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| A B C D E F G H I J K L M N O P Q R S T U V W X Y Z |
(Latindispensatio)
Dispensation is an act whereby in a particular case a lawful superior grants relaxation from an existinglaw. This article will treat: I. Dispensation in General; II. Matrimonial Dispensations.
For dispensations fromvows seeVOWS and RELIGIOUS ORDERS; and fromfasting andabstinence,FAST,ABSTINENCE.
Dispensation differs from abrogation and derogation, inasmuch as these suppress thelaw 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 thelaw a case which otherwise would fall under it. Theraison 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 peculiarlytrue ofecclesiastical administration. Owing to the universality of theChurch, the adequate observance by all its members of a single code oflaws would be very difficult. Moreover, the Divine purpose of theChurch, the welfare ofsouls, 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 ofecclesiastical 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 centuryYves 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 uponpapal 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 theHoly See began to give ampler faculties tobishops and missionaries in distant lands; in the seventeenth century such privileges were granted to other countries. Such was the origin of the ordinary faculties (seeCANONICAL FACULTIES) now granted tobishops.
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 thelaw. His subordinates can do so only in the measure that he permits. If such communication ofecclesiastical authority is made to an inferior by reason of an office he holds, his power, though derived, is known asordinary. If it is only given him by way of commission it is known asdelegated power. When such delegation takes place through a permanent law, it is known as delegationby right of law. It is styledhabitual, when, though given by a particular act of the superior, it is granted for a certain period oftime or a certain number of cases. Finally, it is calledparticular if granted only for one case. When the power of dispensation is ordinary it may bedelegated 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 aduniversitatem causarum i.e. for all cases of a certain kind, and for delegation by thepope or theRoman 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 actualjurisdiction to grant the dispensation, but an appointment to execute it, e.g. in the case of dispensations grantedin formâ commissâ mixtâ (see above).
The power of dispensation rests in the followingpersons:
He cannot of his own right dispense from theDivine law (either natural or positive). When he does dispense, e.g. fromvows,oaths, unconsummatedmarriages, he does so by derived power communicated to him as Vicar of Christ, and the limits of which he determines by hismagisterium, or authoritative teaching power. There is some diversity of opinion as to the nature of thepope'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 thepope, acting in the name ofGod, remits for them anobligation resulting from their deliberate consent, and therewith the consequences that by natural or positiveDivine law flowed from suchobligation. Thepope, 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 immediatejurisdiction. A part of this power, however, he usually communicates to theRoman Congregations.
Of his ordinary right, thebishop can dispense from his ownstatutes and from those of his predecessors, even whenpromulgated in adiocesan synod (where he alone is legislator). From the otherlaws of theChurch he cannot dispense of his own right. This is evident from the nature of dispensation and ofdiocesanjurisdiction. A principle maintained by some authors, viz, that thebishop can grant all dispensations which thepope has not reserved to himself, cannot be admitted. But by derived right (either ordinary or delegated according to the terms of the grant) thebishop can dispense from thoselaws that expressly permit him to do so or from those for which he has received anindult to that effect. Moreover, by ordinary right, based on custom or the tacit consent of theHoly See, he may dispense:
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 exemptreligious orders (seeEXEMPTION) can grant to their subjects, individually, those dispensations from ecclesiastical laws which thebishop 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.
He enjoys by virtue of his appointment the ordinary dispensing power of thebishop, 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 asordinary); exception is made, however, for those powers which require a special mandate like those of the chapterLiceat, for dealing with irregularities and secret cases. Thevicar capitular likewise has all the dispensing power which thebishop has of his own right, or which has beendelegated to him as ordinary.
By his own ordinary right, founded on custom, he may dispense (but only in particular cases, and forindividuals separately, not for a community or congregation) from the observance offasting, abstinence, and Holy Days. He can also dispense, within his own territory, from the observance ofdiocesanstatutes when the latter permit him to do so; the terms of thesestatutes usually declare the extent of such power, also whether it be ordinary or delegated. Dispensation being an act ofjurisdiction, 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. Thebishop and theparishpriest, except in circumstances governed by special enactments, acquirejurisdiction over a member of thefaithful by reason of the domicile or quasi-domicile he or she has in adiocese orparish (seeDOMICILE). Moreover, in their own territory they can use their dispensing power in respect ofpersons 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 certainobligations can also dispense himself.
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 aprobably sufficient cause, or with a cause less than one that, of itself and without any dispensation, would excuse from thelaw. 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 afalse statement is made which has influenced not only thecausa impulsiva, i.e. the reason inclining the superior more easily to grant it, but also thecausa 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 ofobreption andsubreption inrescripts of dispensation. Consequently afalse statement or thefraudulent 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 nofraudulent intent, afalse 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 thenfalse statements do not always nullify the grant; for
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 dispensationsex gratiâ (orin formâ gratiosâ), i.e. granting favours, the facts must betrue when the dispensation is expedited; on the other hand, in the case of dispensationsin formâ commissâ (and according to the more general opinion, in thosein formâ commissâ mixtâ), the causes alleged must be verified only when the dispensation is actually executed.
It is proper, generally speaking, that dispensations be asked for and granted in writing. Moreover, theRoman 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 thepope. 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 holdstrue of dispensing power given for a particular case) ought to be strictly interpreted unless it is a question of a dispensation authorized by thecommon law, or one grantedmotu 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.
A matrimonial dispensation is the relaxation in a particular case of an impediment prohibiting or annulling a marriage. It may be granted:
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:
Thepope cannot dispense from impediments founded on Divine law-except, as above described, in the case ofvows, espousals, and non-consummatedmarriages, or valid and consummated marriage ofneophytes beforebaptism (see NEOPHYTES). Indoubtful cases, however, he may decide authoritatively as to the objective value of thedoubt. In respect of impediments arising from ecclesiastical law thepope 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 areerror,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 thepope exercises his power of dispensation through theRoman 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 controlin foro externo over all impediments connected with or juridically bearing on matters offaith, e.g. disparity of worship,mixta religio,Holy orders, etc. The dispensing powerin foro interno lay with the Penitentiaria, and in the case ofpauperes orquasi-pauperes this same Congregation had dispensing power over public impedimentsin foro externo. The Penitentiaria held aspauperes for all countries outside ofItaly those whose united capital, productive of a fixed revenue, did not exceed 5370 lire (about 1050 dollars); and asquasi-pauperes, those whose capital did not exceed 9396 lire (about 1850 dollars). It likewise had the power ofpromulgating generalindults affecting public impediments, as for instance theindult of 15 Nov., 1907.Propaganda was charged with all dispensations, bothin foro inferno andin foro externo, for countries under itsjurisdiction, 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, theduties of these various Congregations received important modifications in consequence of the Constitution "Sapienti", in whichPope Pius X reorganized theRoman Curia. Dispensing power from public impediments in the case ofpauperes orquasi-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 impedimentsin foro interno only. The Holy Office retains its faculties, but restricted expressly under three heads:
Propaganda remains the channel for securing dispensations for all countries under itsjurisdiction, 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, theUnited States,Canada and Newfoundland, and inEurope, the British Isles are now withdrawn fromPropaganda, and placed under thecommon law of countries with ahierarchy. 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 theHoly See, except those of the Penitentiariain foro interno, which, during that time, are even increased. Though suspended, the powers of a Congregation may be used in cases of urgent necessity.
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 thepope. The reserved impediments of this kind are espousals, thevow of perpetual chastity, andvows taken indiocesan religious institutes,mixta religio, public display and solemn blessing at marriages within forbidden times, thevetitum, or interdict laid on a marriage by thepope, or by themetropolitan in a case of appeal. Thebishop may also dispense from diriment impediments after the following manner:
However, they can use this privilege only in favour ofpersons actually living in realconcubinage or united by a merelycivil marriage, and only when there is no time for recourse to theHoly See. They may also legitimize the children of such unions, except those born ofadultery or sacrilege. In thedecree of 1888 is also included the impediment ofclandestinity. Thisdecree permits therefore (at least until theHoly See shall have issued other instructions) to dispense, in the case ofconcubinage orcivil marriage, with the presence of thepriest and of the two witnesses required by theDecree "Ne temere" in urgent cases of marriagein extremis. Canonists do not agree as to whetherbishops hold these faculties by virtue of their ordinary power or by general delegation of thelaw. It seems to us more probable that those just described under;
They are, therefore, empowered to delegate the former; in order to subdelegate the latter they must be guided by the limits fixed by thedecree of 1888 and its interpretationdated 9 June, 1889. That is, if it is a question of habitual delegationparishpriests only should receive it, and only for cases where there is no time for recourse to thebishop.
Besides the fixed perpetual faculties,bishops also receive from theHoly See habitual temporaryindults for a certain period oftime or for a limited number of cases. These faculties are granted by fixed "formulæ", in which theHoly See from time to time, or as occasion requires it, makes some slight modifications. (SeeCANONICAL FACULTIES.) 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 givenindult. Faculties thusdelegated to abishop 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 thebishop's powers, he may not dispense from any of them. Even when thebishop has faculties for each impediment taken separately he cannot (unless he possesses the faculty known asde cumulo) use his various faculties simultaneously in a case where, all the impediments being public, one of them exceeds his ordinary faculties, it is notnecessary for abishop to delegate his faculties to his vicars-general; since 1897 they are always granted to thebishop as ordinary, therefore to thevicar-general also. With regard to otherpriests adecree of the holy Office (14 Dec., 1898) declares that for the future temporary faculties may be always subdelegated unless theindult expressly states the contrary. These faculties are valid from the date when they were granted in theRoman Curia. In actual practice they do not expire, as a rule, at the death of thepope nor of thebishop to whom they were given, but pass on to those who take his place (thevicar capitular, the administrator, or succeedingbishop). Faculties granted for a fixed period oftime, or a limited number of cases, cease when the period or number has been reached; but while awaiting their renewal thebishop, unless culpably negligent, may continue to use them provisionally. Abishop can use his habitual faculties only in favour of his own subjects. The matrimonial discipline of theDecree "Ne temere" (2 Aug., 1907) contemplates as such allpersons having atrue canonical domicile, or continuously resident for one month within his territory, alsovagi, orpersons who have no domicile anywhere and can claim no continuous stay of one month. When a matrimonial impediment is common to both parties thebishop, in dispensing his own subject, dispenses also the other.
Avicar capitular, or in his place a lawful administrator, enjoys all the dispensing powers possessed by thebishop in virtue of his ordinaryjurisdiction or of delegation of thelaw; according to the actual discipline he enjoys even the habitual powers which had been granted the deceasedbishop for a fixed period oftime or for a limited number of cases, even if theindult should have been made out in the name of theBishop of N. Considering the actual praxis of theHoly See, the same istrue of particularindults (see below). Thevicar-general has by virtue of his appointment all the ordinary powers of thebishop 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 alsoipso facto to thevicar-general while he holds that office. He can also use particularindults when they are addressed to the ordinary, and when they are not so addressed thebishop can always subdelegate him, unless the contrary be expressly stated in theindult.
Aparishpriest bycommon 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 thebishop, but with theobligation of subsequent recoursead 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.
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 theHoly See, procedure is by way ofsupplica (petition) and privaterescript. 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 theperson's birthplace, or domicile, or, since theDecree "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 thebishop's agent under a sealed cover for transmission to the Penitentiaria. The supplica ought to give the names (family andChristian) of the petitioners (except in secret cases forwarded to the Penitentiaria), the name of the Ordinary forwarding it, or the name of thepriest to whom, in secret cases, therescript must be sent; the age of the parties, especially in dispensations affectingconsanguinity and affinity; their religion, at least when one of them is not aCatholic; 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 isnecessary that the latter shouldknow 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 thePropaganda Instruction of 9 May, 1877 (it is no longernecessary, either for the validity or liceity of the dispensation, to observe the paragraph relating to incest intercourse, even when probably this very thing had been alleged as the only reason for granting the dispensation). When there is question ofconsanguinity in the second degree bordering on the first, the supplica ought to be written by thebishop's own hand. He ought also to sign the declaration of poverty made by the petitioners when the dispensation is sought from the Penitentiaria informâ pauperum; when he is in any way hindered from so doing he is bound to commission apriest to sign it in his name. Afalse declaration of poverty henceforth does not invalidate a dispensation in any case; but the authors of thefalse statement are bound inconscience to reimburse any amount unduly withheld (regulation for theRoman 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 allnecessary directions as to what must be expressed so as to avoid nullity. When a supplica is affected (in a material point) byobreption orsubreption it becomesnecessary to ask for a so-called "reformatorydecree" in case the favour asked has not yet been granted by theCuria, or for the letters known as "Perinde ac valere" if the favour has already been granted. If, after all this, a further materialerror 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.
Dispensationrescripts are generally drawn upin formâ commissâ mixtâ, i.e. they are entrusted to an executor who is therebyobliged to proceed to their execution, if he finds that the reasons are as alleged (si vera sint exposita). Canonists are divided as to whetherrescriptsin 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 actuallytrue at the moment when the petition is presented. It iscertain, however, that the executor required by Penitentiariarescripts may safely fulfil his mission even if thepope 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 theperson delegated cannot validly execute a dispensation before he has seen the original of therescript. 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 substantialerror, the executor proclaims the dispensation, i.e. he makes known, usually in writing, especially if he actsin foro externo, thedecree which dispenses the petitioners; if therescript authorizes him, he also legitimizes the children. Although the executor may subdelegate the preparatory acts, he may not, unless therescript expressly says so, subdelegate the actual execution of thedecree, 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 casein foro interno, the confessor of one of the parties hands over therescript, after he has executed it, to the confessor of the other. The executor ought to observe with care the clauses enumerated in thedecree, as some of them constitute conditionssine 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 ofobligation by law it has merely the force of a reminder. In this matter also it is well to pay attention to thestylus curiœ, i.e. the legal diction of theRoman Congregations and Tribunals, and to consult authors of repute.
Following the principles laid down for dispensations in general, a matrimonial dispensation granted without sufficient cause, even by thepope 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 thepope, is null and void, in a case affecting theDivine law; and if granted by otherbishops or superiors in cases affecting ordinary ecclesiastical law. Moreover, as it is not supposable that thepope wishes to act illicitly, it follows that if he has been moved byfalse 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 isfalse, 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 thepope refuses to grant a dispensation on a certain ground, an inferiorprelate, 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 thecommon law and canonicaljurisprudence, and reasonable causes. i.e. not provided for nominally in thelaw, but deserving of equitable consideration in view of circumstances or particular cases. An Instruction issued byPropaganda (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 offamily 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 anorphan; or has the care of afamily; 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 thefaith of aCatholic relation; the danger of amixed marriage; the hope of converting a non-Catholic party; the keeping ofproperty in afamily; the preservation of an illustrious or honourablefamily; the excellence and merits of the parties; defamation to be avoided, orscandal prevented; intercourse already having taken place between the petitioners, or rape; the danger of acivil marriage; of marriage before aProtestant minister revalidation of a marriage that was null and void; finally, all reasonable causes judged such in the opinion of thepope (e.g. the public good), or special reasonable causes actuating the petitioners and made known to thepope, 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 isnecessary with thestylus curiœ and the pertinent works of reputable authors, always avoiding anything like exaggerated formalism. This list of causes is by no means exhaustive; theHoly See, in granting a dispensation, will consider any weighty circumstances that render the dispensation really justifiable.
TheCouncil 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 thislaw (many pontifical documents, and at times clauses inindults, remind them of it) and neither to exact nor accept anything but the modest contribution to the chancery expenses sanctioned by an Instruction approved byInnocent XI (8 Oct., 1678), and known as the Innocentian Tax (Taxa Innocentiana). Rosset holds that it is also lawful, when thediocese is poor, to demand payment of the expenses it incurs for dispensations. Sometimes theHoly 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 thediocesan curia as such. Henceforth everyrescript requiring execution will state the sum which thediocesan curia is authorized to collect for its execution.
In theRoman Curia the expenses incurred by petitioners fall under four heads:
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 theCuria. As for thealms and the componendum, besides the fact that they do not profit thepope nor the members of theCuria personally, but are employed inpious 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 theTridentine prohibition be still urged, it may be truly said that thepope has theright 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 theRoman Curia.
I. Dispensations in General: SUAREZ,De legibus (Naples, 1882), Bk. VI, x sqq., andOpera 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 treatiseDe legibus, particularly ST. ALPHONSUS LIGUORI,Theologia Moralis (Rome, 1905), I, iv, Dub. 4; D'ANNIBALE,Summula Theologiæ 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'Église touchant les bénéfices (Paris, 1725), II, p. II, 1, 3, xxiv-xxix; STIEGLER,Dispensation, Dispensationwesen, und Dispensationsrecht in hisKirchenrecht (Mainz, 1901). I, and inArchiv 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,Prælectiones juris canonici (Ratisbon, 1899), IV, appendix I; WERNZ,Jus Decretalium (Rome, 1908), IV, tit. xxix FREISENGeschichte des kanon. Eherechts bis zum Verfall der Glossenlitteratur (Tübingen, 1888), and inArchiv 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.
APA citation.Besson, J.(1909).Dispensation. InThe Catholic Encyclopedia.New York: Robert Appleton Company.http://www.newadvent.org/cathen/05041a.htm
MLA citation.Besson, Jules."Dispensation."The Catholic Encyclopedia.Vol. 5.New York: Robert Appleton Company,1909.<http://www.newadvent.org/cathen/05041a.htm>.
Transcription.This article was transcribed for New Advent by Douglas J. Potter.Dedicated to the Sacred Heart of Jesus Christ.
Ecclesiastical approbation.Nihil Obstat. May 1, 1909. Remy Lafort, Censor.Imprimatur. +John M. Farley, Archbishop of New York.
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