III. On the Impediments of Marriage

What and of how many kinds is an impediment of marriage; by what law is it constituted, and by what superior; whom does it affect? Impediments of marriage are certain conditions or circumstances constituted by law, which prohibit from contracting marriage. By law, for a particular precept or prohibition made to someone or to some persons is not customarily called an impediment. - Impediments which forbid entering marriage licitly are called impedient; those which bar from validly contracting marriage are called diriment. Contracting, for if perhaps they supervene when it has already been contracted, they by no means render it invalid. Diriment impediments fall into inhabiting and invalidating laws. Wherefore regularly neither ignorance nor force nor fear even of death excuses from incurring them. - All diriment impediments are established either by natural law, or by divine law, or by canon law. Nor can Bishops constitute them, but only the Roman Pontiff. Impediments introduced by Christian Princes are neither diriment, nor properly impedient, and therefore do not oblige in conscience except merely per accidens, from damage that would occur if they were not observed. - Impediments of natural and divine law oblige all, even unbelievers. Impediments of canon law oblige only Christians, C. 4, de Consang., C. 8, de Divort., namely Catholics and heretics; and thus the Holy See, when permitting mixed marriages of Catholics and non-Catholics, if some diriment impediment is present, first dispenses it. And if marriage is entered by a faithful person with an unbeliever, an impediment of ecclesiastical law certainly does not directly affect the unbeliever; nevertheless it directly affects the faithful person, and because marriage is a contract, and a contract is between two and cannot be invalid on one side and valid on the other, the impediment indirectly affects even the unbeliever, as is seen in the impediment of disparity of worship, crime, etc. C. 1, de Conv. infid. - Trent, sess. 24, c. 3, 4; Sanchez, l. 7, d. 5, d. 78, n. 3; Schmalzgrueber, l. 4, t. 1, n. 375; t. 7, n. 46; La-Croix, l. 6, p. 3, n. 525; Benedict XIV, de Syn., l. 8, c. 14, n. 5; l. 13, n. 23; Lugo, Resp. Mor., l. 1, d. 45, n. 4; E. M.

Resolutions: Hence, if after marriage has been contracted the woman certainly detects a diriment impediment, by force of which there was no marriage, she cannot ask the debt, nor render it, even if she were compelled to this by the threat of death, because the union would be fornication, which in no case is licit. Except probably, unless the woman were merely passive, so that she would cooperate in an altogether material way in such an act, if she is compelled to this by fear of death, with danger of consent always excluded.

How many and which are the impedient impediments? - Today four are numbered: prohibition of the Church, time, betrothals, vow. Formerly six were numbered. For there were also the impediments of catechism and crime. But these two impediments, by the consent of all theologians and canonists, are now held as obsolete. - The impediment of catechism was contracted by him who answered for an infant in the profession of faith which precedes the conferral of baptism, and constituted an impedient impediment in the same degrees as with the sponsor of baptism and confirmation. - The impediment of crime was a certain penalty imposed by the old law on certain graver crimes, by which namely the guilty person was prohibited from contracting any marriage with any person, either altogether, if he was unmarried, or after the death of the spouse, if married. - Schmalzgrueber, l. 4, t. 11, n. 59 ff.; t. 13, n. 3, 27-29; t. 16; Sanchez, l. 7, d. 15; De Iustis, de Dispensat. Matrim., l. 2, l. c., n. 58 ff.

What is the prohibition of the Church? - It is a prohibition, whether general or particular, made by the Church or some ecclesiastical superior, that some marriage not be celebrated. - Particular prohibition is had when, from a just and special cause, marriage is interdicted to someone, whether by the parish priest, or by the Bishop, or by the Pope, who last can also add invalidation to the prohibition. C. Tua 4, de Sponsa duorum. The Pope and Bishop can furthermore attach a censure to the prohibition. C. ult., de Matr. contracto contra interd. - Three just causes, because of which marriage can be interdicted according to the common opinion of the doctors, are chiefly numbered: 1. complaint concerning betrothals by which either of the spouses first bound himself or herself with another person; 2. not vain suspicion of a hidden impediment, either diriment of the union between them or even merely impedient; 3. not empty fear lest from that marriage grave quarrels, enmities, scandals, or other inconveniences should follow. - A general prohibition, which namely regards marriage specifically, is had: 1. that marriage not be contracted without the consent of parents. Cf. 928, 940; 2. without banns. Cf. 949 ff.; 3. clandestinely. Cf. 1026; 4. with a non-Catholic. Cf. 1010. - Schmalzgrueber, l. 3, t. 16, n. 1; Pirhing, l. 4, t. 16, n. 1; Benedict XIV, Instr. 80.

What is time? - It is some determined time through the course of the year, which is called forbidden time, and during which the Church forbids solemnities of nuptials. Trent, sess. 23, c. 11, C. 10, de R. M. But now such time is that which flows from the first Sunday of Advent up to Epiphany inclusive, and from Ash Wednesday up to the Octave of Easter likewise inclusive. - Now; for before the Tridentine Synod the forbidden time was 1. from the first Sunday of Advent up to Epiphany; 2. from Septuagesima Sunday up to the Octave of Easter; 3. from the second feria of Rogations up to the Octave of Pentecost; 4. two or three weeks before the Nativity of St. John the Baptist. Besides, Trent prohibits in the aforesaid time only the solemnities of nuptials, namely to bless the spouses, together with the Mass for the bridegroom and bride in which that solemn blessing is had; to lead the bride home with noise; to prepare more solemn nuptial banquets. But it does not forbid the parish priest to make the proclamations, or even to join the spouses privately, although in various places because of custom this also is prohibited. Namely the custom of certain places has it, not indeed that proclamations not be made, or that the contract of marriage not be celebrated, or that this not be consummated through forbidden times, but that nuptials not be celebrated unless either some necessity urges, or the license of the Ordinary has been obtained, even, if it can be done, in a case of necessity; to this custom it is certainly fitting that parish priests accommodate themselves. Nor indeed, according to the ancient canons, must one abstain from consummation of marriage, whether from precept or from counsel. For those canons speak only of the solemn leading of the bride, not of the consummation of marriage; and thus it is not necessary to explain them as mere counsel and not precept, for that solemn leading is in reality interdicted by precept. - Roman Ritual, de Matr.; S. R. C., August 14, 1855, Mont. Alb., n. 3079, 3380, 3922; Schmalzgrueber, l. 4, t. 16, n. 27, 31-41; Benedict XIV, Instr. 80; L. 983, 984; St. Thomas, Suppl. q. 64, a. 10.

From the Constitution of Leo XIII Trans oceanum, April 19, 1897, for Latin America it was conceded "that Indians and Blacks can receive the nuptial blessing at whatever time of the year, provided that in those times in which nuptials are prohibited by the Church, they do not use an apparatus of pomp."

What are betrothals? Any betrothals, whether ecclesiastical or private, seriously contracted, unless they have been legitimately dissolved either by mutual consent of those contracting or by another just cause, are an impediment impeding marriage. This is clear from natural law; for there exists a grave obligation of justice to preserve a pact from an onerous contract. But if someone, notwithstanding that impediment, contracts nuptials, the marriage will indeed be valid, since this impediment is only impedient, yet it will not be licit. C. Duobus 1, de sponsa duor.

What is vow? A fourfold vow impeding marriage is distinguished, namely a vow of chastity; a vow of not marrying; a vow of entering Religion; a vow of receiving sacred orders.

A vow of chastity. - He who has emitted such a vow sins gravely by entering marriage with the intention of consummating it, because he breaks the vow. - He also sins gravely, even with this intention excluded, because he exposes himself to danger of violating either the vow or the right of the other spouse. Once marriage has been contracted, he can neither ask nor render the debt during the first two-month period, because by divine privilege spouses are exempted during this time from the obligation of the conjugal debt. But when this time has elapsed, he can indeed render the debt and satisfy the right of the other, but he cannot ask without dispensation from the vow, or without suspension or indirect irritation of the vow made by the other spouse. - He must altogether abstain if the other consents, or has lost the right of asking, for example, because of adultery or incest. But if he can abstain with difficulty, he must as soon as possible request dispensation, or seek the aforesaid irritation from the other spouse. - If the other spouse dies, he cannot fly to new nuptials unless he has obtained dispensation from his vow also to this effect. - St. Thomas, Quodl. 3, a. 18; Quodl. 10, a. 11; La-Croix, l. 3, n. 564.

A vow of not marrying, or a vow of virginity. - He who, after emitting this vow, contracts marriage sins gravely, as is manifest. - Once marriage has been contracted, he can render and even ask the debt, because the observance of the vow has now been made impossible. For the same reason, when the spouse has died, he can at least probably contract a new marriage. - In practice it is sometimes doubtful whether someone strictly vowed virginity or only bodily integrity, virginity or celibacy, or rather chastity universally. The penitent will have to be asked whether he was led by love of the aureola of virginity, or by intention of freeing himself from the burdens of marriage and serving God more holily, or solely by love and affection of purity. In the first case he is to be judged to have vowed virginity, which is lost only by voluntary emission of seed in a man and voluntary laceration of bodily integrity in a woman; in the second case celibacy, which merely prohibits marriage; in the third case truly chastity. La-Croix 57.

A vow strictly of virginity, namely of preserving bodily integrity only, is not violated by the mere contract of marriage, but is violated because, by contracting marriage, someone exposes himself to danger of losing virginity in it. But once it has been lost, since the vow has now been made impossible, he can ask and render the debt.

A vow of entering Religion. - He who has emitted such a vow sins gravely by entering marriage, both because he deceives the other and because he exposes himself to danger of violating the vow. - Before the consummation of marriage he is bound to enter Religion; and therefore he sins mortally when for the first time, either by asking or rendering the debt, he consummates the marriage, because he must fulfill the vow when he can. But he can fulfill it by not consummating marriage in the first two-month period, since then by divine privilege either party can enter Religion, and the other party, when the spouse solemnly professes, is freed from the bond of marriage. - After consummated marriage he can ask and render the debt, because execution of the vow has been made impossible, and the asking of the conjugal act is not against the vow itself, since he did not vow chastity, but Religion. - Even after marriage has been consummated, of itself he is bound to enter Religion as often as he can do this without injury to the right of the other party, for example, if the other consents, or loses the right of asking the debt in perpetuity, or if the marriage is dissolved by death; because the obligation of the vow always subsists. But in practice in these cases it is more expedient that recourse be had to dispensation. More expedient; for in practice the circumstances by reason of age, of offspring perhaps received from marriage, of the state of fortunes, and also of suitability for religious duties, are so changed that because of change of matter the obligation of the vow almost of itself ceases, and there is no need of dispensation.

A vow of receiving orders. - He who has emitted that vow sins gravely by entering marriage, as is well known. - He is bound to receive orders if he can, for example, if he obtains the consent of the other. According to several he is bound to enter Religion before the consummation of marriage, even against the will of the other, so that he can fulfill the vow. But others more probably deny this. - Once marriage has been entered, he can consummate it if he can no longer fulfill the vow. - When the wife has died, or when separation has legitimately been made, he is bound to receive sacred orders, unless he is dispensed. For the vow does not cease. St. Thomas, Suppl. q. 53.

Who can dispense in impedient impediments? - No one can dispense, except the Supreme Pontiff and from a just cause, from an impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice, which no one besides the supreme Prince can take away. The same must be said concerning the necessity of the consent of parents, which is to be referred back to natural law; nevertheless this naturally ceases if the parents dissent unjustly. - Bishops, or Ordinaries, Pastors of souls, enjoying full jurisdiction in the external forum, can dispense 1. in the obligation of banns; 2. as regards the contract during forbidden time, where custom also interdicts this; 3. in a vow of temporary chastity, and of virginity or of not marrying. - But they cannot dispense 1. as regards a vow of perpetual chastity; 2. as regards a vow of entering Religion; 3. as regards the impediment of disparity of worship between Catholics and heretics; 4. as regards clandestinity, or marriage to be contracted in the face of the Church; 5. as regards the solemnities of nuptials, S. R. C., August 14, 1858, Mont. Alb., ad 2; 6. as regards proof of free state. For these impediments are reserved to the Pope. - Regulars by their privileges are able to dispense merely for the internal forum in a vow of virginity, or of not marrying; for they have the same power of dispensing from vows in the internal forum which belongs to Bishops by ordinary right, according to the common opinion of the doctors. L. 987, 1119, 1128; Benedict XIV, Instr. 80, n. 15; Sanchez, l. 1, d. 61.

Note: The Bishop, when necessity urges, namely when there is danger in delay, can dispense in a vow of chastity for contracting marriage. Likewise, once marriage has been contracted, the Bishop can dispense, when necessity urges, in the same vow of chastity, for asking the debt; and the Bishop can also do this absolutely by force of quinquennial faculties, and a confessor having the schedule of the S. Penitentiary. Cf. the respective Formulas. - The Bishop can do the same in a vow of continence by which either spouse has obliged himself or herself after marriage has been contracted. For since by force of this vow one is indeed prohibited from demanding the debt, but nevertheless can and even must render it, it is not a vow of perfect chastity, and therefore is not reserved to the Supreme Pontiff. Otherwise it must be said if by common consent each spouse had vowed perpetual continence. L. 986, 987, 1126.

How many and which are the diriment impediments of marriage? - Today twenty diriment impediments are absolutely numbered. Five are on the part of consent and liberty: 1. error of person; 2. error of servile condition; 3. fury and insanity; 4. force; 5. abduction. Fourteen are on the part of the persons contracting. If someone is simply impeded from contracting with any person whatever, the impediment will be 6. either of impotence, 7. or of age, because he cannot altogether, whether perpetually or only for a time; or because he cannot because of an office received, and it is the impediment 8. of order; or because he cannot because of a vow emitted, and there is had the impediment 9. of vow. But if someone is impeded from contracting only with a determined person, either this is because of an obligation to another, and it is 10. the impediment of bond; or because of excessive distance from that person, and it is 11. disparity of worship; or because of excessive nearness, and it is 12. consanguinity, 13. spiritual kinship, 14. legal kinship, 15. affinity, 16. public honesty; or because of undue union with that person, and so it is crime, namely 17. adultery, 18. homicide, 19. both together. - Finally one is on the part of extrinsic solemnity, and the impediment is 20. clandestinity. St. Thomas, Suppl. q. 50, a. 1.

The aforesaid impediments are contained in the following verses. The first comprises the five impediments on the part of consent; the four following contain the fourteen impediments on the part of the persons contracting; the last contains the impediment on the part of form.

1. Error, 2. Condition, 3. Madness, 4. Violence, 5. Abduction;

6. Not able, 7. or Age, 8. Order, and 9. Vow, 10. Bond, 11. Disparity of worship, 12. Blood, 13. Sacred kinship, 14. Or kinship arising from adoption, 15. Affinity, 16. Public honesty, 17. Invading the marriage bed, 18. Killing, 19. or each crime;

20. If Clandestine: the twice ten related things dissolve.

What is the impediment of impotence and of age? - For contracting marriage there is essentially required a thing suitable for contracting: for the substantial elements of a contract are thing, cause, consent. The thing is the right of coming together in order to the generation of offspring, to be handed over and accepted on both sides. Therefore impotence for coming together, so that man and woman cannot become one flesh, constitutes a diriment impediment of marriage, which is called impotence. C. 1, section 1, de Frigid.; Sanchez, l. 7, d. 92, n. 7. Wherefore those who are impotent for the aforesaid act "cannot satisfy even the secondary end, which is the remedy of concupiscence, for that must be had not through any intercourse whatever, but through that which from its nature is apt for the generation of offspring." Schmalzgrueber, l. 4, t. 15, n. 32.

Hence they cannot contract even as a remedy for concupiscence, since the secondary end supposes the primary; and marriage cannot be for a remedy of concupiscence unless it is marriage. For marriage "is principally for the office of nature." St. Thomas, III, q. 73, a. 2, apud Cajetan. And an accessory cannot exist without the principal. And certainly marriage instituted secondarily as a remedy for concupiscence is not another marriage of its own kind; but it is that same marriage instituted before sin, so that to that institution for the office of nature there afterward acceded another institution as a remedy for concupiscence. St. Thomas, ibid., in c., ad 2, ad 3. If therefore marriage is impossible according to the first institution, how can marriage be had according to its secondary institution? Indeed, how can a natural union, or union according to nature, of man with woman any longer be had, once the possibility of offspring and the ordering of that union to offspring has been removed? "The union," says the Angelic Doctor, Suppl. q. 55, a. 3, c., "of husband and wife is called natural principally because of the production of offspring." And this union according to the same Angelic Doctor is at the same time so natural and principal that it is what constitutes the first perfection or essential perfection of marriage. "It must be said," he says, q. 73, a. 4, c., apud Cajetan, "that integrity is twofold; one is attended according to first perfection, which consists in the very being of the thing. The other is attended according to second perfection, which consists in operation. Since therefore carnal union is a certain operation, or use of marriage, through which faculty is given for this, therefore carnal commingling will be of the second perfection of marriage and not of the first"; and faculty for it will be of the first. Wherefore, immediately ad 1, speaking of the first institution of marriage, and of those words, "they shall be two in one flesh," the holy Doctor says: "It must be said that Adam set forth the integrity of marriage as regards each perfection, because a thing is made known from its act." Whence this also appears, that according to the Angelic Doctor the aforesaid carnal commingling is commingling apt of itself for generation, or, as the same holy Doctor speaks, a commingling of seeds which can be the cause of generation. Suppl. q. 55, a. 3, ad 3. And Cajetan in cited q. 75, a. 1, defining conjugal intercourse, says: "For that is what is ordered of itself to one kinship and the education of one offspring, and one domestic life." Therefore by this intercourse the remedy of concupiscence can be sought, not by another. Intercourse from which, according to itself and not according to some accident, as in the sick, the sterile, and the elderly, generation cannot follow, is, according to the Angelic Doctor, an act against nature, and therefore in it it is altogether absurd to seek the remedy of concupiscence. "That act," says the holy Doctor, "is against nature in the genus of lust from which generation cannot follow according to the common species of the act; but not that from which it cannot follow because of some particular accident, as old age or infirmity." QQ. DD. de Malo, q. 15, a. 2, ad 14, and a. 1, c.

Therefore it is impossible to enter the contract of marriage, as certain moderns assert, by intending its secondary end, with the primary end positively excluded, in which alone that secondary end is to be sought.

Impotence is one thing natural, another accidental. The first is that which is naturally inherent, as frigidity of the man, by which intercourse of itself apt for generation cannot be perfected at all; or excessive heat, by which the man always emits seed outside the vessel before he can penetrate. The other is what is from accident, for example, from abhorrence of the man toward the woman, from disease, from cutting off, from sorcery. Likewise one is temporary, another perpetual. If it can be removed either by some licit remedy without danger of life, or by the progress of years, it is temporary; otherwise perpetual. C. 1, de Frigid.; St. Thomas, 4, d. a. 24, a. 2. And thus impotence of excessive heat is temporary, and the impotence of a sick man even in danger of death. Perpetual impotence is one thing absolute, if namely the impotence is of coming together as regards all, another relative, if it prohibits commingling only with someone.

Only perpetual impotence, if it is antecedent to marriage, whether absolute or relative, dissolves marriage, and this by natural law, and therefore even if unknown; but temporary impotence does not stand in the way of marriage. C. 1, 2, 3, 6, de Frigid.; Sanchez, l. 7, d. 92, n. 6; d. 97, n. 2; St. Thomas, Quodl. 11, a. 10, 11. - Therefore there is no marriage contracted with a castrated man or eunuch lacking both testicles, who does not have true seed, Sixtus V, Const. Cum frequenter; Sanchez, l. 7, d. 92, n. 20; with one frigid, or so worn by disease or old age that there is no power for the conjugal work; otherwise one is by no means prohibited from marriage even by extreme old age. Consequently there is no marriage, as it seems, contracted with a woman absolutely lacking both ovaries, or a uterus, or having a closed uterus; there is no marriage with her from whom someone is restrained either by sorcery, or natural repugnance, or because of excessive narrowness. C. 4, c. 33; C. 1, 5, 6, de Frigid.; Dominic Benetti, Opus Medico-Morale, Canon Eleventh, Annotations, num. 1, 2, 3.

Consequently; because in the same way as with the impotence of the man, when the impotence of the woman intervenes, an act per se apt for generation, or a conjugal act, cannot exist. Then neither husband nor wife can exist. For marriage is a marital union, or a union ordered to those things which the office of a husband requires. St. Thomas, Suppl., q. 44, a. 3, ad 1. And there, in the body, speaking of the essence of marriage and of the definition which touches the essence of marriage, namely that it is a marital union, the Angelic Doctor says that the specific difference is contained in that word "marital," "because since marriage is a union ordered to one thing, such a union receives its species from that to which it is ordered, and this is that which pertains to the husband." And there, a. 1, the Angelic Doctor says that marriage "is ordered to one generation and education of offspring, and again to one domestic life." According to that union one is and is called husband and wife; and according to this ordering there is and is called marriage, in the body and ad 3. "I wish to beget children, and therefore I have taken a husband." C. 1, de Frigid. Nor is one pubescent unless he can generate. C. Puberes 3, de Despons. impub. And L. 320, § 3, ff. de Verborum significatione: "Nature also teaches us that pious parents take wives with the intention and desire of procreating children." And L. 9, C. de Nuptiis: "If, with neighbors or others knowing it, you had a woman at home as a wife for the sake of procreating children... although no nuptial tablets were made, the reality of marriage nevertheless has its own force." And Auth. Coll. IV, tit. 1, Nov. XXII, Pref., marriage is called honorable from the procreation of children. And there, chap. VI, a man is called potent who is able to minister to the procreation of children. Therefore also a woman. Cf. Commentary, n. 150. If it were otherwise, the definition of marriage, and the object of the matrimonial contract, would indeed have to be changed.

Nor is it valid to object that the woman contributes nothing essential in generation. For this, especially at present, after the latest studies of physiology, is altogether false. For generation, on the part of the man, a zoosperm is essentially required; on the part of the woman, an ovum; and the mingling of the seed of both, as the ancients speak. And, as a consequence, on the part of the man testicles are required, by which that zoosperm is elaborated, and the penis by which the same zoosperm is ejaculated into the woman's vagina. But on the part of the woman, besides the vagina, which receives the male penis, ovaries are required, by which ova are elaborated, and the uterus, in which generation takes place, and therefore communication of the vagina with the uterus; otherwise the fertilization of the ovum in the uterus is physically impossible. Cf. the paragraph on Impotence.

Nor likewise can it be objected that nature intends nothing other than sensible copulation, with no account taken of those things which are not sensibly evident; and therefore impotence is present if copulation appears impossible, but potency is present if the possibility of material copulation is established, without inquiry into the virtue and efficacy of the copulation itself. But since eunuchs, if removal of the testicles takes place after puberty, retain the capacity of erecting the member and of coeundum, their marriage then would be wholly valid, contrary to the cited Constitution of Sixtus V.

And as regards the substance of the matter, the doctrine of the Angelic Doctor on generation agrees with this. For in it he fully recognizes as essential not only the part of the man but also the part of the woman. Speaking of affinity, Suppl., q. 55, a. 4, ad 2, St. Thomas says "that man and woman become one flesh in carnal copulation through the mingling of seeds." And this mingling of seeds, namely of the man and of the woman, is, according to the Angelic Doctor, the cause of generation. Hence there, a. 3, ad 3, he says: "It must be said that intercourse against nature does not have a mingling of seeds which can be the cause of generation; and therefore from such intercourse affinity is not caused."

Moreover St. Thomas, speaking of generation, Suppl., q. 58, a. 1, ad 6, says "that the male is active, but the female is passive." Yet she is not passive in such a way that she does nothing and contributes nothing in generation. Hence there he immediately adds: "And therefore greater heat is required in the male than in the female for the work of generation." And III, q. 15, a. 1, ad 2: actively generation is from the man, because he supplies the seminal principle; passively from the woman, because she supplies the corporeal substance. And Quodl. 5, a. 8: "Since in the generation of man," he says, "as also of other animals, the seed of the father is active, but the matter supplied by the mother is as passive, from which the human body is formed, etc." Likewise Quodl. 8, a. 5, ad 3: "For the conception of a human body two things concur: namely the matter from which the conceived body is formed, and again the formative power which forms the conceived body. The first of these Augustine calls the corporeal substance, the second the seminal principle. We are therefore said, according to both of these, to have been in Adam originally, inasmuch as the matter of the conceived body is prepared by the generative power of the mother, but the formative power is in the seed of the father." Cf. also I-II, q. 81, a. 5; II-II, q. 26, a. 10, ad 1. If the seminal principle is called the zoosperm of the man, which fertilizes the ovum of the woman, and the corporeal substance is called the ovum on the part of the woman, in what does this doctrine disagree with the opinions of recent physiologists? Besides, since according to the Angelic Doctor something essential to generation is supplied both by the man and by the woman, although principally by the man, as regards the substance his doctrine on generation in no way differs from the doctrine altogether certain among physiologists, especially after more recent observations have been made. And when physiologists say that generation is had from the fusion of the substance of the zoosperm with the germinal vesicle of the ovum in the uterus, can this not rightly be understood in other words as that mingling of seeds by which, according to the Angelic Doctor, man and woman become one flesh, and by which the production of offspring is had, Suppl., q. 55, a. 8, in the body, and a. 4, ad 2, the seed of the man descending to the womb of the woman, Quodlib. 6, a. 18?

Equally it is nothing to object that according to St. Thomas, Suppl., q. 58, a. 1, ad 1, of the essence of marriage there is not potency for the act of generation, but potency for carnal copulation. Certainly, according to the Holy Doctor, there does not pertain to the essence of marriage potency for copulation or carnal union, or union of bodies, of any sort whatever; otherwise even sodomitic copulation could be understood. Rather, it is potency for conjugal carnal copulation; and this, from the whole doctrine of the Angelic Doctor in the Supplement, is no other than that which is ordered to generation. "It must be said," says the Angelic Doctor, Suppl., q. 49, a. 2, ad 1, "that in offspring there is understood not only the procreation of offspring, but also its education, to which, as to an end, the whole communication of works which exists between man and wife, insofar as they are joined in marriage, is ordered... And thus in offspring, as in the principal end, the other is included as secondary," namely the communication of works. If the communication of all other works has no principal end except offspring, is not carnal copulation per se ordered to offspring according to the Angelic Doctor? Therefore, although this Holy Doctor does not repeat this in the cited place, nevertheless it is understood, and so that carnal copulation is copulation per se apt for generation. Nor could it be otherwise at all; for nature does not intend that copulation for its own sake, so as to stop in it, but for something else, for generation. "Nature intends offspring" in marriage. St. Thomas, Suppl., q. 49, a. 5, ad 1. And Contra Gentiles, book 3, chap. 122: "coitus," says the Angelic Doctor, "is ordered to the utility of generation... Thus, therefore, the emission of seed ought to be ordered so that both fitting generation and the education of the one generated can follow." Therefore, if generation is positively excluded, that carnal copulation is already illicit. And so also, if in marriage itself a condition is positively placed of offspring to be positively impeded, if you avoid the generation of offspring, L. 891, if you procure poisons of sterility, St. Thomas, Suppl., q. 43, a. 1, the marriage is null, because that condition is repugnant to the substance of the contract. C. fin. de Cond. appos. in despons.

Nor is it valid to press the answer of the Holy Doctor in that same article 1, q. 58, ad 1: "that old persons, although sometimes they do not have sufficient heat for generating, nevertheless have sufficient heat for carnal copulation. And therefore marriage is conceded to them insofar as it is a remedy, although it does not belong to them insofar as it is an office of nature."

For those old persons, according to the Angelic Doctor, are not impotent for an act per se apt for generation, since the Angelic Doctor says only that they sometimes do not have that power. Hence, according to the Angelic Doctor, if generation does not in fact follow from that act, as it can follow and sometimes does follow, this is only per accidens. And this fact of generation, according to the same Angelic Doctor, is sometimes lacking not because of impotence, but because of sterility; for it is lacking because of a defect of sufficient heat, which indeed does not pertain to the very physiological cause of generation, which consists in the organs of generation themselves and in copulation performed in the natural manner, cf. 995, but to sterility, namely to those favorable conditions in which that cause, like all causes, must be found in order to produce its effect.

But these favorable conditions in human generation are very many and hidden, and they depend not on the human will, but on nature itself. Hence the same Angelic Doctor, Quodl. 11, a. 11, ad 1, says that old persons are not cold with respect to the act of generation, but with respect to the generation itself of offspring.

Potency of generating, joined with the effect, fails regularly in women from the age of 45-50, and is regularly diminished in men from the age of 50. There are, however, cases in which even sexagenarian and septuagenarian women generate; and septuagenarian men generate more easily with a younger woman. But detriment to the offspring is not absent when there is a notable inequality in the age of the spouses. Antonelli, Medicina Pastoralis, 2nd ed., vol. 2, nn. 340, 363.

Hence, according to the Angelic Doctor, marriage "is conceded" to old persons and to the sterile "insofar as it is a remedy, although it does not belong to them," namely, does not in fact belong to them, "insofar as it is an office of nature"; but by no means although it cannot belong to them insofar as it is an office of nature, while there is physical impotence for generation. For this, according to the Angelic Doctor, renders marriage impossible. For, speaking of the threefold good of marriage, offspring, fidelity, and sacrament, he says that the good of offspring is more principal and more essential, indeed the most principal and most essential: "Offspring is the most essential thing in marriage." How would that most essential thing be present, if in marriage copulation per se unfit for generation sufficed? Therefore marriage can belong to old persons and to the sterile as a remedy in such a way that this most essential thing is not wanting, namely not in act, but in potency. Indeed this most essential thing is again so truly such that neither those old persons, nor all others joined in marriage, can licitly, according to the Angelic Doctor, intend the remedy in carnal copulation unless they simultaneously intend the office of nature. What then if they positively exclude it, by positively rendering that office impossible, both as regards the liceity of copulation after marriage has been contracted and as regards the validity of the marriage itself to be contracted? "When spouses," says the Angelic Doctor, "come together for the sake of procreating offspring, or in order to render the debt to each other, which pertains to the end, they are wholly excused from sin... And therefore in only two ways do spouses come together without any sin, namely for the sake of procreating offspring and of rendering the debt; in other ways there is always at least venial sin... If someone through the act of marriage intends to avoid fornication in the spouse, there is no sin, because this is a certain rendering of the debt, which pertains to the good of fidelity. But if he intends to avoid fornication in himself, then there is excess there, and according to this it is venial sin; nor was marriage instituted for this except according to indulgence, which concerns venial sins." Suppl., q. 49, a. 5, corpus and ad 2. For it was instituted for the procreation of offspring, to which that carnal copulation, constituting the conjugal debt, is per se ordered, and in which the remedy of concupiscence is constituted secondarily; so that "without the intention of offspring there cannot be marriage," ibid., a. 3, corpus, nor consequently the conjugal debt and the remedy of concupiscence. "From the principles of St. Thomas," says Billuart, diss. 7, a. 9, "you will gather, third, that for the consummation of marriage, by which man and woman are judged to be one flesh, there is required a mingling of seeds, or of those things which are in place of seed on the part of the woman." Therefore, from the principles of St. Thomas, for a ratified marriage there is required potency, natural and physical potency, Billuart, l.c., ibid., ad 1, for the aforesaid mingling of seeds, by which the spouses can become actually one flesh. Therefore a ratified marriage as a remedy, without the aforesaid potency, namely for an act per se apt for generation, cannot subsist from the principles of St. Thomas. "From this it is clear that every emission of seed in such a manner that generation cannot follow is against the good of man... But I call that manner from which generation cannot follow according to itself, as every emission without the natural mingling of male and female; for which reason sins of this kind are called against nature. But if per accidens generation cannot follow from the emission of seed, it is not for this reason against nature, nor a sin, as, for instance, if it happens that the woman is sterile." Contra Gentiles, book 3, chap. 122.

And as regards old persons, St. Thomas himself expressly tells us that that copulation of the old is not, according to itself, impotent for generation, but only per accidens, and therefore both marriage and conjugal copulation are permitted to them. Indeed, still more clearly, the Angelic Doctor tells us that that copulation of old persons is not, according to its intrinsic nature or species, impotent for generation, and therefore is per se apt for generation, although from a merely particular accidental cause generation does not follow. Let his words, brought forward above, be reported again here: "That act is against nature in the genus of lust from which generation cannot follow according to the common species of the act; but not that act from which it cannot follow because of some particular accident, such as old age or infirmity." Quaestiones Disputatae de Malo, q. 15, a. 2, ad 14. Hence, when that particular accident has been removed, generation follows even in old persons and in the infirm. Now, when ovaries and uterus are perfectly and absolutely lacking, or when the uterus is entirely closed, can the copulation which is had in such circumstances be called an act according to its common species from which generation can follow, and consequently one in which, when that accidental cause of the defect of the uterus, ovaries, and closure of the vagina is removed, generation in fact follows? If so, then indeed impotence is not had from it; but if it is not so, according to the Angelic Doctor impotence is had.

Lastly, the well-known Responses of the Sacred Penitentiary and of the Holy Office, that marriage is not to be impeded in the case of excision of an ovary and uterus, do not stand in the way at all. For, as was expressly declared to me by His Eminence Cardinal Lucido M. Parocchi himself, Secretary of the Holy Office, those Responses, given only for particular cases, supposed that generation could still per se follow in those cases, namely insofar as there had not been perfect and absolute excision and absence of the uterus and ovaries. And the same opinion was embraced, as regards matrimonial dispensations to be granted or denied, both by His Eminence Cardinal Aloisi-Masella and by His Eminence Cardinal Di Pietro, Datary of His Holiness and both belonging to the Holy Office. And, omitting other cases, the Sacred Congregation of the Council, December 19, 1899, because of a defect of the uterus, declared a marriage invalid, although the defender of the bond ex officio had sharply maintained the contrary in the Monasterien. cause. And in the Collectanea of the S.C. de Propaganda Fide, 2nd ed., 1907, n. 1733, to the Response of the Holy Office, "It is not to be impeded," there is added the note: "This response concerns the particular case with which it was dealing." And the same Congregation of the Holy Office, January 16, 1895, declared that in cases of this kind recourse must be had in each individual case, since thus far no response had been given except for particular cases. Collectanea, cited, n. 1907.

Nor is the most recent Response of the Sacred Congregation of the Sacraments, April 2, 1909, in any way decisive. For the Sacred Congregation, referring to the Response already given elsewhere by the Holy Office, June 23, 1890, answered with the usual formula: Marriage is not to be impeded.

Therefore, when a practical case occurs, recourse must be had to the Sacred Congregation, since the matter has not yet been defined. And in practice marriage is indeed not to be impeded, since it cannot be denied that the natural sciences can still progress, and that other things necessary and sufficient for generation can be found. As it was reported to me by a certain Official of the Sacred Congregation, the Supreme Pontiff Pius X said that marriage is not to be impeded; for it is not known what is within, what happens within.

There is likewise another question concerning vasectomy in the man, or the cutting of the canals which carry the male seed. And as regards impotence, the matter likewise is not altogether certain; for some say that perpetual impotence is had from it, since the potency for emitting seed cannot be restored, and consequently the marriage is null; others, on the contrary, say that the aforesaid potency can be restored, and consequently, since the impotence is only temporary, the marriage is valid.

Impotence, on the contrary, is not had from mere shortness of the vagina, because carnal copulation can still be had; and it can sufficiently receive and retain the male seed as much as is enough for generation, for which one zoosperm suffices, fertilizing one ovum in the uterus, in which it is then developed. It is developed; whether, taking the matter properly and strictly, the ovum is also fertilized in the uterus, or is fertilized in the tubes or in the ovaries, we leave to physiologists to define, since this does not pertain to us, nor does it change anything with respect to the moral doctrine on impotence, with which we are dealing.

Many and weighty doctors assert that it is enough if the man can pour out seed at the opening and entrance of the vagina, and the woman can receive it within herself; for experience itself establishes that this suffices for generation. Gury-Ballerini, 885; D'Annibale, 3rd ed., n. 431. Yet others deny this. Indeed, it is one thing for generation to be able to be had by that act; it is another thing for marriage to be able to be had by that act, or by potency only for an act of that sort, since it is not the marital act in a natural manner. And if that most imperfect act sufficed for marriage, it no longer appears how frigidity can be reckoned an impediment of marriage, as is commonly handed down. And thus La Croix, book 6, part 3, n. 793, says: "If the man cannot penetrate the female vessel, although he pours out seed at its entrance..., impotence must be judged present, because such insemination does not suffice per se for such spouses to be judged to become one flesh in the natural manner." Cf. Sanchez, book 2, disp. 21, nn. 2, 5; St. Thomas, Quodl. 6, a. 18; A.S.S., vol. 26, p. 534 ff. And this seems to be held from causes often decided by the Sacred Congregation of the Sacraments, for dispensation from a ratified but non-consummated marriage, in such a case.

This impediment of impotence, of natural and divine law, is altogether irrationally and unjustly not admitted by the French Civil Code. The Italian Civil Code admits it, 107; the Spanish Civil Code, 83; the Austrian Civil Code, 60. But it is had only implicitly and in a limited way in the German Civil Code, 1333, 1334. Moreover, since all Codes must admit the invalidity of marriage from error of person, and since, when impotence stands, there would be a substantial error in the person, marriage, according to the same Codes, if not directly, at least indirectly, must also be held null in civil law. Cf. French Civil Code, 146, 180.

Now, if a marriage is null because of this impediment of impotence, the spouses are separated by the authority of the ecclesiastical judge; other nuptials are forbidden to the impotent party, and another marriage is permitted to the potent party. C. 5, 6, 7, de Frigid. In such a case recourse must be had to the Ordinary and to the Sacred Congregation of the Council.

Only by positive law is the marriage of the impubes invalid, because they are presumed to labor under a certain natural impotence for generation, although only temporary. Puberty is had by the same canon law for males when the fourteenth year has been completed, for females when the twelfth year has been completed, because the proximate potency of generating usually begins and ceases sooner in females than in males. For the capacity of generating begins with puberty, namely when in males the testicles begin to elaborate zoosperms, which happens between the thirteenth and sixteenth year of age; and ovulation likewise begins in females, which is regularly had with menstruation, and this begins around the twelfth year. Therefore the marriage of impubes is valid if they can already generate and coire, and sufficiently understand the burden of the conjugal bond; and the marriage of an impubes who already can, with a pubescent person who cannot yet coire. Nevertheless it would always remain illicit to contract marriage without the license of the Ordinary before the lawful age. Likewise valid is the marriage of impubes who have the use of reason among unbelievers, who are not subject to the laws of the Church. C. 2, 3, 6, 7, 9, 10, 11, 14, de Despons. impub.; Benedict XIV, Const. Magnae nobis, June 29, 1748; Sanchez, book 7, disp. 104, n. 9; Schmalzgrueber, book 4, tit. 2, nn. 48-60.

For a just cause the Supreme Pontiff can dispense the faithful in this impediment, and at times has in fact dispensed. Schmalzgrueber, book 4, tit. 2, nn. 50-52; Navarrus, Cons. 4, 5, tit. de Despons. impub.; de Iustis, book 8, n. 55.

The Austrian Civil Code, 48, and the Spanish Civil Code, 83, agree with canon law as regards the required age. But since full and perfect puberty is had as regards the man in the eighteenth year, and as regards the woman in the fourteenth year, hence other more recent Codes require the eighteenth year in the man and the fifteenth in women, Italian Civil Code, 55; French Civil Code, 144. According to the German Civil Code, 1303, a man before majority and a woman before the sixteenth year cannot contract marriage. Before the eighteenth year for men and the fifteenth for women, they either are still sterile or beget only weak offspring. And in order that good effects may follow from marriage, besides the faculty of generating, it is necessary that the body of the spouses be fully developed; this happens for both woman and man after the twentieth year of age. If marriage is contracted at a lower age, not a few inconveniences for the spouses and for the children will easily follow. Antonelli, vol. 2, p. 180, nn. 360, 361, 362. L. 1064-1066, 1094-1104; St. Thomas, Suppl., q. 58; E.M.

Note: In doubt concerning antecedent impotence, one must stand for the validity of the marriage, and the spouses must be permitted to try copulation. Indeed, for this purpose a three-year period is conceded to them by canon law, notwithstanding greater probability for perpetual impotence. C. Laudabilem, de Frig. et malef. Therefore, when antecedent impotence appears with certainty, the experiment must already cease, and the marriage must be declared null. But if even after the three-year period the doubt persists, the marriage must be judged valid, for one must stand for the validity of the act. In doubt concerning consequent impotence, it is likewise lawful for the spouses to try copulation until they are certain that it can in no way be completed, "although often or always they pour out seed outside the vessel." L. 1103. "Excessive heat can scarcely be a perpetual impediment." St. Thomas, Suppl., q. 58, a. 1, ad 2. "Continuators of Tournely and Cabassut probably judge that spouses of this kind, if they are young, are not to be separated, because in the course of time that ardor diminishes, and thus they can become apt." L. 1096.

Impotence is not to be confused with sterility. Impotence, as the word itself indicates, consists in an essential defect of the physiological generative cause, which remotely is in the organs of generation of the man and the woman, and proximately in the carnal copulation itself perfected in the natural manner, namely with the pouring out of seed on the part of the man into the vagina of the woman, and reception on the part of the woman, so that generation can follow, or they can truly become one flesh.

Sterility: It is wrongly confused with impotence by certain moderns. Sterility is not impotence. For the latter regards the very cause of generation, and consequently imports a substantial defect of the members necessary for the conjugal act and for generation. Sterility, on the contrary, regards the effect itself of generation not having followed, because of an accidental defect of the due conditions by which the generative cause can produce its effect. This is established by the most common opinion, for all permit marriage to the sterile, and all forbid it to the impotent. The same is also established from the very meaning of the words; for impotence is a defect of power, sterility is a defect of effect.

But it is altogether illicit by a direct intention to procure the sterility of a woman. Holy Office, May 22, 1895.

Sterility consists only in some accidental impediment of fecundation and generation, whence either there is an obstacle to the entrance of the zoosperm into the ovum and to the contact of both elements essential for generation, or, once that contact has been posited, there is an obstacle to the action of the fecundative power of the zoosperm upon the ovum, or finally there is a temporary absence of spermatozoa in men or of ova in the woman. Hence it happens that, when that impediment is removed, as often occurs, generation follows in act. For this reason copulation in circumstances of this kind is and always remains per se apt for generation, but only per accidens, namely from an accidental impediment, remains frustrated of its effect, through defect of those favorable dispositions in which that cause must be found in order to produce its effect. And this defect is per accidens, for a time, indeed even for a moment, and regularly hidden. Physiologists themselves do not have fully perfected knowledge of all those dispositions which are in fact necessary for generation to be had. In general this can be said to be required: that the zoosperm be sound and mature, that the ovum be sound and mature, and that both arrive at a suitable and fitting contact. Therefore impotence concerns the conjugal act itself; sterility concerns its effect. Sterility is hidden; impotence is manifest.

Hence in human generation there are as it were two acts. The first is in copulation, which depends on the human will, and which, in order to be licit, need only be per se apt for generation, and consequently must take place in this manner and in these circumstances of aptitude; and therefore nothing is done which is positively against generation, or which obstructs generation contrariwise, as is the most common opinion of the doctors. The other act, which is the continuation of the first, depending on nature itself and not on the human will, is the meeting of the sperm through the vagina and uterus with the ovum, and the fusion of that sperm with the substance of the ovum, whence its fecundation, or generation, is had. And this is to become one flesh. "They shall be two in one flesh," that is, "in one perfect and due principle of carnal generation," as Cajetan says, Ientac. 9, q. 1, who then explains the matter thus: "And indeed that one perfect carnal principle of generation intervenes here is clearly evident: for although the flesh of the woman and of the man are two, and each is a partial principle of generation, nevertheless both concur to make up one numerically complete principle of generation." Therefore in those words "the discourse is about the flesh of the spouses themselves, and about the numerical unity of the perfect and due principle of carnal generation." Cajetan, ibid. That the perfect principle of generation is had by the mingling of bodies, Cajetan says there; certainly by that mingling which is per se apt for generation, both on the part of the man and on the part of the woman; otherwise how will there be able to be one perfect principle of carnal generation?

Therefore, since sterile persons are not impotent for the conjugal act, they can licitly coire; indeed they can also enter marriage. Although generation does not follow per accidens, nevertheless, once copulation is duly perfected, the act is still per se apt for generation. And thus old persons who are able to consummate marriage validly contract, as also men lacking one testicle; likewise women who can receive the seed, even if they do not retain it, Gousset, 791; L. 1095, and women lacking one ovary.

What is the impediment of ligamen? On the part of the thing, another impediment is had, that of ligamen: namely if the right over one's own body is no longer had, because by a preexisting marriage it has already been handed over to another; hence it can in no way be transferred to another, and it is a diriment impediment. Therefore ligamen is the bond of a prior marriage, which by force of unity and indissolubility impedes another marriage for as long as the preceding marriage itself endures. French Civil Code, 147, 184; German Civil Code, 1390, 1326. Cf. ibid., a. 1348. But if the right over one's own body has only been promised to another by betrothal, then only an impedient impediment is had, since, without injury to the other, the right of coeundum cannot be transferred to another; except in the case in which there is question of blood relatives of the betrothed woman in the first degree, for then there is had the diriment impediment of public honesty. Cf. 1014. Hence if doubt is had concerning the death of a prior spouse, then it is not lawful to contract marriage; because, since the preceding marriage is certainly established, another cannot be entered with prejudice to the prior spouse, if perhaps he or she has not died; rather, the death must be morally certain. C. Dominus 2, de Secund. nupt.; C. In praesentia 19, de Sponsal.; L. 901, 902; Holy Office, May 6, 1891: A.A.S., vol. 2, p. 198 ff. According to the German Civil Code, 13 ff., an absent person can be declared dead after some years determined by the law itself for various cases. But this is only a certain mere presumption of law. This presumption of law is had after 30 years from the time when absence has been declared by the office of the judge, according to the Italian Civil Code, 10 ff.; French Civil Code, 112 ff.; Austrian Civil Code, 34. St. Thomas, Suppl., q. 62, a. 5; q. 65; q. 67; Schmalzgrueber, book 4, n. 4 ff.; E.M.

The death of an absent spouse, in order that the other spouse may be able to contract marriage, must be proved positively, by authentic documents, or by trustworthy witnesses, or by convincing supporting evidence.

If no marriage has been entered because of some diriment impediment, it is not lawful to enter a new marriage before it is established in the external forum by a legitimate sentence that the prior marriage was null. In such a case recourse must be had to the Ordinary. Collectanea S.C. de Propaganda Fide, n. 1225. L. 1101.

The cause of nullity of marriage in the ecclesiastical forum is admitted even after the death of a spouse, but not for temporal gain, and therefore it is very rarely admitted; for example, if there is question of the legitimacy of offspring or of some other spiritual harm. Cf. A.S.S., vol. 41, p. 779 ff.

What is the impediment of consanguinity? In contracting marriage the thing must not only be possible, whence the impediments of impotence and ligamen arise; but it must also be honorable, whence, on account of reverence for joined persons, the impediments of consanguinity, affinity, and public honesty arise, and on account of reverence for religion the impediments of order and vow are had. Now these impediments partly rest on natural law, partly on canon law. Those which are constituted by canon law do not touch unbelievers. But if, having been converted to the faith, they wish to enter marriage, then the natural bond of consanguinity and affinity, which existed before baptism and certainly endures after baptism, stands in the way of marriage. C. ult. de Divort.; St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 1; Sanchez, book 7, disp. 65, n. 4.

Consanguinity is the bond of certain persons among themselves from the fact that they descend by carnal generation from one and the same nearest common stock; and therefore it arises from the unity and participation of the same blood. Three things are to be distinguished in consanguinity: namely, 1. the stock, or the person from whom others take their origin and in whom, as in one root, they come together; 2. the degree, or the measure of the distance of one person from another, which distance is counted from the stock in which they are joined; 3. the line, or series of persons descending from the same stock. The line is twofold: one is direct, and the other collateral or transverse. The former is the series of persons of whom some descend from others, either immediately, as children from parents, or mediately, as grandchildren from grandparents, or from great-grandparents, etc. The latter is the series of persons who, although they have a common stock, nevertheless do not descend from one another, such as brothers, cousins, etc. The collateral line is equal or unequal, according as the blood relatives are equally or unequally distant from the common stock, as will be explained below. Cf. 998.

Marriages between blood relatives bring grave physical inconveniences for offspring, unless the blood relatives enjoy perfect health. The inconveniences are more grave in proportion as the degree of consanguinity is nearer. Antonelli, vol. 2, p. 181 ff.

Consanguinity dirimently impedes marriage in the direct line indefinitely, Nicholas I to the Bulgarians, C. 37, 39, and by natural law at least in the first degree. At least, for the other degrees are disputed; L. 470, 1029; Sanchez, book 7, disp. 51, n. 7; Schmalzgrueber, book 4, tit. 14, n. 30. In the collateral line, it impedes up to the fourth degree. C. 8, Non debet, de Consanguin. But whether by the law of nature marriage is dirimently impeded at least in the first degree, namely between brother and sister, is controverted. Yet it seems more true that it is impeded only by canon law, from Genesis 20:12. But this is certain, that the Church has never dispensed in this degree. Benedict XIV, Const. Aestas anni, October 11, 1754; Schmalzgrueber, book 4, tit. 14, nn. 42-48; L. 470; Lugo, Responsa Moralia, book 1, disp. 40, n. 9. As regards the other degrees, according to all, marriage is dirimently impeded only by ecclesiastical law.

Indians and Blacks. In Latin America they can contract marriages within the third and fourth degrees both of consanguinity and of affinity. To the indigenous Catholics of the three Apostolic Vicariates of the Island of Madagascar an extension was granted of the privilege of the Indians and Blacks of Latin America, namely of the impediment of consanguinity and affinity restricted to the first and second degree, yet in such a way that, as long as the said privilege for Latin America endures, it should at the same time be in force for the island of Madagascar, so that both in Latin America and on the aforesaid island the duration of the privilege may be the same. Leo XIII, Const. Trans Oceanum for Latin America, April 19, 1897; Sacred Congregation of the Sacraments, April 1, 1911, from the Audience of April 2, 1911.

Consanguinity dirimently impedes marriage also between those who were born only from the same father or only from the same mother; that is, between blood relatives only through the male line or only through the female line; as also between blood relatives born from illegitimate births. The reason is that diversity of father or mother, i.e. that the common stock is only the father or only the mother, or the illegitimacy of birth, does not prevent carnal consanguinity from truly existing. C. Pertuos, de Probat.

Consanguinity can arise between the same persons from a double or even multiple source, and then there is a double or multiple relationship, or impediment, to be disclosed in the petition for dispensation. This happens from the fact that among near ascending blood relatives either some have contracted marriages among themselves, or someone has contracted successively with several persons who are blood relatives among themselves, or blood relatives from one stock have contracted with blood relatives of another stock. And thus: 1. If someone marries a woman who is his blood relative, e.g., his cousin, their children are at once the children and grandchildren of each parent, and among themselves they are at once siblings and second cousins. 2. If someone marries a blood relative of his wife, e.g., her sister, the children of each wife will be among themselves at once consanguineous brothers and cousins. 3. If two brothers marry two sisters, the children proceeding from each marriage will be blood relatives among themselves in a double way, namely they are at once paternal cousins and maternal cousins. This circumstance of multiple consanguinity must necessarily be declared. Cf. De Iustis, de Dispens. matrim., book 2, chap. 3, n. 31 ff. But it must be noted that multiplicity of kinship is not caused by the fact that two persons are from the same father and mother. For the father and mother are considered as one stock.

And it is one thing to be brothers or paternal cousins, another thing to be blood relatives in a double way.

Therefore a distinction must be made between the quality and the quantity, or multitude, of the degrees of kinship. Quality is the first, second, third, fourth degree; a pure or mixed degree. Quantity is a simple, double, triple degree, etc. Trent, sess. 24, chap. 3; L. 1029; St. Thomas, Suppl., q. 54.

A degree of consanguinity or affinity is called simple or mixed: 1. insofar as simple excludes the admixture of an unequal degree from the other side; and thus Titius and Titia are blood relatives in the third simple degree if they are equally distant from the stock, whether they are blood relatives from one source or from a double source. On the contrary, they are blood relatives in a mixed degree if they are unequally distant from the stock, Titius in the third degree and Titia in the fourth; and then they are called blood relatives in the fourth degree touching the third, if they are blood relatives from one source. Or again, if they are unequally distant from the stock, Titius in the third degree and Titia in the fourth, Titia in the second and Titius in the third, then they are called blood relatives in the fourth degree touching the third on the part of one contracting party, and in the third degree touching the second on the part of the other contracting party, if they are blood relatives from a double source. 2. It is called simple insofar as it excludes multiplication of the same degree from any cause whatever. 3. It can be called simple insofar as it excludes the admixture of another different impediment, e.g., consanguinities mixed with affinity. 4. Finally it is called simple insofar as inequality of degrees, multiplication of the same degree, and any other impediment whatever are excluded.

There are some who hold that in consanguinity account must be taken only of the nearer stock, Gallo, Suppetiae Evang. Praecon., vol. 4, p. 149 ff. But others hold that account must also be taken of the more remote stock when marriage has intervened in the higher degrees; since then, if this marriage had not intervened, they would still be blood relatives from the more remote stock. And thus, for example, Caius, grandson, and Caia, granddaughter, of Titius the grandfather, are blood relatives to each other in the second degree in the collateral line. These contract marriage with each other. Their grandson and granddaughter, Sempronius and Sempronia, are likewise blood relatives to each other in the second degree from the nearer stock, Caius and Caia; and they are also blood relatives in the fourth degree from the more remote stock, Titius, and that doubly, namely through the paternal and maternal line, or through Caius and Caia. The Holy Office approved this second opinion on March 11, 1896, and decreed that three impediments are to be declared, namely the impediment coming from the nearer stock, and two impediments coming from the more remote stock through the lines joined in the intermediate stock. E.M. "But lest marriage be contracted within the prohibited degrees, you must publicly prohibit it, and punish presumptuous persons by ecclesiastical severity, notwithstanding custom, which must be called corruption." C. Quod per his 5, de Consanguin. et affin.

What are the rules for computing the degrees of consanguinity? Three rules are assigned from Canon Law.

First Rule. In the direct line as many degrees are counted as there are persons, the stock being removed, or there are as many degrees as there are generations. Hence between father and son there is one degree, because there is one generation, or one person of the son, the father being excluded as the stock. Between grandson and grandfather two degrees are counted, because there are two generations, although three persons intervene, namely grandfather, father, and his son, or grandson with respect to the grandfather. Similarly suppose a great-grandfather or great-great-grandfather, and you will have three or four degrees.

Second Rule. In an equal collateral line there are as many degrees as there are persons on one side, the stock being removed. Hence brother and sister are in the first degree, because if the common stock or father is set aside, one person remains on each side; and since each is distant by one degree from the stock, they are also distant by one degree from each other. Likewise paternal cousins, or children of brothers, and maternal cousins, or children of sisters, are each distant by two degrees from the common stock, or from the grandfather, and therefore are blood relatives to each other in the second degree. So also must it be said of others.

Third Rule. In an unequal collateral line there are as many degrees as there are persons on the more remote side, always with the stock removed. Hence, if one is distant from the common stock by two degrees and his blood relative by three, they will be blood relatives to each other in the third degree, according to the saying: the more remote degree draws the nearer to itself. Therefore Bertha will be a blood relative in the second degree with her paternal uncle, or the brother of her father, because she is distant by two degrees from the common stock, namely from her grandfather, although the uncle himself is separated by one degree from the same stock, since he is the son of the stock, or the brother of Bertha's father. So also must judgment be made concerning any others. Therefore no impediment is present if consanguinity is in the fifth degree touching the fourth. C. Vir qui fin., de Consang. et affin.; St. Pius V, Const. Sanctissimus, March 20, 1566; Benedict XIV, Const. Etsi pastoralis, September 30, 1755.

There are as many consanguinities as there are different ways of ascending to the same stock, or to different stocks.

The rule from Civil Law is one. For computing degrees according to Roman Civil Law, the number, or sum, of all the persons in each line is taken, the stock being removed. Therefore in the direct line they are computed in the same way as canonical degrees; in the equal collateral line, the canonical degrees are doubled; in the unequal collateral line, the lesser line is doubled and the excess of the greater is added. C. 2, c. 35, q. 5; L. 1029; St. Thomas, Suppl., q. 54, a. 2; Schmalzgrueber, book 4, tit. 14, nn. 15, 19, 60, 107.

It must be noted here that in an unequal transverse line, in the petition for dispensation, the nearer and more remote degree must be expressed on both one side and the other. If the nearer is kept back, "the marriages are indeed valid, but illicit, provided that the dispensation does not touch the first degree; and therefore, until declaratory letters, or, as they call them, letters perinde valere, are issued, the spouses must be separated." Holy Office, December 12, 1748. The first degree is excepted, because in that first degree the Pope does not intend to dispense unless it is expressed. St. Pius V, Const. Sanctissimus, August 20, 1566; L. 1031; Benedict XIV, Quaest. can., 183; De Iustis, book 1, chap. 4, n. 121 ff.

It must likewise be noted that according to the Austrian Civil Code, 41, 65, degrees are computed as in Roman Law; but marriage is not prohibited according to all the degrees constituted by Canon Law, which must be followed. The Spanish Civil Code, 84, 915, also follows Roman Law as regards computing degrees of consanguinity, except in marriage, in which, as regards matrimonial impediments, it follows Canon Law, except that it restricts the impediment of consanguinity from illegitimate copulation to the second degree in the collateral line. Therefore in this matter also Canon Law must be followed. For Trent changed nothing concerning this impediment with respect to the ancient Law, although it contracted affinity to the second degree. Schmalzgrueber, book 4, tit. 16, n. 9.

The French Civil Code, 161-164, 735 ff., and the Italian Civil Code, 48 ff., 59, 68, preserve the same rule of Roman Law in computing degrees of consanguinity. But as regards the impediments of marriage they depart from Canon Law, as also does the German Civil Code, 1310, 1327, 1589. But in this matter Canon Law alone is to be observed. And let this also be said for the other impediments.

What is understood by cognate and agnate? Cognation is nearness between persons of a different family, joined to one another through the female line. Agnation is nearness between persons born to the same family, and therefore joined to one another through the male line. Therefore persons are called cognates if they descend through the female line; they are called agnates if they descend through the male line. "Because those who are born follow the family of the father, not of the mother." Institutes, book 1, tit. 15, § 1; Schmalzgrueber, book 4, tit. 14, n. 10.

Who are blood relatives in the direct line? Staying within only four degrees, above the father and below the son, they are the following, in this order, beginning from the fourth higher degree: 1. great-great-grandfather (trisavolo); 2. great-grandfather (bisavolo); 3. grandfather (nonno); 4. father (padre); 1. son (figlio); 2. grandson, granddaughter (nipote); 3. great-grandson, great-granddaughter (pronipote); 4. great-great-grandson, great-great-granddaughter (terzo nipote, terza nipote).

Who are blood relatives in the transverse or collateral line? Collateral blood relatives on the father's side are: 1. propatruus, paternal great-granduncle (terzo zio paterno), brother of the great-grandfather; proamita, paternal great-grandaunt (terza zia paterna), sister of the great-grandfather; 2. patruus magnus, great-uncle on the father's side (prozio paterno), brother of the grandfather; amita magna, great-aunt on the father's side (prozia paterna), sister of the grandfather; 3. patruus, paternal uncle (zio paterno), brother of the father; amita, paternal aunt (zia paterna), sister of the father; 4. brother, sister. Brothers are called consanguineous if they have only a common father, but a different mother; uterine if they have only the mother in common and a different father; full siblings if they have a common father and mother; 5. patrueles, paternal cousins (cugini paterni), sons or daughters of the father's brother; 6. sobrini, second paternal cousins (secondi cugini paterni), sons or daughters of patrueles; 7. children of the sobrini, third paternal cousins (terzi cugini paterni).

Collateral blood relatives on the mother's side: 1. proavunculus, maternal great-granduncle (terzo zio materno), brother of the great-grandmother; promatertera, maternal great-grandaunt (terza zia materna), sister of the great-grandmother; 2. avunculus magnus, great-uncle on the mother's side (secondo zio materno), brother of the grandmother; matertera magna, great-aunt on the mother's side (seconda zia materna), sister of the grandmother; 3. avunculus, maternal uncle (zio materno); matertera, maternal aunt (zia materna), sister of the mother; 4. brother and sister; 5. consobrinus, maternal cousin (cugino materno), son of the mother's sister; amitini, paternal and maternal cousins (cugini paterni e materni), two children of whom one was born from a brother and the other from a sister; 6. sobrini, second maternal cousins (secondi cugini materni), children of consobrini; 7. children of the sobrini, third maternal cousins (terzi cugini materni). Institutes, book 3, tit. 6; L. 1 ff., de Grad. et adfin.

In the following scheme of consanguinity the various degrees and lines can be seen. Persons who are joined by a line are among themselves in the direct line; with the others they are in the collateral line. On the right side, where the brother is placed, are placed male blood relatives, and females joined through the male sex. On the left, where the sister is placed, are placed female blood relatives, and males joined through the female sex. The empty cell with the letter N is the person whose kinship is in question, and who wishes to contract marriage with another. It must be seen in which other cell this person is to be placed; and, once the proper cell has been assigned to him or her, one must ascend up to the cell in which the lines are joined, for there the stock is had. The number written in the cell indicates the degree of consanguinity, and always designates the more remote degree with respect to N.

Translated scheme of consanguinity:

| Degree | Direct line | Paternal collateral side | Maternal collateral side | | --- | --- | --- | --- | | 4 above | Great-great-grandfather / great-great-grandmother | Great-grandfather's brother: propatruus; great-grandfather's sister: proamita | Great-grandmother's brother: proavunculus; great-grandmother's sister: promatertera | | 3 above | Great-grandfather / great-grandmother | Great-uncle / great-aunt on the father's side; their children | Great-uncle / great-aunt on the mother's side; their children | | 2 above | Grandfather / grandmother | Paternal uncle / paternal aunt; their children | Maternal uncle / maternal aunt; their children | | 1 above | Father / mother | Brother | Sister | | N | Person whose kinship is being examined | Paternal cousins / amitini; nephews and great-nephews through the brother | Maternal cousins / amitini; nephews and great-nephews through the sister | | 1 below | Son / daughter | Brother's children | Sister's children | | 2 below | Grandson / granddaughter | Brother's grandchildren | Sister's grandchildren | | 3 below | Great-grandson / great-granddaughter | Brother's great-grandchildren | Sister's great-grandchildren | | 4 below | Great-great-grandson / great-great-granddaughter | Their children | Their children |

What is the impediment of affinity? Affinity is the relationship which one contracts with the blood relatives of the person with whom he has carnal intercourse, or it is the relationship which arises from carnal copulation between one person and the blood relatives of the other, e.g., between the man and the blood relatives of the wife, and vice versa. From carnal copulation, namely one apt of itself for generation, although generation does not follow. Affinity from licit copulation dirimently impedes marriage in the transverse line up to the fourth degree, and further also in the direct line, C. Non debet 8, de Consanguin.; from illicit copulation, up to the second, Trent, sess. 24, chap. 4, de R. M., and therefore from public concubinage and from merely civil marriage it does not extend beyond the second degree. Does it also arise from a null marriage? Some affirm this, whether the man and woman have coeundum in good faith or in bad faith. Carriere, de Matr., p. 163. According to others, if the man and woman have coeundum in good faith, it extends up to the fourth degree; but if in bad faith, according to many, says Scavini, Milan, 1874, 12th ed., book 3, n. 794, it extends up to the fourth degree, according to others up to the second. And this seems more true according to Trent. The degrees and lines of affinity are taken from consanguinity, and as in consanguinity; so that one who is related by affinity to one party is in the same line and the same degree in which he is a blood relative of the other party. Hence he who is, for example, a blood relative of the wife in the first degree, whether of the direct or of the transverse line, is related by affinity to the husband in the same degree of the direct or transverse line. And as in consanguinity, so in affinity the distance is taken from the more remote degree. Therefore there is no need of a dispensation from affinity because of illicit copulation when one party is distant from the stock in the first degree and the other in the third. German Civil Code, 1310, 1327, 1590.

According to the certain opinion of all, affinity dirimently impedes marriage by ecclesiastical law alone in the collateral line, and much more probably also in the direct line, if perhaps the first degree is excepted. Concerning the first degree of the direct line, there is controversy among doctors. Yet there is no room for doubt concerning the power of the Pontiff to grant a dispensation in the first degree of affinity in the direct line, even from licit copulation between stepfather and stepdaughter. Holy Office, September 4, 1743; Schmalzgrueber, book 4, tit. 14, nn. 82-84, 101-105; Benedict XIV, Epistle Aestas anni, October 11, 1757; de Syn., book 9, chap. 13. But the Church has never dispensed in affinity arising from legitimate marriage, although she has dispensed in affinity arising from illicit intercourse, e.g., if someone marries a woman after having fornicated with her daughter or mother. For affinity from fornicarious copulation arises only because of the union of bodies; from consummated legitimate marriage it arises both because of carnal copulation and because of conjugal society in a common and individual life. St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 3; q. 4, ad 2; Lugo, Responsa Moralia, book 1, disp. 40, 43. Therefore if two unbelievers, related by affinity in the first degree of the direct line from a legitimate marriage, after contracting a legitimate marriage with each other, were converted to the faith, they could not be separated without pontifical dispensation. But cf. the following case, n. 1002 bis.

Affinity from marriage, whether it is a diriment impediment by natural law or by ecclesiastical law, is certainly a natural affinity. Therefore an unbeliever converted to the faith cannot contract with the daughter, mother, or sister of that wife whom he legitimately had during the time of unbelief. The reason is that the natural bond arises even among unbelievers from marriage, and because it perseveres after baptism, it then becomes subject to the invalidating law of the Church. Does the aforesaid natural bond also arise from illicit copulation? Sanchez, book 7, disp. 65, n. 9, Lugo, l.c., and others deny it; but many other grave doctors more truly affirm it from St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 3. For if a man and a woman, although coeundum illicitly, nevertheless necessarily and naturally become one flesh, necessarily and naturally one enters the limits of the other's kinship and is joined to that person's blood relatives. Therefore an unbeliever converted to the faith cannot, without dispensation, enter marriage with the mother, daughter, or sister of her whom he had previously known fornicariously. And this is also established from the Response of the Holy Office, August 26, 1891.

Affinity also can be multiple, namely if someone has had carnal intercourse with several blood relatives, or with a person who is related by blood to the spouse in multiple ways, but by no means if he has done so several times with the same blood relative. For affinity is multiplied not by acts, but by persons. Sanchez, book 8, disp. 24, nn. 4, 5; L. 1067, 1069; St. Thomas, Suppl., q. 55; Schmalzgrueber, book 4, tit. 14, n. 67 ff.; E.M.

1002 bis. The following case was very recently solved: "John T. and Rebecca St. of the diocese of Hagulstadensis and Novocastrensis (Hexham and Newcastle), prostrate at the feet of Your Holiness, very humbly ask for dispensation so that they may licitly contract marriage with each other, notwithstanding the impediments of affinity in the first degree and of public honesty. "The matter stands thus: "John T. contracted marriage with a woman named St., already the mother of a daughter from dishonorable copulation, named Rebecca St. "From these nuptials three or four children were born, and the wife of John T. died. But in the year 1907 John contracted a civil marriage with Rebecca St., in good faith as regards the diriment force arising from affinity. "It is certain and can be proved that Rebecca is not the daughter of John. From these second nuptials two children were born. "The causes are: 1. The legitimation of offspring. 2. The greater good of the offspring, who, still infants, are greatly in need of the care of father and mother. 3. To regularize the state of John and Rebecca. 4. To quiet the scandal arising from the cohabitation of the parties, who now can scarcely be separated because of the education of the offspring." "The Sacred Penitentiary, having maturely considered the peculiar circumstances set forth in the case, by special and express Apostolic Authority, with Our Most Holy Lord Pius X graciously thus assenting, grants to you, beloved in Christ, the Ordinary of the petitioners, the faculty, if things are so, of graciously dispensing the petitioners from the impediments listed in the prayers, so that they, the proclamations being omitted but scandal being removed, and the remaining canonical prescriptions being observed, may licitly and freely be able to contract marriage and remain in it, and of declaring and respectively announcing as legitimate the offspring either to be received thenceforth. All things to the contrary notwithstanding. But these present letters, with the attestation of the execution imparted, are to be carefully kept in the episcopal chancery, so that for any future event there may be proof concerning the validity of the marriage and the legitimacy of the offspring. Given at Rome in the Sacred Penitentiary on December 2, 1911." It is asserted that on another occasion already the same dispensation had been given.

Note: When there is question of one who wishes to marry a daughter after having fornicated with the mother, the condition is usually added in the dispensation, provided that copulation with the mother did not precede the birth of the daughter, namely so that the danger may be guarded against that someone marry his own daughter. But the condition can be judged sufficiently fulfilled if copulation with the mother preceded at such a time that that danger is entirely absent.

For contracting affinity it is certain that insemination by the man is required; but is insemination also by the woman required? Pontius and others deny it, because female seed is not necessary for generation. St. Bonaventure and others affirm it, "both because according to the opinion of many others the seed of the woman is also required for generation, and because, and this reason presses more strongly, affinity is not contracted unless those coeundum become one flesh; but they do not become one flesh unless the seeds are mingled. And this opinion is greatly strengthened from the authority of St. Thomas.... In doubt one must presume for perfect copulation (of the man), because from things that commonly happen it is prudently presumed to have been present.... And so also the insemination of the woman is always presumed when she felt great pleasure in coitus, even if she did not advert to the insemination. Indeed, in the external forum, where coitus is established, judgment must always be pronounced for the impediment of affinity contracted, and thus one must also judge in the internal forum, which must always conform to the presumption of the external forum, and it is not established that this presumption is false." L. 1075; Schmalzgrueber, book 4, tit. 14, nn. 71-73. These are the words of St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 4, ad 2: "Man and woman become one flesh through the mingling of seeds. Hence however much someone may invade the barriers of modesty, unless mingling of seeds follows, affinity is not contracted from this." And Pyrrhus Corradus, Praxis Dispens. Apost., book 7, chap. 1, n. 18: "For causing affinity the concurrence of both seeds is required." But since the seed properly so called in the woman is not that humor which is secreted in the heat of pleasure and even shows itself externally, but the ovum, which is insensibly secreted from the ovary from venereal excitation, and also without any sense of pleasure, naturally, almost every month, descends into the uterus and is fecundated in the uterus by male seed, if the man has inseminated within the female vessel, it will indeed be difficult to pronounce that the act on the part of the woman has not been consummated. Cf. Joseph Antonelli, de Conc. imp. et sterilit., Rome, 1900.

Affinity contracted between spouses cannot dirimently impede their own marriage, since it supervenes upon this marriage already indissolubly contracted; nevertheless it impedes the use of the same marriage as a punishment of the adulterous and incestuous spouse, by depriving the guilty party of the right of asking the debt. C. Si quis, de Eo qui cognovit, etc. But this, since it is from illicit copulation, by force of the decree of Trent, sess. 24, chap. 4, de R. M., is not contracted except from copulation with the blood relatives of the other in the first and second degree. This is confirmed from the express Declaration of Gregory XIII in St. Alphonsus, 1070. But it probably does not impede imperfect acts, provided the danger of pollution is absent. For since the law is penal, it must be understood strictly, and is not to be extended also to these acts. L. 933.

The Italian Civil Code, 52; the French Civil Code, 162; the Austrian Civil Code, 40, do not seem to acknowledge any affinity except from marriage, whence under it the bond of public honesty also is comprehended. But it is otherwise according to the Spanish Civil Code, 84, which rightly distinguishes legitimate affinity from merely natural affinity; and under that, public honesty also is comprehended. As regards Roman Law, cf. Schmalzgrueber, book 4, tit. 14, n. 70.

Resolutions: Persons who are carnally joined are not properly related by affinity between themselves, but are the principle of affinity, and hold, as it were, the place of the stock. Affinity cannot exist between two persons neither of whom has had copulation with a blood relative of the other; therefore the blood relatives of one spouse have no affinity with the blood relatives of the other. No one is prohibited, after his wife has died, from marrying the widow of her brother; or from successively marrying the widows of two of her brothers. Two brothers can marry two sisters; father and son can marry mother and daughter; indeed the son can marry the mother, and the father can marry her daughter. A stepfather can marry the widow of his stepson; and a stepmother the widower of her stepdaughter. For affinity does not beget affinity. C. Non debet 8, de Consang.; Schmalzgrueber, book 4, tit. 14, nn. 74, 75. One who has sinned with two sisters, or with full cousins, or with mother and daughter, can marry none of these. A man who has sinned with the sister, cousin, or paternal aunt of his spouse is bound to render the debt to the one asking, although he himself cannot ask.

The reason is that, since there is question of a law merely prohibiting, the innocent party ought not to suffer from the fault of the guilty. He who sins with his own blood relatives is not deprived of the right of asking the debt, because from this he contracts no affinity with his wife. If each spouse has contracted affinity with the other through incest, neither is bound, indeed neither can render the debt to the other. L. 1068, 1069; St. Thomas, Suppl., q. 55; E.M.

Has a wife, known by force or fear by a blood relative of the husband, lost the right of asking the debt? R. Negatively, if the force was absolute; for that impediment of asking the debt, as regards incestuous spouses, has only the nature of a penalty, but there can be no penalty where there is no fault. Negatively also when the wife who suffered force or fear did not sin gravely, because a grave penalty is not proportionate to a light fault. Indeed it seems more probable that it must also be denied if that wife sinned gravely, because grave fear excuses from human laws, even if it cannot excuse from the natural law; therefore, since in our case it excuses from the law insofar as it is ecclesiastical, it ought also to excuse from the penalty inflicted by that law. Schmalzgrueber, book 5, tit. 39, n. 79; L. 1071.

Does ignorance excuse from the impediment of asking the debt? R. More probably affirmatively, if there is ignorance of law, namely of the human law prohibiting this. The reason is that just as ignorance excuses from the transgression of a human law, so also from the penalty. If there is ignorance of fact, namely that this woman is a blood relative of the wife, it is common that the impediment is not incurred. The reason is that where the fault of incest is lacking, the penalty is also lacking. This is clear also from C. Si quis 1, de Eo qui cognovit, etc., where this impediment is imposed on one sinning knowingly. Ignorance of the penalty also excuses with sufficient probability, since it is an extraordinary penalty. L. 1072, 1074.

Who can dispense in this impediment concerning the asking of the debt? "They very commonly teach that the Bishop can always and absolutely dispense.... The reason is that, granted that the Bishop could not do this from the disposition of the Law, nevertheless he can well do it by reason of custom. And he can well delegate this faculty of dispensing to another, not only in particular, but also in general. Moreover, all mendicant regular confessors, deputed by the provincial for this office, can also dispense in this impediment from several privileges." L. 1076. Bishops can indeed do this by force of the quinquennial faculties, and also approved confessors having the Form of the Sacred Penitentiary. Cf. that Form.

Who are relatives by affinity? The principal relatives by affinity by reason of licit copulation are the following: 1. Socer, socerus, father of the husband, to whom corresponds the nurus, the wife of the son. Socer magnus, grandfather of the husband, to whom corresponds the pronurus, wife of the grandson. Socer is also the wife's father, to whom corresponds the son-in-law, husband of the daughter; socer magnus or prosocer is likewise the grandfather of the wife, to whom corresponds the pro-gener, husband of the granddaughter. Socrus, mother of the husband, to whom consequently corresponds the nurus, or wife of the son. Socrus magna, the husband's grandmother, to whom the pronurus corresponds. Socrus is also the mother of the wife, to whom the son-in-law corresponds. Socrus magna or prosocrus, grandmother of the wife, to whom the pro-gener corresponds. 2. Vitricus, husband of the mother; noverca, wife of the father, to whom correspond privignus and privigna, son and daughter from the first marriage of the father or mother. 3. Levir, brother of the wife, brother of the husband; glos, sister of the wife, sister of the husband; fratria, wife of the brother; sororius, husband of the sister.

What is spiritual kinship? Spiritual kinship is a certain nearness of persons which arises from baptism and confirmation. It dirimently impedes marriage by ecclesiastical law: 1. between the minister of the sacrament and the subject, and the subject's parents; 2. between the godfather or godmother and the goddaughter or godson, and their parents. Trent, sess. 24, chap. 2, de R. M. Therefore it is contracted neither by the spouse of the one baptizing, nor by the spouse of the godfather, St. Pius V, Cum illius vicem, nor among the godparents themselves. Hence the godfather and godmother can enter marriage with each other.

For contracting kinship, baptism is a necessary condition as regards all; therefore if either the one baptizing or the parents of the baptized person are unbelievers, although catechumens, kinship is not contracted by them. Therefore both a believer who baptized the offspring of an unbeliever, and one who received that offspring from the sacred font, could contract marriage not indeed with the baptized offspring, but with that offspring's parents after they had been converted to the faith. Schmalzgrueber, book 4, tit. 11, nn. 32-35. But it is certain that this kinship is contracted even by a heretic, both if he baptizes and if he holds at the sacred font, and also if another baptized person, whether heretic or Catholic, either baptizes or holds his offspring. The reason is that whoever has the baptismal character is capable of this kinship and is subject to the laws of the Church. Sanchez, book 7, disp. 60, n. 2; Pirhing, book 4, tit. 11, n. 40. Likewise in confirmation, in order that sponsors contract kinship, it is necessary that they be confirmed. This kinship too can be multiple. It is multiplied from the sacraments, e.g., if someone held Caius in baptism and confirmation, but not if he held several sons of Titius in baptism or confirmation. Holy Office, April 29, 1894. Likewise it is multiplied from persons, if two have mutually held the other's children, etc. Reiffenstuel, book 4, tit. 21, app. de Disp., n. 201; Schmalzgrueber, book 4, tit. 16, n. 208; Sanchez, book 7, disp. 54, n. 17; De Iustis, book 1, chap. 4, n. 170; Corradus, book 8, chap. 8, n. 16. St. Thomas, Suppl., q. 56. Cf. 442 ff.; E.M.

Note: Parents baptizing their children in necessity or in good faith contract no spiritual kinship by which they are prohibited from the use of marriage; for this prohibition has the nature of a penalty, which is not incurred without fault. Indeed, probably they do not seem to contract the same kinship even if, deliberately and apart from necessity, they baptized their offspring. Truly, the doctors disagree, and some affirm, others deny. Therefore, although they contract spiritual kinship, this nevertheless does not have the effect of depriving them of the right of demanding the debt. The reason is "because the cause for permitting the use of marriage in such a case to each spouse was most just, namely the evident and manifest danger of incontinence...; which danger rightly proves that the deprivation of the right of asking the debt in this case is not to be asserted without an open text of law, such as, however,... none is found." Schmalzgrueber, book 4, tit. 11, n. 48. C. 2, de Cogn. spir.; La Croix, book 6, part 1, n. 358; L. 150; Schmalzgrueber, book 4, tit. 11, n. 42 ff.; E.M.

What is legal kinship? Legal kinship is the nearness of persons which arises from legal adoption. Adoption is a legitimate act by which one who is not such by nature is assumed as a son or grandson. In common law adoption is distinguished as twofold: 1. Perfect, which is also called arrogation, and this is that by which an outside person who is sui iuris, by Rescript of the Prince, passes into the power and family of the adopter, acquires all the rights of a legitimate son, and becomes a necessary heir. 2. Imperfect, which is called simple, is that by which an outside person who is not sui iuris, but remains in the power and family of his natural father or grandfather, by the authority of any competent judge, is assumed as a son or grandson; nevertheless he does not pass into the family and power of the adopter, and for that reason does not become his necessary heir from a testament, although he succeeds to him ab intestato. Cf. vol. 1, n. 663.

Legal kinship, namely perfect adoption, constitutes a diriment impediment by ecclesiastical law, approving Roman Law, by which this impediment was first introduced. This is drawn from the Response of Nicholas I and Paschal II, C. Ita diligere 1, c. 30, q. 3; C. Post susceptum 5, l.c.; C. un., de Cogn. leg. And the reason is that kinship stands in the way of nuptials because of the dangers of cohabitation. St. Thomas, IV Sent., d. 42, q. 2, a. 3, ad 2. Hence this impediment is in force where adoption is preserved: in Roman Law, not in the more recent law, by which the adopted person does not pass into the family of the adopter and under his paternal power. Thus Gury, 809; D'Annibale, 3rd ed., part 1, n. 65, compared with part 3, n. 433, and others, against others who hold that imperfect adoption also, and therefore also by more recent law, dirimently impedes marriage. "More probably," says St. Alphonsus, 1027, "St. Thomas, Suppl., q. 57, a. 2, Sanchez, book 7, disp. 73, n. 9, Salmanticenses, n. 41, with others, say that (legal kinship) arises only from perfect adoption." This indeed follows from L. Adoptivus 14, ff. de Adoptionib.; L. Si paterfamilias 15, ibid.; L. Quin etiam, § 2, ff. de Ritu nuptiarum, etc.

But in order that a canonical impediment be had by adoption, it must have been legitimately entered. Sacred Penitentiary, May 16, 1826. Adoption entered privately, with no solemnity of law, produces no impediment. Holy Office, April 16, 1761.

Legal kinship, after the likeness of natural kinship, dirimently impedes marriage by Roman Law between the following persons: 1. as if in the direct line, between the adopter and the adopted person and this person's children, while they are constituted under paternal power; 2. between the adopted person and the children of the adopter, as if in the collateral line, while the latter's children are under paternal power and are not emancipated; 3. between the adopter and the wife of the adopted person, and, conversely, between the adopted person and the wife of the adopter, as if in the direct line by way of affinity, as is established from the declaration of the Sacred Congregation of the Council in the Hortana case, September 25, 1734.

These kinships differ among themselves, and consequently also the impediment arising from them, in that the first and last are perpetual. Therefore the adopter, for example, cannot take an adoptive daughter or granddaughter as wife, even if the adoption has been dissolved by emancipation; nor can the stepson or daughter-in-law, understand adoptive, be joined in marriage with the stepmother or father-in-law, although the adoption has ceased either by emancipation or by the death of the adopter. Therefore a dispensation of the Apostolic See would be required, which, however, even in the last case is granted with very great difficulty. But the second, in the collateral line, lasts only as long as the adoption lasts. Lugo, de Poenit., disp. 16, n. 327.

According to Roman Law adoption is dissolved in six ways: 1. by the natural death of the adopter; 2. by the civil death of the same; 3. because of incestuous nuptials; 4. because of dignity, e.g., episcopal; 5. by sentence; 6. by emancipation.

Since this impediment is of common law, only the Supreme Pontiff can dispense. In the direct line and in legal affinity he dispenses with very great difficulty and from a grave cause. In the transverse line a dispensation is rarely sought, since this impediment is removed by emancipation, and thus without any dispensation the adopted person can contract marriage with the natural daughter of the adopter. Schmalzgrueber, book 4, tit. 12, n. 37.

Italian Civil Code, 213, etc.; French Civil Code, 353, etc.; Austrian Civil Code, 181; Spanish Civil Code, 178, 179: adoption is made by intervention of a public magistrate, and with the other prescriptions of law observed. Italian Civil Code, 211; French Civil Code, 349: adoptive parents are bound to procure, if there is need, the education of the adopted person, and to supply him the necessary supports and sustenance. But the adopted person is held by the same obligation as regards sustenance toward the adopter. The Spanish Civil Code, 176, establishes the same concerning sustenance. Italian Civil Code, 737, 806; French Civil Code, 350; Austrian Civil Code, 183, 755: the adopted person with his descendants is heir of the adopter together with legitimate children, and succeeds to him ab intestato. Nevertheless he has no right to the goods of the blood relatives or cognates of the adopter. Spanish Civil Code, 177: the adopted person acquires no right to inheritance except by testament or by special agreement. Italian Civil Code, 210; French Civil Code, 347; Spanish Civil Code, 175; Austrian Civil Code, 182: the family name of the adopter is conferred on the adopted person, who adds it to the name of his own family. Italian Civil Code, 210, 212; French Civil Code, 348, 349: the adopted person remains in his natural family and preserves in it all his rights and obligations. Therefore the adopted person does not pass into the family of the adopter, nor is he subject to his paternal power, as in perfect adoption, or arrogation, of Roman Law. Austrian Civil Code, 183; Spanish Civil Code, 177: the adopted person indeed preserves his rights in his own proper family, but passes under the paternal power of the adopter, the prior paternal power being dissolved. Nothing concerning the dissolution of adoption is contained in the Italian Civil Code and the French Civil Code, and therefore it seems to endure perpetually until death. According to the Austrian Civil Code, 185, adoption can be dissolved. According to the Spanish Civil Code, 180, an adopted minor can impugn the adoption within four years after attaining majority. Italian Civil Code, 60; French Civil Code, 348: marriage is forbidden between the adopter and the adopted person and this person's descendants; between the adopter and the spouse of the adopted person; between the adopted person and the spouse of the adopter; between the adopted person and the children of the adopter who are born after the adoption; between adopted children of the same person. Spanish Civil Code, 84: the adopting father or mother and the adopted person cannot contract marriage as incapable persons; nor the spouse of the adopting father or mother and the adopted person; nor the adopting father or mother and the spouse of the adopted person; nor the legitimate descendants of the adopter and the adopted person, while the adoption remains. German Civil Code, 1311: the adopter cannot contract marriage with the adopted person and his or her descendants as long as the adoption endures.

According to the Italian Civil Code and the French Civil Code, adoption is only imperfect, since the adopted person does not pass into the family of the adopter, nor is he placed under his paternal power. Hence more probably no diriment impediment is had from it, until the Church certainly counts an adoption of this kind among diriment impediments, as she counted perfect adoption or arrogation of Roman Law. For more probably only perfect adoption or the arrogation of the Romans is, by Canon Law, a diriment impediment. On the contrary, for the opposite reason, adoption according to the Spanish Civil Code and the Austrian Civil Code seems to be a diriment impediment. And as regards Austria, in the Instruction of Cardinal von Rauscher, commended by the Pronuncio, it is said, § 29: "Adoption of the Austrian Empire... dirimently impedes marriage whenever the adopted person is subjected to the paternal power of the adopter, or is received into his house to dwell after the manner of children of the family."

Benedict XIV, de Syn., book 9, chap. 15; Schmalzgrueber, book 4, tit. 12, nn. 3, 10, 26 ff.; L. 1027; St. Thomas, Suppl., q. 57; E.M.

Does legal kinship dirimently impede marriage up to the fourth degree between the adopter and the descendants of the adopted person, or vice versa? It is certainly restricted to the first degree as regards the adopted person and the descendants of the adopter. This is established from Canon Law. It is controverted as regards the adopter and the descendants of the adopted person. Probably the kinship does not extend beyond the first degree, or beyond the adopted person, unless he has descendants constituted under his power. For according to the more common opinion of Sanchez, book 7, disp. 63, n. 34, from Roman Law the impediment extends to those who, together with the adopted father of the family, pass into the power of the adopter. L. 1027.

Resolutions: Therefore, while adoption endures, marriage can subsist: 1. between the adopter and the mother and sister of the adopted person; 2. between the adopter and the daughter of an adopted woman, because this daughter is not in the power of the mother, and therefore does not pass into the power of the adopter; 3. between the adopter and the illegitimate daughter of the adopted person, because illegitimate children are not in the power of the father, and therefore the daughter of the adopted person in the case does not pass into the power of the adopter; 4. for the same reason marriage will subsist between the illegitimate son of the adopter and his adopted daughter; 5. between the son and daughter of two adoptive brothers, because these are bound by no bond of kinship among themselves; 6. between two adopted persons of one adopter, for this is forbidden by no law; 7. between the adopted person and the sister or mother of the adopter. Schmalzgrueber, book 4, tit. 12, n. 31 ff.; L. 1027; St. Thomas, IV Sent., d. 42, q. 1, a. 2, ad 5.

What is public honesty? Public honesty is a certain quasi-affinity from the union of minds. It arises: 1. from valid and certain betrothals, but by no means from invalid and uncertain ones, C. un., de Spons., in VI; Trent, sess. 24, chap. 3, de R. M., although occult, Holy Office, August 11, 1852; Sacred Penitentiary, September 10, 1834; A.S.S., vol. 2, p. 381; Schmalzgrueber, book 4, tit. 1, n. 108. Although occult; but now, after the decree Ne temere, occult betrothals can no longer exist by law, but only in fact. If betrothals were entered under a resolutive condition, since they are immediately valid, the impediment of public honesty arises and perseveres, although they are dissolved. But if they were entered under a suspensive condition, while that condition is pending there are neither betrothals nor an impediment; but when it has been fulfilled, if consent has not been revoked, they are valid without new consent and produce the impediment. But if marriage is contracted in the meantime, and then the condition is verified, they can neither dissolve the marriage nor impede its use. It is contracted between the betrothed man and the blood relatives of the betrothed woman, and between the betrothed woman and the blood relatives of the betrothed man, whether legitimate or illegitimate, C. 8, de Spons. et matr., only in the first degree of both the direct and the oblique line, Trent, ibid.

It arises: 2. from ratified marriage, even invalid marriage, namely because of some diriment impediment, e.g., impotence, kinship, disparity of cult, crime, ligamen, provided that it was not invalid from defect of consent, from error, from fear, from simulated consent, although the defect is occult; nor from the prior impediment of public honesty from betrothals validly contracted to the prejudice of prior betrothals; and therefore the impediment is in force if those betrothals had been dissolved before the marriage. There is no explicit text of law, but it is deduced a fortiori; for the bond of ratified marriage is stronger than that which arises from betrothals. C. un., de Spons., in VI; St. Pius V, Const. Ad Romanum Pontificem, sec. 35, July 1, 1568; Schmalzgrueber, l.c., nn. 101, 104-106. Hence if Titius, for example, after entering betrothal with Bertha, leaves her and marries her sister, he can and must return to the first, and he does not need dispensation unless he has consummated the marriage. Ratified; for when it has been consummated, it passes into perfect affinity and produces no other impediment. For public honesty is a certain inchoate affinity. Benedict XIV, de Syn., book 9, chap. 13, n. 3. From ratified marriage, not from civil marriage, in places where the decree of Trent concerning contracting marriage before the pastor and witnesses has been promulgated. Leo XIII, March 17, 1879. And much less now, after the decree Ne temere, is the impediment contracted from merely civil marriage. Is it also not contracted from clandestine marriages, namely those contracted without pastor and witnesses? Sanchez, book 7, disp. 70, n. 13, thought so; Pontius, book 7, chap. 35, n. 5, held the contrary. Many indeed supported Sanchez, far more Pontius. Nevertheless, after the cited Decree of Leo XIII, the opinion of Sanchez consequently must be altogether preferred. And the reason for each is that civil marriage, where Trent has been promulgated, and now after the decree Ne temere has been promulgated, and clandestine marriage, do not have the form of marriage; and form gives being to the thing. Hence they are altogether nothing in the being of marriage, and therefore from them, as from an invalid marriage, the impediment of public honesty cannot arise. Cf. 919, 923. If a marriage is null from defect of age, since by interpretation of law it passes into betrothals, the impediment must be considered as from betrothals, not from marriage. Cf. n. 923. But again, now after the decree Ne temere, the aforesaid marriage in no way passes into betrothals.

This impediment, arising from marriage whether ratified or invalid, advances up to the fourth degree of the direct and collateral line. C. un., de Spons., in VI; L. 1061. And this impediment of public honesty, once contracted, is perpetual and endures after betrothals and marriage have been dissolved. It has no natural bond for its foundation, no natural kinship, from betrothals or from ratified marriage, whether invalid or valid. Therefore unbelievers converted to the faith are not bound by it. L. 1061-1064; Mansella, de Impedim., etc., p. 66; E.M.

What is the impediment of vow and order? The vow which dirimently impedes marriage is only the solemn vow of chastity, emitted by profession in an approved religion. C. 10, de Conv. Coniug.; C. un., de Voto, in VI. Chastity, not a religious vow as such, because religious profession dirimently impedes marriage for this reason and to this extent, insofar as it includes the solemn vow of chastity. Therefore vows, although solemn, of certain Equestrian Orders do not dirimently impede marriage, since these profess only conjugal chastity. Schmalzgrueber, book 4, tit. 6, n. 45. Solemn; for a simple vow of chastity, even perfect and perpetual, even emitted in religious Congregations of men and women, does not dirimently impede marriage, but only impedes it. By special privilege of Gregory XIII, the simple vows which are emitted after two years of novitiate in the Society of Jesus are to be excepted.

Order dirimently impeding marriage is sacred order, namely priesthood, diaconate, and subdiaconate. C. De Diacono 1; C. Ex Litterarum 2, Qui cler. vel vov.; Extravag. Antiqua, de Voto; Trent, sess. 24, chap. 9. Sacred order even among the Greeks and Italo-Greeks, Ruthenians and Maronites, dirimently impedes marriage. But the certainty is not the same for all. For as regards Italo-Greeks, Benedict XIV declared invalid such a marriage attempted by subdeacons, deacons, and priests. For Ruthenians, the Synod of Zamosc in 1720, approved in specific form by the Apostolic See, and for Maronites, the Synod of Lebanon in 1736, likewise approved by the Apostolic See, declared invalid, the former the marriage of a priest, the latter that of a deacon, priest, and bishop. As regards other Greeks, there is not yet an express definition of the Apostolic See; but the opinion is consonant both with the opinion of the Tribunals of the City and with the ancient Law itself of the Eastern Church. Benedict XIV, Const. Eo quamvis tempore, secs. 38, 39; Const. Anno vertente, sec. 13; Const. Etsi pastoralis, sec. VII, n. 27; Sacred Congregation de Propaganda Fide, March 24, 1858. Collectanea S.C. de Propaganda Fide, n. 1572. As regards Ruthenians in North America and in the Canadian Region, cf. here nn. 97 and 377.

Now as regards the vow, it must have been emitted: 1. voluntarily and deliberately; 2. with the true intention of obliging oneself; otherwise the vow would not be valid. As regards order, it is required: 1. that it have been received validly; 2. that it have been received voluntarily, and therefore not from grave fear.

The impediment of order, according to the common opinion, dirimently impedes only by ecclesiastical law. The reason is that on the one hand order of itself is not repugnant to the conjugal state; nor, on the other hand, is there any divine prohibition which is found in the Scriptures or in Tradition. L. 1059. But since the solemnity of a vow is of ecclesiastical law, for that very reason the Pope can dispense, provided that there is a sufficient cause, that is, one proportionate to the gravity of the matter. That the Pontiff can dispense from this impediment is the very commonly received opinion of the doctors, whom Sanchez, de Matr., book 8, disp. 8, n. 7, alleges in a long series; and examples of this dispensation having been granted are everywhere available, as can be seen in Schmalzgrueber, book 3, tit. 35, n. 48; Albitus, de Inconst. in fide, chap. 36, n. 132 ff. This is confirmed from the Decree of the Holy Office, February 20, 1888, by which Leo XIII granted to Bishops the faculty of dispensing, "either by themselves or through an ecclesiastical person well pleasing to them, the sick established in the gravest danger of death, when there is not time to have recourse to the Holy See, from impediments, however public, dirimently impeding marriage by ecclesiastical law, except the sacred order of priesthood and affinity of the direct line arising from licit copulation." Benedict XIV, de Syn., book 2; L. 808, 1025, 1026, 1059, book 3, n. 256; Mansella, de Impedim., etc., p. 92 ff.; St. Thomas, II-II, q. 88, a. 11; Suppl., q. 53.

Modern laws are those which admit even those ordained in sacred orders to marriage. There is indeed no law forbidding this in the Italian Civil Code and the French Civil Code. Hence they leave a free way for such persons to most shameful and sacrilegious concubinages. But it is otherwise in the Austrian Civil Code, 63, and the Spanish Civil Code, 83. E.M.

What is the impediment of disparity of cult? If the cause of marriage is considered, marriage was instituted for the mutual help of life. Lest from this there should rather be danger to the spouses in religion and life, provision has been made for each danger by the impediment of disparity of cult and of crime, by keeping Catholics away from nuptials with non-Catholics, and the criminal spouse, after the spouse has died, away from nuptials with the partner in the crime.

Disparity of cult is one thing between a Catholic and a non-Catholic, and is called mixed marriage; another is between a Christian and an unbeliever. A non-Catholic, namely from a sect, whether heretical or schismatic, whether born and educated in it, or having defected from the Catholic faith and given his name to it. A non-Catholic; not a Catholic free-thinker; nor a Catholic Mason. As regards the marriages of Masons, cf. E.M. 976, 1029.

The first disparity of cult, between a Catholic and a non-Catholic, impedes marriage, but does not dirimently impede it. Benedict XIV, Const. Singulari nobis. It belongs only to the Holy See to permit mixed nuptials, or nuptials of mixed religion between Catholics and non-Catholics. Pius VII, Letter Vix nova, February 17, 1809, to the Bishops of France. It permits them only for a grave cause, provided that nothing is to be feared for the faith of the Catholic spouse, that this spouse procure according to his or her strength the conversion of the non-Catholic, and on this express condition, that both spouses promise that they will educate all children to be born in the Catholic Religion. Gregory XVI to the Archbishop of Freiburg, May 23, 1846. The exhibition of these cautions must be established with moral certainty, and, for removing scandal, must be notorious. If the heretical party, after dispensation has been obtained, afterwards refuses to acquiesce that the children be educated in the Catholic religion, the marriage is valid, because from this the nature of a merely impedient impediment is not changed. And the Catholic party is permitted to remain in such a marriage, lest greater harm come to the offspring.

But if a Catholic contracts mixed nuptials either without having obtained a dispensation, or without observing the aforesaid law of the dispensation, he is kept from the sacraments until he has promised the confessor that he will educate the children in the Catholic Religion, and repair the scandal given to the other faithful. Pius VI, Epistle to Cardinal de Frankenberg, July 23, 1782. After dispensation has been obtained with the usual clauses, the pastor can assist at this marriage, Holy Office, December 20, 1838, the banns being omitted, unless they seem necessary and opportune in the judgment of the Ordinary for detecting impediments, with mention omitted in them of the religion of those who are to contract nuptials. Sacred Congregation de Propaganda Fide, May 11, 1871. The celebration of this marriage must take place before the pastor and two witnesses according to the prescription of the Council of Trent, and now of the decree Ne temere, but outside the church and without the blessing of the pastor. It can nevertheless be celebrated in the sacristy. Holy Office, January 17, 1877; Monit. Eccles., vol. 12, p. 469. Hence it is clear that the priest cannot then wear stole and surplice. Yet, where graver evils would be present, it is committed to the judgment of the Bishops that, with the other necessary cautions observed, "they judge when the mentioned conditions concerning contracting these mixed nuptials outside the church and without the blessing of the pastor can by no means be fulfilled, and when, in entering these mixed marriages, the custom can be tolerated of employing the rite legitimately prescribed in the Diocesan Ritual for contracting marriages, always excluding, however, the celebration of Mass." Pius IX, Instruction, November 15, 1858. Collectanea S.C. de Propaganda Fide, nn. 908, 1429, 1430, 1434, 1444.

The pastor cannot assist at the marriage: 1. If, without dispensation having been obtained, mixed nuptials are contracted, although the law prescribes his assistance, unless the pastor intervenes as a civil magistrate. Holy Office, December 20, 1838. Nevertheless the Supreme Pontiffs are accustomed to permit only the material assistance of the pastor where necessity requires it, after the promise of each party concerning the offspring to be educated in Catholicism has first otherwise been altogether required. Thus Pius VII granted the faculty to pastors living in Russia and Germany of assisting, if they were compelled, at mixed marriages entered without dispensation having been obtained. The aforesaid assistance is permitted for avoiding greater evils, lest marriage be contracted invalidly, lest the parties go to a heretical minister, etc. Nevertheless the presence of the pastor does not prevent the spouses contracting in this way from sinning gravely. Gregory XVI, May 22, 1841.

2. If each spouse is unwilling to consent to the Catholic education of the offspring, but the heretical party absolutely requires that the offspring of his or her sex follow his or her religion. Holy Office, June 17, 1829. But in the Instruction which was added to the Letters of Gregory XVI to the Primate and Bishops of Hungary, April 20, 1841, these things are contained: "His Holiness declared that it can be tolerated that, whenever from the condition of times, places, and persons the marriage of a non-Catholic man with a Catholic woman, and vice versa, although the necessary cautions have been omitted, cannot be impeded without graver danger, and moreover it seems to be expedient for the utility of the Church and the common good if that marriage, although forbidden and illicit, be contracted before a Catholic pastor rather than before a non-Catholic minister, to whom the parties would easily have recourse, the same Catholic pastor, or another priest acting in his place, may be present at the marriage itself by merely material presence, with no ecclesiastical rite employed, just as if the parties were treating him only as a mere qualified or authorizable witness, as they say; namely in such a way that, after hearing the consent of each spouse, he may afterwards, by his office, enter the validly performed act in the book of marriages." In Roskovany, vol. 2, p. 818.

3. If after the marriage the spouses also contract in a Protestant church, by Protestant rite. Holy Office, April 21, 1847. If already before marriage they contracted before a heretical minister, the pastor cannot assist at the marriage unless the Catholic party, repentant of the act, is absolved and repairs the scandal.

The other disparity of cult, which is between a baptized person and an unbeliever, dirimently impedes marriage, not from written law, but from custom having the force of universal law. Therefore it binds all who are received into the Church, even if they are in those places in which the Christian Religion is first preached. Benedict XIV, Const. Singulari nobis, sec. 10; Sanchez, book 7, disp. 71; Schmalzgrueber, book 4, tit. 6, nn. 121-124. And it dirimently impedes marriage although a baptized man marries a catechumen woman, or a non-baptized man marries an apostate or heretical woman. Benedict XIV, Const. Singulari nobis, February 9, 1749.

The conditions to be observed in dispensations as regards marriages between Christians and unbelievers are found prescribed from several Instructions of the Sacred Congregation de Propaganda Fide as follows: 1. That cohabitation with the unbeliever bring either no insult to the Creator or danger of perversion. 2. That the offspring be instructed in the Christian religion. 3. That dispensation be granted only in places, understand province, vicariate, etc., not the village in which perhaps there would be many Christians, where there are more unbelievers than Christians. 4. That the dispensation be granted only for grave causes, so that rather dispensation should be granted in the impediments of consanguinity or affinity, if in this way marriages with unbelievers would be avoided. 5. Sometimes it is added that there be a probable hope concerning the conversion of the contracting unbeliever. Collectanea, cited, nn. 1261, 1263, 1270, 1301. This dispensation is granted with far greater difficulty with Jews.

But betrothals between a baptized person and one still a catechumen are valid, just as the betrothals of impubes are valid. For betrothals concern the future, and in the future marriage can subsist between them. Schmalzgrueber, book 4, tit. 6, nn. 130-131. But the form to be observed is that established in the decree Ne temere. Lugo, de Poenit., disp. 16, nn. 336, 343; St. Thomas, Suppl., q. 59, a. 1; E.M.

It seems that the faithful who are so separated from others that they can neither marry a Christian nor ask for a dispensation are to be excepted from this impediment. Holy Office, June 4, 1851; Collectanea S.C. de Propaganda Fide, n. 1275.

Doubtful baptism, whether by doubt of law or doubt of fact, in relation to entering or having entered marriage, is to be held as valid baptism. E.M. And the marriage is valid, either insofar as this case is not comprehended in the law by legitimate epikeia, or insofar as the Church supplies the defect and tacitly dispenses.

1016 bis. Note: "A dispensation from the impediment of disparity of cult is never granted unless all the conditions or cautions have been expressed." Holy Office, April 16, 1890. "1. Whether a dispensation from the impediment of disparity of cult, imparted by one having power from the Holy See, when the prescribed cautions were not required or were refused, must be held valid or not? And insofar as negatively: "2. Whether in these cases, namely when it is evidently established concerning a dispensation thus invalidly granted, the Ordinary himself can declare by himself the nullity of the marriage from this head, or whether it is necessary each time to have recourse to the Holy See for a definitive sentence? "R. To 1. The dispensation, imparted as set forth, is null. "To 2. Affirmatively to the first part; negatively to the second part." Holy Office, June 21, 1912.

From the decree Ne temere and from the Sacred Congregation of the Council, July 27, 1908, the consent of the contracting parties must be sought and received by the Ordinary or the Pastor, for the validity of marriage, even in mixed marriages. Nevertheless, "The prescription of the decree Ne temere, n. IV, sec. 3, concerning the consent of the nupturients to be required and received by the pastor for the validity of marriage, in mixed marriages in which the parties obstinately refuse to furnish the due cautions, is not hereafter to have place; but one must stand strictly by the preceding concessions and instructions of the Holy See, and especially of Pope Gregory XVI of happy memory, Apostolic Letter of April 30, 1841, to the Bishops of Hungary, concerning the matter: after word had been had with the Most Holy." Holy Office, June 21, 1912. Cf. n. 1016.

If there is question of a marriage between one Catholic party and another who has defected from the faith, or has been enrolled in a condemned sect, the Bishop will be able to permit the pastor to be passively present at the marriage as an authorizable witness, if the marriage can in no way be impeded, and if from the marriage there is no grave scandal or harm to be feared, provided that provision has been made for the Catholic education of all the offspring and that the danger of perversion for the Catholic party is absent, every ecclesiastical rite being excluded, and the celebration of Mass being altogether excluded, unless circumstances suggest otherwise. Thus from the Holy Office, February 21, 1883; April 23, 1873. But at present, unless there is place for the aforesaid exception, the consent must be sought by the pastor, as was just said, from the decree Ne temere.

What is the impediment of crime? Crime dirimently impeding marriage is threefold, namely: 1. adultery; 2. homicide of a spouse; 3. both together, provided that certain conditions concur, which we set forth below. This impediment is an impediment only of ecclesiastical law.

What is required for adultery alone? For incurring the impediment from this head it is required: 1. That the adultery be true, formal, consummated. True, that is, that at least one of the fornicators be joined by a marriage not merely putative, but legitimate and valid, even if perhaps not consummated. Formal, and indeed on the part of both, that is, that each know that one or the other is married. Therefore it suffices that someone knowingly approach a married woman, nor is it necessary that this married woman know that the one with whom she commits adultery is also married. Formal adultery is not present, even if only from culpable and gross ignorance the accomplice does not know that the other is married, provided that the ignorance was not affected. For malicious fraud is required for formal adultery. L. 44, ad Leg. Iul. de adult. Consummated, namely with perfect carnal copulation per se apt for generation intervening. In the external forum this is always presumed if the man inseminated within the vessel. But in the internal forum it will be difficult to define otherwise in the case; for the consummation of marriage is had through the mingling of seeds. St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 4, ad 2. But seed on the part of the woman is properly the ovum, which even without any sense of lust descends from the ovary into the uterus, almost every month. And this is proper insemination on the part of the woman. But that humor which in the act of copulation is usually secreted by the woman, but not always, is improperly seed; it is indeed very useful for fecundation, but not necessary. And from this there is had insemination improperly so called; the defect of which consequently does not prevent husband and wife from being able truly to become one flesh. Sanchez, book 7, disp. 79, n. 38; De Iustis, book 2, chap. 16, n. 38; Schmalzgrueber, book 4, tit. 7, n. 55; L. 1036.

2. That there be a promise of marriage made by one adulterer and accepted by the other at least by some sign, whether this promise precedes, accompanies, or follows the adultery; but if it precedes, it is required that it was not retracted before the adultery. Both the promise and the acceptance must be true, and therefore a feigned one does not suffice. L. 1039; Schmalzgrueber, book 4, tit. 7, nn. 22-24, who confirms this from C. Significasti 6, de Eo qui duxit, etc. Moreover a conditioned promise or acceptance does not suffice so long as the condition does not yet exist. It must be said otherwise if the added condition is fulfilled before the death of the spouse, and much more if before the adultery was perpetrated. Schmalzgrueber, l.c., nn. 25-28. But because injury is needed for incurring the impediment, it is therefore necessary to have knowledge of the marriage of both parties or at least of one or the other; and ignorance excuses provided that it was not gross or supine. C. 2, de Constit., in VI. Therefore both things, adultery and promise, must be understood formally. Hence adultery committed in ignorance does not avail, although afterwards a promise knowingly followed; nor adultery committed knowingly after a promise made in ignorance, so long as the promisor has not ratified it. This is the truer opinion. Sanchez, book 7, disp. 79, n. 34; Schmalzgrueber, book 4, tit. 7, n. 13, and others think otherwise, holding that, just as marriage, of which we must speak immediately, so also a promise entered in ignorance is tacitly confirmed by adultery afterwards knowingly committed. But the same reason does not hold, and just as a shameful promise is not easily presumed, so neither is a shameful ratification. Indeed, not even ratification suffices if it was made while the other was unaware. But more probably a renewed promise is not required. C. 6, 8, de Eo qui duxit.

Nevertheless, since probability is not lacking also for the opposite opinion, Schmalzgrueber, book 4, tit. 7, n. 30, in doubt whether a renewed promise has been added, the impediment can be judged merely probable, and therefore uncertain, which is the same as nothing. This is confirmed from the Praxis of the Apostolic Datary, n. 151, where it is said: "faith having been given to each other."

3. That both the promise of marriage and the adultery be made while the prior spouse is living, or while the same marriage remains. Namely, both the adultery and the promise of marriage must yield to the injury of one and the same spouse; this would not happen if Bertha, for example, while her first husband was living, promised marriage to Titius, but committed adultery with him when, after the death of the first husband, she had married Caius.

Adultery by Law dirimently impedes marriage, not only when a promise of future marriage is added, namely of contracting after the death of the spouse, for if marriage to be contracted while the other spouse was still living were promised, the reason for the impediment would cease, as Schmalzgrueber notes with the doctors, book 4, tit. 7, n. 9; but also if the adulterer, while the spouse is still living, contracts a marriage de praesenti with the adulteress, or rather truly and from the heart, not fictitiously, attempts it. This is clear from C. Cum haberet 5, de Eo qui duxit, etc. Nor does it matter whether they attempt to contract marriage before the pastor and witnesses, or clandestinely, and whether by civil marriage. Holy Office, December 22, 1880; Collectanea S.C. de Propaganda Fide, n. 1544. For in establishing this impediment, attention is not paid to the value of the marriage or of the betrothals, if only a promise intervenes, which are contracted invalidly, as is clear, but to the character of the crime. But if the accomplice did not know the legitimate marriage of the other when he or she entered marriage with that person; or, after learning of the other's marriage, commits adultery without retracting the marriage, then the impediment is introduced, because if after receiving knowledge he perseveres in the marriage and then adds adultery, he ratifies the marriage, which, joined with adultery, provokes no less to seizing upon the death of the other than if it had been contracted knowingly from the beginning. Or if he retracts the marriage before adultery, or also ceases from adultery, which previously had existed as material and not formal, as soon as he learns of the marriage of the other, then the reason for the impediment is absent. Schmalzgrueber, l.c., nn. 12, 15. C. Si quis vivente, c. 31, q. 1; C. 1-8, de Eo qui duxit, etc.; L. 1031 ff.

German Civil Code, 1312, 1328: marriage cannot be contracted by a spouse juridically separated by divorce because of adultery with the person with whom the adultery was committed. A marriage of this kind is null. E.M.

What is required for homicide alone? Three conditions are required so that from this there be an impediment: 1. Mutual conspiracy, by command, counsel, etc. Hence it does not suffice that a spouse kill his or her spouse if the person with whom he or she is about to enter marriage is ignorant of this action or contradicts it. Nor does it suffice that someone, hearing of the killing of the spouse, and much less by mere negligence, e.g., in caring for the sick person, approve and ratify it. Nor does consent alone seem to suffice, because the Laws require machination. C. Laudabilem 1, de Conv. infidel.; L. 1033.

2. Intention of marriage. Thus commonly, although it is not expressed in the Law. The reason is that the end of the law is lest someone, in hope of marriage, kill his own spouse or another's spouse. This intention is not required on the part of both, but more truly it is required that that intention, had by one, be manifested in some way to the other. But St. Alphonsus says, 1034, that it suffices that certain indications of this intention preceded, e.g., familiarities, love letters, etc. Therefore the impediment is not present if Titius, with Caia cooperating, kills his wife in order that he may enjoy Caia more freely, or marry her daughter.

3. Death really following from the physical or moral action of one or the other accomplice. C. 1, 3, 6, de Eo qui duxit; C. 1, de Conv. infid.; L. 1031 ff.; E.M.

What is required for both together? When the crimes of adultery and spouse-killing are found joined, mutual conspiracy for spouse-killing is not required, nor a promise of marriage, but these things suffice: 1. Adultery, such as was explained above. But it must precede the spouse-killing, although it is not necessary that it precede the machination of death. It must precede the spouse-killing; for if the death of the spouse precedes, adultery, which consists in copulation with the spouse of another, will no longer be able to have place. For it is required that there be adultery both material and formal with respect to the spouse killed. Schmalzgrueber, book 4, tit. 7, nn. 49, 51; Sanchez, book 7, disp. 18, n. 12.

2. Machination of death by one of the adulterers from intention of marriage. But it suffices that this intention be had by one. Gousset, 824; Carriere, 739. St. Alphonsus moreover requires, more probably, that this intention be manifested to the other.

3. Death following from the machination of one of the adulterers, in the same way as was said above concerning homicide alone. L. 1036.

4. Adultery and spouse-killing committed while the same marriage remains. This impediment, which because of the double crime united is called "both together," constitutes one impediment. On the contrary, if both adultery and homicide separately have their own proper conditions, as they have been set forth, they introduce a double impediment. C. 1, 3, 6, de Eo qui duxit; C. 5, c. 31, q. 1; L. 1031 ff.

Note: The impediment of crime is an impediment and a penalty. Insofar as it is an impediment, since it is an impediment of ecclesiastical law, it has no place among unbelievers, even if they afterwards come to the faith. Baptism wipes away all crimes. The same must be said, as regards adultery alone, if either one of the two things, namely adultery or only the promise, was made after baptism, Schmalzgrueber, book 4, tit. 7, n. 3; likewise, if the believer was not a participant in the killing which the unbeliever perpetrated; for then he does not incur the impediment from homicide alone. Or if he himself did not perpetrate the same things, but the unbeliever did, who is free from such an impediment, although he himself committed adultery, because adultery without homicide does not introduce the impediment "both together." Schmalzgrueber, ibid., n. 46. On the contrary, if a believer, having promised marriage, commits adultery with an unbeliever, and likewise if the believer was a participant in the machination or killing, or also perpetrated the killing with adultery, he incurs the impediment, by which consequently, although indirectly, the unbeliever too is bound, not otherwise than happens in the impediment of disparity of cult. Indeed this has place even if the believing wife did this for the reason that the unbelieving husband, after afterwards entering marriage with her, might be converted to the faith, as is expressly contained in C. Laudabilem 1, de Convers. infid., where the Pontiff gives this reason, that the Church does not wish to compensate such loss by such gain. Schmalzgrueber, l.c., nn. 46-48.

Insofar as it is a penalty, since it certainly is an extraordinary penalty, ignorance of the impediment more probably excuses from the impediment. Yet more commonly they deny this, "but with principles neither certain nor evident." D'Annibale, 3rd ed., part 3, n. 442; Gury-Ballerini, 788; Krimer, in Decretals, book 4, nn. 1011-1029; Sanchez, book 9, disp. 32, nn. 17, 21. Nevertheless it can not without reason be denied that this impediment was constituted, at least more principally, as a penalty for the crime; but rather because, by the public sense of morality, it is indecent and dishonorable that marriage be contracted between these criminal persons. Schmalzgrueber, book 4, tit. 7, n. 61.

This impediment can be multiple, and therefore then it must be set forth in the supplicatory petition for dispensation. It is multiple by reason of adultery, if each party is married; by reason of homicide, if the spouse is killed by each; by reason of both together, if the circumstances just commemorated concur together.

Benedict XIV, Epistle Aestas anni, 1756, says that it is established by no example that the Pontiff dispenses in the public impediment of both together. "If the impediment arises from adultery, with both or one or the other plotting, and is occult, the Major Penitentiary indeed has the faculty of dispensing, but rarely, and always only for the internal forum, with these things also observed: that a grave necessity occur, or a grave danger threaten, and that the case be proposed in the full Congregation or signature of the Penitentiary." But dispensation is regularly given from the crime of adultery alone, whether public or occult. Bishops also have the faculty of dispensing from the occult impediment of crime, provided it is without any machination, by force of the quinquennial faculties; and approved confessors by force of the faculties of the Sacred Penitentiary, which see in the respective Forms. E.M. "It not rarely happens that those who have obtained from the Apostolic See a dispensation from a ratified and non-consummated marriage, or a document of liberty because of the presumed death of a spouse, wish, in order to consult the salvation of their soul, to celebrate a new marriage in the face of the Church with those with whom, while the prior bond remained, they contracted a merely civil marriage, adultery having been committed. "Now since a dispensation from the impediment arising from adultery with attempted marriage, which stands in the way in the case, is for the most part not usually sought, Our Most Holy Lord Pope Pius X, lest marriages be exposed to the danger of nullity, after consultation with the Most Eminent Fathers of this Sacred Congregation concerning the discipline of the Sacraments, has established that in the future dispensation from the said impediment in the case is to be judged granted through the dispensation given by the Holy See either from a ratified and non-consummated marriage, or through the permission of transition to other nuptials. "But as regards the past, the same His Holiness has graciously deigned to revalidate and sanate marriages which perhaps were invalidly entered from this head. "And he ordered this to be promulgated by the present decree of the same Sacred Congregation, all things to the contrary notwithstanding." Sacred Congregation of the Sacraments, June 3, 1912.

What is the impediment of error, condition, and fury? As regards consent, there are impediments of marriage from error, condition, fury, fear, and abduction. Error dirimently impedes marriage by natural law if it is concerning the person, since it is a substantial error in the present matter, even if it is gross and concomitant, e.g., if Titius, falsely thinking that he is marrying Caia, says within himself: I would marry this woman even if she were not Caia. It is otherwise if he said: I wish to marry this woman, even if perhaps she is not Caia. Error concerning the qualities of the person, or concerning the nature and properties of marriage, provided that it is not concerning the thing itself of the contract, does not dirimently impede marriage. For it is very much in the interest of the public good that marriages not be dissolved because of any other error besides a substantial one, e.g., if someone contracts marriage with an error of fact, thinking that he is marrying a virgin, healthy, noble woman, and on the contrary marries a prostitute, a leprous woman, one born in the street, although he errs through the efficacious fraud of the spouse and certainly would not have contracted with such a woman; for this is an interpretative will, which, since it does not exist, can effect nothing. The same is to be said if someone errs with an error of law, thinking, for example, that marriage can be dissolved. And the same must be said if someone contracts while ignorant of the nature of the use of marriage. For for the validity of the contract of marriage it suffices to wish to contract as others contract, to wish to enter marriage as it was instituted by God and by Christ the Lord. A certain confused knowledge of marriage suffices, the general will of marriage prevailing and absorbing the aforesaid ignorance or error. Benedict XIV, de Syn., book 13, chap. 22, n. 7.

Three cases of accidental error must be excepted, which dirimently impedes marriage. The first case is when the quality is a condition under which consent is given; for it is manifest that when the condition is lacking, the conditioned thing, that is, consent, is also lacking.

The second case is when the quality is determinative of the person with whom one intends to contract; or when he does not know or determine the person with whom he contracts except from the indication and mark of that quality. Concerning this matter Pirhing, book 4, tit. 1, n. 163, says: "If by the quality in which there is error a certain and individual person is designated and conceived in the mind, who was previously unknown by sight, then error redounds into error of person." Likewise Sanchez, book 7, disp. 18, n. 38, says rather clearly: "To explain when error concerning a quality redounds into error of person dirimently impeding marriage, I say briefly that this happens when there is error concerning a quality which designates a certain person who was not previously known to the contracting party apart from that quality, namely except from that quality; and it is not established that the mind of the contracting party was to consent to the person present to him, whoever that person may be."

The third case is error concerning the servile condition of the spouse, which dirimently impedes marriage by ecclesiastical law, as is established from book 4 of the Decretals, tit. 9. This impediment no longer has place in Europe, not because the law ceases, but because the occasion is commonly lacking, unless perhaps in parts of the Turkish empire, or if some persons still bound to slavery should come from elsewhere into other parts of Europe. But error in this matter, according to the common opinion of doctors, dirimently impedes marriage even if it was gross. L. 1019; Schmalzgrueber, book 4, tit. 9, nn. 29-31.

But if the contracting party knows the servile condition of the other, or if a marriage contracted in ignorance is afterwards ratified after the error has become known, according to the opinion of all it is certain that the marriage is valid. But from the disposition of Canon Law, C. Si viduam 15, d. 34, one knowingly contracting with a female slave becomes irregular, L. 1018; Schmalzgrueber, l.c., nn. 15-18. And in the second case consent would have to be renewed before the pastor and witnesses, unless perhaps the nullity of the preceding contract were so altogether occult that it could not be proved; for then consent again emitted by the free party would suffice. Schmalzgrueber, book 4, tit. 3, n. 121, and tit. 9, n. 18. This impediment, moreover, as is clear, has force only as regards the marriage of a free person with a slave; for, and this must be carefully noted for places in which slavery still flourishes, marriages between slaves, beyond controversy, Schmalzgrueber, l.c., n. 7, are to be held valid, cf. C. 2, q. 2, c. 29, and St. Thomas, II-II, q. 104, a. 5, even if they are contracted without the consent of the master, C. Dignum 1, de Coniug. serv.; Schmalzgrueber, l.c., n. 10. Therefore just as a slave licitly contracts marriage even against the will of his master, so the master sins gravely against justice if he either positively impedes a slave from marriage, or treats him more harshly for this reason after he has contracted. Leo XIII, Letter, May 5, 1888; Sanchez, book 7, disp. 21, n. 15; Schmalzgrueber, l.c., nn. 13, 14. Italian Civil Code, 105; French Civil Code, 180; Austrian Civil Code, 57-59; German Civil Code, 1332-1334. "It must be said that madness either precedes marriage or follows it. If it follows, it in no way dirimently impedes it; but if it precedes, then either the madman has lucid intervals, or he does not. If he has them, then although, while he is in that interval, it is not safe for him to contract marriage, because he would not know how to educate offspring, nevertheless if he contracts, it is marriage. But if he does not have them, or if he contracts when he does not have them, then because there cannot be a contract where the use of reason is lacking, it will not be a true marriage." St. Thomas, Suppl., q. 58, a. 3. German Civil Code, 1325; L. 1009 ff.; St. Thomas, Suppl., q. 51, q. 52.

What is the impediment of force or fear? Light fear, even unjust fear, does not dirimently impede marriage. The reason is: 1. because light fear is not judged gravely and efficaciously to influence consent; 2. because from positive law only grave fear makes marriage invalid; 3. because otherwise innumerable marriages would become invalid, to the greatest detriment of society.

But grave fear certainly dirimently impedes marriage by ecclesiastical law. The following conditions are nevertheless required, namely that fear be struck: 1. by an external and free cause; 2. unjustly; 3. for the purpose of contracting marriage. C. 10, 14, 15, 18, 28, de Spons.; C. 2, de Eo qui duxit. By ecclesiastical law, or also by natural law? The matter is disputed among the doctors. Trent, sess. 24, chap. 1, 2, de R. M.; St. Thomas, Suppl., q. 47, a. 3, 4; Sanchez, book 4, disp. 12, n. 3; Lugo, de Iust. et Iur., disp. 22, n. 175 ff.; Schmalzgrueber, book 4, tit. 1, n. 399; L. 1050; Italian Civil Code, 105; French Civil Code, 180; Austrian Civil Code, 55; German Civil Code, 1335.

Whichever law you say this impediment dirimently impedes by, it does not admit dispensation; rather, it is necessary that the cause of fear be removed. C. Cum locum 1, de Spons. et matr. Therefore, while the cause of fear perseveres, marriage is not convalidated either by copulation or by cohabitation, for these are otherwise presumed to have been extorted by fear. For while fear lasts, just as marriage cannot be validly contracted, so neither can a marriage invalidly contracted be convalidated. It must be said otherwise if copulation is admitted entirely freely and with marital affection, as the doctors commonly hold after St. Thomas, IV Sent., d. 29, q. 1, a. 3, q. 2, ad 2, or also if cohabitation is spontaneous, which, C. Ad id 21, de Spons. et matr., is taken as ratification of consent. In this case, if an occult impediment existed, it will certainly not be necessary to renew consent again before the pastor, according to the general doctrine which Benedict XIV confirms from decrees of the Sacred Penitentiary issued by the authority of St. Pius V, from Declarations of the Sacred Congregation of the Council, and from the practice of the Sacred Rota, Instruction 87, n. 62. Sanchez, book 2, disp. 36, n. 2.

Nor indeed is it necessary that the other spouse, who did not know the impediment, be informed of it when the marriage must be convalidated by new consent. For although this perhaps more probably is required when the consent of each contracting party is invalid because of an impediment by which each is by law itself incapable of contracting, Sanchez, l.c.; L. 895, nevertheless the opposite seems to be said concerning the present case, when the matter concerns only a defect of consent, just as also happens when one or the other contracting party consents fictitiously. Sanchez explains the reason thus, de Matr., book 4, disp. 18, n. 2: "Secondly, it must be supposed that if, after a marriage extorted by fear, copulation spontaneously had with conjugal affection is added, the prior marriage is ratified and begins from then to be valid, if the other, who had consented without fear, perseveres in the original consent. And the reason is that, since the consents need not be simultaneous, and the consent of him who did not suffer fear was legitimate, only the spontaneous consent of him who had consented from fear was lacking for marriage, as I said, book 4, disp. 15, n. 2. But this consent is sufficiently expressed by copulation, etc., from C. Is qui 30, de Spons. Therefore when that has followed, the prior marriage is ratified." And in the same way a little later, ibid., n. 3, he reasons concerning consent expressed by long, mutual, and spontaneous cohabitation, confirming this from the explicit definition of the law in C. Ad id 21, de Spons. et matrim.

In doubt whether fear is to be judged grave, the common doctrine is that one must judge in favor of the validity of the marriage, both because the cause of marriage is favorable and because of reverence for the sacrament. Laymann, book 5, tract 10, part 2, chap. 5, n. 4. To this belongs that statement of Innocent III, C. Licet 47, de Test. et attest.: "It is more tolerable to leave some persons joined contrary to the statutes of men than to separate those legitimately joined contrary to the statutes of the Lord." Schmalzgrueber, book 4, tit. 1, n. 432. Sanchez, book 4, disp. 3.

But the disagreement of the doctors concerning the sufficiency of reverential fear is easily reconciled, if you consider that this fear also, according to the variety of circumstances, is deservedly judged now light, now grave. Thus with others Laymann, l.c., n. 3, who judges that one must reason similarly concerning importunate prayers, which according to the different circumstances of persons may be easy or very difficult to contradict, as Sanchez, book 4, disp. 7, n. 7, Koninck, Lessius, etc., also note.

There is also disagreement among the doctors whether grave fear unjustly inflicted, but not for extorting consent, invalidates marriage, although the common opinion affirms this. Cf. n. 944; Sanchez, book 4, disp. 12, n. 3; Lugo, de Iust. et Iur., disp. 22, n. 175; L. 1049.

When marriage was contracted from grave fear, one is not bound in the forum of conscience, speaking per se, to perfect it, and can withdraw, even against the will of the other. And this is valid also concerning the one who was free from fear, even if it was inflicted by him or by his fault. Thus Sanchez and others, and it is probable according to St. Alphonsus, 1057. Speaking per se, i.e., unless the harm inflicted could not be repaired except through marriage. L. 1045 ff.; E.M.

What is the impediment of abduction? Abduction is the violent carrying away of a woman from a safe place to another, where she is detained under the power of the abductor, for the sake of entering marriage. Abduction dirimently impedes marriage by ecclesiastical law between the abductor and the abducted woman. Trent, sess. 24, chap. 6, de R. M.

Three conditions are required for incurring this impediment, namely: 1. that the abducted woman be led away from place to place. Woman, whoever she may be. Also a betrothed woman? It must be affirmed, because the law does not distinguish. Others, however, deny it, because a betrothed woman can be compelled to nuptials, unless perhaps she has a just cause for withdrawing from the betrothals. Cf. Collectanea S.C. de Propaganda Fide, n. 1418. She can indeed be compelled to nuptials; nevertheless betrothals do not give a right to inflict force upon her. An abducted woman; the impediment is not incurred if a woman abducts a man, because Trent speaks only of a male abductor. Be led away; not if she is unwillingly retained in the place to which she had gone spontaneously, since strict interpretation is needed here. It is the same whether the abductor executes the abduction by himself or through others; likewise whether he keeps the abducted person in his power by himself and with himself, or through others and with others. Sacred Congregation of the Council, June 25, 1864, A.S.S., vol. 1, pp. 15-24. But the impediment is incurred by the one who abducts for himself, not by those who abduct for another, although these can incur other penalties decreed against abductors both by civil and by canon law. Schmalzgrueber, book 5, tit. 17, n. 26. From place to place; the impediment is not contracted if she is led from room to room in the same house, because thus she is not properly constituted under the power of the abductor.

2. That the woman be abducted only for the sake of marriage; therefore the impediment is not incurred if the woman is led away for another cause, e.g., for satisfying lust. For Trent intends nothing else except to favor the liberty of marriage. Nor is the impediment incurred if marriage is contracted between the abductor and the abducted woman after she has been freed from the power of the abductor. This appears clearly from the text of Trent. On the contrary, this impediment lasts as long as the abducted woman is in the power of the abductor, even if she consents freely.

3. That the abduction be made while the woman resists, or is altogether unwilling, force being inflicted or fear being struck. Hence the impediment is not had if the woman consents to the carrying away; for then there is not abduction but flight, although those under whose power she is are unwilling. And, on the contrary, the impediment is present if, with these persons consenting, she herself is led away unwillingly. Abduction by seduction, as it is called, by inducing a woman with flatteries or gifts to follow him, does not constitute the impediment, because no force and no fraud is employed against the one led away, nor is injury inflicted upon the parents. But if a woman, deceived by fraud, unknowingly comes into the power of the one contriving the abduction, abduction is still had and the marriage is dirimently impeded. Sacred Congregation of the Council, April 24, 1868; June 25 and August 27, 1864; A.S.S., vol. 1, p. 23; Riganti, de Cancell. Reg., 40, n. 79 ff. L. 1107 ff.; St. Thomas, II-II, q. 154, a. 7, ad 4; Schmalzgrueber, book 5, tit. 17, nn. 37-40; E.M.

Are betrothals valid when contracted while the abducted woman is under the power of the abductor? There are two probable opinions. The first opinion denies it, because betrothals require liberty, just as marriage itself does; for a penal law is extended where the same reason operates. The second opinion affirms it, and St. Alphonsus with La Croix, etc., calls this more probable. The reason for this opinion is that betrothals, since they are always rescindable, require less liberty than marriage. L. 1107.

What was clandestinity of marriage formerly, according to the Council of Trent? Besides the thing, the cause, and consent, in marriage its solemnities are to be considered, namely that extrinsic form of marriage by which marriage as a contract is validly effected, and by which the sacrament is entered holily. Hence another impediment of marriage arises, namely clandestinity. We set forth here first those things which had to be observed from the preceding law, both because they can still serve practice and because they serve for an adequate knowledge of canon law. Afterwards we will set forth those things which are to be observed under the present law now in force.

A clandestine marriage is called that which is contracted without the solemnity required by the Church, i.e., without the assistance of the proper pastor and at least two witnesses. This impediment is of ecclesiastical law alone, since it was constituted by Trent, sess. 24, chap. 1, de R. M.

Here the proper pastor is the pastor of domicile or quasi-domicile, Benedict XIV, Const. Paucis abhinc; Collectanea S.C. de Propaganda Fide, n. 1409, not likewise of origin, unless perhaps someone has a domicile there; and as regards wanderers, the pastor of the place in which they are when they contract, although only one of the spouses is a wanderer. L. 1089. If someone has domicile in two places, or domicile in one and quasi-domicile in another, he can contract before any of these. But the proper pastor is that of either the bridegroom or the bride in his own parish. Indeed, "the pastor of the man suffices even in the parish of the woman, because marriages are matters of voluntary jurisdiction, and because the Council expressed nothing concerning place, and because the Council seems to have wished the presence of the pastor and witnesses for removing only clandestinity, for which one pastor, whether of the man or of the woman, suffices." Sacred Congregation apud Fagnan, in C. Quod nobis, de Clandest. despons., n. 33; Barbosa, de Offic. parochi, part 2, chap. 21, n. 45; Benedict XIV, Notification 33, n. 5 ff.; Quaest. Can., 182; L. 1087. Pastor; the marriage is equally valid if it is contracted before the Bishop or his Vicar General, Benedict XIV, Quaest. Can., 182, or, while the See is vacant, before the Capitular Vicar. Cardinals also have the faculty of assisting at marriages, each in his own Title, and pontifical Legates in the provinces entrusted to them. For Cardinals in their Titles are Ordinaries and have episcopal jurisdiction; and likewise pontifical Legates, whether ordinary or extraordinary, whether a latere, whether merely sent, or even born, have ordinary jurisdiction in the provinces entrusted to them. Ferraris, v. Matrimonium, a. 3, nn. 12, 20, 45; v. Cardinales, a. 3, nn. 12, 20; v. Legatus, nn. 12, 45. Pastor; a pro-pastor also validly assists, or vicar, who from the Ordinary or from the pastor himself has absolute, full, and unrestricted power in the parish. Benedict XIV, de Syn., book 13, chap. 23, n. 1.

Since the pastor is present as a qualified, authorized witness, no power of order or jurisdiction is needed. Therefore he is licitly present even if he is only a cleric; and validly even if he is suspended, irregular, excommunicated, vitandus, or non-Catholic, schismatic, even if the Bishop has prohibited this to him. The same must be said of the Vicar General if, against the prohibition of the Bishop, either he himself assists at the marriage, or gives to some priest the faculty of assisting. The same pastor is validly present, although he is falsely pastor, if he has a colored title and by common error is reputed pastor; and more probably even if only common error is present, without a colored title. The pastor is validly present even in another's territory, even against the will of the pastor or Ordinary of that place, although he cannot solemnly bless the marriage. He can likewise delegate another, provided that he delegates a priest, not a deacon, and validly any priest whatever, even a vitandus. Not a deacon, unless perhaps by common error he is held as a priest. Sanchez, book 3, disp. 22, n. 61. General delegation also suffices, even tacit or extorted by fear, but not presumed, e.g., for exercising parochial duties. But a vice-curate also can delegate another, since he himself is delegated for the universality of causes. Ferraris, v. Matrimonium, a. 2, nn. 179-181.

It makes no difference if the pastor and witnesses are present by chance, fraud, or induced by force. For it suffices that they know what is being done, whether from words, if they are blind and recognize the voices of the contracting parties, or from signs, if they are deaf, or through an interpreter, if they are ignorant of the language. Therefore the marriage is valid even if the pastor pretends that he does not hear, stopping his ears with his fingers, that he does not see, closing his eyes, or that he does not understand, provided that in reality from antecedent and consequent acts he has perceived the consent of the parties; if, for example, he did not at all hear the voice of the bride or bridegroom, but saw the bridegroom holding the bride by the hand, Sacred Congregation of the Council, January 12, 1715, or handing her a ring, Sacred Congregation of the Council, November 28, 1671. For it suffices that all be morally present as witnesses, who must give testimony concerning the matter performed. Benedict XIV, de Syn., book 13, chap. 23; L. 899. For the validity of marriage any witnesses whatever suffice, whether men or women, even parents, nuns, unbelievers, whether adults or minors, provided they have the use of reason and are able to testify concerning the contracted marriage.

If marriage is contracted by proxy or by letters, the marriage is valid when the declaration of marriage is made by the proxy before the pastor and witnesses, or when the letters of each contracting party are read before the pastor and witnesses.

Domicile and quasi-domicile here are to be reckoned by Canon Law, not Civil Law, namely by the intention of dwelling in a place, i.e., in a parish, and not only in a diocese, perpetually or for the greater part of a year. Nor indeed is the fact itself of habitation for the aforesaid time needed, but as soon as one has come into that place, he acquires domicile or quasi-domicile and validly contracts.

But it was declared for the United States of America that habitation for the space of at least one month suffices, and inquiry need not be made concerning the intention of remaining in the place for the greater part of the year. Holy Office, May 6, 1886. This Declaration for the United States of North America, May 6, 1886, concerning sufficient residence of one month for the validity of marriage, without inquiry needing to be made concerning the intention of remaining there for the greater part of the year, was extended to the Archdiocese of Paris. Holy Office, May 20, 1905, A.S.S., vol. 38, p. 210. As regards students, young men, girls in colleges and monasteries, foundlings, and the sick in hospitals, if they are to remain in that place for the greater part of the year, the proper pastor of quasi-domicile is not the rector, confessor, or chaplain of the college, monastery, or hospital, but the pastor in whose parish the college, monastery, or hospital is situated. Likewise as regards servants, the proper pastor is the pastor in whose parish the masters whom they serve have their domicile, although perhaps in the same city or town the servants themselves have a house and domicile. Persons detained in prisons, whose case has not yet been concluded and for whom the prison is only a place of custody, must be joined in marriage by the pastor of their proper domicile or quasi-domicile. But if their case has been concluded, and they have been condemned perpetually or for a determined time, and the prison is a place of punishment, then their proper pastor is the one in whose parish the prison is situated. Benedict XIV, Notification 33, 88; Pirhing, book 3, tit. 28, § 1, n. 12; Ferraris, v. Moniales, a. 1, n. 36; Lugo, Responsa Moralia, book 1, disp. 35, 37; D'Annibale, 457.

Clandestine marriages are altogether invalid in all places where the Decree of the Council has been promulgated, and, in doubt, where at some time it was observed in the parish as the Decree of the Council. Sacred Congregation of the Council, January 18, 1663. Indeed Trent renders those contracting clandestinely incapable of henceforth contracting thus, i.e., without pastor and witnesses. Therefore those also contract invalidly there who, both spouses or only one of them, have domicile or quasi-domicile in places where Trent is not in force.

But they are not invalid in places where this promulgation, whether culpably or inculpably, was omitted; or where the Decree went into desuetude, although only one of the spouses has domicile or quasi-domicile there, while the other has domicile or quasi-domicile in a place where Trent is in force, because of the indivisibility of the contract. Benedict XIV, de Syn., book 6, chap. 6, n. 12; Clement XIII, 1762, to the Archbishop of Mechlin; Collectanea, cited, n. 1400. Therefore in these places the marriage called civil is ratified. In the same places the marriage is valid of those who have domicile or quasi-domicile in a place where Trent is in force, unless they came to that place in fraud, i.e., with the sole intention of contracting marriage without pastor and witnesses; but by no means if they also had first acquired domicile or quasi-domicile there; for then their marriage is valid. Sacred Congregation of the Council, September 5, 1626; Urban VIII, Brief to the Archbishop of Cologne, August 14, 1626; Benedict XIV, Const. Paucis abhinc annis, Notification 33. Indeed the more common opinion held that the marriage is also valid of those who, having domicile or quasi-domicile in a place where Trent is in force, come to another place where Trent is not in force, without the intention indeed of acquiring domicile or quasi-domicile, but at the same time without the intention of contracting clandestinely, if afterwards they contract clandestinely there. Nevertheless the decisions of the Sacred Congregation of the Council and of the Holy Office are now contrary to this, by which it has been declared that the Tridentine law is at once local and personal; and also because in the external forum fraud is presumed from the very fact. Cf. Sacred Congregation de Propaganda Fide, June 7, 1867, n. 1407; A.S.S., vol. 36, p. 222 ff.

Finally, the marriages are invalid of those who, having and retaining domicile where the Tridentine decree has not been promulgated, come into a place where it has been promulgated and contract there without any pastor or witnesses, or even before witnesses and the pastor of this place. For in order that they contract validly there before witnesses and pastor, it is necessary either to acquire domicile or quasi-domicile in that place, or to contract before the pastor of the prior retained domicile, or a priest delegated by him. Sanchez, book 3, § 13, nn. 27, 28, 35; Lugo, Responsa Moralia, book 1, disp. 36; Pontius, book 5, chap. 9, nn. 2, 7; Engel, book 4, tit. 3, n. 20, "I say third"; Barbosa, de Offic. Episc., part 2, alleg. 32, n. 153; Reiffenstuel, book 4, tit. 3, n. 123; Verricelli, tract de Apost. miss., tit. 15, q. 251; A.S.S., vol. 32, p. 419.

A marriage contracted in the house of the legation of that nation in which the Decree of Trent is not in force is null if the legation is found in the place of a nation in which the Decree of Trent is in force, and the Tridentine form is not observed in that marriage. Holy Office, August 1, 1900.

Clandestine marriages are everywhere illicit and prohibited under grave obligation. For the Church has always detested them, as Trent declares and Benedict XIV clearly shows, de Syn., book 8, chap. 12, n. 4. St. Thomas, Suppl., q. 45, a. 5.

The Tridentine Decree is acknowledged as received in Italy, Spain, Portugal, France, Holland, present-day Belgium, the Grand Duchy of Luxembourg, Austria strictly taken, Ireland, Bavaria, etc. But it was not received in England, Scotland, Sweden, Saxony, Denmark, Prussia strictly so called, and several federated Provinces of Switzerland, etc. Cf. Perrone, de Matr., book 2, sec. 1, chap. 6; Zitelli, Apparatus Iur. eccles., book 2, chap. 2, a. 7, list of places, etc.; Ferraris, Supplement, v. Matrim. clandest.; Collectanea S.C. de Propaganda Fide, nn. 1387, 1392, 1399, 1402, 1408, 1412.

Lastly Benedict XIV issued a Declaration on November 4, 1741, in which he established that clandestine marriages, entered or to be entered in Holland and in the federated Provinces of Belgium which had previously been subject to Spain, between heretics, or between one heretical party and the other Catholic, are valid. But he established nothing concerning marriages of Catholics among themselves. Indeed Benedict XIV expressly declared that that disposition in no way regards Catholics. "Let them know," he says, "that unless they have celebrated nuptials before a Catholic minister and two witnesses, they will never be true and legitimate spouses either before God or before the Church." Letter of September 17, 1746, to Simon, Missionary in Holland, § 3, Bullarium, vol. 3, Supplement, n. III; see also de Syn., book 6, chap. 7. L. 1078 ff.; Pontius, book 5; A.S.S., vol. 23, p. 751; E.M.

Note: The Benedictine Declaration cannot be extended to other provinces or dioceses without the judgment of the Holy See. Pius VII to the Vicar of the Diocese of Trier, April 23, 1817. For that Declaration was not made by reason of law, because those marriages were marriages of heretics and heretics are exempt from the Decree of Trent, but by a special reason of fact, from the condition of times and places, and because there was very great doubt in those provinces concerning the promulgation of the Tridentine Decree, and at the same time marriages of this kind were judged valid. And thus on the island of Malta it was declared that marriages of heretics among themselves are valid, but mixed marriages are not valid when the Tridentine form is not observed. Holy Office, June 3, 1892; otherwise than was declared for Holland and the federated Belgian provinces. Therefore by the aforesaid Declaration the question is in no way settled: whether marriages of heretics and mixed marriages entered without pastor and witnesses are valid or invalid in places in which Trent was promulgated, and in which, when heretics came together into a heretical society, heretical parishes came into the place of Catholic ones. For the question can only be about these; since where heretics live together with Catholics and do not form a separate society, whether they have a civil status, their own churches and ministers, or not, they are bound by the Tridentine form, and they must contract marriage before a Catholic pastor and witnesses where the Tridentine Decree is in force. But in those places in which heretics had already, at the time of the publication of the Tridentine decree, coalesced into a separate and self-subsisting community or quasi-parish, they were not comprehended by the Decree published in Catholic parishes. Holy Office, March 18, 1884; cf. Collectanea, cited, nn. 1388, 1399, 1404, 1424; E.M.

What is clandestinity according to present law? Clandestinity in marriage now is had when it is not celebrated in the face of the Church, that is, before the Ordinary of the place or the pastor and two witnesses, or before one delegated by either of them and two witnesses. It renders marriage illicit and invalid. The pastor and the local Ordinary validly assist at marriage only from the day when possession of his benefice has been obtained or office has begun, only within the limits of his territory, and if, invited and asked, without force and grave fear, he asks for and receives the consent of the contracting parties, whether his subjects or not subjects. But he assists licitly when the free state of the contracting parties is established, and when at least monthly residence is established; in the absence of this, the permission of the Ordinary or proper pastor of the contracting parties is needed, grave necessity being excluded. Otherwise, he does not make the stole fees his own and they are to be remitted to the proper pastor of the contracting parties. But the pastor and the local Ordinary can grant permission to another determined and certain priest that he assist at marriages within the limits of his territory. The pastor of the bride regularly assists at the marriage. But when the marriage has been celebrated, its celebration is to be noted in the book of marriages and of the baptized. If there is, in some region, common inability to have the local Ordinary, or pastor, or one delegated by either of them, and this condition of things has lasted for a month, marriage can be licitly and validly contracted before two witnesses.

When danger of death is imminent, where the pastor or local Ordinary or delegated priest cannot be had, marriage can be contracted validly and licitly before any priest and two witnesses. Clandestine marriages of heretics among themselves are valid. Mixed clandestine marriages, as also betrothals, are illicit and invalid. Decree Ne temere of the Sacred Congregation of the Council, August 2, 1907. From this the present law in force is constituted.

Monthly residence is to be attended to only for marriage, and not also quasi-domicile. But one validly contracts marriage who, in fraud of the law, betakes himself to a region from which the pastor or local Ordinary, or priest delegated by them, has been absent for a month.

As regards Catholics of the oriental rite, nothing was changed by the decree Ne temere as regards contracting marriage. Nevertheless the marriage contracted by a Catholic of the Latin rite with a Catholic of the oriental rite is not valid if the form established by the decree Ne temere has not been observed.

Non-Catholics, whether baptized or not baptized, even schismatics and heretics of the oriental rites, are nowhere bound to observe the Catholic form of betrothals and marriage.

Those who have passed over to a schismatic or heretical sect, or who, converted to the Catholic faith, afterwards defected from it, even in youthful or infant age, even in the German Empire, in order to contract marriage validly with a Catholic person, must employ the form established in the decree Ne temere, namely so that they must contract before the pastor and two witnesses.

As regards marriages of those who, born from non-Catholic or unbelieving parents, but baptized in the Catholic Church, afterwards from infant age grew up in heresy or unbelief, or without any religion, whenever they contract with a non-Catholic or unbelieving party, whether they are bound by the decree Ne temere, art. XI, § I, recourse must be had in individual cases. Holy Office, March 31, 1911.

Pastors who have territory cumulatively with another pastor or other pastors can assist at marriage in the cumulatively held territory. A pastor who, in territory assigned to other pastors, has some persons or families subject to him can validly assist at marriage, as regards his own subjects only, everywhere in the said territory. Chaplains or rectors of pious places of any kind exempt from parochial jurisdiction can validly assist at marriages, without delegation of the Ordinary or pastor, as regards the persons entrusted to them, yet in the place where they exercise jurisdiction, provided it is established that full parochial power was committed to them. As regards military chaplains or pastors who have absolutely no territory, nor cumulatively with another pastor, and who exercise jurisdiction directly over persons or families, so that they follow these persons wherever they betake themselves, nothing was changed by the decree Ne temere as regards assistance at marriages of their subjects.

Those dwelling in places of the East Indies in which a double jurisdiction is in force contract marriage validly and licitly before the personal pastor, but by no means before the pastor of the territory. As regards delegation, in relation to marriage, nothing was changed except the necessity of making it to a determined and certain priest, and restricted to the territory of the delegating party. Exempt regular churches, according to the tenor of the decree Ne temere, can and do have power to be considered as the territory of the pastor or Ordinary in whose territorial district they are situated, for the effect of assistance at marriage there. As regards the quality of witnesses, in relation to marriage, nothing was changed by the decree Ne temere.

Note: From the decree Ne temere an exception is had, unless for some particular place or region the Holy See has established otherwise. Hence in the whole German empire, clandestine marriages of heretics among themselves are valid, as in all other places, but mixed clandestine marriages, although they are also illicit, are nevertheless valid, as is drawn from the following Apostolic letters. Supplement I, E.M., n. 1026.

The Supreme Pontiff Pius X, by the Letters of January 18, 1906, Provida sapientique, declared, decreed, and commanded: "I. In the whole present-day Empire of Germany, the chapter Tametsi of the Council of Trent, although in many places it has not yet certainly been promulgated and introduced either by express publication or by legitimate observance, nevertheless from the feast day of Easter, that is, from the fifteenth day of April, of this year 1906, is to bind all Catholics, even those until now immune from observing the Tridentine form, so that among themselves they can celebrate a valid marriage in no other way than before the pastor and two or three witnesses. "II. Mixed marriages which are contracted by Catholics with heretics or schismatics are and remain gravely prohibited, unless, with a just and grave canonical cause intervening, the legitimate cautions having been fully and formally given on both sides, a dispensation by the Catholic party from the impediment of mixed religion has been duly obtained. These marriages indeed, although dispensation has been obtained, must altogether be celebrated in the face of the Church before the pastor and two or three witnesses, so that those gravely offend who contract before a non-Catholic minister or before only the civil magistrate or in any other clandestine way. Indeed, if any Catholics in celebrating these mixed marriages seek or admit the service of a non-Catholic minister, they perpetrate another delict and are subject to canonical censures. "Nevertheless, mixed marriages in any provinces and places whatever of the German Empire, even in those which according to decisions of the Roman Congregations had until now been subject to the invalidating force of the chapter Tametsi, already contracted without the Tridentine form being observed, or, which God avert, to be contracted in the future, provided that no other canonical impediment stands in the way, and no sentence of nullity because of the impediment of clandestinity had been legitimately pronounced before the feast day of Easter of this year, and the mutual consent of the spouses persevered up to the said day, We will that they be held as altogether valid, and this We expressly declare, define, and decree. "III. But so that a safe norm may be ready for Ecclesiastical judges, We declare, establish, and decree this same thing under the same conditions and restrictions concerning marriages of non-Catholics, whether heretics or schismatics, among themselves in the same regions, contracted until now or to be contracted in the future without the Tridentine form being observed; so that if one or both of the non-Catholic spouses is converted to the Catholic faith, or if in the ecclesiastical forum a controversy arises concerning the validity of the marriage of two non-Catholics connected with a question of the validity of a marriage contracted or to be contracted by some Catholic, those same marriages, other things being equal, are likewise to be held as altogether valid. "IV. Finally, so that this Our Decree may come to public knowledge, We command the Ordinaries of the German Empire to communicate it through diocesan journals and other more opportune ways before Easter day of the current year to the clergy and faithful people."

The exception introduced in Germany by the Constitution Provida, as regards marriage, extended to the kingdom of Hungary, and which is still in force even after the decree Ne temere concerning betrothals and marriage, has force only when both spouses were born in Germany or both were born in the kingdom of Hungary. Therefore one born in Germany with one born in the kingdom of Hungary cannot validly contract a mixed marriage, whether in Germany or in the kingdom of Hungary, without observing the form of the decree Ne temere.

Concerning the marriages of the Christian faithful of the Ruthenian rite in the United States of North America. "Art. XXVII. Marriages between Ruthenian and Latin Catholics are not prohibited; but a Latin husband is not to follow the rite of his Ruthenian wife, nor a Latin wife the rite of her Ruthenian husband. "Art. XXVIII. But if a Latin man has married a Ruthenian woman, it will be open to the woman to pass to the Latin rite, either in the act of marriage or afterwards during the marriage, without being able to revoke the choice once made while the husband is living. "Art. XXIX. When the marriage has been dissolved, a Ruthenian woman who had embraced the rite of her husband will have free power of resuming her own rite. "Art. XXX. To a Ruthenian wife who has preferred to remain in her own rite, nevertheless it will be lawful in fasts and feasts to follow her husband. "Art. XXXI. A Ruthenian man can, if he wishes, follow the rite of his Latin wife, and it will likewise be lawful for him in fasts and feasts to conform himself to the rite of his Latin wife. When the marriage has been dissolved, he will be able to remain in the Latin rite or to resume the Ruthenian rite. "Art. XXXII. A marriage between a Latin man and a Ruthenian woman is to be contracted in Latin before the Latin pastor; but between a Ruthenian man and a Latin woman it can be contracted either in Ruthenian before the Ruthenian pastor, or in Latin before the pastor of the wife. "Art. XXXIII. If each contracting party remains in his or her rite, it belongs to the priests of the respective rite to exercise the office of pastor toward them in the matters which are listed here, namely: in the administration of Easter communion, viaticum, and extreme unction, in assistance at the article of death, in the performing of funeral rites and in burial; except in a case of necessity, "Art. XXXIV. Those born in the United States of America from a Latin father and a Ruthenian mother are to be baptized in the Latin rite; for the offspring must altogether follow the rite of the father, if he is Latin. "Art. XXXV. But if the father is Ruthenian and the mother Latin, it will be free to the same father that the offspring be baptized either in the Ruthenian rite, or even in the Latin rite, if he consents to this in favor of the Latin wife. "Art. XXXVI. Infants belong to the jurisdiction of that pastor in whose rite they were legitimately baptized, since by baptism the profession of the Latin or Ruthenian rite received is made, so that those who were baptized in the Latin rite belong to the Latin rite; but those who were baptized in the Ruthenian rite are to be held among the Ruthenians. "The case is excepted when baptism in a foreign rite was conferred on them because of grave necessity, namely when they were near death, or when in the place in which the parents were staying at the time of birth the pastor of the proper rite was not present; for then they will belong to the pastor of the rite which the parents profess, according to the statutes established above." Pius X, June 14, 1907, Const. Ea semper.

Concerning the marriages of the Christian faithful of the Ruthenian rite in the Canadian Region. "Art. 34. Marriages between Ruthenian and Latin Catholics are not prohibited; but to avoid the inconveniences which usually arise in families from diversity of rites, the wife, during the marriage, can follow the rite of the husband, without a change of her native rite being introduced by this. "Art. 35. When the marriage has been dissolved, the woman can resume her own rite of origin. "Art. 36. Marriages both between faithful of mixed rite and between Ruthenian faithful must be contracted with the form of the decree Ne temere observed. "Art. 37. Nevertheless marriages of mixed rite are to be blessed in the rite of the husband and by his pastor. "Art. 38. Matrimonial dispensations in marriages of mixed rite, if any are to be given or sought, are to be given and sought from the bishop of the bride. "Art. 39. Those born in the Canadian region from parents of different rites are to be baptized in the rite of the father; for the offspring must altogether follow the rite of the father. "Art. 40. Baptism received in a foreign rite because of grave necessity, namely when the infant was near death or was born in a place in which at the time of birth the proper pastor of the father was not present, does not introduce a change of rite. "Art. 41. Infants belong to the jurisdiction of that pastor whose rite is that of their father." Sacred Congregation de Propaganda Fide, August 18, 1913.

Concerning the marriages of the Christian faithful of the Greek-Ruthenian rite in the United States of North America. "Art. 28. Marriages between Greek-Ruthenian and Latin Catholics are not prohibited; but to avoid the inconveniences which usually arise in families from diversity of rites, the wife, during the marriage, can follow the rite of the husband without a change of her native rite being introduced by this. "Art. 29. When the marriage has been dissolved, the woman can resume her own rite of origin. "Art. 30. Marriages both between Greek-Ruthenian faithful and between faithful of mixed rite must be contracted with the form of the decree Ne temere observed, and therefore are to be blessed in the rite of the woman by the woman's pastor. "Art. 31. Matrimonial dispensations in marriages of mixed rite, if any are to be given or sought, are to be given and sought from the bishop of the bride. "Art. 32. Those born in the region of the United States of North America from parents of different rites are to be baptized in the rite of the father; for offspring of each sex must altogether follow the rite of the father. "Art. 33. Baptism received in a foreign rite because of grave necessity, namely when the infant was near death or was born in a place in which at the time of birth the proper pastor of the father was not present, does not introduce a change of rite; and the priest who baptized must send testimony of the baptism to the proper pastor. "Art. 34. Infants belong to the jurisdiction of that pastor whose rite is that of their father, except those born from an illegitimate bed, who follow the rite of the mother." Sacred Congregation de Propaganda Fide, August 17, 1914. "1. Whether, and under what cautions, assent is to be given that the petitioners may be able to contract marriage in the face of the Church, although they cannot fulfill the civil rite? "2. What dispensation concerning the form of celebrating marriage is to be granted, when, by reason of civil law, the pastor cannot assist at the marriage?"

R. "The Catholic pastor, having first established for himself that no canonical impediment intervenes between the contracting parties... may permit them to enter marriage even without his assistance, but nevertheless in the presence of three, or at least two, witnesses of unimpaired faith; and, when marriage has been celebrated in this way, the spouses are bound, as soon as possible, to signify it to the pastor, who is to note it in the marriage register at least secretly, with indication of the day and the names of the witnesses who were present." Sacred Congregation de Propaganda Fide, March 24, 1909, Collectanea, n. 571. "The Ordinary, having first established for himself, even, if there is need, through the sworn attestation of the contracting parties, that no canonical impediment intervenes between them, may permit marriage in the case to be validly and licitly entered without the presence of the pastor, formal consent being emitted by the spouses before two witnesses; with the burden imposed, according to n. IX of the decree Ne temere, on the witnesses jointly and severally with the contracting parties, of seeing to it that the marriage entered be signified as soon as possible to the pastor, who is to note it in the book of marriages at least secretly, with indication of the day and the names of the witnesses who were present. Moreover, the same Ordinary is not to omit exhorting the nupturients to approach the sacrament of Confession and the Most Holy Eucharist with the due dispositions before the celebration of marriage, and moreover he is to see that the same contracting parties bind themselves to fulfill the civil formalities as soon as this can be done; the document of this obligation is to be preserved in the Episcopal Curia." Sacred Congregation of the Sacraments, November 26, 1909.

From the preceding particular decisions it is clear that the faculty was made, in the cases set forth, by the Sacred Congregation itself; and consequently when a similar case of impossibility of civil marriage occurs, recourse must be had to the Sacred Congregation of the Sacraments. Cf. Second Supplement to the Enchiridion Morale, n. 1049, p. 103.

Are spouses who, in the absence of the pastor, contracted clandestinely bound to receive the blessing when opportunity is given? They are not indeed bound, but they are to be exhorted to this. But priests must declare to the spouses that a blessing of this kind in no way pertains to the validity of marriage. Holy Office, July 6, 1817; January 15, 1874; Collectanea S.C. de Propaganda Fide, n. 1394; A.S.S., vol. 26, p. 254 ff.

Is it lawful to contract marriage with a doubtful impediment? A twofold doubt must be distinguished: doubt of fact and doubt of law. Doubt of fact is had when the doubt concerns a particular fact from which an impediment arises, e.g., if there is doubt concerning the very fact of adoption, the office of sponsor, carnal copulation, etc. Doubt of law is had when the impediment which arises from such or such a fact, otherwise certain, is doubtful; e.g., imperfect adoption is established, the office of sponsor exercised in private baptism is established, but whether an impediment arises from this is disputed among the doctors.

If the doubt is of law, it is lawful to contract marriage with an impediment doubtful by ecclesiastical law. The reason is that, in the case of doubt of law, if perhaps the impediment were actually present, the Church is judged to supply the defect of the contract invalid by canon law, just as she supplies the defect of jurisdiction whenever doctors commonly hold that she supplies jurisdiction in the sacrament of penance when doubt concerning it stands. Now the opinion teaching that the Church supplies the defect also in the present case of a doubtful impediment has generally been received as probable by innumerable doctors who favor it. But in a case of true doubt of fact, namely insoluble doubt, possession indeed stands for liberty. Nevertheless, in doubt of fact, it is more commonly not admitted that it is then lawful to contract without dispensation, namely lest the sacrament be exposed to the danger of nullity, and because of the danger of fornication, even if only material; and because the doctors more commonly hold this, the Church is not then judged to supply. La Croix, 534, 535; L. 901, 902.

But if, in doubt of law or fact, there is question of an impediment of natural and divine law, namely ligamen, kinship, impotence: in the first case, of doubt concerning ligamen, or a preexisting marriage, whether it had been validly contracted, whether the spouse had truly died, it is not lawful to enter another marriage unless it is morally certain concerning the invalidity of the prior marriage or concerning its dissolution. The reason is that, according to the various cases, either there is a certain acquired right of a third party, whom it is not lawful to despoil because of mere doubt, or certainly the matter of itself is liable to grave public scandal. C. Dominus 2, de Secund. nupt.; C. In praesentia, de Sponsal. In the other case, of kinship, it likewise is not lawful because of public scandal, since it publicly brings scandal perhaps to be mingled with a daughter or sister; and certainly the danger is present of greater public scandal if afterwards she is certainly discovered to be a daughter or sister. In the third case, of impotence, it is lawful to contract marriage, because it would be most grave to deprive someone of marriage because of doubt, and he possesses a certain right to it, unless impotence is proved; or certainly the presumption favors him, that he is naturally potent. "Nevertheless," says St. Alphonsus, 1102, "before marriage he ought to warn the spouse concerning such a doubt. Moreover, circumstances and experiences set aside, everyone is presumed capable, even if he has lived most chastely." L. 1102, 902.

These things are said speaking per se; "for when a most grave cause urges, marriage can be contracted, provided that the declaration of the Supreme Pontiff is added, as the sole interpreter of the divine law." L. 902. "Moreover they probably say... that in doubtful impediments the Bishop can well dispense. And the doctors very commonly say the same, speaking generally, concerning all cases or impediments reserved to the Pontiff, when it is doubted whether they need dispensation.... The reason is that, on the one hand, although dispensation from impediments of this kind is reserved to the Pope, nevertheless since reservation is odious, it must be interpreted strictly and restricted only to certain cases...; and also because, since in cases which frequently occur an inferior can dispense in the law of a superior, the Bishop will well be able to dispense in doubtful impediments, because in them it frequently happens that there is doubt concerning the need of dispensation." L. 902. But these things are to be understood concerning cases in which the Supreme Pontiff is accustomed to dispense; by no means concerning others. Zitelli, de Dispensationibus Matr., chap. 2, § 1, par. Secundam, Note.

Is it lawful for spouses to use marriage if, after nuptials have been entered, doubt concerning some impediment arises? R. Negatively, until a sufficient inquiry concerning the truth has been made. If, however, only one doubts, although he cannot ask the debt, he must nevertheless render it to the other asking in good faith, lest he rashly deprive him or her of a right which he or she possesses. Affirmatively, if, after serious diligence has been applied to discover the truth, doubt still remains, because in doubt the condition of the possessor is better; in doubt one must stand for the validity of the act; in a favorable cause, as marriage is, one must incline in its favor. But if there is question of the doubtful marriage of unbelievers, one of whom is converted to the faith, in favor of the faith the marriage is held as null, and he will be able to marry anyone, provided she is baptized. C. Inquisitioni 44, de Sent. exc.; C. Dominus 2, de Secund. nupt.; L. 903-908, 1102; De Iustis, de Dispens. Matrim., book 1, chap. 6, n. 456 ff.; Kenrick, tract 21, nn. 54, 55, 56; E.M.

1032 bis. Is it lawful for spouses to use marriage if they enter nuptials with doubt concerning some impediment? R. Negatively, as in the preceding question, until a sufficient inquiry concerning the truth has been made. Affirmatively, with sufficient probability, if the doubt remains after diligence has been applied. The reason is that, although the one doubting cannot use the principle of possession, he can nevertheless use other principles: In doubt, one must stand for the validity of the act, unless a contrary presumption stands in the way; In doubt, judgment is to be given for marriage, unless danger of public scandal is present. L. 903 ff.

Is a marriage contracted with a supposed but non-existing impediment valid? If the contracting party is not altogether certain concerning the impediment, but in some way doubts concerning it, the marriage is valid. Thus commonly with La Croix, 525. The reason is that he contracts at least conditionally, namely, insofar as I can, although he does not reflect upon that condition; therefore, when the impediment does not exist, consent is already absolute.

If he contracts with certainty of an impediment, which he thinks little of, so that he determines to live in concubinage, it is certain that the marriage is invalid. The reason is that then the will of contracting marriage is not predominant. If indeed he contracts with certainty of an impediment, but grieving over the impediment and not daring to disclose it lest the marriage be impeded, or lest he be defamed, or from some inadvertence, or with some doubt such as is accustomed to be mixed with supposed certainty, it is controverted. More probably the marriage is valid because of the predominant will of contracting it. Thus La Croix, ibid. Nevertheless, for caution in practice he would have to be induced to renew consent. Sanchez, book 2, disp. 33; Pontius, book 4, chap. 23; cf. vol. 1, n. 9.

What must be done if, after marriage has been contracted, it is established with certainty concerning an impediment? If the impediment is public, separation must be made to avoid scandal. Cf. L. 111. If it is occult, and the spouses are in good faith, they are regularly to be left in it, especially if danger of separation or fornication would be present, by reason of scandal, which ordinarily is not absent. C. Quia circa 6, de Consang.; Benedict XIV, Notification 87; Sanchez, book 2, disp. 38. If it is occult and the spouses do not ignore it, either a dispensation must be sought at once, and in the meantime they can neither ask nor render the debt, C. Consultationi 4, de Frig., or they must be altogether separated even as regards cohabitation, by office of the judge, if scandals would otherwise arise, C. Porro 3, de Divort., unless they prefer to cohabit as brother and sister, C. 4 cited, de Frig. et Malefic., with every danger of incontinence removed, which is not without difficulty. But they cannot enter other nuptials except after a legitimate sentence of the judge, which never passes into res judicata. Benedict XIV, Const. Dei miseratione. If only one or the other knows the impediment, he or she can neither ask nor render, C. Dominus 2, de Secund. nupt.; and either a dispensation must be sought at once, or separation must be made even as regards habitation. E.M.

The manner to be observed in judgments concerning the validity of marriage is prescribed by Benedict XIV, Const. Dei miseratione, November 3, 1741. A defender of the marriage must be designated by the Bishop, who, under oath, should endeavor to execute his office, strenuously defending all reasons which favor it. But if the Bishop, after the examination has been instituted, judges that the marriage is valid, and appeal has not been made to a higher judge, the sentence will obtain force. But if he has held it invalid, the defender must appeal to the superior, so that the matter be subjected to a repeated judgment. But when two concordant judgments have been issued, it will be lawful to pass to new vows, although it is always lawful to recall the matter to judgment if new reasons are available; for it never passes into a definitive matter. Moreover, in instituting the process, the Instruction of the Sacred Congregation of the Council, August 22, 1840, and the Instruction of the Sacred Congregation de Propaganda Fide, 1883, must also be observed. Collectanea, 2nd ed., 1907, n. 1587.

The tribunal in matrimonial causes is constituted of the judge, the chancellor, and the defender of the bond. Besides the plaintiff and defendant, there are witnesses of the seventh hand, indicated by husband and wife, and they are seven persons joined to them by blood or affinity, if they can be had; or otherwise seven neighbors of good reputation who can testify, seven on the part of the man and seven on the part of the woman. Others, however, are not excluded who know the matter and are worthy of faith. "When there is question of the impediment of disparity of cult and it is evidently established that one party is baptized and the other was not baptized; when there is question of the impediment of ligamen and it is certain that the first spouse is legitimate and still living; finally, when there is question of consanguinity and affinity from licit copulation, or also of spiritual kinship, or of the impediment of clandestinity in places where the Tridentine Decree Tametsi has been published or has long been observed as such, provided that from a certain and authentic document, or in its absence from certain arguments, it is evidently established concerning the existence of impediments of this kind, not dispensed by the authority of the Church, in these cases, the solemnities required in the Apostolic Constitution Dei miseratione being omitted, the marriage can be declared null by the Ordinary, yet with the intervention of the defender of the matrimonial bond, without need of a second sentence." Holy Office, June 5, 1889.