Thesis XXXIII

The arguments which the adversaries gather against the asserted truth, whether from the natures of things, from history, or from the authority of doctors, are altogether weak.

I. First they argue thus from the natures of things. a) Those things are directly subject to the Prince which tend directly to the good of civil society; but marriage is of this kind; therefore.

I respond to the Major. Those things are subject to the Prince which tend directly to the good of society, distinguish: that is, those which by reason of themselves are immediately ordered to the good of civil society, I concede; that is, those which by reason of themselves, on account of their proper perfection, also contribute to the good of civil society, I subdistinguish: if they are supernatural, I deny; if they are natural, I subdistinguish: if they are proper to the civil order, I concede; if they are of the religious order, I subdistinguish: they belong to the Prince, insofar as he is the orderer of society toward the civil good, I deny; insofar as by accident he is also orderer of religious worship, by which men even in the state of nature would tend toward God, I subdistinguish: if there does not exist a supernatural religious society, I pass over; if one does exist, I deny. Indeed I deny the supposition.

To the Minor. Marriage tends directly to the good of civil society, distinguish: that is, by reason of itself it is immediately ordered to the good of civil society and is something natural, I deny; that is, on account of its perfection it contributes to the good of civil society and is something supernatural, I concede. Cf. the things said in the preceding Thesis, n. V.

b) The Prince can make invalidating laws concerning other contracts; therefore also concerning this one especially, which so greatly influences society.

I respond. Distinguish the Antecedent: concerning other natural contracts, I pass over; concerning contracts elevated to the supernatural order, I deny. Cf. what we said concerning the nature of the contract of marriage in Thesis XXIII, n. III.

c) The matter of marriage is in the same order as the matter of baptism; but this latter is subject to the civil power; therefore the former also can be subject to it.

I respond. If you are speaking of the remote matter of baptism, we deny that the comparison is suitable. But if you are speaking of the proximate matter, then distinguish the Major. The matter of marriage is in the same order as every use of water, I deny; as the sacramental use of water, I subdistinguish: and that which is the matter of marriage is nothing except matter, I deny; besides, it is really also form and therefore the whole sacrament, I concede. Distinguish the Minor: the water itself is subject to the civil power, namely to the power of civil jurisdiction, I deny; the use of water is subject, I subdistinguish: some use, I pass over; religious use and sacramental use, I deny. Cf. the preceding Thesis, VI. 4.

d) If the Christian Prince lacks this power, it would have to be said that the marriages of infidels are subject to no human power; but this is absurd.

I respond. Distinguish the Major. If the Christian Prince lacks power over absolutely all marriages of whatever order, it would have to be said..., I concede; if he lacks only power over sacramental marriages, it would have to be said..., I deny. And thus the response to the Minor is clear.

We do not deny that the Prince has power over marriage insofar as it is simply marriage, but over Christian marriage insofar as it is a sacred thing and a sacrament. If it is only a natural thing, as is the marriage of infidels or of Jews, we concede to the Prince, whether infidel or Christian, authority to make even invalidating laws concerning it. For those do not please us who simply and absolutely deny this power to the civil authority, since the scientific demonstration of Catholic truth supposes this principle, namely that the matrimonial contract is ruled by the laws of the authority of that society in which it is made. This is taught by a certain Instruction of the Congregation of the Propagation of the Faith, given to the missionaries of Tonkin in the year 1821; see it in the Collectanea of the Propagation of the Faith, p. 540 seq. Yet observe the distinction which we have already given, namely that the Prince in a non-Christian society and for non-Christian subjects possesses this power, not properly insofar as he is prince, but insofar as by accident he is also pontiff. See the preceding Thesis, n. V.

Therefore they are foolish who say: therefore an infidel prince, when he becomes Christian, loses some proper right; or, therefore an infidel prince, who has nothing more than a Christian prince, lacks this right toward infidels. For 1. he lacks this right, not from the fact that the prince is Christian, but from the fact that the subjects are Christian, whether he himself is Christian or pagan; 2. it is false that he loses what he had, for he had right over the marriage of infidels, and this he retains; but it is by accident that, when the subject is lacking, it cannot be exercised. But he never had right over marriage as sacrament. Therefore 3. an infidel prince has this right over the natural marriages of infidel subjects, which are not sacraments, and a faithful king has the same right with respect to the marriages of his subjects, if he has any, who are infidels. And surely 4. does a Christian prince in a Christian society have right over sacred things? Yet he would have it in a pagan society. Therefore the lack of this right in the prince with respect to Christian subjects arises from the very nature of the thing, or from the will of Christ instituting the supernatural order and elevating marriage to the dignity of a sacrament; it is not a diminution of his natural power.

c) The prince can prohibit some marriage from taking place; therefore he can also invalidate it. The consequence is clear, because the former shows that marriage is subject to his authority.

I respond. We are speaking of Christian marriage. Distinguish the Antecedent. He can prohibit by a merely penal law, that is, one depriving the parties of certain civil rights and goods, by which deprivation the subjects are freely moved to abstain from those marriages if they do not wish to undergo those temporal losses, I pass over; by a law immediately binding conscience, I deny. Hence the consequence is denied. Nor is any other right asserted for the Prince than that of making laws concerning civil rights and effects.

II. They argue from history. They say that princes formerly exercised this power, without the Church opposing it, and Launoius brings forward in the cited work several Imperial laws made from Constantine onward.

But account must be taken not only of the fact alone, but the nature of the fact must be considered: namely, whether Christians believed themselves bound by those laws, and, if they believed this, whether by force of imperial authority or rather by force of the authority of the Church, which approved these laws and made them her own when she judged it opportune; and therefore whether they were made not by imperial authority alone, but also by ecclesiastical authority.

Now it is certain that the Church has always held this opinion: that there is no authority of the civil principate over ecclesiastical sacred things. "Do not involve yourself," Hosius said to Constantius, as Athanasius reports in the History of the Arians, n. 44, "in ecclesiastical affairs, nor give commands to us concerning these things, but rather learn these things from us: God entrusted the empire to you; He entrusted ecclesiastical things to us." "For the Emperor has no power of looking into the Churches, just as neither has the Pontiff any power in the palace," says St. Gregory II to Leo the Isaurian, epistle 2. And Innocent III, chapter Ecclesia, On Constitutions: "To laymen, even religious ones, no faculty has been attributed over churches and ecclesiastical persons; for them there remains the necessity of obeying, not the authority of commanding; and if anything shall have been established by them on their own motion which even regards the advantage and favor of churches, it has no firmness unless it has been approved by the Church." Therefore much less can that have firmness which Princes on their own motion decree concerning the matter of the Sacraments. Accordingly the opinion of the Church has always been, as Benedict XIV testifies to the Cardinal of York, that "a law established by a lay prince ought to have no force in marriages."

Indeed, the Christian Princes themselves have signified, not obscurely, that they thought this. For, making a distinction between civil laws and ecclesiastical canons, Justinian confesses in Novel 137 that the power of making the former was given to him by God, but that the custody of the latter was committed to him: "If we take care that the civil laws, whose power God, according to His kindness toward men, has entrusted to us, are firmly observed by all for the security of those who obey, how much more care ought we to apply concerning the custody of the sacred canons and divine laws, which have been defined concerning the salvation of our souls?" You see that sacred canons and divine laws are joined together, over which Justinian certainly does not claim authority for himself, but only custody. Therefore those things which are defined by the canons of the Church, of which sort are those which pertain to the Christian Sacraments, have been committed not to the power but to the custody of Emperors. Since therefore the form of celebrating Christian marriage is defined by the canons of the Church, and ought to be defined by them, it is withdrawn from the civil power. Nor did the other Emperor, Charlemagne, think otherwise, in whose capitularies there are many decrees concerning sacred things and persons. But how this was done, hear from the Theologian of the Gauls, Natalis Alexander (Hist. Eccl., century VIII, ch. 7, art. 8): "The capitularies were composed in an assembly of Bishops, Abbots, and Counts. They embrace both ecclesiastical and civil laws. The laws concerning ecclesiastical things and persons are, nearly all, taken from the canons of councils and the decrees of Pontiffs. For the greatest King did not arrogate to himself the authority of making merely ecclesiastical laws, but commanded their execution, nor did he publish his capitularies without the counsel of the Bishops. And toward priests and religious men he claimed for himself rather the office of admonisher than of legislator, and he glories in the name of helper and humble defender of the Holy Church of God, as is clear from the preface of the Aachen capitulary." That preface reads thus in the General Capitulary ascribed to the year 789: "I, Charles, by the grace of God and by the gift of His mercy King and Rector of the kingdom of the Franks, and devout defender and helper of the Holy Church of God in all things belonging to the Apostolic See." That many decrees pertaining to ecclesiastical things contained in these capitularies of Charlemagne and of his sons must be understood in this way is clear even from the fact that they were understood so in that age. For Benedict the Deacon of Mainz, another collector of those capitularies, placed before the collection the letter of Pope Zachary and two Synods celebrated by Boniface, legate of the Apostolic See. Moreover Benedict placed these at the front of his collection for this end, "that," as he himself says in his preface, "all may recognize that these capitularies of the aforesaid princes were chiefly confirmed by apostolic authority." Therefore it is established that the certain opinion of the Church has always been that there is no authority of the civil principate, both generally over sacred things and over the very marriage of Christians, which is essentially a sacred thing and a sacrament. Therefore we conclude: if imperial laws had any force in this matter, this was done from the consent and authority of the Church approving them.

Indeed, in order that the Church might exercise her right from the beginning, it was not necessary for her to abrogate all civil laws and immediately establish new ones; for this is foreign to the spirit of the Church, which abhors ostentation. But it was enough that she teach the faithful that those laws which were approved by her had force for them because the Church approved them. Moreover, that the ancient faithful judged the approval of the Church necessary can be argued even from those things which we said when explaining the letter of Ambrose to Paternus.

For the rest, it is established that the ancient Emperors promulgated in the code of their laws also ecclesiastical canons, not in order that they might add force to them, but in order that they might protect and urge their observance, although from time to time they exceeded the measure and arrogated to themselves more than was fitting; but this excess was reproved by the Church. Wherefore the things which they establish concerning the validity of marriage are to be understood either of civil effects, or of the intrinsic validity of marriage with respect to Christians on account of the law or consent of the Church, or of its intrinsic validity with respect to infidels. For since there were still many subjects of the Empire who were infidels, and since the prince could make laws with respect to their marriages, those same Emperors could not then wholly abstain from making these laws.

III. Concerning certain laws made by the Emperors about impediments of marriage and brought forward by Launoius, we have already spoken in Thesis XXIX with respect to the impediments of consanguinity, affinity, vow, abduction, disparity of cult, and crime, and we have seen that impediments diriment of Christian marriage are falsely gathered from those laws. But Launoius brings forward others in order to demonstrate besides that the impediments of public honesty, legal and spiritual kinship, servile condition, and even sacred order borrowed their origin from Imperial laws. But besides the general observation just applied, if these impediments are considered one by one, and the laws to which Launoius appeals, it is clear that he argues very badly.

a) For whom, for example, will he persuade that the impediment of order was established by this law of Justinian (Novel 22, c. 42): "if anyone placed among the most reverend clerics - we mean beyond cantor and lector - shall contract nuptials at all, we establish and will that he fall from the priesthood by our constitution"? Therefore will the penalty of deposition also be inflicted by a secular Prince? Who does not know that by very ancient ecclesiastical law nuptials, or the use of nuptials, were prohibited to Bishops, Presbyters, Deacons, and even Subdeacons? Here the Emperor protects and executes this law of the Church. Cf. the things we shall note in the Appendix, at the Canons of Elvira and following.

b) As for the impediment of servile condition, if the consent of the free contracting party is lacking, the very nature of the thing at least suggests that there is no contract. Certainly St. Leo, epistle 167 to Rusticus, affirms in rule 4: "the covenants of nuptials are legitimate between freeborn persons and between equals, the Lord Himself having established this very thing much earlier than the beginning of Roman law existed." Therefore there was no reason why Launoius should appeal to the Novel of Justinian cited above.

c) The impediment of legal kinship indeed supposes adoption established by law, which law can also be civil, but theologians with St. Thomas, whose words we shall recite a little later, deny that it borrows the force of a diriment impediment from civil law. Nor do the laws of Justinian brought from the Digest by Launoius prove this, as is manifest even from the general observation applied above. But the fact that Pope Nicholas, in the responses to the consultations of the Bulgarians, c. 2, appeals to the venerable Roman laws (Institutes, book I, On Nuptials) to prove that marriage cannot exist between such persons shows that Roman laws produce this effect insofar as they have been approved and received by the Church. For this is the Nicholas who, following the tradition of his elders, taught with Gelasius that the Emperor presides, with God as author, only over civil things, the Pontiff over sacred things, and that the offices of each power are so distinct that Christian Emperors need Pontiffs for eternal life, and Pontiffs use imperial laws only for the course of temporal things (epistle 8 to Michael the Emperor). Moreover Nicholas proves in the same response that spiritual kinship impedes marriage, not from imperial law, but, with the law of the Church supposed, he persuades from the impediment of legal kinship that marriage is much more impeded by spiritual kinship. Cf. what we shall say in the appendix at the words of Nicholas.

Finally, as for the impediment of honesty, Launoius derives it from the Digest, book XXIII, On the Rite of Nuptials, law 12, from Ulpian: "Between me and my father's betrothed, nuptials cannot be contracted, although she is not properly called my stepmother; but also, conversely, my betrothed will not be able to marry my father, although she is not properly called his daughter-in-law." But this is not the whole impediment of public honesty such as was formerly admitted by the Church and is still admitted; therefore this impediment does not have force in the Church by force of this opinion.

And this is again the general observation that must be made: namely, that there are many impediments according to the canons which are lacking in the laws; many, already established by the laws, were afterward either amplified, restricted, or moderated by the canons, so that the Church always manifested from this her own proper independent authority toward the faithful.

Therefore if sometimes the Roman Pontiffs call the laws of Roman law, this occurs because they have made those laws their own, and because by tacit consent it was agreed that the laws of the code, in those things which are not opposed to the canons, would be received also in ecclesiastical judgments, where the disposition of an ecclesiastical canon was lacking.

IV. But Launoius, besides the imperial laws, also adduces the practice of Kings and Emperors of the middle age, in order to prove that it was always retained as properly royal right by which diriment impediments are established for Christian marriage. It will be enough to consider the principal facts which he brings forward.

a) First there is brought forward a twofold history from the life of St. Godeberta and St. Saleberga, who were betrothed only with the consent of the King in whose power they were. Evidently, the consent of those in whose power a girl is, which is required for the honorableness of marriage, is confused with political power over the bond of marriage. Again from Gregory of Tours, History, book V, c. 2: King Chilperic dissolved the nuptials of his son Merovech with Queen Brunhild, or separated them, because, as the king said, "Merovech had taken the wife of his uncle contrary to divine and canonical law." Therefore the King executed the canons; he did not establish a law.

b) Likewise King Clotarius made this law: "Let no one presume, by our authority, to seek the marriage of a widow or girl without their will, nor let them be unjustly carried off by surreptitious suggestions. Likewise let no one dare to associate consecrated women to himself in marriage." Evidently the King defended the rights of individuals and the canons. Let us come to the more important matters.

c) Baldwin, Count of Flanders, without the knowledge of King Charles the Bald, carried off his daughter Judith, a widow, who nevertheless freely followed him. When this matter was first condemned in a civil judgment, at the king's own request, the bishops afterward punished the guilty parties with spiritual penalties. But Nicholas I, to whom Baldwin fled, in letters given to the King, asked that he be willing to pardon the injury and receive Baldwin back into favor. Evidently, the matter concerned an injury inflicted on the king and father, and the Bishops punished it according to the decrees of Gregory II in a Roman synod: if anyone has stolen a widow as wife, and those consenting to him, let them be anathema. Nicholas did not wish to grant pardon from the anathema before expiation of the fault, but he acted the part of intercessor with the king, who had a just cause of anger and the power of invalidating the marriage as regards civil effects (cf. the Critica of Antonius Pagi at the year 862, VII). Moreover, the judgment of worldly law preceded in this affair because the matter concerned chiefly not the bond of marriage, but the injury inflicted on the King, which civil law also prohibits. But Nicholas does not ask the King to permit the marriage to be valid, but to pardon the injury and receive Baldwin into favor and allow him to enjoy the marriage peacefully. Read Nicholas's letters to King Charles, 20 and 30, among the letters of Nicholas. Nor is it certain that nuptials had already been entered then; for only this is said, that Judith followed Baldwin, that she ran with the thief; and what is added, "and made herself a portion of adultery," can be understood of the very following and of the will and promise of marriage. Indeed Nicholas commanded not that the spouses should be united again, but that, with the King indeed permitting, the union of Baldwin and Judith should take place without any delay. Cf. Flodoard, History of Reims, book III, c. 12.

d) But behold a dissolution of the matrimonial bond commanded by the Emperor Louis the Bavarian, who in his letters asserted that this power of constituting diriment impediments belongs to civil authority. But this heretical and excommunicated man, who had drawn the heresy concerning the supreme right of the civil power even in sacred things from Marsilius of Padua, and who was excommunicated for this reason, because he had joined some persons in prohibited degrees, proves no more that this power belongs to Princes than the rebellion of Henry VIII, king of England, proves that every king is the supreme head of the Church in his own kingdom.

e) Again Louis the Stammerer, son of Charles the Bald, was forced by his father to dismiss the noble girl Ansgard, whom he had secretly joined to himself without his father's consent and from whom he had received two sons, Louis and Carloman; and another wife, Adelaide, was given to him by his father, whom he left pregnant with Charles the Simple, who succeeded him. Launoius thinks that the marriage was dissolved or regarded as null, and he rests on this argument, that the sons of the earlier girl were regarded as spurious and did not succeed in the kingdom, but only administered the kingdom as tutors of Charles the Simple. But in these things he is notably deceived; for Louis and Carloman succeeded in the kingdom of their Father as legitimate sons. Read Flodoard, History of Reims, book III, c. 19. Cf. Antonius Pagi, Critica, at the year 879. Therefore, whatever may be said of the tyrannical separation of the first wife, she was regarded as a true wife. Yet here Launoius plays on an equivocation, as also in not a few other facts of the kings of the Gauls. For it is one thing that kings, supposing in error that the nuptials of their sons and agnates made without their consent were null by a custom received by the Gallican church itself, ordered them to be dissolved; it is another thing that they themselves interposed royal authority to confirm or dissolve the bond of marriage. But this history of Louis the Stammerer and similar ones, if they proved anything, would establish the first, not the second; yet Launoius undertook to prove the second.

f) Therefore to the same point returns what Louis XIII attempted in the year 1632 concerning the marriage entered by Gaston, Duke of Orleans, with Margaret of Lorraine without the King's consent. The Gallican clergy, consulted by the King, judged that marriages of Princes of the royal house contracted against the will of the head of the family, regard being had to the custom and practice of the Church of France and also to the consent and approval of the Church, were invalid; thus also the Parisian theologians judged. But Urban VIII, in the year 1635, responded that it was not in his power to call into invalidity a marriage contracted according to the rules and prescription of the Synod of Trent; that the special laws of France had no force in a Sacrament which depends on Christ the institutor and on the canons of the Church; that whatever the civil effects of these laws might be, the bond of marriage persisted and remained unmoved (Roskovany, cited work, vol. 1, p. 95). For the rest, the King finally permitted that marriage, nor was a new consent demanded; but after seven years a solemn celebration was again performed before the Bishop of Paris, who used this formula: I join you in marriage, insofar as there is need. But in the opinion of the Gallicans there was indeed an error of fact; nevertheless, as far as right is concerned, they themselves judged that such a power belongs to the Church alone.

Before we dismiss Launoius, we note that this author, although at the beginning of the work he seems to wish only to defend the royal power over the marriage of Christians besides the ecclesiastical power, nevertheless afterward advances to such a point that he asserts this right for the civil power alone, and wishes marriage to be a merely civil affair, with the contract of course distinguished from the sacrament.

V. They argue from authority, and first from St. Thomas. But the opinion of St. Thomas is set forth in Supplement, q. LVII, a. 2: "by human laws (civil laws, or Roman law) it is prohibited that marriage be contracted between such persons (the adopted and the adopter, etc.), and such prohibition has been approved by the Church; and from this it is that legal kinship impedes marriage." And to the fourth: "it must be said that the prohibition of human law would not suffice to impede marriage, unless the authority of the Church intervened, which also forbids the same thing." Consonant with these are the things which he has in Quodlibet V, a. 16, where, after he has taught that the Church relates to those things which pertain to marriage in a threefold way, namely 1. by way of judging, 2. by way of prohibiting or punishing, 3. by way of establishing, he says of this third way that "it is done only by the authority of the Supreme Pontiff, and according to this some persons are called illegitimate for contracting."

Yet his doctrine is objected from Supplement, q. L, single article, ad 1, and in book IV, Against the Gentiles, c. 78, which returns to this: since marriage is ordered to diverse ends, it needs to have diverse things directing it to its end. It is ordered to the perpetuity of the species, to the perpetuity of the people in the city, and to the perpetuity of the Church. With respect to the first it is directed by nature inclining to this end; with respect to the second it is subject to the ordinance of civil law; with respect to the third it is subject to the rule of the Church. Or, marriage insofar as it is for the office of nature is established by the law of nature; insofar as it is a sacrament it is established by divine right; insofar as it is for the office of the community it is established by civil law. And therefore, he concludes, by any one of the said laws some person can be made illegitimate for contracting marriage. But 1. if diverse marriages are considered by St. Thomas, it is certain that natural marriages, which are made in civil society, can be ruled and established by civil law; but marriages which are Sacraments ought to be ruled and established by the law of the Church. But if 2. St. Thomas speaks of the same marriage, which Christians existing in civil society contract, then we observe that the words of St. Thomas are general and that their specific sense must be determined from the subject to which they are referred. Both the Church and the civil power establish laws and direct marriage, but in one way and another. The Church does this with respect to the bond itself and the Sacrament; the civil power with respect to civil effects. For direction of this sort suffices for obtaining the end of the civil power, or for that good which can follow from marriage in civil society and which the civil power can procure in Christian society. Therefore by civil law a person is made illegitimate, not simply for contracting marriage, but in a qualified respect, that is, for contracting a marriage capable of civil effects. The texts cited in the first place demand this interpretation.

VI. Against the doctrine defended thus far, arguments and the authority of certain Scholastics are also customarily brought forward, from whom the adversaries have borrowed their principal arguments. Indeed Petrus a Soto says (Institutions for Priests, on Marriage, lecture 4): "Positive laws can also render some persons illegitimate; whence Blessed Thomas fearlessly asserts that civil rights themselves and the laws of the emperor render some persons illegitimate for contracting, in such a way, namely, that there is no marriage. Nor do others deny this, although they do not assert it so expressly... For if divine right permits the Church to prohibit what it itself does not prohibit, why will the Church not permit the secular power to prohibit what she herself does not prohibit? Let us therefore confess that civil laws cannot make a marriage licit which ecclesiastical laws render illicit, just as ecclesiastical laws cannot approve what divine right reproves; for this would be for the inferior to contradict the superior. But what ecclesiastical laws do not prohibit, why will secular laws not be able to prohibit, just as what divine right does not prohibit, ecclesiastical laws prohibit? The Prelates of the Church ought not receive it with reluctance if secular Princes establish what they have seen to be necessary for temporal peace, nor is there reason for them to oppose them, but rather they should permit marriage to be ordered by human laws, since it is an office of nature; although civil laws in all these matters have surely and easily yielded to the Church from the piety and will of Princes, so that now no marriage is judged illegitimate which the Church does not judge such." Thus far Petrus a Soto. Observe first of all that he wrote these things and died before the celebration of Session XXIV of Trent on Marriage. His doctrine certainly does not cohere with canon 12 and the interpretation of Pius VI, nor with the affirmation of Benedict XIV, nor with the doctrine of St. Thomas. For the rest, it must be considered that the power of the Church is held by him as superior, and he seems to judge that the Church, if she wishes, can prevent secular Princes from establishing impediments of marriage; therefore he only exhorts Prelates to permit the exercise of civil right. But the argument of this Theologian must be more accurately weighed: what ecclesiastical laws do not prohibit, why will secular laws not be able to prohibit, just as ecclesiastical laws prohibit what divine right does not prohibit? The response is, namely, that ecclesiastical laws prohibit what divine right does not prohibit because divine right left the matter in many respects under indetermination and made for the Church the power of establishing the form for the validity of the act, so that those contracts would be null which the Church invalidated, and those would be valid which the Church did not make invalid (Decree on Marriage). Civil laws cannot prohibit what the Church does not prohibit, 1. because divine right has made no power for the civil authority over this matter; 2. because by the very fact that the Church does not invalidate those contracts, they are already valid (cf. Praenotiones, this chapter, n. 6), and valid by that right which is higher than civil right; 3. because if the civil power by its own right could invalidate some contracts which the Church does not invalidate, it would in reality have right over a spiritual thing, such as the matter of a Sacrament is (cf. the preceding Thesis, IV. 4).

Ambrosius Catharinus, in the little work On Clandestine Marriages, published at Rome with the privilege of the Roman Pontiff, says: "Whatever is not against the law of God and the law of nature, I believe Princes can provide for by their laws concerning Marriage as concerning their own and not another's matter; and therefore I think that a law made by them had force by which marriages contracted without consulting parents were invalidated." Note again that Catharinus died before Petrus a Soto. What is placed as a principle must be conceded; but it is the law of God that, with respect to the validity of the act, Christian marriage is subject to the power of the Church alone; for it is a sacrament, which is left to the ecclesiastical power alone to be administered; therefore. There are indeed in the Code of Justinian, book V, title 4, On Nuptials, laws which require, for the just nuptials of children existing under the power of the Father, the consent of the Father. Cf. also the Institutes, book I, title 10. There is not one opinion of the interpreters of civil law in this matter. Some judge that these nuptials were regarded altogether as null, but others deny it. Thus Jacobus Cujacius, on book 30 of Paul, says: they are not just, I confess; nevertheless, once contracted, they are not dissolved. Wherefore laws of this kind are called imperfect, as laws which prohibit nuptials from taking place without the consent of parents, but do not dissolve them once contracted. For the rest, it does not matter to us what the civil law wished. For if formerly it had the effect of invalidating these nuptials, it certainly obtained this from the consent of the Church. And indeed the Tridentine Synod sufficiently declared this with respect to these marriages in the decree On Marriage: "Although it is not to be doubted that clandestine marriages made by the free consent of the contracting parties are valid and true marriages, so long as the Church has not made them invalid; and therefore those are rightly to be condemned, as the Holy Synod condemns them with anathema, who deny that they are true and valid, and who falsely affirm that marriages contracted by children of families without the consent of parents are invalid, and that parents can make them valid or invalid, nevertheless etc." The prior part of the condemned doctrine, namely of those who deny that clandestine marriages are true and valid, is understood with that limitation: so long as the Church has not made them invalid. This limitation also can and must be understood in the other part, by which it is denied that marriages of children of families contracted without the consent of parents are invalid. But no other limitation, drawn from the force of another authority, can be understood. For the context offers none; the Synod in this decree protects and confirms the supreme authority of the Church. Therefore unless the Church invalidates these marriages of children, they are valid according to the opinion of the Tridentine Synod.

Thomas Sanchez, On Marriage, book VII, disputation 3, nn. 2, 3, 4, says: "without doubt it must be said that the secular Prince, from the kind and nature of his power, can impose by his laws diriment impediments of marriage upon the faithful subject to him, for a just cause, in the same way in which the Pontiff can, unless the Pontiff had reserved this power to himself. The strongest reason is this. Since royal power is chiefly instituted for guarding the tranquillity and good of the republic, it belongs to it to provide that which is desired for obtaining this end, of which sort is to sanction certain things concerning marriages to be entered, by impeding and invalidating them; for on this chiefly depends the tranquillity and right governance of the republic. And it is confirmed: for if the secular prince can invalidate other civil contracts for the good of the republic, why will he not also be able to invalidate the contract of marriage, when at times the same common good demands it? Nor does it stand in the way of the power of the secular prince that marriage is a Sacrament, because its matter is a civil contract; and for this reason he can therefore invalidate it for a just cause as if it were not a sacrament, rendering the persons incapable of contracting and thus the contract illegitimate and invalid. For if we attend to the bare character of Sacrament, neither could the Pontiff dispose concerning it by dissolving it; and his power arises from the character of the human contract, which is the matter of this Sacrament... Nevertheless the Church can forbid faithful Princes the use of this power and reserve it to herself; when she does this, the laws of the secular Prince impeding or diriment of marriage against that reservation will be invalid, since the temporal power is subject to the spiritual and subordinated to it in order to the spiritual and supernatural end... Hence it is deduced that today it is not within the power of a faithful secular prince to dispose anything concerning the impeding or diriment of marriages of the faithful, since the Pontiff has reserved this power to himself, and indeed deservedly." But he says in n. 7: "I would have this noted, that subjects of infidel princes, as those who inhabit their towns, are bound by their just laws invalidating marriages in all those cases in which they are bound to their other laws. Wherefore, if they contract with that diriment impediment, the marriage will be null. Because the character of Sacrament superadded to marriage does not prevent there being in princes the power of establishing diriment impediments, but only the reservation of the Pontiff, as we have said."

But it is manifest 1. that this doctrine does not cohere with the doctrine of Pius VI. For Pius VI teaches that the character of Sacrament effects that it belongs to the Church alone to establish impediments for Christian marriage, that is, that it prevents this right from belonging to any civil power; therefore princes are prevented from being able to establish impediments for marriages of the faithful, not from the free reservation of the Pontiff, but from the nature of the thing or from the institution of Christ, who made marriage to be a Sacrament. Sanchez teaches the contrary.

Nor 2. does it cohere with canon 12 of Trent. For how do all matrimonial causes of Christians belong to ecclesiastical judges (cf. p. 207), if an infidel prince can make laws concerning impediments of marriage by which his faithful subjects are bound? For causes in which there is question of the marriages of those who are subject to these laws, and whose validity depends on the observance of these laws, belong to the tribunal of the infidel prince; for causes belong to the tribunal of him on whose law they depend.

Nor is the reason adduced by Sanchez valid. For it must be distinguished. It belongs to royal power, instituted for the common good, to provide those things which conduce to this end and at the same time are contained in the natural order, I concede; those things which conduce to this end and which also conduce to a higher end and are contained in the supernatural order, I deny. For by this very fact, from the nature of the thing, no free reservation intervening, they are withdrawn from the civil power and are subject uniquely to the sacred power. Read what we said in the demonstration of the preceding Thesis. Moreover it is false, as we saw, that the matter of the Sacrament is a civil contract; rather, it is a natural contract. For the rest, when Sanchez establishes that the power of princes is dependent upon the power of the Church, he departs from the doctrine of the modern regalists.

Sanchez cites Bellarmine among the authors favoring his opinion. But Bellarmine, On Marriage, c. 32, teaches only this: "that the political prince too can make laws concerning impediments of marriage, but with the ecclesiastical prince approving; for if the latter opposes, that law will be invalid." Namely, the force of the law is from the approval of the Church, as St. Thomas says; and therefore of itself the secular prince can do nothing.

For the rest, observe that these authors and others like them wrote in that age in which the question concerning the essence of the Sacrament of marriage had not yet been clarified, namely whether it was the same as the contract or something superadded; likewise, that those same men did not deny the power of the Church, indeed they asserted for her the right of invalidating the laws of Princes in this matter. But this was for that age a sufficient expression, although still incomplete, of that doctrine which afterward, when the truth had been more fully disclosed, was asserted.