DISPENSATION
44
DISPENSATION
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
tlie 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 necessarj': 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, ISSS) diocesan bishops and other ordina-
ries (especially vicars Apostolic, administrators Apos-
tolic, and prefects Apostolic, ha\Ting jurisdiction over
an allocated territory, also vicars-general in spirituali-
bus, and vicars capitular) may dispense in very urgent
(grai-iisimutti) danger of death from all diriment im-
pediments (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, ex-
cept those bom of adultery or sacrilege. In the de-
cree of 1SS8 is also included the impediment of clan-
destinity. This decree permits therefore (at least
until the Holy See shall have issued other instructions)
to dispense, in the case of concubinage or ci\'il mar-
riage, 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 fac-
ulties by virtue of their ordinarj' power or by general
delegation of the law. It seems to us more prob-
able that those just described under (a) belong to
them as ordinaries, while those under (b) are dele-
gated. 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 haliitual temporary indults for a certain period of time or for a limited number of cases. These faculties are granted by fixed "for- mula", in which the Holy See from t'me to time, or as occasion requires it, makes some slignt 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. Facul- ties thus delegated to a bishop do not in any way re- .strict his ordinarj' faculties; nor (in se) do the facul- ties issued by one Congregation affect those granted by another. When several specifically different im- pediments occur in one ami the same case, and one of them exceeds the bishop's powers, he may not dis- pense from any of them. Even when the bishop has faculties for each impediment taken separately he cannot (unless he possesses the faculty knowni as dc 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 neces- sary 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 (1-1 Dec-, 1898) declares that for the future tem- porary 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 ninnber has been
reached; but while awaiting their renewal the bishop,
unless culpably neglige>it, may continue to use them
provisionally. A Ijishop can use his habitual facul-
ties only in favour of his own subjects. The matri-
monial 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 an\nvhere and can claim no continu-
ous stay of one month. When a matrimonial impedi-
ment is common to both parties the bishop, in dispens-
ing his own subject, dispenses also the other.
(C) Vicars Capitular and Vicars-General. — A vicar capitular, or in his place a lawful administrator, en- joys all the dispensing powers possessed by the bishop in virtue of his ortlinary jurisdiction or of dele- gation of the law; according to the actual discipline he enjoys even the habitual powers which had been granted the decea.sed 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 im- pediments, but requires a special mandate to give him common-law faculties for diriment impediments. As for habitual temporarj- faculties, since they are now addressed to the ordinarj', they belong also ipso facto to the vicar-general while he holds that office. He can also use particular indults when they are ad- dressed to the ordinary, and when they are not so ad- dressed the bishop can alwaj's subdelegate him, unless the contrary be expressly stated in the indult.
(D) Parish Priests and Other Ecclesiastics. — A par- ish priest by common law can dispense only from an interdict laid on a marriage by him or by his prede- cessor. Some canonists of note accord him authority to dispense from secret impediments in what are called embarrassing (pcrplexi) cases, i. e. when there is no time for recourse to the bishop, but with the obliga- tion 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 Peiiitentiaria continues to grant among its habiUial 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 oniinarj', 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 peti- tioners), who transmits it to the proper Congregation either by letter or through his accredited agent; but if there isquestion of sacramentalsecrecy, it is sent direct- ly to the Penitentiaria, or handed to the bishop's agent under a sealed cover for transmission to the Peniten- tiaria. 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 least
