Thesis XXXI

Although the secular Prince has the right of making laws concerning the civil conditions and effects of marriage, it does not, however, follow that he has the right of making laws concerning Christian marriage itself.

I. We wish to dispatch this question before we demonstrate that the right of prescribing the form for the validity of the matrimonial contract among Christians belongs to the Church alone, so that that demonstration may be fuller and more evident. In marriage, indeed, the essentials must be distinguished from the accessories. The essentials are consent, the indissoluble bond, the right and duty of dwelling together, the offspring being legitimate, that is, born from a just marriage, and the right of parents over children according to the very laws of nature. The accessories are those things which are added to marriage, without which marriage itself can exist, as dowry and those things which are called rights or effects, both civil and ecclesiastical, according as they have force in either society (for even in the Church these have a place, of which sort is, for example, that bigamists cannot be ordained); of this sort are capacity for obtaining public offices or duties, a certain determinate right of paternal power, the right of offspring to inheritance, participation in the status and honor of the parents, the faculty of making a will, etc. For the dispenser of these goods is the supreme power of the society to which they pertain; and since they are not essential to marriage, there is no need that they be determined by that power to which the essence of marriage is subject. Indeed, since according to the different character of civil societies one and another communication of these goods can befit each society, the determination of rights and effects of this kind ought to be in the possession of the individual civil authorities.

II. But in order that civil authority may rightly decree concerning these civil conditions or effects, there is no need that it itself have the right of making laws concerning the very bond of marriage and of prescribing the form for the validity of the contract itself; rather, without this power it can stand wholly intact. The reason is that the exercise of power concerning all these things by its own nature supposes a true marriage already existing; but the end for which this power is exercised is not the intrinsic perfection itself of marriage, but the extrinsic good of society, which, true marriages being indeed supposed, can nevertheless be obtained from them in many ways. Therefore, according to the character of the society and the different conditions in which it is placed, there is room for diverse determinations of effects of this kind, so that the end intended by the society may be obtained more suitably. Thus, although there may be a true marriage between a Prince and a handmaid, nevertheless it can be established that a son born from her does not succeed to the kingdom; thus it can be established that those who marry a fourth or fifth time are rejected from certain duties and honors, just as the Church rejects those who marry a second time from sacred orders. In establishing these laws the essence of marriage is not touched; nor, in order that the good of society be consulted, is there need to establish that there is no marriage between these persons; rather, it is enough to decree that marriages of this sort lack certain rights and do not produce certain effects. And indeed, since all these things are accessories of marriage, they of themselves suppose that its existence has already been constituted; and therefore, in order that some power concerning them be exercised fully, the exercise of its acts can begin from the supposition of a true marriage. Therefore, since power concerning accessories of this kind can be exercised fully, the essence of marriage already constituted being supposed, if it is proved from another source that Christ has withdrawn the bond of Christian marriage from the civil power and has claimed it for the religious power alone, which now is nothing except the ecclesiastical power, it will follow that nothing remains to civil authority except the power of decreeing concerning civil rights and civil effects, with the truth of marriage according to the laws of the Church being supposed. And so, in determining these civil rights and effects, civil authority stands toward religious authority as it would stand in the state of pure nature toward natural right; namely, just as it is not repugnant that that power should suppose the law of nature concerning the essence of marriage, nor is it demanded that the same power be able to make valid marriages which natural right reproves, so it is not required that it itself be able, against the right of a higher authority, to decree that some marriages are valid or invalid.

Therefore, once the reason of the civil good has been considered, it is lawful for the Prince to deny civil rights or civil goods to certain marriages valid in themselves. Nevertheless it would be most unjust and most base to assert civil goods equally for an invalid marriage, or concubinage, as for a valid one.