ON MARRIAGE IMPEDIMENTS AND DISPENSATIONS

Magnae Nobis

Encyclical of Pope Benedict XIV promulgated on June 29, 1748.

To the Kingdom of Poland, to the Primate, Archbishops and Bishops.

Venerable Brothers, Greetings and Apostolic Benediction.

It was a painful surprise to learn from trustworthy reports and letters that a certain false opinion had spread in Poland. It is said that some matrimonial dispensations had been granted and sent out, indeed, that they are customarily granted and sent out, by this Apostolic See, in which the canonical impediments for a legitimate and valid marriage are removed, even though one or both of the contracting parties openly profess a heretical sect. Since this could only be disseminated by injustice and intolerable calumny, We would be lacking in our Apostolic ministry if We did not clarify the constant rule of action in this matter. At the same time, We earnestly admonish and beseech all of you and your subordinates in Poland, a kingdom renowned for its faith and religion, to read and weigh the letters of matrimonial dispensation which are sent out by the Apostolic See for the people of that kingdom. We are certain that if there ever was any sin in this matter, it was not the fault of this Apostolic See or of its officials; truly it must be attributed entirely to the Ordinaries of places or to their ministers, who did not take care either to read or to weigh sufficiently the letters of dispensation which they received.

Condemnation of Marriages with Heretics

2. Nor is it necessary for us to prove in full the antiquity of the discipline by which the Apostolic See always condemned the marriage of Catholics with heretics. But it will be sufficient to bring forward only some evidence with which We may show that the same discipline and rule which has been diligently preserved down to our own time flourishes now, by Us no less religiously preserved. This is what our predecessor Pope Urban VIII testifies to concerning his own times in his Apostolic Letters dated December 30, 1624; these may be read in the book of Cardinal Albitius entitled De inconstantia in Fide , chap. 37, no. 127, where he writes: "Granted that We hold that the marriages of Catholics with heretics are all-together to be avoided, and, as far as it depends on us, We aim to keep them far from the Catholic Church." Also our predecessor Pope Clement XI, in the letters dated June 25, 1706, and found in the collection of his briefs and letters published in Rome in 1724, expresses himself no less clearly. On page 321 we read: "We consider it most important not to transgress the rules of the Church of God, of the Apostolic See, of our predecessors and of the holy people, all of whom shrink from the marriage of Catholics with heretics, unless the good of the entire Christian community should demand it." And in other letters dated July 23, 1707, in the same collection, page 391: "Indeed the Church shrinks from such marriages which present so many proofs of deformities and spiritual danger."

3. Our judgment in this matter is sufficiently clear in the Decretal Rescript published by our authority November 4, 1741, and printed in volume I of Bullarii nostri , no. 34, sect. 3, as follows: "In the first place his Holiness grieves very much that some Catholics today are demented in their base love. They no longer shrink from these destestable marriages which the Church has always condemned and forbidden. He praises those bishops who strive to restrain Catholics from marrying heretics by imposing more severe penalties. Also "He seriously admonishes all bishops and Vicars Apostolic, parish priests, missionaries, and other faithful ministers in Holland and Belgium to frighten away Catholics of both sexes from entering upon such marriages to the destruction of their souls, and to impede these same marriages by every good means, and to strive effectively to prevent them." Further along, concerning a marriage already contracted by a Catholic party with a heretical partner, we read: "The Catholic spouse, whether a man or a woman, ought to resolve to do penance for the grave crime committed, to beg God for pardon, and to strive to bring back to the Catholic Church the spouse wandering from the true faith and so to win his soul; this could obtain remission for the crime committed because, as has already been said, he will be forever bound by the chain of that marriage."

Heresy Must Be Abjured

4. When a dispensation is requested to allow a Catholic to marry a heretic or to remove some canonical impediment which exists between the contracting parties, neither the permission nor the dispensation is granted except with the addition of this expressed law or condition, namely that the heresy must first be abjured . Pope Innocent X was on his guard and ordered that such dispensations should not be granted at all unless there was proof, supported by authentic documents, that the heretical fault of the heterodox contracting party had been rejected under oath; this testimony was left us by Cardinal Albitius, at that time Assessor of the Congregation of the Universal Inquisition, in the tractate mentioned above, De Inconstantia in Fide , chap. 18, no. 44. Clement XI, in the Congregation of the Holy Office held in his presence on June 16, 1710, ordered the Archbishop of Malines to give no permission or dispensation for marriages to be celebrated between a contracting Catholic and a heretic unless the abjuration of heresy had indeed preceded; he ordered that the theologians who had opinions contrary to this practice be sharply admonished. Vicenzo Cardinal Petra recorded this in his Commentary on the Constitution XII in Suo C of John XXII, Operum , vol. 4, p. 76, no. 14.

5. Some examples are found of Roman Pontiffs who either gave permission to contract marriages or gave dispensations concerning some impediment, without the condition of first abjuring heresy. We say first of all that these concessions were very rare and most of them were granted for marriages to be contracted among the highest princes, and not without an urgent and grave cause, a cause which concerned the public welfare. Besides, opportune safeguards were always added, lest the Catholic spouse might be perverted by the heretical one; the former would know that he must strive for the conversion of the latter. In addition, children of both sexes born of the union must be educated in the sanctity of the Catholic religion. It is easy then to realize that in such concessions no opportunity for error was open to the executors unless they wished knowingly and deliberately to fail in their duty. Finally, from what We have said so far, it is obvious that the Apostolic See has always both disapproved and condemned such marriages unless the abjuration of the heresy preceded; it still abominates and detests them.

Justification for Dispensation

6. Sometimes the justifications for dispensations are not openly mentioned in the petitions; the ministers and officials of the Holy See cannot divine this. Therefore, to silence accusers and calumniators, it is sufficient to point out that every dispensation is given to a specified executor, who is to determine the truth of everything in the deposition. Since he knows that the marriage of Catholic with heretics is condemned by the Apostolic See, he can also understand that the evil of heresy, which affects one of the contracting parties and which is not mentioned in the letters of dispensation, was concealed from the Apostolic See. It is his duty to suspend the execution of such letters and to notify the Roman Pontiff and his officials of the reason for the suspension, as Pope Alexander III prescribed in his letter to the Archbishop of Ravenna. This was entered in the Codex of Decretals to insure its perpetual effect, in the chapter Si quando, de Rescriptis , where we read: "Diligently consider the nature of this business and either comply with Our orders or by your letter explain the reasonable cause which prevents you; for if you do not, We will maintain what was suggested to Us by an evil report."

Presumption that Both Parties are Catholic

7. In truth the circumspection of the Apostolic See and its officials does not stop here. Sometimes when a dispensation to remove some canonical impediment for a reasonable cause is requested it comes from a region in which Catholics live together with heretics. When it is not certain from other sources whether both of the petitioners or only one of them is Catholic, the above Pontifical officials always presume both to be Catholics. Therefore they set forth their wishes in a little book (called Supplicationum ) to which the Papal signature is applied: "The afore-said petitioners, who are truly members of the orthodox faith and live under obedience to the Holy Roman Catholic Church, and intend so to live and die, etc." These words agree with others which are added in provisional and conditional form, namely: "Provided the petitioners mentioned are truly worshipers of the orthodox faith, and live in obedience to the Holy Roman Church and intend so to live and die."

8. Considering the above, We ask: when letters of matrimonial dispensation are conceived in such words and sent in that way, if later it is learned that the contracting parties are heretics, or one of them is Catholic and the other heretic, and nevertheless the dispensation is executed, whose fault is it and who can be accused of issuing an improper dispensation? Is it he who in good faith has granted it after applying opportune safeguards and adding legitimate conditions; or is it not rather he who, without regard for such conditions and with no previous examination of the contracting parties, executes the dispensation and permits it to have an undue effect contrary to the will of the one granting it?

Girls Less Than Twelve Years Old

9. But some one may object that not all dispensations sent out for execution were armed with such clauses; for in the kindgom of Poland itself, not many years ago, a certain dispensation was sent from Rome which did not display any conditions of this kind. The dispensation concerned age in favor of a girl who was six months short of 12 years, which is the legal age for girls to enter matrimony. In the concession it was explained that "craft complemented age so that legally she could contract marriage." Hence it should be considered a declaratory document rather than a dispensation, since the faculty of contracting marriage before the time prescribed, as often as craft supplies for age, comes from the very provisions of the law and canons. Indeed the bishops themselves and the ordinaries of places may decide on this question, which is one of fact: whether indeed craft, as is stated, has supplied for age. Consequently they have the authority to give permission to contract marriage. It is not necessary to appeal to the Apostolic See, except for greater solemnity of the act or "lest there might arise some question of the validity of such a marriage on the score of insufficient age," as the formula which is customarily used in declaratory letters concerning insufficient age states. Indeed canonists teach that there is an extraneous right of the Apostolic See and of ordinary judges to decide in this matter, whether indeed craft, as is asserted, may supply for age. But only the Holy See has the right of granting a dispensation to contract marriage to a minor, who is not yet mature for conjugal union, but has attained that use of reason sufficient to understand its purpose and nature. Indeed for the validity of matrimony, just as natural and divine law requires the use of reason, so positive canon law requires the natural power of conjugal union. The Roman Pontiff is above canon law, but any bishop is inferior to that law and consequently cannot modify it.

10. But let us pass over the question of whether permission to contract a marriage before the legal age, when craft supplies for age, is properly called a dispensation or rather has the force of a declaration, and therefore whether it ought to be classified as an act of grace or of justice. When one of the contracting parties or both are infected with heresy, and this is not mentioned in the application and could not be known in any other way, the apostolic letters granted in this matter lack those words and conditions which are customarily added to other dispensations. Let us see nevertheless whether others of equal force are present by which the executor of such letters should abstain from executing them. There can be no doubt about this, however, if we refer to what was required of the executor in such letters, "that he inform himself diligently about the premises" and see "whether it is really and legitimately obvious in such a minor that craft does supply for the defect in age." The same executor is commissioned to permit the applicant to marry "provided there is no other canonical impediment to contracting matrimony with a person legally free to marry, or with a person to whom an Apostolic dispensation has been granted, according to the norms of the Council of Trent." These words surely indicate that he should be no means permit a minor to enjoy such a dispensation or declaration if he learns that the minor was planning to marry a heretic.

11. But our discussion has been longer than We intended at the beginning of our letters. We do not at all regret this. We are concerned that the truth about facts and events be known and that false rumors spread against the sacred Chair of Peter do not find credence. If anything is done anywhere against the sacred canons, may the fault not be ascribed to the innocent.

12. But that the end of Our letters may return to where they began; to you, venerable brothers, and to the other ordinary bishops of that kingdom, We again earnestly command that you and your respective officials study the Apostolic Letters of dispensation which are sent to you for execution; certainly, if you find anything in them abnormal and of a new kind, you should look into its truth or falsity. There is much malice among men on earth, nor is it given us to know to what lengths the audacity of deceitful men can go. Indeed it has come to our ears that someone, disregarding the impediment of grade, married a heretical man to a Catholic woman; afterwards when he learned that his deed was open to criticism, he did not hesitate to assert that he was justified in this matter by an Apostolic dispensation which he had received from Rome. When, however, he was called upon to produce such letters of dispensation, he was never able to do so, since, in fact, he had never received them.

13. Truly We believe that such a detestable crime as this could not have been committed in the midst of the renowned nation of the Polish people, which We embrace with paternal love. Nor could the bishops of that kingdom, all of whom together and individually We hold in great honor, have participated in this. To you, however, venerable brothers, and to the flock committed to you, We bestow the Apostolic Benediction from the depths of our soul.

Given at Rome at St. Peter's, June 29, 1748, in the eighth year of Our Pontificate.