Catholic Encyclopedia (1913)/Dispensation
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Dispensation is an act whereby in a particular case a lawful superior grants relaxation from an existing law. This article will treat:
I. Dispensation in General;
II. Matrimonial Dispensations.
For dispensations from vows see VOWS and RELIGIOUS ORDERS; and from fasting and abstinence, FAST, ABSTINENCE.
I. DISPENSATION IN GENERAL
Dispensation differs from abrogation and derogation, inasmuch as these suppress the law totally or in part, whereas a dispensation leaves it still in vigour; and from epikeia, or a favourable interpretation of the purpose of the legislator, which supposes that he did not intend to include a particular case within the scope of his law, whereas by dispensation a superior withdraws from the power of the law a case which otherwise would fall under it. The raison d'être for dispensation lies in the nature of prudent administration, which often counsels the adapting of general legislation to the needs of a particular case by way of exception. This is peculiarly true of ecclesiastical administration. Owing to the universality of the Church, the adequate observance by all its members of a single code of laws would be very difficult. Moreover, the Divine purpose of the Church, the welfare of souls, obliges it to reconcile as far as possible the general interests of the community with the spiritual needs or even weaknesses of its individual members. Hence we find instances of ecclesiastical dispensations from the very earliest centuries; such early instances, however, were meant rather to legitimize accomplished facts than to authorize beforehand the doing of certain things. Later on antecedent dispensations were frequently granted; as early as the eleventh century Yves of Chartres, among other canonists, outlined the theory on which they were based. With reference to matrimonial dispensations now common, we meet in the sixth and seventh centuries with a few examples of general dispensations granted to legitimize marriages already contracted, or permitting others about to be contracted. It is not, however, until the second half of the eleventh century that we come upon papal dispensations affecting individual cases. The earliest examples relate to already existing unions; the first certain dispensation for a future marriage dates from the beginning of the thirteenth century. In the sixteenth century the Holy See began to give ampler faculties to bishops and missionaries in distant lands; in the seventeenth century such privileges were granted to other countries. Such was the origin of the ordinary faculties (see FACULTIES, CANONICAL) now granted to bishops.
(1) Kinds of Dispensation
- (a) A dispensation may be explicit, tacit, or implicit, according as it is manifested by a positive act, or by silence under circumstances amounting to acquiescence, or solely by its connexion with another positive act that presupposes the dispensation.
- (b) It may be granted in foro interno, or in foro externo, according as it affects only the personal conscience, or conscience and the community at large. Although dispensations in foro interno are used for secret cases, they are also often granted in public cases; hence they must not be identified with dispensations in casu occulto.
- (c) A dispensation may be either direct or indirect, according as it affects the law directly, by suspending its operation, or indirectly, by modifying the object of the law in such a way as to withdraw it from the latter's control. For instance, when a dispensation is granted from the matrimonial impediment of a vow, the pope remits the obligation resulting from the promise made to God, consequently also the impediment it raised against marriage.
- (d) A dispensation may be in formâ gratiosâ, in formâ commissâ, or in formâ commissâ mixtâ. Those of the first class need no execution, but contain a dispensation granted ipso facto by the superior in the act of sending it. Those of the second class give jurisdiction to the person named as executor of the dispensation, if he should consider it advisable; they are, therefore, favours to be granted. Those of the third class command the executor to deliver the dispensation if he can verify the accuracy of the facts for which such dispensation is asked; they seem, therefore, to contain a favour already granted. From the respective nature of each of these forms of dispensation result certain important consequences that affect delegation, obreption, and revocation in the matter of dispensations (see DELEGATION; OBREPTION; REVOCATION).
(2) The Dispensing Power
It lies in the very notion of dispensation that only the legislator, or his lawful successor, can of his own right grant a dispensation from the law. His subordinates can do so only in the measure that he permits. If such communication of ecclesiastical authority is made to an inferior by reason of an office he holds, his power, though derived, is known as ordinary. If it is only given him by way of commission it is known as delegated power. When such delegation takes place through a permanent law, it is known as delegation by right of law. It is styled habitual, when, though given by a particular act of the superior, it is granted for a certain period of time or a certain number of cases. Finally, it is called particular if granted only for one case. When the power of dispensation is ordinary it may be delegated to another unless this be expressly forbidden. When it is delegated, as stated above, it may not be subdelegated unless this be expressly permitted; exception is made, however, for delegation ad universitatem causarum i. e. for all cases of a certain kind, and for delegation by the pope or the Roman Congregations. Even these exceptions do not cover delegations made because of some personal fitness of the delegate, nor those in which the latter receives, not actual jurisdiction to grant the dispensation, but an appointment to execute it, e. g. in the case of dispensations granted in formâ commissâ mixtâ (see above).
The power of dispensation rests in the following persons:
(A) The Pope He cannot of his own right dispense from the Divine law (either natural or positive). When he does dispense, e. g. from vows, oaths, unconsummated marriages, he does so by derived power communicated to him as Vicar of Christ, and the limits of which he determines by his magisterium, or authoritative teaching power. There is some diversity of opinion as to the nature of the pope's dispensing power in this respect; it is generally held that it operates by way of indirect dispensation: that is, by virtue of his power over the wills of the faithful the pope, acting in the name of God, remits for them an obligation resulting from their deliberate consent, and therewith the consequences that by natural or positive Divine law flowed from such obligation. The pope, of his own right, has full power to dispense from all ecclesiastical laws, whether universal or particular, even from the disciplinary decrees of œcumenical councils. Such authority is consequent on his primacy and the fullness of his immediate jurisdiction. A part of this power, however, he usually communicates to the Roman Congregations.
(B) The Bishop
Of his ordinary right, the bishop can dispense from his own statutes and from those of his predecessors, even when promulgated in a diocesan synod (where he alone is legislator). From the other laws of the Church he cannot dispense of his own right. This is evident from the nature of dispensation and of diocesan jurisdiction. A principle maintained by some authors, viz, that the bishop can grant all dispensations which the pope has not reserved to himself, cannot be admitted. But by derived right (either ordinary or delegated according to the terms of the grant) the bishop can dispense from those laws that expressly permit him to do so or from those for which he has received an indult to that effect. Moreover, by ordinary right, based on custom or the tacit consent of the Holy See, he may dispense:
- (a) in a case where recourse to the Holy See is difficult and where delay would entail serious danger;
- (b) in doubtful cases especially when the doubt affects the necessity of the dispensation or the sufficiency of the motives;
- (c) in cases of frequent occurrence but requiring dispensation, also in frequently occurring matters of minor importance;
- (d) in decrees of national and provincial councils, although he may not pronounce a general decree to the contrary;
- (e) in pontifical laws specially passed for his diocese.
It should be always remembered that to fix the exact limit of these various powers legitimate custom and the interpretation of reputable authors must serve as guides. Superiors of exempt religious orders (see EXEMPTION) can grant to their subjects, individually, those dispensations from ecclesiastical laws which the bishop grants by his ordinary power. When there is question of the rules of their order they are bound to follow what is laid down in their constitutions (see RELIGIOUS ORDERS).
(C) The Vicar-General
He enjoys by virtue of his appointment the ordinary dispensing power of the bishop, also the delegated powers of the latter, i. e. those granted him not personally but as ordinary (according to present discipline, the pontifical faculties known as ordinary); exception is made, however, for those powers which require a special mandate like those of the chapter Liceat, for dealing with irregularities and secret cases. The vicar capitular likewise has all the dispensing power which the bishop has of his own right, or which has been delegated to him as ordinary.
(D) Parish Priest
By his own ordinary right, founded on custom, he may dispense (but only in particular cases, and for individuals separately, not for a community or congregation) from the observance of fasting, abstinence, and Holy Days. He can also dispense, within his own territory, from the observance of diocesan statutes when the latter permit him to do so; the terms of these statutes usually declare the extent of such power, also whether it be ordinary or delegated. Dispensation being an act of jurisdiction, a superior can exercise it only over his own subjects, though as a general rule he can do so in their favour even outside his own territory. The bishop and the parish priest, except in circumstances governed by special enactments, acquire jurisdiction over a member of the faithful by reason of the domicile or quasi-domicile he or she has in a diocese or parish (see DOMICILE). Moreover, in their own territory they can use their dispensing power in respect of persons without fixed residence (vagi), probably also in respect of travellers temporarily resident in such territory. As a general rule he who has power to dispense others from certain obligations can also dispense himself.
(3) Causes for Granting Dispensations
A sufficient cause is always required in order that a dispensation may be both valid and licit when an inferior dispenses from a superior's law, but only for the liceity of the act when a superior dispenses from his own law. Nevertheless, in this latter case a dispensation granted without a motive would not (in se), except for some special reason, e. g. scandal, constitute a serious fault. One may be satisfied with a probably sufficient cause, or with a cause less than one that, of itself and without any dispensation, would excuse from the law. It is always understood that a superior intends to grant only a licit dispensation. Therefore a dispensation is null when in the motives set forth for obtaining it a false statement is made which has influenced not only the causa impulsiva, i. e. the reason inclining the superior more easily to grant it, but also the causa motiva, i. e. the really determining reason for the grant in question. For this, and in general for the information which should accompany the petition, in order that a dispensation be valid, see below apropos of obreption and subreption in rescripts of dispensation. Consequently a false statement or the fraudulent withholding of information, i. e. done with positive intention of deceiving the superior, totally annuls the dispensation, unless such statement bear on a point foreign to the matter in hand. But if made with no fraudulent intent, a false statement does not affect the grant unless the object of the statement be some circumstance which ought to have been expressed under pain of nullity, or unless it affects directly the motive cause as above described. Even then false statements do not always nullify the grant; for;
- (a) when the dispensation is composed of several distinct and separable parts, that part or element alone is nullified on which falls the obreption or subreption, as the case may be;
- (b) when several adequately distinguished motive causes are set forth, the dispensation is null and void only when the obreption or subreption in question affects them all.
It is enough, moreover, that the accuracy of the facts be verified at the moment when the dispensation is granted. Therefore, in the case of dispensations ex gratiâ (or in formâ gratiosâ), i. e. granting favours, the facts must be true when the dispensation is expedited; on the other hand, in the case of dispensations in formâ commissâ (and according to the more general opinion, in those in formâ commissâ mixtâ), the causes alleged must be verified only when the dispensation is actually executed.
(4) Form and Interpretation
It is proper, generally speaking, that dispensations be asked for and granted in writing. Moreover, the Roman Congregations are forbidden, as a rule, to receive petitions for dispensations or to answer them by telegram. The execution of a dispensation made on receipt of telegraphic information that such dispensation had been granted would be null, unless such means of communication had been officially used by special authorization from the pope. Except when the interest of a third party is at stake, or the superior has expressed himself to the contrary, the general dispensing power, whether ordinary or delegated, ought to be broadly interpreted, since its object is the common good. But the actual dispensation (and the same holds true of dispensing power given for a particular case) ought to be strictly interpreted unless it is a question of a dispensation authorized by the common law, or one granted motu proprio (by the superior spontaneously) to a whole community, or with a view to the public good. Again, that interpretation is lawful without which the dispensation would prove hurtful or useless to the beneficiary, also that which extends the benefits of the dispensation to whatever is juridically connected with it.
(5) Cessation of Dispensations
- (a) A dispensation ceases when it is renounced by the person in whose favour it was granted. However, when the object of the dispensation is an obligation exclusively resulting from one's own will, e. g. a vow, such renunciation is not valid until accepted by the competent superior. Moreover, neither the non-use of a dispensation nor the fact of having obtained another dispensation incompatible with the former is, in itself, equivalent to a renunciation. Thus, if a girl had received a dispensation to marry Peter and another to marry Paul, she would remain free to marry either of them.
- (b) A dispensation ceases when it is revoked after due notice to the recipient. The legislator can validly revoke a dispensation, even without cause, though in the latter case it would be illicit to do so; but without a cause an inferior cannot revoke a dispensation, even validly. With a just cause, however, he can do so if he has dispensed by virtue of his general powers (ordinary or delegated); not so, however, when his authority extended merely to one particular case, since thereby his authority was exhausted.
- (c) A dispensation ceases by the death of the superior when, the dispensation having been granted in formâ commissâ, the executor had not yet begun to execute it. But the grant holds good if given ex gratiâ (as a favour) and even, more probably, if granted in formâ commissâ mixtâ. In any case, the new pope is wont to revalidate all favours granted in the immediately previous year by his predecessor and not yet availed of.
- (d) A conditional dispensation ceases on verification of the condition that renders it void, e. g. the death of the superior when the dispensation was granted with the clause ad beneplacitum nostrum (at our good pleasure).
- (e) A dispensation ceases by the adequate and total cessation of its motive causes, the dispensation thereupon ceasing to be legitimate. But the cessation of the influencing causes, or of a part of the motive causes, does not affect the dispensation. However, when the motive cause, though complex, is substantially one, it is rightly held to cease with the disappearance of one of its essential elements.
II. MATRIMONIAL DISPENSATIONS
A matrimonial dispensation is the relaxation in a particular case of an impediment prohibiting or annulling a marriage. It may be granted:
- (a) in favour of a contemplated marriage or to legitimize one already contracted;
- (b) in secret cases, or in public cases, or in both (see IMPEDIMENTS OF MATRIMONY);
- (c) in foro interno only, or in foro externo (the latter includes also the former). Power of dispensing in foro interno is not always restricted to secret cases (casus occulti).
These expressions, as stated above, are by no means identical. We shall classify the most important considerations in this very complex matter, under four heads:
- (1) general powers of dispensation;
- (2) particular indults of dispensation;
- (3) causes for dispensations;
- (4) costs of dispensations.
(1) General Powers of Dispensation
(A) The Pope
The pope cannot dispense from impediments founded on Divine law-except, as above described, in the case of vows, espousals, and non-consummated marriages, or valid and consummated marriage of neophytes before baptism (see NEOPHYTES). In doubtful cases, however, he may decide authoritatively as to the objective value of the doubt. In respect of impediments arising from ecclesiastical law the pope has full dispensing power. Every such dispensation granted by him is valid, and when he acts from a sufficient motive it is also licit. He is not wont, however, out of consideration for the public welfare, to exercise this power personally, unless in very exceptional cases, where certain specific impediments are in question. Such cases are error, violence, Holy orders, disparity of worship, public conjugicide, consanguinity in the direct line or in the first degree (equal) of the collateral Line, and the first degree of affinity (from lawful intercourse) in the direct line. As a rule the pope exercises his power of dispensation through the Roman Congregations and Tribunals.
Up to recent times the Dataria was the most important channel for matrimonial dispensations when the impediment was public or about to become public within a short time. The Holy Office, however, bad exclusive control in foro externo over all impediments connected with or juridically bearing on matters of faith, e. g. disparity of worship, mixta religio, Holy orders, etc. The dispensing power in foro interno lay with the Penitentiaria, and in the case of pauperes or quasi-pauperes this same Congregation had dispensing power over public impediments in foro externo. The Penitentiaria held as pauperes for all countries outside of Italy those whose united capital, productive of a fixed revenue, did not exceed 5370 lire (about 1050 dollars); and as quasi-pauperes, those whose capital did not exceed 9396 lire (about 1850 dollars). It likewise had the power of promulgating general indults affecting public impediments, as for instance the indult of 15 Nov., 1907. Propaganda was charged with all dispensations, both in foro inferno and in foro externo, for countries under its jurisdiction, as was the Congregation of Extraordinary Ecclesiastical Affairs for all countries depending on it, e. g. Russia, Latin America, and certain vicariates and prefectures Apostolic.
On 3 November, 1908, the duties of these various Congregations received important modifications in consequence of the Constitution "Sapienti", in which Pope Pius X reorganized the Roman Curia. Dispensing power from public impediments in the case of pauperes or quasi-pauperes was transferred from the Dataria and the Penitentiaria to a newly established Congregation known as the Congregatio de Disciplinâ Sacramentorum. The Penitentiaria retains dispensing power over occult impediments in foro interno only. The Holy Office retains its faculties, but restricted expressly under three heads:
- (1) disparity of worship;
- (2) mixta religio;
- (3) the Pauline Privilege [see DIVORCE (IN MORAL THEOLOGY)].
Propaganda remains the channel for securing dispensations for all countries under its jurisdiction, but as it is required for the sake of executive unity, to defer, in all matters concerning matrimony, to the various Congregations competent to act thereon, its function is henceforth that of intermediary. It is to be remembered that in America, the United States, Canada and Newfoundland, and in Europe, the British Isles are now withdrawn from Propaganda, and placed under the common law of countries with a hierarchy. The Congregation of Extraordinary Ecclesiastical Affairs loses all its powers; consequently the countries hitherto subject to it must address themselves either to the Holy Office or to the Congregatio de Disciplinâ Sacramentorum according to the nature of the impediment.
It should be noted that the powers of a Congregation are suspended during the vacancy of the Holy See, except those of the Penitentiaria in foro interno, which, during that time, are even increased. Though suspended, the powers of a Congregation may be used in cases of urgent necessity.
(B) The Diocesan Bishops
We shall treat first of their fixed perpetual faculties, whether ordinary or delegated, afterwards of their habitual and temporary faculties. By virtue of their ordinary power (see JURISDICTION) bishops can dispense from those prohibent impediments of ecclesiastical law which are not reserved to the pope. The reserved impediments of this kind are espousals, the vow of perpetual chastity, and vows taken in diocesan religious institutes (see RELIGIOUS CONGREGATIONS), mixta religio, public display and solemn blessing at marriages within forbidden times, the vetitum, or interdict laid on a marriage by the pope, or by the metropolitan in a case of appeal. The bishop may also dispense from diriment impediments after the following manner: -
- (a) By tacit consent of the Holy See he can dispense in foro interno from secret impediments from which the pope is wont to exercise his power of dispensing, in the three following cases:
- (1) in marriages already contracted and consummated, when urgent necessity arises (i. e. when the interested parties cannot be separated without scandal or endangering their souls, and there is no time to have recourse to the Holy See or to its delegate) - it is, however, necessary that such marriage shall have taken place in lawful form before the Church, and that one of the contracting parties at least shall have been ignorant of the impediment;
- (2) in marriages about to be contracted and which are called embarrassing (perplexi) cases, i. e. where everything being ready a delay would be defamatory or would cause scandal;
- (3) when there is a serious doubt of fact as to the existence of an impediment; in this case the dispensation seems to hold good, even though in course of time the impediment becomes certain, and even public. In cases where the law is doubtful no dispensation is necessary; but the bishop may, if he thinks proper, declare authentically the existence and sufficiency of such doubt.
- (b) By virtue of a decree of the Congregation of the Inquisition or Holy Office (20 February, 1888) diocesan bishops and other ordinaries (especially vicars Apostolic, administrators Apostolic, and prefects Apostolic, having jurisdiction over an allocated territory, also vicars-general in spiritualibus, and vicars capitular) may dispense in very urgent (gravissimum) danger of death from all diriment impediments (secret or public) of ecclesiastical law, except priesthood and affinity (from lawful intercourse) in the direct line.
However, they can use this privilege only in favour of persons actually living in real concubinage or united by a merely civil marriage, and only when there is no time for recourse to the Holy See. They may also legitimize the children of such unions, except those born of adultery or sacrilege. In the decree of 1888 is also included the impediment of clandestinity. This decree permits therefore (at least until the Holy See shall have issued other instructions) to dispense, in the case of concubinage or civil marriage, with the presence of the priest and of the two witnesses required by the Decree "Ne temere" in urgent cases of marriage in extremis. Canonists do not agree as to whether bishops hold these faculties by virtue of their ordinary power or by general delegation of the law. It seems to us more probable that those just described under;
- (a) belong to them as ordinaries, while those under
- (b) are delegated.
They are, therefore, empowered to delegate the former; in order to subdelegate the latter they must be guided by the limits fixed by the decree of 1888 and its interpretation dated 9 June, 1889. That is, if it is a question of habitual delegation parish priests only should receive it, and only for cases where there is no time for recourse to the bishop.
Besides the fixed perpetual faculties, bishops also receive from the Holy See habitual temporary indults for a certain period of time or for a limited number of cases. These faculties are granted by fixed "formulæ", in which the Holy See from time to time, or as occasion requires it, makes some slight modifications. (See FACULTIES, CANONICAL.) These faculties call for a broad interpretation. Nevertheless it is well to bear in mind, when interpreting them, the actual legislation of the Congregation whence they issue, so as not to extend their use beyond the places, persons, number of cases, and impediments laid down in a given indult. Faculties thus delegated to a bishop do not in any way restrict his ordinary faculties; nor (in se) do the faculties issued by one Congregation affect those granted by another. When several specifically different impediments occur in one and the same case, and one of them exceeds the bishop's powers, he may not dispense from any of them. Even when the bishop has faculties for each impediment taken separately he cannot (unless he possesses the faculty known as de cumulo) use his various faculties simultaneously in a case where, all the impediments being public, one of them exceeds his ordinary faculties, it is not necessary for a bishop to delegate his faculties to his vicars-general; since 1897 they are always granted to the bishop as ordinary, therefore to the vicar-general also. With regard to other priests a decree of the holy Office (14 Dec., 1898) declares that for the future temporary faculties may be always subdelegated unless the indult expressly states the contrary. These faculties are valid from the date when they were granted in the Roman Curia. In actual practice they do not expire, as a rule, at the death of the pope nor of the bishop to whom they were given, but pass on to those who take his place (the vicar capitular, the administrator, or succeeding bishop). Faculties granted for a fixed period of time, or a limited number of cases, cease when the period or number has been reached; but while awaiting their renewal the bishop, unless culpably negligent, may continue to use them provisionally. A bishop can use his habitual faculties only in favour of his own subjects. The matrimonial discipline of the Decree "Ne temere" (2 Aug., 1907) contemplates as such all persons having a true canonical domicile, or continuously resident for one month within his territory, also vagi, or persons who have no domicile anywhere and can claim no continuous stay of one month. When a matrimonial impediment is common to both parties the bishop, in dispensing his own subject, dispenses also the other.
(C) Vicars Capitular and Vicars-General
A vicar capitular, or in his place a lawful administrator, enjoys all the dispensing powers possessed by the bishop in virtue of his ordinary jurisdiction or of delegation of the law; according to the actual discipline he enjoys even the habitual powers which had been granted the deceased bishop for a fixed period of time or for a limited number of cases, even if the indult should have been made out in the name of the Bishop of N. Considering the actual praxis of the Holy See, the same is true of particular indults (see below). The vicar-general has by virtue of his appointment all the ordinary powers of the bishop over prohibent impediments, but requires a special mandate to give him common-law faculties for diriment impediments. As for habitual temporary faculties, since they are now addressed to the ordinary, they belong also ipso facto to the vicar-general while he holds that office. He can also use particular indults when they are addressed to the ordinary, and when they are not so addressed the bishop can always subdelegate him, unless the contrary be expressly stated in the indult.
(D) Parish Priests and Other Ecclesiastics
A parish priest by common law can dispense only from an interdict laid on a marriage by him or by his predecessor. Some canonists of note accord him authority to dispense from secret impediments in what are called embarrassing (perplexi) cases, i. e. when there is no time for recourse to the bishop, but with the obligation of subsequent recourse ad cautelam, i. e. for greater security; a similar authority is attributed by them to confessors. This opinion seems yet gravely probable, though the Penitentiaria continues to grant among its habitual faculties a special authority for such cases and restricts somewhat its use.
(2) Particular Indults of Dispensation
When there is occasion to procure a dispensation that exceeds the powers of the ordinary, or when there are special reasons for direct recourse to the Holy See, procedure is by way of supplica (petition) and private rescript. The supplica need not necessarily be drawn up by the petitioner, nor even at his instance; it does not, however, become valid until he accepts it. Although, since the Constitution "Sapienti", all the faithful may have direct recourse to the Congregations, the supplica is usually forwarded through the ordinary (of the person's birthplace, or domicile, or, since the Decree "Ne temere", residence of one of the petitioners), who transmits it to the proper Congregation either by letter or through his accredited agent; but if there is question of sacramental secrecy, it is sent directly to the Penitentiaria, or handed to the bishop's agent under a sealed cover for transmission to the Penitentiaria. The supplica ought to give the names (family and Christian) of the petitioners (except in secret cases forwarded to the Penitentiaria), the name of the Ordinary forwarding it, or the name of the priest to whom, in secret cases, the rescript must be sent; the age of the parties, especially in dispensations affecting consanguinity and affinity; their religion, at 1east when one of them is not a Catholic; the nature, degree, and number of all impediments (if recourse is had to the Congregatio de Disciplinâ Sacramentorum or to the Holy Office in a public impediment, and to the Penitentiaria at the same time in a secret one, it is necessary that the latter should know of the public impediment and that recourse has been had to the competent Congregation). The supplica must, moreover, contain the causes set forth for granting the dispensation and other circumstances specified in the Propaganda Instruction of 9 May, 1877 (it is no longer necessary, either for the validity or liceity of the dispensation, to observe the paragraph relating to incestuous intercourse, even when probably this very thing had been alleged as the only reason for granting the dispensation). When there is question of consanguinity in the second degree bordering on the first, the supplica ought to be written by the bishop's own hand. He ought also to sign the declaration of poverty made by the petitioners when the dispensation is sought from the Penitentiaria in formâ pauperum; when he is in any way hindered from so doing he is bound to commission a priest to sign it in his name. A false declaration of poverty henceforth does not invalidate a dispensation in any case; but the authors of the false statement are bound in conscience to reimburse any amount unduly withheld (regulation for the Roman Curia, 12 June, 1908). For further information on the many points already briefly described the reader is referred to the special canonical works, wherein are found all necessary directions as to what must be expressed so as to avoid nullity. When a supplica is affected (in a material point) by obreption or subreption it becomes necessary to ask for a so-called "reformatory decree" in case the favour asked has not yet been granted by the Curia, or for the letters known as "Perinde ac valere" if the favour has already been granted. If, after all this, a further material error is discovered, letters known as "Perinde ac valere super perinde ac valere" must be applied for. See Gasparri, "Tractatus de matrimonio" (2nd ed., Rome, 1892), I, no. 362.
Dispensation rescripts are generally drawn up in formâ commissâ mixtâ, i. e. they are entrusted to an executor who is thereby obliged to proceed to their execution, if he finds that the reasons are as alleged (si vera sint exposita). Canonists are divided as to whether rescripts in formâ commissâ mixtâ contain a favour granted from the moment of their being sent off, or to be granted when the execution actually takes place. Gasparri holds it as received practice that it suffices if the reasons alleged be actually true at the moment when the petition is presented. It is certain, however, that the executor required by Penitentiaria rescripts may safely fulfil his mission even if the pope should die before he had begun to execute it. The executor named for public impediments is usually the ordinary who forwards the supplica and for secret impediments an approved confessor chosen by the petitioner. Except when specially authorized the person delegated cannot validly execute a dispensation before he has seen the original of the rescript. Therein it is usually prescribed that the reasons given by the petitioners must be verified. This verification, usually no longer a condition for valid execution, can be made, in the case of public impediments, extra-judicially or by subdelegation. In foro interno it can be made by the confessor in the very act of hearing the confessions of the parties. Should the inquiry disclose no substantial error, the executor proclaims the dispensation, i. e. he makes known, usually in writing, especially if he acts in foro externo, the decree which dispenses the petitioners; if the rescript authorizes him, he also legitimizes the children. Although the executor may subdelegate the preparatory acts, he may not, unless the rescript expressly says so, subdelegate the actual execution of the decree, unless he subdelegates to another ordinary. When the impediment is common to, and known to, both parties, execution ought to be made for both; wherefore, in a case in foro interno, the confessor of one of the parties hands over the rescript, after he has executed it, to the confessor of the other. The executor ought to observe with care the clauses enumerated in the decree, as some of them constitute conditions sine quâ non for the validity of the dispensation. As a rule, these clauses affecting validity may be recognized by the conditional conjunction or adverb of exclusion with which they begin (e. g. dummodo, "provided that"; et non aliter, "not otherwise"), or by an ablative absolute. When, however, a clause only prescribes a thing already of obligation by law it has merely the force of a reminder. In this matter also it is well to pay attention to the stylus curiœ, i. e. the legal diction of the Roman Congregations and Tribunals, and to consult authors of repute.
(3) Causes for Granting Dispensations
Following the principles laid down for dispensations in general, a matrimonial dispensation granted without sufficient cause, even by the pope himself, would be illicit; the more difficult and numerous the impediments the more serious must be the motives for removing them. An unjustified dispensation, even if granted by the pope, is null and void, in a case affecting the Divine law; and if granted by other bishops or superiors in cases affecting ordinary ecclesiastical law. Moreover, as it is not supposable that the pope wishes to act illicitly, it follows that if he has been moved by false allegations to grant a dispensation, even in a matter of ordinary ecclesiastical law, such dispensation is invalid. Hence the necessity of distinguishing in dispensations between motive or determining causes (causœ motivœ) and impulsive or merely influencing causes (causœ impulsivœ). Except when the information given is false, still more when he acts spontaneously (motu proprio)and "with certain knowledge", the presumption always is that a superior is acting from just motives. It may be remarked that if the pope refuses to grant a dispensation on a certain ground, an inferior prelate, properly authorized to dispense, may grant the dispensation in the same case on other grounds which in his judgment are sufficient. Canonists do not agree as to whether he can grant it on the identical ground by reason of his divergent appreciation of the latter's force.
Among the sufficient causes for matrimonial dispensations we may distinguish canonical causes, i. e. classified and held as sufficient by the common law and canonical jurisprudence, and reasonable causes. i. e. not provided for nominally in the law, but deserving of equitable consideration in view of circumstances or particular cases. An Instruction issued by Propaganda (9 May, 1877) enumerates sixteen canonical causes. The "Formulary of the Dataria" (Rome, 1901) gives twenty-eight, which suffice, either alone or concurrently with others, and act as a norm for all sufficient causes. They are: smallness of place or places; smallness of place coupled with the fact that outside it a sufficient dowry cannot be had; lack of dowry; insufficiency of dowry for the bride; a larger dowry; an increase of dowry by one-third; cessation of family feuds; preservation of peace; conclusion of peace between princes or states; avoidance of lawsuits over an inheritance, a dowry, or some important business transaction; the fact that a fiancée is an orphan; or has the care of a family; the age of the fiancée over twenty-four; the difficulty of finding another partner, owing to the fewness of male acquaintance, or the difficulty the latter experience in coming to her home; the hope of safeguarding the faith of a Catholic relation; the danger of a mixed marriage; the hope of converting a non-Catholic party; the keeping of property in a family; the preservation of an illustrious or honourable family; the excellence and merits of the parties; defamation to be avoided, or scandal prevented; intercourse already having taken place between the petitioners, or rape; the danger of a civil marriage; of marriage before a Protestant minister revalidation of a marriage that was null and void; finally, all reasonable causes judged such in the opinion of the pope (e. g. the public good), or special reasonable causes actuating the petitioners and made known to the pope, i. e. motives which, owing to the social status of the petitioners, it is opportune should remain unexplained out of respect for their reputation. These various causes have been stated in their briefest terms. To reach their exact force, some acquaintance is necessary with the stylus curiœ and the pertinent works of reputable authors, always avoiding anything like exaggerated formalism. This list of causes is by no means exhaustive; the Holy See, in granting a dispensation, will consider any weighty circumstances that render the dispensation really justifiable.
(4) Costs of Dispensations
The Council of Trent (Sess. XXIV, cap. v, De ref. matrim.) decreed that dispensations should be free of all charges. Diocesan chanceries are bound to conform to this law (many pontifical documents, and at times clauses in indults, remind them of it) and neither to exact nor accept anything but the modest contribution to the chancery expenses sanctioned by an Instruction approved by Innocent XI (8 Oct., 1678), and known as the Innocentian Tax (). Rosset holds that it is also lawful, when the diocese is poor, to demand payment of the expenses it incurs for dispensations. Sometimes the Holy See grants ampler freedom in this matter, but nearly always with the monition that all revenues from this source shall be employed for some good work, and not go to the diocesan curia as such. Henceforth every rescript requiring execution will state the sum which the diocesan curia is authorized to collect for its execution.
In the Roman Curia the expenses incurred by petitioners fall under four heads:
- (a) expenses (expensœ) of carriage (postage, etc.), also a fee to the accredited agent, when one has been employed. This fee is fixed by the Congregation in question;
- (b) a tax (taxa) to be used in defraying the expenses incurred by the Holy See in the organized administration of dispensations;
- (c) the componendum, or eleemosynary fine to be paid to the Congregation and applied by it to pious uses;
- (d) an alms imposed on the petitioners and to be distributed by themselves in good works.
The moneys paid under the first two heads do not affect, strictly speaking, the gratuity of the dispensation. They constitute a just compensation for the expenses the petitioners occasion the Curia. As for the alms and the componendum, besides the fact that they do not profit the pope nor the members of the Curia personally, but are employed in pious uses, they are justifiable, either as a fine for the faults which, as a rule, give occasion for the dispensation, or as a check to restrain a too great frequency of petitions often based on frivolous grounds. And if the Tridentine prohibition be still urged, it may be truly said that the pope has the right to abrogate the decrees of councils, and is the best judge of the reasons that legitimize such abrogation. We may add that the custom of tax and componendum is neither uniform nor universal in the Roman Curia.
I. Dispensations in General: SUAREZ, De legibus (Naples, 1882), Bk. VI, x sqq., and Opera Omnia (Paris, 1856), VI; PYRRHUS CORRADIUS, Praxis dispensationum apostolicarum (Venice, 1699); KONINGS-PUTZER, Commentarium in facultates apostolicas (New York, 1898), pt. I; the commentators on the Decretals, especially SCHMALZGRUEBER, Jus ecclesiasticum universale (Rome, 1843), Bk. I. tit. ii; WERNZ, Jus decretalium (Rome, 1905), I, tit. iv, 138; VON SCHERER, Handbuch des Kirchenrechts (Graz, 1898), I, 172; HINSCHIUS. System d. kath. Kirchenr. (Berlin, 1869), I. 744, 789; the moral theologies, under the treatise De legibus, particularly ST. ALPHONSUS LIGUORI, Theologia Moralis (Rome, 1905), I, iv, Dub. 4; D'ANNIBALE, Summula Theologiœ Moralis (Rome, 1908), I, tr. iii, 220; BALLERINI, Opus Morale (Prato, 1889), I, 363; OJETTI, Synopsis rerum moralium et juris pontificii (Rome, 1904), s. v. Dispensatio; THOMASSIN, Ancienne et nouvelle discipline de l'Eglise touchant les bénéfices (Paris, 1725), II, p. II, 1, 3, xxiv-xxix; STIEGLER, Dispensation, Dispensationwesen, und Dispensationsrecht in his Kirchenrecht (Mainz, 1901). I, and in Archiv f. kath. Kirchenr., LXXVII, 3; FIEBAG, De indole ac virtute dispensationum secundum principia jur. canonici (Breslau, 1867).
II. Matrimonial Dispensations: PYRRHUS CORRADIUS, op. cit.; DE JUSTIS, De dispens. matrim. (Venice, 1769); GIOVINE, De dispens. matrim. (Naples, 1863); PLANCHARD, Dispenses matrim. (Angoulème, 1882); FEIJE, De imped. et dispens. matrim. (Louvain, 1885); ZITELLI, De dispens. matrim. (Rome, 1887); VAN DE BURGT, De dispens. matrim. (Bois-le-Duc, 1865); POMPEN, De dispens. et revalidatione matrim. (Amsterdam, 1897); ROUSSET, De sacramento matrimonii (Saint-Jean de Maurienne, 1895), IV, 231; KONINGS-PUTZER, Op. cit., 174 sqq., 376 sqq.; SANCHEZ, De s. matrimonii sacramento (Viterbo, 1739), Bk. VIII; GASPARRI, Tract. canonicus de matrimonio (Paris, 1892), I, iv, 186; MANSELLA, De imped. matrim. (Rome, 1881), 162; LEITNER, Lehrb. des kath. Eherechts (Paderborn, 1902), 401; SCHNITZER, Kath. Eherecht (Freiburg, 1898), 496; SANTILEITNER, Prœlectiones juris canonici (Ratisbon, 1899), IV, appendix I; WERNZ, Jus Decretalium (Rome, 1908), IV, tit. xxix FREISEN Geschichte des kanon. Eherechts bis zum Verfall der Glossenlitteratur (Tübingen, 1888), and in Archiv für kath. Kirchenr., LXXVII, 3 sqq., and LXXVIII, 91; ESMEIN, Le mariage en droit canonique (Paris, 1891), II, 315; ZHISMAN, Das Eherecht der orient. Kirche (Vienna, 1864), 190, 712.