Thesis XXXIV

The power of the Church of constituting impediments for Christian marriage extends not only to Catholics, but of itself also to heretics.

I. By the name of heretics we understand those who, since they have been baptized, either have defected from the Church or, deriving their origin from these, follow their institutions. A twofold status is commonly distinguished in them. The first is of those who, mixed among Catholics or other nations, do not constitute a public religious society which is ruled by its own rites and laws. The second is of those who, from the concession of political authority, constitute a social religious body which has its own rulers and is governed by its own laws and rites. The question is chiefly about these latter: whether they are bound by the matrimonial laws of the Church. But with respect to all, a twofold question can be made: namely, the prior question is of right, whether the power of the Church in constituting impediments of marriage extends itself also to heretics, who therefore by right are her subjects in this matter; the other is a question of fact: namely, whether the Church wishes to bind also heretics, especially those whom we mentioned in the second place, by these her laws. The prior question is proper to theologians; the other rather to canonists, whose proper office is to teach the positive right of the Church, which indeed depends on the will of the Church. The statement of the thesis answers of itself to the prior question.

II. The power of the Church extends to those who are subjects of the Church; but heretics too are subjects of the Church; therefore.

The minor is proved. Someone becomes a subject of the Church through baptism, by which he is admitted into the body of the Church, and, while that baptism perseveres, the subordination of the baptized person to the Church remains; but heretics too are baptized; therefore. Indeed, one becomes a subject of the Church through that by which he is joined to the body of the Church; for by the very fact that he belongs to the body of the Church, he is bound by its laws, which have been made only for the members of this society. Now, through baptism a man is united to the body of the Church; therefore (Matt. XXVIII, 19, 20). Moreover this obligation consequent upon baptism lasts in this life insofar as baptism lasts; but baptism always remains. Nor can rebellion from the Church confer on a subject the right of withdrawing himself from this subordination and subjection; for an unjust act cannot confer a right against that by reason of which it is and remains unjust.

Nor does it matter that heretics are outside the Church; for the authority of the Church extends not only to those who are actually in the Church, but also to those who once were and now ought to be in the Church, although by their own fault they are exiles from it; just as deserter soldiers are still subject to the power of the commander from whose line of battle they have fled. For rebellion can indeed be a reason why the guilty man is subjected to penalty, but not why the social authority is deprived of its right toward him.

And indeed the Church has always asserted for herself the right of exercising her power, and that coercive power, over heretics, as is demonstrated in the Treatise on the Church. Cf. Canon Law, title On Heretics; Suarez, On Laws, book IV, c. 19.

III. But as for matrimonial laws, it is established that the Church judges that heretics also are bound by them. Pius VII testifies and proves this in the Brief to the Archbishop of Mainz, October 8, 1803: "But what must be said of the opinion of those who boast that heretics are by no means subject to the laws of the Church, and from this perversely infer that they can be joined in a new covenant of marriage if the first shall have been dissolved by the judgment of public authority? Against that opinion cry out the Scriptures, the councils, and finally the whole tradition. Let the Tridentine Synod stand in place of all, which in Session XXIV, chapter 2, distinguishing the non-baptized from the baptized, affirms that the former only are not subject to the judgment and therefore to the laws of the Church, since the Church exercises judgment over no one who has not first entered into her through the gate of baptism. Therefore these baptized persons, sons of the Church although rebels and fugitives, are subject to the laws of the same Church; wherefore the Church has never omitted to exercise her power over them, by the power divinely handed down to her, as is testified by nearly infinite monuments." And indeed, as often as the Church has dispensed in mixed marriages, she always took care that no other canonical impediment stood in the way. Cf. the Declaration of Benedict XIV concerning the marriages of Holland, and many other briefs or responses of subsequent Roman Pontiffs.

Now these things are valid not only for heretics, so to speak, sporadic, but also for heretics gathering into a sect and public society. For there is no right of this social unity, since the individuals are bound to return to the unity of the Church, and congregations of baptized persons besides the true Church are synagogues of Satan, reprobated by God, who willed all the baptized to grow together into one body under one head.

It is clear that the things said thus far are valid also for heretics who enter marriages with Catholics, and conversely; for both are subject to the laws of the Church.

IV. Yet there is a special question with respect to the impediment of clandestinity introduced by the Tridentine chapter Tametsi, Session XXIV. The question, however, is not whether, regard being had only to power, the Church could bind heretics also by this impediment, even those whom we reviewed in the second place; for the affirmative response is sufficiently clear from the things said. But it is a question of fact depending on a certain equity: whether heretics united into a public society, using their own laws and ministers, are in reality bound by this law, whether they live in a civil society which is governed by Catholics, or whether they live in a society which is subject to heretics. The reason for doubting is that, since on the one hand the Tridentine Synod wished marriage as a sacrament to be celebrated before the pastor, and on the other hand the Church prohibits the pastor and others from communicating with heretics in sacred things, and it would be hard to think that the Tridentine Synod wished all marriages to be null, not indeed of this or that heretic who lives among Catholics - which evil certainly can be permitted even for their confusion and to avoid scandal among Catholics - but of all those who constitute a not small body and one that will endure for a long time, most of whom are in good faith. It seems consequent that for these the Synod did not wish the presence of the pastor, which they lack, to be required. Indeed, if we believe Pius VII in the letters given to Emperor Napoleon on June 27, 1805, concerning the mixed marriage of his brother Jerome entered in America, composed with such care and diligence: "The Declaration of Benedict XIV for mixed marriages in Holland and in the confederated states of Belgium was not a new law, but only a declaration and explanation of what these marriages are in themselves." Therefore, with Pius VII himself as author, "the same principle of Benedict XIV must be applied to those marriages which are made between a Catholic and a heretical woman in those regions which are subject to heretics, even when the Tridentine Decree has been published there for Catholics existing there." This indeed is valid for the marriages of heretics who live in that region which is subject to heretics; but the earlier argument has force also for those who constitute a body within a society which is subject to Catholics. Cf. P. Ballerini in the Moral Work on Marriage, note to n. 841, 4. Therefore we judge that for heretics of this kind - say the same of schismatics - this impediment of clandestinity is not actually in force. But since the other impediments can be observed also by these heretics, there is no reason why they should not be bound by them.

But, as we have already noted, this question of itself belongs to the canonists; therefore you should consult them.