Article I. On The Existence Of The Sacrament Of Matrimony

642. Errors. 1. The Gnostics and Manichaeans erred concerning matrimony, although they condemned rather the use of matrimony as an incentive of concupiscence and as propagative of original sin. They held the whole of matrimony to be an invention of the evil principle.

2. Nearly all Protestants (with a few exceptions, for example, the Ritualists) indeed admit that matrimony is something religious; indeed, they say that it is better than virginity, but they utterly deny that it is a sacrament properly so called; indeed, Calvin did not fear to say that the character of a sacrament belongs no more to matrimony than to agriculture or the barber's or cobbler's art, and that it was not recognized as a sacrament before the time of Gregory I (the year 590).⁹⁵

3. Peter Lombard (the Master of the Sentences) indeed numbers matrimony among the sacraments, but appears to deny to it the power properly to cause grace.⁹⁶ John of Faenza taught the same.⁹⁷ Durandus of Saint-Pourcain (d. 1332) thinks that matrimony is a sacrament in a certain broad sense and does not produce grace ex opere operato.⁹⁸

Against all these, according to Catholic dogma, let there be the following:

⁹⁵ Institutes, l. 4, c. 19, § 34. Luther taught similar things, saying: "Marriage is an outward worldly thing, like clothing, food, house, and farm" (Von Ehesachen, the year 1530). Previously, however, he had admitted the sacramentality of matrimony.

⁹⁶ IV, dist. 1. Moreover, there is dispute concerning the true mind of Peter Lombard and Durandus.

⁹⁷ In Freisen, Geschichte des kanonischen Eherechtes, p. 37.

⁹⁸ Commentary on IV, dist. 26, q. 3. Cf. Drouven, De re sacr., l. 9, q. 1, § 2.

643. Thesis. Matrimony legitimately celebrated between Christians is a true sacrament, properly so called, of the New Law, instituted by Christ the Lord.

The proof of this dogma, which has been defined several times,⁹⁹ and especially by the Council of Trent,¹⁰⁰ thundering an anathema against anyone who should say that "matrimony is not truly and properly one of the seven sacraments of the evangelical law, instituted by Christ the Lord," pertains rather to Dogmatic or Apologetic Theology than to Moral Theology; hence only the following brief arguments are proposed. Although certain men (Cajetan, Estius, Vazquez) think that the dogma concerning the sacrament of matrimony cannot be proved from Sacred Scripture, but only from tradition confirmed through the definitions of Councils, the text of St. Paul soon to be cited appears to us to be strictly probative. The Catholic dogma is therefore proved:

1. From Sacred Scripture. St. Paul,¹⁰¹ treating of matrimony, says: "Let women be subject to their husbands, as to the Lord, because the husband is the head of the wife, as Christ is the head of the Church.... Husbands, love your wives, as Christ also loved the Church.... For this reason a man shall leave his father and his mother and shall cleave to his wife, and they shall be two in one flesh; this is a great sacrament, but I speak in Christ and in the Church."¹⁰²

Certainly, from the word "sacrament" alone, which is found in this text, it is not yet lawful to deduce a direct argument for the dogma, both because "mystery" is had in the Greek text and because down to the twelfth century the word sacrament was employed in diverse senses by ecclesiastical writers.¹⁰³ Nevertheless, in the cited text there is a solid argument for the Catholic dogma. For a sacrament of the New Law is a sensible sign causing grace from the institution of Christ. But Christian matrimony is a sign of this kind. Therefore Christian matrimony is a true sacrament, properly so called, of the New Law. The major of this syllogism is the very definition of a sacrament. The minor, however, is easily proved: a) Christian matrimony is a sign; for it signifies the moral union of Christ with the Church, as manifestly appears from the words of the Apostle saying: "The husband is the head of the wife, as Christ is the head of the Church." "Husbands, love your wives, as Christ also loved the Church." "He who loves his own wife loves himself; for no man ever hated his own flesh, but nourishes and cherishes it, as Christ also does the Church." Christian matrimony, therefore, is a sign of the union of Christ with the Church.

That matrimony is a sensible sign is evident of itself, since the matrimonial contract must necessarily be manifested externally. b) Christian matrimony is a sensible sign causing grace; for it is called by the Apostle "a great mystery, but I speak in Christ and in the Church." Certainly matrimony considered in itself, that is, the carnal union of the spouses and their mutual love and subjection, would undeservedly be called a great mystery, because nothing is more obvious and consonant with nature than such a union between a man and a woman. A union of this kind existed even before Christ; indeed, it is had in some manner among brute animals. Why, therefore, is such a union called by the Apostle a great mystery? But the Apostle himself immediately and expressly excludes this profane sense of matrimony; for he adds: "but I speak in Christ and in the Church" (in Greek it is said: "unto Christ and unto the Church"). Therefore St. Paul does not will every matrimony to be held as a great mystery, but only that which is entered into with respect to Christ and the Church. In other words: only Christian matrimony is a great mystery. But what distinguishes Christian matrimony from every other matrimony and renders it a great mystery? Nothing other than supernatural grace joined with it. Therefore from the words of the Apostle it is proved not obscurely that Christian matrimony causes supernatural grace. This indeed becomes all the more evident because the marital union is compared with the union between Christ and the Church. Now Christ, uniting Himself with the Church, causes supernatural grace in her. c) That matrimony as a sign causing grace was instituted by Christ is evident of itself, because no one except God alone is able to annex supernatural grace to natural causes. But in the present order of things all grace is conferred by Christ the Redeemer. From all these things it appears that the words of the Apostle furnish a solid argument that Christian matrimony is a true sacrament, properly so called. Therefore the Roman Catechism deservedly says:¹⁰⁴ "Now that matrimony is a sacrament, the Church, confirmed by the authority of the Apostle, always held as certain and established; for thus he writes to the Ephesians: Husbands ought to love.... For what he says, This is a great sacrament, no one ought to doubt must be referred to matrimony: namely, that the union of a man and a woman, of which God is the author, is a sacrament, that is, a sacred sign, of that most holy bond by which Christ the Lord is joined with the Church. And that this is the proper and true meaning of those words is shown by the ancient Holy Fathers who interpreted that passage, and the holy Synod of Trent explained the same."

2. From the Holy Fathers. St. Augustine¹⁰⁵ writes: "The good of nuptials, therefore, among all nations and men consists in the cause of generation and in the fidelity of chastity; but insofar as it pertains to the people of God, it consists also in the sanctity of the sacrament.... In the same manner, if there is an ordination of clergy for gathering a congregation, even if the gathering of a congregation does not follow, nevertheless the sacrament of ordination remains in those ordained." In these words St. Augustine attributes the sanctity of a sacrament to matrimony which pertains to the people of God, or to the matrimony of Christians, which he denies to other marriages; moreover, he compares the sacrament of matrimony with the sacrament of order, which certainly is a sacrament properly so called. In the same book, c. 18, the Holy Doctor calls matrimony "a seal and a sacrament," and concludes thus: "For in the nuptials of our [women], the sanctity of the sacrament has more force than the fecundity of the womb." But that the sacrament of matrimony is not merely a sign but also effects grace, St. Augustine asserts in this manner:¹⁰⁶ "The reality of this sacrament is without doubt that a male and a female joined by marriage persevere inseparably as long as they live, and that, except for the cause of fornication, it is not lawful for one spouse to be separated from the other." Now the res sacramenti signifies grace, and the Scholastics also understood this etymology in this manner. Therefore the sense of the cited text is: the sacramental grace of matrimony so assists the spouses that, notwithstanding human inconstancy, they can and ought always to remain united. St. Leo the Great¹⁰⁷ says: "Since the society of nuptials was so constituted from the beginning that, besides the union of the sexes, it had in itself the sacrament of Christ and the Church,¹⁰⁸ there is no doubt that that woman does not pertain to matrimony in whom it is shown that there was no nuptial mystery."¹⁰⁹

3. By the argument of prescription. From various documents and formulas of faith it is established that the Eastern Churches, separated from the Roman See for many centuries, hold matrimony as a true sacrament. But this fact cannot be explained unless it is admitted that already at the time of the separation (the fifth century), throughout the whole Church, matrimony was held to be a true sacrament. For the Eastern Churches after the schism certainly admitted nothing that had been newly introduced into the Roman Church. Therefore it must be conceded that already before the fifth century matrimony was recognized as a true sacrament,¹¹⁰ and that its institution is suitably referred to Christ Himself.

4. By the argument of congruity. Since the matter here concerns a supernatural reality, reason cannot demonstrate apodictically that matrimony is a sacrament; but it manifestly shows how exceedingly fitting is the elevation of matrimony to the dignity of a sacrament. For the welfare of the whole of human society depends upon marriages rightly entered into and holily preserved, because, if marriages are not holily preserved, quarrels and dissensions arise between the spouses, the education of offspring is ruined, and morals are corrupted more and more. Thus it is clearer than light from the history of all peoples. Moreover, the sanctity of matrimony can scarcely, indeed scarcely at all, be preserved unless the spouses are assisted by special supernatural grace. For suitably to generate and educate offspring, to dwell together peacefully and charitably throughout their whole life, patiently to bear each other's burdens, all these things, I say, demand such excellent virtues that they cannot be had without special supernatural grace. Therefore God most fittingly joined sacramental grace with matrimony. Briefly comprising these things, the Roman Catechism¹¹¹ says: "Therefore it must be taught that by the grace of this sacrament it is effected that the husband and wife, joined by the bond of mutual charity, rest each in the benevolence of the other, and do not seek strange and illicit loves and intercourse, but that in all things marriage be honorable and the bed undefiled."

⁹⁹ Already the Second Council of Lyons (the year 1274) defined: "The same Holy Roman Church also holds and teaches that there are seven ecclesiastical sacraments, one, namely, baptism, ... another is matrimony" (Profession of Faith of Michael Palaeologus; in Denz., n. 465). The Council of Florence defined: "The seventh is the sacrament of matrimony" (Instruction for the Armenians; in Denz., n. 702).

¹⁰⁰ Sess. 24, can. 1, De matrimonio (Denz., n. 971).

¹⁰¹ Eph. 5:22-32.

¹⁰² In the Greek text there is: Τὸ μυστήριον τοῦτο μέγα ἐστίν, ἐγὼ δὲ λέγω εἰς Χριστὸν καὶ εἰς τὴν Ἐκκλησίαν.

¹⁰³ Cf. Freisen, Geschichte des kanonischen Eherechtes, § 4, and above, III, n. 2.

¹⁰⁴ Part II, c. 8, q. 15.

¹⁰⁵ De bono coniugali, c. 24 (Migne, Patr. lat. 40, 394).

¹⁰⁶ De nuptiis et concupiscentia, l. 1, c. 7 (Migne, loc. cit. 44, 424).

¹⁰⁷ Ep. 92, Ad Rusticum, n. 4 (Migne, loc. cit. 54, 1204).

¹⁰⁸ Eph. 5:32.

¹⁰⁹ Several other Fathers teach the same, as can be seen in Billuart (De matrimonio, diss. 1, a. 3), or better in Drouven (De re sacr., l. 10, q. 1); whence Freisen (Geschichte des kanonischen Eherechtes, § 54) says altogether undeservedly that the Holy Fathers did not touch upon the question of the sacrament, and that if they sometimes employed the word sacrament concerning matrimony, they did not understand it in our sense. Certainly the Holy Fathers do not speak so explicitly about the sacrament of matrimony as modern authors treating this matter expressly; nevertheless, from this it is by no means lawful to infer that they in no way recognized matrimony to be a true sacrament. Do the Holy Fathers speak more clearly about the sacraments of confirmation and extreme unction, and about many other things pertaining to Catholic dogma? (Cf. Schanz, Die Lehre von den Sakramenten, § 55, and Drouven, loc. cit.)

¹¹⁰ Cf. Pourrat, La théologie sacramentaire, 2nd ed., pp. 252-267.

¹¹¹ Part II, c. 8, q. 15. See another argument of congruity in St. Thomas, S. theol. 3, q. 65, a. 1.

644. Objection. A sacrament does not diminish but increases grace and perfection. But matrimony diminishes grace and perfection, since it destroys the state of virginity, which excels matrimony, as was defined in the Council of Trent.¹¹² Therefore matrimony is not a sacrament.

Response: Without any doubt the sacraments of the New Law do not diminish grace, but either give or increase it actually and in a transient manner; but from this it by no means follows that he who has worthily received some sacrament is throughout his whole life in a more perfect state than another who has not received this same sacrament. Thus the sacrament of matrimony, rightly received, increases grace, but it by no means follows from this that it also constitutes a higher state. For state plainly differs from personal perfection. Thus, for example, religious and bishops are in the state of perfection, but from this it is not yet lawful to conclude that they always have greater grace than any layman. Therefore the state of matrimony is less perfect than the state of virginity, but the sacrament of matrimony causes grace ex opere operato, which the state of virginity does not do. On the contrary, he who preserves virginity from a motive of virtue performs a very good work and merits a great reward.

From the sacramental character of matrimony there follow several corollaries of great moment:

¹¹² Sess. 24, can. 10, De matrimonio (Denz., n. 981).

645. Corollary 1. The sacrament of matrimony was instituted by Christ the Lord.

Above, in the treatise on the sacraments in general, it was proved that all the sacraments were instituted by Christ Himself. But if it is asked when Christ instituted this sacrament of matrimony, three opinions are customarily adduced:

1. Christ elevated the matrimonial contract to the dignity of a sacrament when He honored the nuptials celebrated at Cana of Galilee both by His presence and by a notable miracle. This opinion is more common, and St. Cyril of Alexandria,¹¹³ St. Epiphanius,¹¹⁴ and St. Augustine¹¹⁵ appear also to favor it.

2. Christ instituted matrimony when He abrogated the law of repudiation and recalled matrimony to its pristine indissolubility, saying: "What therefore God has joined together, let no man separate."¹¹⁶

3. Christ instituted the sacrament of matrimony after the resurrection, when He spoke various things with the Apostles concerning the kingdom of God.

Nothing certain can be said about this question, which, moreover, is of lesser moment, since also concerning certain other sacraments the time when Christ instituted them is unknown, for example, concerning confirmation and extreme unction. This, however, appears to be certain: the sacrament of matrimony was not instituted in paradise, as certain theologians, for example, Catharinus and Maldonatus, taught, because in the Old Testament there did not exist a sacrament producing or increasing sanctifying grace ex opere operato. It can be conceded, however, that matrimony instituted by God in paradise was something sacred and bestowed the grace of state upon the spouses.¹¹⁷

¹¹³ In Ioan. 2:1-4 (Migne, Patr. graec. 73, 223).

¹¹⁴ Haer. 67 (Migne, loc. cit. 42, 179).

¹¹⁵ In Ioan., tract. 9, n. 2 (Migne, Patr. lat. 35, 1459).

¹¹⁶ Matt. 19:6.

¹¹⁷ The opinion of Catharinus and Maldonatus can scarcely be sustained while preserving the faith, since Pius IX (Ep. ad reg. Sardin., September 19, 1852) writes: "It is a dogma of faith that matrimony was elevated by Jesus Christ our Lord to the dignity of a sacrament."

646. Corollary 2. To the Church alone it pertains to judge and determine concerning all things which touch upon the essence of Christian matrimony.¹¹⁸

The Reformers of the sixteenth century falsely taught the contrary; to them are added Marcus Antonius de Dominis, Launoy, the Regalists, the Jansenists who participated in the Synod of Pistoia (the year 1787), and, among Catholics, Carrière,¹¹⁹ who taught as a probable opinion and safe in practice that the power of establishing diriment impediments of Christian matrimony belongs not to the Church alone, but also to lay princes.¹²⁰ Against all these, the thesis stated in this corollary is proved:

1. From the Council of Trent. "If anyone says that matrimonial causes do not pertain to ecclesiastical judges, let him be anathema."¹²¹ But that this canon is to be understood in such a way that it pertains to the Church alone to judge concerning things pertaining to the essence of matrimony is evident from several condemned propositions.¹²² Hence Pius VI, explaining the cited canon of the Council of Trent in a letter to the Bishop of Mottola (September 16, 1788), writes: "It is a dogma of faith that matrimony after the coming of Christ became one of the seven sacraments of the evangelical Law.... Hence it follows that to the Church alone, to which the entire care of the sacraments is entrusted, belong every right and power to assign its form, and consequently to pronounce judgment concerning the validity or invalidity of marriages." Leo XIII has similar things:¹²³ "Next, the dignity of the sacrament must be considered, by the accession of which the marriages of Christians became by far the most noble. But by the will of Christ, the Church alone can and ought so to establish and command concerning the sacraments that it is plainly absurd to will that even the smallest part of her power be transferred to the rulers of the civil state." The same Pontiff¹²⁴ proves that this power of the Church was always in force: "[The Church] exercised power over the marriages of Christians in every time and place, and so exercised it that it appeared to be her own, not acquired by the concession of men, but divinely obtained by the will of her Author.... No one is ignorant how many things concerning the impediments of bond, vow, disparity of cult, consanguinity, crime, and public propriety were established by the prelates of the Church in the Councils of Elvira, Arles, Chalcedon, the Second Council of Milevis, and others, which often differed greatly from decrees sanctioned by imperial law. Indeed, so far were princely men from arrogating to themselves power over Christian marriages that they rather recognized and declared that it belonged, in its entirety, to the Church. In truth, Honorius, Theodosius the Younger, and Justinian¹²⁵ did not hesitate to confess that, in those matters which touch upon nuptials, no more was permitted to them than to guardians and defenders of the sacred canons. And if they sanctioned anything concerning impediments of marriage by edicts, they taught the reason, not unwillingly, namely, that they had assumed this for themselves from permission and authority."

2. From reason. The contract and the sacrament are inseparable realities in Christian matrimony.¹²⁶ Now the Church alone, and by no means the civil power, ought to determine and judge concerning the sacraments. Therefore the Church alone judges concerning all things pertaining to the essence of the sacrament of matrimony. This argument is so evident that it struck Calvin himself, who consequently denied that matrimony is a sacrament. For he writes: "For once the Catholics obtained that matrimony is a sacrament, they drew to themselves the cognizance of matrimonial causes, since it was a spiritual matter not to be handled by profane judgments."¹²⁷

¹¹⁸ Code of Canon Law, c. 1960.

¹¹⁹ De matrimonio, I, 596.

¹²⁰ Carrière afterward (in the year 1857) retracted this opinion of his (cf. Feije, De imped. et dispens. matrim., n. 56).

¹²¹ Sess. 24, can. 12, De matrimonio (Denz., n. 982).

¹²² Propositions 59 and 60 of the Synod of Pistoia (Denz., n. 1559 ff.); propositions 68-71 and 74 of the Syllabus of Pius IX (Denz., nn. 1768 ff., 1774); cf. Code of Canon Law, c. 1960.

¹²³ Constitution Arcanum.

¹²⁴ Ibid.

¹²⁵ Novell., 137.

¹²⁶ Cf. above, n. 628.

¹²⁷ Institutes, l. 4, c. 19, § 37. The most celebrated Protestant jurist of Berlin, Hinschius, recognized the same, writing: "The Catholic Church must oppose such [state legislation concerning marriage]; for from the sacramental nature assumed by her there follow as consequences exclusive legislation and jurisdiction in matrimonial causes, at least insofar as property law is not involved." Holtzendorff, Rechtslexikon, s.v. "Ehe."

647. Corollary 3. The civil power cannot establish diriment or prohibiting impediments for Christian marriages;¹²⁸ likewise, it cannot pronounce divorce with respect to the matrimonial bond, nor permit Christians who have obtained a divorce to hasten to new nuptials.

All these things are nothing but practical conclusions deduced from the preceding corollary. For all these things pertain to the essence of the sacrament of matrimony. Moreover, the civil power has no power concerning those things which touch upon the sacrament of matrimony. The matrimonial institution indeed pertains also to the preservation and good of civil society, whose government belongs to the civil government, and consequently the civil government has a true right rightly to govern the matrimony of its subjects. But since Christian matrimony is a sacrament, the civil government now has no power concerning all those things which touch upon its sacramental character; for it must yield to the Church, whose right is higher. For it is impossible that the same Christian matrimony be governed by two independent powers, namely, the civil and the ecclesiastical. Otherwise it could happen that the same matrimony would be valid according to ecclesiastical law and invalid according to civil law. From this reasoning, however, it is not lawful to infer that power over Christian matrimony belongs to the Church from a benign concession of the civil power, which was expressly condemned by Pius VI.¹²⁹ The power of the Church in this matter depends solely upon the will of Christ elevating the matrimonial contract between Christians to the dignity of a sacrament, and therefore upon divine law alone. Hence the Church has never recognized such power in civil governments, but rather has more than once expressly rejected laws enacted by emperors concerning matrimony. Thus, for example, the perverse sanctions of Roman law concerning adultery and divorce were rejected.¹³⁰ St. Gregory the Great reproved marriages of blood relatives permitted by princes.¹³¹ Not rarely the Supreme Pontiffs had to defend and protect the right of the Church concerning matrimony against emperors themselves and other very powerful persons. Thus, for example, Nicholas I in the most celebrated divorce case of Lothair II vindicated competence to the Church alone.¹³² With no less constancy Innocent II defended the divine and canonical rights concerning matrimony against Philip Augustus, King of France. And indeed it is marvelous with what constancy Pius VII resisted the most powerful Napoleon I in the divorce case.

Just as the civil power cannot enact diriment impediments of matrimony, so also it has no power concerning prohibiting impediments of Christian matrimony. Binder-Scheicher, Schulte, Weber, and Silbernagl¹³³ indeed taught the contrary, but their opinion cannot be admitted, since prohibiting impediments also are matrimonial causes which in Christian matrimony do not pertain to the civil power, as was proved above.¹³⁴ Nevertheless, nothing prevents Catholics from observing civil statutes enacted concerning the contracting of matrimony, provided that they are not dishonorable in themselves nor expressly proscribed by the Church, for example, that soldiers cannot contract matrimony unless certain rules are observed. The reason is that otherwise the greatest inconveniences would arise.

It is evident of itself that the civil power is unable to pronounce divorce with respect to the bond, or to admit to new nuptials those who have illegitimately obtained a divorce. For not even the Church herself has power to do all these things if a valid Christian matrimony is in question. Moreover, all these are certainly matrimonial causes touching upon the very essence of the sacrament, which consequently in no way pertain to the civil power. But how Catholic men holding the office of judge or advocate ought to conduct themselves when the pronouncement of a civil divorce or the celebration of new nuptials by those who labor under a diriment impediment is in question will be stated below in the chapter on civil matrimony, n. 893 ff.

¹²⁸ Several ancient authors, such as Thomas Sanchez, Pirhing, Peter Soto, and others, also attributed to the civil power the faculty of establishing diriment impediments, but this opinion today is antiquated and abandoned among Catholics.

¹²⁹ Proposition 59 of the Synod of Pistoia: "The doctrine of the synod asserting that it pertains originally to the supreme civil power alone to attach to the contract of matrimony impediments of that kind which render it null and are called diriment; ... adding that, with the assent or connivance of princes supposed, the Church could justly establish diriment impediments of the matrimonial contract itself; as though the Church had not always been able and could not now by her own right establish in the marriages of Christians impediments which not only impede matrimony but also render it null with respect to the bond, by which Christians are held bound even in the lands of infidels, and dispense in the same: destructive of canons 3, 4, 9, and 12 of session 24 of the Council of Trent, heretical" (Denz., n. 1559).

¹³⁰ Cf. c. 4, C. 32, q. 4.

¹³¹ Cf. c. 21, C. 27, q. 2.

¹³² Cf. c. 4, C. 31, q. 2.

¹³³ Cf. Wernz-Vidal, Ius Can., V, n. 60.

¹³⁴ Cf. also condemned proposition 74 in the Syllabus of Pius IX (Denz., n. 1774).

648. Corollary 4. The civil power can and ought by its own authority to enact just statutes concerning the merely temporal effects of matrimony.¹³⁵

The reason is evident, because "the source and origin of the whole of human society consists in matrimony," as Leo XIII says in the Encyclical Arcanum. Therefore it also greatly concerns civil society that all things be rightly ordered in matrimony. Moreover, in the matrimonial contract there are found several material considerations, for example, the union and administration of goods, succession, the inheritance belonging to offspring, and so forth, which do not directly pertain to the ecclesiastical forum. Concerning all these things the civil power ought to enact just laws, which then, if they are truly just, bind subjects in conscience. It is also the office of the civil power to assist the Church in protecting the governance of Christian matrimony. It is highly expedient that in enacting laws concerning matrimony there be good concord between the Church and the civil power, in such a way that the Church strenuously admonishes the faithful to obey just civil laws, and in turn the civil power effectively prohibits subjects from transgressing the laws which the Church has enacted concerning matrimony.

¹³⁵ Code of Canon Law, cc. 1016 and 1961: "Causes concerning the merely civil effects of matrimony, if they are treated principally, pertain to the civil magistrate according to the norm of c. 1016; but if incidentally and accessorily, they can also be cognized and decided by an ecclesiastical judge by his own power."

649. Corollary 5. A matrimony contracted between non-baptized persons is not a sacrament of the New Law, nor is a matrimony between one baptized party and another non-baptized party.

The first part of this corollary is admitted by all today, since without baptism, as the gateway of all the sacraments, no other sacrament can be validly received. Nevertheless, in a broader sense certain ancient theologians, and even Innocent III and Honorius III, call the matrimony of infidels also a sacrament. Alluding to this, Leo XIII says in the Encyclical Arcanum: "For since matrimony has God as its author and was even from the beginning a certain foreshadowing of the Incarnation of the Word of God, there is therefore in it something sacred and religious, not adventitious but innate, not received from men but implanted by nature. Therefore Innocent III and Honorius III, Our predecessors, were able to affirm, neither unjustly nor rashly, that the sacrament of marriage exists among the faithful and infidels."

The second part of the corollary has now been disputed among authors for centuries. Ambrose Catharinus,¹³⁶ Dominic Soto,¹³⁷ Tournely,¹³⁸ Ferraris,¹³⁹ Perrone,¹⁴⁰ Palmieri,¹⁴¹ Christian Pesch,¹⁴² Scherer,¹⁴³ and others teach that a baptized person who legitimately enters matrimony with a non-baptized person receives a true sacrament. Peter de Ledesma,¹⁴⁴ Aegidius de Coninck,¹⁴⁵ Pirhing,¹⁴⁶ Schmier,¹⁴⁷ Schmalzgrueber,¹⁴⁸ Gotti,¹⁴⁹ Billuart,¹⁵⁰ Concina,¹⁵¹ and the Thomists commonly, De Smet,¹⁵² Billot,¹⁵³ Wernz-Vidal,¹⁵⁴ and many others teach the contrary. We adopt this latter opinion, which also conforms to the practice of the Roman Curia,¹⁵⁵ chiefly for two reasons: a) St. Thomas says simply and without any limitation, "Matrimony cannot limp,"¹⁵⁶ which is most commonly explained only in a negative sense, that is, if the matrimonial contract is invalid on the part of one of the contracting parties, it is also invalid on the part of the other. Consequently, if the sacrament of matrimony is not present on one side, neither is it present on the other side. Now it is certain that the infidel party is incapable of receiving the sacrament of matrimony. Therefore the Catholic party also does not receive the sacrament. b) If such a matrimony were a sacrament for the Catholic party, then, since the bond arising from a sacrament is stricter than that which arises from a contract alone, the obligation of the Catholic party would be stricter than the obligation of the infidel party, which is absurd, because the obligation of the bond is equal in the spouses. Billot observes excellently:¹⁵⁷ "The opinion of the adversaries, however, appears to have arisen from this, that in a sacrament they see nothing other than the external rite by which grace is immediately conferred; for certainly, with respect to receiving sacramental grace, each of the spouses is entirely independent of the consort, and the condition of one cannot impede the bestowal of grace upon the other. But if you keep before your eyes that grace is not conferred except through the mediation of the sacramental bond, and that the sacramental bond itself is the sole immediate effect of the external sacrament, then the matter will not even be doubtful to you. For the bond is a certain relation between two, and indeed a relation of equiparance of the same nature in each; if therefore one is absolutely incapable of the sacramental bond because of the defect of baptism, the other, although baptized, is known likewise to be incapable of a sacramental bond, not absolutely indeed, but with respect to the non-baptized person. Therefore there is no sacrament where no sacramental effect can either exist or be conceived."

¹³⁶ Commentary on 1 Cor. 7:14.

¹³⁷ Commentary on IV, dist. 27, q. 2, a. 3.

¹³⁸ Prael. theol., II, q. 2, a. 2.

¹³⁹ Prompta Bibliotheca, s.v. "Matrimonium," n. 19, where the author attempts to defend his opinion against the observation of the Roman theologian.

¹⁴⁰ De matrimonio, II, 306.

¹⁴¹ De matrimonio, 103.

¹⁴² Prael. dogm., VII, n. 728; Christian Pesch calls this opinion more probable.

¹⁴³ Kirchenrecht, II, § 123, note 9.

¹⁴⁴ De magno matrimonii sacramento (1592), in the additions to the Summa, p. 3, q. 59, a. 2.

¹⁴⁵ De sacramentis, II, disp. 24, n. 24.

¹⁴⁶ On IV, tit. 1, n. 71.

¹⁴⁷ On IV, a. 2, c. 1, n. 40 ff.

¹⁴⁸ On IV, tit. 1, n. 397.

¹⁴⁹ Theol. dogm., II, tr. 13, dub. 2, n. 10.

¹⁵⁰ De matrimonio, diss. 1, a. 5.

¹⁵¹ De matrimonio, diss. 1, c. 4, n. 29.

¹⁵² De sponsal. et matrim., n. 107.

¹⁵³ De eccl. sacr., de matrimonio, thesis 38.

¹⁵⁴ Ius Can., V, n. 42.

¹⁵⁵ The Holy Office on November 4, 1924, declared that such a matrimony can be dissolved by a dispensation of the Supreme Pontiff (American Ecclesiastical Review, 1935, p. 188).

¹⁵⁶ Suppl., q. 47, a. 1.

¹⁵⁷ Loc. cit.

650. Note. The things just said concerning the matrimony which a Catholic party contracts with a non-baptized party (by a pontifical dispensation) also hold if, of two non-baptized spouses, one is afterward baptized. Even such a matrimony does not become a sacrament for the party thus baptized. This opinion is so certain that it is denied by few. For such a matrimony, although it may have been consummated even after the baptism of the other party, can be dissolved with respect to the bond through the Pauline privilege and, more probably, also through a pontifical dispensation.¹⁵⁸ Moreover, it is unheard of that any consummated matrimony which is a sacrament should be dissolved with respect to the bond. On the contrary, when both spouses who contracted legitimate matrimony in infidelity have become Christians, by that very fact (provided that true marital consent perseveres) their matrimony becomes a sacrament. Thus holds the much truer opinion;¹⁵⁹ nevertheless, some contradict it, for example, Billuart,¹⁶⁰ Concina,¹⁶¹ the Salmanticenses,¹⁶² and others. The reason is that such a matrimony now becomes a legitimate matrimonial contract between Christian persons. Now every matrimonial contract between Christians is a true sacrament, as has already been said several times, and as Pius IX¹⁶³ and Leo XIII¹⁶⁴ expressly defined.

A theological reason is added: the efficient cause of matrimony is the legitimate consent of the contracting parties. But when the contracting parties, still persisting in infidelity, contracted legitimate matrimony, nothing else was lacking in order that the marital consent should produce the sacrament of matrimony except the baptismal character of both contracting parties. But after baptism has actually been received by both spouses, such an obstacle ceases and the matrimony contracted becomes a sacrament. St. Thomas¹⁶⁵ rather clearly favors this opinion, writing: "Although matrimony does not belong to infidels insofar as it is a sacrament, ... nevertheless it belongs to them insofar as it is an office of nature; and yet even such a matrimony is in some manner a sacrament habitually, although it is not so actually, because they do not actually contract in the faith of the Church." From the practice of the Church it is established that new marital consent is not required from new converts. For the consent previously given is supposed virtually to persevere, which suffices for the validity of the sacrament. But if the consent given in infidelity has been expressly revoked, for example, through civil divorce, it is difficult to understand how such a matrimony then becomes a sacrament through the baptism of both spouses. For these spouses would then receive a sacrament against their own will and intention. This indeed appears not to be possible. Furthermore, the efficient cause of the sacrament of matrimony is the consent of the contracting parties. Now in the case of revocation such an efficient cause is absent. Therefore the sacrament must also be absent. Nevertheless, some authors, for example, Billot,¹⁶⁶ think that even when marital consent has been revoked, the matrimony becomes a sacrament through the baptism of both spouses. When such a case occurs in practice, recourse must be had to the Holy See if either of such spouses wishes to enter a new matrimony.

¹⁵⁸ Cf. below, n. 676.

¹⁵⁹ This opinion, which was already called more common by Benedict XIV (De syn. dioec., l. 8, c. 13, n. 8), is held by almost all modern authors, for example, by Perrone, De matrimonio, II, 298; Rosset, De sacr. matrim., I, n. 340; Billot, De eccl. sacr., de matrimonio, thesis 38; Tanquerey, Synopsis Theol. mor., de matrimonio, n. 807; Vlaming, Prael. de iure matrim., I, 36; van de Burgt-Schaepman, Tract. de matrimonio, I, 28; Christian Pesch, Prael. dogm., VII, n. 727; De Smet, De sponsal. et matrim., n. 106.

¹⁶⁰ De matrimonio, diss. 1, a. 5, Petes 6.

¹⁶¹ De matrimonio, diss. 1, c. 4, n. 30.

¹⁶² De matrimonio, tr. 9, n. 82.

¹⁶³ In the Consistorial Allocution Acerbissimum, September 27, 1852: "Among the faithful matrimony cannot exist without being at one and the same time a sacrament" (Denz., n. 1640).

¹⁶⁴ Encyclical Arcanum.

¹⁶⁵ Suppl., q. 59, a. 2, ad 1.

¹⁶⁶ Loc. cit., § 2.

651. Corollary 6. The legitimate matrimony of non-baptized persons is not subject to the laws of the Church, but is subject to just laws and impediments enacted by the civil power.

Authors disputed and dispute most sharply concerning this corollary. In these times, however, it received great strength from the Decree Ne temere and from the Code of Canon Law, c. 1099, § 2, by which it was authentically declared: "Non-Catholics, whether baptized or non-baptized, if they contract among themselves, are nowhere bound to observe the Catholic form of betrothals or matrimony."¹⁶⁷ Certainly, only the form of matrimony is treated here, and consequently it is not yet lawful to infer generally that non-baptized persons are in no manner bound, or cannot be bound, by laws enacted by the Church concerning matrimony; but from the cited places it is lawful to suspect that it is not the mind of the Church to intervene in the matrimonial causes of non-baptized persons, since she does not will even to subject heretics to the observance of the matrimonial form. Hence authors most commonly teach that the Church does not enact matrimonial impediments for infidels, nor are their marriages subject to the jurisdiction of the Church. There is added also the practice of the Roman Curia, which holds the marriages of infidels to be valid, although they were contracted with an impediment of ecclesiastical law, provided, however, that no impediment of natural or divine law is opposed. Thus, for example, the Holy Office on January 17, 1872, declared marriages contracted in infidelity to be valid, although an impediment of ecclesiastical law was opposed. The same Holy Office on August 26, 1891, declared that "affinity which is naturally contracted in infidelity from intercourse both licit and illicit is not an impediment for marriages which are entered into in infidelity," but adds: "nevertheless, it becomes an impediment for marriages which are entered into after baptism, by the reception of which infidels become subjects of the Church and consequently subject to her laws."¹⁶⁸

Infidels are sometimes indirectly subject to the jurisdiction of the Church with respect to matrimony, and especially with respect to diriment impediments of ecclesiastical law, namely, when they wish to contract matrimony with a faithful party.¹⁶⁹ For matrimony is an altogether indivisible contract, and consequently an incapacity which directly affects one party indirectly renders the other party incapable. Thus, for example, an infidel cannot take in matrimony a baptized person related to him by consanguinity in the second degree, or even by affinity. For matrimony cannot limp, as was said above in n. 635. Certainly the infidel party is not bound by the ecclesiastical impediment, but because the faithful party is bound and labors under incapacity, the infidel party is therefore affected by the same incapacity.

¹⁶⁷ Denz., n. 2070.

¹⁶⁸ Collect. de Prop. Fide, n. 1766. The Holy Office already taught the same on September 16, 1824 (ibid., n. 784). Hence affinity, considered in itself and physically, which once has been contracted through consummated matrimony, becomes an ecclesiastical impediment after baptism has been received. Thus Wernz-Vidal correctly teaches (even after the new law), De matrimonio, n. 367. Against Cappello, De matrimonio, n. 67. The Sacred Congregation for the Propagation of the Faith taught the same concerning consanguinity on August 23, 1852: "Could an infidel converted to the faith, after the death of his legitimate infidel wife, contract matrimony with a blood relative (up to and including the fourth degree) of the same deceased wife, whether that blood relative received baptism before or after the death of the aforesaid infidel wife? Response: No." (Collect. de Prop. Fide, n. 1079, ad 4.) Other impediments of ecclesiastical law in no way touch non-baptized persons. Thus, for example, the impediment of public propriety does not touch them, as the Holy Office taught on April 19, 1837: "Titius, a pagan, married Maevia, a pagan, but did not consummate; after the death of Maevia, Titius becomes a Christian: can he marry Bertha, the sister or cousin of Maevia, who from a pagan has become a Christian? And is the same true concerning the betrothals of pagans and concerning ratified matrimony?" The Sacred Congregation responded: "The impediment does not subsist." Likewise, neither does the impediment of crime (cf. Sacred Congregation for the Propagation of the Faith, August 23, 1852, ad 5 [Collect. de Prop. Fide, n. 1079]); nor the impediment because of defect of age (cf. Holy Office, December 10, 1885, and August 6, 1886 [Collect., nn. 1645 and 1662]).

¹⁶⁹ But when the Church dispenses from disparity of cult, she is considered simultaneously to dispense from impediments of ecclesiastical law to which the infidel party of itself is not subject. Cf. below concerning the impediment of disparity of cult, n. 809.

652. Concerning the other part of the corollary, Wernz-Vidal¹⁷⁰ deservedly writes: "The ancient theologians and canonists taught by common consent that civil princes could establish even diriment impediments for their infidel subjects, and they did not doubt that they should defend this opinion as certain." But not only the ancient theologians and canonists, but also almost all modern authors teach thus, for example, Cavagnis, Santi, De Angelis, Zitelli, Grandclaude, Gasparri, Rosset, Ballerini, D'Annibale, De Becker, De Smet, Cathrein, Hammerstein, Boeckenhoff, Vogt, and others.¹⁷¹ These authors do not agree, however, whether such a right belongs to the prince in a native and original manner, or only in a devolutive manner. Liberatore, Perrone, Zigliara, Martin, Heuser,¹⁷² and Billot¹⁷³ deny to the civil prince the right of establishing diriment impediments; their opinion acquired rather great weight from the Encyclical Arcanum, where Leo XIII says: "Since matrimony is sacred by its own force, its own nature, and of its own accord, it is fitting that it be ruled and regulated, not by the command of princes, but by the divine authority of the Church, which alone has the magisterium over sacred things. Next, the dignity of the sacrament must be considered, by the accession of which the marriages of Christians became by far the most noble." Leo XIII therefore appears to deny to the civil prince power over marriages, since these, even apart from the sacramental character, are something sacred. But notwithstanding these words of the Encyclical, the affirmative opinion appears to be truer. For:

1. If the civil prince has no power concerning diriment impediments of matrimony, then for infidels there exists no earthly authority governing matrimony, because the Church does not have jurisdiction over them, as was said above. But this appears to be absurd, or at least exceedingly unsuitable. For if the civil power did not enact just positive laws concerning the matrimony of infidels, and if infidels were not bound by these laws, their marriages would most certainly be disfigured by disorders of every kind, and the state itself would suffer the greatest harms. This certainly ought to be avoided, and consequently the power of enacting laws intimately touching upon the marriages of infidels must be conceded to the civil prince. This argument is admitted in some manner by the adversaries themselves. Hence Billot says:¹⁷⁴ "The prince can among them [the infidels] regulate the matrimonial contract and judge matrimonial causes, not because this authority is part of the civil principate, but because by accident and by reason of necessity it devolves in the aforesaid circumstances upon him who alone legitimately presides there, so that the social good may somehow be preserved there. For then the well-worn axiom is in some manner applied: The supreme law is the welfare of the people."

2. St. Thomas favors this opinion, writing:¹⁷⁵ "Matrimony, insofar as it is an office of nature, is established by the natural law; insofar as it is a sacrament, it is established by divine law; insofar as it is an office of the community, it is established by civil law. And therefore by any of the aforesaid laws some person can be rendered illegitimate for matrimony." St. Thomas therefore admits that the civil power can sometimes establish diriment impediments.

3. Certain documents of the Holy See are cited in favor of this opinion,¹⁷⁶ the principal of which is the Instruction of the Sacred Congregation for the Propagation of the Faith, which is said to have been issued on June 26, 1820:¹⁷⁷ "Although among infidels there is true matrimony, nevertheless it can be referred only to the office of nature and of the community, and consequently it is plainly to be regulated by natural and civil law. It follows from this that secular princes, whether faithful or infidel, retain the fullest power over the marriages of their infidel subjects, so that, by attaching impediments which are not opposed to natural and divine law, they may entirely rescind the same not only with respect to civil effects, but also with respect to the conjugal bond, ... and what is said in this case concerning the law of a secular prince is to be understood also concerning a legitimate custom which has acquired the force of law over infidel subjects." The approval of this Instruction is found nowhere, and therefore Gasparri says:¹⁷⁸ "It is probable that this Instruction was approved by the Sacred Congregation, but not certain, because this approval is in fact absent."

¹⁷⁰ Ius Can., V, n. 68.

¹⁷¹ Cf. Adrian Resemans, De competentia civili in vinculum coniugale infidelium, Rome 1887.

¹⁷² De potestate statuendi impedimenta dirimentia, Louvain 1853.

¹⁷³ De eccl. sacr., II, thesis 47.

¹⁷⁴ De eccl. sacr., II, thesis 47, ad 5.

¹⁷⁵ Suppl., q. 50, a. un., ad 4. Cf. Summa c. gent., l. 4, c. 78; IV, dist. 39, a. 2, ad 3.

¹⁷⁶ Instruction of the Sacred Congregation for the Propagation of the Faith, October 8, 1631; Instruction of the Holy Office, September 20, 1854, and October 29, 1739. Besides Resemans in the work cited, Feije (De imped. et dispens. matrim., n. 70) and Wernz (Ius Decretal., IV, n. 81, note 209) learnedly discuss all these declarations.

¹⁷⁷ Collect. de Prop. Fide, n. 744, note.

¹⁷⁸ De matrimonio, I, n. 288.

653. Note for practice. 1. In this controversy concerning the power of the civil prince, which is not merely speculative but also of practical moment, because both among foreigners and among our own people marriages are entered into by non-baptized persons contrary to the statutes of civil law, to this day there exists no definitive and certain decision of the Holy See; indeed, there are not so many uniform and constant particular responses of the Roman Congregations that either opinion can be said to be received and approved from the "style of the Roman Curia." For this reason, in a practical case no judgment concerning the nullity of any matrimony entered into by infidels contrary to the statutes of civil law is to be rendered without previous recourse to the Holy See. And this all the more because it is often most difficult to judge whether civil laws which intend to establish truly diriment impediments actually exist in some region. For although in the civil code of almost every country there are statutes laying down norms without which matrimony cannot be celebrated, it does not yet follow certainly from this that the legislator willed to bind under pain of nullity. For often statutes of this kind are merely penal laws, and not truly invalidating laws.¹⁷⁹

2. The civil power, although it has power to establish diriment impediments for marriages of non-baptized persons, nevertheless cannot through perfect divorce dissolve their legitimately entered matrimony, since it is indissoluble by natural law.

3. Certain authors add the question whether a matrimony validly contracted between a baptized party and a non-baptized party falls under the governance of the Church alone, or, because of the non-baptized party, also under the civil power. Although certain authors, such as Van de Burgt-Schaepman,¹⁸⁰ De Becker,¹⁸¹ and D'Annibale,¹⁸² teach that a matrimony thus entered falls both under the governance of the Church and under the governance of the civil power, so that such a matrimony is not valid unless it is free from impediments of both ecclesiastical and civil law, nevertheless the contrary opinion, which is held by Wernz-Vidal,¹⁸³ Gasparri,¹⁸⁴ Resemans,¹⁸⁵ and De Smet,¹⁸⁶ appears to be preferred. For it is impossible that one and the same matrimony be governed independently by two distinct powers. For a case could then happen in which such a matrimony would be held valid by the Church and invalid by the civil power, and each statute would have force in conscience, which is certainly absurd. Hence it must be said that such marriages are subject to the superior power, namely, to the ecclesiastical power alone, although they are not sacraments, as was said above.

¹⁷⁹ In Germany (Civil Code, §§ 1323-1329) and Austria (Civil Code, §§ 48-69), the statutes appear to be true diriment impediments.

¹⁸⁰ Tract. de matrimonio, I, n. 48.

¹⁸¹ De matrimonio, 44.

¹⁸² Summula Theol. mor., III, 294.

¹⁸³ Ius Can., V, n. 52.

¹⁸⁴ In the third edition of De matrimonio, n. 306, the author changed the opinion he had previously proposed.

¹⁸⁵ Loc. cit., p. 2.

¹⁸⁶ De sponsal. et matrim., n. 438.