Praenotiones

Christian marriage, when it is entered into, is a contract (as we said above, Th. I and Question I from p. 102, compared with Th. XXIII, n. II), and it is a Sacrament. It is permissible to regard each aspect separately. Therefore, if the aspect of contract alone is considered, which properly obtains in marriage in fieri, it itself 1° is a natural contract; for nature itself urges toward it, in whose office it is (q. XLI, a. 1), and it itself preceded every public society, of which the origin is through the family; and consequently it could validly be entered into without the aid or authority of any public power.

2° But since this same contract is made by men existing in society, it itself, like other contracts, even those which are made by the law of nature, is subordinated to the public authority ruling that society in which the contract is made. This indeed is the general law of contracts. For nature has not determined all things ἐν ἀτόμῳ, in the individual, which are required so that in any given case contracts which are made by the law of nature may be made as they ought; but it has left them to the determination of the public authority having coercive force, which, on account of the good itself of men united together, has from God the power of establishing the form according to which natural contracts may be made both licitly and validly. Moreover, neither nature nor its institutor has determined everything one by one with respect to entering into the matrimonial contract: for example, with respect to degrees of consanguinity, of affinity, with respect to sacred persons, criminal persons, etc., in which bare reason, the nature of the thing considered, establishes nothing as to many things concerning whether matrimony ought or ought not to be permitted. The same reason therefore teaches that there must exist in society a rule by which this is determined. For many cases occur in which, even if, with only the natural right of marriage inspected, marriage seems able to be entered into, nevertheless, once other rights are inspected which arise from the relations of other essences, a certain repugnance at once appears to its being done licitly or even validly. Nor has the author of nature and institutor of marriage sufficiently determined all things by positive law. Therefore, since it is necessary that a certain norm exist according to which this contract may be rightly made by all in so many diverse circumstances, it follows that the public authority of some society, in which the same contract is entered into, has the power of pre-establishing the form according to which it may be made licitly and validly; therefore the contract of marriage is subordinated to the public authority of that society in which it is made. Nor is there a question concerning this matter among theologians, philosophers, and jurists, who indeed dispute to which authority under God this contract is subject, yet all grant or suppose that it is subject to some authority. Wherefore there is no need for us to dwell much on this matter, especially because discourse concerning the same matter will necessarily return when it will be necessary to demonstrate the authority of the Church in particular.

3° Now the power of establishing the form according to which a contract is made validly is at the same time the power of invalidating contracts made otherwise. But to invalidate the matrimonial contract is to prevent the mutual consent of the contracting parties from being efficacious or sufficient for transferring dominion over bodies, or it is to render persons incapable of contracting. The former is called direct invalidation, the latter indirect (Sanchez L. III, D. 4). But when this latter invalidation is had, the former also is consequently present. For when the persons are incapable, their consent does nothing. Trent mentions each mode, Decree on Marriage, in the invalidating clause.

4° Wherefore by the law of nature, indeed, legitimate consent is efficacious; but nature alone does not determine what consent is legitimate; whence contracts, as to their formal being or value, depend also on public authority, which ultimately and in the individual prescribes the form of a valid contract. Once this has been posited, even those contracts which are made otherwise, and which, if only the law of nature were in force, would be valid (because the law of nature by its primary precepts does not prohibit them, but leaves them to be prohibited by social or superior authority, dictating that they are less becoming), are null, not because public authority is opposing the law of nature, but because it is declaring and determining it.

5° Thus the matter and form of the matrimonial contract is (Th. XIII) efficacious mutual consent expressed by words, by which namely there is made a mutual handing over of dominion over bodies; but its value or efficacy also depends on the manner or form of contracting, which is established by public authority.

6° But the end of this contract is mutual power toward carnal copulation; the end of this power, by the law of nature, is the procreation and education of offspring, by which the human race is propagated and the act of creation of the same is, as it were, continued. But because the adequate reason why men exist is the glory of God, by procuring and obtaining which men themselves also become happy, to which reason the other things are subordinated as means, even existence itself in society; hence it comes about that this end of marriage is necessarily the procreation and education of offspring for the worship and honor of God, and consequently the power ruling it is, insofar as such, a religious power, whether this be distinct from the supreme civil power or not, as could happen in pure nature; for we are not now disputing about this distinction.

II. But if the aspect of Sacrament is considered, Christian marriage 1° is certainly a sacred thing, such as, before all things, a sacrament is. Moreover 2° it is a sacred thing in such a way that it is not something mixed from a purely natural thing and a sacred thing, as from two elements; but it is a physically simple thing, intrinsically and essentially sacred, indeed retaining the entity of nature, but supernaturally elevated. Namely, to be sacred is not some nature or substance, but is a certain mode of a thing which is some nature; whence, in order that something be intrinsically sacred, it cannot be required that it be only sacred, and not something of nature, which would be absurd; for what, indeed, is more sacred than the Humanity of Christ? which nevertheless is certainly a thing of nature. Therefore they are deceived who wish to prove that Christian marriage is mixed from a natural thing and a sacred thing, because the aspect and thing of nature remains in it. And certainly a mixture from a natural thing and a sacred thing supposes two really distinct elements, although united, of which the former is a purely natural thing, that is, lacking the mode which is to be sacred; for if it has this mode, then to be sacred is not another thing, but one. But that Christian marriage is not a mixture of this sort is clear from Th. X, in which it was proved that the contract and the sacrament are the same thing. Therefore the same marriage is a physically simple thing, and the multiplicity of aspects or formalities certainly does not obstruct this simplicity; for what is simpler than God? Now this simple thing is intrinsically and essentially sacred. In order that something be such, it is required that the aspect of sacredness be its mode, which is predicated of it in the direct case, that it be an absolute mode, not a pure relation, and that it be a necessary mode, without which it cannot exist. But Christian marriage is a sacrament in such a way that the being of sacrament is predicated of it in the direct case; for it is truly said: marriage is a sacrament. This being of sacrament is an absolute mode, not a pure relation; for it returns to this, that it is efficacious of grace and has such a form which is the foundation of the likeness between itself and the union of Christ and the Church. Finally this being of Sacrament is inseparable from Christian marriage; for, if this mode does not exist, neither is the thing, that is, there is no marriage or matrimonial contract. Cf. Th. X. Therefore there remains a thing of nature, but supernaturally elevated, that is, intrinsically and essentially made a Sacrament, and therefore a sacred thing.

3° Now it is certain that the Church has no power over the matters and forms of the Sacraments instituted by Christ, insofar as she cannot substitute others for them and cannot bring it about that, when they are posited with due intention, there is no Sacrament; but the administration of the Sacraments has been entrusted to the Church herself, and to her it belongs to establish the mode and form by which they may be licitly administered and to pass judgment concerning their existence and value.

4° But the difference between the matter and form of the Sacrament of marriage and of the other Sacraments must especially be noted. For the matter and form of marriage is not consent alone, but efficacious consent, that is, efficacious of the bond; but there can be true consent without its being efficacious, and its efficacy can depend on some public authority which prescribes the form for the contract. Wherefore the defect of power over the very matters and forms of the sacraments does not exclude the power of assigning a form to the contract and of invalidating it; for by that power are established the conditions which, when posited, make the matter and form of the sacrament itself, and which, when lacking, make it not to be. Wherefore by laws of this sort assigning a form, the matter and form of the Sacrament is changed materially, not formally; for formally it is always mutual expressed consent signifying and effecting the handing over of power. Just as (says Sanchez, l. c.) if the Church could bring it about that this word body no longer signified what it signifies, but that this were signified only by another term, then the Church would bring it about that no longer the word body, but this new term, belonged to the form of the Eucharist; nevertheless the change would be only material, not formal; for the signification would remain the same, which is the formal reason why the word body belongs to the form of the Eucharist.

5° Wherefore the power of the Church to administer the Sacrament of marriage can also extend itself, unless something else prevents it, to this: that she assign the form to a valid contract and invalidate one made otherwise. Concerning this matter it will have to be disputed more fully hereafter.

6° But this power (that we may sketch its notion) has a twofold act, each positive. For it invalidates contracts made apart from the form prescribed by itself, and it approves and holds ratified contracts made according to that form. Now this approval, either explicit or at least implicit, is necessary with respect to those contracts which can be invalidated by legislative power, when they are in reality subject to that power. For if they can be invalidated by legislative power, the law of nature has not yet determined their value ultimately and independently of that power; but it has indeed given them the possibility that they should be valid, while as to actual value it has left them, as it were indifferent, to be determined by the legislative power to which the contracting parties are subject; otherwise they could not be invalidated by it. For positive human law cannot make invalid that which the law of nature wills to be valid. Therefore the permission, even by itself alone, of this power that those contracts actually be valid confers upon them that determination which they do not have from nature alone; whence even that permission is an act positive as to value, since it is the cause, and that a necessary cause, of a positive effect. Wherefore when the competent power assigns the form for the value of the contract, it exercises a twofold act, namely it prevents those entered into otherwise from having value, or invalidates them, and it approves and makes valid those which are made according to that form; so that he who would reject those contracts would act not only against the law of nature, but also against the law of that power.

7° Such a power is not borne immediately upon the bond itself, so as to render it null if it exists; nor is it immediately borne upon the matter and form of an existing Sacrament, so as to impede their effect if they actually are present; but it is borne immediately upon the consent or the persons, which consent can be valid and invalid, which persons can be capable or incapable; and it establishes those conditions or the form by which the former is valid and the latter are capable. Therefore only mediately does it touch the matter and form of the Sacrament, which the contracting parties posit, and the bond which follows. For immediately the form and matter are posited by the contracting parties; but that power antecedently establishes the conditions by which, if they are observed, the contracting parties can enter into a valid contract.

III. With these things posited, let us enter the question. The question is not whether in Christian society there is a power of establishing the form of the matrimonial contract; but the question is concerning the subject of this power. This question can be twofold, namely concerning the power of establishing the form for the honesty of the act, or of establishing impedient impediments, and concerning the power of establishing the form for the value of the act, or of establishing diriment impediments. Moreover they are called diriment impediments because they prevent the bond from existing, and bring it about that the persons who seem to be joined, if marriage has been attempted, are in reality separated as before and must be separated. Concerning the first there is no need that we dispute separately, both because no one denies it to the Church, whose authority we are going to defend, and because from what is to be said for the other question the matter will be sufficiently known. The other question to be disputed by us can be distinguished in three ways: 1° whether this sort of power belongs to the Church; 2° whether it belongs to her by her own right; 3° whether it belongs to her alone. The affirmative opinion can be proved by a twofold kind of argument, namely by a demonstration demonstrating that the thing is so, and by one demonstrating why the thing is so. But first a certain inept imagination of Launoius must be excluded (in the work On Royal Power over Marriage, p. I, a. IV, c. 4, and a. II, c. 8). Let it therefore be: