§ 3. The Bond

803. Preliminary note. Enough was already said above, n. 659 ff., concerning the unity and indissolubility of matrimony, and therefore the things contained there are presupposed as known. From all history not even one certain example can be adduced in which a Pope permitted one man to have two wives at the same time, and much less one woman to have two husbands at the same time. But the things which are adduced concerning the Count of Gleichen, to whom Gregory IX is said to have conceded two wives, and concerning a Swiss man, to whom Pius VI is said to have granted the same, are fables meriting no belief.⁶⁴ - On the contrary, it is certain that Luther, with the consent of seven other Protestant theologians, on March 4, 1540, benignly granted that Philip, Landgrave of Hesse, while retaining his first wife, might take another.⁶⁵ This example is not unique among Protestants; indeed, even to our days they teach and effect the dissolution of even consummated matrimony as regards the bond. But the Catholic Church defined in the Council of Trent:⁶⁶ "If anyone says that it is lawful for Christians to have several wives at the same time, and that this is prohibited by no divine law, let him be anathema"; and she established in the Code of Canon Law, can. 1069: "One who is held by the bond of a prior matrimony invalidly attempts matrimony, although the prior matrimony has not been consummated, without prejudice to the privilege of faith" (that is, excepting the Pauline privilege).

Notion. The impediment of bond is the incapacity for contracting a new matrimony while the bond of a prior valid matrimony endures, whether ratified or consummated.

This impediment is of divine law, as is evident from the Council of Trent cited above, and it is never dispensed.⁶⁷ If the preceding matrimony is doubtfully valid, a judicial process is required by which the validity or invalidity of the matrimony is declared, as will be said below. But if there is doubt whether the first matrimony has been dissolved by the death of the spouse, then an authentic declaration of death is required, concerning which the following things are to be noted:

⁶⁴ Cf. Döllinger, Papstfabeln, 34 ff.; Wernz-Vidal, Ius can. V, n. 243, notes 18 and 21.

⁶⁵ Cf. Rockwell, Doppelehe Philipps, 1904.

⁶⁶ Sess. 24, can. 2, on the sacrament of matrimony (Denz., n. 972).

⁶⁷ How matrimony can be dissolved as regards the bond was said above, n. 665 ff.

804. A declaration of death must be pronounced by ecclesiastical authority. For a declaration of death made by civil governments, which are sometimes too lenient in this matter, by no means suffices. The general rule is: moral certainty is required concerning the death of the other party as having truly occurred, so that every prudent doubt is altogether excluded. But for affirming this moral certainty, the mere absence of the spouse for a long time, such as civil governments admit, does not suffice; rather, it is required that the method prescribed by the Holy Office⁶⁸ be observed, namely: a) first of all, an authentic document of death is to be diligently sought from the registers of the parish, military, hospital, or civil magistracy; b) if such a document cannot be had, at least two trustworthy witnesses are to be heard, who are bound to say under oath what they think in the case concerning the death. If they are not eyewitnesses, the testimony of hearsay witnesses can also be accepted. But if two witnesses cannot be found, even the testimony of one trustworthy witness has great weight. c) If not even one witness can be found who can give sufficient testimony of the death, proof of the death is to be investigated from conjectures, presumptions, indications, etc. - Thus, for example, the Holy Office on July 20, 1898, granted to the bishops of Italy the faculty of conceding a document of freedom to the wives of soldiers who fought at Adwa in Africa and of whom no memory remained, notwithstanding the investigations made by the government.

From what has been said it clearly appears that the parish priest cannot assist at nuptials unless he has moral certainty concerning the free state of each person about to marry; but if even a slight doubt remains, he must refer everything to the episcopal curia, whose office it is then to determine what must be done. But before issuing a declaration of death, the bishop must observe the statutes of the Instruction of the Holy Office cited above. In more difficult cases, however, it seems better (although not strictly necessary) to institute a judicial process or to have recourse to the Sacred Congregation of the Sacraments.⁶⁹ But if, notwithstanding all the cautions employed, the declaration of death was false and the first spouse unexpectedly appears, the second nuptials are invalid and must be dissolved immediately.

⁶⁸ This entire Instruction, given on May 13, 1868, was printed again in Acta Ap. Sedis II, 199-203, in the year 1910.

⁶⁹ Cf. Sacred Congregation of the Council, December 14, 1889; and Holy Office, May 6, 1891, ad 3. See such cases resolved by the Sacred Congregation of the Sacraments on December 18, 1914, and June 25, 1915 (Acta Ap. Sed. VII, 40 ff., 476 ff.).

805. Penalties against those violating the impediment of bond.

1. If someone in good faith contracted second nuptials while bound by the impediment of bond, he did not sin and therefore incurred no ecclesiastical penalty; nevertheless, when the truth of the matter has become known, he must immediately separate himself from the second spouse, as was just said. - Children born from such a matrimony are held to be legitimate, as born from a putative matrimony.

2. One who knowingly attempted second nuptials incurs a) the impediment of crime;⁷⁰ for which reason he cannot remain with the second spouse without a prior special dispensation, even after the death of the first spouse. How such a dispensation is to be given will be said below, where matrimonial dispensations will be discussed; b) irregularity because of bigamy; c) infamy of law; d) if, in contempt of the Ordinary's warning, he persists in the illicit cohabitation, he is to be excommunicated or punished with a personal interdict.⁷¹ By particular law, the faithful are sometimes punished with a latae sententiae excommunication reserved to the bishop if, after obtaining a civil divorce, they attempt a new matrimony.⁷² - Children born from such a matrimony are illegitimate, as being adulterine.

3. Polygamists are held to be public sinners, and therefore they are to be barred from the sacraments, the blessings of the Church, and ecclesiastical burial. Hence, for example, in this case a woman cannot receive the blessing of a woman after childbirth.⁷³

⁷⁰ Cf. below, n. 825.

⁷¹ c. 3, X, I, 21; Code of Canon Law, can. 2356.

⁷² Thus, for example, it was established for North America by the Third Council of Baltimore (1884), n. 124.

⁷³ Cf. Gasparri, De matrim. I, n. 632.