THE IRISH ECCLESIASTICAL RECORD. JANUARY, 1885. A SANATIO IN RADICE. GOOD many numbers of the RECORD have appeared since the following purpose was announced: "Although it is proverbially casier to pull down than to build up, still we purpose in a future number to give our own views regarding the origin, nature, and effects of a dispensation in radice. If we cannot agree with our esteemed correspondent, we are not the less thankful to him for the zeal and the learning he has manifested in his valuable papers." Our readers may remember that the distinguished correspondent referred to had maintained with much ingenuity, that whenever a sanatio in radice is granted, the marriage was really valid from the beginning, and that the effect of the sanatio in such cases is "nothing more than judicially to recognise the case submitted to have been exempted from the impediment, and, therefore, to declare it a good and valid marriage ab initio notwithstanding the impediment." We observed at the time that the writer by adopting one false premiss, was driven by the very logical acuteness of his mind, to this novel conclusion. He accepted without question the opinion held by Perrone (De Mat. Christiano, L. ii., sect. i., cap. iv., art. iii.), and attributed by him to Benedict XIV., that this form of dispensation is available even after the retractation of the original consent. On this supposition it is no wonder that our correspondent saw no escape from the difficulties of the position except in the theory of the initial validity of the marriage. 1 I. E. RECORD, March, 1882, p. 171. VOL. VI. A And, without doubt, if it could be proved that the sanatio in radice had been granted, or could be granted after the original consent had been actually and efficaciously withdrawn, this theory would seem to be almost the only one capable of intelligible defence. For, marriage is a contract, and every valid contract necessarily requires the consensus duorum in idem placitum. As this consent does not exist after its retractation, the marriage rendered valid by the sanatio, must have been valid before the retractation took place, and, therefore, ab initio. But, as it cannot be shown that Benedict XIV., or indeed any other of the Supreme Pontiffs, ever granted a sanatio in radice after the actual withdrawal of the original consent (unless, on the condition of its renewal), this theory is deprived of all solid foundation. In We must look elsewhere, therefore, for an explanation of this particular form of matrimonial dispensation. giving the exposition which seems to us to be the true one, our only fear is that instead of being encompassed with difficulties, it will be looked on with mistrust on account of its very simplicity. Some readers will probably refuse to accept it, simply because it recognises no mystery-no special difficulty even-connected with a question which so many have been in the habit of regarding as a theological crux. We may begin by remarking that marriage as a natural contract, is placed under the dominion of the Natural Law, and as a Sacrament or sacred contract, is subject to the legislative power of the Church, just as civil contracts are under the jurisdiction of the State. Strictly speaking, the Natural Law admits of no dispensation, because it commands what is intrinsically good and obligatory, and it forbids what is intrinsically bad and sinful. But the laws of the Church, like the laws of the civil power, admit of multitudinous change and relaxation. Sometimes it is found that the application of a particular law presses too severely on individuals who, on account of the peculiar circumstances of their position, would have to suffer in some way not intended by the legislator, unless the law were relaxed in their favour. Sometimes, too, the effects that have already followed from the enforcement of the law are found to be, as regards particular parents or their children, exceptionally severe, and admittedly injurious. The supreme power, both in Church and State, has surely authority to make provision for these exceptional cases. The legislator may, as is obvious, not only exempt such persons from the operation of the law in regard to the future, but he may also annul the inconvenient effects that have followed from the enforcement of the law in regard to the past. That is to say, he may provide that in these exceptional cases, those who have suffered unduly, or those to whom the supreme ruler wishes to extend a special favour, are to be henceforth regarded as if they had not been brought under the operation of the law from the beginning. He may, therefore, command that such persons, or their children, are to be spoken of, and are to be treated in all respects as if they had never suffered from the operation of the law. In a word, he may restore them to that legal position which they would have enjoyed if they had never been affected by the particular law. Nor is this a mere question of words or of empty forms. On the contrary, such a relaxation or annulling of the law, with a retrospective effect, produces very substantial results compared with an ordinary dispensation. An example or two will serve to bring out the difference clearly. Down to a recent period we frequently find amongst the legislative enactments of the English Parliament, bills of attainder, or bills of pains and penalties, as they were sometimes called. The usual consequences of such extreme penalties included forfeiture of real and personal estate, corruption of blood, &c. The removal of these penalties might be effected either by the king's pardon, or by an express Act of Parliament. In the former case, new inheritable blood was imparted, so that the children born after the pardon had been granted, might inherit from their once attainted father. But in the latter case, when the attainder was removed by a special Act of Parliament, the children born before the removal of the attainder, as well as those born after, were entitled to their lawful inheritance. Thus, we read that in the case of Lord Stafford, who had been attainted by the Long Parliament, the attainder was reversed after the restoration of Charles II., and all the records of the proceedings against him were cancelled by Act of Parliament. Were he living, therefore, he would have been restored to the same position in the eye of the law, as if he had never incurred the penalty of attainder. No man could make use of the attainder for the purpose of withholding from him, or from his children, any of the rights or privileges they would have enjoyed if the attainder had never been passed. Let us now take an example borrowed from ecclesiastical legislation. This example is all the more useful, as it is constantly referred to by canonists as the type of the sanatio in radice. Boniface VIII. had prohibited, under pain of excommunication to be incurred ipso facto, the levying of tribute on ecclesiastical property or persons. The payment of such tribute, or taxes, as we should call them, was forbidden under the same censure. After a time it was found that the prohibition could not practically be observed, and the penalty in the circumstances led to no small amount of perplexity and of inconvenience. Accordingly, Clement V., in the Council of Vienne, consulting for the tranquillity of souls, not only revoked the Constitution of Boniface VIII., but furthermore annulled all the effects that had already followed from the promulgation of that Constitution. "Nos," he says, "de consilio fratrum nostrorum, Constitutionem et Declarationem seu Declarationes praedictas, et quidquid ex iis secutum est, vel ob eas, penitus revocamus, et eas haberi volumus pro infectis." The Gloss, commenting on the words, “pro infectis," observes, "per haec puto quod excommunicatus ex viribus illius Constitutionis (Bonifacii) absolutione non egeat. Et vide quanta est papalis potestas circa ea quae simpliciter sunt de jure positivo, quia revocat illa uti ex tunc." Here we have the well-known text of Canon Law, Clement. Quoniam, de Immunitate Ecclesiarum, which supplies the distinction between a dispensation ex nune and ex tunc, and which is so frequently referred to as the key for the proper understanding of the nature of a dispensatio or sanatio in radice. What, then, did this revocation of Clement V. effect? 1o, It caused the excommunication to cease, so that those who afterwards levied tribute on ecclesiastical property did not incur the censure. 2o, It annulled the excommunication and its effects in case of those who had previously incurred them. 3o, It commanded all men to speak of those persons, and to treat them, as if they had always remained free from the excommunication. Hence, in any legal or judicial proceedings, referring to events which occurred even while the censure lasted, the excommunication could not be quoted as a bar to any right or privilege these persons might claim. They were in fact restored to that position in the eye of the law which they would have occupied if they never had been excommunicated persons. Still this did not set aside the fact that they had been excommunicated, just as the reversal of Lord Stafford's attainder did not undo the fact that he had been attainted. In both cases there was a double action--one producing its effects ex nunc-namely, the removal of the excommunication, and the reversal of the attainder; the other er tune-namely, the restoration of those legal rights. and privileges previously withheld by the excommunication and by the attainder. Men were not bound, indeed, to believe that the attainder or the excommunication had never been incurred, but they were bound to regard these civil and ecclesiastical punishments as if they never had any existence in these individual cases. Now, there is nothing mysterious, nothing incomprehensible in this exercise of temporal or of spiritual authority. On the contrary, it will be readily conceded that the exercise of such power is at once reasonable, and required for the equitable administration of both civil and ecclesiastical law. But, in truth, there is hardly more difficulty in understanding the meaning of the sanatio in radice as applied to an invalid marriage, than there is in understanding the retrospective effects of the reversal of the attainder, or of the annulling of the excommunication. For, what is a sanatio in radice? It is such a revocation of the existing canonical impediment as will recognize the sufficiency of the original consent (virtually persevering) to constitute now a valid marriage, and as will legally annul all the effects which have hitherto followed from the existence of the impediment. This is substantially the meaning attached to the sanatio from the time of Benedict XIV. to the present day. It will be sufficient to cite one or two modern authorities: "Sanatio autem in radice, praeter valorem matrimonii nunc oriturum, id ex potestate Ecclesiae efficit ut alii effectus v.g. legitimatio prolis et quae ab illa pendent, ita sustineantur ac si matrimonium ab initio validum fuerit." (Lehmkuhl, De Mat. n. 828.) Quare matrimonium in praesenti vires accipit per hujusmodi legis revocationem, qua subtrahitur id quod impedimento erat quominus consisteret, illudque consideratur veluti ab initio validum, proindeque omnes effectus juridici qui ex lege prohibente prodierunt ex sese, ita coram lege disparent, ac si nunquam extitissent."-(Zitelli, De Disp. Mat., p. 104, n. iii.) |