Case XCVII: Cessation of Impediments

Case.—Antonius marries a certain Sempronia, who before contracting this marriage had been sponsor at the baptism of Bertha, the illegitimate child of her friend Veronica. As the father of Bertha, Veronica had named one Titus, but in reality it was Antonius, so that between him and Sempronia there existed the impediment ex cognatione spirituali (inter levantem levataeque patrem).^* For some time the two had lived in putative wedlock when Sempronia got knowledge of the real relation of Antonius and Bertha. Deeply chagrined but without suspicion of her invalid marriage, she told her trouble in confession to a missionary. She could not reproach her husband, she said, without bringing upon herself serious quarrels and other bad consequences. The confessor, although he is certain about the invalidity of the marriage, believes, from motives of pastoral prudence, that he should not enlighten Sempronia; for, on the one hand, he is obliged to leave town within an hour’s time, and therefore cannot possibly conduct dispensation proceedings himself, on the other hand Sempronia, for the reasons given, would not be in a position to tell her husband of the invalidity of their marriage. Supported by Lehmkuhl (II. 11, n. 1054 and 1055), Göpfert (III., 6, n. 229 and 271) and Noldin, (de usu matrimonii, 11, n. 97) in the probable opinion that in casu gravissimi incommodi an impedimentum juris mere ecclesiastici ceases, he induces the penitent in a prudent way to a renewal of marriage consent, and absolves her with the encouragement: “Strive as much as possible to keep up a good understanding with your husband!”

^* Canon 768 of the new Code of Canon Law abolishes the relationship of the sponsors to the parents of the baptized.

Question.—Quid ad casum?

Solution.—The case is a very evident example of how occasionally the practical application of moral principles may and must soften the strict directions of Canon Law. A Canonist who would believe in carrying his principles to the last consequences, would be displeased at the missionary’s action, whilst a Moralist might deal with him more leniently. The missionary relies upon Lehmkuhl, Göpfert and Noldin for his chosen procedure. Both the latter, however, refer to Lehmkuhl in this matter, so that really Lehmkuhl is the only authority holding this view. Almost all Moralists and Canonists treat this question: though most of them only in the so-called casus perplexus, when, namely, a diriment impediment to marriage is discovered immediately before the marriage ceremony, and there is no time to obtain the requisite dispensation. Lehmkuhl is probably the first one to apply this solution of the casus perplexus also to the convalidatio matrimonii jam contracti. At least I know of no other author who so extends it. Noldin, Göpfert, Wernz, Ballerini-Palmieri, who hold the same opinion, refer to Lehmkuhl and mention no other authority. Feije (De impedimentis et dispensationibus matrimonialibus n. 646), however, who treats very thoroughly this power of dispensation, says: “The reasons adduced ought much more to prevail for an impediment discovered after the marriage was contracted and unknown at the time of its celebration; nevertheless, as all admit, it does not cease.” Since therefore Lehmkuhl appears to lead in this matter, it will repay us to repeat here his views on the subject, as they are found in the eleventh edition.

“What is a confessor to do if he lacks the faculty of dispensing from a diriment impediment to marriage arising from ecclesiastical law and it cannot now be obtained?

Answer 1. If the penitent is in good faith concerning the validity of the marriage, it is generally expedient to leave him in good faith, but under another pretext to move him to return after a certain time to confession with that same confessor; meanwhile the confessor should seek the faculty of dispensing, so that when the penitent returns he may explain the whole matter to him and immediately make him capable of contracting a true marriage.” In this probably all theologians agree. In practice it will be best to obtain at once the sanatio in radice because then no difficulties can arise concerning a renewal of the consent.

R. 2. “If the penitent knows of the nullity of the marriage, it is not impossible to avoid the marital debt under some pretext, by a journey, and so forth, although this is joined with difficulty: it must certainly be done.” Since this solution often appears impossible Lehmkuhl continues:

R. 3. “If neither can a dispensation be obtained so quickly nor can the marital debt be avoided without an urgent danger of a most grave evil, such as defamation, scandal, and so forth, the invalidating ecclesiastical law seems to cease, so that the putative spouses now become capable of effecting a valid marriage... although the obligation remains of recurring immediately to the lawful superior, both so that a more certain dispensation may be made as a precaution and so that a just penalty may be accepted for the crime committed and obedience may be rendered to the superior’s command...”

But that I may briefly give the reason for this answer—which perhaps seems rather indulgent to the reader—I am moved by the authority of St. Alphonsus. St. Alphonsus and the early authors, however, speak merely of the casus perplexus, as already remarked. Lehmkuhl then continues: “But to set forth my own opinion: if in such a case before marriage the law probably ceases, why should we not say the same in the other case after a marriage has been invalidly contracted, where a similar, indeed greater, necessity and graver harm threaten?’”’ It is of interest to note how the distinguished Jesuit Wernz expresses himself on this view in his great work Jus Decretalium (IV. n. 619, nota 87) “Certainly this teaching of approved authors, by which a confessor in these straits can declare that the impediment ceases, but with a certain burden, at least as a matter of fittingness under the law, of recurring after the marriage has been contracted to the Ordinary or the Sacred Penitentiary so that a dispensation may be obtained as a precaution and entrusted for execution, is established with difficulty by intrinsic reasons.”

It would indeed be difficult to give intrinsic, valid reasons for this opinion. Yet it has been attempted and in two different ways. First of all, many authorities, for instance Thomas Sanchez, who quotes more than twenty authors in support of his opinion, claims that the bishop, and also the priests delegated by him, can in cases of necessity set aside obstacles to marriage by dispensation, as in such a case a silent delegation of the Pope is present. The Pope, thus Sanchez holds, would in such a case certainly delegate his powers of dispensation to the bishop and priests, as otherwise great scandal and detriment would arise for the Church. In these days nearly all bishops possess in their Quinquennal faculties far-reaching, positive powers of dispensation, even in regard to diriment impediments; so that hardly a case may happen for which they could not grant the needed dispensation. In some dioceses the bishop permanently delegates this power to confessors for cases of necessity. A similar faculty, though only pro matrimonio jam contracto, is granted to all confessors in the so-called Pagella S. Poenitentiariae. Since this Pagella, which includes other most practical faculties, is readily given, all missionaries at least should secure it. It would enable them to solve easily many difficulties. If power of dispensation is expressly granted to bishop or priests, then of course there is no difficulty. Whether, however, every confessor has in the case of need, to avoid scandal and harm, the power to dispense eo ipso from the canonical impediments, as Thomas Sanchez opines, is very problematical. I am unaware of any direct proof to support such view and probably there is none. For this reason other authorities, as for instance St. Alphonsus, teach that pastors and confessors cannot actually dispense in such cases of need, because this particular power is granted them neither tacite nor even in most cases explicite, but they can declare that the Church law concerning the impediment is to cease in such a case of need, because its observance would be very detrimental. Herewith the difficult question is opened whether a lex irritans— such as a diriment impediment ceases in casu gravissimi incommodi. D’Annibale who is not generally regarded as a rigorist, replies with a categorical “no.” He says: “Invalidating laws admit of no equity, and therefore no inconvenience, not even the gravest, excuses from observing them” (Summula Theol. Mor., 3, I, 216). He claims for his support Thomas Sanchez, who explains the matter as follows: It is not actually the positive Church law that imposes so difficult a restriction, since no positive law, as such, obliges under conditions of great harm. This important restriction proceeds rather from the natural and the Divine law, which allow marital intercourse only between two persons who have contracted a legitimate marriage. The parties in the case, however, are unable to contract a legitimate marriage: consequently matter and form are lacking in such a sacramental union. In fact the claim that in gravissimo incommodo the lex irritans of impediments ceases, cannot generally be maintained. The impedimentum ordinis is manifestly only of an ecclesiastical nature, nevertheless a priest can never, not even upon his deathbed and despite utmost necessity, enter into a valid marriage. Furthermore, what would we come to, if in cases of necessity an ecclesiastical lex irritans could readily be set aside? Would not arbitrariness be given full rein? St. Alphonsus gives as warrant for the cessation of a lex irritans: “A law ceases when it is harmful rather than useful. And although here the purpose of the law does not cease in general but in the particular case, nevertheless, since the purpose of the law ceases in the contrary direction, the law also ceases, as all agree.” Of course, if this be correct without restriction, then we cannot see why a priest could not change an illegitimate union under certain conditions into a valid marriage. The circumstances might be such that the lex ecclesiastica is actually nociva and that the finis legis in contrarium cessavit.

From the above it must be plain that no intrinsic valid grounds are at hand either for the confessor’s faculty to dispense, nor for the cessation of the lex irritans impedimenti in such a case of necessity. It is greatly to be desired that, like the far-reaching powers for dispensation granted by Leo XIII. and Pius X. for validating marriages on the deathbed, also powers of dispensation be granted for the casus perplexus and similar cases of necessity. Meantime, however, the views of St. Alphonsus, Lehmkuhl, Noldin, Gennari, Göpfert, Ballerini-Palmieri, etc. are to be accorded at least extrinsic probability. In the Acts of the South American Plenary Council, of 1899, approved by Leo XIII., the solution of the casus perplexus according to St. Alphonsus (Theol. Mor. lib. VI., n. 613) is recommended. This may be taken as an indication that the Roman Curia does not oppose the practical application of the view of St. Alphonsus.

Let us now attempt to solve the case in point. The missionary is not to be reproached on account of his mode of procedure, as he has followed the opinion of weighty authorities. It is true, nevertheless, that all authorities require that after such solution of the case ad cautelam either the sanatio in radice or simplex dispensatio be obtained. But this demand is made as a matter of propriety rather than as a matter of necessity. Of course, most authorities let the above solution apply only to impedimenta occulta (such as crimen, or affinitas ex copula illicita) not however to impediments which according to their nature are public, although de facto secret. The cognatio spiritualis belongs by its nature to the public impediments, but Gennari rightly extends the above solution also to “impedimenta materialiter publica, formaliter autem occulta.” The cognatio spiritualis is in the given case still secret, therefore, formaliter occulta. Though the missionary’s mode of action is not open to censure, it is not to be commended. He contented himself with probabilities in a very important matter where the validity of the Sacrament of Matrimony stood in question. How easy it would have been to proceed much more securely and correctly! For instance, he might have told Sempronia to take up this matter with her confessor in her next confession, because the matter was very important and her confessor would undoubtedly help her. Should Sempronia refuse to do this, the missionary might have subsequently sought the sanatio in radice from the Poenitentiaria and thus have validated the invalid marriage. Indeed, all authorities recommend that at least ad cautelam recourse should be had subsequently to the proper authority. A missionary who is likely to meet with such cases ought to secure the Pagella of the Poenitentiaria, or even wider faculties. They will not be refused him by the competent authorities.