144. The Nature of Marriage

1. Augustinus, a jurist, holds that in the marriage of the faithful the contract and the sacrament can well be distinguished. Therefore matrimonial causes, he says, are mixed, and under the aspect of a contract pertain to the civil power, under the aspect of a sacrament to the Church.

It is asked: What must be thought of the doctrine of Augustinus?

R. Augustinus is remarkably deceived. For the sacrament of matrimony is not something added over and above the contract itself, or extrinsic to the contract, or separable from the contract, or really distinct from the contract itself; but the sacrament is the contract itself. And therefore, if matrimonial causes under the aspect of a sacrament pertain to the Church by her own right, they also pertain to her under the aspect of a contract. Therefore the Church, and she alone, and by her own right, has power to establish diriment impediments, and also directly to establish impediments which of themselves impede, and to dispense them; of herself also, and consequently, she has equal power of judging concerning the value, the consistency, and the duration of marriage.

Besides, from the opinion of Augustinus it would follow "that the marriage of the evangelical law, sanctified and perfected by the grace acquired by Jesus Christ through His Passion, and raised to the dignity of the great sacrament of the Church, would at the same time, by divine disposition, be exposed to contradictory enactments of laws, and would be perpetually battled over in war between two different powers, while the one protects what is rendered void by the other; the one holds in contempt and punishes what the other blesses and applies sanctification to; the one grants civil effects to him whom the other renders incapable of civil and spiritual effects." S. O., July 6, 1817; Collect. S. C. de P. F. n. 1289; I. M. 971.

Those things which precede are confirmed from the things which Benedict XIV has in the Letter of Sept. 17, 1746, Redditae sunt Nobis. For he says, speaking of places where the Decree of the Council of Trent has been promulgated, "it is clear that a marriage entered into before a civil magistrate or a non-Catholic minister, and not likewise before the proper parish priest of either of the contracting parties and two witnesses, can be sustained neither under the aspect of a sacrament nor under the aspect of a contract, nor in any way be reputed valid." Therefore, under each aspect altogether, both of sacrament and of contract, the marriage of Christians is subject to no power except that of the Church. And soon after he adds: "Let the Catholics entrusted to your care know that, when they present themselves to a civil magistrate or a heretical minister for the sake of celebrating marriage, they perform a merely civil act, by which they show their obedience toward the laws and institutes of rulers; but that then no marriage is contracted by them. Let them know that, unless they celebrate nuptials before a Catholic minister and two witnesses, they will never be TRUE AND LEGITIMATE SPOUSES either before God or before the Church; nor, if meanwhile they have had conjugal intercourse with each other, will it be without grave fault. Finally let them know that, if any offspring arises from such a union, that offspring, as BORN FROM A NON-LEGITIMATE WIFE, WILL BE ILLEGITIMATE IN THE EYES OF GOD, and, unless the spouses renew consent according to the prescription of the Church, WILL BE PERPETUALLY ILLEGITIMATE ALSO IN THE FORUM OF THE CHURCH."

From these things it is clear what the nature of civil marriage is, and what and how great is the force of marriage as sacrament. It is, namely, so great that, true marriage being removed, the effects of true marriage are lacking before God, that is, in the objective truth of things and in the forum of conscience.

Hence Leo XIII, in the Encyclical Letter of February 10, 1880, expressly teaches these things: "It ought to be established for all that, if any union of a man and a woman among the Christian faithful is contracted apart from the sacrament, it lacks the force and character of a just marriage; and although it has been made agreeably to civil laws, nevertheless it cannot be more than a rite or custom introduced by civil law; but by civil custom only those things can be ordered and administered which marriages of themselves bring forth in the civil sphere, AND WHICH, IT IS MANIFEST, CANNOT BE BROUGHT FORTH UNLESS THEIR TRUE AND LEGITIMATE CAUSE, NAMELY THE NUPTIAL BOND, EXISTS." Cf. Cass. 55; I. M. 959, 969, 970, 973.

2. "It is asked whether a marriage contracted by two Catholics who are minors by birth, according to the forms prescribed by the Church, but nevertheless with the parents unwilling, is valid.

"R. Affirmatively; for neither the dissent of parents nor minor age can in any way be numbered among the impediments diriment of marriage in these our times. We do not delay over imperial laws and commands of rulers contrary to this opinion; for they are to be understood either only of civil effects, as outstanding men think concerning the edict of Henry III, Most Christian King, confirmed by Louis XIII: Loretus, Counselor in the senate of Paris, Hubertus, Bishop of Vabres, Cabassutius, Gerbasius, Natalis Alexander, and others; or, since they establish what exceeds the limits of secular power, they are altogether to be rejected. Concerning those things which pertain to the nature of the sacraments, the full power of defining belongs not to secular rulers, but to the Church alone. But she not only held and declared marriages of this sort valid in cap. Licet and in cap. Tua de Sponsa duorum, but also at Trent, legitimately gathered in the Holy Spirit, struck with anathema those who falsely affirm that marriages contracted by children of families without the consent of parents are void, and that parents can make them valid or void. Therefore no place of doubt is left concerning the validity of the aforesaid marriage." S. O., Nov. 17, 1835; Collect. S. C. de P. F. n. 1448.

3. "... Into three classes can be divided those Armenians who present themselves before the Turkish judge to contract marriage. Some go there to take a concubine, and these cannot intend to celebrate the contract of marriage, but to cloak their lust in such a way. Others present themselves to the Turkish minister to make a simple declaration of a marriage already contracted, or to be contracted shortly, but they do not intend then to contract a true marriage, although they use verba de praesenti. - Finally, others also appear before the same judge in order to take a woman as a true wife, which at times has not been granted to them by the Church by reason of some impedient impediment; but these persons, not knowing that their marriage, celebrated in such a way before the Turkish minister, can be a true and valid marriage, although illicit, cannot intend to contract it, although they have the will for it, and they believe rather that they are contracting a concubinage; but if they knew the sufficiency of this act of theirs for contracting a true marriage, they would certainly intend to contract it.

"R. This is the substance of the doubts to which the Sacred Congregation responded that the marriages contracted by those of the first class before the Turkish judge are null and void, because the will of the contracting parties and their consent is directed to concubinage alone; and meanwhile externally they say that they celebrate marriage, insofar as they wish with this color to cover their incontinence. But if perchance this intention had been hidden in the mind of only one of the contracting parties, who had conducted himself in all external acts as if he had wished to celebrate a true marriage, and in such a way had deceived the other spouse with craft and fraud, in this case, if legitimate proof of the fraud and deception cannot be had, although the marriage may be null in the internal forum, nevertheless the same judgment must not be formed in the external forum. Therefore the Vicar Apostolic will be obliged, when the case occurs of having to decide concerning one of such marriages contracted with a feigned intention and with the mind of taking a concubine and not a wife; he will be obliged, I say, to examine well the circumstances of the fact, and not to give faith to the mere assertions of the deceiving spouse, especially if the woman was entirely ignorant of the deception; and he must oblige him to persevere in the marriage and to renew the necessary internal consent, because he is bound under mortal sin to consent anew and to effect a true marriage, as all the theologians teach us and as duty requires.

"For the others of the second class, who present themselves before the Turkish judge, but do not then wish to contract a true marriage, although they use verba de praesenti, intending to contract it afterward if they have not contracted it before, the Vicar Apostolic must verify the circumstance whether the marriage had been validly contracted before presenting themselves before the Turkish judge, or whether it must be contracted afterward. In the case in which the marriage had already been validly contracted before, the appearance before the Turkish judge, when it is made for a truly civil act and in order to obey the laws of the Principality, is not prohibited, as Benedict XIV teaches in his Constitution 139, t. 1, Bull. § 10, and it harms nothing in the validity of the marriage already celebrated; but if the marriage either had not been contracted, or had not been validly contracted, since, when these persons present themselves before the Turkish judge, they do not have the intention of then contracting a true marriage, thus, true and internal consent being lacking in them, and they being disposed only to furnish it then when they will celebrate the marriage, they cannot be regarded as legitimate spouses, nor can their marriage be said to be valid. But also for these the Vicar Apostolic must be very careful not to give faith so easily to the hidden intentions of the contracting parties, when from the exterior acts there results the contrary of what they assert.

"Finally, for the others of the third class, who have the will of taking a true wife, but are in the error that it is not sufficient for the value of marriage to present themselves before the Turkish judge, but if they knew the sufficiency of this act of theirs for contracting a true marriage, they would certainly intend to contract it, the Sacred Congregation ... decided that these marriages are valid when no other canonical impediment intervenes. For, according to the circumstances of the proposed case, there can be no doubt of the true, legitimate, internal, and reciprocal consent of the contracting parties. Their error that marriage cannot be validly contracted before the Turkish judge cannot render it null, because it does not concern nor belong to the substance of marriage, and does not remove the preceding will of the one who wished to celebrate it, but falls only upon its form and solemnity, and thus cannot render it invalid, since, in marriage as in other contracts, when the error is concomitant and does not influence the essence of the thing which is willed, but its accidental qualities, the contract remains valid. Nor does the opinion prevailing among the Armenian nation stand in the way of the validity of such marriages, namely, that a marriage cannot be contracted before the Turkish minister, but that it is necessary to celebrate it before the Church and with the priestly blessing. This opinion is not constant, nor is it even common among the nation; and the ecclesiastics who have studied theology know how to think differently.... Moreover, this opinion is not furnished with any Armenian synodal canon; it is not approved by the Apostolic See, but rather derives from the ignorance of the Armenians, who do not distinguish invalid marriage from illicit marriage.

"... The necessity of the assistance of the parish priest at marriages has been introduced only in the Latin Church by the Decree of the Sacred Council of Trent; and the Armenians, who, as Benedict XIV wrote in the noted Instruction of 1754, have never heard of this Decree, consequently cannot be subject to it. And therefore, when they celebrate their marriage in the presence of two or three upright and honorable witnesses, or before the Turkish judge, since then there can be no doubt of legitimate consent reciprocally manifested for contracting marriage, so its validity cannot be called into question." Instr. S. C. de P. F., Oct. 1, 1785; I. M. 959, 962, 967, 969.

4. "In the present case, with the parish priest and two witnesses present, and with the woman purposely waiting there, the bridegroom arrived in order to contract clandestinely; and at his very entrance, being asked by a certain third person why he was coming into that place, he answered: I come that I may see Lady N., my spouse, or, as others said, who is my spouse. Having heard this, the parish priest rose and fled, lest he be compelled to assist at a clandestine marriage. Therefore it was doubted whether those words of the man sufficed for contracting marriage concerning the present.

"R. In strictness it is not a true marriage, because although the contracting parties, afterward, having mutually given hands, expressed consent, nevertheless the parish priest neither saw nor heard that, but only those prior words, which indeed do not seem in practice to signify obligation, but enunciatively or narratively. For if someone says to a certain third person: I wish to leave Peter my heir, by these words he does not in practice constitute him heir, but only signifies the intention which he has. Likewise, if he says: Call the notary, because I wish to donate my goods, he does not in practice donate by these words. Thus, therefore, in that case, he who responds to a third person asking the cause of his coming, that he comes to see his spouse, does not use words which, by the institution of men, signify obligation in practice, but only narrates what has been done, or what is to be done in the near future; for that whole proposition spoken to a third person seems ordered only to giving a reason. For suppose someone to have come in the same way to make a testament in favor of Peter existing there, and, being asked by another third person why he was coming, says: I come to see Peter my heir; certainly by these words he would not institute him heir. Likewise, when the Supreme Pontiff used to be elected by public suffrages and adoration, if a cardinal, with the mind of electing someone, should go to the chapel where the one to be elected was present with others, and, being asked by another, Whither are you going?, should say, To adore the Pope, certainly by this response he would not be considered already to have given practical consent and suffrage for his election, but would signify only the mind with which he was coming to elect him." Lugo, de Iust. et iur., d. 22, n. 23.

5. Titius gave a mandate to Caius that he should contract marriage in his name with Sempronia. While Caius was contracting the marriage, Titius, seized by a very grave typhoid fever, fell into furious madness. But, many remedies having been applied, after a year he wholly recovered.

It is asked: Is the aforesaid marriage valid?

R. Affirmatively. For during the intervening time the will of Titius was not retracted, although then, when Caius was contracting for him, Titius had lost the use of reason. Sanchez, l. 2, d. 11, n. 12; I. M. 963.

6. "With what rite will the priest assist at marriages in which one party is non-Catholic? Is it permitted to pronounce the form, to say prayers, to bless the ring of the heretical bride?

"R. Negatively." S. O., Aug. 1, 1821; Collect. S. C. de P. F. 1543, 1427, 1443; Enchir. Moral. 1016; I. M. 1016.

7. "Many Protestants, without any intention of embracing the Catholic religion, often request that, either before one of their own ministers or before the bishop himself, they furnish consent for contracting marriage. It is to be noted that in such circumstances the bishop and priests would act not as priests, but as civil magistrates, which is permitted by the laws of the republic. Now he asks, whether it is permitted to him and to his missionaries to preside over such marriages?

"R. If there is question of marriage between two heretical parties, although an intervention of this sort is not so reproved that it can never be licit, nevertheless commonly it must be dissuaded. But if one party is Catholic, with a dispensation having been obtained from the impediment of mixed religion, and with the usual clauses and conditions being observed, it is permitted." S. O., Dec. 20, 1837. Cf. Enchir. Moral. 1016.