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 DISPENSATION

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DISPENSATION

when one of them is not a Catholic; the nature, de- gree, and number of all impediments (if recourse is had to the Congregatio de Discipline Sacramentorum or to the Holy Office in a pubhc 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 com- petent Congregation). The supplica must, moreover, contain the causes set forth for granting the dispensa- tion and other circumstances specified in the Propagan- da 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 inter- course, even when probably this very thing had been alleged as the only reason for granting the dispensa- tion). 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 formd pauperum; when he is in any way hindered from so doing he is bound to com- mission a priest to sign it in his name. A false declar- ation of poverty henceforth does not invalidate a dis- pensation 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 foimd 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 let- ters 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 formd commissA mixtd, 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 formd commissd mixtd 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, how- ever, that the executor required by Penitentiaria re- scripts 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 dispensa- « tion 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 internt) it can be made by the confessor in the very act of hearing the confessions of the parties. Should the in(|uiry disclose no substantial error, the executor proclaims the dispensation, i. e. he makes known, usually in writing, especially if he acts in foro externa, the decree which dispenses the petitioners; if the rescript au- thorizes him, he also legitimizes the children. Al- though 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 ; where- fore, in a case in foro irUerno, the confessor of one of the parties hands over the rescript, after he has exe- cuted 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 siiie qud non for the validity of the dispensation. As a rule, these clauses affecting validity may be recog- nized by the conditional conjunction or adverb of ex- clusion with which they begin (e. g. dummodo, "pro- vided that"; et non ali'ter, "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 curi(E, i. e. the legal diction of the Roman Congregations and Tri- bunals, 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 (causae motives) and impulsive or merely influencing causes {causa: im- pulsivm). Except when the information given is false, still more when he acts spontaneously (mo/w proprio)a.ndL "with certain knowledge", the presumption always is that a superior is acting from just motives. It may be remarkecl that if the pope refuses to grant a dispensation on a certain ground, an inferior prelate, properly au- thorized to dispense, may grant tlie 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 dis- pensations 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 Propa- ganda (9 May, 1877) eninnerates 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 law- suits over an inheritance, a dowry, or some important business transaction ; the fact that a fiancde is an or- phan ; or has the care of a family ; the age of the fian- C(5e 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 mi.xed 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 pre-