Article I. On Impediments Impeding Matrimony

776. • Formerly six impediments merely impeding matrimony were enumerated and contained in these verses:

The prohibition of the Church, and also the time of holy days, And catechism, crime, betrothals, vow.

But the impediments of catechism and crime are now held as obsolete by the consensus of all Theologians and Canonists. The impediment of catechism was contracted by one who answered for an infant when the ceremonies were supplied after baptism conferred in necessity. For from the old law there arose from this a certain spiritual relationship, no differently than for a baptismal sponsor, which constituted an impeding impediment in the same degrees as with the sponsor of Baptism and Confirmation. But according to the common opinion - see Schmalzgrueber, book 4, title 11, no. 67; Giraldi on chapter 5 of the same title; Barbosa, Collections on chapter Contracto 5, On Spiritual Relationship, no. 3, etc. - it passed into desuetude. Indeed, Gonzalez, on chapter Contracto 5, On Spiritual Relationship, brings forward two Declarations of the Sacred Congregation concerning this matter.

The impediment of crime, however, was a certain penalty imposed by the old law for certain graver crimes, by which the guilty party was prohibited from contracting any matrimony with any person, either altogether if celibate, or after the death of the spouse if married. Crimes of this kind were: first, incest ¹; second, the abduction of another's betrothed woman in order to disturb another's marriage, and also the consent of the betrothed woman to the same abduction; third, the killing of one's wife perpetrated unjustly and by private authority; fourth, presbytericide, that is, the unjust killing of a priest; fifth, the malicious receiving of one's own offspring from baptism, namely, in order to impede the rendering of the debt; sixth, public penance for as long as it continued; seventh, an attempted matrimony with a nun; > Incest, abduction of a betrothed woman, death of a woman [or: womanly death],

The receiving of one's own offspring, priestly death, Or if one does solemn penance, or takes a nun, These prohibit a marriage from being joined.

¹ The other matters having been passed over, it will not be useless, indeed it will be altogether advantageous, to add some things concerning the impediment of incest, the forgetfulness of which appears to have poured no small darkness upon certain questions of grave importance among more recent writers.

First, the Doctors do not agree how far the signification of incest extends when there is question of the penalty inflicted upon incestuous persons by the sacred Canons, namely, the impediment to marrying. I now pass over that most, against others, establish that intercourse which occurred between persons joined only by legal or spiritual relationship is not comprehended by this law. But it is further disputed whether this penalty also affects incest committed with a person related by consanguinity, or only with a person related by affinity. Schmalzgrueber (book 4, title 13, nos. 27-29), with St. Thomas, St. Antoninus, Turrecremata, Sanchez, Laymann, etc., maintains that the opinion which denies that the penalty extends to incest with one's own blood relative is to be preferred. The reason, he says, is that incestuous persons of this kind are nowhere expressly prevented from contracting marriages. For the texts alleged to the contrary speak only either of incest with a blood relative of one's wife or betrothed, or indeed of incest committed with one's own blood relative, but from whose company the delinquent, having been admonished to desist, did not obey ecclesiastical power. Hence, since those laws are penal, the incapacity for contracting matrimony with another established by those laws as a punishment for delinquents of this kind ought not be extended to incest committed with one's own blood relative without contumacy and contempt of ecclesiastical power. You will find the same defended by Pirhing (book 4, title 13, no. 7), Engel (book 4, title 13, no. 3), and Bonacina (On Matrimony, question 3, point 14, no. 10), who also cite several others.

It is likewise disputed among the Doctors what degree the incest must reach for the aforesaid penalty to be incurred. Thesaurus indeed (On Ecclesiastical Penalties, part 2, word Penalties of Incest, nos. 5-6), although he acknowledges that several Doctors held otherwise, nevertheless contends according to the more probable opinion that the penalty extends to every incestuous intercourse even without the appearance of matrimony. For this matter he does not hesitate to cite chapter 5, On the Reformation of Matrimony, session 24 of the Council of Trent, which in fact pertains nothing to this; just as he also invokes Sanchez with Gutierrez and Garcia, who have nothing of this kind in the places indicated by him. Indeed Garcia (On Benefices, part 8, chapter 3, no. 34) openly hands down the opposite. Moreover, Schmalzgrueber (l.c., nos. 8-9), bringing forward a lengthy catalogue of Canonists, establishes to the contrary that the penalty is incurred no further than the first or second degree. Indeed, Pichler (book 4, title 1, no. 92) attributes this effect only to incest in the first degree, so that thereafter no matrimony can be contracted licitly.

But what is especially important to observe here is that from this the true origin and reason are disclosed to us for the practice which prescribes that the circumstance of incest must not be left unmentioned whenever a dispensation is sought for contracting matrimony between persons related by affinity or consanguinity. From this it will also manifestly be evident why this dispensation was held subreptitious if that circumstance had been suppressed in silence.

Let us now omit certain few more recent writers who, appearing altogether ignorant of the reason for this controversy, seek the reason why incest must necessarily be expressed in the fact that this circumstance renders the Pontiff more difficult in dispensing and brings with it a greater composition. Vincent de Justis excellently replies to them (On Dispensations, book 1, chapter 4, no. 322) that so far is the Pontiff from being rendered more difficult in dispensing by the expression of intercourse of this kind, when it was had not from fraud but from human frailty, that it should rather be said that by the aforesaid expression he is more easily moved, in view of the probable and almost certain consequence of scandals which, because of the aforesaid preceding intercourse, could probably arise from denial of the dispensation, as Pontius, Cevallos, Escobar, Rodriguez, Diana, etc., well observe. And thus we see that in the nearer degrees, namely, within the second, in which the causes of narrowness of place, defect of dowry, and other similar causes are regularly not admitted, nevertheless in those nearer degrees - although in them the Council of Trent prohibits dispensation except among great princes and for a public cause - if intercourse is expressed together with the defamation of the woman and the consequent danger that she will remain unmarried and that grave scandals can probably arise unless matrimony is contracted between the petitioners themselves, the Pope dispenses not only with illustrious persons and princes, but also with others of the lowest condition. Indeed, it is singular that when intercourse is expressed every other cause ceases, as Pyrrhus Corradus observes (book 8, chapter 5, no. 58), where he testifies that this is observed according to the style of the Curia.

Others think the reason is found in the fact that where the circumstance of incest is expressed, a greater composition is imposed. Hence Father de Carboneano writes truly childishly (Appendix I to chapter 3, On Matrimony, Antoine): The Pope never intends to dispense with prejudice to a third party; but if the intercourse is not expressed, prejudice is done to a third party, namely, to officials of the Curia, who by its suppression are defrauded of the fee to which they have a right. The same de Justis had already replied to this absurd reason (l.c., no. 326): Although the expression of intercourse is the cause why a greater composition is required, nevertheless this does not pertain to the motive cause, but is imposed as a punishment for the incestuous intercourse, the absolution of which is accustomed to be committed to the delegate together with the dispensation concerning the impediment. For although incest is not an impediment reserved to the Pontiff, nevertheless, because the petitioners state that they committed it and seek absolution from him, the Pope as a punishment of the incest afflicts the petitioners with greater expense and penances, because incest is truly a most grave crime and worthy of a grave punishment.

Nor do certain others explain the reason for this practice more aptly, who sing this one thing in unison, that the expression of that circumstance is demanded by the style of the Curia. For even if it be granted, which several deny, that this is in fact required by the style of the Curia in such a way as to produce an obligation, nevertheless no one is ignorant that the style of the Curia and the forms to be observed both in petitioning for and granting dispensations were introduced by some law which governs either the special subject matter or the general nature of dispensations. Therefore, in reality, these men say nothing; for the reason why a practice of this kind was introduced into the style of the Curia still remains to be sought.

Nor is it difficult to find this reason, if it is sought among Theologians and Canonists rather than in compendia of doctrine or of daily practice, especially the more recent. You will find that the truest, manifest reason founded in law for the necessity of expressing intercourse is taken from the fact that incest is an impediment of matrimony, although not diriment but merely impeding. But the defect of subreption which renders invalid a dispensation concerning an impediment of affinity or consanguinity arises from that general principle that, where several impediments intervene, a dispensation is held subreptitious if one of them is suppressed in silence in the petition. Therefore, the dispensation is invalid if the circumstance of incest is kept silent.

Thus, therefore, to touch upon those who are cited by Barbosa for this doctrine (Canonical Votes, book 2, volume 17, no. 57), Friar Sarmiento gives the reason in Barbosa:

Because an incestuous person is prohibited from contracting matrimony. Peter Ochagavia (On Matrimony, tract 4, question 11, no. 4): The survivor, namely, the incestuous person, cannot pass to another matrimony. Peter de Ledesma (On Matrimony, question 56, article 4, doubt 2, difficulty 2): Because there are two impediments. John Gutierrez (Canonical Questions, book 1, chapter 15, no. 5): There appear to be two impediments, the one of consanguinity, the other of incest. Sanchez (On Matrimony, book 8, disputation 23, no. 7): I said that it is necessary for each impediment to be declared. Nicholas Garcias (On Benefices, part 8, chapter 3, no. 54): The unmentioned impediment increases the expressed one; it is necessary to make mention of each. Paul Comitulus (Moral Responses, book 1, question 104, no. 2): A double impediment is much greater than one which is simple. Reginaldus (Practice of the Forum of Penance, book 31, no. 200): If there are several impediments, all must be narrated; and thence he concludes that they ought to express their incest. Filliucius (tract 10, no. 337) denies that several acts of intercourse must be expressed in the case, because from all incestuous acts only one impediment arises. And Bonacina says to the same matter (On Law, disputation 1, question 2, point 5, no. 4): Because a new impediment, namely, besides the same one already expressed, is not induced through subsequent intercourse. Anthony Sanctarellus (Various Resolutions, question 52, no. 2): It is prohibited in law that incestuous persons contract matrimony; therefore it was introduced with the best right into the style of the Curia that those wishing to contract ought to make mention of the intercourse. Rodriguez (Summa, chapter 238, conclusion 7): Mention must be made in the supplication of both impediments, namely, consanguinity or affinity, and incest. The Salmanticenses Compendium (tract 34, no. 299): The intercourse must be disclosed, like the other occult offenses which induce some impediment. Verani (Canon Law, book 4, title 1, part 5, section 16, no. 89): Because incest is an impediment, it must therefore be expressed. He had premised, however (ibid., no. 4), that a dispensation is subreptitious even when one impediment is diriment and the other only impeding; for the dispensation is also subreptitious unless each impediment is expressed. To these let Marcus Paulus Leo be added, who published a work at Rome in 1644 with the title Practice Concerning the Letters of the Major Penitentiary and the Office of the Sacred Apostolic Penitentiary. For he writes (part 2, page 310): The reason appears to be that when two impediments coincide, the unmentioned impediment increases the expressed one concerning which dispensation is granted, and therefore it is necessary to make mention of each; otherwise the dispensation is null.

Finally, lest by empty labor we gather other witnesses here, it will suffice to heap upon the testimonies cited a Declaration of the Sacred Congregation of the Council which nearly all either transcribe from Rebellus or certainly cite, and which is read thus in Garcia (Canonical Questions, part 8, chapter 3, no. 66) and Pyrrhus Corradus (Apostolic Dispensations, book 8, chapter 1, no. 38): The Congregation of Cardinals judged a dispensation subreptitious if carnal intercourse had preceded between blood relatives or relatives by affinity, of which they made no mention in the supplication, because such blood relatives or relatives by affinity were rendered incapable of contracting matrimony through this carnal intercourse, from the fact that they are said to have committed incest, which impedes incestuous persons from contracting matrimony; therefore, for the validity of the dispensation concerning a prohibited degree, the expression of carnal intercourse is necessary by law, as the style of the Curia observes. From this declaration, as is evident, three things are clearly confirmed for our matter: first, that the expression of the intercourse was held necessary for this reason, that since incest was an impediment of matrimony, a dispensation was needed to contract it licitly; second, that for this reason the dispensation was held subreptitious and therefore null, when mention of the committed incest was not made in its petition, eighth, finally, the killing of one's own offspring. We read that these impediments were expressed in the following verses: because, when two impediments to contracting matrimony intervened, only one was expressed while the other was left unmentioned; third, that the style of the Curia, when it requires the expression of incest and holds a dispensation subreptitious if mention of it was omitted, rests altogether upon these principles and laws.

But if the matter stands thus, how could it have happened that very many and most weighty Authors, a list of whom can be seen in de Justis (On Matrimonial Dispensations, book 1, chapter 4, no. 279), and to whom others can easily be added, denied the necessity of expressing this circumstance and therefore defended the dispensation as valid even if the same circumstance had been omitted in silence from the petition? Again, how could it happen that although the opinion handed down above is supported by such certain and manifest law, it is nevertheless proposed even by its patrons almost only as more probable, truer, or safer?

The solution of this doubt is not difficult, first if those things are observed which Navarrus has in his Manual, chapter 22, no. 74: Because, he says, there was a great dispute in the sacred tribunal of the Penitentiary concerning the impediment of incest, when the most illustrious Cardinal Alciatus presided over it as Supreme Penitentiary with the greatest prudence and marvelous dexterity, and was most renowned for his encyclopedic knowledge of all disciplines, whether every incest produced this impediment, I substitute for the things which I said elsewhere here: First, nearly all experts of divine and human law strictly and properly call only intercourse with a blood relative or relative by affinity in a prohibited degree incest.... Second, all agree that from every incest there arises an impeding and diriment impediment of affinity. Third, all also agree that from incest committed with a relative by affinity during matrimony there arises an impediment impeding the contracting of matrimony with any other person.... Fourth, nearly all theologians hold that from incest with a blood relative there indeed arises an impediment of affinity, but no other impediment, whether it is committed before or after matrimony has been contracted; among these are St. Thomas, Soto, St. Antoninus, Sylvester, whom Covarruvias also follows. Therefore, if nearly all Theologians taught that this impeding impediment of incest did not arise except from incest with a relative by affinity during matrimony, what wonder if in other cases of incest they denied that a dispensation had to be sought, and therefore denied that the circumstance of incest had to be expressed in seeking a dispensation concerning an impediment of consanguinity?

But there is added a point of greater importance, which Navarrus himself also has (Consultations, IX, On Consanguinity and Affinity, no. 5), namely, that an impediment of this kind, according to Paludanus, whom St. Antoninus follows, appears to have been abrogated by custom, whom we believe. For if the impediment of incest can in fact be held as abrogated by custom, while the reason for expressing the circumstance of incest in the petition for dispensation flowed solely, as we showed, from the fact that incest induced another impediment, it is manifest that by that very fact the necessity of expressing this circumstance also altogether ceases. And again, when this impediment has been abrogated, there no longer stand two impediments - namely, consanguinity or affinity, and incest - against a matrimony to be contracted between incestuous blood relatives or relatives by affinity, but only the first of these. By that very fact, therefore, the reason collapses on account of which, as we have

Therefore the whole controversy is finally reduced to whether this impediment must in fact be considered abrogated. Moreover, no one can deny that in this matter there is now a unanimous and certain opinion of Theologians and Canonists that those two among the merely impeding impediments, namely, catechism and crime, have altogether ceased through custom. To take account only of more recent Authors, thus Babenstuber (tract 8, part 7, disputation 3, article 1, no. 5): All these impediments of crime have been abrogated through non-use, as the Authors most commonly teach and the practice of the Churches proves.

Billuart (On Matrimony, dissertation 6, article 1): Several impeding impediments formerly arose from crime, but these, like Catechism, have been abrogated by desuetude.

Cardinal Gotti (On Matrimony, question 8, doubt 1, no. 11): Several of the aforesaid impediments no longer have force, but have been removed by contrary custom.

Roncaglia (tract 21, chapter 2, question 1): From long-standing custom, very many crimes concerning which one reads everywhere among the Theologians are no longer considered as impeding matrimony.

Wigandt (tract 16, examination 5, no. 53): These impediments, according to the more common opinion, are no longer in use.

Marcus Struggl (tract 12, question 3, article 1, no. 6): These impediments of crime, like the impediment of Catechism, were long ago abrogated by non-use and the contrary practice of the Church.

Viva (On Matrimony, question 5, article 11, no. 2): Sanchez, Laymann, Ledesma, etc., teach that the impediment of crime has already been removed through non-use.

The Salmanticenses (tract 9, chapter 15, no. 15): Excepting interdict, vow, and betrothals, the remaining impediments are no longer in use but have been removed by custom.

Ferraris (word Impediment, no. 10): Of the six assigned impediments, since two no longer have force, namely, the impediment of crime having already been abrogated by long desuetude, hence there are four, etc.

Sporer (Sacramental Theology, part 4, chapter 1, no. 146): But all these impediments of crime have been removed by long desuetude according to the most common opinion of the Doctors and the practice of all the Churches.

Giribaldi (tract 10, chapter 17, no. 18): The Doctors commonly testify that these impediments which arise from crime no longer bind but have passed into desuetude; and Navarrus, in the Manual which he dedicated to Gregory XIII when already ninety years old, says that he had never heard that a dispensation concerning such an impediment of crime had been sought.

Holzmann (On Matrimony, no. 499): Crime, or altogether all impeding impediments of crime, have been abrogated by universal custom.

Mansi (Moral Theology, book 5, tract 10, part 4, chapter 15): Soto, Corduba, Navarrus, and Coninck testify that these impediments of crimes have been altogether removed by long custom.

Catalanus (part 3, On Matrimony, question 15, chapter 2, no. 15): In fact, through custom, all other impeding impediments except these four have been removed.

Ysambert (On Matrimony, disputation 9, article 2): A custom has prevailed that new marriages are entered without a dispensation from these impediments.

Mazzotta (tract 7, disputation 1, question 2, chapter 15): Formerly twelve impeding impediments were enumerated, but now partly by the Council of Trent and partly by custom they have been reduced to five (he adds, namely, the defect of proclamations).

Tamburini (book 8, On Matrimony, tract 1, chapter 16): These were formerly twelve.... Now, partly by the Council of Trent and partly by custom legitimately received, they have been reduced to four.

Potestas (volume 1, part 4, no. 3982): The common opinion is that they have been removed through non-use and therefore do not need a dispensation.

Elbel (On Matrimony, conference 3, no. 64): Formerly, indeed, under the old law various impeding impediments were enumerated. Under the new law, in fact, only four are commonly enumerated.

Bouvier (On Matrimony, chapter 4, article 3): Eight others are found in Canon law; but since they have altogether ceased, concerning the four still remaining, etc.

Concina (On Matrimony, book 2, dissertation 3, chapter 3, no. 15): The Authors observe that, except for interdict, vow, and betrothals, the other impediments have become obsolete.

Edmund Voit (volume 2, no. 1234), after enumerating the impediments arising from crime as they were set forth above, adds: The Authors everywhere testify that these have now been removed through non-use.

Indeed, all who now enumerate only four, or five (with the omission of the proclamations added), impeding impediments implicitly say the same thing. Thus Cuniliati (tract 14, section 14, no. 2): The impeding impediments at the present time are contained in this hexameter, etc. And Amort (tract 15, section 3, question 2): After the Council of Trent only four impediments, etc. And Antoine (On Matrimony, chapter 3, question 1): There are four which now certainly have force, contained in this verse, etc. And Reuter (part 4, no. 526): Those which now have force are four, etc. And Wagemann (part 3, tract 3, chapter 9, no. 135): Today the impediments are four, contained in this verse, etc. Tournely (On Matrimony, question 8, article 2): Formerly, under the old law, twelve were enumerated, which have been recalled and restricted to five. And Friar Antonius of Goritia (table 187): The impediments are four, etc. And Oberrauch (tract 20, chapter 5, section 2386): In antiquity the merely impeding impediments were more numerous; in the modern age only five obtain. Thus also Antonius of St. Joseph (Compendium of the Salmanticenses, tract 34, chapter 3, part 1, no. 165), Segna (On Matrimony, chapter 5, no. 390), Piselli (On Matrimony, part 2, chapter 4), Scavini, etc.

From the Canonists, however, it will suffice to bring forward what Giraldi, Engel, Reiffenstuel, Maschat, Schmalzgrueber, Pirhing, Pichler, and Krimer have.

Giraldi (Exposition of Pontifical Law, book 2, title 23, chapter 12, section 269): This Decretal, establishing that the crime of incest induces an impediment impeding matrimony to be contracted with any person, has been abrogated by contrary custom. For today there are only four impeding impediments, namely, etc.

Engel (book 4, title 13, no. 2): But this penalty of incest, like the other impediments, appears to have passed into desuetude.

Reiffenstuel (book 4, title 1, no. 352): The impeding impediments of crimes, however, are so held to have been abrogated that they are no longer in use.

Maschat (book 4, title 13, no. 4): The other impediment, lest the accomplices in incest be able to enter matrimony with any other person, has been abrogated by contrary custom.

Schmalzgrueber (book 4, title 13, no. 7): The impediment by which an incestuous person and his accomplice are prohibited from contracting matrimony with any other person has more probably been removed through non-use or contrary custom, as Navarrus, Perez, Wiestner, etc., rightly observe.

Pirhing (book 4, title 16, no. 12): All these impediments introduced by ecclesiastical law (except betrothals and a vow, and except a special interdict of a Superior) have today been altogether removed by long-standing custom,

according to which those thus impeded everywhere enter marriages without seeking any dispensation.

Pichler (book 4, title 1, no. 92): With Navarrus, Sanchez, Henriquez, and Coninck, Laymann, Pontius, Lessius, Illsung, and other Doctors everywhere observe that all the impeding impediments of crime, or those arising from an offense, have been removed by universal custom.

Krimer (book 4, title 13, no. 1174), to this objection: Incest furnishes a perpetual impediment to matrimony; therefore it is manifest that the incest must be disclosed, replies: This impediment long ago receded from use; hence by general custom it now happens that there is no fault in contracting matrimony with this impediment; and therefore no dispensation is sought from the Pope or Bishop on account of any incest.

What perhaps may appear surprising is that even the Holy Doctor Alphonsus judged that the same thing as the Doctors cited above must be defined concerning the cessation of this impediment as obsolete. Nor did he assert it in only one place, but several times plainly confirmed it by his vote. Indeed, from the first edition of his Moral Work in the year 1748, to these words of Busembaum (book 6, tract 6, chapter 3, doubt 1), But these impediments (namely, incest, the abduction of a betrothed woman, etc.) have been removed through non-use, the Holy Doctor had added his approval, adding (note f): as the Salmanticenses say with Sanchez and the common opinion. Elsewhere more explicitly (The Apostolic Man, tract 18, no. 53), where he enumerates the impeding impediments, he judges the same thing concerning incest, although perhaps he less aptly substitutes incest with one's own mother for incest with the blood relatives of one's spouse, that is, committed with a person related by affinity, as the text of the Decretal Constitution which imposed this penalty actually requires. Whatever may be said of this, behold the explicit words of the Holy Doctor: Under this name (CRIME) were formerly comprehended certain offenses, namely, incest with one's own mother, the abduction of another's betrothed woman, etc.; but this impediment also BECAME OBSOLETE BY DESUETUDE. And again, in the place to which he there refers the reader (book 6, no. 905), at the words of Busembaum reported above, namely, that the impediments of incest and of other crimes have been removed through non-use, the Holy Doctor adds: Thus also Concina and the Salmanticenses with Sanchez and the common opinion. And he repeats this even more explicitly (book 6, no. 857), where he further adds that this impediment has been so removed that it needs no dispensation. Thus the Holy Doctor, to the question whether betrothals are dissolved through a supervening impediment: If the impediment is impeding, Sanchez, Palaus, Escobar, etc., most commonly and more probably deny that the betrothals are dissolved, unless it arises from a vow of Religion, and very probably also from a vow of chastity. The reason is that the other impediments HAVE NO FORCE TODAY, NOR DO THEY NEED A DISPENSATION. Thus St. Alphonsus; whence also the abbreviators of the Holy Doctor, Neyraguet (On Matrimony, chapter 3, article 1, no. 4) and Galani (book 6, tract 6, no. 65), after enumerating the impeding impediments of crime, repeat: But these have been removed through non-use.

I said that this perhaps might appear surprising. And indeed it is known that St. Alphonsus elsewhere, against the most common opinion of the Doctors, as we shall see in its place, contended as though indubitable that the crime of incest necessarily had to be disclosed whenever a dispensation for contracting matrimony was sought from the Apostolic See on account of another impediment. But, as we have already seen above, not only from the authority of the Doctors, and especially from the testimony of Marcus Paulus Leo, who wrote expressly concerning the practice of the Sacred Penitentiary, but also from the explicit Declaration of the Sacred Congregation of the Council, the true reason why the crime of incest had to be expressed in seeking a dispensation for some other impediment, if perhaps it had intervened, rested in this: that the crime of incest of itself induced an impediment impeding matrimony, so that unless both impediments were expressed, the dispensation would labor under the defect of subreption. Therefore, can it not appear surprising that St. Alphonsus on the one hand contends as certain that in the case the crime of incest must necessarily be expressed, but on the other contends that the impediment of the crime of incest has no force today, but has been removed through non-use and in no way needs a dispensation? How will a dispensation necessarily have to be sought for an impediment which, by the admission of the Holy Doctor himself, needs no dispensation?

But, you will say, does not the same style of the Curia persist in this entire business of dispensations, which otherwise ought to be as a law? The reply to this question appears not difficult. For it must be conceded that the style of the Curia, whenever it is certainly established and the law by which that style itself was introduced and upon which it rests still has force, possesses the force of law. But at the same time it must not be denied that the force of custom, which itself assumes the nature of law, is such that it can abrogate both all human laws and also the laws upon which the style of the Curia rests, and consequently remove from that style every force of obliging. This remains true even though, just as Synodal and Pontifical Constitutions otherwise already abrogated by contrary usage remain unmoved in the Corpus of Law, so also the forms of style remain unmoved in the Curia, although their force has been abrogated by contrary custom and the laws upon which they rested have otherwise altogether perished. Nor are examples lacking which make this plain. Thus, in Marcus Paulus Leo, who describes the practice of the Office of the Sacred Penitentiary, you will find the form (Practice, etc., part 2, page 329) of absolution from incest with a dispensation, not indeed for contracting with the accomplice in that incest, but that, notwithstanding the said incest, you may mercifully dispense in the forum of conscience so that he may contract matrimony, with the form of the Council of Trent observed, with SOME OTHER WOMAN otherwise prohibited to him by no law, etc. Nevertheless, behold Martin Navarrus, already from that age solemnly testifying (Manual, chapter 22, no. 75, and Consultations, 9, no. 5) that in his whole life he had never read or heard that a dispensation concerning this sole impediment had been obtained, or that any incestuous person sought a dispensation from the Pope or Bishop. Concerning this matter Sanchez also says (On Matrimony, book 7, disputation 17, no. 8): That custom long ago prevailed whereby one affected by any of these impediments - and he expressly treats also of incest - enters matrimony without seeking any dispensation. This is established from the fact that ancient and more recent Doctors, and indeed eminent ones, who wrote and were occupied in diverse parts of the world, testify that this custom has been legitimately prescribed..., and especially Navarrus, who traveled through various regions and completed the hundredth year of his life, always being most intensely occupied with studies and consulted from every quarter concerning questions of conscience, and finally remaining a long time at Rome, to which these questions to be resolved are brought from all parts of the world, and nevertheless, speaking of incest, affirms... that at so great an age he had neither seen nor heard of a dispensation being sought; and thus that custom prescribed that a dispensation should not be necessary. But neither do we need the testimonies of others. For even now it certainly enters no one's mind that the incest of which someone is guilty induces a necessity of either seeking a dispensation if he wishes to contract with a woman otherwise prohibited to him by no law, or of expressing this circumstance in a supplication if a dispensation is necessary for marrying a woman prohibited for another cause of consanguinity or affinity; although in the latter case the same reason of nullity from the style of the Curia ought to have force, because, when two impediments concur, one of them would be suppressed. This can also be confirmed from the Acts of the Sacred Penitentiary. For it is not established that even after the age of Navarrus and Sanchez any dispensation was ever sought in the aforesaid circumstances, although the crime of which we speak certainly has not been absent from this world throughout those centuries. But from this also what we said above is confirmed: that forms of style are preserved in the Curia even if contrary custom possessing the force of law has taken all force from them.

Hence Cajetan Giraldi (Exposition of Pontifical Law, on book 4, title 13, chapter 1, section 714), when treating the interdict by which an incestuous spouse is thereafter prohibited from contracting matrimony with anyone - namely, the impediment of which we are speaking here - certainly recalls the style of the Penitentiary which enjoins this penalty in a dispensation for seeking the debt; he also recalls the style of the Dataria, which imposes the same penalty in a dispensation concerning consanguinity up to the fourth degree. Nevertheless, he does not hesitate to observe that this impediment appears to have been removed by custom, so that it is not necessary to seek a dispensation. And in fact we now perceive that the Sacred Penitentiary itself has at last begun to remove this style of the Curia, which rested upon an altogether antiquated impediment. For in dispensations which are granted to an incestuous spouse for seeking the debt, that aforesaid formula hitherto added according to the style of the Curia, If he survives his wife, let him remain without hope of marriage, has now begun to be omitted. To this may also be referred what we read in canonical question 183 of Benedict XIV. For he proposes to himself this objection from the style of the Curia: The distinguished Officials of the Dataria, after examining the Registers from the time of St. Pius V to the present,... endeavored to prove that marriages contracted between persons joined in the third and fourth degree, with a prior dispensation concerning the fourth but without declaratory letters obtained concerning the third, had always been held null and invalid. To these he replies: Just as it pertains to the distinguished Officials of the Dataria to defend the OPINIONS and rights of the Dataria, so it pertains to my littleness to defend the judgments of this Sacred Congregation, of which I am secretary. And in fact he defended his position against the alleged style of the Dataria in such a way that the Sacred Congregation of the Council rendered a definitive judgment for the validity of those marriages. From these things we are also taught that the style of the Curia must be judged in one way when there is question of a controversy already defined by certain laws, but in another when the judgment of the Curia follows an OPINION concerning which there is free disputation on either side in the Catholic schools. For in the latter case Benedict XIV, and indeed also the judgment of the Sacred Congregation rendered at the same time, manifestly establish that no force for defining theoretical questions is to be attributed to the style and judgment of the Curia, even if the validity or invalidity of matrimony is at issue. See also what we shall say in the note to no. 867.

Now, therefore, only four impeding impediments are enumerated, namely: first, a prohibition made by the Church for various causes; second, likewise a prohibition of the Church that at a certain determined time the solemnities of matrimony not be celebrated; third, a contract of betrothals already entered with another person and not legitimately dissolved.

seen, the dispensation was considered subreptitious, namely, as though, when two impediments concurred, only one had been expressed while the other was left unmentioned. Fourth, a vow which by its nature cannot be observed in the matrimonial contract or society.

These four are comprehended in the following little verse:

The prohibition of the Church, time, betrothals, vow.

It will suffice to add a few things concerning each.

777. • It is a prohibition, either particular or general, made by the Church or by some ecclesiastical Superior, lest a certain matrimony be celebrated.

1. A general prohibition exists especially in three cases, namely: first, that matrimony not be contracted between a heretic and a Catholic woman, and conversely; second, that it not be contracted without the proclamation of the banns; third, that it not be contracted without the duly required consent of the parents. The banns were already treated above, no. 734 and following; likewise the consent of parents, no. 754. But we shall speak below concerning disparity of worship, no. 824 and following.

2. A particular prohibition exists when, for a just and special cause, matrimony is forbidden to someone either by the Pastor or by the Bishop; for example, because a suspicion of a diriment impediment has arisen ².

² Three principal just causes for which, according to the common opinion of the Doctors, matrimony can be forbidden are enumerated: first, a complaint concerning betrothals by which one of the betrothed parties had previously bound himself to another person; second, a not groundless suspicion of a latent impediment between them, either diriment or even merely impeding; third, a not groundless fear that grave quarrels, enmities, scandals, or other inconveniences may follow from that matrimony. See Pirhing (book 4, title 16, no. 1).

778. • It is a certain determined time during the course of the year which is called a holy season and during which the Church forbids the solemnities of nuptials. Council of Trent, session 24, chapter 10. Such a time now ³ is that which runs from the first Sunday of Advent through Epiphany inclusively, and from Ash Wednesday through the Octave of Easter likewise inclusively.

³ It is said now, for before the Council of Trent the holy season was: first, from the first Sunday of Advent through Epiphany; second, from Septuagesima Sunday to the Octave of Easter; third, from the second day of the Rogations through the Octave of Pentecost; fourth, for two or three weeks before the Nativity of St. John the Baptist. - See Schmalzgrueber, book 4, title 16, no. 27.

Moreover, the Council of Trent prohibits only the solemnities of nuptials during the aforesaid time, namely, blessing the spouses, leading the bride home with festivity, and arranging more solemn nuptial banquets. It does not, however, prohibit the Pastor from privately joining the spouses, although in various places this also is prohibited because of custom ⁴. - Thus commonly.

⁴ Namely, the custom of certain places has it, not indeed that the proclamations not be made, or that the contract of matrimony not be celebrated, or that it not be consummated during holy seasons, but that nuptials not be celebrated unless either some necessity urges or permission of the Ordinary has been obtained, even in a case of necessity if this can be done; and it is fitting that Pastors accommodate themselves to this custom. Thus Reiffenstuel (book 4, title 16, no. 12), Schmalzgrueber (same title, no. 34), Wiestner (same title, no. 34), Konig (same title, no. 3), Schambogen (same title, no. 2), Schmier (part 3, On Matrimony, chapter 1, no. 105), Marchant, Gobat, Laymann, Sanchez, etc. Therefore it was not necessary for Lambertini (instruction 80, no. 14) to present this very thing to the Pastors of his Diocese of Bologna as a new and foreign piece of wisdom from the condemned Van Espen.

In the same instruction 80, no. 20, Lambertini again brings forward Van Espen also reproaching the Canonists as though they, too devoted to the rigorous expressions of the ancient Canons, had reduced abstinence from the consummation of matrimony during the holy season to a precept, when it was rather a matter of mere counsel, as St. Alphonsus also relates from Lambertini (book 6, no. 984). But even this reply to the ancient canons objected is false. The true reply is - see Schmalzgrueber, book 4, title 16, nos. 31-41 - that those canons speak only of the solemn leading of the bride, not of the consummation of matrimony; and thus it is not necessary to explain them as concerning mere counsel and not a precept, for that solemn leading is in fact forbidden by precept. But if the canons add that spouses who have solemnly celebrated nuptials contrary to the precept of the Church are to be separated, this would be a penalty to be undergone not for a counsel but for a precept. From these things we are certainly taught that the hope of those who, thinking that treasures of wisdom lie hidden in condemned works, strive to fish out foreign things from these putrid fountains rather than draw doctrine from the storehouses of the sincere Catholic school, is vain.

779. • All betrothals, whether ecclesiastical or private, seriously contracted, unless they have been legitimately dissolved either by the mutual consent of the contracting parties or for another just cause, are an impediment impeding matrimony. This is evident from natural law, for there exists a grave obligation of justice to observe a pact arising from an onerous contract. But if someone, notwithstanding that impediment, contracts nuptials, the matrimony will indeed be valid, since this impediment is only impeding, but not licit.

A fourfold vow impeding matrimony is distinguished, namely: first, a vow of chastity; second, a vow not to marry; third, a vow of entering Religion; fourth, a vow of receiving sacred Orders.

780. I. A Vow of Chastity. - 1. One who has emitted such a vow sins gravely by entering matrimony with the intention of consummating it, because he breaks the vow.

2. Even apart from this intention, he sins gravely because he exposes himself to the danger of violating either the vow or the right of the other spouse.

3. Once matrimony has been contracted, during the first two months he can neither seek nor render the debt, because by a divine privilege the spouses are exempt during this time from the obligation of the conjugal debt, according to what was said above, no. 759. But after this time has elapsed, he can indeed render the debt and satisfy the right of the other, but he cannot seek it without a dispensation from the vow, or without a suspension or indirect invalidation of the vow effected by the other spouse.

4. He must altogether abstain if the other consents or has lost the right of seeking, for example, because of adultery or incest. But if he can abstain only with difficulty, he must seek a dispensation as soon as possible or seek the aforesaid invalidation from the other spouse.

5. If the other spouse dies, he cannot pass to new nuptials unless he has obtained a dispensation from his vow also for this effect. - Lacroix, book 3, no. 564.

781. II. A Vow Not to Marry, or a Vow of Virginity. - 1. One who contracts matrimony after emitting this vow sins gravely, as is manifest.

2. Once matrimony has been contracted, he can render and also seek the debt, because observance of the vow has already become impossible.

3. For the same reason, after the spouse has died he can at least probably contract a new matrimony.

In practice it is sometimes doubtful whether someone vowed virginity or celibacy, or rather chastity. The penitent must be asked whether he was led by the intention of freeing himself from the burdens of matrimony and serving God more holily, or solely by the love and affection of purity. In the first case he must be judged to have vowed celibacy and virginity, but in the second true chastity. - Lacroix, no. 357.

782. III. A Vow of Entering Religion. - 1. One who has emitted such a vow sins gravely by entering matrimony, both because he deceives the other and because he exposes himself to the danger of violating the vow.

2. Before the consummation of the matrimony he is bound to enter Religion; and therefore he sins mortally when, whether by seeking or rendering the debt for the first time, he consummates the matrimony, because he must fulfill the vow when he can. But he can fulfill it by not consummating the matrimony in the first two months, since then by a divine privilege either party can enter Religion, and, when the spouse solemnly professes, the other party is freed from the bond of matrimony, according to what was said above, no. 759.

3. After the matrimony has been consummated, he can seek and render the debt, because execution of the vow has become impossible, and the seeking of the conjugal act is not contrary to his vow, since he vowed not chastity but Religion.

4. Even after the matrimony has been consummated, he is of himself bound to enter Religion whenever he can do so without injury to the right of the other party; for example, if the other consents, or loses the right of seeking the debt perpetually, or if the matrimony is dissolved by death, because the obligation of the vow always remains. In practice, however, in these cases it is more expedient to have recourse to a dispensation ⁵.

⁵ In practice the circumstances may have been so changed by reason of age, offspring perhaps born of the matrimony, the state of fortunes, and also fitness for religious duties that, because of the change of matter, the obligation of the vow almost ceases of itself and there is no need of a dispensation.

783. IV. A Vow of Receiving Orders. - 1. One who has emitted that vow sins gravely by entering matrimony, as is evident.

2. He is bound to receive Orders if he can, for example, if he obtains the consent of the other. According to many, he is bound to enter Religion before the consummation of the matrimony, even against the will of the other, so that he may be able to fulfill the vow. But others more probably deny this.

3. Once matrimony has been entered, he can consummate it if he can no longer fulfill the vow.

784. Questions. - QUESTION 1. Who can dispense in impeding impediments?

Reply 1. No one, not even the Supreme Pontiff, can dispense from an impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice. The same must be said of the necessity of parental consent, which is derived from natural law; this, however, naturally ceases if the parents dissent unjustly.

Reply 2. Bishops, or Ordinaries who are Pastors of souls and enjoy full jurisdiction in the external forum, can dispense: first, in the obligation of the banns; second, as regards contracting during a holy season where custom also forbids this; third, in a vow of temporary chastity and of virginity or not marrying.

But they cannot dispense: first, as regards a vow of perpetual chastity ⁶; second, as regards a vow of entering Religion; third, as regards the impediment of disparity of worship between Catholics and heretics. For this threefold impediment is reserved to the Pope.

⁶ Understand this before matrimony has been contracted; for after matrimony has been contracted, the Bishop can dispense for seeking the debt. See St. Alphonsus, book 6, no. 987. Say the same of a vow of continence by which either spouse bound himself after matrimony had been contracted. For since by force of this vow he is indeed prohibited from demanding the debt, but can and indeed must render it, it is not a vow of perfect chastity and therefore is not reserved to the Supreme Pontiff. The opposite must be said if each spouse, by common consent, had vowed perpetual continence. See St. Alphonsus, ibid., no. 986.

Reply 3. By their privileges Regulars can dispense, merely for the internal forum, in a vow of virginity or of not marrying ⁷. - Recall what was said concerning the privileges of Regulars in the Treatise on States, no. 175.

⁷ From the general principle that by force of their privileges mendicant Regulars can dispense in all those vows in which Bishops can dispense by ordinary law, St. Alphonsus (book 6, no. 987) rightly infers that the same Regulars can dispense not only in a vow of not marrying, as the Author has it, but also in a vow of temporary chastity or in one not perfect for any other cause, for demanding the debt after matrimony has been entered. Indeed, since there is a sufficiently probable opinion, as the Author intimates a little later in question 2, that it pertains to the ordinary right of a Bishop, even in a vow of perfect chastity, to grant a dispensation for contracting matrimony if necessity urges, by force of the aforesaid principle this also belongs to mendicants, as several Doctors in fact concede. See St. Alphonsus, book 6, no. 1128.

QUESTION 2. Can a Bishop, when necessity urges, namely, when there is danger in delay, dispense from a vow of chastity for contracting matrimony?

Reply. Yes, provided that the danger is truly present and access to the Pontiff is not readily available. - St. Ligorius, no. 987. - Suarez, Sanchez, Navarrus, etc.