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warnings called for? Were they not very much to the purpose? Evidently. If His hearers, on their part, had only listened more attentively, and had taken His words more to heart, perhaps we should never have had to lament the reiterated denial of Peter nor even the shameful betrayal of Judas. Season your discourses with these solemn thoughts. For, if you do not, you will be as one beating the air. 1

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In a matter of this kind perhaps we shall not be far wrong if we give heed to the advice of the Sovereign Pontiffs, and endeavour to follow it, when exercising the pastoral office, and labouring for the salvation of immortal souls.


1 These, so far as I can recall them, were the substance of the words of Pius X; and what Leo XIII said, though somewhat differently expressed, was practically precisely the same.




WHEN the preliminary investigation (1019-34) has resulted in the discovery of an impediment (impedient or diriment) two courses are open. The marriage project may be abandoned, or an attempt may be made to have the impediment removed. If a priest were inclined to be selfish, the first course might please him best: it would certainly free him from a great amount of difficulty: But the wishes of the parties must be taken into account: and, apart from that, there will often be, from the priest's own standpoint, serious reasons of religion or morality suggesting that the project be not abandoned and that help be sought from someone who has power to deal with the prohibitive or diriment law. And that opens up the whole question of matrimonial dispensations.

It would be impossible, in a short article, to present fully the scores of principles that are considerably modified, though left substantially intact, by the new legislation. We can only take the canons (1040-57) as they stand, and, in the light of previous laws and of other portions of the Code (especially cc. 36-62 and 80-86), try to discover how far they affect the practice followed in the past. To save our readers trouble, we will take the statements in Lehmkuhl's text-book as a working basis, and, in our closing paragraph, indicate, as fully as space allows, the changes in its pertinent sections that the new legislation would seem to necessitate.


Preliminary Matters.-In Canon 1040 we are told that

No one except the Roman Pontiff can abrogate impediments of the ecclesiastical law, whether im edient or diriment, or derogate from them; neither can he dispense in them, unless this power has been granted [him] by the common law or by special Indult from the Apostolic See.

1 Th. Mor. nn. 1012-50 (11th edition, 1910).

This introduces no change in principle. The impediments are imposed by general law; and with general laws no one but the supreme legislator himself, or his delegates, can interfere, whether wholly (abrogation') or in part (derogation'), or even by relaxation in particular cases ('dispensation'). It must be admitted that, in the past, this last faculty was often exercised, even when no special text of law could be quoted in its favour: custom and common opinion were held to justify the policy.1 It will be noted, too, that, on the general question of dispensation, another canon (81) still provides for 'implicit concession and for special action in urgent cases. But, as regards matrimonial cases, it would seem that these tendencies must not be allowed to operate. The 'special' regulation prevails over the general' (cf. 22, 48, § 1). If the concession is granted at all, it comes from 'common law' or from 'special Indult': in either case it is 'explicit.' And, as for the " 'urgent case of Canon 81, it is fully provided for, in the matrimonial line, in subsequent sections of the marriage law itself (1043-5).

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But a change in principle is involved in the next regulation (1041). Custom used to play an important part, not merely in abolishing impediments but in introducing them. It was responsible for the impediment of 'difference of worship' and, even in a matter so jealously guarded as the law of clandestinity, it sometimes swept away the impediment, as even Popes admitted. Among ourselves it set up an impedient impediment of 'closed time,' above and beyond what the general law provided. But its day is over. Its influence, whether in the positive or negative line, is 'reprobated' (1041): consequently, it must be looked on as a 'corruption' of the law, must be abolished wherever it exists, and not allowed on any account to revive for the future (5). Its sentence is conveyed in Canon 1041 :

A custom introducing a new impediment or opposed to those in existence is reprobated.

From the point of view of dispensation (1054), the distinction between impediments of the 'minor," and those of the major,' grade, is of considerable importance. If the impediment be of the first class, the dispensation

1 Th. Mor., nn. 1013, 1014.

2 Ibid. 983.

a Ibid. 904.

4 I. E. RECORD, Nov., 1917, Fifth Series, vol. x. pp. 365, 366.

granted will be valid, no matter what falsehood has been alleged, or truth suppressed, in the petition (1054): if of the second, at least one 'motive' cause must be stated correctly (42, § 2) and-except when the phrase Motu proprio is added to the rescript (45)-the requirements of the Curial style' must be duly complied with (42, § 1). The distinction between the two classes, as well as the lenient regulation in regard to the minor grade, is borrowed from the Normae Peculiares of Pius X, and is reproduced in the Code without substantial variation. On the distinction itself Canon 1042 says:

§ 1. Some impediments are of the minor grade, others of the major. §2. The impediments of the minor grade are:

1°. Consanguinity in the third degree of the collateral line;
2o. Affinity in the second degree of the collateral line;

3°. Public propriety in the second degree;

4°. Spiritual relationship;

5°. Crime [arising] from adultery [combined] with a promise of marriage, or with an attempt at contracting marriage even by a civil ceremony merely.

§ 3. All other impediments are of the major grade.3

And, on the lenient regulation, Canon 1054 states:—

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A dispensation from a minor impediment is not voided by any defect of 'obreption' [statement of falsehood] or subreption' [suppression of truth, even though the one and only final cause assigned in the petition was false.

Comparing Canon 1042 with the Normae, we find, however, three small changes introduced: 1°, some of the old impediments disappear in accordance with other Canons of the Code-consanguinity in the fourth degree of the collateral line (as demanded by Canon 1076, § 2), lawful affinity in the third and fourth of the collateral (1077, § 1), unlawful affinity in every line and degree (97, § 1), and public propriety arising from an engagement or valid marriage (1078): 2°, two impediments are added to the 'minor' list-the new impediment of propriety (1078) in the second degree (direct line), and 'crime' of the first species (1075, 1°): 3°, there is no mention of the restrictions (affecting mixed' degrees) embodied in the older

1 They are substantially as given by Lehmkuhl, ibid. 1035-8.

2 29th Sept., 1908, c. 7, art. 3.

With this compare the old list (of 1908), Lehmkuhl, ibid. n. 1026.

4 Cf. ibid. n. 1027. On punishments for these offences, see Canon 2361. 5 On all these cf. I. E. RECORD, Feb., 1919, pp. 131-7.

law. Does the omission imply that, by a rigid application of Canons 6 (6°) and 22, we should regard these restrictions as abolished-or does it mean that, by emphasizing the implicite of 6 (6°) and combining it with 6 (4°), we should take the old law as still in force? Even in theory, but still more in practice, we incline to the second view: if the impediment involves the first degree, the safer course will be to classify it as one of the major grade. The matter is of importance only in connexion with consanguinity and affinity (1o, 2o): the second degree of the new propriety ' (3°) cannot, except in the most deplorable circumstances, be mixed with the first (1078).

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Dispensing Authorities.-Leaving out of account the Pope and the Roman Congregations or Tribunals-about whose power to dispense in all merely ecclesiastical impediments there can be no question-we have to see what power is given to Bishops and priests. To get a satisfactory idea of the new regulations, we must keep the old legislation in view. In pre-Code days, the Bishop had power, 1°, in case of doubtful impediments,1 2°, in occult urgent cases, 3°, when there was danger of death,3 4°, in virtue of Formulae and special rescripts. A priest's powers were more circumscribed. He could deal, some said, with the perplexed' cases: he could, of course, utilize any faculties that Rome or his Bishop gave him: and, when there was danger of death, he had sometimes almost as much power as the Bishop himself. So far as the Code went, each and every one of these faculties was left intact or extended considerably. But a subsequent decree struck a severe blow against the general Formulae of the Bishops. And the wider powers guaranteed by the Code are very much reduced in value by what, from his own point of view, the missionary priest will be tempted to term the unwelcome declaration of April 25th, 1918.7

It will be useful to keep the powers of Bishops and of priests distinct, and to trace the recent developments in both.

Powers of Bishops.-A Bishop's faculties, as we have seen, used to be classified under four headings :

A. Doubtful impediments.-The power was generally

1 Lehmkuhl, 1014.

2 Ibid. 1014.

3 Ibid. 1015 (and note).

4 Ibid. 1017 sqq.

Ibid. 1054, 1055.

• Ibid. 1015 (note).

▾ Vide infra, p. 196.

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