V. Instruction Published by Order of the Sacred Congregation de Propaganda Fide on Marriages

Rome, 1821.

To the Venerable Brothers, Bishops, Apostolic Vicars in the Empire of China and the Kingdoms and Provinces adjacent to it.

The question concerning disordered and clandestine marriages among the Chinese has for a long time vexed not only your minds, Venerable Brothers, and the minds of the Sacred Workers who labor in cultivating that difficult field of the Lord, but has also exercised in no small measure the studies of this Sacred Congregation. And that not only for that cause by which St. Augustine, the light of the Church, professed that the question concerning Marriages is very obscure, and its recesses almost inexplicable; but, what is especially to be lamented, on account of the corruptions of men, darkening the appearance and beauty of the honorable bond of Nuptials. Therefore, solicitous that its own honor may be restored and stand firm for the great Sacrament, the S. C. has judged that an Instruction of this kind, inscribed to you, Venerable Brothers, should be prepared, in order that you may communicate it with Missionaries, Parish Priests, and Confessors. But the matter must be explained in order from the beginning.

I. Indeed, by your letters, as you well remember, given several times to this S. C., you signified that an evil custom had grown among very many Christians, unworthy of so great a name, namely, that after betrothals had been entered upon, and carnal copula had been had with one woman, they thereafter contract Matrimony with another, the common rites of the Empire and the rites of the Church customarily used there being observed. Concerning this matter, anxiously, and according to the charity with which you burn toward the little sheep committed to your solicitude, you asked from your Mother and Teacher a remedy suitable to the disease growing strong among those nations; and you asked whether that first kind of union, or the second, had the force of a just Matrimony, when within the borders of the Chinese Empire and the surrounding Kingdoms and Provinces the Tridentine Decree on Matrimony had not yet been promulgated.

II. And the Sacred Congregation indeed earnestly exhorted you and your Workers that in every way you strive, both by private and public sermons, and especially in the administration of the Sacrament of Penance, to deter the Faithful from clandestine marriages, which the Holy Church of God, for most just causes, has always detested and prohibited, and from which grave sins take their origin; and especially that they be gravely admonished and under threat of divine judgment who remain in a state of damnation, while, the former wife with whom they had contracted having been left behind, they openly contract with another and live with her in perpetual adultery. Nor, content with these admonitions drawn from the clear fountains of the Holy Synod of Trent, did it fail, for the solution of the proposed Doubt, to enjoin that there be observed the prescription of the Chapter Is qui, 30, de Sponsal. et Matrim., received from Gregory IX, Pontiff Maximus, and published from the pure fountains likewise of Pontifical Law among all Catholics. For when the Pontiff was asked what had to be done concerning a man who, after betrothals had been entered into with a woman and intercourse had been had, then married and knew another in the face of the Church, he gave a response of this kind: "He who gave faith to some woman that he wished to take her as wife, and if afterward he knows her carnally, and takes another in the face of the Church, is bound to return to the first: because, although the first marriage seems presumed, nevertheless proof to the contrary is not to be admitted against such a presumption. Hence it follows that the marriage afterward contracted in fact is not a true marriage, but null." This prescription the S. C. undertook to commend to your studies from the year 1786; and the same, in the year 1804, Venerable Brother Stephen Borgia, Cardinal of bright memory, likewise in the name of the Sacred Congregation, writing to one of you, namely to the Apostolic Vicar of Cochin-China, declared should be retained more explicitly.

III. But now, after so great a remedy and counsel had been offered by the S. C., it was hoping that, for rightly establishing the just marriages of those Christians and restraining clandestine ones, with God's help, nothing or almost nothing would remain, when after not a few years it received letters of the same Apostolic Vicar of Cochin-China, in which, besides other things, he signified: that the observance of the Chapter Is qui could scarcely, or not even scarcely, be introduced into those regions because of the invincible ignorance of the Chinese concerning that law; that among the heralds of the Divine word who devote vigorous labor to instructing the people, there had been almost no one who taught that, from clandestine copula following betrothals, a valid Matrimony was to be judged to exist in the external Forum; but that to teach this henceforth would be harsh because of the very grave inconveniences to be feared therefrom, and especially because of scandals about to arise both among Christians and among Gentiles, whose firm persuasion is: that no just Matrimony stands except that which has been celebrated in the sight of the Church, or of the civil law of the Empire.

IV. These letters having been received, the S. C. deliberated that nothing should be defined before letters were sent to you all, Venerable Brothers, by which, as you know, inquiry was made concerning the origin of the opinions among those nations concerning just and illegitimate nuptials; concerning the whole doctrine on Matrimonies explained by the Missionaries; concerning the ecclesiastical and civil rite of nuptials; and concerning the inconveniences and dangers to be feared if at any time the observance of the mentioned Chapter Is qui among the Chinese should be introduced.

V. And you indeed made the S. C. more certain by responses almost consistent with one another, which perhaps could have fully satisfied the Most Eminent Fathers, had they not judged that in defining a matter of such great moment they needed diligence beyond what can be said, and the highest maturity. And so other letters in the name of the S. C. came to you, and new responses were given by you, from which the Doubts which follow were formed.

Doubt I. (which in the series of propositions is the seventh) - Whether in China, Cochin-China, and the regions of both Tonkins, in which the Tridentine Decree on Matrimony has not yet been promulgated, copula following betrothals induces true Matrimony, even if the betrothed persons, while coming together, moved not by marital affection but by lust, think that they have rushed into an illicit and fornicary act, incapable of constituting a just Matrimony, and on that account think that the faculty of passing to other vows has not been taken away from them, since this persuasion prevails among those nations?

Doubt II. (which in the series is the eighth) - What counsel is to be given to the Missionaries of those regions concerning the manner to be observed, especially in the administration of the Sacrament of Penance, with those Faithful who, after Betrothals and copula had with one woman, publicly contracted nuptials with another, which they themselves in good faith judge to be just and valid?

Doubt III. (which in the series is the ninth) - Since the Apostolic Vicars and Missionaries urgently ask for a remedy suitable to restraining clandestine unions, and to averting the most disastrous harms about to arise from them, what counsel is to be given, or what is to be prescribed?

For unraveling these Doubts more clearly and accurately, it will help to observe: to the Most Eminent Fathers it seems incredible that the persuasion mentioned in the first Doubt prevails so greatly among the Chinese that it can be judged common, namely, that from Betrothals and copula had clandestinely the faculty of passing to other vows has not been taken away from them. For since the S. C. prescribed that the law contained in that chapter be explained to those nations as often as occasion offered itself; and since it is ascertained with how much zeal and solicitude you have been accustomed to comply with the counsels and mandates of the S. C.; and moreover after counsels and mandates of this kind were received, for several years nothing was reported by you concerning that persuasion; the Most Eminent Fathers rightly think that Missionaries and Catechists did teach the doctrine of the Chapter Is qui, not indeed always, but as the matter required, to some of the faithful, and that these afterward could teach others and still others. And certainly one of you narrated that a certain Missionary, more clearly than the others, openly taught before many leading men that Betrothals after carnal copula had between the betrothed must be judged according to the laws of the Church as Matrimonies, unless the contrary is certainly demonstrated. By this fact indeed it is easily understood that other Missionaries taught the same less clearly, and that those leading men easily communicated with other faithful this most grave rule of the Church. Therefore there will be, not many, but nevertheless there will be, some among whom that persuasion does not prevail; there will be very many among whom it will prevail. Therefore that persuasion will stand on one foot, and fall on the other.

See then, Venerable Brothers, that provision must be made for each kind of the Faithful by suitable counsels and teachings. In order that this may succeed accurately, place before your eyes what Father Pirhing, a most approved explainer of the Sacred Canons, brings forward in elucidating the chapter Is qui. For in book IV of the Decretals, title 1, section 1, § 5, after the mentioned rule or prescription of Gregory IX, he adds these things: "The reason is that the Church, from carnal copula, presumes conjugal consent in the betrothed to exclude sin, namely, that the Betrothed man and the Betrothed woman wished to know one another not with fornicary but with marital affection; because a delict is not to be presumed, and this is a presumption of Law and concerning Law, that is, altogether certain and undoubted, against which proof is not admitted; and consequently the Betrothed man asserting that he did not know the Betrothed woman with marital affection or with the mind of contracting Matrimony with her would not be heard. Covarruvias, in Epitome, book IV of the Decretals, p. I, chapter IV, § 1, nos. 1 and 2. It is confirmed, because carnal copula following after Betrothals concerning the future is a sufficient sign of present consent unto Matrimony; and the Betrothed persons through it are judged to hand themselves over to each other; which presumption has place in the contentious and judicial Forum only, but not in the forum of conscience and penitential forum. Hence if the Betrothed man truly had known the Betrothed woman not with marital but with fornicary affection, there would not be a true marriage in the penitential Forum and before God, because the Pope cannot make it that without expressed or tacit consent there be a true Matrimony. Hostiensis here, col. 2, at the end. Fagnanus here, nos. 6 and 7." Thus far Father Pirhing, who, exhibiting this doctrine, affirms that the same is published among all the treaters of the Canons. Stand here, therefore; cleave here. Namely, even in those regions in which the Tridentine decree on Matrimony has not been promulgated, if the Betrothed man and the Betrothed woman have come together with one another not with marital but with fornicary affection, not for that reason do their Betrothals pass into true Matrimony before God; and therefore before God, or in the Forum of conscience, the faculty of passing to other vows has not been taken away from them, if a legitimate occasion for dissolving the preceding Betrothals should offer itself.

Besides, if the copula has been brought into the external and judicial forum, the same persons could be held by the ecclesiastical judge in the likeness of legitimate spouses; and therefore, so long as one of them lives, be prohibited from any other marriage, because this is a presumption of law and concerning law, that is, wholly certain and undoubted, against which proof is not admitted; and consequently the betrothed man asserting that he did not know the betrothed woman with marital affection or with the intention of contracting marriage with her would not be heard.

Since these things are so, the S. C. judges that answer should be made to the seventh Doubt in this way, namely: - If in the aforesaid regions, where the decree of the Holy Council of Trent has not been published, two betrothed persons afterward have carnal copula between themselves, yet not from marital affection, but from illicit and fornicary affection, this copula of theirs by no means makes their preceding betrothals pass into true marriage before God; or, in the forum of conscience they remain free, and they will be able, if their aforesaid betrothals have been dissolved from some legitimate cause, licitly to enter other nuptials. Nevertheless, if their copula is proved in the external and judicial forum, they can, from the presumption of Law and concerning Law, against which proof is not admitted, be compelled by Ecclesiastical Power to hold themselves as true spouses, to whom, the consort living, any marriage whatsoever is interdicted. From Chapter 30 De Sponsalib. et Matrim.

But a step must be made toward unraveling the other Doubt, which is the eighth in the series of propositions: namely - what counsel is to be given to the Missionaries of those regions concerning the manner to be observed (especially in the administration of the Sacrament of Penance) with those Faithful who, after betrothals and copula had with a woman, publicly contracted nuptials with another, which they themselves in good faith judge to be just and valid. - The Most Eminent Fathers judged that this diligence and caution must be observed with a penitent of this kind. Let the confessor peacefully interrogate him whether he had intercourse with that first woman moved by marital affection, or by illicit and fornicary affection. If the penitent answers this latter, he will dismiss him in peace, nor will he move any doubt concerning the validity of the marriage contracted afterward. But if the penitent answers that he came together with that first woman with marital affection, he will gravely admonish him that he is not the husband of the other, but of the first, and that he must altogether return to her according to the prescription of the Chapter Is qui so often mentioned. But let the Missionaries also have another caution before their eyes: namely, if it should happen that a penitent of this kind in the external forum could by no means prove the carnal copula had by himself with the first woman, and therefore should be compelled by the judgment of the Ecclesiastical President to hold in honor the nuptials contracted in the sight of the Church; if this should happen, he ought patiently to tolerate any penalty whatsoever, even excommunication, rather than, being certain that he is entangled by the impediment of bond, have intercourse with the other not without grave fault. For the prescription of Innocent III, Pontiff Maximus, expressed in chapter 44 de Sent. Excom., is known: "If one of the Spouses" (so he says) "knows for certain an impediment of the union, because of which he cannot exercise carnal commerce without mortal sin, although he cannot prove it before the Church ... he ought humbly to sustain rather the sentence of excommunication than to commit mortal sin through carnal commerce."

From the things considered thus far, the S. C. has comprised the Response to this second Doubt in this way: - If some one of the Faithful, after betrothals and copula then had with one woman, contracts marriage publicly with another woman, and in this state approaches some Missionary in the Tribunal of Penance, he ought to interrogate him whether he had that copula with that first woman from marital affection, or from illicit and fornicary affection. If he answers this latter, he will move no doubt for him concerning the validity of his present marriage. But if he answers the first, he will gravely admonish him that he is the husband not of the second but of the first woman, and that he must altogether return to her. But there is added for the instruction of the same Missionaries that if perhaps this man, not being able to prove in the external forum the carnal copula had by himself with that first woman, should hence be forced by Ecclesiastical Power to remain with the other woman with whom he contracted marriage publicly, he ought humbly to sustain any penalty whatsoever, even excommunication itself, rather than exercise carnal commerce with this other woman not without lethal fault. From chapter 44 de Sent. Excom.

It must now be established what counsel is to be given to you, Venerable Brothers, and to the Workers who labor in the Chinese field of the Lord, so that clandestine unions may more easily and happily be restrained, and the scandals and most disastrous harms which could arise from them be cut off; which was proposed in the third Doubt. Certainly it cannot be denied that the greatest remedy and protection for cutting off clandestine unions is placed by the Church in the promulgation of the celebrated Tridentine decree on Matrimony; and the Apostolic See indeed, as often as this promulgation has seemed advantageous to Bishops and Apostolic Vicars, has left nothing undone by which it might show itself easy to the same, and prescribe to such a disease a medicine suitable to it. This it did in the Archiepiscopate of Kiev, whose example one of you indicated in his letters, namely the Venerable Brother Apostolic Vicar of Cochin-China. But concerning the example of Kiev, which especially pertains to our matter, the excellent work of Benedict XIV, Pontiff Maximus, On Diocesan Synod, book XII, chapter V, §§ 8, 9, 10, and 11, must be read; and likewise the Constitution of the same Pontiff Etsi Pastoralis, § 8, on the Sacrament of Matrimony, n. 1, must be read: - Let the Ordinaries of places take care that the Decree of the Holy Council of Trent de Reform. Matrim. be divulged and published in the places and Parishes of the Greeks and Albanians as often as they judge it expedient. - But it is also certain that wherever that Decree was promulgated, and there the prescription concerning the presence of the Parish Priest could by no means be observed, either because the Parish Priest was wholly lacking or could be approached only with difficulty, the Apostolic See declared that in those places the presence of witnesses was enough for validly establishing marriages: so that if the whole Decree could not be observed, nevertheless it should be observed insofar as it could be.

But now the Most Eminent Fathers, directing their mind to such prudent economy of the Apostolic See, and likewise with considered and meditated mind weighing the letters given to the S. C. repeatedly by you, Venerable Brothers, concerning this matter, also looking around at the civil and sacred reasons, and at the very face of the Empire of China, and of the provinces and kingdoms which are joined to it, judged, if it should please Our Most Holy Lord, that in those places in which by mature counsel you will have judged it expedient, you take care that the entire decree of the Council be duly promulgated, or at least insofar as it is permitted to be done, according to the rules handed down a little before.

Wherefore all and each of the marriages which henceforth it shall happen to be celebrated among the Chinese, that they may be called and may be valid, will have to be entered before the Parish Priest, or Missionary, or any other legitimately designated person, and two or three witnesses, and these, insofar as it is permitted, Christians. But in those places in which the Decree could not be promulgated entire, or, if it has been promulgated, nevertheless the Parish Priest or another duly designated person is absent, or easy approaches to him are not present, marriages can indeed be entered, even without the Parish Priest, before at least two witnesses, and these, if it can be done, Christians; "yet in such a way that the contracting parties, lest the dignity of the Sacrament become vile, are bound by law to present themselves before the Missionary or Parish Priest whenever he has returned, so that they may rightly receive the blessing from him. But the Missionary or Parish Priest, having returned, when it has been established to him concerning the consent of the spouses, before he blesses the spouses, is to instruct them that a blessing of this kind pertains solely to the rite, not to the validity, of the marriage; and therefore he will not permit that consent again be expressed by new words."

Finally, lest the memory and right of the Tridentine Decree grow obsolete, the S. C. desires that, as often as occasion presents itself, the Missionaries explain it to the people committed to them, and declare it according to the rules just set forth. For it is expedient that especially young unmarried girls themselves have this perceived, lest they suffer themselves to be led into fraud, and by secret promises of nuptials which will have no force, to be enticed to any shamefulness.

And this is the way and manner which, by retaining it, the S. C. judges can, God granting, restrain disordered and clandestine unions, and restore to the great Sacrament its own honor, from which among many it had fallen away.

This sentence of the Sacred Congregation, related to Our Most Holy Lord PIUS, Pope the Seventh by divine providence, by me the undersigned Secretary of the same Sacred Congregation in the Audience held on January 14, 1821, His Holiness benignly approved and ordered to be observed altogether.

Given at Rome, from the Buildings of the S. Congregation, on the 17th day of the month and year as above.

C. M. Pedicini, Secretary.