on account of affinity and spiritual kinship, and in a simple vow of chastity, that the spouses may ask the debt of one another, although there be no urgent necessity; and this, they say, is established from lawful custom.

n. VI.

VI. QUESTION V. Do superiors sin who dispense from impediments without a cause? ANSWER. It is agreed among all that both those granting and those seeking a dispensation without a cause sin. Authors dispute whether it be a mortal or a venial sin. Suárez, Bellarmine, Toletus, and other graver theologians affirm that it is mortal. This opinion is true. St. Bernard calls a dispensation without a cause a cruel dissipation. Who does not see that to trample down at pleasure laws passed for the common good of the Church is a deadly sin? Smallness of matter can excuse from grave fault.

n. VII.

VII. QUESTION VI. Is a dispensation of this kind granted without a cause valid? ANSWER. Theologians commonly teach that a dispensation of an inferior in a superior's law without a cause is null. Hence they infer that a bishop dispenses invalidly in a pontifical law without a cause. Similarly that the Pope dispenses invalidly in a vow, in an oath, or in any other divine law, a just cause being taken away.

Slater, Cases II

Thomas Slater, S.J. — 9 passages

Slater, Cases II, Matrimony, Case 34. Which Bishop Has Jurisdiction?