Case III: Power of the State to Make Diriment Impediments

A man named John, married a woman named Dora. Both were unbaptized at the time of their marriage. Besides, they were first cousins, and their marriage was against the law of the State where it took place. The laws of that State declare the marriages of first cousins null and void. In the course of time John and Dora separated and John took up with a Catholic woman whom he promised to marry as soon as he procured a divorce from Dora. The divorce has since been granted and the Catholic woman now desires to be married to John by a Catholic priest. Would it be lawful for a priest to marry them?

Answer.—The first question which this case raises, is: Were John and Dora validly married before God, although the State declared their marriage null and void, ab initio, because they were first cousins? In other words, have the civil authorities power to make diriment impediments which will nullify, in foro conscientiae, marriages of the unbaptized? This is the first question that must be decided, before there can be any question of John marrying anybody, until Dora dies.

The Catholic Church teaches that the State has no jurisdiction over the marriage of the baptized, quoad vinculum conjugale. The marriage contract of the baptized is a Sacrament, and as such has been committed by Christ to the care of His Church. Only the Church can legislate validly concerning the marriage bond of baptized persons.

The State may make laws affecting the civil effects of marriage in the case of baptized persons. The State can create civil disabilities to be incurred by baptized persons for the non-observance of certain legal formalities in contracting marriage. But the State has no power whatsoever over the marriage bond, conjugale vinculum, of baptized persons. Only the Church can make laws that affect the marriage bond, or vinculum, of the baptized. This has always been the teaching of the Catholic Church.

But now the question arises, by what laws are the marriages of the unbaptized to be governed? For it is just as important that the marriages of the unbaptized should be governed by law, as it is that the marriages of the baptized should be so governed. Now the Church has no jurisdiction over the unbaptized. "For what have I to do with judging those who are outside?" says St. Paul (I. Cor. v, 12). Of course the marriages of unbaptized, as well as the marriages of the baptized, are subject to the divine and the natural laws. But if the divine and the natural laws are not adequate for the regulating and controlling of marriage among baptized persons, how can they suffice for regulating and controlling the marriages of the unbaptized. The Church, herself, acknowledges the insufficiency of the divine and natural law in the matter of marriage between baptized persons, by creating many diriment impediments over and above those arising from the divine and natural law. And in so doing the Church acts wisely and for the best interests of human society. It is of the highest importance to society, for instance, that certain marriages should be declared not only unlawful, but also null and void from their inception. Such are, for instance, marriages without any legal or public formalities, marriages between very near blood relations, marriages between children, marriages procured through grave threats and fear. Such marriages, as a rule, are very harmful to society and are rightly prohibited under pain of being null and void. The impediments placed in the way of such marriages are not found either in the divine or natural law. They are the creation of the Church, for the protection of society. And it must be admitted that the Church in making them consulted the gravest interests of human society, because they are absolutely necessary for its welfare.

But now, we ask, is it not equally necessary that the marriages of the unbaptized should be controlled in the same manner for the same good ends? Is it not equally harmful to society for near blood relations to intermarry, whether they be baptized or unbaptized? Is it not equally harmful to society for children to marry or for public formalities to be omitted, whether the parties be baptized or unbaptized? And more especially in our own time, when the number of the unbaptized is increasing every day. But what authority can control the marriages of the unbaptized? Certainly not the Catholic Church. She has always disclaimed any jurisdiction over the unbaptized. If, therefore, the civil State has no jurisdiction, quoad vinculum conjugate, over the marriages of the unbaptized, there is no authority on earth that has jurisdiction over them. But to admit this would be equivalent to admitting that almighty God had not made sufficient provision for the good and adequate government of society. As this cannot be admitted, we are forced to the conclusion that the civil authorities have received from almighty God ample jurisdiction to regulate and control the marriages of the unbaptized, quoad vinculum, just as the Catholic Church has received adequate jurisdiction in the case of the baptized. The exercise of this power by the State must not be in contravention of the divine or natural law, nor against the dictates of reason.

This is one of the reasons why a great many modern theologians and canonists concede to the State the power to make diriment impediments nullifying, in foro conscientiae, the marriages of the unbaptized; the necessity on the one hand, of controlling and regulating the marriages of the unbaptized for the protection of society, by more ample legislation than is contained in the divine and natural law, and the absence, on the other hand, of any authority competent to make such legislation, unless it be conceded that the civil State be such competent authority.

Among the theologians who take this view of the matter are St. Thomas, Lessius, Schmalzgruber, Gasparri, D'Annibale, Cavagnis, Ballerini, Konings, Lehmkuhl and a host of others. Thus, for instance, Cardinal Gasparri considers this opinion not only very probable, but even certain: "We hold this opinion to be more probable, indeed certain, especially by the authority of the sacred Roman congregations" (de Matr. I, 282).

The constant and uniform practice of the Congregation of the Council, as well as of the Propaganda Fide, in deciding marriage cases among the peoples of the Far East, has always proceeded on the assumption that the State possesses legitimate authority to make diriment impediments in the case of marriage of its unbaptized citizens. In 1854 the following dubium was proposed to the Congregation of the Council by the Vicar Apostolic of Yun-nan in China: It often happens in these parts, says the Vicar, that a younger brother marries the widow of his older brother, deceased, and afterwards becomes a Catholic. It is very difficult to separate them, both on account of the children born to them and the danger of turning them away from the faith. Yet such marriages seem to be invalid, because they are forbidden under severe penalties by the civil law, even under pain of death. Now, after their baptism, will it not suffice, for the revalidation of such marriages, that the parties to them renew their consent?

To this the Congregation of the Council answered, September 20, 1854, as follows:

“After a prior dispensation from disparity of worship and from the first degree of affinity by means of the faculties which the missionaries enjoy, the consent must be renewed.”

This answer supposes that the civil impediment, forbidding such marriages, did, in fact, render the marriage, from its inception, null and void.

The Propaganda, in 1631, sent instructions to the missionaries in the Far East concerning polygamist converts. Any polygamist who, with all his wives, shall be converted and baptized, must put away all his wives except the first one, who alone is the true wife, if in that marriage no impediment of natural law or of positive law established by their ruler intervened.”

It may be said, therefore, that it is practically certain, as Cardinal Gasparri maintains, that the State does enjoy the power to make diriment impediments, nullifying in conscience the marriage of the unbaptized, provided such impediments are not against the divine or natural laws and are reasonable for the promotion of the public welfare.

The second question raised by this case is: Did the Catholic woman incur the impedimentum criminis by agreeing to cohabit with John, under a promise of marriage, when she knew that John had a wife living? She did not. In the first place, it is practically certain that John did not have a wife living, since his marriage to Dora was rendered invalid by the civil law. But suppose that John’s marriage to Dora is doubtful. Even in that case it is doubtful whether one incurs the impedimentum criminis if one is ignorant of its existence. This impediment differs from all other ecclesiastical impediments in that ignorance probably excuses from it, while ignorance does not save one from incurring the others. It is very probable that the Church intends this particular impediment in the nature of a punishment, poenae vindicativae extraordinariae. Ignorance, however, always saves one from incurring extraordinary penalties. This is the view of a great many theologians and canonists.

A dispensation, however, super impedimento criminis adulterii, might be procured, ad cautelam; and, of course, a dispensation from the diriment impediment disparitatis cultus.