"Restat ut realis effectus hujus actus potestatis locum tantum in praesenti et futuro possit habere, sed cum respectu ad praeteritum. Scilicet abrogata lege irritante consensus conjugum perseverans, ut supponitur, evadit eo ipso efficax ad gignendum vinculum conjugale .... ut proinde opus non sit ulla renovatione consensus, neque ut conjugibus dispensatio manifestetur, si sint in bona fide." Palmieri (De Mat. Christ. Thesis xxxv., n. vi.). What, then, are the effects of the sanatio in radice? 3° It dispenses with the necessity of a renewal of consent. 4o It annuls ex tunc the legal effects which, in the particular case, the canonical impediment created. 5o It therefore gives to the children born during the existence of the impediment the canonical status of legitimate children.1 6o It imposes on all the obligation of recognising the marriage as if it had been valid ab initio. These effects clearly define the difference between the ordinary dispensation and the sanatio in radice. In case of the ordinary dispensation the previous consent is of no account. It is not at all recognised by the Church. The chief effect of the ordinary dispensation is, to make it possible for the parties to give now a valid consent. But when a sanatio in radice is granted, the original consent is still the radix of the valid marriage. Hitherto, owing to the impediment, that consent produced no effect; but now, when the impediment is removed, it exercises its full influence and creates a valid marriage. Again, in case of the ordinary dispensation, there is no retrospective effect produced. The subsequent marriage will, no doubt, to a certain extent, cause the children previously born to be regarded as legitimated ex nunc. I Whether this effect extends to the civil rights of the children is a question on which theologians are not quite agreed. Very many, following Sanchez and Benedict XIV., hold that temporal rulers are bound to recognise the retrospective effect of the sanatio in radice, and, therefore, to deal with the children of a marriage to which it has been applied, as legitimate children. Others with Palmieri (1. c.) maintain that though it is very congruous, still it is not obligatory on temporal rulers, to recognize in temporalibus the legitimacy of the children. Hence, he concludes, "Quocirca videri posset non damnandus Princeps violatae ecclesiasticae auctoritatis, qui v. g. successionis jura negare vellet proli natae ex matrimonio invalido etsi dispensatio (in radice) sequatur." But it will not legally remove the antecedent disqualification. In regard to the last effect mentioned, Palmieri (1. c.) well observes that the sanatio by no means compels men to believe that the marriage was valid from the beginning, but it obliges them to treat it for all practical purposes as if it had been valid. "Fit praeterea," he says, "ut hoc matrimonium debeat ab omnibus juridice spectari tanquam legitime contractum ab initio, prolesque ante dispensationem suscepta tanquam legitime nata. Non fit quidem ut homines judicare debeant matrimonium ab initio fuisse legitime contractum; hoc falsum est, nec ulla est potestas, quae ad falsum asserendum cogere nos possit; sed fit ut haberi debeat matrimonium tanquam ab initio legitime peractum, exclusis omnibus effectibus impedimenti dirimentis quod abrogatur." It should be observed, too, that these effects are separable one from the other. Thus, if there be no children, the chief object of the sanatio may be to dispense with the necessity of a renewal of the consent. If there be children born of the union of the parties, a main object of the sanatio usually is to establish the legitimacy of these children. It has been asked whether the sanatio in radice may be granted in the interest of the children, after the death of one, or even of both of the parents. Although it is true that in this case the full definition of sanatio cannot be verified, still it is equally true that in consideration of the original consent, and its perseverance till the death of one, or of both the parents, the Pope may anuul the effects of the diriment impediment er tunc, and therefore give the children the legal status of legitimate children. With a proper understanding of its meaning there can be no inconvenience in classing this operation under the title of sanatio in radice. From what we have said it is sufficiently obvious that certain conditions must be present before a sanatio in radice can be granted. First of all there must be question of an ecclesiastical impediment. The Supreme Pontiffs have never undertaken to grant a sanatio when there was question of an impediment instituted by the Divine or by the Natural Law. "De juris naturalis presse dicti impedimentis non est quod loquamur," says Perrone (1. c.) sed neque de impedimentis divini juris ambigi potest. . . . ac proinde nunquam ac nuspiam ecclesia sanavit matrimonium initum cum actuali impedimento ligaminis quod juris divini est. Ex quo sequitur omnia conjugia quae inita fuerint cum aliquo impedimento sive juris presse naturalis, sive juris divini, esse omnino insanibilia." Secondly. The parties must have intended ab initio to contract marriage, and, therefore, must have given mutual consent sufficient per se for a true marriage, "alioquin deest radix quae sanetur ut enim ait Benedictus XIV., in copula manifeste fornicaria nulla est. radix matrimonii." Perrone (1. c.) Hence the parties to the contract must either be ignorant of the impediment, or if conscious of its existence they must have been mistaken regarding its diriment effect. If one of the parties be conscious of the impediment, and consequently mala fide in expressing consent, or afterwards comes to knowledge of the impediment, practically speaking a new consent must be given by that party, and in such circumstances the full meaning of the sanatio cannot be realized. "Quod si alteruter putativorum conjugum nullitatem matrimonii scivit, aut antea sanationem comperit, ille practice novum consensum dare debet: haec igitur non perfecta sanatio in radice est, sed solum alterius conjugis ignari consensus in radice sanatur." (Lehmkuhl, De Mat. n. 831.) The Thirdly. It is required that the consent originally given should not have been absolutely withdrawn. It must, therefore, virtually or habitually persevere. necessity of this condition is obvious. The marriage was not valid by reason of the original consent, on account of the impediment. When, therefore, the marriage contract comes into existence on the removal of the impediment, the consent which creates the contract must be present. From the fact that a sanatio in radice was granted, even after one of the parties had applied to the Ecclesiastical Courts for a declaration of the nullity of the marriage, as occurred in some of the cases mentioned by Benedict XIV., Perrone was led to believe that the sanatio could be granted notwithstanding the absolute withdrawal of the consent by one of the parties concerned. But he was not warranted in drawing from the premises such a conclusion. All they prove is that the person applying for a declaration of the invalidity of the marriage had an interpretative wish to withdraw from the supposed marriage; not that he had absolutely and efficaciously withdrawn the original consent. "Si sola est velleitas discedendi, non vero propria voluntas, nil impedit quin ecclesia matrimonium sanare possit. At etiam in magnis discordiis vix aliud concipitur aut concipi potest a discorde conjuge quam sola velleitas discedendi ab altero, et a rinculo matrimonii. . . Et re quidem vera, teste Benedicto XIV., sanatio data est matrimonii cujus solutionem vir jam petierat, sed ex causa quae vana erat et quam S. Congr. rejecerat, quum postea reipsa ab uxore quae instabat pro sanatione manifestaretur aliud impedimentum vere dirimens quod censebant viro esse incognitum." (Lehmkuhl, 1. c. n. 831.) Fourthly.-An urgent cause is required. No doubt the Supreme Pontiff could, if he so desired, grant a sanatio without such a cause. But the grant would be invalid if in the application the urgency of the cause were notably exaggerated. This form of dispensation is a departure from the ordinary procedure of ecclesiastical jurisprudence; it is exposed to more risk than the ordinary form, because it relies on the consent originally given, and dispenses with the necessity of its renewal. It is not, therefore, desirable to have recourse to it except in cases of recognized necessity. The causes usually admitted as sufficient are clearly set forth by Cardinal Caprera in his Instructions to the French Bishops in 1801. They are, 1°. When there is question of the invalidity of a large number of marriages, such as occurred in France after the Revolution, where, as is obvious, the necessity of a renewal of consent in each case would be attended with grave danger and inconvenience. 2o. Where the impediment is known to neither of the parties, and cannot be made known without grave danger that one or other would refuse to renew the consent. 3o. Where the invalidity of the marriage arises from the neglect or oversight of the Ordinary, parish priest, or confessor. 4°. Where it is very desirable that the children should obtain the benefit of the fullest form of legitimation. 5o. Where, as we have said already, one of the parties is aware of the impediment, but it cannot be manifested to the other without risk or scandal, as in the case of the impediment of affinity arising ex copula illicita. We have now given what appears to us to be the true meaning, the circumstances, and the effects of this peculiar form of matrimonial dispensation. As the result of our necessarily brief inquiry, we are disposed to adopt the words of D'Annibale (De Matr. n. 377. Nota 22): Haec sanatio [in radice] in qua explicanda quidam ex Nostris et ex Canonistis, quasi in re nodosa laborant, res est, si quid opinor, expedita." 86 THOMAS J. CARR. THE LAW OF CHARITABLE BEQUESTS IN IRELAND. I-INTRODUCTORY. 1 T was once remarked by Lord Cairns, in giving judgment in a case well known to lawyers, that "there is not, perhaps, one person in a thousand, who knows what is the technical and the legal meaning of the term 'charity.'" It is not, indeed, to be supposed that this judicial dictum was intended to apply to the members of that learned profession of which Lord Cairns is so distinguished an ornament. And on the other hand, as regards the public at large, it may perhaps seem that the absence of minutely accurate knowledge on a point of law so purely technical as this can involve no inconvenience, as surely it implies no reproach. In the making of wills, no doubt, the services of a legal adviser are not always within reach. And in many such cases it may be necessary to make provision for charitable, as well as for other bequests. But, to those who are not acquainted with the special complications that surround this branch of the law, it may perhaps appear that for the due making of a "charitable" bequest it is by no means necessary to have an accurate knowledge of the technical legal meaning of the term "charity". no more, for instance, than it is necessary to be able to define with technical accuracy the legal meaning of such terms as "chattels" "real" and "personal," things "corporeal" and "incorporeal,” legacies "general," "demonstrative," and "specific," in order validly and safely to bequeath a sum of money, or a collection of books, as a gift to a friend. 1 Dolan v. Macdermot, Law Reports, 3, Ch. App. 678. |