Thesis XXIII

Reason also, well considered, shows how well marriage has been furnished with such indissolubility.

I. With these matters settled, it remains that we also demonstrate by reason that it was fitting for marriage to be strengthened by this intrinsic indissolubility. For this demonstration we shall prepare the way for ourselves by the solution of the principal difficulties. Nor will it be out of place first to set aside a certain prejudice drawn from human reason itself. Namely, someone could say: if human reason counsels full indissolubility of marriage rather than dissolubility in certain cases, how is it that human reason, left to itself, never perceived this truth, since all laws enacted merely according to the governance of reason have sanctioned divorce, and the Roman laws themselves approved the same, not only under unbelieving emperors, but especially under believers, such as Constantine, Justinian, and others?

I answer in many ways. 1. Reason left to itself not rarely does not see that which is true and good and is properly contained within the scope of those things which could be known by reason itself, using its own powers and rightly applying its own principles. The age before Christ supplies many examples of this matter.

2. Since, as we have already said, reason alone does not demonstrate the necessity of full indissolubility, while on the other hand affection toward sensible goods generally dominates in men, especially in unbelievers, and this recommends divorces, it would be remarkable if men with reason alone as guide in an unbelieving society had rejected divorces.

3. For the rest, even rulers thinking rightly could have been brought to this, while ignorant of the opposite law of God, that they approved divorces for certain causes, namely, in order to avoid greater evils which, because of the malice of men, would have come about; or, in other words, because of the hardness of heart of their subjects, as Moses permitted.

4. But Christian rulers either enacted those laws for unbelievers still living within their empire, thinking that they were able to do this, or rashly following the custom of their predecessors did not sufficiently attend to what the matter demanded, or, seized by the passion for making laws and for involving themselves in ecclesiastical matters, could not hear the counsel of reason.

II. Now let us hear the arguments of the adversaries. They say first: the adultery of a spouse is opposed to all the goods of marriage: to offspring, which it makes uncertain; to fidelity, which it violates; to the sacrament, whose signification it injures. Therefore, since contraries are destroyed by contraries, it is necessary that marriage be dissolved by adultery.

I answer 1. Properly, contraries are those things which mutually expel one another from the same subject; but adultery does not of itself exclude marriage, which remains together with it. Nor do those making the objection contend this; they wish only that a power of dissolving the marriage be made for the innocent party. And certainly it is absurd that, through the violation of an obligation perpetrated by one party, the obligation should be dissolved even though the other is unwilling; yet this would happen if adultery of itself dissolved marriage. Therefore adultery is contrary to marriage not insofar as it is the exclusion of the obligation, but insofar as it is the violation of the same obligation, which can and must remain with that violation and after it.

I answer 2. Adultery is indeed opposed to the goods of marriage, but not in such a way that they are altogether excluded. For as regards the good of fidelity and of signification, since adultery is something transitory, it excludes these in act, but they themselves remain habitually and can be present in the other acts.

As regards the good of offspring, the offspring can indeed be rendered uncertain, but this uncertainty also can be guarded against; nor does it prevent true offspring from being nourished and educated, but it causes outsiders also to be admitted into the family of the father, which is not contrary to the good of offspring except in accidental things, namely, as to goods to be divided.

For the rest, 3. from the doctrine of St. Thomas, q. LIX, a. 3, ad 1, something to be done is more easily impeded than what has been rightly done is destroyed. For if something has been done, some new right proportioned to it exists, demanding its conservation, which right was not there before; and this right, sought from the nature of the thing, can be such that it prevails over other rights, or over the rights of private persons. Moreover, of this sort is the right of the intrinsic indissolubility of marriage, whose good surpasses that good of the spouse who must either bear an adulterous spouse or remain without the use of marriage. For the indissolubility of marriage is for the common good, whether of the human race to be multiplied and of worshipers of God to be begotten, not for the private good of the contracting parties, except secondarily and accidentally.

They say again (q. LXVII, a. 1, ob. 4): from marriage there is principally sought a good situated in offspring. But the inseparability of marriage is against this good, because some man cannot receive offspring from his own woman, though he could receive it from another, and she also could be made fruitful by another man. Therefore the inseparability of marriage is more against the law of nature than of the law of nature. I answer 1. that if there is antecedent impotence to have intercourse, the marriage is null; but this hypothesis being set aside, I answer 2. with St. Thomas (ibid.): "that marriage is ordered to the common good by reason of the principal end, which is the good of offspring, although also by reason of a secondary end it is ordered to the good of the person contracting marriage, insofar as it is of itself a remedy of concupiscence. And therefore in the laws of marriage there is attended more what is expedient for all than what can suit one person. Therefore although the inseparability of marriage impedes the good of offspring in some man, nevertheless it is fitting for the good of offspring simply." That is, of itself and with regard taken to the very procreation of offspring, the indissolubility of marriage conduces to the good of offspring; accidentally, by reason of this or that individual, it does not conduce. But again there is a distinction: for it positively conduces to the good of the offspring which exists; this latter negatively only does not conduce, insofar as offspring is not begotten, in which there is no evil.

You will say with Kemnitius (cf. Bellarmine, l. c., c. 17, ob. 1) that the pontifical law, denying another marriage to the innocent spouse in the case of adultery, deprives the innocent party of his right, without his fault, contrary to the rules of law.

We answer with the same Bellarmine that this law is not pontifical, but Christ's; and that the rule of law is badly alleged (in 6, de regulis iuris, c. Sine culpa). Without fault, unless a cause underlies, no one is to be punished. Certainly here a cause underlies, for the essence of marriage demands it. For the rest, this evil is not a punishment; for punishment supposes fault. Nor is the innocent party deprived of his right, for he does not have a right of marrying another, and he can be reconciled to the adulteress. But if he abhors this, he is subjected to a certain evil, for which he can provide a remedy through patience. Moreover, this is common to many men in so many other matters.

But you will object: if one of the spouses, with love turned into hatred or contempt, conducts himself unjustly toward the other, so that life together with him is intolerable, is not the innocent spouse separated from the impious one even by perpetual separation? But in this hypothesis would it not be more fitting, both for the tranquility of the innocent spouse and for the punishment of the wicked one, to give the innocent party the power to enter another marriage, with the former one dissolved? Is not that perpetual separation already a certain dissolution? Or to what does that bond, remaining between irreconcilable persons, conduce except to the unhappiness of the innocent party and almost the certain eternal damnation of that person?

Response. In order that the defect of this and like arguments, for the same difficulty can be proposed in many ways, may be detected, it must first of all be weighed whether that which their authors intend to demonstrate is that which their adversaries deny and which comes into question. Certainly the question is not whether, with those conditions posited which are supposed in the objection, the dissolution of the bond could have been permitted by some law. That Catholics deny this is so false that, on the contrary, several of them teach that this was conceded to the Jews for causes even of lesser moment, and they affirm that not every dissolubility of marriage is prohibited by the law of nature. Therefore you declaim in vain when you bring forward only certain goods which would arise from dissolution, and certain evils which would arise from indissolubility, and take account of the force of the natural law alone. For the question is, 1. about marriage to be conformed to the norm either of Christ's institution, of which sort it is among the faithful, or of the primitive institution of God, which now holds for all men (preceding Thesis); the question is, 2. now, when we consult reason alone, not whether, with indissolubility posited, the innocent spouse is deprived of certain physical goods and is subjected to certain evils, even grave ones, but the question is comparative of itself: whether a greater good or a greater evil accompanies indissolubility or dissolubility, and therefore which is better, dissolubility or indissolubility, with regard taken not only to the good of the persons who are united, but to the universal good and the proper end of marriage; or the question is absolute under this respect, namely, whether some moral evil is begotten from indissolubility. For neither do we wish from reason alone to demonstrate the necessity of indissolubility in every hypothesis, but we intend to demonstrate that the law of God, which sanctioned indissolubility, was more suitable to nature itself, to human society, and to the dignity of marriage.

Thus, when the point of the question has been defined, the efficacy of the contrary arguments now begins to be lessened and almost to vanish. There account is taken only of the personal good of one or the other spouse, or even of both spouses, and especially of sensible and worldly good. For what is added about the danger of eternal damnation is produced in order to make a pretext. For to a man who wishes to live according to reason, assisted by divine helps, which cannot be lacking, not only will escape from eternal death be easy, but the attainment of salvation will become more certain through the exercise of virtue.

Now any physical evils which can follow indissolubility are suffered by the spouse either from his own fault or without fault. If from his own fault, let him impute them to himself, not to the law of God, and let him bear them in expiation of his crime. But if he suffers without his own fault, 1. this is an evil only personal; 2. it is an evil which can be abundantly compensated for and overcome by another personal good, of which sort is the exercise of virtue; 3. it is an evil which can cease when reconciliation is seriously procured by the aid of virtue. Perhaps you will laugh when you hear mention made of virtue in a matter which is undertaken on account of pleasure. But if in marriage, which is a matter most highly moral, you have only sense before your eyes, we freely affirm that you are altogether unfit to pass judgment in this question. But in the same way in which we have spoken of the evil following upon indissolubility, one must also speak of the good which spouses might hope for themselves from dissolution.

On the contrary, the evils which would arise from intrinsic dissolubility, or at least from extrinsic dissolubility of consummated Christian marriage, more or less harm the very nature or sanctity of marriage, and they more or less ruin the public and social good which marriage is born to produce. That we may not say the same things twice, we are about to declare this in the following part; but before we make our step toward it, it is better to hear another argument of the adversaries.

They say that the firmness of the contracted bond depends, as on a cause, upon the free consent of the contracting parties, who freely impose upon themselves this obligation of the bond. But the cause which makes something can itself destroy that same thing. Therefore it is situated in the nature of marriage that it be intrinsically dissoluble not only on account of the cause of adultery but also on account of any other cause whatever, so that therefore its intrinsic indissolubility is altogether against the law of nature.

I answer. In this argument, first, something is supposed which would hold of itself in all obligations freely undertaken from the beginning, namely, that the cause of an obligation of this kind is the very free consent of him who is obligated. But this is true in a qualified way, but false simply. When, for example, you vow something to God, you indeed vow freely; but the obligation of preserving what has been promised to God arises from the essences of things, or from the relation between the essence of a promise and the essence of God to whom the promise was made; and, furthermore, the natural law and the positive law of God will that this relation be preserved. Therefore it is within man's choice to posit the foundation of this relation, and when this foundation has been posited, that relation results. But it is not placed in man's power to prevent that relation from existing, just as it is not in his power to change the essences of things; nor does it depend upon man's will that there be a natural or positive law of God commanding that such a relation be preserved. Certainly, if the essences of things demanded nothing of themselves, if there were no law antecedently to your act which commanded what, when certain conditions have been posited, it is necessary to do, and if all things depended solely on the free consent of man, there would in reality be no obligation. For by that very fact there would always remain the right of acting against that to which we consented; for the subsequent consent in the opposite direction would have the same force as the prior consent. Since, therefore, the power would always remain of positing this second opposite consent, there would never be any obligation. For what obligation is it, to which immediately and as often as you wish you can contradict by the same right by which it was imposed? From this it is clear that the cause of obligation must be sought outside him who is obligated. Nevertheless, obligations do not all exist in the same way. For certain ones bind you with abstraction made from any free act of yours, so that you undergo them whether you will or not; others, in order that they may exist, require some free act of yours, by which you voluntarily subject yourself to a law, which indeed independently of your will establishes that if that act is posited, that obligation exists.

Accordingly, to this extent it is true that he who freely undertakes obligations of this sort is himself the cause of his obligation, insofar as he is the cause of the act which is a necessary condition that the obligation exist. But that which properly begets the obligation is not the act of man by which it is freely undertaken and by which, therefore, the law introducing it is already supposed, provided that something be done; but it is the law itself which commands that the relations of essences be preserved.

With these things posited, the solution of the proposed argument is easy. The consent of both is required that the mutual power and obligation, in which the bond of marriage consists (Thesis I), may exist. But 1. the essence of this mutual power and obligation does not depend upon the choice of man; therefore 2. the firmness and immutability of this obligation, which either the very nature of the thing requires, or the divine law, at nature's urging, establishes, neither depends upon the choice of man, nor proceeds from free consent as from a cause, but only through free consent is freely undertaken, and must be undertaken by the contracting parties lest nothing be done.

III. But in order that the direct demonstration may be brought forward, it must first be established that marriage is not simply to be reckoned among contracts. For although it is called a contract because it is entered by the free consent of two persons and something is given and accepted on both sides, nevertheless its essence exceeds every notion of contract and is placed in a higher order. For 1. in marriage that is given to which those giving, taken separately, do not have a right. Consequently the free consent of the contracting parties looks only to this, that this union exist, and that each should know the other as his own. Namely, they consent to a union, for which nature has made them fit, and because this union comes to be by a power obtained by each over the body of the other, each is said to hand over to the other a power over his own body. 2. In marriage, furthermore, there is not only a communication of things or actions over which a right of dominion or property exists, but a conjunction of persons is made into a unity of souls and a unity of the generative and educative principle of offspring, the elements of which unity are subject to no human right of dominion or property. 3. Marriage is of itself an institution of nature, or of the author of nature distinguishing the twofold sex and ordering one to the other; and likewise it precedes every other human society, indeed existing physically and morally as the fountain of civil society. But what is of this sort cannot borrow its force from the will of man or from a social law, of which sort all contracts are. Wherefore marriage, instituted by nature or by the author of nature, is a natural state pertaining not only to the physical but to the moral order, accommodated by God to the propagating of the human race. This observation indeed is sufficient for making exception against those who would wish to discuss marriage no otherwise than as some contract, and to assert for it the properties of a contract, among which is dissolubility.

IV. Therefore, this imagination having been excluded, let us hear what reason teaches in our question. It is not asked whether perpetual indissolubility is essential to marriage; concerning this matter we have already spoken in Thesis XVIII. Nor is the question about any indissolubility whatever, but about intrinsic indissolubility, by which, namely, dissolubility is withdrawn from the choice of the spouses. But it is asked whether God deservedly established this intrinsic indissolubility in any case whatever, even in the case of adultery of one spouse, quarrels, hatred, and mutual enmity, so that it is necessary that they be separated. God must indeed be said to have established this deservedly, if intrinsic indissolubility even in these cases was more fitting than permission of intrinsic dissolubility in certain cases. But reason persuades that the former was more fitting. For 1. of two things, that is certainly more fitting of itself which coheres more with the essence of marriage; but it is evident that total intrinsic indissolubility coheres more than partial intrinsic indissolubility with the essence of marriage, which is of itself something stable and persevering, which is not simply a certain contract (n. III), but an institution of nature, whose term indeed is the unity of two. 2. Even with regard taken to those things which happen to marriage, that is more fitting from which lesser evils follow than that from which greater evils follow. But a greater evil would follow from intrinsic dissolubility in certain cases, for instance the adultery of a spouse, than from the same marriage's total intrinsic indissolubility. For from this indissolubility there directly follows only a private evil of the spouse; but from dissolubility there would directly follow a public and social evil.

And first, if the matter concerns consummated Christian marriage, the dignity of the sacrament situated in the signification of the indissoluble union of Christ with the Church would be violated. This evil is public and social, just as the sacraments are a public and social good, and it is an evil directly opposed to the divine ordinance which annexed this signification to marriage. Even with abstraction made from this dignity of the sacrament, if in certain cases the dissolution of marriage were permitted to spouses, several other social evils would follow. The chief ones are these: the diminution of the reverence owed to marriage and of the moral union of the spouses, since it would be subjected in part to the choice of men and would be reduced to the condition of contracts, than which nothing is more unbecoming to marriage; thence, the continual uncertainty of the marital bond, depending upon the always changeable will of man, which uncertainty, existing from the very beginning of the union, would of itself harm not a little the moral unity of the spouses. For when it is established by law that, if the minds of the spouses have been irrevocably dissociated, it is lawful for them either by mutual consent to separate and dissolve the bond, or to seek its dissolution from the social authority, which would be bound, when that cause exists, to grant it, since those about to contract would know this already from the very beginning of the union, they would be so disposed in soul that they would will a perpetual union only conditionally, and would be disposed to dissolve the bond if love between them should cease. Hence they would also be less ready to guard against the beginnings of quarrels and disputes, because the remedy would always be ready at hand, namely, the dissolution of the bond. But a marriage entered with such a will, with the purpose of perpetuity truly lacking, would no longer be marriage according to the perfect notion, but, once the divine law is posited, concubinage. But the substitution of concubinage for marriage is a social harm.

Then there would follow the lamentable condition of children, who would lose their family, or would no longer recognize those by whom they were begotten, although still living, as the stocks of their family, since those persons would no longer constitute a family, the bond of marriage having been dissolved; the distraction of relationships by blood or by affinity which marriage produces, which, once consummated marriage has been dissolved, it would be unbecoming not to persevere, but, if they did persevere after marriage was dissolved, because of their excessive frequency, it would be burdensome to society. Hear besides Ambrose addressing the man who casts out his wife (in Luc. VIII, 4): "Where is one heavy with little children dismissed? Whither is the aged woman thrust out with tottering step? You are harsh if you exclude the parent but keep the pledges, so that to the insult against charity you add also an injury against piety. You are harsh if, on account of the mother, you cast out the children also with her, since rather the children ought to redeem from the father the fault of the parent. How dangerous it is if you expose the fragile age of the young woman to error; how impious if you forsake the old age of her whose youth you deflowered! Therefore will the commander dismiss a veteran, inglorious with dishonored service, and thrust him out from the possession of his command; and will the farmer drive from his field the countryman worn out by his labor? Or is what is impious toward subjects lawful toward an equal?" These and like things, although certain of these are evils of such a kind that they can be permitted on account of some more excellent good, nevertheless are all graver than the evil which the innocent spouse is compelled to suffer from the injury of the other spouse. Therefore.

"How great a material of evil," says the Holy Father in the cited Encyclical, "divorces contain in themselves, it scarcely needs saying. For on account of them marital covenants are made changeable, mutual benevolence is weakened, pernicious incentives are supplied to infidelity, harm is done to the protection and education of children, occasion is furnished for dissolving domestic societies, seeds of discords are scattered among families, and the dignity of women is lessened and depressed, for they come into danger of being held as forsaken women, after they have served the lust of men. And since nothing avails so much to ruin families and break the strength of kingdoms as the corruption of morals, it is easily seen that divorces are very hostile to the prosperity of families and states; divorces which are born from the depraved morals of peoples, and, as experience bears witness, open an entrance and gate to more vicious habits of private and public life. And it will be established that these evils are much graver, if it is considered that there will be no restraints so great that they can hold the faculty of divorces, once granted, within certain and previously provided limits."

This furthermore must be warned, that divorces introduced among Christians by the civil power labor under that original defect, that they proceed from an authority altogether incompetent, as will be demonstrated in the following Chapter.

Therefore from these things it is evident that the intrinsic indissolubility of marriage is most fully conformable to reason. Cf. moreover what we shall say at the end of Thesis XXV and the following Thesis.