Thesis XXX

The power of establishing diriment impediments of marriage belongs to the Church, and it belongs to her by proper right.

I. It is proved first from the fact, that is, from the use of this power. For the Church has always used this right and has judged that she could use it and could bind all the faithful by her laws; but this could not be done if in reality the Church lacked this power; therefore. The major is clear from the preceding thesis; the minor is established from the inerrancy of the Church. For by this constant fact she has at least implicitly taught both that she received this power from Christ, and therefore that this power is truly her own, and she has explicitly prescribed for the faithful a moral norm concerning marriages; if these were destitute of their foundation, that is, of the authority of the Church, the Church would of herself lead the faithful into that which is dishonorable. Therefore from either side an error in a matter of faith or morals would be handed on by the Church; since, therefore, this is repugnant, it follows that the Church by no means lacks this power.

II. The historical truth of this fact, namely that from the beginning the Church enacted laws on which the very validity of the matrimonial contract depended, may also be demonstrated in this way, as it were a priori. Namely, all agree that in a well-ordered society there ought to be positive laws by which marriages and the validity of the conjugal bond are ruled and determined; therefore also in the primitive Church laws of this sort were enacted as opportunity required; and therefore there existed an authority which could enact these laws. But now the very nature of the Christian religious society was such that certain laws would specially befit it, impeding marriages, which laws would not be required in other societies; and this is proper to each society, especially a religious one, that certain laws should befit it, both in other matters and also in the matter of marriages. But in the first centuries of the Church who could have been judge in this matter and have enacted such laws? Certainly not the civil authority, alien to the Church and hostile to her. Therefore by ecclesiastical authority itself, which could loose and bind all things that were necessary and useful for the Church, laws concerning marriages, whether simply prohibiting or even invalidating them, were even then enacted as opportunity required.

III. And indeed the reason why this is so is evident. For there surely belongs to the Church a right over sacred things, and to her has been entrusted the administration of the Sacraments; but Christian marriage is intrinsically and essentially a sacred thing and a Sacrament; and to the administration of this Sacrament there also pertains the constitution of diriment impediments, or the assignment of a form for the validity of the act. For the right of administering the Sacraments, apart from the matters and forms instituted by Christ, extends itself to all those things which are necessary or fitting that the Sacrament be celebrated rightly; and it is necessary, or at least especially fitting, that certain unions not only be prohibited, but also be invalidated; and this invalidation does not change the form and matter of the Sacrament, but posits antecedent conditions by which there can exist a contract which is the matter and form of the Sacrament, as we shall demonstrate more fully in the following Thesis. Therefore this right is contained in the right of administering the Sacraments; therefore.

IV. Moreover, we teach that not by concession or permission of the civil authority, and much less from an unjust usurpation, but from her own and innate power immediately received from Christ, the Church establishes and can establish diriment impediments of Christian marriage. The adversaries, namely, say that this right is proper and original to the civil principate; that secular princes, however, conceded to the Roman Pontiff and to the Church the exercise of this right. But let it be observed that the Church has so exercised this right that she has used it even when princes were unwilling. Therefore the adversaries must say that princes so conceded to the Church the exercise of that right that they established that they themselves would no longer use it.

The doctrine which we defend is of faith, asserted by Pius VI in the Constitution Auctorem fidei, who not only teaches that doctrine, calling the contrary heretical, but also teaches that it is contained in canons 3, 4, 9, and 12 of Session XXIV of the Council of Trent. Moreover the magisterium of the Roman Pontiff is infallible when, functioning in the office of Pastor and Doctor of all Christians, by his supreme Apostolic Authority he defines doctrine concerning faith or morals to be held by the universal Church (Vatican Council, Session 4); and certainly Pius VI does this in this Constitution. Thus he says in n. 59: "The doctrine of the Synod asserting that it belongs originally only to the supreme civil power to place impediments upon the contract of marriage of that kind which render it null and are called diriment... adding that, supposing the assent and connivance of princes, the Church could justly constitute diriment impediments of the very contract of marriage, as if the Church had not always been able and were not able, in the marriages of Christians, by proper right to constitute impediments which not only impede marriage but render it null as to the bond, by which Christians are held bound even in the lands of infidels, and to dispense in the same: a doctrine subversive of canons 3, 4, 9, and 12 of Session XXIV of the Council of Trent, heretical."

V. Indeed canon 4 of Trent is: "If anyone shall say that the Church cannot constitute diriment impediments of marriage, or that she has erred in constituting them: let him be anathema." And canon 3 says: "If anyone shall say that only those degrees of consanguinity which are expressed in Leviticus can impede the contracting of marriage and dirime a contract, and that the Church cannot dispense in some of them or establish that more degrees impede and dirime: let him be anathema." Now it is clear that those canons are dogmatic by the same demonstration which we gave in Thesis XXVIII, part II. Therefore in them there is asserted a truth to be believed, not indeed some truth of dogmatic fact, for the discourse is not about a fact but about a right; nor some truth natural in itself and connected with a revealed truth, for here there is no indication of such a connection; and indeed, since the matter concerns the power of the Church, although this can in some instances be determined also by the law of nature, nevertheless it must also be wholly contained in revelation, from which we have received the Church and all her properties and power. Therefore by these canons there is asserted the revealed truth of the Church's power of establishing diriment impediments, which for that reason is a truth to be believed with divine faith. But the power of the Church which must be believed with divine faith must be her own, belonging to her by divine right, not something adscititious from the concession of princes; therefore. The minor is proved. That which is to be believed with divine faith must rest upon divine revelation; but a delegated power of the Church from princes would rest only upon that right on which the power itself of princes rests, namely a natural or social right, and indeed one not very evident, since it is not yet most certain among all that princes have the right of making laws of this sort which touch the validity of marriage. But things drawn from these natural sources are not proposed to the faithful as to be believed with divine faith. 2. If this power of the Church were not her own, but existed from the concession of princes, that faculty could be revoked by princes and the Church thus could lack that power, and therefore then the definition of the Church would be false and would no longer have to be believed; but a dogma of faith can at no time be false; therefore.

But that in this hypothesis that faculty could be revoked by princes is manifest. For in this hypothesis such a power would be proper to the civil principate in itself for the good of civil society; but such a power necessarily inheres in the civil power, so that, although a prince can concede the exercise of it to another, nevertheless 1. he cannot divest himself of that power, because it necessarily remains while the civil authority remains, for it is an essential element of it; 2. he cannot so concede the exercise that he takes away from himself the faculty of revoking the concession. For although certain rights not essential to a society or to a social authority can be renounced by a prince without the authority itself ceasing, and can be so renounced that what has been conceded to another not inferior can no longer be reclaimed, this cannot be said of rights essential to a society or social authority, of which sort would be the right of using the power of establishing impediments, so that while the social authority itself remains, it would lose these rights. And indeed that which is for the good of society is not so much the power as the exercise to which the power is ordered; therefore, just as the prince himself perseveres as the one who by right can and ought to consult for the good of society and does so by the use of his authority, so there always remains in him the right of revoking the concession, when he judges that its use is not conducive to the good of society.

Besides, the proper right of the Church independent of the civil authority, or what is the same, the divine right by which the Church acts, becomes manifest from the fact that this power and its exercise always have been and are in the Church, even under infidel princes. Cf. the preceding Thesis. For if this power inhered and also inheres in the Church when either the whole Church herself or that part of the flock over which it is exercised is under the dominion of infidels and enemies, it cannot be said that the Church borrowed it from princes. Thus indeed Pius VI argues in letters given in the year 1782 to the Archbishop of Trier: "Since at no time could or can a dogma of faith have been false, it is necessary that from the origin of the Church and in every time already past it was true, and in every subsequent age it will be true, that the Church possesses that power which is asserted by the Council. But if at least a tacit concession of princes were required for having that power, it would follow that this could not have been true in the first times of the Church under princes who were, of course, pagan, nor could it be true at this time in those places in which Christ's faithful dwell under the dominion of infidels. And if, for some reason of state, as they call it, princes, after revoking that indulgence which is alleged, could abrogate the impediments sanctioned by the Church, it could happen that what was defined by Trent would cease to be true, and this monstrosity would exist, that at some time it would have to be said that the Church cannot do what the Holy Spirit, by the oracle of an ecumenical Synod, declared that the Church can do."

VI. Besides, that right cannot be judged to have been received from princes which the Church exercised against those very princes, though they were by no means unresisting, without this exception being heard: that in matrimonial causes secular princes are the supreme judges. For this certainly would have happened if ecclesiastical authority had used this right from the concession of princes.

VII. And indeed, if this concession was made, let it be taught at what time and by what prince it was made. This right certainly was not conceded in the first centuries of the Church before Constantine, as is sufficiently clear. Nor can it be affirmed that that concession was made in that space of time which intervened between the beginning of the fourth century and the Middle Age; for in that age the adversaries themselves note that the Emperors sanctioned impediments of marriage by their own laws. Moreover the Middle Age, in which very great controversies between the Church and the Empire arose and were never fully extinguished, while the Emperors were claiming for themselves rights most of all undue, not merely civil but also sacred, forbids us to think that the Supreme Princes conceded to the Church a faculty of this kind, or, if some conceded it, that others did not revoke it. Let the name of one prince who conceded this privilege to the Church be recited, if it can be done; let one act of concession be brought forward from some monument of antiquity: nothing has thus far been produced in public.

And in truth the fable of that concession has been invented quite ineptly. For either one prince conceded it on behalf of all, or all did so singly; then either that one or those others conceded it for their own age only, or for all subsequent ages. But not one on behalf of all; for there never existed one to whom all Christians, as far as the world extended, were subject. Not all singly; for otherwise, from so many monuments which would have existed of this fact, some one surely would survive for us. But if the concession made by them was temporary, which, with the death of the one conceding intervening, ought to expire, it is necessary that there have been composed as many acts of this concession as there were princes; and yet from these let the Jew Apella believe that none survives. But now we have seen that it was not in the power of princes, if that right is their own proper right, so to abdicate it that they took away from their successors the faculty of using the same right; therefore.

VIII. Nevertheless the adversaries set forth certain things which need a solution. They argue first from St. Ambrose, who (Epistle LX to Paternus), when he gathers all the things by which he can dissuade Paternus from wishing to give to his son as wife a granddaughter by his own daughter, has no ecclesiastical law which would prohibit it, but partly from Leviticus and natural equity, partly from the imperial law of Theodosius, draws an argument by similitude for disapproving that marriage. For which reason, at that age Ambrose judged that the right of decreeing impediments of marriage was situated not in ecclesiastical but rather in imperial power.

I answer. Ambrose, after showing from natural equity that this marriage is illicit and that there is no room for doubt about this matter, adds: "For what is there that can be doubted, since the divine law also forbids paternal cousins, who are joined to each other in the fourth degree, to come together in conjugal union? But that degree is the third, which even by civil law seems to be excepted from the fellowship of marriage. But first let us ask the decrees of the sacred law; for you allege in your letters that by divine law a marriage of this sort with such pledges of affection is thought to be permitted, because it is not prohibited. But I assert that it is prohibited, because, since lighter things are forbidden concerning paternal cousins, much more do I judge this, which is full of a closer relationship, to be forbidden. For he who binds lighter things does not loose heavier things, but binds them... Is it therefore lawful because it is not prohibited (expressly?) By no means. For it is forbidden by the law of nature, it is forbidden by the law which is in the hearts of individual persons, it is forbidden by the inviolable prescription of piety, by the title of relationship. How many things of this sort will you find not forbidden by the law issued through Moses, and yet they are forbidden by a certain voice of nature?... But if divine things pass you by, at least the precepts of the emperors, from whom you have received very ample honor, ought by no means to have passed you by. For the emperor Theodosius also forbade paternal cousins and maternal cousins to come together among themselves under the name of marriage, and he established a most severe penalty if anyone should have dared to violate the pious pledges of brothers; and yet they are mutually equal to one another," otherwise than an uncle and niece, of which sort were those whom Paternus wished to join together. The argument of Ambrose drawn from positive law is this: sacred or divine law and imperial law prohibit marriages to be joined between paternal cousins and maternal cousins; therefore also the marriage of an uncle with a niece, between whom there is a closer relationship, ought to be judged prohibited. He adds that the third degree also seems by civil law to be excepted from the fellowship of marriage.

It is asked what this divine or sacred law is, to which the holy Doctor appeals. In the first place, it is clear from the very argument set forth that for Ambrose the divine and the sacred law are the same; but this law, to which Paternus himself appealed, seems able to be judged no other than that which is contained in Leviticus; for afterward, speaking of the same law, Ambrose simply calls it the law and the law of Moses. But the difficulty is that in the Law of Moses that prohibition, that paternal cousins and female cousins may not come together in conjugal union, is not found. Why did Ambrose not rather appeal to the similar law of Moses prohibiting the marriage of a woman with her paternal uncle, Lev. XVIII. 14? Therefore either the divine and sacred law is some law of the Church, or Ambrose seems to have suffered a lapse of memory.

For the rest it is clear 1. that Ambrose does not seek from the law of Theodosius the demonstrative force of the dishonorableness of that marriage which Paternus was attempting; for that law speaks of another matter, nor could he have shown from that law that that marriage was null, because again that law regarded other marriages. But from that law Ambrose gathered only a persuasion, and he presses it as it were ad hominem against one who was thought to be unwilling to admit what would not be approved by Theodosius, since he had received very ample honors from him.

2. As to the argument taken from civil law, when Ambrose says that this third degree also seems by civil law to be excepted from the fellowship of marriage, it must be noted that among the fragments of the jurist Ulpian, who under Alexander Severus was praetorian prefect, this is found, Title V: "among kindred in the transverse degree, formerly indeed marriages could not be contracted as far as the fourth degree; but now from the third degree it is lawful to take a wife, yet only the daughter of a brother, not also of a sister, nor a paternal aunt nor a maternal aunt, although they are of the same degree." See the Observations of Cujacius, book 13, chapter 15. The same Cujacius in the Code, book V, title 5, says: "In the Pandects you will nowhere find among illicit marriages the marriage of a paternal uncle with the daughter of a brother brought forward. Today indeed they are illicit, I admit (from the law of Diocletian, Cod. law 17, title 4, book V). For a long time they were licit; nevertheless it was never lawful for a maternal uncle to marry the daughter of a sister, which is strange." But this is the case proposed to Ambrose by Paternus; and hence it is apparent why the holy Doctor said that this third degree seems to be excepted also by civil law.

Nevertheless, with these things posited, it seems rather to us that from this whole history an argument is to be gathered for the doctrine which we defend. Indeed 1. Paternus, certainly a man skilled in the laws, when the matter concerned marriage, consulted not the secular laws or judges, but his own Bishop, and, when he was uncertain, Ambrose; nor does he mention any civil law, but only the divine law, although the civil law already clearly proposed, namely the law of Diocletian and Maximian (Code of Justinian, loc. cit.), was openly opposed to that marriage. Therefore Paternus and his Bishop did not judge that the marriages of Christians were bound by civil laws; for, once that law was posited, no question would then have remained. 2. Ambrose himself certainly knew this same disposition of civil law; and nevertheless he only casts in a mention of it, without solving the question from it, but adduces other arguments to prove his opinion and presses especially the law of Theodosius, which did not properly pertain to the matter, but by which Paternus could be persuaded that Theodosius did not approve that marriage; and Ambrose judged that this would be especially effective for deterring Paternus from that marriage. In sum, Ambrose gathers only suasive arguments and does not solve the question by the authority of civil law. These things must certainly be explained by those who contend that in that age Christians were persuaded that the power of making laws concerning the marriages of Christians belonged to the civil principate. For to us, on the contrary, they are an argument that the faithful of the fourth century, no otherwise than the Church of the nineteenth century, judged that a power of this sort resided with the Church alone.

3. Why, therefore, does the holy Doctor not appeal to a law of the Church? But we have indeed proved that from the beginning the Church had power and exercised it over the marriage of Christians; we have not, however, affirmed that already from the beginning she constituted all impediments. Therefore from the silence of Ambrose only this could be consequent: that, since such unions were sought so rarely, that law had not yet been enacted by the Church. But from the fact that Ambrose's response does not rest upon the civil law already then prohibiting those nuptials, there is gathered a certain argument that he himself did not judge that the marriages of Christians were to be ruled by civil law.

IX. They argue from Augustine, who (De Civitate Dei, book XV, chapter 16), in order to exclude marriages of cousins, amplifies several congruences of equity and brings forward no ecclesiastical law, but only a recent civil law, by the force of which he signifies that it came about that those nuptials were illicit. "We have experienced," he says, "in the marriages of cousins, even in our times, on account of the degree of kinship next to the fraternal degree, how rarely that took place through custom which was permitted to take place through laws; because divine law did not prohibit it, and human law had not yet prohibited it," that is, the law enacted by Theodosius.

I answer. What can be deduced from Augustine's words is this: 1. before Theodosius the Church had not prohibited those nuptials, or at least Augustine did not know this prohibition if it had been made somewhere; 2. even when that law did not exist, those nuptials were rarely undertaken by the force of customs; 3. but they ceased to be contracted after they were forbidden by human law. But 1. it is not certain that those among whom they rarely occurred were Christians; for Augustine speaks universally of the men of his own age, in which many pagans still existed; and therefore 2. it cannot be gathered from Augustine's words that Christians abstained from those nuptials by the force of the imperial law. Much less 3. can it be inferred that Augustine did not judge that the Church could prohibit and invalidate those nuptials; for he only narrates a fact, he does not dispute about right. Hence it is indeed permissible to infer that the Church had not yet enacted that law, but not that she could not enact it, or that the authority of the Church was not needed in order that that law be valid for Christian marriages, as we shall demonstrate in Thesis XXXII. With this posited, under the name of human law, which is opposed to divine law, the positive law of the Church also can be comprehended, or either of the two, ecclesiastical or civil, can be signified; wherefore by that distinction Augustine does not teach that marriages can be prohibited only either by divine law or by the human law of civil society, but either by divine law or by human law, whether civil for infidels, or ecclesiastical for the faithful, and this latter either decreeing by itself or approving the civil law. But as to the fact concerned, since the only human law then existing was civil, and it was valid for infidels, in Augustine's context the expression "human law" is supposed historically for civil law alone. Unless, which it was not necessary for Augustine to report, there was added the approbation of the Church, which wished Christian marriages to be bound by that law.

X. It is objected in vain that Athenagoras in the Legatio professes that Christians take a wife according to laws laid down by the Emperors.¹ For he does not say that these laws are valid for Christians apart from the approbation of the Church, and that apart from it Christians take wives. But he simply affirms only this, that is, the fact, which was conducive to the end intended by him, namely the defense of Christians. For neither could he deny that Christians entered marriage according to the judgment of the Bishop. In vain also is there brought forward the canon of the Council of Carthage (p. 154), in which, after second marriages while the former spouse is living have been prohibited, the Fathers say that an imperial law is to be sought and promulgated; for this is nothing other than an imploring of the secular arm for restraining the contumacious. Indeed that prohibition is divine, and it does not need the confirmation of human power. In the same way one must take what is found in the laws of the Lombards: King Luitprand, prohibiting the marrying of the widow of a cousin or of a second cousin, says, "because, with God as witness, the Pope of the City of Rome by his letter exhorted us that we should in no way permit such a marriage to be made"; for this exhortation did not tend to this, that the King himself should establish a diriment impediment, but that he should conform himself to the Church by not permitting, namely, what the Church prohibited; and this permission, although invalid, would have been an occasion of scandals. Moreover, it is an indication of prudence and modesty in the Pontiff to use exhortation without command; it is not a defect of power. Nor does canon 5 of the Lateran Council in the year 1123 help the cause of the adversaries: "We prohibit unions of blood-relations from being made; because both divine and secular laws prohibit them. For the divine laws, doing this, not only reject them and those who spring from them, but call them accursed; but the laws of the age call them infamous and repel them from inheritance. We, therefore, following our fathers, mark them with infamy and judge them to be infamous." First indeed, the Fathers of this council say that in making the decree they follow their fathers; but Bishops gathered into a Synod do not call any but preceding Bishops and Doctors of the Church their fathers, not laymen or emperors. Then the divine law which prohibits the unions of blood-relations can be understood both as that which is contained in Sacred Scripture and as that which has been constituted by the Church. But these Fathers follow their own fathers when they themselves decree that those whom the former had called accursed are infamous.

¹ The published reading indeed has ὑφ’ ἡμῶν; but not a few learned men judge that ὑφ’ ὑμῶν should be read (that is, by the emperors), with whom we agree not unwillingly.

The arguments which are brought forward from laws enacted by emperors on this matter and from the deference of the Roman Pontiffs toward them we shall dispatch in the following theses.

XI. Van Espen (Ius Eccles., tom. 1, part 2, title 13, chapter 1, § 20) says: "We do not in any way doubt that the Church has authority for introducing similar (diriment) impediments, as has been defined by the Council of Trent; but this also must be admitted, that the Council did not define whether this authority of introducing diriment impediments belongs to the Church from the institution of Christ, or whether from the tacit or express indulgence of princes." Yet these things are said most shamelessly. For the Church does not sanction as a dogma of faith that which is mutable and can become false; but if the power of the Church in establishing impediments is from the concession of princes, it can cease, and therefore the assertion that that power belongs to her can become false. Therefore by the definition itself that mode of having that power is excluded.

XII. We have proved that such a power belongs to the Church by her own right, not from the concession of princes. But the reason why it belongs in this way is at hand. For by proper right, derived immediately from divine institution, there belongs to the Church power over sacred things; since, therefore, the Christian matrimonial contract is a sacrament, by divine right the Church has the power of establishing all things which are necessary that it take place honorably and validly. But this power over sacred things is independent of any civil power, as is proved in the treatise on the Church; therefore.

Corollary I. Therefore inept are those who, being unable to bring forward any document by which the formal concession of princes or their explicit consent in favor of the exercise of ecclesiastical power is proved, have recourse to tacit consent, which would have bestowed force upon the laws of the Church. For in order that such a tacit consent be affirmed, it is necessary that the authority of the civil principate be required for the validity of the act; but it is established that this very authority is not required for the validity of ecclesiastical laws with respect to impediments of marriage; therefore this consent, which can do nothing, is wrongly invented here. Besides, tacit consent is ineptly supposed when the one who is said to consent resists as much as he can; but not rarely in past centuries princes resisted the authority of the Church over marriage as much as was in them, either by opposing her decrees or by wishing to bring her to define what pleased them; therefore.

Corollary II. Therefore it is much more false that the exercise of this power in the possession of the Church is a usurpation of the power of laymen; indeed this affirmation is a heretical blasphemy.