Question Six: On the Governance of Matrimony

823. State of the question. - The governance of matrimony brings with it the right and power of commanding, judging, and punishing in matrimonial things and causes. It affects not only matrimony itself in its coming to be and in its fact of being, but also all things which antecedently, concomitantly, or subsequently are connected with it, which are required for it or impede it, and its obligations and effects, whether inseparable or separable, whether spiritual and moral, or temporal or civil. But since matrimony is ordered to a manifold good: to the private good of the spouses, to the good of the family, and also to the public good of civil society and of the Church, it follows that it can be subject to diverse governance. The words of St. Thomas are very well known, c. Gent. IV, 78: "It is fitting that... it be directed by diverse authorities. Therefore, insofar as it is ordered to the good of nature, which is the perpetuity of the species, it is directed to its end by nature inclining toward this end, and thus it is said to be an office of nature. But insofar as it is ordered to the political good, it is subject to the governance of civil law. But insofar as it is ordered to the good of the Church, it is fitting that it be subject to ecclesiastical governance." Hence it is asked under what diverse aspect it pertains to ecclesiastical and civil governance; for it is not enough to say that it is governed by natural and divine law: since this is for the most part vague, indeterminate, and incomplete, it must be determined and completed by human social authority.

Now then:

A. As to the matrimony of Christians:

1° Luther and other Protestants taught that it is not a sacrament but a civil and political contract, and therefore that matrimonial causes pertain to secular judges; for which reason not the Church, but only the civil power, can establish impediments diriment of matrimony. This the Council of Trent condemned, sess. 24, can. 3 and 4.

2° In the seventeenth century, Marcus Antonius de Dominis, an apostate, in the book De Republica Christiana (a. 1617), and Launoy, a Parisian doctor, in the work De regia in matrimonium potestate, said that the sacrament and the matrimonial contract are altogether distinct; that the Church can make determinations concerning the sacrament, but not concerning the contract, except from the consent of princes; that the contract, namely, as being merely civil, is subject to the political power, and that when it is itself made invalid, the sacrament does not subsist, since the matter is lacking. And Launoy adds that the Tridentine canons are disciplinary, not dogmatic. This system the Holy See condemned, September 10, 1668.

3° In the middle of the eighteenth century, many civil jurists and also the Jansenists and their Synod of Pistoia, celebrated in 1786, propagated the same doctrine, which Pius VI condemned in 1794; and during the course of the French disturbance, legislation came forth which considers matrimony as a merely civil act. This error, renewed by Fr. de Paula Vigil, a priest of Lima in the Peruvian republic, and by Nuytz, a professor of Turin, Pius IX respectively condemned on June 10 and August 22, 1851, and in the Syllabus, props. 68-70.

4° Several Catholics, as P. Soto, Catharinus, Sanchez, Pichler, Zech, formerly held that matrimony is subject to a twofold governance: namely, of the Church insofar as it is a sacrament, and of the civil law insofar as it is a contract, and not only as to merely civil effects, but also as to liceity and validity, so that, just as the Church, the civil power also itself could establish prohibiting or diriment impediments.

B. As to the matrimony of unbelievers, which cannot be subject to the authority of the Church, several Catholics also denied to the civil authority every power over it, under the pretext that by nature it is not profane but religious and sacred.

C. As to mixed matrimony, between a faithful person and an unbeliever, it can be asked why it is subject to the power of the Church, and, even granting this, whether it is not at the same time subject to the civil authority to which the unbeliever is subject.

824. Principle I. The matrimony of the baptized is governed by law not only natural and divine, but also canonical, with the competence of the civil power preserved concerning the merely civil effects of the same matrimony. Thus can. 1016.

1° That the Church can govern the matrimony of the baptized is of faith from the Council of Trent, sess. 24, can. 3, 4, 9 and 12; these canons are not merely disciplinary but dogmatic, since they do not treat of those things which are to be done, but of the very power of the Church, and intend "to exterminate the heresies and errors of schismatics"; - that it does this by its own and native right, not by a right derived from the civil power, is clear from the Constitution of Pius VI Auctorem fidei, in the propositions of the Synod of Pistoia 59 and 60, where the opposite doctrine is condemned as heretical and subversive of the canons of the Council of Trent, and from props. Syll. 68-70.

This is proved from the manner of acting of Christ and the Apostles (Mt. V and XIX; Lk. XII, 14; I Cor. VII); - from the practice of the Church at least from the sixth century, exercised for the most part without the connivance of the civil power, as Leo XIII shows in the encyclical Arcanum; - and from the nature of the thing, because matrimony is a sacred thing, as being a sacrament, and for this reason subject to the power of the Church.

2° That the Church governs the matrimony of the baptized by full and exclusive right is certain from Pius VI interpreting the Council of Trent, can. 12, thus, and declaring that all matrimonial causes pertain to the Church alone (September 16, 1788); likewise from prop. 74 of the Syllabus, from the encyclical of Leo XIII Arcanum, and from can. 1960.

This is proved both from the continual practice of the Church, which never acknowledged this power in princes; - and from the fact that the matrimonial contract itself was elevated to the dignity of a sacrament, whence the civil power could not govern the contract without by that very fact touching the sacrament, but sacraments are not subject to temporal power; - and because it implies a contradiction for the same matter to be subject to two supreme and independent powers, since they could establish contrary things.

Nor is it an obstacle that matrimony is ordered not only to spiritual but also to bodily good; because the Church, in governing matrimony, can and ought to attend not only to spiritual but also at the same time to bodily good.

3° That the civil power by its own right is competent as to merely civil effects is certain, as is clear from the nature of the thing itself and from the formal recognition of the Church.

This is proved from the fact that civil effects in the present matter are not understood as effects of the temporal order essential to matrimony and inseparable from it, but as merely civil and separable effects. But these depend essentially on civil law itself, such as the dowry of the wife, the nuptial gift, the governance of temporal goods, hereditary succession at least for the greater part, civil privileges, etc. Whence, from the nature of the thing, they are governed by the civil power by its own right; and only if they are treated incidentally and accessorily can they also be known and defined by the ecclesiastical judge from his own power (can. 1961).

From the things said, they are accustomed to conclude that the governance of the matrimony of the baptized, civil effects excepted, pertains exclusively to the Church by divine right; and that, by that very fact that the conjugal contract was carried up to the dignity of a sacrament, the right of the civil power over it was withdrawn, on account namely of the concurrence of a higher right to which it ought to yield. Hence the opinion of several Scholastics now seems to have been abandoned (as Sanchez, the Salmanticenses, Billuart), who said that matrimony as a sacrament is governed by the Church, but as a contract is of itself governed by the civil power; but that the Church can, if it has judged it opportune, call matrimonial causes to itself and reserve them to itself, and has done this, and therefore now those causes pertain exclusively to it by ecclesiastical law. For this opinion would be reconciled with difficulty with the words of Leo XIII: "the dignity of the sacrament must be considered, by whose accession the marriages of Christians have become far most noble. But concerning the sacraments to establish and command, so from the will of Christ, the Church alone can and ought to do, that it is plainly absurd that even the least part of its power has been transferred to the governors of the civil state." Nevertheless we confess that, for satisfying several of the arguments adduced, it is strictly sufficient that the right belong to the Church of reserving all matrimonial matters to itself.

825. Principle II. The matrimony of unbelievers is governed not only by natural and divine law, but also by civil law. - That the governance of these marriages pertains exclusively to the civil power, with natural and divine law preserved, is clear from various documents of the Church, e.g., S. Off., October 29, 1739 and September 20, 1854; S. C. P. F., October 8, 1631 and June 26, 1820; - that it pertains to it of itself and by its own right seems truer.

This is proved: a) because to the civil power pertains the right of governing natural contracts insofar as they have importance for the common good, but the matrimony of unbelievers is a natural contract which has the greatest importance for the common good; - b) because it is necessary for the common good that matrimony be governed by positive human law, since natural and divine law is too indeterminate; whence great inconveniences would follow if the marriages of unbelievers were subject only to the laws and impediments of natural and divine law: but it cannot be governed except by the civil power, since the Church cannot have any jurisdiction over unbelievers and their marriages. Whence among all nations, at least cultivated ones, there has been civil legislation concerning marriages.

Nor is it an obstacle to this that matrimony of itself naturally is something sacred and religious. For a) it is not intrinsically sacred but merely extrinsically (n. 775, 4°); b) in the natural order there would not be a twofold perfect society, one civil, the other religious, as now in the supernatural order the Church exists; but there would be one society which would care for all human affairs for leading men into happiness. But since unbelievers do not actually pertain to the supernatural order and to the Church, the right of caring for all things has not ceased for them in the civil power, just as from it has been taken away the care of Christians concerning religious affairs.

826. Principle III. Mixed matrimony, between a faithful person and an unbeliever, on the part of the faithful person is governed by canon law; but whether besides this, on the part of the unbeliever, it is also governed by civil law, can be doubted.

1° That the Church can govern matrimony between a faithful person and an unbeliever, and indeed by its own right, is certain from the very constant practice of the Church, and from various canons, e.g., 1119 sq., 1036, § 3, 1070, 1962.

It is proved because the matrimony of a faithful person connaturally and of itself is a sacrament, ordered to the good of the Church; whence it is to be governed by the law of the Church, by which the faithful person is directly bound, while the unbeliever is touched indirectly, insofar as the matrimony does not limp.

It is no obstacle that in the case the matrimony is not a sacrament; for this is merely per accidens, on account of the unbeliever in whom there is an obstacle, namely, the absence of Baptism. Rather, it is the inchoation of a sacrament, because on the part of the faithful person all things necessary for it are posited, and it is in a state altogether proximate to completion, so that when the Baptism of the other party accedes, by that very fact a perfect sacrament exists.

2° That the Church can exclusively govern matrimony between a faithful party and an unbelieving party is the opinion of many, because it is impossible that one individual matrimony be governed by two distinct powers; but in the collision of rights the higher right of the Church prevails, to which it is necessary that the lower right of civil society yield.

Nevertheless several teach that a matrimony of this kind is governed both by the Church and by the civil power, whence they hold that it is impeded both by ecclesiastical impediments which directly touch the faithful person, indirectly the unbeliever, and by impediments, if there are any, established by civil law, which directly bind the unbeliever, indirectly the faithful person, insofar as the matrimony does not limp.

827. Corollaries. - From the foregoing it follows:

1° That the civil power cannot determine concerning the value, liceity, or essential effects of the matrimony of Christians, nor prescribe conditions, form, or solemnity for the celebration of matrimony or espousals, because those things are reserved to the Church, but can touch only separable temporal effects, or merely civil effects; - the contrary holds for the matrimony of unbelievers.

2° Nor can it establish diriment impediments or even merely prohibiting ones for the marriages of Christians; - the contrary holds for unbelievers.

3° Nor can it abrogate impediments established by the Church or dispense in them.

4° Consequently, it cannot directly and absolutely prohibit matrimony to the baptized, even for eugenic reasons, lest namely offspring be contaminated by hereditary infirmity to the detriment of the people; - indeed, neither can it do this for unbelievers, just as neither can the Church do it for the baptized, because it is against the primary natural right which each one has from nature to matrimony, antecedently to every human society; - nevertheless, in matter subject to itself it can establish something (e.g., the imprisonment of a guilty person) by which indirectly and per accidens someone is impeded from entering matrimony.

5° Nor can it impose upon the baptized (although it can advise) a medical examination or inspection as a condition without which matrimony is interdicted or not recognized, or is deprived of its effects, because this is equivalently to establish an impediment and to prohibit matrimony; and therefore neither can it do this to unbelievers, if it would imply the interdiction of matrimony for those for whom the testimony of a physician would not be favorable; - the contrary holds if it were done only to urge the natural obligation of revealing harmful defects to the other party before matrimony, without inhibition of matrimony, although even this does not seem opportune.

6° On the contrary, it can promote and urge the very laws of the Church concerning matrimony, and punish crimes which are opposed to the moral law concerning matrimony, such as adultery, polygamy, divorce, insofar as they are opposed to the common good, with due subordination, however, to the power of the Church; - yet not directly in order to matrimony itself.

7° Laws passed by the civil power beyond its competence are invalid and of themselves do not bind in conscience.

8° Nevertheless, generally Christians are bound to them, insofar as they do not stand in the way of natural and divine law, lest namely they themselves be deprived of civil effects and be made liable to graver damages.

828. Notice. - From the words of St. Thomas, q. 50, a. un., ad 4: "Matrimony, insofar as it is an office of nature, is established by the law of nature; insofar as it is a sacrament, it is established by divine law; insofar as it is in the office of the community, it is established by civil law," the power of civil society to govern Christian matrimony insofar as it is constituted for the common good cannot be deduced. For St. Thomas himself does not admit that the civil power can establish impediments of matrimony without the approval of the Church, since q. 57, a. 2, he says: "Such a prohibition is approved by the Church; and hence it is that legal kinship impedes matrimony"; and ad 4: "The prohibition of human law would not suffice for an impediment of matrimony, unless the authority of the Church intervened, which also interdicts the same thing." Whence the text is to be understood, as to the matrimony of Christians, concerning civil effects; nevertheless it seems to intimate that certain marriages are governed by civil authority, which St. Thomas acknowledges in establishing impediments among unbelievers: "Among unbelievers there is matrimony... insofar as it is in the office of nature. But those things which pertain to the law of nature are determinable by positive law, and therefore if by some positive law among unbelievers it is prohibited to contract matrimony with unbelievers of another rite, disparity of worship will impede matrimony between them" q. 59, a. 2, ad 3.