during the period required to secure a dispensation in the ordinary way. Various methods of escaping the difficulty were suggested. It was a fairly common view that the impediment probably ceased in both cases, but that, for precaution sake at least, a normal dispensation should be procured as soon as possible. And it was noted by some that the most satisfactory course would be to have the Bishop delegate to his priests the powers he enjoyed himself in the circumstances.2

The new rule is more definite. It is given in Canon 1045, § 3

In the same circumstances [as those specified in § 1 and § 2], the same faculty [covering both cases] is enjoyed by all those mentioned in Canon 1044 [the parish priest, assisting priest, and confessor], but only in occult cases in which even the local Ordinary cannot be approached at all, or only at the risk of violating a secret.

6

are

The parish priest, assisting priest and confessor the same as those specified below in connexion with Canon 1044. The parish priest and confessor may be called upon to exercise this faculty any day, and in the normal run of circumstances: the assisting' priest, in so far as his function here differs from that provided for in Canon 1044, will be called upon only when it is foreseen that for the next month no more competent man can be secured (1098, § 1). The activities of all three are, however, restricted to cases in which two conditions are fulfilled: 1°, the impediment must be occult'; 2°, a timely dispensation from the Ordinary must be either impossible, or possible only at the risk of violating a secret. Some may take secretum here in the sense of sacramental seal.' That may be the meaning: but, until we hear more on the subject, we prefer to take the term in its unrestricted sense. Of a sacramental secret the confessor would have heard, but the parish priest and assisting priest, as such, would know nothing.

A comparison between the old law and the new would seem to justify the following statements: 1°, the conjectures of the past have given place to definite teaching; 2°, under the old law, and according to even the most favourable view, the priest was only empowered to declare that the impediment had ceased to bind ; now he is officially commissioned to grant a real dispensation; 3°, the two cases are put definitely on the same footing-in the old 1 Lehmkuhl, nn. 1054-5. Vide supra, pp. 193-4. 4 Vide infra, pp. 199-200.

2 Cf. Marc, n. 2048.

law there was a tendency to favour the first; 4°, the new legislation seems to make greater concessions to the natural obligation of not violating a secret: 5°, the old and the new, however, agree completely in one point-the im pediment must be occult.'

B°. Danger of Death.--The extent of this faculty has been discussed above. It only remains to see in what circumstances the law confers it on a priest. The answer is found in Canon 1044 :

In the same circumstances as those specified in Canon 1043, and only for cases in which not even the local Ordinary can be approached, the same dispensing power [as is described in 1043] is held by the parish priest, by the priest who assists at the marriage in accordance with Canon 1098, § 2, and by the confessor-the latter, however [being empowered to exercise it] only for the internal forum in the act of [hearing] the sacramental confession.

The confessor is new in this connexion. But the parish priest and the 'assisting' priest are not. To follow their fortunes intelligently, we must recall what has been stated above. Under the Ne Temere (art. vii.) any priest might validly and lawfully assist at a marriage when, in danger of death, the local Ordinary or parish priest (or delegate of either) could not be secured, and when the marriage would legitimate the children or bring peace of conscience to the parties themselves. The priest assisting in these circumstances was empowered, by a subsequent Roman declaration, to dispense from nearly all diriment impediments and a still further declaration made it clear that the parish priest himself shared in the privilege-when the Ordinary or his delegate were out of reach. Now, the Code (1098) changes the Ne Temere provision: the clause about legitimation and peace of conscience has fallen out, and the consequence is that the 'assisting' priest (or, in his absence, the witnesses alone) will be competent in many cases for which the Ne Temere would have disqualified him. But, if he is called upon not merely to assist but also to dispense, the old restrictions reappear the clause about legitimation and peace of conscience creeps back into Canon 1043. But it is accompanied by other clauses (and, if one might say so, omissions) that, as we have seen above, extend his faculties, and those of the parish priest, beyond anything the Ne Temere or the declarations of 1909 guaranteed. The net result is that he can assist in a greater number of cases (in virtue of the clause

omitted in Canon 1098) and can dispense in a greater number of impediments (in virtue of the wording of Canon 1043) than was ever possible before. Given the necessary circumstances, he can deal with all impediments (even the impedient) in the same way as the Ordinary himself. And the declaration in favour of the parish priest on the 29th July, 1910,1 is paralleled in the special mention of ' parochus in Canon 1044.

But the power of all three-parish priest, assisting priest, and confessor-is confined to the case in which the Ordinary cannot (morally speaking) be approached. That condition will not trouble the assisting' priest: he could not be assisting' at all, if it had not been fulfilled already (1098). But the parish priest and the confessor must take account of it.

Finally, we note that, for the purposes of the external forum, the parish priest, or assisting priest, must inform the local Ordinary that the dispensation has been given, and record the fact in the matrimonial register (1046). For obvious reasons there is no mention of such an obligation in the case of the confessor: his dispensation is covered by the seal, and would be useless in the external forum in any case (1044: cf. 1047). For similar reasons, we may take it, the same exemption will often be extended to the priest who acts in accordance with the prescriptions of Canon 1045, § 3.

Some Minor Matters.-There used to be considerable doubt as to how far a dispensation, granted for the internal forum, might be made available in the external. Many of the rescripts contained a clause stating that the dispensation was of no avail in the external forum'; and in such cases it might easily happen that, if the impediment became public, a separation would have to be insisted upon, externally at least. Even in such circumstances, though, the Bishop was advised to accept the statement made by the confessor with the consent of the parties affected.* Canon 1047 solves the difficulty. In the internal forum, a distinction is drawn between the sacramental, and the nonsacramental, sphere. A dispensation granted in the first is of no value externally, and no record is kept of it. In the second, a record is kept-in the secret episcopal archives (379) and the dispensation will meet all requirements, if the impediment ever becomes public. But both these

1 Vide supra, p. 195 (note 2).

2 Lehmkuhl, 1048.

regulations are subject to the general exception-' unless the rescript of the Penitentiary states the reverse' (1047).

It was always regarded as at least very unbecoming that, when a case had been submitted to Rome, any inferior authority should meddle with it, especially in the external forum.1 But the legal position on the matter was not very definite. Canon 1048 remedies the defect by stating that the inferior still retains whatever authority he held in the matter, but that he is not to exercise it without grave and urgent reasons, and without informing the Holy See of his action. With that regulation we may couple another, given in an earlier canon. When a favour has been refused by Rome, the local Ordinary can do nothing without the assent of the Congregation or Office first appealed to (43).

General Indults.-The three Canons (1049-51) would have been of more importance if the decree of April last had not been issued. However, in expectation of better times, we may take a slight interest in them still.

The first (1049) contains two provisions: 1°, power from general Indult to deal with an impediment may be availed of, even when the impediment is multiple : this had been already stated in a reply of the Holy Office given on the 15th June, 18752; 2°, the restrictive regulations governing 'cumulation are abolished; if a man has power over several different impediments individually, he has power over them also when they are combined in one and the same case. The former strict regulations, it will be remembered, applied only to Indults: they did not affect 'ordinary' power, nor, most probably, the concessions of 1888 and 1909; nor do they affect the powers now guaranteed by Canons 1043-5.

The second (1050) prescribes, 1°, that when an impediment, over which a man has no power, is combined, in a particular case, with a public impediment with which he can deal by Indult, the Holy See must be applied to for both this is only a special instance of a well-recognized principle; but 2°, by way of mitigation, it adds that he may exercise his faculties over the 'Indult' impediment, if the latter is discovered only after a dispensation in the other has been obtained from the Holy See. What if the 'Indult' impediment is occult? The Canon says nothing

1 Lehmkuhl, 1025 (note), quoting D'Annibale. Cf. n. 1045. 2 Ibid. n. 1018. * They are given by Lehmkuhl, n. 1018. 4 Cf. ibid. e.g., n. 1045.

about it, and so we may take it for granted that Rome need not be informed. That is intelligible enough if the other is a public impediment, submitted to the Congregation of the Sacraments. But if both are occult? There would seem to be no great reason why both could not be submitted privately to the Penitentiary. Still the letter of the law seems against imposing any obligation.

In the last (1051) we have a provision for the legitimation of children. A dispensation granted by ordinary power or in virtue of a general Indult-not of a special rescript-involves ipso facto the legitimation of all children that are not 'adulterous' or 'sacrilegious.' This is much more generous than a decree of 19091 which required a special rescript for the purpose when the dispensation was granted for 'defamatory causes and even goes somewhat beyond, though it is fully in harmony with, a more liberal declaration of the Holy Office in 1903.2 When there is no question of an impediment, we may add, the subsequent marriage of the parents secures the legitimacy without further trouble (1116).

Concluding Canons.-One controversy is set at rest by Canon 10523: if, for instance, the second degree is mentioned in the petition or reply, the dispensation is valid, though the actual impediment is one in the third degree. But the Canon goes further-and this is an addition. If there be two impediments of the same kind-say, of consanguinity--and if, through mistake or otherwise, one of them (equal to, or less serious than, the other) is left unmentioned, the dispensation granted is valid. A and B, e.g., are related in the second and third degrees: the first fact is mentioned, and the second suppressed: a dispensation is granted on these terms; the marriage is valid.

Canon 1053 reproduces a decree to which we have referred already. The next (1054) has been dealt with above. In No. 1055 we have an old regulation repeated almost verbatim; the executor may, as a rule, we take it, delegate the extern Ordinary (57). Canon 1056 is somewhat more rigorous than previous laws: strictly speaking, the fees charged for dispensation in banns would seem

1 Congr. of the Sacr., 29th January; Lehmkuhl, 1016 (note).

2 Lehmkuhl, 1016 (note)

3 Ibid. n. 1035 (note).

4 I. E. RECORD, February, 1919, p. 131.

s Vide pp. 190-1.

• Vide Marc, n. 2053.

7 They are given by Gasparri, De Matr., nn. 188 (325), 430, 446, 460-1.