Point I. On the Firmness of Matrimony Insofar as It Regards the Bond

758. • Matrimony is indissoluble, that is, once matrimony has been contracted, divorce as regards the bond cannot take place, at least by divine positive law. This is de fide. It is proved: first, from the words of Christ, Matthew 19:6: Therefore they are now not two, but one flesh. What therefore God has joined together, let no man separate. Second, from the words of St. Paul, 1 Corinthians 7:10-11: But to those who are joined in matrimony I command, not I, but the Lord, that the wife not depart from her husband; but if she has departed, that she remain unmarried or be reconciled to her husband. And let not the husband dismiss his wife. Third, from the Council of Trent, session 24, canon 7.

759. • Nevertheless, three cases must be excepted, for:

1. A ratified and non-consummated matrimony of Christians ¹ can be dissolved for a grave cause through a dispensation of the Pope ², from a power divinely granted to him. This is evident from the fact that the Supreme Pontiffs have already used this power many times, as St. Gregory VII, Paul III, etc.

¹ Above (note to no. 745) we said that matrimony cannot be called consummated unless the act is of itself apt for the effect of generation. Indeed, St. Alphonsus (book 6, no. 1036), after St. Thomas (In IV Sentences, distinction 41, question 1, article 1, question 4, reply to objection 2), further requires an act perfect on the part of each spouse, which doctrine can contribute to the solution of grave questions.

Moreover, observe two things. The first is that this has force not only as regards the first matrimony which anyone contracts, but also as regards the second, third, etc. Hence, if widowed persons marry, even persons who have offspring from a preceding marriage, the law has force also with them; and therefore, if either makes profession in Religion before the present matrimony is consummated, the bond will be dissolved. The second is that a wife who, within two months while deliberating about embracing Religion, has been known by her husband through force can nevertheless, according to the more common and more probable opinion of Theologians and Canonists, enter Religion even against the will of her husband; and he ought therefore to impute it to himself that, since profession in the case does not dissolve the bond, he must remain without hope of marriage until the death of his wife. The Doctors except the case in which the wife has conceived offspring who could not easily be educated without the mother. See Sanchez, book 2, disputation 22, no. 7, and Pirhing, book 3, title 32, no. 56.

² There is no dispute in the forum and in practice concerning the power of the Supreme Pontiff to dispense in a ratified and non-consummated matrimony, and the sole controversy is accustomed to be reduced to the cause, namely, whether a cause sufficient for granting such a dispensation is present. Thus Benedict XIV (Canonical Question 24). See also his Canonical Questions 108 and 479, in which he says that this doctrine is notoriously common among Theologians and Canonists. Therefore what St. Alphonsus says (book 6, no. 959), that there are two probable opinions concerning this question, must be held among obsolete opinions. You have several examples of these dispensations in Schmalzgrueber (book 4, title 19, no. 46) and Pignatelli (volume 1, consultation 148, no. 5), and later examples down to Pius VII, Gregory XVI, and Pius IX in Perrone (On Matrimony, volume 3, pages 509-510, Roman edition).

This faculty must also be extended to marriages consummated in infidelity if, after baptism, by which the marriage becomes ratified, the spouses have not yet consummated it again. And this is most clearly confirmed from the Letters of Gregory XIII of January 25, 1585, which you have in Clericatus (On Matrimony, decision 11, no. 28), in which he first establishes this faculty in these words: Therefore, considering that marriages of this kind contracted among infidels are indeed true, yet are not considered so ratified that, when necessity urges, they cannot be dissolved, etc. Hence he concludes that by force of the dispensation those marriages are valid which spouses converted to the faith contracted with others, even though the prior spouse also then already existed as converted to the faith. These marriages, even if it afterward became known that the former infidel spouses, being justly impeded, could not declare their will, and that they also had been converted to the faith at the time the second matrimony was contracted, nevertheless must never be rescinded but are valid and firm. Nor did Gregory XIII alone, but also Urban VIII, in Letters given October 20, 1624, and again September 17, 1627, declare this very thing, namely, that for a grave cause the Apostolic See can sometimes dissolve marriages of infidels, as Cardinal de Lugo testifies in the supplicatory libellus which he offered to Urban VIII and which you have in Cardenas (Theological Crisis, part 4, dissertation 2, no. 552). But as for the attempt of Pontius (book 7, chapter 48, no. 22, and book 9, chapter 2, no. 17), and after him Lambertinius (On the Synod, book 13, chapter 21, nos. 4-6), to twist the Letters of Gregory into a mere dispensation from interpellating the spouse, it must all but be rejected among absurdities, as plainly repugnant to the text brought forward.

Concerning the aforesaid text of Benedict XIV, the VV. object (page 805) that the words, There is no dispute in the forum and in practice, indicate that a speculative controversy still subsists in the schools and among theologians.

Reply. The VV. show (ibid.) that they surely are not ignorant of what is read thus in Canonical Question 479 of the same Benedict XIV: The second point is that no question can any longer be raised concerning the power of the Supreme Pontiff in that which pertains to dispensing in a ratified and non-consummated matrimony, since today the affirmative opinion is common among Theologians and Canonists and is received in practice, as is notorious. How, then, do the VV. assert that the words of Benedict XIV indicate that a controversy STILL subsists in the schools and among theologians, when the same Benedict establishes as a principle that no controversy can any longer be raised concerning this power of the Supreme Pontiff, because TODAY the affirmative opinion is common among Theologians and Canonists? Do these two things not mutually conflict: the controversy still subsists, and no controversy can any longer be raised?

The VV. reply (ibid.) that in question 479 Benedict speaks of a more recent time.

Reply 1. When the VV. say that according to Benedict XIV the controversy STILL subsists, do they affirm this concerning theologians who had written two centuries before, and not rather concerning the age of Benedict himself? Reply 2. Does not the same Benedict, in question 108, which is also cited in the Note, report from letter 180 of Cardinal d'Ossat that even under Clement VIII there was no controversy in the Sacred Congregation concerning this power of the Pontiff, although fourteen men had been summoned by the Supreme Pontiff for consultation, namely, eight Cardinals, four Auditors of the Rota, and two Penitentiaries of the Vatican Basilica? Reply 3. And if in the Roman Congregation there was already no controversy from the age of Clement VIII, and Benedict XIV in question 479, namely, a century and a half before us (for that cause was treated in January 1726), wrote that no question could any longer be raised concerning this power of the Supreme Pontiff, while from that age down to us ever greater light has shone upon this controversy, why finally will it be held unlawful to say that the opinion which denied this power to the Roman Pontiffs is now obsolete?

The VV. add (ibid.) that Benedict XIV (On Beatification and Canonization, book 4, chapter 42, no. 13) has the following: Concessions of this kind are sometimes made, yet from them it is not deduced that it is certain de fide that Pontiffs can release men from a ratified but non-consummated matrimony and from a vow of continence annexed to monastic profession.

Reply. Let it pass; for it is not contended in the Note that it must be held de fide that the Roman Pontiffs possess this power, so that whoever contradicts it must be considered a heretic. Moreover, who does not know that the Church has not been accustomed to arrive at definitions of this kind, namely, that something must be held de fide, unless a grave cause demanded it? Benedict brings forward those examples to show how the Apostolic See permits the cult of the Blessed, and yet that it must not therefore be held de fide that they are participants in heavenly glory. But he had premised (ibid., no. 9) that although it appears probable that the judgment of the Supreme Pontiff in equipollent Beatification is not infallible and does not pertain to the faith, nevertheless it is also certain (he says) that he will not be free from the note of temerity who contends that he erred and who reproves the cult which the Pontiff himself approved.

And indeed James Pignatelli judged no differently concerning the opinion which denies to the Roman Pontiffs the faculty of dispensing in a merely ratified matrimony (Canonical Consultations, book 1, consultation 148, no. 6), writing: Therefore, by the judgment of all Canonists and very many Theologians, and by the examples of the Supreme Pontiffs down to our times, this has been so confirmed that it would be temerarious to assert the contrary. Nor did George Gobat judge otherwise (tract 10, no. 691): Nor do I think that the opinion of Pontius can now be defended without insult to the Apostolic See, since Diana named seven Pontiffs who easily dispensed in thirty such cases, and most recently Innocent X, after such long and sharp disputes among the Theologians concerning this power, used it toward a common laborer, supported by no favor at all, and indeed without a cause concerning the public good, as I most faithfully related above (no. 678). Hence also Elbel (On Matrimony, conference 15, no. 360): It cannot be said without the note of temerity that the Pontiffs erred in dispensing.

Moreover, whatever anyone judges must be thought concerning these judgments, not even the VV. will be able to call into doubt that the affirmation of the Holy Doctor concerning this question, There are two probable opinions, leads to very grave inconveniences, even with their own principles considered. And indeed it now follows that the Roman Pontiffs therefore acted in this matter relying upon an opinion which can be false, indeed which is probably false. Yet, first, the right of a third party is also at issue here, for it is known that dispensations of this kind were also granted against the will of the other party. And if the dispensation must be called merely probably valid, did not the VV. elsewhere contend (page 799) that probability avails nothing against a right certainly existing beforehand? But is it not otherwise certain that a right had already been acquired by the other party through the contract of matrimony? Would it not therefore have to be said that the Roman Pontiffs acted unjustly toward the other party? Does not Pontius (book 9, chapter 3, no. 8) bring forward this argument for denying this power to the Pontiff, because it appears difficult for the Pontiff to make a law against a right of justice acquired by a third party, or to dissolve a matrimony, which we see clearly in lesser contracts?

Furthermore, no one calls into doubt that through the rescission of matrimony a most grave injury is inflicted upon the Sacrament itself unless the matrimony was legitimately dissolved. But according to the principles of the VV. and of the Holy Doctor Alphonsus, is it licit to act with a merely probable opinion and at the same time with a probable and grave irreverence toward the Sacrament? Is it not evident that there is danger of this grave irreverence if a marriage is said to have been dissolved by pontifical dispensation only probably?

Moreover, since through a pontifical dispensation of this kind the faculty of passing to other nuptials is given to each spouse, could the spouses licitly proceed to these other, probably adulterous, nuptials? Could the Church consent that one be admitted to the Sacrament of matrimony who is still probably bound by the bond of a prior marriage and would probably remain in an adulterous union?

Deservedly, therefore, the Salmanticenses (tract 9, chapter 4, no. 59) say: Very often the Supreme Pontiffs have dispensed so that a ratified matrimony might be dissolved; but it must not be believed that the Pontiffs erred in a matter so grave and one which pertains especially to morals, because in matters pertaining to morals IT APPEARS IMPIOUS TO ASSERT that the Supreme Pontiffs err. And yet, if the affirmation of St. Alphonsus is admitted, would it not probably have to be said that the Supreme Pontiffs probably erred in a grave matter pertaining to morals?

Nor does Diana, whom the VV. otherwise sometimes exhibit as too benign, judge differently (volume 3, tract 1, resolution 94, no. 4): It is in no way likely that the Pontiffs err in a matter of such importance, since their error would gravely harm the Churches. For it would not only be in fact but would redound into doctrine pernicious to the Church, because by their deed they implicitly teach, etc. And a little later (no. 5): Their error would concern one of the principal heads of our Religion, which would indeed be intolerable. And, meeting an evasion, he adds: You will say that the error is only speculative, in which they are excused because they follow a probable opinion of various Doctors. The reply is that this does not satisfy, since even a speculative error in moral doctrine, or in a deed from which error in moral doctrine would follow, and especially in the Sacraments, would be most pernicious to the Church. Then he admirably adds (no. 12): And certainly it ought to suffice for any Christian, however learned, that the Roman Pontiffs, and especially Pius V, otherwise a most holy man and an eminent theologian, frequently dispensed in the aforesaid marriages.... It ought also to suffice that the same Roman Pontiffs declared that it was not in the mind of Christ in Matthew 5 and 19 to include the aforesaid matrimony, to which interpretation the greatest faith must be given, chapter Haec est fides, cause 24, question 1.

In support of the affirmation of St. Alphonsus, the VV. cite (pages 802-803) certain Authors whom they say were contemporaries of the Holy Doctor. Two things can be displeasing in this. The first is that from Cardinal Gotti, as though he denied this power to the Pontiff, they bring forth the general thesis concerning the indissolubility of matrimony and concerning its dissolubility on the occasion of conversion from infidelity or of Religious Profession; but they then suppress in silence the fact that he plainly proves the power of the Pontiff concerning dispensing in a ratified matrimony (question 8, doubt 3, section 1, no. 15). The second is that they likewise report from Antoine (chapter 2, question 8) what he states generally thus (reply 1): Every matrimony contracted absolutely is and always has been indissoluble without a special permission of God; and then suppress what is read thus (ibid., reply 4): A ratified but non-consummated matrimony of baptized persons is dissolved in two cases: first, through solemn Profession in an approved Religion; second, according to very many Canonists and Theologians, it is dissolved by the authority of the Pope. He then defends this thesis with several arguments.

Whatever may be the truth concerning this (as also concerning the fact that the VV. add on page 802 that Arriaga, S.J., was cited by the Salmanticenses, although these certainly mention Aragon but nowhere Arriaga), no one is ignorant that several others, especially somewhat more ancient Authors, could have been cited for the opinion which either denies or calls into doubt that power of the Roman Pontiff of which we speak. But this cannot or ought not move anything. We discern in this controversy what we have known to have occurred also concerning others: when they began to be debated in the Schools, there existed the greatest and afterward the sharpest disagreement of the Doctors; but in the course of time, both by the aid of maturer discussion and especially by that light which manifests itself from the Roman Apostolic See, even apart from any definition, through deeds or other reasons, the disagreement gradually diminished and finally vanished altogether.

In this matter the most prudent economy and long-suffering patience of the Apostolic See indeed showed itself admirable: while, at the time when by deeds or another reason it sufficiently indicated toward which side it inclined and where its sense tended, nevertheless, where no grave danger threatened, it did not prevent its children, otherwise prepared to obey, from meanwhile disputing among themselves, and sometimes in disputing from arriving at the point where they perhaps appeared to fall short of the reverence and honor due to so great a Mother.

In a not dissimilar manner, the same Apostolic See, while vindicating to itself by the deeds themselves the right of dispensing in a ratified matrimony, nevertheless patiently endured that, for example, Soto (In IV Sentences, distinction 27, question 1, article 4, section His tamen nihil obstantibus) should write concerning this doctrine: Nevertheless, to confess the weakness of my intellect, always saving the censure of the Church, it represents to me no appearance of probability. The Apostolic See further patiently endured that someone should say it to be free from sin while it dispenses concerning solemn vows and a ratified matrimony only because invincible ignorance excuses it. Thus Martin Wigandt (Tribunal of Confession, tract 2, proem, examination 3, no. 7): If, however, an opinion less probable in itself appears more probable to someone, he does not sin by following it in practice, because invincible ignorance excuses; and thus it can happen in dispensations of the Pope concerning solemn vows and a ratified matrimony. Therefore, according to this opinion, lest we ascribe to the depravity of the Roman Pontiffs acts of the Apostolic See of this kind, which we see frequently repeated through several centuries down to our days, we must evidently impute them to their ignorance! And hence Charmes, as the VV. themselves report (page 804), excused the Roman Pontiffs because THEY HAD BEEN DECEIVED! What wonder, then, that an opinion which necessarily leads to consequences of this kind became obsolete in the course of time?

The VV. observe (page 801) that St. Alphonsus, when he calls probable the opinion which denies that the Pope can dispense in a ratified matrimony, speaks only of speculative probability, as do the other Doctors.

Reply. What those mean who use a phrase of this kind in this controversy (for St. Alphonsus does not have it thus) can scarcely be understood, and one would rightly say that they labor under an equivocation. The controversy is whether the Pontiff has the power of dissolving a merely ratified matrimony, and therefore whether the dissolution of a matrimony through pontifical dispensation is valid or not. Does their opinion, then, reduce to this: speculatively, the Pontiff probably does not have this power, but practically he has this power absolutely? And again: the dissolution of a matrimony of this kind is probably not valid speculatively, but in practice it is absolutely valid? Such an opinion plainly savors of something most absurd.

But, as I said, these appear to labor under an equivocation. For when they ask whether the Pontiff can dispense in a ratified matrimony and reply that, speculatively speaking, he probably cannot, they understand that can concerning power necessary for the validity of the act. But when they speak of practice, they understand that can, not likewise concerning power for the validity of the act, but concerning the liceity or honesty of the act, which they finally derive either implicitly or explicitly from the invincible and therefore inculpable ignorance of the agent. But if, once the equivocation is removed, the question is asked whether the Apostolic See can licitly dispense in a ratified matrimony, will they dare to reply: speculatively speaking, it is probably illicit, but practically it is altogether licit? For if you set aside the excuse of invincible ignorance, do any circumstances arise in practice which dissolve the reasons for which the action is speculatively probably illicit?

In brief: if the power of the Pontiff necessary for the validity of the act must really be called doubtful, in practice there can by no means be avoided those inconveniences which we touched upon above, and especially this one: that those who are probably still bound by the bond of a preceding matrimony are admitted to other nuptials.

And indeed whatever may finally be added concerning invincible ignorance which excuses the dispensing Pontiff from sin must deservedly be called most empty. For all the Doctors now agree on what is deduced from the propositions condemned by the Apostolic See: that in conferring Sacraments it is illicit to follow a probable opinion concerning the validity of the Sacrament. And therefore it manifestly follows that in the present case it is illicit to admit to the Sacrament of matrimony where the consent of the contracting parties is probably invalid. Moreover, if this is illicit in practice, it must also be called illicit speculatively. Cardinal de Lugo writes excellently to the point (On Justice and Right, disputation 10, no. 189): If these inconveniences follow of themselves from that opinion, it certainly will not be probable even speculatively; for even for the speculative probability of a moral matter, the matter must be such that in human circumstances it does not bring inconveniences which render it illicit; but if of itself it brings inconveniences of this kind, by that very fact it is intrinsically illicit even speculatively speaking. Since, therefore, to conclude at last, this reason for excusing acts of the Apostolic See, repeated so often through several centuries down to us, as though through mere ignorance the Roman Pontiffs had used so doubtful a power as to give occasion to those gravest inconveniences on account of which they themselves condemned the use of probability in the subject matter, must be called most empty and altogether unworthy of a Theologian, it ought not appear surprising that Theologians finally judged empty the arguments which cast doubt upon this power of the Apostolic See, and that in the course of time the matter was brought to the point that the opinion became obsolete and must be called outmoded.

2. A ratified and non-consummated matrimony can be dissolved through the solemn religious profession of one of the spouses, and this by a special privilege granted by Christ and declared by the Church. For thus the Council of Trent, session 24, canon 6: If anyone shall say that a matrimony ratified but not consummated is not dissolved through the solemn religious profession of one of the spouses, let him be anathema ³. But in order that the spouses may deliberate about the use of this privilege, they have two months after the nuptials granted to them by the law itself ⁴, during which time they are not bound to render the debt. - St. Ligorius, nos. 870, 958. Indeed, even after that period of two months, if the matrimony has not been consummated, even through an illicit refusal of the debt, this privilege remains. Ferraris ⁵. Nor is it impeded by fornication had between the betrothed persons before the celebration of the matrimony ⁶. - Scavini.

³ It must be added here, which the Author omits, that before the convert to the faith binds himself in a second marriage, it is necessary to interpellate the spouse who is still an infidel, so that it may be established whether that spouse is willing to cohabit peacefully with the convert, etc., or, according to the different circumstances, whether that spouse is also willing to embrace the faith, etc. The reason is evident, because just as, in doubt concerning the death of a prior spouse, it is necessary before entering a second marriage to inquire whether the former is in fact dead, so in this case it is necessary to inquire whether the infidel spouse, according to the Pauline phrase, in fact departs.

Cardinal Brancatius, whom Clericatus afterward copied (On Matrimony, decision 11, no. 21), indeed judged (In IV Sentences, disputation 16, no. 198) that this interpellation is so necessary that a matrimony contracted without the will of the prior infidel spouse having been ascertained must be held invalid. He brings forward this reason (ibid., no. 199): that the Privilege does not have its force unless the conditions required by the legislator are observed. But the chief condition, he says, is that the infidel depart. Yet for the argument to conclude, the minor would have to be this: But the condition necessary for the validity of the matrimony is that the faithful party first investigate and know that the infidel wishes to depart. He himself does not prove this, nor, I think, will anyone easily prove it. And it is equally certain that a second marriage is not valid before the death of the prior spouse. But anyone who, confusing the occurrence of the condition with knowledge of that occurrence, reasoned thus would argue badly: Therefore, in doubt concerning the death of a spouse, another matrimony contracted without the doubt whether the spouse is in fact dead having been removed is invalid. The correct conclusion is that one sins who contracts another matrimony without certain knowledge of the death of the prior spouse, but that matrimony is valid or invalid according as the prior spouse was living or dead at the time when the new marriage was contracted. By parity you will conclude in our case that the faithful party indeed sins who, without consulting the infidel spouse and therefore in ignorance whether that spouse wishes to depart, contracts new nuptials; nevertheless, these nuptials are valid or invalid according as the condition of that departure exists or does not exist. But the argument which some, especially Missionaries, thought could be taken in favor of the opinion of Brancatius from a Declaration of the Sacred Congregation for the Propagation of the Faith in 1816 fails for several reasons. For other reasons were available on account of which the second marriage of a certain Tullius with Martha was judged invalid, as is easily evident to one inspecting the genuine Acts of the Sacred Congregation. See Sanchez (book 7, disputation 74, nos. 13-18), where he discusses both the necessity and manner of interpellation and the delays to be granted to the infidel.

The greater difficulty is what must be done when the convert cannot interpellate the other. This can happen especially for two reasons: either because the infidel cannot be approached, or because it is not established which of several persons must be interpellated, for example, when it is unknown which of several women whom a man has or has had is his legitimate wife.

As regards the first case, let the question now be omitted concerning an infidel who has maliciously fled or lies hidden so as not to be interpellated.

For, as the Doctors observe (see Clericatus, On Matrimony, decision 11, no. 26), it is then sufficiently established that the infidel is unwilling to be converted or to cohabit, and therefore the faithful party will be able freely to enter another matrimony. The question is when the infidel cannot be interpellated because it is unknown where the infidel is, or because the infidel is so far away that an admonition is considered impossible.

Many, whom Benedict XIV acknowledges to have been the greater number (On the Synod, book 6, chapter 4, no. 3), taught that in this case there is no need of interpellation because it is then morally certain that the infidel is unwilling to be converted and to leave his own people in order to cohabit legitimately with the convert; and no admonition is needed when there is moral certainty concerning the infidel's obstinacy. See Sanchez (book 7, disputation 74, no. 14) and Clericatus (On Matrimony, decision 11, no. 26). But perhaps one will admit this with difficulty. For the reason of distance and ignorance of the place to which one's own spouse was carried, for example, if a husband were seized and carried away from Africa and transported to the Americas, will indeed perhaps remove from the wife left in central Africa the hope of recovering him; but whence is it certainly proved that she is also obstinately unwilling either to be converted or to cohabit with him if perhaps found? Indeed, experience not rarely shows the contrary, and sometimes it has been discovered that the spouse first left behind came to the Christian faith before the abducted spouse did.

Pontius (On Matrimony, book 7, chapter 48, no. 22), whom Benedict XIV afterward copied (On the Synod, book 6, chapter 4, no. 3), contends that the faithful party cannot marry unless a dispensation of the Pontiff intervenes by which that admonition is supplied, namely, as Benedict XIV explains (l.c.), so that a new matrimony can be entered with the interpellation of the other infidel spouse omitted, when it is established that the spouse cannot legitimately be interpellated. But if these things are understood so that the sole effect of the dispensation is to release the faithful party from the obligation of inquiring whether the spouse wishes to depart or not depart, this opinion can deservedly appear more intolerable than the preceding opinion of Sanchez. For the latter at least supposes there to be moral and therefore sufficient certainty of the departure of the infidel spouse, and consequently supposes that essential condition to be present which, from the doctrine of the Apostle Paul, is both necessary and sufficient for the faithful party to pass to other nuptials once the bond of the prior marriage has been dissolved. The later opinion of Pontius, on the contrary, taking no account of the existence or nonexistence of that necessary condition, thinks that sufficient provision is made for the matter if, by means of a dispensation, someone makes no further inquiry into the will of the infidel, whether the infidel wishes to depart or not; just as if, in doubt concerning the death of a prior spouse, someone should think it sufficient for validly contracting another matrimony that it be authoritatively declared by the magistrate that an inquiry concerning the life or death of the spouse is very difficult or even morally impossible! For to this they finally reduce the whole force of the pontifical dispensation in this question. In this matter they also reserve for pontifical power parts which I would almost call ridiculous, namely, that it dispense from the interpellation of a spouse whom it is established cannot legitimately be interpellated! Yet if the condition required by the Apostle is perhaps in reality lacking, and the spouse left, for example, in Africa has a firm intention of preserving fidelity to his or her spouse for all time rather than departing, how will the bond of this legitimate and consummated matrimony cease? What if this spouse left behind has already received the Christian faith and baptism when the spouse abducted into slavery comes to baptism, or at least when the abducted spouse thinks about new nuptials, so that the former marriage has now become ratified and the nature of a Sacrament has accrued to it? Whence, I ask, will we derive, in the opinion of Pontius, the dissolution of this bond which is certainly essentially required beforehand for entering a new matrimony?

Therefore this difficulty, which clear facts testified was not imaginary, had to be provided for in another manner. For what even now occurs in the markets of Egypt, that both men and women carried away into slavery from the Mediterranean regions of Africa are sold although they are joined in matrimony, we know was also commonly done in past centuries so that colonists might be obtained for the immense deserts of America. When the Christian charity of the Missionaries had led these persons to the faith, there pressed the grave difficulty of how provision might be made for those whom it was not easy either to keep continent or to assist with matrimony, since they were bound by former marriages. The use of the faculty which the Apostle grants to those converted to the faith was impeded not only because the spouses left in barbarous places could not be interpellated but also because it had been learned by experience that not rarely the spouses left in Africa also had already been converted to the faith by the aid of Missionaries and cleansed by baptism. Therefore a remedy was needed by whose aid those wretched persons, whether carried abroad into slavery or left in their homeland without a spouse, would not lack matrimony even when perhaps there was no longer any place for the faculty of marrying granted by the Apostle; and since a new matrimony cannot be contracted while the bond of the prior matrimony remains, a remedy was needed by which the bond of the prior matrimony would certainly be dissolved even when the departure of the former spouse furnished no access to this dissolution.

And this indeed is the remedy which Gregory XIII, and afterward Urban VIII, judged should be applied in the Letters which we mentioned in the preceding Note. For in them there appears most expressly even the case in which there can be no place for the faculty given by the Apostle on the occasion of the departing infidel spouse: namely, when this departure is not only unknown but is supposed to be lacking, because the other spouse is also presented in the same Letters as already converted to the faith at the time when the former contracted new nuptials. These marriages, says Gregory, even if it afterward became known that the former infidel spouses, being justly impeded, could not declare their will - namely, the will of adhering to their spouses, for otherwise a will of this kind would have been of no importance - and that they had also been converted to the faith at the time the second matrimony was contracted, nevertheless must never be rescinded but are valid and firm. But how can the second marriages be valid and firm unless the preceding bonds have been dissolved? These could not have been held dissolved by force of the Pauline concession, as is evident, because the necessary condition, namely, the departure of the prior infidel spouse, is lacking. Therefore, the removal of the prior bond must be ascribed to apostolic power, which, by force of that granted dispensation, possesses the authority of dissolving marriages of infidels not yet consummated after conversion to the faith but still merely ratified, and in fact dissolves them. And for precisely this reason Gregory XIII and afterward Urban VIII, when about to grant this dispensation, make express mention in the same Letters of this power, through these words: Therefore We, considering that marriages of this kind contracted among infidels are indeed true, yet are not considered so ratified that, when necessity urges, they cannot be dissolved, etc. This observation would have been inserted altogether without purpose in the same Letters unless the exercise or use of this apostolic power intervened in the dispensation granted there.

That Pontius, having these Letters before his eyes, could affirm (l.c.) that it is not gathered from them that the Pontiff dissolved those marriages, but only declared that the case in which the infidel does not wish to cohabit with the faithful party is then verified, since, he says, for so long a time the faithful party is not sought by the infidel - words altogether ridiculous, since in the hypothesis interpellation is supposed impossible, and the Pontiff, as is evident from his own words, supposes that the infidel, being justly impeded, could not declare his will - this, I say, can be explained only by one who knows that Pontius, carried away by a blind passion for contradicting Sanchez, for Sanchez had affirmed that the Pontiff wished through those Letters to dissolve the marriages where necessary, not only in this place but very often and everywhere throughout the course of his work turned aside into paradoxes and absurd opinions. And it must plainly be regretted that this paradox of Pontius also crept into Cardinal Lambertinius's work On the Diocesan Synod (book 6, chapter 4, no. 3, and book 13, chapter 21, nos. 3-4). Hence it happened that this question, otherwise sufficiently simple, rather than being flooded there with some new light, as often occurs with other questions, was wrapped in denser darkness and entangled in inextricable difficulties. This happened also as regards the other case proposed above, to which we now proceed.

Another difficulty, therefore, occurs when interpellation of the infidel spouse becomes nearly impossible because it is unknown which of several wives whom a man actually has or formerly had is to be interpellated as legitimate. For although after the promulgation of the evangelical law only the first wife is legitimate by law, it sometimes becomes uncertain among barbarians, who readily repudiate wives, which is truly the first wife. For it happens that someone's first wife had previously married another man and was repudiated by him; yet the doubt does not thereby cease, since it is uncertain whether she was the legitimate spouse of the prior man, who perhaps had previously repudiated another wife. And for the same reason it is again not established whether the first wife of that former man was legitimate, since she herself had previously been repudiated by another husband, concerning whom it is doubtful for the same reasons whether she was his legitimate wife. And thus one must proceed almost to infinity without it being possible to establish anything certain.

This condition of affairs had for a long time kept the Bishops, Pastors, Missionaries, etc., of those regions very anxious. For when those who were converted to the faith were commanded to choose for themselves only one wife from those whom they either had or had had, they generally desired one who herself would embrace the faith, although she was not the first. Hence a twofold rock. First, to find the first wife who could be interpellated sometimes appeared not merely difficult but nearly impossible; and even if she could have been found, it was hard for the neophytes to dismiss the one whom they preferred, and therefore many were deterred from embracing the faith. On the other hand, how could the bond of a prior matrimony, if one existed, be believed dissolved, since either the former wife, who was unknown, could not be interpellated, or even though interpellated and consenting to cohabitation, she was rejected by the man as hated? Therefore, in neither case did the permission given by Paul to pass to other nuptials, and thus the dissolution of the prior bond, have place: not in the latter case, because there plainly lacked a cause for dismissing the first and legitimate wife, who would rather have wished to remain with her spouse; not in the former, because the departure of the first wife could not be established, and therefore it was no more licit to deliberate about new nuptials than when nothing can be learned concerning the life or death of a prior spouse.

When these things had been reported to the Apostolic See, St. Pius V, applying by Letters given August 2, 1571, a remedy not unlike that which Gregory XIII afterward applied, decreed that the converts could remain with that wife among the several whom they had married who was baptized together with the husband, even if she had been neither the first nor legitimate. Since therefore, he says, as We have learned, several wives are permitted to Indians while they remain in their infidelity, whom they repudiate even for the lightest causes, hence it has happened that those receiving baptism have been permitted to remain with that wife who is baptized together with the husband; and because it very often happens that she is not the first, whence both the ministers and the Bishops are tormented by most grave scruples, judging that this is not a true matrimony; but because it would be most harsh to separate them from the wives with whom those Indians received baptism, especially because it would be most difficult to find the first wife, therefore We, wishing with paternal affection to provide for the condition of the aforesaid Indians and to free the Bishops and ministers themselves from scruples of this kind, by Our own motion and from Our certain knowledge and from the plenitude of apostolic power, declare by apostolic authority through the tenor of the present Letters that the Indians thus baptized, as premised, and to be baptized in the future, are to remain with the wife who was and is baptized with them as with a legitimate wife, the others having been dismissed, and that a matrimony of this kind legitimately subsists between them, etc. Moreover, since these marriages could not legitimately subsist unless the bond of the prior marriage had been dissolved, and since the dissolution of the bond in the case cannot be attributed to the faculty granted by the Apostle Paul on account of the departure of the prior infidel wife, it is manifest, unless someone should prefer to say that St. Pius V dispensed so that the Indians could have two legitimate wives at the same time, that the Roman Pontiff, from the plenitude of power, wished to dissolve and remove that first bond, if any existed.

But behold, here also Pontius, for whom discourse concerning the Roman Pontiff dissolving these marriages by extraordinary power was like a dreadful apparition, and after Pontius Lambertinius (On the Synod, book 13, chapter 21, no. 4), twist this Constitution of St. Pius also into a mere dispensation, so that extrajudicial knowledge of the impossibility of interpellating the infidel spouse might be substituted for juridical interpellation. Thus they again introduce a ridiculous scene of a Pontiff who by apostolic authority dispenses from interpellating a spouse who cannot be interpellated, and who substitutes ignorance of whether that spouse wishes to depart for the spouse's departure required by the Apostle, as though these were one and the same thing; just as though, in relation to celebrating new nuptials, it were one and the same thing that a prior spouse is dead and that it is unknown whether the spouse is dead or still lives! The same is repeated in Lambertinius's Canonical Question 546, no. 37, where it is held to be one and the same that it is most difficult to find the first wife and that, according to the words of the Apostle, she departs although she was not interpellated!

In the latter place Lambertinius also adds an argument of this kind: In order that a dispensation concerning the consummated matrimony of infidels might be argued from the Brief of St. Pius V, it would have to be shown that the same Supreme Pontiff supposed that the first wife had been found, and, notwithstanding this, that the same Pontiff declared the validity of the matrimony with the second or third wife converted to the faith. But others will very easily deny this, since it is shown to be false without any difficulty. For, in order that a dispensation as regards the bond in preceding marriages of infidels may be argued, it suffices that these two things were established: first, that St. Pius decreed that the matrimony afterward contracted with another should be held legitimate by all and always; second, that it could nevertheless sometimes happen that the dissolution of the preceding conjugal bond could not be ascribed to the departure of the prior spouse according to the phrase of the Apostle.

But the first point is manifestly clear from the words of the Supreme Pontiff. As regards the second, who, I ask, or for what reason, would say it impossible that the first wife, if she should perhaps be found - St. Pius says this is most difficult, not impossible - would wish to adhere to her legitimate spouse, especially if she herself had already been converted to the faith or was prepared to be converted? Since these things are sufficiently manifest, we shall refrain from adding the several other things which could be brought forward upon the same matter.

It is useful to add only this concerning the present matter: it is to be desired that the little work of the Most Reverend Father Camillus Tarquini, Professor of Canon Law in this Roman College, should come forth into public light. In it, solidly according to his custom and most learnedly, he treats the question whether the Pauline privilege of which we spoke also has force when someone receives himself through baptism from infidelity into a Christian Communion which is nevertheless separated from the Catholic Church. For I do not doubt that, after considering the reasons brought forward by him, everyone will concede to his opinion, which holds the affirmative part.

⁴ This time, however, can be restricted or prolonged at the discretion of the judge, although one ought not readily to depart from that period. See Sanchez (book 2, disputation 24, no. 12) and Schmalzgrueber (book 3, title 32, no. 1). According to the truer and more common opinion, however, the two months must be computed not from the day of the nuptials but from the day on which the judge fixes the term. Sanchez (ibid., no. 21) and Schmalzgrueber (ibid., no. 3).

⁵ A profession is called solemn when it is made in a Religion approved by the Apostolic See, as distinguished from Congregations in which only simple vows are emitted. These simple vows, far from having the force of dissolving a preceding matrimony, do not even render a subsequent one invalid, as will be said below where merely impeding impediments are treated. Therefore Pontius wrote erroneously (On Matrimony, book 9, chapter 6) that a ratified matrimony is dissolved through the profession of the simple vows which are emitted after two years of novitiate in the Society of Jesus; and Vincent de Justis also copied this error from Pontius (On Dispensations, book 2, chapter 14, no. 106). For indeed, by a singular Privilege granted to the Society of Jesus by Gregory XIII, those simple vows constitute a diriment impediment, and therefore certainly render those bound by them incapable of contracting matrimony validly; but that they also dissolve a matrimony already contracted, the Society of Jesus itself has never known or imagined. See Suarez (On Religion, tract 10, book 4, chapter 2), Vasquez (In I-II, disputation 165, chapter 10), Sanchez (On Matrimony, book 1, disputation 18, no. 6), Croix (book 6, part 3, no. 413), Schmalzgrueber (book 3, title 31, no. 210, and book 4, title 6, nos. 61-64), etc. There is added the Resolution of the Sacred Congregation which Barbosa reports (Collection of Apostolic Decisions, collection 465, under MATRIMONY, no. 30).

⁶ Except when it is necessary to remain in the matrimony in order to legitimate offspring, repair scandal, or repair the honor of the bride. - St. Alphonsus, book 6, no. 958.

Nevertheless, one sins who contracts matrimony with the intention of entering Religion without warning the other party. - St. Ligorius, ibid.

3. Even a consummated matrimony of infidels can be dissolved by divine concession when either spouse is converted to the Christian Faith ⁷, and the other refuses to cohabit peacefully with the converted spouse, or does not cohabit except with injury to the Creator and contempt of the Christian Religion, or attempts to pervert the faithful party ⁸. This is deduced from the Declaration of Innocent III cited by St. Ligorius, no. 956, etc. This divine concession is drawn from the words of the Apostle, 1 Corinthians 7:12, where he says: If any brother has an unbelieving wife and she consents to dwell with him, let him not dismiss her.... But if the unbeliever departs, let the unbeliever depart; for a brother or sister is not subject to servitude in such cases: but God has called us in peace. Innocent III explains the same more fully in chapter Quanto 7, On Divorce. - See more in case no. 903 and following ⁹.

⁷ Understand conversion through the reception of baptism. Through baptism, however, the conjugal bond with the infidel is not yet dissolved, but only when the convert, upon the refusal of the other to cohabit peacefully and without insult to the Creator, contracts other nuptials. Benedict XIV (Canonical Question 546, no. 6) acknowledges this doctrine to be common, indeed most common, among Theologians and Canonists. Hence, unless we suppose a typographical error, it can scarcely be understood why elsewhere (On the Synod, book 6, chapter 4, no. 4), although he again acknowledges it to be almost commonly received and defined by the Sacred Congregation of the Council in 1679 and 1680, he nevertheless says that MOST of the Doctors hold the contrary.

Hence two consequences. First, if the spouse who remained an infidel afterward comes to the faith and baptism before the other has entered a new matrimony, the latter is bound to receive the former and can be compelled to cohabit. Thus chapter Gaudemus 8, On Divorce; and Benedict XIV reports that this was again confirmed by the Sacred Congregation with the approval of the Pontiff on July 1, 1679, and April 13, 1680 (cited Canonical Question, no. 6). The reason is that the marriage, not yet dissolved, becomes ratified through the baptism of the other; indeed, it fully assumes the nature of a Sacrament, which, as has now been defined, cannot in Christian marriages be separated from the nature of a contract, just as when marriages are sanated in the root. Second, if the former marriage has already been dissolved through the new nuptials of the convert, it will be open also to the other party, for the bond of matrimony is indivisible, to enter other nuptials not only validly but also licitly, both if that party is converted to the faith and, as the more common opinion holds, even if the party perseveres in infidelity. - See Schmalzgrueber, book 4, title 19, nos. 32-33.

Since the opinion of the Doctors agrees that the converted spouse, if the other infidel refuses to cohabit, etc., can either make profession in Religion or receive sacred Orders, the marriage is restored anew in neither hypothesis even if the other is afterward converted, unless perhaps the former is still a novice or received only minor Orders. The reason is that through religious profession, and likewise through sacred Orders, a state incompatible with matrimony is assumed. Schmalzgrueber, book 4, title 19, no. 37; Sanchez, book 7, disputation 76, no. 6; De Justis, book 2, chapter 15, no. 40. Sanchez (l.c.) thinks that the same must be held if the convert emitted a vow of absolute chastity. And in the hypothesis of religious profession having been emitted, St. Bonaventure, Sanchez, etc., more truly affirm, as Maschat says (Institutes of Canon Law, book 4, title 19, no. 9), that the matrimony is dissolved; and the common opinion of the Theologians, as Sanchez says (l.c., no. 9), deduces this by similarity as follows. For if such force was granted by Christ to profession in Religion that it dissolves the bond of a ratified matrimony between the faithful, much more will it dissolve a matrimony consummated during infidelity, which is not ratified, from chapter Quanto 7, On Divorce. But in the hypothesis of only sacred Order having been received, or of a vow of absolute chastity having been emitted, since the bond of matrimony is not dissolved according to the common opinion, and since otherwise the spouse bound by these bonds cannot be restored without dispensation to the other spouse who may have converted, then, if the spouse first converted would not willingly admit dispensations and the other could live in the state of continence only with difficulty, it would be expedient to have recourse to a dispensation by which the Pontiff, as was said above, would break the bond of the prior matrimony.

⁸ If, however, the party who entered Religion delays profession beyond what is reasonable, wandering from one Religion to another within the period of novitiate, the judge can assign a peremptory time so that the party either remain in some Religion and, after completing the novitiate there, make profession, or return to the spouse and consummate the matrimony. - Sanchez, book 2, disputation 24, no. 9.

⁹ The danger of perversion has caused it to be the case that, although the infidel party consents to dwell peacefully with the faithful party, the infidel party is nevertheless sometimes not admitted to cohabitation unless also converted to the faith. In this matter Benedict XIV (On the Synod, book 13, chapter 21, no. 1) praises the opinion of Cabassutius, who, after Sanchez, concludes (Practice of Canon Law, part 3, chapter 23, no. 11) that the question must be determined from the circumstances of the cases and the customs of the regions.

Moreover, practice bears that in regions of infidels, for example, among the Chinese, Indians, etc., converts are permitted to cohabit with an infidel and also to pass to other nuptials according to the doctrine of Paul if the infidel either refuses to cohabit or does not consent to cohabit except with injury to the Creator. To this pertains chapter Gaudemus of Innocent III and the Declaration cited by Benedict XIV (l.c.). Among Christian nations, however, the practice has prevailed that cohabitation is not permitted with a party who obstinately adheres to an infidel sect, for example, the Jewish, although that party protests a willingness to cohabit peacefully. See Sanchez (book 7, disputation 73, no. 12), who rightly observes that in this case also those circumstances have place on account of which the Apostle taught that the convert can dismiss the infidel party and pass to other nuptials and is not to be obliged to lead a celibate life; for this, since it could be a grave yoke, could remove the convert from embracing the faith, indeed, contrary to the mind of the Apostle, would subject the convert to servitude under a matrimony contracted in infidelity. Concerning this Cabassutius (l.c.) writes of Jews living under pontifical dominion: Liberty is granted both to the converted spouse and to the obstinate spouse to bind themselves in other nuptials, but to the obstinate spouse not before the converted spouse has contracted another marriage.

The diversity of practice according to the diversity of places and circumstances is seen in the Decree of the Council of Lima (act 2, chapter 10), which Sixtus V confirmed by apostolic authority (in Pignatelli, Canonical Consultations, volume 4, consultation 189, final proposition). It reads thus: Concerning those who, joined in matrimony, are converted to the faith while the spouse still remains an infidel, provision was prudently made in the preceding Council that if the infidel shows a ready hope of conversion, the Christian should in no way pass to other nuptials, as is defined in the sacred Canons, but should await the gain of the spouse in Christ. But if the infidel delays conversion, yet is not pernicious to the baptized spouse by turning that spouse away from the faith or drawing that spouse into mortal sin, then the infidel is still to be awaited for a period of six months, being assiduously admonished meanwhile concerning conversion. But since both the danger to the recent convert must be guarded against, lest, if the infidel remains long in the bed, the convert perhaps lose the faith of Christ, and provision must be made for the convert's liberty, lest the convert be compelled to live celibate, therefore we decree that, after the space of six months has elapsed, the matter be referred to the Bishop, who, after the cause has been well examined, is to declare to the faithful party that there is the faculty of entering another matrimony.... But if he sees that there is no danger in cohabitation, he is to command the faithful party to await

the infidel, or even to counsel cohabitation if he understands it to be profitable, according to the counsel of the Apostle Paul. For the same law cannot be fixed for all converts, since various circumstances certainly occur and the condition of all infidels is not the same.