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admitted. But, perhaps in deference to the rigorous interpreters who restricted it to doubts of law,' those who extended it to doubts of fact' spoke with caution, and were willing to withdraw the claim when there was a strong presumption in favour of the existence of the impediment. They were influenced by certain Roman declarations, and by the fact that there was no text of law to which they could appeal.1

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The text of law has come. There need be no hesitation for the future in stating the claim. If the doubt be one 'of law,' there is no need for any dispensation, for the law does not bind. If it be one of fact,' the Ordinary has full power, provided, of course, there be question of an impediment, in which the Pope himself is accustomed to dispense. These are the principles guaranteed by an earlier canon (15).


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B°. Urgency. To justify the Bishop's action three conditions were always required, five when the marriage had already been contracted: 1°, it should be impossible to have recourse to Rome in time to prevent scandal, loss of reputation, or other very great evil: 2°, the impediment should be occult': 3°, it should be one in which the Pope generally dispensed: 4°, 5°, the marriage should have been consummated and contracted bona fide (at least by one of the parties). The faculty passed to the Vicar-Capitular, but the Vicar-General required special delegation. There were various theories ventured as to how far the term occult' might be extended whether it might sometimes cover an impediment public of its very nature,' an impediment materially public but formally occult, etc.

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These controversies look small in the light of Canon 1045 of the Code. It tells us that:

§ 1. Subject to the clauses stated in the closing portion of Canon 1043, local Ordinaries can grant a dispensation in all the impediments

1 Lehmkuhl, 1014.

2 For reasons and authorities, cf., e.g., Marc, 2045. No. 4° was omitted by many.

Lehmkuhl, 1014. On the general question as to what are 'occult' impediments, Canon 1037, if taken strictly, is compatible with the old teaching (tacitly admitted in Canon 2197) that a matter might be 'occult' even though known to as many as ten persons in a large community [Lehmkuhl, 1047: cf. I. E. RECORD, Dec., 1911, pp. 626-32]. When, however, Canons 1742-1828 (on ecclesiastical proofs') are taken into account, the difference in practice will (we think) be slight.

4 Provisions for removing scandal and for securing the mixed marriage guarantees. Vide infra, p. 196.


mentioned in Canon 1043,1 whenever the impediment is discovered [only] when all preparations have been made for the nuptials, and when the marriage cannot, without probable danger of grave evil, be postponed until a dispensation is secured from the Holy See.

§ 2. This faculty is available also for the validation of a marriage already contracted, if there be the same danger in delay and no time to have recourse to the Holy See.

Leaving aside for the moment the section that refers to priests (§ 3), we see at once that the new faculty is much more extensive and generous than the old : 1°, It is shared by all the local Ordinaries (198, § 2); 2°, the clause restricting it to cases in which the Pope generally dispensed' need never have given much trouble-it will give still less now, for the power extends (with due cause, of course) to every impediment of the ecclesiastical law (with the two exceptions specified in 1043); 3°, there is no provision that the marriage be consummated, or contracted with the bona fides on which Trent insisted; and, 4°, above and beyond all, the condition that the impediment be occult' has quite disappeared and carried many a controversy with it. The fact that an impediment is public will, we admit, often lessen the probability of evil results, and so curtail the Ordinary's power; but the reference to Canon 1043, and the contrast between the two sections (§ 1 and § 3) in Canon 1045 itself, make it perfectly clear that the danger of gravely evil' results of any kind will empower the Ordinary to grant a dispensation even when the impediment is public.


Co. Danger of Death.--This special faculty has gone through three stages of development within our own time. Before the days of the Ne Temere, the decree of Leo XIII, issued on the 20th February, 1888, marked the limits of the power. It enabled all local Ordinaries to dispense in all diriment impediments of the ecclesiastical law (with the two well-known exceptions), but only when at least one of the parties was in danger of death from disease, when the persons concerned were living in concubinage or had contracted a merely civil marriage, and when the case was too urgent to allow of an appeal to Rome. A parish priest, or other occupying a similar position, might be delegated for all cases, but could only act when the Ordinary could not be approached in time; other priests could be delegated only for each particular case as it arose. The faculty might For the text, vide Lehmkuhl, 1015.

1 Vide infra, p. 196.

be exercised in the tribunal of Penance or outside it: extended even to the impediment of clandestinity; involved the power of legitimation, except the children were 'adulterous or 'sacrilegious'; and, according to the best view, was available even for non-subjects. But, when deacons or subdeacons were dispensed, there were stringent rules prescribed; and there was no provision whatever made for impedient impediments-though, in practice, priests were advised to rely on the principles of 'epieikeia' in a crisis.

The second stage of development was reached in the seventh article of the Ne Temere and in the subsequent Roman declarations regarding it.1 When danger of death arose, and when the local parish priest or Ordinary (or delegate of either) could only be approached with grave inconvenience-when, moreover, a marriage was advisable, either for the purpose of soothing the conscience of the parties concerned, or of legitimating the children born or conceived-any priest might validly assist at the ceremony. In these circumstances the priest assisting-whoever he might be, and a fortiori the parish priest or Ordinary, if he were present could dispense in all diriment impediments of the ecclesiastical (with the same two exceptions). This marked a considerable advance: 1°, any priest might exercise the faculty; 2°, it made no difference whether the danger arose from disease or from any other cause; 3°, it might certainly be made available for non-subjects, and, most likely, extended to the case of clandestinity; 4°, the prescriptions about deacons and subdeacons were restricted to the limits of the natural law; 5°, the power was no longer restricted to the case of concubinage or civil marriage. But one little drawback still remained. There was no provision for impedient impediments; and both priests and Bishops had still to be content with whatever extension of faculties the principles of 'epieikeia' might suggest.


That is so no longer. The previous faculties are confirmed, and the impedient impediments fall into line. much is clear from Canon 1043 :

In urgent danger of death, local Ordinaries, to secure peace of conscience and (if need be) the legitimation of offspring, can dispense their

1 Ibid. 891, 1015 (note). Congr. of the Sacr., 14th May, 13th Aug., 1909. 2 The parish priest was not mentioned explicitly in the concession of 1909, but a declaration of the 29th July, 1910, made up for the strange omission. For the text see I E. RECORD, Oct., 1910, p. 445. The Ordinary was, of course, included.

own subjects (no matter where they are) and all [others] actually living in their territory, not only from the 'form' obligatory in the celebration of marriage, but from each and every impediment of the ecclesiastical law, whether public or occult, [simple] or multiple-with the exception of the impediments arising from the sacred Order of priesthood, and from affinity in the direct line, in case the marriage has been consummated-when the scandal has been removed and when, if a dispensation is granted in difference of worship' or in mixed religion,' the usual guarantees have been given.

That settles many controversies. 'Clandestinity' is certainly included-the 'form obligatory in the celebration of marriage' (1094-1103). There is no exclusion of impedient impediments-and 'quod legislator tacuit noluit.' Any slight doubt that might have existed about 'multiple' impediments is gone. The added phrase, 'consummato matrimonio,' only makes the new impediment (97, § 1) the same as that contemplated in the Leonine decree and the Ne Temere-the 'lawful affinity' of the old legislation. The clause regarding scandal' and 'guarantees' only reproduces well-known regulations of the past.1 And, to complete the concession, Canon 1044 extends the same faculty to priests servatis servandis.2

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D°. Indults. It is under this heading that we must, unfortunately, chronicle a diminution in the Bishop's powers. Not that the Code itself demands it: Canon 4 would seem to guarantee the faculties already granted in this way-say, for us, in the Formula Sexta. But, to upset our best-laid schemes, the declaration of the Consistorial came like a bolt from the blue. The consequences of that decree, whether for the period of the war (still continuing) or for subsequent times, have been dealt with in detail by another contributor, and we need not repeat his remarks. Only, in regard to matrimonial dispensations, we may be allowed to point out that the effect is not quite so disastrous as might appear at first sight. The withdrawal of the faculty over the second and third degrees of consanguinity, and over the second of (lawful) affinity is, of course, a serious matter. But, outside that, and even on

1 Lehmkuhl, 1015 (but in milder form), 1046. On the 'guarantees IE. RECORD, Dec., 1918, pp. 485 sqq.; Feb., 1919, p. 128.

2 Vide infra, pp. 199-200.


3 25th April, 1918. For the text see I. E. RECORD, June, 1918, pp. 521-2. 4 Ibid. pp. 504-7.

See the Formula in the Appendix to the Maynooth Statutes (1900), p. 146, n. 3; and cf. p. 149.

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the pessimistic hypothesis that no faculties like those of the Formula Sexta will ever be given again, the difference in practice will be very slight. For-consanguinity in the fourth degree (collateral) is no longer an impediment (1076, § 2) neither is lawful affinity' in the third and fourth (1077, § 1), nor the old unlawful affinity' of any kind (97, § 1). Propriety ' Propriety resulting from engagements, or from valid marriages, has disappeared (1078); and the new impediment (ibid.) is too restricted to cause much trouble in practice. About the loss of conjugal rights the Code says nothing in its Canon on affinity (1077); so we may take it for granted that the penalty has disappeared (6, 5°). As for 'spiritual relationship,' even under the Formula Sexta Bishops were powerless when the impediment was one between the baptismal sponsor and the child, or between the child and the person who conferred the baptism: they could deal with all the others, but all the others have now ceased to be diriment impediments (1079). There remains the impediment of crime' of the first species: but it will, we may hope, arise so seldom that the loss of the power to deal with it need not be regarded as a great calamity.

Powers of Priests.-The priest's faculties are, as we have seen, derived from three sources. One of them-delegation from the Bishop or from Rome-calls for no special mention. In the Code it remains the same as before, except in so far as it is modified by the general canons on the subject (199– 210) and by a few little regulations to be mentioned later. For our present purpose the other two are more important.

A°. Perplexed Cases.-These arose, 1°, when all preparations had been made for the ceremony, and when the marriage could not be postponed until a dispensation could be got from the proper authority in an occult impediment now detected for the first time; 2°, when, after marriage, one of the parties discovered such an impediment, and found it morally impossible to avoid living a married life


1 Cf. ibid. n. 3.
2 Cf. ibid. n. 4.

3 Cf. ibid. n. 3.

4 Cf. ibid. n. 5.

5 Ibid. n. 6.

Ibid. pp. 149-150 (decree of 1902). Cf. Lehmkuhl, n. 1035 (note). 7 Ibid. n. 5. On all these impediments, cf. I. E. RECORD, February,

pp. 128-37.

8 See article on 'Jurisdiction,' infra, pp. 204 sqq.

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