UCSB LIBRARY BETROTHMENT AND MARRIAGE (^ C^^ & BETROTHMENT AND MARRIAGE A CANONICAL AND THEOLOGICAL TREATISE WITH NOTICES ON HISTORY AND CIVIL LAW BY CANON DE SMET, S. T. L. PROFESSOR OF THEOLOGY IN THE GRAND SEMINAIRE DE BRUGES. REVISED AND GREATLY ENLARGED BY THE AUTHOR VOLUME I Translated from the French Edition of 1912 BY THE REV. W. DOBELL. CHARLES BEYAERT PUBLISHER BRUGES (Belgium) B. HERDER 17, South Broadway, S l LOUIS Mo 1912 APPROBATION. We willingly approve and highly recommend to the clergy the canonical and theological treatise, Betrothment and Marriage, by the Very Rev. Canon A. De Smet, S. Th. L., professor in our < Grand Seminaire ; this work, full of solid doctrine, bears testimony to considerable labour and great discernment. Bruges, 20 August, 1912. f G. J., Bishop of Bruges. PREFACE This English translation of the treatise, De Sponsalibus et Matrimonio, is the second version of that work which the author has offered to the public. A French translation, from the second Latin edition, made its appearance a few months ago, and in his preface the translator claimed for it that it was more than a mere translation, that many points had, in fact, been the object of fresh study and of conscientious revision on the part of the author, so that the volume, then issued, gave to its readers the equivalent of a third edition of the original work. The like may be said, and with even greater reason, of the present translation. Made directly from the French, its preparation has been followed throughout by the author with ceaseless care, and he has spared no pains to provide a work that should leave nothing to be desired in the way of doctrine or of erudition. In taking upon himself this task, the author was actuated, on the one hand, by a desire to meet the wishes of many brother-priests and aspirants to the priesthood among the English-speaking clergy ; and, on the other hand, by the hope of rendering a service to the educated laity, by placing in their hands a work which would enable them to obtain first-hand information on this important subject. Not to speak of additions and corrections, the entire translation has been supervised with the greatest care. It follows the exact lines of the original work (certain passages of a delicate nature being left in Latin), and faithfully reproduces every chapter. In it will be found a methodical and classic exposition of the doctrine and discipline of the Church in the matter of betrothment and marriage, from the point of view of canon law and of dogmatic and moral theology, together with a commentary, as complete as possible, on the modifications recently introduced. In addition, side by side with questions that properly belong to canon law and theology, will be found notices on history and civil law, printed in a smaller type, and giving an idea of the state and development of the ecclesiastical and civil law in this matter. The parallel exposition of the two laws and of their successive changes presents an interest which there is no need to emphasise. The work, in its English translation, is published in two volumes. An index to the complete work will appear at the end of the second volume. In conclusion, we may observe that, for the purpose of preserving the unity of the work, and in order to avoid interfering with the original arrangement of the chapters, the author has thought it better to deal with the English and American legislation on betrothment and marriage in the form of a supplement, rather than to insert that matter in the different chapters. The reader will have no difficulty in finding the corresponding places in the body of the work. The Translator. CONTENTS PAGE Preface V Sources XI Bibliography xvil BOOK I BETROTHMENT CHAPTER I THE NATURE OF BBTROTHMENT. Art. i. Meaning, Division and Expediency 3 Art. 2. The Constituent Element, or Consent 6 Art. 3. The Subject, or Contracting Parties 13 Art. 4. The Adjuncts of Betrothment 14. CHAPTER H THE EFFECTS OF BETROTHMENT ... 20 CHAPTER III IMPEDIMENTS OF BETROTHMENT. ... 25 CHAPTER IV THB DISSOLUTION OF BETROTHMENT ... 28 CHAPTER V THE REGULATION OF BETROTHMENT. Art. i. To whom the regulation of betrothment belongs . ... 38 Art. 2. Duty of the parish priest 38 APPENDIX THE ANTENUPTIAL PROCLAMATIONS. I. Existence of the law, Persons affected, Binding force . ... 44 II. Place, Number of times, Occasion, Form of publication ... 46 III. Causes that remove the obligation of publishing the banns . . 53 VIII IV. The obligation of revealing impediments 56 Scholion. Provisions of the civil law 61 BOOK II MARRIAGE PART I MARRIAGE IN GENERAL .... 67 Section I THE MATRIMONIAL CONTRACT IN ITSELF. CHAPTER I NATURE OF THE MATRIMONIAL CONTRACT. Art. I. Meaning and Origin of the Matrimonial Contract. ... 68 Art. 2. End of Marriage 79 Art. 3. Honourable nature, or Morality of Marriage .... 82 CHAPTER II THE CONSTITUENT ELEMENT OF THE MATRIMONIAL CONTRACT, OR CONSENT. Art. i. Matrimonial consent in general go Art. 2. Formalities of matrimonial consent 100 Paragraph I. Formalities to be observed 1. For validity 103 2. For liceity 123 Paragraph II. Limits of the new law 1. Principles 131 2. Applications and Rules 134 Art. 3. Conditional consent 145 Scholion. Different kinds of marriage ....... 154 Section II THE MATRIMONIAL CONTRACT CONSIDERED AS A SACRAMENT. CHAPTER I THE EXISTENCE OF THE SACRAMENT OF MARRIAGE. The matrimonial contract between baptized persons is a Sacrament of the New Law. Dogmatic and historical demonstration . . . 163 IX CHAPTER II CONNECTION BETWEEN THE CONTRACT AND THE SACRAMENT. In the marriage of Christians there is no real distinction between the contract and the sacrament of matrimony. Demonstration. Refu- tation ot contrary errors 173 CHAPTER III NATURE, MINISTBR, EFFECT, SUBJECT, CEREMONIES OF THE SACRAMENT OF MATRIMONY. Art I. Nature of the Sacrament 179 Art. 2. Minister of the Sacrament 181 Art. 3. Effects of the Sacrament 184 Art. 4. Subject of the Sacrament 185 Schoiion. Assistance of the parish priest at the marriage of persons unworthy to receive the sacrament 189 Art. 5. Ceremonies of the Sacrament of Matrimony 1. Rites actually in force 193 2. Ancient rites 196 Section III THE MARRIAGE BOND. CHAPTER I NATURE OF THE MARRIAGE BOND. Art. i. The conjugal duty 205 Paragraph I. Lawfulness of the sexual act between married persons . 206 Paragraph II. Rights and duties of conjugal relations 1. Existence of these rights and duties .... 215 2. Principles regulating the exercise of the conjugal right 217 Schoiion I. Conjugal relations in a doubtful marriage .... 234 Schoiion II. Onanism 235 Art. 2. Care and education of the children .*.... 248 Art. 3. Cohabitation Paragraph I. Right and obligation to cohabitation .... 255 Paragraph II. Corporal Separation Separation as to community of roof or cohabitation . 258 Separation a toro, or of bedchamber 367 Art. 4. Mutual love and assistance . 269 CHAPTER II EFFECTS OF THE CONJUGAL BOND. i. Constitution of a distinct family 271 2. Special relationship 272 3. Legitimacy of the children 273 CHAPTER III PROPERTIES OF THE CONJUGAL BOND. Art. i. Unity of the conjugal bond ........ 285 Art. 2. The indissolubility of the conjugal bond 296 Paragraph I. The law of indissolubility before the natural law . . 297 Paragraph II. Indissolubility before the positive divine law . . 307 Paragraph III. Derogations from the law of indissolubility 1. Dissolution of the marriage bond by the ancient Bill ofDivorce 309 2. Dissolution of the bond by the power of the Sovereign Pontiff 311 3. Dissolution of the bond by Religious Profession . . 317 4. Dissolution of the bond in the-Casws Apostoli . . 323 Scriptural foundation of the privilege .... 324 Object of the privilege 326 Conditions 329 Paragraph IV. The absolute indissolubility ot marriage ratum con- summatutn . 340 Teaching of the Church 341 Teaching of the Fathers and ecclesiastical writers . 347 Documents that present some difficulty . . . 348 Scholion I. Discipline of the Protestant and the Schismatic churches . 359 Scholion II. The Advantages of Marriage 360 Supplement. Civil divorce Paragr. I. Historical notice 361 Paragr. II. Provisions of the Belgian Civil Code 374 Paragr. III. Criticism of the law of civil divorce and corporal separa- tion 378 Paragr. IV. Moral corollaries 382 Section IV THE REGULATION OF MARRIAGE Paragr. I. Regulation of marriage of baptized persons. . . . 399 Paragr. II. Regulation of marriage of unbaptized persons . . . 419 Scholion I. The right of the State to sterilise its subjects. . . 423 Scholion II. The teaching of Protestants about the regulation of marriage. 426 Supplement I. Ecclesiastical regulation of marriage and its History . 428 Supplement II. Civil Marriage The Preparation 433 The Introduction 435 Belgian Legislation on civil marriage .... 439 Criticism of the Belgian civil legislation . . . 432 Corrections and additions 451-452 SOURCES Without reckoning the precepts of the natural law relative to this matter, and those of the divine positive law, contained in the Holy Scriptures, the principal sources of matrimonial law are the following : in the first place, for the common law, the decrees of the oecumenical Councils and of the Sovereign Pontiffs, together with the decisions of the Sacred Congrega- tions ; in the second place, for the particular law, the decrees of particular councils and the various diocesan decrees. These local ordinances must be taken into consideration, not only in those places in which they are binding, but also from a general point of view, since they furnish valuable suggestions for the solution of questions of the common law, as yet undecided. We shall here confine ourselves to pointing out the principal sources of matrimonial law, both general and particular. 1. COMMON LAW. I. Decrees of the Councils and of the Sovereign Pontiffs. The greater part of these decrees is contained in the various collec- tions ('), such as : A. Acts of the Councils : HARDOUIN, Ada Conciliorum et Epistolcz Deer dales ac Constitutions SS. Pontificum, Parisiis, 1715 (ending with the year 1672), 12 vols. in folio (). 1. The great collections do not all give the Canones Apostolorum, which are a collection of ordinances derived from various sources and consecrated by the usage of the primitive Church. PALMIERI gives the text of them, together with a commentary, at the end of his Tractatus de Matrimonio Christiana. 2. Besides the edition of Hardouin, there are also that of LABBEUS and Gos- SARTIUS, Sacrosancta Concilia ad regiam editionem exacta, Lutetiae Parisiorum, 1671-1672, 18 vols. in folio, and that of MANSI, Sacrorum Conciliorum nova et amplissima Collectio, Florentiae et Venetiis, 1759-1798,31 vols. in folio; since 1902, the continuation of this work has been taken in hand, and has now reached the 43rd vo i. \ye may also mention HEFELE, Histoire des Conciles, ed. Goschler et Delarc, Paris, 1869 ; Dom Leclercq is engaged in preparing a new edition, to be issued by Letouzey et Ane, of Paris ; the first vol. appeared in 1907, and the collection has at present reached the first part of the fifth volume (1912). XII THEINER, Ada genuina Concilii Tridentini, Zagrabiae, 1874, 2 vols. in 4 to ('). COLLECTIO LACENSIS, Ada et Decreta sacrorum Conciliorum recentio- rutn, Friburgi Br., 1870-1890 (to the Vatican Council inclusively), 7 vols. in folio. B. Bull aria : Bullarum, privilegiorum ac diplomatum Rom. Pontificum atnplissima colledio, opera C. Cocquelines, Romas, 1733 ss. From Leo the Great to Benedict XIV exclusively (1470), 28 vols. in folio ( a ). Bullarium Benedidi XIV, Mechlinias, 1826, 13 vols. in i2 mo . Bullarii Romani Conlinuatio (from Clement XIII to Gregory XVI inclusively), opera Barberi et Spetia (vols. 1-5) necnon R. Segreti (vol. 6 and following), Romas, 1835-1859, 20 vols. in folio. Ada Pii IX, Romas, 1848-1865, 3 vols. Allocutiones, Epistolce, Constitutiones aliaque ada prcecipua Leonis XIII ( 1870-1900), Brugis, 8 vols. in 8 V0 . Among the more important Constitutions and Acts of the Sovereign Pontiffs in the matter of marriage, we may mention : the Constitutions of Pins V, Sandissimum, of 20 Aug. 1566 ; Ad Romanum Pontificem, and Cum illius, of 28 Nov. 1566 ; Ad Romanum,, of i July 1568 ; the Consti- tution of Sixius V, Cum frequenter, of 22 June 1587 ; the Constitutions of BenedidXIV, Deimiseratione, of 3 Nov. iJ4i,a.ndMatrimonia,of 4 Nov. 1741 ; the Constitution of Pius V, Audorem Fidei, of 28 Aug. 1794 ; the Syllabus of Pius IX ; the Constitution of Leo XIII, Arcanum, f of 10 Feb. 1880. C. The Corpus Juris, comprising : 1. The Decretum of Gratian ( 3 ), or Concordia discordantium cano- num (*) ; marriage is there treated of in Part 2, Causa XXVII-XXXVI. i. A new and very complete edition of the Acts of the Council of Trent is in preparation, the commencement of which has already appeared, under the title : Concilium Tridentinum, Diariorum, Actorum, Epistolarum, Tractatuum Nova Collectio, Friburgi Br. 1901. Vol. i and a (constituting the i g t and the 2 nd part of the Diaria ) have appeared, as also vol. 3 and 5 (constituting the ist and the 2 nd part of the Ada ). 3. From the sixth vol. onward, this collection is entitled : Bullarium Romanum, 3. This immense collection of canons and decrees was preceded by several compilations of less importance, notably by : Burchardi Wormattnsis Decreto- rum Libri XX, and by the work of Ivo of Chartres : Panormia Ivonis Carnutensis (of which books 6 and 7 concern marriage). 3. Besides constituting a collection of canons and papal decrees, the Decretum Gratiani is at the same time a canonical treatise, especially in the Dicta. XIII 2. The Decretals of Gregory IX ('), in five books, of which the fourth book treats of marriage. 3. The sixth book of the Decretals of Boniface VIII, of which book 4 devotes three titles to the question of marriage. 4. The Clementine Constitutions, the fourth book of which is concerned with this subject : it comprises only one title consisting of a single chapter (*). NOTE, a/ The Compilations antiques may also be of some service. They are five in number, and are all antecedent to the collection of the Decretals of Gregory IX. b/ We make use of the critical edition of Em. Friedberg, both for the Compilations Antique ( ; ) and for the Corpus Juris (*). c/ Quotations from the Decretum of Gratian are made thus : c. i, C. XXX, 3 = chapter i, Causa XXX, question 3 ; those from the Compila- tions, thus : Comp. I, c. 3, IV, 3 ^ Compilation I, chapter 3, book IV, title 3 ; for the Decretals of Gregory IX : c. 2, X, IV, 3 = chapter 2, book IV, title 3, while the letter X denotes that the Decretals of Gregory are referred to () ; in our references to the sixth book of the Decretals, we write : c. 2, in VI, IV, 3 ; for the Clementine Constitutions : c. un., in Clem., IV, i. d/ The substance of the greater part of the canons and decrees will be ound in DENZINGER, Enchiridion Symbolorum, definitionum et declara- tionum, io th ed. (Bannwart), Friburgi Br., 1908 ; and also in SCHNEIDER, Ponies Juris ecdesiasticinovissimi, Ratisbonae, 1895. Note. For passages taken from the works of the Fathers and ecclesiastical writers, we shall refer principally to MIGNE, Patrologia cursus completus ; the first series of his Patrology (162 vols.) contains the Greek Fathers and writers ; the second (221 vols.) the Latin. We shall quote the Apostolic Fathers from FUNK, Opera Patrum Apostolicorum, 2 vol., Tubingse, 2 a ed., 1887 (a new edition there appeared in 1901). Recently also has been published 1. This collection especially contains the canons and decrees later than Gra- tian, together with the earlier decisions omitted by him. 2. The Extravagantes have nothing on the subject of marriage ; liber quartus vacat (i. e., remains unwritten). 3. Quinque Compilationes Antique, necnon Collectio Canonum Lipsiensis, Lip- sias, i88a, i vol. in 4'. 4. Corpus Juris Canonici, Lipsiae, 1879-1881, 2 vols. in 4 to . 5. The letter X is an abbreviation of the word Extra (outside), which formerly served to denote the Decretals of Gregory IX, because they constitute a collec- tion outside of the Decretum of Gratian. xiv Enchiridion Patristicum, by the care of ROUET DE JOURNEL, Frei- burg Br., 1911, to which collection of texts we shall refer now and then. II. Decrees of Roman Congregations. For our purpose, the most important decisions are those of the S. Congr. Concilii, of the Congr. S. Officii, of the S. Congr. de Propaganda Fide, and of the recently instituted S. Congr. de Sacramentis. They may be found, in part, in the various Collections, of which the principal are : the Thesaurus resolutionum S. Congr. Concilii (commencing with 1718), Romas, 1739- 1903 (162 vols.) ; PALLOTINI, Collectio omnium condusiomtm ei resohitio- num qua in causis propositis apud S. Congr. Concilii prodierunt ab a. 1564 ad a. 1860, Romas, 1867-1893 (17 vol.) ; Collectanea S. Congr. de Propaganda Fide, Romas, 1893 (') ; in part, in periodicals, such as the Ada S. Sedis, Analecta Juris Pontificii, Canonists Contemporain, 11 Monitore ecclesiastico, Analecta ecclesiastica, and other reviews, which we shall quote as occasion requires. Since i Jan. 1909, the acts of the Holy See and the Roman documents appear in an official Commentary, entitled Ada Apostolic(B Sedis. OBSERVATION. Beside the acts of the Councils and of the Popes, and the decrees of the Roman Congregations, it is useful also to consult, for the common law, the Rituale Romanum and the Catechismus Concilii Tri- dentini. Moreover, one can consult on the sources of matrimonial law : TARDIF, Histoire des sources du droit canon, Paris, 1889 ; LAURIN, Introductio in corpus juris canonici cum appendice brevem inlrodudionem in corpus juris civilis continente, Friburgi Brisg., 1889 ; VERING, Lehrbuch des katholi- schen, orientalischen und protestantischen Kirchenrechts, Freiburg in Br., 1893, p. 37-389 ; VIOLLET, Histoire du droit civil francais, 2 e &L, Pans, 1893, Livre I er : Les sources ; WERNZ, Jus Decretalium, I, Romas, 1898 ; SaGMiiLLER, Lehrbuch des katholischen Kirchenrechts, Freiburg in Br., 2 nd ed., 1909 ; DE BRABANDERE-VAN COILLIE, Juris Canonici et juris canonico-civilis compendium, ed. 7 ma , Brugis, 1903. i. There exists another edition of this Collectanea, in two volumes and arrang- ed in chronological order ; it appeared in Rome in 1907 ; our quotations, however, are ordinarily made from the first edition, which is better known and handier ; in exceptional cases we have recourse to the other, which we then quote as Collectanea*. XV 2. PARTICULAR LAW. The general collections which we have mentioned above contain many provisions of particular law, especially canons of national and provincial Councils. In addition to these, there are special collections which give the acts of national Councils exclusively. We may mention the Concilia Anti- quo. Gallic?, ed. Sirmundi, Lutetias Parisiorum, 1629, 5 vols. in folio, with a supplement ; the Concilia Germaniae, ed. Schannat et Hartzheim, Colo- niae Augustae, 1759-1775, 10 vols. in folio ; the Synodicum Belgicum, that is to say, the Acts of all the Churches of Belgium, from the Council of Trent to the Concordat of 1801, ed. De Ram, Mechliniae et Lovanii, 1828- 18580; Concilii Plenarii Baltimorensis Deer eta, of 1866 and 1884 (2 nd and 3 rd Councils), Baltimoras, Murphy ; Ada et Decreta Concilii Plenarii America LatincB (held in Rome in 1899), Romas, 1900, 2 vols. It is right also to mention the Instructio Austriaca (or Instruction ol Cardinal RdLUscherfprojudiciis ecclesiasticis quoad causas matrimoniales, in the Collect. Lacens., t. V, col. 1287 ss. ; as well as the Schemata et Postulata in Concilia Vaticano proposita, in the Collect. Lacens., t. VII, and in MARTIN, Omnium Concilii Vaticani documentorum Collectio, Paderbornae, 1873. For the particular law of the Diocese of Bruges, we have principally made use of the Liber Manualis Sacerdotum Dioecesis Brugensis, 2 a ed., Brugis, 1900 ; of the Collectio Epistolarum pastoralium, Instructionum, et StatutoruinEpisc. Brug. (1883-1903), 17 vols. ; of the Pastorale Dicece- sis Brugensis, Gandavi, 1838 ; and of the Statuta Dioecesis Brugensis, ed. 2 da , Brugis, 1890. Notes. As concerns the Civil Law, as a general rule, in the course of this work we take into consideration only the legislation of the Code Napo- leon (promulgated the 21 March 1804, and known by its present name since 3 Sept. 1807), which has remained in force in Belgium and France, almost in its entirety, to the present day (*). We follow the text of the Belgian Civil Code, while mentioning, as occasion requires, the modifications introduced into France, and the parallel legislation of other countries ( 3 ), as well as the provisions of the old Roman Law. 1. This collection contains only the Acts of the dioceses of Malines, Ghent and Antwerp. 2. Many codes of other countries are based on the principles that inspired the Code Napoleon, as is shown by PLANIOL, Traite eUmentaire du Droit civil, 50 6d., Paris, 1908-1909, t. I, n os 138 ss. 3. We give as a supplement at the end of the treatise, the principal matrimonial provisions of the English law and of the legislation in force in the United States ; XVI With regard to the sources : besides the Corpus Juris Civilis, Coloniae, 1624 (), for the Roman law, we refer, for the Belgian law, to the following sources : Les codes Beiges d les Lois speciales lesplus usuelles, ed. Servais d Mechelynck, Bruxelles, 1910 ; Le Moniteur ; Les Annales Parlementai- res d Documents Parlementaires ; Pasinomie ; Pasicrisie Beige ( 2 ) ; Pan- dectes Beiges (Picard et d'Hoffschmidt);for the legislation of other countries, we have most frequently had recourse to LEHR, Le Manage, le Divorce et la separation de corps dans les principaux pays civilises, Paris, 1899 ; and ROGUIN, Traite de Droit civil compare Le Mariage, Paris, 1904 ; in addition, for the juridico-civil part of our treatise, we have examined a number of works and periodicals mentioned in the Bibliography. also the dispositions of the new German Code, promulgated 18 Aug. 1896, and in force since i Jan. 1900; we likewise give a short resume" of the Canadian law. The text of the German Code, together with a commentary, may be found in LEHMKUHL, Das Bilrgerliche Gesetzbuch des Deutschen Reiclus, 7 Aufl., Freiburg in Br. ; DE MEULENAERE, Code civil Allemand et Loi d' introduction, Paris, 1897, gives a French translation of it. 1. Cf. LAURIN, o. c., part 2. The greater part of the Corpus Juris Civilis con- sists of the Digesta or Pandects of the emperor Justinian (irav and bexoucti = I contain, hence : a compilation of all the laws). The Digesta or Pandects are desig- nated by the letters D and P or TT, or again by if. (see LAURIN, o. c., p. 248). In the quotations, L. I, D, I, 5 signifies : Law i of the Dig., Book I, Title 5. The best edition of the Corpus Jur. Civ. is that of Mommsen-Kr iiger-Schoell. 2. There is also a very useful decennial collection commenced in 1880 and extending to 1909 inclusively, under the title of : Repertoire decennal de la Juris- prudence Beige. To the Pasicrisie there is also added a juridical review entitled : Revue de Droit Beige. BIBLIOGRAPHY (') I. Consulted Works. A. TREATISES ON THEOLOGY AND CANON LAW. 1. General. AICHNER, Compendium Juris ecclesiastic* , io a ed., Brixinse, 1905. BANGEN, Instructio Pradica de Sponsalibus el Matrimonio, 3 vol., Monas- terii, 1858-1867. BENEDICTUS XIV, Institutiones ecclesiastics, Tornaci, 1855, 4 vol. De Synodo diaecesana, Mechliniae, 1842, 4 vol. BucnBEx.GEB.,Kirchliches Handlexicon, Munchen, 1907-1911, V Ehe,Ehe- recht. Ehescheidung. CARRIERS, Prcelectiones theologicae. De Matrimonio, Parisiis, 1837, 2 vol. CASTELEIN, Droit Naturel, Namur 1903 IV, Le Droit domestique. Catholic Encyclopedia (The), New- York, V Marriage, (vol. IX, p. 691- 715) et V Divorce (vol. V, p. 34-69). Conferences ecclesiastiques de Paris sur le Manage, 5 vol., Paris, 1775. DE ANGELIS, Preelections Jiiris Canonici, Romas, 1880, Tom. III s . * DE BECKER, De Sponsalibus et Matrimonio Prcelectiones Canonica, 2" ed., Lovanii, 1903. DE LUCA, Summa Prcelectionum in libros Decretalium, Prati, 1904. DEVINE, The law of Christian marriage according to the teaching and discipline of the catholic Church, 2 nd ed., London, 1909. Encyclopedia Britannica (The), n th ed., Cambridge, V Divorce, vol. VIII (1910), p. 334-S4 6 et V Marriage, t. XVII (1911), p. 753-759- Examen du pouvoir legislatifde I'Eglise sur le mariage, Paris, 1817. FAGNANUS, Jtts Canonicum, sive Commentaria absolutissima in Quinque Libros Decrdales, Colonise, 1676-1682, 3 vol. In L. IV m . i. We have not included in this list general theological treatises, whether dogmatic or moral, nor compendiums of theology, though we have sometimes referred to them. Among the Authors given here, we have marked with an aste- risk those that we consider the best and most serviceable for our present purpose. Those thus marked may suffice for beginners. XVIII FERRARIS Lucius, Prompta Bibliotheca, Migne, 1852-1858, cum Supple- mento, Romas, 1899 : V Matrimonium, Sponsalia. *FEYE, De Impediments d Dispensationibus Matrimonii, Lovanii, 4 a ed., 1893. * GASPARRI, Tractatus Canonicus de Matrimonio Parisiis, 1892, 2 vol. ( J ). GERBAIS, Traite ditpouvoir de I'Eglise et des Princes sur les empechements du manage, Paris, 1698. GERLACH, Lehrbuch des katholischen Kirchenrechts, Paderborn, 1890. GENNARI-BOUDINHON, Consultations de Morale, de Droit Canonique et de Liturgie, i re Partie : Morale, 2 vol., Paris, 1907. Consultations 20, 41, 42, 46, 118, 119, 125, 127, 128, 135. - 2 e Partie : Droit Canonique, 2 vol., Paris, 1907. Consultations 6, 64, 66 et 71. REINER, Grundrissdes katholischen Eherechts, 5 Aufl., Miinster, 1905. HERGENROTHER-HOLLWECK, Lehrbuch des katholischen Kirchenrechts, Freiburg i. B., 1905. Instructions du Vicarial de Rome sur la celebration des mariages, (18 Mars 1908) ( 2 ). Instructio Pastoralis Eystettensis, Tit. Xll s ,De Sacr. Matr., p. 315-439, 5 a edit., Friburgi Br. Jurisdiction de I'Eglise sur le contrat de manage (de la), Paris, 1824. KUTSCHKER, Das Eherecht der katholischen Kirche nach seiner Theorie und Praxis, 5 B., Wien, 1856-1857. LAURENTIUS, Institutiones Juris Ecclesiastici, 2* ed., Friburgi Br., 1908. LAURIN, Introductio in Jus Matrimoniale, Vindobonas, 1895. *LEITNER, Lehrbuch des Katholischen Eherechts, Paderborn, 1902 ( 3 ). * MARTIN, De matrimonio et potestate ipsum dirimendi Ecclesice soli pro- pria, Lugduni-Parisiis, 1844, 2 vol. MEYER, Institutiones Juris Naturalis, Pars ll a , Friburgi Br., 1900. MICHEL, Questions pratiques sur le Mariage dans les Missions, Maison- Carre"e, 1903. Monita ad missionaries Provinces Nankinensis, Zi-ka-wey, 1899. MONSABRE, Le Mariage, petite edition, Paris, 1899. MOSER, De Impediments Matrimonii, Mechliniae, 1847. MUSCETTULA, Dissertatio theologico-legalis de sponsalibus et matrimoniis quae a filiis-famil ias contrahuntur parentibus insciis vel juste invitis, Bruxellis, 1766. 1. The third edition appeared in 1904. We have quoted from it occasionally, more particularly where the Author has changed his opinion. 2. Translation.which appeared in the Canoniste Contemp., 1911, p. 595-621. 3. The second edition has just appeared (1912) ; we indicate it LEITNER*, wherever we have been able to quote it. XIX *OJETTI, Synopsis rerum moralium et juris pontificii, 3 ia editio, Romae, vol. I (1909), vol. II (1911). PALMIERI, Tractates de Matrimonio christiano, Romas, 1880. PAUWELS, Magnum matrimonii Sacramentum reductum in casus, Lovanii, 1759-1760, torn. I et II. PERRONE, De Matrimonio christiano, 3 vol., Leodii, 1861. POTHIER, (Euvres, Tome V e : Du Traite du Manage, ed. Dupin, Paris, 1825. POURRAT, La Theologie Sacramentaire, Paris, 1907 (2 e edition en 1909). * REIFFENSTUEL, Jus Canonicum universum. 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Reforme sociale (1901), t. 42, pp. 888-898. * FAHRNER, Geschichte der Ehesdieidung im kanonischen Recht, i e Theil, Freiburg i. B., 1903. FALK, Die Ehe am Ausgange des Mittelalters. Eine kirchen- und kul- tttr-historische Studie, Freiburg i. B., 1908. FAUREY, Le droit ecclesiastique matrimonial des Calvinistes francais, Paris, 1910. FRANZ, Die kirchlichen Benediktionen tm Mittelalter, Freiburg i. B., 1909. FRIEDBERG, Verlobung und Trauung, Leipzig, 1876. FUNK, Colibat und Priesterehe im christlichen Alterthum. Kirchenge- schichtliche Abhandlungen und Untersuchungen , Paderborn, 1897, I, pp. 121-155. GALICHET, L'Eglise Anglicane et I'Etat, Paris, 1909. GAUGUSCH, Das Ehehinderniss der hoheren Weihe, Wien, 1902. GEFFCKEN, Zur Geschichte der Ehescheidung vor Gratian, Leipzig, 1894. * GENESTAL, Histoire de la legitimation des enfants naturels en droit cano- nique, Paris, 1905. GERRARD, Marriage and Parenthood, New- York, 1911. GILBERT, Le Mariage des Pretres, Paris, 1903. GILLMANN, Das ehemals zwischen der soboles ex secundis nuptiis und den Bkitsverwandten des verstorbenen Eheteiles bestehende Ehehinderniss, Mainz, 1909, (taken from the Archiv f. k. Kirchenr., 1909, pp. 447-470). Das Ehehinderniss gegenseitigen geistlichen Verwandtschaft der Pa- then. Archiv f. k. Kirchenr., 1906, pp. 688-714. Das Ehehinderniss der geistlichen Verwandtschaft aus der Busse, Mainz, 1910, (taken from the Archiv f. k. Kirchenr., 1910, pp. 236-261, and 1911, p. 178 s.). Zur Geschichte der kanonischen Ehescheidung. Der Katholik, 1904, t. XXIX, p. 191-211. GLASSON, Le Mariage civil et le Divorce, Paris, 1880. GORE, The question of divorce, New -York, 1911. HANAUER, Coutumes matrimonialesau Moyen-Age. Memoires de 1'Aca- de"mie de Stanislas, 5 e Serie, t. X(i8g2), Nancy, 1893, pp. 253-312. HUSSAREK VON HEiNLEiN, Die bedingte Eheschliessung, Wien, 1892. HUYTTENS, Discussions du Congres National de Belgique, Bruxelles, 1844, 5vol. 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Theologie, 1902, p. 131-152. PELLET, La Condition de la Mere dans I'Histoire du Droit Fran$ais, Paris, 1907. * PROBST, Sacramente und Sacramentalien in den drei ersten christlichen Jahrhunderten, Tubingen, 1872. Die altesten Romischen Sacramentarien und Ordines, Miinster, 1892. PUTON, Essai sur le Mariage d'apres les usages des Anciens Germains, Nancy, 1902. QUINQUET DE MONJOUR, Histoire de V Indissolubilite du Mariage en France, Paris, 1901. Realencyklopadiefiir protestantische Theologie und Kirche : V Ehe, Ehe- recht, vol. V, pp. 182-227; V Scheidungsrecht, vol. XXI, pp. 858-895 ; V Familie und Ehe bei den Hebraern, vol. V, pp. 738-750. Regime des Cultes en France et a I'Etranger. Recueil de travaux publics par la socie"te de legislation comparee, I, Paris, 1910. RIBEROLLES, Du Divorce par consentement mutuel et de la Repudiation en Droit Frangais, Paris, 1904. ROCHE, Essai sur les Origines Romaines et Germaniques du Contrat des Fiangailles, Grenoble, 1899. ROEDENBECK, Die Ehe in besonderer Beziehung auf Ehescheidung und Eheschliessung Geschiedener, Gotha, 1882. SaGMiJLLER, Die Ehe Heinrichs II, des heiligen mit Kunigunde. Theo- logische Quartalschrift, 1905, p. 78 ss., et 1911, 90-126. * Scu&RNA.GL,Das Feierliche Gelilbde als Ehehinderniss in seine geschicht- liche Entwicklung dargestellt, Freiburg i. B., 1908. I. Citatur : Salisbury Manual. XXXII SCHMIDT, Jusprima noctis Eine geschichtliche Untersuchung, Frei- burg i. B., 1881. SCHMITT-FALCKENBERG,^;^ studie ueber das Verlobniss in England^ax- burg, 1911. SCHRORS, Hinkmar Erzbischofvon Reims, Freiburg i. B., 1884. SCHULZE, Eherecht und Ehegesetzgebung in den Vereinigten Staaten Nord- Amerikas. Th. Pr. Quartalschr., 1909, p. 748-773. Kirchlich-katholisches Eherecht und Eheverhdltniss in den Vereinig- ten Staaten Nord-Amerikas, Ibidem, 1910, pp. 790-826. SDRALEK, Hinkmars von Reims kanonistisches Gutachten fiber die Ehe- scheidung des Konigs Lothar II, Freiburg i. B., 1881. * SEHLING, Die Wirkungen der Geschlechtsgemeinschaft auf die Ehe, Leipzig, 1885. Die Unierscheidung der Verlobnisse im kanonischen Recht, Leipzig, 1887. SILBERNAGL, Verfassung und gegenwdrtiger Bestand sdmtlicher Kirchen des Orients (2 e Auflage von Schnitzer), Regensburg, 1904. SINGER, De la Publicite du Manage, Lille, 1907, SOHM, Trauung und Verlobung, Weimar, 1876. * STIEGLER, Dispensation, Dispensationswesen und Dispensationsrecht, im Kirchenrechtgeschichtlichdargestellt, Mainz, 1907. THANER, Die Personlichkeit in der Eheschliessung, Gratz, 1900. VACANDARD, Etude de critique et d'Histoire Religieuse, Paris, 1905. Les engines du celibat ecclesiastique. VANTROYS, Etude historique etjuridique sur le consentement des parents au manage de leurs enfants, Paris, 1889. VILLIEN, Divorce. Dictionnaire de Theolgoie, fasc. XXX, 001.1455-1478. Vii.-LiE$,L'Empechement de Manage Sa notion juridique d'apresl'His- toire. Canon, contemp., 1903, p. 420 ss. 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Strassburger Diozesanblatt, Strassburg. Stttdien, Amsterdam. The Month, London. Theologie und Glaube, Paderborn. Tkeologisch-praktische Quartalschrift, Lintz. Theologische Quartalschrift, Tubingen. Vie diocesaine, Malines. Zeitschriftftir katholische Theologie, Innsbruck. BOOK I BETROTHMENT BOOK I BETROTHMENT Division. The first chapter of this book will be devoted to the nature of Division betrothment. We shall treat successively of the meaning, divi- sion, and expediency; the constituent elements; the subject-matter and the various adjuncts of the sponsalitial contract. The second chapter will deal with its effects ; the third with its impediments ; the fourth with its dissolution ; and the fifth with its due regula- tion. This will be followed by an appendix treating of the antenup- tial proclamations. CHAPTER I. THE NATURE OF BETROTHMENT. ARTICLE 1. Meaning, Division, and Expediency. Betrothment, called in Latin Sponsalia (') de futuro ( 2 ), may be Meaning. 1. Sponsalia are so called a spondendo. This expression of the Roman law had its origin in the practice that prevailed among the ancient Romans. He who wish- ed to marry a girl addressed to her father or guardian the recognised formula : spondesne ?, and he replied : spondeo. Hence she who was thus promised in marriage was known as the sponsa, and he, to whom she was promised, as the sponsus ;.... the day, on which the promise was made, was the dies sponsalis, and the entire transaction, or promissory contract, was called the sponsalia . WERNZ, o. c., IV, n. 86. Cf. also LAFOURCADE o. c., p. 46 ; SEHLING, Die Unter- scheidung, p. 20-31, who remarks : < Spater blieben die Ausdriicke sponsa, sponsalia bestehen, trotzdem an Stelle der sponsio die freie Consenserklarung trat >. The word sponsalia is also used in a wider sense, to denote the gifts that were mutually given by the betrothed parties. Before the sponsalia, the future sponsa was successively called the sperata, when her future husband began to court her, and the/acte, when the young man had been accepted by her family. LAFOURCADE, o. c., p. 76. 2. The limiting phrase de futuro first appears in William de CampellU 4 THE NATURE OF BETROTHMENT defined as a a mutual promise of future marriage, or a contract by which a man and a woman engage themselves to marry. Betrolhment is a real contract, i. e. an agreement between a man and a woman, by which they mutually give and mutually accept a binding promise to enter into matrimony at a future date. Hence it is not sufficient that there should be a mere proposal, or a promise on the part of one, even though that promise be accepted by the other. Both the promise and the counter-promise are requisite, so that the contract may be strictly bilateral and per- fectly synallagmatic ('), binding in justice both parties to a future marriage. If one party alone promises, and the other party accepts that promise, but gives no counter-promise (*), an obligation ( 5 ), some- times even binding in justice (*), may indeed arise, but it is not of (d. 1121). It soon became customary, from the time of Peter Lombard. It was introduced to distinguish the sponsalitial contract from the contract of marriage itself. In the terminology that was then in vogue a married woman who had not yet had carnal intercourse with her husband was commonly called sponsa, in opposition to one who had had such intercourse, and was then termed nupta. Thus a marriage not consummated came to be included under the term sponsalia, and confusion consequently arose. To avoid this, the authors of that day called the marriage contract sponsalia depraesenti, but the sponsalitial contract, which preceded marriage, sponsalia dcfuturo. I. A contract is perfectly synallagmatic : < quand les parties se soumettent par le fait meme de la convention, a des engagements reciproques, qui forment ou qui sont censes former pour chacune d'clles 1'equivalent de la prestation a laquelle elle a droit . Mgr. WAFFELAERT, Dejustitia, t. I, n. 340, in agreement \viihAubry & Ran. a. The acceptance 01 a promise does not of itself imply a counter-promise; for, it may very well happen that one may accept a promise of marriage without binding himself to the other party. Nevertheless it frequently happens that the acceptance of a promise, having regard to the circumstances in which it is made, carries with it the force of a counter-promise. Cf. SCHMALZGRUEBER, in 1. IV Decret., tit. I, nn. 44-46. 3. In the abstract, indeed, from a promise of this kind, followed by no counter- promise, an obligation of marrying may arise, if the person to whom the pro- mise has been made exacts it. But, looking at the matter in the concrete, the alleged obligation may, as a rule, be neglected. Ordinarily, in promising marri- age, one does not intend to contract the obligation of marrying, except in so far as the other party consents by a counter-promise to the same obligation. 4. As a general rule, the promise brings with it merely an obligation of fidelity, that is light in itself. Nevertheless, from the intention of him who makes the pro- mise (of which we must often judge from the attendant circumstances), a grave THE NATURE OF BETROTHMENT 5 a sponsalitial nature, and the proper effects of betrothment must be denied to such a promise. The object of the contract is the future marriage, to be entered into at a fitting time, that is to say, at a time expressly determined in accordance with the wishes of the parties, or at a time to be reckoned according to the circumstances of the case and local customs ( J ). In consequence of the nature of the object with which the con- tract is concerned, the contracting parties must be a man and a woman, and indeed a determinate man and a determinate wo- man ( 2 ). Different kinds. Betrothment is : 1. either solemn or clan- Different destine. It is solemn, when celebrated in the form constituted by public authority ; if otherwise, it is clandestine. Thus betrothment is clandestine not only when contracted privately and secretly, but also when it takes place in public, but without the prescribed formalities. 2. Absolute or conditional. 3. Confirmed or simple, according as it is or is not strengthened by the giving of a pledge, by oath, or by other stipulations of a penal nature, to be enforced against those who draw back from the agreement. , Expediency demands that betrothment should precede marri- Expediency. age, though no obligation arising from the nature of things or from any ecclesiastical precept, makes it necessary that it should obligation of justice may arise. Cf. Mgr. WAFFELAERT, o. c., I, n. 534 J Col- lat. Brug., t. II, p. 130 ss. ; see below n., 18, in note. 1. With regard to the proper interval between betrothment and marriage, according to the Roman law, cf. SEHLING. Unterscheidung, p. 21-22 ; ROCHE, o. c., p. 8 s. ; LAFOURCADE. o. c., p. 74 ; for the German custom, ibid. p. 40. 2. WERNZ, o. c., IV, n. 98, remarks:* A promise, even with a counter-promise duly accepted, of marrying one of three sisters at the choice of the man, does not induce any sponsalitial obligation, although another promissory contract certainly does arise... ; in like manner there is no betrothment where a man merely pro- mises a girl that he will not marry anyone else, unless it is clear from the circumstances that the party giving the promise, notwithstanding his nega- tive and conditional way of speaking, had a positive and absolute intention of marrying this particular girl and no other >. Under the new discipline of the Decree Ne Temere (cf. n. 6.) this observation finds no place, since betrothment, under the Decree, cannot be understood to have taken place except between two determinate persons. O THE NATURE OF BETROTHMENT do so. Betrothment serves as a barrier against ill-omened haste ; it renders the position ot the engaged parties more secure ; and it affords a better opportunity for bringing to light any impediments or incompatibility of disposition that may exist (*). It was in use among the Jews (*), the Romans ( 5 ), the Germans (*), and the Chris- tians of the primitive Church ( s ). On the other hand in many modern codes, as in the Code Napoleon, and many others ('), betrothment is not recognised, and is without any binding force, though, in certain cases, it may afford ground for an action for damages (below, n. 17). Cf. LAFOURCADE, o. c., p. 199 ss., where he shows that, under the code Napoleon, matrimonial promises are null in law with the nullity d' or dre public , as being opposed to freedom of marriage. Cf. also ESCARD, 1. c., p. 888 ss. ( 7 ). ARTICLE 2. The constituent Element of Betrothment, or the Consent. 5. Characters- The constituent element of betrothment, as we gather from the sponsaltiial ver y idea of the contract, is mutual consent to a future marriage. consent. j n the sponsalitial contract, as in every other, this consent ought to be internal, free, outwardly expressed, absolute, simultaneous and legitimate. Now, in accordance with the nature of the object towards which it is directed, the sponsalitial contract ought to be in a special way, like the contract of marriage itself, a matter of individual and personal consent, since it promises that which is within the disposal of the contracting parties alone. We shall speak of these general characteristics of consent when we come to 1. Cf. ROUSSEAU, Revue des Sciences Ecclesiastiques etla Science Catholique, II, p. 176 s. Cf. also Instructions du Vicarial de Rome, 1. c., p. 596, where the parish priests are admonished to have the betrothals celebrated. 2. The betrothal, in which the parents promised to give the girl in marriage to the man, was called Thenain or Schidduchin. 3. L. a, Dig., XXIII, i. 4. Cf. PUTON, O. C., p. 65 S. 5. WERNZ, o. c., IV, n. 88. In some places betrothment was even obligatory. Cf. COLIN, o. c., p. 130. 6. This is the case in Italy, Holland, Spain, and Portugal ; it is otherwise in England and Germany. 7. The author there explains the various methods of betrothal at present in vogue in certain countries, and expresses the wish that this contract may again find a place in the civil law. THE NATURE OF BETROTHMENT 7 the question of matrimonial consent, and what we say there may be applied here. For the present, it is sufficient to remark that, for the lawfulness of the consent, it is requisite that it be given by those capable of the sponsalitial contract, and according to the form prescribed for its validity. In determining the capability of the parties and the form of the contract, we must attend not only to the requirements of the natural law, but also to those of the positive law, as laid down by that authority to which the sponsali- tial contract is subject.We shall show below that, for the betroth- ment of Christians, this authority resides in the Church, and that for non-christians, it lies with the head of the State. What concerns the capability of the contracting parties, will be explained in chapter III, under the head of impediments to betrothment. At present it only remains to describe briefly the formalities of consent. Formalities of consent. 6. I. As far as the natural law is concerned, no particular formality Formalities or solemnity is required. In whatever way the consent is express- fa the ed, it is valid, provided it be given in accordance with the condi- natural law tions enumerated above. Thus silence itself, in certain circumstan- ces, may be enough for a sufficiently certain presumption of con- sent ('). In like manner the copula (sexual intercourse) may easily imply sponsalitial consent: in foro exierno it is presumed to do so, not indeed indiscriminately and taken by itself, but when effected under certain circumstances ; of such a kind is the copula following on a promise or proposal of marriage made to a woman who is virtuous and a virgin ; for, it is considered, as SANTI reasons (o. c., 1. IV, tit. I, n. 27), that she would not have yielded herself to I. In this sense decrees cap. unic., in VI,IV, a : Moreover those betrothments, which parents commonly make on behalf of their children, whether of a marri- ageable age or not, bind the children themselves, if they have given their consent thereto expressly or tacitly, as being present without protesting ; and the con- tract gives rise to the impediment of public decency. The same holds good if the children were absent at the time of the betrothal, and even ignorant ot it, but afterwards, when it came to their knowledge, tacitly or expressly ratified it. Without this express or tacit consent, children are not bound by a betrothment made by their parents on their behalf, and no impediment of public decency arises in consequence of it . Cf. SANTI, on this passage, n. 14 and 24 ; Anal, eccles., 1901, p. 45 s. 8 THE NATURE OF BETROTHMENT the man except on the understanding that the marriage, to which she trusted for the safeguarding of her honour, should duly take place ( J ). in the II. Turning now to the positive law, we find that until quite ojtfieChurch: recently the Church had prescribed no formality or solemnity as necessary for the validity of betrothment among the faithful (*), so that any betrothment, however clandestine it might be, was per- fectly valid in the eyes of the Church. before Easter Under this discipline serious inconveniences existed ( 5 ), and 1908 ' many bishops in the past had endeavoured to obtain from the Holy See some modification of the law, but without success; their petitions did not find favour, and those diocesan decrees, which had presumed to prescribe a solemn form for the validity of betrothment, were severely reprobated (*). The first modification 1. With regard to this presumption, note : a) that we say in foro externo >, since in this alone the presumption holds good. In foro interno the validity of the betrothment depends on the intention of the woman when admitting the copula. Even in foro externo this presumption is not * juris etdcjure*, that is to say, it is not a necessary 7 presumption, but falls to the ground as often as it can be estab- lished that there was a contrary intention on the part of the woman, b) For this presumption in foro externo both the elements, of which we have spoken above, viz., the virtuousness of the woman, and the previous promise of marriage, clear and certain, on the part of the man, are required. For the proof of this promise, marks of love given by the man do not suffice. Hence it happens, as SANTI remarks (1. c.), that cin nearly all the causes brought before the S. Congregation of the Council in our days, actions concerning the validity of betrothment. have failed, though the copula curnalis was there, and had been preceded by expres- sions of love and frequent familiar intercourse . 2. In these countries betrothment of non-christians is subject only to the requirements of the natural law, since, as we have remarked, the civil power has decreed nothing concerning them. 3. Docuit enim experientia satis quae secum pericula ferant ejusmodi spon- salia : primum quidem incitamenta peccandi, causamque cur inexpertae puellae decipiantur ; postea dissidia ac lites inextricabiles . Cf. Decretum Ne Temere, given at the end ot this volume, also Collat. Brug., t. XIII, p. 53 s. 4. FEYE, Delmp., n. 538; WERNZ, o. c., IV, n. 39 and 99 ; DE BECKER, D& Matrim., 2-3 ; GASPARRI, o. c., t. I, n. 24 & 25 ; N. K. th., t. XXV. p. 92 ss., and especially Can.Contcmp., 1898, p. 489 ss. and 1905, p-579, where the case of 17 June 1905 is given, in which the S. C. C. replies : Diluta. Moreover, a proposal decreeing eos omnes, qui in posterum sine testium saltern trium praesentia matrimonium vel sponsalia contrahere attentaverint, ad sic contrahendum inhabi- les fore, et contractus hujusmodi ab cis fieri attentatos irritos esse et nullos , was rejected by the Council of Trent. THEINER, o. c., II, p. 339. THE NATURE OF BETROTHMENT 9 of this law was granted in the case of Spain. On 31 January 1880, the Holy See declared that betrothals contracted there were inva- lid absque publica scriptura, i. e., without the presence of a notary, and that, moreover, the absence of this formality could not be made good by an instrument drawn up in the (episcopal) court, granting a dispensation from any existing impediment . This modification was introduced out of regard for the custom that existed in Spain, and required the said formality, from the time of the Pragmatic Sanction promulgated in the year 1803 ('). More recently, i January 1900, Leo XIII, assenting to the peti- tion of the Fathers of the Council of Latin America presented in 1899 (*), extended to Latin America the discipline that prevail- ed in Spain. Finally a new order of things was introduced by the famous after Easter decree Ne Temere, published by the S. C. C., 2 August 1907 (*), and coming into force at the following Easter 1908. It is there laid down that : Only those (betrothments) are con- sidered valid and produce canonical effects which have been contracted, in writing signed by both the parties and by either the parish-priest or the Ordinary of the place, or at least by two witnesses. In case one or both the parties be unable to write, this fact is to be noted in the document and another witness is to be added who will sign the writing as above, with the parish-priest or the Ordinary of the place or the two witnesses. > i. Cf. GASPARRI, o. c , n. 26 ; N. R. tb., t. XXIV, p. 134 ss., where is given the Decree of the S. C. C., of April 1891, to the effect that the declaration of 1880 was still in force, notwithstanding the change in the civil code of Spain. a. Cf. Postulata Patrum Concilii Plenarii Americae Latinos, ad V : that your Holiness deign to extend to all countries of Latin America the declaration of the Sacred Congregation of the Council, published for Spain on 31 Jan. 1880.... i. e. that betrothals contracted in our countries absque publica scriptura be invalid, and that no matrimonial information, nor any document drawn up in the dioce- san court, or elsewhere, granting a dispensation from any existing impediment, whence it may be inferred that a promise of marriage was seriously made, be competent to supply for the absence of such publica scriptura . To this the 5. C. negotiis eccles. extraord. praeposita replied : ad V.,pro gratia in perpe- tuum . Cf. Ada Sanctae Scdis, XXVII, p. 553 ss. j Ada et Decreta Concilii Ple- narii Americae Latinae, n. 592, cum nota. 3. The text of the Decree will be found at the end of this work. For the general economy of the same, see below, where we speak of the formalities of marriage. 10 THE NATURE OF BETROTHMENT 7. the Decree A brief commentary will make clear the effect of this clause : requires for ' ^ formality, which we shall presently describe, has been thevalidityof introduced, and the observance of it has been made necessary betrothment, for the very validity of the betrothment. Everyone is agreed that betrothments contracted without these formalities are null in iheforumexternum,a.nd produce no canonical effect properly so called ; that is to say, they are not recognised by the Church, and give rise to no impediment of public decency, and to no obligation to marry that can be invoked in the forum exter- num. There is a question, however, whether betrothment without the prescribed solemnity is invalid only in the forum externum, or whether it is altogether worthless and without effect, even in for o conscientiae,so as to be as if it were simply non-existent ('). The for- mer opinion seems more conformable to the tenor of the Decree (*) though the latter is preferred by the majority of authors ( 3 ), and it is said that it will receive the confirmation of the Holy See. Until the controversy is settled, the obligation in conscience is theoretically doubtful, and may be regarded as practically null (*). 1. Incidentally a variety of obligations may arise from such invalid betroth- ments : e. g., the reparation of injury caused by deceit or sexual intercourse extorted under the pretext of such a promise. See below, n. 18, in note. 2. Cf. the Author's commentary (Bruges, 1908), p. 12 ss. ; VAN DEN ACKER, o. c., p. 2, concedes the same. 3. Thus R. P. VERMEERSCH, Ne temere, n. 35 ; CARD. GENNARI, o. c., p. 19 s. ; OJETTI, In jus pianum, n. 49 ; DB BECKER, Legislatio Nova, p. 20 ; BESSON, in N. R. th., 1907, p. 613 ss.; CHOUPIN, o. c., n. 8 ; HIZETTE, o. c. p., 18 ; ALBERTI, o. c., p. 8 ; DOMAICA, o. c., p. 31 ; Ned. Kath. Stsmmen, 1907, p. 330 ; ARENDT, o. c , p. 165 ss. ; WOUTERS, o. c., p. 29 s. ', STANDAERT, Collat. Gcindciv., 1909, p. 304 s- ; VAN DEN ACKER, 1. c. ; DE ARQUER, o. c., n. 10 and 28; The Month,igo8, I> P- 635 ; ARRIBAS, o. c., p. 30 s. ; TRENTA, o. c., p. 20 s. ; PEZZANI, o. c., p. 45 ss.; BARRETT, o. c., p. 20 s. ; CREAGH, o. c., p. 25 ; DEVINE, o. c., p. 284 ; CRONIN, o. c., p. 299 ss. ; VOGT, o. c., p. 19 ; KNECHT, o. c., p. 73 s., where the reply of the S. C. C. 26 Feb. 1908, regarding this, is quoted. On the other hand the vali- dity and efficacy of such betrothments are vindicated by BOUDINHON, Le Martage et les Fian$ailles, n. 36, and HEINER, Ne Temere, p. 49 s. NOLDIN, Decretum de Sponsalibus et Matr., n. 7, and after him, KARST,O. c., p. 19, in note, acknowledge that these betrothals have efficacy inforo intertw, but illogically restrict it to the obligation of mere fidelity. 4. The provisions of the Decree Ne Temere regard betrothals only, and so do not seem to apply to a non-sponsaliliul promise of marriage; e. g., to a promise given by one party, which the other party accepts without giving a counter-promise. In our opinion, such a unilateral promise retains its natural efficacy (see n. a). THE NATURE OF BETROTHMENT II 2. The formality required by the Decree consists in this : that that the the contract be in writing, and that it be signed by both the contracting duly signed, parties and either by the parish priest, or by the Ordinary ('), or at least by two witnesses ; but with this proviso, that in case the contracting parties, or one of them, be unable to write, another witness must be added, who shall sign the contract in the place of them, or of the one of them, mention of the inability to write being made in the document (*). Moreover, this document must be signed on the same occasion by the contracting parties, or by their respective proxy, together with the parish priest, or the Ordinary, or the two witnesses.lt will not suffice that the document be signed by one party in the presence of, and together with the parish priest or the two wit- nesses, and then be sent to the other and absent party, for his signature together with that of the parish priest or witnesses (*). The signatory parties must both be present at the same time, and they must sign their names inthe actual presence of the witnesses, present at the same time,so that these may be able to testify that the consent of each of the betrothed parties was given in writing (*). It is also required for the validity of the betrothment that the and dated, date day, month, and year be given in the document (*). The Ordinary or parish priest, in order to sign as the qualified The following have written in this sense : VERMEERSCH, o. c., n. 28 ; CARD. GENNARI, 1. c. ; OJETTI, o. c., n. 50; ALBERTI, 1. c. ; CHOUPIN, o. c.,n.6; HIZETTE, 1. c. ; ARENDT, 1. c. ; WOUTERS, o. c., p. 30 s. ; VAN DEN ACKER, o. c., p. u; STANDAERT, 1. c. ; but DE BECKER (1. c.) is ot the contrary opinion. 1. We shall explain below, when treating of the formalities of marriage, who come under the terms Ordinary and parish priest. It is not necessary, as for marriage, that they should be requested and invited to assist at the betrothal. 2. Observe that it is sufficient that the signatures be in the handwriting of the signatories. The rest of the document may be written by another hand, or even printed ; but the employment of a stamped fac-simile of signature, or of a typewriter for the signature would invalidate the deed. 3. Decree of the S. C. C., 27 July 1908 ad i, towards the end. 4. Nevertheless if one of the contracting parties be absent, there is no reason why he should not name a proxy to be present and sign the contract in his place, mention being made of the fact that he does so as proxy. See below, n. 70. 5. The same Decree, 2. It is advisable to add the name of the place, but this is not essential : this may serve as a proof that the parish priest of the place signed the document. An error in the date, even involuntary, would render the validity at least doubtful. 12 THE NATURE OF BETROTHMENT witness ('), must be the Ordinary or parish priest of the place, within the limits of which the contract is signed. It does not mat- ter, as far as validity or even strict lawfulness is concerned, whether the Ordinary or parish priest be that of the contracting parties or not (*). They cannot, however, depute another to act for them ( 3 ). Extent of the 3. The discipline, which we have just described, extends to all betrothals contracted between parties, of whom one at least is a Catholic of the Latin rite (*). A fuller explanation of this will be given below, when treating of the formalities of marriage. The provisions of the Decree affect only betrothments c exinde celebranda >, that is to say, such as are subsequent to Easter Sunday (19 April) 1908 ; and they have no retrospective force : hence betrothments anterior to that date are not subject to the exposed regulations. y Betrothments Corollary. For betrothments under the Decree Ne Temere, there is no t^t^t 2* need to take into consideration the enactment of the Canon law, in other re- COTtScCfHCfl'l Oft sexual in- spect of but little practical importance, regarding presumed betrothment. ^t^aclkalh 6 Accordin g to T > ca P- unic -> in VI > 1V > 2 > ( s ) and c - T 4> x > IV 2,marriages obsolete, invalidly contracted per verba de praesenti by impuberals not very near to the age of puberty, and in whom precocity did not supply the want of age, implied sponsalia defuturo, and consequently the impediment of public 1. Where a parish priest acts as an ordinary witness, signing together with another witness.it is indifferent whether he be the parish priest of the place or not. 2. Decree of the S. C. C. 28 March 1908, ad 7 ; cf. Collat. Brug., t. XIII, p. 470 s., where it is said that the parties should be advised to go to their own parish priest, and, when two parishes are concerned, to the parish priest of the bride, in whose parish the bethrothal should take place. 3. The same Decree, ad 6. This provision is conformable to the office in question; for, the parish priest exercises no jurisdiction here, he is simply an authorised witness, and this office cannot be delegated, unless by express permission. Moreover, the absence of the parish priest may be supplied by the presence 01 two witnesses. 4. It extends also to betrothals contracted in Spain and in Latin America ; and the form established for those countries by special provision of the canon law has been abrogated. Cf. Deer. S. C. de Sacr., 12 March 1910, ad 7. 5. Si pubes et impubes, vel duo impuberes, non proximi pubertati, et in quibus aetatem malitia non supplebat, per verba contraxerint de praesenti sponsalia enim ilia, quae juris interpretation tantum fuerunt sponsalia de future,... per adventum pubertatis in matrimonium non transeunt de praesenti...; per dictum tamen contractum, qui valuit ut potuit, non sicuti agebatur, publicae honestatis justitia est inducta . THE NATURE OF BETROTHMENT 13 decency within the first degree, provided that the marriage contract was not invalid either from the want of consent ('), or on the ground of clandestinity (*). In like manner the question raised above (n. 6), viz,, how far betrothment exists in consequence of the occurrence of sexual intercourse between those of a marriageable age, is no longer practical as far as betrothments subject to the decree Ne Temere are concerned ; but is of importance only in the case of betrothments that are not subject to the decree, or which took place before Easter 1908. Scholion. Various solemnities were observed in the Roman law, but The ancient were not regarded as essential. It was usual to celebrate the betrothal in the forum before witnesses, who were called sponsor es. At a later date, the omission of these was supplied by the use of sponsal tablets or registers. The ring was given together with money to ratify the contract, and also the kiss. LAFOURCADE, o. c., p. 68 s. and 85. In the ancient German law certain formalities were also employed. These are described by COLIN, o. c., p. 85 ss. For the popular practices of the Middle ages, see COLIN, o. c., p. 143 s. LAFOURCADE (o. c., p. 184) observes that the use of a written document was ordered by Louis XIII, of France, in the celebration of betrothals, not as a ceremony, but for purposes of proof. The present day practices observed in those places where formal betrothals commonly take place, will be found in ESCARD, 1. c. ARTICLE 3. The Subject, or Contracting Parties. For betrothment, the contracting parties must have : The 1 . The use of reason, together with sufficient discernment to know, c n tra fttng at least in a general way, that they are taking upon themselves the obligation of marrying ; without this, they are incapable of consenting to a future marriage. 2. The age of seven years. 3. Ability to marry at some future time. Theirs* requisite is wanting in lunatics and maniacs, unless they enter into the contract during some lucid interval. It is not necessarily wanting in the case of the deaf or dumb, nor, consider- ing the modern method of instruction, in the case of deaf-mutes, even if they be at the same time blind. Cf. cc. 23-25, X, IV, i. 1. Cap. unic., inVI, IV, I. 2. WERNZ, o. c., IV, n. 161, note (113). 14 THE NATURE OF BETROTHMENT With regard to the second requisite, children, who are under the age of seven years, but in whom precocity supplies the deficiency of age, may have sufficient use of reason to be capable of betroth- ing themselves, as far as the natural law is concerned ; but they appear to be incapacitated by the ecclesiastical law, in conse- quence of the legal presumption of the want of reason. In opposi- tion to SANTI (o. c., L. IV, tit. II, n. 4), we are of opinion that this is to be inferred from cc. 4, 5, 13, X, IV, 2, and from the cap. unic. in VI, IV, 2 ('). The third requisite will be explained in Chapter III, where we shall treat of the impediments of betrothment. //. Betrothment Note. Those below the age of puberty are not in consequence of that ^the'a^of* rendered incapable of betrothment, either by the natural law, since it is a puberty, question of a promise of future marriage, or by the canon law, as is clear from the whole of Book IV Decret., tit. 2, and from VI Decret., IV, 2. Nevertheless, betrothment before the age of puberty, though valid, is to be carefully discouraged, and persons below that age should not be permitted to contract it. Such betrothments are, in accordance with the provisions of the canon law, rescindible, as we shall point out below, in n. 24. ARTICLE 4. The Adjuncts of Betrothment. A. An Oath. n. The effect of The accession of an oath to valid betrothment adds to the obli- betrothment. gation of justice a further obligation of religion. This obligation continues in force as long as the betrothment itself, and ceases with it. An oath does not make valid (*) a betrothment that is otherwise invalid, as, for instance, through the omission of the prescribed form ; and it would appear that the oath itself is invalid, when employed in such a case ( 3 ). I. Si infantes ad invicem vel unus major septennio et alter minor sponsalia contraxerint... sponsalia hujusmodi quae ab initio erant nulla... publicae hones- tatis justitiam non inducunt . Cf. also in the Roman law, L. 14, Dig , XXIII, and Ivo CARNUTENSIS, Panormia, VI, c. 13 (MIGNE, t. CLXI, c. 1246). See also ROCHE, o. c., p. n s. a. Cf. LAFOURCADE, o. c., 166 ; DIGNANT, De Virtute Religionis, n. 256 s. Concerning the opinion ascribed to Ivo Carnutensis, that sponsalia jurata have the force of marriage, cf. ESMEIN, o. c., I, p. 140 ss. See also what is said under n. 14, note 2. 3. Cf. VAN DEN ACKER, o. c., p. 13 s. Cf. in the contrary sense WOUTERS, o. c., p. 31 ss. THE NATURE OF BETROTHMENT B. A condition. Leaving the fuller explanation of this matter and of its princi- ples to n. 85 ss., the following will suffice for the present : Betrothals contracted under a condition that possesses a dissolv- ing force, are valid and produce their proper effects ; but cease to exist as soon as the imposed condition has been realised. Betrothment entered into under a suspensive condition defuturo : a) impossible, or repugnant to the substance of the contract, whether in its sponsalitial or matrimonial aspect, is invalid, if such a condi- tion was seriously imposed ; b) possible, and not repugnant to the sub- stance of the contract, then, even though the condition be of an immo- ral nature, the betrothment is suspended until the condition is rea- lised; subsequently,unless invalidated by a provision of the positive law, the contract at once comes into force, even, it would seem, if one party or the other had illicitly revoked consent before the realisation of the condition ('). As long as the contract is suspended, the impediment of public decency also remains in a state of suspense ; thus a marriage con- tracted by the man with the sister of his betrothed before the ful filment of the suspensive condition, would be valid ( 2 ). Neverthe- less, the prohibition of marrying another person in the meantime remains, since one is bound to await the fulfilment of the condi- tion, excepting only the case where that condition is an immoral one('). C. The Copula. The effect of an imposed condition : when of a dissolving force, when of a suspensive force. U. Before the Council of Trent, sexual intercourse,following on betrothment Intervention duly contracted, involved actual marriage coramforo externo by a presump- f ff e co ^* tion juris ei de jure, i. e. a presumption that did not admit of proof to the law involved contrary (*). apresumftion ofmarrtage. 1. Cf. WERNZ, o. c., IV, 103 and 301 ; LEHMKUHL, Theol. mor., ed. 9, 1898, II, n. 661 ; contra DE BECKER. De Matrim, p. 79 s, 2. Cap. unic., in VI, IV, i. 3. When the nature of the imposed condition, or its suspensive or invalidating force is doubtful, the presumption must be in favour of liberty, i. e. of nullity J but, on the other hand, where marriage is concerned, the validity of the act must be maintained. 4. Cf. the decree of Alexander III, IV Deer., I, c. 13 Veniens, and especially the decree of Gregory IX, same title, c. 30 : c Is qui fidem dedit M. mulieri super 1 6 THE NATURE OF BETROTHMENT In other words, sexual intercourse between the betrothed was regarded in foro exttrno ( J ) as a conjugal act, and accordingly, in the eyes of the Church, involved matrimonial consent, and constituted the contract of marriage. This was so much the case, that it was useless to oppose to this presumption the fact that all thought of marriage was wanting, and that the intercourse had been merely an act of fornication, or even the result of violence (*). matrimonio contrahendo, carnali copula subsecuta, si in facie Ecelesiae ducat aliam et cognoscat, ad primam redire tenetur : quia licet praesumptum primum matrimonium videatur, contra praesumptionem tamen hujusmodi non estprobatto admittenda. Ex quo sequitur quod nee verum nee aliquod censetur matrimonium quod de facto est postmodum subsecutum . Leo XIII, in his Constitution Con- sensus mutuus, of which we shall speak later, bears witness to the same, and says that the Roman Pontiffs in hac juris praesumptione tantum roboris inesse voluerunt, ut firmum ipsa statueret sanciretque jus, nee probationem contrariam ullam admitteret , except, of course, a direct and quite evident proof. 1. In foro interne this presumption gave way to the actual truth, and in con- science the presumed marriage was to be held valid or invalid, just as at present, according as the betrothed had had carnal intercourse with conjugal intent, or not. This opposition between the Jorum internum and the forum externum natu- rally gave rise to conflicting claims, and resulted in a state of affairs in which a man was compelled, under pain of excommunication, to live with a woman who was not his actual wife, and to leave her to whom he was united by a bond that was valid in conscience. 2. ESMEIN (o. c., 1. 1, p. 142 ss.) is of opinion, that the discipline, in virtue of which betrothmentjfollowed by sexual intercourse, passed by law into marriage, was introduced under the influence of the Copulatlieoria, which formerly found favour with many doctors, inasmuch as, according to the common formula, con- jugium desponsatione initiator et commixtionc perficitur, that is to say, the copula, taken by itself, and without any reference to the intention with which it was effected, added to the betrothal (matrimonium initiatum) an element that com- pleted the marriage ; in this way it would be understood that the absence of conjugal intent did not invalidate the marriage. Cf. WATKINS, o. c., p. 133 s. But leaving its fuller treatment to a later page, and setting aside for the pre- sent the intricate question of copulatheoria as far as it was accepted in law, the interpretation of the discipline given in the text, seems more fitting and obvi- ous, that is to say, marriage, in the case indicated, was supposed to be consti- tuted not by the copula as such, but inasmuch as it was presumed to manifest conjugal intent and consent. LAFOURCADE (o.c., p. 170 ss.) suggests that the said presumption was enjoined in order to meet the fraudulent conduct of those who, after being united in clan- destine marriage and living together, as man and wife, wished to dissolve the union on the plea that they had given, not matrimonial, but merely sponsalitial consent. Presumptions of this kind were not unknown even in the Roman law, THE NATURE OF BETROTHMENT 17 From the time of the Council of Trent, which invalidated clandestine marriages, and made it a condition of validity that consent should be given in the presence of the parish priest and two witnesses, these pre- sumed marriages (') have been thereby abrogated ( J ) for all those places in many of the provisions of which the Church has appropriated. Thus SEHLING, Unterscheidung, p. 14-16, shows how, in the Roman law, from the taking of a woman into the home of her husband, matrimonial consent and actual marriage were presumed. Moreover, in ESMEIN, ( o. c., t. I, p. 103) Novella 74 is quoted, according to which betrothment passed by carnal intercourse into marriage. Cf. also LAFOURCADE, o. c., p. 73 and 96. It is interesting also to note that a similar discipline still exists in the civil law of Sweden and Scotland, as LAFOURCADE relates (o. c., p. 220 and 237) : Lors- que les fian9ailles ont ete suivies de cohabitation, la copula carnalis produit des effets analogues a ceuxqu'elle engendrait dans 1'ancienne th6orie des matrimonia praesumpta. Eile forme un manage imparfait, irregulier, qui ne peut etre rompu que s'il existe une cause le"gitime de divorce. Le mariage doit etre c61ebre ; si le fiance s'y refuse, sa fiancee est declaree son epouse 16gitime et jouit sur les biens de son mari de tous les droits que lui assure la loi . Cf. NYSTROM, o. c., p. 345 s. 1. For the meaning of presumed marriage, see below n. 92. 2. Leo XIII clearly teaches in his Constitution, that the Council of Trent abo- lished matrimonia praesumpta for those places in which the decree Tametsi had force : Deinde vero matrimonia clandestina... quum Concilium Tridentinum irrita infectaque esse jussisset, jusillud priscum, ut erat necesse, valere desiit ubicunque promulgata est vel moribus usuque recepta Tridentina lex >. And, in truth, the copula taken by itself, though following on betrothment, does not necessarily signify matrimonial intent and consent, since it may take place with quite a different intention, but affords a mere presumption of con- sent, and so, even if the parish priest and the two witnesses were present, it would not imply consent given in the form required by the Council of Trent. We must accordingly reject the fantastic hypothesis of Sanchez, to the effect that the copula following upon betrothment contracted in facie Ecclesiae, and taking place in the presence of the parish priest and witnesses, constituted a valid matrimonium praesumptum even under the Tridentine discipline : Quando, tam sponsalia de future quam copula sunt coram eodem parocho et testibus,dicendum est jus antiquum manere illaesum, atque ita transire in matrimonium verum qui- dem, si animo conjugali, praesumptum vero, quando fornicario haberetur copula adeo ut probata copula et sponsalibus praesumeret Ecclesia matrimonium coge- retque ad illud, sicut ante Tridentinum cogebat*. O. c., Ill, Disp. 40, n-7. Cf. also ESMEIN, o. c., t. II, p. 210 s. Whether other kinds of matrimonium praesumptum were abolished by the Coun- cil of Trent for places subject to it, cf. below, n. 92, where we treat of matrimonia praesumpta. 18 THE NATURE OF BETROTHMENT which the, chapter Tametsi is in force, the ancient law of the Decretals being preserved for places not subject to the Tridentine decree. but no long- Until a very recent date, therefore, a legal presumption, juris et de er under the j ur g^ of marriage, arising from the copula of betrothed parties, still remain- cipUne. ed in force for those places and, for those places only, in which mar- riage could be validly contracted without the Tridentine form ('). But, on the I5th of February 1892, Leo XIII by the Constitution Con- sensus mutuus, ( s ) abolished that ancient law, and ordained that it should be held as abolished and abrogated, just as if it had never been in existence, decreeing that henceforth in those places in which clandestine marriages are regarded as valid,a.\\ ecclesiastical judges who have cognizance of such matrimonial causes should forthwith cease to treat the intervention of car- nal intercourse between betrothed persons as a presumption (juris et de jure) of the marriage contract, and that they should not acknowledge or declare such union to be lawful marriage ( 3 ). Nowhere, therefore, under the existing discipline is marriage brought into being, by a legal presumption juris et de jure due to the copula follow- 1. Leo XIII confirms this in the above mentioned Constitution, where he says: K Quibus autem ilia (lex Tridentina) locis non viget, in iis semper Apostolicae Sedis judicium fuit, canones (Decretalium)... ratos atque firmos permansisse . 2. Collection S. C. de P. F., n. 1279. Concerning the interpretation of this Con- stitution WERNZ, (o. c., n. 104, note 114, cf. n. 29, note 12) warns us that the following points must be borne in mind : i. Cavendum est ne novum jus a Leone XIII constitutum etiam extendatur ad alias praesumptiones juris, (sive simplicis sive) juris et dejure, in causis matrimonialibus . 2. Although the Constitution Consensus mutuus has not an express and formal clause giving it a retrospective force, nevertheless it appears that it is to be applied to all causes brought before an ecclesiastical court after 15 Feb. 1892. For the Roman Pontiff decrees that all contrary sanctions of the law whatsoever are to be held as radically abrogated and obsolete, ac si nunquam prodiissent . 3. The Sovereign Pontiff was moved to this, both by the many inconveniences that arose from the conflict between the forum externum and the forum internum, and by the following consideration, as given in the Constitution itself : plures Episcopi ex iis regionibus, in quibus matrimonia clandestina contra fas quidem inita, sed tamen valida judicantur, baud ita primum rogati quid populus ea de re sentire videretur, plane retulerunt canonicam de conjugiis praesumptis disci- plinam passim exolcvisse desuetudine atque oblivione deletam, propterea vix aut ne vix quidem contingere ut copula inter sponsos affectu maritali et non fornicario habeatur : eamque non matrimonii legitimi usum sed fornicationis peccatum communi hominum opinione existimari ; imo vix persuaderi populo posse, sponsalia de future per conjunctionem carnalem in matrimonium transire , THE NATURE OF BETROTHMENT ig ing on betrothment, whether the marriage be subject to the Decree Ne tcmert ('), or exempt from it. The only difference is that a marriage subject to the decree cannot be contracted per copulam, (so that the praesumptio juris > alone is no longer applicable), while a marriage exempt from the decree may be valid owing to the copula, but only where such carnal intercourse took place with con- jugal intent. D. Penalties, pledges, presents. 15. Sometimes a penalty is agreed upon against the party that draws back When it is from the betrothment. Sometimes also a deposit either of real or personal necessary to return property is mutually given as a sign of the betrothment and as a pledge of faithfully keeping the promise. Frequently presents are given, especially by the prospective bridegroom, as a mark of love and good will. Hence : 1. Presents, if they are of little relative value, are regarded as given betrothal pre- absolutely, and there is no necessity to return them under any hypothesis, sents, though as a rule they are given back on the dissolution of the betrothment. If they are of a more costly nature, they are considered as given under an implied condition of marrying, and after the marriage they are kept by the recipient. If the marriage does not take place, they must be returned by the respective parties, but when one party has unjustly drawn back from the contract, they may sometimes be retained by the injured party by way of compensation. 2. Pledges or deposits (*) may be demanded back after the marriage has pledges. taken place. If the betrothment has been broken, such pledges or deposits must be returned by the party unjustly defaulting, and they may be retained by the other party. In case of just cause for withdrawing from the contract they must be returned on both sides. 3. With regard to penalties a difference of opinion exists. Undoubtedly Whether a a stipulated penalty does not hold good against one who justly withdraws stipulated pe- from the contract, but it is doubtful if it has any binding force against one one who who withdraws unjustly. withdraws The negative opinion is favoured in no obscure manner by c. 29,X,IV,i; or unjustly. 1. The provisions of the Decree Ne Umere, of which we have already spoken, have replaced those of the Council of Trent, and will be more fully treated later. 2. Foremost among the pledges (arrhae) must be reckoned the betrothal or engagement ring, the giving of which was called subarrhatio. Thus c. 3, C. XXX, 5 : Postquam arrhis sponsam sibi sponsus per digitum fidei a se annulo insignitum desponderit . It was customary, however, to give as pledges other things besides the ring, as is clear from MARTENE, o. c., 1. II, p. 3 a , p. 640 s., where he gives the prescribed rubric : Sacerdos benedicit annulum cum arrhis . Cf. p. 616, also LAFOURCADE, o. c., p. 89 s. ; GLASSOX, o. c.. p. 159. 20 THE EFFECTS OF BETROTHMENT for in this canon Gregory IX decrees that the stipulated penalty cannot be exacted from one who breaks his betrothment. He is there speaking, indeed, of betrothments that are invalid owing to defect of age, but the reason adduced affects any imposition of a penalty : cum itaque libera matrimonia esse debeant, et ideo talis stipulatio propter poenae interposi- tionem sitmerito improbanda . Moreover, the Roman law (L. 19, Dig., XLV, i), to which the canon law for the most part conforms, unless there is proof to the contrary, rejects every stipulation of a penalty made by private individuals. The analogy of pledges (arrhae) does not hold good ; these are permissible, since in their case there is less reason to fear any hurtful excess, inasmuchas they are given in the present, while penalties apply to the future ('). Besides, in questions of fact the inference apart is not valid (*). Now if these arguments do not conclusively prove the opinion that denies any binding force to penalties of this kind, they at least render it extremely probable ; and in the face of this probability one who has unjustly defaulted cannot be compelled to pay the stipulated penalty, though the other party, taking advantage of the doubt, may demand payment and retain posses- sion of the same. CHAPTER II. THE EFFECTS OF BETROTHMENT. Betrothment entails : 17. Effects of I. A diriment impediment of public decency, which invalidates mar- '" ' riage with the blood relations of the respective parties in the first degree. Observe that this impediment remains even after the disso- lution of the betrothment, but that it does not arise except from a betrothment that is valid and absolute ( 3 ). Cf. below, n. 308 ss., where we treat more fully of the impediment of public decency. I. It might be objected that in the case of pledges (arrJiae), one could stipulate for the immediate delivery of a part of the pledge, and for the subsequent dou- bling or quadrupling of that part. But cf. WERNZ, o. c., IV, n. 108 ; LAFOURCADE, o. c., p. 87-88 and 94 ; ROCHE, o. c., p. 21-24. 3. Cf. for the negative opinion, SANTI, I.e., n. 28 et seq., WERNZ, o. c., IV, n. 99, sub vi ; and for the opposite opinion, SCHMALZGRUEBER, in I. IV Deer., tit. I, n. 138-148, and GASPARRI, o. c., I, n. 59-61. 3. According to cap. unic. in VI, IV, 1, absolute betrothment, even though invalid for some reason other than defect of consent, entailed the impediment of public decency, and, according to the reckoning of Innocent III (8, X, IV, 14), THE EFFECTS OF BETROTHMENT 21 2. An impedient impediment, prohibiting marriage with any other person, as long as the valid betrothal exists. 3. A threefold obligation : a/ A grave obligation of justice to marry the betrothed person (') at the proper time : that is to say, at the time fixed upon by the con- tracting parties, or, if no such date was fixed in advance, then at the time determined by use and custom, o'r at a time appointed by the ecclesiastical judge (*). This is an obligation of justice, since betrothment constitutes a bilateral contract, in which a strict right is given in virtue of the mutual consent ; the obligation is grave, owing to the nature of the interests involved. b/ An obligation, resting on the above, of keeping the sponsali- tial faith, that is to say, of maintaining a mutual loving inter- course according to custom and the circumstances of the case, and of refraining from all flirtation with a third party that might car- ry with it even an appearance of matiimonial purport. c/ An obligation, likewise resting on the first-named, that the parties should not render themselves unfit for marriage, e. g., through impotency ; and again, that they should not voluntarily contract up to the fourth degree. The Council of Trent, however, admitted the impedi- ment of public decency in the case of valid betrothment alone, and restricted it to the first degree. Cf. Sess. XXIV, cap. 3, De Reformatione matrimonii. 1. Collat. Brug., t. XI, p. 602, and what we have said above in 4, where we observe that the code Napoleon recognises no binding force in betrothment, accord- ing to the established practice ; nay more, promises of marriage are held to be null in law, as interfering with freedom of marriage. Damages may, however, be claimed under articles 1382 and 1383, not on account of the breach of promise, which the law permits, but in consequence of the misdemeanour or quasi-misde- meanour, that is to say, deceit or other like wrong. Cf. PLANIOL, o. c., n. 788 s. ; LAFOURCADE, o. c., p. 199-215, compared with p. 231 ss. This author gives on page 231 and following pages the various legal enactments on this head, and in particular the English law, which recognises in bethrothment the obligatory force of a contract, but does not permit that the betrothed parties should be com- pelled to marry, and the new German law introduced in 1900. Cf. also SCHERER, o. c., par. no, p. 140 ss, ; GLASSON, o. c., p. 270 s. ; Rev. eccl. de Metz, 1900, p. 25 s. ; CRETINON, 1. c., p. 160 s. 2. Collat. Brug.,i. XI, p. 693 ; n. 2, above, in note. Cf. MARTENE, o. c., 1. 1, P. 2, p. 632, 630 and 643, whence it appears that formerly there was an interval of forty days between betrothment and marriage. Cf. also LAFOURCADE, o. c., p. 191 et seq. 22 THE EFFECTS OF BETROTHMENT any notable defect that would make them in a marked degree less desirable as husband or wife. The reason of this lies in the fact, that consent to a future marriage, implies an agreement on both sides, not to hinder the fulfilment of the promise by voluntarily placing any obstacle in the way of it. In other words betrothment gives, not indeed a jus in re, but a.jtis ad rem over the respective bodies of the contracting parties ; that is to say, a right to the jus in re, or a right to the future use of the body. This implies a right that the said body should not be rendered unfit, or notably less fit, for conjugal requirements. The obligations which we have just-described, and the impedi- ment arising from betrothment belong to the natural law ; the canon or ecclesiastical law adds thereto the impediment of public decency, and sanctions the prohibitive impediment as well as the obligation of the betrothed parties to marry one another, that already existed in the natural law. 18. Liability of Note. 1. Even if for grave reasons it is not desirable to force Busily dc- l ~ on the marriage, those who unjustly default, and refuse to keep faults. their promise, are bound to indemnify the injured party for the loss inflicted. Moreover, though the party unjustly forsaken, should suffer no detriment in consequence, that party may, even by legal proceedings in the ecclesiastical court, exact compensa- tion from the other as a penalty for broken faith and satisfaction for the wrong done. Cf. infra, n. 34. 2. We have confined ourselves here to the obligation of marriage as such, without taking into consideration the various circum- stances that may accompany it. Certain circumstances may, in- deed, give rise to an obligation of marrying, especially carnal inter- course, whether resulting in pregnancy or not, whether occurring under a promise of marriage or not. But these questions belong rather to a treatise de Jusiitia, where the question of restitution for injury to chastity and honour finds its proper place (') We have spoken above (n. 2) of the obligation arising from a simple unilateral promise. i. The following is a summary of the teaching on this head : The copula alone, where it does not imply betrothment (n. 6), does not induce an obligation of mar- riage, not even when it has been effected by violence. It is sufficient in such a THE EFFECTS OF BETROTHMBNT 23 19. Corollary. From what has been said a solution may be found to Betrothed the much debated question, whether betrothed parties by criminal O f criminal intercourse with a third person incur the specific guilt of injustice against i ff rcot t?* f d the other party to the betrothment, and are bound to declare the same in person sin confession. In solving this doubt some maintain that the betrothed, man and woman alike, are guilty of grave injustice ; others hold the woman alone to be so guilty ; while others, again, think that both parties are probably at least to be excused from grave injus- tice. We consider that the first opinion ought to be preferred, and that either party guilty of fornication, is guilty also of grave injustice ('). As a matter of fact the sponsalitial promise carries with it not only an obligation of marrying, but also a further obligation, implied therein, of not rendering one's body unfit or less fit for conjugal use ; but fornication undoubtedly has this effect, and consequently constitutes a grave violation of the engagement entered into by the betrothed (*). case that the seducer make reparation in some other way for the injury inflicted, e. g., by giving a dowry, according to the old spying : Due vel data. If the copula results in pregnancy, there may then arise an obligation of affection to marry for the sake of the child, in order to render it legitimate. If a promise of marriage simply is added to the copula, it will be considered, according to the intention of him who gave it, as binding injustice (cf. n. a). If the copula was permitted in consequence o/the promise of marriage, then, provided the promise was a serious one, there is an obligation in justice to marry, though the contract was made with an immoral condition or for an immoral object ; if the promise was fictitious, then, as a rule, the party who made the promise is under an obligation to marry, not in virtue of his promise, but in consequence of the injury inflicted, which he cannot otherwise repair. Cf. Collat. Brug., t. II, p. 615 ss. As regards the cessation of the obligation : note in the first place, that an obli- gation of affection more easily ceases than one of justice;secondly,that, as a rule, an obligation of justice is extinguished by those causes that put an end to the spon- salitial obligation, according to what we shall have to say in chapter IV ; thirdly, that where the obligation remains, it is scarcely ever to be urged against an unwilling and recalcitrant party, but that recourse should rather be had to some amicable arrangement, as in the case of betrothment. See n. 34. 1. We mean fornication taken by itself, and abstracting from any amorous intercourse that went before, as if with a view to marriage ; though, of course, this latter would also be a breach of sponsalitial faith, according to what we have said above. 2. That sponsalitial faith is violated by fornication, is corroborated by c. 25, 24 THE EFFECTS OF BETROTHMENT It would certainly appear that a greater injustice is done to the man by the criminal misconduct of his fiancee, than to her by a similar act on the part of the man ; nevertheless it seems that we cannot deny the absolute gravity of the injury in either case, at all events, where families of decent condition are concerned ('). The gravity of the injury is evident from the fact that, as a rule, an honest girl is seriously offended, when she discovers that her betrothed has been guilty of such a fault ; and also from the con- sideration that ordinarily the betrothment is thereby rendered dissoluble, at the discretion of the innocent party (*). From what has been said we may reasonably conclude that the more rigorous opinion alone is intrinsically probable, and conse- quently, looking at the matter objectively, betrothed persons, who have committed fornication with a third party, are bound to make known in confession the circumstance of their betrothal ; and X, II, tit. 24, where Innocent III decrees : Si quis juraverit se ducturum ali- quam in uxorem, non potest ei fornicationem opponere praecedentem, sed sub- sequentem, ut illam non ducat in uxorem ; quia in illo juramento talis debet conditio subintelligi : si videlicet ilia (sponsa) contra rtgulam desponsationis non venerit. > Cf. c. 33, X, IV, i; cf. also LAFOURCADE, o. c., p. 41 and 72, where he sets forth the provisions of the ancient German law against unfaithful fian- cees ', likewise L. 13 3, Dig. XLVIII, 5, where a fiancee is declared guilty of adultery, because it is lawful to violate neither marriage nor the hope of mar- riage, (nee matrimonium nee spem matrimonii). I. If the betrothed parties know one another to be of immoral life, and care little for their mutual good name, a fresh act of fornication will not greatly dis- tress them, and if the man, or even the woman, should be guilty of such miscon- duct, they will hold the injury as little or nought. 3. This more rigorous opinion is favoured by many writers ; the older are quoted and followed by the SALMANTICENSES, Cursus theol. moral, tr. IX, Cap. i, n. ii. Among the more recent may be mentioned BANGEN, Instr. pract., I, p. 13 ; ROSSET, o. c., 1. 11, n. 957-964, and BALLERINI-PALMIERI, Opus theol. mor., Prati, 1889-1893, t. VI, n. 148-163 ; the two last named have no hesitation in denying intrinsic probability to the opposite opinions ; BENEDICT XIV, Instit. 46, n. 19, defends the same opinion. Many modern theologians, as LEHMKUHL, o. c., t. II, n.664; BUCCERONI, Instit. tktol. morales, Romae, 1893, t. II, 948: GENICOT, Theol. mor. instit., t. II, n. 444 ; NOLDIN, De sexto Praecepto, 1900, n. 19 ; MARC, Instit. mor., t. I, n. 775 ; AERTNYS, Theol. mor., 1890, t. II, n. 429 ; GASPARRI, o. c., n. 66, declare the matter doubtful, and so exempt penitents from the obligation of making known the circumstance : for the most part they refrain from discuss- ing the reasons, and rely solely on extrinsic authority, especially on that of St Alphonsus, merely repeating his words or invoking his authority. IMPEDIMENTS OF BETROTHMENT 25 confessors ought to question them about it, as occasion offers. If, however, anyone considers that the intrinsic improbability of the con- trary opinion is not established, he can adopt the more liberal opinion, and put it in practice, relying upon its extrinsic probability. Should there be occasion to ascertain from a penitent if he is betrothed, this will present no great difficulty to the confessor, since in most cases the circumstance will declare itself sponta- neously, in answer to other questions that have to be put in order to secure integrity of confession, or for the purpose of direction. CHAPTER III. IMPEDIMENTS OF BETROTHMENT. 20. I. Betrothment is impeded i. e., rendered illicit, especially by Impediments the reasonable refusal of parental consent. betrothment Explanation : a/ We do not say that it is always and every- where unlawful to enter into betrothment without asking parental consent, (for herein regard must be had to the customs that pre- vail) ; but due reverence for parents demands that it should not be contracted in opposition to their reasonable wish ('). b/ If the dissent of the parents affects the promised marriage itself, then the betrothment is invalid, according to what we shall have to say under II, since there is then a prohibitive impediment to the marriage. II. Betrothment is rendered null or invalid : 2/. A. By want of the use of reason, or even of the presumed age or render it of reason, viz. seven years, as we have seen above. B. By any matrimonial impediments whatsoever, whether diri- ment or impedient, that are of themselves perpetual and independent of the will of the contracting parties, both those, from which a dispen- i. Ivo Carnutensis describes the ancient law of the Church in Panormia, I, IV, c. 12, apud Migne, vol. 161, col. 1046. Cf. for the Roman law, LL. 11-13. Dig., XXIII, i. Cf. LAFOURCADE, o. c., p. 58 ss.; see also what we say below n. 248 ss. concerning parental consent with respect to marriage ; cf. also Rev. eccl. de Liege, III, p. 100 ss., where the duty of children towards their parents in this matter is most skilfully treated. Cf. in fine, the Causa Milevitana, 23 Dec. 1910, in the Ada A. S., HI, p. 76 ss. 26 IMPEDIMENTS OF BETROTHMENT sation cannot be given, or is not usually given, and also those, from which it is customary to grant a dispensation ; this holds good, even, it appears, if the betrothment is entered into under a condition of obtaining a dispensation. Explanation. 1 . The impediments are understood as existing at the moment when the betrothal is made. Of the case in which they supervene upon a contract already made, we shall speak below, n. 25. 2. We say : of themselves perpetual and independent of the will of the contracting parties ; because impediments which are of a temporary nature, so as to disappear spontaneously with the lapse of time, or which, if of themselves perpetual, may be removed at the will of the betrothed, do not affect the validity of the betrothment, provid- ed, as we suppose, there is a tacit condition of marrying after the removal of the impediment. This is the case with the prohibited time, impuberty, a temporary vow of chastity, mixed religion and disparity of worship, where the non-catholic or infidel party is willing to embrace the faith. 3. The reason why betrothment is rendered null by a prohibitive impediment of marriage is that no one can validly promise that which is impossible or unlawful. 4. Among those causes which render marriage unlawful, and betrothment consequently null, may be reckoned an inequality of condition between the parties desiring to marry, so great and of such a kind, that the marriage cannot take place without grave dishonour to a whole family. If the inequality is not so excessive, the betrothment is not thereby annulled, though, if the inequality was unknown, it may be rendered subject to rescission, according to what we shall say below, n. 28. inparticular, 5. It seems necessary to state that betrothment is null and void made iviih 'a through the presence of a matrimonial impediment, subject to dis- marriagc im- pensation, even though it has been entered into under a condition pediment, r . . under acondi- of obtaining a dispensation. Conditional betrothment of this kind is not, indeed, by its nature sation,isnull, null. If we consider that alone, there is here, as in other betroth- nature, nients with a suspensive condition, an obligation of awaiting the fulfilment of the condition, together with a prohibition of con- tracting marriage or a fresh betrothal with another party ; and THE DISSOLUTION OF BETROTHMENT 27 on the fulfilment of the condition, it forthwith becomes valid ('). But from the positive will of the Church it seems that such, but by the po- betrothment is null. This positive will of the Church is apparent in various Roman decisions given in the N. R. th., IV, p. 582 ss. (*). There is also the authority of several authors, among whom may be mentioned,FEYE,.De Imp., n. 394 ; BALLERINI-PALMIERI,O.C.,V!, p. 96 ss. ; SANTI, in tit. V, n. 30 ss. ; WERNZ, o. c., IV, n. 95 s. ; DE BECKER, De matr., p. 8 s. ; N. R. th., 1. c., p. 571 ss., and the authors there adduced. GASP ARRI holds the contrary opinion (o.c., n. 50 ss.), together with the Doctors quoted by FEYE. SANTI (1. c.) remarks : The Congregation acts thus, it appears, to remove as far as possible between relatives, those dubious and dangerous attachments made under the condition of obtaining dispensation later . Hence it follows, that those united in a betrothment such as we have been speaking of, have not contracted the impediment of public decency, and are free to pass on to other engagements, without being obliged to procure a dispensation or to wait for one ( 3 ). Nevertheless, as the fullest certainty is desirable in a matter of this kind, the betrothed, in such a case, must not be declared free from all obligation, and from the impediment of public decency, without recourse being had to the Ordinary or to the Holy See. The party forsaken, in consequence of the existing doubt, may press his or her claim against the party repudiating the contract. 1. It is to no purpose to object that the condition is an immoral one, as it leads to the extorting of a dispensation and so does violence to the law. 2. It is there a question of betrothment judged before a dispensation had been obtained ; but this makes no difference, since it is declared, without any restric- tion, that the contract was altogether null, and induced no obligation, not even of applying for a dispensation, or awaiting the issue. 3. Cf. WERNZ, o. c., IV, n. 95, note (54), where he remarks that the betrothed are bound to keep their promise by a certain sense of honour (ex quadam hones- fate), but not by any strict obligation. 28 THE DISSOLUTION OF BETROTHMENT CHAPTER IV. THE DISSOLUTION OF BETROTHMENT. 22. Difference Observation. Betrothment validly contracted is not indisso- between dis- , ' solved and luble, but may be dissolved for various reasons (*), and in a two- betrothment fold manner : either i. in such a way as to be ipso facto dissolved, and so straightway cease to exist ; or 2. in such a way as to be dissoluble or subject to rescission at the will of one party, or of both. In the first case it simply ceases to exist ; in the second it con- tinues to exist until the one party or the other, having the power to do so, cancels the contract. The party exercising this right to withdraw is not bound to marry, nor to refrain from marrying another. In whatever way a betrothment, once validly contracted, is dissolved, the diriment impediment of public decency remains in force, and only the prohibitive impediment, prohibiting another marriage, together with the obligation of marrying the betrothed person, ceases to exist. It should be noted also, that the causes dissolving betrothment likewise remove the religious obligation contracted by an oath, if such was added to the contract, since the accidental follows the principal. Cf. WERNZ, o. c., n. 109. The causes Bearing in mind what has been said above, the following are the principal causes whereby betrothment is dissolved or rendered dis- soluble. 23. 1. consent of I. Consent of the betrothed parties. tlie betrothed ; 1. Betrothment is dissolved by the free and mutual consent of the parties ('), even if privately given, to the rescission of the con- tract ; provided, however, that they are of a marriageable age. Those under that age, have no power to revoke their consent before attaining puberty, as will be presently noted, since the Church incapacitates them from doing so, lest they should rashly entangle themselves in successive promises of marriage. 2. Revocation of consent by one party renders betrothment i. In the Greek Church betrothment induces a bond, which, though not indis- soluble, is much stronger than in the Latin Church. Cf. VERING, o. c., p. 856 s. 3. C. 3, X, IV, I. THE DISSOLUTION OF BETROTHMBNT 29 dissoluble at the will of the other, since there is no obligation to keep faith with him who breaks his promise. 24. II. Impuberty of one or both of the contracting parties : Betroth- 2. impubcrty ment between those who are not of a marriageable age, or between one who is, and one who is not of that age, is valid indeed, but dis- soluble at the will of the party subsequently attaining puberty ('). That party, on reaching marriageable age is at liberty to renounce the betrothment within three days from the time that he became aware of his privilege (*), with the single exception, perhaps, of the case in which the contract has been confirmed by oath (*) by parties below the age of puberty, but very near to it. The law makes this provision, as we have seen, in view of the imperfect discretion of those under the age of puberty (*). III. A supervening matrimonial impediment. 2S. 1. Betrothment is dissolved when a perpetual matrimonial impe- 3.a superven- diment, whether diriment or impedient, supervenes, and when ^fu this impediment is one which does not admit of dispensation, or ment ; which, while capable of dispensation, has been contracted by both parties. In this latter case it is held as equivalent to a mutual renunciation of the betrothment. If an impediment that does not admit of dispensation has been contracted through the fault of one of the parties, and the betroth- 1. C. 7, X, IV, 2. Cf. supra, n. n. 2. There is no reason to add, with the Theol. Mechl., o. c., n. 4, modo inter eos (impuberes) non intetvenerit copula carnalis ; and to appeal to cap. 8, of this title. If the copula occurred before the sponsalitial contract, that is a proof that betroth- ment took place between those who had reached the state, if not the years, of puberty ; and so the privilege does not exist. If the copula was subsequent to the contract, then, with the attainment of physiological puberty, the time for using the privilege began. In the passage of the Decretals referred to, it is a question of matrimonial consent given before the years of puberty; from which it is lawful to withdraw, on attaining that age, provided carnal intercourse has not intervened : because then it would be evident that puberty was present, and that the marriage would ipso facto exist. 3. Cf. WERNZ, o. c., n. no, note (130). 4. For a like reason, namely on account of the absence of complete freedom, a betrothment entered into under the infliction of grave, or even of slight fear, is dissoluble, at all events in foro interno, provided the engagement was really made under the influence of that fear. 30 THE DISSOLUTION OF BETROTHMENT ment consequently dissolved, the party at fault is bound to make compensation for the injury inflicted. 2. Betrothment is dissoluble when the act of one or other of the parties gives rise to a matrimonial impediment, either temporary or perpetual. In that case the innocent party may either withdraw from the engagement, or insist on his right ; in the latter event the offending party is bound to procure a dispensation, if that can be done without any excessive detriment ; or if the impediment is of a temporary nature, he must keep his promise on the removal of the impediment. This occurs especially when the man has been guilty of crimi- nal misconduct with the sister of his fiancee, or with some blood- relation of hers within the second degree. The fiancee may then insist on the marriage, but on her side is freed from all obligation to marry. In such a case it would often be better to advise the girl to waive her right, and permit the man to marry her sister or other blood-relation with whom he has misconducted himself, especially if such should be enceinte. Cf. Collat. Brug., t. XI, p. 641 ss. but social at- 3. Special attention must be given to the supervening on tention must betrothment of the impediment arising from a vow ; that is to say, supervention from a vow of perfection, or from the actual embracing of that mentofavow' state, which is considered as equivalent to a vow. a/ If both parties take the vow, or choose the more perfect life, the betrothment is spontaneously dissolved, according to what we have already said under 1 . b/ If one party only takes the vow, or embraces the more perfect life, then the betrothment is dissoluble at the will of the other party, in accordance with the rule laid down above under 2 ; it would moreover appear that the betrothment is dissolved as often as either party has contracted a perpetual obligation, even though dis- pensable, to the more perfect life, as, for instance, when he (or she) makes a solemn, or even a simple profession in an approved con- gregation, or is promoted to sacred orders, or again takes a vow of perpetual chastity in the world, or binds himself by a perpetual vow to the religious life or to celibacy. It would appear that the special pre-eminence, which this impediment arising from a vow, possesses over all other matrimonial impediments in dissolving the THE DISSOLUTION OF BBTROTHMBNT 3! sponsalitial contract, is due to the well known preference that the Church shows for the more perfect life as compared with the mar- ried state. This preference is apparent also in the privilege conced- ed even to those who are married, before the actual consumma- tion of the marriage ('). If only a temporary obligation has been contracted, as for example by a vow fora limited period, by sim- ply entering the religious state, or by receiving the tonsure or minor orders, the betrothment is not dissolved ; consequently the party, on giving up the more perfect state, is bound, at the instance of the other party, to fulfil his (or her) promise of marriage, though, owing to the preference due to the more perfect life, on which he has entered, he is not bound to give it up in order to marry, or to seek a dispensation for that purpose. IV. Another marriage or a fresh betrothment. 26. 1 . A fresh beirothment (*), if attempted by both parties, dissolves 4. another the former contract. If, however, it is attempted by one party only, then the existing contract is rendered dissoluble at the will of the other party. 2. The supervention of an invalid marriage dissolves the betroth- ment, or renders it dissoluble, according as marriage has been contracted by both parties or by one only, as stated above in 1. A valid marriage certainly dissolves the betrothment, if both of the parties marry. If, however, only one of them should marry, it is a moot-point whether the betrothment is thereby dissolved, or merely rendered dissoluble, so that, if the innocent party does not waive his claim, the offending party remains bound by the pre- vious obligation to marry after the dissolution of the existing mar- riage. Theoretically speaking, though authors are not agreed on this point ( 5 ), it cannot be admitted that the contract is dissolved, and consequently the obligation must be maintained. In practice, I. See below n. 133. 3. A fresh betrothment, contracted while the former is still in force, is certainly invalid. 3. Cf. WERNZ, o. c., IV, n. 114, note (140), where he contends that the betrothment is dissolved, and that all obligation ceases, in opposition to SANTI, in i, IV, tit. i, n. 50, and Anal, eccl., 1901, p. 144 s. 32 THE DISSOLUTION OF BETROTHMENT however, the obligation may for the most part be ignored, at all events when the marriage is not quickly terminated, since under the circumstances it is hardly likely to be insisted upon by the party forsaken. V. Flirting with a third party. 27. 5. flirting Since flirtation of this kind constitutes a breach of faith, and i m P nes a renunciation of the contract, betrothment is thereby rendered dissoluble at the will of the other party, in accordance with what we have said above. We are speaking here of the courting, of a third person with a view to marriage, or of such courting as is to all appearance car- ried on with a view to marriage ; for this latter is equally inju- rious to the other party. Moreover such conduct will easily give grounds for uneasiness as to future conjugal fidelity, of which we shall speak under VI. VI. Subsequent change or discovery of defect. 28 6. subsequent We are to be understood as speaking of some notable change or change or dis- defect. covery of de- fect ; Revocability of the betrothment by the one party on account of a notable change in the other arises from the fact, that the respec- tive parties are rightly considered to have promised to marry one who is morally identical with the person with whom the sponsali- tial contract was made. That the discovery of a grave defect, even of one that had not been fraudulently concealed, brings with it the power to dissolve the betrothment, arises from the provisional nature of the sponsalitial contract, and from the consideration that is due to the liberty and stability of marriage. Hence this reason for dissolving the contract especially applies to a defect that forebodes an unhappy issue to the marriage, or makes conjugal fidelity suspect. Examples. Such are the following cases : 1. If in one of the parties there should supervene, or be brought to light : heresy, the commission of a crime, ill fame, loss of vir- ginity, sterility consequent on a surgical operation, deformity, inaptitude for bearing the burdens of the married state, poverty, and other like defects. 2. A betrothment may also be rendered dissoluble, at least in THE DISSOLUTION OF BETROTHMENT 33 conscience, if in the mutual intercourse of the parties it becomes evident, without the detection of any special fault, that there is a contrariety of disposition, such as to give good reason to fear that the marriage will turn out an unhappy one ('). 3. Fornication with a third person, even apart from any flirtation, which may perchance have preceded it, and of which we have spoken above (V.), constitutes a cause of dissolubility on three grounds : firstly, it induces a change, which in the case of either of the betrothed is regarded as grave, at least among decent peo- ple ; secondly, it gives rise to a suspicion of subsequent conjugal infidelity ; while, in the third place, as we have said above (n. 19), it is tantamount to an implicit renunciation of the contract, conse- quent on the neglect of the obligation contained therein of mutually preserving bodily integrity (*). Immodest touches indulged in with a third person do not of them- selves constitute a notable defect, though, if frequent and unre- strained, they may give ground for well founded doubt as to future conjugal fidelity, and may accordingly under this head render the betrothment dissoluble at the will of the other party. Note, a/ If one of the parties should unexpectedly attain to greater wealth or higher social position, or should have the offer of a more desirable engagement, there are not wanting authors ( 3 ) who hold as probable the opinion that such a party might, though not without reproach, lawfully withdraw from the previous con- tract on the ground that the condition in life of the other party is 1. The apprehension of an unhappy issue to the marriage does not render the betrothment subject to rescission, and cannot extinguish the obligation of mar- rying, except in so far as it rests on some objective basis, on some actual defect or real contrariety of disposition. This is not the case, if the apprehension arises from the purely subjective disinclination of one of the parties to marry. Under such circumstances the betrothment holds good together with its obligation, though as a rule this is not to be urged, as we shall observe under n. 34. 2. If the act of fornication took place between one of the betrothed and a blood- relation of the other within the second degree, there arises a fourth ground of dissolubility in favour of the innocent party, in accordance with what we have said above under n. 25. 3. For example, PRUNER, Lthrbuch der Pastor altheologie, Paderborn, 1904, I, n. 815 ; WERNZ, o. c., n. 116. 3 34 THE DISSOLUTION OF BETROTHMENT relatively lowered. It is difficult, however, to admit this, unless perhaps in quite exceptional circumstances, as, for instance, where owing to the change in the social position of the man, his betrothed would obviously be quite unequal to the discharge of the duties that would fall upon her as his wife. b/ If the defect was known before the betrothment took place, it does not render the contract subject to rescission ('). The same holds good if the contract was ratified after knowledge of the defect (). Scholion. With regard to the obligation that the betrothed are under of mutually manifesting their hidden dejects, the following rules may be laid down : 1 . As regards those defects that do not bring any grave injury or disgrace to the other party, but which would merely make the mar- riage less acceptable, without inflicting any serious injury, the betrothed are not bound in justice to reveal them ; for no one is required to make known his own defects merely to avoid giving displeasure to another, provided that this one is not liable to any serious injury in consequence of them. Such defects would be fornication in the past, not followed by pregnancy ; loss of vigour; or a physical infirmity that is not of a contagious nature. The betrothed 2. Theoretically speaking, those intending to marry are respecti- a fnak known ve ^ bound either to abstain from doing so, or to make known any to one another occult defects that would entail serious disgrace or injury to the that entail other party. For, as in other contracts it is not lawful to pass serious dis- Q ff an ar ti c l e with some hidden defect to the injury of the other grace or m- . _ J J jury, party, so in like manner it is unlauwful to enter upon the sponsal- itial or matrimonial contract with an occult defect of an injurious nature ( 3 ). Pregnancy of the betrothed woman by some other man would be a defect of this kind, except in the case of people lost to all 1. The reason is because the other party is considered to have condoned the defect. 2. The ratification may be made in express words, or implicitly, v. gr., by a continuance or resumption of intercourse. 3. THEOL. MECHL., o. c., n. 8. It must be understood that we are speaking of such defects as do not destroy aptitude for marriage and its essential duties, otherwise it is evident that the marriage is absolutely forbidden. 35 sense of decency. Such also would be a contagious complaint, as syphilis, or even consumption. We have said : theoretically speaking ; because, looking at the nevertheless matter in the concrete, regard must be had to prevailing customs ^"LwTto and common opinion, so that betrothed parties are not to be com- prevailing customs. pelled to make known defects that general usage and opinion permit them to conceal, even though they be injurious to the other party. This especially holds good with regard to the pecun- iary position of the parties, for it is a matter of common exper- ience that their statements in this respect are not always to be trusted, and it is precisely for this reason that such careful inquiries are usually made ( J ). Observe : a. Where there is no obligation of revealing defects, they may also be deliberately concealed, provided there is no positive deception of the other party. b. It is most advantageous that any existing defects should be mutually known, and especially that there should be no conceal- ment, as to pecuniary position, which might afterwards give rise to misunderstandings and disputes. There may even be an obligation of charity to make such a revelation, provided the matter is not such as to prejudice seriously the party making it, as, for instance, where it would result in the girl losing her good name, or having to remain unmarried (*). VII. Lapse of time. 1 . If a time has been fixed for the marriage : 3Q a./ So as to put an end to the obligation in case of delay, the con- 7. Lapse of tract is dissolved if the delay has occurred through the fault of neither, or of both of the parties. If it has occurred through the fault of one party only, then the contract will be dissoluble at the will of the other party. b/ If a time has been fixed for the purpose of rendering the I. We suppose, of course, that some limit is observed, and that the discrep- ancy between the actual and alleged state of affairs is not altogether dispropor- tionate. a. In Holland an act is in preparation providing for the compulsory medical examination of those intending to marry, and for the communication of the result to the respective parties. Cf. Collat. Brng., t. XV, p. 19 s.; NYHOFF, o. c., p. 54 s. 36 THE DISSOLUTION OF BETROTHMENT obligation more urgent, then an involuntary delay leaves the con- tract untouched ; but a voluntary and notable delay renders it dissoluble, when such delay is made without just cause, and the other party presses for the fulfilment of the promise. 2. If no time has been fixed : A delay notably in excess of that usual in the country concern- ed ('), has the same effect as delaying beyond the time fixed for rendering the obligation more urgent. See 1, b, above. Note. 1. From what has been said above, we may determine the validity and stability of a betrothment, when one of the parties goes away to a distant country. 2. Whether a time has been fixed for the purpose of putting an end to the obligation, or of rendering it more urgent, must be determined inforo inlerno according to the intention of the contract- ing parties. In foro externo it must be gathered from the words employed, or, if these leave the matter doubtful, from the attendant circumstances and from the motives that influenced the betrothed in arranging their marriage for such a date (*). 31. 8. dispensa- VIII. Dispensation. The Sovereign Pontiff has the power of dissolving the bond of betrothment, with its mutual obligations, and consequently of removing the prohibition to marry a third person, even in so far as this prohibition arises from the natural law. A. Proof. Proof that the It is beyond contradiction that betrothment, like every other bower to dis- con tract, produces mutual obligations and rights by virtue oi the 1. In the Roman law, and in the ancient German law the delay could not exceed two years. Cf. LAFOURCADE, o.c., p. 191 s. ', ROCHE, o. c., p. 8 s. 2. SCHMALZGRUEBER, o. c., n. 196 s. : Si verba sint ambigua... recurrendum ad causas et motiva ob quae terminus fuit assignatus. Nam si utraque pars, vel saltern ilia quae cupit diem adjici,apprehendit sibi omnino expedire ut brevi sive cum hac sive cum alia persona matrimonium contrahat, quia vel difficile ipsi est diutius a nuptiis abstinere, vel alia offeruntur matrimonia commoda, quae postea frustra desiderabuntur, censebitur tempus adjunctum obligationi finiendae. At si adjicitur tempus non quia partibus per sc incommodum est diutius abstinere a nuptiis, sed quia nuptias has apprehendunt ut sibi commodas, ideoque cupiunt eas cito perfici, ne quacumque ratione postea impediantur, censebitur adjectum tempus obligationi intra illud tempus implcndae ; that is to say, for the purpose of rendering the obligation more urgent. THE DISSOLUTION OF BETROTHMENT 37 natural law, and that the common good requires that these rights solve betroth- and obligations should as a rule be respected. dispensation. But we must not conclude from this that the contract can never be cancelled, and that the obligation arising from it can never be removed. As a matter of fact the natural law does not demand the indissolubility of betrothment : this contract, like so many others ('), is on the contrary subject to dissolution. The contracting parties have the power to dissolve the contract under various circumstances, for a variety of reasons, and even without other reason than their mutual desire to do so. If this is not opposed to the natural law, neither is the dissolution occasionally pronounced for grave reasons by a higher authority opposed to that law. Nay more, the common good itself, the foundation of the natural law, requires that the stipulated obligation of which we are speaking should be capable of invalidation by the head of the social body. We must, therefore, recognise that the Church possesses the power of dissolving betrothment in the case of the faithful (*). This power the Church exercises from time to time without hesi- tation, and therein we have a proof of its existence ( s ). B. As regards the actual exercise of this power by the Church it is Observations necessary to make the following restrictions. In the first place on cise */^~ there must be a grave reason, even when the Pope dispenses per- power. sonally ; secondly, the Bishops are not vested with this power ; finally, it is the practice of the Holy See to impose, in the rescript 1. We do not deny that there are contracts of a special nature, the indissolu- bility of which is demanded by the natural law. Such is the marriage contract, as we shall show later. 2. Our argument leads to the recognition of the same power in the State, in cases where the betrothment of non-christians is concerned. 3. Thus, on 31 Jan. 1863, the S. C. C. replied in the case of Titiusand Caia : That the impediment was removed on condition that Titius paid, by way ot dower, 600 ducats to Caia, and undertook to make good all losses, including the education of her child . Acta S. Sedis, I, p. 343. In like manner, on n Sept. 1887, in answer to the question : Whether there was reason for removing the impediment Nihil transeat, the S. C. C. replied in the case : In the affirmative, with a previous dispensation, after audience with the Holy Father; and provided that the man is admonished to give, according to his means, to the betrothed and her child an equitable compensation, to be determined by the Archbishop (of Ostuni) . LEITNER, Lehrbuch, p. 347. 38 THE REGULATION OF BETROTHMENT dispensing from the impediment, an equitable compensation for the benefit of the party forsaken. If this compensation is not fixed by the Sacred Congregation of the Council, it rests with the Bishop to determine the amount, as in the case of 1887 ('). * CHAPTER V. THE REGULATION OF BETROTHMENT. ARTICLE i. To whom the regulation of betrothment belongs. it. The regulati- As betrothment is a preliminary preparation for marriage, its mentbetween regulation belongs to the same authority as that of marriage Christians itself. This regulation, as we shall afterwards show, belongs to belongs to the . . . Churchalone. the Church alone where Christian marriage is concerned, while the State has the power of regulating the marriage of non-christians, and also of determining the civil effects of Christian marriage (*). The legislative power over betrothment is exercised by the Sovereign Pontiff, and by him alone, so that the Bishops have no power to set up impediments to betrothment ; but to them it belongs to exercise a judiciary power as judges of ihe forum exter- num. As regards the parish priest, he is not a judge of the forum externum, but it is his office to examine cases of this kind for the purpose of duly referring them to the Bishop. He can, however, when the matter has been examined, and is not carried into court, declare the case settled, subject always to the decision of the Bishop ( 3 ). ARTICLE 2. Duty of the parish priest, when a marriage is opposed on the ground of betrothment contracted with a third person. 1. The parish priest must inquire into : 99* Opposition on 1. The fact of the betrothment, alleged to have taken place, for the ground of betrothment. t Concerning this Pontifical dispensation see also SCHMALZGRUEBER, o. c., n. 214; GIOVINE, o. c., I, consult. Ill, par. 61 ; FEYE, De Imped., n. 556 et seq. ; SCHERER, o. c., par. no, not. no; GASPARRI, o. c., I, n. 106-108; WERNZ, o. c., IV, n. 118 ; Anal, eccles., 1899, p. 406 and 408. 2. The Code Napoleon, as we have already observed, ignores the existence of betrothment, and allows it no effect. 3. The exercise of jurisdiction in cases of betrothment, and the respective duties of the Bishop and parish priest, are treated at length by BANQEN, Instr. I, p. 58-62, 65, and 71-77 J and more concisely by GIOVINE, o. c., I, Consult. XI, par. 187. THE REGULATION OF BETROTHMENT 39 instance, between the young man and the plaintiff; and its validity. 2. He must see if it has been lawfully dissolved, or if it is subject to rescission at the will of the young man. With regard to 1 : The parish priest must not at once give 1. The parish credence to the plaintiffs statement, for such opposition is some- examineinio times the outcome of ill-will and iealousv. On the other hand he invalidity of . . ... . . the alleged must not, without preliminary investigation, dismiss the plaintiff, betrothment, and set her claim aside, since, if her assertion is well founded, she is quite within her right. He ought to receive her with kindness and carefully examine her claim. At the same time he will prudently refrain from mentioning it to others, so as to avoid giving occasion for talk among the people, ill-natured comment, or disputes. The examination into the fact of the betrothment will not offer any difficulty if it has taken place under the new discipline, and since Easter 1908. But the difficulty is greater when it is a question of betrothment made before that date. In this case the parish priest will make it his business to learn from the lips of the plaintiff herself, if the alleged promise of mar- riage was real and reciprocal : as a preliminary, he will earnestly admonish her not to conceal the truth (*). Moreover, he will take into consideration various circumstances that may help to clear the matter up. He will ask, for instance, if the couple have present- ed themselves before the parish priest ; if they have already taken a house ; if engagement rings have been given and received ; and so forth (). If after all the matter still remains in doubt, he might, perhaps, take the evidence of one or two prudent witnesses, or even, if he can prudently do so, that of the young man himself. With regard to 2 : When once the validity of the betrothment and its actual has been established, it remains to be seen if it has been subse- possible disso- quently dissolved, either by mutual renunciation, or by some Ability. canonical cause ; or if perchance it has become subject to rescis- sion at the will of the man. 1. He will show her the gravity of the calumny, which may give rise to quarrels, loss, and scandal ; and will tell her how great a sin it would be to hinder the marriage through malice. Cf. BANGEN, Instr.pract.,1, p. 71. 2. Cf. Causa Mikvitana, 23 Dec. 1910, in Acta A. S., Ill, p. 70 ss. 40 THE REGULATION OF BETROTHMENT 34. 2. After \\. After the investigation : gation : a\ in A. If it has been shown that there was no betrothment, or that it case f* tul My was null, the parish priest may ignore the objection to the mar- tion,asarule, riage ; and, as a rule (*), proceed on his own authority with the priesTmay publication of the banns, if they have still to be published, and proceed as if w ith the celebration of the marriage. nothing had . happened', The same holds good where it has been proved that the betroth- ment has been dissolved, or rendered dissoluble at the will of the man, supposing, of course, that there is no impediment of public decency ('). bj in doubt he B. If after examination it is apparent to the parish priest that Toursfto the ^ e betrothmeni, or its validity, or its dissolution, or its dissolubility is Ordinary ; doubtful, and that he cannot bring about an amicable arrange- ment, he must lay the case before the Bishop, and meanwhile sus- pend publication of the banns ( 3 ). As we have already seen, the Bishop alone is judge in the forum cxternum ; to him it belongs to settle difficulties judicially, and to solve those doubts that come within its scope, while the parish priest has only to examine the case. It is necessary, therefore in such a case to await the sentence or declaration of the Ordinary (*). II he pronounces for the nullity I.We say : as a rule ; because a/ it may happen that one ought first to seek the intervention of ecclesiastical authority, e. g. to avoid scandal, in a case where the cause of the rupture is not public, and sufficiently well known, and the betrothment is commonly regarded as valid SANTI, in 1. IV, Deer., tit. I, n. 69 ; b/ in like manner the parish priest could not proceed, if the opposing party had had recourse to the Bishop, and had obtained an inhibition. 3. In the case in which a betrothment, originally valid, has been dissolved, or has become rescindible at the will of the man, there will still be a marriage impediment between him and any blood-relation of his former fiancee in the first degree ', the impediment of public decency remaining, even after the disso- lution of the betrothment, it is clear that it would be necessary to apply first for a dispensation. 3. Council of Trent, Sess. XXIV, ch. 20 : De Refor matione. 4. The Bishop, in giving his judgment, will be guided by the principles of the law, viz. a/ To decide in favour of the existence of the betrothment, he must have a complete proof, to the exclusion of all probable doubt. Ex indubiis juris principiis cautum est quod sponsalia, veluti indissolubile matrimonii vin- culum secum ferentia eoque ipso nativam hominis libertatem adimentia, adeo vehementes et omni exceptione majore exigunt probationes, ut si hinc inde ali- qua supersit dubitatio, sitomnmo contra sponsalium existentiam judicandum . THE REGULATION OF BETROTHMENT 4! of the betrothment, or for its dissolution, then what we have said under A. will be applicable. If, however, he decides that the plain- tiff's opposition is well founded, it will become necessary to follow the course that we shall indicate under C. 2. In the meantime both parties are free to appeal from the decision of the Ordinary to the Metropolitan, or even to the Holy See. Rome has frequently to decide these cases on appeal, and to confirm or quash the sentence passed by the episcopal court. C. If on the other hand it is shown that the betrothment ivas cjiftlieparish contracted validly and absolutely ('), and that it has not been dissolved, that the * or rendered subject to rescission at the will of the man, then, without betrothment . is valid and reckoning the diriment impediment of public decency, he is faced not dissolved, by an impedient impediment, commonly known as Nihil transeat, fag^d which prevents the marriage oi the young man with a third person. This premised : 1 . The parish priest will do his best to induce the man to keep but will cause his first engagement, and marry the plaintiff. If he is met with a W J W / r t l~ e categorical refusal, or if he has reason to fear that the mar- kept, either by his own riage will prove disastrous, he will endeavour to persuade the autltority, fiancee to renounce her right, either of her own accord and gratuit- ously, or in consideration of a promised compensation. This renunciation would at once dissolve the betrothment by mutual consent, and would consequently remove the marriage impediment arising from it, so that no reason would remain why the young S. Rota in Causa Brundusina 5 Apr. 1851, in the R. Th. Fr., 1901, p. 479. Cf., the solution of the case of 23 May 1869, in A. S. S., V, p. 77 ss. ; BANGEN, Instr . Pract., I, p. 78; Instructio Austriaca, n. 198 : Praesumptio stat pro libertate in conjugis electione ; unde contra sponsalia pronuntiandum est, quoties de eorun- dem validitate plene non constat . b/ To decide for the dissolution, dissolution is not presumed, but the presence of a canonical cause of dissolution must be proved, since it is necessary to take into account not only what favours liberty, but also the right acquired by the other party. But for the different causes of dissolution the proof required will not be always the same : For if the cause of dissolution of the betrothment consists in either an invalidating or a prohibitive impediment of marriage, then there is a spiritual danger at stake, and consequently a full proof is not required, but half a proof suffices... but if there is question of a cause of dissolution which merely gives to one of the contracting parties the faculty of breaking his (or her) engagement, then a full proof is required . SANTI, 1. c., n. 67-68. i. For conditional betrothment, see above, n. u. 42 THE REGULATION OF BETROTHMENT man should not marry the lady of his choice; if, however, she happened to be a blood-relation of his former fiancee in the first degree, it would be necessary to obtain first a dispensation from the impediment of public decency ('). or by tJtcin- 2. If the efforts of the parish priest are unsuccessful, the matter tervention of the Bishop, should be laid before the Bishop, if that has not already been done, and in the meantime the publication of the banns should be suspended and the marriage deferred. The Bishop : a/ if he judges it opportune, may compel the young man to marry his first betrothed, even under the threat of a cen- sure ; but he cannot have recourse to that,until he has exhausted every means of persuasion. That the Bishop has this right is clear from ch. io,X, IV, i('), and from different Roman declarations ( 3 ), and it is affirmed by the common teaching (*). Nevetheless the exercise of this right is subject to certain restrictions in practice. Thus the S. C. de P. F., 22 Nov. 1760, enjoins that women ( 5 ) 1. The Bishop of Bruges in virtue of quinquennial faculties from the S. C. de P. F., has power to dispense from the impediment of public decency, arising from lawful betrothment >. 2. In this chapter Alexander III directs a bishop, who had consulted him about a man who had unjustly cancelled his betrothment :( quatenus, si hoc constite- rit, eum moneas, et, si non acquieverit monitis, ecclesiasticis censuris compellas ut ipsam (nisi rationabilis causa obstiterit) in uxorem recipiat, et maritali affectione pertractet . 3. See the decree, which we shall presently quote, of the S. C. de P. F. ; the case given by BANGEN, Instr* pract., p. 105 ss., and another given by ROSSET, o. cr., t. II, p. 965. 4. SCHMALZCRUEBER, in 1. IV Decret. tit. I, n. 93 ss., with the authors quoted ; REIFFENSTUEL, o. c., in h. 1., n. 153 ss. ; BENED. XIV, Instit. eccl., 46, n. 15; GIOVINE, o. c., I, p. 325 ; SANTI, in h. 1., n. 38 ss. ; BANGEN, Instr. pract. I, p. 15 ; AICHNER, o. c., 1905, p. 580 ; SCHERER, o. c., n8, notes 101 and 103 ; WERNZ, o. c., t. IV, n. TOO, note 104 ; ROSSET, 1. c. ; GASPARRI, o. c., t. I, n. 70 ; DE ANGELIS, o. c., HI, 1. 1, n. 5 ; LAFOURCADE, o. c., p. 160 ss. 5. Non deest autem causa propter quam mitius in feminam, et acrius in masculum animadvertatur. Naturalis omnino imbecillitas levitasque muliebris non longe est ut despectum censurarum pariat J magisque suspicari licet ne femina a fide, quam coacte spopondit, facilius desciscat. Caeteroquin summum est inter virum et mulierem in hac materia discrimen, ut mulier, si a sponsalibus . declinet, nullum irroget praejudicium viro, cui altera ad nubendum nunquam deficiet femina ; sin vero a sponso mulier relinquatur, gravissimam nominis subit dimunitionem . S.Rota in causa Majoricen. 34 Apr. 1746, apud GIOVINE, 1. c. THE REGULATION OF BETROTHMENT 43 who withdraw from their betrothment should never be excom- municated ; that even men should be dealt with in this matter with great circumspection, and that censures should never be employed where it is foreseen that lamentable consequences will ensue. The S. Congregation moreover, requires that where cen- sures are inflicted, they should be removed at the end of a year ('). Whence it follows that though we cannot, in theory, deny that the Church has the power to compel recalcitrant fiances to marry, even by the employment of censures, yet practically speaking, the fear of an unfortunate ending, and the weakness of human nature almost always stand in the way of coercion and the infliction of canonical penalties ( 2 ). Ordinarily, therefore, the Bishop: bf will endeavour to bring who will try about an amicable arrangement, and direct all his efforts to induce fiancee's the fiancee to renounce her right, and the young man to pay her renunciation, an equitable compensation. He will make the young lady under- stand how imprudent and absurd it is to force her faithless fiance to marry her, and what an unhappy time they would have together as man and wife. If all efforts are useless, if the plaintiff sticks to her right, and there is no way of compelling the man to carry out his engagement, then it only remains 3. to have recourse to the Holy See to obtain a dispensation or ask a dis- from the impedient impediment arising from the betrothment. fi om Rome. Only the Pope, as we have seen, has the power to grant this dispensation. 1. Collectan. S. C. de P. F., n. 1214; Cf. also c. 17, X, IV, I, Requisivit, in which Lucius III says of a woman who wished to break her betrothment, that she is to be admonished rather than compelled. 2. We must understand that c. io,IV Deer., i, establishes the right, while 0.17 contains rather a derogation of the right, a derogation, it is true, that takes effect in a great number of instances. In this way the two chapters may be reconciled. On this subject see the different opinions in ROSSBT, o. c., n. 973 ; SANTI, 1. c., n. 40 ; GASPARRI, 1. c., n. 70, and DE ANGELIS, 1. c. APPENDIX THE ANTENUPTIAL PROCLAMATIONS. We shall treat successively of i. the existence of the law con- cerning banns, the persons affected by the law, and its binding force ; 2. the place, the number of times, the occasion, and the form to be observed in the publication of the banns ; 3. the causes that remove the obligation of the law ; and 4. the duty of making known impediments that stand in the way of a marriage. I. EXISTENCE OF THE LAW, PERSONS AFFECTED, BINDING FORCE. A. Existence. 35. TJte law con- Without speaking of the obligation of publishing the banns ('), publication that formerly prevailed in different parts owing to particular laws or local customs (*), we shall content ourselves with saying that the Church has established a universal law in this matter, as follows : 1. In the Fourth Council ofLateran (1215), ch. 3,X,IV, 3 : Exten- ding the special custom of certain places ( 5 ) to others in general, 1. Bannum signifies i. jurisdiction and the territory of jurisdiction (bannum imperii) ; 2. an edict issued by one who has jurisdiction (de Dei et nostro banno bannimus ut nemo...) ; 3. the publication of an edict ', 4. a penalty for the trans- gression of an edict, especially forfeiture of goods and banishment. Cf. Kirchen- lexikon, under Bannum. 2. WERNZ, o. c., IV, n. 135 ; GASPARRI, o. c., n. 149 ; 27, X, IV, i, in the decree of Innocent III, 1212. 3. Innocent III alludes to the custom of the Church of Gaul, which he mentions 27, X, IV, i. According to the Ordines given by MARTENE, (o. c., 1. I, p. 2 a , pp. 627, 630, 637, and 640) already from ancient times it was the custom to make a threefold publication of the banns, on Sundays or festival days j and even on the very day of the marriage, mention being made of the completed threefold publi- cation, a. fourth was added, as they said ex obundantia . See below, n. 39. THE ANTENUPTIAL PROCLAMATIONS 45 we decree that, when marriages are to be contracted, they be publicly announced by the priests in the churches . 2. The Council of Trent, Sess. XXIV, ch. i, De Reformations matrimonii : Following in the footsteps of the Sacred Council of Lateran.... ordains that henceforth, before marriage is contracted, thrice by the particular parish priest of the contracting parties, on three consecutive festival days, in the church and during the public mass, it shall be publicly announced who the parties are between whom marriage is to be contracted . The discipline introduced by the Council of Trent is obligatory for all parishes in which the decree Tametsi has been duly promul- gated, at least so far as this provision is concerned. Other coun- tries remain subject to the discipline of the Council of Lateran, and to the precepts of the particular law (*). The end that the Church has in view, is to make the marriage public through the publication of the banns, and above all to dis- cover any impediments to the marriage, whether impedient or diriment, that may exist. B. Persons affected by this law. The obligation of seeing that the antenuptial proclamations are especially made rests upon the contracting parties, but most especially upon parish priest their own particular bar ish priest, whose duty it is to publish the ofthecon- 1 * trading par- banns. The Council of Lateran lays this duty on the priests, that is ties, to say, in accordance with the language of the period, the particu- lar priests, and the Council of Trent expressly designates the particular parish priest of the parties about to marry. Nevertheless there is no reason why the parish priest should not delegate another person for this purpose, though, except in case of neces- sity, it is not becoming that this person should be a laic, or a cleric not yet sufficiently advanced to preach. C. Binding force of the law. The publication of the banns is not necessary for the validity of under grave marriage, but only for its lawfulness. But in view of the purpose stn ' I. We confine ourselves almost entirely to the Tridentine law. In the coming codification this will probably be extended to the entire world for the marriages of catholics. 4 6 of the law, its obligation is grave, as one may readily infer from the severity of its sanction. ('). Observe that the discipline concerning these proclamations has this peculiarity, in common with that affecting the celebration of marriage, that, in accordance with the wish of the Council of Trent, Sess. XXIV, ch. i, in addition to the common law, the different local customs that prevail in many places are to be maintained (*). II. PLACE, NUMBER OF TIMES, OCCASION, AND FORM OF PUBLICATION. 36. The banns A. Place of publication, published : The publication ought to be made : 1. in the pa- 1. In the parish in which each of the parties has a domicile ( 3 ) oftheparties or a quasi-dowicile (*). For vagi (those who have no domicile 1. Namely a/ a secular priest, who through contempt has neglected to prohibit such unions (i. e., those forbidden on account of the omission of the banns), or a regular who has presumed to assist thereat, is to be suspended from his office for three years, and yet more severely punished if the nature of his fault requires it (3, X, IV, 3). This penalty takes effect only after sentence has been pronounced (ferendae sententiae). b/ In virtue of this same Lateran decree, if the engaged parties contract mar- riage in spite of the omission of the banns, they are to be punished, and if their marriage is null through some diriment impediment, even quite unknown, their offspring will be illegitimate. According to the Council of Trent, Sess. XXIV, ch. 5, De reform, tnatr., such pseudo-married people are to be separated, without hope of obtaining a dispensation later, that is to say, they will not get one without great difficulty. c/ For the witnesses, who assist at such marriages, we find no penalty imposed either by the Council of Lateran, or by that of Trent ; but most diocesan synods have thought it right to employ even against them the penalty of excommunication latae sententiae (incurred by the act itself) . BENED. XIV, De syn. dioc. t. XII, ch. 6, n. 2. 2. Cf. ESMEIN, O. C., II, p. 173 SS. 3. The idea of domicile, both in fact and in law, will be explained later, n. 72, where we speak of the form of celebrating marriage. 4. According to the decree Ne temere, and the decree of the S. C. C., of 28 March 1908, ad V (as we shall say in n. 73), there is no longer need to give attention to quasi- domicile for tht licit celebration of marriage : a residence of one month being sufficient. But the very restriction imposed by the S. Congr. shows that this modification of the law is not general, and consequently, pending THE ANTENUPTIAL PROCLAMATIONS 47 or quasi-domicile), the publication takes place in the parish in which they happen to be actually residing. This first rule follows from the purpose of the law, and from the terms employed by the Council of Trent, which enjoins that the publication of the banns should be made by the particular parish priest of the con- tracting parties. On the same grounds the banns of those, whose domicile or quasi-domicile is in different parishes, must be published in their respective parishes (') ; and if one or the other has two domiciles, or a domicile and a quasi-domicile, then the publication must be made in all these different places. It sometimes happens that strict observance of the law would lead to utterly useless publication. In such a case we cannot say that the law lapses, as we shall show later, but there is then good reason to ask for a dispensation, or for the Bishop to make some special provision. It happens thus, for example, when the engaged parties have very recently acquired a new domicile or quasi-domi- cile ; or when their legal domicile is a place where they are quite unknown and have never resided ; the same may be said with regard to vagi who make a merely momentary stay in a place. 2. In the parish that the engaged parties have lately left. According to the strict letter of the Tridentine law there is no 2. in the par- need to publish the banns in a parish the parties have recently y ' t; left ; but taking into account the purpose of the law and the desire of the Holy See (*), there is reason to do so, at least in the case of a recent departure. Local legislation in a number of dioceses has wisely decreed that this should be done, and such a course is, as a more ample extension, we think that it is necessary to maintain, in the matter of the banns, the former discipline, according to which the particular parish priest is the parish priest of the domicile or quasi, domicile, in the proper accep- tation of the term. See in this sense N. R. Th. , 1909, p. 178; Rev. du clergefr., t. LVII, p. 353 ; VAN DEN ACKER, o. c., p. 44. ; SCHAEPMAN, Ned. Kath. Stemmen, 1910, p. 135 ; SaGMiiLLER, in Theol. Quartalschrift, 1910, p. 644 ; BESSON, N. R. th., 1911, p. 263 s. ; KNOCK, Rev. eccles. de Liege, t. VII (1911), p. 7 ; and in a contrary sense the Collat. Gandav., I, p. 75 and II, p. 191. 1. Cf. Rit. Rom., tit. VII, ch. I, n. 8. 2. See the replies and solutions of the S. C. C. (R. th. //., 1901, p. 117 s.) given by the Consultor in the causa Colon.', cf. also the Instr. of the C. S. O., 22 Aug. 1890. 4 8 we have seen, in accord with the wishes of the Council of Trent ('). 3. in other 3. And in some other parishes, as circumstances may require ; but cumstences' especially in the place of origin, if the contracting parties have may require. re sided there for a considerable time after attaining a marriagea- ble age. The same should be done in the case of vagi, or those who lie under any suspicion of impediment. This is evident from the object of the law, and from the Instruction of the C. S. O., quoted in note. Publication Lastly the publication of the banns should be made in the church, made in the as expressly ordained by the Councils of Trent and Lateran. By parish th e church is understood the parish church, since the publication is to be made by the particular parish priest of the engaged parties. For the purposes of this law we can consider, as on the same footing as a parish church, a quasi-parish church, or chapel of ease, that has a district so distinct from that of the mother-church, that residents of the one district are unknown to those of the other (). Though as a general rule the publication of the banns should be made in the parish (or quasi-parish) church, there is no reason why it should not at times take place in some other church, or even in some sanctuary, where, on the occasion of a special feast, mass is celebrated in the presence of a great concourse of people ; for, having regard to the object of the law, and the clause inter missarum solemnia, it would seem that the presence of the people is of even greater importance than the place itself. WhetitJiepar- Note. When the engaged parties belong to different parishes, the 1. The publication ought to be made in the place of domicile or quasi-domi- cile. It is also expedient that it should be made in the place of origin, if the contracting parties have resided there after having attained the age required for marriage, and even in other places where they have dwelt for at least ten months, unless they have a fixed abode of several years in the place where the marriage is to take place . Instr. of the C. S. O., 22 Aug. 1890, in the Collectanea, n. 1376, a. 12. 2. This is set forth in the Causa Coloniensis, already referred to, where the S. C. C. gave the following solution : Attentis peculiaribus circumstantiis in casu occurrentibus, publicationes matrimoniorum in ecclesiis filialibus posse sumcere. The R. th.fr. 1901, p. 125, gives the remarkable Votum of the Con- suitor. 49 respective parish priests cannot proceed to publish the banns ties belong to until they have mutually received notification of the absence of parishes. any known impediment ('). In other words, the parish priest of the man will inform the parish priest of the fiancee, before whom the marriage is to be celebrated, that his parishioner is free from impediment ( 2 ). On receipt of this notice, the parish priest of the fiancee, after having duly examined her, and found her likewise free, will invite his colleague to publish the banns, ( 3 ) and will proceed to do the same himself. B. Number of times of publication . 57. 1. In the parish of domicile or quasi-domicile, or of actual Number of residence in the case of vagi, the banns must be published three ini fation- * times. This is expressly ordered by the Council of Trent. 2. In a parish that has recently been left, one must comply with the provisions of the local law ( 4 ). 3. In the place of origin, or in other places, where, apart from the provisions or the law, it is considered desirable to publish the banns, the number of the publications rests with the Ordin- ary or the parish priest, according as one or the other has taken the matter in hand. 4. With regard to the repetition of the banns, we read in the when, and Rituale Romanum, 1. c., n. n : If the marriage does not take ^J^'Jo place within two months after the publication of the banns, they be repeated. must be repeated, unless the Bishop decides otherwise ( s ). i. Cf. Liber manualis, p. 189, where we find : Quod quidem parochi testimo- nium, si sit ex aliena dioecesi, ab ipsius Ordinario recognitum sit oportet, nisi aliunde sit notum . a. A note in this or some similar form would suffice : Revde Dne Pastor. Tuto denuntiari potest, quantum ad me sptctat, matrimonium N. N.frarochiani met cum N. N. una ex tuis . 3. This is the formula : Revde Dne Pastor, Digneris matrimonium N. N. parochiani tut cum N. N, parochiana mea, ad tramites juris, publice proclamare et rescribenda rescribere . 4. In the diocese of Bruges publication is to be made once in a place left within the preceding six months. 5. According to the Statuta dioec. Brug., ubi proclamationes antenuptiales antiquiores fuerint tribus mensibus, novae proclamationes semel fieri debebunt...; si antiquiores anno fuerint, ter fieri debent . 4 50 THE ANTENUPTIAL PROCLAMATIONS Note. The Council of Lateran did not determine how many times the banns are to be published, and so strictly speaking, one publication is enough. Accordingly a single publication satis- fies the law in those places that are subject to the Lateran disci- pline only, unless, of course, more is required by special local legislation. C. The occasion for publishing the banns. u*3. publication is Publication must be made on three consecutive festival days. By tkre* festival f es &* oa & days are to be understood properly days of obligation : days, nevertheless the abrogated days of obligation can also be counted as such, at least with the approval of the Bishop, and if the church is not left without a concourse of people on those days ('). At the same time it will not suffice to make pretext of the assem- bly of people in order to enable the banns to be published on an ordinary weekday, without the permission of the Bishop ; but on the other hand publication is not forbidden during Advent and Lent, unless expressly prohibited by the local law. that are con- We say : three consecutive festival days, i.e., without interrup- sscu ivc, tion, omitting days that are not holidays. It would be quite lawful to publish the banns thus, even when the three days followed immediately one after the other, as, in some cases, when Christmas Days falls on a Monday or Friday. Nevertheless such rapid proce- dure would seem to be more conformable to the letter than to the spirit of the law. during pub- Finally the publication ought to be made during the high mass, lie mass. ^^ j g j. Q gav ^ during the parochial or conventual mass. Out of this time, publication must not be made, notwithstanding the concourse of people, whether at vespers, or on the occasion ol a sermon, unless there is some urgent necessity (*), or the consent of the Bishop has been obtained ( s ). 1. GASPAERI, o. c., n. 166 s.; FEYE, D& Imp., n. 340-245. In the diocese of Bruges, the Statuta p. 144, lay down : Diebus quibus, juxta Pastorale Dru- gense (*), proclamationes faciendae sunt, addere jam licet festa abrogata, modo in illis diebus sufficiens detur populi ad ecclesiam concursus >. 2. For example, if the banns have been omitted at mass, and the marriage cannot be deferred. 3. See the decree of the S. C. O., 25 Oct. 1850, in GASPAFRI, o. c., n. 170. (*) According to the Pastorale it was necessary to make publication ion Sundays or days of obligation, i THE ANTENUPTIAL PROCLAMATIONS 5! D. Form to be observed. 39. The approaching marriage must be announced in the verna- Form to be cular, and in a loud and intelligible voice (') ; it is necessary to served - declare the surname and Christian name of each of the engaged parties, to indicate their place of origin and residence, their condition whether of celibacy or widowhood, and to add in the latter case the name of the former husband or wife. It is necessary also to mention any dispensation from public inpediments that has been obtained, and to state precisely on each occasion whether it is the first, second, or third time of publication. Finally the faithful are to be reminded of the obligation they are under to make known any impediments that they may know of. Nothing, however, that might bring disgrace on the engaged parties must be published (*). This consent is given, for the diocese of Bruges, in the Pastorale Brugense, p. 122 t Before celebrating marriage... the banns must be published at the principal mass, or at the sermon, or at some gathering of the people . 1. In 1908 an indult was granted to the Archbishop of Paris, in virtue of which he is for the future permitted, in parishes of his diocese that have ten thousand or more parishioners, to satisfy the Tridentine law (relating to the banns) by affixing in a conspicuous place in the church, during three consecutive holidays, written forms announcing the coming marriages ; these forms are to remain affixed during the whole day, from the first mass in the morning until the last liturgical service in the evening . Collat. Brug., t. XIII, p. 471 s. 2. The following is a specimen of publication according to the formula of the ancient ritual of the church of Limoges : N. N. fils de N., de tel lieu et N. N. fille de tel, dcmeurant en tel lieu et paroisse, se veulent prendre et assembler par loyal mariage, s'il y a aucun ny aucune qui scache entr'eux lignage, affmite, ny empechement, par quoi le mariage ne doive se faire, s'il le dit sur peine d'excommuniement avant qu'on precede plus avant. C'est pour le premier bane, ou pour le second ou pour le tiers . Afterwards, on the day of the marriage, before the ceremony, a fourth publi- cation was made, prescribed as a superaddition : Nous avons proclame en 1'eglise de cans trois banes solennellement par trois jours solennels, pour le mariage que N...ici presens, entendant a contracter et faire ensemble a 1'hon- neur de Dieu et de la Vierge Marie, auquel nul n'a contredit. Derechef nous proclamons le quatrieme bane d'abondance, en faisant commandement s'il y a aucun qui S9ache nul empechement legitime... s'il le dit sur peine d'excommuni- cation, ou autrement nous declarons excommuniez tous ceux qui malicieusement nous voudront caicher feaux troublemens et empechemens . MARTENE, o. c., \j. I, p. 2, p. 640. 52 THE ANTENUPTIAL PROCLAMATIONS 40. Pratical ob- Note. 1. It is generally admitted that the parish priest may servatwn. . . ' receive for the publication of the banns some slight remuneration from the engaged parties (') . In this matter parish priests ought to conform themselves to the existing custom and local decrees (*). 2. Should there be an impediment, one cannot proceed to the publication of the banns until the requisite dispensation has been obtained ; and if the impediment does not come to light before the publication has begun, it is necessary to suspend publication for the time being ( 3 ). 3. When the publication of the banns has been duly completed and no impediment has presented itself, one can proceed to the celebration of the marriage (*). But if the engaged parties belong to different parishes, the parish priest of the bridegroom should first inform the parish priest of the bride that there is no imped- iment ( s ). 1. GASPARRI, o. c., n. 159. 2. In the diocese of Bruges it is provided that honoraria cannot be demanded for the repetition of the banns, when this is made once, i. e., when the previous publication was made more than three months and less than a year ago j but if the previous publication was a year ago, the usual honoraria may be demanded for the fresh banns. When the banns are published in a parish in which the engaged parties do not reside, the parish priest cannot demand, on account of this publication and the due notification of it, more than a franc and a half; and from the poor nothing at all is to be demanded . Stat. dioec. Brug., p. 143 ss., where is added: Owing to this provision the poor will more readily consent to the additional publication of their banns in a parish in which they are not actually residing at the time . 3. As often as a dispensation from Rome is required, the parish priests will see that the engaged parties do not present themselves for the civil ceremony before the dispensation has been granted. They must also defer the publication of the banns . Lib. man., p. 190. 4. The local decrees of the diocese of Bruges require, that there should be at least one intermediate day between the last publication of the banns and the celebration of the mariage ; except in the case of workmen and the poor, who may be married on the Monday following the third publication. Deans have the power to dispense the rich from the obligation of the intermediate day... when necessary or expedient, provided a dispensation from two publications of the banns has not been given . Cf. Pastorale Brug., p. 122, and Stat. dioec. Brug., p. 67. Note that the usage of the intermediate day is met with in the ancient Ordines. See MARTENE, o. c., L. I, p. 2 a , p. 637 and 640. 5. The following form might be used : N. N. parochianus meus et N. N. parochiana tua in ecclesia mea ter (vel semel aut bis, cum dispensatione in 2 et THE ANTENUPTIAL PROCLAMATIONS 53 III. CAUSES THAT REMOVE THE OBLIGATION OF PUBLISHING THE BANNS. A. The parish priest is not authorised to omit publication : 1. In the case in which it is useless, whether this arises from the fact that the contracting parties are unknown in the parish in which the law requires that their banns should be published (as in the different cases enumerated in n. 36, and for which we have said a dispensation should be sought), or because there is no suspicion of impediment. The reason is that the law in question is founded not on a presumption of the fact, but on a presumption of universal danger. 2. Nor because the civil publication has already been made. The C. S. O. expressly says this in its decree of 12 Jan. 1881 (') ; moreover it is clear from the wording of the Lateran and Triden- tine decree that the law requires that publication of the banns should be made in the church ; in addition to this the civil law ignores many impediments that are recognised by canon law. B. Among the causes that remove the obligation of the law, whether in virtue of a legal provision, or by custom, are reckon- ed : 1 . The case of urgent necessity that demands the immediate cele- bration of the marriage without leaving time for the publication of the banns or for recourse to the Bishop. In such a case the parish priest can omit the banns, and assist at the marriage, at least ex epikeia. But this urgent necessity will hardly ever arise except at the death bed of a man living in concubinage whose position requires putting in order by marriage. If the sick man afterwards recovers, the matter must be laid before the Bishop, who, according as he thinks fit, will either keep to the rules laid down by the Council of Trent, 1. c., and order the proclamation of the banns before the consumma- tion of the marriage (*), or simply give a dispensation, assum- 41. Uselcssness does not excuse, nor the civil publication. On tlic otJter hand we must admit : 1. urgent necessity ; in 3, aut in 3 banno) proclamati sunt, et nullum innotuit impedimentum. Quare ad eorum matrimonium, quantum ad me attinet, tuto procedi potest . 1. Collectanea of the S. C. de P. F., n. 1224. 2. This clause of the Council of Trent, enjoining in such a case the publication of the banns before tht consummation of the marriage, is not in accord with the actual conditions of life at the present day. 54 THE ANTENUPTIAL PROCLAMATIONS ing that the absence of impediment is sufficiently assured ('). 2. marriage 2. The case of great princes (*). 3 ^mixedmar- 3. The case of a mixed marriage, or marriage between a catho- riage ; \{ c an d a non-catholic. As we shall point out later on, the antenuptial proclamations are reckoned among the ecclesiastical rites, which are not to be employed in the celebration of mixed marriages. Nevertheless, according to circumstances, the publication of the banns may be permitted in the case of such marriages, but without any mention of religion (*). 4. Dispensation. 43 l.dispcnsa- The authority in the matter of dispensation, in accordance with ott ' the provisions of the Council of Trent, 1. c., is the Ordinary, and he can exercise this power either by himself or through a delegate(*). to be asked for The parish priest of the bride must apply for the dispensation, priest of bride, when needed ; and it is also his business to inform the parish priest of the bridegroom that a dispensation has been obtained, when he asks him to publish the banns, so that he may take note of the fact in making publication. I. The Council of Trent, 1. c., makes the following concession : < If there is reason to fear that the marriage may be maliciously opposed, if such a full publi- cation is made, then a single publication may suffice, or the marriage may be celebrated (without the banns) in the presence of the parish priest and two or three witnesses >, but with this provision that the banns shall be published after- wards, before the consummation of the marriage, unless the Bishop thinks it right to omit them. But under such circumstances there is usually time for recourse to the Bishop, and it is better to take that course at first, so that he may dispense, if needful. a. GASPARRI, o. c., n. 154 ; WERNZ, o. c., n. 136, note 17; BASSIBEY, De la Cland. n. 204. 3. Cf. Collat. Brug., t. XII, p. 333 and 335, note ; see also in N. R. th., XV, p. 589-593, the decisions of the Holy See in this matter, as well as the decree quoted by the Collectanea, n. 1223. In England the Bishops are empowered to permit the banns in the case of a mixed marriage, and such is the general practise there. Cf. Acta S. Sedis, t. VI, p. 456. 4. In the diocese of Bruges the Deans are delegated, and have faculties to dis- pense, for canonical reasons, and in the accustomed form, the faithful of their respective districts from one or two publications of the banns. Stat. dicec. Brug., p. 67. On the following page we find that the fee for these dispensations is two francs and a half for each publication. THE ANTENUPTIAL PROCLAMATIONS 55 If the engaged parties belong to different dioceses, it would, and given by strictly speaking, be necessary to seek a dispensation from each '^'piMe of their respective Bishops, but in many places, in virtue of an wforetfo .. . . . marriage ts express or tacit understanding between Bishops, the dispensation cehbrate-d ; of one only is sufficient. In practice, therefore, the dispensation is asked for from the Bishop in whose diocese the marriage is to take place, and the other Bishop is requested to testify the free state, that is to say, the freedom from impediment of his sub- ject ('). There must be a legitimate cause for granting a dispensation, there must be Benedict XIV insists on this in his admonition to the Bishops that . Then the object, the end of this union is set before us, the propagation of the species. The same passage of S. Matthew clearly intimates this in speaking ot the different sex of the partners : > Have ye not read, that he who made man from the beginning, made them male and female ?... For this cause shall a man leave father and mother, and shall cleave to his wife, and they two shall be in one flesh >. The diversity of sex was ordained by God for the multiplication of the human race, according to Genesis, I, 27, 28: God created man...; male and female he crea- ted them. And God blessed them, saying : Increase and multiply, and fill the earth >. Further, the fact that they are constituted not only the princi- ple of the procreation of the offspring, but also of training it up, follows as a natural consequence, since the child, when born, calls for proper development of body and mind, which it cannot attain by its own strength (*). Finally, that the union is to be constituted by contract, is indi- cated in the texts quoted, since the association in question is incomprehensible except as a voluntary and fully deliberate union. This idea of marriage, viz. an association between man and woman with a view to the propagation of the human race, is further sanctioned by the common sense of mankind, and is also indi- cated by the difference of sex of the partners. 1. Cf. MARTIN, expounding more on this, o. c., I, p. 2 ss. 2. Since the child is one flesh with its father and mother, it ought to be loved and cherished as their own flesh by both of them conjointly, and so it is not only to be brought to life in the first instance, but must also be led on and trained up to the preservation, increase and perfection of life, as it were by a continuous generation, not merely as a being of flesh, but as flesh animated by a rational soul and raised to the higher state of man . MARTIN, o. c., I, p. 6 ss. ; compare S. THOMAS, Contra Gentiles, 1. Ill, c. 122, and 2 2 ae , qu. 154, art. a. NATURE OF THE MATRIMONIAL CONTRACT JI Note. 1. Whence it appears that the matrimonial contract joins the parties in the closest union, a union which the Roman Law rightly defines as : consortium omnis vitae, divini et humani juris communicatio > (') ; and again : viri et mulieris conjunctio individuam vitae consuetudinem retinens (*). 2. This permanent joining of husband and wife as a common principle for the generation and education of children is brought about by the contract, or marriage in fieri, and constitutes what is called the conjugal union, or marriage in facto esse. II. Origin of the matrimonial contract. 45. 1 . The matrimonial contract has its origin in the natural law. Marriage is It is in the order of nature that the human race should propa- * a gate itself by generation ; and that the infant, once procreated, should not be left to its native poweiiessness, but should be form- ed and educated physically and morally (*). This education from its nature requires (*) the intimate and permanent collaboration of the father and mother ( s ) ; but this in its turn presupposes a positive agreement, inasmuch as there 1. L. i, Dig. XXIII, 2. 2. i, Inst, I, 9. 3. Birth would be to no purpose, if the proper nourishment of the new-born were neglected, for as a rule they would die >. S. THOMAS, Contra Gent., \. Ill, ch. 122 ; compare 2 1 2 ae , qu. 154, art. 2. 4. Accidentally it may happen that children may be well brought up without the permanent cohabitation of their parents ; but the nature of things requires certain conditions, and this it is that we have to take into consideration. 5. It is manifest that in the human species, the mother alone could not suffice for the bringing up of the offspring, since the requirements of human life demand much that could not be provided by one alone... Again we must consi- der that in the human species, the offspring needs not merely nourishment for the body, as in the case of animals, but instruction for the mind as well ; for the other animals have their natural instinct wherewith to provide for themselves ; but man lives by reason, and must come to prudence through long expe- rience. Hence it is necessary that children should be instructed by their parents who have already gained experience, nor are they capable of this instruction as soon as born, but only after a long time, and especially when they have come to the years of discretion. This education takes time, and, since the passions depreciate prudence, repression is called for as well as instruction. The mother alone is not equal to this, and the cooperation of the father, with greater intel- ligence to instruct, and greater power to correct, is required. It is necessary, 72 NATURE OF THE MATRIMONIAL CONTRACT is at the outset no obligation to marry, and consequently each one is at liberty to bind himself to the conjugal life and to its corresponding duty of cohabitation, or to remain unmarried. and divine 2. The matrimonial contract, moreover, owes its origin to God origin ; ^ Q f ns ^ u ^ e< i j^ as we learn from the Holy Scriptures. it is a con- Marriage is, then, a natural contract, since it is rooted in ^ametime 6 nature itself, but it is more than a mere secular contract. It is of natural and itself, and quite independently of its sacramental dignity, a sacred and a religious contract. If we consider only its own distinctive qualities, this contract is'sacred and religious, not essentially and intrinsically, but extrinsically : by reason of its divine origin, of its religious signification,since it symbolizes the union of Christ with the Church, and also because of the end for which it is ordained ('). * * * 50. Statement Many evolutionists undertake to prove that this doctrine is false. and re f uta ~ According to them, the marriage contract did not originally exist, and it evolutionist was only by passing through successive stages that the human race arrived theory, whlc } 1 a t the present system of marriage. If we are to believe them, the primitive cedents of married life, universally and legally recognised, was no other than promis- actual mar- cu ^y between the sexes. Then came marriage by abduction, and after that marriage by purchase. To confirm their statements evolutionists appeal to traces found in ancient history, and to the customs of certain peoples at the present day, especially of those that are the least advanced. The well known work of WESTERMARCK, already quoted, explains this theory at length ; also HOWARD, o. c., I, p. 39-223 ( 2 ). Thus, with regard to : therefore, in the human species that, not a short time, as in the case of birds, but a very considerable portion of life should be devoted to the development of the offspring. Thus, since it is necessary in the case of all animals that the male should remain with the female as long as the welfare of the offspring requires it, it is natural in the case of man that this should be not for a brief period, but that the husband should have a lasting union with one and the same wife. This union we call marriage. S. THOMAS, Centra Gent,, 1. c. ; cf. 2* a ae , qu. 154, art. 2 ; cf. also MONSABRE, o. c., p. 65 ss. 1. Encyl. Arcanum. Cf. also LEMAIRE, o. c., p. 2-13, who gives the testimony of men learned in the law, even of unbelievers. See below, n 55. 2. Cf. also BEBEL, o. c. part I, La Femme dans le passe, p. 13 s.; NYSTROM, o, c., p. 184 s.; PEYTEL, o. c., p. 13-31 ; GIRAUD-TEULON, o.c., ch. i and 2 ; and others NATURE OF THE MATRIMONIAL CONTRACT 73 A. Promiscuity : 1 . Westermarck first shows (p. 53-55) that promiscuity has prevailed, and 1. Promts- as a matter of fact still prevails in some few and uncivilized countries ; but M ^' he observes that many of the facts formerly alleged have since been reco- gnised as false or insufficiently proved, and he adds quite rightly that, even if they are admitted, one cannot logically infer from the existence of pro- miscuity as a primitive and universal system of mariage : Meme si quel- ques-uns des re"cits sont exacts, et s'il y a eu promiscuite dans le commerce entre les sexes, chez quelques peuples, ce serait une erreur d'en inferer que ces cas entierement exceptionnels representent une etape de develop- pement humain que 1'humanite, comme tout, a du traverser. En outre, rien ne nous autoriserait a considerer cette promiscuite comme une survi- vance de la vie primitive de I'homme, on meme comme une marque d'un etat tres grossier de societe. Ce n'est nullement chez les peuples les plus inferieurs que les rapports sexuels s'approchent le plus de la promiscuite > (p. 60). 2. The same author gives (p. 71) several ancient customs that were current in different countries, in which they claim to find traces of primi- tive promiscuity. But the alleged facts prove nothing. Thus : a/ The jus primae noctis (right of the first night) and the custom of interchanging wives, particularly between hosts and guests, are better explained (as far as the alleged facts are really historical) (') by the rude tyranny of chiefs, and by a coarse conception of the duties of hospitality. quoted by HOWARD, o. c., I, p. 46 : these authors assume primitive promiscuity. See also, on the other side, LEITNER, l^ehrb., p. 36-58 ; VIOLLET, Histoire du Droit, q. 484 s.; FONSEGRIVB, o. c., p. 7-43 ; AVIGDOR, o. c., L. I. ch. i. I. The jus primae noctis, as understood by the enemies of the Church, such as BEBEL, o. c., p. 40; NYSTROM, o. c., p. 216 ; GIRAUD-TEULON, o. c., p. 32 ss.. and others, is relegated by many and the best authorities to the region of fable, at least as far as our countries are concerned. If we are to believe the enemies of our faith, this right of the first night existed in full force in the Middle Ages, and in the heart of a Christian country ; the prince, or even in certain places, the priest, had the right to violate the newly wedded wife on the first night of the nuptials. For the ampler refutation of this anti-historical statement, see SCHMIDT, o. c., particularly p. 365-379. In a word : among pagans, the virginity of young maidens was looked upon as consecrated to the divinity ; this is how the right of destroying virginity by sexual intercourse was to be obtained through the agency of the priest or the prince, acting as delegates of the deity. To secure it, a certain sum was paid ; and this was known as the right of the first night. Among certain peoples, the husband gave his bride, after the first night of the marriage, a pre- 74 NATURE OF THE MATRIMONIAL CONTRACT b/ The case of the mairiarchaie, which is the great war-horse of the evolutionists, affords no better proof of their proposition. Under this regime, which as a matter of fact formerly flourished here and there, the child took the name of its mother, and inherited only its mother's pro- sent as the price of her lost virginity (after the fashion of the Morgengabe of the Germans) ; this custom might also be called the right of the first night. Among Christians, this expression for the most part meant the sum of money or fine paid by husbands in order to obtain, by way of a dispensation, permission to consummate the marriage on the first night, without observing the three days of continence, that was the rule in the Middle Ages, after the example of Tobias. See also SCHERER, o. c., p. 257, note 57 ; CHARDON, o. c., p. 160. Thus there exists a decree of the Parliament of Paris, of the igth of May 1409, abolishing this fine for the diocese of Amiens ; DE FORAS, o. c., p. 57 s. ; Du CANGE, Glossarium sup- plementum, V Marcheta. A symbolical ceremony, m use in the Middle Ages, on the occasion of the marriage of a vassal, has helped to gain credence for the opinion according to which the suzerain really had the right to violate the wife of his vassal on the first night of the marriage. The vassal was looked upon as under the yoke of his suzerain and joined to him as the wife to the husband ; hence ancient writings speak of him as the Ehefrau of his prince (SoHM, Das Recht, p. 61 s.). On her marriage, the newly wedded wife took her place in these quasi-marital relations with the suzerain ', this was apparently signified by the so-called occupation of the nuptial bed in the name of the prince. The same symbolical usage was observed on the marriage of a prince by proxy. Cf. DE FORAS, o. c., p. 363 ; AVIGDOR, o. c. p. 30; and particularly HANAUER, o. c., p. 385 s., compared with p. 255 s. and what we shall have to say under n 60. From this there would come certain forms of speech : as droit de cuissage, droitdejambage (cf. Du CANGE, Glossarium, V Marcheta). At a later date the suzerain replaced this ceremony by the prac- tice of exacting from his vassal, on the occasion of his marriage, a kind of tribute, as a recognition of his seignorial right. This fine, again, went by the name of the right of the first night, especially as the conjugal relations of the first night were considered as completing the marriage. This seignorial right was also called marcheta, nuptiaticum, bathinodium (bednood) ; cf. Du Cange, Glossarium, ad haec verba. We do not by any means wish to deny the possibility of certain abuses in this matter, even among Christians in past ages. In particular, it would not be surpri- sing if princes and suzerains permitted themselves from time to time something more than a merely symbolical occupation of the nuptial bed of their vassals. Cf. Du CANGE, Glossarium, V Marcheta. What we do deny, is the jus primae noctis, as understood by the Rebels and Nystroms, and represented as a legal institution sanctioned by general use among pagans and Christians of the Middle Ages. NATURE OF THE MATRIMONIAL CONTRACT 75 perty ('). We have here, they tell us, an indubitable trace of primitive promiscuity in the intercourse of the sexes : the regime of the matriarchate supposes that wives were then at the service of each, and consequently it was impossible for the child to know its father. The answer is easy. Without taking into account the fact that the matriarchal regime never prevailed to any very great extent ( 2 ), there are other reasons than that set forth by the evolutionists which might perfectly well have brought the practice into being ; as, for instance, the very close ties that unite the child with its mother, and above all the widespread practice of polygamy. Where polygamy existed, it was natural to distin- guish the children born to the same father but by different mothers, by giving them the maternel name. Each wife of the same husband thus constituted for him a distinct family, especially as she frequently had a separate establishment. Moreover, even assuming that uncertainty as to paternity contributed to the introduction of this regime, it is by no means a necessary inference that this was due to promiscuity, since such uncer- tainty might very well arise from the actual infidelity of the wife, or even from the mere suspicion of it ( 3 ). B. Marriage by abduction (*). 01. There still exist among some few rude tribes certain traces which seem 2. marriage 1 " to support this part of the thesis. WESTERMARCK, p. 369, relates that in y some countries : quand la noce est arrangee et les cadeaux payes, le marie saisit la mariee et 1'enleve, suivi de ses parents qui font semblant d'essayer de la delivrer ( 5 ). The author thinks, and we share his opinion, that marriage by abduction really existed here and there in ancient times. But he also recognises (p. 372 seq.) that we cannot infer therefrom, that this was a regular phase, 1. See the description of this regime in LEROY, Religion des Primitifs,p. 103 s. ; PEYTEL, o. c., p. 24-30; GIRAUD-TEULON, o. c., passim. 2. WESTERMARCK, o. c., p. 97-103 ; HOWARD, o. c., I, p. 110-117. 3. Some also invoke as an argument the burlesque custom known as couvade, which consisted in this : during the wife's confinement the husband simulated the pains of childbirth, and after her delivery continued to ape the condition of a woman who has given birth to a child. See PEYTEL, o. c.,p. 345.; VIOLLET, o. c., p. 384 s. ; GIRAUD-TEULON, o. c., p. 138 ss. ; HOWARD, o. c., I, p. 112. 4. According to the evolutionists this is how marriage by abduction and pur- chase took the place of primitive promiscuity : certain men, wanting wives of their own, would buy or carry off, as occasion offered, some fair traveller or stranger, and forsake the wives of the clan who belonged to all in common. 5. See in LEROY, Les Pygmees, p. 326, the account of a marriage by simulated abduction ; also in HOWARD, o. c., I, p. 164-175. 76 NATURE OF THE MATRIMONIAL CONTRACT a legal and universal stage, through which marriage passed. As a matter of fact, few tribes are found in which at the present day they mimic the abduction of the bride ; and who shall say if this symbol now in vogue has its origin in actual abduction ? Other explanations are possible : it might, for instance, be merely a device for emphasizing the separation that mar- riage imposes on the woman : she must leave her own people and follow her husband. Cf. also HOWARD, o. c., I, p. 173-179, and p. 119 s. C. Marriage by purchase. 52. 3. marriage Among most peoples in ancient times there unquestionably existed by purchase. usa g es an( j forms of speech which, at first sight, seem to have originated in the practice of marriage by purchase : the husband buying his bride from her parents. It is known, for instance, that with the Romans marriage by purchase (per coemptionem) was one of the forms in vogue (') ; that among the Hebrews Jacob, as we read in the Scriptures, agreed to serve his uncle Laban seven years for Rachel ; that in most German-speaking countries we meet with such expressions as : the marriage price (witemon or meta) ; the purchase price ; to buy a wife, and so on ; we know that the man paid an agreed price to the parents of his bride, or, if he married a widow, to the family of her former husband ( 2 ). Apparently we cannot deny that marriage by purchase, properly so called, really existed of old in certain countries. But it is a far cry from this to the thesis of the evolutionists, who profess to find therein a legiti- mate and universal phase of marriage. Let us not exaggerate the con- clusive force of the customs and forms of speech mentioned above. To be decisive, they would have to mean the actual purchase properly so called of the woman herself, without leaving any place for mutual consent. But that is not proved. 1 . We do not exactly know whether the price paid and the ceremony of purchase had reference to the acquisition of the bride or of the mun- dium, ( ; ) which, according to the Roman and the German law, passed i. The Roman law acknowledged two principal forms of marriage : marriage in manu, which was at first the only form in use, and marriage sine manu. The former (Manusehe) caused the wife to pass into the family and power of the hus- band (or of his father). It could be contracted in three different ways, among others by purchase (per coemptionem) ; in this form the parties went through a symbolical ceremony of purchase and sale in the presence of the libripcns. a. Cf. WESTERMARCK, o. c.. p. 378-397 ; LEFEBVRE, o. c., p. 356 seq ; SEHLING, Die Unterschi idling, p. i seq. ; VIOLLET, Histoire..., p. 402 seq. 3. In the German law unmarried women, even those of age, were placed under the guardianship of the head of the family ; on their marriage this authority NATURE OF THE MATRIMONIAL CONTRACT JJ from the parents of the bride to her husband. The second supposition would seem to be the correct one, at least among the Romans. With them mar- riage per coemptionem was contracted by the simple mutual consent of the engaged parties, and the purchase ceremony affected only the transmission of the right of seignory ; this transmission was made by the father of the bride in the hands of the husband, or of him upon whom the husband was dependent (*). 2. We must not be in a hurry to take literally the expressions : nuptial Price, purchase, and the like. It would seem rather that these terms are to be understood as indicating a return made by the husband for the favour of parental consent : because the parents had thereby given him their daughter, who was their property, and had admitted him into their own family circle. At the most, one can see therein a compensation intended to counterbalance the loss that the parents sustained through the departure of their daughter. It is easy to see how they came to give to the price paid on this occasion the name of nuptial price, and price of purchase, especially as the fixing of it would naturally give rise to a good deal of discussion (*). It would appear that we must understand in the same sense the form of speech in use among the Franks : marriage par le sou et par le denier, where we find the trace of the marriage gift reduced to an offering of un sou et denier ( 3 ). The same observation applies to the old Prankish passed into the hands of the husband. This right of guardianship or seignorial power was called mundium ; and he who was invested with it was called mun- dualdus. For the etymological origin of the word mundium, see ROCHE, o. c., p. 40. i. STOCQUART, o. c., p. 50 s. FRIEDBERG, Das Recht der Eheschl.,p. 17 s. shows the same concerning the German law, viz. that the seignorial power, and not the bride, was the subject of purchase. a. Je congois bien que le pretium nuptiale, au lieu d'etre un simple present purement gracieux et volontaire, ait pu etre debattu d'ordinaire entre les famil- ies comme une condition de mariage, et qu'il ait e"te tarife meme en certaines coutumes germaniques, a defaut d'une convention formelle. Est-ce que 1'on n'a pas vu de tout temps (souvent meme encore de nos jours), des pourparlers divers d'interet, d'ou peut dependre la conclusion du mariage et qui viennent s'adjoindre ou se heurter au sentiment qu'eprouvent les fiances ? Est-ce que les Remains n'ont pas debattu sur la dot, et plus tard aussi bien sur la donatio ante nuptias ? Qui a jamais parle, au point de vue du droit, des manages par achats et ventes, meme au sujet de ceux qu'on voit le plus fortement teintes d'interet ou gates par 1'argent ? LEFEBVRE, o. c., p. 372. The same author, on page 376, gives the text taken from the ancient Eddas, where the gift and the purchase are mentioned together. 3. Cf. LEFEBVRE, o. c., p. 384 s. At a later date, after the example of the 78 NATURE OF THE MATRIMONIAL CONTRACT custom of the reipus ('), to which we have already alluded. He who married a widow had to pay solemnly in mallo ( 2 ) the sum of three sous and a denier to the family of the former husband. We content ourselves with merely mentioning the argument brought forward by certain authors as a confirmation of the evolutionist conten- tion, and drawn from the very nature of the ancient mundium or seigno- rial right. According to them ( 3 ), women, among the Germans, were entirely under the power of their lord (mundualdus) , and were regarded as mere objects of merchandise. We turn again to LEFEBVRE (o. c., p. 33<>338),and he shows us conclusively that this argument cannot stand, the right of seignory carrying with it no other powers beyond the right of guardianship and the duty of affording protection (*). We may rightly infer that in general, arguments drawn from ancient customs in support of marriage by purchase are not conclusive. SCHEIL (o.c., p. 57 s.) has made the same remark when speaking of the Babylonian customs, and tells us that the code of Hammourabi (about 2000 B. C.) contains many provisions that appear at first sight to imply marriage by purchase ; that they speak there of a sum of money to be paid by the bridegroom to the father of the bride ; but that on closer examination, it is obvious that this ceremony has not the import that some would attribute to it ( 5 ). Conclusion. This, then, is the conclusion that we come to. Historical data do not weaken in the least the Christian contention as to the origin of marriage. The contract by mutual consent has been its true form from the beginning ; Franks, the nuptial price became more reduced in the greater part of the Ger- manic tribes : it was changed into the dower bestowed by the husband on the wife, and was accompanied by a little present called morgengab, the gift of the husband to the wife after the first night of the marriage, as a compensation for the loss of her virginity. See LEFEBVRE, o. c., p. 417-428; STOCQUART, o. c. p. 51 s.J cf. below, n 122, under 4, in note. 1. CARON, o. c., p. 112 s. SOHM, Das Recht der Eheschliessung, p. 63 seq., on the contrary, looks upon the reifius as a fine directed against the unlawful re-marriage of widows. 2. The Mallum, according to FRIEDBERG, Das Recht, p. 21, was the Gericht- stattf : the place in which it was customary to celebrate marriages ; whence we have the word Gemahl, to denote married persons. Other authors, and among them Sohm, reject this interpretation. 3. VIOLLET, Histoire... p. 287 s. ; 493 s. 4. Cf. PELLET, o. c., p. 62 s. ; BERNARD, o. c., p. 48 s. 5. Cf. CUQ, o. c. ; CRUVEILHIER, Le Code d' 'Hammourabi, in Rev. du cl. fr., t. LXIX, p. 292 s. NATURE OF THE MATRIMONIAL CONTRACT 79 if certain customs have deviated from it, if some still do so, that is not a question of evolution, but rather of degeneration ('). ARTICLE 2. End of marriage. 53. The end ( 2 )that marriage, as such, seeks to attain, that is to say, Thefirocrea- the end that nature and the Creator assign to it, is no other than the propagation of the human species ; in other words, the procreation children is the end of and education of children. The very idea of marriage includes the marriage, enunciation of this end. Marriage is in fact an association formed with a view to the generating and educating of children. As we have seen, this idea is confirmed by the common sense of mankind and by the very fact that the partners are of different sexes. The propagation of the human species is, then, the end and aim theproperand of marriage. It has no other ; this end is the only end. Undoubtedly * " y ' marriage brings with it yet something more : affection and mutual support, lawful joys, and a remedy for concupiscence ; but the true end of marriage is not there. There we find but means to attain that end, or at the most, and in no proper sense, ends that are essen- tially subordinate to the true end ( 3 ). The use of marriage, while allaying the passsions, is accompa- nied with sensible joy, so as to give an impulse to the procreative faculty, and thus come more surely to the end in view. The Crea- tor has willed that husband and wife should find in their common life a mutual comfort and support, that so stability might be given to that life, and the education of their offspring secured. He has x. See HOWARD, o. c., I, p. 222 s. (also p. 93-110) ; LICHTENBERGER, o. c., p. 29 s. ; LEROY, Relig. des prim., p, 385 s. 2. Where it is a question of the end of marriage, strictly speaking a distinction ought to be made between marriage in fieri and marriage in facto esse. The end of the act of marrying, of marriage in fieri, is properly the conjugal bond itself, or marriage in facto esse, since the contract is immediately, instrinsically and essentially referred to this and has its term herein ; but, from the fact that the whole contract, as such, tends to and has reference to marriage in facto esse, its end may also be ascribed to marriage in fieri, and there is no need to distin- guish between the end of marriage in fieri and the end of marriage in facto esse. Cf. MARTIN, o. c., I, p. 50 s. 3. Cf. Collat. Brug., t. VI, p. 469 seq.; t. VII.p. 437 seq. Inasmuch as the allay- ing of concupiscence and mutual solace are called ends, the propagation of the species shall by called the primary end. 80 NATURE OF THE MATRIMONIAL CONTRACT willed that this joint life, this dwelling together of father and mother, should be fostered by the warmth of conjugal affection, so that the obligations of the married state might be rendered supportable thereby, and the common task of education more easy ('). 54. It follows that What follows from the foregoing : marriageisl. impossible be- \. Granted the end of marriage, only those who are in themselves zukoarepf^se capable of procreating and bringing up children, are capable of mar- incapable of r i a ge, to the exclusion af all others, as, for instance, eunuchs (*), generation, who, as Sixtus V insists, must not be permitted to marry ( 3 ). Mar- riage, in fact, like every other human act, should tend of itself towards the end that nature has assigned to it (*). and 2. it is 2. The object that the parties have in view in contracting marriage, marry to the mus ^ be in agreement with the proper end of marriage, at least in positive exclu- a negative way. Let us explain our meaning : sionofthe generation ; a/ The matrimonial compact itself may not exclude in a positive way the procreation and generation of children. Such a stipulation would put the contract in positive contradiction to the end for which marriage was instituted, and would render the contract altogether null ( 5 ). (See below, n 03 85 and 88, where we treat of the 1. The primary end of marriage... cannot be other than the generation and training up of children ; and thereiore there cannot be other ends except such as are consequent on this, and are, as it were, necessary means whereby mar- riage may either simply, or more expeditiously and more perfectly attain its primary end . MARTIN, o. c., I, p. 64. 2. Below, in the chapter on impotence, we shall speak more at length of persons incapable of generation. See also under n 125. 3. Constit. Cum frequenter, of the 21 June 1587. 4. That an act may be accidentally (per accidens) unfitted to attain its end, is of little importance ; for the natural law considers the conditions and qualities that spring from the nature of things (per se),and not those that are merely accidental, according to S. THOMAS, C. Gent., 1. Ill, ch. 122. 5. If the intention of having no children does not form an integral part of the matrimonial compact, but is merely subjoined to it, the contract is not null, though ordinarily it is sinful on the part of the contracting parties. Nevertheless this intention may be legitimate, if its direct object is the observance of conti- nency, and childlessness follows indirectly and only as a consequence ; it may even be an act of virtue and perfection, if done through the love of chastity. NATURE OF THE MATRIMONIAL CONTRACT 8l placing of a suspensive condition that is contrary to the essence of the contract). b/ To be the best possible, the matrimonial compact should be made with the positive and explicit intention of prosecuting the end of marriage (*). c/ Nevertheless, in order that the contract may be simply lawful, a simply it is sufficient that it should be conformed to this object in a nega- ^sio tive way, that is to say, in such a manner as not to exclude posi- * ot involve tively the act of generation, though without positively intending it. perfection. One can, therefore, conscientiously contract marriage with a legitimate intention other than that of having children, provided that this last named object is not excluded. In acting thus, one does not put oneself in positive opposition to the end proposed by God. We will go further and say, that by the very fact of its non-exclusion, the act of generation is implicitly included, and conformity of the matrimonial contract with its proper end is secured (*). From this point of view, then, there is no sin, not even venial, in contracting marriage with the sole explicit (but not exclusive) object of escaping poverty, of finding affection and sup- port, of allaying the passions, or of obtaining lawful enjoyment. Such, then, is our opinion with regard to the end of marriage, and such are the conclusions that follow irom it. On the other hand, those who assign to marriage as proper and independent ends, the act of generation, mutual comfort, and the appeasement of the passions, are logically compelled to admit to marriage not only such as positively exclude from their inten- tion the contingency of offspring, but also those who are radically and irremediably impotent, as, for instance, eunuchs. To them also marriage and its use can bring comfort and even the pleasure that they long for ( J ) ; and it is sufficient that the act and intention I. So Tobias junior (Tob., vni, 9) : Et nunc, Domine, tu scis quia non luxuriae causa accipio sororem meam conjugem, sed sola posteritatis dilectione, in qua benedicatur nomen tuum in saecula saeculorum . The perfection spoken of in the preceding note is obviously not the perfec- tion of marriage, as such, that we speak of in the text. 3. See the SALMANTICENSES, o. c., tr. IX, cap. Ill, P. Ill, n 34. 3. Cf. TOPAI, o. c., p. 68 s.; FERRERES, in Eccks. Review, t. XLVI (1912), p. 316 s. 6 82 NATURE OF THE MATRIMONIAL CONTRACT safeguard one or other of the proper and independent ends of the matrimonial contract. This consequence, logically irrefutable, is an additional confir- mation of the doctrine which we have advanced as to the one and only end (in the strict sense) of marriage. ARTICLE 3. Honourable nature or morality of marriage. PROPOSITION. Marriage is in itself honourable and moral, but less Perfect than virginity. Proof. 55. Marriage is First point. Marriage considered in itself, abstracting from the ^urabLand' sacrament, is not only honourable, but praiseworthy and invested holy on divers w ith true dignity. reason of its This follows from the very end for which it was instituted : end, ft conduces not only to the propagation of the human race, but to the bringing forth of children for the Church, fellow-citizens with the saints, and the domestics of God (Eph., II, 19) ; so that a people might be born and brought up for the worship and religion of the true God and our Saviour Christ (Catech. Rom., P. II, c. vm, par. 15) ('). by reason of The dignity of marriage is confirmed by its origin, for God himself 1 S stitu l tion tn ~ instituted it, as we have seen above ; cf. Gen., I, 27, 28 ; and II, 18, 23, and compare with Matth., XIX, 6, and with the Council of Trent, Sess. XXIV, cap. unic. Moreover, Our Lord ennobled the marriage in Cana of Galilee by His presence, and made it memorable by the first of His mira- cles (St. John, II); and for this reason,even from that very day, it seemed as if the beginnings of new holiness had been conferred on human marriages (*). by reason of Finally, the dignity that belongs to marriage, according to the *riionlf S thc~ rescript of St. Leo to Rusticus, Bishop of Narbonne (458-459), mystical uni- j s deduced from the fact that the matrimonial union has been on of Christ wtththe constituted from the beginning in such a manner, that, beyond Church. t j ie sexua i intercourse, it contains within itself the sacrament (in r. Cf. Encycl. of Leo XIII, Arcanum. 3. Cf. the same Encyclical. NATURE OF THE MATRIMONIAL CONTRACT 83 a less strict sense), that is to say the symbol, of Christ and the Church > ; Migne, LIV, col. 1204 s. Marriage, indeed, considered in itself, in the intention of the Creator, symbolizes for all time, and in the following manner, the union of Christ with the Church : a/ in the first place, Eve formed and issuing from the side of the sleeping Adam, was a figure of the Church issuing from the side of Christ, the second Adam, dead upon the Cross ; b/ in the second place, a man is joined to his wife in such a manner as to constitute with her a single principle for the generation and education of children, just as Christ unites the Church to Himself, that thereby men may be born to the divine life, and educated and perfected therein in every way through the joint action of Christ and His Church ; c/ in the third place, in the conjugal life precedence belongs to the husband, even as Christ is the head of His Church, the Saviour himself the head of His mystical body ; d/ in the fourth place, a man must love his wife, as Christ loved, and loves His Church, and delivered Himself up for it ; e/ finally, husband and wife become but one flesh, as Christ, by His Incarnation, is united with the Church, His Spouse, so as to establish a participation of nature ('). These considerations are amply sufficient, to show the eminent dignity of marriage considered in itself, that is to say, in its natural aspect. If, in addition to this, we regard its status as a sacrament of the New Law, we see it invested with a merit and dignity far greater still, for Christ has thereby brought to its full height the initial sanctity of the matrimonial contract. Christ our Lord raised marriage to the dignity of a sacrament ; to hus- band and wife, guarded and strengthened by the heavenly grace which His merits gained for them, He gave power to grow in holiness in the married state ; and making marriage in a won- drous way an example of the mystical union between Himself and His Church, He not only perfected that love which is according t. The first four considerations show the symbolical signification of marriage not consummated, that is to say, the union of Christ with His Church by love and common action J the last has relation to marriage consummated, which signifies in a special way the corporal union, so to speak, of Christ with His Church through the Incarnation. See below, n 60, 84 NATURE OF THE MATRIMONIAL CONTRACT to nature, but also strengthened the natural union by the bond of heavenly love . Encyclical Arcanum. Confirmed by The Holy Scriptures (') on many occasions extol the dignity ot t 'and^h marriage ; and the Fathers unanimously defend it against the Fathers, errors of the Eustathians (*), of the Priscillianists ( 3 ), and espe- cially against those of the Gnostics and the Manicheans, who, in accordance with their erroneous dualistic conceptions con- demned marriage ( 4 ). Moreover, marriage has always been in honour in the Catholic Church ( 5 ) and among Christian people ( 6 ) : this has been groundlessly denied by Luther, who reproaches the Catholic Church with having vilified marriage, and having cen- sured it as a mischievous state ( 7 ). 1. I Cor., VII, 9, 28, 36, 39; I Tim., IV, 1-3, and V, 14; Eph., V, 33-32; Heb., XIII, 4, Cf. also LEITNER, Lekrb., p. 23 s. 2. Synodus Gangrensis (about the middle of the 4 th century), can. i, in HEFELE-LBCLERCQ, o. c., P, p. 1029. 3. Synodus Bragensis (563), can. n, in HEFELE-DELARC, o. c., Ill, p. 555 ss. 4. The Gnostics believed that matter was created by the Demiurge, or evil principle, and was opposed to the spirit created by God. Consequently, some of them condemned marriage and sexual intercourse in order to put an end to the evil involved in the propagation of the human race ; while others, on the con- trary, taught that it was necessary to overcome the flesh and its concupiscence by plunging into pleasure until all desire was extinguished ; these, equally with the former, rejected marriage with its limited pleasures. Cf. CLEMBNT OF ALEXANDRIA, 1. HI Strom. (Migne, VTH, col. 1098 s.) ; and PROBST, Sacramente p. 428-434- 5. The Church had to defend the honour of marriage against the Albigenses, who, as is well known, reprobated marriage and the marriage act. This may be seen in J. GUIRAUD, Questions d'Histoirt et d' Archeologie chretienne, Paris, 1906, p. 65-86. 6. FALK shows this at length (o. c., p. 12-69) with special reference to the Mid- dle Ages. He examines popular writings, institutions, and historical facts that make it apparent in what honour marriage was held. Among other interesting points, he relates (p. 18 seq.) that in many places a custom existed of setting at liberty one who had been condemned to death, in order thad he might marry a maiden who freely offered herself for that purpose. See also GRISAR, Luther, II, p. 484 ss. 7. Cf. GRISAR, Luther, II, p. 482 ss., where is given the text of Luther's accu- sation, that the Church set forth marriage and its use as Hurenwerk >. As regards Luther's own teaching on marriage: On the one hand, in the years immediately following his defection, especially before 1520, he still acknowledged that virginity excelled the married state (GRISAR, 1. c., p. 303 ss.); NATURE OF THE MATRIMONIAL CONTRACT 85 In the psalm Miserere man is, indeed, said to have been conceived in iniquities ; but catholic interpreters for the most part understand by that, original sin, in which all are conceived. Those who, like BAETGEN( I ), interpret the iniquity and the sin as having relation to the act of procrea- tion, conclude that guilt is here spoken of as being, not in the conjugal act as such, but inasmuch as that act was, in this case, stained by adultery, and they are of opinion that the psalmist is here lamenting that he was born of adultery. 56. Second point. We observe in the first place, that, in the compa- The state of rison we are making, we are speaking of the virtue of virginity, that is to say, of virginity t that does not refrain from pleasure itself is less ' ., .,. perfect than as such, out of mere insensibility, but from venereal pleasure only, that ofvir- for a supernatural end, and in accordance with the dictates of right reason (*) ; as, for example, for the purpose of being able to devote oneself more freely to the contemplation of divine things. We observe in the second place that the comparison is not to be made between virginity and marriage with respect to such or such a person and in such determinate circumstances, but between the slate of virginity and the state of marriage considered in themselves, subsequently, in conformity with his principles concerning the corruption of nature and original sin, and in order that he might justify his desire of marriage and indulge the heat of his passion, he insists on the irresistible impulse to marry, and the impossibility of continency, except by something very like a miracle, and extols marriage as the gift of God, as a spiritual state, deriving its dignity from the fact it provides a remedy for concupiscence, constitutes the foundation of society, and signifies the union of Christ with the Christian body (1. c., p. 317). On the other hand, in order that he might with greater effect deny to marriage its sacramental nature, and transfer its jurisdiction from the Church to the State, with his accustomed exaggeration, he insists that it is to be looked upon as a profane and worldly thing (1. c., p. 216 ss.-). Moreover, while theoretically extolling marriage, practically, in his way of speaking, he frequently treated it with great disrespect, by speaking ill of woman, and lewdly describing the married life. But this must be attributed to the heat of lust, unextinguished by marriage, rather than to a change in his ideas. Cf. GRISAR, 1. c., p. 218 ss., and compare with pp. 492 and 506-510. Cf. also FRIEDBERQ, Das Recht, p. 157 ss. ; Realencykl., t. V, p. 192-194; CHRISTIANI, Luther el Lutheranisme, Paris, 1908, 7 e etude ; PAQUIER, L'tat religieux et le mariage d'apres Luther, in the Rev, cl. fr., t.LXVI (1911), p. 385-417. 1. Handcommentar zum Alien Testament. Die Psalmen, 2 nd ed., 1897, Gottin- gen, p. 148. 2. Mgr. WAFFELAERT, De Virtutibus cardinalibus, tract. I, 1. in, n 125. 86 NATURE OF THE MATRIMONIAL CONTRACT that is to say, in a formal sense, and in accordance with the quali- ties proper to each state ('). Having premised this, we assert that marriage is undoubtedly less perfect than virginity, and that the Council of Trent, Sess. XXIV, rightly reprobated the error of those who say : that the married state is to be preferred to the state of virginity or of celi- bacy; and that it is not better and more blessed to remain in virgin- ity or celibacy than to marry > (*). . Proofs. Proofs. Without enlarging upon the clear evidence of the Holy Scriptures, more especially Matth., XIX, 10, n, 12., and i Cor. VII, and omitting the almost innumerable passages from the Fa- thers that support our assertion,we shall confine ourselves here to arguments supplied by theological reasoning only. 1. The good of the soul is higher than the good of the body, as St. Thomas teaches, 2 a 2 ae , qu. 152, art. 4 ; but virginity tends to the good of the soul, while marriage tends to the good of the body, that is to say, to the material multiplication of the human race. 2. Marriage renders a man less fitting and less disposed to the service of God, seeing that he gives himself up to the pleasures of sense, which, more than anything, draw the mind away from prayer and spiritual things ; and is involved in a multitude of material and worldly cares : married people are occupied with pleasing one another, with maintaining a good position in the world for themselves and their families, with amassing wealth for their children ; and we see them at times so absorbed in these 1. Although virginity is better than conjugal continency, nevertheless, a married man may be better than a celibate, even from the point of view of chastity, if the married man is more ready to observe virginity, where the neces- sity arises, than he who is in fact a celibate. Whence St. Augustine in writing to a virgin says : I am not better than Abraham, but the chastity of the celibate is better than the chastity of marriage >. St. THOMAS, 2 a 2 ae qu.i52, art. 4, ad a m ; and C. Gent., 1. Ill, ch. 138. 2. The Council of Trent levels this especially against the Protestants, who in conformity with the later opinion of Luther, extolled marriage and placed it above virginity, looking upon the former as a higher religious state then the lat- ter. As to the opinion of the Anglicans on marriage, its reference to virginity, and also the enpedicncy of sacerdotal celibacy, cf. HOWARD, o. c., I, p. 392-399. NATURE OF THE MATRIMONIAL CONTRACT 87 pursuits, that they can hardly find one half-hour in the week to give to the service of God (') >. 3. The act proper to marriage is the act of generation. But : a/ this act, as Lessius says (1. c.), appertains to the less noble part of man, wherein he approaches nearest to the brute creation, while virtuous continency and abstinence from the pleasures of the flesh belong to the spirit, the noblest part of his being, and make him like to the angels. "Whence St. Augustine says (*) : c virginalis integritas, et per piam continentiam ab omni concu- bitu immunitas, angelica portio est, et, in carne corruptibili, incorruptionis perpetuae meditatio ; and our Lord himself has said : in resurrectione neque nubent neque nubentur, sed erunt sicut Angeli Dei in coelo ( 5 ) >. b/ In the act of sexual intercourse reason is sunk in passion ; and this is why, apart from the motive given above under a/, on such an occasion one is ashamed of any wittness ; for it is indeed sha- meful for reason to be so overcome by carnal pleasure, as to lose itself and its authority . LESSIUS, ibidem. 57. Let us now turn to the common objections : Objections 1. The first and principal objection is that given by St. THOMAS, 1. c., ad answered ' 3 m , viz., the general good is preferable to the private good ; but marriage is for the general good, that is to say, for the multiplication of the human race,\vhile virginity is of advantage only to the individual. This objection is answered by the following distinction made by the holy Doctor : the general good is preferable to the private good, if they belong to the same genus, but not otherwise, as is the case in the present instance ; for mar- riage concerns corporal good, virginity spiritual. If the objection '^further maintained, and it is claimed that marriage also makes for the spiritual good, inasmuch as it is its business to bring up children for the glory of God, we reply that, as already stated, the com- parison must be made between the proper qualities and distinctive marks that differentiate virginity and marriage. Now, the property of marriage, as compared with virginity, is to provide for the corporal being and well- being of the child. Moreover, virginity is not purely a private good. To the general spiritual good it contributes not less, but rather much more, than i. LESSIUS. Dejustitia et jure, cacterisque virtutibtts cardittalibus, 1. IV, ch. n, dub. 15 ; i Cor., VII, 33 ss. a. DeSancta Virginitate, c. 13. Migne, XL, col. 401. 3. Matth., XXII, 30. 88 NATURE OF THE MATRIMONIAL CONTRACT the married state, even in the business of the bringing up of children. It makes a man eminently fit for the instruction and religious education of the young, and for assisting them in all their spiritual necessities, as daily experience proves in the case of secular priests, and in that of religious of both sexes (). 2. It may also be objected, that under the Old Law it was reckoned a disgrace to be without children, according to the saying : Cursed is he who leaves not children in Israel . We reply that the objection falls to the ground, if we assume that, presupposing marriage, the disgrace consisted in the sterility. Since God had promised to those who lived in marriage blessing and fruitfulness, on condition that they kept the law of God, there was a suspicion that they who had no children, were punished by God as transgressors of the law, and in this there was certainly great disgrace (*). If, on the other hand, we must sometimes take the saying absolutely under any hypothesis, (as in the case, perhaps, of Jephte's daughter bewailing her virginity), the mis- fortune and disgrace were not the effect of the state of virginity, as such, but resulted rather from the peculiar circumstances of the Jewish people, no one of whom could, without marriage, entertain the hope of having the distinguished honour of numbering the Messias among his descendants. 3. Certain objections of a physiological nature are also sometimes raised. It is asserted that absolute continence exposes the unmarried, the man especially, to continual troubles of the flesh ; and is a danger to his bodily and mental health, in consequence of the superabundance of sperm ( 3 ). The answer is easy. Firstly, the seminal secretion diminishes with those who observe continence ; and the excess is in part reabsorbed, and goes to vitalize the mind and body, while the rest is spontaneously thrown off by nocturnal pollution (*). Secondly, concupiscence is weakened little by x. Virginity also contributes, as BILLOT rightly remarks (o. c., II, p. 363 s.), to the common good of society : in the first place because it continually calls to mind our heavenly country, in which 'they shall neither marry nor be married'... ; secondly, because it shows how one may curb those unruly passions, which ordinarily are the great stumbling-block of marriage itself ; and finally, because it disposes a man to the contemplative life, and gives him a taste for assiduous prayer, that brings down divine blessings on the human race . 2. BECANUS, Analogia Vettrisac Novi Testamenti, ch. XXI, n. 7. 3. Cf. TREUB, o. c. ; NYSTROM, o. c., chap. 3 : Die Geschlechtbediirfnis und die Enthalsamkcit. See also GRISAR, LutJier, II, p. 199-203, on the various sayings of Luther, who declared continency impossible and against nature, and pretended that the use of marriage was every bit as necessary as eating and drinking. 4. Cf. LEITNER, Lehrb., p. 12 ss.,who clearly demonstrates, against the Protest- ants, that virginity and celibacy are not in the least injurious to vigour of body NATURE OF THE MATRIMONIAL CONTRACT 89 little with those who manfully refrain from venereal pleasures, so that the celibate, who does not neglect supernatural means, overcomes the assaults of the flesh, and restrains himself more readily than the married man who makes use of marriage with moderation (*). 6$. Observation. As concerns the question of precept, we have to Marriage is observe that marriage is of obligation for the human race taken collect- 1 \ or l n ^lf u . ively ; for the end proposed by the Creator, the propagation of the als > except ft, j j A r j- -j , accidentally. human race, may not be evaded. As far as individuals are concer- ned, it is not of obligation in itself, but it may be so accidentally : that is to say, it may happen that one or another, by reason of the peculiar circumstances in which he finds^ himself, may be bound to marry; for instance, in order to allay the excessive force of his passions, to legitimate a child that has been born to him out of wedlock, or to make reparation for the wrong done to the mother ; or again, to prevent an excessive shortage of births ; in this case, however, one would be bound to many, not as an individual, but only as a representative of the community. Protestants controvert this doctrine, but to no purpose. They object the words of Genesis, I, 28 : Increase and multiply. But these words imply rather a blessing than a precept ; or, if they contain a precept, they affect, not individuals, but the community, as represented by our first parents. Nor let it be said that the end proposed by the Creator is liable to be frustrated, if the obliga- tion binds not the individual, but only the community. As expe- rience proves, the promptings of concupiscence and the force of natural inclination are amply sufficient for the attainment of the proposed end (*). and mind, and do not lead to misconduct. See also ESCHBACH, Disputationes, p. 471-481 ; FRANCOTTE,O. c., p. 15 ss. ; De Katholiek, 1904, p. 303 ss. ; Die Ehe, p. 81 ss. ; FOREL, o. c., p. 468; GEMELLI, o. c., pp. 64-68; LOSLEVER, o. c., p. 219 ss. 1. Cf. ESCHBACH, o. c., p. 482-484, where he adds : What we have so far said, is true in ordinary cases. But we freely admit that it is not given to all to take the word of the Lord extolling celibacy, and that there are men of an erotic temperament to whom the use of marriage is morally necessary for health of soul and body. To these the words of St. Paul apply : It is better to marry than to be burnt >. 2. The proverb : Quod omncs tangit, neminem angit (everybody's busi- ness is nobody's business), is true where it is a question of a burden, but not where the attraction of individual pleasure is concerned. 90 THE CONSTITUENT ELEMENT CHAPTER II. THE CONSTITUENT ELEMENT OF THE MATRIMONIAL CONTRACT, OR CONSENT. ARTICLE 1 . Matrimonial consent in general. FIRST PROPOSITION : Mutual and actual consent to the matrimonial bond constitutes by itself the contract of marriage, to the exclusion of the conjugal act. Explanation. 53. Thematrimo- A. There must be an actual consent, that is, a consent de prae- "equires con- sen ^y relating to the contracting of marriage in the present : con- sent, sen t relating to the future, as we have seen above, can only con- stitute betrothment. The necessity of this consent is absolute, and nothing can make good the want of it. This is affirmed by Pius VI, in his Letter of the n July 1789 : This contract differs greatly from any other merely civil contract in this, that in a civil contract the absence of consent may sometimes, for certain reasons, be supplied by the law, but no human power can do this in the case of marriage > ('). which is of B. Mutual consent is sufficient, and sufficient of itself, provided it 56 ent. " nas t ne requisite qualities, as we shall explainbelow in the second proposition, and provided also it is given in the form required for its validity, as will be shown in article 2. Besides this consent, sufficient in itself, another element might be required by the posi- tive law,but we shall show that this is not the case,and in particu- lar that sexual intercourse does not constitute, in positive law, a constituent element of marriage. Proofs. Dtmonstra- 1. The evidence of the Fathers. St. AUGUSTINE, De nuptiis et con- cupiscentia, 1. I, chap. II, says : . Note here, that the word regulariter does not refer to the consent in such a way as to imply that marriage might exceptionally be contracted without consent, but refers to the method of making known the consent, which regularly and ordinarily consists in the utterance of the words. 6. In this theory, therefore, sexual intercourse may be regarded either as the so- le element that constitutes marriage in its entirety t or as an essential element that completes and perfects marriage already begun by consent. It is open to question THE CONSTITUENT ELEMENT 93 contracted by mutual consent alone is not a true and complete marriage ; it becomes such only through sexual intercourse, which alone gives it the dignity of a sacrament ('), and renders it indissoluble (-) ; before sexual intercourse takes place the marriage is only in its inceptive stage ; it is still dissoluble ; and the parties should still be regarded rather as betrothed than as actually husband and wife ; they become such in tact only after inter- course. This theory was formerly defended by many celebrated authors, and Supporters of among them by Regino Prumensis (f 916) and Algerus of Liege (f 1130). J^t^ y> At a later period it became general in the school of Bologna, especially arguments, after it had been publicly maintained by GRATIAN, in the Decrdum, quaestione 2% Causa XXVII. This author, after giving the arguments for and against it, decided in favour of the copulatheoria, but under a reser- vation that we shall notice later. These are his reasons : a/ In chapters 16 and 17 he appeals to the autho- rity of St. Augustine ( 3 ) and of Pope Leo I, in his rescript to the Bishop of Narbonne, already referred to, the text of which he gives, but in an adulterated form : t Cum societas nuptiarum ita a principio sit instituta ut, praeter commixtionem sexuum, non habeant in se nuptiae Christi et Ecclesiae sacramentum, non dubium est illam mulierem non pertinere ad matrimonium in qua docetur non fuisse nuptiale mysterium (*). if Hincmar held the former opinion, though Fahrner and Sehling speak of him as doing so. We think the contrary much more probable, and agree therein with SCHRORS, o. c., p. 316 ss., who brings many texts in support of his statement. However that may be, the less rigid opinion is the one maintained by the doc- tors of Bologna, as we shall presently point out. In following this course they took a middle way between the extreme opinion, attributed by some to Hincmar, and the teaching of the Roman Church, according to which consent constitutes marriage without the copula. 1. Without the conjugal act, they said, there was no symbol of the union of Christ with the Church, of that corporal union which our Lord, so to speak, con- tracted with it by His Incarnation. 2. Hincmar, an ardent defender of the indissolubility of marriage, found in his system a solution of the difficulty that existed of reconciling the principle of indissolubility with the practice of the Gallican Church, in dissolving marriage on the grounds of impotence. 3. Non dubium est illam mulierem non pertinere ad matrimonium, cum qua docetur non fuisse commixtio sexus . 4. The authentic text, according to MIGNE, 1. c. ; HARDOUIN, 1. c., and FRIED- BERG, on this passage, says exactly the contrary : Cum societas nuptiarum ita ab initio constituta sit ut, praeter sexuum commixtionem, haberet in se Ohristi et Ecclesiae sacramentum, non dubium est... 94 THE CONSTITUENT ELEMENT b/ In chapters 19-21 he gives the different cases in which it has been permitted to dissolve marriage that has not been consummated, whether on account of a vow of religion, or on account of impotence : whence he concludes in the Dictum (*) on chapters 28 and 29, that between parties united by consent alone, there is no marriage, that is, no perfect marriage, just as he denies that the Blessed Virgin and Saint Joseph were really married. c/ He interprets in his own sense the evidences that seem unfavourable to his thesis, and gives them in ch. 1-15. He holds that if the condition of marriage is attributed to a union formed by consent alone, it is attributed to it only as an inceptive marriage, and not as a marriage perfect and properly so called. < It must be known, > he says, that marriage com- mences with mutual consent, and is made perfect by carnal intercourse ; whence it follows that the consensual contract produces marriage indeed, but only inceptive, while the conjugal act brings into being marriage that is ratified (ratum) (*). He maintains that if the texts quoted give to parties, who have contracted by consent alone, the title of husband and wife, they do so only in anticipation of what is to follow, and not in virtue of the contract already made > ( 3 ). With regard to the quotation from pseudo- Chrysostom, given above, which declares that it is not carnal intercourse, but consent, that constitutes marriage, Gratian claims that it is to be under- stood in the following sense : sexual intercourse without the intention of contracting marriage, and the loss of virginity without the conjugal com- pact do not constitute marriage ; but the antecedent intention of contrac- ting marriage and the preliminary conjugal compact give reason to say that the woman, at the moment that she is deprived of her virginity, or is carnally known, is married to her husband, or contracts marriage > (*). The reservation which, as we have said, Gratian makes in his theory, is explained in the following chapters of his work, up to ch. 50 inclusively. Though he does not admit the woman who is bound by matrimonial consent alone, is united in the bonds of a true and complete marriage, yet he does not allow her to retract and marry another under all circumstances. He excepts two hypotheses : 1. in case of abduction, the woman must be restored to her former husband, and remain faithful to him ; 2. if her husband has already taken her into his house, and they have received the veil and the blessing together, she can no longer change her mind : I. The Dicta of Gratian are the conclusions that he regards as deducible from the texts quoted, and as contained in them. 3. Dictum on ch. 34. 3. Dictum on ch. 39 and on ch. 45. 4. Dictum on ch. 45. THE CONSTITUENT ELEMENT 95 the rupture in that case would violate the blessing that the priest gives to the bride (') . Dictum on ch. 50 ( 2 ). The distinction between inceptive and complete marriage was preserved by the disciples of Gratian ( 5 ), who stated it with yet greater precision, and accorded the benefit of indissolubility to such marriage only as had been completed by conjugal intercourse, while they permitted inceptive mariage to be dissolved for a variety of reasons, that may be found in ESMEIN, o. c., I, p. 117, such as, a vow of chastity, captivity, the super- vention of spiritual relationship or affinity, and even, according to many of them, a subsequent consummated mariage (*). The copulatheoria was opposed, among others,by Peter Damian, William Opponents of de Campellis, Hugh of St. Victor, and above all by Peter Lombard ( 5 ). In "" theor y- I. It appears, then, that Gratian introduced this exception in favour of a mar- riage that had been blessed, thoughnot consummated, out of respect for the blessing given. The later Decretists relied rather on the fact that the wife, in the case proposed, had already been taken into the house of her husband, which in their eyes, by analogy with the Roman law, completed the marriage that had been begun. Cf. ESMEIN, o. c., p. 114 and 118. a. Chapter 51, which expounds a doctrine quite at variance with the views of Gratian, is a Palea, that is to say, a text that does not belong to the Decretum as it left the hands of Gratian, but was added by a later writer. Cf. FRIEDBERG on this passage. 3. Cf. FREISEN, o. c., p. XXVIII-XXXIV. 4. This last reason was not admitted by Roland, afterwards Alexander III. 5. The opinion of Gratian is set forth by Peter Lombard in the work known as Sententiarwn libri quatuor, 1. IV, Dist. XXVII, F., G., H., almost in the very words of the Dictum to ch. 45, whence it seems quite clear that the writing of Lombard is of a later date than that of Gratian : Nevertheless there are some who assert that there is no true marriage before the transference of the bride and the occurrence of the copula, and that none are truly married until sexual intercourse has taken place ; but that the plighting of their troth leaves them merely betrothed and not married... The authorities on which we rely in asser- ting that consent constitutes marriage, are interpreted by them as meaning, that the consent or conjugal agreement constitutes the marriage, not before sexual intercourse, but in it. For as the defloration of a virgin does not constitute mar- riage, unless the conjugal compact precedes it, so neither does the conjugal compact, before the conjugal connection takes place. In virtue of the conjugal compact, therefore, they become betrothed parties before sexual intercourse, but husband and wife in it. For the conjugal compact brings it to pass, that she who before was betrothed, in the act of sexual intercourse becomes a wife . Cf. P. FOURNIER, Deux contravenes sur les origines dtt Decret de Gratien, in the Rev. d'Histoire et de Litterature religieuse, 1898, p. in ss.; DB GHELLINCK, Theologie et droit canon au X/e et XII* stick, in Etudes, t. CXXIX (1911), p. 193. 96 THE CONSTITUENT ELEMENT opposition to the School of Bologna, these authors insisted on the evidence quoted above in favour of the principle of the earlier theological authori- ties : viz., that consent, not carnal intercourse, constitutes marriage ; and moreover directly refuted the arguments brought forward by their oppo- nents. Without speaking of the first text invoked by Gratian, and attributed to St. Augustine, but nowhere to be found in the writings of the holy Doctor ('), and passing over the text of St. Leo I to Rusticus, which was, as we have seen, adulterated, the reasoning of the Master of the Sentences is as follows : 1 . He vindicates the sacramental character of marriage, even where it is without the coujugal act. He distinguishes a two-fold union of Christ with the Church, the one corporal, the other spiritual effected through will and love. This second or spiritual union symbolizes marriages con- tracted by consent alone (*). 2. With regard to the authorities invoked by Gratian in favour of the dissolubility of mariage not consummated, Peter Lombard interprets their utterances in accordance with the distinction made by William and by Hugh of St. Victor between sponsalia depraesenii and sponsalia defiduro ; that is to say, between the compact relating to future marriage and the consent relating to actual marriage, and contends that the causes of dissolubility are applicable to the former only, and not to the latter ( 3 ). I. Friedberg thinks that this text was the summaof the following chapter 17. a. As there are between married persons the union of mind and the union ot body, so there is also between the Church and Christ a two-fold union, the union of will, since the Church wills what Christ wills, and the union of nature inasmuch as Christ has become man. Thus we have a spiritual union and a corporal union, i. e., a union by charity and a union by conformity of nature. This two-fold union is symbolized in marriage : the union of mind between hus- band and wife represents the spiritual union of Christ with the Church, this which is effected through charity ; the corporal union represents equally that which is effected through conformity of nature . L. IV, Dist. XXVI, F. Hugh of St. Victor proposes another distinction : marriage consummated signifies the union of Christ with the Church, and marriage not consummated the union of charity between God and the faithful soul. Cf. FAHRNER, o. c., p. 133- 3. Betrothment (despottsatio) sometimes takes place, in which the mutual promise of the man and woman concerns the contracting of marriage, but in which there is no consent de praesenti.Thcre is also a desponsatio that has consent de praesenti, that is the conjugal compact, which alone constitutes marriage. In the former desponsatio, where the promise is to contract marriage, the parties are only betrothed, not married... but in the latter desponsatio, in which the con- sent is dcpraesenti, marriage is contracted, and from the first plighting of their THE CONSTITUENT ELEMENT 97 The teaching of Peter Lombard and the School of Paris was thus entirely opposed to that of Gratian and the School of Bologna. According to the former, marriage contracted by an actual contract was a perfect marriage, and, between Christians, a sacrament and a marriage absolutely indissoluble ; while according to the Doctors of Bologna, it was only a half-marriage but begun, that had not yet reached the sacramental dignity, and liable to dissolution for a variety of reasons. This celebrated doctrinal dispute finally gave rise to a mixed theory, that borrowed its elements from the two opposed parties. This mixed theory was sanctioned by the Supreme Pontiffs, and notably by Alexan- der III, who, as Magister Rolandus, had been an adherent of the School of Bologna. On the one hand, this theory admits the distinction between sponsalia de praesenti and sponsalia defuturo, i. e., between the contract of betrothment properly so called, and the actual contract of marriage, and it recognises in marriage not consummated the quality of a perfect mar- riage and of a true sacrament ; on the other hand, it denies it the absolute indissolubility, which Peter Lombard attributed to it, and grants this only to marriage ratum et consummatunt : the copula is not an essential, but merely an integrant element of marriage, from wich marriage derives some accidental perfection and a stricter indissolubility. Hence was gradually evolved the discipline, at present in force, according to which marriage ratum non consummatum is dissolved by a solemn vow and by Papal dispensation ('). Thus, the controversy was ended (*). Note. WATKINS, o. c., p. 125-126, shows confusion of thought in the argument that he adduces in connexion with the copulatheoria,as if from the fact that impotence in the matter of the conjugal act renders the marriage essentially null, it followed that the conjugal act itself belongs to the essence of marriage. The fact really is, that for marriage there is required the transfer of the right over one another's bodies, and consequently the possibility of conjugal use, but not the exercice of the right. Cf, below, n os 89 and 277. troth in such desponsatio, the parties are called true husband and wife . L. IV, Dist. XXVII, I. I. We shall explain this development of the law later, in n 187. a. Even at the present day, and among Catholics, there have been those who have defended the copulatheoria, foremost among whom is FREISEN, a writer whom we have frequently quoted, and who is well known as the author of a remarkable work : GeschichU des canoniscJten Elwrechts. In the preface to the second edition of his work, in 1893, however, he retracted his theory, p. xxin-xxxiv, not, he says, for historico-juridical reasons, for 7 98 THE CONSTITUENT ELEMENT SECOND PROPOSITION. Consent must be proper and personal, inter- nal and free, outwardly manifested, absolute, simultaneous and legi- timate. these, as he shows p. XXVHI-XXXIV, are in his favour ; but because he reco- gnises that he cannot bring his thesis into accord with the teaching of the Church, and in particular with that of the Council of Trent, concerning the nature of marriage and its sacramental dignity. He therefore admits that consent consti- tutes marriage, but nevertheless adds that to marriage thus essentially constitu- ted, there is added, inconsequence of the conjugal act, a certain accidental or rather integral perfection : sie (die copula) fiigt der Ehe etwas Neues, wenn auch nicht Wesenliches, sondern integrirendes hinzu : which may, indeed, be said, as appears from what has been said, and as will be clear from the doctrine we shall have to propound below, concerning the indissolubility of the marriage bond. FREISEN is wrong, as we have seen, in defending the copulatheoria by appea- ling to the Roman law, as if in that the deductio and the copula constituted valid marriage. He is wrong also in invoking the Jewish law, p. 92 ss., to the effect that marriage, according to the Schidduchin and Kidduchin, was perfected only by the deductio into the nuptial chamber. W ATKINS, o. c., p. 112-135, also vindicates the copulatheoria, and he is sup- ported by others who are indicated by Sa'GMuLLER, o. c., 4 a P., p. 529 ss. See also LOTTHE, o. c., p. 36 and 67, who gives several provisions of the ancient customary law of Flanders in wich vestiges of the copulatheoria occur. Thus, in the country of Courtrai, the wife was not subject to the authority of her husband until after the first night of the marriage, i. e., until after the consummation of the marriage. There are other customs in which the same idea appears : such as the cere- mony called Beilager, which was long in use at the marriages of princes. It con- sisted in this : the newly married pair lay down fully dressed, in the presence of witnesses, on the nuptial bed, and a covering was extended over them. An ana- logous ceremony took place at marriages by proxy : not only did the proxy give the matrimonial consent in the name of his principal, but he also installed him- self in the marriage bed with the bride, to symbolize thus the consummation of the marriage on behalf of, and in the place of the real husband. He lay down fully dressed, and in armour, but with the right foot and right arm uncovered ; between him and the bride was placed a sword. Cf.HANAUER, o, c., p. 253-265, and compare with what we have said above in the note to n 50. The ceremony of which we shall speak below in n 122, 9, is again, it appears, a vestige of the copulatheoria : the newly married, in certain places, receive the blessing of the priest as they are lying on the marriage bed. For the connection of this theory with the marriage law of Protestants, con- sult SOHM, Das Recht, p. 208 s., 240 s. This author, in agreement with ROEDEN- BECK, o. c., is of opinion that the Protestant ecclesiastical law regards the THE CONSTITUENT ELEMENT 99 61. Explanation. . 1. Proper and personal, so that if it be wanting, it cannot be sup- Matrimonial plied by paternal authority, or by the supreme authority of the Church or of the State : for it belongs exclusively to the bride- personal, groom and the bride to transfer to one another the ownership of their bodies, and to take upon themselves the bond of marriage ('). 2. Internal, that is to say, emanating from the will. Hence one internal, who gives a fictitious external consent contracts an invalid mar- riage, even under the discipline introduced by the Council of Trent and by Pius X. Nevertheless, in the forum externum credence is not readily given to one who says that he gave a fictitious con- sent ( J ) ; and even if it is certain that his consent was feigned, he may be compelled to give a valid consent, since that is often the only way of repairing the wrong done to the other party. 3. Free : this freedom supposes deliberation and a judgment sufficiently ripe, together with at least a vague idea as to the object of the consent. Substantial error and absence of delibera- tion destroy the validity of the contract ; but not, more probably, if we regard only the natural law ( 5 ), the fear, even though grave, mutual consent of the parties as only the initial element of marriage, insufficient by itself, and requiring to be completed by a real and effective taking posses- sion : this is done by the interposition of the officiating clergyman, who, in the course of the religions ceremony, gives the bride and the bridegroom to one another ; but also, exceptionally, by the conjugal act itself. 1. We must be careful not to fall into the error of exaggerating this personal consent, as THANER does (o. c., p. 36 ss.). This author is not content with a legal consent analogous to that required in the case of other contracts, but requires a consent accompanied by personal knowledge and mutual love ; so that, on the one hand, he refuses to admit as valid a marriage by proxy between parties previously unacquainted with one another ; and,on the other hand, declares that it is opposed to the nature of marriage to break a contract that has been made between two persons, who seeing one another, love one another, and bind them- selves to one another, notwithstanding that there is a question of error, and of error affecting the identity of the person. 2. Nullity of marriage owing to feigned consent was declared in the Causa Parisien., 7 March. 1885 (A. S. S., XXIII, p. 14 ss.), and also in the Causa Mas- silien., i June 1911 (A. A. S., Ill, p. 525 ss.). In both cases it appeared that the man went through the form of marriage without any matrimonial intent, but solely for the purpose of obtaining possession of the bride's dowry. 3. We shall state later, under n 366, how far consent extorted by fear is valid in positive law, free, 100 THE FORMALITIES OF THE CONSENT that determined the consent : moreover, even if this fear was inspired for the express purpose of extorting consent, it seems that the freedom of consent was sufficiently safeguarded. external, 4. Outwardly manifested, since the consent must be reciprocal, and accordingly known to both parties ( J ). absolute, 5. Absolute or equivalently so, that is to say, given without a sus- pensive condition, or after its fufilment where such a condition has been added. We shall speak more at length of conditional con- sent in article 3. simultaneous, 6. Simultaneous, seeing that marriage has for its constituent ele- ment mutual consent. Nevertheless, considering the nature of the marriage contract, physical simultaneity is not required, and moral simultaneity, such as exists when one of the parties gives consent during the virtual continuance of the consent given by the other party, is sufficient. If one of the parties retracts before the other party consents, there is no marriage ; and this retracta- tion is presumed in the forum externum as often as the consent of the other party is unduly delayed. and legitir 7. Legitimate. Consent, to be valid and capable of producing mar- ma ' riage, must be given by persons capable of contracting, and under the conditions and with the formalities prescribed for its validity. As we shall see further on, when speaking of impediments,people may be incapacitated not only by the natural law, but also by the positive law, through the act of the authority that regulates mar- riage; this authority has also the right to lay down the conditions required for the validity of the contract, and the formalities to be observed in giving consent. We shall speak of these different for- malities in article 2. ARTICLE 2. Formalities of matrimonial consent. Preliminary observations. Inthenatural 1. In the natural law, mutual consent reciprocally manifested Mormali- ^Y wor ds, or signs, or in any other way whatsoever, is sufficient ; ity is requi- a nd the presence of a third party is by no means necessary. It i. The sacramental quality, which, as we shall see further on, is inherent in the marriage contract between Christians, requires the same condition, since consent constitutes the outward sign of the sacrament of matrimony. THE FORMALITIES OF THE CONSENT 101 would accordingly be sufficient if the bride signified her acquies- cence by a simple inclination of the head, or if she of her own free will gave her hand to the man for him to place the wedding ring upon her finger, or, again, if she pressed the hand of the bride- groom while he expressed his consent ( ! ). In like manner sexual intercourse, with conjugal intent, would also suffice (*). It is certain also that marriage by proxy is valid in the natural law, provided the proxy has received a special commission, and the principal has not retracted his consent before the mar- riage takes place. In like manner,marriage by letter is valid, though there may be a doubt as to the precise moment at which the con- tract comes into force ( 3 ). 2. In the positive law, in the marriages of baptized, the formali- ties prescribed by the Church must be observed ; and in the mar- riages of unbaptized, those required by the State (*). The pro- visions of the civil law are given at the end of this article. As regards the provisions of the canon law : Formerly, before the Council of Trent, no special formality was pre- scribed for the validity of marriage, but it was nevertheless forbid- den, under pain of grievous sin, to marry clandestinely, i. e., without the presence of kinsmen, or of a notary, or of a priest ( 5 ). The Council of Trent., Sess. XXIV, ch. i, De Ref. Matrimonii, introduced the diriment impediment of clandestinity , incapacitating such as should contract marriage otherwise 63. Formalities required by the canon law : before the Council of Trent ; after the Council of Trent ; 1. It may be asked if the silence of a son in the presence of his parents, who make the contract for him, sufficiently manifests his consent ; and it is debated, if the presumption that Boniface VIII, cap. unic., in VI , IV, 2, draws from this silence in favour of betrothment.is applicable to marriage. In the face of this con- troversy, one cannot make use of the affirmative opinion, except in cases where it is clearly shown that silence did include the required consent. Cf. GASPARRI, o. c., n 831 ; WERNZ, o. c., IV, n 46. 2. Thus in former times the conjugal act, following on betrothment, carried with it a conclusive presumption (juris et de jure) of matrimonial consent. See above, n 14. 3. Cf. GASPARRI, o. c., n 832, and ns 773 and 775. See below, n 70. 4. See below, n 224. 5. Cf. c. 1-5, C. XXX, qu. 5 ; c. 3, X, IV, 3 ; Benedict XIV, De Syn. dioec., 1. VIII, ch. XIII, n* 3 ss. ; Council of Trent, Sess. XXIV, ch. i, De Ref. Matr. ;the Votum Defensoris matrimonii ad Deere turn Ne Temere, in the Acta S. Sedis, 1907, p. 542 s. ; cf. also SCHULTE, o. c., p. 36-45. 102 THE FORMALITIES OF THE CONSENT than in the presence of the parish priest ('), or of a priest appro- ved by him or by the Ordinary, and of two or three witnesses . Many countries, however, were exempt from the application of this decree (*). since the Quite recently, the celebrated decree Ne Temere ( 5 ), of which we Ne Temere have spoken above, and which came into force from Easter Sunday (19 April) of the year 1908 (*), inaugurated a new disci- pline, which from that date takes the place of the former discipline (*}. This new discipline modifies not only the formalities required for consent, but also the very economy of the Tridentine decree ; for while this latter took effect through the impediment of clandesti- nity by incapacitating the contracting parties ( 6 ), the impediment under the present discipline directly affects the, form of the contract. For this reason we prefer to speak of it here rather than under the head of impediments. In a first section we shall describe the formalities required in order that marriage may be both lawful and valid ( 7 ) ; in a second section we shall show what marriages fall under the new law. 1. Whatever may have been the intention of the Tridentine Fathers, it is cer- tain that the chapter Tametsi has always been understood in this sense, that for the validity of marriage, the presence, not of any parish priest whatever, nor of the parish priest of the place where the marriage took place, but of the particular parish priest of the contracting parties, to the exclusion of any other, was neces- sary. Cf. the Votum Consultoris ad dccretum Ne Temere, in the Ada S. Sedis, 1907, p. 574 s. ; the Votum Defensoris matrimonii, ibid., p. 545, and p. 554 ss. 2. Concerning the fortunes of the chapter Tametsi at the Council of Trent, cf. ESMEIN, O. C., II, p. 155-308. 3. The decree Ne Temere was, indeed, issued by the S. C. C., but it is rather a Pontifical decree than a decree of the S. Congregation, as it was approved by the Pope in specifica forma. See the Author's Commentarius in Dccretum, p. 9. The text of the decree is given at the end of this treatise ; the previous Ada, may be seen in the Ada S. 5., t. XL, p. 591 ss. ; the principal commentaries appear in the index. 4. An exception was made in favour of the Chinese empire, for which a proro- gation was granted till Easter 1909(11 Apr.) by letters of the S. C. de P. F., dated 29 Feb. 1908. 5. The new law has no retrospective effect, and consequently all marriages ante- rior to Easter 1908, are subject to the Tridentine decrees. 6. Cf. ESMEIN, o. c., I, p. 78 ss. See also below, where we speak of the power of setting up impediments. 7. We are here abstracting from the sacramental ceremonies, of which we shall speak later. THE FORMALITIES OF THE CONSENT 103 PARAGRAPH I. FORMALITIES TO BE OBSERVED. FIRST POINT. FORMALITIES REQUIRED FOR VALIDITY. I. General rule. 64. PROPOSITION. Marriage, in order to be valid, must be celebrated Formalities before two witnesses, and either before the parish priest or the Ordinary of the place where it takes place, or before a priest delegated by one or the other. The parish priest, or the Ordinary, or the delegate, being invited and requested, and not constrained by violence or grave fear, must ask and receive the consent of the contracting parties. Explanation. A. The assistance of the parish priest or of the Ordinary. 1. By Ordinary and parish priest must be understood those who As a general are specified in the decree of the C. S. O. of 20 Febr. 1888 ( ! ), and p^nuis in chapter II of the decree Ne Temere. Under the appellation of required Ordinary come Bishops, Administrators or Vicars Apostolic, Pre- lates or Prefects having jurisdiction together with a separate ter- ritory, their Officials or Vicars General for spiritual affairs, and, Sede vacante, the Vicar Capitular or legitimate administrator. Under the name of parish priest are here included (*) not only O f tlie Or- he who is lawfully at the head of a parish canonically erected (and dl ^ y ^^ consequently the parish priest properly so called, even if he is priest only a succursalist , as well as the officiating priest^s^m'tor^or administrator of a vacant parish), but also, in those parts in which parishes have not been canonically erected, the priest who has duly received the care of souls in a definite district, and who is equivalent to a parish priest ; and also, in missions where the districts have not as yet been perfectly divided, every priest who has been generally deputed by the Superior of the mission for the care of souls in any station > ( ? ). 1. Collectanea, n. 1471 ; see below, n 352. 2. This cannot be indiscriminately applied where the matter is different. 3. With regard to these last, BESSON, N. R. Th., 1907, p. 6i6s., makes the following observations : a/ < Dans une mission ou plusieurs pretres auraient re9u chacun cette delegation universelle pour toute la mission, chacun serait ainsi cure au sens du decret dans toute 1'etendue de la mission; si, au contraire.la mission a 104 THE FORMALITIES OF THE CONSENT of the place where the marriage is celebrated : A priest who has the universal and full charge of a parish, the parish priest of which is insane or obviously incapable of dischar- ging his duties for a long time to come, may also be regarded as equivalent to a parish priest. But the coadjutor of a parish priest who administers his own parish, a vice-pastor, or assistant, as he is called in North America, is not considered as such. We are also of opinion that the Bishop has no power to make them quasi- parish priests for the purpose of assisting at marriages, unless he grants them the care of souls, full and independent of the parish priest (for this would be to change the vicarious office and appoint two parish priests) ; they can only be delegated by the Bishop or by the parish priest (though certainly to the universa- lity of cases), and so cannot subdelegate, except for a particular case. For this, see below, n 65 adfinem ('). 2. The Ordinary and the parish priest of the place (diocese or parish respectively), within the limits of which the marriage takes place, are the only ones competent to assist at the marriage. The parish priest or Ordinary, whose presence is required for the validity of the marriage, is not now, as heretofore (*), the parish priest or Ordinary, in whose parish or diocese (*) one or etc" partagee en divers districts ou stations plus ou moins etendus, et des pretres places respectivement a la tete de chaque district ou de chaque station, chacun de ces pretres sera cure" dans le district ou la station dans lesquels il a charge d'ames. b/ il faut toutefois se garder de confondre la charge d'ames, qui donne qualite pour signer aux fian9ailles et assister au mariage, avec tout autre mandat eccld- siastique ou religieux. II arrive souvent, dans les missions, que plusieurs postes, ayant chacun un missionnaire a sa tete, sont reunis en district sous 1'autorite d'un superieur. II ne s'ensuit pas que ce sup6rieur puisse etre temoin qualifie" des fiancailles et du mariage dans tout le territoire du district. Parfois en effet il n'aura pas re9u la charge spirituelle immediate des fideles, mais sa congregation lui aura seulement donn6 autorit6 pour diriger la vie religieuse de ses confreres*, i. Cf. in this sense Archiv. /. k. Kircltenr., 1910, p. 593 ; CREAGH, o. c., p. 53 ss. ; DE BECKER, Ne temere, p. 13 and 31. Of a different opinion is McNiCHO- LAS, in the Eccles. Review, t. XXXVIII, p. 145 s., and t. XXXIX, p. 36 s., cf. p. 438, where he says that some Bishops have in the above mentioned manner appointed assistant priests as quasi-parish priests with a view to the validity of marriage ; likewise WOUTERS, o. c., p. 34. a. See what has been said above on the interpretation of the chapter Tametsi. 3. According to the decree of the C. S. O., 9 Nov. 1898, in order that the Ordi- nary might be the proper Ordinary with regard to a marriage, it was necessary THE FORMALITIES OF THE CONSENT 105 other of the contracting parties has a domicile or quasi-domicile, but the parish priest or Ordinary of the place within the limits of which the marriage takes place ; so that it is before him alone (or before the priest delegated by him, as we shall say later) that the marriage can be validly celebrated, whether the contracting parties are his subjects or not. This is the principal change made in the law of clandestinity ; and this modification has been introduced with the object of avoiding the complications and difficulties that were frequently experienced in connection with the decree Tametsi ('). Observe that it follows from this, that, contrary to what obtained under the Tridcntine discipline, a parish priest or Ordin- ary cannot henceforth, without delegation, assist at the marriage of his own subjects, outside of the limits of his own parish or diocese ; while he can, on the other hand, in opposition to the former law, validly assist at the marriage of those who are not his subjects, provided it is celebrated within the limits of his territory (*), that is to say, provided he be the parish priest or the Ordinary of the place where the marriage takes place ( 3 ). to consider the fact of domicile not in the diocese in general, but in a determi- nate parish of the diocese. Cf. below, n 73. i. Saepe namque , as the introduction to the Ne Temere observes, gravis ex- titit dubitatio in decernenda persona parochi,quo praesente matrimonium sit con- trahendum. Statuit quidem canonica disciplina proprium parochum eum intelligi debere,cujus in paroecia domicilium sit aut quasi-domicilium alterutrius contra- hentis. Verum quia nonnunquam difficile est judicare certo ne constet de quasi- domicilio, hand pauca matrimonia fuerunt objecta periculo ne nulla essent ; multa quoque sive inscitia hominum sive fraude, illegitima prorsus atque irrita deprehensa sunt. Haec dudum deplorata, eo crebrius accidere nostra aetate vide- mus, quo facilius ac celcrius commeatus cum gentibus etiam disjunctissimis perficiuntur . a. The churches of regulars, even those exempted, are no exception : they may and ought to be considered as the territory of the parish priest or Ordinary of the district in which they are situated for all that concerns assistance at marriage . S. C. de Sacr. 13 March 1910, c. 8. 3. Many doubts were proposed to the C. S. O. and solved I Feb. 1908, with regard to certain special classes of parish priests. These doubts concern the com- petence of the parish priest of the place where the marriage is celebrated, but they are hardly applicable to our country. They are the following : a) As concerns strictly personal parish priests, who, like military chaplains, have no territory, not even in conjunction with another parish priest, but exer- 106 THE FORMALITIES OF THE CONSENT he must have 3. In order that his assistance may be valid,it is necessary a/ that * ion of his 5 ' ne should have taken possession of his benefice, or have begun to exercise benefice, and fa s office, and b/ that he should have incurred no suspension (ab officio), not be under any public and no excommunication by name in virtue of a public decree. censure ; ^ ^ not sufficJen^then, that the Bishop should have been elect- ed, or that the parish priest should have been nominated by the Bishop ; it is necessary that the former should have taken posses- sion of his see, and that the latter should have already assumed the administration of his parish or quasi-parish and the charge of his office. In the diocese of Bruges, this ordinarily takes place when cise jurisdiction directly on persons and families, and follow them in their changes of residence, nothing has been changed (ad 7 m ), and consequently they can validly assist anywJtere at the marriage of their subjects. Cf. Coll. Brug., t. XIII, p. 3035. ; Archiv.f. k. Kirchenr., 1908, p. 730 ss. and 1910, p. 141 ss. ; KNECHT,O. c., p. 67 ss. ; Di PAULI, o. c., p. 85 ss. But such chaplains can no long- er assist at the marriage of other persons in their church or military chapel, as they could before the decree of Pius X ; they would now require to be delegated by the parish priest of the parish in the territory of which the church in question stands. Cf. Theologische Revue, 1910, p. 221. b) Parish priests who have no territory exclusively their own, but have one in common with one or more other parish priests (as is the case, e. g., where two parish priests have charge of souls in the same parish, but, for inhabitants ot two different nationalities respectively), validly assist at all marriages within the limits of the territory that they hold collectively (ad 8m). Coll. Brug., t. XIII, p. 302 s. ; SCHULZE, Kirr.hl-Kath. EJterecht, 1. c., p. 814 s. c) Parish priests who, in addition to their own territory, have also in other parishes certain persons or families who belong to their flock, can validly assist there at the marriage of their subjects. This is the reply given ad g m , after con- sultation with His Holiness, Collat. Brug., t. XIII, p. 303 s. The question whether the parishioners of these personal parish priests could also be validly and law- fully married before the parish priest of the place where they reside, was left undecided by the C. S. O. in its reply of 27 July 1908, ad 8 m . Cf. Coll. Brug., 1. c., p. 597 and 645 ; N. R. Th., 1908, p. 729 ss. But two years later, 2 June 1910, in a particular case in which these special circumstances arose, the S. C. de Sacr., after consultation with the Holy Father, gave a negative reply, which may be found in the Acta Ap. Sedis, 1910, p. 447 s. ; and in the Coll. Brug., t. XV, p. 432 ss. d) Rectors of pious establishments, e. g., hospitals, exempt from parochial jurisdiction, can, provided they have received the full powers of a parish priest, assist at the marriage of persons under their charge, in the place in which they exercise their jurisdiction (ad io m ). Cf. Coll. Brug., t. XIII, p. 304, and also Rev. eccl. de Metz, 1908, p. 297 s. THE FORMALITIES OF THE CONSENT 107 the parish priest visits his new parish for the first time ( f ). From the day of taking possession, the Ordinary or the parish priest is capable of assisting validly at marriages, and he remains so, provided he be not excommunicated publicly and by name (that is to say, by name and Christian name (*), or at least in such terms as designate him quite evidently), or suspended from his office ( 3 ) publicly and by name, whereby he would be prohibited from all exercise of jurisdiction and of orders (*). As formerly, so at the present time, it is not necessary that the parochus should be a priest, since the decree does not explicitly require it, and the nature of the office to be discharged does not demand it, seeing that assistance at marriage involves the exercise neither of orders nor of jurisdiction ( s ). Moreover, there seems to 1. Nomine possessions hie intelligi ilium actum, qui,sive institutio corporalis, sive inthronizatio, sive installatio, sive aliter nuncupetur,tamen semper id efficit ut institutus in beneficium exinde adipiscatur liberum exercitium potestatis, suo officio adnexae . Thus the C. S. O., 2 March 1908. See Coll. Brug., t. XIV, p. 363 s. J Coll. Namurc., t. IX, p. 73, where we find that parish priests take posses- sion of their benefices in the diocese of Namur otherwise than in the diocese of Bruges. Cf. also N. R. Th.., 1909, p. 488 ss. 2. An excommunication of this kind was pronounced against Loisy by the C. S. O., 7 March 1908. 3. We say : suspended from his office : the disqualification of a parish priest, therefore, does not require that he should first be suspended from his benefice, and deprived of the right of receiving the emoluments of his office ; moreover, the suspension from his benefice alone would not suffice. 4. Under the Tridentine discipline it was generally admitted that a parish priest excommunicated, even by the greater excommunication, and suspended, validly assisted at a marriage ; but not one guilty of public heresy, even, according to most authorities, before the declaratory sentence. On this subject see WERNZ, o. c., IV, n 617, note 184 ; ROSSET, o. c., n 2208. The new discipline is in part more severe, since it does not admit the parish priest who is notoriously suspend- ed, and who is excommunicated by name and publicly ; in part also it is less severe, since it seems to admit parish priests who are guilty of heresy, unless, on this head, they have been notoriously and by name excommunicated, or publicly suspended by a judicial sentence. See in the N. R. Th., 1910, p. 465, the case of a parish priest in France, who was at the head of one of the associations cultuelles codemned by the Holy See. 5. See below, n no ; HARING, Ne Temere, p. 13, compare with WERNZ, o. c., IV, n 176, and FEYE, De Imped. ; this last answers the difficulty presented by the text of the Cuncil of Trent, which says praesente parocho, vel alto sacerdote , a form repeated in the recent Decree. I08 THE FORMALITIES OF THE CONSENT be nothing requiring modification in the common opinion, that a putative parish priest assists validly at marriages, and that the Church supplies what is wanting, provided there be the titulus coloratus and the error communis ('). he must be 4. As regards the manner of assisting : The parish priest and the assist at the Ordinary assist validly only when, being invited and asked, and marriage and constrained neither by force nor by grave fear, they ask and receive the ask the con- J J sent ; consent of the contracting parties . a/ Heretofore, under the Tridentine discipline, according to the general teaching, the purely passive assistance of the parish priest as qualified witness, in such manner as to understand the consent given in his presence, and to be able to testify to it in case of need, was sufficient. It was even held that the marriage was valid when the parish priest had understood nothing,but had intention- ally kept himself from doing so. Henceforth, a positive act is required on the part of the parish priest ; he must ask and receive the consent in due form (*). b/ Heretofore, the parish priest had to fulfil his office of witness, of authorized and qualified witness ( 3 ), but the contracting parties were under no obligation to ask him to be present for this purpose; it was sufficient for them to show, even implicitly, by their manner of acting, that they wished to contract marriage, and that they took him as witness, even if he happened to be there by chance, or had been sent for, under some other pretext. Henceforth, the parish priest must be asked and invited to assist at 1. There is a titulus coloratus, when the parish priest has been appointed by a compeient authority, but invalidly, owing to some hidden defect ; there is an error communis, when the parish priest is recognised as such by his flock, but is not really such on account of some hidden defect. There is said to be a prob- able error when the defect is not easily discovered. The Author has treated this subject at length in the Coll. Brug., t. IV, p. 642 ss., and there gives the legal texts on which he relies. 2. The parish priest will have to take into account this innovation when assisting at mixed marriages, of which we shall speak under n 357. For marri- ages by letter, see below, n 70. 3. It was necessary then, and is still necessary, that the parish priest should be present as the qualified witness ; hence the invalidity of marriages contracted before a civil officer and two witnesses, of whom the parish priest is one, but only as an ordinary witness. Cf. Rev. du clergefr., t. XIV, p. 209 s. THE FORMALITIES OF THE CONSENT 109 the marriage (') ; and thereby marriages, known as < par surprise, on a la Gaulmine , are rendered impossible ; thus an end is put to the doubts (*), and other inconveniences ( 3 ), that manoeuvres of this kind occasionally gave rise to in the past. It is sufficient, however, that there should be an implicit invitation ; there is no necessity for it to be explicit and formal (*), and it is enough that it should emanate from one of the parties. c/ Heretofore, the validity of the marriage was not endangered he must do so by the fact that the parish priest had been constrained by fear or violence to assist at it. Henceforth, the hypothesis of assistance extorted by fear, we are speaking, of course, of grave fear, falls to the ground ( 5 ). B. The assistance of the delegated priest. ft. The Ordinary or the parish priest, who is competent to assist The priest competent to assist can I. Coll. Brug., t. XII, p. 470. This follows from the condition indicated under del/gate an- letter a/. We must, however, make an exception for the extraordinary case in other in his which, as we shall see later, a marriage, celebrated before two witnesses only, * a would be valid ; the assistance of these witnesses is not affected by the modifica- tion of the former law. The change made in the assistance of parish priests has been introduced out of respect for them and for the dignity of the sacrament ; for parish priests were not sufficienlty protected, under the former law, against trickery and violence, and could be forced to give their assistance, even in self-defence . Consultor of the S. C. C. in the ActaS. Sedis, t. 41, p. 378. Cf. BOCKENHOFF.A^ temere, 1. c., P- 559- 3. See the decision of the tribunal of the Rota, 28 May 1909 (in the Canon, cont., 1909, p. 587 ss.), concerning a marriage contracted in 1897. 3. It is thus that certain betrothed acted, when they desired to contract a mixed marriage, in view of which they had been unable to obtain dispensation. 4. Decree of the S. C. C. of 28 March 1908, ad 4. Many writers justly remark that the invitation is sufficient, if the parish priest himself approaches the engaged parties, and they consent to be married before him. See GENNARI, o. c., p. 26 ; VERMEERSCH, o. c., p. 45 ; VAN DEN ACKER, o. c., p. 33 ; WOUTERS, o. c., p. 43. 5. WOUTERS, o. c., p. 44, and BESSON, N. R. th., XL, p. 34, declare, in opposi- tion to DE BECKER, Legislatio nova, p. 26 s., that the case of grave fear, even when merited in the main, and justifiable in form, is an impediment to the validity of the assistance of the parish priest. See also VAN DEN ACKER, o. c., p. 34, who observes that/raw^ alone, without violence or threats, does not affect the validity ; such would be, e. g., the case of a parish priest who, being deceiv- ed by the engaged parties as to their domicile or place of residence, assisted at their marriage. HO THE FORMALITIES OF THE CONSENT at the marriage ('), is empowered to delegate another priest in his place. In order that the assistance of this delegate may be valid, it is necessary to observe the conditions prescribed for the validity of the delegation and of the assistance. thts delega- 1. The conditions required for the validity of the delegation, regard being had to the provisions of the former and of the new legislation (*), are the following : a) must be a/The delegation must not go beyond the limits of the competence C ter?itory of f the principal himself; consequently he cannot delegate anyone the principal, to act for him in this matter beyond the limits of his own territory. b/ It must be made to a determinate priest. b) made to a It would be invalid if it were given in an indeterminate manner, * ' ky designating, for example, in general and indefinitely one of the curates of a parish, or any priest whom the engaged parties might choose ( 3 ). It is necessary that the delegate should be specified by name, or by his office, or in some other way. It is permissible, however, to give the delegation either directly to the priest himself, or through the agency of the engaged parties, by permit- ting them -to be married before some definitely designated priest. There is no reason, moreover, why a parish priest should not delegate several priests at the same time, for instance, all his curates, so that any one of them might validly assist at marriages during his absence. Observe also that the contracting parties need not be determin- ed in the delegation, and that consequently the delegation is valid if given for contingent marriages that may take place on such a day or in such a week. 1. Thus the parish priest cannot delegate another priest in his place before taking possession of his benefice ; nor can he do so, in all probability, so long as he remains publicly and by name excommunicated or suspended : some, how- ever,deny this second point. Cf. VAN DEN ACKER, o. c., p. 58 s. ; WOUTERS, o. c., P- 58 J OJETTI, Jus Pianum, n. 103. 2. The change made here by Pius X is in the two rollowing points : only a determinate priest can be delegated, and the delegation is restricted to the terri- tory of the principal. The S. C. C., 27 July 1908, ad 4, declared that apart from this, no change had been made in the matter of delegation. 3. This kind of delegation was valid under the former discipline, at least when the parties to be married were quite determinate. See the Author's Comtnen- taritts, p. 24. THE FORMALITIES OF THE CONSENT III c/ The delegation must be really given, for a simply presumed or c) positively interpretative delegation will not suffice (') ; moreover, it must have been expressly or tacitly accepted, at least when the delega- tion is given to a priest who is not subject to the authority of him who gives it ( 2 ) ; note also that the delegation does not hold good in the case of error affecting the person of the delegate, or that of the contracting parties ( 5 ). 1. Tacit delegation is considered to be sufficient, that is to say, such as can be deduced from antecedent and really conclusive facts ; for tacit delegation can sufficiently express the positive will of the principal. Cf. the Causa Mediolanen., 15 Feb. 1910, in the Acta Ap. Sedis., II, p. 206 ss. But whether there is tacit dele- gation where a parish priest, for instance, sees another priest officiating at a marriage in his place, and allows him to proceed without protest, must depend upon the particular circumstances of the case. This at least is certain, that the silence of the parish priest does not suffice, where he is under an erroneous impression that the priest in question needs no delegation. Cf. Coll. Brug., t. X, p. 609 s. See also the decree of the S. C. de Sacr., 12 March 1910, ad 6 m , and compare with Coll. Brug., t. XV, p. 316 s. In the last named, following the decree quoted, we have laid it down as a practical rule, that one should abstain from assisting at a marriage without having obtained beforehand an express delegation, excluding all possible doubt. It is better still to obtain a delegation in writing, if one happens to be a stranger in the parish. Cf. Coll. Gand., t. II, p. 193 ; Instructions du Vicariat de Rome, 1. c., p. 614. 2. Cf. Th. Pr. Quartalschr., 1911, p. 127 J WERNZ, o. c., n. 180, note 218. There is not much occasion to trouble oneself about the acceptance, less, indeed, now than formerly, as there must be a positive act on the part of the delegate in assist- ing at the marriage ; and it is almost impossible that this act should not include his tacit acceptance of the delegation. Still such grotesque cases may occasionally arise. Thus the Th. Pr. Quartalschr., 1911, p. 125 s., gives the case of a parish priest who was provided with the required delegation, but, not caring for it, and wrongly persuading himself of its inutility, officiated at the marriage on his own account. See also the Causa Divionen., decided by the S. Rota, 20 Jan. 1911 (A. A. S., Ill, p. 284 ss.), where the question of acceptance is clearly stated, and the following conclusion is arrived at: the affirmative opinion is the more prob- able, but it is not certain,and therefore, if a marriage had been contracted before a priest who was ignorant of the fact of delegation, it could not be pronounced null and dissolved on these grounds ; it would be necessary to have recourse to Rome and to lay the case before the Holy See. Cf. N. R. th., 1911, p. 664 ss. 3. For instance, in the case in which a parish priest, refusing to assist at the marriage of a certain person and to dlegate another priest in his place, should be deceived by the employment of a false name, and so give his permission. Cf. DE BECKER, DeMatr., p. 106, 112 THE FORMALITIES OF THE CONSENT d) and not d/ Finally, the delegation must not have been duly revoked, nor ' 6 ' have lapsed spontaneously. The delegation does not lapse by the death of the principal, or by his resignation or removal, in relation to a matter already begun, that is to say, when the first step has been taken with reference to the cause for which the delegation was given ; moreover, it does not lapse in relation to other mat- ters, provided it was given for all causes, or even for a particular cause with directions to carry it out ('). In addition to this, the general principles concerning delegation ought to be applied here. The Church Thus the Church sometimes supplies what is wanting in the dele- S< suppUes S . a tion and renders the assistance of the delegate valid, notably in the case in which he has received his delegation from a competent authority, though it is invalid owing -to some hidden defect (*}. Such would be the case of a delegate who, apart frorn the hypothesis given above, assisted at a marriage in ignorance of the fact that his principal was dead at the time. Cf. Collat. Brug., t. VII, p. 2673. Delegation The delegation may be given for the universality of causes, or it versalitwf ma y ^ e S P^ C ^ a ^d concern only & particular cause. causes and for The fi rs t hypothesis is verified, when a delegate is charged a. particular Jf . cause. with all causes in general, or at least with a certain class of causes, as, for example, with matrimonial causes entrusted to him collect- ively, though this delegation be restricted either as to time... or as to place > (*). The second hypothesis is that of a delegation re- 1. See on this subject what we have written at considerable length in the Coll. Brug., t. VII, p. 264 ss. In the diocese of Bruges, special provision is made for cases of resignation or of translation : Parochus ad alium locum nominatus vel officio renuntians, ex delegatione nostra jurisdictionem pastoralem in parochia unde transfertur conservabit, donee a successore fuerit monitus quod hie administrationem parochiae in se suscepit . Liber manualis, p. 163. 2. This would be the case of a titulus coloratus together with an error corn- munis, and it would be necessary to apply to the delegate the principle invoked in the case of the parish priest himself, viz., that the Church supplies what is wanting in his qualification. 3. REIFFENSTUEL, o. c., 1. 1, tit. 29, n 31. In order that one may be delegated for the universality of matrimonial causes, it is not sufficient that he should be delegated to assist at all marriages, but it must be a delegation that enables him to deal with all matrimonial causes, i. c.,to examine the engaged parties, to publish the banns and to fulfil all the duties of a parish priest with relation to marriages. Cf. GASPARRI, o. c., n 945 ; Rev. eccl, de Metz, 1910, p. 140 ss. THE FORMALITIES OF THE CONSENT 113 stricted to a single cause, or to a number of clearly specified causes. As regards the faculty of subdelegating : the rule is that the dele- gate possesses it in the first hypothesis, but not in the second, unless he has been delegated by the supreme or Papal authority, for some other reason than in consideration of his personal merits, or has received expressly the faculty of subdelegating. A delegate cannot subdelegate for the universality of causes (*), neither can he subdelegate anyone with power for him to subdelegate in his turn ( J ). Note, a) The faculty of administering the sacraments, given by the Bishop to the curates of a parish, does not carry with it, as a general rule, and especially in Belgium, the delegation required for assisting at marriages.lt would sometimes be a convenience, as we have just said, if parish priests granted this to their curates, restricting it to occasions when the parish priest is absent, and granted it for the universality of matrimonial causes, or with power to subdelegate. This is the advice given by the Bishop of Metz, in the Rev. eccl. de Metz, 1908, p. 302 ; see also LEITNER, Ne temere, p. 47, where he quotes the same disposition for the diocese of Passau and that of Limburg ; cf. Coll. Brug., t. V, p. 310 and t. IV, p. 116 s. ( s ). b/ Formerly, under the Tridentine discipline, certain marriages, especially in the larger towns, were exposed to the danger of nullity owing to frequent changes of domicile or of quasi-domicile. Many engaged parties, having recently removed from one parish to another, went to be married before a parish priest who had not the requisite powers. To obviate this i. Cf. REIFFENSTUEL, 1. c., n. 55 ss. ; GENNARI-BOUDINHON, o. c., aa P., con- sult. 64, n 5. There is no reason why the delegate should not subdelegate habitually. a. See Pastor Bonus, 1907, p. 161. 3. The Holy See does not disapprove of the custom in force in certain places, in accordance with which the parish priest delegates in due form, but once for all, another priest to take his place in assisting at marriages. The S. C. de Sacr., 15 March 1910, ad 6 m , in reply to a question on this point, tacitly granted per- mission to maintain this custom, provided it was not contrary to local legis- lation. See above, under n 64, where we observed that not a few, especially Bishops of North America, have delegated curates or assistants to be present at marriages in their respective parishes or in the whole diocese. 8 114 THE FORMALITIES OF THE CONSENT danger the parish priests or the Ordinaries sometimes had recourse to a general and mutual delegation between all the parish priests of the same town.. The S. C. C., having been consulted with regard to this arrangement, approved of it by a decree dated 9 Nov. 1898, subject to certain precau- tions, a list of which may be found in the Coll. Brug., t. IV, p. 244 ss., together with the text of the decree of 1898 ; compare also t. V, p. 308, and t. XIII, p. 66 with the passages quoted (*). 66. Conditions of 2. Conditions for the valid assistance of the delegate : According "'"fo'pZrt'of to Article VI of the Decree, the delegate must observe the limits the delegate o f his mandate and the rules laid down... for the parish priest and the Ordinary of the place . It is necessary, therefore, that he should not be, publicly and by name, excommunicated or suspend- ed from his office. He must be invited and asked ( 2 ) to assist at the marriage, he must not be influenced to do so by violence or grave fear, and he must, as delegate, ask and receive the consent of the parties, keeping himself strictly within the limits of his mandate. 67. There must C. The assistance of the witnesses. nesses, I* is necessary and sufficient that they should assist as witnesses. For this purpose 1 . it is sufficient that they should assist pas- sively, without any act on their part being required. who must be 2. It is absolutely necessary : ^present a / ^ at ^ e y should be present, not only physically, but also morally. It is not enough for the witness to be present in a merely material manner, e. g., fast asleep, or entirely taken up with other occupations, at the moment when the consent is given. He 1. In conformity with this decree, the Bishop of Bruges, in theCongr. Prosyn. of 1898 (Coll. Brug., t. IV, p. 377), granted to the parish priests of any place in the diocese, in which there are two or more parishes, the faculty (with power to subdelegate) to assist at the marriages of those whose banns they had published after previous inquiry, even if they had in the meantime left their parish, but not their diocese . These provisions are now obsolete ; for, on the one hand, under the new discipline, all parish priests validly assist at all marriages within the limits of their own territory ; and, on the other hand, the diocesan decree affected only the question of validity, as we have shown in the Coll. Brug., t. V, p. 309. 2. It would certainly seem sufficient that the parish priest himself should have been invited and asked ; through him his delegate is also considered to have been invited. THE FORMALITIES OF THE CONSENT 115 must (except in the case of affected ignorance) (') know that the marriage is being contracted in his presence, and must accordingly hear the words of the contracting parties, or perceive the signs which express their mutual consent. In a word, it is necessary and sufficient that the witnesses should be able to attest, from their own knowledge of the fact, that the marriage has duly taken place between the respective parties ( 8 ). This is what is meant by moral presence. Such moral presence is quite consistent with the fact that the witness was present at the ceremony by chance, or as the result of deceit or violence. The exception made in the decree Ne Temere affects only the parish priest and the delegate. b/ It is necessary that the witnesses should be made use of as and must be such ; in other words, as we have said in n 64, the action of the engaged parties should be such as to imply and to make apparent, to some extent at least, their desire to contract marriage in the presence of these persons as witnesses. There is, therefore, a twofold condition to be fulfilled : the one on the part of the witnesses, viz., their moral presence ; and the other on the part of the engaged parties, viz., their intention to take them as witnesses. There is no need of an express invitation ; it is suffi- cient to have the witnesses present as such, so that this second condition is practically included in the former. Thus, all that is requisite is that the attention of the bystanders should be called to what is going on, and that the contracting parties should then, in their presence, give their mutual consent, in such a manner that the witnesses may duly perceive that the marriage is taking place ( s ), without the formality of a previous invitation (*). 1. His assistance would then be valid, even if he had perceived nothing. Coll. Brug., t. XII, p. 470. 2. It follows that the presence of the witnesses may be regarded as valid, even if they were not standing by the side of the contracting parties, as might happen through forgetfulness. 3. Thus, e. g., the sacristan, who assists the parish priest in the celebration of the marriage, is reckoned a competent witness, and, if he has reallypaid attention to the giving of the matrimonial consent, he is a valid witness, even though he has not been formally notified beforehand. It is the same with other persons pre- sent, at least if the bride and bridegroom are conscious of their presence. Cf. Coll. Brug., t. XII. p. 471 s. ; BASSIBEY, Clandtstinite, n 153 ; DESHAYES, o. c., qu. 127 together with the documents given there N. R. Th., XVII, p. 107 ss. 4. The invitation required by the new ecclesiastical law applies only to the case of the parish priest oj- his delegate. Il6 THE FORMALITIES OF THE CONSENT Observe that under the discipline of Pius X, as under that of the Council of Trent, any person capable of the office may be validly employed as a witness, but that, nevertheless, it is unlawful for non-catholics to act as witnesses at a Catholic marriage ('), and it is indecorous to employ women in that capacity (*). 68. Exceptions: II. Exceptions, /o in danger of death; First case. When danger of death is imminent, ana the parish priest or the Ordinary of the place, or a priest delegated by one or the other of them, cannot be had, in order to provide for the relief of conscience, and (if necessary) for the legitimation of offspring, marriage may be validly and lawfully contracted before any priest and two witnesses >. Art. VII, Decree Ne Temere. It is a question here of a valid (and at the same time lawful) marriage before any priest whatever, even before one who is sus- pended and excommunicated by name and deprived of all delega- tion ( s ), and two witnesses. The validity (and lawfulness) of such a marriage is subject to three conditions : 1. It is necessary that one of the contracting parties at least should be in danger of death, no matter from what cause. 2. It is necessary that it should be impossible either to send for the competent priest, i.e., the parish priest or the Ordinary or the priest delegated by them, or to obtain the requisite delegation (*) 1. Instr. of the S. C. de P. P., 9 Dec. i8aa (Collectanea), 110779) ; decree of the C. S. O., 19 Aug. 1891 (Collectanea, no 1855) ; decree of the S. C. de Sacr., la March, ad 4 m , where we read quoad qualitates testium, a decreto Ne temere nihil esse immutatum . 2. The decrees of the diocese of Bruges P. II. tit. II, art. 4, par. 4, say : < If the practice anywhere exists of admitting women as witnesses in the celebration of marriage, let it be abrogated, as unbecoming . 3. It even seems probable that the priest in question would assist validly in a case in which he had not been asked to do so ; it would, however be neces- sary for him to ask the consent of the parties. Cf. VERMEERSCH, Ne tftnere, n o y^bis ARRIBAS, o. c., p. 101 ; compare with WOUTERS, o. c., p. 68. 4. No regard must be had to the delegation wich can be obtained only by telegraph or telephone ; but it would be otherwise if it can be obtained by letter, even by express letter. A probable fear of not having the requisite time for the recourse, is also sufficient. Cf. Instructions du Vicarial de Rome, 1. c., p. 616 s. THE FORMALITIES OF THE CONSENT 117 and that the reason should be the imminent danger of death, or other motive ('). 3. Finally, there must be an urgent necessity for marrying, either for the relief of the conscience of the sick person, or for the legitimation of the offspring. This last condition is fulfilled : a/ as often as the dying person, even apart from antecedent concubinage,' is bound in conscience to marry, e.g., because he cannot otherwise remove the proximate occasion of sin, or because he has seduced a woman under a promise of marriage, or again because a marriage is the only means of sparing or restoring the good name of his accomplice ( J ). b/ When it is a question of rendering [legitimate the birth of a child conceived out of wedlock, or of legitimating a child already born ('). 69. Second case. Marriage can be validly (and lawfully) contracted 2 in the case before the witnesses alone, without the presence f of the competent priest, whenever the engaged parties can neither send for him nor go to him without grave inconvenience, and have already waited for a full month. Explanation. These are the words of the S. C. de Sacr., in the decree of the 12 March 1910, in reply to the first doubt proposed. They contain an authentic interpretation of Article VIII of the Decree Ne Temere , by which this notable privilege, in modification of the general discipline, is granted. The privilege consists in this : i. Thus II Monitore EccL, 1910^.137 s,, reports the case of a priest who could not in conscience send for the competent parish priest or ask his delegation since it was through confession that he had become acquainted with a case of concubinage that nobody knew of. Cf. also Coll. Brug., t. XVI, p. 195 ss. a. We would not venture to say with VERMEERSCH, Nc Temere, n 73, that this obligatory condition is also fulfilled c where the sick man has occasioned his accomplice (or her family) a material loss, which, according to the law of the country, can be more readily repaired if he leaves a widow behind him ; and in the case in which a marriage would put an end to an inveterate family quarrel, or prevent a patrimony from being turned to a bad use . 3. This affects natural illegitimate children, those whom a subsequent mar- riage legitimates of itself; indirectly it affects other bastards who are born neither of an adulterous nor of a sacrilegious union. The priest assisting at the marriage can, in virtue of art. VII, in ordint ad matrimoninm, legitimate these illegitimate children with the exception of the two classes mentioned above. See below, n 369 ; I' Ami du clerge, 1911, p. 713. n8 THE FORMALITIES OF THE CONSENT Nature of this incon- venience. In order to contract marriage validly (and lawfully) without the presence of the priest, it is sufficient l.that there should be a grave inconvenience in sending for, or in going to the competent priest, i. e., the parish priest of the place or his delegate (') ; 2. that this state of things should have already lasted for a month. This twofold condition being fulfilled, the engaged parties can validly (and lawfully) marry without any priest whatever, but in the presence of two witnesses ; the law of clandestinity does not lapse entirely, but only for the part that it is impossible to observe ( 2 ). With regard to the grave incovenience : There is no special enactment as to its nature ; it matters little what its nature may be, or what persons it may affect, whether the engaged parties, or the priest, provided only it be grave ; observe too, that it matters little whether it be general or particular, common to a whole district or not. Up to the present, relying on the wording of art. VIII : Si... in aliqua regione >, many interpreters maintained that the privilege was applicable only in the case of a general impossibility, affecting the greater part of the inhabitants of a country ( s ) ; or, at the least, they thought it necessary to require an impossibility that in 1. Consequently, if, in default of their own parish priest (or of his delegate), the engaged parties could easily go to another parish, and be married there before the parish priest of the place, they could not make use of the privilege. On the other hand they could do so, if such an arrangement were not practicable, even though in their own parish they could go to another priest, but not to their own parish priest or his delegate. Cf. the decree of the S. C. C., 27 July 1908, ad 5 m , and compare with OJETTI, on the Votum to this decree, in the Anal, eccl., 1908, p. 341 s. 2. The assistance of the witnesses is then subject to the general rules describ- ed in n 67, but regard should be had to the recommendation of the S. C. de P. F., in its letter 23 June 1830 : In this case let the parents choose two witnesses, who together with the bride and bridegroom and their relations, should go to the church, and kneeling there recite the usual acts of faith, hope, charity and contrition, that the engaged parties may thus dispose themselves suitably for the marriage. Then let the bride and bridegroom rise and express their mutual matrimonial consent in the presence of the witnesses : after having given thanks to God, let them return to their home. Should it be impossible to go to the church, let the same ceremonies be observed at home . GASPARRI, o. c., p. 970. 3. Cf., among others, DE BECKER, Legislatio Nova, 1908, p. 36 ; STANDAERT, in the Coll. Gand., I, p. 151 ss. ; WOUTERS, o. c., p. 75 ss. THE FORMALITIES OF THE CONSENT Iig some way affected a region, or extended to a whole country, though affecting only a limited number of the inhabitants ('). But at the present time, considering the text and context of the decree of 12 March 1910, it can be held as certain that any grave inconvenience, whatever it may be, even a simply particular and individual inconvenience, is to be taken into account, and is suffi- cient to legalize marriage without a priest. Not only are the terms of the Decree as wide as they can be ; but in addition to this the only word (regio) which caused difficulty and seemed to exclude cases of particular impossibility, is omitted ; and, what is very significant, this omission occurs in the answer to a question that was put for the purpose of ascertaining how this particular term was to be interpreted. Application. It is apparent therefore, that advantage can be taken ot this Application. privilege in Belgium, France, Germany, Holland, and elsewhere, in cases in which it is important that parties should be married before the Church, who cannot be married before the civil officer, and whose parish priest, after the lapse of a month's notice, is unable to assist at their marriage without exposing himself to the severe penal- ties of the Penal Code (art. 267) ( 2 ). 1. We maintained the probability of this interpretation of art. VIII, requiring an impossibility affecting only a limited number of the inhabitants of a region, and not a common or general impossibility, in the Coll. Brug., t. XIII, p. 647 s. and also in the first edition of the present work ; and we returned to the charge, to reply to our critics, in the Coll. Brug., t. XV, p. 107 ss. Our opinion found favour with several authors quoted in the last note of this number 69. They went even further : Card GENNARI, Commento p. 72, and HEINER, Archiv. fur K. Kirchenrecht, 1908, p. 485, taught that at that time already, art. VIII was to be understood in the sense of particular impossibility. BOUDINHON, Canon. Contem.p, 1910. p. 264, was of the opposite opinion. 2. We proposed this application of the privilege, before the decree of the 12 March 1910, in the Coll. Brug., t. XIII, p. 646 ss., and t. XV, p. 106 ss., as well as in our first edition. The text of art. VIII, seemed already to justify this interpretation. We also invoked the analogy between our case and that solved by the Holy See in favour of the island of Curacao : in 1785 the S. C. de P. F. (Collectanea, n 1515) permitted marriage to be contracted there before two witnesses only, for the reason that religious marriage was forbidden there before the civil ceremony, under the penalty of a fine of 500 florins to be paid 120 THE FORMALITIES OF THE CONSENT It would certainly be a grave inconvenience for the priest to officiate at the marriage under these circumstances (') ; and consequently as soon as he refuses to do so, in conformity with the law, the one condition required by the decree of the S. C. de Sacr. comes into operation. It is useless henceforward to object, as one might have done before with some show of reason, that here is no impossibility that is general or that affects the region. We do not say that, if the parties found it impossible to fulfil the civil ceremonies before the religious marriage, this would be a sufficient reason for them to proceed at once, and on their own initiative, to marry before witnesses. The parish priest might, if he thought fit, decide to assist at the marriage either personally or by his delegate, in spite of the law and the legal consequences ; and in that case there would be no reason why the parties should not present themselves before the priest, since they are themselves exempt from any penalty under the provisons of the Code. It is necessary,therefore, that the parties, after having duly invited the competent priest, should assure themselves that he refuses his assistance, and that they should allow a month to elapse before marrying (*). It is in like manner necessary that there should be by the parish priest, while Catholics had to pay 50 florins for the celebration of the civil marriage. A question, however, had already been addressed to the S. C. C. on this subject : c Should provision be made, and how, for the case in which the civil law forbids the parish priest under heavy penalties to assist at a marriage of the faithful before the civil ceremony, when this cannot take place, and, nevertheless, the celebration of the marriage is absolutely necessary for the salvation of souls ? > To this question the Congregation replied, 37 July 1908 : non esse interloquendum (i. e., there is no answer). It was unwilling to solve this doubt directly and explicitly, perhaps, out of consideration for the civil authority. 1. Cf. Coll. Brug., t. XIII, p. 614 and 648. 2. The only person to be invited with a view to his assisting at their marriage, either personally or by his delegate, within the limits of his own territory, is the parish priest (or Ordinary) of the parties. Other parish priests are, indeed, competent to assist validly within their respective territories, but it would be a grave inconvenience to go and sound them on the subject, and besides, they would have the same grave reason for refusing to officiate as their own parish priest. THE FORMALITIES OF THE CONSENT 121 no canonical impediment, in consequence of which the parish priest might have declined to officiate. Such are the wise precautionary measures necessary to prevent the abuses that would not fail to result from marriages of this kind, if people could have recourse to them without first notifying the parish priest or the Ordinary, or if any refusal whatever on the part of the parish priest, even for canonical reasons, were sufficient to justify them. On the other hand this solution is well adapted for avoiding the penalties levelled against those who infringe the law requiring the precedency of civil marriage ; it affords the best remedy for the grave evils consequent on this law, not only in the case of marriages in extremis, in favour of which the penalty is abrogated in case of urgency, but also in many others ('). The interpretation we have just proposed of art. VIII Ne temere, and of the decree of 1910, we do not impose it as being absolutely certain ; however, it does not appear easy to deny its solid proba- bility. Thence, we may, till ampler information, apply it by virtue of the principles further enunciated in n 240 : in case of any doubt regarding the law (dubium juris), as to the existence of an impediment of the ecclesiastical law, the Church sup- plies (*). 1. For further particulars see below, n* 230, 231 and 232, and the Coll. Brug., t. XV. p. 105 s., where will be found, in addition to the cases in which the present solution is applicable, an interpretation of the penal clause, from which it will appear that neither the parish priest who counsels such a course, nor the witnesses who assist in his absence, are liable to any penalty. 2. Here the list of authors sharing the same opinion : OJETTI, who first of all proposed it in his commentary Jus Pianum, no 122, and supported it in the Votum which has been spoken of, as also in his Synopsis, v claudestinitast n 1135 ; VERMEERSCH, De Religiosis-Periodica, IV, no 272 ss.; VAN DEN ACKER, o. c. ( p. 79 ss.; STANDAERT, in Collationes Gandavenses, II, p. 187 ss., where he retracts his former contrary sentence ; DE ARQUER, novissima disciplina sobra Esponsaks y Matrimonio, 2* ed., Barcelona, 1910, n 284, and in Sup- plemento (1911), n 8 ; CHOUPIN, o. c., p. 163 s.; TRBNTA, o. c., n. 98 s. ; Dr KAAS, in Pastor Bonus, 1911 (November), p. in ; and especially WERNZ, Jus Decrctalium, 2 ed. (prepared by Laurentius), IV, p. 300 ; ARRIBAS, o. c., p. in, where, however, he practically advises the recourse to the Holy See, in a particular case. We have not found any others sharing a contradictory 122 Observe that according to the solution of doubt 3, in the decree in question, the privilege may be used even by those who are quite able to obtain the services of a competent priest in the place in which they reside, but who deliberately, and for the purpose of evading the general law, betake themselves to a place where there is not one. There still remains to observe that in case of art. VIII, it is not required that the witnesses should have been invited to assist at the marriage, nor that they request the consent of the con- tracting parties. 70. Marriages by Note. Under the new legislation of Pius X, as under that of the Council proxy. Q f Trent, marriages by proxy, and also by letter, are still permitted (*). In these two cases, one at least of the parties must first invite the assis- tance of the parish priest. Then it is necessary, in the former case, that the proxy should, in the name of his principal, express consent in the presence of the parish priest,who asks it, and of two witnesses (*). In the second case WOUTERS proposes the following procedure : The parish priest... in the presence of the witnesses asks the consent of the party present, and he writes to the other party to ask his (or her) consent in the name of the party present ; the absent party writes in reply that he accepts the con- sent of the other party, and that he gives his own ; finally the parish priest reads this letter in the presence of the party present and of the same witnesses, and the consent of the absent party is accepted by the other ('). opinion, except DE BECKER, in The American Coll. Bulletin, 1911, p. 35 ; Bou- DINHON, Canon, contcmp., 1910, p. 264, and FERRERES, Los Esponsalesy el Matri- monio, 5 a ed., Madrid, 1911, n8o6. WOUTERS. o. c.,3r. This clause has been understood differently by different authors (cf. Comment., p. 42 ss.) ; but the S. C. C. inter- preted it from the first in a restricted sense, and applied it only to the German Empire, and, indeed, only to those born in Germany and marrying there. The following doubt was proposed to the S. C. C. : Does art. XI, 2... include the Constitution Provida of Pope Pius X alone, or does it likewise include the Benedictine Constitution and other indults of this kind concerning the impedi- ment of clandestinity ? . It replied, i Feb. 1908, ad 4^ : It includes only the Constitution Provida, and no other decrees whatever : after consulting His Holiness, and ad mentem . THE FORMALITIES OF THE CONSENT 135 other in favour of the Kingdom of Hungary ('), to the effect that mixed marriages contracted there are not subject to the Decree Ne Temere ('). Observe, i that this exception does not apply to betrothment, but to marriages only ; 2 that according to the most probable opi- nion, it is to be restricted to mixed marriages in the strict sense only, that it to say, to marriages between Catholics and baptized non-catholics, not between Catholics and infidels. These last are not included in the Constitution Provida ( s ), the provisions of which, apart from explicit restrictions, are preserved and sanctioned in the exception, as is clear from the answers given. 3 Observe that the non-catholic party is to be understood in the sense of the Decree Ne Temere, and not in the sense received under the Tridentine discipline. This is authoritatively taught by the S. C. C. in its decree of i Feb. 1908, ad 5 (*), and with i. The privilege of exemption was extended to the Kingdom of Hungary by the S. C. de Sacr., 27 Feb, 1909, having regard to the peculiar circumstances which are set forth in Archiv f. k. Kirclicnr., 1908, p. 763 s. See the text of the decree in the Coll. Brug., t. XIV, p. 561 s., as well as p. 490, where is given the decree of the S. C. C., of 8 July 1908, refusing an extension of the same privilege to the Russian Empire and to the part of Poland subject to Russia. Note that, according to the express reply of the secretary of the S. C. de Sacr., of the 5 March following, under the name of the Kingdom of Hungary are comprised not only Hungary proper together with Transsylvania, but also the countries annexed thereto, that is to say all the lands appertaining to the Crown of Saint Stephen, consequently Croatia, Slavonia, the city of Fiume, and so all places at present subject to the Apostolic King (Circular letter to the Bishop of Hungary, 18 March 1909). Cf. LEITNER, Ne Temere, p. 88 s. Observe also, according to the text of the decree of 27 Feb. 1909, that all mixed marriages contracted up to that time in the Kingdom of Hungary, after the publication of the Decree Ne Temere, without the prescribed form, are validated in radice. 2. For these marriages clandestinity does not constitute a diriment impediment, but it constitutes an impedient impediment. Cf. Constit. Provida, in LEITNBR, Konst. Provida.. and the Collat. Brug., t. XI, p. 285 ss. 3. See the text of the Constitution and its interpretation 1. c. 4. To the doubt proposed : c Must Catholics in the German Empire, who have gone over to heresy or schism, or who, after being converted to the Catholic Faith, have subsequently renounced it, even in their youth or infancy, observe the conditions prescribed by the decree Ne Temere, in order to contract valid marriage with a Catholic ? , the S. C. C. gave an affirmative answer. Cf. PRUMMER, in Theol. P. Quartalschr., 1912, p.ioS s., where, in the solution of a practical case, he notes the different application of theConstitution Provida, 136 THE FORMALITIES OF THE CONSENT reason, since it is important to give to the word non-catholic the same acceptation here that it has in the Decree Ne Temere. 4 The exception must be interpreted strictly. Thus, in the first place it holds good only for marriages contracted in Germany and in Hungary between parties who are both natives ofGemany, or both nati- ves of Hungary (') ; in the second place, the derogation made for Germany must be taken and applied independently of that made for the Kingdom of Hungary, and vice versa (*). Moreover, this two-fold derogation is regarded as a temporary concesssion and as a provisional indult (*). before, and after the decree of I Feb. 1908, (wich must be brought into practice from Easter following thereupon) in particular as regards the mar- riage of a Catholic with a non-catholic, baptized as a Catholic but before the age of seven brought up in a non-catholic sect. A marriage of this kind under the Provida discipline is valid, if it was contracted before that date, since the afore- said decree has no retrospective force, but it is invalid if contracted at a subse- quent date. i. In answer to the following doubt : Must the exception, introduced for Germany by the Constitution Provida, be considered as purely local, or also as personal ? , the S. C. C., 28 March 1908, ad3 m , declared : The exception holds good only for those who, being natives of Germany, contract marriage there : after consultation with His Holiness . The decree ofay Feb. 1909 adds that this declaration is to be applied in the case of Hungary also. Persons born in Alsace and Lorraine, before the annexation of these provinces to the Empire are consi- dered as being born in Germany. Cf. BOCKENHOFF, Nc Temere, 1. c., p. 199. Moreover, the S. C. de Sacr., 15 June 1909, ad i m , interpreted the answer of the S.C.C., given 28 March 1908, in this sense : the parties must both be born in Germany, or both in the kingdom of Hungary . See the Coll. Brug., t. XIV, p. 489 ss., where will be found an account of the state of the controversy before this authoritative interpretation. 2. Decree of the S. C. de Sacr., 18 June 1909, ad 2 m et 3, 1. c. Whence it follows that engaged parties both born in Germany, cannot validly contract a clandestine mixed marriage in Hungary, and vice versa. Moreover, if one of the contracting parties is born in Germany and the other in Hungary, they cannot contract a valid mixed clandestine marriage either in Germany or in Hungary- 3. In reality the intention of the Holy See in granting the above mentioned derogation in favour of Germany, by the decree of I Feb. 1908, (though only divulged later), was to write to the Bishops of Germany and request them to consider well the grave inconveniences resulting from mixed marriages ; and then to petition the Holy See, with a view to obtaining at an opportune time the abrogation of the Constitution Provida . In like manner, in the decree extend- ing the privilege to Hungary, the concession is said to be granted for the present, and the Hungarian Bishops are warned that it is their duty fittingly to dispose THE FORMALITIES OF THE CONSENT 137 80. Conclusion. Apart from the exception granted in the case of the Conclusion. Empire of Germany and the Kingdom of Hungary, all marriages contracted between persons of whom one at least is a Latin Catholic, and such marriages only, are subject to the new law of clandestinely. 81. Note. The extent of the law of clandestinity under the Tridentine legis- The extent of lation is given at length in the Coll. Brug., t. XII, p. 462 s. and pp. 568- l^J 580. We will content ourselves with recapitulating here the principal inno- different. vations introduced in this matter by the new legislation : a) Henceforth there are no longer countries that are not subject to the law. Formerly there were several, in which the chapter Tametsi had not been promulgated, such as England, Denmark and Norway. These countries, in which clandestine marriages were formerly valid, even between Catholics, are for the future, subject to the same formalities as the rest, both for the validity of the contract and for its licitness. b) The persons exempt, i. e., non-catholics and Oriental Catholics, are exempt everywhere, and not in certain countries only. In Belgium, where heretofore, clandestine marriages between persons baptized in heresy were invalid, they are now valid, when both the man and the woman are baptized heretics. c) Heretofore, as we have said, except in the island of Malta, the principle of communication of exemption was in force, so that the exemption of one of the contracting parties sufficed to withdraw the other from the law of clandestinity. Thus marriages between Catholic and infidel, or between Catholic and non-catholic, were of themselves valid, as often as the law of the Council, as being personal and local, exempted the non-catholic party. On the other hand, under the new discipline, this principle is abrogated, and henceforth the party subject to the law communicates his obligation to the other, so that, except in Germany and Hungary, marriages of this kind are subject to the law of clandestinity. With regard to the law of the Council of Trent as being local and personal, the principles that determine its import are clearly set forth and practically applied in the Causa S. Christophori de Habana, decided by the S. Rota, 15 July 1910. Consult Ada Ap. Sedis, 1910, t. II, p. 874 ss. ('). the faithful to receive, later with filial obedience and docility, the decisions that the Apostolic See may hereafter consider opportune for the purpose of introducing unity in matrimonial legislation >. Canon. Contemp., 1909, p. 581 s. i. In this same Causa was also discussed the impossibility of observing the law of the Council of Trent. The S. Tribunal examined the question to ascertain what kind of impossibility sufficed to constitute a ground of excuse, and to what extent. 138 THE FORMALITIES OF THE CONSENT 32 Scholion I. Sanctions. Sanctions Article X of the Decree Ne Tenter e provides by way of sanction, eressors ' I0 tnat P ar ^ p r ^sts who violate the prescriptions of the decree as set forth above, shall be punished by their Ordinary in proportion to their fault; i. e. more severely for the transgression of a condition affecting validity, than for one that affects merely the licitness of the marriage. 2 Moreover, if they have assisted at a marriage contrary to the prescrip- tions of 2 and 3, art. V, that is tho say, if, without the permission of the particular parish priest, and otherwise than in a case of grave necessity, they have joined in marriage those who were not their own parishioners, who, in other words, had neither a domicile nor a month's residence in their parish, they must give up to the particular parish priest of the contracting parties (') the stole fees received on that occasion, viz. the fees due to the parish priest by right of stole, but not the offering received as a stipend for the celebration of mass (*). Under the Tridentine discipline it was ordained a/ that the parish priest or any other priest who should assist at a marriage without the requi- red number of witnesses, and the witnesses who should assist thereat without the parish priest or other priest, as well as the contracting parties themselves, should be severely punished, at the will of the Ordinary >. b) That if a parish priest, or any other priest, whether regular or secular, even when claiming privilege or immemorial custom, should dare to effect the union or bless the marriage of parties belonging to another parish, without the permission of their particular parish priest, he should be ipso facto suspended, and should so remain till such time as he should be absolved by the Ordinary of the parish priest to whom it apper- tained to assist at the marriage and bless it ( 5 ). 1. In the case in which the parties have a domicile on the one side and a month's residence on the other, and consequently two particular parish priests, the decree does not determine to which of the two pastors restitution is to be made. The determining of this would be a suitable matter for the diocesan decrees; but pending a settlement of the point, it seems equitable to divide such fees equally between the two claimants. SCHAUB, o. c., p. 16 (compare with p. 14), quotes the diocesan decrees of Germany regulating this matter: it is said that restitution should be made to the parish priest of the place in which the bride has her domicile. 2. The text of art. X does not extend this provision to parish priests of bride- grooms who unduly assist in the place of parish priests of brides, but the Bishop could do so. He would have just grounds for dealing in like manner with those who, without being the particular parish priests of the contracting parties, and without preliminary permission, bless marriages in case of urgent necessity. The sanction of the Decree does not provide for this case. 3. See the interpretation in the Coll. Brug., t. VI, p. 368 ss. THE FORMALITIES OF THE CONSENT 139 These measures are regarded as abrogated by the new Decree ('). This in fact professes from the beginning to introduce a new and complete law for regulating the discipline of betrothment and marriage, and for rendering their celebration easy, certain and regular . It is manifest that the sanction of the law of clandestinity is a part of this whole, and consequently it is now necessary to take into account only the penal provisions contained in the decree itself. Scholion II. Civil formalities. 83, According to the Belgian ( 2 ) law marriage is a solemn contract, that is to Provisions of say, a contract that must be made in the forms required by law ; certain ^ Belgium. formalities are prescribed for its very existence, others for its validity. These provisions are the following : 1. According to art. 8 of the law of 26 Dec. 1891 : Le mariage sera celebre publiquement devant 1'officier de 1'etat civil ( 3 ) de la commune (*), et dans la commune oil 1'un des epoux aura son domicile ou sa residence a la date de la publication... et, en cas de dispense de publication, a la date de la celebration > (art. 165 du Code civil). 2. According to art. 75 : Le jour designe par les parties, apres les delais de publications, 1'officier de 1'etat civil, dans la maison commune, en presence de deux te"moins ( s ), parents ou non parents... recevra de chaque 1. This is the opinion of GENNARI, o. c., p. 53 ; of DE BECKER, Ne Temere, p. 44 ; of VERMEERSCH, Ne Temere, n. 85 ; of CHOUPIN, Ne Temere, p. 76. HARING, o. c., p. 24, note 4, is undecided ; BOUDINHON, o. c., p. 93, was at first of a contrary opinion, but has adopted the above view in the Canon. Cont., 1908, P- 354 s. 2. For the law existing in England, Germany etc., see at the end of this work. 3. The civil officer has jurisdiction only in the territory of the commune of which he is the civil officer ; outside of this territory he is not competent to proceed to the celebration of a marriage, even when he is the civil officer of both the engaged parties. 4. The civil officer assisting at the marriage must not only be the civil officer of the commune in which the marriage takes place ; he must also be the particu- lar civil officer of one of the parties, that is to say, it is necessary that one of the parties should have a domicile or a six months' residence in the commune. Cf. PLANIOL, o. c., I, n. 852 s., who observes that in France, in virtue of the law of 21 June 1907, a month's residence is sufficient. 5. Law of 7 Jan. 1908, which reduced by one half the number of witnesses required. On the same day was adopted a law modifying the provisions of art. 37, and permitting women to act as witnesses for the future. This is the actual text of art. 37 : Les temoins produits, aux actcs de 1'etat civil devront tre ages de 21 ans au moins, parents ou autres, et ils seront choisis par les personnes inte'res- sees. Le mari et la femme ne pourront etre temoins dans le meme acte >. Cf. 140 THE FORMALITIES OF THE CONSENT partie, 1'une apres 1'autre, la declaration qu'elles veulent se prendre pour mari et femme : il prononcera, au nom de la loi, qu'elles sont unies par le manage (') et il en dressera acte sur-le-champ >. There are in the legal provisions concerning the celebration of marriage three distinct elements : that which requires the presence of a civil officer ; that which demands the presence of the competent officer ; and that which requires the publicity of the marriage. The presence of a civil officer is required under pain of the act being held as non-existent ; the absence of the competent officer and the want of publicity entail the nullity of the marriage. See n 243. The want of publicity properly constitutes, before the Belgian civil law, the impediment of clandestinity \ For the better understanding of its scope, it is important to observe in the first place that this publicity, in the legal sense, comprises various elements : the antenuptial publications and the circumstances of the marriage itself, such as the publicity of the place in which the contract is made (maison cotnmunale),the opening of the doors, the presence of the witnesses, the registration and so forth. Observe in the second place that a marriage is not invariably annulled on the ground of clandestinity when all the conditions of publicity have not been combined, even at the moment of its celebration. The law allows the judge a certain latitude and power to decide in each case, according to the circumstances, whether the contract has had a sufficient publicity or not. In particular the judge will annul the marriage if the want of publicity has been intentional, or, again, if the identity of the contracting parties has been concealed. In this connection a striking decision of the Court of Appeal of Ghent, of the 17 Nov.igiofPastcr .,i9ii,II,p.io s.) may be consulted, and compared with the decision of the tribunal of the same town on the same question, 7 July 1909 (Faster., 1910, III, p. 64 s.). See also PLANIOL, o. c., I, n 08 1018 s. ; VAN HEMEL, o. c., p. 24 s. (*). Coll. Brug., t. XIII, p. 386 ss. The same provision is in force in France since 1897, but four witnesses are still required there. 1. PLANIOL, o.c., I, n. 862, remarks that the civil officer does not take the part of a simple witness to the consent given : c c'est lui qui les (epoux) declare unis devant la loi . Cf. BALOG, o. c., p. 77 s. ; in the same place it is noted that in the new German Code the duty of the civil officer is reduced to that of a mere qualified witness, and that his declaration has no legal effect, but is simply ceremonial. Cf. also SEHLING, in the Neue kirchl. Zeitschr., 1908, p. 452. 2. For the provisions of the civil law in other legislations : see LEHR, o. c. With regard to Belgians who marry abroad and foreigners who marry in Bel- gium : according to art.i7o of the civil code (Law of ao May 1863) and the Hague Convention of 12 June 1902 (sanctioned by the Belgian law 01 27 June 1904), is ap- plied.for the formalities of the contract, the principle : locus regit actum : that is to THE FORMALITIES OF THE CONSENT 14! Scholion III. The ancient law. 1. Among the Hebrews to the Schidduchin or betrothment there sue- The ancient ceeded the Kidduchin or nuptials, which were accompanied with diverse " ebratc law " symbolical ceremonies and festivities ; sexual intercourse does not appear to have been part of the essence of the contract. See above, n 60 ; the Realencykl., t. V, p. 741-743 ; MUSCETTULA, o. c., p. 229-239. 2. In the Roman law there were two kinds oijustae nuptiae ('). Marriage The ancient cum manu (Manusehe), with delivery of the bride into the hands of the oman taw ' say, that csera reconnu partout (in all countries accepting the Convention) comme valable, quant a la forme, le mariage celebre selon la loi du pays ou il a eu lieu . Cf. BOUSCHOLTB, o. c., p. io s. Observe a/ that the marriage may be celebrated abroad before the diplomatic or consular agent of the country to which the contracting parties belong, and according to the formalities required by the law of their native country. See ORESCU, o. c., pp. 369-383 ; Archiv. f. k. Kirchenr., 1906, pp. 465-485. Observe b/ that according to the new text of art. 170 of the civil code, introduced by the law of 20 May 1883, the validity of the marriage does not certainly depend on the antenuptial publications (the original text of art. 170 seemed to say the contrary); moreover, that for validity there is no need of publicity, such as we have just seen is required for marriages celebrated in Belgium ; for, supposing the observation of the formalities of the place in which the marriage is celebrated, there is required for validity nothing more than the observance of the provisions, under pain of nullity, inserted in the preceding chapter of the Code, among which provisions there occurs no prescription as to the publicity of marriage (art. 165 and 191). Cf. in this sense the decision of the Court of Brussels, 30 nov. 1907, in Pasicrisie, 1908, II, p. 44 ss. with note ; Revue de Droit Beige, in the Supplement to Pasicrisie,, 1910, p. 419 ss. On the other hand there is the decision of the Court of Ghent, 17 Nov. 1910 (Pasicrisie, 1911, II, p. io ss.), insisting that the provision of art.igi, concerning the publicity of marriage, is a general provision, and that it accordingly affects marriages taking place not only in Belgium, but elsewhere also. i. Besides the justae nuptiae, the Roman law recognised three kinds of inferior marriage : matrimonium juris gentium or injustum, for foreigners ; concubinage or marriage between a freeman and his freedwoman ; and cohabitation or contubernium, i. e. marriage between slaves, or between freemen and slaves. Concubinage in particular was, at least under the empire, legally recognised, and constituted a marriage of an Inferior class, in which the woman bad not the title of wife but of concubine, and did not share her husband's rank, almost as in morganatic marriages. Cf. DARENBERG ET SAGLIO, o. c., V Concubinatus, I s , p. 1436 ; VANTROYS, o. c., pp. 22-27 > PBYTEL, o, c., p. 42 ss., and also p. 47 and 53-54, where he observes that the word concubine was formerly part of the ecclesiastical vocabulary, and denoted a lawful wife, but one of an inferior condition. Cf. CHARDON, o. c., p. 379 ss. 142 THE FORMALITIES OF THE CONSENT husband ; and marriage sine manu, in which the wife preserved her rights or remained in the power of her father ('). In this latter case the law specified no particular formalities for the giving of the consent( 2 ); in the former there was a distinction between marriage by confarreation, by coemption, and by use. Only the first of these was subject to legal formalities, while for marriage by coemption ( 3 ) and by use (*) private consent was sufficient. Cf. DARENBERG EX SAGLIO, o.c., V Manus. The legal formalities of marriage by confarreation (reserved to the patri- cian families) consisted in this, that the marriage was contracted before the pontifex maximus and the flamen dialis, in the presence of ten witness- es ; before its celebration the auspices were consulted, and a sacrifice was offered to the gods > (*). These were the requirements of the Roman law. In course of time various formalities were, as a matter of fact, introduced by custom, and generally observed, in addition to the requirements of the law and the legal sanction, even in the case of marriages sine manu ( 6 ). Most of these were borrowed from the legal prescriptions for marriage by confarreation, but with the omission of the presence of the flamen and pontifex ( 7 ). Cf. PICHON, Hommeset chosesde I' Ancienne Rome, Paris, 1911, p. 21 ss. 1. Cf. P. WILLEMS, Droit Romain, p. 60 s. ; DESFORGES, o. c., p. 27-37 he shows how and for what cause the primitive form of marriage (Manusehe) yielded to the marriage sine manu, which from the third century was, so to speak, the only one in force. Cf. DARENBERG ET SAGLIO, o. c., V Manus, III 2 , p. 1586 s. 2. The deductio uxoris in domum mariti was not an essential formality in the celebration of marriage, but the giving of consent was, as we have shown above. See n 59 and the passages quoted. 3. It was so called because it comprised, among other ceremonies, a symboli- cal sale before the judge and five witnesses. This ceremony was not a part of the contract itself, but symbolized the transmission of authority from the hands of the father of the family to those of the husband. See above n 52. 4. The marriage by use was no other than the marriage sine manu passing spontaneously to the state of marriage in manu,in virtue of cohabitation prolong- ed fora year and uninterrupted by an absence of three nights. 5. Cf. GLASSON, o. c., p. 161, who adds : Marriage thus contracted was called confarreatio, because in the celebration of it,the husband and wife were required to break and eat together a cake made of meal (pants farreus) . 6. These ceremonies were omitted in the marriages of widows. Cf. DAREN- BERG ET SAGLIO, o. c., V Matrimonium, III 2 , p. 1654 s. 7. DARENBERG ET SAGLIO, o. c., V Matrimonium, III*, p. 1654 ss. GLASSON, o. c., p.i68, gives a description of it. It is interesting to note that the bride made modifications in her dress previously to the marriage. Some time before the marriage, the bride laid aside the dress worn by girls (toga praetexta) and offered it together with her toys to the gods, more especially to the lares of her father's THE FORMALITIES OF THE CONSENT 143 3. In the ancient German law we meet with but few legal prescriptions The ancient relating to the celebration of marriage, but various solemnities were in use ^ erman l * w - in different parts. We will confine ourselves to saying, with Friedberg ('), that to the betrothment succeeded the nuptials, contracted publicly in the presence of the parents and relations, followed by rejoicings and festivities, and ending with the surrender of the bride by her father or guardian into the hands of her husband. Often also the ministrations of a Fiirsprecher or bridesman were em- ployed, whose business it was to regulate the wedding and everything connected with it (*). 4. For the ancient ecclesiastical formalities, see above, n 63 (with note) and also below, n 122. Scholion IV. Proof of marriage . 1 . Before the forum of the Church. Manner of Proof of marriage may be established in anyway whatever : but the establishing ordinary method, for marriages contracted before the Church, is by the r iaL e tn*the~ entry in the register (see below n 338), or by the evidence of the parish forum of the priest or of the witnesses. As regards marriages celebrated validly, in the past, without the form prescribed by the Council of Trent, or at the present time, without that established by Pius X, the evidence of the parties them- selves may, under certain conditions, be admitted, as is the case also for marriages celebrated in due form, the proof of which by means of the house. She was clothed with a tunica recta, round her waist she wore a woollen girdle (cingulum), and on her head a red veil (flammeum) which took the place of the fillet worn by girls. Her hair was dressed in a special manner, held by a symbolical pin called hasta celibaris, and adorned with a wreath of flowers. For the dcductio in domum, the bride was taken with a show of force from her mother's arms, and conducted to her husband's home,escorted by a great array of musicians, singers, torch-bearers and guests. On arriving there, the newly wedded wife anointed the door of her new home with oil and grease, then she crossed the threshold and was brought into the atrium, where her husband offered her water and fire, to show theat she was to take part in his life and in his family worship . 1. O. c., p. 24. 2. SOHM, Das Recht, p. 65 s., notes different symbolical usages formerly prevalent among the Germans. Thus the bridegroom, as a sign of power and authority, placed his foot on that of the bride ; from this there came later the custom of giving the shoe (Pantoffelj. So again the tendering of the hat and mantle, Hut und Mantel : the hat as a token of the precedence of the husband, the mantle as a sign of the protection that he owes to his wife. See also ROCHE, o. c., p. 77 and p. 74. 144 THB FORMALITIES OF THE CONSENT witnesses it is impossible or very difficult to obtain, as for example, when the marriage took place abroad. In such cases : a/ if one of the parties denies, and the other affirms, it is for the latter to prove his statement (') ; b/ if they both deny on oath, they cannot be considered as married ; c/ if both affirm on oath that they are married, their assertion must, as a rule, be accepted, unless both agree in affirming that they were secretly mar- ried, when another and a public marriage, involving one of the parties, has subsequently taken place : in that case preference must be given to the public marriage, as long as no legal evidence is produced in support of the secret marriage or against the validity of the public marriage (*). Possession of state may also be invoked as a proof ; just as sexual inter- course following on betrothment affords a presumption of marriage, a pre- sumption that was formerly juris el dejure (admitting no proof to the con- trary). 2. Before the civil forum. in the civil Article 194 of the Code Napoleon ordains in general : Nul ne peut forum. reclamer le titre d'epoux et les effets civils du mariage, s'il ne presente un acte de celebration inscrit sur le registre de 1'etat civil. This is, as a gener- al rule, the only proof of marriage admitted to secure for a marriage its civil effects ( 3 ). Exceptions. \. When there is c possession of state , that is to say, the position of a man and woman living as husband and wife, to the public knowledge, and reputed as married : a/ If 1'acte de celebration du mariage devant 1'officier de I'e'tat civil est 1. Ch. 28, X, IV, i. Ch. i, X. IV, 3, however, seems to be in disagreement with the former ; see the explanation proposed by WERNZ, o. c., IV., n 187, and GASPARRI, o. c., II, n 878. 2. This mode of action, especially as concerns the hypothesis given under c/, has lately been approved by the S. C. de Sacr. in its decree Venetiarum, dated 6 March 1911, relating to marriages contracted in America, c the written attestation or any other legal proof of which it is impossible or very difficult to obtain without long research, at a time when circumstances do not admit of delay ; the S. C. replies : If the legal proof of the marriage, whether in writ- ing, or through witnesses, is impossible, in spite of the efforts made, let the parties be required to confirm their statements on oath, and so let them be regarded as lawfully married, and their children as legitimate. Nevertheless, those cases must be excepted, in which the law requires a full proof, as for example, where another marriage is in question (such as a subsequent marriage lawfully established), or again, where it is a case of receiving orders (at the instance of one born of a union imperfectly proved) . 3. For the proofs that the law admits relatively to other effects, see PLANIOL, o, c., i, n 866. THE CONDITIONAL CONSENT 145 represente, les epoux sont respectivement non recevables a demander la nullite de 1'acte ('), because, e. g., the act was not signed by them, and the statement that they did not know how to sign their names was omit- ted. Art. 196. b/ In the case of the children, when the parties whose marriage has not been established by a civil act are both deceased, la legitimite des enfants ne peut etre contestee sous le seul prdtexte du defaut de representation de 1'acte de celebration, toutes les fois que cette legitimite est prouvee par une possession d'etat qui n'est pas contredite par 1'acte de naissance . Art. 197. On the other hand the possession of state > can never be invoked by the parties themselves as a proof of their marriage. Art. 195. 2. Lorsque la preuve d'une celebration legale du mariage se trouve ac- quise par le resultat d'une procedure criminelle, 1'inscription du jugement sur les registres de 1'etat civil assure au mariage, a compter du jour de sa celebration, tous les effets civils, tant a 1'egard des epoux qu'a 1'egard des enfants issus de ce mariage . Art. 198. See THIRY, o. c., n. 310. 3. The text of art. 194 itself excepts the case spoken of in art. 46 : Lorsqu'il n'aura pas existe de registres, ou qu'ils seront perdus (*), la preu- ve en sera recue tant par titre que par temoins > ( 5 ). ARTICLE 3. Conditional consent. I. Meaning. OK i Conditional consent is consent given under a voiding or sus- Meaning of pensive condition. The fulfilment of a voiding condition puts an end to the obliga- tion contracted ; thus I may make a contract with some one, but under the condition that, if my father dies, I cancel the contract ; in this case the contract is there, but on the fulfilment of the con- dition, the obligation assumed under it ceases to exist. On the 1. The possession of state can therefore supply, to a certain extent, for the irregularity of the document attesting the marriage, but not for the defects that vitiate the celebration of the marriage. THIRY, o. c., no 300. 2. It scarcely ever happens nowadays that the registers are lost, as a duplicate of them is kept at the office of the Tribunal of First Instance. 3. In such a case a marriage might be proved, among other ways, by papers left by the deceased father and mother J registers kept by parish priests might, in like manner, be admitted by the judge as proof of marriage. 146 THE CONDITIONAL CONSENT that issus- other hand, the fulfilment of a suspensive condition causes the obli- penstve. g a ^ on to be contracted. This latter condition is the only one that renders the contract truly conditional. Now a consent of this kind (we shall not speak here ot the voiding condition) (') supposes : a/ that the condition has been imposed actually, and not merely interpretatively. Thus there is no conditional consent, if one con- tracts marriage in such dispositions as, if he had known such or such a thing, of which he was ignorant at the time, he would not have bound himself. In other words, one has to consider not what he would have done, but what in reality he did : there is no need to take into consideration that condition what he \vould have imposed, if he had thought of it (*). b/ That the condition concerns a future and contingent event. Conditions that regard either something that is already past, or something future, but already certain, do not suspend the consent, but a contract made under such a condition, is straight- way valid or invalid, according to the fulfilment or certain non- fulfilment of the condition, at the moment when the consent is given. Nevertheless if, in certain cases, the fact of the fulfilment is not known, the validity of the consent is doubtful. c/ That the condition be an integral part of the contract itself, in such manner that the consent is attached thereto and held in sus- pense, and the condition is, as they say, part of the bargain. It is, in fact, necessary to distinguish conditional consent from modal consent, which adds to the contract only an acces- sory and supervenient clause, that is not an integral part of the I. The indissolubility of marriage is incompatible with a voiding condition, with the exception of marriage ratum non consummatum, which is dissolved by solemn vows and papal dispensation. This is the only exception admitted in the case of Christian marriage. a. Such might be the case of an antecedent error, e. g., as to the quality of the person married : if the other party had known that it was wanting, he would not have contracted the marriage. Here there is no conditional consent, and on this head the marriage is certainly not invalid. Nevertheless, it may sometimes be so for another reason, e. g., if the error concerns a quality that is essential in the eyes of the other party. We will explain our meaning later, when speaking of the impediment of error, n 360. THE CONDITIONAL CONSENT 47 agreement, and so cannot suspend or limit the consent ('). 2. There are several kinds of conditions. Some of which are repugnant and others not repugnant to the substance of the matrimonial contract ; some immoral, leading to sin, and others honest ; some possible, and others impossible. Such are the prin- cipal categories. 86. II. Principles. Principles: 1 If the sus- A. Marriage contracted under a suspensive condition that is pensive condi- repugnant to the substance of the matrimonial contract is altoge- re f,u^ a ^ t t ther invalid by the law of nature itself. the substance This is evident, since such a consent involves a contradiction ; a render/it one cannot pull down with the one hand what one builds up with *^alid. the other, nor consent and refuse in the same breath (*). B. As regards matrimonial consent given under a suspensive 2 Effect of a, condition that is not repugnant to the substance of marriage : 1. If the condition is possible and honest. repugnant to , rn, ..i f ,-, ,1 the substance a/ I he marriage, in either lorum, remains in suspense until the O f marriage : fulfilment of the condition : before that, it has no real existence( 3 ). a.) possible ^ " and honest; and the consent may still be validly withdrawn ; nevertheless, such withdrawal of consent would be illicit, since there is an obligation to wait for the fulfilment of the condition. b/ If the condition fails to be realized, the marriage contract fails too (*). 1. Neither must we confound the conditional contract with the unnamed contract facio ut facias . In the former there is no obligation to fulfil the con- dition, but only to execute the contract, if the condition is fulfilled J in the latter, on the other hand, there is a double obligation. Thus, if John says to Mary : I will marry you, if you give me 40 , this contract, if conditional, carries with it for John the obligation to marry if the money is paid to him, but it puts no obligation on Mary to give him the money ; on the other hand, if it is the contract facio ut facias that has been made in these terms, then John is obliged to marry, when once the money has been paid, and Mary on her part is obliged to hand over the 40, provided the marriage follows. 2. This is confirmed by ch. 7, X, IV, 5 : If there should be inserted in the contract conditions contrary to the essence of marriage, e. g. f if the one should say to the other : 'I contract marriage with you on condition that you avoid having children'..., the matrimonial contract, however favourable it may be, is without effect . 3. C. 5 ,X,IV, 5 . 4. See the causa Camtracen., decided by the Tribunal of the Rota. The diocesan 148 THE CONDITIONAL CONSENT c/ On the other hand, once the condition is fulfilled, the contract spontaneously becomes valid, and, apart from any legal provision to the contrary, there is no need to renew the consent. That the consent need not, of itself, be renewed, results from the very nature of the conditional contract ; and the documents quoted by SANTI, o. c.. n ii et seqq., and by GASPARRI, o. c., n 84g seq., according to Fagnanus, also show it. This holds good not only in marriages exempt from the formalities prescribed by the Council of Trent or by Pius X, but also in those that are subject to them ; even in this hypothesis, provided, of course, that the formalities have been observed, the marriage becomes valid as soon as the condition is fulfilled, whether it was made known to the parish priest and the witnesses or not. There is no need to renew the consent in the prescribed form, or to notify the parish priest and the witnesses of the fulfilment of the condition ; it is sufficient, where the placing of the condition was public, that the fulfilment of it should be so likewise, so that the validity of the marriage may be duly proved. The reason for this is that the marriage is contracted at the moment when the conditional consent is given in the presence of the parish priest and the witnesses, and not when the condition is fulfilled. This is why, although conditional marriage is truly valid and produces its effects only at the moment of fulfilment, nevertheless, by a legal fiction, it is looked upon as contracted from the time consent is given. What holds good for the fulfilment of the condition and its efficacy with respect to conditional marriage, holds good also for any act that implies the formal or tacit intention of the parties to render the former consent absolute ; and in like manner there is no neccessity for the said intention to be expressed in the form of the Decree Ne Temere, but it is enough, according to what we have said above, that, for the legitimate proof of the marriage, there should be public knowledge of the intention ('). tribunal of Cambrai had declared null a conditional marriage, in which the condition concerned the absence of bodily odour. Originally, on the first hearing, the S. Rota declared that the nullity was not established ; but on a second and on a third hearing, respectively on August the nth 1910 and on June the 23 rd 1911, it confirmed the decision of the tribunal of Cambrai. See Ada Ap. S., II, p. 961 s., and III, p. 497 ss. z. This intention is presumed in law whenever the conditional contract is THE CONDITIONAL CONSENT 149 We have said : apart from any legal provision to the contrary. A provision of this kind really exists in the matter of those who, being bound by a diriment impediment, contract marriage under the condition : if the Pope grant a dispensation ; it is necessary for them, after having obtained a dispensation, to renew their consent. This provision ought not to be extended in the sense that some give to it, as if marriage, contracted under the said condition, were altogether null in law and reputed as non-existent (cf. n 21). Its import is this : the dispensation, if given, will not generally be granted except with the clause usual in the case of a dispensation in matrimonio contracto, viz., that consent must be renewed after the removal of the impediment. See below, n os 408 and 410. Note. Parish priests are forbidden, except for grave reasons and with the permission of the Ordinary, to permit parties to contract marriage under a condition. If a legitimate case occurs, it is the rule that the condition should be declared at the time of the celebration of the marriage, or that it should be made public before the wedding. On the fulfilment of the condition, or in case of renunciation, the fact must be duly notified, so that there may be proof of it in the forum externum. 2. If the condition is immoral or impossible. a/ In the forum internum, an impossible condition seriously b) immoral or imposed, renders the marriage null ; and he who knowingly acts thus, gives his consent only in jest. followed by the conjugal act, so that the marriage by that very fact becomes valid. This necessary (juris etdfjure) presumption, established by chapters 3, 5 and 6, X, IV, 5, according to the more probable opinion,was not abolished by the Tridentine discipline, no by the decree Ne Temere, and consequently it is neces- sary to admit that this kind of presumed marriage still exists. Leo XIII does not seem to have touched it at all in his Constitution Consensus mutuus, of 1892, since he speaks in express terms only of the sole case of the sexual act following upon betrothment. See above, n 14, and below, n 92 ; WERNZ, o. c., n 298, and compare with n 29, note 12. HUSSAREK, o. c., p. 248 ss., proposes another explanation : in his opinion, the copula is not equivalent before the law to the renouncement of the condition, in such a way as to make absolute the previous conditional consent ; it constitutes, by virtue of the presumption established by the law, the marriage-contract itself; but then one cannot understand how such a contract is valid without the formalities of the Decree Ne Temere. 150 THE CONDITIONAL CONSENT For an immoral condition seriously imposed the same principles are applicable as in the case of an honest condition, but with this exception, that there is no obligation to wait for the fulfilment of the condition. b/ In the forum externum, an impossible or immoral condition is presumed not to have been imposed seriously, and consequently the contract is considered as absolute ; for c. 7, X, IV, 5, declares : c conditiones appositae in matrimonio, si turpes aut impossibiles fuerint, debent propter ejus favorem pro non adjectis haberi ('). Nevertheless, this presumption is not juris et de jure, and consequently it admits of proof to the contrary ; so that if it is established that the condition was serious, it must be judged in the forum externum in the same way as in the forum inter- num. III. Application. 88. Application. The principles which we have just enunciated have to be applied with considerable frequency for cases of a condition repug- nant to the substance of marriage. What has to For the solution of these cases, one ought to take into account *%$ the Allowing observations : solving each 1 . It is necessary to examine if the condition is really repugnant to the substance of marriage ; that is to say, if it is inconsistent with the rights and duties that essentially belong to the conjugal union, viz., as we shall see later, those which concern sexual intercourse and the education of the children ; or if it is destruct- ive of any one of the essential properties of the matrimonial union, of its sacramental character, of its indissolubility, or of its unity. 2. It is necessary to see if the imposed condition is really suspen- sive, according to what we have said above in i, that is to say : a/ if it has been imposed in reality, or only interpretatively, as for I. This presumption probably does not affect an impossible or immoral condition concerning the past or the present, but only the future and this is the only one that we have in view here. See the solution of the case given in the Anal, eccles., 1901, p. 64 ss. ; WBRNZ, o. c., IV, n 300, note 31 and n 302, note 39. THE CONDITIONAL CONSENT 15! example, by one who, while contracting marriage in the usual way and without any restriction, was ignorant that he thereby contracted an absolutely indissoluble union, and would not have married if he had known that it was so ; the fact that he would have imposed a condition of dissolubility, if he had thought of it, is obviously insufficient. b/ If the condition is an integral part of the contract, or if it is merely an accessory modification of it. We have already observed that it is above all necessary to keep this distinction in view. The intention and purpose of the contracting parties must decide the question here ; it is all a matter of whether or not the parties were firmly resolved that the condition should be a conditio sine qua non > of the marriage ; whether or not it was their absolute and predominant determination to marry subject to this condi- tion, and to break off the match rather than marry without it. o*/ These considerations enable us to solve without difficulty the Examples. different cases that may occur ; and in particular : A. The case in which one contracts marriage under condition Marriage of dissolving the union in case of adultery on either side, as is the i f n > der'cvndi- practice among Protestants and Greeks ('). If the condition is tionofdisso- , 11 i -i- i j lutionincase really suspensive, the marriage is null, because it is vitiated in ofadulterys; its essence (-) ; on the other hand, if the condition is not part of the agreement, but is simply accessory to it, or if it is only added interpretatively, the marriage is valid (*). 1. An analogous case frequently occurs among pagans, who often marry with the intention of divorcing the wife after a time. On this subject see the solution of the case laid before the C. S. O. in 1908, and given in the Coll. Brug., t. XIV, p. 241 ss. 2. To the question : An sit validum matrimonium contractum inter catholicam et schismaticum haereticum, cum conditione foedandi vel solvendi matrimonium >, the C. S. O., 2 Oct. 1860, replied : Si ista sint deducta in pactum... sunt nulla ; sin aliter, sunt valida . Collectanea, n 1301, under n 8. 3. Cf. the documents quoted in the N. R. Th., t. XXI, pp. 594-599, t. XXX, pp. 611-634 ; as well as the decision given in the Canon. Contemp., 1896, p. 492. Read also the Instructio of the C. S. O., of 9 Dec. 1874, n 8, (in the Collectanea, n 1301) : Missionarii in ea esse videntur sententia, barbarorum conjunctiones, etiamsi speciem quandam gererent justi matrimonii, omnes tamen esse irritas oberrorem de conjugii dissolubilitate... seu... esse vitiatas intentione contraria substantiae matrimonii. Verum A. T. optime novit hunc errorem, menti inhaerentem et non deductum in pactum, matrimonio non officere . Cf. also the 152 THE CONDITIONAL CONSENT Observe that in the case given, there is no question of a voiding condition, as one might think at first glance, as if the parties gave a simple consent to the marriage, but with the intention of dissolving the union in case of adultery ('). As a matter of fact they do not give a simple consent, but their consent has reference to a marriage that is dissoluble in case of adultery, to the exclu- sion of an indissoluble marriage. This is why the contract is vitiated in its essence. or ofpractis- B. The case in which one consents to marriage on condition inmarria**- * practising onanism, whether from the beginning ( 2 ), or after the birth of one or two children ( s ). Again , if it is really a question of a suspensive condition, and not, as is usually the case, of a mere modification of the contract, the marriage is invalid, since such a condition is incompatible with the substance of marriage, inseparable, as it is, from the right and obligation to generative relations. or of not c/ The case in which one contracts marriage on condition of '"marriage. not ma ^ n g use f ^ (*) Here again the same solution applies ; the marriage will be null or valid, according as the clause in question is a true condition, and an integral part of the nuptial contract, or is merely an accessory modification of it. The transfer of the proprietary right over the bodies of the respective parties is, in fact, of the essence of marriage, no less than that of the right of making use of one another for the pur- pose of generation. The essential object of the matrimonial contract is no other than the transfer of this right with a view Instructio of this same Congregation, of 1877 (Collect., n 1302, towards the end). See also the case decided by the S. Rota, 24 July 1909, where it is declared that in the case proposed, the nullity of the marriage is not established ; it is there remarked, as a subsidiary argument, that the husband had made no mention of the restriction placed on the contract, and that this silence towards the woman gives ground for presuming the absence of the restriction. Coll. Brug., t. XIV, p. 619 s. Cf. also Causa Eboracen., 9 Dec. 1911 (A. A. S., IV, p. 153 ss.). 1. A voiding condition of this kind would be considered as not imposed, since a marriage, duly contracted with full consent, is incapable of dissolution. 2. Marriages contracted under the condition of having no children, are known in France as muriates blancs. 3. See the case solved by the S. C. C., in the Anal, eccles., 1904, p. 294. s. 4. Cf. Coll. Brug., t. XII. p. 104 s. ; and the case solved in the Anal, eccks., 1904, p. 294>. THE CONDITIONAL CONSENT 153 to generation. Now, if the condition of not using the marriage is an integral part of the contract, the consent is restricted in its object to the limits of the imposed condition ; and is only given to the exclusion of the power and right to use one another. It is, therefore, clear that such a condition substantially vitiates the consent. On the other hand, in the second hypothesis, that is to say, where the added clause is merely accessory to the contract, matrimonial consent is considered as given simply and without any restriction that affects the bond itself, and consequently the right to the use of one another's bodies is given mutually, irrevo- cably and entirely ; and that right remains entire, notwithstand- ing the accessory and separate agreement not to make use of it. That agreement does not take away the right to sexual intercourse, a right irrevocably acquired by the matrimonial consent, but it excludes only the use or exercise of it, which does not belong to the essence of marriage ('). 90. Note. 1 . When the ecclesiastical courts have to take cognizance of cases Observation. of this kind, in which the annulling of a marriage, contracted under acon- dition of not making use of it, is sought, they often abstain from pronounc- ing its nullity, on account of the difficulty there is in ascertaining, if, in the intention of the contracting parties, the condition was really suspen- sive (*). Ordinarily, when it can be decisively proved that the marriage has not been consummated, they rather advise an application to the Pope for a dispensation from a marriage ratum non consummatum. See the cases relative to this question in the Revue des sciences ecclesiastiques, 1905, t. 91, p. 31 et seq. ; see also the cases reported in the Canon, contemp., and in the Anal, eccles., and those of earlier date in the Canon, contemp., 1901, p. 587 s. and 1903, p. 297. 2. The preceding shows that it is quite possible to contract marriage not- withstanding a vow of chastity, mutually accepted and approved. There is, indeed, no reason why, on the one hand, matrimonial consent should not be given reciprocally together with the mutual right of property, full and I. See below, n 132, the distinction between the right to the conjugal act and the exercice of that right, i. e., between the radical right, as it is called, and the right that can be actually demanded, the difference between the mutual pro- perty of one in the body of the other, and the enjoyment of that property. a. Observe nevertheless Causa CatneroceH., for which see n. 87. 154 THE KINDS OF MARRIAGE unrestricted, over the body ; and on the other hand, why the parties should not, by a separate act, agree and bind themselves by vow not to make use of the right thus acquired, and to observe chastity (*). Hence those married under these conditions do not sin against chastity by the conjugal act, but against religion only, in consequence of their vow : while unlawful intercourse with others on the part of the same is adultery. Scholion. DIFFERENT KINDS OF MARRIAGE. 91. Marriage r a turn, A. Marriage ratum (ratified), legitimate, consummated. 1. Marriage is said to be ratxm(ratififd),vrb&n contracted validly between two baptized persons; or when, having been contracted between unbaptized persons, it subsequently becomes a sacrament through the conversion and baptism of the two parties ; or when contracted, by dispensation, between a baptized and an unbaptized party (see n 107). From all these kinds of marriage there results a permanent union, which only demands the consummation of the marriage to render it absolutely indissoluble (see n 197 ss). legitimate, 2. Marriage is called legitimate, when it has been validly con- tracted between unbaptized persons, and has not as yet become a sacrament by the baptism of both parties ( 3 ). 1. The explanation given by P. RETT, Die Josephsefte in ihren Original und ihren Nachahmung, in the Zeitschr'. /. k. Theol., 1909, p. 590 ss., is somewhat different. Marriages of this kind, contracted between parties bound on either side by a vow of chastity, are generally known as Josephs&he, i. e., marriages in imitation of that of St. Joseph with the Blessed Virgin. This recalls the contro- versy, lately renewed, as to the marriage of St. Henry with St. Cunegundes. Was this marriage a Josephsehe or an ordinary marriage, in which the holy Emperor lived with his wife as with a sister, on account of her impotency ? This latter opinion is vigorously maintained by ^SaoMULLER, Theol. Quartalschr., 1905, p. 78 ss., and also in the same review, 1907, p. 563 ss., and 1911, p. 90-136 ; see also the Theol. Prakt. Quartalschr., 1905, p. 325 ss., where the traditional opinion is defended ; KOCH, o. c., who holds that St. Cunegundes was not impotent but barren, (Arch.f. k. Kirchenr., 1909, p. 772 ss.). 2. This is the existing distinction between legitimate and ratified marriage. The distinction made by Gratian was different. In the Dictum on C. XXVIII, qu. 1, he calls marriage legitimate, when contracted according to the legal institu- tions or customs of the country , whether between baptized or unbaptized persons : in the former case the marriage was legitimate and ratified (ratum) ; in THE KINDS OF MARRIAGE 155 3. Marriage is consummated or not consummated, according as the consummated, union, validly contracted, has or has not been followed (') by the conjugal act, suitable of itself for thepurpose of generation (*). If the ratified marriage is followed by the copula, it is said to be ratum et consummatum ; if the legitimate marriage is followed by it, it is called legitimum consumtnatttm ; if the conjugal act follows a legitimate marriage, and both the parties are subsequently bapti- zed, the marriage is then called consummatum et ratum. 92. B. Presumed marriage, union having the form or appearance presumed, of marriage, putative marriage. 1. Presumed marriage is that which is established by a presump- tion juris et dejure ( 5 ), based on some determinate fact as implying matrimonial consent (*). the latter legitimate and unratified (non ratum). If Christians married without observing the requisite institutions and solemnities... their marriage was consi- dered not legitimate, but only ratified (ratum)*. 1. Sexual intercourse before marriage does not count, but only after, or at the moment that the marriage takes place. 2. The conjugal act, if onanistic or incomplete, no matter in what way, does not consummate the marriage. See on this subject SANCHEZ, o. c., t. II, disp. XXI ; and GASPARRI, o. c., n s 1064 ss. Observe that these authors declare the marriage to be consummated even when the semen has entered the vagina, without penetration by the man, as for example, by means of artificial fecundation, or by diabolical agency. On the other hand any copula fitted for generation is considered to consummate the marriage, whether voluntary or involuntary, conscious or unconscious. Cf. HUSSERAK, o. c.,p. 250 ss. 3. SANTI, o. c., 1. IV, tit. I, n 77, and GASPARRI, o. c., n 237, in opposition to WERNZ, o. c., IV, no 29, note 12, hold that marriage is presumed only in case of presumption juris et dejure, i. e., that does not admit of direct proof to the con- trary, unless it happen to be evident. 4. Formerly there were reckoned three kinds of presumed marriage : a/ the case of the copula following on betrothment ; b/ the case of the copula following on a conditional marriage, inasmuch as sexual intercourse then implied renuncia- tion of the condition J c/ cases in which those below the age of puberty, after having contracted a marriage that was invalid on account of their age, ratified their contract by the conjugal act on reaching the required age. In the sequel, when the law on clandestinity had come into force, presumed marriages were abrogated for all cases subject to that law, except, according to the most probable opinion, for that in which the copula followed a marriage celebrated under condition, in the form of the Council of Trent ; for, according to what we have said above in n 37, the conditional consent spontaneously 156 THE KINDS OF MARRIAGE having the 2. A union having the appearance of marriage (') is one that has marriage, been contracted in an invalid manner, but according to the for- malities (though perchance with some essential defect), prescrib- ed by the Council of Trent or by Pius X, where they are in force ; so also, it would seem, is a marriage contracted without these formalities, but in such a way that the omission is not known, and the pseudo-married parties are publicly reputed as lawfully wedded, en possession d'etat , as the civil law says (see n 84). Marriages exempt from the law of clandestinity are considered to have the appearance of marriage from the time that consent, valid in the natural law, and at the same time external, was given ( 2 ). Note that the Church explicitly denies the appearance and form of marriage to a civil union, when contracted by persons subject to the law of clandestinity ( 3 ). On the other hand, in the case of becomes valid from the time that the condition is fulfilled or renounced, without there being any need to renew it in the form prescribed by the Council. For marriages exempt from the law of clandestinity , as we have said above, n 14, the presumption juris et dejure based upon the copula following on betrothment has been abolished by the Constitution Consensus, of Leo XIII, in 1892 ; but the two other presumptions have not suffered the like fate. WERNZ rightly demonstrates this against those who hold the contrary opinion, o. c., IV, p. 29, note 12, and compare with the decree of the C. S. O., 28 June 1865 ; see also below, n 274. i. These marriages enjoy several legal privileges : they more easily obtain a sanatio in radice, and the legal principle, that, when there is doubt as to the validity of the act, it is to be held as valid, is applicable to them. a. According to WERNZ, o. c., n 29, note n, Marriages contracted invalidly by an infidel or a heretic with a baptized person, whether a Catholic or not, even in countries where heretics are bound to observe the formalities prescribed by the Council of Trent, or by Pius X, must not be reckoned as cases of concubinage, but among those unions which have the appearance of marriage, as often as the formalities of marriage have been complied with in accordance with the rites of the heretical or pagan country in question, and when these marriages are there reputed legitimate . Cf. Collectanea, n. 1301, p. 451. 3. Cf. the deer, of the C. S. O., 21 Aug. 1861, and the Instr. of the S. Penit., 15 Jan. 1866 ; GASPARRI, o. c., I, n 480 and 698, and compare with no 240. See also what we say below n 305, 311 and 408, where we treat of affinity, public decency and sanatio in radice ; in the last named passage we remark that nowadays the marriage, when contracted between persons subject to the law of clandestinity, is sometimes, though not without difficulty, put right by a sanatio in radice ; it is supposed that the parties gave a real matrimonial consent, bee below, n2J3. THE KINDS OF MARRIAGE 157 contracting parties, even if Christians, who are not subject to that law, civil marriage may generally pass as a union that has the appearance of marriage ; and in particular it ordinarily gives ground for a presumption of a contract valid in conscience, as we shall show later, in n 233. 3. ^.putative marriage is one that is contracted invalidly, but in putative, good faith, at least by one of thepariies ('). C. Clandestine marriage, marriage of conscience, morganatic marriage. 1. Clandestine. 93 a/ According to its etymology the word signifies in the first clandestine, place a marriage contracted in secret and without witnesses, so that there is no legal proof of it ( 2 ). b/ In the second place it denotes also a marriage contracted without the usual solemnities ( 3 ). Such are those that are not cele- brated before the church, and with the blessing of the priest (*). c/ In the third place, it comprises marriages celebrated without the banns or preliminary proclamations, required by the Council of Lateran ( 5 ). d/ Lastly it embraces unions effected without the formalities i. See below n 163, where we speak of the legitimacy of children conceived in a putative marriage. 3. Cf. ESMEIN, o. c., I, p. 182, where, in note i, he gives the text of the Summa of Godfredus : There are two kinds of marriages called clandestine : those of the first kind are such as are contracted in secret and without witnesses so that no legitimate proof of them appears >. 3. Ibidem : Those of the second kind are such as are contracted without the solemnities . See also 1. c., p. 179, in note 2 on the Summa Hostiensis : Marri- ages (are called) clandestine... in the first place on account of the omission of certain solemnities required for their lawfulness, to wit, the blessing before the church . See also SCHULTE, o. c., p. 41 s. 4.Aumoyen age la coutume etait generalement que les epoux vinssent devant la porte de 1'eglise : la ils etaient interroges par ie pretre, qui leur demandait s'ils consentaient a se prendre pour mari et femme : puis ils recevaient la bene- diction . ESMEIN, o. c., I, p. 179. In note 3, he gives the text of Panormitanus : Note that the bridegroom and the bride before the consummation of the marriage, are blessed ante vulvas, i. e., before the doors of the church. In some places, however, they are blessed before the altar with a cloth spread over them*. See below n 122, and above, n 63, note. 5. C. 3 ,X,IV,3. 158 THE KINDS OF MARRIAGE prescribed by the Council of Trent or by the decree Ne Temere, that is to say, without the presence of the parish priest and at least two witnesses ('). This last is the strict acceptation of the word, which, apart from any indication to the contrary, is always to be understood where clandestine marriage is spoken of. marriage 2. Marriage of conscience . conscLnct This * s a marriage that is contracted in the form required by the Council of Trent or by Pius X, but in such a manner that, as far as possible, it remains secret and unknown to the public. In it the antenuptial proclamations are omitted, and the consent is given in the presence of the parish priest or his delegate and of two friendly witnesses, all of whom previously engage themselves to observe secrecy ; the marriage is entered in a secret register kept at the diocesan chancery. Such marriages, though not clandestine, certainly ought not to be permit- ted without very grave reason, since from their nature they are liable to have evil consequences, as Benedict XIV remarks in his Constitution of 17 Nov. 1741, Satis Vobis (*), par. 1-5. Nevertheless the Church tolerates them in circumstances that are altogether exceptional : in the case of an officer whom the law will not permit to marry owing to a question of dowry ; in the case of engaged parties, who, in consequence of the civil marriage of one of them, cannot be married before the law ; and in the case of a royal personage, who, being widowed, wishes to marry again for reasons of conscience, but at the same time has most urgent reasons for keeping his new marriage secret ( 3 ). i. In the XVI and XVII centuries, in France, a marriage contracted without parental consent was sometimes called clandestine. See DESFORGBS, o. c., p. 144 ; PLANIOL, o. c., I, p. 746. This is the explanation of the fact, that the Coun- cil of Trent, Sess. XXIV, c. I, De Ref.Matr., treats at the same time of clandesti- nity and parental consent. 3. The text may be found in GASPARRI, o. c., II, p. 532 ss. See also GENNARI- BOUDINHON, O. C., 3d P., Consult. 6. 3. There is likewise grourd for a marriage of conscience, as Benedict XIV remarks 1. c., in the case of those who are publicly living as husband and wife, and whom everybody believes to be married, while, as a matter of fact, they are living in secret concubinage . Nevertheless, as in this case they are publicly looked upon as married, this is not, strictly speaking, a marriage of conscience J THE KINDS OF MARRIAGE 159 It is to be understood that the Church in permitting these unions reserves to itself the right of making them public, even against the will of the parties, if the good of the children or the fear of a scandal demands it. Moreover, the Church prescribes in these various cases the prudential measures that are to be carefully observed ; these are enumerated by Benedict XIV in the constitution referred to above, par. 7 ss. ; the two principal are : a/ The parish priest must transmit to the Bishop a written document, giving the place and date of the marriage, and the witnesses who assisted at it, in order that these particulars may be transcribed and preserved indefinitely in the register kept for this purpose. This register is entirely distinct from that in which marriages publicly contracted are ordinarily entered ( J ). b/ It is necessary to declare the birth of the children and to notify the same to the Bishop (*). their situation is less delicate, and the measures of precaution to be taken are less severe than in the examples given in the text. A case of marriage of conscience, strictly so called, is given in the Review // Monitors Eccks., 1910, p. 137 s. A dying man confessed to the priest that he had been living in concubinage, without being reputed as married, and without any union on his part that might pass as having an appearance of marriage. On the one hand his salvation required that he should rectify his position by a real and valid marriage ; on the other hand the secrecy of confession placed an obstacle in the way of the publicity of the union. It was accordingly necessary to have recourse to a marriage of conscience, and to obtain from the penitent permission to communicate the fact to the Bishop, in order that the marriage might be entered in the secret register. 1. This register for secret marriages must be properly made, fastened and sealed, and it mus be carefully kept in your episcopal chancery ; you will not permit it to be unsealed and opened except when there is occasion to enter other marriages of the same kind, or when the exigencies of the administration of the diocese require it, or, again, when those who have a real interest demand a particular or a proof which they cannot obtain elsewhere ; you must take great care to have it fastened and sealed again afterwards. The written attes- tations of marriages celebrated in secret, which parish priests or their delegate have to send to you, must be transcribed word for word in the register, and the person to whom you entrust this task, must be of an irreproachable reputation and of an integrity that is universally recognised >. L.c., par. n. 2. We will and expressly ordain continues Benedict XIV, speaking to the Bishops, that after the baptism, the father of the child, or, if he be dead, the mother, shall inform you of the birth, either verbally, or by an autograph letter, or by the agency of some person worthy of credit, appointed by them, in order that you may be quite certain of the fact, as well as of the date and place of baptism, and that you may know that the child baptized under the names of its l6o THE KINDS OF MARRIAGE Note. The Civil Code of Spain contains its own special provisions with regard to marriages of conscience ('). 95, morganatic, 3. Morganatic marriage. Marriage is called morganatic when contracted between a man of princely or royal birth ( 2 ) and a woman of inferior rank ( s ), in such a way that while this union enjoys its full rights in the eyes or the Church, from the civil point of view the wife does not share the rank of her husband, and the children are deprived of the paternal titles and offices, and are debarred from the right to the full and entire inheritance of their father and of their paternal ancestors (*). It follows from this definition that the existence of a morganatic marriage parents or under fictitious names, is legitimate, although the issue of an occult marriage. As soon as you are furnished with these particulars, and for fear of forgetting them, you will cause them to be faithfully entered in a register by him whom you shall have appointed to register occult marriages. The register containing the names of the baptized and of their fathers and mothers, though it ought to be distinct from the register of marriages, must nevertheless be kept with the same care, secured with the same seals, and locked up with the same precautions in the episcopal chancery as the register of marriages, in the case of which we have enumerated above the precautions that are to be taken . L. c., par. n. 1. Le mariage secret de conscience, celebre devant 1'Eglise, n'est soumis a aucune formalite d'ordre civil, mais ne produit plus aucun effet civil tant qu'il n'a pas et rendu public par son inscription sur le registre civil. Toutefois ce mariage peut produire des effets civils dh lejour de I* celebration, si les conjoints, d'un commun accord, sollicitent de 1'eveque qui 1'a autorise, un extrait consign^ sur le registre secret de reveche" et le remettent directement, et avec la reserve convenable, a la direction gnerale du registre civil, en en demandant 1'mscrip- tion. La direction genrale tient, a cet effet un registre special et secret, avec les precautions n6cessaires pour que le contenu n'en soit pas connu avant que les parties n'aient demande que 1'acte soit rendu public par une transcription sur le registre municipal de leur domicile . In accordance with art. 76, LEHR, o. c., n< 3 6l. 2. Cf. LEITNER, Lehrb., p. 75, where he enumerates, for Germany and Austria, the families to which this special provision of the civil law applies. 3. Marriage may also be celebrated in the morganatic form between two persons of equal nobility, when the man is a widower and wishes to remarry, but cannot, according to the law of certain countries, place the children by a second marriage in the same rank as those by the first. See Kirchenlexikon under Bhe ZHY linken Hand. 4. Cf. BENEDICT XIV, De Syn. dioec., 1. XIII, c. 23, no 13. THE KINDS OF MARRIAGE l6l is due to the action of the civil law. This, in the different countries, admits or rejects the distinction (with distinct civil effects) between ordinary marriages and marriages contracted between personages of exalted rank and women of humbler birth. The distinction between ordinary and mor- ganatic marriages, is almost entirely confined to Germany and Austria (). The term morganatic is most probably derived from the German Morgengabe, in its more ancient form Morgengeba, which was a present given by the husband to the wife after the first night of the marriage, as the price of her virginity (-) ; for in a morganatic marriage the wife and the children do not share in the possessions and honours of the husband and father, except in a very limited degree ; their portion is nothing more than a mere Morgengabe ( z ). These unions are also known as left-handed mar- riages (*) and marriages according to the Salic law ( s ). We must not confound, as is often done, morganatic marriage with mar- riage of conscience, though, they both frequently present the like characteris- tics. The difference consists in this, that a morganatic marriage may be celebrated in public, with the usual solemnities, and in the presence of a great concourse of people ( 6 ), while a marriage of conscience is by no i. Thus the Belgian civil code ignores this distinction, and accordingly a civil marriage lawfully contracted by an exalted personage, even by the King himself, would still have the same civil effects, whether the bride were a prin- cess or a seamstress. Moreover, in virtue of art. 60 of the Constitution, children lawfully born of such a marriage would not be excluded from the throne. The marriage of a prince with a woman of lower condition, that did not bring with it the above mentioned legal inequality, would be called disparagium. Cf. SCHNIT- ZER, o. c., p. 36. 3. See LEFEBVRE, o. c., p. 437 s. 3. Kirchenlexikon, 1. c. ; FERRARIS, Prompta Bibliothcca, V matrim. ad morganaticam ; SCHERER, o. c., par. 109, note 29 ; HEINER, Grundriss, p. 33 ; WERNZ, o. c., IV, n 29 ; LEITNER, Lehrb., p. 75 s. ; FREISEN, o. c., p. 53 ss. 4. Ehe zur linken Hand heisst sie, weil die Frau dem Manne nur an die linke Hand angetraut wird, zum Zeichen dass sie nicht als ebenbiirtig in seine Familie tritt, daher auch nicht seines Standes teilhaftig wird . HEINER, 1. c. 5.* Das salische Gesetz bestimmte nun dass die cognati nur nach absterben der agnati zur Erbschaft gelangen sollten.Heiratennach dem salischen Gesetze hiess also unter der Bestimmung heiraten, dass die Kinder alle, auch die Sohne, nur als cognati zu betrachten seien, die erst beim Fehlen der agnati zur Erbschaft gelangen sollten . LEITNER, Lehrb., p. 76. 6. The marriage of the Archduke Francis Ferdinand, heir to the crown of Austria, is a case in point. On the i July 1900 this prince married Sophia, Coun- tess of Choteck.The marriage was contracted morganatically, after the prince had renounced the imperial dignity for his wife, and the right to the crown for his children ; but it was solemnized with full ceremonial and with royal pomp. 162 THE KINDS OF MARIAGE means always morganatic : the man may not be of noble rank, or not so in the required degree for the special provisions affecting marriages of this kind to be applicable to him ; or, again, the civil law of the country may not admit of the distinction between morganatic and other marriages, and may not attach any distinct civil effects to such marriages. On the other hand, in countries where morganatic marriage is recognised by the civil law, it often has the same characteristics as marriage of conscience, for it is quite natural that a morganatic marriage should be celebrated as a marriage of conscience, since the reasons that render it desirable to keep the marriage secret are most frequently met with in families of princely or exalted rank ; while a marriage of conscience between a man of very high position and a woman of ordinary condition, will, in such countries, necessarily be morganatic, since the wife and children remain unrecognised, and cannot enjoy the titles and offices that pertain to the husband and father respectively. THE SACRAMBNT OF MARIAGE 163 SECTION II THE MATRIMONIAL CONTRACT CONSIDERED AS A SACRAMENT In the first chapter we shall show that the matrimonial contract is, by the institution of Christ, a sacrament ; in the second chapter we shall treat of the connection between the contract and the sacrament ; and in the third chapter we shall explain the nature and the constitution of the sacrament, dealing successively with the minister, the effect, the subject and the ceremonies. CHAPTER I. THE EXISTENCE OF THE SACRAMENT OF MARRIAGE. PROPOSITION. The matrimonial contract between baptized persons is a sacrament of the New Law. 96. The demonstration of this proposition can be made both dog- Marriage is matically, for Catholics only, who admit the infallibility of the * sacr * ment - Church ; and historically, so as to appeal also to heretics, particu- larly Protestants ('), and all those who reject this infallibility. I. Dogmatically. 1. By the definition of the Councils, and especially by that of the / Dogmatic Council of Trent, Sess. XXIV, can. i, which pronounces anathema against anyone who shall dare to maintain that matrimony is I. Although at first, in some of his writings, Luther seems to acknowledge a certain sacramentality in marriage, yet he denied, and with increasing insistence, that marriage is a true sacrament (as we have noted above, n 55), in conformity with his principles concerning the nature and efficacy of the sacraments. Accor- ding to him, marriage is not of a nature to stimulate faith, though the efficacy of the sacraments consists therein. Cf. GRISAR, Luther, II, p. ai6 ss., and compare with Friedberg, Das Recht, p. 157 ss. Calvin also utterly denied this sacramentality ; to him marriage was some- thing merely profane: Postremum est matrimonium quod, ut a Deo institutum fatentur omnes, ita pro sacramento datum nemo usque ad Gregorii tempera viderat. Et cui unquam sobrio in mentem venisset ? Ordinatio bona est et sancta; et agricultura, architcctura, sutrina, tonstrina ordinationes sunt Dei legitimae, nee tamen sacramenta sunt >. FRIEDBERG, Das Recht, p. 185 J cf. FAUREY, o. c., p. 50 ss., and HOWARD, o, c., I, p. 386 ss, 164 THE SACRAMENT OF MARRIAGE not truly and properly one of the seven sacraments of the evange- lical law, instituted by our Lord Jesus Christ . The Church had already laid down the same doctrine in the Council of Verona, in 1184, at which Lucius III decreed : uni- verses qui de sacramento Corporis et Sanguinis D. N. J. Christi, vel de Baptismate,... aut de Matrimonio, vel de reliquis ecclesiasti- cis sacramentis aliter sentire aut docere non metuunt, quam Romana Ecclesia praedicat et observat.... vinculo perpetui ana- thematis innodamus ( J ). The second council of Lyons, in 1274 (*)> an d the Council of Florence ( 3 ) teach the same. Later, among other doctrinal documents of the Church, the Encyclical, Arcanum, of Leo XIII, is noteworthy (*), and also the decree Lamentabili censuring proposition 51 (*). 2. By the unanimous and explicit belief of the Catholic Church from the XIII century at least. No one can deny that since the thir- teenth century the doctrine of the sacramental character of matrimony has been in full and peaceable possession, and that both the Doctors and the Schools have held it explicitly as a doc- trine offaith.^No, have proof of this in the Councils and professions of faith, of which we have spoken above in i. ( 6 ), no less than in the unanimity of scholastic theologians from the time of Peter Lombard and Saint Thomas ( 7 ). But everyone knows that, x. C.9,X,V )7 . 2. DENZINGER, Enchiridion, n 465 : Tenet etiam et docet eadem S. R. Ecelesia septem esse ecclesiastica sacramenta, unum scil. Baptisma... aliud est Matrimonium >. 3. Septimum est sacramentum matrimonii . 4. Apostolis magistris accepta referenda sunt quae SS. Patres nostri, conci- lia et universalis Ecclesiae traditio semper docuerunt, nimirum Christum Domi- num ad sacrament! dignitatem evexisse Matrimonium . 5. Matrimonium non protuit evadere sacramentum Novae Legis nisi serius in Ecclesia : siquidem ut matrimonium pro sacramento haberetur, necesse erat ut praecederet plena doctrinae de gratia et sacramentis theologica explicatio. DENZINGER, o. c., n. 2051. 6. Cf. the documents given at length by PALMIERI, o. c., p. 52-54 ; PBSCH, Tractatus Dogmatici, Friburgi-Brisgoviae, 1897, t. VII, n. 707 ss. ; POURRAT, o. c., p. 246-249; SASSC, Institutions theologicae de Ecclesiae sacramentis, Friburgi- Brisgoviae, 1897, II, p. 35 s. 7. SCOTUS, in /. IV Sent., Dist. 26, qu. l, unhesitatingly affirms : < Commu- niter tenet Ecclesia sacramentum Matrimonii esse septimum inter ecclesiastica sacramenta, et de sacramentis Ecclesiae non est aliter sentiendum quam sentit THE SACRAMENT OF MARRIAGE 165 according to Catholic principles, the belief of the Church consti- tutes an incontrovertible criterion of apostolic tradition, as often as it is universal and bears on a point considered as belonging to the deposit of faith. II. Historically. A. Indirectly, by argument from prescription. r / It is a well known fact that the separated Oriental churches, Historical de- that is to say, the Orthodox Greek, the Coptic, the Armenian and Nestorian. regard marriage as a sacrament. This is clear from ty argument from pres- their writings and formulas of faith ('). criptton ; This fact affords us an argument from prescription in favour of apostolic tradition by the following course of reasoning. The doc- trine that the Greek schismatics, and other sects mentioned above, hold to-day, was held by them at the time of the schism, when they separated from the Catholic Church. For, once the separa- tion was effected, it is not conceivable that sects differing from one another in belief, language, rites and customs, and all at variance with the Latin Church, could severally have introduced this particular point of doctrine, still less conceivable is it, that they should have accepted it unanimously from the Latin Church Ecclesia Romana . Among all the scholastics Durandus is the only exception, and even he confirms the tradition of the Church on this point. In 1. IV, Dist. XXVI, qu. 3, he acknowledges that it is absolutely necessary to admit that marriage is a sacrament, since the Church declares it to be so . He is at varian- ce with his contemporaries only in holding that the sacrament of matrimony is not altogether univocal with the other sacraments. Cf. SASSE, o. c., p. 366. 2. The Nestorian formula of 1553 reads : We believe also in Holy Baptism,.. and in Holy Priesthood, and in Matrimony . Simon Assemanus bears witness to the belief of the Jacobites and the Copts : Ad sacramenta quod spectat, septenarium eorum numerum, qualis ab Ecclesia Catholica agnoscitur, apud Jacobitas sacrosanctum esse liquet ex eorum ritualibus .. . Vartanus, Bishop of the Armenians, makes the same statement on behalf of his co-religionists, two centuries before the Council of Florence. In the case of the Orthodox Greeks, there is no lack of documents. One of the principal of these is the profession of faith of the Patriarch Jeremias, of 1576. The violent opposition experienced by Cyrillus Lukaris, a partisan of the Protestant sacramental system, is of equal significance ; as well as the profession of faith of 1642. Finally, in the rescript published by the Patriarch Anthimus against the Encyclical Praeclara, of Leo XIII, there is not the slightest protest against the sacramental dignity of mar- riage, or against the septenary number. See PALMIERI, o.c., p. 511 ; POHLE. Lcrh- buch dtr Dogmatik, Padcrborn, 1906, t. Ill, p. 395 s.; POURRAT, o. c., p. 352-267. 166 THE SACRAMENT OF MARRIAGE after the separation. We must, therefore, go back to the ninth century for the Orthodox Greeks, and to the fifth century for the rest ; whence we may well conclude that, in the fifth century, the doctrine of the sacramental character of matrimony was held by the Church both in the East and West. Furthermore, it is hard to explain the unanimity of belief in the Church of the fifth century without admitting that the doctrine in question goes back to apostolic times. Were it other- wise, it is difficult to see how a doctrine of such importance could have been introduced into the entire Church without con- troversy and protest ; but of this there is no trace to be found. (') 98, b) directly, by B. Directly, by evidences and writings that go back to the apostolic age. evidences. Observe, that we must not expect to find in the early writings of the Fathers and Doctors of the Church, that explicit and clearly defined assertion of the sacramental character of matrimony, which appears in the pages of later theologians when they declare it to be an efficacious sign of grace. The idea of a sacrament in general was only developed by degrees in the Church, especially as, in the early ages it, was not customary to treat of the sacraments methodically and systematically as at the present day. No attempt was made to formulate a generic idea of a sacrament that might afterwards be applied to each in particular ( 2 ) ; but from the beginning a 1. So TBRTULLIANUS, De Praescriptionibus, c. 38 : Ecquid verisimile est ut tot ac tantae (Ecclesiae) in unam fidem erraverint ?... Variasse debucrat error doctrinae Ecclesiarum. Caeterum quod apud multos unum inveuitur, non est erratum sed traditum . Ed. Othler, Lipsiae, 1854, II, p. 25 s. 2. There was some obscurity and ambiguity as to the meaning of sacrament and the sacramental doctrine down to the twelfth century. Thus St. Peter Damian ("f 1072), Opera omnia, Cajetan's ed., I, Sermo 69, having but an inexact and incomplete definition of a sacrament, reckons among them the dedication of churches, the anointing of kings, the veiling of nuns, and the like. See, however, the scholia of Cajetan on this passage, p. 378 s., and note that from this confusion in enumerating the sacraments, it does not follow that there was a like confusion of mind, since similar mixed series occur with Doctors later than Peter Lombard, who were well acquainted with the septenary number, and elsewhere accurately and explicitly teach that there are seven sacraments, giving them in their proper order, and distinguishing between the sacraments properly so called, which they term principal, and the minor sacraments or sacramentals. Cf. GILLMANN, Die Siebenzahl der Sakramentc bei den Glossatoren dfs Gratiattischen Dekrcts, Mainz, 1909, p. 20 ss. THE SACRAMENT OF MARRIAGE 167 sacrament is proposed to the faithful as a sacred sign, as the sign of something holy. It is not explicitly declared to be an effica- cious sign, but at the same time it is not put upon the same level as ordinary signs ; it is asserted to be in some way associated with the spiritual gift of grace (*). It is not, therefore, surprising that, in ancient writings, the sacramental character of marriage is not found set forth in explicit terms, and with all the scholastic precision of later times ; never- theless, it is implicitly contained therein. These ancient writers describe marriage as a holy thing, to be consecrated by the rites of religion, a ceremony vivified by grace, and so forth, as we shall presently show. The evidences are for the most part obscure and confused, but they must be interpreted, as SASSE very right- ly remarks (*), c by the light of later writings which, while making clear their true Catholic meaning, introduce no innov- ation into dogma, but rather afford an explanation and develop- ment of primitive belief ( 5 ). As concerns the Doctors who, in the early and latter part of the twelfth century, were the first, in a clear form and in an exclusive list, to teach that the sacraments are seven in number and neither more nor less, cf. GILLMANN, o. c.; DE GHELLINCK, A propos de quelques affirmations du nombre septenaire des sacrements au XII e siecle, in Reclterches de Science r eligieuse, I (1910), p. 493 ss.; POURRAT, o. c., p. 332-267 ; DE BIL, L' attestation du nombre septenaire des sacre- tnentschez Gregoire de Bergame, in the Revue des sciencts philosophiques et theologi- ques, 1912, p. 332 ss.; HEYER, Theolog. Revue, 1912, p. 189 ss. The first Conciliar text setting forth the exclusive list of the seven sacraments is that of the Synodus Londinensis (1237). Cf. SCHANZ, Die Lehre von der hi. Sakramenten der kath. KircJie Freiburg, i. B., 1893, p. 81. 1. For the evolution of the notion of sacrament, cf. POURRAT, o. c., p. 3-42 J MEERSBOOM, Le developpement du dogme et le dogme du nombre septenairt des sacrements, N. R. th., 1910, p. 607 ss. 2. O. c., II, p. 366. 3. Many dogmas of the primitive Church were known to the faithful only in an obscure and uncertain manner, and many were only implicitly believed in the beginning ; but by a gradual and continous advance, little by little they came to a more explicit knowledge, so that, as Vincent of Lerins remarks : Quod antea simpliciter credebatur, hoc idem postea diligentius crederetur ; quod antea lentius praedicabatur, hoc idem postea instantius praedicaretur . On the development of dogmas consult the Diet, de TJieol. Cath., under Dogme ; and the Revue du Clerge fr., t. LXIV, p. 456 s., and see what is said ibid., p. 448 ss., of the not very praiseworthy work of LBPICIER, De Stabilitate et pro- gressu dogmatum, a nd ed.. 1910. 168 THE SACRAMENT OF MARRIAGE For the rest, even if one regarded the silence or doubtful utter- ances of some ancient writers as indicative of their ignorance of the sacramental dignity of marriage, it would be unreasonable to infer therefrom that marriage was not in the full sense instituted by Christ as a sacrament. The fact that Christ directly instituted the sacrament of matri- mony is quite compatible with the later development of the knowledge, and especially of the precise and reflex knowledge, of the fact ; nor is there any reason why the early Christians should not have received the sacrament of marriage without being con- scious of its sacramental dignity ('). It is needless, therefore, to follow in the footsteps of certain modern writers, and have recourse to the theory of the mediate institution of some of the sacraments, and of the sacrament of marriage in particular, as if Christ had not personnally insti- tuted this sacrament, but had given to the Church a mandate to do so, when the occasion arose (*). We may say the same of the theory of implicit institution advanced by POURRAT, o. c., p. 274, who broaches the opinion, that while all the sacraments were immediately instituted by Christ, some of them, as matri- mony, c were not given to the Church fully constituted >. Now let us turn to the Fathers, the Rituals, and the icono- oo graphic monuments, yy The witness 1 . The writings of the Fathers as well as those of other eccle- Fathers ; ciastical writers, even the most ancient, not only speak of mar- riage as a sacrament, but moreover insist on its holiness, on the special blessing that Christ has bestowed upon it, on the necessity of contracting it in a holy and religious manner before the Church, and on the special dignity peculiar to Christian marriage, differentiating it from the marriages of infidels. From the same writings we may further infer that marriage is accompanied by grace. I. < Cc qui a pu s'ajouter dans la suite des siecles a ce sacrement (de mariage), ce n'est pas une institution plus explicite, ni le fait que ce sacrement aurait etc plus tard pleinement constitue", ce ne peut etre qu'une conitaissance plus explicite de ce que le Christ avait implicitement re'vele' . VAN DER HEEREN, in the Revue d'Histoireeccles., 1907, p. 803 ; Cf. Collat. Brug., t. XVI, p. 643. 3. Cf. DE BAETS, Revue Tltomiste, 1907, pp. 31 ss. ; cf. Collat. Brug., t. XVI, p. 628 ss. THE SACRAMENT OF MARRIAGE l6g ST. AUGUSTINE speaks of it thus : Our Lord, when invited, came to the marriage, that conjugal chastity might be strengthened thereby, and the sacrament of marriage shown forth > (') Again : The good that marriage procures for all nations and for all mankind, consists in the propagation of the species and conjugal fidelity ; but beyond this, for the people of God, the holiness of the sacrament which renders it unlawful, even on repudiation, to marry another..., just as when a priest is ordained for the gathering of the people, even if no gather- ing of the people follow, nevertheless, in those thus ordained the sacrament of Order remains (*). And finally : Without a doubt, the peculiar property of this sacrament is to unite a man and a woman for life, indissolubly,... as long as they live the conjugal bond unites them, which neither separation nor intercourse with another person can remove,... just as the soul of an apostate, repudiating, as it were, its marriage with Christ, even after the loss of faith, does not lose thereby the sacrament of faith that it received at the bap- tismal font > ( 3 ). St. CYRIL OF ALEXANDRIA (f 444) : Our Saviour came to the wedd- ing, not so much to assist at the festivities, as... to signify the principle of human generation... ; for, it was becoming that He, who was to renew the very nature of man, should impart his blessing not only to those who were already born, but that He should also pre- pare his grace in advance and sanctify the birth of those who were yet to be born (*). St. EPIPHANIUS (f 403) : Christ seems to me to have been invited for two purposes : firstly, in order that... He might restrain the voluptuousness of men by the chastity and honour of marriage ; and secondly, that He might make good what was wanting, and satisfy it with the sweetness of a most delightful wine and with his grace > ( 5 ). St. INNOCENT (f 417) : < Supported by the Catholic faith, we declare that marriage is that, which from the beginning was established by divine grace > ('). Pope SIRICIUS (f 398) admonishes the faithful, that the sin, which 1. In Johan., tr. IX, n 2. Mlgne, XXXV, col. 1459. 2. De Bono conjugali, cap. XXIV, n 33. Migne, XL, col. 394. 3. De nupt. ct concup., 1. I, cap. 10. Migne, XLIV, col. 430. 4. In Johan., II, 1-4. Migne, LXXIII, col. 323. 5. Haeres., LI, n 30. Migne, XLI, col. 942. 6. Epist. XXXVI ad Probum. Migne, XX, col. 603 ; HARDOUIN, o. c., I, col. looS. 170 THE SACRAMENT OF MARRIAGE violates the blessing given by the priest to the bride, is like to a sacrilege* (). St. AMBROSE (f 397) : We know that God, as the Lord and guard- ian of marriage, does not suffer that nuptial bed should be profaned by a third person, and that, if one should do so, he sins against God, whose law he violates, and of whose grace he deprives himself. He who sins in this way against God, loses the benefit of the heavenly sacrament (*). In the work entitled, TESTAMENTUM D. N. j. CH., Ed. Rahmani, 1. II, c. I, p. 113, we read : Let him (who desires to marry) marry a faithful Christian, the daughter of Christian parents, who knows how to preserve her husband in the faith ; (and let it be done) as the Bishop shall direct and ordain . ORIGEN (f about 253) : Since God is the author of the (marriage) union, those who are united by Him are the recipients of his grace ( 3 ). TERTULLIAN (born about 160) : How shall we describe the happiness of that marriage, which the Church unites, the offering (oblatio) confirms, the blessing seals, the angels proclaim, and the Father ratifies > (*). And again : If then, such a marriage is ratified by God, why should it not prove a happy one, so as not to be unduly harrassed by troubles, anxieties, obstacles and faults, since it has in part the protection of divine grace ? ( 5 ). St. CLEMENT OF ALEXANDRIA (born about 150) : Marriage is holy ; the Apostle ascribes this mystery to Christ and to the Church ( 6 ). St. IGNATIUS MARTYR, (f about 107) : It is becoming that marriage should be contracted with the advice of the Bishop, so that the marriage may be according to the Lord, and not according to concupiscence ( 7 ). Lastly we have the well known testimony of Saint Paul (Eph., V, 22-32), who speaks of marriage as a. great sacrament, uuo-rripiov n^ra( 8 ), that is to say, a great sign or symbol representing the union of Christ with the 1. Epist. i ad Himerium Episcopum Tarrac., c. 4. Mignc, XIII, col. 1136 s. ; HARDOUIN, o. c., I, col. 848. 2. De Abraham, 1. I, c. 7. Migne, XIV, col. 443. 3. Comment, in Matth.. t. XIV, n 16. Mignt, XIII, col. 1230. 4. Ad uxorem, 1. II, c. Ed. Oehler, Lipsiae, 1853. 5. Ibid., 1. II, c. 7, same edition. 6. Strom., 1. HI, c. 12. Migw, VIII, col. 1186. 7. Ad Polyc.., c. V, n 2. Ed. Funk. See SOHM, Das Recht, p. 108. 8. Protestant interpreters have both the text and the context against them; for, both refer the word sacr amentum, not to Christ and the Church, but to Christian marriage, and an exact translation of the Greek would require, not the ablative, in Christo et Ecclesia, but the accusative, in (ei?) Christwm et Ecclesiaw ; i. e., it is a mystery or sacrament in relation to Christ and the Church. THE SACRAMENT OF MARRIAGE 171 Church (i). This text, it is true, does not explicitly attribute to marriage the efficacious sign of grace, but, according to the words of the Council of Trent, Sess. XXIV, it clearly insinuates it. Saint Paul's purpose in this passage is to explain the analogy that exists between marriage and the union of Christ with the Church. Now, accord- ing to his teaching, the union of Christ with the Church is of such a kind that the bride is therein sanctified and purified by grace ; consequently marriage ought also to bring to those united in its bonds a supernatural sanctification and purification. Marriage must, therefore, be no mere sym- bol, but a sign that sanctifies efficaciously (*). 2. In the Rituals, various extracts from which are given by the witness ' , J of the Rituals, MARTENE, o. c., L. i, P. 2, we find prayers m which marriage is set forth as a holy thing to be treated in a holy manner, and in which God is prayed to fill with grace the union that He has designed (p. 614) ; to pour forth upon his servants the abundance of his blessings, that in their marriage husband and wife may be united in equal affection, in like mind, and in mutual holiness > (ibid.) ; to fill the wedded couple with spiritual blessings for the remission of their sins and for the attainment of eternal life > (p. 614 and 621). God is there invoked as He < by whom the woman is joined to the man, and at whose hands the married life, established from the beginning, receives that blessing which, alone, has not been taken away either by the punishment of original sin, or by the judgment of the deluge > (p. 619) ; there our Lord is praised for having, by his grace, in a wonderful way dis- posed that, what generation produces for the population of the world, regeneration turns to the increase of the Church (p. 622). 3. In the iconographic monuments, marriages are represented and of the as religious rites, blessed by the Church and sanctified by the presence of Our Lord. Thus sometimes the bride and bride- groom bear in their joined hands the monogram of Christ ; 1. A mystery is called a sign, especially when it has reference to something else, as in the present instance. The mystery here relates to the union of Christ with the Church, as is shown by the preceding context, and particularly by the allegory of the head and the members. 2. Cf. VLAMING, o. c., I, n 105, who develops this argument more at length. See also POHLE, o.c., Ill, p. 593 s. ; SASSE, o.c., p. 369 ss. ; SCHANZ, o.c., p. 718 ss. 172 THE SACRAMENT OF MARRIAGE sometimes Christ is represented as blessing them, or placing crowns upon their heads (*). 101. Grounds of The doctrine of the sacramental character of matrimony may be fur- .ongnn y. ^^ strengthened on grounds of congruity, as St. Thomas suggests (*), inasmuch as the sacrament of matrimony serves to perfect a man in the spiritual life, in a manner analogous to that in which he is per- fected in the physical life. For, as in the physical life there are different degrees of perfection for which provision must be made, so in the spiritual life there are corresponding degrees of perfection, for which it is con- gruous that a particular sacramental grace should be provided. As the holy Doctor says : in the physical life the perfection of the indi- vidual is two-fold, as it regards his own person, and the whole social community in which he lives, for man is naturally a social animal... In relation to the whole community man's perfection is again two-fold : as he receives the power of ruling others, and acting in a public capacity, the correlative of which in the spiritual life is the sacrament of Order... ; and as to the natural propagation of the species, which is effected by matri- mony, both in the physical and spiritual life, since it is not only a sacrament, but an office of nature . Objection. To the objection made against the sacramental character of marriage, that it does not produce what it signifies, viz., the union of Christ with the Church, we reply that, in accordance with the teaching of St. Thomas ( 3 ), we may distinguish in the sacraments a two-fold signification : in the first place they represent that which they contain, that is to say, the grace that they signify and at the same time produce ; but, in addition to this, they may represent something which they neither contain nor produce. It is in this way that the union of Christ with the Church is symbolised, but not produced by the marriage rite ; just as the baptismal ablution, besides being a sign, represents, without containing or producing them, the burial and resurrection of Our Lord. i. Cf. MARTIGNY, Dictionnaire, under Mariage chretun, p. 388 ; MARRUCCHI, o. c., p. 10 ss. ; ARMELLINI, o. c., p. 369. These two last named authors give a detailed account of a funeral monument, ascribed to the fourth century, and discovered in the Villa Albani. On this monument Christ is represented as placing crowns upon the heads of the husband and wife. a. P. HI, qu. LXV, art. I. 3. BILLOT, o. c., I, p. 23 s. THE SACRAMENT OF MARRIAGE 173 CHAPTER II. CONNECTION BETWEEN THE CONTRACT AND THE SACRAMENT. 102. PROPOSITION. In the marriage of Christians, there is no real The sacra- distinction between the contract and the sacrament of matrimony, '"monl'i^tlM but only a logical distinction. Thus the one is inseparable from the same as the J 1 contract of other, and there cannot be a legitimate matrimonial contract between marriage oe- baptized persons, which is not at the same time a sacrament. '""^^ S *~ Demonstration. The contract of marriage itself has been raised to the dignity of Proof : a sacrament. Assuredly, if Christ took the Christian contract itself, and invested it with the sacramental dignity, it is obvious that the contract and the sacrament are one and the same thing, that there is only a logical distinction between them (cum fundamento in re), and that consequently they are inseparable from one another. This consequence is strongly insisted on by the Sovereign by tfo ckva- Pontiffs. Pius IX, in his allocution of 27 Sept. 1852, on the ecclesiastical affairs of the Republics of New Granada (Colom- dignity of a bia), expressed himself thus : No Catholic is or can be ignorant that marriage is really and properly one of the seven sacraments of the evangelical law, and that consequently there cannot be among the faithful any real marriage that is not at the same time a sacrament ; that, accordingly, among Christians any other than the sacramental union, no matter how sanctioned by the civil law, is nothing but a scandalous and fatal concubinage most strongly condemned by the Church ; and therefore that the sacrament can never be separated from the matrimonial compact... ('). In like manner, Leo XIII, in his Encyclical Arcanum, says it is certain, that in Christian marriage, the contract is not separable from the sacra- ment ; no real and legitimate contract is possible, which is not by the very fact a sacrament. For, Christ has raised marriage to the dignity of a sacrament . i. DENZINGER, o, c., n 1766. 174 THE SACRAMENT OF MARRIAGE A number of ecclesiastical documents provide us with a proof that Christ did really raise the matrimonial contract to the rank of a sacrament. We find there the sacramental dignity clearly ascribed to the contract, that is to say, to the marriage itself, such as it exists in its natural character. Thus notably the Coun- cil of Trent, Sess. XXIV, Doctrina de sacr. matr., et can. i, simply states, without restriction, that marriage is a sacrament ; and comparing marriage in the Old and the New Law, it declares that the only difference between them is this, that the latter is supe- rior to the former in virtue of the sacramental grace. Moreover, what Christ raised to the rank ot a sacrament, is that which, before Him, was but a mere figurative sign of his union with the Church, that is to say, the contract of marriage. Finally, in the Syllabus of Pius IX, n 65, it is laid down in express terms, that Christ raised marriage to the dignity of a sacrament . DENZIN- GER, o. c.. n 1769. Leo XIII speaks to the same effect in the passage quoted above. Errors opposed to this doctrine : 103. Refutation of 1 . J. Nep. Nuytz taught the complete distinction between the of*Nuyiz con tract and the sacrament, asserting that the sacrament of marriage is only an accessory to the contract.... and that sacra- ment has its place only in the nuptial blessing > (*). of Mekhior 2. A second opinion, maintained by ESTIUS, in 1. IV Sent.,dist. Canus, XXVI, 10 s., following MELCHIOR CANUS, Opera Theologica, Romae, 1900, torn. II, cap. VIII, held that the sacrament of matrimony is constituted by the contract, as the matter, and by the blessing of the priest, as the form, in such a way that there is an incomplete distinction between the contract and the sacra- ment, as between the part and the whole. This opinion is fully refuted by BELLARMINE, De controversies Christ, fidei, 1. unico, de Matrimonio, cap. VI-VIII. ofBilluart, 3. A third opinion is that of the SALMANT., o. c., Tract. XI, and others, c& ^^ jjj^ ^ ^ efc ge( ^ . Q f CARRIERS, O. C., p. 93 S. ; of PONTIUS, o. c., 1. I, c. IX, n. 1-6, and of BILLUART, Summa S. Thomae, in 3 m P., torn. VI, Dist. I, art. V, sub 5. They admit that where there is a sacrament, there is always a contract, and that then i. DBNZINQER, o. c., n 1766. THE SACRAMENT OF MARRIAGE 175 they are identical ; but they deny that where there is a con- tract between Christians, there is always essentially and neces- sarily a sacrament. Thus the SALMANT., 1. c., n 78, teach : < I reply, therefore, that marriage between Christians is still separable from the sacrament ; and consequently, if one intend- ed to contract civilly, and through ill will, ignorance, or error, did not intend to receive the sacrament, the marriage would be valid as a contract... but not as a sacrament > (*). For the refutation of these errors, a simple knowledge of the Catholic teaching is sufficient. To this may be added the Church's condemnation : The error of Nuytz is condemned in the Syllabus of Pius IX, n 66, where the true teaching of the Catholic Church is declared to be, that the sacrament is not an accessory or acci- dental addition to the contract. The opinion of the Salinanticenses and Billuart, and, a fortiori, the doctrine propounded by Melchior Canus and Estius, are rejected in the same Syllabus, n 73, which condemns the following proposition : In virtue of a purely civil contract, true marriage can be had between Christians ; and it is false to say that the contract of marriage between Christians is always a sacrament, or that there is no contract if the sacrament is excluded ( J ). 104. Objection. The authors mentioned above, notably Billuart, appel to An objection 1. Cf. BILLUART, I. c. : In raising the matrimonial contract to the dignity of a sacrament, Christ has not weakened the natural efficacy of the con- tract, but only added to it a supernatural virtue, just as in giving to the baptismal ablution the sacramental character, he did not take from it its physical efficacy, but communicated to it the additional supernatural power of cleansing spiritually, in other words, of sanctifying ; and so with the other sacraments. Consequently just as the result of the baptismal ablution, without the intention of conferring the sacrament, would be a real washing of the body without producing the sacrament, so he who contracted marriage without the intention of receiving the sacrament, would make a real and valid contract without producing the sacrament, because intention is required for the validity of a sacrament . 2. DENZINGBR, o. c., n 1766 and 1773. In the Causa Colonien., vj Aug. 1910, (Ada Ap. Sedis, 1910, p. 933), the S. Rota declared that the doctrine affirming the impossibility of separating the matrimonial contract from the sacrament, concerns faith (fidei proxima) ; consequently those who deny it come very near to heresy (haeresi proximi). and its ans- wer. 176 THE SACRAMENT OF MARRIAGE the sacrament of Baptism, and say that just as there may be the ablution without the sacrament, e. g., if the minister has not the intention of con- ferring it, so there may be the matrimonial contract between Christi ns without the sacrament, with those who intend the former but not the latter. We deny the parity. Certainly in the sacrament of Marriage, as in that of Baptism, the intention to perform the sacred rite is requisite on the part of the contracting parties, who are here the ministers ; but, among Christians, when the contract is intended, the sacrament also is necessarily intended, at least implicitly, seeing that it is one with the contract, in consequence of the elevation of the latter to the sacramental dignity. On the other hand, one can perfectly well intend the ablution, without intend- ing the sacrament of Baptism, since the ablution itself is not the sacra- ment ; it is only the matter of the sacrament, of which the invocation of the most Holy Trinity is the form ; hence every ablution is not a sacra- ment, but only that to which the minister proceeds in due form and with the intention of administering the sacrament, conditions required in the case of every sacramental matter and form. 105. FaU of the Note. EsMEiN, o. c., II, p. 160, observes that the incomplete distinction \t%r n C b 6 ^ 6611 'he contract and the sacrament, proposed by Melchior Canus, is nus. contrary to the primitive teaching : c'e"tait la tradition ancienne et la doctrine constante des canonistes, qu'il etait impossible, dans le mariage des chretiens, de separer le contrat du sacrement ; que le contrat lui-meme avait 6t6 eleve par la nouvelle loi a la dignite de sacrement, et absorbe par le sacrement, si bien qu'on ne pouvait plus concevoir 1'un sans 1'autre . Elsewhere, I, p. 70 s., he speaks to this effect : Ceux qui ont imaging la distinction, ce sont les theologiens...; ce qui me parait avoir donne lieu a la distinction, ce sont certains cas ou les canonistes reconnaissaient tradition- nellement des mariages valables entre chretiens, et ou les theologiens ne trouverent pas les conditions requises pour 1'existence du sacrement, spe"- cialement quant a la forme : par ex. le mariage qu'un muet contractait par signes, le mariage contracte par procureur, les mariages presumes du droit canonique. Les theologiens, pris de ces scrupules, ne pouvaient abolir la doctrine, solide et constante des canonistes, qui reconnaissaient la validi- te de semblables mariages ; la conclusion a laquelle ils furent naturellement conduits fut de declarer que, dans ces hypotheses, le mariage des chretiens etait bien un contrat, mais non un sacrement >. This opinion, which Melchior Canus supported with a variety of proofs, was admitted and proposed by many of the Fathers at the Council of Trent ('), the more readily as they found therein an easy way of reconcil- i. ESMEIN gives a complete list of the Fathers who were of this way of think- THE SACRAMENT OF MARRIAGE 177 ing with the substantial immutability of the sacraments the power of esta- blishing matrimonial impediments, and especially of annulling clandesti- ne marriages, possessed by the Church. At a later date, the Gallicans abused this distinction to vindicate the claim of the civil law to regulate marriage in so far as it is a contract (*). One is surprised to hear Benedict XIV, De Syn. dioec., 1. VIII, c. 13, declaring very probable the opinion that teaches this distinction, as based on very solid arguments and * strengthened by the support of so many doctors . He acknowledges, however, that the contrary opinion (n4)is more common ; and this is the only one given by him in his Apostolic letter to the Archbishop of Goa, of 19 March 1578, (in the Collect,, n 1301). Corollary I. Baptized parties, really intending to make the Practicalcon- matrimonial contract, receive at the same time the sacrament. If their predominant intention was to exclude the sacrament from the contract, not only would there be no sacrament, but there would be no contract either, since they intended this last, only under an impossible condition , viz. the separation from the sacrament. Cf. THEOL. MECHL., o. c., n 27, qu. 2. i06. Corollary II. When unbaptized persons, united in lawful Marriage of marriage, receive baptism, their marriage thereby becomes a tized^becomes sacrament, and there is no need for the renewal of their consent. , a sacrament by the baptism Their marriage is not annulled by the conversion of the two par- of both ties, and so, being valid, it necessarily becomes a sacrament ; P arttes > consequently it matters little whether they have renewed their consent or not, or even if they have invalidly revoked it ; for, between baptized persons, there cannot exist a marriage that is not at the same time a sacrament. For the further explanation of the way in which a marriage formerly contracted becomes a sacrament through baptism, it is sufficient to say that, since the matrimonial consent virtually perseveres ( 2 ), it becomes a sacrament spontaneously by the fact of the baptism of the two parties, just as the consent that was previously given invalidly and still virtually ing, o. c., II, p. 369, according to THBINER, o. c., II, p. 314 ss.J but there are several of them whose words may easily be understood in the sense of a simple logical distinction. Among these may be mentioned Didacus de Payva, and the Bishops of Lanciano, Metz, Orense, and Namur. 1. See below, n s 226 and 227. 2. The consent is considered to persevere, even when the parties have revoked it, seeing that such revocation is altogether inoperative. 178 THE SACRAMENT OF MARRIAGE endures, is made valid by a sanatio in radice ('). Moreover, there is cer- tainly no reason why this consent, which morally perseveres and is outwardly manifested by a continuance of the married life or otherwise, should not constitute the sacramental sign. It follows from this that there is no necessity for a new consent to constitute the matter and form of the sacrament, as some contend. Quite apart from the fact that this theory of the necessity of a renewal of consent is irreconciliable with the identity of the contract and the sacrament, the renewed consent would serve no purpose : it could not constitute a fresh matrimonial contract, and consequently it could not serve as a new sacramental sign; since the marriage contracted in infidelity still remains valid ( 2 ). 407. but not of one Scholion. In the hypothesis that one only of the parties receives baptism, we are of opinion that the marriage does not become for him a sacrament. The reason of this is that it is impossible that the marriage bond should be sacramental for one and not for the other ; for then, by reason of the sacrament, this bond would be stronger on the one side than on the other ; which involves a contradiction. As St. Thomas says : Marriage (in facto esse) is a relation, and every relation is mutual ; consequently that which puts an obstacle to marriage on the one side, is equally an obstacle to it on the other ; it is not possible that one should be a husband without having a wife, or a wife without having a husband, just as there is no mother where there is no child. This is why it is commonly said that marriage does not limp ( 3 ). BILLOT (*) is yet more clear : As it is impossible that conjugal rights should affect only one of the parties, so also it is impossible that the obligation of the husband with respect to the wife should be stronger than that of the wife with respect to the husband, or vice versa . But if the mariage bond cannot be sacramental on one side only, the same must be said of marriage in fieri, that is to say of the giving of con- sent. For, according to the doctrine which we shall presently set forth, in n os 108 and 112, on the subject of disposing causality, the outward 1. Cf. LEITNER, Lehrb,, p. 66 s., and below, n 408. 2. For, as PERRONS observes, o. c., II, p. 281, what has once been given irrevocably cannot be given again ; but it is thus that even unbaptized parties mutually surrender to one another the ownership of their respective bodies by the contract of marriage . Cf. also BILLUART, 1. c. 3. Supplem., qu. 47, art. 2. 4. O. c., II, p. 357- THE SACRAMENT OF MARRIAGE 179 rite becomes the sign practically signifying grace ; only by means of the marriage bond, which is the res et sacramentum ('). If the line of argument that we have taken is adopted, then our solution holds good not only for the hypothesis in question, but also for the case of a marriage contracted by papal dispensation between a Christian and an unbaptized person, so that even then the marriage does not limp (*). CHAPTER III. NATURE, MINISTER, EFFECT, SUBJECT, CEREMONIES OF THE SACRAMENT OF MATRIMONY. ARTICLE 1. Nature of the sacrament. I. Meaning. m The identity established above between the Christian contract Meaning of j , , ~ , . ., j , ., the sacrament and the sacrament of matrimony permits us now to define its O f ma rriage. nature and its constituent elements. The sensible sign, the sacramentum tantum, is here the mutual consent of the parties. This consent produces the sacramental bond of marriage, which, of its nature, requires a special grace for the faithful discharge of the duties connected with it. Un- doubtedly every valid matrimonial contract produces this bond of marriage, but it is not sacramental in marriages between unbaptized persons, and therefore it does not require the infu- sion of a sacramental grace ( 3 ). 1. Without doubt it is not impossible that one only of the parties should receive the sacramental grace in marriage ; and it is quite natural that those who hold the opinion affirming the immediate causality of the sacraments, who see in the sacrament only the sensible sign directly conferring grace, without any intermediate effect, should take advantage of this to oppose our theory, as many, indeed, do. 2. There are not wanting authors who reject this last opinion, though they are in agreement with us as to the first hypothesis. For example, PERRONE, o. c , II pp. 289-294 ; LEHMKUHL, in his note on SASSE, o. c., II, pp. 390-392, though this same author, in the Catholic Encyclop., IX, p. 713 s., appears to favour the opinion given in the text. 3. For the better understanding of this idea one must keep in view the gener- al theory regarding the constitution of the sacraments and their causality. We have treated of this at length in the Coll. Brug., t. Ill, p. 517 ss. See also below, n 112, l8o THE SACRAMENT OF MARRIAGE The sacramental bond is known as the res et sacramentum ; the special grace, to which it gives a right, as the res. II. Matter and Form. 109. Matter and The proximate matter and the form of the sacrament of mar- Ftrm. r i a ge are deduced as a corollary from the definition given, and from the sacramental character of the contract, as BILLUART clearly teaches, o. c., ad Sttppl., Dissert, i, art. 7 : I say, the proximate matter of the sacrament of matrimony is the words of the contracting parties, as expressing the mutual transfer of the right of ownership over their respective bodies ; the form, these same words, as expressing the acceptance of this transfer. For the words : / take you for wife, I take you for husband, signify on each side not merely the acceptance, but moreover the transfer of personal right into the hands of the other party ; without which there would not be any marriage. Consequently the same words, looked at from different points of view, are the matter and form. Proof : The sacrament of matrimony is no other than the civil (natural) contract raised to the dignity of a sacrament, without any change affecting the matter or form ; thus the matter and form of the sacrament are those of the contract. But in civil contracts, and consequently also in the matrimonial contract, the delivery of the object or the duly manifested consent to its delivery serves as the matter, the acceptance or duly manifested con- sent to accept serves as the form. To prove the minor : The matter is the determinate element, the form the determinative... But in every civil contract, the deliver} 7 of the object is the deter- minable element, and, for a perfect contract, requires comple- tion by acceptance, which is the determinative element. The- refore... > ('). i. BENED., XIV, Litt. Ap., 19 March 1758 (Collect. ,n 1391, p. 499), teaches the same : The lawful contract is at the same time the matter and form of the sacrament of matrimony : namely, the mutual and lawful transfer ot bodies... the matter, and in like manner the mutual and lawful acceptance of the same, the form >. For other views see BENED. XIV, De Syn. dioec., 1. VIII, c. XIII. n 2, where he gives the different opinions ; St. THOMAS, in IV Sent., Dist. XXIV, qu. a, a. i ; SANCHEZ, o. c., 1. II, Disp. V, ns 6-7 ; SALMANTIC., o. c., Tr. IX. c. Ill, dub. II; SUAREZ, Disputationum in Itrt. Part. S. Thomae, Tom. III. THE SACRAMENT OF MARRIAGE l8l There is no opposition between this theory and the doctrine of the Council of Florence, which teaches that the mutual consent is the efficient cause of marriage ; for, the word marriage is there used in the sense of the marriage bond, i. e., of marriage in facto esse, of which the consent is in fact the efficient cause. ARTICLE 2. Minister of the sacrament. PROPOSITION. The contracting parties themselves are the ministers of the sacrament. A. Proofs : 110. 1 The first and principal argument is drawn from the identity The contract- of the sacrament and the contract, in the case of baptized per- arethe'minis- sons ; from this identity it clearlv follows that the parties making ters f the sacrament. the contract produce the sacrament, and consequently are the ministers of it. 2. As a confirmation of this, we may add that clandestine mar- riages, contracted by the parties alone and without the presence of a third person, are valid of themselves, as regards both the con- tract and the sacrament : of course, in so far as they are not invalidated by the Church ('). Thus, even at the present day, all marriages of this kind, that are exempt from the law of clan- destinity, are perfectly valid. 3. Finally, in order to show that the minister of this sacra- ment is neither the parish priest nor the delegated priest, whose presence is required for the validity of marriages subject to the law of clandestinity, it is sufficient to turn to the preparation of the decree Tameisi during the Council of Trent. \Ve there clearly see that the office of the priest is merely that of an authorized wit- ness. In fact, the first two propositions submitted to the Fathers of the Council required only the presence of any three witnesses whatsoever ; the two following required that one of the three witnesses should be a priest, but they restricted his office to that Disp. II, sect, i ; BELLARMINE, o. c., c. 6. PALMIERI, o.c., thesis X, sub VII ; WERNZ, o. c., n 47, together with note 199. i. Although it is not to be doubted that clandestine marriages, made with the free consent of the contracting parties, are valid and true marriages, so long as the Church has not invalidated them... . Cone. Trid., Sess. XXIV, c. I, DC Reformations Matrimonii. 182 THE SACRAMENT OF MARRIAGE of a simple witness ; some even wished to substitute a notary for him ('). B. Explanation. 1. Baptized parties bring the sacrament into being by the self- same giving of consent that produces the contract ; and the words by which they express this consent, constitute at the same time the matter and form of the sacrament : the matter, in that they express the mutual transfer of the right of ownership over their respective bodies ; the form, in that they express the acceptance of this transfer, according to what we have said above in art. i. To speak precisely, the contracting parties discharge the office of ministers in that they place the form of the sacrament ; in other words, inasmuch as their acceptance ratifies the transfer of ownership made by the respective parties, not in that they place the matter and the form (*). 2. It does not matter if the parties are ignorant of their ministe- rial office ; for by the very fact that they intend to contract marriage in accordance with the divine institution and the prac- tice of the Church, they have the intention of doing what the Church does, that is to say, what Christ instituted ( 5 ). But, apart from any special objection to such a course, there is no reason why they should not be enlightened on this subject, what- ever some writers may think of it. Such knowledge is of a nature to increase in them the respect due to the sacrament, and to encourage them to approach it more worthily. I. The Holy Synod, according to the first formula, ordained and decreed that those marriages which for the future should be contracted secretly, without the presence of three witnesses, should be invalid and null >. THEINER, o. c., II, p. 314 ; in the following pages he gives the other formulas also. See too PERRONE, O. C., I, p. I49-I5a J ESMEIN, O. C., II, p. 155-169. a. This gives us an opportunity of answering a possible objection to the effect that, according to us, Christ himself would contract marriage, since He is the principal minister of the sacrament, and that therefore to Him, as the principal agent, the action of the ministerial cause must be attributed. We reply that the office of minister, as such, is confined to the simple ratification of the mutual transfer, and that it is not unworthy of Christ, in His sovereign capacity, to sanction and seal the marriage bond. 3. THEOL. MECHL., o. c., n 30. THE SACRAMENT OF MARRIAGE 183 3. In marriages contracted by proxy or through an interpreter, these are not the ministers, but only the principals for whom they act('). Note. Mdchior Canus is the principal opponent of the common doctrine, and he holds that the priest is the minister of the sacrament of matrimony. His theory is a logical consequence of the opinion that he held as to the incomplete distinction between the matrimonial contract and the sacra- ment, regarding the contract as the matter, and the blessing given by the priest as the form. As we have said above, n 105, one is surprised to find Benedict XIV, De Synodo dioeces., 1. VIII, c. 13, n s 2 and 4, declaring this opinion solidly established and very probable on account of the extrinsic authority of the Doctors favouring it, especially William of Paris and Paludanus (*). Ill 9 Corollary. The words used by the priest in blessing the marriage : I Office of the join you in marriage, in the name of..., do not constitute in any ^^y thtmayriapc the form of the sacrament, nor do they contribute at all to the constitution either of the contract or of the sacrament. This is clear from what has been said above, and receives confirmation from the action of the Council of Trent in permitting the priest to use other words, according to the receiv- ed rite of each province ( 3 ). Moreover, as MARTENE observes, o. c., 1. I, 1. This is why, in marriages of this kind, the principals, that is to say, the real contracting parties, must have at the moment when the consent is given by their proxy, and when consequently the sacrament is constituted, at least a virtual intention of contracting marriage and receiving the sacrament, and a merely habitual intention does not suffice, as LEHMKUHL declares, o. c., II, n 49. The intention of the principal virtually perseveres in the commission previously given by him, and in virtue of which, consent is given by his proxy ; conse- quently it matters not if, at the moment the consent is manifested and the sacra- ment constituted, the real contracting party does not advert to it, or is drunk, or asleep, or even temporally insane. See the solution of the case given in the Anal, eccles., 1901, p. 43053., also above, n7g. 2. The like doctrine is maintained in the Tractatus TJieologiat Nanceiensis, to be found in MIGNE, Theologiae Cursus Completes, torn. XXV, Paris, 1863, col. 790 ss. There, inter alia, appeal is made to the decree of the Council of Florence, in which it is taught that the sacraments are constituted by words as the form, while the contracting parties can contract marriage by signs of assent ; but no attention is paid to the fact that the words are not to be taken too literally, and that the force of them must not be unduly insisted upon, seeing that the same decree teaches that the matter consists in things (rebus), though in the sacrament of Penance the acts of the penitent constitute the matter. 3. Sess. XXIV, 1. c. ; cf. BENED. XIV, De Sytt. dioec., 1. VIH, c. XIII, no 6 : The Church would not have tolerated such a variety of formulas, much less 184 THE SACRAMENT OF MARRIAGE P. 2, c. IX, art. 3, these words were not used in former times, and are not found in the ancient rituals. The words pronounced by the priest signify that the marriage which has just been contracted is ratified and solemnized by the Church through his instrumentality, and this is clearly shown by the various formulas employed in different places (*). Still it is quite intelligible that the priest should often be spoken of as the minister of the sacrament by those who are not in the habit of speaking in the precise language of theology. For he is the authorized witness assisting at the marriage in the name of the Church ; and moreover acts as the minis- ter of the liturgical rites that surround the sacrament, as it occurs in the supplying of the ceremonies omitted in private baptism. The blessing given by the priest is a sacramental (sacramentale quod- . dam), and, being given in the name of the Church, it is efficacious in bring- ing down the blessing of God upon the newly married pair. * ARTICLE 3. Effects of the sacrament. 112. Effects of the In the whole of this section, the word marriage is used as sacramen . s ig n if vm g th e sacramentum tantum, i. e., the sensible sign ; it accordingly signifies the actual consent, and not the res et sacra- mentum, that is to say, the conjugal bond, to which the term sacrament is also sometimes applied in a looser sense. the conjugal The first effect, the res et sacramentum, is the conjugal bond, >on ' whereby husband and wife are united and associated with one another as a common principle for the generation and education of children ; this bond requires, as a disposing cause, the infusion of the sacramental grace ( 2 ). It lasts until dissolved by some legi- timate cause, e. g. by the death of one of the parties. and tlie grace. The second effect, the res, in the grace itself, the habitual or sanctifying grace which, in so far as it is peculiar to this sacra- ment, gives an unfailing right to those abundant actual graces have allowed each country its choice, had it regarded the sacrament of marriage as constituted by the words of the priest . 1. The following are specimens given by PERRONE, o. c., I, p. 154 : Therefore I confirm, ratify and bless the marriage that you have contracted, in the name of the Father, etc. . < May God confirm the marriage that you have contracted before the Church, and I, by the authority of the Church of God, approve, per- fect and solemnize it, in the name of the Father, etc. 2. Concerning the nature of the res et sacramentum and its relation to grace, see the Coll. Bvug,, t. Ill, p. 518 ss. THE SACRAMENT OF MARRIAGE 185 that enable husband and wife to bring up their children in holi- ness, to dwell together in peace, and duly to fulfil the other duties of their married state. The grace of the sacrament is of itself the gratia secunda, since the conjugal bond, whereby husband and wife become a principle for the procreation of offspring to the multiplication of the chil- dren of God, naturally supposes that they are themselves the children of God through grace. Nevertheless, under exceptional circumstances, marriage confers the gratia prima, viz., in the case of one who marries in a state of grievous sin of which he is unconscious, but who has at least habitual attrition. The first effect invariably follows the valid reception of the sacrament, i. e., the valid matrimonial contract between baptized parties. The second is produced as often as there is no obstacle in the way of the grace. If there is an absolute obstacle, that is to say, a state of grievous sin that is conscious, or even unconscious, but with a habitual attachment to grievous sin, grace is altogether wanting, and the sacrament without fruit. If there is a relative obstacle, the sacrament is relatively unfruitful. The sacrament of marriage received validly, but unfruitfully, may revive during the persistence of the res et sacramentum or sacramental conjugal union ; for that, it is necessary that the obstacle, whether absolute or relative, should be removed. Observe that, while the sacrament of marriage cannot exist in one of the parties without at the same time existing in the other, it may nevertheless be fruitful for the one and unfruitful for the other ; and in like manner it may revive for the one without reviving for the other. ARTICLE 4. Subject of the sacrament. 113 I. The subjects capable of receiving the sacrament of marriage Capable sub- are respectively a man and woman, who are capable (') of Jects - contracting validly and are both baptized. II. For the validity of the sacrament, in addition to the valid Dispositions i. We shall speak later on of the conditions required for the ability of the contracting parties, when we treat of the impediments of marriage. i86 THE SACRAMENT OF MARRIAGE of the sub- ject : for the valid- ity of the sacrament ; m. for its effi- cacy ; (16. for its law- fulness. Preliminary confession is not strictly required, either by the divine law, and lawful consent, it is necessary that there should be the intention of receiving the sacrament, and the intention, at least implicit and virtual, of bringing it about in the name and by the authority of Christ. This twofold intention, as we have said, is sufficiently contained in the will to contract marriage in the manner that Christians contract it. III. In order that the sacrament may be fruitful, it is necessary to remove every obstacle, whether absolute or relative, according as it is a question of the fructuositas simpliciter vel secundum quid. The absolute obstacle is removed, for him who is conscious of his sin, by the recovery of the state of grace in any way whatever ; for him who is not conscious of his sin, by the withdrawal of all attachment to mortal sin. He who knowingly receives the sacrament of marriage in mortal sin receives it unworthily, and therefore commits a sin of sacrilege. It cannot, however, be said, as a general rule, that he commits another sin in that he is an unworthy minister ; because, in the first place, it is doubtful if on this head a new species of sin is added, to the former, and, in the second place, even if it is added, objectively speaking, the delinquent will not, as a rule, be guilty of it, owing to the want of advertence. IV. That the reception of the sacrament may be lawful : We are not speaking here of the different formalities required by marriage as a contract, and we also omit for the present the question of necessary religious instruction, of which we shall speak below in n 331, but we will now give our attention to the much debated point, whether it is or is not necessary that sacra- mental confession should precede the reception of the sacrament of matrimony. It seems quite clear that no divine or ecclesiastical precept prescribes preliminary confession. For : A. The divine law does not of itself impose it. It is true that marriage is a sacrament of the living, and so, by the divine law, is to be received in a state of grace ; but grace already exists in the souls of the just, and sinners can obtain it by a perfect act of contrition. There is no positive divine law which makes confession obligatory for them, as a preparation for marriage ; such as exists, for example, with regard to the reception of Holy Com- munion. THE SACRAMENT OF MARRIAGE 187 B. The common ecclesiastical law is equally silent on the point or by the T _- common eccw- and prescribes nothing. Thus the Council of Trent, bess. XAlv, s iastical law, cap. I, De Reformatione Matrimonii, exhorts, but does not oblige, the parties, before contracting marriage, or at least three days before its consummation ('), carefully to confess their sins, and piously approach the Most Holy Sacrament of the Eucharist . The Roman Ritual, De Sacr. Matrim., n 17, desires that the parish priest should admonish the parties, before contracting marriage, to confess their sins carefully, and piously approach to the Most Holy Eucharist, and to the reception of the sacrament of Matrimony . This admonition, to be made by the parish priest, considering the discipline of the Council of Trent, does not imply a real precept binding the parties about to be married, as BARRU- FALDI admits, Commentaria ad Rit. Rom., tit. XLI, n 181. C. The diocesan law, in many places, and in particular in the or by the .. r T-, i r diocesan law, diocese of Bruges, more or less requires preliminary conles- sion ( J ). But one may well ask if this discipline concerning 1. This exhortation to confession and communion is especially directed against witchcraft, which, in the common opinion of the time, often prevented intercourse, brought about sterility in women, or procured abortion. As an efficacious remedy against such evil machinations, the Fathers of the Council recommended the pious frcquentation of the sacraments, and this is why they insist that the parties should go to confession and communion, if not before the marriage, at least three days before its consummation, as a preparation for it, having before their eyes the counsel of the Angel Raphael to Tobias, Tob., VI. Such witchcraft,\n the Middle Ages and indeed long after, had the reputation of being in extensive use, and many diocesan decrees provided various penalties against it, which may be found, in the Nouv. Rev. theol., V, p-3O4 seq. Among the cases formerly reserved in the diocese of Bruges, a treatise dating from about 1752, mentions, p. 112, the ligatura, a species of witchcraft, called by the Flemings den nestelinck knopen >, and by the French nouer 1'aiguillette . The effect of this, says the work in question, was, to render husbands cold and bewitched, i. e., unfit for the conjugal act > ; it was worked by making a certain knot while pronouncing certain words, and was employed also for procuring abortions and difficult confinements, and for causing children to die before baptism . The author adds that this practice was at that time more common, especially in the country, among young people under the influence of love and jealousy, than one unacquainted with the matter could bring himself to believe*. Cf. FRANZ, o. c., II, p. 178-184. 2. The Liber Manualis of the diocese of Bruges has, p. 189 : Those intending to marry must be admonished to go to confession at least three days before the 188 THE SACRAMENT OF MARRIAGE going to confession immediately before marriage, is of precept, or merely of direction and advice. The Nonv. Rev. theol. does not decide the question, in its article in vol. V, p. 314. Yet on the one hand, the wording of the decrees does not oblige us to regard them as imposing a strict obligation on the parties under pain of refusal of marriage ; and on the other hand it is more in conformity with the principles of the law, to interpret the regulation in its less rigorous sense. And in truth, as we have just seen, preliminary confession is not required either by the divine law or by the common ecclesiastical law ; and those who omit it do not deserve always and indiscriminately to be deprived of the nuptial blessing, for instance, such as have no mortal sin on their consciences. Moreover, we must remember that the Bishop has no power to set up fresh impedient impediments to marriage, as Benedict XIV acknowledges, De Syn. dioeces., 1. VIII, cap. XIV, ^ 5. but is to be In addition to this, episcopal and synodal decrees exacting evidence of confession, have more than once been modified by Rome, in the sense that evidence of confession may be asked for, but not exacted ('), and consequently, that marriage may not be refused to the recalcitrant ( 2 ). Cf. the decree of the S. C. de P. F., of 21 Sept. 1840 (Collectan., n. 197) ( 3 ) ; and compare with the decree of the same Congregation of 17 Apr. solemnization of their marriage, and to go to communion on the day preceding it... Moreover he (the parish priest) will direct them to bring him, before the celebration of the marriage, their billet de confession . It further says : It is also our desire, in order to avoid various difficulties, and to ensure the more fruitful reception of the sacrament of matrimony, that the Rev. parish priests should advise those about to marry to approach the sacraments, on the day on which the first publication of their banns is made, as that is a solemn occasion for them . 1. The preliminary confession is undoubtedly very opportune, and even the two confessions at fixed dates, as recommended in the diocese of Bruges : that so any impediment may be the more readily discovered in time, and embarrass- ment avoided. 2. For the line of conduct to be adopted towards them, see below, n 118. 3. The Sacred Congregation, when asked to approve a decree exacting evidence of confession, replied : quoad fidem confessionis, suadendum ut exhibeant ; sed, si renuant, non ideo a matrimonio excludendi . THE SACRAMENT OF MARRIAGE 189 1820 (ibid., in note, and n. 1521) ; also the decree of the S. C. C., of 28 Aug. 1852, in the Analecta jur. Pont., I, p. 704 ss., and BANGEN, Instr. prat., II, p. 233 ss. Cf. also DE BECKER, De Matr., p. 267 ; Collat. Nam., 1904, pp. 85 s. ; Nederl. Kaih. Stemmen, 1905, p. 21 ss. ; and, in a different sense, Rev. du clerge fran$ais, t. L, p. 745 ss. Scholion. Assistance of the parish priest at the marriage of persons unworthy to receive the sacrament. A. If they are occult sinners : ^ The parish priest who knows of the bad dispositions of a When and prospective bride or bridegroom through confession only, cannot parish priest refuse to assist at the marriage, even when celebrated secretly : assist * ^ l6 marriage : but in the confession itself he can and ought prudently to deter the penitent from such a sacrilege ('). If his knowledge is/ of an oc- derived from extra-sacramental information, he ought still to permit the marriage when it is to be celebrated publicly, but not when it is to take place privately. B. If it is a question of public sinners ( 2 ) : 2 of a public 1. Ordinary public sinners are such as, through their own a ) S ordinary fault, are ignorant of the rudiments of Christian doctrine, and refuse to fulfil their religious duties, though without denying their faith. A parish priest cannot assist at their marriage, except for some grave and proportionate reason. Such assistance is of itself illicit, seeing that it involves coope- ration (in a wide sense) with the sacrilege committed by the unworthy party, and the more so, as the parish priest is bound in justice to watch over the safety of his people and keep them from sin. Nevertheless, this cooperation is permissible, as often as there is a proportionate excusing cause. This will be the case whenever the good of a third party, e. g., of a child, or the good of the 1. It may sometimes be best to say nothing, when the party concerned is more or less in good faith, and there is no prospect that the admonition will prove effective. 2. We do not speak here of pagans and heretics. With regard to them, it is necessary to take into account the special laws of the Church, of which we shall speak, when dealing with the impediment of disparitas cultus and of mixtae reli- gionis. 190 . THE SACRAMENT OF MARRIAGE contracting parties themselves, or the necessity of preventing further sins, or of avoiding scandals, demands the marriage. Thus, a parish priest may often proceed with a marriage of this kind, if it is a question legitimating a child already born, or shortly expected ; if it is a matter of preventing or putting an end to the scandal of an unlawful cohabitation, or of a civil marriage ; or if the interests of the properly disposed party, who cannot without grave inconvenience give up the marriage, require it. b) infamous. 2. A second class of public sinners comprises those who, in theological language, are designated as being taxed with infamy (* infames *), such as excommunicated persons, freemasons, and those who have abjured the faith. With regard to them : a/ The parish priest can never assist at the marriage of a per- son who is publicly excommunicated and vitandus (e. g., one excom- municated by name and denounced as such, or a notorious per- cussor clericorum) except in a case of very great, not to say extreme, necessity ; for the Church forbids communion with such in religious matters. b/ As regards persons publicly excommunicated, but not vitandi, or those notoriously belonging to freemasonry or some similar sect ('), the parish priest should refer to the Bishop. It is for him to decide in each particular case, according to the circumstances, and with a due regard for the evils that a refusal might entail, if he will permit the religious marriage to take place, and under what conditions and safeguards ( a ). An answer from Rome, given in 1860, and a decree issued in 1883, require the omission of the celebration of the Mass (and 1. Cf. DE BRABANDERE-VAN COILLIE, o. c., n 1457 and notably n 1319, where he says that < socialism ought to be classed with societies of a masonic nature , since it is a society that conspires against the Church and lawful authority ; nevertheless those affiliated to any socialist group, no matter what, do not all lie under the censure contained in the Constitution Apostolicae Sedis, and many among them do not incur this excommunication, because they are ignorant of the objects of socialism. 2. See the reply of the S. Penit., of loDec. 1860 ; the decree of the C. S. O., of 21 Aug. 1861 ; the decree of the C. S. O., of 31 Feb. 1863 (in the Collect, de Prop. Fide, ns 1538, 1529, and 1534) ; and the decree of 28 June 1865, embodied in the decrees of the C. S. O. of 33 Apr. 1873 (Collect., n 1552) and of 30 Jan. 1867, ad I" 1 ; this second decree is given in the decree of the C. S. O. of 25 May 1897 (Collut. Bru%., t. Ill, p. 350). THE SACRAMENT OF MARRIAGE 19 1 consequently of the solemn blessing also, which is given during the Mass), unless there are imperative reasons to the contrary. According to a decree of 1865, as quoted in the decree of 1873, every ecclesiastical rite is to be excluded ( d ) ; but this text, as quoted in the decree of 1897, is no longer so categorical, and the whole question is left to the decision of the Bishop, at least, according to the decree of 1883, until the Apostolic See shall have issued a general decree on the subject ( a ). c/ If it is a question of a marriage between a Catholic and a (baptized) person who has renounced the faith (like most unbelievers and freethinkers of the present day, who only ask for a religious marriage out of deference to their brides), but who has not joined any false religion or heretical sect, the parish priest ought first of all to do his best to break off the engagement. If he cannot succeed in this, and has reason to fear that, if he refuses to assist at the marriage, there may be a grave scandal or other serious evil, he must lay the matter before the Bishop, who, making use of the faculty now granted to him ( 3 ), after due consideration of all the circumstances, will be able to permit the passive assistance of the parish priest as an authorized witness, provided he is satisfied as to the Ca- tholic education of the children and other like conditions . Deer. of the C. S. O. of 30 Jan. 1867, ad i m , given in the deer, of 1897, 1. c. 1. See also the Instruct of the C. S. O. of 5 July 1878, addressed to the Ordi- naries of the Empire of Brazil : It can in no way be tolerated... that marriages contracted by freemasons should be celebrated with all the solemnity of the Catholic rite... But when the parish priest is quite unable to prevent such a marriage... recourse must be had to the Ordinary, who... will be able to permit the parish priest to assist at the marriage passively, i. e., without the blessing and other ecclesiastical rite, but merely as an authorized witness . In the Collect., n 1863. 2. In the diocese of Bruges the Mass is always forbidden, and the preliminary conditions imposed, especially as to the education of the children and the danger of perversion for the Catholic party. 3. To the amended question : Are the words of the decree of the C. S. O., of Wednesday 30 Jan. 1867, ad i : ' The case must be laid before the Bishop, who, making use of the faculty that has now been granted to him ' , applicable to all the Bishops ?, a reply was given in 1899 : Affirmatively, after audience with His Holiness . Anal, eccles., VII, p. 144. 192 THE SACRAMENT OF MARRIAGE What is According to the Litt. Apost. of Gregory XVI, 30 Apr. 1841 slvc assist' (Collect., n 1428), passive assistance is material presence with- tanci. out any ecclesiastical rite ; consequently the parish priest is forbidden to appear in any sacred vestment, and must be present, as they say, in nigris. He must omit all the cere- monies of the Roman Ritual, the words : Ego vos conjungo..., the blessing of the ring, the prayers and, a fortiori, the Mass and the nuptial blessing. Since the decree Ne Temere, however, it is not enough that he should merely hear the words of consent, he must also personally ask and receive the consent of the contracting parties ('). The conditions to be imposed, besides the Catholic education of all the children, are that the party, who has abandoned the Faith, should promise the Catholic party freedom in the practice of religion, and that the Catholic party should earn- estly strive to bring about the conversion of the other party. H8. Observations. Note 1. If there is time for recourse to the Bishop, the parish priest should always consult him before refusing to assist at the marriage of those who are unworthy, even outside of the cases mentioned under b/ and c/. If the circumstances do not admit of delay, he will then act in accordance with the rules indicated. 2. In refusing the unworthy, the Bishop and the parish priest do not set up any matrimonial impediment : that is beyond their powers. The impediment, if the unworthiness of the subject (*) can be called such, is already in existence, and the Bishop and parish priest only shape their course accordingly. Moreover, the Bishop and the parish priest (the latter only provisionally) are generally recognised as having the power to stop a marriage, even apart from the unworthiness of the subject, for a good and reasonable cause, e. g., to put an end to a scandal, and that as long as the cause exists (*). 1. See above, n 64, and below, n 257. 2. Strictly speaking, the impediment directly affects the marriage as a contract, and not as a sacrament. See below, n 234. 3. See below, n 221 and n 244 ; cf. BBNED. XIV, De Syn. diosc., 1. VIII, c. XIV, n 5 ; GASPARRI, o. c., I, n<>s 199 ss.; BANGEN, Instr . Pract., II, n s 233 ss. ; DE BECKER, De Matr., p. 392 ss. THE SACRAMENT OF MARRIAGE 193 3. As we have said above, parties who refuse to go to con- fession before marriage, cannot be considered, by the very fact and by thai alone, as public sinners, and as such be denied the religious rites of marriage. Nevertheless, as a matter of fact, it will rarely happen that, in such a case, the Bishop and parish priest will not have, on other grounds, some canonical reason for opposing the marriage, at least provisionally, and with due regard to the circumstances. For, such a refusal to go to confession will scarcely ever occur, except on the part of those who in other respects make a practice of neglecting their duties as Christians, and are consequently to be treated as public sinners. ARTICLE 5. Ceremonies of the Sacrament of Marriage. I. Rites actually in force. 119. We assume here the observance of the formalities required by Rites of the the Decree Ne Temere for the validity of the contract ; the further principal prescriptions are as follow : /. actual rites : 1. According to common law: a) by common law, The ceremonies of the Roman Ritual must be observed,Tit. VII, chap, i and 2, viz. the asking and giving the consent, blessing the nuptial ring and putting it on the finger ; then, if desired, the celebration of the Mass pro sponso et sponsa, with the solemn bene- diction which it contains. Cf. Collat. Brug., t. XIII, p. 384 s. The Mass pro sponso et sponsa is a special votive Mass, contained in the Roman Missal ; it begins with the introit : Dem Israel, and has proper prayers. The solemn nuptial blessing is inserted in it ; it consists of the prayers: PropitiareDomine... Deus quipotestate... to be said between the Pater Noster and the Libera Nos ; and of the prayer : Deus Abraham..., to be recited before the Placeat tibi S. Trinitas. The Mass pro sponso et sponsa and the above blessing must be omitted when the woman has already received it in a former mar- riage ('), and also in the case of mixed marriages as we shall see farther on. I. The Rit. Rom., tit. VII, chap. I, n 15, says that the solemn blessing must 13 194 THE SACRAMENT OF MARRIAGE Outside these cases and the forbidden times, the marriage may always be blessed solemnly with Mass, even though the rubrics do not allow the Nuptial Mass (') ; the Mass of the day is then said with a commemoration from the nuptial Mass, and the blessing is given just as in that Mass. The Church earnestly desires that all marriages that are not mixed marriages, and in which the bride has not formerly received the solemn blessing, should be blessed in this way, i. e. with Mass ( 2 ) ; for this blessing cannot be given without the Mass ( ! ). For this reason, in case the priest cannot apply the Mass to the married couple themselves, because they pay no honorarium, the decree of the C.S.O., of Sept 1841, declares that the celebrant can take another intention, and that he satisfies his obligation by the Mass pro sponso et sponsa, unless he who gives the offering definitely desires another (*). The Holy See also desires that this blessing be given to all those who did not receive it when they were married, no matter why, even if they ask for it after having been married a long time . Moreover, it prescribes that these same Catholic couples should be exhorted to ask for it, as soon as pos- sible, if they have not received the nuptial blessing . Decree of the C. S. O. Aug. 3i st 1881 ('). also be omitted in the case of the remarriage of a widower J it adds however, that where the contrary custom exists, in the case of a widower marrying a young girl, it must be observed . This question is now however (in all probabi- lity) settled by the Decree of the C. S. O., of the 3it of August 1881 (quoted in the Coll. Brug., t. I, p. 97), which enjoins the giving of the solemn blessing, with the single exception : provided that the woman, if she is a widow, has not already received it in a former marriage . In any case, the custom exists, in our countries, of blessing the marriages of widowers with young girls, and conse- quently is rightly followed and should be adhered to. 1. As is the case (outside the forbidden times) for Sundays, Holydays of obli- gation, doubles of the I st and 2 nd class ; also the whole octave of the Epiphany, the vigil and the whole octave of Pentecost, and the whole octave of the feast of Corpus Christi : in a word, all those days that exclude the offices of doubles of the 2 nd class. 2. Consult Collat. Brug., t. I, p. 98; A.A.S., I, p. 255, where the decree of the Holy See, Feb. 12 th 1909, is cited. 3. See appendix for England. 4. Collat. Brug., I, p. 101, and t. IV, p. 184 ss. 5. Cf. Coll. Brug., t. I, p. 97 and 100, and also t. IV, p. 254 ss., and t. XII, p. 35S. THE SACRAMENT OF MARRIAGE 195 no. 2. Prescriptions of diocesan law (diocese of Bruges) : b) by diocesan ,,. , , law (diocese We nave observed that the ceremonies of the Kit- Rom. do not exclude of Bruges). particular rites ; the Ritual even says explicitly, that instead of the formula, Ego conjungo, other words may be used, according to the rite observed in each province*; and at the end it adds : If there are provinces that have to-dayother usages and laudable ceremonies for the celebration of marriage, the Holy Synod of Trent desires that they observe them . In accordance with these ideas, different rites obtain in different dioceses. Thus, in the diocese of Bruges, the Bishop, by a decree dated Oct. 14, 1897, approved of certain introductory ceremonies to the celebration of the Mass, and ord- ered them to be observed, along with the prescriptions of the Rit. Rom. ('). For example : before asking for the marriage consent, the priest sprink- les the betrothed couple with holy water, and explains to them the nature of the grace that they are about to receive, and the gravity of the obligation that they are about to undertake. For the giving of the consent, he not only tells the parties to give the right hand, but he puts the stole round the two hands, after which he asks for the consent according to the Ritual, keeping the formula : Ego vos conjungo. Then he removes the stole, sprinkles the couple with holy water, blesses and passes the ring, still according to the Ritual. The service concludes with the ceremonies which the Pastorale Brug., p. i32 s., formerly prescribed for the marriages of widows : The husband ascends to the altar in a respectful manner, followed by his spouse ; he kisses the altar himself first and then his spouse kisses it, both then kneel on the top step, and the priest standing before them and facing them, recites the following prayer : Let us pray : Lord, turn thine eyes upon this union ; and as thou didst send thine holy angel the peaceful Raphael to Tobias and Sarah, daughter ofRaguel, even so, Lord, deign to grant thypotection to these thy servants here, that they may continue to accomplish thy will, may live and grow old in thy love, and may have a numerous and lasting posterity. Through Christ Our Lord. Amen. May the grace of Our Lord Jesus Christ, Divine charity and the out- pouring of the Holy Ghost, be always with you. Amen ( 2 ). Note. 1. As regards the place where the marriage should be celebrated, Remarks con- the Rit. Rom., Tit. VII, chap. I, n 16, says : It is above all proper to ^ningthe place of cele- bration. 1. Cf. Coll. Brug., 1. 1, p. 601 ss. 2. The vilatio capitis, which consisted in placing the stole in the form of a cross on the heads of the parties, has been abolished ; likewise, the particular nuptial blessing which is given outside the Mass, and which, according to the Past. Brug., p. 129 ss., was formerly in use for the marriages of young girls. 196 THE SACRAMENT OF MARRIAGE celebrate it in the church . According to the Pastorale Brug., p. 123, the disciplinary measures of which are still in force, the marriage cannot be celebrated elsewhere than in the church, except in the case of grave necessity ('), which must be left to the decision of the Ordinary,unless there be danger of death . This necessity may arise from different causes, e. g. from the inability of one of the parties to go to the church (*), or from the necessity of secretly re-establishing a marriage invalid through occult crime. There is evidently an imperative reason for celebrating the marriage at home, when there is question of the marriage of a dying person in extremis, as we have said ; for the rest, in this case, other and different special prescriptions must still be observed, which will be made known in the course of this treatise, especially in n 401. Marriage by 2. As regards marriage by proxy or by letter, no special ceremony is Proxy. required ; it is however evidently to be observed, as we have said above, in n os 62, 70 and ico, that the formalities must be carried out which arise either from natural or positive law, for the validity of the consent given in this manner. Let us here recall, in accordance with what we said in n 119, the duty of counselling the parties to seek the nuptial blessing on the first oppor- tunity. II. Ancient rites ( 3 ). 2. Ancient In former times, was first celebrated the betrothal ; this was generally rites. I. Save also, as is clear, the cases in wich the Church forbids the celebration of the marriages in the church, as for example, mixed marriages, and those of certain sinners, called in canonical language infamous (infames), according to the rules given in n 117. 3. This impossibility occured twice in the diocese of Bruges, in the one year 1903. 3, The rites described here are those that are found in various medieval rituals and ordinals, especially in France, England and Germany. Originally, in many places, marriage was contracted by the consent of the parties mutually given in the presence of the parents, relations and friends, with or without the presence of the priest ; thereafter was added, as a distinct ceremony, the solemnization of the marriage, with various religious rites, especially that of attendance at the church and at Mass (Kirchgang, as it was called), with, in the course of time, the special nuptial blessing. Cf. FRIEDBERG, Das Recht., p. 8 s.; HOWARD, o. c., I, p. 291-308 ; LICHTENBERGER, o. c., p. 54 s.; SOHM, Das Recht, p. 158. At a later date, probably under the influence of the fact that the regu- lation of marriage had passed into the hands of the Church, the giving of consent also took place with religious rites at the door of the church, and with it was intimately connected the solemnization of the marriage by THE SACRAMENT OF MARRIAGE 197 contracted before the church, in presence of the priest and three or four witnesses ; the ring and contract money (') were exchanged, and the pro- mise of future marriage was entered in the matrimonial register. Later on, the marriage was solemnized : 1. The betrothed were presented to either the assistant or the parish priest by their parents, or their guardians, or the bridesman ( 2 ) ; this presentation of the betrothed, with the different ceremonies that followed it, and the giving of the consent, took place before the outer door of the church ( 3 ) : hence the expression : to be married before the church (*). 2. The right hands of the betrothed were joined, and in this position they exchanged their vows. The joining of the right hands, which was also the custom among the Romans ( s ), was done by the priest, who put the right means of the Kirchgang and accompanying ceremonies, as will be presently described. This was not, however, universally in use ; thus at Courtrai, in Flanders, according to a document of 1512, the solemnization of the marriage, took place on the Sunday following, on which day ad officium infra maioris missae solemnia venire debebant (nupti) oblationes suas ibidem facturi et matri- monium husjusmodi solemnizaturi ; vel si omiserint, debebant... summam aliquam solvere nomine redemptionis >. i. The Subarrhatio consisted in the gift of a ring from the man to his future wife (sometimes the gift was reciprocal), as a pledge or earnest of his plighted troth. Sometimes other presents were added for the same reason. See above,under n 15. 2. This office of paranymphus seems to have succeeded to that of the pronuba of the ancient Romans. See CLASSON, o.c., p. 171. Among the Germans the para- nymphi were called Brautfiihre-r or Ftirsprecher. See n 83, and SOHM, Das Recht, p. 71 s. and 166 s. 3. Hence the usage, in certain places, of the Brauttiiren, or Ehetiiren, i.e. of the nuptial doors, placed at the entrance of the church ; these doors were decorated with the images of the wise and foolish virgins, awaiting the Divine Spouse. Cf. Der Katholik, t. XXXII (1905), p. 157; FALK, o. c., p. 3. s. These doors are still to be found in the cathedrals of Basle, of Berne and of Strasbourg, and in several other churches. Bekant ist vor alien, as Falk says, die St-Sebalduskirche zu Niirnberg mit ihrer Brauttiir : im innern der segnende Heiland iiber Adam und Eva, im Gewande die klugen und torichten Jungfraiien, aussen, in grosseren Figuren, Maria und St-Sebald . 4. In celebrating the marriage before the doors of the church, it is intended that its celebration should be before God (therefore marriage is contracted before the House of God and His minister), and before the people and the Christ- ian community (and therefore an eminently public place is chosen). This is expressed in the form used in the Salisbury Manual, p. 50 : ante ostium eccle- siae, coram Deo, sacerdote et populo > ; likewise in the York Manual, p. 24, and the Sarum Manual, p. 17. 5. GLASSON, o. c., p. 168 and 171. 198 THE SACRAMENT OF MARRIAGE hand of the bridegroom into that of his future wife, and in certain places covered them with his stole ('), or even enveloped them in the right-hand extremity of the stole (), the hands of young girls being ungloved, while those of widows were gloved ( 3 ). Before the joining of the hands, the betroth- ed were asked whether they wished to take each the other for husband and wife respectively. 3. The nuptial consent was asked and received by the priest who hand- ed over the wife to the husband (or also the husband to the wife). The betrothed used as pledge, different formulas, which were pretty well as follows : e. g. the priest said : John, do you promise and swear to her that your goods you will loyally share with her, that for better or worse you will not abandon her, and that faith and loyalty as regards your body and your goods you w r ill maintain with her, and that well or ill, all the days of your life and hers you will guard her ? Sire,yes ; and the same for the woman. See MARTENE, o. c., p. 633, who gives also several other formulas (). Sometimes also the priest said to the bridegroom : Say after me : N. in the name of our Lord, I take thee for my wife and spouse according to the ordinances of God and of the holy Church, according to which I am bound to love thee as myself ; I am bound to keep faith and loyalty to thee, and to aid and comfort thee in thy necessities : which things, and all that husband should do for his wife, I promise to do and to maintain 1. Ordo Remensis, in MARIANS, o. c., L. I, P. 2 da , p. 644. The custom of join- ing the hands of the parties (Madchen fesseln) was already in vogue among the ancient Germans. V. Roche, o. c., p. 74. 2. Ordo Leodiensis, 1. c., p. 646. 3. MARTENE, o.c., p. 608 and 620 ; Salisbury Manual, p. 56 ; York Manual,p.26. 4. For example, here is one on p. 633. John, will you have this woman whose name by baptism is Mary, for your wife and spouse ? Sire, yes. Mary, will you have this man whose name by baptism is John, for your husband and spou- se? Sire, yes. John, I give you Mary ; Mary, I give you John >. Similar forms maybe seen in the Salisbury Manual, p. 55 s. ; the York Manual, p. 36 s. ; and the Sarum Manual, p. 19*. These words, and the joining of the hands of the bride and bridegroom, performed by the priest, signify that these receive their union of hands from God, through the medium of the priest, as remarks PROBST, Sacramente, p. 457 : Es Liegt nicht nur im christlichen Geiste, dass der Mann seine Frau von Gott erbittet, und dass sie ihm daher derPriester, als Stellver- treter Gottes, iibergab, sondern es erhalt damit auch die Bemerkung Tertullians, wie Kinder sich nicht ohne Zustimmung der Vater verehelichen, so Christen nicht ohne Zustimmung des himmlichen Vaters, ihre voile Bedeutung . In the old English rituals, the bride was given to the bridegroom by her father or by her friends, or by a friend or guardian, or even by the priest and guardian. Cf. Salis- bury Manual, p. 56 ; York Manual, p. 36 s.; Sarum Manual p. 19 (cf. ibid., p. 116). THE SACRAMENT OF MARRIAGE 199 by the faith and vow of my body . And the same for the woman. See MARTENE, 1. c., p. 654, compared with p. 646, where is given the formula formerly in use in the diocese of Liege. See also OPET, o. c., p. 97 ss. : he makes out that the custom of asking and receiving the consent of the parties has been taken up by the Church from ancient Germanic customs. 4. The blessing and putting on of the ring. After that, the priest proceeded to the blessing and putting on of the nuptial ring; after having blessed it, he gave it to the bridegroom, who from the hand of the priest, passed it to the hand of the bride. In former times the ring was put on the ring finger of the left hand ( J ), to signify the union of hearts, according to YVES DE CHARTRES, Panormia, VI, ch. 8 : for, as he says, in this finger there is a vein (called vena amo- ris), so they say, which extends to the heart ( 2 ). But, according to most of the Ordines, quoted by MARTENE, the ring should be placed on the third finger of the right hand,pa.ssmg it first on the thumb, while the bridegroom said to the bride : In the name of the Father , then on the index finger, saying : and of the Son , then on the middle finger, adding : < and of the Holy Ghost ( 3 ) ; the bridegroom further saying : c With this ring I thee wed, and with my body I thee honour, and with this silver I thee endow (*). In the name of the Father etc. ( 3 ). 1. This is still actually stated by the Rit. Rom. ; but the Pastorale Brug. indicated the ring finger of the right hand. 2. Migne, CXLI, col. 1254. Cf.FRiEDBERG, DasRecht,p. 29, in a note; HOWARD, o. c., I, p. 384; Salisbury Manual, p. 59 ; York Manual, p. 27; Sarum Manual, p. 20*. Another reason is given in the Pontifical of the monastery of Lyre : the ring should be put on the left hand to mark the difference beiween the dignity of married persons and Bishops, who should publicly wear the ring on the right hand as a sign of full and complete chastity >. 3. In the Salisbury Manual, p. 58; York Manual, p. 27; Sarum Manual, p. 19* and Hereford Manual, p. 117, after the putting of the ring on the third finger with the words et Spiritus Sancti, the ring is to be put on the fourth finger, (quern dicunt medicum), with the word Amen, and it is added : ibique dimittat annulum . 4. Formerly, here and there, in various countries, a sum of money was handed by the bridegroom to the bride ; this was derived from the primitive practice of giving a marriage price to the parents of the bride (cf. supra, n 52); this marriage price subsequently remained in use under the form of the payment of a solidum et dc,narium (cf, ibid.), and afterwards under the form of the payment of 13 pieces of silver. Under this form, the practice is still in force in Spain (e.g., on the occasion of the marriage of King Alfonso XIII, in 1906), and in some parts of France. The number of 13 pieces of silver corresponds with the solidum (which was of gold, and was equivalent to 12 denarii) and a silver denarius. Cf. THURSTON, in the Catholic Ency clop., under Marriage, IX, p. 706. 5. Cap. 7, C. XXX, qu. 5, also mentions as a marriage ceremony that the 200 THE SACRAMENT OF MARRIAGE 5. After some prayers recited over the parties, they were introduced into the church, holding in their hands lighted candles, and they assisted at the sacrifice of the Mass (*). 6. During the Mass (*), before the Pax Domini, they were solemnly blessed, and during the blessing, or even before it, they prostrated in prayer, and were covered with a veil or pall ( 3 ), which four men held at the four corners (*). bride and bridegroom are joined together with a fillet, as by a single bond, for this purpose that they may not break the connection of conjugal unity ; and that this fillet candido purpureoque colore permiscetur : candor quippe ad munditiem vitae, purpura ad sanguinis posteritatem adhibetur ; ut hoc signo et continentiae lex tenenda ab utrisque ad tempus admoneatur, et post hoc redden- dum debitum non negetur . 1. Formerly it was the community Mass that they heard j the custom was introduced later of celebrating a special Mass for them ; this is met with already in the Gelasian Sacramentary. See FRIEDBERG, Das Rccht, p. 8 s.; HOWARD, o. c., I, p. 296. In the York Manual, p. 29, it is said that the Mass is to be de Trinitate. 2. With regard to the incensation made during Mass, the Salisbury Manual makes a curious observation, p. 67, quod ordo (odor) thuris benedicti nunquam datur in ecclesia sponso et sponsae ; inde est quod, oblato thure benedicto super altare, si descendat thuribulus ad clericos vel ad laicos, aliud thus (non bene- dictum) est apponendum et hominibus offerendum >. Cf. also the Sarum Manual^ p. 22*. 3. The velatio nuptialis seems to have been practised in two ways. The first consisted inveilingthe head of the bride, after the manner in which fiancees took the veil in sign of modesty (S.AMBROSE, De Abraham, 1. I, ch. 9, Mignt, XIV, col. 454). The other consisted in extending the pall over the married couple ; this was the symbol of the conjugal bed and its covering, as KOGLER w r ell shows, o. c., p. 48. This author remarks that this symbol, already in use among the Hebrews (Ruth, III, 9 ; Ezech., VI, 8), agreed perfectly with the blessing given to the married couple, and the prayer which asked for them fruitfulness, which blessing and prayer took place during the rite of the velatio : this symbolic signification of the nuptial bed will find its confirmation further on, in n 169, where we shall unfold the rite to be followed in legitimating a child born before marriage. The first manner is, it would seem, the more ancient ; it was practised in the celebration of marriage, and also in the consecration of virgins to God, to mark in the latter case their virginal chastity and their spiritual marriage.This latter symbol is often referred to by the Fathers, especially ST. AMBROSE (De Lapsu virginis consecratae, ch. 5, Migne, XVI, col. 373 s.) and by ancient inscriptions, as for instance, that of the catacombs of St. Priscilla : c to be wedded to God by the holy veils*. The other way, viz. the extended pall, seems to have been intro- duced later ; it was especially in use in our countries during the Middle Ages. THE SACRAMENT OF MARRIAGE 2OI This velatio and this blessing took place only at first marriages ; those who were married again were deprived of themrfor the Church looked with no favour on second marriages, regarding them as less perfect, and less representative of the singular union of Christ with the Church, His sole spouse (<); The blessing was omitted whenever it was a case of a second marriage for either of the parties ( 2 ) ; the blessing then was refused, and This rite was also adopted in the ceremonies for the consecration of virgins, to s}nnbolise their spiritual marriage with Christ ; this idea of the spiritual marri- age appears again in the ring that is put on their finger, and the crown that is put on their head, ceremonies also borrowed from the rites of marria- ge. They are wrong, then, who take the ceremony of the pall in a religious profession, as a symbol of death to the world (cf. also THURSTON, 1. c , p. 707). Traces of the velatio in the second way are perhaps also to be found, in the rite formerly prescribed by the Pastorale Bmg., according to which, the priest had to put the stole in the form of a cross upon the heads of the married couple. 4. According to the Salisbury Manual, p. 68, pallium teneant quatuor clerici ad quatuor cornua, in superpelliceis ; the pallium is to be extended, and the bridegroom and bride are to kneel under it from the beginning of the canon, after the Sanctus. Cf. also the Sarum Manual, p. 22*. 1. The English rituals restrict the prohibition against repeating the blessing in the case of second marriages solely to the words (in the prayer Deits qui poles- tate viriutis) : Deus qui tarn excellent! mysterio conjugalem copulam conse- crasti, ut Christi et Ecclesiae sacramentum consccrares in toedere nuptiarum ; because, as they argue, in that form of blessing precisely agitur de unitate Christi et Ecclesiae, quae figuratur in primo matrimonio, non autem in secun- do >. Thus the Salisbury Manual, p. 71 s., compared with the York Manual, p. 35, and the Sarum Manual, p. 23*. They also limit the said prohibition to the case in which the blessing was actually given in the former marriage, and they do not forbid the blessing of a widower or widow net yet blessed. This is in conformity with c. 3, X, IV, 21 : the man and the woman who contract second marriages ought not to receive the blessing of the priest ; as they have been already blessed once, this blessing should not be repeated . Hence it appears that the here invoked reason of refus- ing the blessing is the reverence due to the blessing already given. Thus the Glossa Ordinaria a propos of this adds, in reference to the word Iterari, that to have given the blessing would have seemed to say, that this sacrament had not as yet been conferred, at least in an absolutely efficacious way ; which would have been injurious to it > (Cf. GILLMANN, Die Siebenzahl der Sacramente bei den Glossatoren des GratianiscJten Dekrets, Mainz, 1909, p. 30, note 4 ; Der KatJiolik, 1909, II, p. 207, note 2). 2. That the previous blessing of one or the other party sufficed for the refusal of the blessing of both, is, according to Hostiensis to be found in this : c per carnem alias benedictam, caro non benedicta, cum qua jungitur, benedicitur ; in commixtione enim corporum, per quam efficiuntur una caro vir et mulier, caro 202 THE SACRAMENT OF MARRIAGE likewise the velatio that accompanied it.Later on,the custom was introduc- ed in some places, of giving the blessing and the velatio to widowers who married a young girl, but not to widows who married again ; the reason being that the prayers of the blessing and the velatio referred specially to the woman ('). 7. Then the bridegroom received the pax from the celebrant, and gave it to his wife, but neither, he nor she, gave it to any other, as the Rituals prescribe ; the Salisbury Manual, p. 74, adds : sed statim diaconus vel clericus a presbytero pacem accipiens, ferat aliis sicut solitum est >. 8. The Mass finished, then was the moment for the exhortation which the priest had to give on the subject of chastity to be observed in marriage, and in particular on the subject of continence to be practised on the first and even second and third night after the wedding. Then the couple left the church wearing crowns on their heads: this custom had a special import among the Greeks, and again it was followed only in first marriages, as MARTENE declares at some length, o. c., p. 609 ( 2 ). Cf. PROBST, Die altesten Romischen Sacramentarien, p. 130 s. ; CHARDON, o. c. p. 156 ss. and 156 ss. (). 9. It was an ancient custom in many places, for the priest to conduct the married couple to their dwelling. Arrived there, he blessed the bread and wine and tasted it first ; he also blessed the bedroom and the newly-married benedicta trahit ad se carnem non benedictam, sicut oleum sanctum trahit ad se oleum admixtum non sanctum, et sic totum fit sanctum . Thus the York Manual, p. 36. 1. Cf. Glossa ordinaria, 1. c. ; MARTENE, 1. 1, P. 2, c. IX, art. i, n 7. The Salis- bury Manual, p. 73 s., vindicates this latter practice thus : Salvatur et aliquo modo significatio in ordine ad primas nuptias, quia Episcopus, etsi unam Eccle- siam habeat sponsam, habet tamen plures personas desponsatas in una Ecclesia ', sed anima non potest esse sponsa alterius quam Christi, quia cum daemone forni- catur, nee est matrimonium spirituale : et propter hoc, quando mulicr secundo nubit, nuptiae non benedicuntur propter defectum sacramenti . The other Ri- tuals mentioned above speak in like terms. 2. This author notes that the custom of not crowning those who married again, was abolished as time went on, and that crowns were worn even in second marriages ; only, if one of the contracting parties happened to be celibate, and the other widowed, the former wore the crown on the head, and the latter on the shoulder. MARTENE quotes in this connection the words of Theodore Stu- dita, who rails bitterness at this practice : Where at length will they put the crown on one who marries a third time ? On the hand or on the knee, since they crown the shoulder of the widow who marries a second time ? 3. It must be noticed, according to St. Chrysostom, that the crown was a symbol of victory won over the flesh, weil sie (betrothed virgins) von der bosen Lust nicht iiberwunden zum Brautgemachc schritten . THE SACRAMENT OF MARRIAGE 203 couple sitting or lying on the bed, as attest the Rituals quoted by MARTENE, p. 635 and 637, and in several other places (). After having first tasted the blessed bread and wine, he handed them to the bridegroom, who in his turn tasted them, and then passed them on to the bride, whilst the priest addressed to him the following words, or something similar : Peter, take and give to your wiie, giving her good part and loyalty that you would have her give to you (*). Note 1 . We may here quote the purport of the rescript of Nicholas I, in reply to consultations addressed to him from Bulgaria (866), at least as far as concerns the rites of betrothals and marriages : almost all the ceremonies enumerated above are mentioned in it : After the betrothal, which is a promise of future marriage, made with the consent of the con- tracting parties and of those who have authority over them; after the future husband has given the earnest-money to his future wife, betrothing himself to her by putting the ring on her faith-finger ', after he has given to her the dowry agreed upon and the deed which gives her legal claim to it, and all this in the presence of the friends of both parties : then, soon, or at a convenient time.... they are both conducted to the wedding. And first of all, they are led to the church of our Lord, bearing the offerings they are to make to God by the hands of the priest, and thus they receive finally the blessing and the heavenly veil.... He however who con- 1. This blessing of the bed-chamber and the bed, and of the married persons themselves, a blessing wich from the XI century was in use in our countries, is probably related to the ancient copulatheoria, as we have pointed out in n 60 ; it was also given against witchcraft, which was then believed to be very common, as we have already observed above, n 136, in a note. On this subject, see MARTENE , o. c., and FRANZ, o. c., p. 17855. 2. Cf. MARTENE, o. c., p. 639, compared with p. 635, 636 and 643 ; see also DE MOLEON, o. c., p. 621. This was done on entering the house to symbolise the unity and intimacy which were henceforth to exist between the wedded couple ; but in other places a similar ceremony, over and above this, took place in the church, towards the end of the Mass. It is not improbable that this latter distribution of blessed bread and wine, may have been, by way of eitlogia, a participation in the sacrifice of the Mass, i. e., a trace of the eucharistic commu- nion, such as it seems formerly to have been. Cf. MARTENE, o. c., p. 610; CHARDON, o. c , p. 611 s. This explanation, which is confirmed by the text of several rituals, in which it is said that the priest gives the consecrated host, seems to us preferable to that of DE MOLEON, 1. c., and of BOCQUILLOT, o. c., p. 424 s., who see in this rite a trace of the agape. As to the rite of tasting the bread and wine, or the wine alone, as a mark of union, and the preservation of this practice in many parts of Germany, in Russia and in Greece, cf. FRANZ, o. c., I, p. 281-384 ; Eccles. Review, t. XLV (1911), p. 486 ss. and p. 738 s. 204 THE SACRAMENT OF MARRIAGE tracts a second marriage does not receive the veil. After that, they leave the church, wearing crowns on their heads, which crows are always kept f2 5 in the church according to custom (') Analogy with 2. If one considers, only for an instant, the ancient religious ceremonies nie c f remo ~ l described above, the analogy between them and the ancient matrimonial in use at rites of the Romans is evident, especially in the celebration of marriages Rome. k v C onfarreation. These pagan rites have been almost entirely adopted by the Church, wich has added a Christian form and signification to them. Thus, as we have already seen, with the Romans also the hands of the betrothed were united through the medium of the pronubafor the giving of the consent ; the nuptial ring was put on, sacrifices were offered, which have been replaced by the sacrifice of the Mass ( 2 ) ; moreover it was cus- tomary for the future bride, during the time that preceded the marriage, to wear on her head a red veil (hence the term : nuberc), and a crown of flowers ( 3 ). Even the prescription to celebrate the second marriages of widowers, and especially of widows, with less pomp, is to be found in Roman law. In fact the solemnities of strict marriage were only observed in the case of marriage of a young girl ; they were not used for the marriages of widows, which were always looked upon with a certain amount of disfavour (*). . 208 THE USB OF MARRIAGE children requires, of itself, the cooperation and the protracted cares of the father and mother, and this can only be obtained, naturally and as a general rule, by the mutual obligation of the parents to a common life. There are many cases, it is true, where the work of education could be ensured outside of marriage : as is the case with rich and well-disposed parents. But, then it is chance and not the nature of things, which brings this about ; this case is, as they say, per accidens ; and it is the same in the inverse case, when the father and mother find it impossible to bring up their children properly, owing to their poverty. We may therefore look upon our first proposition as proved. Objectively speaking, all sexual relations, intrinsically apt for generation, are of their nature lawful between married persons and between them only (*). Let us here examine our view more closely. "What do we mean by relations intrinsically apt for generation ? When are the relations between married people normal ? They are such when the act itself tends of its nature to generation. The act itself, we say : we need not, then, concern ourselves with the organs further required by the woman for fertilisation, but only with those that are indispensable for rendering the relations complete ( 2 ). This act should tend to procreation of its nature, i. e. in the light of the manner in which it is performed, and, once more, without attaching any importance to accidental circumstances, and to those peculiar to individuals, which may render the act itself unfruitful ( 3 ). 1. We intend here only the essential lawfulness of the normal relations between married persons, without speaking of the accidental malice which may sometimes supervene, by reason of certain circumstances. See later, no 134. 2. For this reason, conjugal relations are forbidden to eunuchs. They are logically driven to admit the contrary, who hold the view that the appeasing of passion is one of the ends of the sexual act, and an end not subordinate to that of generation. In fact,in the case of the eunuch, the relations are possible ; and although they are intrinsically barren, and incapable of inducing fertili- sation, they can perfectly appease the senses. See on this point, n 54. 3. The natural morality of human acts must not be measured by the stand- ard of the accidental circumstances which accompany them in such or such a case ; it depends upon the nature of the act itself, taken by itself . S. THOMAS, C. Gent., 1. Ill, no 133. THE USE OF MARRIAGE 2Og SECOND PROPOSITION. Considering the sexual act no longer in itself and objectively, but with reference to the married persons (') them- selves, it is necessary in order that the act may be lawful, that these should have the intention of conforming to the end of procreation, at least negatively. Explanation and proof (-). 4Z6. 1. They commit a positive fault, who, in their marriage relations, As regards positevely exclude from their intention the natural end of the intercourse between the sexes, and avoid it as a mediate end as are lawful, so . long as the well as an immediate one. end of pro- Thai this positive exclusion of the proper end ( 3 ) constitutes a real fault, is abundantly shown by all that we have said above. Never- excluded. theless, this fault will be but a light one, when the act itself is pro- perly performed, unless, of course, the parties direct their inten- tion to the particular purpose they have in view, as to their ultimate end ( 4 ). 2. That the conjugal relations between married persons may be perfect, they must have the explicit intention of procreation, for their proper and principal end. Then only does the end of the act perfectly coincide with the end of the agents. This act will not be less perfect, if it is accompanied by sensible pleasure, even though the parties have this pleasure in view, and seek it as a secondary end. 3. For the sexual act to be simply lawful, it suffices that it should be performed for any worthy purpose whatsoever, so long as its 1. We consider here the subjective side of these relations, only from the point of view of their conformity with the objective end of generation J later, under n 135 ss,, we shall speak of other subjective circumstances which may vitiate the conjugal act, prescinding from the end pursued. 2. For further proof and explanation, see above, under n 54. 3. It is one thing : positively to exclude generation, and another : to desire that it should not ensue. It is another thing again : to perform an act while removing the end, or to abstain from it to avoid that end. There is fault only, when the act is performed with the intention of positively excluding its natural end. 4. If in an act, the definite value of an ultimate end is attributed to a partic- ular end in view, to which the agent, inconsequence, directs his intention, it is clear that a grave fault is committed. See Collat. Brug., t. X, p. 43* ss., V, p. 171. , 4 210 THE USE OF MARRIAGE proper end is not positively excluded. Every positive act of the will implying exclusion is forbidden ; but it is not forbidden simply to prescind from the end of procreation. In fact, so long as there is only abstraction and not positive exclusion, it cannot be said that the parties act in positive defiance of the order ordained by God, or that they turn aside the sexual act from its end, or that they confine themselves to enjoyment considered as an end in itself. The proper end of the act remains intact, and they in no wise exclude it ; but they are not arrested by it ; they do not consider it. This is not forbidden ; the more so, that by not excluding procreation, they admit it, at least impli- citly, and cause the conjugal relations to converge towards it. Further, according to the teaching of the SALMANTIC. (o. c., Treatise IX, Chap. Ill, point 3, n 24) : each time that in the matrimonial contract (or the sexual act), abstraction is made from the proper end of marriage, because the parties have not thought of it, or do not care about it, without, however, positive- ly excluding it, the contract (or the act) remains directed towards its end. In fact, the parties, by not excluding it, admit it implicitly, and pursue the intrinsic end of the act, without thinking of it, by the very fact that they perform it. Thus it is that, although the marriage or the conjugal duty be sought for other motives, their proper end is none the less safeguarded . Cf. also BALLERINI- PALMIERI, o. c., VI, n os 55i and 552. For the same reason BOUQUILLON says (Theol. mor. fttnd., 2 nd ed., 1890, n 356) : that if anyone performs an act, having in view an intermediate and a subordinate end, prescinding from its ulti- mate end and abstaining from referring the action to it, he does not thereby do evil; rather, does he implicitly cause his act to tend towards that end. The acts in question are therefore licit, but do not attain all the perfection of which they are capable ; in the same sense, the SALMANTIC., 1. c., n 33, assert that it is lawful to take mode- rate nourishment, even though one eats simply for pleasure, with- out thinking of the proper end of the act, but at the same time, without (positively) excluding it . See also BOUQUILLON, o, c., n 355 (') X. t To seek the pleasure proper to an act, is not equivalent absolutely, iq THE USE OF MARRIAGE 211 Corollary. Those relations are licit, although less perfect, that have in view appeasement only of the senses, or sensible pleasure only, Prescinding from every other end. They are licit, we say, objectively and in themselves, for they are not opposed to any law or precept ('). There is therefore no question of a fault being excused by the objective good faith of the parties, as is taught by AERTNYS, Theol. Mor., II, n 482 ; PRUNER, o. c., I, n 875, and by others also. We understand the proposition condemned by Innocent XI in an exclusive sense, and not in the sense of a simple abstraction ( 8 ). THIRD PROPOSITION. Concerning carnal acts not consummated, mutual or solitary : 1 . Mutual excitations, provided they are not equivalent to pollution. The nature of are permissible between married persons. And if in certains cases they consummated are intrinsic causes (causae per se) of pollution, they remain lawful, a ^ts between provided there is a grave and urgent motive for them, that there is no sons, and how desire of pollution, and no danger of consenting to it. 2. Solitary excitations are also lawful, so far as they have relation to the complete act, by way of preparation or completion ; without this relation, they constitute, in our opinion, grave sins, even when there is no danger of pollution. Explanation. Ad i m . Actus non consummate mutui sponte sua ordinantur ad copulam ejusque censentur inchoationes : et sic mediate referun- itself, to performing a bad act by reason of the end pursued. This way of acting is, on the contrary, entirely conformed to sound reason, provided that the will then follows a real good, and does not confine itself to the pleasure sought as to an end in itself. However, this point of view less noble, inactions otherwise quite regular, is an indication of a rather low moral standard, capable of being raised in the matter of the final outlook >. TH. MEYER : Institutiones juris natura- lly, Friburgi-Brisg., 1885, i t P., n 191. 1. See BALLERINI-PALMIERI, o. c., n s 551-591, against the Vindices Alph., which teach, n 841 : that if anyone, in the acts in question (sexual act, acts of eating or drinking) seeks only pleasure, and neglects all other ends, without at tJie same time excluding them, he undoubtedly acts in a blameworthy manner, and commits a venial sin ; that in order to be in fault, it is not necessary to seek pleasure while excluding positively every other end..., but that it suffices to pres- cind from all other end . 2. Opus conjugii ob solam voluptatem exercitum omni penitus caret culpa ac defectu veniali . DENZINGER, o. c., n 1059. 212 THE USE OF MARRIAGE tur ad finem generationis : supponuntur autem non esse tales actus qui sequivaleant pollution!, seu aequivalenter constituant pollutionis procurationem, cum eo ipso deficiat ordinatio ad copu- lam ('). Ex ilia ordinatione intrinseca ad copulam accipiunt prasfati ac- tus objectivam suam legitimitatem essentialem, non tantum quando immediate prsecedunt copulam instantem eamve comitantur, sed etiam aliter. Supponitur uti patet copula substantialiter legitima, i. e. supponitur earn posse exerceri modo de se generationi ido- neo, ita ut ab hisce actibus non consummatis sint prohibendi (nisi opportune judicentur in bona fide relinquendi) conjuges, quorum alteruter, post matrimonium valide initum certam con- traxerit impotentiam (?). Porro, supposita objectiva legitimitate essentiali, possunt des- cripti actus consummati a/ vitiari ex parte subjecti operantis, et ex hoc capite potissimum attendenda est circumstantia finis, juxta dicta sub n. 126 : nempe si ad honestatem sufficit ut non excludant conjuges relationem ad copulam et ulterius ad finem generationis, incurritur inordinatio positiva, licet levis dumtaxat, ab illis qui ideo a copula abstinent neprolesgeneretur. Possunt iidem actus b/ accipere objectivam quamdam inordi- nationem acddentalem ex circumstantia afftciente ipsum opus. Plures sunt hujusmodi circumstantiae, quarum inordinatio per causam proportionatam est abstergenda, ut omni ex parte liciti evadant actus illi. Talis circumstantia est locus, tempus, et maxime id quod dicti actus sunt causa per se vel per accidens pollutionis aut distillationis. Si causa sunt per se pollutionis, sumcit-quod ad illos urgeat gravis ratio. Hujusmodi ratio esset necessitas vitandi gravem infideli- tatis suspicionem, vel speciale signum amoris praebendi, notando eo graviorem rationem requiri quo inhonestiores sunt actus admissi. Quodsi actus inter conjuges admissi sunt causae per accidens tantum pollutionis, quales sunt aspectus, tactus, oscula, amplexus, I. Hujusmodi actus plerumque, licet non semper, crit copula ante seminatio- nemabrupta, cohibita seminis effusione : de qua fuse disputavimus apud Collat. Brug., t. VI, p. 477 s. et 473 ss. Cf. etiam infra, s. 147. a. Collat. Brug., t. VII, p. 478 s. THE USE OF MARRIAGE 213 minus turpia vel obiter facta, non inducunt nisi levem inordina- tionem, levi de ratione abstergibilem : quse ratio inter conjuges non deerit ('). Item levis est inordinatio, pari modo abstergenda, quae indicitur ex eo quod actus illi de se nati sunt provocare distillationem (*). Juvat etiam notare in descriptis actibus levem posse incurri inordinationem ratione lassas decentiae naturalis, vel ratione exclusi finis operis in intentione operands. Ad 2 m . Quod spectat actus non consummates solitaries : 128. a/licent illi qui, pro adjunctis in quibus admittuntur, diriguntur Quid deacti- ad copulam habendam vel copulam habitam perficiendam : et ita posset uxor frigidioris naturae sese excitare tactibus solitariis, ad hoc ut perfecta excitatio venerea correspondeat memento semina- tionis viriiis ( z ) ; posset etiam, si hanc perfectam veneream excitationem praevenerit seminatio viri, inchoatam excitationem perficere et hac ratione actum complere et integrare. Cf. STOHR, o. c., p. 501 s. b/ Utrum autem legitimari possint vel saltern a gram excusari omnes actus solitarii, quatenus in illis, ratione ipsius status conju- galis, semper salvetur ordo ad copulam, solemnis est controversia. Plerique Auctores moderni (*) probabilem censent opinionem benigniorem, ac juxta illam a gravi culpa immunes declarant conjuges descriptos actus admittentes, modo absit periculum proximum pollutionis ( s ). 1. Cf. Collat. Brug., t. XIV, p. 598 ss. coll. p. 535. 2. L. c., p. 673. ss. 3. Ita etiam contigisse novimus cum neo-nupta, earn nempe non posse a viro absque gravi dolore cognosci nisi postquam praevie, iteratis manipulationibus, vaginam dilatandam curaverit. Cf. STOHR, o. c., p. 499-501, ubi notat convenien- tiam et simultaneitatem summae libidinis in utroque congrediente multum favere fcecundationi. 4. Ita inter alios : BALLERINI-PALMIERI, t. VI, n. 611 ; BUCCERONI, o. c., n 1082 ; LEHMKUHL, o. c., II, n. 840 : NOLDIN, De sexto Pracepto et usu mairimonii, n. 88; CAHAREL, Agnologia et Asotologia, Brioci, 1905, p. 204 s. ; HAINE, Theolo- gies moralis Elementa, Lovanii, 1894, IV, p. 233 ; MATHARAN, Casus de Matrimo- nio, Parisiis, 1893, n. 491 ; GENICOT-SALSMANS, o.c., II, n. 547 ; MARC, o.c., II, n. 2113 ; AERTNYS, Fasciculus, n. 39, quasr. 3 ; hi tamen tres ultimi, cum S. ALPH., o. c., 1. VI, n. 936, alteram sententiam probabiliorem censent. 5. Dicitur : a gravi culpa, quia passim illos conjuges levis peccati arguunt, ratione intentionis finem operis excludentis. Addunt : modo absit periculum 214 THE USE OF MARRIAGE Atvero segre possumus admittere sententise illius probabilitatem nee intelligere valemus quomodo, ratione ipsius status conjugalis, cohonestentur quilibet descripti actus in eisque ordinatio ad copu- lam servetur universim et semper, etiam v. gr. in casu absentise quantumvis diuturnae conjugum ab invicem. Nimirum sedulo est facienda distinctio inter actus mutuos, a conjugibus admissos, et actus solitaries : priores sponte sua ordi- nanturad copulam tanquam ad suum naturale complementum, et ideo liciti sunt extra adjuncta actualem connexionem cum copula inducentia, etiam ubi copula praevidetur non instituenda ; posterio- res contra natura sua potius ordinantur ad pollutionem, et ideo non accipiunt ordinationem ad copulam nisi ex special! connexione ad earn, ratione adjunctorum in quibus admittuntur. Tune igitur et non aliter a gravi excusandi sunt conjuges soli- taries actus ponentes, quando hi actus, pro peculiar ibus adjunctis in quibus admittuntur, haberi possunt tanquam copulam perficientes eamve prseparantes (') : uti obtinet in casibus modo relatis, et quemadmodum etiam non sine probabilitate dices obtinere cum actibus solitariis admissis, quousque ad invicem praesentes sunt conjuges aut facile convenire possunt et copulam instituere. Attamen, cum benignior sententia a pluribus iisque egregiis Auctoribus habeatur uti probabilis, potest confessarius, cui intrin- seca illius improbabilitas non est perspecta, auctoritate extrinseca niti ut severiorem solutionem non urgeat. 1W. Quid de acti- Nota. Quod spectat actus internos extra circumstantiam copulae, bus tnternts. G ^ g j ne or( ji na ti one ad illam, puta absente comparte, admissos : possunt conjuges desiderare copulam futuram, voluntate probare copulam habitam, necnon voluntate sibi complacere in copula qua praesenti cogitata (*) ; objectum namque variorum illorum actuum est res licita. Ab hisce autem sedulo distingue commotionem pollutionis, quia pro illis actibus solitariis non reperitur, sicut pro mutuis, ratio sat urgens ut illi periculo se exponere possint conjuges. i. Ita etiam SALMANTICENSES, o. c. cap. XV, n. 87 ; PRUNER, o. c., I, p. 411 ; VAN DER VELDBN, Principia tlieologice moralis, II, n. 399. PALMIERI, in nota ad Ballerini, dicit sibi rationes Auctoris esse captu difficiles ; pariter PISCETTA, De Luxuriaet de usu Matrimonii, Augusti-Taurinorum, 1908, n. 101, monet animum in severiorem sententiam inclinare. 3. Cf. Collat Brug., t. XIV, p. 576 ss., ubi variae notiones actus interni propo- nuntur. THE USE OF MARRIAGE 215 carnalem in ipso corpora, et delectationem ei adnexam, de cujus commotion is provocatione judicandum est sicut de actu venereo solitario. PARAGRAPH II. RIGHTS AND DUTIES OF CONJUGAL RELATIONS. FIRST POINT. EXISTENCE OF THESE RIGHTS AND DUTIES. 130. The rights and duties that married persons mutually and Married exclusively possess in their conjugal relations, have their origin in the bond of marriage. demand, and This bond is a moral bond, which unites the parties and asso- render the ciates them as a common principle for the procreation and educa- ma j r ^ e tion of children. But they cannot become a common principle of procreation otherwise than by sexual intercourse. For this, it is necessary that each of the parties should possess a right over the body of the other, a real right of proprietorship for the generation of offspring. This is a strict right, resulting from a bilateral con- tract ; consequently the corresponding obligation is an obligation of justice ; this obligation is grave, considering the gravity of the interests involved. This mutual right is moreover an exclusive right, incompatible with the possession of a like right by any third person. .It follows from this that any attempt at unlawful intercourse constitutes a grave sin of injustice. This is a consequence of the unity of mar- riage, of which we shall speak later. ^,. It is important to observe, that these rights and duties extend Tliese rights only to the essentially lawful use of marriage ; that is to say, extend to all to all that tends to procreation, and to even-thing that is, o l lawful use of marriage, its nature, fitted to that end. All devices directed against genera- and to that tion are excluded. Consequently the marriage bond affords no ground for any right, or for any obligation in the matter of sodomitical, onanis- tic, or voluntarily infecund relations of any kind whatever. Nevertheless, on the other hand, the rights and duties in this mat- ter are not restricted solely to cases where actual fecundation is possible, but they extend to all relations that, of their nature, objectively speaking, are fitted for generation, though the force of circumstances may, perchance, render this intrinsic aptitude ineffective. 2l6 THE USE OF MARRIAGE Taking into account the power of passion, the position of mar- ried people, bound to live together for the education of their children, would be unbearable, if they were under the obligation of restricting their relations solely to those occasions on which actual fecundation was possible. They must necessarily have recourse to constant relations we mean, of course, lawful rela- tions as a necessary sedative ; and for that, we repeat, they must have a real right and a real obligation with respect to one another. Corollary. The party who by unlawful means incapacitates himself from rendering the marriage debt, sins grievously against justice.; for, the same law of justice that binds him to these relations, forbids him to make himself impotent by any unlawful act. If, then, the husband indulges in frequent acts of pollution, or maintains an unlawful intercourse with other women, in such a way that he is no longer capable (or notably less cap- able) of intercourse with his own wife, besides the sin of adultery or of (adulterous) pollution, he is guilty of (another) special sin against justice, which he is bound to mention in confession. He may, too, sin grievously by giving himself up to practises that are good in themselves, but excessive and indiscreet, such as excessive acts of mortification, prolonged watchings, or overwhelming toil, if he thereby renders himself notably less fit for the marriage debt ('). In like manner the husband who, in any way whatever, deprives him- self of generative power, should recognise that he is guilty of a grave sin of injustice against his wife, except in the case where an operation of this kind is considered necessary for the preservation of his life. The same judgment (with the same exception) must be passed upon the wife who has recourse to the excision of the ovaries or of the uterus, or to oophorec- tomy,in order to escape the dangers and inconveniences of pregnancy. Such cases occur. See below, n 143 . Note. As soon as one of the parties is in the requisite condition to make use of the right, and demands it, the other party is bound in justice to render the marriage debt. Apart from the case in which one of the parties demands this as a strict right, the law of charity may require that it should be tendered. See below, n 141. There is scarcely ever any question of an obligation of justice to ask or demand the marriage debt ; but on the other hand, the i. THEOL. MECHL., o. c., n 43, question I. THE USE OF MARRIAGE 217 obligation of charity is of frequent occurrence. This is the case where it is a question of removing the danger of incontinence of one of the parties, especially when a certain natural reserve, well known to the other, prevents the manifestation of the desire ; or again when mutual love is beginning to languish and there is need to revive it ; or, lastly, for the common good, when the birth of a child is of public importance. SECOND POINT. PRINCIPLES REGULATING THE EXERCISE OF THE CONJUGAL RIGHT. 132. The right to lawful relations is of the very essence of the matri- Distinction monial contract and of the conjugal bond formed by marriage. ri'^to rela- As long as the marriage lasts, this inviolable and inalienable ** a d the -11 lawful exer- nght belongs to the married couple, and they have no power to ciseofihat renounce it, e. g., in favour of some third person ('). It may happen, however : i that the actual exercise of this right (the right itself remaining unimpaired) may be forbidden to either o ne or the other of the parties,or even to both at once,for a certain space of time, or for ever. In other words,it may come to pass that the parties, while retaining full possession of their reciprocal title to the ownership of one another's body, may find themselves deprived of, or suspended from, the enjoyment of that title (*). It may happen 2 that the actual exercise of the conjugal right may be unlawful on account of some particular circumstance affecting the sexual act itself, or the party who demands it ; 3 where one of the parties has a full right and may lawfully use it, it is quite possible that the other party may have good and sufficient reason for refusing. These three distinct points justify the three following principles. 133. FIRST PRINCIPLE. The actual enjoyment of the right to conjugal Theenjoy- relaiions may be lost or suspended in different ways, as concerns one or both of the parties. right may be lost or sus- pended : 1. Thus a bachelor who maintains unlawful intercourse with another man's wife, with the husband's consent, is guilty of adultery and so of grave injustice to the husband. 2. The party who has forfeited the enjoyment of his title, no longer has any actual right to conjugal relations. Nevertheless, it would be an injustice to him, if some third party took his place. 2l8 THE USE OF MARRIAGE A. In the first place, by the spontaneous renunciation of the parties : /" in wnsc- 1 . Mutual renunciation may be explicit or implicit, as is almost 'renunciation al wavs the case when hushand and wife, by mutual consent, take of the par- a vow of chastity ( l ). Mutual renunciation evidently deprives both parties of the power of using the strict right to conjugal relations, and at the same time releases them from the obligation in justice to render the marriage debt. 2. In unilateral renunciation, the party making it renounces the exercise of his right with respect to the other. Consequently he can no longer exact conjugal relations, and the other party is no longer bound to satisfy him (*). But the party, who has not renounced, keeps intact the personal right, and so may exact from the other the rendering of the marriage debt. B. In the second place, by the violation of conjugal fidelity. 2incose- The unfaithful party no longer has a right to the submission of violation of the other party in the matter of conjugal relations. It is especially conjugal th e case o f adultery that we have in view here. The guilty fidelity ; * party remains deprived of his rights until the other party restores them by condoning the fault, or until the injured party has in turn become guilty of a like transgression. C. In the third place, by the loss of reason. 3 by the loss The conjugal right must be exercised in a human fashion. Hence m ' it may not be made use of by one who is deprived of reason, and so incapable of a human act. This holds good whether the loss of reason is permanent, or only for the time being, as for instance, when a man is dead-drunk. D. In the fourth place, by ecclesiastical regulations. fabyeccle- 1. For the case in which the Church permits separation quoad regulations. t ru m ^ wensam, see below, art. 3, n 153. 1. It is true, one can imagine a case in which husband and wife, by common consent, take a vow of chastity, while reserving the right to exact conjugal intercourse. This will be more fully elucidated by the explanation of the follow- ing principle. 2. The party who has renounced the exercise of his right cannot exact conjugal relations, i. e., as a matter of right, binding the other party injustice; but he is free to manifest a desire, and to make a request, unless for some reason of another kind even such a request is forbidden him. THE USE OF MARRIAGE 2ig 2. During the first two months of the marriage: in the case in which one of the newly married parties thinks of entering religion ('), the Church deprives the other party, during the first two months, of the right of exacting conjugal relations, and releases the former from the obligation to the marriage debt. This ecclesiastical rule is contained in the provisions of cap. 2 et 7, X, III, 32, according to which it is at the option of the one party, even against the will of the other, to leave the married state and enter religion, on condition that the mar- riage has not been consummated. The Church allows two months for coming to a decision, and if the one party seriously thinks of taking this step, it gives him the right of denying himself to the other. The two months are reckoned from the day of the marriage, or, in case of dispute, from the day fixed by the ecclesiastical judge. The judge has power to prolong the delay (-). Once the marriage is consummated, the right ot entering religion is at an end, and consequently also the right of denying oneself to the other party, unless the consummation of the marriage has been brought about by deceit or violence. Under such circum- stances the victim does not lose the right, but religious profession does not dissolve the marriage, since this is now ratum et con- summatum (*). 134. SECOND PRINCIPLE. The actual exercise of the conjugal right may Tlie exercise also become unlawful by reason of some particular circumstance affecting a lrlghimay either the conjugal relations themselves, or the person of the parly solicit- become un- lawful : ing them. Explanation. A. CIRCUMSTANCES AFFECTING THE CONJUGAL RELATIONS. It is a question here of circumstances that vitiate the sexual act, / By reason ,-, , .. r , .. .... , 1 of somr! cir- neither in its essence nor m its fecundating qualities, but which, cum stance nevertheless, render it mortally or venially sinful in itself, unless affecting the . relations some sufficient reason justifies it. The circumstances of which we themselves, such as : 1. It means entering a religious order strictly so called, with solemn vows. The privilege in question has been granted in favour of the religious state, and can profit those only who seriously think of embracing it. 2. Cf. Causa Placentina, of 3 Feb. 1725, in BENEDICT XIV, Quaestiones Canoni- cae, qu. 420 ; and compare with KUTSCHKER, o. c., I, p. 288 ss. 3. FAHRNER, o. c., p. 302 s. 220 THE USE OF MARRIAGE speak are an extraneous addition to the relations, and lend them an adventitious and accidental malice, that, in most instances, a reason of utility or of proportionate necessity is capable of removing. Exempla. circumstantia 1. Circumstantia loci, puta sacri, in quo conjugibus non licet copulari nisi adsit admodum urgens ratio, v. gr. incontinentiam vitandi per diuturnam in tali loco commorationem, uti potest contingere tempore belli, persecutionis. modi, 2. Circumstantia modi, quatenus fiat coitus extra situm natu- ralem, puta inter virum succubum et mulierem incubam, vel a latere aut a retro more pecudum, potius quam facie ad faciem, muliere succuba ( 4 ). Inde inducitur inordinatio venialis, quae facile abstergitur si rationabilis adest causa dicto modo coeundi, v. gr. ad periculum abortus vitandum in uxore praegnante propter obesitatem viri, vel frigiditatem vincendam alterutrius; supponitur autem servari essentialem copulas ad generationem ordinatio- nem ( 2 ). scandali, 3. Scandalum, ex eo quod copula peragatur coram adstanti- bus : quod scandalum adeo grave videtur ut vix ulla causa ab ea excusare valeat ( 5 ). I. Ille est situs pro norma servandus, quern natura indicat in ipsa membrorum genitalium dispositione, quique magis favet debitse seminis virilis susceptioni, cum ita intimius penetrentur corpora ac altius deponatur semen ; coitus tamen alio sub situ institutus, modo fiat in vase debito et absque seminis profusione, potest esse generationis fini idoneus, perfections penetrationis defectui supplente motu vitali quo ad corporis muliebris penetralia ingredienda gaudent spermato- zoida ; et ideo in hujusmodi situ inordinatio est secundum quid dumtaxat et venia- lis. Cf. STOHR, o. c., p. 502 s. a. Profecto essentialis foret defectus, copulam substantialiter corruinpens, si debitum vas non fuit servatum, sodomitico congressu, vel semen fuerit penitus profusum. Ideo attendendum est confessario audienti poenitentem confitentem se copulam instituisse retrorsum : caute scilicet et prudenter inquirat utrum salva fuerit essentialis aptitude ad finem generationis, servato vase naturali nee pro- fuso semine : de qua aptitudine si constat, abstineat sacerdos ab ulteriori inquisi- tione circa determinatum coeundi modum. Cf. infra monenda de munere con- fessarii. 3. Id potissimum valet respectu puerorum ac puellarum pubescentium : caste- rum urgenda est apud parentes providissima vigilantia ne, praesentibus liberis etiam junioribus, aliquid agant quo infantilis phantasia fcedari queat. THE USE OF MARRIAGE 221 4. Nocumentum ex usu matrimonii timendum, praesertim pro nocumenti ; uxore vel pro concepta prole ; quod nocumentum, ad hoc ut exinde illicita reddatur copula, admodum grave requiritur : eo autem posito, ratio urgentior potest usum matrimonii legitimare. Ex hoc capite, per se et seclusa positiva prohibitione, non est illicitum copulam exercere : a/ tempore pragnantice, nisi per accidens et omnino exceptio- naliter experientia constet extraordinarium ac imminens adesse periculum abortus ('), vel gravioris nocumenti pro prole concepta, uti contingere posset in ultimis praegnationis temporibus. b) tempore puerperii, seu per primas inde a partu hebdomadas : datur quidem periculum pro muliere puerpera, turn ex virium debilitate ( 2 ), turn ex abnormi dilatatione uteri, paulatim ad pris- tinam molem redeuntis ( s ), et ideo favendum est usui differendi reassumptionem conjugalis consortii (*), sed regulariter non vide- 1. Cf. STOHR, o. c., p. 504 s. : periculum abortus ex copula potissimum datur tempore incipientis praegnantias, quod periculum non est attendendum cum de incsepta prsegnantia non constet ; postquam autem certa evaserit imprsegnatio, periculum jam minus est et practice nullum vel leve, in communibus adjunctis, modo moderate exerceatur coitus tam in modo quam in frequentia. 2. Mulier, gravissima vitae actione vix peracta, physiologicos quidem sed vehementissimos dolores in ipsis membris genitalibus pertulit, et vel robusta puerpera fatigatam ac debilitatam se sentit >. CAPELLMANN, o. c., p. 150. Cf. etiam GEMELLI, o. c., p. 67 s. 3. Puerpcrium multas res secum fert, quas quolibet alio tempore morbosae dicendae essent, quamquam hie physiologicse sunt. Reductio et restitutio uteri adeo dilatati fortiorem organismi actionem postulat, imo ex recentiorum obser- vationibus fere integra resorptio et reconstructio uteri locum habet. Res quas hoc tempore in organis generationis aguntur, immutationes ac violationes gravi- ditate productas, jam disponunt per se ad varies morbos : ad sanguinis profluvia, inflammationes, positiones uteri aberrantes ; quare in directa locali irritatione qualem copula secum fert, atque etiam in universa commotione per copulam excitata, aliquid periculosum et damnosum esse nemo non fatetur. Hoc autem damnum, utpatet, eo perniciosius erit quo partui propius . CAPELLMANN, o. c., p. 140. 4. Solent conjuges in nostris regionibus ad usum matrimonii redire inde a die introductionis in Ecclesiam et benedictionis post partum. Et ideo bonum est ut parochi parturientes ad illam benedictionem ocius non admittant. Antiquitus in ecclesia recipiebantur, conformiter ad legem mosaicam, post 40 dies inde a nati- vitate prolis masculinas et post 80 dies inde a nativitate puellae ; deinceps autem servatum est uniformiter spatium 40 dierum. Cf. FRANZ, o. c., p. 215 ss., ubi etiam curiosas praxes describit, per medium aevum usurpatas, in cseremonia bene- dictionis post partum. 222 THE USE OF MARRIAGE tur satis urgens periculum ut ideo, saltern sub gravi, prohibeatur concubitus. c/ tempore fluxus menstrui ('), quia rursus, si periculum datur nocendi mulieri, levius reputatur (*), et ex alia parte est circum- stantia favens potius fcecundationi. Dicitur : de seet sedusa positiva prohibitione >, quia olim variae prohibitiones hinc inde erant latae vel consuetudine introductse ( J ). non autem ex Nota. 1. Circumstantia temporis sacri, pcenitentise sive devo- ir< temloris ta ^ on i s exercitiis peculiariter addicti, sub hodierna disciplina, non sacri. 1. Fluxus menstruus saspe confunditur cum decisione ovuli maturi ab ovariis transeuntis per uterum et vaginam : sunt tamen duo phenomena distincta, licet plerumque simul coincidant. La maturation et 1'expulsion de 1'ovule, docet FOREL, o. c., p. 54, sont en gen6ral accompagnees chez la femme d'un pheno- mene nerveux, proche parent de 1'erection chez 1'homme. La muqueuse de la cavite de la matrice est tres riche en vaisseaux qui ont la faculte de se dilater fortement et de se gorger de sang sous 1'influence inhibitrice de certains centres nerveux. Comme la muqueuse est tres fine... le sang transsude au travers de la muqueuse et s'ecoule sous forme de ce qu'on appelle les regies ou menstrues. Leur but est sans doute de preparer convenablement la muqueuse de la matrice a la fixation de 1'ceuf feconde qui viendra se greffer a sa surface... Les deux phenomenes peuvent avoir lieu independamment 1'un de 1'autre, car les menstrues en elles-memes dependent uniquement d'une irritation nerveuse, qui peut etre, par exemple, provoquee ou arretee par la suggestion hypnotique. a. Incommodum oriri potest ex lev! irritatione per copulam tune exercitam for- san provocanda, necnon ex verecundia cui mulier menstruata peculiariter est obnoxia, unde fit ut passim consortium fugiat. 3. Similes prohibitiones refert MARTENE, o. c., L. I. P. 2 a , c. IX, art. IV, sub n. vin-ix. Ita citat statutum Heraldi Turonensis : ^Fideles se abstineant a coitu praegnantium uxorum et menstruo tempore ; in rescripto S. Gregorii ad con- sulta S. Augustini Anglorum apostoli legitur ; Ad ejus (uxoris) vero concubitum vir accedere non debet, quoadusque qui gignitur ablactetur . Alibi statuitur : < Conjugates continere se debent... in illis diebus quibus uxor prsegnans, hoc est a die quafilius in utero ejus motum fecerit, usque ad partus sui diem ; item a partu per 36 dies, si masculus, si vero filia per 46 dies . Vulgata etiam erat opinio quod ex copula cum tali muliere monstrum gigneretur, leprosus scil. foetus vcl elephanticus quatenus sanguis menstruatae esset infectus ; cf. S. HIE- RONYMUM, In Ezech., XVII, 6 (Migne, XXV, col 173). Existebant etiam in medio asvo prsescriptiones hinc inde vigentes, quibus menstruatae ab ingressu ecclesiae prohiberentur. Cf. FRANZ, o. c., p. 3143. ; MOY, o. c., p. 383 ss. Severa in hac re erat Lex Mosaica, Lev., XVIII, 19, vetans omnem congressum cum menstrua patiente, et quidem, juxta c. XX, 18, sub poena mortis. Et ita Ezech., XVIII, 6, quasi in justitise signum tradit quod < uxorem proximi sui non violaverit et ad mulierem menstruatam non accesserit >. THE USE OF MARRIAGE 223 est ratio copulam conjugalem prohibendi ; ad summum posset dis- suaderi ratione instantis S. Communionis, ratione temporis quadragesimalis, vel ratione solemnioris fesivitatis ('), idque prudenter et moderate, ac ea dumtaxat lege ut non modo salva sint jura compartis ac seclusum incontinentias periculum, sed etiam ut ind6 non gravetur altera pars, nee mutuo conjugum amori noceatur. 2. Circumstantia quae et in quantum reddit usum matrimonii objective illicitum, eo ipso auferet jus expeditum et obligationem ad ilium, siquidem non datur jus et obligatio ad rem objective inhonestam (*). 135. B. CIRCUMSTANCES AFFECTING THE PARTY SOLICITING THE 2 By reason pm ATTHMI of some RELATIONS. circumstance These circumstances are verified where the party in question tfo^art^sol'- has taken the vow of chastity, and also where he uses marriage citing the with a bad intention, e. g. by substituting in his mind another person for his legitimate wife (intentional adultery) ; or finally where the Church forbids him, by way of punishment, to solicit the relations, as it occurs in the case of unlawful affinity contract- ed by his fault during the marriage. If then it is a question of such a circumstance, the party con- 1. Cf. MARTENE I.e., n. i-ix. Commendabatur vel praecipiebatur conjugalis abstinentia diebus et noctibus Dominicis acfeslivis, idque potissimum in reveren- tiam S. Communionis suscipiendas, cum in textibus ibidem relatis addatur : ut securius communicent , cut sincera et secura conscientia ad altare Domini casto corpore et mundo corde praesumant accedere . Nonnunquam mentio fit pcenas consequentis ex inobservatione, quatenus si in ea (die Dominica) conjuges simul convencrint, cxinde aut contracti, aut epileptici, aut leprosi nascuntur >. In majoribus festivitatibus Paschatis et Pentecostes, per integram octavam continentia erat servanda, ac in Natalibus Domini per 20 dies et noctes. Ulterius ah usu matrimonii abstinendum per Quadragesimam et per Adventum (in qui- busdam locis : a festo S. Martini), ad instituendam praeparationem ad Pascha et Natalia Domini in oratione et pcenitentia, a quibus removebat voluptas car- nalis. Etiam diu mansit in usu ut, prima nuptiarum nocte, vel etiam biduo aut triduo post nuptias, ab usu matrimonii abstincrent neo-conjuges, ad exemplum Tobias junioris, et in reverentiam benedictionis nuptialis acceptae. Cf. MOY, 1. c. 2. Supponitur copula non intrensice vitiata, sed de se apta generationi, juxta notata sub n. 134: secus namque ad earn ne radicale quidem haberetur jus, uti vidimus sub n. 130. 224 THE USE OF MARRIAGE cerned sins by soliciting the rendering of the marriage debt ; however he does not act against his matrimonial right, the sexual act itself being in order. He keeps, strictly speaking, the actual right to exact the relations, by the fact of the conjugal bond (unless he would be deprived of it for other reasons) ; his fault relates only to the personal circumstance which should withhold him. Consequently the other party is bound in justice to satisfy him, and his material co-operation to the sinful act of the con- sort, must yield to the duty of justice. If the party not involved in the aforesaid circumstances exacts the relations, it is evident that he is in his full right, and that the other has to submit him- self to it. Applicationes. 1 . Votum castitatis. 136. a) ex voto cas- a/ Votum castitatis ante matrimonium emissum, et non dispen- antelnatri- sa -tum ( 2 ), ubi non dirimit matrimonium ('), illud regulariter pro- monium hibet contrahendum ( 3 ), ac contracto matrimonio, voventem privat licentia, non jure stricto, petendi debitum. Dicitur : < privat licentia petendi, non jure . Nimirum : ratione cujus i. pars vovens votum castitatis servare tenetur in quantum, sa l vo j ure compartis, servari potest : non potest ergo licit e petere, sed licentia cum a petendo possit, illaeso jure alterius partis, abstinere. petendi de- /? bitum, 2. conservat jus petendi seu exigendi debitum, quia copula non est objective ac in se inhonesta, nee votum illud importat neces- sario renuntiationem juri in matrimonio accipiendo. 3. potest reddere, idque debet, comparti jure exigenti, ad hoc ut hujus jus sit salvum ; quodsi compars non habet jus exigendi (*), I. De dispensatione super voto castitatis in ordine ad matrimonium contra- hendum, infra agetur ubi de dispensationibus. a. Matrimonium irritat votum solemne emissum in Rcligione stricte dicta ; item votum simplex a scholasticis S. J. emissum post biennium novitiatus. Cf. infra ubi de impedimento dirimente Voti. 3. Dicitur regulariter ; et ita excipitur casus quo quis, gravi de causa, v. gr. ad legitimandam prolem, contraheret, consentiente comparte, cum intentione ingrediendi Religionem ante matrimonii consummationem.Cf.dicenda sub n.247. 4. Ita in primo bimestri, parte voto obnoxia de ingredienda Religione delibe- rante ; vel si ipsa compars esset adulterata ; vel si compars renuntiaverit juri suo, quae tamen renuntiatio per se non necessario continetur in consensu quern praestitit in votum a parte vovente emittendum. THE USB OF MARRIAGE 225 pars vovens non debet, adeoque non potest, reddere, nisi, in casu particulari, ratione instantissimi periculi, quod dispensatione prse- veniri nequeat, voti observatio evaserit moraliter impossibilis (*). Quod spectat compartem voto non ligatam, potest ac debet, attento jure stricto debitum exigendi penes partem voventem remanente, reddere debitum, cum obligatio justitiae praevaleat cooperation! materiali ad malam actionem voventis ; potest etiam debitum petere, cum utatur jure suo, nee provocet compartem ad peccatum, siqui- dem haec reddere licite potest conjugi jure petenti. Ad hoc autem ut pars libera reddere possit ac debeat, supponitur partem voto obstrictam aliunde non amisisse jus debitum petendi : alias non deberet pars libera debitum reddere nee etiam stricte posset, ratione cooperationis ad peccatum compartis, nisi proportionata de causa (*). b/ Quod attinet votum matrimonio succedens, non irritatum ( 5 ), velpostma- nec dispensatum, nee matrimonium dissolvens ( 4 ) : si fuit emissum votum castitatis perfects ( 5 ), omnis parti voventi interdicitur usus matrimonii, non tantum ad petendum debitum, sed etiam ad reddendum (supponitur enim compars non habere jus exigendi redditionem, cum votum castitatis perfectae non possit a conjuge emitti, nisi compars juri suo cesserit vel eo fuerit privatus) ; potest tamen pars vovens conservasse expeditum jus, attentis scil. modo trimonium emisso, 1. Cf. DIGNANT, De Virtute Religionis, Brugis, 1896, n. 182 ; LEHMK., o. c., I, n. 457, coll. tamen n, n. 846 ; S. ALPH., n. 225, 1. Ill, collate etiam 1. VI, n. 930. 2. Talis causa facile obtinet in uxore, cui saepe grave erit semper petere debi- tum. 3. Probabilius non potest maritus irritare votum castitatis uxoris, neque directe, cum mulier in re castitatis non censeatur subjecta viro, ac servet suam nati- vam independentiam ; neque indirecte, quia non nocet regimini domestico, cum votum supponatur emissum salvo jure compartis. 4. Matrimonium contractual, ratum non consummatum, dissolvitur per solum votum solemne in Religione stricte dicta. 5. Potest conjux valide et licite vovere castitatem perfectam i/ ubi et in quan- tum locus est privilegio primi bimestris, de quo n. 133, sub 4; 2/ id potest valide, consentiente comparte, et etiam licite, salvis cautelis sub n. 158 describendis ; 3/ id potest valide et licite, quando compars est a jure suo in perpetuum decisa, puta si adulterium admiserit.vel lapsa est in haeresim aut apostasiam et separatio est judicialiter concessa in perpetuum. Extra casus enumeratos, non potest con- jux valide vovere castitatem perfectam, nequidem in Religione (VERMEERSCH, De Religiosis Instifutis et Personis, 2* ed., Brugis, 1907, 1, n. 145). 15 226 THE USE OF MARRIAGE dictis necnon praeoccupatis supra, sub n. 133, A. Si fuit emissum votum castitatis imperfcctce (^servandae scil. illaesojure compartis, valent dicta sub a/. Corollarium. Quod valet de debito stricte dicto sen de copula, valet de omnibus actibus venereis non consummates, ad copulam ordinatis : pars vovens non potest illos licite petere sed jure petit, ac eos reddere potest et debet comparti jure exigenti ; compars autem libera potest ac debet dictos actus reddere parti voventi, jure petendi aliunde non privatae. salva dispen- Nota. a/ Amissa licentia petendi debitum potest ab auctoritate ecclesiastica restitui (*). Id valet Episcopus ex potestate ordinaria, quotiescumque votum non est certum vel non perfectum ( 3 ), vel etiam, ubi certum est ac perfectum votum, quando periculum est in mora, et agitur de voto jure et facto occulto, privatim scil. emisso et ignoto (*). Ulterius ex potestate delegata solent accipere Ordinarii (et in specie Ordinarius Brugensis), in Pagella S. Poenitentiarias, facultatem pro foro conscientiaa, t dispensandi ad petendum debitum conjugate cum transgres- sore (perfect!) voti castitatis privatim emissi (non in congregatione religio- sa) ( 5 ),qui matrimonium cum dicto voto contraxerit,hujusmodi poenitentem monendo ipsum ad idem votum servandum teneri, tarn extra licitum 1. Valet autem emissum votum castitatis imperfectce, in quantum scil. non nocet juri a comparte acquisito, nempe quoad non petendum debitum : ad hoc enim non extenditur jus alterius partis. Contraria videntur cc.n et 16, Causa XXXIII, qu. V ; sed haec capita possunt intelligi de voto continentiae absolute servando. Cf. ESMEIN, o. c., II, p. 4 s., et p. 22 ss. Ubi valet illud votum, etiam de se licet, sed ipsi raro est opportunus locus. 2. Restitutio illius licentise (vel, uti passim minus accurate dicitur, juris petendi debitum), amissae ex voto, vocatur etiam dispensatio voti secundum quid, unice scil. in ordine ad debitum petendum. 3. Ut votum sit perfectum debet esse perfectum turn ex parte actus, turn ex parte materiae, juxta latius exposita apud Collat. Brug., t. VI, p. 328 ss. ; tale plerumque non est votum in matrimonio emissum, juxta modo dicta. Cf. etiam infra, n. 357. 4. Ex hac potestate ab Episcopo delegata possunt etiam, in dioacesi Brugensi, Decani dispensare commutando, in ordine ad petendum debitum, super voto non reservato castitatis, juxta dicenda n. 369. Idem valent confessarii, tempore missionis necnon quibusdam temporibus privilegiatis, infra limites ibidem des- cribendos. 5. Si votum fuit emissum in congregatione religiosa, dispensatio est obtinenda a S. Sede, etquidem a Congr. S. Negotiis Religiosorum praeposita. THE USE OF MARRIAGE 227 matrimonii usum quam si marito vel uxori respective supervixerit ('). Cf. infra, n. 369. b/ Ubi matrimonium absque dispensatione est initum ab habente votum castitatis, ssepe opportunum est ilium relinquere in bona fide circa prohibitionem debitum petendi, donee impetrata fuerit dispensatio seu restitutio juris amissi. Idem valet, proportione servata, de casu quo imprudenter emissum est votum post matri- monium. 137, c/ Quoad reliqua vota vita perfections, si ipsis spretis matrimonium est Quid de aliis initum illicite : votum virginitatis (*) efficit ut pars voto ligata non possit votts ' licite petere debitum ante consummationem, dum altera pars licite et jure petit ; matrimonio autem consummate, jam ad nihil obligat, cum ejusdem observatio impossibilis evaserit. Votum Religionis ingrediendas est obser- vandum quousque jus habet vovens Religionem amplectendi, juxta inferius dicenda, ubi de separatione a tecto ; alias ad nihil obligat. Ratione voti ccelibatus ad nihil tenetur conjux : nee etiam ratione voti suscipiendi ordi- nes, nisi exceptionaliter contingat compartem solemniter vovere, uti eodem loco exponetur. Observa tamen ubi dicuntur tria ultima vota ad nihil jam obligare, id in- 1. Ex potestate subdelegata, eadem facultate gaudent, pro actu sacramentalis confessionis, in dicecesi Brugensi, Decani, ac etiam confessarii ad audiendas confessiones, tempore missionis, deputati. Stat. dicec. Brugensis, P. I, tit. II, art. 6 ; cf. infra, n. 369. Formula sequens adhiberi potest ; post exceptam scil. confessionem et elargi- tam absolutionem sacramentalem, dicat : Insuper auctoritate apostolica mihi specialiter subdelegata, super voto castitatis, quod emisisti, ad hoc ut debitum conjugale licite exigere possis tecum dispense. In nomine P. et F. et Spir. S. Passio Domini... . Cum autem in casu dispensetur simpliciter, et non tantum dispensando com- mutetur, mitius potest procedere confessarius, pro pcenitentia imponenda, ac in casu quo exequendum habet rescriptum Romanum : in hoc nempe committitur executor ad commutandum dispensando, idque sub iisdem sevens clausulis quam in rescripto concesso in ordine ad matrimonium ineundum : de quibus infra, sub n. 398. De hisce cf. PLANCHARD, Dispenses, nn. 589-600. 2. Distinctionem inter vota ccelibatus, virginitatis et castitatis, videsis apud ZITELLI, o. c., p. 98 et VAN DE BURGT-SCHAEPMAN, o. c., p. 326 et 330, in nota. Nimirum c objectum voti castitatis est abstinentia ab omni delectatione venerea, sive externa, sive interna, sive licita... sive illicita ; voti virginitatis : abstinentia a primo opere carnali consummate ; ccelibatus : abstinentia ab ineundo conjugio ; suscipiendi ordines : susceptio sacri Ordinis subdiaconatus ; ingrediendi Reli- gionem : ingressio Ordinis religiosi stricte dicti, scil. cum votis solemnibus , 228 THE USE OF MARRIAGE telligi respectu prcesentis matrimonii : soluto enim conjugio, sponte revivis- cunt. 2. Affinitas superveniens. 138. b) ex affinita- Conjux, contrahens in matrimonio affinitatem cum comparte sua > P er c P u l am nempe habitam cum persona compartis consan- guinea in i vel 2 gradu, amittit, prater expeditum jus petendi, a ob quam quo deciditur ratione adulterii, licentiam petendi debitum ('), u ! e ^ r ^ s modo copula fuerit formaliter incestuosa ( 2 ), ac formaliter talis petendi qualis pcenas est obnoxia( 3 ) : a qua poena excusat non tantum igno- lm> rantia legis ecclesiasticse prohibentis, sed etiam probabilius ignorantia pcenae (*). nisiconjuxob Neque jure ergo debitum petit conjux incestuosus, neque licite, se ^ P^ es ^ ac debet reddere debitum comparti, sive explicite sive tacite petenti, quippe cujus jus exigendi manet salvum, nisi ali- unde sit ablatum ( 5 ) ; haec autem compars potest licite petere debitum ac etiam petenti licite reddere ( 6 ), sed non debet reddere, 1. Cap. T, 4, 6, 10, it, X, IV, 13. Quod autem limitatur ad affinitatem in i et 2 gradu, eruitur ex eo quod Cone. Trid., Sess. XXIV, c. 4, ad illos gradus restrin- xerit, pro affinitate illicita, vim dirimendi matrimonium contrahendum : quae limitatio merito applicatur affinitati illicitae supervenient!, quoad vim auferendi licentiam petendi debitum, licet contradicat FILLET, Dictionnaire de Thiologie,v Affinite. Quae nostra interpretatio confirmatur ex tenore facultatis S. Pceniten- tiariae mox referendo. Cf. etiam SANTI, o. c., ad h. 1., n. 9. Caeterum eadem restrictio graduum occurrit in Comp. I, c. a, IV, 13. 2. Ita non incurreretur poena a parte incestuosa nesciente complicem esse compartis consanguineam, vel ad copulam violenter coacta. 3. Item non esset pcenae obnoxius conjux, si sciverit quidem complicem esse compartis consanguineam, falso autem putaverit earn esse consanguineam in 3 tantum vel 4 gradu : fuit copula formaliter incestuosa, sed non formaliter talis qualis pcena plectitur. 4. Ignorantia pcena excusat, saltern probabiliter a pcena incurrenda, quia vide- tur esse pcena principaliter medicinalis, quae proinde ignorantem non afficit ; in quantum autem diceretur pcena vindicativa, etiam non incurritur ab earn igno- rante, utpote extraordinaria. Ignorantiam legis excusare a pcena passim docetur, eo vel magis quod minitatur in eos qui scienter crimen admiserunt. Cf. Collat. Brug., t. IV, p. 430 s. 5. Si compars non servavit jus exigendi, neque reddere potest pars incestuosa, quia, attento tenore cc. 4 et 10, de se prohibetur usus matrimonii, et non conce- ditur facultas reddendi, nisi ut salva sint jura compartis. Cf. n. 139. 6. Equidem reddendo debitum cooperatur ad peccatum compartis incestuosse, quae nee jure nee licite petit ; ast baud difficile adest causa cooperationem legiti- THE USE OF MARRIAGE 229 sicut in casu voti, cum hie ab incestuoso, simul cum licentia petendi, ablatum sit, ratione adulterii, expeditum jus debitum exigendi. Nota. a/ Cum prohibitio petendi debitum, contra incestuosum lata, minus stricta sit, uti modo notavimus, quam ilia quse urget votum habentem, potest ipse incestuosus ab hujus legis prohibi- tivae observantia excusari, non tantum ob impossibilitatem prohi- bitionem servandi, sed etiam ob gravem et urgentem rationem, nisi copia sit relaxationis impetrandae. b/ Conjugi, cui propter incestum prohibetur copula, permittunt plures Auctores ('), secus ac in casu voti castitatis, tactus et actus non consummates, cum prohibitio Ecclesise sit strictse interpreta- tionis. c/ Conjux incestuosus qui, ratione ignorantiae legis vel pcenae, poenam evasit, per se monendus est pro futuro ; atvero per accidens frequenter continget prudenter abstineri a monitione, nimirum ubi posnitens versatur in bona fide, ac prasvidetur in incestum relapsurus et legem non observaturus (*). Caeterum passim oppor- tunius est recurrere ad remedium dispensationis. d/ Potest ab autoritate ecclesiastica dispensari, seu potest resti- tui licentia debitum petendi : cujus licentiae restitution! si accedat restitutio juris (v. gr. per condonationem partis innocentis), jam nihil impedit quominus jure et licite petat conjux incestuosus. Porro habent Ordinarii (et in specie Ordinarius Brugensis) ( 3 ), facultatem aut dispense- dispensandi cum incestuoso seu incestuosa ad petendum debitum conju- tur ' gale, cujus jus amisit ex superveniente occulta affinitate per copulam carna- lem habitam cum consanguinea vel consanguineo, sive in primo, sive in primo et secundo, sive in secundo gradu suas uxoris seu respective mariti ; remota occasione peccandi, et injuncta gravi poenitentia salutari et confes- mans. et quidem facilius quam in casu voti, de quo sub. n. 136, si simul amissum est a parte vovente jus petendi, cum hie minus stricta sit, quam in casu voti, prohibitio lata : cseterum Ecclesia, in statuendo paenam contra delinquentem, non intendit ullatenus gravare partem innoccntem. 1. Cl. S. ALPH., 1. VI, n. 933 ; LEHMKUHL. o. c., II, n. 846. 2. Collet Brug., t. IV, p. 432. 3. Earn subdelegatam habent, in dicecesi Brugensi, Decani habitualiter, trans- eunter autem confessarii missionis. 230 THE USE OF MARRIAGE sione sacramental! singulis mensibus, per tempus arbitrio dispensantis statuendum > ('). Cf. infra, n. 369. e/ Juvat animadvertere variam conjugis juridicam conditionem quoad usum matrimonii, in casu adulterii, voti castitatis et affini- tatis supervenientis. Per adulterium nempe amittitys expeditum, et non licentiam petendi, seu potest licite rogare et non valet in rigore juris exigere debitum ; per votum privatur licentia et non jure (excepto scil. casu quo voti emissio importat renuntiationem juri), ita ut non possit licite petere sed valeat rigorose exigere ; per affinitatem amittit jus simul et licentiam, nee adeo potest licite petere nee valet exigere debitum. 139. Provisions of Observation I.The ancient ecclesiastical law, of which we find traces in ^JJjf"" 1 the Comp. I, c. 2 and 4, IV, 13 (see also c. 8, X, IV, 13), decreed that cases of incest, at least if public, should be punished by separation. It even appears that, in certain places, by an abuse,the innocent party was permitt- ed to contract a fresh marriage during the lifetime of the delinquent (*). This was not permitted by the common law of the Church, which prohi- bited the re-marriage of the guilty party, even after the death of the inno- cent party, though it did not invalidate it. Later, out of regard for the inno- cent party, cohabitation was tolerated ; but the use of marriage was limited to the demands of the innocent party. The existing ecclesiastical law ( 3 ) still contains a prohibition against the subsequent marriage of the incestuous party with his accomplice ; but this has fallen into desuetude. At the present time, the Holy See, in removing the prohibition against seeking conjugal relations, no longer inserts in the dispensation the clause forbidding a second marriage. In this it departs from the former practice (*). Effects of Observation II. Formerly it was also necessary to pronounce separation supervening q uoa d iQYum et mensatn against husband and wife who contracted spiritual relationship. ~~ 1. For mula adhiberi potest ilia quse supra proposita est pro restituendo jure petendi debitum per votum amisso : sufficit indicare diversam causam juris amissi, nempe per copulam habitam cum sorore (vel fratre)... uxoris (vel mariti) tuae . 2. Thus in Synodo Vermeriensi of which further under n 200 ; thus also BUR- CHARD OF WORMS in Decreto, L. XVII, cc. 10 et n (MIGNE, P. L., t. CXL, col. 921), where he embodied the decrees of the aforesaid council, which permits a new marriage to the innocent party. Cf. ESMEIN, o. c., I, p. 382 s. ; II, p. 675.; see below, n 200. 3. Chapters i, 2, 8, X, IV, 13. 4. Cf. SANTI, o. c., where he treats of this, n s 8 and 9 ; see also below, n s 242 and 301. THE USE OF MARRIAGE 231 relationship with one another ('). This penalty is analogous to that inflicted on incestuous partners, and, like it, is accompanied, in respect of the guilty party, by an absolute prohibition to contract a second marriage, even after the dissolution of the first ( 2 ). This discipline was subsequently mitigated : a/ In the first place, separation was no longer imposed for a spiritual relationship contracted unconsciously^}, or for baptism administered in case of necessity (*), or again, according to the most probable opinion, for a relationship contracted maliciously by one of the parties for the purpose of depriving the other of the use of marriage ( 5 ). b/ Secondly, the clause prohibiting second marriages disappeared. c/ Finally, the separation clause was also mitigated, if not by the eccle- siastical law itself ( G ), at least by the interpretation put upon it. On the analogy of the case incest, it was limited to prohibiting the solicitation of conjugal intercourse, and this prohibition applied only to the guilty party ; in this manner the rights of the innocent party were safeguarded, and pro- vision made for the maintenance of effective cohabitation. The ancient penalties still keep their place in the ecclesiastical law ; but that is about all ; for practical purposes they may be ignored. THIRD PRINCIPLE. Where one of the parties has full right and liberty to make use of the marriage, it may yet happen that the other 1. Cap. 2, Causa XXX, question i. This relationship is contracted when either of the parents baptizes their own child, or stands as sponsor for it in baptism or confirmation. 2. Ibid. ; and cap. 5, which treats of this question ; see also n 242. 3. L. c., c. 6 ; also c. 2, X, IV, u. 4. Cap. 7, causa XXX, i. 5. Cap. 4 et 5, Causa XXX, i, and especially cap. 2, X, IV, n : Ideoque nobis videtur, ait Alex. Ill, quod sive ex ignorantia, sive ex malitia id fecerint (vir vel mulier contraxerint cognationem), non sunt ab invicem separandi, nee alter alteri debitum debet subtrahere, nisi ad continentiam servandam possint induci : quia, si ex ignorantia factum est, eos ignorantia excusare videtur ; si ex malitia, eis sua fraus non debet patrocinari vel dolus . Cf. SCHMALZGRUEBER, o. c., where he refers to this, n 46 s. ; FEYE, De Imped., n 246 s. ; WERNZ, o. c., IV, no 498, and especially notes 81 and 85; SANTI, o. c., where he treats of this question. 6. All the texts of the Decree, in Causa XXX, say that it is necessary to proceed to separation ; also the decretal of Alex. HI, quoted above. The Rituale Romanwn, title II, c.I, n 14, does not expressly speak of separation, but declares that spiritual relationship is an impediment to all use of marriage. It does not say a word of the prohibition of a second marriage. 232 THE USE OF MARRIAGE party may have good and sufficient reason for refusing the marriage ftf. Grounds of Practically these reasons resolve themselves into the following: exemption i i . u / . Cf. also the same declaration ad a m , in the N. R. th., XVIII, p. THE USE OF MARRIAGE 239 III. The duty of the confessor ('). 445. Dutyoftht A. The duty ot questioning. confessor : If married persons make no mention in confession of sins com- 1"to question, mitted in the use of marriage, and in particular of onanism, and there is no special reason for suspecting this vice, they are not to be questioned, except in a general way as to the proper fulfilment of the duties of their state of life ; and the confessor will do well to refrain even from such a general inquiry in dealing with peni- tents, who from their confession or otherwise are evidently strang- ers to this vice. But if after taking into consideration the penitent's state of life and other evidences, a prudent judgment points to a well founded suspicion of onanistic practices (*), as a rule, the con- fessor is bound to make a closer examination and press his questions with greater insistence : it may be asked, v. gr., if the penitent has led a truly Christian life in the married state ; or if there is any trouble of conscience with regard to the marriage duties ; or in general it would be better to ask even more explicitly, if the penitent conforms to the Divine will as to the number of children, or trusts entirely to Divine Providence with regard to the generation of offspring ( s ) . This 537. To the question : is the imperfect use of marriage, whether onanistically or condomistically effected, as in the case, lawful , it replied, 19 Apr. 1853, No, for it is intrinsically evil . I. For the office of the parish priest in this matter, we refer the reader to n s 334 ss., where we professedly speak of the duty of the parish priest in dealing with married persons. In the same place we shall explain the general principles, also applicable here, which govern the office of the confessor with relation to married persons and those about to marry. The duty of the parish priest and confessor is laid down in the Instructions contra vitium onanismi, put forth by the Bishops of Belgium for parish priests and confessors in 1909. a. This well founded suspicion will more readily exist if the penitent leads a worldly and indevout life, and confesses other grave sins against chastity... if there is rare and very rare approach to the sacraments, especially if this evil practice is very prevalent in the locality. On the other hand there will be less reason for fear, if the penitent already has a numerous family ,confesses each and every sin with great care, and frequently approaches the sacraments . Collatio- nes Tornacenses, 1910, p. 411. 3. Instructiones I.e., p. 458. Cf. KNOCK, L'Onanisme Conjugal..., p. 32 s. But where peculiar circumstances advise greater prudence, and it seems necessary 24 THE USE OF MARRIAGE doctrine is confirmed by the utterances of thee Holy See ( J ). We say, as a rule : because it may happen exceptionally that mar- ried people are in good faith in this matter, and that it is expedient that the confessor should leave them in that state. Good faith may exist, though rarely and here and there for a brief period only ; for, the intrinsic inordinacy of onanism, involv- ing as it does a sin against nature (*), does not easily escape notice, especially at the present time when the malice of this sin is so strongly insisted on, and its deplorable results are so plainly apparent. Where there is good faith, and where it is not likely to be forthwith disturbed, the confessor may sometimes refrain from questioning the penitent, namely, when he has good reason to fear that his questions and advice would produce no good result. This departure from the general rule, however, must be made with prudence and reserve, and the fear of the penitent's unrea- to proceed more cautiously so as to avoid offending the penitent, a spontaneous confession may be elicited by counselling the married person to observe faith- fully the laws of married life, to ask God's blessing on present or future offspring and to take solicitous care of the same as a divine trust. 1. Thus the reply of the S. Penitentiaria of 10 March 1886 to the first quest- ion : When there is a well founded suspicion that a penitent who maintains a complete silence on the subject of onanism, is addicted to this vice, is it lawful for the confessor to abstain from a prudent and discreet questioning, because he foresees that many will be disturbed in their good faith and forsake the sacra- ments ? or is not the confessor rather bound to put prudent and discreet questions ? , was : as a rule, negatively to the first part, affirmatively to the second part . The N. R. th., XVIII, p. 359 ss., gives the full text ; on p. 537 may be found the declaration of the C. S. O.. of 1851, of which above, ad 3 m , deciding that the proposition, according to which it is never expedient to question married people of either sex on this subject, even if there is a reasonable fear that they, whether husband or wife, abuse marriage , is false, excessively lax and dan' gerous in practice . 2. En effet ce peche" met 1'epoux en opposition flagrante, directe et radicale, avec la fin premiere et principals du mariage : la procreation de 1'enfant, 1'exis- tence et le developpement de la societe" humaine. Engage dans le mariage, place dans des conditions normales d'intelligence et de discernement, un homme, a moins de fermer volontairement, obstinement, les yeux a la lumiere, ne peut se meprendre sur Pobligation primordiale, de droit naturel, qu'implique 1'exercice des rapports conjugaux >. KNOCK, 1. c., p. 28, where, and on the following page, he treats very well of the good faith that exceptionally exists, and of the causes from which it may arise. THE USE OF MARRIAGE 24! diness to obey must not be merely imaginary. Even where it is quite evident that the penitent will not prove amenable, it is often better to make the inquiry : because, quite apart from the fact that the state of good faith cannot last for long, there is the danger, especially at the present time, when these matters are receiving so much attention, that the confessor's silence may be mistaken for tacit approval both by the penitent himself and by those who come to hear of it. This would be very detrimental to the public good. B. The duty of admonishing and instructing. As regards married persons whom the confessor knows, either & to admo- from their spontaneous statement or from prudent questioning, ^struct' to be addicted to the practice of onanism, the hypothesis is two- fold : either it is a case of a wife with an onanist husband, with whom she co-operates merely materially ; or it is a case of married people who knowingly and wilfully practise onanism ; exceptionally it may happen that one or the other of them may be in good faith and look upon the practice as lawful: the penitent indeed mentions the matter in confession, but does not accuse himself of it as of a sin, because he thinks there is no evil in it, or believes that it is excusable. The first question, therefore, is, whether married persons, who are found in confession to be given to the practice of onanism, are always to be admonished of the gravity of the sin, even when they are in good faith. The second question is, how are wives who merely co-operate in onanism to be instructed. In answer to the first question : Married persons, who tell their confessor in confession that they arc a) married addicted to onanism, must be most severely admonished of the /v^tisins exceeding gravity of that sin, in accordance with the rule incul- onanism ; cated by the Holy See itself ('). I. The S. Penitentiaria, 10 March 1886, 1. c,, in answer to the second question, whether a confessor who learns, either from spontaneous confession or from prudent questioning, that his penitent is an onanist, is bound to admonish him of the gravity of this sin... and to reprehend him with paternal charity, and to give him absolution only when it is made certain by sufficient signs that the said penitent is sorry for the past, and has the purpose of not acting onanistically for the future , replied : t In the affirmative, according to approved authors . 16 242 THE USB OF MARRIAGE This rule is absolute, and admits of no exception, whenever the confessor is directly asked about the morality of the said act, or when the penitent is in doubt about it. But if it is a question of a penitent who in good faith thinks that it is lawful for him, and there is no hope that the admonition would be of any effect : looking at the matter in the abstract, it may be in strict law permissible, in this hypothesis also, to leave him in good faith ; but practically, and taking the matter in the concrete, there can never, or hardly ever, be good ground for taking such a course. Indeed, the reasons that we have given under A, against keeping silence and refraining from putting questions, are ol the greatest cogency here ; for,in this case the silence of a confessor who does not condemn the act, when it is equivalently submitted to his judgment, amounts to approval, and there is very great reason to fear that such silence would become a matter of common talk, with the most deplorable consequences to public morality ('). Taking all this into consideration, we are of opinion that the practice, set forth in the Instructions of the Belgian Episcopac} r , is to be intepreted and applied strictly, viz., that in exceedingly rare cases it is lawful to leave in good faith a penitent who is found in confession to be addicted to this vice. It is to be further observed that the Instructions permit this only under the condition, which is scarcely ever fulfilled, that here is no danger of the confessor's silence being noised abroad. There is the greater necessity to insist on this strict interpretation, as confessors for the most part are inclined to take the more lenient view (*). This rule had been already set forth by the S.Penitentiaria, 14 Dec. 1876, (see N.R. th., XVIII, p. 536 ss.), where it teaches that a confessor does not satisfy his obligation, who, when a penitent merely accuses himself of onanism, maintains a complete silence, and, when the confession of sins is finished, in general terms excites the penitent to contrition, and, on his assurance that he detests every mortal sin, gives him absolution >. i. Ce silence ne restera pas longtemps le secret du confessional. Nombre de penitents, soit bavardage, soit desir de s'excuser, en saisiront leur entourage : 1'erreur s'accre"ditera, la contagion fera de nouvelles victimes . KNOCK, o. c., p. 35. Cf. also VERMEERSCH, Un grave peril, p. 43. 3. Therefore, as we have just said above, never or scarcely ever would there be room for the silence of the confessor in this matter. And indeed such and so great a good may be looked for from the uniform severity of all confessors in THE USE OF MARRIAGE 243 In answer to the second question : The following rules for instructing and admonishing a wife who b) a wife co- materially co-operates in onanistic intercourse ('), are to be applied as occasion offers : 1. A wife is never bound in justice to render the marriage debt to a husband seeking intercourse that is onanistic in any way what- ever. The reason is that, according to what we have said above, she has not yielded power over her body except for the purpose of sexual intercourse that is of itself apt for generation. 2. She is not allowed to render the marriage debt to a husband who solicits her to have intercourse with him condontistically, using the little cloth or wrapper ; for that would be immediate par- ticipation in an act intrinsically evil, as being inordinate. It is, therefore, the duty of the woman in question to offer posi- tive and physical resistance to the best of her ability, just as a girl must resist the attempt to seduce her : only for the gravest cause, namely for the fear of death, or of some like evil, would it be lawful for her not to resist her oppressor (*). condemning this crime, when discovered in confession, that it seems right to ignore altogether the very rare case in which, for the good of the individual, it might perhaps be passed over in silence. On the part of one or two penitents, perhaps, this greater severity might occasion a neglect of the sacraments which, by an indulgent silence, might have been deferred for a time ; but, on the other hand, it will exert a most salutary influence on the faithful as a whole, and, when there is no longer any discrepancy in the practice of confessors, it will bring all to an intimate conviction that onanism is to be condemned without mercy and that no terms can be made with it. Ce a quoi il faut arriver, c'est que Ton sache que le pretre, non pas vous tout seul, mais tout pretre, 1'Eglise enfin, tient pour pech.6 grave 1'onanisme. La-dessus viendra encore a confesse qui voudra, mais au moins ceux qui y viendront avec since"rit6 seront preVenus qu'ils auront a s'accuser de cette miserable pratique et a s'en abstenir. Les gens de foi et de religion chancelante pourront deserter ; les Chretiens resteront . Collat. Torttac., 1. c., p. 413, according to the Ami du clerge. i. We therefore preclude from the case in which the woman herself employs some preservative instrument, such as the pessarium occlusivum, or injects some liquid or powder to destroy the spermatozoids ; we preclude also from all consent to onanistic intercourse, and from all incitement to the same, whether direct, or indirect by complaints about the number of children, the danger of childbirth etc. ; for, this would be formal co-operation, and the principles already given above apply to it. a. Thus the Instructions, p. 459 s. C{,VER\iEER$cH,Un grave Peril, p. 9 ; KNOCK, 244 THE USE OF MARRIAGE 3. If she knows that her husband intends to have intercourse with withdrawal : a/ she can render the debt for a grave cause, and with due precautions ; b/ she can seek the debt, but only for a still graver cause. The fact that for a grave reason she can render the debt, arises from this, that in the case proposed, the woman on her part, does nothing that is contrary to nature, and assists in that which is lawful, while all the inordinacy proceeds from the malice of the husband, who, instead of consummating, withdraws and effuses extra vas (') : thus her cooperation is not immediate, but only mediate, from which a grave reason excuses : while charity, which would require the wife to prevent her husband's sin, does not bind when the contingent inconvenience is so great. That &grave causeis required, rollowsfrom this,that/or the mediate co-operation, strictly so called, in the husband's sin, there is requir- ed a reason that compensates for the evil effect in which the wife co-operates : viz. it is, in truth, an unseemly act (actio male sonans}, and its inordinacy must be counterbalanced by some proportionate cause (*). A sufficient cause is : if the denial of it (the debt) would be resented by her husband, and she would have reason to fear grave inconvenience to herself therefrom ( 3 ). Responsttm S. Penitentiariae, 15 Nov. 1816, 1. c. o. c., p. 44, where is quoted the decree of the C. S. O., or 19 Apr. 1853, in which to the doubt : Can a wife, with knowledge of the fact, remain passive in con- domistic intercourse ? , an answer is given : in the negative, for she would then be assisting in a thing intrinsically evil . I. Reply of the S. Penitentiaria, of 23 Apr. 1822, in the THEOL. MECHL., o. c., p. 140 s. ; compare with reply of the same S. Penitentiaria, of 15 Nov. 1816, 1. c., and in the N.R. Th., t. IX, p. 326. a. The principles concerning co-operation which are applied here, are ex- plained by the Right Rev. Mgr. WAFFELAERT, Etude de Theologie morale sur la cooperation, Bruges, 1883, p. 1-13. 3. But then... the wife would undergo grave inconvenience : i/ if there is reason to fear death, blows, or serious acts of cruelty, which must be judged from the circumstances of the parties concerned... ; 2/ if there is a well founded fear that the husband will keep a concubine in the house and live with her in marital relations, or even make a practice of visiting her elsewhere, or consort with prostitutes ; 3/ if she knows for certain that her husband, angered by a THE USE OF MARRIAGE 245 The precautions to be taken are : a/ to remove scandal, by pro- testing before her husband, as far as circumstances permit, against the commission of so great a crime ; b/ that she should not, either directly or indirectly, incite her husband to onanism, but should, with all the earnestness she can, endeavour to turn him from such a sinful act, and should moreover detest the act itself and in no way consent to the intercourse in so far as it is onanistic, nor to delectation in it as such, although she may take pleasure in the intercourse itself, and even in its result, while detesting the cause. That a graver cause is required for seeking the debt is evident, since to the co-operation in the restricted sense, which is found in the rendering of the debt, there is added co-operation in the wider sense, since by her solicitation the wife influences her husband to an intercourse which she foresees will be onanistic. Such a cause would be the imminent danger of incontinency. Even in this case , as the Instructions tell us, the tendency must be rather in the direction of severity than of laxity in her regard, lest the result should be that, while men are denied the sacraments, by a subtle distinction women who indulge in onanism are freely admitted to them >. C. The duty of remedying. 147. 1 . Insist on the gravity of the sin : showing how, on the lines of Jo to remedy. what we have said above, an act of luxury against nature is committed, and the end appointed by God directly defeated ('). 2. Refute the pretexts : which may be well reduced to two kinds : some people are unwilling to take upon themselves the bur- den of a numerous family (*), and others wish to spare the wife the repulse, will break out into blasphemy against God and religion, and say scandal- ous things before the servants and children; 4/ if there is reason to fear quar- rels, disputes and frequent dissensions... . N. R. Th., IX, p. 326. i. VERMEERSCH, Le Problems de la Natalite, p. 50 ss., argues very well against those who would deny this teaching of theology. 3. // they allege as a pretext too numerous a family, or poverty, excite great confidence in the fatherly Providence of God, that has a care even for the birds of the air ; and bid them beware lest they turn the blessing of Providence into a curse. Appeal should also be made to the fact, confirmed by daily experience, that large families are, generally speaking, the happiest ; for in them the natural 246 THE USE OF MARRIAGE dangers of pregnancy and especially of childbirth (') Instr., P. 455- 3. Inspire a salutary fear : by speaking of the Divine vengeance that onanists bring down upon themselves by this unnatural vice ( 2 ). Incite this salutary fear especially in those who, influenc- ed by their egoism, outrage the laws of nature in order to escape the burden of children ; and in those who should fear lest they may some time have to undergo a harder and more trying expe- rience, since excessive fondness for the children that they have, often makes the objects of such ill-regulated affection the instru- ments of God's vengeance, even in the present life ( 5 ). 4. Do away with the causes from which onanism comes, especially the materialistic view of life and effeminacy of will, by giving married people a higher conception of marriage, and by exhorting energies of their members find full scope, and a more complete unanimity and a manly affection are suppreme . Instruct., p. 456 ; cf. Epistola Pastoralis Card. Mercier, p. 420 ss. ; VERMEERSCH, La Peur de r enfant, p. 41. It is, besides, an established fact, que le mouvement de la natalite est g&ni- ralement en-raison inverse de 1'aisance . PAQUET, 1. c., p. 362 s. 1. In respect of those who fear that another confinement may prove fatal to the wife, it may be answered, in general terms, that some doctors are too ready to say that there is danger of death from childbirth ; moreover, that obstetrics and surgery have made such progress at the present day, that almost all danger of death may be provided against by the employment of proper means ; that, on the other hand, voluntary sterility procured by the practice of onanism is not without injury to health ; that if after all there is real danger, they must either take the risk, or avoid it by the observance of continency. Those who are in this unfortunate position have, indeed, need of Christian fortitude ; but in this way they will lay up for themselves a weight of glory by their acts of temperance, instead of preparing for themselves remorse of conscience and a debt of punishment . Instruct., p. 456. Cf. also DESPLATS, o. c., p. 45 s., and compare with p. 40 s., where he points out the salutary effect that even repeated preg- nancy produces in a woman. 2. The best known example is the terrible chastisement of the human race by the waters of the flood, in punishment of the sin of luxury against nature ( for all flesh had corrupted its way upon the earth >. Gen., VI, 12) ; the punishment of Sodom and Gomorrha is another example. 3. Instruct., p. 456 s. It may also be prudently alleged that the means they employ are not infallible in their effect ; whence suspicions of infidelity,estrange- ment, and the like may arise . Ibid., p. 456 s. It is also sometimes well to appeal to the evil physiological consequences, of which we have spoken above. Cf. Lettre Pastor. Card. Mercier, p. 415 ss. THE USE OF MARRIAGE 247 them to the strenuous exercise of Christian manliness and the moderate enjoyment of pleasures ('). 5. According to the reply of the S. Penitentiaria, 16 June 1880, it may sometimes be cautiously suggested to the penitent to make use of marriage only tempore ageneseos ( 2 ) : but this advice must not be given indiscriminately, nor as a certain means for avoiding fecundation ( 3 ). Quinimo non videntur reprobandi confessarii, qui, in desperatis adjunctis, per modum ultimi effugii, permittunt conjugibus tan- quam minus malum, ut copulam exerceant ea lege ut earn inccep- tam abrumpant ante seminationem, hanc cohibendo : supponitur utique conjugibus experientia constare, hujusmodi copulationem pro ipsis non asquivalere pollution! (*). Quodsi, omnibus remediis ac zeli industriis frustra exhaustis, non succedat confessario pcenitentem, malitiae conscium, a praxi onanistica avertere, non remanet nisi ut dimittatur tanquam indis- positus, absolutione denegata. Note. < Catholic doctors must consider their grave obligations in this matter, and be careful not to exaggerate the danger of par- turition, but rather point out to the fearful how these dangers may be minimized > ( 5 ). They must endeavour by every means in their 1. It is especially the business of the parish priest to attack this vice, as oc- casion offers, in public and private instructions, as we shall say below, in n 334, when speaking of the duty of the parish priest with regard to married persons. 2. The ttmpus ageneseos, as its name implies, is the time that is unsuitable for fecundation, viz., between the I4th or isthday after the commencement of the menstrual discharge and the 3rd or 4th day before the following one. 3. On the one hand it cannot be denied that the copula effected during that period is physiologically more remote from fecundation, since the menstrual discharge is as a rule connected with ovulation. This is proved by experience, according to the computation made by BROUARDEL, o. c., p. 173. On the other hand, by way of exception, ovulation occurs outside of the times of the menstrual discharge, and may be provoked by the act of coition itself ; the seed may also remain fecund for several days in the uterus ; hence the efficacy of the remedy cannot be fully relied on. Cf. ESCHBACH, o. c., p. 81-84 I CAPELLMANN, o. c., p. 138-140 ; N. R. Th. XXXI, p. 599. 4. Cf. supra, no 127 ; Collat. Brug., t. VII, p. 485 s., and compare with t. VI, p. 478. 5. Instruct., p. 46i.Cf.DESPLATS,o. c., where with great skill and care he states the duty of medical men in this matter. BOULE, La responsabilite du medecin dans 248 THE CARE OF THE CHILDREN power to co-operate with the public authority ('), and with pri- vate enterprise also (*), in combating this pestilent disorder, which men and women, and even medical men themselves, are not ashamed to disseminate by word and act ( 5 ). ARTICLE 2. Care and education of the children. U8. Right and I. Th6 right that parents have, and the obligation that they are under duty f of educating their children are deduced directly from the nature of marriage children, and from the end proper to it, which is no other than the work of gener- ation and education. The force of nature impels parents to show love and solicitous care for their offspring, and in like manner impels children to turn to their parents as their natural educators ( 4 ). Now, if the business of education is not the concern of the parents, there is reason to fear that it will be neglected and the order of Providence subverted. It is futile to speak of it as the business of society at large, for a burden imposed upon all in general is borne by no one in particular ; and it is illogical to look upon it as the duty of the State, for the State, as a civil la prophylaxif anticonceptionnelle et Vavortemcnt therapcutique, in the N. R. th., 1911, p. 591 ss. 1. Cf. Lettre Pastorale du Card. Mercier, p. 408, where are given the decisions of the Tribunals against the promoters ofonanism; cf. also the decisions of I Aug. 1909 (Cour d'Appel de Pau), in Pasicrisie, 1909, IV, p. 44 s., and Collat. Brug., t. XIV., p. 365 s. ; likewise the decisions of the Courts of Liege and Brus- sels (in the case of Dr. Mascau), 18 Oct. 1909 and 26 Feb. 1910, in Pasicrisie, 1910, II, p. 171 ss. and 169 ss. Cf. XX C Siecle, 21 Oct. 1910, on the vigorous on- slaught on pornography made by the Italian minister Luzzati. See also LEMOZIN, 1. c., p. 788-794, and Revue prat. d'Apolog., t. XIII (1912), p. 125 ss., where are given the various proposals of a law against depopulation laid before the French legislature, and of one already adopted in the United States of America. 2. Cf. LEMOZIN, 1. c., p. 785-788, where he gives a list of some association start- ed by private enterprise for the purpose of opposing the restriction of births. 3. Cf. KNOCK, o. c., p. 21 ss. ; Lettre Pastorale, p. 407 ; SvRKL.ZD,Autour du Mariage, p. 8-12, where may be found the consultations of several doctors on this matter. Cf. also FOREL, o. c., p. 496 ss., where he shamelessly sets forth and describes the ways of making use ofonanism ; likewise NYSTROM, o. c., p. 269 ss. It is, however, a pleasure to refer to the Medical Congress held in Paris on the 7*h of April 1910, when even freethinking doctors vigorously inveighed against the theory and practice of Neo-Malthusianism. 4. In this sense the Belgian civil Code, art. 293, declares : Les epoux con- tractent ensemble, par le fait seul du mariage, Pobligation de nourrir.entretenir et Clever leurs enfants . THE CARE OF THE CHILDREN 249 society, presupposes the existence of a properly constituted domestic society, since it is made up of an agglomeration of families ('). Thus, by a process of elimination, we see that the duty of education rests with the parents. II. What education implies. A. With regard to the body : 1. A soon as the child is conceived, it must be carefully preserved from Whateduc- injury, and every effort made to provide for its birth under healthy condi- w^reirartl tions. It is for this that the mother must, during the period of pregnancy, to the body ; abstain from such occupations as are likely to bring about abortion or otherwise injure the child conceived in her womb. 2. When once the child is born, it must be properly nurtured ( 2 ) and cherished ( 3 ) ; the parents must carefully provide for its physical well-being according to their means and position, and both of them are bound to do their part therein. 3. Moreover, in proportion to their means, the father and mother are bound to make the child capable of supporting himself in the future, either by leaving him a fortune, by having him taught a trade, or by procuring for him the necessary instruction. B. With regard to the soul : 1 . In the natural order : It is the duty of parents to labour constantly and with one accord for the with regard intellectual, moral, and religious education of the child, to develop its intel- to s 1. Granted the intrinsic and essential end of the family, the education of the children is an immediate and natural necessity, and it is illogical to look upon the work of education as naturally belonging to A social institution that is pos- terior to the family, and whose very existence presupposes that of normally constituted families . MEYER, o. c., n 106. 2. BENBD. XIV, De Syn. dioec., t. XL c. VIII, n 9 ss., declares that the mother is bound to suckle her own child, unless there be some sufficient reason against it, more especially a reason of health. This is why , he says by way of conclusion, the Bishop, in order not to be looked upon as an innovator, ought to refrain from publishing the precept of which we have spoken, but should rather earnestly beg ladies of wealth and position, who alone are in the habit of entrusting their babies to wet-nurses, to imitate the example of the holy women who suckled their own infants, as Sara suckled Isaac, and the Blessed Virgin Mary, Mother of God, suckled her Divine Son, Christ our Lord . Cf. STOHR, o. c. p. 485. 3. Cf. GREIDANUS, Geneeskundig onderzoek, p. 27, 3 J who expresses a wish to see a little book given to the newly married, teaching how to rear an infant, and to avoid all that may injure its health, even before birth. 250 THE CARE OF THE CHILDREN ligence and to form its will. From its earliest infancy () it must receive from its father and mother, both by word and example, lessons of virtue and morality ; they must inculcate hatred of sin and the fear of God, and with watchful care keep far from the child all that might sully its purity of soul ; they must provide for it religious teachers, and see that the servants to whose care they entrust it are honest and virtuous (). 2. In the supernatural order : Christian parents have to give their children an education fitting them alike for their natural and their supernatural end. Consequently they must instruct them in the practice of the Christian virtues and in the observance of the commandments of the New Law, under the direction of the Church established by Christ ; they must see that they duly frequent the sacra- ments, and, before all, that they are baptized without delay ( 3 ). Note. 1. Education is a common work, the joint right and duty of the father and the mother; nevertheless in this particular point,as in the gener- al organization of the household, the husband takes the first place, and it is for him to say what is to be done. 2. It may, however, be asked if the whole work of education, natural and supernatural, belongs by exclusive right to the parents. On this point see MEYER, o. c., II, n 107 ss. ; LECLER, in the Coll. Namurc., t. IX, p. 152 ss. 1. St. FRANCIS DE SALES, Introduction a la vie devote, Annecy, Nierat, 1893, p. Ill, ch. 38, exhorts parents to consecrate their child and offer it to God trorri the moment of its conception. Cf. Coll. Brug., t. IX, p. 191 s. 2. Special prudence and tact are neccessary in all that concerns the sexual education of the young. A number of modern works, widely circulated, advocate in this matter a course that is far too lax and daring. Such are the little volumes of the Self and Sex' series, by Dr. S. Stall and Dr. M. Wood Allen, (with regard to them, see the decision of the S. C. of the Index, in the Coll. Brug., t. XIII, p. 601 s.). The same applies to WILHELM, Das Sexuelle Leben und seine Bewertung in der Brziehung der Kinder, Donauworth, 1906, and to LEROY ALLAIS, Comment j'ai instruit mes filles, Paris, 1908, etc. There are, nevertheless, works which, without being irreproachable in every respect, suggest counsel and advice useful to parents and teachers. Such are : FONSAGRYVES, Consdls aux parents et aux maitres sur V education de la purete, Paris, 1902 ; FOERSTER, Jugendlehre, Berlin, 1906 ; ERNST, ElUrnpflicht, Kevelaer, of which a Dutch translation, largely rewritten, has appeared under the title of Ouderplicht, Venloo, 1906. See also KNOCH, Ueducation de la Chastete, Liege 1912 ; Vie diocesaine, Documenta, 1910, p. 56 ss. 3. Cf. Our article, De Baptizandis nonnatis, abortivis et monstris, in the CM. Brug. t. VIII, p. 493 ss. ; where the rules of prudence to be followed in cases of miscarriage and difficult confinement are given at length. THE CARE OF THE CHILDREN 251 3. From our standpoint, natural parents of illegitimate children have rights and duties analogous to those of married persons, by reason of their position as father and mother ; there is, however, this difference that parents united in marriage have a double title in this respect, that of parents and that of husband and wife. Scholion. Provisions of the civil law. 449, As to the rights and duties of parents towards their children, both Provisions of legitimate and natural, the Code Napoleon, I.I, tit. 9, De la puissance e clvl1 law paternelle, determines rather the rights of fathers and mothers than their obligations ; but we may remark that these rights are accorded to parents not in their own interests, but in those of their children, so that the juris- prudence looks upon these rights as actual duties. The following are the provisions of the Code Napoleon, in conjunction with those of the Belgian law of the 6 April 1908 : A. Legitimate (or legitimated) children are by full right members of their as regards parents' family, and are related to the kindred of their father and mother ; they have a right to be supported, cared for, and educated by their parents, that is to say, to receive from them their physical and moral education (), and they are their heirs ( 2 ), as well as the heirs of the relations of their parents, within the prescribed limits. B. Illegitimate children (*). Preliminary observations. 1. Simply natural children a/ can obtain and illegiti- acknowledgment by their parents or by one of them, either by the spon- taneous act of the father or mother ( 4 ) or by a judicial decision ( s ) given at the petition of the child or of its representatives, declaring that such a person is the father or mother of the child : this petition can only be made in the cases, and under the conditions named in the law ( c ). b/ Where they 1. They have, at any age, the right to obtain support from their parents, if in need of it. 2. There is even one part of the inheritance which parents have no power to will away from their children. 3. We shall point out below, n 170, what is meant by legitimate, illegitimate, simply natural, and adulterine, as applied to children. 4. Art. 334 : La reconnaissance d'un enfant naturel sera faite par un acte authentique, lorsqu'elle ne 1'aura pas ete dans son acte de naissance . Observe that such acknowledgment may be opposed (a. 339), and that it profits the child only in respect of the person who has acknowledged him (a. 336). 5. Lejugement qui declare la filiation naturelle produit les memes effets que la reconnaissance . Art 34ic. 6. As regards paternity : in virtue of the law of 1908, art. 3ioa : La recherche de la paternite est admise... i/ s'il y a possession d'etat d'un enfant naturel dans 252 THE CARE OF THE CHILDREN have not been spontaneously acknowledged, and where judicial acknow- ledgment is not possible for them under the terms of the law, natural children, if they are not in a position to claim the title and rights of filiation, may yet establish a presumption of natural paternity, enabling them to claim an allowance for their maintenance and education until the completion of their eighteenth year, from the man who had relations with the mother (*) during the legal period of conception ,i. e., between the 3oo th and the i8o th day before the birth, provided that the proof of these relations follows from one of the circumstances required by the law (*). 2. Adulterine and incestuous children cannot be legally acknowledged either by the spontaneous act of the parents (art. 335), or by a judicial decision ; for all legal proceedings are denied to them for this purpose (art. 8423) ; neither can they claim the allowance for maintenance provided for by the law of 1908 (same art.) ( 3 ). les conditions prevues par 1'art. 321 ; a/ si, pendant la periode legale de la conception il y a eu enlevement par violence, ruse ou menace, detention, sequestration arbitraire ou viol . As to maternity : La recherche de la maternity est admise i/s'ily a posses- sion d'6tat dans les conditions prevues par 1'a. 321 ; a/ si 1'accouchement de la mere pre"tendue et 1'identite du reclamant avec 1'enfant dont elle s'est accouchee sont rendus vraisemblables par un commencement de preuve par ecrit conforme aux dispositions de 1'art. 324, ou par 1'enonciationde 1'acte de naissance . Art. 34ia. For the inquiry into paternity and its relations with the new Belgian law of 1908, see LECLERCQ, o. c. ; CLAEYS BOUUAERT, o.c. ; PLANIOL, o. c., I, n 1520 ss. ; Rev. cath. du droit 1908-1909, p. 277 ss. ; PASICRISIE, 1910, III, p. 379 s., and compare with GIGOT, La Seduction et la Recherche de la Paternite, in the Reforme sociale, t. 43 (1902), p. 189 ss. 1. It is accordingly necessary that the filiation should first be established on the mother's side. 2. Law of 6 April 1908, art. 34ob, where the iollowing clause is added : La preuve de ces relations ne peut resulter que de 1'une des circonstances suivan- tes : I/ de leur aveu dans les actes ou les ecrits emanes du defendeur ; z\ de leur caractere habituel et notoire ; 3/ de 1'attentat a la pudeur, consomme sans violence sur la personne d'une fille de moins de 16 ans accomplis ; 4/ de la seduction de la mere par promesse de mariage, manoeuvres frauduleuses ou abus d'autorite >. 3. By art. 335 : < La reconnaissance ne peut avoir lieu au profit des enfants nes d'un commerce incestueux ou adulterin. By art. 3423 : dans les cas ou, d'apres 1'art. 335, la reconnaissance ne peut avoir lieu, 1'enfant ne sera jamais admis soit a la recherche de la paternite ou de la maternite,soit a la reclamation d'aliments prevue a 1'art. 34ob . Finally art. 342b adds : les prohibitions des articles... 335 and 342a ne concernent pas les enfants ne"s de personnes parentes ou alliees, entre lesquelles le mariage pouvait etre autorise par dispense . THE CARE OF THE CHILDREN 253 This prohibition of legal acknowledgment must be understood in the following sense : children conceived in adultery or incest cannot be volun- tarily acknowledged by their parents or by one of them, nor can they apply for a declaration of filiation whenever such acknowledgment or declaration would involve the manifestation of an adulterine or incestuous filiation (') ; but it may happen in very rare cases, that, apart from any petition for acknowledgment made by the child, adulterine or incestuous filiation may be established as the consequence of a judicial decision, e. g., where a marriage is annulled on account of incest or bigamy , and also in the case in which an action for disownment is brought by the husband : if the judge decides that the child born of a married woman has not her husband for its father, the decision establishes an adulterine filiation . CREMIEU, o. c., p. 178. Cf. CLAEYS-BOUUAERT, o. c., p. 282 s., as well as the decision of the Tribunal of Venders, of 23 Feb. 1910, (in the Pasicrisie, 1910, III, p. 265 s.). After these preliminary observations it will be easier to understand the provisions of the law with regard to natural or illegitimate children. 1 . Simply natural children : a/ For acknowledged natural children : the acknowledgment, whether voluntary or judicial, establishes relationship only between the child acknowledged and the father and mother who have acknowledged it, and not between it and the relations of the latter, saving what is said in articles 161 and 162 of the Civil Code as to the prohibitions of marriage, and the provision of art. 766 of the same Code concerning the succession of a natural child. Natural children are not even the heirs of their parents (art. 756 of the Code), they are only irregular successors, within the limits fixed by the law, in such a way that, in the terms of art. 908 of the Civil Code, they cannot receive from their parents, by gift during their lifetime or by will, anything beyond that which is accorded to them by law (art. 756 ss.). On the other hand they are subject to paternal authority, and have towards their father and mother who have acknowledged them, the same obligations and duties as legitimate children (*). b/ Those children to whom an alimentary allowance has been granted by 1. Filiation may be acknowledged or declared in respect of the father or mother, so far as such acknowledgment or declaration does not involve an adul- terine or incestuous filiation. 2. Cf. CREMIEU, o. c., p. 81 ss. ; but compare this with LECLERCQ, o. c., p. xxvin s ; and art. 337, modified by the law of 1908. In the new German Code, an illegitimate child and his father are not reputed kin >, art. 1589 ; on the other hand in its relationship to the mother and the mother's relations it has the same legal position as a legitimate child , art 1705. 254 THE CARE OF THB CHILDREN the judge, in virtue of art. 34ob, have a right to an annual allowance for their support and education until they are fully 18 years of age > ; beyond this alimentary allowance, they may in conformity with the common law receive free gifts from their parents ; in other words, they are not incapaci- tated by art. 908 of the Civil Code. On the other hand, they are not considered in the eyes of the law as the children of him who has to pay their allowance, except as concerns the pro- hibitions of marriage, in the terms of articles 161 and 162 of the Civil Code. c/ Outside these two classes, natural children are considered in civil law as strangers in respect of their parents, if they so much as know the au- thors of their being ; and they have no legal right to demand of them what- ever it may be ('). Naturally, like all strangers, they can profit by the provi- sions of the common law, and receive gifts or legacies from their parents. The provision of art. 908 does not affect them, and the prohibitions of mar- riage in art. 161 and 162 are not applicable to them. 2. Children whose adulterine or incestuous filiation happens to have been legally established, may demand support from their parents in virtue of art. 762 ; but considering the provisions of art. 908, applicable in the case, they cannot receive anything beyond, not even by way of gift ; in detesta- tion of adultery and incest they are thus put outside the common law (*) ; they are nevertheless affected by the marriage prohibitions of articles 161 and 162 of the Civil Code. Cf. CRMIEU, o. c., p. 178 s. Note. It follows from what we have just said that only natural child- ren legally acknowledged are looked upon by the civil law as sharing in a full and entire filiation, and in all its legal effects with respect to their parents ; legal acknowledgment alone is admitted as proof of full filiation. Nevertheless, in the case of art. 34ob, it appears, as we have insinuated above, that the right of demanding an alimentary allowance, where the judge allows this right to a natural child, is based on a presumption offilia- I Observe that such children are not considered as the natural children of any one, notwithstanding the entries in the register of births. For, as it is said in the Pasicrisie, 1910, III, p. 243, natural filiation exists only when established by acknowledgment. The registration of the birth of a natural child proves nothing beyond the birth of the child ; it does not prove its filiation >. Art. 319 of the Code applies only to legitimate children. 2. It follows from the preliminary observations in n 2, that these exceptional measures are of very rare application, for it is very seldom that adulterine or incestuous filiation, as such, is legally proved ; in fact all children born of adul- tery or incest, but who are not legally acknowledged as such, are treated as sim- ply natural children, according to the rules given under i. THE COHABITATION 255 tion and paternity, in virtue of which, however, the child profits only by a partial legal effect. The payment of this allowance is not imposed by way of a punishment and penalty for the act of one who exposes himself to the risk of incurring paternity, as some pretend (theorie du risque-paternite), but rather in consequence of a presumption of really existing paternity. This is what justifiies the provision of art. 34OC : lejugement qui condamne le defendeur au paiement d'aliments, en vertu de 1'art. 34ob, produit les memes effets que la reconnaissance, en ce qui concerne les empechements de mariage . Cf. LECLERCQ o. c., p. VI, XXXI ss., and XLV s. ; CLAEYS-BOUUAERT, o. c., p. 476 s. ARTICLE 3. Cohabitation. Conjugal cohabitation implies community of roof (consortium tecti), that is to say, community of table and of family life under the same roof, and this is cohabitation strictly so called. In addi- tion to this it also includes community of bedchamber or of bed (con- sortium tori). PARAGRAPH I. RIGHT AND OBLIGATION TO COHABITATION. I. Community of roof. The conjugal bond implies of its nature and as a general rule the Right and right and mutual obligation to community of family life under the same roof. This flows directly from the right and obligation that parents have with regard to the education ot their children. As we have said above, this moral and religious as well as physical educ- nit y f ro f > ation requires the common constant care and exertion of the father and mother. To conduct it properly, it is clear that it is not sufficient for the parents to be united by a social bond, if on the other hand they are living apart. It is necessary that they should have a common life and the lasting intimacy that springs from their relations with one another ; the work of education brings with it many anxieties, in which they need mutual assistance, comfort and support. We have said that the conjugal bond implies this community of life of its nature and as a general rule. For, accidentally it may happen that the education is properly assured, even though the parents live apart ; but in accordance with the principle that we have invoked above, in a matter of obligation it is necessary to 256 THE COHABITATION consider things as they ordinarily are, and not exceptional cases that may accidentally occur. In addition to this, their natural inclination leads husband and wife to live together ; and they have constant need of one another in their daily life. It is in this sense that we ought to interpret the words of Gen. II, 24 ; < Wherefore a man shall leave father and mother, and shall cleave to his wife . The Code Napoleon also recognises and enforces this cohabitation of married people, art. 214 : c La femme est obligee d'habiter avec le mari et de le suivre partout oil il juge a propos de resider ('). Note. It is true that the right and obligation of husband and wife are mutual in this matter ; nevertheless, it belongs to the husband to choose the domicile, so that, as a general rule, the wife is bound to follow him. We say : as a general rule, because it may happen that she is not obliged to do so ; e. g., a/ if the husband, without her previous consent, makes up his mind to lead a wandering life ; b/ if the journey would cause his wife serious injury ; c/ if the husband, without necessity, determines to go away to a very distant country (*). II. Community of bedchamber and of bed. 151. 2 to commu- In the strict sense, the consortium tori, as it is called, is under- stood of community of bed, and this is the general usage ; in a wider sense it signifies community of bedchamber with separate beds. 1. On the practical way of compelling the wife to do so, see Pasicrisie, 1907, IV, p. 53 s., where the case of a husband who demanded that this wife should be brought back to the conjugal domicile by military force, is decided. Cf. also PLANIOL, o.c., I, n 894 ; THIRY, o. c., n 327 ; Pasicrisie, 1910, III, p. 268 s., where may be found the decision of the Tribunal of Verviers, of 12 Jan. 1910, deciding that recourse cannot be had to personal constraint. 2. The Code Napoleon, art. 214, quoted above, decrees that the wife is bound to follow her husband, partout ou il juge a propos de r6sider >. It would seem that this provision must be interpreted as meaning that the wife is bound to accompany her husband even abroad, of course, under certain conditions, and among others this (according to the second part of art. 214), that the husband, wherever he goes, must provide for his wife tout ce qui est ncessaire pour les besoins de la vie, selon ses facultes et son etat . Cf. also ROQUIN, o. c., n 138- THE COHABITATION 257 This community, when taken in the strict sense, constitutes neither a right nor an obligation ; it does so only when taken in the wider sense. For,this obligation is based on the marriage debt, which cannot be refused whenever one of the parties lawfully demands it in accordance with the principles laid down above ; but this conjugal duty can be perfectly fulfilled without a con- tinuous community of bed, provided there is habitual community of bedchamber ('). Moreover, doctors disapprove of the practice of husband and wife sleeping together in the same bed, as being too stimulating, and injurious to health (*). Note. 1. The right to cohabitation by day and night, of which we have just spoken, is not at the base of the conjugal bond, but is rather the coping of it. Cf. GASPARRI, o. c., n os 85g, 1074, in opposition to certain authors. 2. Community of table and of family life, as well as the common care of the children, necessarily suppose a certain community of temporal goods. At the present day ( 3 ) it is the civil law (*) that regulates this matter ; and its provisions are binding so long as they are not opposed to justice and the natural law. 3. Before continuing our considerations, let as say a word as to the logi- cal sequence of our statement, so that we may not appear to go round in a vicious circle. Above, n 130, in order to demonstrate the radical right of husband and wife to frequent relations, we appealed to the obligation they are under of living under the same roof and of sharing the same table, but without speaking of community of the same bedchamber or bed. The oblig- ation that we then invoked we have now proved : without it the very end and object of marriage would not be attained. As to community of bed- chamber, we deduce the obligation of it from the right that husband and wife have to conjugal relations. 1. Even, according to GASPARRI, o. c., n 1077, < community of bedchamber, formally speaking, seems still to exist, where husband and wife occupy distinct, but contiguous rooms, with free access on either side. This practice is less praise- worthy, but exists in many families . 2. SURBLED, Lit morale, I, p. 177 ss.. 3. Formerly the canon law also made various provisions on this subject, as in 1. IV Deer., tit. 30, De Donationibus itittr virum et uxorem. 4. In the Code Napoleon, 1. Ill, tit. V : Du contrat de martage et des droits res- pectifs des epoux. 258 THE COHABITATION PARAGRAPH II. CORPORAL SEPARATION. I. SEPARATION AS TO COMMUNITY OF ROOF OR COHABITATION. A. Teaching of the Church with regard to separation. 152. A. Separation The Church teaches 1. that separation or divorce as to com- "nity ofroof' mun ity of habitation (') (or as to board or mutual service) is possible . between married persons without breaking the marriage bond ; the Chwch, 2. that such separation is lawful for various causes. These two points are confirmed by the Council of Trent, Sess. XXIV, can. 8 (*),in opposition to the Protestants, who, on the one hand, admit only the absolute dissolution of the conjugal bond, and look upon corporal separation, taken exclusively, as an immo- ral innovation ; while on the other hand, they accuse the Church of transgressing the rule laid down in Matth., V, 32, and XIX, 9, by permitting the separation of husband and wife for other causes than fornication. as to the As regards \he, first point, we shall show later that the conjugal Inch sePai?- bond, produced by a marriage ratum et consummation, is absolutely ation. indissoluble, and that consequently in this case there cannot be any other than corporal separation. PERRONE, o. c., Ill, p. 398 ss., entirely refutes the charge of novelty, and to him we refer the reader. Moreover, the practice of the Church, far from being contrary to morality, is the only really moral solution possible ; for, it alone keeps intact the principle of indissolubility, a principle essential for the safeguarding of morality and social welfare, as we shall see more clearly in the sequel (see n 180 and the following). Cer- tainly, it is not an easy thing for a separated party to observe 1. Divorce dissolving the nuptial contract itself is called divorce quoad vincu- lum. PETER LOMBARD, 1. IV, Dist. XXXI, B, calls it sacramental separation, in opposition to divorce quoad torum et cohabitationem, which he calls corporal se- paration. 2. Si quis dixerit Ecclesiam errare, quum ob multas causas separationem inter conjuges, quoad torum seu cohabitationem, ad certum incertumve tem- pus, fieri posse decernit, A. S. . Cf. THEINER, o. c.,I, p. 313 ss., where he quotes the discussions held in the Council about that matter and the tenor of the successively reformed canon (pp. 335, 387 and 425) J in the first wording (p. 313) canon VIII included also that canon which is now indicated as the 6 th . See also ESMEIN, o. c., II, p. 308 ss, THE COHABITATION 259 continency ; but, if hands are laid on the principle of indissolubi- lity, the act results in evils yet more disastrous to society ('). Be- sides, many other circumstances inevitably arise in which married people are bound to observe continency, either temporary or perpetual, e. g., in case of illness or insanity of one of the par- ties, etc. With regard to the second point, besides the sin of fornication, and its the Church does, indeed, admit other causes of separation, such as the desire of a more perfect life, heresy and provocation to sin ; but such toleration is nowise opposed to the teaching of the Gos- pel. St. Matthew, in the passages referred to above, speaks of the repudiation of a wife for a fault, and does not concern himself at all with the question of a motive of perfection justifying a corpo- ral separation. That question is dealt with elsewhere, Matth., XIX, 29, where we read Every one that hath left .. or wife... for my name's sake, shall receive an hundred fold, and shall possess life everlasting >.But in the previous passage, the Evangelist is con- cerned with the fault of the wife, and speaks only 01 fornication, because that alone is, of its nature, a cause for perpetual separa- tion, and a cause peculiar to (*) and intrinsic ( 9 ) to marriage. There are even some authors, as we shall see in n 199, who pro- pose a more radical solution of the difficulty drawn from St. Mat- thew. They claim, and not without reason, that in the text of St. Matthew there is no question of corporal separation, but solely of dissolution of the bond. 1. Le fait est incontestable, le veuvage perpetuel qu'entraine la separation de corps peut etre penible. Mais a cette consideration on a rpondu : La legislation dans sa marche impitoyable rencontre bien des situations individuelles dignes d'interet et de sympathie ; elle passe, et en passant elle broie, elle 6crase ; elle reprsente 1'interet de tous, et il y a des miseres auxquelles elle ne peut donner que sa compassion . ALLEGRE, o. c., t. i, p. 176. See also below, n s 180 and 181. 2. The other causes of separation are common to all communities and socie- ties ; thus the danger of perversion obliges one to break with any society what- ever. 3. For, by it (fornication) the advantage or marriage itself, which consists in fidelity, is directly prevented and utterly destroyed, hence an adulteress is de- servedly put away, according to the saying : * there is no need to keep faith with one who breaks faith '. The other causes of separation are extrinsic to marriage , Perrone, 1, c. 260 THE COHABITATION Moreover, we may retort against Protestants their own prac- tice. In the first place their canonical regulations permit a) simple corporal separation, in conformity with the rule laid down by Luther, but subsequently revoked, which forbids the re-marriage of the guilty during the lifetime of the innocent party (') ; b) they admit several causes of divorce in addition to adultery, particu- larly malicious desertion of the conjugal roof by one of the parties, by extending the Casus Apostoli to the marriages of Christians themselves ( 2 ) ; and yet other causes. 153. B. Causes justifying separation. Causes of separation : 1 . Adultery. a\ adultery, a/ Adultery is a cause of separation. This is the teaching 01 the Church : cap. 4 and 5, X, IV, 19. The natural law, in like manner, favours it, since adultery is directly opposed to conjugal fidelity. We are speaking here of adulterous relations that are of their nature fitted for generation ; and we must put in the same class with these, consummated sins of sodomy (with a third person) and bestiality. The three cases, in fact, equally violate conjugal fidelity, since in each of them there is complete coition with a third party. The same cannot be said of sodomitic relations between husband and wife, even when accompanied by violence, b/ The act of adultery must be af formal, that is to say, perpetrat- ed with knowledge of the fact. Simply material adultery does not suffice, as for example the act of a man in error, who believes the woman he is with to be his own wife ; neither does adultery effected by violence, e. g., in the case of a married woman who is forced, suffice. The adultery must be formal because separation is penalty, and consequently presupposes guilt. / There must be no countervailing act of adultery on the other side; for then the wrong done by each party to the other is obliterated 1. Cf. ROEDENBECK, o. c., p. 115-137, and compare with what we say later, under n aoaa. The same author, page 71 s., observes that certain Protestant canons seem to advise the innocent party to be content with corporal separation, and not marry again.Moreover, the Anglican Church admits the corporal separ- ation, as one can see in WATKINS, o. c., p. 427 ss. 2. ROEDENBECK, o. c., p. 73 s. ; compare again with n 202a. 3. Ibidem, p. 112-115 ; VERING, o. c., par. 263^.9433.; see once more n* THE COHABITATION 261 by their respective misconduct. This condition, readily under- stood, is laid down in the canon law, cap. 4, X, IV, 19, and cap. 7, X, V, 16. The same observation applies to the case in which the uncompromised party has driven the other to adultery ; cf. cap. 6, X, IV, 13. If the fault is really only on one side, it is further necessary : Y/ that it should not have been condoned, because the party who condones, either in express words or tacitly, is held to have renounced his right to separation ; voluntary admission of the guilty party to conjugal relations on the part of Ihe inno- cent party, duly cognizant of the fault committed, constitutes tacit condonation. 2. Apostasy or heresy, subsequent to marriage ('). This cause of separation was inserted in the canon law (cap. 6, b\ apostasy or X, IV, 19), partly on account of its analogy with the sin of adul- res ^' tery, since the embracing of heresy is looked upon as an act of spiritual fornication ( 2 ), and partly also because of its resemblance to the Casus Apostoli, in which the converted party is permitted to forsake the infidel party, and even, in certain cases to contract a fresh marriage. Cf. cap. 7, X, IV, 19. 3. The case of grave danger to soul or body. There is danger to the soul, when one of the parties compels the c/ grave dan- other to sin, and effectual resistance is out of the question while St " ^Jy" remaining under the same roof (such a case would be that of a wife whose husband cannot in any way be induced to give up the onanistic use of the condom) ( 3 ) ; in like manner this danger exists, where impotence supervenes on marriage, and brings with it the proximate danger of incontinency which could not be avoid- ed merely by the occupation of a separate room. This cause is a legitimate one, since Christ himself urges Christians to give up everything that is a scandal to them, even, if necessary, to the 1. There is no need to say that the partner's heterodoxy, whether infidelity or heresy, if anterior to the marriage and known to the other partner, does not constitute a cause of separation. 2. HERMAS, Mandatum, IV, cap. I, v. 9 (in FUNK, Patres Apostolici, I, p. 395), puts apostasy on the same footing as adultery, and permits separation as well for the former as for the latter. He says ; < the man who defiles the flesh is not the only adulterer, but whoever acts as the pagans do is an adulterer . 3. Cf. Collat. Drug., XVI, p. 702 s. 262 THE COHABITATION plucking out of an eye, or the cutting off of a hand. Cf. also c. i, C. XXVIII, qu. i. There is danger, and grave danger, to the body, in the case of cruelty, serious threats to kill, or contagious disease. In this last case, however, if the occupation of a separate room affords suffi- cient protection, one cannot proceed to separation. On a like footing with bodily danger may be put the imminent risk of losing one's entire fortune through the extravagance of the other party ; but in this case it is generally sufficient to have recourse to a separation of property. See the Civil Code. art. 1443. the choice 4. The choice of a more perfect life may also be a lawful cause of \TcTlije*~ separation: a/ if made by mutual consent of husband and wife, and under the conditions that we shall presently explain, it affords ground for separation ; b/ if made against the will of one of the parties, it does not justify separation, except during the first two months of marriage, in favour of the party who thinks of entering Religion; provided, however, that the marriage has not been freely consummated. In case of consummation, see what we have said in n I33(')' 154. Practical ob- Note. I. Where a legitimate cause or separation exists, the innocent But these bonds and these intimate and exclusive relations, this ceaseless community of life by day and night, these common and convergent efforts for the good education of the children, are inconceivable, and, as experience proves, unstable, where complete union of heart, unfailing love, and mutual assistance given in the thousand daily needs of domestic life are wanting. The voice of nature itself impels husband and wife to love and mutually assist one another. The sexual relations, blending husband and wife together in one flesh, still further stimulate and nourish this love : and children, the fruit and pledge of affection, cement and strengthen it. Saint Paul, in his Epistle to the Ephesians, V, 28, 29 (and his words are true for wives also) thus speaks of conjugal love, basing it on the bodily union : So also ought men to love their wives as their own bodies. He that loveth his wife, loveth himself. For no man ever hated his own flesh, but nourisheth and cherisheth it . Finally St. Francis de Sales, o. c., P. Ill, ch. 38, is eloquent in speaking to a love, holy of Christian love, of love made holy and supernatural : c It is nothing to und ' t say to yon, husbands and wives : love one another with a natural love, for mated doves do that ; or to say ; love one another with a human love, for love like that the heathens had ; but, following in the footsteps of the great Apostle, I say to you : 'Husbands, love your wives, as Christ also loved the Church' ; wives love your husbands as the Church loves her Saviour. It was God who brought Eve to the first parent of our race and gave her to him for wife ; it was God also, my friends, who with unseen hand tied the knot that binds you in holy Matrimony, and gave you to one another. Why, then, should you not love one another with a most holy, whole-hearted and divine love ? ('). i. The words of J. L. Vivis, De officio mariti, Bruges, 1529, are to the point : Terrestris amor caecus est, abjectus, obscoenus, circa vilia et spurca ; nam praestantiora ilia nunquam intuetur. Coelestis vero amor oculatus, virtutis rerumque vere pulcherrimarum, et coelestibus similium cognatarumque affec- tator. Mariti qui uxorum vel formam vel pecuniam amant, terrestri amori sunt subditi et excoecati, nee in amando rationem neque modum ullum norunt ; qui vere mariti sunt et animas et virtutes diligunt, ii non carent judicio in amore, et coelestis illi amoris vi et spiritu quodam inflati prudentissime amant, amorque 270 MUTUAL LOVE This love is quite compatible with the husband's precedency. He is, indeed, the head of the family, and he has authority over his wife ; it is incumbent on him to protect her, and to make proper provision for her support ; but such headship is perfectly consistent with mutual love, and is, in truth, tempered thereby^). The civil law. Note. On this head the Code Napoleon declares, art. 212 : Les poux se doivent mutuellement fidelite (*), secours ( 3 ), assistance (*) > ; and, art. 213 : Le mari doit protection a sa femme, la femme obeissance a son man > (*). ille purus et sanctus non impellit illos aut praecipitat, quod facit terrenus violentia, sed sapienter persuasos molliter quo oportet adducit. Amat sapiens maritus uxorem et quidem validissime, sed ut parens filium, ut caput corpus, ut animus carnem, ut Christus Ecclesiam . 1. Cf. the Encyclical Arcanum of Leo XIII : The husband is the chief of the family, and the head of the wife. The woman, because she is flesh of his flesh, and bone of his bone, must be subject to her husband and obey him ; not, indeed, as a servant, but as a companion. In such obedience there is not wanting either honour or dignity. Since the husband represents Christ, while the wife represents the Church, let there always be, both in him who leads and in her who obeys, heavenly love as the guide of their duties* (Authorised Translation, London, 1880). Cf. Coll. Brug., t. IX, p. 189 ; Catech. Cone. Trid., P. II, c. VIII, no 26 s. On these mutual relations of husband and wife, and the allied question of feminism in relation to the natural and Christian law : cf. St. THOMAS, Sufipl., q.64, art. 5; C.WILLBMS, Philosophia Moralis, Treviris, 1909, p. 368 ; CASTELEIN, o. c., p. 540 ss. and p. 563 ss. ; SERTILLANGES, Feminisme et Christianismt, Paris, 1908, p. 243-277 ', LEITNER* Lehrb., p. 538 ss., and p. 36 ss., who shows the state of inferiority in which the wife was kept of old, and the little consideration shown her. 2. To this duty is opposed adultery, which in the Belgian Penal Code, art. 387 ss., is liable to heavy penalties, especially on the part of the wife, but only in the case in which the injured party demands it. 3. The duty of secours consists in the obligation.... of providing for his partner all that is needful for living. PLANIOL, o. c., I, n. 904. 4. The assistance is not to be confounded with the secours ; it consists in the personal care to be bestowed upon the partner in sickness or infirmity . The same, n 917. 5. In virtue of the principle inserted in article 213, the husband is the head of the family ; the wife is placed in dependence on him and under his protection J she is, so to speak, in a state of quasi-minority with respect to her husband, and placed under his care. This state of dependence appears in the obligation she is under of following her husband in his change of domicile (see above, n 150), in her legal participation in his nationality (art. 5 and n of the law of 8 June 1909), and above all, in legal incapacity. She cannot, as a general rule, exercise EFFECTS OF THE CONJUGAL BOND 271 CHAPTER II. EFFECTS OF THE CONJUGAL BOND. 162. The obligations and rights of which we have hitherto spoken Effects of tlie are the constituent elements of the conjugal bond. This bond brings with it certain legal effects, with which we shall now occupy ourselves, while considering anew marriage as a contract, apart from its sacramental character. The first effect of the conjugal bond is the constitution of a 1 Constitu- distinct family. The husband and wife, in marrying, see themselves distinct fa- uprooted, as it were, from their own families in order to bring mily ; into being a new family, independent and self-subsisting, in which new and intimate relations find their place between husband and wife, and between parents and children, under the headship of the husband (). This is expressed in Genesis, II, 24, by the words: any legal act, without her husband's authority (art. 215 ss.). Observe, however that the right of corporal correction formerly in force, no longer exists. See on this subject PLANIOL. o. c., I, n922, LOTTHE, o. c., p. 27 ss. PLANIOL, o. c, I, n 930 explains at length this legal incapacity of the wife; cf. also VAN BIERVLIET, Ons Burgerlijk Wetboek, Antwerpen, 1904, who shows that this idea was borrowed from the ancient German law ; on p. 2, he foresha- dows a change to be introduced into the Code in this respect, by the commission charged with the revision of the Civil Code, and observes that the Belgian law of 10 March 1900 has already mitigated the original rigour 01 the legal provi- sions (SERVAIS ET MECHELINCK, Les Codes Beiges, p. 1014 ss). See also DEVOS, De gehuwde Vrouw ; SERTILLANGES, 1. c. ; CASTELEIN, o.c., p. 563 ss. For a com- parison between the law of the Code Napoleon and that of the new German Code, in which the wife's legal capacity is almost entirely secured, consult the learned pages of CRETINON, o. c., p. 169-171 ; read also SALEILLES, La condition juridique de la femme dans le nouveau Code civil allemand, in the Ref. Soc, , t. 43, p. 717 ss. and the Rev. eccl. de Metz, 1901, p. 203 ss. i. This constitution of a distinct family by marriage is sanctioned in the Code, Napoleon by the fact that the wife is entirely withdrawn from the authority of her father and of her own family ; that she is emancipated by the very fact of her marriage J that she changes her own name for that of her husband ; and finally that she is bound to the domicile of her husband, as we have already said. In the Roman law it was quite different. The son of the lamily, not yet eman- cipated, remained after marriage under the power of the paterfamilias or head of the family, as well as the children born to him. As to the wife, if she married in manu, she passed, indeed, into the family of her husband, but not under his power, but under that of his paterfamilias ] she had no authority over her own children, with respect to whom she was as a sister, while with respect to her hus- 272 EFFECTS OF THE CONJUGAL BOND a man shall leave father and mother, and shall cleave to his wife . 2 special re- The second effect, which we shall develop later on, consists in a stt * ' special relationship created by the conjugal bond between each of the parties and the relations of his or her partner. For, a/ the marriage, even before consummation, causes each of them to contract the diriment impediment of public decency, in respect of other members of the partner's family to the fourth degree ; and b/ the marriage, when consummated, gives rise to the diriment impediment of affinity with the same persons, an affinity of a different kind from that which arises from sexual relations between unmarried persons ('). Moreover, the children are related to the families of their father and mother, and contract with all the members thereof, to the fourth degree, a connection and consequent impediment of con- sanguinity, differing again from the corresponding connection and impediment contracted out of marriage (*). band she was as a daughter (LEFEBVRE, o. c., p. 61,64 and 67). If she married sine manu, she remained under the power of her own paterfamilias, and she continued to belong to a family other than that of her husband and of her own children, for whom she was as a stranger, so that they were not related to her, and had no right to succeed as her heirs (ibid,, p. 72 ss. and 82 ss ). In the ancient Germanic law, marriage established a distinct family, and inti- mate relations between husband and wife, and between parents and children. Nevertheless, the authority of the husband over his wife and children was shared and tempered by that of a sort of family council, composed of all the male rela- tions of full age. That council has its counterpart at the present day in the Vormiindsciiaftsgcricht, recently introduced in Germany by the Code of 1900. Cf. CRETINON, 1. c., n 175. 1. Of itself, such illicit affinity is not amenable to the external forum, and does not invalidate marriage beyond the second degree. In our (the Belgian) civil law, as we shall show later on, when speaking of affinity, it has its source in marriage, whether consummated or not, but it does not involve the impediment of public decency (By the English law also, affinity is created only by marri- age. Tr.). 2. LEFEBVRE, o. c., p. 41 s., shows how in the Code Napoleon the regulation of relationship is also based upon marriage. See above, n 149, and also what we have just said in the note on the ancient Roman law : in marriage sine manu,the wife was not looked upon as related even to her own children ; and in marriage cum manu, the children were not related to their maternal , but only to their paternal ancestors. 273 valid 163. The third effect is the LEGITIMACY OF THE CHILDREN. 30 legitimacy of the child- We must now set forth the canonical discipline : show how, in its ren. eyes, marriage is the source of legitimacy , and in particular explain how i marriage renders legitimate, children conceived or born therein ; 2 how and to what extent it is capable of legitimating children illegitimate by birth. FIRST PROPOSITION. Legitimate (otherwise called legitimate and Legitimate natural) children, before the ecclesiastical law, are such as are born of a mother, who, at the time of their conception, was lawfully married, or of one who, though invalidly married, was married in good faith before the Church, or of one, who, at least before their birth, had contracted a valid or putative marriage. We must except children who are clearly proved to be by some other man than the husband of the mother ; as well as those conceived by con- jugal act 0} the parents, after the father or mother, subsequently to a former consummation of the marriage, have taken a solemn vow of chas- tity, or have received sacred Orders. i Putative marriage, i. e., marriage contracted in good faith, suffices for the legitimacy of the children, as appears from cap. 2, X, IV. 17 ( J ), as well as from chapters 8, n and 14 of the same title (*). But it is neccessary that the marriage should have been contracted publicly, and not clandestinely, or in opposition to the Church, as may be gathered from the decree quoted, and as is dis- tinctly declared by cap. 3, X, IV, 3 ( 3 ), and the Council of Trent, Sess, c. i, De Reformations Matrimonii. See above n 35. or putative marrta S e > 1. When canonical judgment of divorce (quoad vinculum) between the man and woman has been pronounced (i. e., when the nullity of the marriage has been declared),the children shall not suffer thereby, when the parents are known to have married publicly and not in ."opposition to the Church. Therefore we ordain that the children that such persons have had before the divorce, or who have been conceived before the pronouncing of judgment, shall, notwithstan- ding, be considered as legitimate . 2. Cf. ESMEIN, o. c., II, p. 33-37, who shows how this provision of the law was introduced. Peter Lombard, 1. IV Sent., was the first to raise a doubt on this subject. He was followed by Magister Rolandus, who, on becoming Pope, settled the question. 3. If anyone presume to contract one of these clandestine or forbidden marri- ages in the forbidden degree, even without knowledge of such relationship, the 274 THE LEGITIMACY OF THE CHILDREN The good faith of one of the parties suffices, whether it arises from ignorance of fact or of law, provided that the ignorance is not affected. This is deduced from the tenor of the last decree men- tioned above, according to the interpretation of experts in canon law ('). contracted 2. We say : children born of a mother who, at the time of their conception* 1 ^ conception or at least before their birth, has contracted a valid or putative marriage. Of itself, legitimate birth supposes legitimate conception, and it is clear that a child conceived in marriage will be regarded as legitimate ( 2 ) ; but nevertheless legitimacy is possible outside of this hypothesis. For, as SCHMALZGRUEBER says, 1. c., n 10, though legitimacy is, in itself, an effect of the natural law, yet it is also dependent on the positive law, which has the power of extending the effects of legitimacy to those of illegitimate birth, as is done in the case of legitimation by subsequent marriage. If, therefore, a child, conceived before marriage, is not born until after marriage, it is, according to the accepted practice of the children born of such union shall be considered as absolutely illegitimate, and the ignorance of their parents shall not avail them, since the father and mother, by contracting in such a way, appear to have been affecting ignorance rather than really wanting in knowledge. In like manner children must be regarded as illegitimate, when both of their parents married knowing of their being under a real impediment, even though no opposition was made, and the marriage took place before the Church . It is, therefore, necessary that the requisite proclamations should be made, and that the form prescribed by the Council of Trent should be duly observed, at least in the case of marriages that are subject to the law of clandestinity, Cf. ScHMALZGRUaBER, on the tit. XVII, n s 42-43 ; DE BECKER, De Matr., p. 371-372 together with the note. I. For the text of the decree does not in any way restrict the case of good faith to ignorance of fact. It excludes only affected ignorance, and declares illegitimate only those children, both of whose parents knew that they were bound by an impediment, i. c., when both acted in bad faith. Observe however, that even good faith at the time of the marriage does not fully suffice : it is necessary that there should still be good faith, at least on one side, at the time of conception . REIFENSTUEL, on tit. XVII, n. 5 ; Monitore eccl.,iqi2, p. 42 s. 3. As a rule, conception is supposed to have taken place during the marriage, if the child is born after the i8o th day following the marriage ceremony, and before the 3OO th following its dissolution, e. g., by the decease of the husband. Cf. SCHMALZGBUEBBR, 1. C., n os 40-4! J REIFFENSTUEL, 1. C., ns 19-23 ; GASPARRI, o. c., II, n 1069 ; DE BECKER, De Mutr., p. 371 ; WERNZ, o. c., IV, n 685. THE LEGITIMACY OF THE CHILDREN 275 ecclesiastical courts, considered as legitimate. In such a case the child is presumed to be that of the husband, and the sexual rela- tions that led to its conception are, by a legal fiction, considered as legitimate by reason of the marriage that preceded the birth ('). 3. From the benefit of legitimacy must be excepted : 164. a) Such as are clearly proved not to be the husband's children. with two And in fact, if the canon law holds as legitimate the children ' XCff> t( conceived by, or at least born of a married mother, it is only because it presumes them, as we have already said, to be the result of lawful matrimonial relations, or at least of relations had between parties who subsequently married before the birth of their offspring ; in which case a legal fiction retrospectively legitimates coition as far back as the time of conception. This presumption is based on the legal principle : is pater est quern nup- iiae demonstrant (the father is he whom marriage point out as such). But this presumption is not inevitable, and must yield to the ascertained fact, since it is not juris et dejure (*). 1. Looking at the matter in itself, and with due regard to the provisions of the law, there remains a speculative doubt as to the legitimacy of such offspring. For, as BENED. XIV says, in his Constit. Redditae Nobis, n 3, in the Parvttm Bullarium, III, texts are against texts, doctors against doctors, and tribunals against tribunals . But when there is doubt, the children must have the benefit of it, and the case be settled in their favour. This is the course followed without hesitation by REIFFENST., on tit. XVII, n 17 ct ss. ; SCHMALZGR., ibid., n s 9 and 10 ; and BOCKHN, ibid., n 10. At the same time they give the legal texts on which they rely, and references to the authors that they make use of. GASPARRI, o. c., II, 1071, and DE BECKER, De Matr., p. 370-371, lean to the same opinion. 2. Nevertheless, since the benefit of the doubt must be given to the child and the marriage, no doubtful argument, however probable, suffices to destroy the presumption in their favour. There must be an absolutely convincing argument, at least where the parties were already married at the time of conception ; con- sequently it is not enough that the mother has been guilty of adultery, or that she has acknowledged, even on oath, that the child was conceived in adultery ; nor is it sufficient that the child bears a greater resemblance to the adulterer than to the husband. There must be conclusive proof, e.g., proof drawn from husband's absence, or from his impotence consequent on sickness, between the 3OO th and the iSoth day before the birth. Cf. SCHMALZGRUEBER, 1. c. n os 39-40; REIFFENST., n os 10-12; GASPARRI, o. c., n os 1069 ; see also the solution of the case given in the Acta S, Sedis, XVII, p. 378 seq. 276 THE LEGITIMBCY OF THE CHILDREN b/ We must in like manner except children conceived by conjugal act of the parents, after one of the parents, subsequently to a former consummation of the marriage, has taken a solemn vow of chastity, or has received Holy Orders. Children born of such illicit intercourse are canonically illegi- timate, and are consequently by the very fact irregular. This is deduced from chapters i, 14, X, I, 17 ('). 165. Different Note. 1. As a logical consequence of what we have said above, illegitimate illegitimate children are such as are born of a mother who,neither children. a f- the time of their conception, nor at the time of their birth, nor in the interval, had contracted a valid or putative marriage ; as well as such as being born, indeed, of a married woman, are nevertheless proved not to have been begotten by her husband, and also the children just mentioned on b/. Illegitimate children are : a/ Natural, according to SCHAMALZGRUEBER, 1. c., n 6, if they are born out of wedlock, of parents who might have married one another at the time of conception, or at the time of birth, or in the interval . b/ Spurii, if they are born of parents, between whom marri- age did not exist, and could not have existed during any part of the time that elapsed between conception and birth , on account of some diriment impediment (ibid.}. Among spurii, some are adulterine, those born of adultery... ; others are sacrilegious, those whose father or mother is either a religious, or a cleric in major Orders (*) ; others, again, are inces- In practice, therefore, when the child 01 a married woman is presented for baptism, it must be entered in the baptismal register as a legitimate child, even if the father or mother declare it adulterine. The only exception, as we have just said, is that of the husband's absence or impotence, duly ascertained. In the case of the husband's absence, the parish priest will mention the fact in the register, and will certify that he has baptized the child N..., born of N..., law- ful wife of N..., absent between the 30O th and the i8o th day before the birth. 1. Cf. SCHMALZGRUEBER, o. c., on this passage, ns 33-38. The case of a dispen- sation must be excepted. 2. As we have just said, those children ought also to be considered sacrile- gious who are born of lawfully married parents, but of whom one or the other, after a former consummation of the marriage and before the conception of the child in question, has taken the solemn vows or received Orders. THE LEGITIMACY OF THE CHILDREN 277 tuous, namely those whose parents are united with one another by affinity or by collateral consanguinity ; others, in fine, are known as nefarii, that is to say, those that are born as the result of intercourse between father and daughter, or between any direct ascendants and descendants whatever >. REIFFENSTUEL, 1. c., n28. 2. Legitimacy, in the ecclesiastical forum, implies competency for Whatlegiti- the lawful reception of the tonsure and Orders, as well as for maty im P l " s - ecclesiastical benefices and prelacies. Those who are illegitimate are not competent in this respect, in other words they are irre- gular. 166. SECOND PROPOSITION. Natural illegitimate children are legitimated Natural by a subsequent marriage contracted between their parents. legitimated 6 The proof of this proposition is found in cap. 6, X, IV, 17: The efficacy of marriage is such, that its celebration causes the children previously born to be co-nsidered as legitimate . In other words : subsequent marriage, by a fiction of the law, is referred back to the time of the child's birth or conception ; so that, the antecedent defect being suppressed, the child is considered as the issue of a marriage then existing... This provision was made in favour both of the children and of the marriage : in favour of the children, who thus escape suffering for the fault of another, and obtain the rights of legitimate birth ; in favour of marriage, because parents previously living in illicit intercourse are thus induced to marry for the love of their children ('). Explanation. We say 1. natural children ; for other illegitimate children do not share in this privilege. This is clearly established, as concerns i. SCHMALZGR., on this title, n 49. The first example of legitimation by subse- quent marriage before the Church is found in cap. I of the same title, attributed to Alexander HI, who is also the author of cap. 6. Cf. ESMBIN, o. c., II, p. 395. ; POTHIER, o. c., ns 408 s. This method of legitimation was borrowed by the Church from the Roman law, which recognised in a subsequent legitimate or proper marriage (justce nuptue) the power of legitimating children born, not of any kind of union, but only of that known to them as concubinatus ', see above n 83. Cf. Pothier,o. c.,ns 7 s. ; VIOLLET, Histoire dudroit, p. 471-473 ; and especially GENESTAL, o. c., p. 150 s., where may be found the evolution of the law set forth at length. 278 THE LEGITIMACY OF THE CHILDREN adulterine children, by cap. 6, quoted above ('), and by the Consti- tution of Bened. XIV. Redditae Nobis, par. 2 ; and the commonly accepted doctrine deals with other spurii in the same way. Cf. REIFFENSTUEL, on this title, n 37, together with the reason that he gives (*). On the other hand, all children, without exception, who accord- ing to the definition that we have given, come under the head of natural children, share in the privilege ; not only those whose conception took place when there was no diriment impediment between the parents, but the others also, provided the impediment had disappeared before their birth ( 5 ). The best canonists (*) maintain this doctrine in the interests of the child ; and the S. Penit. has openly spoken in the like sense in its recent reply of 21 Apr. 1908, quoted in the Coll. Brug., t. XIV, p. 97 ss. There is, however, a keen controversy among authors on the subject of children who are apparently natural but really spurii, such as are born of 1. If a man, during the lifetime of his wife, misconducts himself with another woman, and has a child by her, that child will be spitrius, even when the guilty party, after the death of his wife, has married the mother . At the end of the original text, in the First Compilation, the following clause appeared : Seeing that a lawful marriage cannot be contracted between such persons . See the Friedberg edition. 2. As we shall point out in n 168, this reason is : that legitimation is, by a legal fiction, regarded as going back to the birth ; or rather that the subsequent mar- riage is looked upon as dating from the moment of the birth ; it is accordingly necessary that it should have been capable of existence at that time, and conse- quently that there should not have been any diriment impediment between the parents at that time. 3. According to REIFFENSTUEL, 1. c., n os 40-41, if a man, during the life of his wife, has intercourse with another woman, and his wife dies before the other woman gives birth to her child, such child (as being merely natural) is legitimat- ed by subsequent marriage between its parents . The same happens when a dispensation, before the birth of the child, removes any other impediment that the parents were under at the tnoment of conception ; the child is born natural, and may be legitimated by a subsequent marriage. 4. SCHMALZGRUEBER, 1. c., n s 63-68, with the authors quoted; REIFFENSTUEL, 1. c., n 39 ; SANCHEZ, De Matr., 1. VIII, cap. VII, p. 19 ; BARBOSA, on this title, nos 2 y ss . ; BOCKHN, on this title, cap. Tanta, n s 30-31 ; FERRARIS, Prompta Biblioth., under Filius, ns 23, 32, 39-42. The following are also of the same opinion : FEYE, De Imped., n 741 ; SANTI, on this title, n 5 ; GASPARRI, o. c., n 1123 ; DE BECKER, De Matr., p. 378 ; PUTZER, o. c., n 120. THE LEGITIMACY OF THE CHILDREN 279 parents who are under an impediment, that is, in good faith, unknown to one or the other of them. The opinion that denies such children the benefit of the privilege seems the better founded, at least where it is a question of children natural in appearence, but in reality adulterine. This interpretation fits in better with the text of chapter 6, and many commentators have adopted it. A list of them is given by SCHMALZGRUEBER, 1. c., n 59, though he himself holds the contrary opinion ('). We say 2. by the very fact of a subsequent marriage. By this is to byasubse- be understood any lawful marriage whatever, even one that is 9 uen ^" arrt merely ratum ei non consummation, contracted at any time, even at the moment of death, and without the antenuptial proclamations or express permission for their omission.lt is immaterial whether the marriage follows the birth of the child immediately or media- tely ( J ), as REIFFENSTUEL clearly shows, 1. c., n os 30-34. It is, however, a disputed point whether the same efficacy is to be conceded to a. putative marriage, i. e., to one contracted inva- lidly, in good faith, before the Church, and after the customary proclamations ( 3 ). We say 3. contracted between the parents of the illegitimate child, contracted On the one hand, a marriage contracted between the parents legiti- c ^ mates at once and fully the children already born : there is no necessity for the consent of any interested party, and the Canon Law does not require, as does the Code Napoleon, the express recognition of the child by its parents, either before or during the celebration of the marriage. On the other hand, the marriage of the mother with a man other than the the father of the child cannot in any way legitimate it. Hence, whenever this occurs, and the case has been legally 1. Cf. FfiYE, De Imp., n 741 ; Ada S. Scdis, XXVI, p. 419-424; DB BECKER, De Matr., p. 378 ; PCTZER, o. c., n cs 119 ss. ; WERNZ, o. c., IV, 680; ESMEIN, o.c., II, p. 44. 2. The child is equally legitimated by the marriage of its parents, when the father first marries some other woman, and then, after the death of that wife, marries the mother of the child. 3. The negative opinion is maintained by REIFFENSTUEL, l.c.,n s 35~36;B6cKHN, 1, c., n 2i ; BARBOSA, 1. c., n os 41-43, and others. The affirmative opinion is sup- ported by SCHMALMZGRUEBER, 1. c., n 56-58 ; PiRHiNG, on this title, n 39 ; FBR- RARIS, 1. c., n 37, and the authors quoted by him ; SANTI, 1. c., n 9 ; FEYE, De Imp., n 741 ; PUTZER, o c., n 120 ; DE BECKER, DC Matr., p. 376. 280 THE LEGITIMACY OF THE CHILDREN established in the external forum, the parish priest cannot admit or register as legitimate the child in question ; nor can he take into account either the declarations of the mother and her future husband, or the legal acknowledgment or legitimation that has taken place in the civil court. Nevertheless, so long as there is no certain proof to the contrary, presumption of paternity attaches to the man who marries the mother ; consequently, notwithstand- ing any suspicions he may have as to the truth of the statement, the parish priest will admit the declaration freely made to him by the contracting parties, and will enter in the register the legitima- tion of the child ('). Cf. Coll. Brug., t. XI, p. 726 s., where certain observations may be found as to the method ot proving that the contracting parties are in fact the natural parents of the child. 167. Spuriimay Note. 1. Spurii, i. e., illegitimate children other than natural, * by^apal are no ^ legitimated by the marriage of their parents, but, with rescript, certain conditions and formalities, they can be legitimated per Rescriptum Principis, as it is called ( 2 ), that is to say, by a rescript of the Sovereign Pontiff, since the benefit of legitimation depends, in part at least, on the good will of the Pope. As this rescript of legitimation finds its proper place under the head of matrimonial . dispensations, we refer the reader there. Efficacy of 2. What is the efficacy of legitimation in the ecclesiastical fo- legitimation. rum ? If acquired through the subsequent marriage of the parents, it confers the power of receiving Orders, benefices and ecclesiasti- 1. The Pastor. Brug., p. 278 and 279, with regard to this entry says : If a child born before marriage is theirs, the parish priest will be careful to insert the fact of its legitimation in the record of the marriage, and will add thereto the follow- ing words : insuper sponsus N... declaravit filium sponsae suae N..., natum die... mensis... anni..., suam esse prolem, quam per matrimonium legitimare inten- dit . In the baptismal register the parish priest will also make a marginal entry of this legitimation together with a reference to the marriage register. To ensure the due observance of this formality, the Congr. Prosynod. of the diocese of Bruges, 1871, art. 6. prescribed : that if the child was baptized in a parish other than that in which the marriage takes place, written notice of the legitima- tion must be sent to the parish priest of the place of baptism . 2. For the origin of legitimation per rescriptiim Principis in the Roman and in the ecclesiastical law, see WERNZ, o. c., IV, n 680, iv ; VIOLLET, Histoire du droit, p. 473 ss ; GENESTAL, o. c., p. 182 s. THE LEGITIMACY OF THE CHILDREN 281 cal dignities, with the sole exception of that of the cardinalate (') ; moreover, by a fiction of the law, it is regarded as going back to the time of birth. Consequently, as REIFFENSTUEL says, on title XVII, n 60, compared with n os 42 and 43, children thus legitimat- ed c are made equal in everything with really legitimate children (saving the exception made above) ; and are included in all those provisions of the positive law which require legitimate birth (*) . If, on the contrary, legitimation has been granted by Papal re- script, its efficacy may be equally comprehensive with that acquired through subsequent marriage ( 5 ), or it may be more limited in its effects (*). 3. In addition to legitimation, there are also other means of removing, at least in part, the disabilities arising from illegitimate birth. Thus solemn profession, by a provision of the law, renders those who are illegitimate capable of receiving Orders, though not the prelacy ( s ) ; dispensation on its side can produce the like effect in particular cases. 169. 4. There were formerly various rites of legitimation in existence : a/ Ancient rites sometimes the children to be legitimated were placed under the cloth extended over their parents at the time of receiving the nuptial blessing, to signify that they were henceforth to be considered as the issue of that marriage. If we admit that the cloth in question represented the nuptial bed, the meaning is made yet more clear (). 1. This exception was introduced by Sixtus V, in the Constitution Postquam, of 3 Dec. 1586, 13. 2. Cf. SCHMALZGR., on title XVII, n s 82, 94 ss. ; FERRARIS, Prompta Biblioth., under Films, n 43 s. 3. For example in a sanatio in radice the legitimation of the children is ordina- rily retrospective, and goes back to the moment of birth. 4. We have been speaking of the efficscy of legitimation in the ecclesiastical forum. In the Belgian civil law, in virtue of art. 333, les enfants legitimes par le mariage subsequent auront les memes droits que s'ils etaient nes de ce maria- ge . It would seem that the Pope could not, except in extraordinary cases and by making use of his indirect power, cause to be attributed to canonical legiti- mation an efficacy bringing with it civil effects, i. e., cause to be recognised as legitimate in civil law, illegitimate children legitimated in virtue of a rescript or special canonical provision. See cap. 13, X, IV, 17, and compare with WERNZ, o. c., IV, n 687 ; DE BECKER, De Matr., p. 406 s. 5. Cf. GENBSTAL, o. c., p. 80 s. 6. Cf. KOGLER, o. c.. p. 55-64 ; see also above, n 122. 282 THE LEGITIMACY OF THE CHILDREN b/ Or again, at the time of the celebration of the marriage, the father or mother covered the child with his or her cloak. This second ceremony was borrowed from the ancient Roman rite of adoption (*). c/ Finally there were, here and there, yet other ceremonies in use : for example, during the celebration of the marriage the children were bound to the parents by a girdle or cord, or placed on the knees or in the lap of the mother (*). Scholion I. Civil legislation. 170. Civil By the Code Napoleon 1. the following are considered as legitimate: legislation. ^ ^jj children conceived during the marriage ; that is to say, born after the i8o th day after the celebration of the marriage, and before the 3co th day after its dissolution ( 3 ), whether the marriage be valid or putative (*). Nevertheless, the husband has the right of disowning a child, so as to render it illegitimate, when it is physically certain that it is not his, that is to say, if he can prove : que pendant le temps qui a couru depuis le trois- cenlieme jusqu'au cent quatre-vingtieme jour avant la naissance de cet enfant, il etait, soit pour cause d'eloignement, soit par 1'effet de quelque 1. KOGLER, o. c , p. 64-70, is at pains to show that this symbolical ceremony signifies that the child is born of those parents. He also finds the same significa- tion in the rite of adoption, which according to him denotes between adopter and adopted the relations of natural paternity. The ceremony of the cloak caused children thus legitimated by subsequent marriage to be known as filii mantellati (mantelkinders, enfants de manteau). 2. The same, p. 77 s. 3. 300 days correspond to a space of 10 months, and 180 to that of 6 months, according to the method of reckoning at the time of the drawing up of our (the Belgian) civil Code. The German code fixes as the extreme limits the 3oa nd and the i8i st day. Observe that in order to establish the legitimacy of the child, according to the rule given, it is necessary first to establish its filiation. But the filiation of a legitimate child is proved, according to articles 319 and 320, par les actes de naissance inscrits sur les registres de l'e*tat civil and, a defaut de ce titre, la possession constante de 1'etat d'enfant 16gitime suffit ; see also the following articles, and PLANIOL, o. c., I, n s 1384-1410. 4. Articles 201 and 202. A putative marriage, in the eyes of the Code Napoleon, is one that both parties, or one of them at least, contracted in good faith, and that has been subsequently annulled on account of some essential defect. In the case of a putative marriage, the children are held to be legitimate, and are regarded by the civil code as legal heirs, even in respect of the party who was not in good faith. See the decision of the Court of Cassation of Paris, of 5 Jan. 1910 (in Pasicrisie, 1910, IV, p. 161). Cf. THIRY, o. c., n 203 ; decision of the Court of Brussels, Pasicrisie, 1912, II, p. 57 ss. THE LEGITIMACY OF THE CHILDREN 283 accident dans 1'impossibilite physique de cohabiter avec sa femme ('). b/ Children born in wedlock, though conceived before the marriage. For, they are then presumed to be the issue of the marriage, according to the legal saying likewise admitted in the ecclesiastical law : is pater est quern nuptiae demonstrant ', see above, n 163. Nevertheless, the husband may disown such children, merely by a simple declaration of non-paternity, if they were born before the i8o th day following the matrimonial contract, except in the three hypotheses mentioned in art. 314, viz., s'il a eu con- naissance de la grossesse avant le mariage ; s'il a assiste a 1'acte de naissan- ce, et si cet acte est signe de lui ou contient sa declaration qu'il ne sait pas signer ; si 1'enfant n'est pas declare viable . See PLANIOL, o. c., I, n os 1417 s., n. 1559, n s 1429 and 1439. 2. All children not included in one or other of the two classes mentioned above are considered as illegitimate. Consequent on the condition of their respective parents, some are called simply natural, viz., those whose parents, at the time of the legal conception, were not prevented by any diriment impediment from marrying one another ; while others are known as incestuous or adulterine, according as their parents, at the time of legal conception, were related with one another within the prohibited degrees and undispensed, or one or the other of them was at that time married to some person other than the father or mother of the child. See above n 149. 3. Illegitimate but natural children (to the exclusion of adulterine or i. Art. 312. Cf. also art. 313, which provides that the husband may, in a case of adultery and when the birth of the child has been concealed from him, disown it, even though he can only invoke a moral impossibility in support of his non- paternity. Cf. PLANIOL, o. c., I, n s 1435 s. ; decision of the Cour de Gand, 3 Jan. 1908, Pasic-risie, 1909, II, p. 371 ss. The Belgian Senate, in its session of 16 March 1911, voted the draft of a law, due to the initiative of M. Alex. Braun, which will probably be adopted by the Chamber and sanctioned by the King. The following clause would then be added to art. 313 : En cas de jugement ou meme de demande en divorce ou en separa- tion de corps, le mari pourra desavouer 1'enfant ne trois cent jours apres la deci- sion qui aura autorise la femme a avoir un domicile s6par6 et moins de cent quatre-vingt jours depuis le rejet definitif de la demande ou depuis la reconcilia- tion. L'action en desaveu ne sera pas admise si la femme prouve qu'il y a eu reunion de fait entre les deux epoux . Annales Parlementaires, Senat, Seance du 16 mars 1911, p. 244 ; cf. Collat. Bnig., XI, p. 329 s. See also COULON, Le Divorce et la Separation p. 279, where may be found the text of the French law of 6 Dec. 1850, modifying in the same sense art. 312 of the civil code ; the only difference being, that the text adopted by the Belgian Senate expressly lays on the wife the burden of proof of the circumstances alleged by her against the legal presump- tions. 284 THE LEGITIMACY OF THE CHILDREN incestuous children) (), can be legitimated ( 2 ) par le mariage subsequent de leur pere et mere, lorsque ceux-ci les auront legalement reconnus avant leur mariage, ou qu'ils les reconnaitront dans 1'acte meme de celebration . Art. 331 of the civil code ( 5 ). Observe that such children are not legitimated by the mere fact of the subsequent marriage, but only when legally acknowledged by their parents either before their marriage, or in the act of its celebration ( 4 ). Moreover, and this must be carefully noted, our (i. e. the Belgian) civil law, like the canon law, requires that the subsequent marriage should be between the natural parents of the child to be legitimated. Thus the civil officer commits a grave offence if, as sometimes happens, he urges the I. In virtue of the law of 8 Apr. 1908, art. 34b of the civil code, the exception made against incestuous children does not apply to children nes de personnes parentes ou alliees, entre lesquelles le mariage pouvait etre autorise par dis- pense . See also CARON, o. c., p. 235-242, and p. 262 ; likewise PLANIOL., o. c., I, n 1553, who quotes with disapproval the change introduced by the law of 7 Nov. 1907 into the French law, in favour of adulterine children. Henceforth such children can, under certain circumstances, be legitimated by subsequent marriage. See also NAQUBT, Vcrs I'union libre, p. 270 ss. who speaks of a movement in favour of the suppression of the restrictions imposed by the law. a. Legitimated children enjoy, before the law, the same advantages as legiti- mate children, but only from the time of the celebration of the marriage. Art. 333. See also n 168, above. Natural children legally acknowledged, but not legitimated, cannot reclamer les droits d'enfants legitimes , art. 338. Acknowledgment proves the status of natural child in relation to a determinate person ; it does not change that status. Observe also that legitimation may be granted.in virtue of art. 332,* en faveur des enfants decedes, qui ont laisse des descendants, et dans ce cas, elle profile a ces descendants . 3. Legitimation by subsequent marriage is, at present, the only legitimation possible in civil law. The Rescriptum Prineipis has disappeared from our legis- lation, though formerly in use, as we have remarked, referring our readers to VIOLLET, Histoire dudroit, p. 473 ss. ; cf. PLANIOL, o. c., I, n os 1550 s. 4. This acknowledgment, according to the provisions of art. 331, must be made before the marriage, or at least in the act of its celebration. La reconnaissan- ce faite posterieurement a la celebration du mariage n'entraine pas la legitima- tion. Le legislateur a craint que la reconnaissance posterieure ne soit pas 1'expression de la verite . Tribunal de Louvain, 22 June 1910, in Pasicrisie, 1910, III, p. 243 s. ; Cour de Chambe'ry 18 Dec. 1911, in Pasicrisie, 1912, IV, p. 63. On the other hand, acknowledgment, made in conformity with the law, holds good against him who made it until it is proved to be false, by evidence showing that the false avowal of paternity was due to error, deceit or violence. Decision of the Court of Appeal of Brussels, 22 Nov. 1910, in the Pasicrisie, 1911, II, p. 341. THE UNITY OF MARRIAGE 285 prospective husband to acknowledge as his own a child that his intended wife has previously had by another man ('). The priest should be careful not to imitate such conduct, and should follow the canonical rules laid down for the entering of legitimations in the register of marriages and of baptisms (*). The common opinion of lawyers is, that children born before marriage may also be legitimated by a putative marriage, though this seems contrary to the tenor of articles 201 and 202 : this latter article speaks of children issus du mariage >. See PLANIOL, o. c., I, n 1109 ; THIRY, o. c., n 304 ; CARTERON, o. c., who treats at length of putative marriage and its effects. Scholion II. The Roman Law. In the ancient Roman law, marriage was not the sole source of legitimacy, Roman law. as in the canon and modern civil law ; the paterfamilias had the power of disowning his children, and of substituting others not connected with him by birth in their place, by means of adoption ( 3 ). CHAPTER III. PROPERTIES OF THE CONJUCiAL BOND. 171. ARTICLE 1. Unity of the conjugal bond. Preliminary observations. 1. To the unity of marriage is oppos- ed polygamy. Polygamy, in the etymological sense of the word, comprises the state of a man who has several wives (polygyny), 1. It also happens that the prospective husband, with a view to rehabilitating his future wife, acknowledges as his own a child that she has previously had by another man. But when the future husband and wife freely declare, and without constraint recognise as the offspring of their intercourse a child to whom the future wife has previously given birth, it is no part of the civil officer's duty to refuse to register their declaration, even though he has good reason to believe it to be untrue. But such acknowledgment can, by the terms of art. 339 of the civil code, be contested by all who have an interest therein. See on this subject the Revue d' Administration et de Droit administrate/, 1908 (t. 55), p. 341 ss., where is reported a consultation on this question, sent to the authorities at Brussels by the civil officer of that city. 2. See Coll. Brug., t. VI, p. 122 ; XI, p. 726 s. ; XLI, p. 766 s. ; cf. also, Archiv. f. k. K., 1910, p. 161 s., which states that in Austria a law has recently been passed to restrain this abuse still existing there. 3. Le paterfamilias pouvait exclure de sa damns ses enfants ou ses petits- enfants ex nuptiis, les depouiller meme de toute agnatio ; d'autre part, il pouvait introduire dans sa domus et au meme titre, avec pleine agnatio, des enfants de provenance etrangere, par 1'adoption . LEFEBVRE, o. c., p. 59. 172. To tlic unity of marriage are opposed tlu various kinds of polygamy. 286 THE UNITY OF MARRIAGE and also the contrary state, namely, that of a woman who has several husbands (polyandry). Polygamy is successive or simultaneous. Successive polygamy is rather called bigamy ( f ) or digamy, trigamy, tetragamy and so forth. Outline of 2. The question with which we are at present occupied, and I f natural a ^ so the one that follows, are dependent on certain principles of law. natural law, which we will briefly recapitulate. The precepts of the natural law are divided into primary and secondary precepts. In opposition to the primary precepts of the natural law are : firstly, acts directly opposed to the last end, such as destroy the relations that ought to exist between man and God ; secondly, those acts which tend to undermine the very foun- dations of society, and so, of their nature, overturn the relations that are essential between men, and necessary for the common welfare. Opposed to the secondary precepts are those acts which do not tend to destroy the established order, but are of a nature to injure or thwart it in the generality of cases. According as they are really injurious to it, or merely less favourable, such acts are forbidden, or simply discountenanced by the natural (secondary) law (*). We say forbidden, viz, it is true that what is contrary to the secondary precepts is not injurious to the social order, except in the generality of cases, and may per accidens and exceptionally fit in with the general good ( 3 ) ; nevertheless, this does not prevent it from being forbidden by the natural law ; for the law considers things in their generality, in that which is per se. Cf. St. THOMAS, C. Gent., 1. Ill, c. 122. 1. In French (and also in English, Tr.), the word bigamy denotes the condition of a man having two or more wives at the same time. 2. Cf. St. Thomas, Supplementum, qu. LXV, art. i ; PALMIERI, o. c., p. in, 117 and 119. 3. St. THOMAS, Supplem., qu. LXV, art. 2, speaking of what is contrary to the secundary natural law, i. e., contra legem naturae, non quantum ad prima oraecepta ejus, sed quantum ad secunda, quae quasi conclusiones a primis prmcipiis derivantur , expresses himself as follows : Sed quia actus humanos variari oportet secundum diversas conditiones personarum, et temporum, et aliarum circumstantiarum, ideo conclusiones praedictae a primis legis naturae praeceptis non procedunt, ut semper efficaciam habentes, sed in majoriparte ; et ideoubi eorum efficacia deficit, licite ea praetermitti possunt . THE UNITY OP MARRIAGE 287 Now, a/ To permit an action opposed to the primary precepts of the natural law, is not in the power of anyone, not even of God, at least by way of a general measure ('). For the Creator himself cannot undermine the order established by Him. b/ To permit an action contrary to the secondary precepts of the natural law, is in the power of God, even by way of a general measure, but not in the power of man. God alone can do that. It belongs to Him, and to Him alone, to dispense from the law that He has made, and to determine the cases in which per accident the law admits of derogation (*). He can give this dispensation either directly, without an intermediate agent, or mediately, through the agency of the Church, at least where it is a question of obligations incurred through the act of man ^ 3 ).He can then communicate His 1. We say, at least not by a general measure. For St. THOMAS teaches, q. LXVTI, a. 2, that it is in the power of God to dispense even from the pri- mary precepts of the natural law... but such dispensations are not given to all in general, but rather to individuals, in a way analogous to that which is exempli- fied in the matter of miracles . BILLOT, De Ecclesiae Sacramentis, 1896, II, p. 386, explaining this doctrine, distinguishes both kinds of primary precepts of the natural law : There is in the first place all what is in direct and immediate contradiction to the last end, all that which is directly and immediately opposed to God. For these God him- self can give no dispensation, not even in virtue of His absolute power... In the second place, there are those acts which are forbidden because they are natu- rally destructive of the general good, of the social order, and on that account are in mediate opposition to the last end, since that cannot be attained otherwise than by means of human society. For those acts it is evident also that they admit of no general dispensation, granted to a whole community, so as to be regarded as an ordinary privilege... ; nevertheless there is no reason why in a particular and altogether exceptional case those acts should not be withdrawn by a divine disposition from their natural condition, according to which they are contrary to the last end, so as to tend to God in a higher and, so to speak, miraculous manner, outside of the order of second causes . 2. St. THOMAS, Suppl., 1. c. continues his argument in these words : Sed quia non est facile determinare hujusmodi varietates (personarum, temporum...), ideo illi, excujus auctoritate lex efficaciam habet, reservatur ut licentiam prae- beat legem praetermittendi in illis casibus, ad quos legis efficacia non extendere se debet, et talis licentia dispensatio dicitur > ; and he further adds that the natural law non est humanitus sed divinitus instituta >, and ideo in hoc a solo Deo dispensatio fieri potest . 3. Cf. BILLOT, o. c., II, p. 402 s., who very appropriately distinguishes the twofold power exercised by the Church, and at the same time gives the reason of 88 power in part to the Church, which exercises it, not in its own name, for it is but a ministerial or instrumental power in its hands, but in name and by the authority of God, who is the real holder of the power ('). FIRST PROPOSITION. Successive polygamy has never been condemned either by the divine law, or by the common law of the Church ; though regarded as a less praiseworthy state. Explanation and demonstration. A. No argument can be advanced to prove the establishment f tne prohibition by divine law ; and though some Oriental prohibited, writers have affirmed the contrary (?}, their assertion has no foundation in fact. B. Let us now consider the ecclesiastical law : 1. It is beyond doubt that from the objective and absolute point of view, the Church has never favoured remarriages, and has always regarded successive polygamy as an imperfect state, gene- 173. Successive expediency that arms the Church with a certain authority to remove several obligations of the divine and natural law, viz., such as arise from human acts : There are obligations imposed by God, as the Author of nature or of grace, independently of all deliberation on the part of the human will ; and there are others that are established only in consequence of the act of man and of the determination of his free will, as is apparent in the case of a vow, an oath and so forth. Now, between these two kinds of obligation there is an evident difference as regards the point with which we are concerned. For man, in his decisions, is incapable of examining beforehand and foreseeing all the circumstances in which it may become inexpedient or less advantageous to accomplish what he has promised by vow, or even sworn, or sanctioned by contract. This is why, for the good of Christian society, in cases of this kind, a dispensation can sometimes be given by the Vicars of Christ, as particular occasions^arise. But the above reason does not apply to those obligations which have their founda. tion in the divine will alone, since the Providence of God foresees everything and leaves nothing to chance ; there can then be no question of remedying the want of human foresight . Cf. St. THOMAS, 2 a 2*e, qu. LXXXVIII, a. 10, ad 2. 1. SUAREZ proposes a different explanation in his treatise De Legibus et Deo Legislatore, t. II, p. 15, and many authors agree with him. Cf. ESSER, o. c., p. 35-49, who compares these divergent solutions. 2. Thus Nicholas, Patriarch of Constantinople, in the controversy of Leo VI, maintains that fourth marriages are contrary to the divine law. Cf. JUNGMANN, Dissert, in hist, eccl., Ratisbonae, 1884, IV, p. 135 s. THE UNITY OF MARRIAGE 289 rally indicating a want of continency ('), and less perfectly repre- senting the one union of Christ with the Church, His one spouse. Add to this that second marriages are often injurious to the child- ren by the first marriage, as well as to the peace of families. The mark of imperfection attaching to remarriages, and parti- cularly the suspicion of incontinence to which they give rise, are the principal reasons why the Fathers have judged so severely second, and still more third and fourth marriages (*). Thence came also the penance that it was formerly the custom to impose on those who married again ( 3 ), and the prohibition forbidding priests to be present at the festivities of a second marriage ( 4 ) ; for the same reason such unions were not solemnly blessed (*), and those who had contracted them were debarred from Orders (). Nevertheless, 2. the common ecclesiastical law has never made a l least by any prohibition strictly so called in this regard. And, in fact, St. PAUL, in his first epistle to the Corinthians, VII, 39, says : A i. Clement of Alexandria, Strom., 1. Ill, c. tz, (Migne. VIII, col. 1183) : If the Apostle permits second marriages to those who are consumed by the heat of pas- sion... such persons certainly do not follow the maxim of lofty perfection of life proposed in the Gospel >. 3. It is in this sense that ST. GREGORY OF NAZIANZUM, Oratio XXXVII, n. 8, whose words must, however, be taken with a grain of salt, says : The first (marriage) is the law, the second a condescension to weakness, the third an iniquity, and anyone who goes beyond that is plainly hoggish . Migne, XXXVI, col. 291. In like manner ST. BASIL, Letter 188 (i st of the canonical letters), declares that third marriages deserve not the name of marriage, but that of polygamy, or rather regularised fornication (moderatam fornicationem) . Migne, XXXII, col. 674. The Fathers were, moreover, careful to add, against remarriages, the argument drawn from the welfare of the children and the peace of families. Cf. CHARDON, o. c., p. 185 s. 3. Ch. 8, C. XXXI, q. i : A temporary public penance was imposed on such as remarried frequently . 4 . Ibid. : The priest must not be present at the festivities of second marri- ages, especially as it is then the rule to impose a penance . 5. See above, n 122, and MARTENS, o. c., 1. I, P. 2, ch. IX, art. I, n 7. Cf. CASTAN, o. c., who remarks that in France, under the ancient regime, the people themselves were opposed to second marriages, and sometimes demonstrated against them with rough music. See also the Conferences de Paris, III, p. 94. 6. DEBRABANDSRE-VAN COILLIE, o.c., II, n. 1503. 19 290 THE UNITY OF MARRIAGE woman is bound by the law as long as her husband liveth : but if her husband die, she is at liberty ; let her marry to whom she will ; and he repeats this in his epistle to the Romans, VII, 2, 3. At the Council of Florence, in the decree for the Armenians, Eugenius IV expresses himself thus : We declare that not only second, but third and fourth and subsequent marriages can be lawfully contracted, if there be no impediment thereto . In like manner, Hermas ('), St. Ambrose (*), St. Jerome ( 3 ), St. Augus- tine (*), and other Fathers ( s ), neither commend nor condemn second marriages. But beyond this, it has often even happened that the Church has recommended second marriages, not objectively and absolute- ly speaking, but as a remedy for incontinence. Thus we read in the Instr. of the S. C. de P. F., of 8 Sept. 1869 : Their Eminen- ces... have enjoined the missionaries to tell the faithful that such (second) marriages are not disapproved of by the ecclesiastical law, provided there is no impediment ; widows should therefore be advised to marry again, if there is danger of incontinence ( 6 ). Such is the common law ; but if we turn to the local law, especially in the East, we find that there has sometimes been excessive seve- rity, as is exemplified by the well known controversy about the fourth marriage of the Emperor Leo. See PALMIERI, o. c.,p. 102 ss.; VERING, o. c., p. 914 ( 7 ). SECOND PROPOSITION. Simultaneous polygamy is forbidden by the natural law in the following way : polyandria is opposed to the primary precepts of the law, and polygyny to its secondary precepts only. 1. Die, si vir vel mulier alicujus decesserit, ut nupserit aliquis eorum, num- quid peccat ? Qui nubit non peccat . Mandatum, IV, n 4. (Ed. Funk). 2. Non prohibemus sccundas nuptias, sed non probamus saepe repetitas . De Viduis, c. n ; Migne, XVI, col. 254. 3. Non damno digamos et trigamos, et si dici polest, octogamos >. Ep, 48 ad Pammachium, n 9 ; Migne, XXII, col. 499. 4. De tertiis ct quartis et de ultra pluribus nuptiis solent homines movere quaestionem. Unde et breviter respondeam : nee ullas nuptias audeo damnare . De Bono Vid., c. 13 ; Migne, XL, col. 439. 5. Cf. PascH, o. c., VII, n 858 ; PALMIERI, o. c., p. 98 s. 6. Collectanea, n 1378, and compare with n 1377. 7. In Russia, under the influence of the orthodox Church, the existing civil law still forbids fourth marriages. Cf. CASTAN, o. c., p. 16 s. THE UNITY OP MARRIAGE 29 1 Explanation and demonstration. 174. I. Simultaneous polyandria (') is in opposition to the primary Polyandria precepts of the natural law. The reason of this is that it is destruc- is ^ r y b l^ en tive of the essential economy of marriage, and consequently tends primary to undermine the foundations of society, which is based upon marriage and the family. Simultaneous polyandria destroys marri- age, inasmuch as it renders its primary end unattainable ; for, though such a union may lead to the birth of children (less readily however, than monogamy) yet, of its nature, it puts an obstacle in the way of their proper education. And in fact, as we have shown above, the normal education of children requires the care and joint efforts of both father and mother; but where the father is unknown, his assistance must practically be wanting (*). The union of a woman with two or three husbands at the same time is therefore absolutely unlawful, and such a marriage is altogether invalid. 175. II. Simultaneous polygyny is opposed to the secondary, but not Polygyny is to the primary precepts of the natural law. the secondary Such a union does not in fact destroy the essential economy of Precepts of . . tiie natural marriage, and therefore is not subversive of the established order. law. The procreation and education of children, the proper end of marriage, are not rendered impossible thereby, and consequently simultaneous polygyny is not opposed to the primary precepts of the natural law. On the other hand, however, such a union is of a 1. WESTERMARCK, o. c., p. 114 s. and p. 426 s., enumerates the different terms of polyandria ; likewise PEITEL, o. c., p. 26 ; see also La Revue sociale catJiolique, VIII (1904), p. 49 ss., where we read that in Thibet polyandria exists in a special form, called punaiuan : several brothers having one and the same wife, though it is properly the eldest who possesses her by right, and after his death, the second. Cf. AVIGDOR, o. c., p. 31 ; HOWARD, o. c., I, p. 68 s. and p. 81. 2. St. THOMAS, in Suppl., qu. LXV, art. i, ad 8 : < Unam uxorem habere plu- res viros, est contra prima praecepta legis naturae, eo quod per hoc quantum ad aliquid totaliter tollitur, et quantum ad aliquid impeditur bonum prolis, quod est principalis matrimonii finis. In bono enim prolis intelligitur non solum pro- creatio, sed etiam educatio ; ipsa enim procreatio prolis, etsi non totaliter tolla- tur, quia contingit post impraegnationem primam iterum mulier impraegnari..., tamen multum impeditur... ; sed educatio totaliter tollitur, quia ex hoc quod una mulier plures maritos habet, sequeretur incertitude prolis respectu patris, cujus cura necessaria est in educando , THE UNITY OP MARRIAGE kind to injure marriage (and therefore society), because, in the generality of cases, it is prejudicial to the education of the child- ren ; the peace of the family is often disturbed, mutual support is wanting, and the cohabitation of the parties which is necessary for the work of education, frequently becomes exceedingly pain- ful. Hence we conclude that polygyny, by the natural law, and abstracting from all positive law, is not merely discountenanced as less fitting, but strictly prohibited, and that every marriage con- tracted under these conditions is radically null ('). This is also clearly taught by the C. S. O. in its Instruct, of 20 June 1866 ( 2 ) : c It is a universally recognised principle that a marriage celebrated between infidels, at a time when the man had a former wife still living, is Mill and invalid both in the divine and natural law . The authority of BENED XIV, De syn. dioec., 1. XIII, c. 21, n. 9, corroborates this doctrine ; he says : Duran- dus and Abulensis teach that polygamy is not repugnant to the natural law. Though it cannot be said that this singular opinion has been condemned by the Council of Trent, it nevertheless deserves to be censured as improbable and contrary to the com- mon teaching of theologians, who declare polygamy... contrary alike to the divine and to the natural law . See also WERNZ, o c., IV, n 361, together with notes 34 and 35. Note. Generally the two sexes are approximately the same in number. This fact helps to show that polygyny is in opposition to the natural law ( 5 ). 1. Cf. MARTIN, o. c., I, p. 149-155, He there proposes several considerations drawn from the nature of marriage and from the reciprocal rights of husband and wife, which strongly support our thesis. Thus, on p. 153 s., he says : Justitia jurisve aequalitas neccssario requirit nullum teneri in commutationibus plus dare quamaccipit, aut minus accipere quam tradit. Ergo et necessario Deus voluit virum et mulierem conjugium contrahentes non teneri minus accipere quam tradunt, nee proinde teneri utrurnlibet, pro toto, quod tradit, corporis sui dominio ac jure, accipere partitum ct incomplctum jus atquc dominium in corpus alterius. Ergo non potest vir... pro integro, quod accipit mulieris corpus corpori suo aequale, jure ac dominio, partitum corporis sui aut in alias uxores dividendum tradere jus et dominium . Cf. also ZIESCHE, Die Sakramententehre des Wilhelm von Auvergne, Wien, 1911, 41 s., where he skilfully proposes the reason against polygyny. 2. Collectanea, n 1354. 3. Cf. ZIESCHE, 1. c. ; sec on the other side WESTERMARCK, o. c., p. 434 ss. ; HOWARD, o. c., I, p. 13653. THE UNITY OF MARRIAGE 293 176. THIRD PROPOSITION. Simultaneous polygyny (properly called poly- The law gamy) was forbidden from the beginning) according to the most pro- J%"fablKh- bable opinion, by the positive divine law, but this prohibition of the" 1 by God in divine as also of the secondary natural law, was subsequently removed ing, under the Old Law by a divine dispensation, which Christ after- wards entirely withdrew. Explanation and proof. I. In the original institution of marriage God prescribed mono- gamy and prohibited polygamy. This follows, at least with great probability, from the fact of the creation of a single man and a single woman, and especially from the words of Adam inspired by God : Wherefore a man shall leave father and mother, and shall cleave to his wife, and they shall be two in one flesh*. Gen. II, 24. Interpreting these words, Innocent III, cap. 8, X, IV, 19, draws from them the following argument : < It (Holy Scripture) does not say : (God created) three or more, but only two ; neither does it say : he shall cleave to his wives, but to his wife. No one could ever have several wives at the same time, unless authoris- ed by a divine revelation ; then only could this custom be called lawful, and it is by reason of this... that the Patriarchs and other holy men, of whom it is written that they had several wives at the same time, did not thereby commit adultery . The Council of Trent, Sess. XXIV, De sacram. matrimonii, also assumes that the words of Adam teach the unity of marriage, since it says : Our Lord taught more plainly that the bond of marriage unites only two persons, when, referring to these words (they shall be two in one flesh) as uttered by God himself, He added : therefore now they are not two, but one flesh . As Pal- mieri observes ('), ii Our Lord, in explaining the words of Adam which are the words of God, taught more plainly the unity of marri- age, we must conclude from that, that God had already taught it plainly, i. e., ordained it from the beginning . The Catechism of the Council of Trent, P. II, c. VIII, par. 19, says in like manner : By these words He (Our Lord) showed that marriage was insti- tuted by God, so as to be the union of two persons only, and not of more than two . Finally, in agreement with this are the i. O. c., p. 166. 294 THE UNITY OF MARRIAGE words of Nicholas the Great, in his reply ad consulta Bulgarorum, c. 51 (Migne CXIX, col. 999) : To have two wives at the same time is not permitted either by the original condition of the human race, or by the Christian law . 177. but was II. In the Old Law, this prohibition emanating alike from the tne Old Law, divine law and from the secondary natural law was removed by a dispensation. This is evident 1. from the words of Deuteronomy, XXI, 15, 16 ( l ), where Scripture clearly assumes the lawfulness of polygyny ; 2. from the example of the Patriarchs, who, unblamed by the Scriptures, had several wives at the same time ( 2 ) ; 3. from the words of Innocent III, which we have just quoted, c. 8, X, IV, 19. It is generally taught that the dispensation in question was introduced after the deluge in favour ot the Jewish race ( 5 ), and according to St. Thomas, it was made known by divine inspira- tion (*). Nevertheless, this dispensation directly given in favour of the Hebrews, indirectly and concomitantly benefited the Gentiles. For the heathens... could easily persuade themselves that it was lawful for them to follow therein the example of just and holy men ; and, having regard to these circumstances, if God had wished to restrict this privilege to the faithful people alone, to the exclusion of all others, He would have said so distinctly, so as to 1. If a man have two wives, one beloved, and the other hated, and they have had children by him, and the son of the hated be the first born,... he may not make the son of the beloved the first-born, and prefer him before the son of the hated . 2. Among the wives one was of higher dignity than the others, who were often called concubines, not as if they were unlawful, but because they held a lower wifely rank. Cf. PESCH, o. c., VII, n s 832 s. 3. Observe, however, that in the Mosiac law, Deut., XVII, 17, the number of wives was already limited to a certain extent. See Coll. Brug., t. XIII, p. 260 s., and the Realeneykl., t. V, p. 744, showing that monogamy was in accord with the desires of Jewish legislation. See also WATKINS, o. c., p. 46 ss. 4. Lex autem de unitate uxoris non esthumanitus sed divinitus instituta, nee unquam verbo aut litteris tradita, sed cordi impressa ; sicut et alia quae ad legem naturae qualitercunque pertinent ; et ideo in hoc a solo Deo dispensatio fieri potuit per inspirationcm internam, quae quidc-m principalitcr Patribus facta est, et per eorum cxempla ad alios derivata est >. Supplem., qu. LXV, art. 2. THE UNITY OF MARRIAGE 295 avoid giving a reasonable pretext for shameful concubinage > ('). From this we can understand how Esther, at the instigation of Mardochai, permitted herself to be united to king Assuerus, though he was already married. 178 III. Finally, arguments are not wanting to show that Christ and defini- brought marriage back to the original limits of monogamy, and made tablishedbv those limits obligatory and exclusive. Christ, 1. Matth., V, 32, and XIX, 9, taken in conjunction with Mark, X, ii and Luke, XIV, 18, show that the man who, being married, puts away his wife and takes another commits adultery ; conse- quently a second marriage is invalid as long as the first endures. The Catech. of the Council of Trent, 1. c., does not fail to make use of these texts, and concludes from them that it is no more lawful for a husband to have two wives at once in his house, than to put away his wife and to take another. 2. The evidence of the Fathers, cited by PESCH, o. c., VII, n 825, to which may be added the text of Nicholas the Great, given above, is quite explicit on this point. 3. The Councils expressly teach the same. At the second Council of Lyons, the profession of faith of Michael Palaeologus declares : As regards marriage, it (the Holy Roman Church) holds that a man may not at the same time have more than one wife, nor a woman more than one husband ( 2 ). At the Council of Trent, the second canon of Session XXIV pronounces anathema against anyone, who maintains that it is lawful for Christians to have more than one wife at the same time, and that the practice is for- bidden by no divine law . We may further adduce the declaration of the C. S. O., in its Inslr., of 1866, quoted above, as also in its Intsr., of 28 March 1860 5 . 1. PALMIBRI, o. c., p. 118 s. 2. DENZINGER, o. c., no 465. 3. Collectanea, n 1297 : c< Certissimum est polygamiam jure evangelico esse omnino illicitam ; unde, postquam Jesus Christus matrimomum ad pristinam reduxit sanctitatem. unitatem et indissolubilitatem, addita pro baptizatis sacra- menti dignitate, nee infidelibus, nee Judaeis, nee ulli mortalium licuit plures sibi copulare uxores. Consequenter divinitus sic restituta monogamia, nonnisi unam uni legitimo validoque conjugio devinciri posse inconcussum fidei dogma habetur . 296 THE INDISSOLUBILITY OF MARRIAGE even for infi- The documents of the Holy See, and especially the above-men- tioned instructions of the C. S. O., clearly show, as we have seen, that the law of monogamy, re-established by Christ, is binding not only on Christians but also on infidels. The reason of this is, as BILLOT shows (') : firstly, because the words : whosoever shall put away etc. (Matth. XIX,9) are unlimit- ed in their application ; secondly, because the natural law binds alike the unbaptized and the baptized, and this law naturally re- sumes its full force in respect of all, when the dispensation which permitted polygamy has been withdrawn ( 2 ) ; finally, because this dispensation directly affected the faithful alone, and all others only concomitantly > ( 3 ). ARTICLE 2. The indissolubility of the conjugal bond. This article is divided into four sections. In the first and second we shall treat in general of the law of indissolubility in the light of the natural law and of the positive divine law ; in the third we shall speak of the various derogations from this law ; and finally, in the fourth, we shall show the absolute indissolubility of marriage It is well known that Luther and Melanchthon held that polygamy was not contrary to the Scriptures, and that they permitted bigamy in the case of Philip of Hesse. They also recommended a like course to Henry VIII of England, and advised him, instead of seeking a declaration of nullity of his marriage with Catherine and divorcing her, to take a second wife, while still retaining the for- mer. It seems also that Clement VII, in the case of Henry VIII, showed some hesitancy on the question of its strict and undispensable prohibition by Holy Writ. Cf. GRISAR, Lutlier, II, p. 374 ss., coll. p. 213 ss. 1. O. c., p. 378. 2. Dicendum quod habere plures uxores est contra legem naturae, cui etiam infideles sunt adstricti ; et ideo non est verum matrimonium infidelis nisi cum ilia cum qua primo contraxit . St. THOMAS, Suppl., qu. 59, art. 3, ad 4. 3. As a matter of fact polygamy still flourishes in several non-christian nations, and even in one sect that calls itself Christian, viz., that of the Mormons. See C. WILLEMS, o. c., p. 389. We should add that in most polygamous nations polygamy has certain mono- gamistic tendencies : one of the wives has precedence over the others, and to some extent enjoys the rights of a lawful wife. Often also each wife has a sepa- rate abode and constitutes, as it were, a distinct family. Cf. LEROY, Religion des Primitifs, p. 101 s. ; HOWARD, o. c., I, p. 134. THE INDISSOLUBILITY OF MARRIAGE 297 ratum et consummatum. This will be followed by a supplementary notice on civil divorce. PARAGRAPH I. THE I AW OF INDISSOLUBILITY BEFORE THE NATURAL LAW. 179. PROPOSITION. Marriage is indissoluble by the natural law : arbitra- Arbitrary ry dissolubility, at the mere caprice of the parties, is opposed to theprima- ^ l f SS ^^ e ry natural law ; dissolubility restricted within certain limits is contrary ts opposed to to the strictly prohibitive secondary natural law. natural law. Explanation and demonstration. I. The arbitrary dissolubility of marriage, preached by the advo- cates of free love, is in opposition to the primary natural law. For, this system means the ruin of married life and of the family, and so of society also. Arbitrary divorce does away with the proper end of marriage, that is to say, the procreation and right educa- tion of children. The attainment of this end requires, for a long space of time, the constant and common solicitude of the father and mother. There must therefore be a bond, which, if not perpetual, is at least lasting and secure to bind husband and wife together in such a manner, that neither the one nor the other is free to- break it capriciously at any moment ('). JjM II. As regards dissolubility restricted and limited to certain deter- Restricted minate causes and circumstances : dissolubility ts opposed to 1. Such dissolubility is not repugnant to the primary principles Hie secondary of the natural law ; for neither the essence of marriage nor the "' attainment of its principal end necessarily requires absolute indis- solubility. Thus, this principal end, the generation and education of children, would not be radically ruined, if it were lawful to dissolve the marriage when the work of education had been com- pleted. But. 2. restricted dissolubility is in opposition to the secondary principles of the natural law. If it does not tend to destroy marri- age in its essence, and so to undermine society itself, it is never- theless of a nature to injure seriously the partnership of marriage. If we look at things per se, and in their generality, outside of strict indissolubility, the stability of the union between husband and i. See above, n s 48 and 49. 298 THE INDISSOLUBILITY OF MARRIAGE wife and their mutual fidelity are adversely affected by it ; the dignity of the wife and the education of the children suffer, so that the end of marriage, though still remaining possible, becomes more difficult of attainment. Let us develop this idea : a/ No one will deny that the prospect of a new marriage and of a new family will render parents less solicitous in providing for the welfare of the children by the existing marriage, and that the lot of the children is truly lamentable when their father and mother are divorced from one another, and have contracted fresh marri- ages ( ] ). b/Then again mutual love between husband and wife will weaken, and conjugal fidelity be diminished, as a direct consequence of the possibility of divorce. In the nature of things, the stronger the marriage bond is, the less it can be tampered with, the closer will be the union of hearts, the greater will be the effects of mutual love, the better disposed will husband and wife be to bear with one another's shortcomings and to avoid occasions of discord ( 2 ). On the other hand, if separ- ation is regarded as a possibility that may be realised, intimacy slackens, love grows cold, especially on the part of the partner contemplating a new alliance, and a frivolous pretext suffices to turn it into aversion and hate ( 5 ). The mere possibility of dissolu- tion causes marriage to be entered upon lightly, without any serious proof of one another, and without looking for a well fixed 1. Cf. COMBIES, O. C., p. 437S. ; DlDON, O. C., p. 31-34; MONSABRE, O. C., p. 65-67 ; SALSMANS, o. c., p. 30 ss. ; BOCKENHOFF, o. c., p. 68 s. ; DE SMET, Over de Echtsclteiding, p. 81. 2. Erit fidelior amor unius ad alterum, dum cognoscunt se indivisibiliter con- junctos ; erit etiam utriusque sollicitior cura in rebus domesticis, dum se perpe- tuo commansuros in earundem rerum possessione existimant >. St. THOMAS, C. Gtnt., 1. Ill, c. 123. The Catech. of the Council of Trent, P. II, c. VIII, par. 21, in like manner says : Once the faithful realise that, even if separated as to bed and board, they are still bound by the marriage bond, and that all hope of a second marriage is cut off, they are less ready to give way to anger and discord . 3. Le divorce est un obstacle a 1'union des ames, a Paffection mutuelle, a la confiance re"ciproque qui fait la dignite du mariage ; il s'oppose a 1'attachement veritable des epoux 1'un pour 1'autre, car on ne s'attache veritablement que quand on est sur de pouvoir etre toujours attache . COMBIER, o. c., p. 431. See also DIDON, o. c., p. 41-44 and MONSABRE, o. c., p. 59-61, whose eloquence extols the perpetuity and indefectibility of conjugal love ; SALSMANS, o. c., p. 29 s. THE INDISSOLUBILITY OF MARRIAGE 299 mutual affection ('). Finally the very possibility of a fresh marriage makes married people less inclined to shun unlawful amours, and even serves as an incitement to infidelity ( 2 ). c/ We can now easily understand that the dignity of the wife is here at stake, and that the dissolubility of marriage exposes her to contempt and distress. Divorce has, in fact, far graver conse- quences for the woman than for the man. See the author's bro- chure, Over de Echtscheiding , p. n s. ( 3 ). The conclusion drawn from this is that the general good, and social order demand that divorce should be forbidden, and that the indissolubility of the conjugal bond should be safeguarded. It may, indeed, be admitted that, in certain exceptional cases and within well defined limits, the power of divorce would not be gravely injurious to the stability of marriage and to that of social order ; but in order that strict indissolubility may be part of the natural law, it is enough that it is, if we look at things per se and in their generality, the only effective guarantee of the sta- bility of the family. Now, if there are grounds for granting a dispensation in certain exceptional circumstances, for a definite class of marriages, in view of special circumstances, it is to God, and to Him alone, that 1. Cf. SALSMANS, o. c., p. 28 s. 2. Le manage, dit Balmes, en assignant a la passion un objet legitime, ne tarit pas cependant la source d'agitation que le cceur recele. La passion affadit, la beaute se fane, les illusions se dissipent, le charme disparait. L'homme en pre- sence d'une realite qui est loin des reves auxquels se livrait son imagination de feu, sentnaitre dans son cceur des desirs nouveaux... Lachez alors la bride aux passions de 1'homme ; permettez-lui d'entretenir le moins du monde 1'illusion qu'il peut chercher le bonheur dans de nouveaux liens ; laissez-lui croire qu'il n'est pas attache pour toujours a la compagne de sa vie ; vous verrez que le degout s'emparera de lui plus promptement..., les liens commenceront a s'user a peine formes et se rompront au premier choc . COMBIER, o. c., p. 440. A celui que tourmente une passion adultere, elle (la loi de 1'indissolubilite) dit : Prends garde, tu ne t'appartiens plus. Le divorce, au contraire, encourage le cceur inn- dele et lui dit : Va ou 1'amour t'appelle, tu peux te reprendre . MONSABRE, o. c., p. 90. 3 Cf. MORIZOT-THIBAULT, La ' femme et le divorce, dans la Reforme Sociale, t. 42, p. 195 s. ; PEYTEL, o c., p. 187 s. ; BOCKENHOFL, o. c., p. 72-76. See on the other side NAQUET, Vers I' union libre, ch. 5, where he endeavours to show that divorce is needed in the interest of the wife. 300 THE INDISSOLUBILITY OF MARRIAGE it belongs to do so, as we have said above in n 172. No man has the authority to do it. Moreover, no purely human authority would be capable oi re- striction to the narrow limits within which the power of divorce would be compatible with the general good. Taking into consideration the inconstancy of man, his inordi- nate desires and his aversion to trouble and difficulties, the power of granting divorce would inevitably extend still more and more, until it ended in free union, free love (') and the suppression of all permanent marriage. Here, then, we have the logical consequence that the defenders of indissolubility advance against the advocates of divorce ( a ) ; here too the ideal that the advocates of divorce professedly aim at ( 3 ) ; to this the current of popular opinion is I. Free union is the union of man and woman contracted without the inter- vention of any social authority, and dissoluble at the will of the parties. Free love goes further than this ; for, while free union preserves some appearance of marriage and wedded life, and leaves to the parents the care of the children, free love supposes communism, the handing over of the children to the care of the community, and the matriarchate. Cf. LOSLBVER, o. c , p. 24 ss. 2 < Contincre divortia intra provisos terminos tam difficile factu est quam sistcre in medio cursu acerrimarum flammas cupiditatum . Leo XIII, in his Allocution of the 16 Dec. 1901. Cf. Collat. Brug., t. VII, p. 169 s. En opposant la liberte individuelle a 1'indissolubilite du manage, vous ne tarderez pas a aller plus loin que la loi de 1803, plus loin que la loi de 17921 vous arriverez a la doctrine de 1'union libre, c.-a-d. a la ruine de la societe domestique . Discourse of Mgr. Freppel, 13 June 1882, in RIBEROLLES. o. c., p. 103. Brisson also, as given in the same work, p. 96, reasoned in the same way when he said : Ne vous contentez pas du divorce par consentement mutuel, mais introduisez dans la loi le divorce par la volonte" unilaterale ; car c'est par la seulement que vous pourrez parvenir a affranchir les e"poux des veritables douleurs du mariage ; mais alors, si vous demandez le divorce par volonte uni- Iat6rale, mieux vaudrait rendre 1'union libre et abolir le mariage lui-meme . Cf. also LEMAIRE, o. c., p. 167 s. ; DIDON, o. c., p. 67-70. 3 Thus NAQUET, through whose instrumentality divorce was introduced into France in 1884, bluntly avows that free union and free love are the ideals to be aimed at. In the columns of the Journal of 8 June 1908 he wrote : Je suis con- vaincu que nous marchons vers 1'union libre, c.-a-d. vers 1'abandon de toutes les formalit6s administratives et de toutes les entraves judiciaires qui obstruent a cette heure les portes d' entree et de sortie du mariage . See also his brochure, Vers rUnion libre, ch. 2 and 7. Cf. AVIGDOR, o. c., p. 290 ; RIBEROLLES, o. c., p. 153 s. ; ABRAM, o. c.. p. 109 s. ; NYSTROM, o. c., p. 231 s. and 257 ss. The Socialists have the same end in view. THE INDISSOLUBILITY OF MARRIAGE 30! strongly tending ('), as daily experience only too clearly shows ( 2 ). We may therefore look upon the following conclusion as fully Many other writers, convinced that the moral situation is not at present ripe for free union and free love, do all in their power to facilitate divorce and to make it readily obtainable, even at the will of the one party. In the front rank of this unfortunate campaign are Paul and Victor MARGUERITE ; sec their pamphlet, 1' Elargissemsnt du Divorce, and their work, Les Deux Vies. Their cry is not free lovs, but free marriage. Cf. BECHAUX, Reforms Sociale, (1903), t. 45, p. in s. ; read also HAMBURGER, o. c. ; ABRAM, o. c., who sets forth his own opi- nion, p. 208 ss. ; BESSK, o. c., n. 343 ss. ; SCHAUB, p. c., p. 28 ss. The patrons of the German school known as Neue Ethik write freely in the same sense. According to them it is for love alone, the intimate union of hearts, to rule and regulate marriage ; as long as that love endures, the conjugal union will spontaneously endure ; but when it disappears, the only thing is to break the marriage tie, which could then only serve as the sanction of an abnormal and immoral state of affairs. Cf. BOCKENHOFF, o. c., p. 22 s. ; LICHTENBERGER, o. c., p. 210-225 ; KNOCH, U Education, p. 18 ss. 1. The popular tendency in this direction grows ever more and more, fed, as it is, by the shameless novels and plays, spoken of by AVIGDOR, o. c., p. 239-310 ; ABRAM, o. c., p. 121 s., and BOCKENHOFF, o. c., p. 20, who says : dass von 80 modernen Romanen, 17 die Ehe als eine iiberlebte Institution lacherlich machen, ii von der Niitzlichkeit der Ehescheidung handeln, 22 die freie Liebe vcrtei- digen, 7 sich iiber die ehelische Treue lustig machen, und 23 sogar von der Ehe in geradezu skandaloser Weise sprechen . See the discussions on this subject in the Belgian Chambers, in 1904-1905 and 1905-1906. Cf. the XX e Siecle, 19 nov. 1904 and 3 Feb. 1907 ; AVIGDOR, o. c., p. 239-310. 2. Divorce was introduced into France in 1792, and rendered more and more accessible by ever widening legislative concessions, so that the legislators them- selves at last became alarmed at the enormous number of households broken up. See below, n 2O3C, towards the end. For the existing situation, see KNOCK, Rev. eccl. de Liege, 1905-1906, p. 326- 336, and especially JACQUART, o. c , according to whose calculation the number of divorces pronounced in Belgium increases from year to year ; in 187011 was 81 ; in 1890, 373 ; in 1907, 841 (p. 14 s.) ; in 1908, 892 ; while in 1910 it reached 1039. The author goes on to compare the different nations with one another in this respect. In France, on an average, more than 10.000 divorces are pronounced in a year ; in Germany, over 13,000 (according to SCHAUB, o. c., p. 36, in 1908 the exact number was 13,327) ; in the United States, more than 60,000 (p. 73), (72,062 in 1906, according to the abstract given by LICHTENBERGER, o. c., p. 67), and over 100,000 in Japan. See also C. WILLEMS, o. c., p. 3985. ; Archiv. f. k. Kirchenr., 1909, p. 756 s. ; SCHULZE, o. c., p. 709 ss. ; The Cathol. Encyclop., under Divorce, t. V, p. 68 ; DETREZ, o. c., who, on page 280, gives a specimen of a letter announcing a divorce, written on the same lines as an announcement of marri- age ; cf. also BESSE, 1. c., p. 347. So- demonstrated : the good of society as a whole, and consequently the natural law, demand that marriage should be indissoluble, and that no human authority should have it in its power to dissolve the marriage bond. Note. 1. Divorce is injurious to society on more than one head, for it not only affects marriage, but also favours immorality, even apart from the violation of the nuptial law. This is pointed out by the infidel writer, MORSELLI, Per la polemica sul Divorcio, Genoa, 1903 (') : in proportion to the number of divorces crime of every kind increases, especially suicide, prostitution and so forth (*). 2. Leo XIII wrote some memorable pages on the indissolubility of marriage, in which he clearly showed the evil of divorce and its sad consequences. Besides the Encyclical Arcanum ( 3 ), already referred to, the Papal Allocutions of 16 Dec. 1901 and of 24 Dec. 1902 (Anal, eccl., 1904, p. i8ij should be consulted. See also the Instruction to the Bishops of Italy, of 24 Dec. 1901 (Canon. Cont., 1902, p. 226 ss.). 181. Objections. There is evidently no lack of opposition to the doctrine which we have just established. The following are the more common objections raised against it : 1 . There is a well known saying to the effect that the same causes that produce a result are sufficient also to do away with it : and therefore, just as marriage is contracted by the mutual consent of the parties, so it can also be dissolved by the same. BILLOT, o. c., p. 389, gives a very good answer : That is quite true of 1. Rev. du clerge Franfais, t. 45, p. 166 ss. ; BESSB, 1. c., n. 347. 2. La statistique ascendante des divorces cst le thermometre de la moralite . These are the words of the socialistic newspaper Vooruit,&s given in the Patriote of 31 Dec 1904. Cf. JACQUART, o. c., p. 55-64 and 78-84 ; he compares the fre- quency of divorce with that of suicide, and also with the falling off of legitimate births, and he says : < On constate que la frequence du divorce coincide dans 1'ensemble avec un taux e"leve de suicide et une faible natality , p. 57 and p. 78. Cf. also KNOCK, L 'Education, p. 40 s. 3. It is hardly possible to say how great are the sources of evil to be found in divorce. Marriage contracts are thereby made changeable ; mutual kindness is weakened ; pernicious inducements to unfaithfulness are supplied J injury is done to the education and bringing up of children ; occasion is given for the destruction of homes ; the seeds of dissension are sown among families ; the dig- nity of women is lessened and brought low . Authorised Translation, London, 1880. THE INDISSOLUB1LITY OF MARRIAGE 303 contracts that concern only the private advantage of the contracting par- ties ; in such a case either party is free to renounce his right, and to liberate the other from his engagement. But in the case of marriage the obligation concerns the common good and has relation to the normal propagation of the human species ; and so, though this obligation is subject to the free will of the contracting parties at the moment that they assume it, it ceases to be so from the time that it is assumed ; for, if it is assumed, it is necessarily assumed in conformity with its nature ; but the natural law, having in view the common good, requires that it should be lasting, and that it should have all the conditions of stability . 2. The indissolubility of marriage fetters and insults the liberty of man. Answer. Liberty is not the end of man, but only a means to it ; hence this liberty is the more perfect, as it conduces the more surely to the proper end of man. But we have sufficiently shown how useful and even necessa- ry this indissolubility is for the safeguarding of the natural law, and how the liberty of husband and wife has need of its salutary restraint to prevent them from giving way too readily to feelings of weariness and impatience, and from lightly throwing off the marriage yoke ('). 3. The union of husband and wife will be all the more intimate and con- sequently more lasting, if it is quite spontaneous and free from constraint of any kind. Answer. We quite agree that if the conjugal union is to be intimate, it must be spontaneous in its origin, that is to say, that the parties interested ought to choose their respective partners in acordance with their free and individual tastes. But in order that such intimacy may continue and remain unshaken after marriage, there is need of a new element, viz., a bond that really binds, to strengthen the parties against temptations that are always possible, and against the transitory difficulties that may arise (*). 1. The same argument is applicable to the perpetual vows taken by religious, for the very purpose of advancing with greater security and constancy in the way of perfection, and to avoid the temptation of turning back in the face of any transient difficulty or disgust. J'ai fait des vceux, moi, says DIDON, o. c., p. 151, des vceux eternels ; eh bien, dans ma foi d'honnete homme, mes voeux me gardent, mes promesses me lient. Et vouscroyez que si on avait des voeux d'un jour, on resisterait !.. Au premier vent qui souffle, on aurait besoin d'aller voir ce qui se passe sur ces plages embaumees vers lesquelles nous invite la brise. Mais non, on re'siste, H6 par cette chaine terrible du serment irrevocable, supreme garantie centre la faiblesse de 1'homme doutant de lui-meme ! >. See also BONOMELLI, o. c., p. 50 s. ; BESSE, 1. c.. p. 333 s. 2. Et vous oseriez dire, says DIDON, o. c., p. 159 s., que dans le contrat conju- 304 THE INDISSOLUBILITY OF MARRIAGE 4. But the very dissolubility of marriage would provide the desired check and cement mutual affection even better than its indissolubility. For who does not see how easy it is for a husband of bad disposition to take advan- tage of the obligation that his wife is under, to annoy her with greater security ? Answer . We do not deny that this may sometimes happen ; and a heartless husband would, perhaps, treat his wife with more respect, if he knew that she could obtain a divorce. But in the first place, she can have recourse to judicial separation as a remedy for the evil ; and, in the second place, these occasional cases, in which the power of divorce would really promote a union of hearts, cannot outweigh the multitude of contrary cases. For, it cannot be denied, in the face of daily experience, that as a matter of fact married people who are free to leave one another, and see their way to a new marriage, are less patient in putting up with one an- other's shortcomings, and find their love growing remarkably cold. But this has been sufficiently shown in our thesis. 5. There are households in which life in common has become quite intolerable, and where there is urgent need of divorce ('). Answer . This again is a case for separation, which will to a great extent remedy the state of affairs. But, if it is still urged, that the lot of the innocent party is made too hard, gal, lorsqu'on s'unit sans y mettre ce ciment indestructible, 1'union sera plus intime ! Quoi ! On se sparera moins aisement, parce qu'il sera permis de se quitter ! . i. This is the most common objection raised by the advocates of divorce. It consists in exciting compassion for the innocent party, the unhappy victim of a miserable wretch See how MONSABRE, o c., p. 83-84, treats it with masterly eloquence : c Ici, la revelation inattendue de repugnantes infirmites, ou d'un deshonncur que Ton avait tenus caches ; la, 1'explosion soudaine de passions ou de vices habilement contenus; ici, des de"fauts qui se he"rissent a la moindre contradic- tion et de"couragent la plus robuste patience ; la, des habitudes de'gradantes qu'on ne sait comment dtssimuler, et quelquefois des infamies publiques que la loi chatie ; ici, des haines sourdes qui complotent sans cesse ; la, des colercs qui eclatent comme la foudre ; ici, des injures, des menaces, des querelles, des violences, des brutalites ; la, d'abominables perfidies ', ici, I'infide'lite enveloppe*e de ruse et de mensonge ; la, les trahisons de 1'amour insolemment installe'es au foyer domestique ; tout cc qu'il faut enfin pour diviser les esprits, de"chirer et desesperer les coeurs, tuer a jamais 1'amour. N'cst-ce pas ce que Ton rencontre dans une foule de menages ? Et dans ccs bagnes de miseres morales et de crimes, vous voulez que I'homme et la femme restent enchaines 1'un a 1'autre comme deux for9ats trainant le meme boulet ? THE INDISSOLUBILITV OF MARRIAGE 305 being forced to lead a single life through the fault of the other : we admit, that the lot is a hard one, and we understand how the dream of a new alliance might come, perhaps in spite of oneself; but, once more, the law does not lapse because its hand is heavy on some exceptional cases. It looks to the general good, as based on the nature of things ; and every law, however good it may be, accidentally treads upon somebody's corns. Private good must give way to the public good, and, under the circumstances, this demands the strict indissolubility of the marriage ('). To break the conjugal bond in a case like this, would be to deprive it of all efficiency for the future (-). Moreover, like hardships happen in many other matters. Thus the natu- ral law, which forbids the killing of an innocent person, at times demands the sacrifice of life, as for instance that of a mother in the birth of her child, when it cannot be otherwise brought about. And let us not forget that facilities for divorce tend to increase the num- ber of unhappy marriages, and act as an incentive to hasty, inconsiderate and ill-assorted unions. 6. Married life without mutual love is abnormal, or rather immoral ; consequently when love is irremediably lost, the marriage bond ought to be broken (-). Answer, a/ As we have seen, the perseverance of conjugal love is largely due to the indissolubility of marriage ; for engaged parties, with the knowledge that death alone can dissolve their contemplated union, will be careful not to enter on the married state lightly, out of mere pas- sion, and without a sincere assurance of a real and mutual love. And, when once the marriage has been contracted, the consciousness of its indissolubility will protect their affection for one another against the natu- ral inconstancy of their disposition and the blind impulse of passion. b/ And if, in an exceptional case, cohabitation becomes intolerable, owing to the irremediable loss of love, the solution of the difficulty is to be found above in our answer to the fifth objection. 1. In legibus matrimonii magis attenditur quid omnibus expediat quam quid uni competere possit . St. THOMAS, Suppl., qu. LXVII, art. i, ad 4. 2. Qu'il y ait des inconvenients a maintenir 1'indissolubilite des unions mal assorties, des menages malheureux par incompatibilite d'humeur ou d'interets, nul ne songc a ie nier ; mais la question est de savoir si les interets superieurs de 1'ordre religieux et social ne sont pas plus grievement leses par le divorce que par le manage perpetual . JAUGEY, Dictionnaire apologetique, p. 88;?. See also BOURGET, Un divorce, p. 26 s. ; COMBIER, o. c., p. 4485. ; SALSMANS, o. c.,p. 33 s. 3. BOCKENHOFF, o. c., p. 79 s., gives an excellent exposition of this objection from the standpoint of the Xeuer Ethik , 306 THE INDISSOLUBILITY OP MARRIAGE 7. The good of the children requires that the marriage should be dissolved when the parents are involved in continual quarrels ('). Answer. The remedy in such a case is rather to be found in separ- ation than divorce ; for though both measures alike put an end to these domestic scenes, the former is more advantageous to the child- ren, since their father and mother will be better able to attend to their education, if they remain separated without marrying again, than if they were divorced and became severally occupied with the care of children by another marriage. 8. But at least divorce ought to be permitted where there are no children ; for then the good of the children, which is the basis of indissolubility, is not in question. Answer, a/ The good of the children is not the only advantage that comes from the indissolubility of marriage, b/ Even where there are no children, we must remember that marriage is to be considered in its normal and natural conditions, rather than in conditions that are accidental and foreign to its proper functions. But it is certain that sterility is not natural to marriage, but, relatively to its office, of an accidental nature, c/ Finally, if divorce were permitted where there are no children, married people might be inclined to shirk the duty of procreation for the pupose of obtaining it (*). TJie 67>k tro- Corollary. If the indissolubility of marriage by the natural law is thus understood > we sha11 see that the 6 7 th proposition of the Syllabus was rightly condemned by Pius IX ( 3 ). Even if it is taken Part by part (in sensu diviso) this proposition is false, in that its first clause denies this indissolubility of marriage in the natural law. P. VIOLLET is therefore wrong in declaring that this proposition was condemned only as a whole (in sensu composito), and in concluding from that, that one may maintain that marriage is not indissoluble by the natural law, but that one may not affirm that marriage is disso- luble by the natural law in such a way as to make lawful the intro- duction of divorce by the civil authority (*). j. NAQUET develops this idea in his brochure Vers I'Union libre, ch. 4. 2. Cf. BoCKENHOFF, O. C., p. 71. 3. This proposition is taken from the Apostolic Letter of Pius IX, of the 23 Aug. 1851, Ad Apostolicae Sedis, and is as follows : Jure naturae matrimonium non est indissolubile, et in variis casibus divortium proprie dictum auctoritate civili sanciri potest . DENZINGER, o. c., n 1767. 4. L'lnfaillibilite du Pape et le Syllabus, Paris, 1904 ; likewise the Etudes Religieuses, 1905, (vol. 83), p. 255-260, where he writes : J'avais eu soin, quant a moi, de faire entendre que, si la proposition 67 est examinee et THE INDISSOLUBILITY OF MARRIAGE 307 There is no necessity to have recourse to the explanation given by BOUDINHON (') : the proposition which maintains the indlssolubility of marriage by the natural law, is only true, according to him, if restrict- ed to marriage ratum d consnnimalum, since such a marriage is the only one that is absolutely indissoluble and never capable of dispen- sation (*). PARAGRAPH II. INDISSOLUBILITY BEFORE THE POSITIVE DIVINE LAW. PROPOSITION. The principle of indissolubility , resting on the na- tural law, was sanctioned by the positive divine law, both under the regime of the original institution of marriage and under the economy of the Gospel. Demonstration. 182. A. The original institution of marriage implies the indissolubili- Marriage is ty of the conjugal bond. This is clear from the words uttered by i y t j ie divine Adam (already quoted above), when he was joined in marriage law '- a ) ac ~ J n J & cording to tts with Eve, Gen., II, 24 : Wherefore a man shall leave father and original in- mother, and shall cleave to his wife, and they shall be two in one flesh > . stttutlon ' These words clearly establish the law of indissolubility. 1 . The terms employed express it. 2. Our Lord's interpretation of them (Matth. XIX, 3-8) enforce it. To the question of the Pharisees : Is it lawful for a man to put away his wife for every cause ? , Christ answered : c Have ye not read, that He who made man from the beginning, made them male and female ? For this cause shall a man leave father and mother, and shall cleave to his wife, and they shall be two in one flesh. Therefore now they are not two, but one flesh. What therefore God hath joined together, let no man put asunder . But etudiee tout entiere slcut jcicet, et non par morceaux decoupes, clle accuse son caractere errone, parce qu'on sent de quelle maniere la premiere par- tie de la proposition doit etre entendue ; cette premiere partie sera des iors considered comme servant a. justifier le divorce >. 1. Revue du Clerge Francais, 1905, vol. 43, p. 419-420. 2. As we have clearly shown, marriage is rightly said to be indissolu- ble by the natural law, though this indissolubility, inasmuch as it excludes restricted dissolubility, rests only on the secondary natural law, and conse- quently is not absolute and beyond all dispensation. 308 THE INDISSOLUBILITY OF MARRIAGE when the Pharisees, unwilling to acknowledge defeat, alleged the bill of divorce, Our Lord added : Moses by reason of the hard- ness ot your heart permitted you to put away your wives ; but from the beginning it was not so. 3. The interpretation of the Council of Trent, Sess. XXIV, Doc- trina de sacramento matrimonii, confirms this teaching : The first parent of the human race, under the inspiration of the Holy Spirit, declared the perpetuity and indissolubility of the bond of marriage, when he said : This now is bone of my bones, and flesh of my flesh ; wherefore a man shall leave father and mother, and shall cleave to his wife, and they shall be two in one flesh >. b) according B. In the New Testament, Christ proclaimed the same princi- P^ e > an< ^ moreover brought back to its pristine holiness the pri- mitive law of marriage, which had been sensibly relaxed under the Mosaic dispensation. This truth is clearly contained not only in the texts which we have just quoted, but also in Matth., V, 42, XIX, 9 and in the parallel passages of Mark,~X, n, and Luke, XV, 18 ; in i Cor., VII, 10 and n, and in Rom., VII, 2 and 3. The Synoptics, in truth, repeatedly affirm that the man who puts away his wife and takes another, commits adultery. We shall see this yet more clearly below in n 199, where we shall explain these texts and solve the difficulty contained in them. St. Paul insists that the wife is bound to her husband as long as he lives, and that she becomes free only on his death ; apart from this hypothesis, if she is separated from her husband, she must either lead a single life or be reconciled with him. PARAGRAPH III. DEROGATIONS FROM THE LAW OF INDISSOLUBILITY. 183 This law is Keeping in mind the explanations that we have given in n 172, capable of an( j ^ e pr i nc ipi es there established, it is evident that no man, nor derogation. even God himself, can dispense, by a general measure, from the law of indissolubility, in so far as it derives from the primary prin- ciples of the natural law, i. e., so as to permit arbitrary divorce, dependent upon the mere whim of the parties. Furthermore, no purely human power is competent to dispense from this same law, in so far as it derives from the secondary THE INDISSOLUBILITY OF MARRIAGE 309 natural law, positively confirmed by God. No human authority, therefore, is empowered to dissolve in any way whatsoever a marri- age that has been validly contracted, or to determine before- hand reasons, however limited they may be, for the breaking of the conjugal bond ; for, human authority has no power to derogate either from the secondary natural law or from the divine law. But divine authority can permit, even by a general dispensation, in certain well definedlcircumstances, the dissolution of the marriage bond ; and we have seen that this divine power can be exercised either directly by God Himself, or mediately through the agency of the Church, acting as the instrument and minister of God. Observe that in the case of the Church there is no reason to fear, as in the case of the State, an abuse of power or an exces- sive tolerance in the matter of divorce, exceeding the strictly prescribed limits ; for, the Church is armed with divine power and directed by the Holy Spirit ; it has spiritual weapons that are effective in another way than human means for overcoming the passions ; moreover, popular opinion has little or no influence on its decisions ; and the experience of twenty centuries stands as a proof of its wisdom and firmness. We will now explain how, and to what extent, God has dero- gated from the law of indissolubility. FIRST POINT. DISSOLUTION OF THE MARRIAGE BOND BY THE ANCIENT BILL OF DIVORCE. 184. In accordance with the rules ot Deuteronomy, XXIV, 1-4, a Jew was Divorce by permitted to repudiate his wife by means of a writing attesting the ,,/^-/- repudiation : If a man take a wife, and have her, and she find not favour in his eyes for some uncleanness, he shall write a bill of repudiation, and shall give it in her hand, and send her out of his house. And when she is departed, and marrieth another husband, and he also hateth her, and hath given her a bill of divorce, and hath sent her out of his house or is dead, the former husband cannot take her again to wife, because she is defiled, and is become abominable before the Lord . For the right understanding of this provision the following observations must be made. 1 . It is here a question of the dissolution of the conjugal bond ', for, the text supposes that the repudiated wife can marry again, and it 310 THE INDISSOLUBILITY OF MARRIAGE speaks of another husband. Christ suggests the same in Matth., XIX, 8, where He says, without restriction, that the bill of divorce was permitted by Moses ('). 2. We must look upon the permission as given, not for arbitrary, but only for restricted divorce, derogating from the secondary natural law, not from the primary. For the husband had not the right of putting away his wife at will, but for a well denned reason : for some uncleanness , as the text says ; the Hebrew word employed here signifies nakedness. The scope and exact meaning of this word were formerly, and still are, the occasion of a good deal of controversy ; some, following the School of Schammai, regarded it as signifying a moral stain, especially adultery (*) ; while others, with the School of Hillel, understood it of some bodily defect, even a slight and futile one ( 3 ). The controversy still exists among the Jews (*). Moreover, Deuteronomy, XXll^-ig and 29, places restrictions on this permission. Cf. RealencykL, V, p. 744 s. ; LUCKOCK, o. c., p. 174 ; and ENGERT, o. c., p. 50 s. The last named author, on page 49, speaking of the prohibition against the first husband taking back his repudiated wife, when she has contracted a second marriage in the interval, interprets this provision as a restrictive clause of repudiation ( 5 ). 1. THEOL, MECHL.,O. c., n 55 ; PALMIERI, o. c., p. 127-136. LUCKOCK, o. c., p. 24 ss., maintains the contrary. See VILLIEN, Divorce, 1. c., col. 1459, who rightly remarks that the text of Deuteronomy did not introduce the custom of repudiation, but only regulated and tempered an existing custom. Cf. also BLAU, o. c., p. 16. 2. Adultery, according to the prescription of the law (Lev., XX, 10), was punished with death, but this sentence was not, as a rule, carried out. Cf. BLAU, o. c., p. 25, where, as also in the following, the author shows that adultery was a cause of repudiation, and the only one according to the popular practice and the School of Schammai being in conformity with it. 3. It seems certain in any case that the Jews dealt with the interpretation of this text in such a way that at the close of the Mosaic law a much less grave reason sufficed for the repudiation of a wife, than at the period when the law of Deuteronomy was in full force. This was stern, as appears from the restric- tions that it placed on the power that it granted ; but the term employed to designate the sufficient cause, erwath dabhar is susceptible of various signifi- cations. As ENGERT, 1. c., p. 49, observes, it was ein... alles mogliche seincm Wortlaut nach in sich fassender Begriff . Consult also SCHERER, o. c., II, p. 542, n5 ', NowacK's Handcomrnentar zum alien Testam. Das Deuteron., STEUERNA- GEL, Gottingen, 1898, on this passage. 4. As to both Schools and their doctrine concerning the cause of repudiation, see BLAU, o. c., p. 31 ss. 5. See also ROEDENBECK, o. c., p. 5 ; WATKINS, o. c., p. 52 ss. The code of THE INDISSOLUBILITY OF MARRIAGE 311 The reason why God dispensed the Jews from the strict law of indisso- lubility was their hardness of heart. St. THOMAS, Suppl., qu. LXVII, art. 2, observes : It was not for the attainment of a greater good, as in the case of the dispensation permitting polygamy, but to prevent an evil, viz., wife-murder to which the Jews were prone . See also Gratian, cap. 7, C. XXXI, q. i. SECOND POINT. DISSOLUTION OF THE CONJUGAL BOND BY THE POWER OF THE SOVEREIGN PONTIFF. PROPOSITION. The Sovereign Pontiff has the power to dissolve a marriage ratum non consummatum (and, a fortiori, a marriage legitimum non consummatum) ; moreover, the more probable opinion attributes to him also the power of dissolving marriage legitimum consummatum, on the conversion of one of the parties, and also mar- riage consummatum et ratum ('). Explanation and demonstration. 185. I. As regards marriage RATUM NON CONSUMMATUM. Thesovereign A. The existence of this power is no longer in doubt a.t the power to dis- present day, since the Pope exercises it readily and without any solve marri- hesitation ( 2 ), which practically amounts to teaching the reality of non consum~ it . matum. B. Nature and exercise of this power. . 7OD. 1. On the one hand, the Church, in dissolving marriage ratum, This is a as we have said above in n 172, does not exercise a power that onh'm^ilste- rial power, Hammurabi also permitted repudiation, but subject to certain restrictive clauses, spoken ofbyScHEiL, par. 137-143 and 149. 1. See above, n 86. 2. Cf. the different examples quoted by DE BECKER, De Matr., p. 418-419, in note. 3. See PALMIERI, o. c., p. 210 s. ; WERNZ, o. c., IV, p. 1024, in the note to n 698, in which, following Suarez, he explains the probatory force of this practice. This Papal power was already universally acknowledged in the time of Bene- dict XIV, as that Pope himself declares in his Quaest. can., qu. 279 : Hence- forth there can be no question as to the power of the Sovereign Pontiff in the matter of dispensing from a marriage ratum et non consummatum , since at the present day, as is well known, the affirmative opinion is commonly held by theo- logians and canonists, and is received in practice . Cf. KUTSCHKER, o. c., I, p. 323- 3*2 THE INDISSOLUBILITY OF MARRIAGE and in its ex- ercise requir- es a suffi- cient reason, as well as a juridical proof of non-con- summation. belongs to it in its own right, but, so to speak, a ministerial and instrumental power, in the name and by the authority of God, to whom alone it belongs to dispense, whether mediately or immedi- ately, from the precepts of the secondary natural law. On the other hand, the power that the Church exercises is nevertheless a real power, and it acts authoritatively in loosening the bond of marriage ratum non consummatum, by virtue of the divine authority conferred upon it ministerially, within the pre- scribed limits (*). On this subject consult SANCHEZ, o. c., 1. II, Disput. 14, n 6, who at the same time solves the difficulty arising from the sacramental nature of marriage (*). 2. The lawful exercise of this power requires ; a/ a sufficient and proportionate reason, as a logical consequence of the nature of the law in question. For, the Sovereign Pontiff does not act in this matter on his own proper authority, but exercises a delegated and ministerial power ; whence it follows that an unjus- tifiable dispensation would be null and void ( 3 ). b/ a complete and juridical proof of ncn- consummation. The absence of consummation may be established either by corporal inspection, or by the proof known as ex coarctata (*), or by 1. Quite recently certain erroneous ideas as to this papal power have come to light. Cf., on the point, FAHRNER, o. c. , p. 337 s. 2. Dum dispensat (S. Pont.) in matrimonio rato, id facit destruendo funda- mentum contractus humani... Licet matrimonium ratum sit sacramentum,pendet tamen ex contractu humano tanquam ex fundamento . 3. Cf. FAHRNER, o. c., p. 331-334 ; KUTSCHKER, o. c , I, p. 312 ss. ; GASPARRI, o. c , II, n 1081 (the last named gives his authorities and enumerates some of the sufficient reasons); SANCHEZ, o. c., II, Disp. 15, n 6; SCHMALZGRUEBER, In I. IV Decret., XIX, n 51. Read also what we say below, n 279, viz., that one of the causes admitted in practice is doubtful impotency, or impotency that is only temporary, but difficult to cure. 4. For the proof ex coarctata it is necesary to show that the parties, after the marriage, have not been unaccompanied for an instant, or at least that they have been so situated that it was impossible for them to establish conjugal rela- tions. Cf. Coll. Brug., t. XIII, p. 122 s. ; Canon. Contemp., 1908, p. 155 s., ubi narratur matrimonium aliquod fuisse dissolutum qua non consummatum, licet partes fuerint in eodem toro, quia brevi post matrimonium mulier peperit, viro ignorante ejuspraegnantiam, quam sane advertisset si uxorem cognovisset ; item Anal, eccl., 1904, p. 120, ubi exponitur causa, in qua constitit de non consum- matione ex eo quod sponsa, ipsa nuptiarum nocte, inter choreas et festivitates, pepererit. THE INDISSOLUBILITY OF MARRIAGE 313 the testimony of the parties ('), corroborated by that of seven wit- nesses on either side (septima manus) ( 2 ). The proof must be made juridically, by an ecclesiastical judgment in accordance with the prescriptions of the law ( J ). When once the decree of the Sovereign Pontiff, dispensing from a marriage not consummated, has been pronounced, the marriage is dissolved, and the parties are severally at liberty to marry again, unless, as sometimes happens, especially in the case of suspected impotency, the judgment carries with it a prohibition to do so without first consulting the Holy See (*). 187. The historical evolution which the exercise of this power has under- Historical gone dates from the time of Alexander 111 (1159-1181). This was the period ^M" tapal power. r. Cf. Les Conferences de Paris, III, p. 143 s. 2. Recourse is had to the septima manus for the purpose of attesting the vera- city and credibility of the husband and wife. There are appointed sept temoins pris du cote du mari et sept temoins pris du cote de la femme, ayant pour mis- sion de deposer chacun en faveur de 1'epoux qui les a designes. Ces temoins sont choisis parmi les plus proches parents : le pere, la mere, les freres, sceurs, oncles, tantes, neveux ; puis les allies, et a leur defaut, les voisins, amis et tou- tes personnes qui ont coutume de converser avec les e"poux et par la meme se trouvent plus au courant de leurs habitudes et de leur vie intime BASSIBEY, Le Mariage devant les Tribunaux, n 352 s. Cf. the Anal, eccles., 1908, p. 377, in the causa Versalien. ; ESMEIN, o, c., I, p. 261 ; SCHNITZER, o. c., p. 350 ; ch. a, C. XXXIII, i. See also LEGA, o. c., IV, n os 460 and 461 ; he observes that the word manus (hand) is taken here as the symbol of faith or of loyalty, just as it is the custom to extend the hand in taking an oath and to place it on the book of the Gospels ; see also the same author, n 477. This kind of corroborative evidence took the place of the ancient proof by lukewarm or cold water and by hot iron. It is employed only in cases of irnpotency or of non-consummation. Cf. BASSIBEY, o c., no 356. 3. The general procedure is described later, where we speak of Matrimonial Procedure. For the special formalities concerning corporal inspection and the appointment of experts, consult BASSIBEY, o.c., ^'403-438 ; LEGA, o. c., IV, n s 464 s.; PIERANTOKELLI, o. c., II, p. 55-88. This author gives a detailed description of all the steps to be taken in cases of non-consummation. See also below, n 35i- 4. In this last case, the prohibition constitutes an impediment Vetitum EccU- siae, which is merely of a prohibitory nature. Cf. BASSIBEY, o. c., n 405. If the party falling under the prohibition wishes to marry, or to take a virgin to wife, the party so wishing must first obtain the permission of the S. Congreg., or the Venia, as it is called, which is only granted after a fresh corporal inspec- tion and the receipt of a satisfactory report from the experts. 314 THE INDISSOLUBILITY OF MARRIAGE of the celebrated controversy between the Schools qf Bologna and Paris (') on the nature of marriage, to which we have alluded above in n 60. The doctors of Bologna taught that unconsummated marriage, being only an inceptive marriage, is not as yet a sacrament, and that consequently it is dissoluble for a variety of reasons ( 2 ) ; they maintained that the copula alone finally conferred on it the sacramental character and indissolubility. The Doctors of Paris, on the other hand, attributed the sacramental digni- ty to unconsummated marriage, contracted by mutual consent alone, and claimed for it an absolute indissolubility ('). Alexander III, when he was as yet but Magister Rolandus, had, with all the School of Bologna, upheld the copulatheoria, especially in his Summa (*). But, on his elevation to the Papacy, he adopted an interme- diate theory, on the one hand, granting to unconsummated marriage the quality of a real marriage and of a sacrament, and, on the other hand, refusing it the absolute indissolubility climaed for it by the School of Paris. On one side, therefore, in opposition to the School of Bologna, he decreed in cap. 3, X, IV, 4, that unconsummated marriage could not be dissolved by a subsequent consummated marriage ( s ), and imposed this solution, though as he says, some think otherwise, and even some of our predecessors have sometimes decided otherwise . Moreover, he clearly admitted the distinction made by Peter Lombard between sponsalia de praesenti and sponsalia de futuro, that is to say, between marriage and betrothment, properly so called ( 6 ). But on the other side, against the School of Paris, he decreed that non-consummated marriage is dissoluble, especially on account of a vow ( 7 ) and subse- 1. This celebrated controversy had a notable effect on the development of matrimonial law. On this subject see, besides what we have said above, FARHNER, o. c., p. 123-146 ; ESMEIN, o. c., I, p. 95-130 ; SEHLING, Die Wirkungcn, P- 33-56. 2. These reasons, according to Gratian, were, among others, a vow, fornica- tion, and especially a subsequent consummated marriage. 3. They distinguished between sponsalia de futuro, as they said, and sponsalia de praesenti (or the actual matrimonial contract), and applied to the former only, the different causes of dissolution which the Doctors of Bologna, who did not make this distinction, admitted in the case of marriage ratum etnon consum- matum. See above n6o. 4. Thus, in the case of unconsummated marriage, he admitted, among other causes of dissolution, a vow, subsequent affinity, insanity, but not, like Gratian, a subsequent consummated marriage. Cf. FAHRNER,O. c., p. 174, 185 s. 5. Likewise c. 4 (6) and 5 (7) Compil. I, IV, 4. 6. C. 6 (8), Comp. I, IV 4. 7. C. 2 and 7, X, III, 32 ; but compare with c. 5 (7), Comp., I, IV, 4. THE INDISSOLUB1LITY OF MARRIAGE 315 quently supervening affinity ('), at least when it is public ; in these two cases he permitted dissolution and the contracting of another alliance, provided the former marriage had not been consummated. Finally he expressly declared that the indissolubility of which Christ speaks in the Gospel concerns only the consummated marriage (-). Observe that Alexander III, in establishing this discipline, makes it clear that he looks upon non-consummated marriage, with regard to its dissolubility, as subject to the power and jurisdiction of the Church, that he recognises that the Church has the power of disciplinary intervention in the causes of dissolution, and of deciding as to the expediency of restricting or extending them. How can we otherwise explain his action ? In the doubts proposed as to the dissolution of non-consummated marriage he words his decision with it seems more safe... more expedient ( 3 ) ; for the dissolution of such a marriage he appeals to the judgment of the Church ( 4 ) ; in questions of subsequently supervening affinity he restricts the power of dissolving the marriage to the case in which the matter has become public ; in certain countries he sometimes refuses dissolution, while he permits it in others on the selfsame grounds, having regard to the diver- sity of customs ( 5 ) ; he does not boggle at giving decisions that he knows and acknowledges to be contrary to those of his predecessors (c. 3, x, iv, 4). In his turn Innocent III abolished, as a cause of divorce, affinity super- vening after marriage, though it had been admitted as such by Alexander III, and moreover expressed the wish that the vow should also lose its dissolving power ( 6 ) ; finally Urban III admitted, as a sufficient cause, leprosy ("), rejected by Alexander III and Innocent III ( 8 ). i. C. 2, X, IV, 13. 2 C. 7, X, III, 32. 3. C. 5 17), 4 (6), Comp. I, IV, 4. 4- C. 5 (7), Comp. I, IV, 4 : since... the separation ought not to be made without the judgment of the Church >. 5. C. 2, X, IV, 15. 6. C. 14, X, III, 32 (Friedberg ed.) : in this passage Innocent III seems to lean to the expediency of maintaining the absolute indissolubility of marriage even when unconsummated, and to admit its dissolution by vow only because he does not wish c suddenly to desert the course followed by his predecessors in this matter . 7 Cf. FAHRNER, o. c., p. 196. 8. Note also Innocent Ill's way of speaking about the power of a vow to dissolve a matrimonium ratum, c. 14, X, III, 32 (Friedberg ed.), and compare with FAHKNER, o. c., p. 195. 3l6 THE INDISSOLUBILITY OF MARRIAGE It is true that there exists no writing of Alexander III or of Innocent III expressly mentioning this papal power of dissolving unconsummated mar- riage (') ; but their whole course of action shows that the dissolubility of the marriage bond depends, within certain fixed limits, on the regulations of the Church, as well as the greater or lesser latitude allowed with regard to the causes of divorce. Consequently the practice of the Church shows that the Sovereign Pontiff has the power of dispensing from the marriage in question. From the beginning of the XIII th century, several authors undertook the defense of this theory in express terms, contrary to the opinion held by many, and especially by the theologians . Later, from the early years of the XV th century, we have acts of the Sovereign Pontiffs, e. g., of Martin V and Eugenius IV, which show the exercise of this power in full play ; and from the beginning of the XVI th century, the Church made yet more frequent use of this power, and was supported therein by the ever increas- ing number of doctors who maintained it, until at last it was universally admitted (*). An account of the development of this doctrine, together with the argu- ments employed on either side by writers who lived at the time of the controversy, is given by FAHRNER, o. c., pi, p. 208-215 and p. 316-341 ; see also ESMEIN, o. c., I, p. 124-13 5. 188. The more II. We now come to marriage LEGITIMUM CONSUMMATUM and probable opinion atiri- to marriage CONSUMMATUM ET RATUM. butes to the The morf probable opinion holds that the Pope has also the Pope the r power of dis- power of dissolving these two kinds of marriage, marriage con- S aglJe'ziU- 1 summa * um e * ra ^ um an d marriage legiiimum consummatum (3) ; pro- mum consum- vided that, in the latter case, one of the parties has become matum, and . . consumma- subject to the jurisdiction of the Church by Baptism. tumetratum. The reason of this opinion is again to be found m the practice of the Church, which by its action seems absolutely to attribute this power to itself. Without this, its way of acting would be inexplicable. As long as unbaptized persons, validly married, have not con- summated their marriage after their mutual conversion, it happens that Rome dissolves such a marriage and forthwith permits new 1. Nevertheless, in c. 2, X, IV, 13, in the concession of remarriage, dispensation is mentioned. See also GILLMANN, Zur Geschichte der Kanon. Ehescheidung, in Der Katholik, 1904, t. 29, p. 209. 2. See the text of Benedict XIV, given in n 185. 3. See above n 91. THE INDISSOLUBILITY OF MARRIAGE 317 alliances for a variety of causes that are not provided for else- where, and especially where the conditions required for the Pauline privilege are not verified, as we shall show below, in n 196 ('). Moreover, it appears from ecclesiastical writings, that marriage ratum et consummaium is the only one that is considered as abso- lutely indissoluble and incapable of ecclesiastical dispensation.lt is thus that Alexander III, c. 7, X, III, 32, when he permitted a husband, whose wife had entered religion, to marry again during the life of his former wife, justified his action by saying that the words of Christ inculcating absolute indissolubility applied only to marriage ratum consummaium (*). Now, of the two kinds of marriage that we are at present considering, neither the one nor the other is ratum et consumma- tum. The one, the marriage consummation et ratum, became ratum by the baptism of the two parties, but, having thus become ratum, it is assumed that it has not as vet been consummated since the . FAHRNER, o., c., p. 295-296, shows how the Protestants gave the Council occa- sion to pass this decree. 2. FAHRNER, o. c., p. 195, on this point wrongly invokes the confirma- tory evidence of Boniface VIII, cap. unic., tit. 15, III, in the VI Deer., who decrees that only a solemn vow, to the exclusion of a simple vow, is capable of annulling marriage subsequently contracted (post contrac- tum) . For, the whole context, no less than its comparison with the cap. unic., tit. VI, Extrav., of John XXII, shows that the Pope is speaking of marriage posterior, not anterior to the vow. Moreover, if Boniface had in view marriage anteriorly contracted, his declaration would also include the vow taken in the reception of Orders ; but this cannot be upheld, as we shall show later, in n s 284 and 285. 3. Animadvertendum tamen est privilegium hoc esse concessum tantum- modo religiosae professioni, emissae in aliqua ex approbatis Religionibus, in quibus, nimirum emissa castitatis, paupertatis et obedientiae vota, solemnium vim et naturam obtinent ; nunquam vero professioni emitti solitae in quibusdam piarum mulierum coetibus..., quarum vota, non inter solemnia, sed inter simplicia recensentur, juxta constantem atque conformem sententiam tribuna- lium turn Rotae, turn Congregationis Concilii. Benedict XIV also adds, in the same passage, that it is a question of solemn vows, including the vow of perfect chastity, so that marriage ratum is not dissolv- ed even by solemn profession in the military orders, in quibus non indefinita sed plerumque conjugalis castitas, vel a secundis nuptiis abstinentia vovetur . Cf. also FEYE, De Imp., n 515. 4. See below, n 284 ; FARHNER, o. c., p. 308-310; WERNZ, o. c., IV, p. 1030, n 698; FEYE, De Imp., n 516; GASPARRI, o. c., n 5746-1082. 320 THE INDISSOLUBILITY OF MARRIAGE vows taken by religious women in Belgium and France have no greater efficacy, seeing that they are not admitted as solemn vows. and of To be more precise, neither the taking of Orders, nor the vow r ers ' of chastity involved therein, suffices to dissolve such a marriage, though they constitute a diriment impediment to all subsequent marriage. This is clearly taught by John XXII, xfrav., cap. unic., tit. VI : Desiring to put an end to an old controversy,... we declare by this present decree that the vow solemnized by the taking of sacred Orders must be held to take effect, according to the canonical laws, as a diriment impediment of marriage to be contracted or contracted after its emission ; but with regard to the dissolution of marriage previously contracted, even of marri- age not consummated as yet by the copula, it must be held as of no effect, for neither in the divine law, nor in the sacred canons do we find that established >. See below, n 285. In conclusion, let us observe that marriage is dissolved by a solemn vow only at the moment the profession takes place ; whence it follows that the partner remaining in the world cannot marry again before that event ('). Now, the canonical law of the 19 March 1857, issued by the S. C. super Statu Regularium, pre- scribes a full year's novitiate before the'taking of the simple vows, and then an interval of three years before the solemn profes- sion ( 2 ). Nevertheless, Pius IX, in his declaration of 1861, adds that the postulant, whether husband or wife, may have recourse to the Holy See to obtain permission to take the solemn vows without delay >. Cf. FEYE, De Imp., n 519. by the merely 3. The whole of this question is a matter of ecclesiastical law. " The Church here exercises its power, not in its own name, as when it promulgates purely ecclesiastical laws, but in the name of God, as being the minister and instrument of God, as we have 1. The partner remaining in the world is free from the day of the profession of the other partner. For the legal proof of free state, a certificate of the profes- sion made by the husband or wife should be given to the said partner, and the dissolution of the marriage should be entered in the register of marriages, in the margin of the entry attesting the celebration of the marriage. 2. The special rule of the Society of Jesus does not admit all the religious ot the Order to solemn vows ; and for those admitted, it requires that a prolonged period should elapse between the simple and solemn vows. THE INDISSOLUBILITY OF MARRIAGE 321 explained above in n 172 ('). Many authors are in error on this point, and deduce from the natural law or from the immediate divine law (*) the efficacy of solemn profession in relation to marriage. There can be no doubt on this point : for, on their theory, it is impossible to explain the fact that only solemn vows possess the privilege of dissolving marriage, to the exclusion of the simple vows. Simple profession does not safeguard the religious life less than solemn profession ( 5 ) ; and this solemnity itself comes only from the purely ecclesiastical law (*). Our view is still further confirmed by the historical phases of the development of the exercise of the papal dispensing power in this matter (see above, n 187). History attests that the vow has been admitted as a cause of divorce by the ecclesiastical authority itself, and by way of a general dispensation for all cases of marriage ratum. The Church, therefore, held, as we have observed, that the indissolubility of such marriages was subject to its jurisdiction ; and it judged practically that, within certain limits and for a legitimate cause, it had power to break the bond by a dispensation, and that, either in a particular case or by a general measure ; in this sense, that it had the power to determine the circumstances that should be sufficient in law for the dissolution of the marriage. We can thus understand how Innocent III, cap. 14, X, III, 32 (Friedberg ed.), seems to have tried to abrogate the vow as a cause of dissolution, as he did in fact remove from the number i. As we said then, this power is not purely ecclesiastical, and in a certain aspect it may be called divine. It is thus that BILLOT, o. c., II, p. 411, says that marriage, in the case in question, is dissolved by the mediate divine law consequent on tlie exercise of the power of the Keys. a. The various opinions of authors may be found in FAHRNER, o. c., p. 296- 301 ; and WERNZ, o. c., n 698, notes 47-49. 3. Thus, simply professed Jesuits are indubitably true religious, no less than all the members of other Orders, when once they have taken their simple vows ; and the authoritative judgment of the Church is our warrant for this, for Leo XIII declares that it is so, in his Constitution Conditae of the 8 Dec. 1900, concerning Orders with simple vows. 4. Cf. Boniface VIII, cap. un., tit. 15, III, in VI: Considering, therefore, that the solemnity of vows was introduced by the sole provision of tht Church.., . 322 THE INDISSOLUBILITY OF MARRIAGE of admitted causes the affinity subsequent to marriage, accepted by Alexander III. The refutation of the arguments put forward by the supporters of the contrary opinion (among others by PALMIERI, o. c., p. 206) maybe found in FAHRNER, 1. c. ; WERNZ, o. c., IV, n 698 and BILLOT, o. c., p. 410 s. This last named author gives a complete refutation of the objection drawn from the fact that the dissolu- tion of the marriage bond by religious profession is the object of a dogmatic definition by the Council of Trent. This objection, which, at first sight, appears plausible, is answered by a * 90 distinction ('). There is a II. We now come to marriage LEGITIMUM CONSUMMATUM, marriage rendered subject to the Church by the baptism of one of the . . ^fc itgttimum parties ; and also to marriage CONSUMMATUM BECOME RATUM by consumma- ' turn, and con- the baptism of the two parties. This is a more difficult question. we a PPty anc ^ extend to such marriages the privilege enjoyed by religious profession through the Church's positive concession ? Certainly we cannot do so unless there is a founda- tion for it in some positive legal provision. Now, no certain example of a dissolution of this kind is known to exist ; and as to the legal texts that recognise in solemn vows the power of dissolving a marriage ratum, they ought to be understood, as WERNZ says (*), I. The object of the infallibility of the Church is twofold: the principal object, comprising the truths contained in the deposit of revelation, whether explicitly, or implicitly but in a formal manner ; and the secondary object, embracing truths that have not been revealed, but which must necessarily be taught in order to keep entire the deposit of revelation. Accordingly, it may happen that a truth has not been revealed by God, but, nevertheless, rests on the infallible teaching of the Church, and is therefore matter demanding the assent of ecclesiastical faith. It is thus that the dissolution of marriage by religious profession may result from the ecclesiastical law and at the same time be the object of a dogmatic definition. It is of no importance that the discipline is capable of change in this respect, and that the Church might subsequently deny to religious profession the efficacy that it at present possess- es. For, if the discipline were at any time changed, the object of the infallible definition would no longer exist ; but the infallibility would remain intact : it would always remain true that the taking of vows, of which the Council speaks, annulled marriage . BILLOT, 1. c. 3. O. c., IV, n 699, where the different authors favouring the two opinions are given. Cf. n 702, note 72. THE INDISSOLUBILITY OF MARRIAGE 3^3 of marriages called ratum in ordinary language, and not of that altogether exceptional class of marriages ratum that have been consummated before baptism. The extension of the papal privi- lege to such marriages would be arbitrary and exaggerated (*). However that may be, it would be unlawful in this case to act upon an opinion favouring dissolution, without first consulting the Holy See. On the other hand, if we have grounds for acknowledging that the Pope has power to dissolve marriages of this kind, there seems to be no reason for denying that he is able to admit also so- lemn profession as a cause of such dissolution. This would be simply a way of dispensing by a general measure, analogous to that which the Church has introduced in the case of marriage ratum properly so called. Note. Has the Church power to decree the dissolution of marriage Could the ratum non consummatum for a general cause other than solemn profes- traduce other sion ? Our answer is that the Church could do so, provided that there causes ofdis- were a sufficient reason of expediency or necessity. The power of the Pope, such as we have described it above,and as it appears in the historical phases of its exercise, is very wide with regard to the marriage in question. Such marriage is subject to the jurisdiction of the Church, and is accord- ingly capable of dispensation, where a legitimate reason exists, either in particular cases, or by a general law. Therefore, just as the Church has established the vow as a legal cause of dissolution, so also could it, in cer- tain circumstances, introduce other general causes of divorce, as, indeed Alexander III did in the matter of affinity supervening after marriage. FOURTH POINT. THE DISSOLUTION OF THE CONJUGAL BOND IN THE CASUS APOSTOLI. PROPOSITION. In virtue of the Pauline privilege, marriage validly contracted between unbaptized persons is dissolved, when one of the Partners, after having received baptism, marries again, provided that the other, having been duly admonished, withdraws, i. e., perseveres in his religion and refuses to cohabit peacefully with the converted part- ner. i. We have already shown above, that marriage consummatum ratum, if it is not to be put in the same rank with marriage ratum consummatum, cannot, nevertheless, be called simply ratum non consummatum. 324 THE INDISSOLUBILITY OF MARRIAGE 491. The Pauline P faised S o ^ / Cor. Explanation and proof. I. SCRIPTURAL FOUNDATION OF THE PRIVILEGE. The Casus Apostoli is given in l a Cor., VII, 8-15, more especially in verses I2 ~ I 5' T* 16 passage is as follows : c 8. But I say to the unmarried, and to widows, it is good for them if they so continue, even as I. 9. But if they do not contain themselves, let them marry ; for it is better to marry than to be burnt. 10. But to them that are married, not 1, but the Lord commandeth, that the wife depart not from her husband ; n. and if she depart, that she remain unmarried, or be reconciled with her husband. And let not the husband put away his wife. 12. For the rest I speak, not the Lord ( { ) : if any brother have a wife thatbelieveth not, and she consent to dwell with him, let him not put her away. 13. And if any woman have a husband that believeth not, and he consent to dwell with her, let her not put away her husband. 14. For the unbelieving husband is sanctified by the believing wife ; and the unbelieving wife is sanctified by the believing husband ; otherwise your children should be unclean ; but now they are holy. 15. But if the unbeliever depart, let him depart; for a brother or sister is not under servitude in such cases ; but God hath called us in peace . The essential point in the doctrine of St. Paul is contained in verse 15 : If the unbeliever depart, let him depart . For, these words show that the case involves the dissolution of the conjugal bond, under certain condi- tions, among which the separation effected by the unbaptized partner holds the principal place. This is very well explained by PALMIERI, o. c., p. 217. For , he says, the sense of the passage is this : if the unbaptized party effects the separation and puts away the baptized partner, or, in other words, as it is said above in the text, if the infidel party does not consent to live with the baptized one, the former is to be forsaken and allowed to depart. The I. According to certain authors, these words are not a form of introduction, but refer to what goes before, and are the counterpart of the corresponding form in verse 10. Instead of introducing the following clause, it would on the contrary be the conclusion of verses 8-n and the sense would be as follows : On those that are married the Lord imposes this commandment, and not I ; but to the others, i. e., the unmarried, spoken of in verses 8 and 9, I say, and not the Lord. This interpretation is upheld, among others, by PALMIERI, o. c., p. 216. Nevertheless, the majority of authorities are of the contrary opinion, and refer the form to the following verses. In their opinion, St. Paul here address- es himself to heathen husbands and wives, in opposition to Christian, of whom he speaks inverses 10 and n. THE INDISSOLUBILITY OF MARRIAGE 325 nature of this abandonment is explained in the reason added by the Apostle, viz., that in such cases, as concerns the conjugal bond, a brother or sister is not under servitude, namely, to the unbaptized party. Now this reason shows that the infidel party may be left in such a way that the conjugal bond itself is also broken ; for otherwise the baptized party would still be in servitude to the other. The convert would remain bound by the marriage, without the power of making use of it, owing to the malice of the other. Either freedom from slavery merely means that the deserted party is not bound to follow and seek reconciliation with one who goes away without cause, or it means that the deserted party is freed from the conjugal bond. But the former alternative is equally appli- cable to all kinds of unjustifiable desertion, whether on the part of Chris- tian or non-christian parties, and in such a case there is no obligation for the deserted party to seek reconciliation, even when both remain infidels ; but the Apostle is here speaking in particular of desertion on the part of the infidel, and of a prerogative that Christians possess ; there- fore the second alternative must be the one that is meant (') . This quotation shows us at once the object and reason of the inno- vation introduced by St. Paul. This was the advantage of the faith. It was necessary to make things favourable for conversion to the faith ; but married infidels would be deterred therefrom if they knew that they were bound after baptism to observe continence, in case they were not able to live peaceably with an unconverted husband or wife. Some authors maintain that the dispensation, of which we have just been speaking, is of divine law, promulgated by St. Paul ; while others prefer to speak of it as of apostolic right, introduced by the Apostle of the Gentiles, in virtue of special authority, and after- wards extended to the whole world with the consent of St. Peter. The introductory clause, I speak, not the Lord , as referring to what follows, certainly seems to favour the latter opinion ; more- i.Cf.WERNZ, o.c., IV, n 702, note 61. Cf.also FAHRNER, o.c., p. 146-169 and 371- 290, who there gives at length the successive interpretations that have been put on the text of St. Paul, together with the historic phases of the doctrine of dissolubility in the CasusApostoli.Let us note on this subject the singular opinion formerly put forth by certain theologians : according to them the conjugal bond was dissolved by the very fact of the separation effected by the infidel party, and they held that, if this party subsequently became converted, the same bond in some way resumed its force quasi jur e postl iminii , as they said, so that the former marriage ought to be re-established, inasmuch as the former marriage was now in favour of the faith (ex consequentia prioris matrimonii in favorem fidei) p. 168. 326 THE INDISSOLUBILITY OF MARRIAGE over, we shall show below, n 196, and as we have already seen in n 188, that the Sovereign Pontiff has power to dissolve marriage legitimum consummatum, even when the conditions required by St. Paul are wanting : if, therefore, the Church has, of itself, more than sufficient power, there is no apparent reason for the intervention of divine authority in the case of the Apostle ( f ). Nevertheless, the former opinion has the support of the Instruction of the C. S. O., n July 1866, ad 8 m , where the privilege is called divine, granted for the advantage of the faith by Our Lord, and promulgated by the Apostle, St. Paul ( J ) II. OBJECT OF THE PRIVILEGE. JO* It affects A. The Casus Apostoli affects only marriage legitimum, that is to ^ntracud sa y> ma ^i a S c validly contracted between unbaptized persons, whether consummated or not. Consequently : between un- 1 . It cannot be applied to a marriage contracted between a persons, baptized and an unbaptized person under a dispensation from the impediment of disparitas cultus. Once such a marriage has been consummated, it cannot be dissolved, and only separation is pos- sible ( s ), according to the rules given above. The Casus Apostoli in no way affects marriage contracted between two baptized per- sons f one of whom, through hatred of the Christian religion, has embraced paganism (*). validly ; 2. We must also exclude marriage contracted between unbap- tized persons, but invalidly, as is often the case. To judge of the validity or invalidity of such marriages, we must first of all see if the usual ceremonies have been observed, according to the customs of each countiy (*) ; and we must then i. Cf. Schweiz. Kir chenzeitung, 1911, p. 36 ; VERMEERSCH, De Casu Apostoli n 2. a. Collectanea, n 1353, cf. n s 1354 and 1323. Cf. WERNZ, o. c., IV, n 702, note 60. 3. Decree of the C. S. O., 15 Aug. 1759, in the Collectan., n 1312. 4. This has been repeatedly declared by the Holy See, as may be seen from the decrees given in the Collectan., n 1280 ss. Innocent III, cap. 7, X, IV, 19, pointed it out quite clearly, and laid stress on the difference between the two cases, adding, however, that one of his predecessors had decided otherwise. And, in fact, there exists a decision in the contrary sense emanating from Celestine III, and given in FRIEDBERG, Corpus Juris Canonici, cap. i, X, III, 33, according to cap. 2, Comp. II, III, 20. Cf.FAHRNER, o. c., p. 161 s., and below, n 200. 5. Thus the C. S. O., in its decree of 7 Aug. 1898, declares that we must con- sider as valid marriages celebrated with the usual ceremonies of the country, THE INDISSOLUBILITY OF MARRIAGE 327 find out if there were any diriment impediments of the natural, divine, or civil law ('). If the validity remains doubtful, the doubt must be solved in favour of the faith, i. e., so as to leave the converted partner at liberty (*) ; but it must not be assumed that there is a sufficiently expressing the mutual and present consent of the parties, according to the common estimation of the locality . Cf. Collat. Brug., t. IV, p. 542 ss., and SICA, o. c., p. p. 337 ss. 1. Special attention ought to be given to the question, whether the consent was given under a suspensive condition, incompatible with the substance of marriage, keeping in view the various decrees of the Holy See on this matter, among others the Instr. of the C. S. O., of 9 Dec. 1874, n s 8-10, and of 34 Jan. 1877, m tne Collectan. n os 1301 and 1302, compared with the decree of the same Congr. dated 18 May 1898, in the N. R. Th., t. XXX, p. 27. Consult also the article by PLANCHARD, in the R. Th. Fr., 1899, p. 93-99, and P. MICHBL, o. c., p. ii ss., compared with the solution given by the C. S. O., on 30 Apr. 1908, to the first case. (See the Coll. Brug., t. XIV, p. 241 ss.). It also happens that infidels c occasionally marry without the customary local ceremonies, so that in the beginning these unions must be regarded as concu- binal. But things turn out well and they live together faithfully... leading a conjugal life which they will not give up, because they love one another, have children, and separation would cause them both serious injure . (Collectan., n 1356, towards the end, and n 1301, 17). Marriages of this kind become legiti- mate in the course of their existence, and this is why the Cardinals declare that it is necessary to examine not only the initial circumstances, and the way in which the marriage was first contracted, but also its duration and the other circumstances that may have subsequently intervened, such as the birth of children, mutual love, its continuance and growth, and so forth. If such indica- tions either singly, or by their collective weight, show certainly or almost cer- tainly that the parties in question will remain united until death, though it may be evident that in the beginning there was only an irregular union, it must, never- theless, be held as certain, or at least as probable, that such illicit union has, in the course of time, passed into a legitimate marriage . Collectan., n 1301 ad 17, and compare with the decree of the C. S. 0.1892 (ibid., n 2184); cf. also VERMEERSCH, De Casu Apostoli, ch. II, art. i, par. i, especially n s 13 and fol- lowing ; La Revue Covgolaise, II, p. 170 ss. 2. See the decrees of the C. S. O., of 8 June 1836 (Collectanea, n 1332), and the decrees of the C. S. O. of 18 May 1892, in the Collectanea, n s 2184 and 2i85,ad i m and 2 m respectively, and compare with the decree of the C. S. O. of 7 July 1880, given by WERNZ, o. c., IV, n 702, note 66. Cf. also Coll. Brug., t. IV. p. 550 s. and the documents quoted there, as well as the decree of the C. S. O., of 19 Apr. 1899, ' n the Anal, eccl., 1899, p. 236 and 283. An example may be found in the case of a marriage contracted within the 328 THE INDISSOLUBILITY OF MARRIAGE 1Q3 doubt without previous examination and careful inquiry (') it implies the B. The Pauline privilege implies the dissolution of the conjugal tlu conjugal bond. Nevertheless, it is to be observed that marriage legitimum is bond no t dissolved by the fact of the baptism of the converted partner (*), even if the other withdraws ; it becomes dissoluble only at the will of the former. It is not really dissolved until the convert, making use of his right, actually marries again ( 3 ). degrees of consanguinity within which marriage is probably invalid by the law of nature itself, as for instance, between brother and sister (cf. infra, n 300). On the conversion of one of the parties, the marriage might be declared null, with liberty for the baptized party to marry again, quite apart from any application of the Pauline privilege. We say might be , because it cannot be said that nullity must be declared, and it would even be lawful to continue cohabitation, apart from scandal (as in the case mentioned), or danger to the faith of the baptized party. I. The preliminary inquiry must not be omitted even in the case of savage tribes, that have apparently lost all idea of true marriage, like the tribes spoken of by the Bishop of St. Albert, in the doubt proposed by him to the C. S. O. The S. Congr., on the 9 Dec. 1874, made the following observation : it is neither certain nor proved that among such tribes there is no marriage valid in the natural law, that all their unions are indiscriminately concubinal, and that every idea, however indistinct, of the difference between marriage and concubinage has been lost to them. It is not right to pass a judgment like that on an entire foreign race, without having first made a careful examination of their manners and customs, and basing such a conclusion on weighty arguments drawn from ascertained facts : without that, we must keep to the presumptio juris. For, in the absence of certain proof, nature which, as the Apostle says, Rom. II, 14, has implanted the first conception of marriage in the hearts of all, cries out on behalf of these tribes, however abandoned they may be . (Collec- tanea, n 1301, ad 2 m ). All things considered, it is, therefore, impossible to establish a general rule permitting the omission of particular inquiry, and to decree that the marriages of infidels in this (barbarous) country, and of such Catholics as happen to be in like ignorance, are to be considered as mere concubinage ; on the contrary, a special inquiry must be made into each particular case . Ibid., n. II. Cf. also the decree of the C. S. O. of 18 May 1893, in the Collectanea, n 2184. 2. Cum per sacramentum Baptismi non solvantur conjugia, sed crimina dimittantur . C. 8, X, IV, 19. 3. Hoc privilegium divinum in eo consistere, quod stante matrimonio legitime in infidelitate contracto et consummato, si conjugum alter christianam fidem amplectitur, renuente altero in sua infidelitate obdurate cohabitare cum converso, aut cohabitare quidem volente sed non sine contumelia Creatoris... tune integrum fit conjugi converso transire ad alia vota, postquam infidelis THE INDISSOLUBILITY OF MARRIAGE 329 It is, therefore, the new marriage of the baptized partner that dissolves the bond of the previous marriage, and this dissolution at the same time entails the validity of the second alliance, just as in the transformations of nature the corruption of one substance gives birth to another. The former union being thus dissolved, the party remaining unbaptized, is also at liberty to marry again ('). III. CONDITIONS. 194. The first condition is that one of the parties be converted, and Conditions : receive baptism. The necessity of this condition follows from the parties must words of St. Paul, and from the end for which the privilege was receive . baptism ; introduced. It does not matter if baptism be received in a hereti- cal sect ( J ), but the fact that the one party has become a cate- chumen does not suffice ( 3 ). The second condition is that the other party effect the se- 2 and tlie paration. This condition is considered to have been fulfilled when the two following points have been verified : A. Perseverance in infidelity. For, if before the converted party *. e., that, marries again, the other also is converted and receives baptism, the Pauline privilege does not apply, and the original marri- interpellatus, aut absolute recusaverit cum eo habitare, aut animum sibi essc ostenderit cum illo quidem cohabitandi, sed non sine Creatoris contumelia. Juxta idem divinum privilegium, conjugem conversum adfidem, in ipso conver- sionis puncto non intelligi solutum a vinculo matrimonii cum infideli adhuc superstite contract!, sed tune, si conjux infidelis renuat, acquirere jus transeundi ad alias nuptias cum tamen conjuge fideli. Caeterum tune solum conjugii vinculum dissolvi quando conjux conversus transit cun effectu ad alias nuptias . Instr. C. S. O. n Jul. 1866, in Collcctan. no 1353. 1. Principium autem juris communis est : soluta a vinculo conjugali muliere, solutum remanere et virum ; quippe vinculum est inter duo,seu duorum in unum, idcirco libertas unius libertatem infert alterius >. Instr. C. S. O., 16 Sept. 1834, inCollectan., n 1328, ad i m . 2. Cf. PALMIERI, o. c., p. 234 s. ; WERNZ, o. c., IV, n 702, note 59. 3. Decree of the S. C. de P. F., 16 Jan. 1803, Collectan., n 1379. As regards a married catechumen who desires to take advantage of the Pauline privilege, observe that such cannot be admitted to baptism, unless disposed to keep or take back his legitimate partner, where the latter consents to peaceable cohabitation. Decision of the C. S. O., of 13 Apr. 1908, in the Coll. Brug., t. XIV, p. 241 ss. See also VERMEERSCH, o. c., n 37 ss.; the Author observes that one may sometimes respect the good faith of the aspirant to baptism. 330 he refuses peaceable cohabitation age, now become ratum by the baptism of both parties, is henceforth subject to the laws of Christian marriage. The words of St. Paul, and the decrees of the Holy See leave no doubt on this point ('). On the other hand, however, it suffices for the converted partner, if, at the moment of using the privilege, the other is still in fact an infidel, even though the latter has shown a disposition to embrace the faith, or has alrea- dy become a catechumen (*) ; but the fulfilment of the second condition, of which we shall speak immediately, is supposed ( 3 ). B. Refusal of peaceable cohabitation on the part of the unconvert- ed party. This case occurs in three hypotheses : 1. If he is unwilling to continue cohabitation,!. e., community of bed and board, though, perhaps, himself inclined to Christianity (*). It does not matter what the reason of his refusal may be, 1. See inter alia the decrees of the C. S. O., of n June 1866, ad 8 m , of 20 June 1866 and 18 May 1892, ad 2 m , in the Collectan., n s 1353, 1354 and 2185 ; likewise cap. 8, X, IV, 19, where Innocent III declares : If the husband is converted, and his wife, acting in like manner, follows him before he has law- fully married again..., he will be under the obligation of taking her back . See also VERMEERSCH, o. c., n 37 ss., where he observes that there is sometimes occasion to take into account the good faith of the unbaptized. 2. Decree of the C. S. O., of 8 July 1891, Collectan., n 1362, and of 28 Apr. 1899 ; Anal, cedes., 1899, p. 283, compared with P. MICHEL, o. c., p. 35 j see also the 2 nd and yd cases solved by the C. S. O. on 30 Apr. 1908, 1. c. 3. Certainly, if on other grounds there is no reason to fear for peaceable cohabitation, it is not lawful to marry again when the requisite departure is wanting ; and if the unbaptized party, being willing to cohabit peaceably, puts off the conversion to which he shows himself inclined, the execution of his good intention must be awaited with patience. On the other hand, however, an exces- sive delay in receiving Baptism may well give rise to doubts of his sincerity, and even cause suspicion that the faith of the convert is in danger. On this account the Holy See requires that the Bishop should be consulted, and he, after consi- dering all the circumstances, will decide if it is a case for the Pauline privilege. Cf. decreta C. S. O., 4 July 1855 and 29 Nov. 1882, in the Collectan J , n. 1113 and 1581 (ad 3 m ) ; cf. also I 1 Ami du Clerge, 1912, p. 238 s. 4. To the question : If a convert was married, before his conversion, to an infidel wife, who also wishes to embrace the faith, but absolutely refuses to live with him... can he make use of the Pauline privilege, and marry again, after having ascertained the intentions of his wife as to cohabitation ? , the C. S. O., 8 July 1891, replied in the affirmative... provided the wife is still in infidelity >. Collectanea, n 1362, and compare with the decree of 26 Apr. 1899, in the Anal, eccl., 1899, p. 283. THE INDISSOLUBILITY OF MARRIAGE 33! whether hatred of religion, or any other motive whatever, provided it is not the baptized partner who has given him a just and reasonable cause for separating from her (') ; a motive based on something that occurred before baptism is not considered a legiti- mate reason ( 2 ). 2. Or, again, if he consents to cohabitation, but will not live with her peaceably and without blaspheming the Creator ; e. g., if he endeavours to lead the baptized party away from the faith ( 3 ), or to draw her into mortal sin, especially against conjugal chastity (*), or if he refuses to give up the practice of concubi- 1. To the question : An (privilegium fidei) solum locum habeat quando infidelis discedit odio fidei, an etiam quando discedit propter discordias vel aliam causam a fide diversam ?, the C. S. O., 5 Aug. 1759, replied : c Cum militet ex parte conjugis conversi favor fidei, eo potest uti quacunque ex causa, dummodo justa sit, nimirum si non dederit justum ac rationabile motivum alteri cotijugi discedcndi*. Collectan., n 1312, ad 2 m J and cf. deer. C. S. O., 26 Apr. 1899, in the Anal. Eccl., 1899, p. 283. 2. Thus a fault, e. g., adultery, committed by the convert before conversion, is not considered just and reasonable ground for separation, < because the stain of adultery committed before baptism is looked upon as washed away by baptism . Consequently, when it is a question of an infidel invited to resume conjugal relations with his converted spouse, and he refuses to do so solely on the ground that he had already repudiated her on account of adultery committed before conversion, the refusal of the infidel party renders the other free to contract a fresh marriage . Such is the decision of the S. C. de P. F. 30 Jan. 1807 (Collectan., n 1332). On the other hand, adultery subsequent to conversion furnishes the infidel party with a legitimate motive for separation, and in that case such sepa- ration does not in any way render the convert capable of marrying again . Ibid., and cf. the decree of the S. C. de P. F., 16 Jan. 1797, Collectan., no 1318. Finally, to the question : are faults committed after baptism, but of no conse- quence in the eyes of the infidel party, or entirely unknown by him, an obstacle to the use of the Pauline privilege by the baptized party ? , the C. S. O , on 19 Apr. 1899, replied by referring to its decrees of 6. Aug 1759 and ot 16 Jan. 1797, mentioned above in this and the preceding note, and by calling to mind the principle which we shall meet with later, viz., that in doubt the decision must always be to the advantage of the faith. Anal, eccl., 1899, p 236. Cf. VICTORIUS AB APPELTERN, o. c., p. 207 s., and SICA, p. 401 ss., and 456 s. 3. Deer, of the C. S. O., 29 Nov. 1882, Collectan., n 1358, ad 31". 4. Deer, of the S. C. de P. F., 5 March 1816, ad 6 m , where we read : If the solicitation to sin is not on the part of the husband towards his wife (and vice versa), but comes from others who live with him, e. g., from the father-in -law or the mother-in-law, the converted wife may, if she has no other means 332 THE INDISSOLUBILITY OF MARRIAGE nage ('), or to have the children brought up as Christians ( 2 ). 3. Or, finally, if the infidel party is ready to consent to everything, but finds impossible to establish the conjugal life ; pro- vided that the converted party has not, since baptism, done anything to cause such impossibility (*). Note. 1. The Pauline privilege is applicable even where the infidel party has not separated from the other (in the sense stated) until after having lived in peace with the convert for several years after the baptism of the latter (*). 2. When the infidel party consents to cohabit with the convert peace- ably and without blaspheming God, and is not, therefore, considered to separate, St. Paul teaches that the baptized party cannot put the other away in order to contract afresh marriage. Innocent III, c. 8, X, IX, 19 ( s ), in his interpretation of the teaching of the Apostle, comes to this conclusion, and the same has received the more recent confirmation of the Holy See (*). We say : in order to contract a fresh marriage. For, leaving this of escaping it, leave that house of perdition j but she cannot break the marriage bond and marry again >. Collectanea, n 1323. 1. C. S. O. n July 1886 ad 2 m and 3 Collectan., n 1353. 2. Ibid., ad 4 m . Cf. VERMEERSCH, o. c., n s 45 and 48. 3. When the wife, on being asked if she is willing to be converted or to live peaceably with her converted husband, replies that she is quite willing to do so, but is prevented by a second husband, or by a creditor who will not let her go , the C. S. O., 12 June 1850, decided that the convert could lawfully and validly contract a fresh marriage with a Christian woman, provided that he was not the cause of the obstacle that prevented his wife from living with him . Collectanea, n 1339. More- over, the decree already quoted of the C. S. O., of 8 July 1891, decides that the man can make use of the privilege when his wife has been taken away from him beyond all hope of recovery, even though she should wish to be converted and live with him ; and even when the husband has sold his wife, provided that he did so before baptism . Collectan., n 1362. Cf. MICHEL, o. c., p. 56 s. 4. C. S. O. ii July 1866, in the Collectan., n 1353, ad i m , and cf. n 1337. 5. Qui autem secundum ritum suum legitimam repudiavit uxorem,... nunquam, ea vivente, licite poterit aliam, etiam ad fidem Christi conver- sus, habere, nisi post conversionem ipsius ilia renuat cohabitare cum ipso, aut etiamsi consentiat, non tamen absque contumelia Creatoris . 6. When the unbaptized party consents to live with the baptized without blaspheming the Creator, the marriage holds good according to St. Paul. Decree of the C. S. O., 14 Dec. 1848, Collectan., n 1338. THB INDISSOLUBILITY OF MARRIAGE 333 out of the question, the baptized partner is not bound to continue cohabitation with the unbaptized : he has a right to a separation a mensa et toro ; and such separation is not less legitimate than that between a husband and wife who are both baptized, when one or the other of them has fallen into heresy or infidelity. Moreover, if, in a particular case, con- sidering the special circumstances of place and persons, the conjugal life brings with it the danger of perversion for the baptized partner, notwith- standing the good dispositions of the unbaptized and the promise of peace- able cohabitation, the former may be under the obligation of abandoning their common abode ('). 195. The third condition requires that by means of an interpellation .9 The sepa- formally made to the infidel party, it shall be established that he separates. by interpella- A. The object of this interpellation is twofold : to ascertain a/ if object, 'time the infidel is willing to be converted ; b/ or if he is at least willing to cohabit with the other without blaspheming the Creator * (*). tion; B. The time fixed for making this inquiry is that which follows the baptism of the convert ( 3 ) ; but the Holy See permits, in par- ticular circumstances and as a dispensation, the making of the interpellation before baptism (*). When once this interpellation has been duly made, there is no need to repeat it, even if the convert should not marry again for a considerable time ( s ). C. The form of this interpellation is either legal, in accordance 1. Some authors (see VERMEERSCH, o. c., n s 45 and 48) hold that the pri- vilege is also applicable in this case ; and there are some who go so far as to consider cohabitation with an infidel partner at all times unlawful ; whence they infer that the case of the Apostle is verified as often as the said infidel refuses to be converted ; at the very least, it would not be permissible to follow this opinion in practice without having recourse to the Holy See, so that it might declare the dissolubility ot the marriage, or even, as we shall point out below, dissolve the marriage bond. Cf. Collectanea, n 3183, and compare with MICHEL, o. c., p. 55, and DE BECKER, De Matr., n 447. 2. Deer, of the S. C. de P. F., 16 Jan. 1797, Collectan., n 1318 ; see also n s 1323 ad 2 m , and 1361. 3. Deer, of the C. S. O., 13 Apr. 1859, Collectan., n 1350, and compare with ns 1357 and 1358. Cf. also the decree of the C. S. O., 3 Apr. 1908, quoted by us in note to n 194. 4. Nevertheless, as a catechumen is incapable of receiving a dispensation, we must here understand that the Church ratifies after baptism the inter- pellation that it permitted to be made before . VERMEERSCH, o. c., n 55. 5. S. C. de P. F., 26 June iS^o, Collectan., n 1336. 334 THE INDISSOLUBILITY OF MARRIAGE with the formalities prescribed by the Church and this form must, as a rule, be employed ; or private, and this suffices in case ol necessity, provided that full proof of the same may be given in the external forum ('). It is better that the interpellation should be made through the agency of some trustworthy person, rather than by the interested party. Cf. Monita, p. 521. D. As regards the necessity of the interpellation : its necessity is 1. All authorities are agreed that the licit use of the Pauline S mav affect P r i v il e g e absolutely requires the preliminary interpellation, at validity ; least in the private form. Moreover, the Holy See is very strict on this point, even in cases where the aforesaid formality appears to be useless or impossible (*), and even when it is already cer- tain that the answer will be in the negative ( 5 ). Moreover, many Roman documents openly base the neces- sity of this interpellation on the divine law (*). According to them, then, the divine law (inasmuch as the Pauline privilege is based on the authority of divine law,about which see above n 191) in general requires it, because it demands, as a condition, sepa- ration originating with the unbaptized party, and interpellation is the ordinary means of establishing the fact. But this divine law does not enforce its requirements in all cases without excep- tion, e. g., where it is already well known from other sources j. Cf. DE BECKER, De Matr., p. 448 s. ; MICHEL, o. c., p. 48 s. ; PUTZKR, o. c., nos jag and 132 ; this last author gives the form of interpellation. 2. The missionaries ought to know that Benedict XIV... declares un- safe in practice the opinion that the legal interpellation may be licitly omitted as often as it is in fact impossible, or foreseen to be useless, if made. He is of opinion... that even in the case in which the infidel party has gone away to a distant country, or to an unknown place, so that the interpellation cannot be made, there is still need of a dispensation from the Sovereign Pontiff, to whom it belongs to declare under what circumstances the divine precept, by which the said interpellation seems to be enjoined, ceases to bind . Instr. C. S. O. 16 Sept. 1834, m tne Collectan., n 1328. The decrees of 13 March 1901, given in the Anal, eccl., 1901, p. 154, refer to the same matter. 3. See the decree of the S. C. de P. F., 5 March 1810, ad 3. It is there decided that the interpellation must be made in the casein question*, i. e., when the converted partner has been publicly repudiated. Collectan. n 1333. See on the other side VERMEERSCH, o. c., n 53. 4. Cf. the decree of the C. S. O., 16 Sept. 1824, just quoted ; the decree of the C. S. O., 12 June 1850, Collectan., n<> 1339, as well as the decree of the S. C. de P. F v 3 March 1816, ad i m , Collectan., n 1323. THB INDISSOLUBILITY OF MARRIAGE 335 what to expect in the matter of separation. In that case it is only a question of the ecclesiastical precept, which enjoins the interpellation in all cases without distinction. 2. The Holy See seems to suggest that even the validity of the Pauline privilege is subject to the preliminary inter- pellation ('). Whence it follows that where this formality has been omitted (without dispensation), the new marriage cannot, in practice, be regarded as valid, even if the unbaptized party has in fact gone away. It would then be necessary to have recourse to the Holy See (). 3. Nevertheless, the obligation of interpellating the unbaptized one or both partner is not so strict as to be incapable of any dispensation. On the interpellation contrary, the Holy See can dispense from one, and even from both ma ?-^ffi~ parts of the prescribed interpellation, and in fact frequently does dispensation. so. Thus the Holy See ordinarily grants, or gives a faculty to grant a dispensation as to the second part of the interpellation, in favour of converted polygamists. It is then sufficient for them to ask the legitimate wife, being still unbaptized, i. e., the wife first married, if she is willing to become a Christian, without saying anything about peaceable cohabitation. If the answer is in the negative, 1. See the decree of the C.S.O., 17 Jan. 1900. It is there declared that the marriage contracted in infidelity continued to exist in the case proposed : a con- verted husband had contracted a fresh marriage without the preliminary inter- pellation ; the inquiry had not been instituted until after the marriage, and had proved that the former wife neither wished to embrace the faith, nor even to answer the interpellation. Cf. also the S. C. de P. F., 17 Jan. 1836, in the Collec- tanea, n 1330. 2. We say, practically, because theoretically the nullity of such a marriage is open to question. For, the documents referred to do not sanction the principle or tJicsis of the invalidity of the second marriage owing to the absence of interpel- lation, when the separation effected by the infidel party is certain at the mo- ment of the second marriage. But in both cases the practical and safer solu- tion looks upon the marriage as null, and requires that it should be validated, as a matter of prudence at least, either by a renewal of consent or by a sanatio in radice. Moreover, it is not clear, especially in the former case (deer. 01 1900), that the infidel party had actually left his partner at the moment when the second marriage was contracted. Cf. WERNZ, o. c., IV, n 703, note 73 and p. 1033. He also appeals to par. 45 of the Instruction of the S t C. de P. F., 1883. 336 THE INDISSOLUBILITY OF MARRIAGE such converts may then lawfully marry any one of their pseudo- wives, no matter which, provided she has been baptized ('). Still greater faculties are granted to certain Ordinaries (*) in distant coun- tries : they have power to dispense from both parts of the interpellation, that is to say : c to dispense the converted party from the interpellation of the one remaining in infidelity, provided that every effort has been made, including advertisement in the public press, to discover the whereabouts of the infidel, without success, and the impossibility ( 3 ) of giving him notice has been at least summarily and extra-judicially established in this way ; or, again, where the party has received notice, if it is proved that he has not made known his intention within the time fixed by the interpellation (generally a month) ; or yet again, for a limited number of twenty extraordinary cases, when access to the infidel party is possible, but the interpellation cannot be made without evident risk of serious injury either to the converted partner or to other Christians > (*). Moreover, all Bishops and Vicars Apostolic have the delegated power of dispensing from both interpellations in urgent cases, whenever it is clearly proved that the infidel partner will neither embrace the faith, nor cohabit with the convert without blaspheming the Creator ( 5 ). Total dispensation, therefore, requires and supposes a reason, the existence of which must be established at least summarily and extrajudicially. Such is, in ordinary cases (as indicated in the above-mentioned indults), the impossibility or the inutility of the interpellation, or the silence of the infidel partner, after due warn- ing that he must give an answer within the time fixed ( 6 ) ; and, in i. This indult appears in Formula I, art. n : Dispensandi cum gentibus et infidelibus plures uxores habentibus, ut post conversionem et Baptismum, quam ex illis maluerint, si etiam ipsa fidelis fiat, retinere possint, nisi prima voluerit converti . Cf. the commentary in PUTZER, o. c., n 127, and compare with MICHEL, o. c., p. 44, who refers to the decree of the C. S. O., June 1850 (Collectan., n 1044), in support of the statement that this faculty is also applic- able to the case of a woman who has several husbands. Should it happen that none of the wives of the convert consents to conversion, or is accepted by him, a further interpellation of the first and true wife as to peaceable cohabitation would then be necessary. If he experiences a fresh refusal, he can then marry any Christian (Catholic) woman. a. Certain Ordinaries delegate this faculty to some of their missionaries. 3. A moral impossibility suffices. 4. The text is quoted in DE BECKER, De Matr., p. 455. Cf. also VERMEERSCH, o. c., n 77 ss. 5. C. S. 0. ii Aug. 1859, Collectan., n 1351. 6. Such are the reasons required in ordinary cases, according to various THE INDISSOLUBILITY OF MARRIAGE 337 extraordinary cases, an evident and serious danger, either to the converted partner, or to other Christians ('). Outside these cases, in default of a sufficient, or sufficiently certain reason, recourse must be had to the Holy See, and its timely decision awaited (*). Observe, moreover, that in conformity with the decree of the S.C. de P.P., of the 26 June 1820, the dispensation requires renew- al, if more than a year elapses before the convert takes advan- tage of it to marry again ( 3 ). Note. 1. There are circumstances in which it is not rightly known whe- ther the conditions of the Casus Apostoli are fulfilled or not ; in doubt, the question must be decided in favour of the faith, i. e., in favour of the liberty of the converted partner (*). 2. If the convert, making use of the privilege, contracts a new marriage, he must do so with a Christian, or rather with a Catholic (Deer. C. S. O., 3 June 1874 and 17 July 1850, in the Collectanea, n os 1357 and 1340). The Church can dispense from the impediment of disparitas cultus or from that of mixla religio, but makes a difficulty about doing so in such cases ; and the general faculty that one may have for dispensing in the matter of these impediments, is not applicable in this case ( 5 ) ; and rightly so, since the new marriage is permitted for the advantage of the faith ( 6 ). Corollary. Though with us the number of marriages between unbaptized persons increases from day to day, the whole of this question is of less practical importance here than in missiomry countries, where it is of fre- quent application, in the case of the conversion of a married adult, and especially of a polygamist. Roman decisions: C. S. O., 20 June 1866, (Collectan., no 1354), 16 Aug. 1895 (Anal, eccl., 1897, p. 13), and in the double decree of 13 March 1901 (Anal, eccl., 1901, p. 154). The Collectanta, n 1331, in the note, and MICHEL, o. c., p. 61-66, show the scope of these utterances. 1. C. S. O., 39 Nov. 1882, in Collectanea, no 1338, p. 481. 2. See the decrees by which the Holy See gave a dispensation in the case of insanity, and in that of an infidel party who gave a promise of peaceable cohabitation, but whose word could not be relied on. Cf. decrees of the C. S. O., 9 Dec. 190 j. and 28 Nov. 1894, in the Anal, eccl., 1904, p. 191 and 1897, p. 12 s. 3. Collectanea, n 1336. It is different if there has been interpellation and not dispensation : in that case there is no need to renew the former, even if the fresh marriage has been delayed for more than a year. See above, and SICA, o. c., p. 4145. 4. C. S. O., 9 Apr. 1899. Anal, eccl., 1899, p, 236. 5. Collectanea, n 1356 ; SICA, o. c., p. 415 s. 6. Cf. MICHEL, o. c., p. 36 s. 338 THE INDISSOLUBILITY OF MARRIAGE When a polygamist asks for Baptism, it is first necessary, as we have said above, to inquire into the nature of the marriage already contracted by him. If it is clearly proved that he is already validly married, after his baptism, his first wife, as being the only lawful one, must be interpellated ; but if a dispensation has been duly given, it is sufficient to question her as to her intention of receiving baptism. If she refuses to become a con- vert, the husband may then take at will any one of his pseudo-wives, provided she has been baptized (*). If however, the matter is in doubt, and it cannot be known for certain if the convert's first marriage was valid, or which was his first wife, then, for the advantage of the faith, he is at liberty to take which he prefers. Scholion. 496. The proceed- We have seen that the Church readily grants a dispensation Church prov- from the interpellations, and permits the converted partner to *1^ ** ll T marr y a am > ffuen when there is no decisive proof that the other party dissolve the separates ( 4 ) ; though this seems to be an essential condition of ^ e P au l me privilege. We must also observe that the Holy See considers such marriages as valid, even when it afterwards comes to light that the infidel was in no sense ill disposed at the lime that the convert contracted a second marriage, or had even already received baptism ( 8 ). 1. We have seen that in the case of polygamy, the interpellation as to the wish to receive baptism is, in general, sufficient, since the Church commonly dispenses from the other interpellation ; but this only empowers the convert to marry before the Church one of his pseudo-wives who consents to become a Christian, and not a stranger. 2. This uncertainty exists not only when the Church dispenses from the in- terpellations, but also when she permits them to be made before baptism. 3. Quae quidem matrimonia (contracta scil. absque praevia interpella - tione, ab hac impetrata dispensatione), etiamsi postea innotuerit conjuges priores infideles suam voluntatem juste impeditos declarare non potuisse, et adfidem etiam tempore contracts secundi matrimonii converses fuisse, nihilomi- nus rescindi nunquam debere, sed valida, et firma, prolemque inde suscipien- dam legitimam fore decernimus . These are the words of Gregory XIII, in his Constitution, Populis ac nationibus, of 35 Jan. 1585, Collectan., n 1307, compare with n 1309, towards the end, where we find similar words in the Const., In supremo, of Benedict XIV, 16 Jan. 1745. See also the Instruct, of the C. S. O., 4 Feb. 1891, in the Acta S. Sedis, t. XXVI, p. 62 s., towards the end. Notice that this principle applies only to marriage thus contracted with a dispensation, from interpellation ; for if, when marriage has been contracted THE INDISSOLUBILITY OF MARRIAGE 339 Now, if under these circumstances the second marriage is declar- ed valid, the former must necessarily have been dissolved ; and, as we cannot say that it was dissolved in virtue of the Pauline pri- vilege, since the essential conditions for that are wanting here, apparently we can only conclude that it has been dissolved by the authority of the Sovereign Pontiff ( { ) : so that we must recognise that the Pope has the power to dissolve the bond of legitimate marri- age even after its consummation, supposing, of course, the bap- tism of one of the parties (*). When once this power is admitted (*), it is easy to understand the readiness with which the Church, as we have seen, solves to the advantage of the faith, i. e., in favour of the of the liberty of the convert, the doubts that may exist as to the validity of the marriage contracted before baptism, and the fulfilment of the conditions of the Castts Apostoli. In pronouncing such doubtful marriages invalid, the Church does more than make a mere declaration ; and, in fact, dissolves, as far as it may be necessary,the bond that restrains the liberty of the baptized partner. It is well known that the Church does not show a like readiness with regard to the marriages of the faith- ful (). with the preliminary interpellation and without a dispensation, the fact of the baptism of the infidel party, before the second marriage of the previously converted party, is established, that second marriage would be invalid, and the original marriage would retain its validity until dissolved in some other way, as for instance, by the exercise of the Papal authority. 1. Gregory XIII seems to recognise this power whe he says in the Const., quot- ed above : huiusmodi connubia inter infideles contracta, vera quidem, non tamen adeo rata censeri ut necessitate suadente dissolvi non possint >. 2. The act of dissolving the marriages is implicitly contained in that of grant- ing a dispensation from the interpellation, or rather in the dispensation from observing the conditions of the Casus Apostoli. 3. Many authorities in favour of this opinion may be found in the Coll. Brug., t. IV, p. 350, and in DE BECKER, De Matr., p. 457. 4 . The decree of the C. S. O., of 18 May 1892, ad i m , emphasises this difference : Infidelts who declare on oath that they have not contracted an indissoluble marriage are believed without further evidence, and permitted to contract a new marriage, while Christians must bring forward some legitimate proof . Collec- tan., n 2185. See also above, at the end of n 191 ; The Cath. Encyclop., under Divorce, V, p. 61 (Lehmkuhl) . 340 THE INDISSOLUBILITY OF MARRIAGE The reason why the Church has not, up to the present, openly claimed this power, according to DE BECKER, De Matr., p. 460, is to be found in the fear lest the faithful in their weakness and ignorance of these matters should misunderstand its doctrine, especially in these days when the law of civil divorce has unhappily been introduced into so many countries, and come to look upon the divine law regarding the absolute indissolubility of consummat- ed marriage between Christians as of little importance >. See above, n 188. PARAGRAPH IV. THE ABSOLUTE INDISSOLUBILITY OF MARRIAGE RATUM CONSUMMATUM. We have already shown that every validly contracted marriage is indissoluble by the natural and divine law, but that, neverthe- less, this law of indissolubility admits of various derogations ; that within certain limits the conjugal bond may be dissolved by divine authority, either by a general provision, or by a dispensation given for a particular case (either immediately by the divine authority, or mediately through the agency of the Church). We have also shown that this involves no contradiction, since this restricted dissolubility contravenes only the secondary principles of the natural law. These derogations, as we have explained, affect marriage ratum non consummatum, as well as marriage legitimum, whether consum- mated or not, as also marriage consummatum et ratum. The absolute Now, as regards marriage ratum consummatum : the bond esta- b >' ^ is certainly stronger than that of marriage that is age ratum merely ratum ; nevertheless, the principles that we have laid down wn^roved above logically lead us to affirm that, in its nature, there is no a posteriori, reason why it should not admit of dissolution by the divine power, or why that power should not be delegated to the Church. It is, therefore, simply a question of fact. Has God, in fact, conferred such a power upon His Church ? In accordance with the authentic teaching of the Church and the constant Tradition of the Fathers, in opposition to the teaching of Protestants and Greeks ('), we hold, that marriage I, See below, in note ; also n aoga. THE INDISSOLUBILITY OF MARRIAGE 341 ratum consummatum is absolutely immune from any dissolution, even in the case of adultery (') We shall now proceed to make this clear, giving special attention to those points and documents which present some difficulty. I. TEACHING OF THE CHURCH. A. Canons of the Councils and Synods. Most of the canons affirm the principle of indissolubility, and ' by the P., ,. .., . . . . . . .,, teaching of many ot them explicitly insist on it even in connection with the the Church: case of adultery. We mention in particular canons 8 and 9 of the , ^ Coun- council of Elvira (Ilhberitan.J, in 300 ( J ) ; canon 8 of the II th cilsand Synod of Carthage, 407 ( z ) ; canon 6 of the council of Angers (Andigav.), 435 (*) ; canon 12 of the council of Nanies (Nanneten.), probably held in 685 ( s ) ; canon 10 of the council of Hereford, i. This case would be the case most easily admitting of dissolution; and in fact, as we shall see, some Catholics have from time to time maintained this opinion, relying on the somewhat obscure passage of Matth., XIX, 9, 2. Item feminae quae, nulla praecedente causa, reliquerint viros suos, et se copulaverint aliis, nee in fine accipiant communionem >. Item fidelis femina quae adulterum maritum reliquerit fidelem, et alterum ducit, prohibeatur ne ducat ; si autem duxerit, non prius accipiat communionem nisi quern reliquerit prius de saeculo exierit ; nisi forte necessitas infirmitatis compulerit . HARDOUIN, o, c , I, col. 251 ; c. 8, C. XXXII, 7 ; cf. HEFELE-LECLERCQ, o. c., I 1 , p. 312 ss. OTT, o. c., p. 48 ss., quotes also canons 10 and 11,65 aiK * 70 ; in his opinion they are more favourable to the husband, and are not opposed to his re-marri- age, where his wife has committed adultery. 3. Placuit ut, secundum Evangelium et Apostolicam disciplinam, neque dimissus ab uxore neque dimissa a marito alteri conjungantur, sed ita maneant aut sibimet reconcilientur. Quodsi contempserint, ad poenitentiamredigantur*. HARDOUIN, o. c., I, col. 923 ; HEFELE-LECLEKCQ, o. c., IP, p. 156 ss.; GEFFCKEN, o. c., p. 31 ; c. 5, C. XXXII, qu. 7, where the canon of which we are speaking is ascribed to the council of Milevis. 4. Hi quoque qui alienis uxoribus, superstitibus ipsorum maritis, nomine conjugii abutuntur, a communione habeantur extranei . HARDOUIN, o. c., II, col. 779 ; HEFELE-LECLERCQ, o. c., II s , p. 883 ss. 5. Si cujus uxor adulterium perpetravit et hoc a viro deprehensum fuerit et publicatum, dimittat uxorcm, si voluerit, propter fornicationem..., ilia vivente, nullatenus aliam accipiat... Similis forma et in muliere servabitur : si earn vir adulteraverit, habetpotestatem dimittendi virum propter fornicationem, maneat tamen innupta, quamdiu vir ejus vixerit . HEFELE-LECLERCQ, o. c., Ill 1 , p. 296 ss.; FREISEN, o. c., p. 781 ; but consult GEFFCKEN, o. c., p. 54, FAHRNER, o. c., p. 60 s. and HEFELE-LECLBRCQ, o. c.,III 2 , p. 1247; they observe that the canons ascribed to the council of Nantes more probably belong to the ninth century. 342 THE INDISSOLUBILITY OF MARRIAGE 673 (') ; canon 10 of the council of Friuli (Forojuliani), 796 ( 2 ) ; the decree for the Armenians, in the council of Florence ( J ) ; and canon 7, Sess. XXIV, of the council of Trent (*). x. Nullus conjugem propriam, nisi, ut sanctum Evangelium docet, fornicatio- nis causa, relinquat. Quodsi quisquam propriam expulerit conjugem, legitimo matrimonio conjunctam, si Christianus esse recte voluerit, nulli alteri copuletur, sed ita permaneat, aut propriae reconcilietur conjugi . HARDOUIN, o. c., Ill, col. 1017 s. ; HEFELE-LECLERCQ, o. c., Ill 1 , p. 310 ss. ; BOCKENHOFF, o. c., p. 40 s. 2. Item placuit ut, resolute fornicationis causa jugali vinculo, non liceat viro, quamdiu adultera vivit, aliam uxorem ducere, licet sit adultera >. HARDOUIN, o. c., IV, col. 859 : HEFELE-LECLBRCQ, o. c., Ill*, p. 1093 ss. 3. c Quamvis autem ex causa fornicationis liceat tori separationem facere, non tamen aliud matrimonium contrahere fas est, cum matrimonii legitime contracti vinculum perpetuum sit >. DENZINGER, Enchiridion, n. 702. 4. c Si quis dixerit Ecclesiam errare, quum docuit et docet, juxta evangelicam et apostolicam doctrinam, propter adulterium alterius conjugum matrimonii vinculum non posse dissolvi ; et utrumque, vel etiam innocentem, qui causam adulterio non dedit, non posse, altero conjuge vivente, aliud matrimonium contrahere ; moecharique eum qui, dimissa adultera, aliam duxerit, et earn quae, dimisso adultero, alii nupserit, anathema sit . It is right to remark here that the Tridentine Fathers, at the request of the Venetian ambassadors, modified the first draught of this decree, accord- ing to which the indissolubility of marriage in the case af adultery was directly taught under pain of anathema ; thus the excommunication, as it now stands, affects only those who accuse the Latin Church of error, and conse- quently not the Greeks. On this subject see THEINER, o. c., II ; on p. 312 he gives the form originally proposed, and on p. 338, the petition of the ambassadors of the Republic of Venice. Nevertheless, in substance, as concerns the doctrine itself, and not the way in which it is proposed, the two forms are identical ', and those who, like the Greeks, defend and put in practice the dissolubility of marriage on account of adultery, are guilty, if not of heresy, at least of undoubted error approaching heresy. We cannot, therefore, call this a disciplinary decree ; on the contrary, it is a doctrinal decree ; and it authoritatively teaches that marriage cannot be dissolved on account of adultery. The Greeks take up an illogical position, when in theory and practice they uphold the dissolubility of marriage, and at the same time refrain from accusing of error the Latins who maintain the contrary. Cf. Benedict XIV, De Syn. dioec., 1. XIII, c. 22, n 4, who declares that docu- ments emanating from the Holy See have, on many occasions, vindicated this doctrine, and solemnly proclaimed the Catholic dogma against the erro- neous idea of the Greeks, who pretend that adultery dissolves the bond of mar- riage ; PERRONE, o. c., Ill, p. 359-388 ; PALMIERI, o. c., p. 141 s. ; SASSE, o. c., II, p. 415 s. 426 s. ; VACANT-MANGENOT, Dictionnaire de Theologie catholique, V Adultere (V) et le lien du mariage d'apres le Concile dc Trente, col. 498-505. THE INDISSOLUBILITY OF MARRIAGE 343 We may add to this list other concordant, though less explicit, canons : canon 48 of the apostolic canons ( J ); canon 10 of the coun- cil of Aries, 314 (*) ; canon 19 of the first Synod called S. Patritii, 450-456 ( 3 ) ; canon 25 of the council of Agde (Agathensis}, 506 (*) ; canon 9 of the Synod ofSoissons (Suessoniensis) , 744 (*). These latter documents either employ general formulas, like the apostolic canons, the canons of St. Patrick, and those of Soissons ; or, while clearly affirming the principle of indissolubility, they exercise prudence in the application of it, and in the method of imposing it, especially with regard to adultery ; their reticence is to be attributed to the weakness of young married persons, and especially to the customs then existing and to the civil laws of the time, which regulated marriage and greatly favoured divorce ('). This practical economy is especially apparent in the councils of Aries and of Agde, The former clearly lays down the proposition of strict indissolubility, both in the text and in the heading of the chapter : That the husband whose wife has committed adultery, cannot 1. < Si quis laicus uxorem propriam pellens, alteram vel ab alio dimissam duxerit, communione privetur >. HARDOUIN,O. c., I, 001.38; FRBISEN, o. c., p. 771 ; HEFELE-LECLERCQ, o. c. , I', p. 632 s., classes this canon among the most ancient. 2. De his qui conjuges suas in adulterio deprehendunt, et idem sunt adoles- centes, et prohibentur nubere, placuit ut, in quantum potest, consilium eis detur, ne viventibus uxoribus, licet adulteris, alias accipiant . HARDOUIN, o. c., 1, col. 265 ; HEFELE-LECLERCQ, o. c.,1 1 , p. 275 ss. 3. Mulier Christiana, quae acceperit virum honestis nuptiis, et postmodum discesserit a primo etjunxerit se adulterio (alias adultero), quae haec fecit excommunicationis sit . HARDOUIN, o. c., I, col. 1792 ; HEFELE-LBCLERCQ, o, c. US p. 888 ss. 4. See the text in HARDOUIN, o. c., II, col. 1001 ; see also HEFELE-LECLERCQ, o. c., IP, p. 973 ; FREISEN, o. c., p. 781 ; FAHRNER, o. c., p. 60. 5/fhe text is given in HARDOUIN, o.c.,III, col. 1934 ; see HEFELE-LECLERCQ, o. c., III s , p. 854 ss. and 1248 s. ; FREISEN, o. c., p. 782 ; FAHRNER, o. c., p. 73. 6. The excessive laxity of the civil laws that then had the exclusive control of marriage, was the principal reason that prevented the Church, before the tenth century, from showing inflexibility everywhere and at all times in the matter of indissolubility. Inveterate customs and existing laws, sanctioned even by Chris- tian kings, forced it to be prudent and tolerant, and to advance slowly in the task of bringing the laws and customs into accord with the strict teaching. Cf. FAHRNER, o. c., p. 61 s. and p. 75 s. ; BOCKENHOFF, p. 45 s. ; see also what we say below, n> s 2O3a and 203b. 344 THE INDISSOLUBILITY OF MARRIAGE take another during the lifetime of the former ; and, nevertheless, it goes on to suggest that in practice the course to be adopted is one of persuasion. In the latter council, the Bishops endeavour to trans- fer divorce cases to their own tribunal, and so to withdraw them from the civil jurisdiction which was always too ready to quash marriages ; they declare that those who sue for divorce without the consent of the Bishop, expose themselves to canonical penal- ties ; nevertheless they refrain from declaring the principle of indissolubility absolutely strict and binding. in the decrees B. Decrees of the Sovereign Pontiffs. of the Sovereign The principal decrees, from our point of view, are those of onttffs, j nnocen t i (401-417), to Exuperius of Toulouse ('), to Probus ( J ) and to Victricius ( s ) ; those of Leo I (440-461), to Nicetas (*) ; of Zachary (741-752), to Pepin ( s ); of Stephen II (754) (') ; Alexan- i. De his requisivit dilectio tua qui, interveniente repudio, alii se matrimo- nio copularunt. Quos in utraque parte adulteros esse manifestum est... Qui vero, vel uxore vivente, quamvis dissociatum videatur esse conjugium, ad aliam copulam festinarunt, neque possunt adulteri non videri . HARDOUIN, o. c., I, col. 1005, c. 6. 3. We declare in accordance with the Catholic faith... that the union with a second wife during the lifetime of the first, cannot be in any way law- ful, even after divorce and repudiation (nee divortio ejecta) . HARDOUIN, o. c., I, col. 1008. 3. Sic enim de omnibus haec ratio custoditur, ut quaecunque, vivente viro, alteri nupserit, habeatur adultera nee ei agendae poenitentiae licentia conceda- tur, nisi unus ex eis defunctus fuerit >. HARDOUIN, o. c., I, col. 1002. 4. The first chapter of this Pontifical document concerns wives whose hus- bands have been reduced to captivity and are looked upon as dead, and who have consequently married again. The Pope says that, if the first hus- bands are restored to liberty and return to their homes, we must hold that these lawful unions are to be resumed,... everything ought to be done that each may recover his right . Ibid., c. 3. HARDOUIN, o. c., I, col. 1770. 5. He insists on the prohibition forbidding the party who puts away his partner, to contract a fresh marriage, and appeals (ch. 7) to the 48 th Apos- tolic Canon, and also (ch. 13) to the canon of the n th Synod of Carthage, already mentioned. See the text of the two canons in HARDOUIN, o. c., Ill, col., 1902 and 1903. 6. Chapter 5 of the rescript of Stephen II asks if a husband who has repudiated his wife can take another during the lifetime of the former , and answers word for word from the text of Innocent I to Exuperius, as quoted above. Further on, ch. 19, the case is put of a wife who married again during THE INDISSOLUBILITY OF MARRIAGE 345 der III (') ; of Innocent III ( 5 ) ; and of Leo XIII in the Encyclical Arcanum ( 3 ). The teaching of the Holy See is no less manifest in the determined resistance that it made to kings and princes who endeavoured to set aside the law of indissolubility (*). It is enough to mention Lothaire ( 5 ), Philip Augustus of France ( 6 ), Henry VIII of England ( 7 ), etc. ( 8 ). the captivity of her first husband, who subsequently returned home. Here again it is the solution given by Leo I, in his rescript to Nicetas, that is adopted. Cf. HARDOUIN, o. c., Ill, col. 1987 and 1988. 1. C. 7, X, III, 35 ; see the text above in n 188. 2. C. 7 and 8, X, IV, 19. 3. c In the great confusion of opinions, however, which spreads more widely day by day, it should further be known that no power can dissolve the bond of Christian marriage when it has been ratified and consummated ; and that there- fore those husbands and wives are guilty of a manifest crime who wish, for whatsoever reason it may be, to be united in a second marriage before the first one has been ended by death . Authorised Translation, London, 1880. 4. Leo XIII, in the Encycl. Arcanum, extols this invincible resistance on the part of the Church. 5. After having repudiated his wife Teutberge in 857, Lotliaire wished to marry Waldrade, with whom he was living in marital relations. He endeavoured to obtain a declaration of nullity against his first marriage (see below, n 242, in the note) ; and having extorted it from several bishops, he publicly celebrated his nuptials with his concubine. But the Pope Nicholas, intervened and reso- lutely resisted the wishes of the king. He stood his ground with heroic firmness, and only laid aside his arms when Lothaire had dismissed Waldrade and taken back his lawful wife. Cf. HEFELE-LECLERCQ, o. c., IV 1 , p. 237 ss. ; comp. n 242, in the note. 6. Philip Augustus from the morrow of his marriage, had broken with his wife Ingeburge, with the intention of marrying Anne of Meran. At his instance, some of the bishops of France consented to declare his former marriage null. The queen, in her misfortune, appealed to Innocent III, who quashed the decision of the bishops, laid the whole of France under an interdict, and so forced the king to take back Ingeburge. See COULON, Le Divorce, p. 155-161 ; CASTBLEIN, o. c.. p. 550 s. 7. Henry VIII had first married, by dispensation, Catherine of Arragon, his brother's widow. At a later date, when his affections had fallen on Anne Boleyn, he claimed to have his marriage annulled, and succeeded in doing so before a tribunal of English bishops, who put forward as a pretext the invalidity of the dispensation in so near a degree. Clement VII, in 1534, proclaimed the marriage with Catherine of Arragon valid and indissoluble, and allowed the king and the whole country to fall into schism, rather than go against the principle. See below, n. 304, and above, n. 178, where we mentioned that Clement VII seems to have hesitated and, at first, to have been inclined towards permitting poly- gamy to Henry VIII, in such a way as to take another wife whilst still keeping Catherine. 8. Pius VII, in 1806, showed himself equally firm in resisting the entreaties 346 THE INDISSOLUBILITY OF MARRIAGE This same doctrine caused the Roman Pontiffs, even from the earliest ages, when the Church had not as yet effectively taken in hand the regulation of marriage, to exert their influence on the civil laws, both Roman and Barbarian, in order to bring them little by little more into accord with the law of Christian marri- age. Above all, the Church strove to establish equality between man and woman, and to do away with the right which the hus- band alone formerly enjoyed of divorcing his wife almost at will ; it further exerted itself to diminish the number ot causes of divorce, to render the obtaining of it more difficult, and the conse- quences more burdensome (') ; finally it succeeded in having the principle of indissolubility recognised and sanctioned by the civil authority. Even the adversaries of the Church acknowledge the salutary and preponderating influence exercised by it in this matter (*). Some of them, however, urge against us instances of dissolu- tion pronounced by the Holy See in favour of royal and distin- guished personages ; but a closer examination reveals the fact that these were cases either of non-consummated marriage ( 5 ) or of simple declaration of nullity (*). There is a great difference between such a declaration and an act that directly dissolves and threats of Napoleon, who wished to force him to dissolve the marriage of his brother Jerome. Cf. WELSCHLINGER, o. c., p. 83 ; Revue prat. cTApolog., 1911, t. XI, p. 775 ; Diet, apolog. de la Foi cath. (A. d'Ales), 1910, under Divorce des Princes et I'Eglise ; BOCKENHOFF, o. c., p. 41-44. 1. See below, n os 203 and 2O$b ', in the latter passage we speak of the influence of Christianity on the ancient civil laws of the Germans in the matter of divorce. This influence made itself felt the later in some instances, as several German tribes had embraced Arianism before their conversion to the Catholic Faith. 2. Cf. GEFFCKEN, o. c., p. 45 s. and 51 ; LEMAIRE, o. c., p. 25 s., who also treats of this influence. 3. Such was the dissolution pronounced by Alexander VI in favour of Lucrezia Borgia ; cf. PASTOR, Histoire des Papes (tr. de Furcy Raynaud), 1898, t. V, p. 498 s., who notes that the marriage had been denounced at Rome as non-con- summated. 4. A recent example is the decision given in the case of the marriage of the Prince of Monaco with the Princess Hamilton. This marriage was declared null on the grounds of violence and fear. Cf. BONOMELLI, o, c., 54. THE INDISSOLUBILITY OF MARRIAGE 347 the conjugal bond ; some public assemblies and even some jurists would do well to bear this in mind ('). 198. II. TEACHING OF THE FATHERS AND ECCLESIASTICAL WRITERS. 2. by the teaching of It is impossible for us here to enter fully into this matter, the Fathers and we must refer the reader to writers who make it their special business to do so. We may mention PERRONE, o. c., Ill, p. 219-352 ; CIGOI, o. c., ; DE ROSKOVANY (*) ; PALMIERI, o. c., p. 141 ss. ( s ) ; DENNER, o. c. ; OTT, o. c., ; ROUET DE JOURNEL, o. c. We confine ourselves to a few general observations : 1. The greater part of the Fathers and writers of the earliest centuries (they may be easily found on referring to the works we have just enumerated), proclaim the absolute indissolubility of marriage ratum consummatum, and not unfrequently they do so with express reference to the case of repudiation for adultery (*) 1. Cf. PISANI, o. c.; BOUDINHON, Le mariage religieux, p. 62 s. It was also merely a declaratory sentence that was pronounced by Alexander VI, in the case of the marriage of Louis XII of France and queen Joan, and by Clement VIII in that of Henry IV. This latter marriage in particular was declar- ed null in the first place, on account of a diriment impediment which had not been removed by dispensation, and secondly, because the consent of the queen had not been freely given. As regards the marriage of Napoleon with Josephine de Beauharnais, Pius VII always refused to confirm the sentence of nullity officially pronounced in Paris, based on the absence of witnesses at the time of the celebration of the marriage, and on the want of consent on the part of the emperor, as having, in 1804, reluctantly given his consent, being constrained by Pius VII, in order to validate his civil marriage of 1796. Ct". WELSCHINGER, o. c. ; Etudes, t. xxxvm, p. 606 ss. 2. Supplements, ad collectiones monumentorum, I, p. 457 s. 3. See also QUINQUET DE MONJOUR, o. c,, p. 48-53 and 81-100. 4. One wonders what fixed idea impels certain authors, like DESSAULES, o. c., p. 202 s., to make the wild statement : que S. Augustin pose le premier le prin- cipe de 1'indissolubilite absolue, meme en cas d'adultere, et le fait adopter en principe dans PEglise d'Occident . Alex. Dumas (fils), quoted by QUINQUET DB MONJOUR, o. c., p. 50, especially distinguishes himself in this way in his work, La Question du Divorce, p. 213 : Le divorce a etc consenti et approuve par 1'Eglise pendant les huit premiers siecles... Les Conciles jusqu'a cette epoque, ou ne parlent pas du divorce (ce qui demontre qu'ils Padmmettent (!), ou le con' sacrent ou le tolerent . To these vagaries we oppose the opinion, beyond suspicion of partiality, of LONING, o. c., II, p. 607 : Es findet sich aus den ersten drei Jahrhunderten kein Zeugniss dafur, dass die Kirche Wiederverheirathung 348 THE INDISSOLUBILITY OF MARRIAGE On the other hand, their writings show that the practice of the faithful was not always in conformity with this theory. Thus Origen complains that contrary to the Scripture law, some rulers in the Church permitted a woman to marry again during the lifetime of her husband ('). S. Asterius Amasenus inveighs against his contemporaries who change their wives like their garments, and whose marriage beds are as readily moved as the boots at a fair (*) ; while St. Augustine says ( 3 ) : c who does not know how rare are those wives who live so chastely whith their husbands, that they never seek for others, even at the risk of repudiation ? These disorders were greatly promoted by the civil laws in force at the time (*). 2. At a later date, especially from the beginning of the IX th cen- tury, the doctrine of absolute indissolubility became altogether unanimous, and the Doctors attached so much importance to it, that many of them applied it to all true marriage without distinction. The practice of sometimes dissolving non-consummated marriage became a difficulty to them, and to reconcile it with their theory they denied such the title of true marriage, and recognised in it only an inceptive marriage ( 5 ). This was the case with Hincmar of Rheims ( 6 ) and the Doctors of the School of Bologna, and thus Gratian argues, qu. 7, Causa XXXII. 199. Solution of III. DOCUMENTS THAT PRESENT SOME DIFFICULTY. difficulties drawn from A. Texts of Scripture. A difficulty arises from two passages in St. Matthew, V, 32 ( 7 ) and XIX, eines geschiedenen Ehegatten bei Lebzeiten des ander Theils fur schriftgemass gehalten hatte . 1. Comment, in Matth., t. XIV, n. 23, in Migne, XIII, col. 1246. 2. Homelia in locum Evangel it sec. Matth. : an liceat homini dimittere uxorem suam quacunque ex causa. Migne, XL, (P. Gr.), col. 227. 3. De conjugiis adulUrinis, II, ch. 17 ; Migne, XL, col. 483 s. 4. Cf. LONING, o. c., II, p. 607 ss. 5. See above, n s 60 and 187, on the subject of the copulatheoria. 6. GEFFCKEN, o. c., p. 60 s., gives the substance of the teaching of Hincmar, put forward especially on the occasion of the divorce of Lothaire. See also SCHRORS and SDRALEK, o. c. Hincmar's account of the divorce of Lothaire may be found in Migne, CXXV, col. 619-772. 7. But I say to you, that whosoever shall put away his wife, excepting the cause of fornication (itapeKTO? \6fou iropveia?), maketh her to commit adultery ; and he that shall marry her that is put away, committeth adultery . THE INDISSOLUBILITY OF MARRIAGE 349 9 ('), from which it would at first sight seem that we might conclude : therefore he who puts away his adulterous wife does not make her commit adultery ; and he who puts away his wife for fornication and takes another, does not commit adultery. Assuming that the texts in question are authentic (-) ; that they relate to lawful ( 3 ), Christian (*), consummated marriage ; and that fornication is here taken for an act subsequent to marriage ( 5 ) : we say : that the passages quoted are perfectly reconcilable with the Catholic doctrine concerning the absolute indissolubility of marriage ratum consommatum. The proof is as follows : 1. Indirect proof: there are several objections to the admissibility of the interpretation from which the difficulty arises. a/ In the first place, the very opposition, that the texts clearly set forth, between the imperfection of the Mosaic law and the perfection of the New Law, with relation to marriage, is on our side ; for it is there said that the new law restores marriage to its original stability ; that it had been derogat- ed from, out of condescension to the hardness of heart of the Jews ; and that this derogation must now come to an end. Cf. V, 31-32 and XIX, 8-9. .s. V, 32 and XIX, 9 ; 1. Whosoever shall put away his wife, except it be for fornication (ur| iri iropveict), and shall marry another, committeth adultery : and he that shall marry her that is put away, committeth adultery . 2. LOISY holds the contrary, in his Bvangiles Synoptiques, t. I, p. 575 s. ; but the most ancient manuscripts contain the difficulty in question. Cf. VILLIEN, Divorce, col. 1451. Circa variantes lectiones, videsis WATKINS, o. c., p. 153-167. 3. Some writers have held that this is here a question of concubinage, as if Christ had said that marriage could be dissolved only when the union was irregular ; but the text and the whole context are opposed to this explanation ; there is no question of other than duly contracted marriage. Cf. OTT, o. c., p. 261 ss. 4. Others have imagined that the words of Christ concerned Jewish marriage, and permitted dissolution in case of adultery : but again, they do not take into account the whole context, which clearly shows that it is a question of marriage opposed to that of the Jews. Cf. V, 31-32, XIX, 8-9. Other writers have been of opinion that Our Lord had in view marriages contracted in infidelity, and here taught that the bond of such unions could be broken in the Casus Apostoli. They understood iropveia in the sense of dancrna. See OTT, o. c., p. 254-61. 5. There are also some who understand the word fornication, iropveia, in its strict sense, as a sexual act preceding marriage J and they see therein a scriptu- ral reason for dissolving the subsequent marriage, which would be invalid because contracted under the implied condition of virginity, like that mentioned in Deut., XXII, 13-22. See in PERRONE, o. c., Ill, p. 161 ss., the account and refu- tation of this opinion ; and cf. OTT, o. c., p. 230 ss. a) indirect solution ; 350 THE INDISSOLUBILITY OF MARRIAGE This opposition is the more significant, as the expression \6fo<; Tropvem? corresponds to the Hebrew erwath dahbar, as understood by the school of Schammai, which permitted the Jews dissolution of the bond in case of erwath. If then Christ had permitted divorce for fornication (iropveia), his teaching on the subject of marriage, would.have been neither more strict nor more perfect than that of the Jews who belonged to the school of Schammai. b/ The parallel passages of Mark X, n (*), and of Luke XVI, 18 (*), make Christ say absolutely and without restriction, that the husband who puts away his wife and takes another commits adultery. c/ The second part of verse 32, in the V th chapter of St. Matthew ( 3 ), declares without reserve or exception that he that shall marry her that is put away, committeth adultery ; but this would not be true if, as most Pro- testants and Greeks pretend, the wife put away for adultery were set free from the conjugal bond (*). d/ Moreover, if the sin of adultery had the power of dissolving the marri- age, her guilt would give the repudiated wife an advantage ; and this would prove an incitement to adultery ( s ). This argument, though wholly indirect, is not without force. 1. Whosoever shall put away his wife and marry another, committeth adul- tery against her >. The parallelism is yet more striking when the two Greek texts are compared. Cf. the ed. NESTLE. 2. c Everyone that putteth away his wife, and marrieth another, committeth adultery ; and he that marrieth her that is put away from her husband, commit- teth adultery >. 3. This second part of the verse is omitted in the Greek edition of NESTLE, Matth., XIX, 9; but cf. KNABENBAUWER, Commtntarius in Evang. sec. S. Mat- thaeum, II. p. 138, who gives the Mss. that retain, and those that omit it. 4. Gerade diese ausnahmslose Fassung zeigt deutlich, dass von irgend einer erlaubten und darum auch vor Gott giiltigen Entlassung keine Rede ist . B. WEISS, Das Matthaus-Evangelium, 1898, Gottingen, p. 118, where he says that it is ganz willkiirlich to suggest supplying in the second part of the verse the same exception as in the first : excepting the cause of fornication ; and the more so, as ZAHN remarks, Das Evangelium des Matthaus, Leipzig, 1903, p. 360, that Die Wiederholung wesentlicher Satzteile in paralielen Darstellungen anlicher Falle die Regel ist , as is apparent e. g., a little further on, in Matth. VI, 4, 6, 18. 5. Christ would then, as it were, put a premium on adultery, since the adul- terous wife would be free to contract a fresh marriage, the first being dissolved, while the innocent and chaste wife, unjustly repudiated by her husband, would be bound to perpetual continency. Would not this open the way to a multitude of crimes ? If a husband had much to suffer from his wife, or if he were entangl- ed in the toils of a disorderly attachment, would he not feel strongly impelled THE INDISSOLUBILITY OF MARRIAGE 351 e/ Finally, if the bond could still be broken on account of adultery, the disciples would have had no reason for crying out against the severity of the marriage law. Cf. Matth., XIX, 10. 2. Direct proof : without in any way twisting the text, it is possible b) direct solu- to give it a perfectly reasonable interpretation, that is quite in accord twn ' with Catholic doctrine, and excludes the dissolution of marriage on account of adultery. a/ Let us take first the first passage, Matth. V, 32, and let us assume as logical the conclusion that some have drawn from it, viz... Therefore he who puts away his adulterous wife, does not make her an adulteress . Does it follow from this that the marriage bond is dissolved ? We cannot see that it does. Granting that the outraged husband has the right to put her away, the text would simply affirm that the sin committed by the adulteress in marrying again, is not to be imputed to the husband who put her away ('). Far from proclaiming the dissolution of the marriage, the passage would, on the contrary, state indirectly and implicitly that marriage with a woman thus put away, for any cause whatever, and even for adultery, is itself adultery. Thus the sense of the first part of the verse would fit in with that of the second part, where the same doctrine is taught directly and explicitly. b/ Now, with regard to the second text, Matth. XIX, 9 (*). The words of Christ in this passage are capable of several interpretations : a/ Some authors see in this an ellipsis to be supplied in the following way : he who shall put away his wife, which is lawful only in the case of forni- cation, and take another, commits adultery ; in this case the exception regarding fornication is limited, as far as the sense and grammatical con- struction are concerned, to the first part of the proposition, viz., he that shall put away ( 5 ). All that can be deduced from this is, that the wife may to adultery, if such a sin could at once dissolve the marriage bond ? > KNABEN- BAUWER, o. c., I, p. 226. i .It might also be understood thus : the husband who repudiates his adulterous wife, does not make her an adulteress, because she is one already through her own fault. 2. Those who are not altogether satisfied with the explanation given under a/ will find what follows applicable to V, 32, also. We are aware that some au- thors translate the Hebrew form hiphil, whence the Greek uoixaoQcu iroiei is derived, not by jacit earn moechari, but by adulterium opus pottit (commits an act of adultery against her) . Cf. OTT, o. c., p. 272 s. and 295. s. 3. QUINQUET DE MONjouR, o. c., p. 12, proposes an analogous case : Supposes une loi ainsi con9ue : quiconque aura chati6 son fils, saufpour de graves raisons, et 1'aura tue, sera puni. Direz-vous qu'en certains cas le droit est donn6 au 352 THE INDISSOLUBILITY OF MARRIAGE be put away for fornication, that is to say, that the husband may separate from her, but that the conjugal bond remains unbroken (') ; and thus the text would serve to support the doctrine contained in the second part of V, and he that shall marry her that is put away committeth adultery > ; and St. Matthew would be in perfect agreement with St. Mark, X, n, St. Luke, XVI, 18, and St. Paul, IjCor., VII, n. p/ Other interpreters give to the words, except it be for fornication , a different sense. According to them, the words signify that Our Lord abstracted altogether from the case in which a man puts away his wife for fornication, and said nothing about it. This is the opinion of ZAHN, o. c., p. 583 s. : Here also, as in V, 32 ( 2 ), Jesus excludes from His condemnation the case of an actual breach of the marriage vow resulting from unchastity on the part of the wife without saying what should be done, or what judgment should be passed in such a case ; and further : The text gives no indication as ^to how Jesus would have decided in a case where a man leaves his wife without reasonable ground but without contracting a fresh marriage, or in a case where he puts away an adulterous wife, and then marries again > ( 5 ). Y/ Finally there are some who understand the words Trapeicrds \6fou Ttopvefaa and uf| iri uopveia not in an exclusive but in an inclusive or comprehensive sense. The interpretation proposed by OISCHIN- GER (*) furnishes an example of this. According to him, the word irapexTos (in the first passage, Matth., V, 32), may have either an exclusive or a comprehensive signification according to the context ( 5 ) ; and thus the pere de mettre son fils a mort, et que 1'excuse absolutoire, 1'impunite assure aux coups, doit s'6tendre au fait du meurtre ? . 1. This putting away, which leaves the conjugal bond intact, and permits future reconciliation, is well described by St. Paul, I Cor., VII, n, And if she depart, that she remain unmarried, or be reconciled with her husband . 2. On p. 238, he had already made the same observation with regard to V, 32 : If, then, Jesus in condemning the man who leaves his wife, makes an exception in the case where adultery is the reason for separation, nothing more can be deduced from the text, than that the condemnation does not include that case . 3. St. Augustine speaks in like terms (De conjugiis adulterinis, I, c. 7 ; Migne, XL, col. 496 s.), Cum dicimus : quicunque mulierem praeter causam fornica- tionis a viro dimissam duxerit, moechatur, de uno quidem ipsorum dicimus, nee tamen ideo moechari negamus eum qui earn duxerit quam propter causam tornicationis maritus dimiserit >. 4. Die christliche Bite, Schaffhausen, 1850. Cf. OTT, o. c., p. 267 ss., and p. 289 ss., who adopts this interpretation of Mt., V, 32, and makes it still more evident. 5. OTT, o. c., p. 269 and 290 ss. brings some suggestive examples of it. THE INDISSOLUBILITY OF MARRIAGE 353 phrase, si quis praeter causam fornicationis dimiserit uxorem moechatur>, is susceptible of a double acceptation : viz., he who puts away his wife, except for fornication, commits adultery, and : he who puts away his wife, even for fornication, commits adultery. In the second passage, Mt.,XIX, 9, the negative nn (and ou) can also signify, according to the context and circumstances, not only ; and in fact, St. Matthew himself employs it in this sense, IX, 10; IX, 20 ; XII, 7 ; also Osee, VI, 6. But, as we have shown above, the context and circumstances here call for this rendering ('). All these considerations sufficiently show that St. Matthew in no way weakens the thesis of the absolute indissolubility of marriage ratutn d con- summation (*). The three interpretations which we have proposed, on the contrary, strengthen it, or at least respect it. The traditional explanation, given under a/ is not without a certain difficulty, which is avoided by adopt- ing that given under f /. For, the first solution gives to the term dimittere a sense different from that which it had at the time of Our Lord, specially among the Jews : that is to say, the sense of sending away (the wife) from the house, while keeping intact the marriage bond, a sense which the parallel passages in Luke and Mark have not (=). B. Doctrinal documents of the Church and the evidences of the Fathers and Doctors. 1. Certain decisions of Bishops and of episcopal tribunals are met with 3. from the contrary to the law of indissolubility (*). the Church Moreover, some ecclesiastical documents, such as particular conciliar 1. Yet another explanation is given by OTT, o. c., p 296 ss., for Matth., XIX, 9. According to him, the Hebrew word corresponding to the Greek (jr) is y.N, which, when used with the infinitive, may signify, according to GESENIUS, Hebr. u. Aram. Handworterbuch, es kann nicht sein, es darf nicht ; but one can very well here supply the infinitive (dimittere), omitted for conciseness, so that the sense would be : whosoever shall put away his wife which is not permitted for fornication and shall marry another, committeth adultery. 2. Even among Protestants there are found writers, such as ZAHN, WATKINS and B. WEISS, already mentioned, who share on this point the Catholic opinion. See the authors quoted in OTT, o.c., and cf. Der Katholik, XXXIV, p. 310 s. *Die Bergpredigt und die Unaufldslichkcit dw Ehe .Cf. also HARNACK,D/ Spriiche und Redenjcsu, 1907, p. 42, s., and compare with p. 101. 3. Above, at the end of n 152, our explanation indicates the interpretation pro- posed under T /. 4. We are the first to acknowledge that the bishops who yielded to Lothaire, Philip Augustus and Henry VIII, failed in their duty and went against the tradi- tional teaching of the Church. The same was the case in the matter of the divorce of Napoleon. 23 354 THE INDISSOLUBILITY OF MARRIAGE decrees (*), which do not detract at all from the force of the unanimous and traditional teaching ; papal decrees of a disciplinary nature or, at least, not involving the question of infallibility (*), seem here and there to contradict 1. It must be admitted that canons 5 and 9 of the Council of Verberie (Verme- riense) 752, and canons 6, 13 and 16 of the Council of Compiegne (Compfdiense) 757, give decisions incompatible with the strict teaching.Thus, in particular, they grant dissolution of the conjugal bond in case of subsequent illegitimate affinity ; see above n 139. Cf. HARDOUIN, o. c., Ill, col. 1989 ss. and 2003 ss. ; Concilia Galliae, ed. Sirmond, 1629, II, p. i ss. and 41 ; HEFELE-LECLERCQ, o.c., IIP, p. 917 ss. and 940 ss. These canons appear to have been issued under the joint influence of the lay Princes who assisted at these synods, and of the pre- vailing customs ; and they were not approved as a whole by the Bishops present. Cf. FAHRNEK, o. c., p. 74. s.; VILLIEN, Divorce, I.e., col. 1464 ss.; The Calk. Ency- clop., V Divorce V. p. 57 s. See also what we shall have to say below presently. Many of the contemporary penitentials favoured this laxity ; FAHRNER, ibid., p. 77 s. ; VILLIEN, Divorce, col. 1467 s. 2. The case referred to is that of Celestine III (1191-1198), who, Comp. II, 2, III, 20, permitted the dissolution of marriage ratum et consummatum when the husband, having become an apostate through hatred of religion, deserted his wife, and unduly extended the privilege of the Apostle to such a case. Innocent III (1198-1316), in c. 7, X, IV, 19, reformed this judgment, shov/ing clearly by his words that it was the decision of Celestine III that he had in mind : licet quidam praedecessor noster sensisse aliter videatur . Cf. supra, n 193 ; also the Realencykl., under Scheidungsrecht, t. XXI, p. 861, where the fact in question furnishes an opportunity for a senseless objection against the dogma of infallibility. The case of the rescript of Gregory II to Boniface (726) is different. It is given by HARDOUIN, o. c., Ill, col 1858 s. You have asked what is to be done by the hus- band of an infirm wife, incapable of rendering the marriage debt. It would be well that hi should remain continent ; but as that is given only to great souls, let him who cannot observe continence rather marry , but let him not cease to support her who is separated from him by tnfirmtty and not for any hateful fault . There is no reason why we should say at once, with GRATIAN, in his dictum on c. 18, C. XXXII, qu. 7, that < these words of Gregory are quite contrary to the holy canons, and even to the evangelic and apostolic teaching . On the contrary, we may main- tain with MOY, o. c., 309 ss.; SaGMiiLLER, Tub. Quartalschr., 1905, p. 84 s., and 1911, p. 93.; The Cath. Encyclop., V Divorce, V, p. 59; WERNZ, o. c., IV, p. 499, that the marriage in question is declared dissolved on the ground of antecedent impotency ; for it was the custom of the Roman Church not to dissolve marriage for this reason, but to impose fraternal cohabitation. Gregory would be unwilling to apply this severe discipline to the Germans, because the practice was suited only to those who were strong in virtue. Or, again, we may say with FAHRNER, o. c., I, p. 62 s.; FREISEN, o. c., p. 331 s,, and SCHERER, o. c , p, 267, note 10, that there is question of an unconsummated THE INDISSOLUBILITY OF MARRIAGE 355 the doctrine that we have laid down. We admit this. But, in the first place, they prove nothing against the truth of this teaching ; and secondly, the documents in which the divergence is real and not merely apparent, are so few that they are quite overwhelmed by the weight of contrary evidence. The number alleged is, indeed, great, but most of them are either oi doubtful authenticity ('), or are capable of being interpreted in an orthodox sense ( i ), or they lay down rules of conduct which leave the question of principle untouched, and occupy themselves only with its prac- tical application, according to what we have said in n 197, under A ( 3 ). We may add that several decisions of the Holy See relating to matrimo- nial cases seem at first sight to contradict the traditional teaching, but are nevertheless in conformity with it, and concern unconsummated marriages, marriage to be dissolved; or there may be admitted withEsMEiN,o.c.,p.59 s.and 75 (and, apparently, SBHLING,D^ Wirkungen, p. 19, in note, and VILLIEN, Divorce, I.e., col. 1466 s.), that Gregory recommends some toleration and practical adjust- ment with the severe doctrine of absolute indissolubility, which he elsewhere in- culcates (Capitulars, c.6, in HARDOUIN, o.c.,III,col. 1862), but which he thought he could not prudently impose in the present instance. We have made a like obser- vation above in connection with certain canons of councils. In the case of Gregory there was the greater need to be tolerant and indulgent, and to avoid anything like a shock to the good faith of the people, as he was dealing with the recently converted Germans, whose customs so readily permitted divorce on the part of the husband. See also BOUDINHON, in the R. cl. fr., 1909, t. LVIII, p. 470 ss. 1. E. g., the second Synod attributed to St. Patrick. Cf. HEFELE-LECLERCQ, o. c., IP, p. 888 ss. 2. Thus, among others, the second canon of the Synod of Vannes (Venetica in Brittany) 465, declares that communion must be refused to c those who, having deserted their wives.... except for fornication, marry others without proof ol adultery >. This decree might be understood, as by HEFELE-DULARC, o. c., Ill, p.ig4,in the sense that it does not absolve from all blame those who marry again, after the wife's infidelity has been proved, but that they must, nevertheless, be dealt with more gently than the others, as the Fathers of the Council of Elvira had already declared. We meet also with decrees that authorise the repudiation of an adulterous wife and forbid her ever to marry again, while they permit the re-marriage of the innocent party. Once more, they have a meaning that squares with the true teaching, and may be understood as inflicting a penalty upon the guilty and sparing the innocent ; i.e., the adulterous wife is forbidden to marry again, at any time whatever, while the husband is left free to do so, when no obstacle bars the way, and, in particular after the death of his wife. Consult MOY, o. c., p. 489, who adduces several parallel passages in support of this view. 3. In this way also BOCKEXHOFF, o. c., p. 47 s , explains the canons of the Coun- cils of Verberie and Compiegne, of which we have just spoken above. 356 THE INDISSOLUBILITY OF MARRIAGE or involve only a declaration of nullity and not a dissolution of the bond. (See above, n 197). 3. from the 2. The difficulty offered by certain passages in the Fathers and ecclcsias- writings of focal writers is to be solved in a similar way. The ancient writings are searched for objections against the Catholic teaching, and some Catholic writers seem to lend themselves only too readily to the work of our op- ponents. Passages are alleged against us from Hermas ( J ), Tertullian ( J ), Lactantius ( 3 ), St. Hilary () St. Basil ( 5 ), St. Epiphanius ( 6 ), St. Asterius of Amasea ( 7 ), St. Cyril of Alexandria ( 8 ), Theodoretus of Cyr ( 9 ), and Pseudo- Ambrose ( 10 ). But yet once more in all this cloud of witnesses, it is hard to find one who is clearly and incontestably in favour of dissolubility ( 1J ), while innumerable passages support the impugned 1. Mandatum IV, cap. I. Cf. FUNCK, Patres Apostolici, p. 391 ss. See MOY, p. II SS. 2. Adversus Marcionem, 1. IV, cap. 34, Ed. CEhler, 1854. 3. Instit. divin., VI, 23, Migne, VI, col. 720. 4. Comment, in Mt., c. IV, n 22/ 5. Hilarii Opera, Ed. Maurini, Paris, 1693, col. 627. 5. Epistola ad Amphilochiutn, 188 (the first among the canonical), cap. 9, Migne, XXXII, col. 678. 6. Adversus hacreses, 1. II, torn. I, Haer.59 (39), c. 4, Migne, XLI, col. 1025- 1026. 7. Homilia, in Matth., see n 198. 8. Fragment of Commentarius in Matth., in cap. V, 31, and De Adorations et cultu inspiritu etveritate, 1. VIII, in Migne, respectively t. LXXII, col. 380, and LXVIII, col. 584. 9. Gruecarum affectionum curatio, Sermo IX, Migne, LXXXIII, col. 1053. 10. Comment, in I. Cor., VII, Migne, XVIII, col. 218. See BARDENHEWER, o. c., p. 378 and 384, who remarks that the work is that of an uncertain author, who probably wrote at Rome between the years 370 and 375 ; others however regard him as a writer of the School of Antioch. See OTT, o c., p. 98. 11. As regards the evidence of Hermas, Lactantius, St. Asterius and St. Hilary, we refer the reader to the texts quoted ; an attentive perusal of them will show the justice of the claim that they are in accord with the common teaching. FREISEN, o. c., p. 770, is too free in calling in question the opinion of Hermas (as if he had not aimed at the case of adultery), of which Geffcken himself says, o. c., p. 19, : klarer als Hermas es hier thut, kann man sich wohl kaum ausdriick- en . It may, however, be objected that Hermas seems to say that re-marriage is only forbidden to separated parties, in order that the guilty party may have time to come to a better mind J thence not a few, as GEFFCKEN, 1. c., and also FAHRNER, o. c., p. 18, share the opinion that Hermas permits re-marriage in case of there being no longer any hope of coming to a better mind ; against whom rightly argues OTT, o. c., p. 10 s. There are also writers, like ESMEIN, 1. c., who attack the words of St. Hilary ; we would remind them of the note of THE INDISSOLUBILITY OF MARRIAGE 357 doctrine. Among all the dogmas of the Church none, we may say, has been defended with greater uniformity and consistency than the principle the Maurini on the passage in question : Those who would deduce from this passage that St. Hilary permits not only the repudiation of a wife guilty of adultery, but also the taking of another wife, make him say what he neither says nor thinks, for he does but free the husband from the company of his adulterous wife . Concerning the opinion of Tertullian, many hold that it is contrary to the law of indissolubility, or at least doubtful : as ESMEIN, o. c., II, p. 49 ; QUINQUET DE MONJOUR, o. c., p. 12 ; DUMAS, o. c., p. 23 ; DESSAULES, o. c., p. 202 ; POTHIBR, o. c., n 489 ; TURMEL, Hist, de la theologie positive, Paris, I, p. 157 s. and 349 ; as also OTT, o. c., p. 22-29 ( see a ls VANDERVELDE, Annales parlement. Beiges, 1904-1905, p. 108). In truth the words of Tertullian are somewhat obscure ; but on a close examination they will be found to be in accord with the strict teaching. The object of the passage in which we are interested is to show that there is no contradiction between the teaching of Christ and that of Moses, with relation to repudiation and divorce. Tertullian declares that on the one hand Moses did not grant divorce absolutely and without limitation, and that on the other hand Christ did not absolutely forbid it. Our Lord, he says, < now prohibited divorce conditionally, namely, to those who put away their wife /or the purpose of taking another . In other words, Christ permitted divorce and separation on condition that the parties remain without marrying again ; and Tertullian then concludes : lf He conditionally prohibited the repudiation of the wife, He did not prohibit it entirely ; He permitted it where the reason for which it was prohibited did not exist , i.e., He permitted divorce where it is not intended to marry again. Tertul- lian goes on to insist on the restriction put on the permitting of divorce, that is to say, on the absence of re-marriage : . he who shall put away his wife, He (Christ) says, and shall take another, is guilty of adultery, and he who marries her that is put away by her husband, is equally an adulterer, that is, if he marries a woman put away by her husband contrary to law, I mean with the intention of taking another , fqui dimiserit, inquit (Christus), uxorem et aliam duxerit, adulterium commisit, et qui a marito dimissam duxerit, aeque adulter est, ex eadem utique causa dimissam qua non licet dimitti, ut alia ducatur ; illicite enim dimissam pro indimissa ducens adulter est;manet enim matrimonium,quod non rite diremptum est ; manente matrimonio, nubere adulterium est). It would indeed have been surprising if the rigorist Tertullian had shown laxity in this matter, the more so, as at the time of writing his Adversus Marcionem (207-208) he was already inclined to Montanism. Moreover, in his book De Pa- tientia, written a little before (200-206), he plainly supports the law of indissolu- bility. On the other hand, we must recognise the fact that many Fathers and Eastern ecclesiastical writers, notably St Basil, St. EpipJianius, Theodoret, Cyril of Alexandria, St. Asterius and A mbrosiaster (if the last named can be counted among Easterns), in view of the customs of their time, which were very indul- 358 THE INDISSOLUBILITY OF MARRIAGE of the indissolubility of the marriage bond, notwithstanding its severity and the relative ambiguity of the Gospel text. Note. In the whole of this article we have confined ourselves strictly to the indissolubility of marriage with regard to the conjugal bond ; but above, in n os 132 s., we have determined the limits and lawfulness of simple separation, the bond itself remaining intact. Corollary. From all that has gone before it follows, as a conse- quence, that only marriage rattim et consummatum is, under all conditions, absolutely indissoluble ; to it alone, as Alexander III says, c. 7, X, III, 32, are the words of Our Lord fully applicable : it is not lawful for the husband to put away his wife. Without doubt legitimate marriage (whether consummated or not) is not dissoluble so long as both the parties remain tmbaptized ; but this is not due to the inherent stability of such bond, nor, strictly speaking, to the want of the requisite power on the part of the Church. The reason of it is that the unbaptized are not subjects of the Church, and consequently their marriages do not fall within its purview. This is why the Church can do nothing in the matter. The State also is unable to do anything, since the power of dissolving the marriage bond has not been delegated to it. In a word, such a bond has not an absolute indissolubility, but only one that is relative to the state of infidelity of the two parties. gent towards husbands whose wives were guilty of adultery, inculcate much less strongly the law of strict indissolubility, and even at times, seem opposed to it. We doubt, however, if any one of them, apart from Ambrosiaster, openly declares, as a point of orthodox doctrine, that marriage may be dissolved quoad vinculum on account of adultery. In particular, as concerns St Basil and St. Epi- phanius, some Catholic writers, and among them FAHRNER, o. c., I, p. 31 s. ; SCHERER,O. c., p. 543 s. ' FREisEN, o. c., p. 77* ; TuRMBL.o. c., I ; p. 157, and PHI- LIPPE in the Canon. Contemp., 1902, p. 207, go too far, and do not give sufficient attention to the explanations offered by other writers, which at least exempt the texts in question from the charge of being in evident opposition to the Ca- tholic teaching. See, e. g., PERRONE, o. c., Ill, p. 263 ss. and p. 278 ss. ; AMORT, Demonstrate critica religionis catholicae, P. I, qu. 15; VACANT-MANGENOT, Dictior,- naire, under Adultere, p. 481 s ; POIRTALIE and CONDAMIN, Bulletin de Litterature rtligieuse (Toulouse), 1900, p. 16 ; DENNER, o. c., p. 47-56 and 64-68, and especially OTT, o. c., pp. 54-61 and 64-67. THE INDISSOLUBILITY OF MARRIAGE 359 Scholion I. The indissolubility of marriage before the schis- matic Eastern Church and before the Protestant Church. 1080. A. The ORIENTAL SCHISMATICS (') have generally adopted the causes of Discipline of divorce admitted by Justinian, in the Novella 117 (see n 2O3a). These tic and causes are divided into two categories : the first affording ground for divorce Protestant cum damno, i. e., with a penalty against the guilty party ; and the second, permitting divorce bona gratia, i. e., without the addition of a penalty. l.The following are the causes of divorce cum damno : treason against the fatherland (Hochverrath), attempt on the life of the partner, adultery and partial infidelities giving rise to suspicion, premeditated abortion, the Casus Apostoli, and spiritual relationship supervening after the marriage on the ground of sponsorship. 2. The causes of divorce bona gratia are : impotency anterior to the marriage and proved by an experience of three years, imprisonment of the partner, his secret flight, servitude, insanity, or complete imbecility, leprosy, religious profession, the husband's elevation to the episcopacy. B. As regards PROTESTANTS (*) : most of them ( 3 ) admit as legitimate. 1. Cf. ZHISHMAN, o. c., p., 729-783 ; VERING, o. c., p. 941 s.; WATKINS, o. c., p. 347-362. As regards the United Greeks : since the doctrine of the indissolubility of marriage ratum et consummation is an article of faith, they must necessarily admit it equally with Roman Catholics. See above, n 197 ; VERING, o. c., p-943 J SUARN, Praxis missionarii in Oriente servata, Parisiis, 1911, n 162. 2. Cf. ROEDENBECK, O. C., p. 112 S. ; VERING, O. C., p. 943 S. ', OXT, O. C., p. 157 SS 3. What we have said has special reference to German and Swiss Protestants. In the Anglican church the dissolution of marriage by divorce a vinculo has not been expressly, and, so to speak, officially admitted. Even under the Act of 1857, which permits civil divorce on the ground of adultery, according to the resolutions passed in the Lambeth Conference of 1888 (GEARY, o. c., p. 579 ss.), and of 1908 (WiLKiNS, o. c., p. 164 ss.), the right of the guilty party to marry again, after a civil divorce has been obtained, is not re- cognised, since such a marriage is regarded as contrary to the divine law ; and, if the innocent party is not strictly forbidden to marry again, and the reli- gious solemnization of such a marriage is not rigorously refused, such a refusal is nevertheless recommended. Cf. also WATKINS, o. c., p. 426-430, and compare with HOWARD, o. c., II, p. 71-85, and 102-112 ; GORE, o. c., p. 32 ss. Indeed, the Reformation of ecclesiastical laws, issued in 1552 and offered for ecclesiastical sanction, set aside separation and admitted divorce for various causes : as a matter of fact, before the Act of 1857, divorce a vinculo was occasionally granted in particular cases by means of a private parliamentary bill ; but the said reform never became a part of the ecclesiastical law, and the concessions had reference only to particular cases, and were granted outside the provisions of the law. Cf. Encyclop. Britannica, t. VIII, p. 338. s. Fc r the attitude of the various Protestant churches in the United States 360 THE INDISSOLUBILITY OF MARRIAGE causes of divorce: adultery, according to the wrong interpretation of Matth., XIX ; culpable desertion of the partner, in accordance with the Pauline privilege misunderstood and amplified. Besides these, in different sects and countries, various other grounds of divorce have obtained recognition, such as attempt upon the partner's life, cruelty, drunkenness etc. Some authors, like REELING, o. c., p. 41-48, admit and defend all these causes of divorce indiscriminately (') ; see also FAUREY, o. c., p. 117-123 ; HOWARD, o. c., II, p. 60 ss. Others are less broad in their views ; thus ROEDENBECK, o. c., p. H2 s., maintains that rightfully divorce is only permissible in the case of adultery and in the casus Apostoli, understood in the Catholic sense, so that, according to him, the marriage of Christians is susceptible of dissolution only on the ground of adultery. Scholion II. The advantages of Marriage. 2026. The thru ad- We have explained above, in section 3, that the essential and constituent vantages of e i emen tg of Christian marriage may be reduced to three points. The first marriage. two concern the natural part that marriage plays. They are the relation that it bears to the procreation and good education of children, and conse- quently the obligation to conjugal fidelity. The third point concerns marri- age as a sacrament ; that is the sacramental dignity together with the indis- solubility of the marriage bond, which is sanctioned and established by the sacrament in a way that is altogether unique. These three elements are called the advantages of marriage, in that they make lawful the conjugal union and act, which in their nature involve a certain imperfection ( 2 ). a/ They make marriage itself lawful : from the natural point of view this is effected by the above mentioned relation to the prospective offspring, and also by the obligation of fidelity that flows therefrom. From the super- natural point of view, it is the result of the sacramental dignity accruing to it. b/ The act or use of marriage is justified and ennobled thereby, both in consequence of the end proposed, and the intention of the married par- of America with regard to divorce, their legislation in this matter, and their attempts to restrict the frequency of divorce, cf. LICHTENBERGER, o. c., chap. VIII, p. 121 SS. 1. Luther himself admitted divorce in the case of the refusal of the marriage debt, looking upon such refusal as equivalent to wilful desertion. Cf. the famous sermon of 1522, in BOSSUBT, Histoire des variations des eglises protestantes, Paris, 1688, Livre VI, p. 299 ss. ; HOWARD, o. c., p. 62 s. ; GRISAR. Luther, II, p. 208 ss. 2. In conjunctione viri et mulieris rationis jactura accidit, turn quia propter vehementiam delectationis absorbetur ratio, ut non possit aliquid intelligere in ipsa... ; turn etiam propter tribulationem carnis, quam oportet tales sustinere ex solicitudine temporalium . S. THOMAS, Suppl., qu-49, art. i. CIVIL DIVORCE 361 ties, when keeping in view either the procreation of children or the fulfil- ment of their duty of fidelity to one another ('). Such is the meaning of the common formula : the advantages of marriage are threefold : offspring (or the good of the offspring), fidelity and the sacrament ; the word offspring signifies the relation that marriage has to procreation, while the word faith or fidelity is to be taken in the sense of obligation to fidelity. Besides these three, there are no other essential advantages of marriage. This follows from the considerations that have been developed above. Cf. BUCCERONI, in the Anal. Eccles., 1901, p. 319 s. St. THOMAS, Supplem. qu. 49, art. 3, shows which of these three fundamental advantages holds the first place. SUPPLEMENT. CIVIL DIVORCE. PARAGRAPH I. HISTORICAL NOTICE. I. DIVORCE IN ROMAN LAW ( 2 ). 203a. According to ancient Roman Law, marriage in manu could not be Divorce in dissolved by the wife, but only by the husband. It was lawful for the R man Law. husband to annul the contract, in marriage by purchase and by use, on account of various charges against his wife, especially on account of adultery, drunkenness, and witchcraft. In marriage by confarreation also the original indissolubility gave place in turn to divorce, for the same reasons, by means of diffarreatio ( 7i ). The formalities to be observed in the dissolution of a marriage, except in the case of diffareatio ? , consisted at first, but not under pain of nullity, in taking the opinion and advice of friends ; later, under the 1. These two advantages, viz., the relation to procreation and the mutual obli- gation to fidelity may be regarded as they are in habitu, or as they are in actuuli intcntione. < Secundum quod sunt in habitu, faciunt matrimonium honestum..., ita etiam secundum quod sunt in actuali intentione, faciunt actum matrimonii honestum . As regards the third advantage, the sacrament, non pertinet ad usum matrimonii, sed ad essentiam ipsius... ; unde facit ipsum matrimonium honestum, non autem actum ejus, ut per hoc actus ejus absque peccato redda- tur . St. THOMAS, Supplem., qu. 49, art. 5. 2. For the ancient customs and legal provisions of other nations, cf. VILLIEN, 1. c., V Divorce, col. 1456 s. 3. Cf. Darenberg et Saglio, o. c., II, V Divortium, p. 321 ss. 362 CIVIL DIVORCE Emperor Augustus, the Julian Law prescribed that the party seeking divorce should have the support of seven witnesses ; and that apparently was required for the validity of the act ; but no intervention of the public authority was required : the divorce was and remained an act of private right. Marriage sine manu, already in vogue before the Christian era, was liable to dissolution by either of the parties. Its dissolubility by degrees so increas- ed that it came to be dissolved not only by mutual consent, but even by the wish or mere whim of one of the parties. The law still required, in the lat- ter case, the existence of a just cause juridically allowed ; but even if accom- plished without cause, the divorce secured its effects, and, at most, was liable to certain penalties. This licence communicated itself little by little to marriage in manu, so that, except, perhaps, in the case of marriage by confarreatio, persons were divorced as easily as they were married, and the number of divorces increas- ed beyond measure. In the early days of the Republic, divorced persons were the exception ; but from the time of the Empire the evil spread in all directions, favoured by the corruption of morals. This historical fact is clear- ly established by documents and evidence quoted by CAMBIER, o. c., p. 44 ss. ; COULON, Divorce, p. 54 ss. ; GLASSON, o. c., p. 175 ss. ; LEFEBVRE, o. c.,p. I33SS.O). Later on the Christian emperors strove, as far as circumstances permit- ted, to revise the laws in accordance with the principles of the Church. Constantine, in 331, restricted the number of legal causes for divorce. As against the wife, he admitted adultery, witchcraft, and what was called officium conciliatricis (huppelei) ; as against the husband, homicide, sorcery, and the violation of a burial-place. Anyone who repudiated his partner for other causes was liable to severe penalties, and could not remarry. In later times, however, popular feeling, opposed to these reforms, forced the hands of authority, especially of Theodosius II, who found himself compelled to sanction several new causes of repudiation, and to withdraw the absolute prohibition of re-marriage. Justinian established afresh stricter limits ( 2 ),and moreover, abrogated even divorce by mutual consent ( 5 ), except in the case of the religious profession of both parties ; but his successor did not main- tain the latter law ( 4 ). 1. Everyone knows the stinging remark of Seneca regarding the Roman matrons who counted their years by the number of their husbands . 2. FAHRNER, o. c., p. 28 s.; GEFFCKEN, o. c., p. 25 s. ; see also above n 202a. 3. Novella 117, ch. 10. 4. Concerning the fate of divorce in the sequel, and the legislation of the Emperors of the East, see WATKINS, o. c., p. 35033. CIVIL DIVORCE 363 II. DIVORCE IN ANCIENT GERMANIC LAW. 203b. Notwithstanding the purity of morals of the ancient Germans, whose Divorce in praises Tacitus speaks, authors are agreed in saying that they practised ' divorce. Among them the husband had the legal right to repudiate his wife, practically at will, on condition that he made her parents certain compensation ; on the other hand, a correlative right on the part of the wife was not recognised (') This latitude allowed to the husband, and to the husband only, is easily understood if we bear in mind the mental atti- tude of this nation with regard to the nature of marriage, and to the autho- rity of the husband over his wife. From the V th century onwards the Germans, living in the midst of Gallo- Roman races, whose territory they had invaded, began to draw up laws and codes concerning, at one time, their own people and the Gallo-Romans separately, at another, concerning the whole population without distinction. Thus the Visigoths and the Burgundians had their Roman law for their Roman subjects, along with their own Barbarian law (Lex Barbara) for the Germans only ; whereas the edict of Theodoric regulated at the same time the Ostrogoths and the Romans ( J ). All these laws, even the Barbarian laws, clearly bear the stamp of the Christian religion as well as of Roman law ; they take into account chiefly the provisions of the code of Theodosius, adapted to the customs of the locality and to Catholic ideas. In particular with regard to divorce : 1. The Roman laws, enacted apparently ( 3 ) by the Burgundians and by the Visigoths (*), following the example of the Christian em- perors, still permit divorce by mutual consent ; but as for divorce by unilateral option, whether on the part of the husband or on the part of the wife, they restrict it practically to the causes established by Constantine, and forbid re-marriage to any who repudiate their partners for any other reasons. Moreover, the law established by the Visigoths expressly enacts, under the influence of Christian ideas, that marriage cannot be dissolved in consequence of insanity ( 5 ). 2. The Barbarian laws bear still further traces of the efforts of the 1. The husband might commit adultery, provided it was not with a married woman, whereas the adultery of the wife was punished by an ignominious death. 2. VIOLLET, Histoire,,.. Livre I, 4^ Partie, may be consulted with profit on the subject of these Roman and Barbarian laws, their origin and their connection. 3. FAHRNER, o. c., p. 51 ; LONING, o. c., II, p. 613 s. 4. The Roman law of the Visigoths is generally called \heBreviarium Alarict, because it is a recapitulation of the Theodosian code, published by Alaric II in the year 506. 5. FRBISEN, o. c., p. 778. 364 CIVIL DIVORCE Church to render the civil law more and more conformable with the principle of indissolubility. Divorce by mutual consent, upheld seemingly in most of the codes of this period, is replaced in the law of the Visigoths, from the middle of the VII th century, by the law of the Church, permitting separation on account of religious profession, the marriage tie remaining intact. As for divorce by unilateral option, the Barbarian law of the Burgundians (Loi Gombette), dating from the end of the V th century, commences, in accordance with Germanic custom, by forbidding the wife to abandon her husband, and that under pain of death by suffocation ; it permits the husband to abandon his wife, but only for certain well defined causes, and on condition that compensation be made to the injured party. As in the Roman law, these causes are adultery, witchcraft, and the violation of a burial-place. Furthermore, a later enactment, made under the increasingly effective influence of the Church towards lessening the number of divorces, provides that the husband who repu- diates his wife without legal cause, shall be compelled to quit his house and cede all his belongings to the repudiated wife and to her children. The Barbarian law of the Visigoths, in its original wording, admitted perhaps a greater number of causes for repudiation on the part of the husband ; but the wording dating from the latter half of the VII th century recognises only the case of the wife's adultery, and does not allow her to abandon her husband, unless he be guilty of sodomy, or wishes to expose her to prostitution ; even then it forbids her to remarry before the death of her husband. Such are the Barbarian laws which practically settle the question of divorce. As we have said, they are already impregnated by Christian ideas ; nevertheless it is only from the VII th or the VIII th century that they are really moulded by the latter. As to the laws of other Germanic tribes, they deal little or not at all with divorce. Thus the Prankish legislation,the Salic and Ripuarian laws, do not mention it before the VII th century. But it may be argued from various indications that the Franks, like the rest of the Germans, recognised divorce, both by mutual consent and by unilateral option, for determined causes ('). III. ClVIL DIVORCE FROM THE VIII th CENTURY TO THE PRESENT DAY. Before the ^" Be ^ ore *^ e French Revolution. French Revo- An energetic reaction against divorce took place during the rule of divorce was l ^ e Carlovingians, so that by the time of Charlemagne this abuse had absolutely prohibited. i- Seethe provisions of this ancient Germanic law developed in LONING, o. c., II, pp. 617-627; GEFFCKEN, o. c., pp. 32-52 ; FARHNER, o. c., pp. 48-59; FREISEN, o, c., pp. 776-781. CIVIL DIVORCE 365 entirely disappeared from legislation. It had not however, on that account, disappeared from custom,especially as several of the penitentials of the VII th and VIII th centuries were too much in its favour. But as matrimonial juris- diction passed by degrees into the hands of ecclesiastical judges, customs were gradually reformed. In France as early as the XI th century, princi- ples and conduct in this matter were in entire accord. The stages of this evolution may be followed in the excellent account given by FAHRNER, o. c., pp. 71-120 ; cf. GEFCKEN, o. c., p. 52-67. The civil laws remained in agreement with Catholic doctrine down to the French Revolution, even after the State had begun to usurp the jurisdiction over, and to make regulations regarding marriage, as we shall show in n 226. Even then it continued to safeguard thoroughly the bond of consummated marriage and permitted only separation from bed and board, in accordance with Canon law, excepting dissolution of non-con- summated marriage in case of solemn religious profession (*). B. Before the introduction of the Code Napoleon. On the 2o th of September 1792, under the aegis of the revolutionary Law of civil Republic, the law of divorce, and at the same time civil marriage, (*) troduced'in were introduced by the Legislative Assembly ( 3 ). According to the mind of France in the pseudo-legislators (*), the power of divorce was a consequence of the 1. The Pauline privilege was not introduced into French law ; POTHIER, o. c., n os 500-505, cites an edict of Parliament, made Jan. 2, 1758, declaring there was no room for dissolution of marriage in a case under consideration, although in it the conditions of the privilege were verified. 2. We shall show later, on what grounds civil marriage was instituted, in con- sequence of the provision of the Constitution of 1791, tit. II, art. 7, which, after declaring that The law considers marriage simply as a civil contract , decreed : The legislature will establish, for all inhabitants without distinction, the manner in which births, marriages and deaths shall be verified . 3. MARTIN, o. c., pp. 49-64, and CRUPPI, o. c., ch. 2, expose the artifices resort- ed to by the favourers of divorce to arouse public opinion, and to persuade the legislators to vote for the law. Their subversive theory already had precursors, whose names are given by RIBEROLLES, o. c., p. 8 s. 4. Objectively speaking, divorce is not of its own nature a logical conse- quence of the proclamation of civil marriage. Abstracting from the Sacrament, if we consider marriage merely as a natural and civil contract, governed solely by the civil authority, it does not lose its character of indissolubility, as we have seen above ; but the idea and the intention of the legislators were other- wise. Nevertheless there is a certain objective connection in the nature of things. The very idea of civil marriage weakened, to a perceptible degree, this notion of indissolubility. In this respect we may say with LEMAIRE, o. c., p. 159 s. : Civil marriage was the cause of the establishment of divorce in France, in this sense, that civil marriage, a weak conception, without the 366 CIVIL DIVORCE establishment of civil marriage ; in fact, considering marriage as a purely civil contract, they declared it voidable by nature, like other contracts. This is the opinion explicitly formulated by Leonard Robin, the promoter of the law ('), and clearly expressed in the very text of the decree (*). In the midst of popular distress and commotion,the law of divorce passed without any opposition, and it was drawn up in terms so wide that they authorised the breaking of the contract, not only for a multitude of special causes ( 3 ), but also by mutual consent ( 4 ), and even by the will of one of the parties, on the simple allegation of incompatibility of temper or character ( 5 ). Moreover, art. 7 declared : For the future no corporal separation can be granted ; married persons cannot be disunited except by divorce ( 6 ). and success- This is not all ; however wide the breach was already, it was soon pli- w id e ned still more,and the necessary formalities were still further simplified power of resistance, took the place of religious marriage, a strong conception, which would have assured victory... The religious conception of marriage, solidly enshrined in an honoured and legal religious marriage, that is what was wanted ; that is what we ought to have been able to oppose to divorce J that is the only remedy that could have saved us from its institution as a general law- and from its daily more rapid acclimatisation in our midst . We may add to these words the remark of LAURENT, Avant-Projet, t. II, p. 2 : I do not say that one cannot, without being a Catholic, maintain the indis- solubility of marriage ; nevertheless, it is certain that the religious idea plays a leading part in this discussion . Cf also LICHTENBERGER, o. c., p. 62 s. i. Cf. LEMAIRE, o. c., p. 104. 2- Ibid., p. 103, where the author remarks that many speakers condemned as useless the decree permitting divorce, because, they said, the principle was already contained in the very proclamation of civil marriage. Among others, Gaudet exclaimed : I am opposed to it (i. e. to the declaration of the principle of divorce in the law) because it is there already . 3. Art. 4, par. i : Each of the parties can equally secure pronouncement of divorce for determined reasons, viz. i. lunacy, insanity, or mania of one of the parties ; 2. sentence to punishment affecting the person or honour of one or other; 3. crimes, cruelty, or grievous injury of one against the other ; 4. noto- rious immorality ; 5. desertion of the wife by the husband or of the husband by the wife for two years at least ; 7. emigration in cases provided for in the law, especially by the decree of April 8th, ijg 2 . COULON, Div. et sep., p. 240. 4. Art. 2 : Divorce takes place by the mutual consent of the parties >. 5- Art. 3. 6. See COULON, o. c., p. 174-179, on the formalities then required to obtain a divorce, and on the legal effects of the latter. Notice that the divorced parties were free to renew their marriage. Cf. DUMAS, o. c., p. 61 ss. CIVIL DIVORCE 367 by the decrees of Dec. 28, 1793 (8 Nivose, an II), April 23-28, 1794, and Oct. 15, 1794 (4-9 Floreal, anil, and 24 Vendemiaire, an III) (') But in 1795 began a reaction against the abuses of divorce (*). On the 2 nd of August of that year (15 Thermidor, an III), the last-mentioned decrees were abrogated, and only the law of 1792 remained provisionally in force. Even this was slightly modified by the law of Sept. 17, 1797, particu- larly with regard to the formalities required to obtain a divorce for incom- patibility of temper ( 3 ). Nevertheless the evil was only to some extent checked (*). 204. C. From the drawing up of the Code Napoleon to the separa- Sanctioned tion of Belgium from France (1814-1815). b^t Divorce, as well as civil marriage, was admitted in the Civil Code, Code, promulgated March 24, 1804, and designated under the title of the Code Napoleon, from Sept. 3, 1807. Nevertheless, it was recognised, not as a logical consequence of the idea of civil marriage ( 5 ), but as a sanction of 1. COULON, o. c., p. 180 s., cf. text quoted p. 2503. See also GLASSON, o. c., p. 200 s. ; DUMAS, o. c., p. 63 ss. ; RIBEROLLES, o. c., p. 30 ss. 2. According to GLASSON, o. c., p. 261, . In Paris, during the 21 months that followed the promulgation of the law of 1792, the courts pronounced 5994 divor- ces. In the first three months of 1793 the number of divorces equalled that of marriages . Consult, however, MARTIN, o. c , p. 1573. This enormous number disturbed many people : The law of divorce, said Mailbe, is a gambling tariff rather than a law. At the present moment marriage is merely a matter of specu- lation. A wife is taken like a parcel of goods, with an eye to the profits that may accrue ; and she is got rid of when she ceases to be profitable . Belleville adds : We must stop this marketing in human flesh, which the abuse of divorce has introduced into society. We must hasten to remove the monstrous proviso that permits incompatibility of temper to be alleged*. COULON, o. c., p. 183 s. Cf. COMBIER, o. c. p. 445 s ; JOLY, La Crise du Mariage, 1. c., p. 127. 3. Cf. COULON, o. c., pp 182-188. As often as divorce is demanded on this ground, the civil officer shall be able to pronounce a divorce only after six months from the date of the last of the three acts of non-conciliation required by articles 8,10 and n of the law of Sept. 28, 1792 . Portalis had demanded in vain the abrogation of the plea of incompatibility of temper, as RIBEROLLES notes, o. c.,p.45s. 4. GLASSON, o.c. , p. 261 : In spite of the reaction of an III, the abuse continued. In the single month of Piuviose, an III, there were (in Paris) 223 divorces, of which 205 were demanded by wives for incompatibility of temper >. 5. On the contrary the legislator recognised that civil marriage, of its own nature, required the perpetuity and indissolubility of the marriage bond. Thus Savoic-Rollin, in his report made to the court in the session of 27 Ventose, an XI, proclaims that the purpose of marriage is that it should be perpetual , that 368 CIVIL DIVORCE liberty of worship ('), and principally as a necessary remedy for escaping still greater evils (*). This is why, as we shall see presently, the authors of the Code sought to diminish the number of causes for divorce, and to increase the formalities to be observed, in order to avoid abuses ( 3 ). Still they declared the rupture perpetual once it was accomplished, and thereby deprived the divorced parties of the means of resuming conjugal relations. Meanwhile, out of regard for Catholics ( 4 ), they sanctioned separation this is a principle universally recognised . LOCRE, o.c., V, p. 317. In the same way Gillet, orateur du tribunal, at the session of the Corps Legislatif, 30 Ventose, an XI, declares : c Permanence is its state, perpetuity its vow, indisso- lubility between the parties its natural condition . LOCRE, 1. c., p. 378. TREIL- HARD also in his Expose des motifs says : It is a point equally incontestable, that of all contracts there is not one in which the intention and the vow of perpetuity on the part of the contractors is more to be desired >. LOCRE, 1. c., p. 291. 1. The question of divorce ought to be so decided as not to burden any conscience, or to fetter any liberty , so that no one ought to have recourse to it against his religion, and that no one ought to be excluded from it, if his religion permits it. Treilhard (LOCRE, 1. c., p. 291). Portalis speaks in the same way (LOCRE, o. c., p. 49 and 139). 2. Divorce itself cannot be a good ; it is the remedy of an evil >. These too are the words of Treilhard (LocRE. o. c., p. 292), when denouncing the passions and the corruption of morals that require the dissolubility of marriage, in cases where no other remedy is available. He himself recognises that divorce ought to be done away with, if the problem were susceptible of any other solution ; that is to say, if t< we could find the means of so perfectly arranging conjugal unions, of so strongly inspiring the parties with the sense and the love of their respective duties, that we might flatter ourselves that they would not subsequently withdraw from them, and that they would no longer compel us to be witnesses of those atrocious scenes, those revolting scandals which so imperatively require the separation of the parties . Not seeing any other way of escape, he at first came to the conclusion that either divorce or separation is a necessity ; afterwards, seeing the insufficiency of the latter, he admitted the necessity of divorce. See also what he says at the end of his Expose des motifs , as well as the discourse of Gillet, 1. c., p. 378. 3. Treilhard (LocRE, o. c., p. 397) ' The formalities, the proofs with which divorce will be surrounded, may prevent abuse : let us hope the number of divorced persons will not be great . 4. After attempting to prove the necessity of divorce, Treilhard continues in these terms (LocRE, o. c., p. 398) : The social pact guarantees to all French people the liberty of their belief. Tender consciences may regard the indissolu- biiity of marriage as an imperative precept. If divorce were the only remedy offered to unhappy spouses, would not citizens be faced with the cruel alter- native, either of being false to their belief, or of sinking under a yoke that they CIVIL DIVORCE 369 side by side with divorce, although this had not been inserted in the pro- visional text of the law ('). As to the legal causes for divorce and separation : 1. The civil Code permitted divorce : a/ For determined reasons, viz. for adultery of the wife, or even of the husband, if he claimed to keep his concubine under the same roof as his wife (art. 229 and 230) ; also for excesses, cruelty or grievous injuries (art. 231) ; and for condemnation to a penalty involving disgrace fart. 232). b/ By mutual consent. Far from understanding this consent in the sense of the law of 1792, for which incompatibility of temper sufficed, or in the sense of an agreement based on the mere fancy of the parties (*), it exact- ed, on the contrary, a mutual, lasting expression of will, so expressed, and fulfilling so many conditions and formalities, that it constituted a necessary presumption (juris et de jure) of the existence of a major yet secret motive for separation, and one that ought to remain secret. This is clearly insinuated by art. 223 ( 3 ). can no longer bear ?... While permitting divorce, the law leaves separation still available. The party that has the right to complain may formulate either demand at choice ; thus no man's opinion is shackled, and full liberty in this respect is maintained . See also the words of Portalis (LocRE, o. c., p. 133 and 139). 1. COULON, o. c., p. 191 and 192 : The system adopted by the commission (charged with the preparation of the projected law) did not re-establish separa- tion. The discussion ended in a compromise between the two opinions , of which one was in favour only of divorce, and the other in favour only of separa- tion. 2. Already in 1796, before the Legislative Assembly, Regnault had severely censured the laxity of the law of 1792 : What is there more immoral than to permit a man to change his wife as he changes his coat, and a wife to change her husband as she changes her hat ? Is not this an attack on the dignity of marriage ? Does not this make marriage the mere plaything of caprice and levity, and change it into a successive concubinage ? > Treilhard (LOCRE, o.c.,p. 29 s.) equally condemns divorce by mere mutual consent, and avows that, though the will of the contracting parties sufficed to contract the marriage, it does not suffice to dissolve it, as if there were question of a contract in which only the parties themselves are interested : Marriage is not solely in the interest of the persons who contract it. It forms a bond between two families, and it creates in society a new family, that may itself become the parent-stock of many other families. The citizen who marries becomes a husband ; he will become a father. It is thus that new relationships are established which the parties are not free to break at will . 3. The mutual and persevering consent of the parties, expressed in the manner prescribed by the law, under the conditions and after the proofs that it 24 370 CIVIL DIVORCE c/ In the case of art. 310 : When the separation, pronounced for any other reason except the adultery of the wife, has lasted more than three months, the party that was originally the defendant may claim a divorce from the court, which will grant it, if the original plaintiff, present or duly summoned, does not consent to put an end to the separation ('). 2. Separation, by virtue of art. 306, might be obtained in cases in which divorce for determined causes is permitted >, consequently only for the causes described under letter a/, mutual consent being excluded. D. After the separation of Belgium from France. 1 . In France. 205. Abrogated Shortly after the happy re-establishment of the monarchy, i. e. in the - y ear I ^ 1 ^' t ^ ie ^ aw f divorce was abrogated by an almost unanimous vote, wus'reintro- aQ d its abrogation proclaimed on the 8 th of May (*). This state of things ducedin1884. remained till 1884, in spite of the repeated efforts of the advocates of divor- ce.Several times they succeeded in getting the Chambers to adopt a project favouring their views, but each time the Senate rejected it. See COULON, o. c., p. 229 ss. But in 1884, thanks mainly to Naquet, divorce was legally sanctioned anew by the law of the 27 th of July, and afterwards slightly modified by that of the 20 th of April 1886. See COULON, o.c., p. 275 ss.; cf. p. 235 ss.( 3 ) ; determines, will prove sufficiently that life in common is unbearable to them, and that there exists in their regard a peremptory cause for divorce . See also the words of Treilhard (LOCRE, o.c., 300 s.), as well as those of Napoleon (p. 69) : a Mutual consent is not the cause of divorce, but a sign that divorce has become necessary >. 1. < It would not be just that the party who has chosen the way of separation, as more conformable with his or her belief, should keep the other party, whose belief may not be the same, under a perpetual disability to contract a fresh marriage. The liberty, which the Constitution guarantees to all, would then be violated in the person of one of the parties. It was necessary therefore to authorize the latter, after a certain interval, to claim that the separation should be converted into a divorce, if the party who had caused the separation to be pronounced, did not consent to put an end to it. Thus two interests equally sacred have been, as far as possible, reconciled, the security of the parties on the one hand, and religious liberty on the other. Trtilhard (LocRE, o. c., p. 298 s.). 2. Cf. LAURENT, Avant-Projet, II, p. 7 ss. ; LOCRE, o. c., p. 240 ss. 3. The law of 1884 no longer permits divorce by mutual consent. The adultery of the husband, even without concubinage, becomes an additional cause of rup- ture. By virtue of art. 295, the separated parties are not prohibited, except in one instance, from re-establishing their union. Art. 310 is so modified that, after three years of separation, divorce may (not must) be substituted for it, whereas the Civil Code declared the sentence of dissolution absolute at the demand of CIVIL DIVORCE 371 the original provision of art. 306 concerning separation was re- tained ('). Since then, the abuse of divorce has increased day by day (*), and with it the tendency to widen more and more the legal way to it ( 3 ). There is, however, nothing astonishing in this, since both the jurisprudence (*) and the lawmakers ( s ) favour the movement. the culpable party. With regard to the law of 1886 we may note that, after the sentence of the judge, the divorce need no longer be pronounced by the officier de I'e'tat civil.but simply inscribed in the register. RIBERROLLES, o. c.,pp.8i-ioo, gives the history of the whole question from the point of view of French legisla- tion, from 1816 to 1886. Cf. also PLANIOL, o. c., I, ns 1229, 1231 and 1263 ; ALLEGRE, o. c., I, p. 187 ss. ; and infra, n 207. 1. The Code Napoleon sanctioned separation as taking the place of divorce in the case of Catholics ; but the law Naquet considers it rather as a step towards divorce, a sort of intermediary stage, a period of trial more easy to obtain. In that case, it would be necessary to interpret art. 306 of the French Code in the sense that separation and divorce are to be granted for reasons of the same kind, but of less gravity in case of separation. Similarly art. 310 would now signify, in view of the law of 1884, that the judge may convert or not, separation into divorce, according as the causes that have brought about the separation, appear to him sufficient or not to authorise the dissolution. That this is the spirit of the law Naquet, ZARZYCHI, o. c., pp. 19-97, strives by every means to demonstrate. See PLANIOL, o. c., n 1299 ; also Attnales Parlementuires (Beiges) Senat (Seance du 15 Mars 1911), p. 227 s. During the preparation of the Code Napoleon, some jurists, like Boulay, pro- posed to establish an analogous relation between separation and divorce. Cf. ZARZYCHI, o. c., p. 15 ss. ; DUMAS, o. c., p. 62 ss. 2. LEMAIRE, o. c., p. 62 ss. 3. See what we said above, in n 180, of the efforts made by the abettors of divorce, such as Naquet and the brothers Marguerite, to smooth and widen as much as possible the path to divorce. Coulonalso in his brochure, Le divorce par consentement mututl, proposes to extend the law, but in a more moderate way; he still demands the insertion of certain determined causes, as well as divorce by mutual consent, as understood in the Civil Code. Cf. RIBEROLLES, o. c., p. 141 s. 4. LEMAIRE, o. c., p. 173 ss., shows that French jurisprudence has given to the allegation of injury a gradually widened interpretation, so that a means has been thereby provided for evading the law prohibiting divorce by mutual consent. Cf. also RIBEROLLES, o. c., pp. 118-122 ; LOSLEVER, o. c., p. 192 s. 5. Quite recently, June 6 tn 1908, both Chambers adopted the modification of art. 310 in the original sense of the Civil Code : When the separation has lasted three years, the judgment will be converted by right into a judgment for divorce, at the formal request of one of the parties . They rejected the restric- tion proposed by Meline : If the demand emanates from the party to whose exclusive prejudice the separation was pronounced, or, if there exist one or 372 CIVIL DIVORCE Belgium had 2. In Belgium, divorce under French and The Code Napoleon was in force in our country up to the time when andstitt Dutch ru ^ e introduced a new legislation for the Federated Kingdom. In the retains it. drawing up of the new Code, the deputies, even the Belgians, voted by a large majority () for divorce. After the separation of the two countries and the recovery of Belgian independence, the Code Napoleon was reintroduced into Belgium, with all its provisions concerning divorce. These provisions, with the exception of certain changes of very small importance ("), remained intact until, quite recently, the law of Feb. 8 th 1906 removed the prohibition inserted in art. 295,by virtue of which divorced persons could not be reconciled nor re-estab- lish conjugal life. Certain modifications had in the meantime been introduc- ed by the law of Feb. II th 1905, in the matter of the formalities to be observed ; as we shall explain presently ( 3 ). Note. The Hague Conference has published various statutes regulating the application of the laws of separation and divorce, with regard to marri- ages contracted in other countries. A short account of these will be found in theArchiv.f. kat. Kirch., 1906, torn. 86, p. 47633., and in BOUSCHOLTE, o. c., pp. 14-17. The general principle is this : parties living in other countries cannot obtain divorce or separation except in the cases provided for by the law of their own country, and by that of the country in which they reside. Scholion. Laws in force in other countries. 206. Laws in ! There are several countries where the law does not permit force in other divorce, but only separation. The principal of these are, in Europe : countries. . ,-,,,-, -^ ,-, 1 -,.- Spam, Portugal, Italy (*), Poland and Monaco ; and in America : Ar- more children as the issue of the marriage, the court may refuse the conver- sion . Cf. BBSSE, o. c., p. 341 s. ; he states also other modifications introduced in favour of divorce, especially by the law of Dec. 15 th 1904, and July 1. After a discussion which was neither long nor noteworthy, the projected law of divorce was adopted by 62 votes against 18. The opponents were nearly all Belgians ; nevertheless, the majority of the Belgian deputies voted for divorce >. LAURimT,Avant-Projet, n, p. 15. 2. Art. 291 and 308 s. in SERVAIS and MECHELYNCK, Les Codes 1907. 3. See Coll. Brug., t. XI, pp. 318-326. In these pages we explain the important motion put down by Alex. Braun, and, on 16 March, 1911, already approved of in a great part by the Belgian Senate, of which we shall have to speak later ; it concerns modification of the law of corporal separation >. 4. Some years ago, in Italy, the enemies of the Church tried to introduce a law in favour of divorce ; but Leo XIII made an eloquent protest, in his Allocu- CIVIL DIVORCE 373 gentina, Brazil, Chile, Mexico, Peru, Uruguay, and South Carolina ( J ). 2. In other countries divorce alone exists, and separation is not permitted, except as a preparatory stage, in view of divorce (*). This is the case in Switzerland, Roumania, Servia, Denmark, Norway and Sweden, and in the greater part of the United States of North America ( 3 ). 3. The laws of still other countries permit both divorce and separation. Among them, those of France, Belgium, Germany and England (HOWARD, o. c., II, p. 107 ss.) and of some States of North America (*). 4. Lastly, there are countries where the law differs according to the religion of the parties. Thus in Attstria, separation only is accessible to Catho- lics, even in the case of a mixed marriage ; whereas non-Catholics have divorce, and Jews are allowed even greater latitude than Christians ( 5 ). In Russia civil marriage does not exist, and it is only the religion of the parties that governs their marriage. In that country, therefore, Catholics have not the right of divorce ; on the other hand, the Orthodox and the Jews possess that right. With regard to the clauses and ulterior provisions of all these laws, we may limit ourselves to a few remarks. In Germany mutual consent is not admitted among causes for divorce (art. 1564), but separation may always be converted into dissolution at the request of one of the parties (art. 1576). In England adultery only is recognised as a legal cause; and the adultery of the husband must be qualified, that is to say, it must be accompanied by rape, incest or bigamy, or sin against nature, or cruelty, or desertion of two years' duration (to which desertion is assimilated the fact of not obeying a decree for the restitution of the conjugal rights) ( 6 ) : this is intended to hinder the multiplication of divorces. In Scotland we come across a peculiar custom, not sanctioned by the law, but, as it were, existing on the tion of the i8 th of Dec. 1901 (Coll. Brug., t. VII, p. 169 s.), and an energetic popular movement joined its voice with his ; so that, at the beginning of 1904, this proposition disappeared from the list of projected laws. Cf. Etudes rcligieuses, 1902, torn. XCI, p. 340 ss.; CASTBLEIN, o.c., p. 557 s. ; see also LAURENT, Avant- Projct, II, p. 2 ss., who records a previous similar attempt, dating from 1881, in the Italian peninsula. See also the Instructions of Card. Parrochi to the Italian Bishops (34 Dec. 1901), against the motion of the law in N. R. th., p. 1902, p. 307 ss. 1. SCHULZE, Eherecht..., 1. c., p. 765. 2. See LEHR, o. c., n os 943 ss., 987 and 1069 ; cf. G. LAURENT, La Repudiation, p. 115 ss. ; and 132 ss. 3. SCHULZE, Eherecht..., 1. c., p. 764. 4. Ibid. 5. G. LAURENT, Repud , p. 128 ss.; Le Regime des Cultes, p. no s. 6. Cf. Envelop. Brittanica, VIII, p. 339-341. 374 CIVIL DIVORCE borders of the law : the parties may separate by private consent, without the intervention of a magistrate (*). Finally, in several of the United States of North America, the causes of dissolution are manifold, and some are specified in a manner so vague,v.g. drunkenness and violence of charac- ter, that they lend themselves to a very wide interpretation in practice ( 2 ). For further details see LEHR, o. c. PARAGRAPH II. PROVISIONS OF THE BELGIAN CIVIL CODE. 207. Provisions of I. DIVORCE. the Belgian Civil Code: A. Causes. 1 . Mutual consent, formulated in such a way as to furnish in the eyes of 4. concerning divorce : as to its causes, the law the presumption of a secret but grave cause for dissolution. Art. 233. 2. Determined causes ( 3 ) : a/ Adultery of the wife ; adultery of the husband, provided he has kept his concubine in the same house as his wife (*). Art. 229 and 230. b/ Violence ( 5 ), cruelty ( 6 ), and grievous injury of one party towards the other ( 7 ) ; art 231. 1. LAURENT, o. c., p. 98. 2. SCHULZE, 1. c. 3. PLANIOL, o. c., I, n os 1148 and 1149, gives a synoptic scheme of the causes admitted by various legislations, calling attention to the fact that the German Code and the Code Napoleon are based on different principles. Cf. also CRETINON, 1. c., p. 167 s. 4. As we have seen, the French law of 1884 does not require that the husband should keep his concubine in the same house as his wife. In Belgium, however, simple adultery on the part of the husband, without concubinage, suffices also for divorce, inasmuch as it may be considered to constitute a grave injury to the wife. See below, and cf. Repertoire decennal, 1890-1900, under Divorce, n. 15 s. 5. By violence the law understands attacks upon life or endangering life >. AUBRY et RAU, o. c., p. 175. 6. By cruelty is understood assaults that have not this character, (viz. of violence), and, in general, every kind of ill-treatment . Ibid. See the singular decision of 19 Feb. 1908, Pasicrisie, 1908, II, p. 282. 7. Injuries are verbal or real. Verbal injuries comprise insulting remarks, words of contempt, and calumnious or defamatory imputations Real injuries comprise all acts which constitute an insult, an outrage, or a mark of contempt . Ibid., p. 176. Jurisprudence is giving an ever widening extension to this cause for divorce ; as may be seen in the Repertoire, 1. c., n os 28-87, where the different judicial decisions are recorded. Thus it admits that the adultery of the husband, without concubinage, may constitute a grave injury to the wife, as also the CIVIL DIVORCE 375 c/ The condemnation of one of the parties to a degrading punishment (peine infamante) ('). Art. 232. d/ The case of art. 310, already mentioned. The partner against whom the other party has obtained a separation, for any other reason except the adultery of the wife, may after the lapse of three years, demand divorce from the Court, which will grant it, if the original complainant, present or duly summoned, does not consent immediately to put a stop to the separa- tion 2 . unlawful refusal of the conjugal duty ; also a criminal conviction or a merely correctional punishment, according to the nature of the facts on which the verdict was based. Pasicrisie, 1907, II, p. 239 ; 1911, II, p. 90 s., comp. however with Pasicrisie, 1908, II, p. 281 s. See also PAOLI, o. c., p. 163 ; GLASSON, o. c., p. 272 ; BASDEVANT, o. c., p. 215 ; PLANIOL, o. c., I, n. 1156 (cf. n os 1150, 1158 and 1169 s.) ; AUBRY et RAU, 1. c., p. 172 ; Archiv.f. k. K., 1909, p. 253 s. It includes also the refusal of one of the parties to be married with the rites of the Church, after the respective party has promised to be so married (Pasicrisie, 1910, IV, p 125. s.) ; abandonment of the home, at least in certain contingencies (Pasicrisie, 1908, II, p. 308 s. ; 1910, II, p. 302 ss.) ; the fact of suspicious visits paid by the wife to another man (Pasicrisie, 1912, II, p. 150 s.) ; onanism on the part of the husband unknown to, or against the will of the wife (Pasicrisie, 1900, IV, p. 59 s. ; 1908, II, p. 308 s.) ; the transmission of a venereal complaint (Pasicrisie, 1909, IV, p. 37 s. ). See also Pasicrisie, 1909, II, p. 153 s. According to the Cour de Liege, excessive drinking on the part of the wife, brought about by the kind of living adopted by the wife without opposition from her husband, and not degenerating into a scandal, or into inveterate intemperance, does not constitute a grievous injury sufficient for divorce; nor do insulting remarks provoked by the husband's wrongdoing (Arret du 28 Juillet 1909, Pasicrisie II, 399). The mere refusal of the husband to comply with his conjugal duty, (Pasicrisie, 1909, III, p. 396 s. with the references quoted), or to re-admit his wife into the house, is no longer a sufficient cause (Paster., 1909, n, p. 140 s.). 1. Cf. PLANIOL, o. c., I, n s 1171-1175. LAURENT, Avant-Projtt, II, p. 20 s., explains what was formerly understood by this term ; he adds that punishments legally branding with infamy have been abolished as such in Belgium by the new penal code of 1867 (art. 7). Hence itis controverted whether the provision of art. 232 has to be taken into account at the present day ; in other words, whether condemnation to a penalty formerly branding a person with infamy before the law, constitutes at the present day, on this ground, a cause for divorce. As we have stated, the jurisprndence would regard it in any case as a cause for divorce, by reason of the injury it inflicts on the other party. Laurent proposes the suppression of this article. For the jurisprudence, see Repertoire, I.e., ns 80-87. 2. The jurisprudence is not uniform in the application of art. 310 to the case in which the party, who refuses cohabitation, does so legitimately, v. g. because 376 CIVIL DIVORCE formalities, B. Formalities. The very complicated formalities to be observed in order to obtain a divorce by mutual consent are described in art. 275-294 ; those which relate to divorce for a determined cause, are enumerated in art. 234-274, modified by the law of 12 Feb. 1905 (*). Once the formalities have been complied with, if the judge considers that the parties fulfil the conditions required by the law, he does not himself pronounce the divorce, but he authorises the applicant to present himself before the civil officer in order to get it pronounced. Art. 258 and 264 ( 2 ). effects ; c. Effects. 1. General effects, a/ The bond of civil marriage once dissolved, the par- ties may lawfully remarry ; they may also, by virtue of art. 295, happily modified by the law of 1906 ( 3 ), come together again, by having their marriage re-celebrated, b/ Mutual conjugal obligations and rights cease, c/ The power of the husband over the goods and the person ot his wife also ceases ; and she thereby recovers her full legal capacity (*) . 2. Special effects, a/ If the divorce was pronounced for a determined cause, the wife may remarry after 10 months (a. 296) ( 5 ) ; the husband guilty of living together is morally intolerable. Cf. Repertoire, 1. c., ns 91, 93, 95, 97 and 101 ; Pasicrisie, 1910, III, 57. See also Annul es Parlementaires (Beiges) Senate, Session of 16 March 1911, p. 238. 1. SERVAIS et MECHELYNCK, Les Codes, 1907 ; SoUlX4ir,J&mM catholique de droit, 1906, p. 195 s. ; KNOCH, Rev. eccles. de Liege, 1905-1906, p. 318-333. The procedure in case of a divorce for a determined cause, although simpler than in the case of divorce by mutual consent, is nevertheless much more com- plicated than the ordinary procedure. 2. In France, since the law of 1886, divorce is no longer pronounced by the civil officer, as we have already noticed ; after the sentence of the judge, the entry in the civil register is sufficient. Note, however, that it is not the judge, strictly speaking,who pronounces the divorce although the text of the law seems to say so; he declares rather, as in Belgium,that there is a cause for divorce; the latter is accomplished only by the entering in the register, and it is only then that it commences to produce its effects. Cf. PLANIOL, o. c., I, n s 1229, 12 3 a d 1231. In the last of these passages the author says : It is from this (the inscrip- tion in the register), and not from the sentence of the judge, that the divorce results ; it takes effect at the registry office (mairie), not at the court . 3. See Coll. Brug., t. XI, p. 318 s. ; KNOCH, 1. c., 1906-1907, p. 330 s. 4. The various legal disabilities that the wife contracts according to art. 215 ss. have, therefore been, removed. 5. See, however, note on b/. The purpose and import of this enactment are explained in CASTAN, o. c., p. 31 s. ; he notes also the changes introduced on this point by the French law of the 13 th of July 1907 : the legal delay need not be CIVIL DIVORCE 377 adultery may not marry his accomplice (a. 298) (') ; the party against whom the divorce has been granted will lose all the advantages that the other party has conferred on him, either by the marriage contract or since the marriage (a. 299), whereas the other party who has obtained the divorce will retain all the advantages conferred by the other party (*) art. 300. b/ If the divorce was brought about by mutual consent, neither of the parties may contract a fresh marriage until three years after the pronouncement of the divorce (a. 297) ( 3 ), and full right ot ownership over half of the property of each of them accrues to the children born of their marriage (a. 305) ( 4 ). II. CORPORAL SEPARATION. A. Causes. a/ip In cases in which divorce may be demanded for determined causes, the g. concerning parties will be free to demand separation (art. 306) ; it cannot take place separation, by mutual consent of the parties (art. 307). B. Formalities. An action for corporal separation will be brought, investigated, and observed when a separation of three years has already preceded, and when the inscription of the divorce has been made 300 days after the first judgment on the matter. 1. Cf. Rev. eccles. de Liege, 1905-1906, p. 334 ; CASTAN, o. c.. p. 28 s. ; in France the law of the 15 th of Dec. 1904 has removed this prohibition. A bill with the same purport was laid before the Belgian Senate, but it was rejected. See Anna- les Parlementaires, 1909-1910, Senat, 22 et 23Fev. 1910. 2. It would be unjust to apply to the case of art. 310 those provisions that favour the party who has obtained divorce to the detriment of the other party ; this would be giving a legal advantage to the party who is in the wrong, and who, after three years, demands and obtains a divorce, although the sentence of separation was previously pronounced against him. The purpose of the law also is opposed to this ; for, if the law permits the conversion of separation into divorce, this is not directed against the party who refuses to cohabit, but simply secures that the otber party shall not be kept in compulsory celibacy. Jurispru- dence, moreover, is here in accord with equity. Repertoire, 1. c., n s 94, 99, and 102. 3. The divorced parties who, in accordance with the terms of art. 295, reunite, causing their marriage to be celebrated anew, are not bound to observe the delay of three years fixed by art. 297, nor even the delay fixed by art. 228 and 296, if the woman has not contracted in the meantime another marriage, of which the dissolution dates back at least ten months . Art. 295, amended by the law of the 8 Feb. 1906. 4. According to the terms of art. 272, the action for divorce is cancelled by the reconciliation of the partners . For the interpretation of this article and of article 273, see the judgment of the supreme Court (Gourde Cassation), 14 Dec. 1910 (Pasicrisie, 1912, I, p. 38 ss.). 37 8 CIVIL DIVORCE judged in the same manner as any other civil action (art. 307 ; cf. art. 875-881 of the Code de Procedure civile). It follows that separation, unlike divorce, has to be pronounced by the judge and not by the civil officer ; but a judicial sentence is absolutely necessary, and a separation made by mutual consent of the parties is null and void in law. C. Effects. 1 . The marriage continues to exist before the law, and consequently any fresh union is forbidden ; even separated partners are bound by their con- jugal obligations (assistance, fidelity etc.), excepting cohabitation and com- munity of goods (art. 311). 2. The wife does not recover her full legal capacity of which her marriage had deprived her, according to the provisions of art. 215 ss. See art. 1449. 3. The party against whom the separation was obtained does not incur the forfeiture specified in art. 299 ss. (*). Note, a/ As to the condition of the children in case of divorce or corporal separation, see COURREG&, o. c. b/ When separation has been granted, there is, apparently, still room for a petition for divorce, even without alleging a fresh cause. See Revue de Droit Beige, in Pasicrisie, 1912, II, p. 150 s. PARAGRAPH III. CRITICISM OF THE LAW OF CIVIL DIVORCE AND CORPORAL SEPARATION. 209. Law of civil I. IN GENERAL. divorce and ^6 c j y - j j aw p errm tting divorce is iniquitous, and merits the severest SCpdV (ll> tOtt iniquitous a) condemnation : considered in j j n j^ ge if a y n constitutes a sacrilegious usurpation. In fact it arrogates to itself the right of governing Christian marriage, a matter which belongs to the exclusive jurisdiction of the Church, as we shall show later ; whereas the secular authority has the right only of giving statutory effects to the marriage. This applies not only to divorce, but also to the law permitting separation. b/ Moreover, admitting hypothetically the right of the secular authority over these marriages, analogous to the right which the civil authority has over the marriages of infidels, the iniquity of the law of divorce is not less i. For the Belgian jurisprudence, cf. Pasicrisie, 1867, II, p. 400 s. ; arret de la Cour de Liege, 24 Fev. 1897, which reads : since the decisions of our Court of Cassation, 29 th of May, 1847 (Pasiscrisie, 1848, 1, p. 7) and 24 th of March, 1865, jurisprudence is settled in this sense in Belgium . Jurisprudence in France has adopted a different interpretation since the year 1845. Cf. AUBRY et RAU, o. c., V, p. 206 s., with note ; PLANIOL, o. c., I, n. 1332 ; Annales Parlementaires (Belges)-Senat, (15 Mars 1911), p. 221 s. CIVIL DIVORCE 379 patent, since it conflicts with the sacred principle of the indissolubility of marriage. It cannot be denied that the matrimonial contract, whatever be the au- thority that governs it, is a contract of a special kind, indissoluble by nature, as we have proved in n 180, and as even the authors of the civil Code recognised (*). The secular authority, therefore, even supposing it compe- tent, has to reckon with the natural and the divine law, which sanction this indissolubility (*). Let it not be said that the law of divorce leaves intact the marriage bond, and that it concerns itself only with civil formalities. Does it not in reality presume to attack the contract itself ? Does it not presume to annul the contract, as though this were not beyond its power ? Is it not intended to loosen the conjugal bond to such an extent that the parties cease to belong to each other, that they become strangers to each other, and capable of contracting a new alliance ( 3 ) ? The law of divorce is not less iniquitous : 2. In its consequences. In reality it is incapable of effectively breaking the marriage bond ; but it grants a legal faculty for violating the indissolubility of marriage, and hence is responsible for the consequences. These consequences we have indicated in n 180 ; the education of the children is imperilled, mutual love and conjugal fidelity are enfeebled, and finally the existence of marriage itself is called into question. 1. See the evidences quoted above, n 204, note. 2. The lawfulness of divorce is not, therefore, a necessary consequence of the institution of civil marriage, though BONOMELLI seems to admit this (o. c.,p. 59) : c Posto il principio del matrimonio civile, e necessaria e naturale la conse- guenza del divorzio : il matrimonio diventa un contralto come qualunque altro, e non v'ha ragione di volere que questo sia indissolubile, mentre tutti gli altri non lo sono, ne lo ponno essere . Nevertheless, considering matters in the con- crete, it is beyond question, as we have already noted in n 2O3C, that the intru- sion ot civil marriage enfeebled the idea of indissolubility, and thereby opened the way for divorce. Moreover, in the mind of the legislators of 1792, the one was involved in the other. 3. The law of divorce has in view the dissolution of the marriage bond itself, and not merely the annulling of the civil formalities that accompany marriage. This results from the very nature of civil marriage dissolved by divorce. In fact, civil marriage, in the eyes of the law, far from being a simple declaration made by the contracting parties in order to regularise their civil position, is considered as a true matrimonial contract, conferring on the parties the title of married persons, with all the rights and obligations proper to the married state. The very terms of the Code prove this, no less than the origin and the institu- tion of civil marriage ; of which more later. 380 CIVIL DIVORCE In vain those who favour civil divorce appeal to the liberty of worship, as though the one liberty implied the other ('). We reply, first, that liberty of worship is not the ideal, and we maintain the distinction between the thesis and the hypothesis. Moreover and especially, the civil authority cannot maintain the right to permit divorce even to those whose religion authorises the dissolution of marriage. To safeguard liberty of worship and of conscience does not mean granting to citizens without distinction all that the various religions concede, even in defiance of the higher law of nature and contrary to the commonweal. That is evident, and it is not less clear that the natural law and the good of society require the indissolubility of marriage. Moreover, it is thus that the law reasons when it proscribes polygamy ; and one admits that the law is right, although plurality of wives is permitted, for instance, by the Mohammedans and the Mormons. 2/0. b I in particu- II. IN PARTICULAR. Even supposing it to be tolerable, in certain cases, for the civil law to permit divorce (*), there are certain provisions in the Belgian Code that must be disapproved in any case. Thus : causes of A. Concerning the causes of divorce. divorce. 1. Mutual consent ought not to be admitted, as LAURENT himself suggest- ed, in his Avant-Projet, II, p. 17 s. ; the admission of this cause, he says, consecrates, not in theory or in the mind of the legislator, but in practice and in fact, the error which likens marriage to an ordinary contract, and permits it to be dissolved, as it is formed, by the consent of the contracting parties ( 3 ). 2. The significance of the term injuries ought to be made more precise and restricted, whereas the practice of the Courts is to widen its meaning, so as to include among causes for divorce so-called real injuries, thus leading I. See n 204, in note, how Treilhard invoked this liberty of worship. a. It follows sufficiently from what has been said, that the law of divorce,of its own nature, is bad and deserving of condemnation. Yet we ought not hastily to conclude that its suppression pure and simple is to be desired, in countries where civil marriage is in force. As DE BECKER well remarks, De Matr., p. 428 : < If civil marriage, so different from true marriage, were to be considered indissoluble, and on that understanding, were to be always assured of the protection of the law, whilst the Church so often declares these pretended unions to be mere con- cubinage, we should be involved in consequences, the inconvenience and misery of which are only too patent . 3. This cause was suppressed in the French law in 1884, and likewise rejected in the German law promulgated in 1896. Cf. art. 1564 ss. J RIBEROLLES, o. c., p. 107 and 161. CIVIL DIVORCE 381 to the evasion of the law, and to the obtaining of dissolution of marriage for causes that are not legal ; as is shown very clearly by LEMAIRE, o. c., p. 173-177, and RIBEROLLES, o. c., p. 118 ss. 3. Furthermore, the provision of art. 310 ought to be struck out. As it is, the culpable party, against whom the separation was granted, has the right to demand a divorce, and the judge is bound to pronounce it (') whenever, after three years of separation, the innocent party refuses to renew conjugal relations, at least when such a course is morally possible (*). Does not this put the innocent party at the mercy of the culprit, and, contrary to all justice, secure to the latter the right of profiting by his mis- behaviour ?... Art. 310 is opposed to the very purpose for which the law sanctions separation : the law sanctions it out of respect for religious scruples ( 3 ) ; then it compels the party who applied for a separation, to be divorced in spite of scruples*. LAURENT, AvanLProjet, p. 16. See also LEMAIRE, o. c., p. 178 s. ; PLANIOL, o. c., I, n os 1349 and 1351. (*) B. Concerning corporal separation. Since separation was introduced into the Code out of consideration for concerning Catholics, to take for them the place of divorce, it would be equitable and se ^ a1 in accordance with the purpose of the law, tnat separation should be avail- able for the same causes as divorce, that it should have the same effects as the latter, and that it should be freed from such embarrassing conditions as may from time to time morally compel Catholic parties to prefer di- vorce ( s ). 1. Repertoire decennal, 1. c., no 100. 2. Several judicial decisions have resulted in applying the law even in cases when it was morally impossible for the innocent party to re-establish conjugal relations. Cf. Repertoire decennal, 1. c., ns 96, 97, 101, 103 ; see above, n 207. 3. See above, n 204. 4. The modified text of art. 310, to be voted on by the Belgian Senate, March i6 th 1911, is as follows (Annales Parlementaires, Seance du 16 Mars, p. 243 s.) : When separation, pronounced for any other reason but adultery, has lasted three years, the original defendant has the right to demand a divorce from the Court, and the Court may grant it, if the original complainant, either present or duly summoned, does not consent immediately to put an end to the separation . If this text passes into law, the sentence of separation will not be converted de jure into a sentence of divorce ; the conversion will be left to the discretion of the judge, who will have to adjudicate on the entire situation in view of the com- mon interest of the parties, the interest ot the children and that of public mora- lity. See the speech of the Minister of Justice, Seance du 16 Mars 1911, 1. c., p. 228. 5. Such is the case in the German Code : separation is obtainable for the same causes as divorce ; the same effects follow, except ability to contract a fresh marriage in case of separation. See art. 1586. 382 CIVIL DIVORCE Mr. Al. Braun, some years ago, brought before the Belgian Senate a bill of this purport, modifying the whole economy of the clauses relating to corporal separation ( J ). The Senate passed the principal clauses of this bill on the i6 th of March, 1911 ( 2 ). Besides the modification of art. 312 (see above, n 170), and of art. 310, the changes ratified by the Senate are as follows : 1. the new article 31 ib declares : art. 299 is applicable to corporal separation (see above, n 208) ; 2. art. 1449 is thus modified : the separated wife enjoys the full exercise of her civil capacity, without needing recourse to the authorisation of her husband or of the courts ( 3 ). PARAGRAPH IV. MORAL COROLLARIES. FIRST COROLLARY. 1. One may, From a moral standpoint, that a Catholic should apply for corporal conditions, separation to the civil courts, that the counsel should act in his name, tolerate appli- an fr th a i th e separation should be pronounced by the judge, may be tolerat- civil court for ed (*), on condition a] that, in the opinion of the Bishop, there exists a separation ; y^ causg y or separation ; b/ that the Catholic party cannot apply to any other tribunal to obtain a separation (valid in the civil courts) ; c\ thai the sentence pronounced has no effect other than the aforesaid separation > (*). SECOND COROLLARY. 2. application Application for divorce by a Catholic or by his counsel may similarly a purely civil be tolerated, when the parties in question have been united by a civil mar- marriage ; Yiage only, or when the marriage, canonically contracted, has been dissolv- ed or declared invalid ; on condition that the application be made, not with the intention of acknowledging in the civil tribunal any power to dissolve the marriage, but solely for the purpose of regaining civil com- 1. Cf. Collat. Brug., t. XI, p. 326 s. 2. Annales Parlementaires-Sin&t, stances du 14, 15, et 16 Mars 1911. 3. This is the case in France, by virtue of the law of the 6 th of Feb. 1893. Cf. PLANIOL, o. c., I, ns 1322-1334 ; ALL&GRE, o. c., I, p. 177. 4. We say tolerated , because recourse to the civil tribunal, in matters concerning Christian marriage, already contravenes Catholic teaching, which declares that all matrimonial causes are reserved entirely to the ecclesiastical tribunal. 5. Decree of the C. S. O., Dec. ig th 1860, to which the same Congregation refers in a later decree of April 3^ 1877. Cf. N. R. Th., XVIII, pp. 484-486. CIVIL DIVORCE 383 Petence to contract a fresh marriage, and of protecting the applicant and the priest from civil penalties in case of afresh marriage ('). THIRD COROLLARY. It may also be tolerated also that the Catholic lawyer should defend 3. and defen- his client against the petitioner in a divorce suit..,, on condition that the Bishop is satisfied of the honesty of the lawyer and that the latter a divorce conforms to the principles of natural and ecclesiastical law ( 8 ). FOURTH COROLLARY. To grant a divorce (in case of a canonically valid marriage) ( 5 ) does 4. To grant a not appear to be an act intrinsically bad, but only unseemly (male Cl j a canoni- sonans), so that, apart from special circumstances, and the positive call y v . alid prohibition of the Church, this act seems to be lawful. A. Explanation. An action may be intrinsically bad or simply unseemly (male sonans). 1 . Any action is intrinsically bad which cannot be performed without fault, that is to say, which is bad either on account of its proper object, or on account of an illicit circumstance which is bound up with it, and which can neither be separated from it nor itself become legiti- mate. An act, therefore, may be intrinsically bad not only on account of its proper object (such as an act of blasphemy), but also a/ on account of the perverse intention which it necessarily con- tains ; or further b/ on account of the immediate co-operation which it affords to the bad action of another, if this co-operation is effec- tive (*) ; c/ or finally, on account of the indirect scandal occasioned, 1. Decree of the C. S. O., Sept. 9^ 1824 (Cf. N. R. Th., XVIII, p. 412 s.). 2. Decree of the C. S. O. of ao March 1860, to which the same Congregation refers in its decree of 3 Apr. 1877 (N. R. Th., XVIII, p. 485). 3. In what follows, we make no distinction between the duties of the judge, whose function it is in Belgium to declare whether there is a cause for divorce, and the duties of the municipal officer, whose function it is to pronounce the divorce. See above, n 207. 4. Immediate co-operation in the bad act of another (not simply in a bad result) renders the act of the co-operator intrinsically bad, whether he really takes an active share in the sin of the other or simply exercises over him a moral, but direct and immediate, influence, by counsel, command or effective compulsion of any kind. Exception must be made in the case where a lesser evil is suggested, at least when this lesser fault is contained in the greater one that is to be avoid- ed. 384 CIVIL DIVORCE of the co-operation afforded in evil results, or of the mediate co-opera- tion in the bad act of another ('), in case the scandal or the results in question are so great and of such a nature that they are not counterbalanced under any circumstances. 2. Any action is unseemly which it is possible to perform without fault, which is therefore good as to its object, but which is bur- dened with an evil circumstance that nevertheless may be separat- ed from it or counterbalanced.lt is enough in that case that there should be a sufficient and proportionate reason for acting (*). B. Demonstration. does not \ . To grant a divorce is not an act intrinsically bad on account of seem intrin- . ,. sically evil, ** ODJCCt. Taken in itself, this act implies only the dissolution of the civil ceremony of marriage and by no means the breaking of the matrimonial bond, which in fact remains untouched ( 3 ). Strictly speaking, the real marriage which still subsists is undoubtedly deprived of its civil effects and of its recognition before the law, and the parties obtain legal power to contract a new union ; and hence it is that cooperation is unquestionably lent to the evil effects of the law as well as to the sin of another ; but the specific object of the act is nevertheless the dissolution of the civil formalities and nothing more. 2. To grant a divorce is not any the more an act intrinsically evil because of the existence of an evil circumstance inseparably bound up with it and not admitting any counterbalancing good effect. a/ In the first place, it does not necessarily imply a bad intention. On the one hand, the explicit intention of violating the law of indissolubility or of usurping the jurisdiction of the Church may easily be absent from the mind of the judge and of the public offi- 1. Right Rev. Dr. WAFFELAERT, Cooper ation,p. 6 s. holds that this is co-opera- tion in the broad sense of the word, and at the same time indirect scandal. 2. S. THOMAS, Quodlib., IX, art. 5, in corpore. 3. As civil marriage does not in any way affect, as a marriage, the forum internum, so divorce does not affect in any way a religious marriage or marriage properly so called... As the Church tolerates civil marriage, provided that effects which it does not possess are not attributed to it, so we cannot see how the grant- ing of civil divorce can be intrinsically bad apart from its effects . Right Rev. Dr. WAFFELAERT, Cooperation, p. 70 ; cf. BALLERINI-PALMIERI, o. c., VI, Edi- tor's note, n 802. CIVIL DIVORCE 385 cial ; on the other hand, it cannot be said that this intention is im- pliciily and necessarily contained in the pronouncing of the divorce itself, as if the official, in giving effect to this impious law, were supposed to conform his intention to the evil intention of the lawgiver ('). This would happen only in the supposition that the law was really effective and actually dissolved the marriage bond ; or if there were question of applying the law in hatred of religion. b/ Neither is there immediate co-operation in the sins of others. In fact, neither the judge nor the civil officer, in pronouncing a divorce, shares immediately in the sin of the parties who, perhaps, intend to lead a life of concubinage, nor uses his influence effect- ively and immediately to impel them thereto, by counsel, by com- mand or by any sort of pressure. What he does is simply to give the parties the power and the legal means of leading a life of sin and of violating their marriage duties ; this does not constitute immediate and direct co-operation in sin, but simply indirect and but simply mediate co-operation, since the subsequent sins will depend upon * J'. the bad will of the parties, following upon the granting of the divorce. c/ With regard to indirect scandal, possibly given to the public, on account of the judge and the State official may prevent it to a considerable ^ai^mldia^ extent by declaring on the occasion, or making it apparent in co-operation ., . . , ' . . . , in sin of an- some other way, that they intend to respect the matrimonial other, and co- bond; moreover, the exigencies of their position sufficiently excuse P e . rat ^ on *'* them on this head. tiicluw; d/ There remain then only material co-operation in the evil effects of divorce, and mediate co-operation in the subsequent sins of the parties. These sins may indeed be very grave, and these effects are but there may calamitous, as we have already said in n 180, for the children, for the family and for society. Nevertheless, these evils do not terbaluncing appear absolutely to exclude counterbalancing good ; there may possibly exist causes sufficiently urgent to render legitimate the judge's co-operation. (i) The legislator takes an immediate part in the drawing up of the law, and consequently by virtue of his action he conforms implicitly to the law ; but, as we have already seen, the law of divorce tends to the dissolution of the marri- age bond however inefficacious its attempt may be. 386 CIVIL DIVORCE On the one hand, in fact, the more distant the co-operation, the easier it is to establish an equilibrium between the good effect and the evils foreseen ; moreover, we must take into account the fact that, if the Catholic judge or the public official refuses to apply the law, there will be no dearth of other magistrates to do it in their stead. On the other hand, without taking into account the personal interest of the officials in question in retaining their position, it is of the highest importance, from the point of view of public policy, that Catholics should not be compelled to resign en bloc, as it were, and thus leave their province to become the exclusive preserve of men indifferent or inimical to religion. so that, apart We except, however, the case of special circumstances and of ^lar circum- P os ^ ve prohibition on the part of the Church ; because it may stances and happen, for instance, that the law has been promulgated out of hibition, the hatred for religion (although its application may not, perhaps, be pronouncing re q U i rec i j n the same spirit), or that it may be quite recent, in may be law- which case there may be hope of obtaining its abrogation by energetic resistance. It would then be more difficult to excuse a judge or a public official, and the Church would take the initiative more promptly in issuing a positive prohibition. Note. Our explanation, which tends to justify in general the conduct of the officials in question, evidently deals only with the case in which they cannot withhold granting a divorce without infringing the law. The judge is bound as far as possible to the strict interpretation of the law ; he may grant a divorce only when the text of the law compels him unquestionably to do so ; any application of the law beyond its strict tenour and the limits which it imposes, is criminal ; and this fault, unhappily, is only too frequent ('). C. Agreement of our thesis with the Roman Instructions. thisopinionis We may quote here many replies of the Holy See, openly n thRoman favouring our opinion and denying the intrinsic malice of the act documents, i. RIBEROLLES, o. c., p. Ii8-i22, remarks that not only do many judges unduly stretch the plea of injury, but that they are often too speedy and too easy in granting divorce to parties who obtain the pro Deo and who are designated assistes judiciaires .On the subject of this abuse cf. also La Rev. cedes, de Liege, 1905-1906, p. 334 s. ; the Bien Public, 26 Jan. 1899 and the XX* Sieclg, 6 Oct. 1903 and 9 Oct. 1904. CIVIL DIVORCE 387 of the judge and of the public official. Such are the declaration made by the C. S. O. to the Apostolic Nuncio in Belgium, and communicated on the 14 th of September 1886 to the Minister of Foreign Affairs (') ; and the reply of the Sacred Penitentiary, of the 24 th of September 1887, to the Bishop of Lu9on (*), declaring lawful the aforesaid pronouncement in the case proposed. Hence we infer unhesitatingly the absence of intrinsic malice ; for, on the contrary supposition, the act in question could not in any case be licitly performed (*). On the other hand, however, the severity of certain answers from Rome, notably the decrees of the C. S. O. of 25 June 1885 (*), 1. The S. Congregation declares that the Decree of the 27 th of May 1886, condemning, for France, the pronouncing of divorce, does not concern Belgium, and that consequently nothing is modified in that country touching the matter of divorce . The N. R. Th. gives the complete text of this reply in t. XIX, p. 73 s., and it interprets it in t. XXIII, p. 669 s. Read on this subject DE BECKER, De Matr., p. 473 s., in note : he rejects as unworthy of the Holy See the opinion of certain authors (even of Gasparri, o. c., II, n 1243), who maintain that this declaration is a purely diplomatic reply which notes the fact and reserves the right. Cf. also FEYE, De Imp., n 549, p. 499. 2. The bishop had asked whether the public official could pronounce divorce in case he is forced to do so under penalty of losing his situation, provided he publicly admits the incompetence of the judge in a matter of marriage and the inemcacy of divorce in conscience. The reply was that it is allowable for the official in question to perform the act of which mention is made in the ques- tion . A full account of the Decree may be found in the THEOL. MECHL., o. c., p. 188 ; cf. N. R. Th., t. 21, p. 6i6s. 3. GASPARRI, o. c., II, who espouses the severe opinion in n 1248, acknow- ledges in the preceding number that this rescript gives rise to a serious diffi- culty against the rigorous opinion... ; for, he says, it follows that the existence of the religious bond does not prevent, under certain circumstances, the tolerating of the act of the public official... who pronounces the sentence of divorce ; and, he adds, the explanations given hitherto by the holders of the rigorous opinion do not appear to be solid . In fact, as we have just said, to establish the truth of our thesis, ont single case, in which the act in question is permitted, is enough ; and consequently it is of little consequence that the S. Penitentiary, on the 4 th of June, 1890, declared that the rescript to the Bishop of Luon concerned only one particular case and that the solution could not be extended to analogous cases. N. R. Th. t. XXII, p. 506. 4. After the recent re-establishment of the law of divorce in France, in 1884, many doubts were laid before the S. C. of the Inquisition by the French Bishops, for the purpose of ascertaining if it was lawful for lay judges to give judgment in 388 CIVIL DIVORCE and especially that ofay May 1886 ('), would seem to support the contrary opinion. But this apparent contradiction is undoubtedly to be explained in the following way : In these latter cases, by cases of matrimonial separation, whether a vinculo, or simply a mensa et toro ; and if it was lawful for barristers and solicitors to plead such causes before civil judges ; also if it was lawful for those, whose business it is, to appoint official counsels for the defence in these cases ; and finally, if the mains could pronounce divorce. Their Eminences the Inquisitors General and I, after mature considera- tion of the question, have thought it right to decree as follows, Thursday, 25 June 1885: Considering the very grave circumstances of time, place and object, it may be tolerated that magistrates and barristers should occupy themselves with matrimonial cases in France, without being obliged to resign, provided that they publicly profess the Catholic doctrine which assigns marriage and marriage cases to the ecclesiastical judges exclusively, and provided that on the question of the validity or nullity of marriage as well as of simple separation, cases of which they are required to deal with, they are disposed never to pronounce a judgment contrary to divine or ecclesiastical law, or to defend the doing so, or to encour- age or incite others to do so ; provided further, that in doubtful and difficult cases they apply to their own Ordinary and conform to his judgment, and, if neces- sary, have recourse through him to the Apostolic Penitentiary. His Holiness has ratified this decree ; and consequently we bring it under the notice of all the Archbishops and Bishops of France for their guidance, by these letters which must not be made public . N. R. th., XVIII, p. 489 ss. I. The following doubts were proposed by some French Bishops to the S. R. et Univ. Inquisitio : w In the letter of the S. Inq. of the 25 June 1885, addressed to all the Ordinaries of France on the law of civil divorce, it is decreed as follows : Considering the very grave circumstances of time, place and object, it may be tolerated that magistrates and barristers should occupy themselves with matrimonial cases in France, without being obliged to resign, under certain conditions, of which the second is : that on the questions of the validity or nullity of marriage as well as of simple separation, cases of which they are required to deal with, they arc disposed never to pronounce a judgment contrary to divine or ecclesiastical law, or to defend Hie doing so, or to encourage or incite others to do so . It is asked : I. Is the interpretation, common in France and even found in print, correct, which declares that the aforesaid condition is fulfilled, when the judge, abstracts from a marriage contracted before the Church validiy, so as to apply the civil law and pronounce that there is ground for divorce, provided that he has the intention of dissolving only the civil effects and the civil contract, and the terms of the decision given are confined to that alone ? In other words, can it be said that a decision pronounced under these conditions is not contrary to divine or ecclesiastical law ? II. When the judge has pronounced that there is ground for divorce, can the ntaire, having regard to the civil effects and the civil contract alone, as we have CIVIL DIVORCE 389 reason of particular circumstances, the ecclesiastical authority has thought it opportune to show greater severity. This circumstance was, perhaps, in the case of France (which country the two decrees concern), the recent introduction of divorce by the law of 1884. The Holy See may have looked for the arising of some effective opposition ; and thus we can understand how, in the case of Belgium, where the circumstances were different, the Holy Office did not wish to impose the same strict line of con- duct ('). Modern authors, who treat of this question, differ in their opi- and it is sup- nions. Some hold that the pronouncing of a divorce is intrinsically evil, or that it is at least always unlawful ; others, especially the bulk of Belgian theologians, take a less rigorous view. The principal supporters of the more rigorous opinion are just said, pronounce the divorce, though the marriage is valid before the Church ? III. When the divorce has been pronounced, can the said tnaire civilly unite with a third person the party who wishes to marry again, though the first marriage is valid before the Church and the other party is still living ? On Thursday, 27 May 1886, in the General Assembly of the Holy Roman and Universal Inquisition, the above doubts having been laid before their Eminences the Cardinals Inquisitors General ; the same, after having heard the Votum of the Consultors, ordered answer to be made : to the first, second and third doubts, in the negative. On the same day, after the matter had been laid before our Holy Father Pope Leo XIII, His Holiness approved and confirmed the decisions of the Cardinals . A T . R. th., XXIII, p. 379 s. These are the two decrees to which the supporters of the rigorous opinion appeal. The other Roman documents dealing with this controversy, either simply refer to the above, like the answer of the S. Penit. of 4 April 1887 (N. R. th., XIX, 391 s .), or can be taken in either sense, like the decree of the C. S. O. of 26 July 1887 (N. R. th., XXIV, p. 373), where it is said : It is necessary to urge most strongly... the judge in question (a President de Tribunal, who asked for directions to be followed in the matter of pronouncing divorce) to retain his office, while keeping to the restrictions laid down by the Holy See, and to the precautions suggested by prudence . The N. R. th., XXIII, p. 667 and XXIV, p. 376 s. gives the interpretation of this decree. i. Thus the solutions given for France on the one hand, and for Belgium on the other, do not involve a diversity of doctrine, but simply of discipline, as the minister Renkin rightly observed in the Belgian Chambers, 23 Nov. 1904. Cf. Us Annales Parlemer.taires. Chambre des Representants, 1904-1905, p. 93, and cf. p. 63, where Mr. Hymans refers to this pretended contradiction. 390 CIVIL DIVORCE BUCCERONI ('), BAUDIER ('), AERTNYS (*), ROSSET (*), PLAN- CHARD (*), GASPARRI ( 6 ), and LAVIALLE ( 7 ). To these may by added the Confcrentiae Romanac of 1899 ( 8 ). The other opinion is maintain- ed by Right Rev. Dr. WAFFELAERT ( 9 ), BALLERINI-PALMIERI ( i0 ), LEHMKUHL("), GRANDCLAUDE ('*), DE BECKER ( 15 ), GENICOT-SALS- MANS ("), LEITNBR ("), BOVENS ( l6 ), MARC ("), THEOL. MECHL. ( 18 ), i. O. c., II, p. 983, and in the Enchir. Morale, p. aig s. ; also in the Supplem. ad Promptatn Bibliothecam Lucii Ferraris, 1899, under Divortium. 9. N. R. th.,XVUI, p.23iss. 3. Theol. Moral., II, n 532, quaer. 3. 4. O. c., VI, n<> 4085 ss. 5. N. R. th. t XVIII, p. 4.73 ss. and especially p. 500, where he declares that it is never lawful for a judge, at least in France, to pronounce a divorce for any cause whatever; though he does not admit the intrinsic malice of the act. 6. O. c., II, n 1248, where he says that he inclines to the rigorous opinion. Thus also in the edition of 1904, n 1554. 7. O. c., p. 91 ss., compare with p. 77. 8. GASPARRI, o. c., II, n 1242 : Dum casus conscientiae discuteretur Romae in ecclesia S. Apollinaris, die n Martii 1889, viri, qui mentem S. C. Inq. optime perspectam habebant, publice affirmarunt S. C. hoc decreto (27 Maii 1886) sen- tentiam divortii civilis damnavisse tanquam intrinsece illicitam . 9. Cooper., p. 96 ss. ; cf. the N. R. th., XIV, XVI, XVII, and XVIII. 10. O.c.,p. 390-397. 11. O. c. II, n 701, in note. 12. O. c., p. 8 s., where he proposes another interpretation of the decrees of the Holy See, especially of those of 25 June 1885 and 27 May 1886. He thinks that the Holy See, in the former decree, taught the lawfulness of pronouncing divorce under the stipulated conditions, and that in the following year it only reprehend- ed such an act in the same measure, that is to say, in so far as the required conditions were not fulfilled. The decree of 1885 requires two conditions, while the consultation of 1886 inserts only one, and omits that which requires the functionary to declare publicly that the regulating of marriage belongs exclus- ively to the Church. La decision du 27 mai (1886) 6carte une application tron- qu6e et abusive de la declaration g6ne"rale du 25 juin (1885) . 13. DeMatr., p. 42655. 14. O. c., II, n 561. 15. O. c., p. 6345. 16. O. c., p. 34 ss. 17.0. c., II, n 2126. LAVIALLE, o. c., p. 51 s., says of Marc, that, after having maintained the broader opinion before the decree of 1886, he then abandoned it, but adopted it again after the rescript to the Bishop of Lu9on. 18. O. c., n 183 ss. ; cf. also the Quaestiones in Cow/., 1898, p. 52 ss. ; La Vie diocesaine Documenta, 1912, p. 55 ss. CIVIL DIVORCE 391 BESSON ('), COLLAT. TORNAC. (*), SALSMANS ( s ), REVUE PRAT. D'APOL. () NOLDIN (-'). Finally, FEYE (), VLAMING ( 7 ), ALLE- GRE ( 8 ), and DE LUCA ( 9 ) are undecided. An objective examination of the question and arguments drawn Conclusion. from authority lead us to the following conclusion : Until the Holy See has spoken more clearly, there is no need to look upon the declaration of a judge in authorising divorce, and the action of a municipal officer in pronouncing it, as intrinsically evil ; in parti- cular, as far as Belgium is concerned, we cannot condemn the functionaries who act thus whenever their office requires it of them, provided they avoid giving scandal. FIFTH COROLLARY. 213. A. A petition for civil divorce on the part of a Catholic, who is 5. Petition for indissolubly united in a valid marriage, does not appear to be intrinsi- Cl cally evil, but merely unseemly ; so that, apart from special circumstan- ces and the positive prohibition of the Church, it may be justifiable at times, though rarely so. B. We are of opinion that the like holds good for the counsel for the petitioner. Explanation and demonstration. 1. The action of a Catholic in petitioning for a divorce is not, ) on the part as we have already shown, intrinsically evil fry reason of its object, or wife, nor is it so, by reason of any inseparable and incompensable circum- stance. If the reader will refer to what we have said above, he will is not an . . ,. ,, . . ,. ... action intrin- easily see that there is here no question ot perverse intention ; it is sically evil, supposed that the petition is not made with the intention of marry- ing again ; neither is there any immediate co-operation in the sin of another. There may be some indirect scandal, but a suitable declaration is capable of removing that to a great extent. 1. R. th.fr., 1905, p. 371 ss. 2. Year 1908, p. 591 ss. 3. O. c.,p. 43 ss. 4. T. XI (Jan. 1911), p. 531 s. 5. Summa theol. ntor., Ill, 1908, n 672 ss. 6. Delmp., n 584, 5. 7. O. c., II,n598. 8. O. c., I, p. 218 ss. 9. O. c., n 1058. 392 CIVIL DIVORCE though rarely, but merely Again, there is nothing more than material mediate co-operation unseemly, - n ^ con ti n g e nt sins of the other party, and co-operation in the evil effects of the law ; thus the question is reduced to one of the existence of a proportionate cause justifying such co-opera- tion. on account of 1. In countries where the civil law does not admit simple corporal and l^opera- separation, this cause is not very hard to find. Divorce is then tion ; to legi- the sole means of legitimating in the civil law separation a mensa there is ^ toro, and of avoiding disagreeable legal consequences ; but sometimes, there must first be a declaration of the Bishop permitting the separation. 2. In other countries : a/ Generally there is no sufficiently urgent reason to justify a petition for divorce rather than for separation. The desire to avoid the inconveniences of separation, as being relatively greater than those of divorce, does not ordinarily suffice to outweigh the deplorable consequences of the latter. To be precise, we maintain that it is not sufficient to allege the provision of art. 310, which permits the guilty party, against whom a decree of separation has been pronounced, to have this convert- ed into a decree of divorce after an interval ot three years ; for, in this case the loss to the innocent party is not so considerable, seeing that the provision of art. 299, in favour of the party obtain- ing the divorce, is not applicable under the circumstances. See above, n 207. Moreover, it is not sufficient that the simply separated wife is at a certain disadvantage, in that she is under a legal incapacity that prevents her from acquiring and alienating possessions with- out the consent of her husband ; the less so, as art. 218 empowers the judge to supply the want of such consent. Finally, as a general rule, we can in no way consider as suffi- ciently grave the disadvantage arising from art. 312, paragraph i, which regards the children born of a separated wife as those of her husband. No doubt this provision lends itself to some very vexa- tious consequences, but they may for the most part be avoided, even under the Civil Code of Belgium, since paragraph 2 of the same art., as we have pointed out in n 170, gives the husband the power of repudiating such children. CIVIL DIVORCE 393 The answers of the S. Penitentiaria, of 5 Jan. 1887 ('), 14 Jan. 1891 (*), 16 Apr. 1891 ( J ), and 7 Jan. 1892 (*), though they do not strictly prove it, yet support what we have said above. b/ Exceptionally, however, especially in Belgium, it would seem a sufficient that there may be such an accumulation of circumstances as would suffice to justify a petition for divorce. We have particularly in view the danger of intrusion of adulterine children, in cases in which such danger cannot be removed by means of the provision contained in art. 312, paragraph 2. For, in order that the husband may, in conformity with the Belgian law, repudiate the child of his separated wife, it is necessary for him to prove that pendant le temps qui a couru depuis le 3oo e jusqu'au i8o e jour avant la naissance de cet enfant... il etait dans 1'impossi- bilite physique de cohabiter avec sa femme > ; but the proof of this may be rendered impossible by the wife's fraudulent and secret frequentation of her husband's house. We are aware that the very case of which we are speaking has been submitted to the S. Penitentiaria and answered in the more rigorous sense, on Jan. 7 th , 1892. But, in the first place, it is quite possible that this answer applies only to France, where the dan- ger of this intrusion of adulterine children is more easily obviated than in Belgium, owing to the law of 1850 ; there also, as we have already observed, the Holy See may have taken into account the 1. To the proposed case of a woman who desired to get a divorce, because she could not otherwise obtain a public office, which she needed as a means of livelihood, the following answer is given : the woman in this case must be advised that she is bound, sub gravi, to refrain from seeking a divorce . N. R. th., XIX, p. 74. 2. A woman is refused permission to petition for a divorce in order that she may thereby acquire the right of managing her property, and so avoid serious difficulties. N. R. th., XXHI, p. 671. 3. In like manner, this permission is not granted to a woman who wishes to obtain a divorce in order that she may, before the civil law, assume the charge of a niece who has been deserted by her father. N. R. th., XXIII, p. 677. 4. Finally, it is declared unlawful to proceed to divorce, even where it is desired by a husband whose wife is living in adultery, and who, being enceinte by some other man, returns from time to time to her husband's house for the purpose of making it impossible for the husband to repudiate paternity ; and hence, in the case in which a husband seeks divorce pour pouvoir r6pudier cette patcrnite, pour empecher 1'introduction de nouveaux batards dans sa famille . N. R. th., XXIV, p. 528 ss. 394 CIVIL DIVORCE particular circumstances of that country, and have acted with greater severity in consequence. In the second place, the answer of the S. Penitentiaria is limited to the particular solution of a given case ; and the same Congregation, some months later, 30 June 1892, thought it sufficient to answer : Let the petitioner consult approved authors ('), Further, the majority of the authors quoted above in favour of our first thesis, support us equally in the present instance ; and we know that many of the episcopal chancelleries of Belgium have permitted recourse to be had to divorce in cases where the imminent danger of the intrusion of adulterine children could not be otherwise removed ; and even, on one occasion at least, in the case of a wife of irreproachable character and of good position, who had been ruined by the extravagance of her husband, and whose parents refused to assist her, unless a divorce were obtain- ed, and the spendthrift thus deprived of any further power over the wife's property. In practice, however great reason there may be for bringing an action for divorce, no Catholic could lawfully bring such an action before the civil courts, without having first consulted the eccle- siastical authorities. Moreover, if the bill proposed by Al. Braun and already adopted by the Belgian Senate, 16 March 1911, becom- es law, the particular difficulties of which we have just spoken will practically disappear. See n os 210 and 170. in like man- 2. Where it is permissible for a married person to petition for T b f Tthe* a divorce, it i s a l so lawful for barristers to plead their case. But, barrister, apart from this hypothesis, it is not lawful for them to undertake divorce cases, since on the one hand they are free to refuse the cases offered, and, on the other hand, the consequent loss of fees is in no way proportioned to the gravity of the evils that have to be avoided. This prohibition must be observed even when it is quite certain that the parties do not intend to make an ill use of their divorce and marry again. For,though in such a cause, the counsel does not co-operate in adultery or concubinage on the part of the interest- ed parties, he nevertheless does co-operate in the carrying out of the law, and therefore in the evil consequences that it entails i.N.R. th., XXIV, p. 539 s. CIVIL DIVORCE 395 upon society ; and this is a matter of the greatest moment. Undoubtedly, if they refuse such cases, others less conscientious will accept them and pocket the fees ; consequently the effective co-operation of Catholic barristers is not so great as might, at first sight, appear, and therefore a reason that would justify them in accepting, might be the more easily found. Nevertheless, there is no denying that there is co-operation, and co-operation of such a kind as no consideration of private gain can justify. There is, however, room for an exception in favour of the sta- giaires,to whom the Bureau des consultations gratuites assigns a pro Deo of this kind. If the circumstances are such that they cannot refuse, and their professional duty imposes upon them one of these cases, they may, after a serious attempt to avoid the obli- gation, undertake it ; but they must then confine themselves to a simple statement, before the court, of the legal grounds on which the petition for divorce is based, while declaring that it is contrary to Catholic principles (*). In conclusion, then, one can follow in practice, at least in Conclusion. Belgium, and saving any instruction of the Holy See to the con- trary, the opinion which holds as lawful, all the requisite condi- tions being fulfilled, a petition for divorce, whether on the part of the husband or wife, or, on their behalf, on the part of their counsel. i. Equity demands that members of the Conseilde discipline and of the Bureau des consultations gratuites should respect liberty of conscience in the distribution of cases, and not assign to Catholics cases which they cannot conscientiously undertake, especially as there are plenty of barristers who have no scruple about doing so. To the praise of our courts be it said that in general their prac- tice on this point is quite satisfactory. Nevertheless there exist some decisions opposed to this spirit of equity, deci- sions which may indeed be reversed, but which, as things now stand, might be employed to compel all stagiaires to plead in cases of divorce. Such are the decisions of the Court of Brussels : Cour d'Appel, 22 Dec. 1875 (J. DES CRES- SONNIERES, Decisions du conseil de I'ordre des avocats pres la cour de Bruxelles, Bruxelles, 1907, p. 38) and rg Jan. 1876 (Pandectes Beiges, under Bureau des Con- sultations gratuites} : Un avocat ne peut pas se pre"valoir de considerations tenant a ses convictions religieuses, pour refuser de se charger de la defense d'une cause (juste d'apres les lois en vigueur) qui lui a etc distribute par le bureau des consultations gratuites . 396 CIVIL DIVORCE SIXTH COROLLARY. As regards the civil re-marriage of the divorced party : An opinion which appears probable holds as justifiable the act of the municipal officer who civilly unites persons, one of whom is in the eyes of the Church validly married to another, but is divorced from that party before the civil law. Explanation and demonstration. 2/4. 6. The lawful- It is clear that in this case the co-operation given by the civil *onhe syndic, functionaries is more effective than in the two which we have who civilly been dealing with, and that it has a more direct bearing on the unites a divorced sins of the pseudo-married parties ; consequently it is the more party, difficult to find sufficient and proportionate reasons. Nevertheless, on the one hand, it would be hard to condemn indiscriminately all Catholic functionaries who have to discharge this office, and to make them choose between their conscience and their profession ; while, on the other hand, if all were compelled to resign, such a course would result in great injury to the general welfare. appears pro- Moreover, if they could not apply the law in the present case, neither could they in that of persons who are incapable of con- tracting a religious marriage by reason of some diriment impe- diment ('). We believe, then, that the more indulgent opinion is probable, strengthened as it is by the support of authors of note, like GENNARI and BOUDINHON, in their Consultationes, 2 nd Part, II, p. 246 ; DE LUCA, o. c., n os 1047 s. ; SCHNITZER, o. c., p. 77 s. ; BOVENS, o. c., 36-40; GBNICOT-SALSMANS.O. c., II, n 562 ad 4 m ; LEHMKUHL, o. c., II, n 725, in note ; NOLDIN, Summa, II, n 680 ; WERNZ*, o. c., n 208, p. 339 s. GASPARRI, o. c., ed. 1904, n os 1530 ss., is rather favourable ; as to HOLLWECK, o. c. p. 77, he recognises that our opinion is applicable in practice. i. On the assistance of the municipal officer at the marriage of parties in- capable of contracting a canonicaily valid union, cf.SxNTi, in l.IV Deer., Tit III, n. 55 s., who thinks such co-operation quite lawful. GASPARRI, o. c., II, n 1230, says on this point : Quanquam Santi non citat (in favorem suae theseos) S. Poenitcntiariam, tamen nonnulli suspicantur eum hanc doctrinam ex jurispru- dentia ipsius S. Poenitentiariae desumpsisse, cujus fuit per pluresannos cano- nista et tandem regens per paucos menses ante mortem . CIVIL DIVORCE 397 Answers given by the Holy See to the contrary effect ('), may be understood in a way analogous to the interpretation we have already given in several instances, according to which they may be taken, not as deciding the question of principle in relation to the intrinsic malice, but as simply pronouncing unlawful an act of this kind, in a certain country and on account of certain particular circumstances, and prohibiting it by a positive defence. We may remark, in conclusion, that the priest who holds as certain the more rigorous opinion, in practice cannot do better than leave the municipal officer in good faith, and refer to the Ordi- nary any who consult him on the subject. Scholion. Postfactum, quando scil. detegitur pcenitens divor- tium civile a matrimonio canonice valido illicite impetrasse, quo- modo tractandus est a confessario ? 1 . Si non contraxit nee contrahere intendit novum matrimonium civile: oportet ut poenitens de peccato commisso, in quantum fuerit for- male, sincere doleat ; praeterea debet, si fieri potest, cum derelicta comparte reconciliari ac consortium maritale reinstaurare (*) ; quse reconciliatio si impossibilis aut inopportuna iudicetur, tene- tur poenitens scandalum forte provocatum reparare ac monere parochum de separatione tecti instituta, et per eum sententiam judicis ecclesiastic! obtinere, attentis principiis propositis sub n. 155 et 156. Quibus praestitis, nihil jam obstat quominus ad sacramenta, etiam publice, admittatur pcenitens, ac imo potest absolvi seria factapromissione de dictse obligationis futura executione. 1. Such is the decree of the C. S. O. of 1886, quoted above, under C, fourth Co- rollary; likewise the decree,sent in the name of the Card. Grand Penitentiary by the Substitute, 28 Nov. 1883: Having laid before His Eminence the Grand Peni- tentiary the case of the municipal officer,... who in virtue of his office was requir- ed to assist at the civil marriage of a person already married in the eyes of the Church, I have to make known to you, by order of the same, that the officer in question could not in any way lend himself to an act so contrary to the sanctity of marriage. Consequently,whatever the circumstances of the case may be, he is bound to abstain entirely from such assistance, even if his position depends upon it . N. R. th., XX, p. 399 s. 2. Sub n 205 et 207, notavimus in Gallia et in Belgio non prohiberi conjuges divortio separates quominus iterum civiliter copulentur, salva nova celebratione. Hoc obtinet in Gallia inde ab anno 1884, quando lex divortii est reintroducta ; in Belgio, in hunc sensum moderatus est art. Cod. Civ. 295, anno 1906. 398 CIVIL DIVORCE 2. Si ad alia vota transire attentaverit, novo inito matrimonio civili cum tertia persona : Optanda solutio foret ut, impetrato divortio civili ab hoc altero pseudo-vinculo, reconcilietur cum legitima comparte cum eaque vitae conjugalis consortium reassumat ('). Quodsi ad hanc solutionem deveniri nequeat, urgendus est pce- nitens ut saltern, reparato scandalo,a concubinatu recedat, etiamsi locus non sit divortio civili obtinendo ( 2 ) ; nee potest ad sacra- menta publice admitti antequam concubinatum efficaciter abru- perit, imo ad ipsam absolutionem non sufficeret, regulariter et extra casum urgentem, sola promissio de futura concubinatus abruptione. Abrupto autem concubinatu ac reparato scandalo, manet ut poenitens, juxta dicta sub 1., moneat parochum et sententiamjudi- cis ecclesiastici obtineat super separatione tecti ; quibus peractis potest, supposita resipiscentia, ad sacramenta admitti ; etiam potest sacramentaliter absolvi sub promissione hanc clausulam injunctam exequendi. Porro supponitur poenitens non incurrisse excommunicationem, cum hujus absolutio absolutionem sacramentalem praecedere de- beat ; posset nempe fieri quod, ex facto novi attentati matrimonii excommunicationem contraxerit, sive vi dispositionis juris com- munis ( 5 ), sive vi dispositionis juris particularis (*). 1. Huic novae union! inter conjuges divortio disjunctos adhuc locus est coram lege civili in Belgio, postquam novum successit matrimonium et alterum divor- tium ; nonita in Gallia. Cf. 1. c., et Collat. Brug., t. XI, p. 318 ss. 2. Non obstat huic concubinatus abruption! existentia vinculi civiliter validi : vult quidem lex civilis ut cohabitent conjuges, sed in praxi vix unquam ad coha- bitationem urgebit judex. Cf. n. 150, cum nota. 3. Potest fieri ut, posito anathemate contra illos qui putant licere christianis duas uxores habere (C. Trid., Sess. XXIV, can. a), hujusmodi pcenitens haeresim incurrerit, ideoque excommunicationem haeresi adnexam. 4. Ita in Cone. Baltim. Ill (a. 1884), n. 124, indicitur excommunicatio latae sen- tentiae Ordinario reservata contra conjuges qui, divortio civili obtento, novum matrimonium attentare ausi fuerint . THE REGULATION OF MARRIAGE 399 SECTION IV THE REGULATION OF MARRIAGE. 2/5. Preliminary note. The regulation of marriage implies the exer- WhattJu cise of legislative, judiciary and coercive power ; it extends to the contract as such, as well as to the permanent bond created by it. implies. The legislative power intervenes for determining the form of the contract, for establishing impediments, whether diriment or impe- dient, and, within the limits laid down above, for deciding what are the causes of dissolution or of corporal separation. The judicial power has to pronounce upon the validity or nullity of matrimo- nial contracts, as well as upon the reality and gravity of the causes of dissolution or of separation. The coercive power has for its pro- vince the prohibition of marriage, even under pain of nullity in punishment of certain offences, or the prohibition of the use of marriage ; and, in addition to this, the enforcing of respect for the obligations arising from marriage. PARAGRAPH I. THE REGULATION OF MARRIAGE OF BAPTIZED PERSONS. I. RIGHTS OF THE CHURCH. ajg PROPOSITION. The regulation of the marriage of baptized persons, TJtere^ulu- particularly the power of establishing impediments, belongs exclusively tio ofmarri- apt, of to the Church and is its proper right, in virtue of the Divine Will, and baptized per- in consequence of the nature of Christian marriage. We will prove these statements one by one. the Church, FIRST STATEMENT : The regulation of the marriage of baptized per- sons belongs to the Church alone, to the exclusion of the civil power. First proof. Marriage validly contracted between baptized per- sons is a sacrament inseparable from the contract and making one whole with it. It follows from this that any regulating of the con- tract at the same time touches the sacrament ; it is impossible to impose conditions affecting the validity of the contract without thereby extending them to the reception of the sacrament ; no one can be incapacitated from the contract, without at the same time being incapacitated from the ministry of the sacrament. 400 THE REGULATION OF MARRIAGE It is true, as we shall presently see, that the exercise of juris- diction over the matrimonial contract of baptized persons, and in particular, the establishment of impediments, does not modify the sacrament either in its matter or in its form, since the sacrament is present only when the contract is valid ; but it is equally true that, in view of the identity of the contract and the sacrament, one cannot regulate the one without interfering with the other (*). Now, it is quite evident that the administration of the sacra- ments naturally belongs to the Church alone, to the entire exclu- sion of the civil power : To decree and ordain about the sacra- ments is, by the will of Christ, so much a part of the power and duty of the Church, that it is plainly absurd to maintain that even the very smallest particle of such power has been transferred to the civil ruler . Encycl. Arcanum. Second proof. Moreover, leaving out of the question the sacra- mental dignity, marriage considered in its natural character is a holy thing, not essentially and intrinsically, but in consequence of the end to which it is directed. For, its direct and immediate object is the bringing forth of children for the Church, fellow citizens with the Saints, and the domestics of God (Enycl. Arcanum) ( 2 ), and upon the right ordering of it (marriage), very much depends, which immediately concerns the common spiritual good ( s ). 1. CARRI&RE, o. c., I, p. 399, therefore, is at fault when he compares the establishment of a diriment impediment, invalidating the Christian marriage contract, to the corrupting of the water or wine for use in Baptism or the Most Holy Eucharist, as if the one affected the sacrament no more than the other. Cf. supra, n 104; MARTIN, o. c., II, p. 51 ss., where he fully refutes the argument of parity adduced by Carriere. 2. Le mariage est, dit-on, 1'entree de 1'Etat : il est bien aussi 1'entree de I'Eglise. C'est de la main des epoux que la societe civile re9oit ses guerriers, ses magistrats et ses juges ; mais ce sont bien eux aussi qui donnent a I'Eglise ses pretres, ses pontifes et tous les Chretiens, qu'elle conduit par la pratique de PEvangile a la vie eternelle . Thus the Author of the pamphlet : Examen du pouvoir legislatif de I'Eglise, p. 116. 3. Ibidem, p. 116 s. : Des manages mal assortis naissent les divorces et les dissensions domestiques. Mais le divorce est encore plus re"prouve par la loi de Dieu que par la loi du Prince ; la discorde n'est pas moins opposee a la charite chretienne qu'& Pharmonie sociale. Des manages obscurs et clandestins naissent la bigamie, 1'abandon des Spouses et des enfants : desordres qui desolent I'Eglise THE REGULATION OF MARRIAGE 40! If, then, marriage is a sacred thing, as Leo XIII, 1. c., argues, it ought to be regulated and administered, not by the will of civil rulers, but by the divine authority of the Church, which alone in sacred matters has the office of teaching >. It is true that marriage as immediately concerns the conservation and growth of civil socie- ty ; and consequently, speaking in the abstract, the secular autho- rity would have a right and a claim to the regulation of Christian marriage, apart from the sacramental dignity. But, taking things in the concrete, the State cannot assert its right against the higher right of the Church. It is necessary that the State should give way to the Church, since it is impossible that the same marriage should be regulated by two different powers, independently of one an- other (<). These considerations furnish a reply to the objection that is often made against the exclusive right of the Church over marriage, apart from its sacramental nature. A/a/. : The civil authority can, autant qu'ils affligent PEtat. Les manages incestueux offensent la nature ; mais Dieu est-il moins outrag6 que le Prince par les crimes qui outragcnt la nature ? La mauvaise education est le resultat necessaire des mauvais manages ; avec de la bonne foi on convient que la morale souffre, encore plus que la politique, du vice de 1'education. L'Etat pourra faire d'un mauvais mari un bon soldat, et meme un bon general ; mais il sera toujours un mauvais Chretien . i. Otherwise the same marriage might be at once valid and invalid ; the same parties might be considered by the spiritual judge as lawfully married and bound to cohabitation, and by the lay judge as unlawfully united and subject to separa- tion. It may be answered that the parties interested have only to take into account both the ecclesiastical and civil impediments. Be it so ; but what are they to do, when the two authorities prescribe for the validity of the contract formali- ties that mutually exclude one another ? Cf. PALMIERI, o. c., p. 268 ss. J HEUSER, o. c., p. 82-84 ; BASDEVANT, o. c., p. 40 s. The possibility of this dual control of marriage was formerly admitted by certain Authors who favoured the distinction between the sacrament and the contract, like Carnere, Gerbais and Ballet, of whom we shall speak below, towards the end of n 219, and also by the anonymous author of the pamphlet Apologie du manage chretien (p. 98 ss. and 119 s.). They relied on the hope that Christian Princes, in their matrimonial legislation, would conform to the laws of the Church, and that so all conflict would be avoided. MARTIN, o. c., II, p. 273-292, gives a lengthy refutation of the principle of duality. 402 THE REGULUTION OF MARRIAGE so long as it does not infringe on the natural and divine law, make laws in regard of everything that is not intrinsically sacred, and that concerns the welfare ol civil society. Min. : But this is the case with Christian marriage. Therefore. We distinguish the major : If it is a question of something that concerns spiritual welfare directly, and temporal welfare only mediately, and through the former,the proposition is false. If it is a matter that concerns temporal welfare immediately, two hypo- theses are possible : either no spiritual interest is involved, and then we concede the whole ; or the spiritual is as directly interest- ed therein as the temporal ; and then, in default of the existence of a supernatural society,or when the two powers can be exercis- ed concurrently, all is well; but if there is a supernatural society, and regulation by the two authorities side by side is impossible, then it is for the civil authority to give way. But, if Christian marriage immediately concerns the welfare and growth of civil society, it no less immediately concerns the welfare and propagation of the Church, and, as we have said, in this case the concurrent exercise of the two powers is impossi- ble. This latter argument, considering the impossibility of dual con- trol, holds good also against those authors who deny the sacra- mentality of marriage, or insist on the distinction between the contract and the sacrament ; it is sufficient that they should not, with the civilists, hold the marriage contract a merely secular con- tract. This is the formal teaching of the Sovereign Pontiffs, especially of Pius IX in the Syllabus (condemned propositions 68(')and 71) (*); of Leo XIII, in his Encyclical Arcanum, in his Letter to the Bish- ops of Peru, 16 Aug. 1898 (Anal. eccl. 1899, p. 440), and to the Bishops of Ecuador, 22 Dec. 1902 (Anal, eccl., 1904, p. 281 ) ; and of Pius X, in his Letter of 14 Nov. 1906 (Anal, eccl., 1907, p. 53 s.). I. The Church has not the power of introducing diriment impediments of marriage, but this power belongs to the civil authority, which ought to remove those that now exist . DENZINGER, o. c., no 1768. 3. The Tridentine form is not obligatory under pain of nullity where the civil power substitutes another in its place and decrees that marriage should hence- forth be valid under it . Ibid., n. 1771. THE REGULATION OF MARRIAGE 403 See also the other documents quoted by DE BECKER, De Matr., p. 30 ss., and FEYE, De Imp , n os 22-56. 2/7. SECOND STATEMENT : This exclusive right of the Church is its as its proper proper right, belonging to it in virtue of the Divive Will, and in con- sequence of the very nature of marriage. oftheveryna- We say : 1 . It is its proper right, that is to say, independently r iage ; '' of the consent and good will of the secular authority and not having its origin in any way in the civil power > ('). 2. This right belongs to it in consequence of the very nature of marriage : that is, it is in no way based on any positive law of the Church, like, for instance, athe causes and civil lawsuits of the infe- rior clergy, which are amenable to the secular courts^ but which a positive law of the Church formerly reserved exclusively to the ecclesiastical tribunal (*). On the contrary, in the words of Leo XIII (Arcanum), it is clear that the power of the Church over Christian marriage belongs to it of right, and is in no way dependent on the good will of man, but on the will of its divine Author . This assertion needs no proof after what we have already said ; all the arguments adduced in the preceding pages demonstrate this proper right of the Church, and show its dependence on the divine law and the very nature of Christian marriage. The Holy See is again quite explicit in this regard : Pius VI condemns the 59 th i. DE BECKER, De Matr., p. 30 s. a. WERNZ, o. c., n. 55 et 56, ad 3. Cf. SCHNITZER, o. c., p. 46 ss., in note 3, where this author, though, on page 38 s., he defends the identity of Christian marriage and the sacrament, contends that the exclusive right of the Church im positiven Kirchenrecht gelegen ist, das aus wichtigen Griinden jene Befiigniss der Kirche reservirt hat >. In the same sense also formerly wrote SANCHEZ, o. c., 1. VII, Disp. Ill, n. 2 ; the SALMANTICENSES, o. c., c. IX, n. 14 et 15, together with others mentioned by WERNZ, o. c., n. 56, who maintained that the regulation of Christian marriage, of itself, belonged at once to the Church and the State, but in such a way that the Church had the power to reserve to itself matrimonial legislation, to the exclusion of the civil State, as in fact it has reserved it ; but they reduce this power of reservation to an indi- rect power, which the Church here exercises by withdrawing marriage from the power of Princes on account of its connection with the sacrament. Cf. also PONTIUS, o. c., 1. VII, c. II, n. 3. Against the fact of this reservation, see GIBERT, Tradition ou Histoire, I, p. 18 ss. 404 THE REGULATION OF MARRIAGE 218. so that the legislative power, judicial power, proposition of the Synod of Pistoja ('), and Pius IX condemns the 69 th proposition of the Syllabus ( 2 ). THIRD STATEMENT : This regulation, which belongs exclusively to the Church, involves the exercise of the legislative, the judicial, and the coercive power. The proofs already furnished bear directly on the legislative power ; but they suffice at the same time to show that the judicial power, and, when occasion requires, the coercive power belong likewise and exclusively to Rome. The judicial power offers no difficulty. It is a universally accepted axiom, that it belongs to him who made the law to judge the cases that arise under it, or, in other words, that he who has the legislative power in a matter, has also the judicial power in the same ( 3 ). Moreover, the Council of Trent, Sess. XXIV, can. 12, teaches that matrimonial causes appertain to the ecclesiastical judges ; and Pins VI, in his letter to the Bishop of Motula, declares that this is to be interpreted in the exclusive sense : for, he says, the terms of the canon are so general as to comprise and include all causes. Moreover, the spirit and nature of the law are of a kind to exclude any exception or limitation ; for,since such causes are subject to the judgment of the Church alone, solely on the ground that the matrimonial contract is really and properly one of the seven sacraments, given that this sacramental quality is common to all matrimonial causes, they all consequently fall under the exclusive province of the ecclesiastical judges, seeing that the 1. DENZINQER, o. c.. n 1559 : Doctrina Synodi asserens, ad supremam civilem Potestatem dumtaxat originarie spectare, contractui matrimonii apponere impedi- menta ejus generis, qux ipsum nullum reddttnt dicitnturque dirimentia... ; sub- jungens, supposito assensu vel conniventia Principum, poiuisse Ecclesiam juste con- stituere impedimenta dirimentia ipsum contraction matrimonii : quasi Ecclesia non semper potuerit ac possit in christanorum matrimoniis jure proprio impedimenta constituere, quas matrimonium non solum impediant sed et nullum reddant quoad vinculum... canonum 3, 4, 9, 12, Sess. XXII, Concilii Tridentini eversiva, haeretica . 2. The Church began to establish diriment impediments in the course of time,not in virtue of its own proper right, but of a right borrowed from the civil power . Ibid., n 1769. 3. AICHNER, o. c., p. 564. THE REGULATION OF MARRIAGE 405 reason given applies to all ('). Finally, Pius IX, in his Syllabus, n 74, condemns the proposition that says : Marriage and betroth- ment causes belong, of their nature, to the civil courts . Thus, then, if the doctrine of the exclusive judicial power of the Church with relation to all matrimonial causes, is not defined as an article of faith, it cannot be denied without error or temerity. The coercive power is the natural complement of the legislative and coercive and judicial power, since coercion is sometimes necessary for the P ower > application and execution of the laws and judgments, and for the effective safeguarding of public morality in the matter of marriage. We must accordingly acknowledge that Rome, having the regu- lation of marriage, has also the right of dealing with offending spouses, and of annulling, for instance, marriages contracted between an adulterous husband or one who has murdered his wife, and the accomplice of his guilt ; the right also of punishing incest by prohibiting the use of marriage ; together with that of constraining married persons to separate, as well as to resume conjugal intercourse. This power belongs to the Church alone ; but the secular arm may here come to its assistance, within the limits of a due depen- dence and subordination. FOURTH STATEMENT : The regulation of marriage, thus understood, together with implies for the Church, and for it alone, the power of establishing impe- diments both diriment and impedient, within the limits of the natu- impedientand . . diriment ral and dimne la.iv. impediments. This is obvious. The common good requires in this matter over and above the prescriptions of the divine and natural law, prohib- itive measures and also invalidating clauses, e. g., for the pur- pose of restricting marriages between those related by consan- guinity or affinity, for effectively preventing the marriage of the accomplices in certain crimes, and so forth. The Council of Trent, Sess. XXIV, can. 4, has authoritatively confirmed this doctrine, and declared, under anathema, that the Church has recei- ved the power of establishing diriment impediments of marri- i. HEUSER, o. c., p. II s., gives the full text of the letter and the circumstance that gave ocassion to it. 406 THE REGULATION OF MARRIAGE age (') . Cf. also the 59 th proposition of the Synod of Pistoia. It is often objected, that marriage is a sacrament instituted by Our Lord, that therefore its nature and character cannot be modified, and that its matter and form, according to the teaching of the Council of Trent, must remain free from all substantial change. This objection is sufficiently specious, especially in so far as it concerns impediments relating to the formalities of the contract (*). The answer, however, is easily given. If Christian marriage is a sacrament, it is also at the same time a contract ; but the con- tract which was elevated by Our Lord to the dignity of a sacra- ment is not any matrimonial contract whatsoever, but only the valid contract, that is to say, one made under the conditions that the competent authority requires for its validity. The Church can, 1. With regard to the canon of the Council and the interpretation to be put upon it, see the Declaratio super doctrina professorum scminarii generates Lovanii of the Archbishop of Malines (Card, de Franckenberg), of 26 June 1769, in KUTSCHKER, o. c., I, p. 69 ss. ', and compare with MOSER, o. c., p. in ss. ; in this Declaration, the Prelate, after vindicating the dogmatic character of the canon, teaches that the power, which the Council acknowledges as belonging to the Church, is a power belonging to it in its own right, and that it was received from Christ, not from the civil Prince. This interpretation is directed against Launoius and his followers, who, as MOSER remarks, o. c., p. 100, endeavoured to evade the Tridentine canon by contending that it was not dogmatic, but merely disciplinary, and that by the Church one ought to understand kings and princes, as being leading members of it, whose name and authority the Church employs, when establishing matrimonial impediments . Cf. what we shall presently say, towards the end of this n 219. 2. This difficulty was raised in the course of the Council of Trent, on occasion of the decree of clandestinity, as Benedict XIV remarks, in his Apostolic Letter of 10 March 1758 (Collectan., n 1391) : It was questioned at first whether the Church could do away with clandestine marriages, seeing that the lawful con- tract is at the same time the matter and form of the sacrament of marriage... whence several concluded : that when once the mutual transfer and acceptance of the conjugal right have lawfully taken place, the matter and form exist ; and these cannot be modified except by Him who is the Author of the grace con- ferred by the sacraments . This is why the Tridentine Fathers, in order to avoid touching the matter and form of the sacrament, established the impediment of clandestinity by binding the contracting parties themselves, and rendering them incapable of contracting marriage otherwise than before the parish priest and two witnesses. See above, n 63 ; ESMBIN, o. c,, I, p. 78 ss. ; II, p. 159 ss. THE REGULATION OF MARRIAGE 407 then, as we have observed above in n 216, by means of impedi- ments place conditions for the validity of the contract, and so affect either the contracting parties, or the formalities of the act, without modifying the substance of the sacrament. It places con- ditions for the valid reception of the sacrament, but the substance of the latter remains altogether intact. \Ve may add that the Church alone, to the exclusion of the State, has this power of establishing impediments. This is a con- sequence of the first statement demonstrated above, viz., that the regulation of the whole of this question is reserved to the Church alone. Thus the State has not the right to establish even purely prohibiting impediments ('). sm. But, for the further question : within what limits has the Church Within what the power of setting up matrimonial impediments, it will be well matrimonial to keep these two principles in mind : impediments may be set up. 1. The Church has the power of establishing impediments for its own subjects, not only with a view to spiritual good, whether private or public, but also with a view to bodily and temporal good. For, marriage is a mixed matter, affecting both spiritual and tem- poral well-being, and so, since the whole regulation of it belongs to the Church, it is the business of the Church to provide for both in its matrimonial legislation, considering what we shall have to say presently in n 220. Thus the Church has the power to set up impediments of age, consanguinity, affinity etc., even in the supposition that only temporal welfare requires it. 2. The Church has no power to impose impediments that infringe the natural and divine law. In particular, it must have regard for that innate right of marrying, which each one is recog- nised as having by the natural law ; as also for the spiritual i. The teaching of Perronc and De Aitgelis, to whom may be added SCHNEI- CHER, o. c., p. 12 s., that the State has power to introduce, for Christian marri- age, impedient impediments, was expressly reprobated by Leo XIII, in his letter to the Bishop of Verona, 8 Feb. 1893 : No other power but that to which it belongs to determine the necessary conditions for the licit and valid celebra- tion of marriage, either can or ought to pass judgment in the matter*. Acta S. Sedis, XXV, p. 462. 408 THE REGULATION OF MARRIAGE necessity of the soul which not unfrequently renders it imperative that one should marry. This has special reference to the establishment of an absolute impediment, that is to say, one by which a determinate class of persons is forbidden to marry, or rendered incapable of marrying by an invalidating law, not only relatively, in respect of such or such a person, e.g., a relation by blood of marriage, but absolutely, in respect of any person whatsoever. There are, indeed, cases in which that might lawfully be done by the Church ; but, apart from the case in which the prohibition or invalidation of marriage rests upon the spontaneous renuncia- tion, made by one who takes a vow of chastity or of celibacy, or receives Orders, only quite exceptionally and for the gravest rea- sons could recourse be had to the aforesaid law exclusive of all marriage. Two reasons of this nature might be admitted : the necessity of defending the life and rights of a third person, and the necessity of defending and vindicating the common good of society. The former reason obtains in the case of those who are suffering from a contagious disease, e. g., leprosy or syphilis, in such a degree as to occasion danger of contagion for the partner. Under these circumstances, it seems that the social authority, for the protection of the life of the partner, might forbid, and that under pain of nullity, one so affected to marry, as long as the danger of contagion endures ; but such persons already have no right to marry with such great injury to a third person. This reason of defending the rights of a third person could not be invoked in favour of the prospective offspring, that is to say, in such a way that the social authority, in order to safeguard the right of the child, would have the right of precluding from marriage those who are sickly, feeble, or suffering from a disease that is not contagious in respect of the partner, in order that sickly and defective children might not be born of such a union ; for, the child yet unconceived has no rights, and even for it, it is better to be sickly than not to be at all. The latter reason might obtain in a case in which the Church judged that it was necessary for the common good that certain classes of persons should not be allowed to marry. For, the social authority has the power of restricting in its subjects THE REGULATION OF MARRIAGE 409 the use of liberty, as far as the safety of society requires it, either by punishing malefactors, in order that others may be deterred from crime, or by directly protecting society and defending it against evil-doers, who endanger its existence. Thus a/ by way of punishment, certain persons who outrageously violate the sanctity of marriage might, perhaps, be excluded from marriage with a view to deterring others from such conduct and inducing them to observe the laws of marriage ; generally, how- ever, it would be better to find some other way of restoring order and safeguarding the sanctity of marriage, lest its prohibition should turn to the ruin of the soul ( ! ). Also b/, if it should happen that the very safety of society was endangered through the excessive number of the degenerate and vicious, and the disproportionate increase of defective and abnor- mal children, this might, perchance, be a reason why the social authority should forbid marriage to certain persons whose bodily or mental condition is such that, apart from the danger of conta- gion for the partner, it is evident that their offspring must be extremely sickly,feeble or defective ; as also to those whose intel- lectual and moral powers are so enfeebled that they are obviously unfit for the bringing up of children. But again, recourse must not be had to such restriction of the liberty of marriage on these grounds, unless it is really certain that there is necessity for such a step ; but this will hardly ever be the case. For, as a rule, the number of degenerates is not so great as to endanger the safety of society, which is quite compatible with the existence of a certain number. Moreover, the children of a degenerate or vicious father are not always abnormal or vicious ; and, finally, the defects of an evil disposition or inclination contracted by birth, may be remedied by the manly and Chris- tian education of the children, and by training them in the practice of virtue, whereby good habits are acquired. This remedial course is certainly to be preferred. i. In former times, marriage was frequently forbidden by the Church in poe- nam delicti, as may be seen from ns 139, 140, 242 and 329 J but it must be re- membered that the faithful were at that time more effectively guarded against licentiousness and passion, by a more fervent faith and also by the various prac- tices of prolonged penance to which offenders were condemned. 410 THE REGULATION OF MARRIAGE Taking all this into consideration, apart from the imminent danger of contagion for the partner, there will rarely be good ground for setting up a matrimonial impediment against degenera- tes and defectives, even within restricted limits ; but never could a law, which universally and by a general statute forbids or invalidat- es the marriage of every person who is diseased or in any way defective, degenerate or abnormal, be approved. Conclusion. Conclusion. Christian marriage is under the jurisdiction of the legislative, judicial and coercive power of the Church alone ; not merely in all that concerns either the conjugal contract, or the con- jugal bond itself, but also in all that is intimately connected with the conjugal bond, such as the betrothment (') that precedes it, and the essential and inseparable effects that follow it, namely, com- munity of life, legitimacy of offspring, and paternal authority. Note. Our thesis, in its various parts, is directed and it has been vindicated by the Church, in the first place, against the Protestants who, rejecting the sacramentality of marriage, regard it as an entirely profane and secular institution (as we have observ- ed above in n 96, and as we shall have occasion to remark again, below in n 2250), and accordingly taught that the regula- tion of marriage ought universally and without any restriction to be exercised by the secular ruler ; and, in the second place, against the civilists and regalists, of the seventeenth and eighteenth centuries. They looked upon Christian marriage as a civil-religious institution, consisting of a twofold element, the sacrament and the contract, the contract being, in their eyes, of a civil and profane character (*). From this they argued that marriage ought to be i.The proposition maintaining that betrothment,properly so called, constitutes a purely civil act preparatory to marriage, and subject in everything to the laws of the State, as if an act preparatory to the sacrament was not, as such, dependent on the ecclesiastical law, has been declared false... and prejudicial to the rights of the Church, by Pius VI in his Constit. Auctorem Fidei. See pro- position 73 of Syllabus of Pius IX, already mentioned, DENZINGER, o. c., n os 1558 and 1774. 2. Thus De Dominis, the apostate, at one time Archbishop 01 Spoleto, in his work, De Republica Christiana (a. 1617), hardly falls short of the Protestant doc- trine, and only hypothetically admits the sacramentality of marriage, and, admitting it, teaches that the power of the Church to regulate the marriage contract between Christians must be denied ; LAUNOIUS, DcRegia in matrimonium THE REGULATION OF MARRIAGE 411 regulated by the Prince, in so far as it is a contract, and by the Church, in so far as it is a sacrament ; so that it belonged to the civil ruler to establish impediments (at least invalidating impedi- ments), as these directly affect the contract, and not to the Church, unless with the consent of the Prince (') ; cf. below, n 226, where the evidences are given, and where it is shown how this civilist doctrine was practically applied in France and Austria, and how it prepared the way for the introduction of civil marri- age. Our thesis is also directed, in the third place, against certain Catholics, who, with Sanchez and the Salmanticenses, thought, or even now think, that the exclusive right of the Church is not derived from the very nature of Christian marriage, but from a reservation made by the Church. We speak of this in n2i7. II. RIGHT AND DUTY OF THE CIVIL AUTHORITY. A. Its right. 220. 1. The civil authority has the right to exercise its legislative, Rights of tJte judicial, and coercive power, not over those points which we have just enumerated, but over the purely civil effects of marriage. These marriages of the faithful; effects are neither essential to the conjugal bond, nor inseparable from it ; their direct and immediate concern is with the merely administrative and temporal province (*), viz., the dowry ; the potestate ; LE RIDANT, in his anonymous work, given in the Bibliography, p. 54- 96; POTHIER, o. c., especially n os 11-22. The Synodus Pistoriensis (1786) also inclined to the same error, likewise De Paula Vigil, from whose work is taken the 68 th condemned proposition of the Syllabus. Cf. supra, n 216. 1. There were also authors who, admitting the distinction between the sacra- ment and the contract, concluded therefrom that diriment impediments could, iure proprio, be established at the same time by the civil ruler and by the Church ; they divided impediments into those affecting the contract and those affecting the sacrament. Thus, GERBAIS, o. c., especially p. 2-10, where he sets forth the state of the question ; likewise CARRIERS, o. c., I, p. 402 ss. ; BALLET, o. c., p. I3-24- LE RIDANT, however, laughs at this distinction of impediments (o. c., p. XV ss. and p. 56), and rightly so, since a diriment impediment cannot be understood as affecting other than the contract of marriage ; cf. also Examen dupouvoir legis- latif..., p. 16955. Add to this that duality in the regulation of one and the same marriage is impossible. To this impossibility we have appealed above, n 216, in note, in opposition to the said authors. 2. BENEDICT XIV, Desyn. diocc., L. IX, ch. IX, n4. 412 THE REGULATION OF MARRIAGE rights of succession of married persons in respect of their parents, either as to their titles or property ; the respective possessions of the partners, their rights of succession to one another, and those of their children to their property and titles ('). c She (the Church) is not ignorant, and does not deny, that the sacrament of marriage, being instituted for the preservation and increase of the human race, has a necessary relation to events or duties in the life of man, which, though connected with marriage, belong to the civil order,and about which the State rightly inquir- es and decrees (-) . The State, therefore, can legislate with regard to these civil effects, and impose certain conditions, the neglect of which may deprive even valid marriage of such or such civil effect ( 5 ). 2. It can, moreover, take cognizance of offences against public order committed by Christians in their married life, and vindicate the law by the punishment of such crimes as adultery, incest and wife-murder. But it could not do so precisely in relation to the marriage, as, for instance, by forbidding or suspending the cohabi- tation of the parties. 3. Finally, the State has the right of recourse to the Church, and of demanding that it should, in its matrimonial legislation, and especially in the establishment or abrogation of impediments, 1. GASPARRI, o. c., n 278 ; he adds : Though married persons ought to assist one another, the amount of the property which the wife ought to bring her hus- band, i. e., the dowry, is not determined by the natural law, nor is it strictly necessary ; in like manner parents are bound to support and educate their chil- dren according to their position, but succession to titles of nobility depends on the civil law ; likewise succession to property can be at least modified by the civil law according to the requirements of society . Cf. PALMIERI, o. c., p. 264. 2. Leo XIII, Arcanum. Further on he continues : All ought to understand clearly that... the civil law can only deal with and settle those matters which spring from marriage in the civil order. Again, in his letter to the Bishop of Verona, 8 Feb. 1893, he says : It is well to call to mind that the civil power can set up and regulate the civil effects of marriage ; but all that concerns marriage itself must be left entirely to the jurisdiction of the Church*. ActaS. Sedis, XXV p. 460 s. See also the letter, already mentioned, of Leo XIII to the Bishops of Peru, 16 Aug. 1898. 3. For example, the law can decree that the children of a prince shall not share their father's rank, unless their mother has the rank of princess. See Morganatic Marriage, n 95. THE REGULATION OF MARRIAGE 413 take into consideration the circumstances and requirements of the faithful among those who are subject to its laws. The Church, on its side, is always ready to show good will, as far as it can do so without contravening the divine or ecclesiasti- cal law : The Catholic Church, though she cannot in any way give up the duties of her office or the defence of her authority, is still very greatly inclined to kindness and indulgence, whenever they are consistent with the safety of her rights and the sanctity of her duties. Wherefore she... has more than once mitigated, as far as possible, the enactments of her own laws, when there were just and weighty reasons ('). B. Its duty. 1 . It is the duty of the State to recognise as legitimatethc. marriage its duties,and of Christians, validly contracted in accordance with laws of the ai y are ' Church, and it cannot deny to the same, in the civil courts, those effects which are inseparable from every valid marriage, particu- larly the legitimacy of their union as husband and wife, and the legitimacy of the children born of the marriage. 2. As to the purely civil effects which are separable from the marri- age bond, and subject to the civil law, the State ought to view the validity or invalidity of marriage in accordance with the deci- sions of the Church, and,in dependence on these decisions, which it does not fall within its province to make, to provide for the civil effects (). Undoubtedly, in order that it may legally recognise canonically valid and lawful marriage, and give it its civil effects,it is necessary that the civil authority should have proof of the same, and it may therefore require for this purpose a certain formality, such as regis- tration. It may also penalise the omission of this formality, but without going so far as to consider marriage as valid and lawful before the lay courts,only from the time of its civil registration . WERNZ, o. c., n. 83. 1. Leo XIII, Arcanum. 2. Ibid. See also the letter of Leo XIII, of 8 Feb. 1893 : Let the same lay power recognise as true and lawful that marriage which was instituted by Christ, and is taught by the Church, and thence let it proceed to grant or refuse to the marriages of its subjects the effects of marriage in civil society . L. c., p. 461. 414 THE REGULATION OF MARRIAGE 3. Finally, the State has the duty of assisting the Church in the regulation of Christian marriage ; it ought to facilitate the obser- vance of the canonical matrimonial legislation, and even, at the request of the Church, to bring legal pressure to bear upon its subjects ( s ). This good understanding between the two powers, and due subordination are most greatly to be desired ; the State as well as the Church has the greatest interest in the right regula- tion of Christian marriages. It is good for both (powers), and of advantage to all men, that there should be union and concord between them ; and that on those questions which are, though in different ways, of common right and authority, the power to which secular matters have been intrusted, should happily and fittingly depend on the power which has in its charge the interests of heaven. In such an arrangement, and in such har- mony, there is found not only the best condition for each power, but also the most opportune and efficacious method of helping men in all that pertains to their life here, and to their hope of salvation hereafter > ('). Scholion I. To whom belongs in the Church the power of 22/ regulating the marriages of the faithful ? To whom be- The Sovereign Pontiff and general Councils enjoy a complete and longs in the . , , i i f i- i Church the independent power, legislative, judicial and coercive, over regulation of Christian marriage. Christian . marriage. The Bishops, individually, cannot, under the existing discipline of the Church, exercise legislative power in the matter of marriage, and particularly they cannot set up impediments, either diriment or impedient ( 2 ). They can exercise in the matter a. judicial and coercive power, as judges of the external forum, but in dependence on the Holy See, which also reserves to itself certain matrimonial cases, such as those of royal personages, and of non-consummation. Parish priests are not even judges of the external forum ( 3 ), and 1. Leo XIII, Arcanum. 2. Bishops have power in particular cases to forbid the celebration of a marri- age, but solely for reasons based on law, so as not to make a new law, but simply to apply the existing law ', this is rather an exercise of the judicial and coercive than of the legislative power. Cf. BEN. XIV. De Syn. dioec., 1. VIII, c. 14, n 5 ; see also below, where we speak of the Church's Prohibition. 3. Collat. Brug., t. VI, p. 594 s. THE REGULATION OF MARRIAGE 415 so they cannot exercise legislative, or even judicial or coercive power. Their powers are confined to drawing up the cases to be laid before the Bishop, and to stopping a marriage provisionally. They cannot judicially decide matrimonial disputes. Observe that the Holy See exercises its judicial power over marri- age through the agency of the Congregations and Tribunals specially deputed for this purpose. Apart from the S. Congr.pronegotiisRituum Orientalium, which has a certain power in the matter, it is to the 5. Officium that belong matrimonial causes concerning the Pauline privilege and the impediments of disparitas cultus and mixta religio ; other causes regard the 5. Congr. de disciplina sacramentorum, whenever it is a question of disciplinary regulations, and the 5. Rota in cases in which a strictly judicial course has to be followed (*). Finally, the 5. Poenitentiaria deals with the settlement of all ques- tions belonging to the forum internum. Cf. below, n. 341 et 351. This distribution was made by the Constitution of Pius X, Sapienti consilio, of the 29 June 1908, to be found in the Ada Ap. Sedis, I, p. 7 ss., with which Constitution are connected various documents, viz., Lex propria S. Rom. Rotae et Signaturae Apostoli- cae, 29 June 1908 (A. A. S., I, p. 20 ss.) and Regulae servandae apud Supremum Signaturae Apostolicae Tribunal, of 6 March 1912 (A. A. S., IV, p. 187 ss.) ; Ordo servandus in SS. Congregationibus, tribunalibus, Officiis Romanae Curias Normae Communes, 19 June 1908 (A. A. S., I, p. 36 ss.) and Normae Peculiares, 29 Sept. 1908 (A. A. S., I, p. 59 ss.) ( 2 ). Scholion II. Who are subject to the power of the Church ? 1. Directly all baptized Christians exclusively , not only Catholics, All baptized but also non-catholics, are subject to it, unless specially exempted, The reason of this is to be found in the baptismal character, are directly which all baptized persons exclusively possess, and which is the ru i e O t ^ _ Church in the matter of 1. On the distinction between the disciplinary course and the judicial course, marriage ; cf. OJETTI, De Curia, no 12 s. ; MONIN, o. c., p. 177 ss. ; Collat. Brug., t. XIV, p. 285 s. Whether also matrimonial causes that specially belong to the S. Offi- cium, if they are to be treated judicially, should be sent to the S. Rota, see below, n 341. 2. Among the commentaries, see OJETTI, o. c. ; DE MEESTER, o. c. ; MONIN, o. c. ; Russo, La Curia Romana, Palermo, 1901 ; CHOUPIN, apud Etudes, torn. CXVII ; BESSON, in the N. R. th., 1908 and 1909 ; SIMIER in the Revue Augus- tinienne, 1908, and other works mentioned in the Collat. Brug., t. XIV, p. 281. 416 THE REGULATION OF MARRIAGE basis of the subjection. It is beside the question to say that here- tics are cut off and cast out by the Church, in consequence of the excommunication that they lie under, as corrupted members ; such a way of speaking merely means that they are out of the Church as far as participation in the common advantages of the faithful and in their suffrages is concerned. They are rather to be compared with deserters and rebels, who none the less remain amenable to the authority of their own rulers (') . Rightfully, then, heretics are subjects of the Church both in the matter with which we are now concerned and in all other matters. Moreover, they are not in the generality of matrimonial causes relieved of this dependence, either by a general decree of the Church, or by a prescription or custom to the contrary, as FEYE shows at length, De Matrimoniis mixtis, p. 89 ss., where he brings forward a number of documents that explicitly declare that it is so ( 2 ). We say : in the generality of matrimonial causes, because, 1. VAN DEN BERGHE, De Legibus, Brugis, 1904, n 105. 2. Among these documents, we must especially mention the Constit. of Bene- dict XIV, Singulari nobis. The Pope there speaks of a marriage contracted without a dispensation between a Jew and a Protestant, and says that it ought to be repeated : for, the marriage at first contracted (before reconciliation to the Church) was entirely null, owing to a diriment impediment, called disparitas cultus . It is a question here of an impediment established by ecclesiastical law only. Again, in his celebrated Declaration of 4 Nov. 1741, Benedict XIV writes : His Holiness declares that we must regard as valid such marriages (contracted clandestinely in Holland between heretics or between a heretic and a Catholic), Provided that there is not any other canonical impediment . Collectan., no 1420. See also the Const. Magna nobis, the Const. Ad tuas manus, and the letter to the Bishop ofBreslau ; the Rescript of Pius VI to the Cardinal de Franckenberg and his letter to the Archbishop of Prague, etc. ; these documents are quoted with others by FEYE, 1. c., p. 91 ss. Cf. also the Letter of Pius VII to the Archbishop of Mayence, in 1803 (in the Acta S, Sedis, VII, p. 62). The same doctrine is again affirmed by the deer, of the S. C. C. of 18 Jan. 1663, ad 3 m , Collectan. ,n 1318 ; and by the Instr. of the C. S.O. of 20 March 1860, where we read : for the unbaptized, it is necessary to examine the impediments of the natural law ', but for heretics, we must add thereto the impediments of the Church, to which they are subject . Collectan., n 1297. See also the Causa Parisien. of 1903 (in the Anal, eccl., 1903, p. 284 s.). The quinquennial faculties ordinarily granted to Bishops afford us a final argument, viz., dispensandi... in contrahendis et contractis, cum hcereticis conversis etiam in 2 simplici et mixto . THE REGULATION OF MARRIAGE 417 by a special exception affecting the impediment of clandestinity, the Decree Ne Temere exempts from it heretics (that is to say, those who have not been baptized in the Catholic Church and have never been converts to Catholicism), who marry among themselves, and those who, in the German Empire or in the Kingdom of Hungary, contract a mixed marriage ('). 2. Indirectly, even unbaptized persons are subject to the matri- unbaptized monial power of the Church, and on two grounds : indirectly a. I by reason of the dependence of the baptized party, with whom the unbaptized party wishes to contract marriage. For, the validity of the contract requires the ability of both the contracting parties, and consequently the inability which directly affects one of the parties, indirectly affects the other also ( 8 ). b/ Unbaptized persons are subject to the matrimonial power ot the Church on yet another ground : there are certain bonds contracted in infidelity, which have no influence on the validity of the marriage as long as the state of infidelity endures, but which, after conversion, constitute a diriment impediment ( 5 ). Thus the decree of the C. S. O., of 26 Aug. 1891, declares that affinity naturally contracted in the case of the unbaptized in con- sequence of sexual intercourse, whether licit or illicit, is not an impediment to marriage contracted in the state of infidelity, but becomes an impediment for marriage contracted after the reception 1. See above, n s 77 and 79. 2. Thus the impediment of disparitas cultus which directly binds the baptized person and renders him incapable of marrying an infidel, at the same time affects the latter indirectly. It is the same also with the impediment of consan- guinity between the said persons to the fourth degree, and that of lawful affinity likewise to the fourth degree, and that of unlawful affinity to the second degree. The same applies to the impediment of public decency (FEVE,De Imp., n4o8), as also to that ofcrimen, under certain conditions. See FEYE, o. c., n 458 ; DE BECKER, D& Matr.,p. 195 ; and the deer, of the S. C., de P. F. f 23 Aug. 1852, ad 2 m (Collectan. de P. F., n 1256). We have already said, in ns 77 and 79, that the same principle is applicable under the new regime introduced by Pius X, as concerns the impediment of clandestinity, saving the exception made for the German Empire and the Kingdom of Hungary. For the special condition of spiritual relationship in this matter, see below, n s 316, 317. 3. Cf. DE BECKER, De Matr., p. 33. 418 THE REGULATION OF MARRIAGE of Baptism, whereby they become subjects of the Church, and consequently subject to its laws >. Collectan., n 1247 ('). Observe, according to what we have said under letter a/, that the conver- sion of one only of the two parties is sufficient to annul the marri- age of persons who have contracted this bond of affinity while in the state of infidelity. On the other hand, the case of public decency between unbaptized persons is not an impediment to their marriage contracted after baptism (*), and it is the same with crimen ( 3 ). The impedi- ment crimen rests on an offence that the reception of baptism is considered to remove entirely, so that no further account is taken of it. Note. It is evident that unbaptized persons are bound by the impediments of the natural and divine law ; and, as the Church is the authoritative interpreter of both these laws, its declarations ii3 on * ne su bJ ec t are a ^ so binding on the unbaptized. Form used by Scholion III. Form in which the Church exercises its power. *^he exercise* Tne written form is that ordinarily employed by the Church in of this power, the establishment of diriment or impedient impediments ; never- theless, there are several examples of impediments introduced by custom alone, for instance, that of disparitas cultus >. DE BECKER, De Matr., p. 34. This author observes that custom might still have power to produce the same effect, though it would be difficult for it I. See also the Instr, of the C. S. N., 16 Sept. 1824, Collect., n 1235, ad 2 m ; cf. the R. Th. Fr., 1896, p. 574 s. ; the deer, of the S. C. de P. F. of 25 Aug. 1852, in the Collectan., n 1237 ; the deer, of the C. S. O., of June 1895, in the N. R. Th., XXIX, p. 561; the deer, of the C. S. O. of 16 Dec. 1898, in the R. Th. Fr., 1899, P- 195- 3. The C. S. O. explicitly declares this in the decree of 19 Apr. 1837 ; Collec- tan., n 1254. I n the case proposed : Titius, a pagan, married the pagan Maevia, but did not consummate the marriage ; after the death of Maevia he became a Christian. Can he marry Bertha, the sister or cousin of Maevia,who has abjur- ed paganism and become a Christian ? Must we decide also, from this point of view, the question of betrothment between pagans, and that of marriage ratum ?. The S. Congr. replied : The impediment does not exist >. 3. The S. C. de P. F., on the 23 Aug. 1852, replied in the affirmative to the following question : c An infidel committed adultery with a married woman who was also a pagan, and under promise of marriage killed the husband with the con- sent of the wife. Can the guilty pair,after their conversion, marry one another ?. Collectanea, n 1256. THE REGULATION OF MARRIAGE 419 to possess all the conditions requisite for establishing an impedi- ment with the force of law. See below, n os 289 and 292. PARAGRAPH II. REGULATION OF MARRIAGE OF UNBAPTLZED PERSONS. 22 i. PROPOSITION. We acquiesce in the opinion that holds that the supreme The rcgula- civil authority has the power of regulating the marriages of its unbaptiz- ^of^inbat ed subjects, and of establishing even diriment impediments. tized persons rests with the Demonstration. State : 1. There is first the argument from theological reason, contained the nature of in the proofs which we have employed in the demonstration ol the first proposition of paragraph i. Marriage, apart from the sacrament, is not intrinsically and essentially sacred ; if it can be said that it is holy, because it tends to multiply the members of religious society and to educate them for the glory of God, it can also be said that it is secular, since it regards quite as immediately the well-being and increase of civil society. It is precisely this natural end of the matrimonial con- tract which constitutes the title and sanctions the power ol the civil authority to regulate the marriage of the unbaptized ; and in this case there is nothing against the exercise of this right, since the higher right of the Church is not concerned with it ; for, the Church has no jurisdiction over those who are not of its fold. Consequently, the regulation of marriage between unbaptized persons rests with the secular authority ; and this involves, sub- ject to the divine and natural law, the setting up of impediments both diriment (') and impedient, inasmuch as the arguments given above, in n 219, and drawn from the public welfare and social order, hold good no less for civil than for religious society. 2. There is also the argument from authority. This opinion finds support in several documents of the Holy See, especially in the reply given by the S. C. de P. F., 26 June 1820 (-), and in the Instruction of the same Congregation, of the i. Cf. WERNZ, o. c., n 77, where he shows that PERRONE is illogical in admit- ting that the State has the power to set up impedient but not diriment impedi- ments. 3. See in the Collectanea of the S. C. de P. F., n 1447, the text of the decree, which declares null a marriage contracted in infidelity without the observance 420 THE REGULATION OF MARRIAGE 8 Oct. 1631, to the missionaries in India, regarding Indian polyga- mists ('). The reply and instruction of the C. S. O., of 20 Sept. 1854 and of 29 Oct. 1739 respectively, though commonly quoted and commented on in works on this subject ( 2 ), are really less important and convincing for our present purpose. it belongs to Corollary I. The regulation of marriage of unbaptized persons, thortty "as an( ^ m particular the power of establishing impediments, belongs such. to the civil authority as such, and not as a trustee of the religious authority, though this latter opinion is held by LEHMKUHL, o. c., II, n. 727, and by PALMIERI, o. c , p. 279, compare p. 271 s. Moreover, this power belongs to it in its own right, and not merely as a result of circumstances, as BILLOT thinks, o. c., II, p. 429, as if in this case, the force of circumstances assigned to the only lawful authority in power, the office of safeguarding, as well as may be, the social welfare > ( ! ). ol a ceremony, the omission of which, according to the laws of Tonquin, is held as a diriment impediment . It is added that a new marriage may be contracted. But, as WERNZ says, o. c., n 80, note 208, the nullity of the marriage, with full liberty to contract another, neither was nor could be declared by the Cardi- nals without certain proofs of law and fact ; otherwise there would be a grave transgression of the divine law that established the impediment ligamen . To this decree is added an Instruction, quoted 1. c. in the note, drawn up by the Consultor, and sent the following year ; though it is not certain that it was sent on behalf of the S. Congr. ; cf. on this subject RESEMANS, o. c., p. 71 ss. and 93. In any case the competence of the State is clearly affirmed : Secular rulers, whether Christians or infidels, have complete power over the marriages of their non-christian subjects ; and, subject to the natural and divine law,they can estab- lish impediments annulling such marriages not only as to their civil effects, but even as to the conjugal bond . 1. Indian polygamists who are converted to the faith together with all their wives and receive baptism, are bound to send away all such wives, with the exception of the first, who alone is the real wife, provided that the marriage has not been invalidated by an impediment of the natural law, or of the positive law made by their secular ruler >. GASPARRI, o. c., n 287. This Instruction was certain- ly sent by order of the S. Congr., but rather as an opinion of theologians and canonists than as a decree of the Congregation. 2. Cf. DE BECKER, DeMatr., p. 40 s. ; GASPARRI, o. c., p. 286; RESEMANS, o. c., p. 81 ss. ; THEOL. MECHL., which has here changed its former opinion ; and espe- cially WERNZ, o. c., n 81 note 209. 3. PAOLI, o. c., p. 129-145 and LEITNER, Lehrb., p. 24 ss., speak in the same sense. THE REGULATION OF MARRIAGE 421 Corollary II. We must not consider the power of regulating Limits of the marriages of the unbaptized, possessed by the civil ruler, thts as restricted to the limits laid down by Zigliara ('). According to him, the civil authority can only determine what the natural law in a less determinate way already requires, so that < the prescriptions of the civil authority do not bind of themselves, but only in virtue of the natural law . With a view to temporal well-being, the regulating power pos- sessed by the civil ruler can be exercised by him in respect of the unbaptized, as fully as that possessed by the Church (described in n 219) in respect of the faithful. Like the Church, the Prince also cannot impose impediments that infringe the divine and natural law. This has special reference to the setting up of absolute impe- diments, by which the marriage of a subject, not otherwise dis- qualified, with any person is prohibited and invalidated ( a ). 1. Cf. MELATA, o. c., p. 20 and p. 28. 2. See what we have said above, in n 219, from which it will be apparent that in some of the states of the United States of America the limits are greatly exceeded. A considerable movement exists there for promoting the selection of the human species, or the propagation of offspring sound in mind and body (known as Eugenics) , to the exclusion of that which is vitiated and adulterated. Under this pretext, an attempt is being made to preclude from marriage those who, it is feared, may bring into the world children suffering from some heredi- tary taint. In the state of Michigan the law declares every person suffering from syphilis or gonorrhea incapable of contracting marriage. A like law exists in the State oiUtah. Epileptics and persons of feeble or unsound mind are prohibited to marry in the States of Indiana, Minnesota, New-Jersey and Ohio ; also in the States of Kansas and Utah, unless the woman be over the age of forty -five. In the State of Ohio no license to marry shall be granted, where either of the parties... is an habitual drunkard... or who, at the time of making application for said license, is under the influence of any intoxicating liquor or narcotic drug . These various prohibitions to marry and others are all inserted in the code in force in the State of Washington : No woman under the age of 45 years, or man of any age, except he marry a woman over the age of 45 years, either of whom is a common drunkard, habitual criminal, epileptic, imbecile, feeble-minded person, idiot or insane person, or person who has theretofore been afflicted with hereditary insanity, or is afflicted with pulmonary tuberculosis, in its advanced stages, or any contagions venereal disease, shall... intermarry or marry any other person within this State . See the described dispositions in The Ecclesiastical Review Year Book, Philadel- phia, 1910 : Encyclop.Britannica, V Marriage,t. XVII ; SCHULTE, EJierecht, 1. c. 422 THE REGULATION OF MARRIAGE Practical Corollary III. To judge of the validity of a marriage contracted in infidelity,it is necessary to take into consideration the diriment impediments that the parties may have been under, according to the civil laws of their own country. Nevertheless, as, on the one hand, the opinion given above is not absolutely certain, and, on the other hand, it is difficult to distinguish clearly between the diriment and impedient impediments of the various legislations, the question must not be decided without previous recourse to the Holy See('). 225a The regula- Note. 1. It is a controverted point whether a marriage between ^aec between a baptized and an unbaptized person is subject only to ecclesiasti- a baptized C al regulation and impediments, or whether, in the case of the and an unbap- tized person unbaptized party, those of the civil authority must also be taken belongs to the j to consideration. Church alone. For our part, we adopt the opinion of RESEMANS, o. c., p. 2 ; WERNZ, o. c., p. 94 s., and GASPARRI, o. c., in his edition of 1904, n 306, against that of VAN DE BURGT-SCHAEPMAN, o. c.,n 48 ; DE BECKER, De Matr., p. 44, and D'ANNIBALE, Summula, III, p. 294 ; and hold that the regulation of such marriages belongs exclusively to the Church, so that, in judging of their validity, there is no need to take into consideration the provisions of the civil law, even with regard the unbaptized party. Our reason for this is, that according to what we have said above, it is not possible that the same marriage should be at the same time subject to the regulations of two independent and distinct authorities (*) ; consequently, when the occasion arises, 1. Cf. DE BECKER, De Matr., p. 43 ; he rightly remarks : In this matter it is necessary to proceed with prudence, first seriously inquiring if the civil law is in conformity with the natural and divine law, and moreover, if the legislators intended, at least implicitly, to establish a law or prescription binding in con- science. It may be that they had no intention of legislating about the marriage bond itself, but only about the temporal and civil effects and consequences of marriage . Moreover, where it is a question of a new colony, like the Congo, for instance, which has just received a new code of laws, the sufficient promulga- tion of the same will often be open to doubt, and it may be a question if the law obliges in a particular case in which its observance was practically impossible. See SALSMANS, o. c., p. 12 s. 2. See above, n 216. We said there that it was possible that the Church and State might require for the validity of the contract formalities that mutually excluded one another. It is useless to try to set aside this argument by pleading that, under the circumstances, one would only have to apply the principle or THE REGULATION OF MARRIAGE 423 the law of the State ought to yield to the higher law of the Church. 2. The regulation of the marriage of unbaptized persons by the civil authority does not involve, as we have seen, any power to dissolve the conjugal bond, contrary to what we have said in n os 31 and 32 with regard to the contract of betrothment. Scholion I. On the right of the State to sterilise certain of its sub- The right of iects. ^ State to ** sterilise its With the question mooted above, in Corollary II, taken in conjunction subjects. with what has been said in n 219, is intimately connected a controversy that has lately come to the fore, regarding the power of the State to pre- vent certain degenerate, abnormal, defective and criminally inclined per- sons from bringing children into the world, not only by setting up a diri- ment impediment against such persons, but also by enacting that they shall be surgically sterilised by the operation of vasectomy orfallectomy (') Laws to this effect have already been passed in some of the states of the United States of America, viz., in Indiana (*), Utah, Connecticut and California. The controversy has also raged in many periodicals ( 3 ) and the privilege of the communication of exemption ; for, it might well happen that the respective powers might be so strict in their requirements as to leave no room for the exercise of the privilege in question. 1. Cf. the description given above, in n 143, and observe that in the operation of vasectomy, as performed on a man, a severance is made of the vas deferens only, and not of the funiculus spermaticus ; for, care is taken to preserve intact the nerves, veins and arteries surrounding the vas deferens. See the description of the operation given by D r O'MALLEY, Eccles. Review, vol. XLIV, p. 687 ss., and by GEMELLI, La Scuola CaUolica, vol. XXI p. 403 ss. The controversy is confined solely to vasectomy, i. e. ( as performed on the man. 2. In that State, according to D r O'MALLEY, Bccles. Review, vol. XLIV, p. 684, the operation of vasectomy, from 1907 to the end of 1910, was performed on about 800 men. 3. The following articles have reference to this subject : DONOVAN (professor in the Franciscan College attached to the University of Washington), On tlte lawfulness of a certain surgical operation, in the Ecclesiastical Review, vol. XLII (1910), p. 271 ss., cf. ibid-., p. 599 ss., also vol. XLIV, p. 571 ss., and vol. XLV, p. 313 ss. ; LABOURS (professor in the Seminary in San Antonio), On Vasectomy, ibid., vol. XLIII, p. 80 ss., cf. pp. 320 ss. and 552 ss., likewise vol. XLIV, p. 574 ss. and vol. XLV, p. 355 ss. ; RIGBY (professor in the Dominican College, Rome), On the lawfulness of vasectomy, ibid., p. 70 ss. ; SCHMITT, Vasectomia, einencue Operation und ihre Erlaubtheit, in the Zcitschr ift fiir Kath. Theologie, 1911, p. 66 ss. and 579 ss. ; compare with Ecclesiastical Review, vol. XLIV, p. 67855. and vol. XLV, p. 88 ss. ; FERRERES, De Vasectomia duplici noviter inventa, in the Razony Fe, t. XXVII, p. 374 ss. ; GEMELLI, (Doctor of Medicine and professor of Pas- toral Theology), De liceitate Vasectomiae, in the Scuola Cattolica, t. XXI (1911), 424 THE REGULATION OF MARRIAGE wish has been freely expressed that the American practice may be extend- ed to other countries ('). We have no hesitation in saying that such laws are to be reprobated, and that the State has no right to enact the performance of the above-mention- ed operations by public authority. We prove this thus : Vasectomy involves a serious mutilation, even if it be alleged that it does not induce impotency (*) ; for, this operation, however light it may seem in itself, deprives a man of the physiological function of fecundation. Now the social authority cannot impose a serious mutilation on its sub- jects, except, in conformity with what has been said in n 219, with regard to the restriction of the liberty of marrying, in so far as that is necessary, either I. for the safeguarding of the life or rights of individuals, or 2. for the salvation of the common good of society, and that either by punishing delinquents, or by directly defending and protecting the safety of society against evil-doers who endanger it. Observe here, that recourse cannot be had to mutilation, except where no other and milder measure is available, and so the amputation of an organ is not permissible, where it is clear that the restriction of the use of the same is sufficient. But 1. recourse cannot be had to vasectomy for the protection of the life and private rights of a third party, e. g., against persons suffering from a contagious disease, lest they should bring the partner into grave danger, or against those guilty of assaulting women ; for, other efficacious means, preferable to mutilation,are available, such as preventing them from marry- ing (n 219), or, if need be, depriving them of their liberty. Nor can the State resort to vasectomy for the protection of the right of the offspring, so that it may not come into existence weakly and defective ; p. 396 ss. ; STUCCHI, ibid., p, 417 ss. ; ESCHBACH, ibid., t. XXII, p. 24355.; CAPELLO, ibid., p. 246 ss. ; DE BECKER, The Casus c de liceitate Vasectomiae , in the Eccles. Review, vol, XLII. p. 474 s. and vol. XLIII, p. 356 ss. ; O'MALLEY (Doctor of Medicine), Vasectomy in Defectives, in the Eccles. Rev., vol. XLIV, p. 684 ss., and compare vol. XLVI, p. 219 ss. ; IDEM, Inseminatio ad validum matrimonium requisita, ibid., vol. XLVI, p. 322 ss. ; WOUTERS, De Vasectomia, in the Nederl. Kuth. Stemmen, 1911, p. 19 ss. Lastly may be mentioned the Theological Consultation of Fathers VERMEERSCH, DE VILLERS and SALSMANS, in the Eccles. Review, vol. XLVI, p. 475. See also the discussions held in the first International Eugenics Congress (24-30 July 1912), celebrated in London by the Eugenics Education Society. 1. Cf. Zeitschr.f. k. Thcol., 1911, p. 66 s., andRazony Fe, t. XXVI, p. 374 s. ; cf. also t. XXVIII, p. 224 ss., t. XXXI, p. 495 ss. and t. XXXII, p. 222 ss., and compare with Eccles. Rev., vol. XLVI, (1912), p. 207 ss. 2. Whether vasectomy induces impotency in a man, and that perpetual, see below, n 276. THE REGULATION OF MARRIAGE 425 for, as we have already observed above, the child that has as yet no being, has no rights, and for the child itself, it is better that it should be weakly and defective, than not be at all. 2. As regards the common good of society : a/ Vasectomy cannot be imposed by the State as a penalty and punish- ment. For, considering the comparatively painless nature of the operation, vasectomy lacks the penal character, and this is proved by experience, since many have, by their own free choice, submitted themselves to the operation ('). Moreover, if vasectomy were imposed as a punishment, its application would have to be restricted to delinquents and criminals strict- ly so called. b/ Vasectomy is not a necessary means for the direct protection and defence of the safety of society against evildoers, where it is a question of depriving defectives and criminals of the power of fecundation, lest the great number of defective children should imperil the very existence of society. For, here especially holds good what we have said in n 2i9,namely, that society is not endangered by a certain number of defective children, which, in a State otherwise well regulated, will always be comparatively small. If, however, danger should arise from this, it could be met in other ways ; by preventing such persons from marrying, or, if that cannot be otherwise effected, by putting them under restraint and depriving them of their liberty. Moreover, evil dispositions that children may perchance have inhe- rited from a defective father, may, to a great extent,be remedied by a manly and Christian education ( J ). Our thesis, therefore, stands ; and we find that most authors who have treated this question are in agreement with it ( 3 ). 1. Dr O'MALLEY, in the Ecclesiastical Review, vol. XLIV, p. 699 s., compare with p. 742, and also with SCHMITT, in the Zeitschr, f. k. Theol., 1911, p. 76. 2. GERRARD, The Catholic Church and Race Culture, in the Dublin Review, vol. 149 (1911), p. 63 ss. 3. DE BECKER, Eccles. Review, vol. XLII, p. 474 s. and vol. XLIII, p. 356 ss. ; VERMEERSCH,SALSMANS,DE VILLERS, ibidem, vol. XLII, p. 475 ; SCHMITT, Zeitschr. f. k. TJieol., 1. c., and Eccles. Rev., vol. XLIV, p. 679 ss. and vol. XLV, p. 80 s. ; FERRERES, Razon y Fe, XXVII, p. 378 s. and XXVIII, p. 224 ; RIGBY, 1. c. ; Drt. O'MALLEY, Eccles. Rev., vol. XLIV, p. 699 ss. ; WOUTERS, 1. c. ; N. R. th., 1. c. ; STUCCHI, 1. c.. p. 479 ; CAPELLO, 1. c., p. 247 s. ; ESCHBACH, 1. c., 243 ss. ; GER- RARD, 1. c., p. 58 s. ; Rev. Father KEATING, the opinion of whom is quoted in TJie Universe, of 2 August 1912. The guild of St. Luke, in a meeting held in Liverpool, 24 July 1912, expressed the same opinion, by emitting unanimously the following resolution : That in our opinion, the proposals to sterilise the mentally defective members of the 426 THE REGULATION OF MARRIAGE If the State were recognised as having the power to make and enforce a law of this kind, it is obvious that it would afford an opening for grave abuses, and there would be reason to fear that, before long,vasectomy would be employed as an instrument of human selection, similar to that made use of in the case of cattle ('). Note. The question as to how far vasectomy may be permitted and per- formed by private authority, is treated at considerable length in the Collat. Brug., t. XVII, p. 543 ss. The following is a summary ot it : considering the good effect observed in those of an erotic disposition : viz., on the one hand, the preservation of erectability and activity in the glands of the sexual organism, without any atrophy of the testicles ; and, on the other hand, the diminution of seminal secretion, and so of cerebral congestion also, and of the sexual erethism consequent on it, it seems that the opera- tion of vasectomy may be permitted in the case of a one who is abnormally and pathologically erotic, for, it is then considered to make immediately for the good of the whole body, and for this, mutilation is permissible. The teaching Scholion II. The teaching of Protestants ( 2 ). Protestants Luther and his followers teach that marriage is a purely secular con- tract, and consequently solely dependent on the civil authority : Since wedlock is altogether a secular and outward thing, like wife and child, house and home,and so on, it is dependent on the supreme government ( 3 ). According to them, therefore, it belongs to the State to prescribe strictly community are opposed to every principle of human right and human liberty, and we condemn them universally. In our opinion the solution of the problem is to be found in attacking the causes of mental deficiency which lie in the defects of our social organisation ; in dealing with the education of those mentally defec- tive on Christian and elementary lines ; in preventing by segregation in suitable cases the multiplication of the unfit ; and in the judicious use of the influence of the medical man in directing attention to the dangers attending the marriage ot mentally defective persons and in discountenancing them . The Universe, August 2, 1912. On the other side are LABOURE, Eccles. Review, vol. XLIII, p. 80 ss., 320 ss., vol. XLIV, p. 574 ss., vol. XLV, p. 88 ss. and p. 355 ss. ; likewise, with a restriction, DONOVAN, Eccles. Rev., vol. XLII, p. 271 ss., p. 599 ss., vol XLIV, p. 571 ss. and vol. XLV, p. 313 ss. The same thesis has been vindicated at the Eugenics Congress, of which we have just spoken, namely by Dr. DAVENPORT, Director of the Eugenics Record Office of the United States. 1. Cf. Dr.O'MALLEY, Eccles. Rev., vol. XLIV, p. 705 ; SCHMITT, Zeitschr. f. k. Th., 1911, p. 66 s. and 77 ; DONOVAN, Eccles. Rev., vol. XLV, p. 317 s. 2. We refer in particular to the Protestants of Germany. 3. Realencyckl., XXI, p. 862 ; FRIEDBERG, Das Recht, p. 159 s. and 198. This power of the lay ruler is admitted even by Protestant authors who recognise the sacred nature of marriage, like SOHM, o. c., p. 2. THE REGULATION OF MARRIAGE 427 requisite formalities, to establish impediments, and to determine the causes of dissolution of the bond, subject only to the divine and natural law ; conse- quently this theory admits the validity and legitimacy of all marriages that comply with the civil regulations, provided that they do not infringe the natural and divine law ; while, on the other hand, all marriages that are civilly unlawful, are unlawful also in conscience. Nevertheless, the Protestant Church, though declaring itself incompetent in principle, does in fact interfere in the question of marriage by enforcing respect for its theory. Thus : 1. It prescribes for its members certain religious formalities, but tenders them as sanctioned by the civil law. Before the introduction of civil marri- age, these formalities were generally required for the validity of the con- tract (') ; but, since that time they serve only for the ecclesiastical recogni- tion of the marriage, and for the official registration of the contract already valid Defore the civil law and canonically considered as such ( 2 ). 2. It has also its own impediments, but they do not possess the true charac- teristics of matrimonial impediments, especially of diriment impediments, unless sanctioned by the divine law or by the civil authority. Apart from these two exceptions, marriage contracted under a canonical impediment is regarded by it as valid ; the only effect is, that a minister of religion cannot bless such marriages, and it is hoped in this way to deter believers from them (-). It has,moreover, so to speak, established its matrimonial law on the lines of the civil law, especially in Germany ; and it has barely kept one or two particular impediments, e. g., disparitas cultns, which it has succeeded in maintaining under the penalty of which we have just spoken (*). 3. It has likewise its particular causes for dissolution of the bond ; but here again it only insists on respect for the natural and divine law in the causes of dissolution admitted by the civil authority, and declares unlawful and without effect divorces pronounced contrary to the divine and natural precepts. In other respects it shows itself accommodating, and follows the State in its laxity with regard to divorce. Cf. the RealencyckL, t. XXI, under Scheidungsrecht ; ROEDENBECK, o. c., p. 12953. 4. Finally, the Protestant Church has its ecclesiastical tribunal, the con- sistory, which decides religious matrimonial causes in accordance with the principles mentioned above. 1. RealencyckL, V, p. 203 s ; FRIEDBERG, DasRccht, p. 272 s., 300-305 ; SOHM, Das Rccht,p. 254 and 267 s. 2. RealencyckL, V, p. 206. 3. Ibid., p. 298. 4. Ibid., p. 2H s. 428 THE REGULATION OF MARRIAGE Note. Though it is the only logical one, all Protestants do not admit this theory of the purely declaratory value of their religious marriage. Some of them, like Sohm and Roedenbeck, in conformity with their opinion as to the nature of marriage in the Protestant law (see above, at the end of n 60, in note), consider the religious ceremony as a constituent element of marri- age. From their point of view, the civil marriage is merely an inceptive union, a simple consensual contract, to be perfected by a real and effective possession, which takes place by means of the religious formalities ('). Cf. SOHM, Das Recht, p. 284-314, especially p. 289 s. ; Trauung und Verlobung, p. 146 s. ; ROEDENBECK, o. c., p. 34-37 ; FRIEDBERG, Verio- bung und Trauung, p. 70-78, is of a contrary opinion ; likewise REELING, p. 62 s. and 66-68. Consult also VERING, o. c., p. 881 s., WERNZ, o. c., n. 207, note 345. SUPPLEMENT I ECCLESIASTICAL REGULATION OF MARRIAGE AND ITS HISTORY. 225. Historical First Period ( J ). phases. j n ^ e ^ fst cen t ur j es of the Christian era, marriage was considered by the TheChurch civil power as a purely secular contract, and was treated as such. The lay acquirHftiii aut ^ority regulated it, made laws for it, and exercised jurisdiction over it sole regitla- independently of the ecclesiastical power. Christian *^ e ^ v s ^ e w ^ c ^ v ^ marriage, there was religious marriage, the only marriage ; true one in the eyes of the faithful. This was governed by the laws of the Church ( 3 ). Thence arose a dualism, a twofold and distinct legislation and jurisdiction, giving rise to frequent conflicts between the civil and eccle- siastical courts. These conflicts the Church endeavoured to avoid as far as possible, partly by conforming its law to the law of the State, whose pre- scriptions it adopted and sanctioned (*), and partly by striving to bring the civil law to respect the law of the Church ( s ). 1. DIECKHOFF, o. c., p. 296-320, advances an opinion that takes a middle course between the other two. 2. This historical notice has special reference to Belgium. 3. Cf. SCHNITZER, o. c.,p. 40. Thus S. JEROME, in Epistola LXXIII ad Oceanum says : Alias sunt leges Caesarum, alias Christi ; aliud Papianus, aliud Paulus noster praecipit , in MIGNE, t. XXII, p. 691. 4. Cf. KOSTLER, o.c., p. 73-76 ; SCHNITZER, o.c., p. 41 s.,collato cap. i, Dist.X, and below, n. 250. 5. This is how so many prescriptions of the canon law came to be inserted in the civil law. Thus, if the Church borrowed some of its earlier matrimonial laws THE REGULATION OF MARRIAGE 429 Second Period. Stage of transition to exclusive regulation by the Church. Under the impulse and influence of the Church, the civil law sanctioned and adopted more and more the prescriptions of the canon law, so as to become in complete agreement with it. In spite of this agreement, the canon and civil law remained distinct, and each had its separate court ; but by degrees it came to pass that all matrimonial causes were brought before the ecclesiastical judges only, and, when the parties did not appeal, the civil authority abided by their decisions. Thus these causes were gradually withdrawn from the civil jurisdiction, and in the end only the ecclesiastical courts were considered competent. The weakness of the royal power in the presence oi the growing autho- rity of the Church greatly favoured this development, and thus from the tenth century begins the Third Period. Exclusive regulation by the Church, (X-XV cent.). At this epoch the Church enjoyed to the full its integral power, both legislative and judicial, over the marriages of the faithful; moreover, in consequence of the weakness of secular rulers, there were brought before the ecclesiastical courts not only matrimonial causes properly so called, that is to say, such as concern the marriage bond and its inseparable effects, but even, during a certain time, those causes that relate to the purely civil effects, and naturally belong to the lay courts. Fourth Period. Interference of the Civil Power (XV-XVIII cent.). but tlte State The interference of the civil authority was at first purely practical, res- succ * s sw e ty f45ltry&1ifft&* pecting, and legally recognising the exclusive competence of the Church ; diction over but gradually it came to be admitted in law. marriage : 1 . Practical interference. a) by way of The heads of the State began by resuming their right to regulate the purely civil effects, and of judging matrimonial causes under this aspect. Gradually they overstepped these limits, and usurped authority in the mat- ter of marriage, beginning with the judicial power and finally arrogating to themselves the legislative power. a/ With regard to the judicial power : under pretext of passing judgment relative to the purely civil effects, they endeavoured, at first, insidiously to from the ancient Roman law, the later Roman law in its turn took many of its provisions from the Church. Cf. TROPLONG, o. c. ; LAURIN, o. c., p. 261 s. ; KOST- LER, o. c., p. 69 ; BERNARD, o. c., p. 71. To take but a single example, the impe- diment of affinity in the collateral line was unknown to the ancient Roman law, but it was borrowed at a later period from the canon law, as CARON very well shows, o. c., p. 61 ss. 430 THE REGULATION OF MARRIAGE take cognizance of causes that concerned the conjugal bond itself ( J ) ; then, by means of the so-called appel comme d'abus , they interfered in a multitude of causes already decided, or awaiting decision before the eccle- siastical courts (*). b/ With regard to the legislative power : they issued a number of decrees on marriage, the greater part in conformity with the canon law, though some were in opposition to it, under the pretext that certain canonical provisions infringed the Gallican liberties, or appeared incomplete. Such were the various decrees promulgated in France with regard to clandestine marriages ( 3 ), or those contracted without parental consent ('). This inter- ference showed itself at first only in practice ; theoretically the civil autho- rity recognised the exclusive competence of the Church, both in the judicial and in the legislative order ( s ) ; it was only indirectly and surrep- titiously that the State actually usurped a share in the regulation of marri- age (). b) by way of 2. Judicial interference. judicial g ut a j. a j a ter date, the so-called civil or Gallican theory claimed judi- tnterference, cially, and as its proper right, practical interference on the part of the State, by drawing a distinction between the sacrament and the contract, and treating this as a civil contract ( 7 ). 1. Cf. LEMAIRE, o. c., p. 22 ; ESMEIN, o. c., p. 36-42 ; LAFOURCADE, o. c., p. 196 ss. ; DUMAS, o. c., p. 55 ; KISSELSTEIN, o. c., p. 511 ss. 2. KISSELSTEIN, ibidem. 3. LEMAIRE, o. c., p. 49 ss. ; DESFORGES, o. c.. p. 124 ss. 4. BERNARD, o. c., p, 106-147. 5. Cf. DESFORGES, o. c., p. 124 ss. 6. Thus in the case of appel comme d'abus the public authorities did not settle the causes as if they had been illegally decided, but referred them to some other ecclesiastical authority. Thus again in the civil prescriptions requiring parental consent, BERNARD, o. c., p. 135. and p. 135 s., shows how the kings of France prohibited at first under different sanctions marriages contracted without this consent, not for the purpose of thwarting the legislation of the Church, or of passing laws in oppo- sition to it, but in order to supply the omissions of the Canons, while fully re- specting the validity of the conjugal bond recognised by the Church. Even in the sequel, when they had decreed the nullity of such marriages, they still endea- voured to justify their action by maintaining that such unions were canonically invalid on account of the impediment of raptus. See below, n 250; PLANIOL, o. c., I, n 1060 ; LAFOURCADE, o. c., p. 187 ; DESFORGES, o. c., 143 s. ; VAN- TROYS, o. c., p. 209-304. 7. See above, n 219. But observe this twofold constituent element of the civilist doctrine : the distinction of the contract from the sacrament, and the civil character of the former. The sole distinction between the contract and the THE REGULATION OF MARRIAGE 43! According to this theory, marriage comprises two elements : the contract, which is of itself civil, and the sacrament ('). Consequently the civil ruler has a perfect right to claim, not an exclusive, but a partial authority over marriage, i. e., over the contract, but ought to leave to the Church the regulation of the sacrament. The Gallican authors who defended this theory therefore attributed to the king the power to regulate marriage as a con- tract, and to set up impediments to the matrimonial contract. They acknowledged, however, that the Church had the power of regulating the sacrament,but not the contraband they accordingly denied to it,in fact, the power of setting up impediments, at least diriment impediments, since these cannot directly affect the sacrament, but only the contract ; and therefore ecclesiastical impediments had no effect upon the nuptial contract, except in so far as they were sanctioned and adopted by the civil authority (*). There was, however, as yet no question of civil marriage. The State still regarded marriage as a civil-religious act, civil by reason of the contract, religious by reason of the sacrament connected with it ; it consequently con- sidered that the two powers ought to take part in the regulation of it, and that in the celebration of marriage, it was necessary to take into account the twofold regulation, the civil and the canonical ( 5 ). sacrament, according to Billuart and Melchior Canus, does not justify, as we have observed above, n ai6, the conclusion of the Galileans as to the power ot the Prince of regulating the marriage contract. 1. This distinction can be understood in different ways. Nuitz considers it as adequate, Melchior Canus as inadequate ; Billuart maintains, and POTHIER appears to follow him, that the contract constitutes the whole of the sacrament and serves as its base, but can nevertheless exist without it. 2. Le manage n'etant soumis a la puissance ecclesiastique qu'en tant qu'il est sacrement, et n'etant aucunement soumis a cette puissance en tant que con- trat civil, les empechements que 1'Eglise 6tablit, seuls et par eux-memes, ne peuvent concerner que le sacrement, et ne peuvent seuls et par eux-memes, donner atteinte au contrat civil. Mais lorsque le prince, pour entretenir le con- cert qui doit etre entre le sacerdoce et 1'empire, a adopte et fait recevoir dans ses Etats, les canons qui etablissent ces empechements, 1'approbation que le prince y donne rend les empechements etablis par ces canons, empechements dirimants de mariage, meme comme contrat civil . POTHIER, o. c., n 20. 3. POTHIER, o. c., n. 19, says : Le mariage 6tant contrat et sacrement, s'il est, en tant que contrat, soumis aux lois seculieres, il est, en tant que sacrement, soumis aux lois de 1'Eglise . According to the Gallicans, marriage between Chris- tians, celebrated in conformity with the secular laws, was valid as a contract, but still imperfect and incomplete, even before the civil law ; it was necessary that it should be raised by the Church to the dignity of a sacrament.This is why, they said, the Kings of France, wishing that the marriage of Catholics should be perfect in every respect, required as a condition for validity of the contract that 432 CIVIL, MARRIAGE Fifth Period. until the The French revolution introduced obligatory civil marriage, and com- tn of civil Pl ete ty usurped the regulation of it, to the entire exclusion of the Church. marriage. We shall now speak of this in supplement II. SUPPLEMENT II CIVIL MARRIAGE. 227. Meaning of Civil marriage may be said to be any marriage whatever that is regulat- marriaee ^ ^7 c * v ^ aut ^ority, i. e., that is subject to the legislation and jurisdiction of the State, whether celebrated with religious formalities recognised by the State, or with simply civil formalities. Generally, however, the term, civil marriage, is reserved for that which is not only regulated by the civil authority, but is also civilly celebrated, without the intervention of any religious body, as if it were something merely profane ; while that marriage which, though regulated by civil authority, is nevertheless celebrated with religious solemnities, and as such is recognised as valid by the State, is still commonly called religious marriage, though the marriage is not, in the strict sense, religious except in so far as it, at the same time, remains subject to the regulation of the religious authority. Civil marriage may exist under various form : 1 . Under the obligatory form (Zwangcivilehe or obligator ische Civil- ehe), where imposed indiscriminately on all who wish to be regarded as married before the civil law and treated as such. If they wish also to be united before the Church, they are free to do so, but the State recognises no effect in the religious ceremony, and regards it as a private matter pro- ducing no effect ; in certain countries it is unlawful to go through the reli- it should take place before the priest ; he was at the same time, in the eyes of the civil law, the minister of the contract, acting in the name of the king, and the minister of the sacrament, acting in the name of the Church. Portalis himself says : Anciennemcnt le mariage 6tait ce!6br6 devant le propre cure des parties, qui etait a la fois ministre du contrat, au nom de 1'Etat, et ministre du sacre- ment, au nom de 1'Eglise . Cf. also the celebrated letter of the Chancellor de Pontchartrain, of 1712, in FRIEDBERG, Das Recht,p. 549 s,, in note. The civil marriage was not even that which was introduced into Austria under Joseph II, in 1783 ; it was rather a practical application of the civilist doctrine, that we have described. Cf. FRIEDBERG, o. c., p. 142 ss.; ESMBIN, o. c., I, p. 45 s.; Apologie du mariage chretien, and compare with what has been said above in n 219. CIVIL MARRIAGE 433 gious ceremony before the civil marriage has taken place. This is civil marriage wholly secularised. 2. Under the optional form (Facultative Civilehe), where people are free to marry either with the civil or religious form, and both the one and the other are admitted as valid by the civil authority. 3. Finally under the form of Nothcivilehe, i. e., where the State admits civil marriage as lawful for those only who do not possess religious marri- age, such as infidels, atheists and dissidents, or for those who are inca- pable of contracting a religious marriage ; while all others are bound to go through the religious form of marriage ('). The regime of obligatory civil marriage was introduced into France by Historical the Legislative Assembly in 1792, but the ground had been prepared for it . phases long before. We shall speak in the first place of this preparation, and then of the introduction of civil marriage. We shall then briefly describe and criticise the matrimonial legislation of Belgium, and afterwards draw our conclusions. 1. THE PREPARATION. l.The real cause that brought about the introduction of civil marriage Cause of t/te was the Philosopkism of the eighteenth century, and, going back to an tntr ductton earlier date, Protestantism. These two errors in particular gave rise to the marriage, idea of secular marriage entirely dependent on the State (-), that takes its . a . circumstances practical form in civil marriage. that 2. Two circumstances favoured its introduction. The one, theoretical, f avourf< * * was the diffusion of the civilist doctrine of marriage, distinguishing between the contract and the sacrament ; the other, practical, was the establishment of civil marriage for Protestants, in virtue of the celebrated royal decree of 1787. The civilist theory, especially in view of the doctrines of the seven- teenth century, readily permitted the conclusion that the State could ignore the sacrament, and confine itself to the single element of the contract, abstracting from the other ; but abstraction easily led to negation. Undoubtedly the Gallican theory did not logically imply civil marriage ; the distinction between the sacrament and the contract, even if this were said to be of a civil character, did not compel one to say that marriage is a purely civil contract ; and this is why we do not say that this theory was the cause of the introduction of civil marriage. But it rendered more easy the 1. Cf. HOLLWECK, o. c., p. 39-42, who makes a distinction between relative and absolute Nothcivilehe. 2. See the doctrine of Luther and Calvin, given above in ns 56, 96 and 325b ; HOLLWECK, O. C., p. 6 S. ; BoCKENHOFF, O. C., p. 113. 28 434 CIVIL MARRIAGE transition made under the influence of philosophism,and the defenders of the civilist doctrine found themselves disarmed in the face of this develop- ment ('). The edict of 1787 was issued to avoid the inconveniences of the existing law (-), which obliged Protestants, like other people, to marry before the Catholic parish priest. The edict permitted them to contract marriage without any religious form and without the presence of the Catholic priest ; they were able to marry in their own way, provided the parties made a declaration before the parish priest or the civil judge for the purposes of legal proof ( 3 ). This was far from being the secularisation of marriage, or the regime of civil marriage strictly so called and obligatory. The State still considered marriage as a religious, or rather as civil-religious contract, as we have 1. How much better would they have been able to resist the philosophers, who endeavoured to destroy the sacred character of marriage, had they been in a position to urge against them the true Catholic doctrine, and to vindicate the identity of the contract and the sacrament! As LEMAIRE says, o. c., p. 98 : Alors que les protestants niaient le caractere sacramentel du mariage, alors que les philosophes niaient meme son caractere sacre et religieux, il cut fallu une doctrine de tradition ferme, une theologie solide et resistante, c'est-a-dire tout le contraire de ce qu'etait le Gallicanismc. Si done nous n'accusons pas la doctrine Gallicane d'avoir 6i6 la source directe du mariage civil, nous disons formellement qu'elle en a favorise" 1'avenement d'une fa9on extraordinaire. Elle n'a pas donne le mariage civil a la France catholique, mais elle a livre la France catholique au mariage civil . 2. Cf. PLANIOL, o. c., I, n 845 s. 3. The situation of the Protestants before the edict of 1787 was truly inextri- cable. On the one side, since the revocation of the Edict of Nantes (1685), their religion had been proscribed in France, and all subjects were in law presumed to be Catholics ; moreover, the law recognised for marriage only the form of the Council of Trent, requiring the presence of the Catholic parish priest. On the other side, the Catholic parish priests refused to admit Protestants to marri- age, as they regarded it as a profanation of the sacrament. It was, therefore, impossible for Protestants to contract a marriage that was legally valid, unless they became converts to Catholicism. In fact, for the most part they simulated conversion. Others went abroad to marry, or au desert >, as they said, that is to say, they went to the secret and retired places where they held nocturnal meetings with their co-religionists, and where the Protestant minister officiated at the marriage. But these marriages had no legal value, and those who con- tracted them ran the risk of prosecution ; moreover, if the parties lived as hus- band and wife under these conditions, they were liable to the penalties enacted against concubinage. The whole of this question is treated at length in BONIFAS, o. c., p. 92-170, and DESFORGES, o. c., p. 183-243. CIVIL MARRIAGE 435 already observed. If it required on the part of Protestants only the simple fulfilment of the civil formalities, this was but a concession rendered neces- sary for the regularising of their position before the civil law ; it was a kind of Nothcivilehe. But the way was nevertheless opened by it, and it afforded a sample of civil marriage which, at a later period, was to become binding onall('). Thus these two circumstances, of which we have just spoken, prepared the ground theoretically and practically ; as Lemaire says, o. c., p. 89, The Gallican doctrine was the theoretical antecedent of civil marriage, and the edict of Louis XVI the practical antecedent >. 3. The form of transition from the Gallican doctrine to the idea of civil marriage is apparent in the text of art. 7, tit. II, of the French Constitution of 1791 : La loi ne considers le mariage que comme contrat civil >. Though they distinguished the one from the other, the Gallicans took both elements into account conjointly, and taught that marriage ought to be regulated by the two powers at the same time and concordantly. The constitution of 1791 does not deny the sacramental character of marriage, it even recognises it implicitly (-), but it abstracts from it ; it ignores it, and declares that it is necessary to legislate in the matter of marriage as if it were a purely civil affair, without troubling about its sacred character. A little later we shall find that marriage is called a purely civil contract, and its sacred character denied. II. THE INTRODUCTION OF CIVIL MARRIAGE. Civil marriage, in its obligatory form, was introduced by the Legislative Circumstan- Assembly in 1792. Carrying out art. 7 of the Constitution, it decreed that Jfatfitt^yas marriage should be civilly contracted by all citizens, as a purely civil con- introduced tract. Far from limiting itself, like art. 7 of the Constitution, to an abstraction from the sacred character of marriage, the Assembly denied it absolutely, 1. La nouvelle declaration de mariage institute par 1'Edit de 1787 ne peut etre regardce comme Pinauguration du mariage civil... ; elle n'est que la conse- cration inconsciente du Gallicanisme. Seulement... la tbrme en laquelle elle se trouve ainsi consacree est telle, qu'elle pourra servir presque sans changement pour le mariage civil . LEMAIRE, o. c., p. 89 ; see also BASDBVANT, o. c., p. 181, who quotes the words of Durand de Maillane. 2. The text originally proposed was rejected ; it reads : La loi ne reconnait le mariage que comme contrat civil . Durand de Maillane, who drew up article 7, still adhered to the Gallican theory, which maintained the sacred character of marriage ; his words, quoted by BASDEVANT, o. c., p. 177-180, bear witness to this. As we shall state later, the terms of the clause requiring the precedence of Ihe civil formalities speak in the same sense. 436 CIVIL MARRIAGE and recognised in the nuptial contract only the character of a purely secu- lar contract. This is clear from the declaration of Muraire, the promoter of the law ('), and from the text of the law (-), no less than from the whole of the subsequent legislation on marriage, which, as we have seen, sanctioned the principle of the dissolubility of marriage at the will of the contracting parties, just as in the case of other civil contracts. Nevertheless, the reformers did not go so far as to exclude the parallel existence of canonical marriage. Before the civil courts, civil marriage was sufficient, valid and complete in itself, independently of any sacred charac- ter (and in this they went beyond the Gallican idea and the formula of the Constitution) ; but they left Catholics free to contract another marriage before the Church, and recognised their right not to consider civil marriage as valid in conscience. They thereby recognised and introduced in the case of Catholics a two- fold marriage, parallel and independent : the one, civil, for the civil forum, and the other, religious, for the forum of the Church and of conscience. This was dualism ( 3 ). In the sequel, the pseudo-legislators of 1795 and 1797 went further. They endeavoured to exalt and solemnize civil marriage in such a way as to make it take the place of religious marriage even for Catholics. Their object was to depose the religious contract, and so secularize marriage completely. For this purpose, by the laws of 1795 and 1797 (3 Brum. de 1'an IV and 13 Fructidor de 1'an VI), they instituted various solemnities and ceremonies for the celebration of civil marriage, to take the place of the religious ceremonies (*). Subsequently, however, those who drew up the Civil Code thought it better to return to the law of 1792 ; on the one hand, they retained the purely civil marriage, with its exclusively secular celebration devoid of all sacred character, but, on the other hand, i. Cf. LEMAIRE, o. c., p. 98. a. Ibid., p. 104, where the preamble of the law of divorce is given. 3. Thus one and the same person, e. g., a Catholic, would have to contract a distinct twofold marriage in order to be lawfully married in the eyes of the State and of the Church. 4. For the details, see LEMAIRE, o. c., p. 108-112. See also p. 102, where he observes that, in 1792, Gohier had unsuccessfully made a similar proposition to the Legislative Assembly. And yet at the present day, in the midst of our Catholic population, there are officiers d'itat civil who make themselves ridicu- lous by reviving these ceremonies ! Cf. the Bifft Public, 29 Feb., 5 and 7 March 1908. CIVIL MARRIAGE 437 they did not exclude the parallel existence of another marriage for Catho- lics (i), independent of the former ( 2 ). tt$ Note. I. In many countries matrimonial legislation and jurisdiction, Regulations in respect of Christians, have been usurped by the civil power, and the l ^f orce regulation of marriage has been taken away from the religious body. trUs. Civil marriage, however, is not everywhere in force in its obligatory form, but in many places religious celebration is recognised, so that civil marriage prevails only in its optional form or in its Nothcivilehe form. Thus, a/ civil marriage in its obligatory form (Zwangcivilehe), together with the dualism that flows from it, exists not only in Belgium, but also in many other countries : in Holland ( 3 ), Germany ( 4 ), Switzerland, Hungary (1895), Italy, and in most of the South American States (*). b/ In other countries there exists the facultative Civilehe (optional civil marriage), so that each can choose between the two forms of marriage. This is the case in England ( 6 ), and in many of the North American 1. It seems that even Portalis, who was one of the principal persons engaged in the drawing up of the Code, was at one time borne towards the Gallican theory or rather towards the formula of the Constitution of 1791 : marriage constituted by the contract, dependent on the State, and by the sacrament, of which the State should take no account. He appeals to this theory, as we shall presently say, to vindicate the precedence of the civil marriage. Cf. also LEMAIRE, o. c., n s. ; ALLEGRE, o. c., p. 117 s. ; FRIEDBERG, Das Recht, p. 549 s., p. 567 s. 2. The clause requiring the precedence of the civil marriage (see below) does in fact restrict this independence, but it was not the intention of the legislators to injure it. 3. Cf. SCHAEPMAN, O. C., p. 9 S. 4. HOLLWECK, o. c., p. 9 s., shows the historical phases of civil marriage in the different countries of Germany before the establishment of the Empire ; also its introduction under the Empire, by the law of 6 Feb. 1875, and its sanction in the new Code of 1900. 5. En Amerique la contractation obligatoirement civile du manage a 6te introduite dans les Etats principalement catholiques suivants : Mexique, 1884 ; Chili, 1884; Uruguay, 1885 ; Republique Argentine, 1888-1889; Bre"sil, 1890 . ROGUIN, o. c., p. 143. 6. We are speaking of England only, apart from Ireland and Scotland, which each have their own legislation. Thus in Scotland two kinds of marriages are admitted, regular and irregular. Cf. LEHR, o. c., p. 231 s. ; ALLEGRE, o. c., p. 120 s. ; this author makes mention also of Gretna Green marriages. In England, for a long time prevailed the regime of religious marriage in the strict sense, in that religious solemnization before an Anglican minister (from 438 CIVIL MARRIAGE States (). c/ Elsewhere there exists the Nothcivilehe ; and there some are limited to the religious marriage, others to the civil, while others again can choose between the two. This state of things exists with various modifications in Norway, Sweden, Denmark (*) and Austria ( 3 ). 2. In some places, particularly in Europe, the regime of religious marri- age understood in the strict sense, still flourishes at the present day, at least in the case of those who belong to the established religion, so that religious solemnization is not only admitted and acknowledged by the State, but the entire legislation and jurisdiction are also left to the religious authority. This is the case in Russia, Servia, Montenegro and in some of the pro- vinces of the Austrian Empire, viz., in Croatia and Slavonia, and in Bosnia 1836-1837, before ministers of other religions also) was not only sanctioned by the State, but the entire legislation and jurisdiction in the matter of marriage were left in the hands of the Anglican Church. But from the year 1857, matrimonial jurisdiction was transferred to the civil courts, and the legislation itself de facto (if not de jure) is in the hands of Parlia- ment, by which, contrary to the statutes of the Anglican Church, divorce a vin- culo was introduced in the said year 1857 ; and, in 1907, the impediment of affinity, in the first degree of the collateral line, was abrogated, in so far as the marriage of a widower with his deceased wife's sister was declared valid, while, in other respects, the provisions and impediments of the matrimonial law of the Anglican Church were preserved in the civil law. Cf. GALICHET, o. c., p. 140 ss. Religious solemnization is, however, retained, at the choice of the parties, before a minister of the Anglican religion or of some other religion. Such minis- ter is recognised as having an official civil status (that of registrar), so that marri- age celebrated before him, in a legally recognised place, is, ipso facto, valid before the civil courts. Up to the present, Catholics have not taken advantage of this privilege conferred by the Act of 1898. The practice with Catholics is to celebrate the religious marriage in a licensed building >, and then to repeat the form of civil marriage in the presence of the registrar (in the said licensed building ), and sign the register together with the officiating priest and the wit- nesses. 1. SCHULZE, Eherecht, 1. c., p. 754-760, describes the legislation of the Federa- ted States. 2. See ROGUIN, o. c., p. 120 ss. This author deals rather with the regime in force in the Scandinavian countries under the head of Facultative Civilehe. 3. LAURIN, Introd. in jus matrimoniale, p. 125 s., cf. p. 97 s. ; HOLLWECK, o. c., p. 9 ; Th. Pr. Quartalschr., 1909, p. 500 ; SCHEICHER, o. c., p. 5 et 335 s. See also below, n 232, in note. CIVIL MARRIAGE 439 and Herzegovina ('). This regime is most fully in force in Spain, where its completely religious character is preserved in the marriage of Catholics, and the entire canonical legislation is recognised by the State ; while civil marriage is there available for non-catholics only ( 2 ;. Cf. below. n 232. A like regime existed in Portugal, before the recent revolution ( 3 ). On the subject of these different regimes, see ROGUIN, o.c., p. 116-152 (); HERGENROTHER-HOLLWECK, o. c., n 1015 ; VERING, o. c., p. 875 ss. ; Sac- MULLER, o. c., p. 540 ss. ; SCHNITZER, o. c., p. 52 ss. ; LEiTNER, Lekrb., p. 84 s. We may observe that civil marriage was first introduced in its obliga- tory form (but not permanently) in England in 1653. In Holland and Frisia the optional form was already in existence in 1580 ; people could choose between the presence of the civil officer and that of the Protestant minis- ter (). III. BELGIAN LEGISLATION ON CIVIL MARRIAGE. A. Form of celebration. 230 The formalities required for validity in the celebration of civil marriage Provisions of have already been described above in n os 83 and 243, together with the tjte C* e r T Napoleon,and changes recently introduced by the law of 7 Jan. 1908. especially of B. Precedence of civil marriage over religious marriage. Code,on 'civil The provision relating to the precedence of the civil formalities over the religious was proposed for the first time by the promoter of art. 7 of the as regards the law of precedence. 1. LEITNER, Ne Temere, p. 91. 2. Before Spaniards can be civilly married, they must make a declaration that they do not profess the Catholic religion. In connection with this required decla- ration difficulties have recently arisen, and an attempt has been made to have it abrogated. Cf. Etudes, t. CXI, p. 46 s. 3. ROGUIN, o. c., p. 391 s. 4. The author,on p. 151 s., speaks of the curious legislation in Roumania, which requires both the civil and religious marriage ; in virtue of the constitution, the fulfilment of the civil formalities must be followed by the nuptial blessing : La benediction religicuse est necessaire pour le manage, sauf les cas qui seront prevus par une loi speciale . 5. FRIEDBERG, Das Recht, p. 481 ss. The law passed on the i April 1580, on the one hand, granted a concession to Catholics, who were no longer, as previously, compelled to marry before the Protestant minister ; but, on the other hand, it introduced civil marriage and made it obligatory for them, since for religious marriage they could only apply to the Reformed Church, which they could not conscientiously do. 440 CIVIL MARRIAGE Constitution of 1791. The Gallican idea, as we have seen, regarded marri- age as a civil contract which was subsequently perfected by the sacrament ; and though the law entirely abstracted from the sacramental character, it was nevertheless logical from the Gallican point of view, to forbid the nup- tial blessing before the civil contract ('). But the law of 1792 cut short the question of precedence. It instituted purely civil marriage, deprived of all sacred character, having no need of any religious ceremony to perfect it, and completely independent of, and distinct from the religious marriage that Catholics could contract if they wished. Neither the law of 1792, nor the worse one of 1795, made any regulation on this point ; it simply did not exist for them. But the clause requiring the precedence of civil marriage was introduced in the Concordat, in the organic article 54 ; and later, in 1810, the Penal Code, art. 199 and 200, enforced it under severe penalties. This step was determined by motives of practical expediency, and especially by the fear that existed that a large proportion of married persons would content them- selves with the religious marriage, and thus give rise to many anomalies in determining the civil status of citizens (*). Moreover, there were at the time many priests and Bishops even, who were of the same opinion, and demanded the precedence of civil marriage ('). This law is the one at present in force in Belgium (*), in virtue of art. 16 of the Constitution ( 5 ), and every infraction of it is liable to heavy penal- 1. Durand de Maillane, in the face of the opposition raised against it, after- wards withdrew his original proposal. 2. We may add that Portalis, though in fact influenced by these reasons of expediency, undertook to justify this provision, the illogicalness of which he fully understood, by reviving the old Gallican theory of the contract-sacra- ment, which logically led to the precedence of the contract over the nuptial bles- sing. Cf. FRIEDBERG, Das Recht, p. 567 s. ; BASDEVANT, o. c., p. 200 and 204 ; HEBRARD, Les articles organiques, Paris, 1870, p. 285 s. ; DELASSUS, o. c., p. 7 s., who observes that this theory was also invoked in the Expose des motifs of art. 199 and 200 of the Penal Code. 3. LEMAIRE, o. c., p. 116, in the note. 4. It is the same, in general, in the other countries in which civil marriage exists, with the exception of Italy and Chili. For the legal provisions of Hun- gary, Germany and the Netherlands, as well as the penalties under which the precedence of civil marriage is enforced, see BALOG, o. c., p. g s. ,255., and 35 s. respectively. On page 22 ss., the author adds that the Swiss Code, which comes into force in 1912, preserves the law of precedence, but suppresses the penalties which heretofore accompanied it. 5. Le manage civil devra toujours preceder la benediction nuptiale, sauf les exceptions a etablir par la loi, s'il y a lieu . CIVIL MARRIAGE 44! ties (i). Nevertheless the text of art. 16 provides for the legislative introduc- tion of exceptions ; this was the object of the law of 3 Aug. 1909, relative to marriages in extremis, proposed by M. Woeste and duly passed (*). On the subject of this article and the discussions provoked by it, read HUYT- TENS, o. c., I, p. 587-621 and II, p. 466-472. On the one side, its defenders could allege little but theoretical principles ; and their main contention was that, with- out this obligation of precedence, many would neglect the civil formalities altogether and confine themselves to the religious marriage, which, as they said, has been proved by experience. On the other side, many Catholics objected to the penalties imposed, as an infringement of liberty, but nevertheless, in a spirit of conciliation, acquiesced in the precedence, relying upon the exceptions which the law makes possible. Cf. Coll. Brug., t. XIII, p. 517 s., where we have briefly explained the discipline formerly in force under the Dutch domination and under the provisional government; see also the Revue cath. des Institutions et du droit, 1903, t. 31, p. 136 s. ; LECLER., Coll. Namurc., t. IX, p. 254 s. ; STAN- DAERT, Collat. Gandav., IV, p. 62 ss. 1. Code Penal Beige, art. 267 : Sera puni d'une amende de cinquante francs a cinq cents francs tout ministre d'un culte, qui, hors les cas formellement exceptes par la loi, procedera a la benediction nuptiale avant la celebration du manage civil. En cas de nouvelle infraction de meme espece, il pourra, en outre, etre con- damne a un emprisonnement de huit jours a trois mois . The interpretation of this law,having regard to the existing jurisprudence, calls for the following observations. Primo, according to the declaration made in the Senate by the minister of Justice, De Lantsheerc,2o July 1909, on the occasion of the discussion of the law of 3 Aug. 1909, the words benediction nuptiale , both in the Constitution and in the Penal Code, < visent tous les cas ou la presence d'un pretre est necessaire pour rendre valable un mariage religieux (Annales Parlcm. Senat, Session de 1908-1909, p. 587). Secundo, to constitute the offence, the purely passive assistance of the priest is sufficient, such as was until recently given in the case of a mixed marriage (Pandectes Beiges, under Acte de mariage, n 47, compared with the decision of the Trib. d'Anvers of 9 March 1876, with that of the Trib. de Bruxelles of 16 Nov. 1876 and that of the Cour de Cassation of 26 Dec. 1876 ; in the Pasicrisie, 1876, p. 97 and 1877, p. 21 and 41, in the case of M. Sacre, Dean of Antwerp). Tertio, under art. 66 and 67 of the Penal Code, co-operation in the offence is also punishable ; and it was on this head that the Dean of Antwerp was condemned for having delegated his curate (Ibid.) ; read also the speech of the minister before the Chamber of Representatives, 27 Nov. 1908 (in the Annales, p. 142). Cf. LECLER, Coll. Namur., t. IX, p. 256 s. As regards the application of the penalties, the priest may benefit by the con- damnation conditionnelle. Cf. Coll. Brug., VII, p. 133. 2. The occasion of the introduction of this law was the recent conviction of M. Van Langenhove, vicaire at Overboelaere, who had officiated at a marriage 442 CIVIL MARRIAGE The following is the text of this new provision : Article unique. L'art. 267, paragr. i er , du code Penal est modifie comme il suit : Sera puni d'une amende de cinquante francs a cinq cents francs, tout ministre d'un culte qui procedera a la benediction nuptiale avant la celebration du mariage civil. Cette disposition ne sera pas applicable lorsqu'une des personnes qui ont re9u la benediction nuptiale etait en danger de mort, et que tout retard apporte a cette ceremonie cut pu avoir pour effet de la rendre impossi- ble (i) . In the case of France, it may well be asked if the new regime of separation has not modified the respective positions of civil and religious marriage. On this subject, cf. the Revue Augustinienne, 1906, t. IX, p. 424 s. ; Le Can. cotitemporain, 1906, p. 641 s. ; the Revue d' Apologetique, t. X (1910), P- 539 s - > DELASSUS, o. c., p. 12 s. ; PLANIOL, o. c., I, n 850. IV. CRITICISM OF THE BELGIAN CIVIL LEGISLATION. 2<3 /. The Belgian A. The legislation in force is objectionable. tion isubjtc- ! In the institution of obligatory civil marriage. iionable, both fhe law sanctioning obligatory civil marriage is objectionable on many in the tnstttu- tion of civil grounds. It is enough for us to say that it is entirely untrue to the nature of marriage, Christian marriage, lowering it to the status of a purely lay and secular for- mality, and that it introduces a ridiculous dualism. This latter point is very well put in light by LEMAIRE, o. c., p. 189 : It is impossible to base a nation's conception of marriage upon the idea that, in order to marry it is necessary to marry twice. Legislation and the law have their understandings with morality that the good sense of the people and practical morality know nothing about. Why say yes in the church, and then yes in the mayor's office, or why yes in the mayor's office and then yes in the church ? We cannot get away from this twice uttered yes, the one of import, the other of no import at all . This dualism logically leads to endless conflicts between the law and conscience ; marriages null in conscience are declared valid in law, and vice versa (*). in extremis, on the 4 Oct. 1907. See the Export dcs motifs, in the Documents Par- lementaires. (Chambre des Repr6s.. 1907-1908, n. 134) ; Collat Namurc., t. IX, p. 257 ; Collat. Gandav., IV, p. 61 s. 1. Moniteur Beige, 1909, n 224, p. 4441. We have given a brief commentary on this provision in the Coll. Brug., t. XV, p. 99 s., cf. t. XIII, p. 514 s. See also below, n 401 ; Collat. Gandav., IV, p. 67 ss. 2. Cf. LEMAIRE, o. c., p. 128-135, who makes the following observation on page 130 : Des lors qu'il n'y a pas harmonic entre la reglementation du mariage religieux et celle du mariage civil, et que cependant il y a obligation de respec- ter 1'une et 1'autre, la premiere par devoir de conscience, la seconde par prescrip- CIVIL MARRIAGE 443 2. In the clause requiritig precedence. Though this clause, as we have said, was not introduced in a spirit of and in the hostility to the Church and religious marriage, it has nevertheless greatly ****fj**' contributed to the spread of the popular opinion that the civil marriage is dence. of more importance than the religious, and that the latter is only an inci- dental ceremony ('). Moreover, it is altogether illogical and opposed to liberty ; and, in fine, the reasons of expediency that have been alleged are of no value, at least at the present time. And in fact : a/ This clause is illogical, even granting the principle of civil marriage together with the regime of separation and the mutual independence of the two courts. Even our opponents admit this (). b/ It is opposed to liberty. It may very well happen that there are urgent reasons for being married in the sight of God, when the parties concerned are so situated that they cannot first go through the civil form of marriage, either because of some impediment from which the State cannot dispense, or because of circumstances which do not permit of the necessary delay (=). tion legale, il en resultera, dans toutes les circonstances ou cette double satisfac- tion ne sera pas possible, un tiraillement douloureux, un penible conflit, dont les parties sont les victimes >. See also HOLLWECK, o. c., p. 43-77 ; he gives a complete criticism of obligatory civil marriage. 1. Read the eloquent letter of Leo XIII to the Bishop of Verona against an analogous law of which there was question (8 Feb. 1893), in the Ada S. Sedis, XXV, p. 459 s. ; see also LEMAIRE, o. c., p. 147 ; DELASSUS, o. c., p. 3 and 4, where are given the words of Pius IX in his Allocution to the Belgians, 3 Oct. 1875, and in his Brief of 15 Jan. 1876. 2. De deux choses 1'une >, exclaimed Batbie, as far back as 1867, ou le manage religieux n'est rien aux yeux du legislateur, et alors pourquoi les arti- cles 199 et 200 du Code penal, qui erigent en delit un acte de religion ? Ou le manage religieux est un fait important, et alors pourquoi le code civil n'en tient-il aucun compte ? II faudrait choisir entre les deux partis. Que le mariage religieux soit non existant pour la loi civile, et existant pour la loi penale, c'est une contradiction manifeste . LEMAIRE, o. c., p. 122 ; he also quotes, on p. 124, the words of LAURENT. Cf. also the remarkable words of Dr. Van Kaay, quoted by SCHAEPMAN, o. c., p. 21 s. The Chronique of 7 March 1908, and the Peuple of 29 March 1908, speak to the same effect. We have given their testimony in the Coll. Brug., t. XIII, p. 519. 3. This is by no means a gratuitous hypothesis J on the contrary.such cases are of frequent occurrence, quite apart from marriages in extremis. The patent proof of it is to be seen in the reports published by the Society of Saint Francis Regis. Sometimes it is the parents who refuse their consent ; sometimes it is the authentic acts concerning the act of duty, or the decease of the former partner, that are wanting ; sometimes, again, it is not possible to fulfil in time the required formalities on the part of foreigners who wish to get married in Bel- 444 CIVIL MARRIAGE There is then a violation of liberty, and this was recognised by many mem- bers of the Congress itself (1830-1831) (*). c/ Finally, the reasons of practical expediency, which were formerly invoked, no longer exist in the present state of affairs. All, even the unedu- cated, know of the advantages provided by the law, and they would take care not to forfeit them by neglecting the civil formalities ( 2 ). Moreover, confusion in civil status is no longer possible, for we are now far from the time when the parish priest, in officiating at a marriage, acted at the same time as the civil officer, in the name of the King ( 3 ). S3 % B. The remedies. How the evil i. The radical remedy would be to reform the matrimonial legislation on of the law tne lines of the Catholic principles set forth above, in such a way that the might be State should continue to regulate the marriages of its unbaptized subjects, and leave to the Church the exclusive regulation of marriages between gium ; for, according to the requirements of the Hague Conference, such con- tracting parties must conform to the laws of their own country as regards their right and ability to marry. Cf. Coll. Brug., t. XV, p. 105, where we treat the question at length. 1. Cf. the Expose des motifs de M. Woeste, in justification of his proposal 01 the law mentioned above. 2. En wie er in den aanvang ook al onnoozel genoeg wezen mocht, om de burgerlijke huw elijksvoltrekking te verzuimen, de allertreurigste gevolgen van zijn verzuim zouden hem alras tot die burgerlijke huwelijksvoltrekking nopen, en de andere zouden zich uit louter eigenbelang wel wachten zijn verkeerd voor- beeld te volgen . SCHAEPMAN, o. c., p. 13 s. 3. Formerly, and precisely on account of the recent introduction of the change in the law, it was possible to allege the likelihood of this confusion with some show of truth ; and Portalis does not fail to say : Lf s ministres qui precedent aux ceremonies religieuses d'un mariage, sans qu'il leur ait ete justifi^ de 1'acte de mariage re9u par les officiers de 1'etat civil, compromettent eVidemment l'tat civil des gens simples, d'autant plus disposes a confondre la benediction nuptialc avec 1'acteconstitutif du mariage, que le droit d'imprimer au mariage le sceau de la loi etait naguere dans les mains de ces ministres . But now, as La Chronique says, 1. c., le temps a pass, on sait que le pretre ne peut con- fe>er le caractere legal a 1'union de 1'hommc avec la femme ; and Le Peuplt says, 1. c., chacun sait pertinemment a quoi s'en tenir sur la valeur respective des diverses formes du mariage . Besides, if the reason was good, if there was really need to see that certain married people did not live as such without civil marriage, the law ought also to prevent all concubinage, as De Gerlache said very pointedly before the National Congress (HuvxTENS, o. c., p. 590). And finally, if there was reason to fear some abuses, the timely intervention of the Bishops would suffice to prevent them. CIVIL MARRIAGE 445 Christians. The law would rightly require that the civil authorities should be duly informed of the religious marriages that took place, so that it might be enabled to recognise the married parties as such, and give to their union its civil effects. Thus, in Spain,the Church regulates the marriage of Catholics, both as to impediments and the formalities of its celebration ('). The civil law prescrib- es the observance of the form of the Council of Trent or that of Pius X, and for the civil authentication, it ordains, in art. 359 : < The municipal judge or other functionary of the State must be present at the canonical celebration of a marriage, in order to insure its immediate registration in the civil register >. As to ecclesiastical judgments in the matter of marri- age: The judgment is entered in the civil register and presented to the ordi- nary tribunal for the purpose of obtaining its execution as far as its civil effects are concerned (*). On the other hand, the law determines the civil formalities to be observed by those who do not profess the Catholic religion. See LEMAIRE, o. c., p. 188-230 ; LEHR, o. c., p. 160 s. ; Coll. Brug., t. XII, p. 274. Having regard to circumstances, the Church would be able to tolerate, as it does in Spain, that the civil form prescribed by law should be applicable to those of the faithful who are unwilling to conform to the matrimonial legislation of the Church, so that their marriages might not be deprived of formality and left to the caprice of individuals ( ; ). Without being so radical and so conformable to the exposed principles on the regulation of marriage, the remedy would already prove efficacious if our laws adopted a regime analogous to that which, as we have seen, is in force in England and in several States of North America : viz. that the State, though reserving to itself the regulation of marriage, would recognise the legality, in the civil forum, of the religious formalities to be fulfilled in the celebration of marriage between Catholics. The crying anomaly of the two consents, which we have pointed out in the preceding number, would directly dissappear. 2. But if the spirit of the times does not permit us to hope for such a satisfactory solution, some remedy at least ought to be afforded for the evil consequences that flow from the obligatory precedence of the civil marriage : 1. The conditions, form and solemnities for the celebration of canonical marri- age are regulated by the provisions of the Council of Trent, admitted as laws of the realm... The cognizance of cases of nullity or of separation, where canoni- cal marriage is concerned, belongs to the ecclesiastical courts . Art. 358 and 364, in the first part. The Spanish Government, consistent with itself, has also officially promulgated, as a law of the realm the Decree, A T : the contracting parties are free from any impediment, and especially from any matrimonial tie. P. 130 (on the top of the margin) add : in the case of vagi, the permission of the Ordinary is required. P. 383 add marginal number 212, before 4. CH. BEYAERT, Publisher, BRUGES. 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Promptuarium Liturgicum juxta Novissimam Rubricarum reformationem et recentissima SS. Rit. Congr. Decreta 2 vol. in-8. Sub prelo. Sermones et Meditationes. Card. MERCIER Retreat to his Priests. Price cloth : 5/ bound in morrocco 6/6. Mgr WAFFELAERT, Eveque de Bruges. Meditations Theo- logiques. 2 vol. 5/ bound 8/. DUHAYON et LYNA S. J. Instructions et Allocutions pour tou- tes les ceuvres religieuses, sociales et ouvrieres s'appuyant sur 1'ency clique Rerum Novarum . 2 vol. in-8, 1700 pages. 7/6 cloth g/ bound 10/5. A very useful book to priests, who have to address and give instructions at meetings of religious sodalities and confraternities, guilds of young men, work- men, etc. Chan. D'HOOP, Cure a Gand. Sermons et Homelies pour tous les Dimanches et Fetes de 1'annee. 12 vol. in-8, 19/3 bound in 6 vol. 2g/. Chanoine DECROUILLE. Meditations liturgiques pour toute 1'Annee Chretienne. 2 vol. 5/ bound 6/6. The above book of meditations wil be found useful to preachers. Chan. DECROUILLE. 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